Alpert, Ex parte - Re Aird & Ors [2004] HCATrans 42 (3 March 2004)

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Alpert, Ex parte - Re Aird & Ors [2004] HCATrans 42 (3 March 2004)

Last Updated: 4 March 2004

[2004] HCATrans 042

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B60 of 2003

In the matter of -

An application for Writs of Prohibition and Certiorari against COLONEL STEVEN AIRD, LIEUTENANT COLONEL BRYCE TITCUME, MAJOR PETER THUAUX, CAPTAIN SHANNON CALLAGHAN AND CAPTAIN SIMON WORBOYS, sued in their capacity as the members of a general court martial constituted under the Defence Force Discipline Act 1982

First Respondents

WING COMMANDER MICHAEL J.F. BURNETT, sued in his capacity as the judge advocate appointed to the said General Court Martial

Second Respondent

THE COMMONWEALTH OF AUSTRALIA

Third Respondent

Ex parte –

STEWART WAYNE ALPERT

Applicant/Prosecutor

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

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 3 MARCH 2004, AT 10.17 AM

Copyright in the High Court of Australia

__________________

MR J.A. LOGAN, SC: If the Court pleases, I appear with my learned friend MR P.E. NOLAN for the prosecutor. (instructed by Beven Bowe & Associates)

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth of Australia: If the Court pleases, I appear with my learned friends, MR G.B. HEVEY, MR S.B. LLOYD and MR B.D. O’DONNELL, for the third respondent. (instructed by Australian Government Solicitor)

GLEESON CJ: Thank you, Mr Solicitor.

MR BENNETT: Your Honours, there is one short application which we make, by consent, to Justice Heydon and that is to add to the stated case a copy of the Unit Standing Orders. They are referred to on page 30 of the special case book in paragraph 54. They have a minor relevance in that they define certain matters which govern the conduct not directly relevant to this case, but matters which govern the conduct of members of the defence forces while on leave.

CALLINAN J: What is the significance of the restriction? That is what mine says:

is not to be communicated directly or indirectly to the press or to any person not authorised to receive it.

MR BENNETT: Your Honour, it is what it says. If it became necessary in the course of your Honours’ judgment to refer to something from it, so be it. The purpose of the restriction primarily relates to aspects of the document which are not aspects I will be referring to.

CALLINAN J: Which parts will you be referring to? Can you tell us in summary, quickly?

MR BENNETT: Parts dealing with people being accompanied on leave and what they can wear when on leave, matters of that sort.

HAYNE J: Not paragraph 625 about security of bicycles, Mr Solicitor. We are not going to be troubled by that.

MR BENNETT: No, your Honour, I am sure that is a matter of high confidentiality.

GLEESON CJ: Yes, thank you, Mr Solicitor. There is a certificate from the Deputy Registrar that he has been informed by the Australian Government Solicitor that the first and second respondents submit to any order of the Court, save as to costs. Yes, Mr Logan.

MR LOGAN: Thank you, your Honour. That amendment is by consent, I should indicate. Your Honours, military discipline is an incident, a vital incident of command, not, as the Commonwealth would apparently primarily submit, of status as a member of the defence force. Status, in our submission, is merely the beginning, not an end in itself. Why that is so, we submit, is that a soldier is gifted with all the rights of other citizens, any Australian. By putting on the additional character of a soldier one does not at the same time, we submit, put off rights, duties, privileges, that any other Australian enjoys. On 29 September 2001 the prosecutor was on leave in Phuket, Thailand. He was released temporarily from his military duties, released from the command - - -

GUMMOW J: Just a minute. He was a defence member, was he, within the definition of section 3?

MR LOGAN: Indeed, yes.

GUMMOW J: In which part of the definition? A member of the Australian Regular Army?

MR LOGAN: Yes. I will come to the Defence Force Discipline Act in detail in a moment, if your Honour pleases, to track through how it is that one gets to the prosecutorial process. At the time when he was on leave his visit was, as is in the special case, purely recreational. He entered Thailand on his civilian passport, there was no military quality to his entry. The incident that is alleged to have occurred at Patong Beach in Phuket, sexual intercourse without consent, was one which had no relationship, in our submission, to his status as a member of the defence force. That was nothing more than a coincidence. The complainant, though, as the special case discloses - - -

GUMMOW J: What is the situation at Butterworth, looking at page 10? What is the status of the Australian forces?

MR LOGAN: Your Honour is looking at the land command instruction at page 10?

GUMMOW J: Yes.

MR LOGAN: That instruction, it seems, is issued under the auspices of a five power defence relationship that exists between our country, Great Britain, New Zealand, Malaysia and Singapore, for the external defence of Malaysia and Singapore. It dates back to 1971. There is a footnote in the special case referring to the Australian Treaty Series where that proposal - - -

GUMMOW J: Yes, whereabouts is that? Where is the reference to the ATS, to the Australian Treaties Series?

MR LOGAN: Yes, if one goes to page 2, footnote 4.

GUMMOW J: Thank you.

MR LOGAN: If you could track then, please, the court martial process that followed the complaint that the young lady concerned made. The complaint itself appears on pages 66 and 67 of the special case. One sees it is directed to the prosecutor’s commanding officer at 6 Battalion, Royal Australian Regiment at its Enoggera base.

KIRBY J: Has there ever been a head-on challenge to the constitutional validity of courts martial in Australia? I realise that the cases which you cited in your submissions accept their system and the system has a long history in the British military forces, but we work within our Constitution. Section 51(vi) is subject, in our Constitution, to Chapter III and it is at least a curiosity that you can have a system outside Chapter III for disposing of matters which arguably are matters of ordinary rights and duties and punishment. Now, you do not raise this in your case, but the logical starting point would seem to me to be how consistent with the scheme of our Constitution you can have a system of courts martial. Has this Court upheld the system on a confrontation directly challenging its compatibility with Chapter III?

MR LOGAN: Your Honour, that we apprehend is a battle fought and lost, in terms of the ability to have courts martial with persons who are not like appointees, exercising what is, on any view, judicial power. But it is a battle which was fought, in our submission, and should be confined to a very narrow theatre of operations.

KIRBY J: It is a little bit like the claimed residual powers of the Parliament to punish people that was dealt with in Ex parte Browne and Fitzpatrick, a decision which has long been controversial. This issue does not seem to be raised by anybody in the case and I will put it to one side if it is not to be contested, but at least in my mind there is a question as to whether you can reconcile a system of courts martial with the separation of powers and the structure of our Constitution and the part that Chapter III plays in the Constitution. But, if you are not raising it, I will simply note it and pass by. If the court has authoritatively decided it and if it is common ground between the parties, then let that be said and I will pass it by, but it concerns me.

MR LOGAN: Yes, your Honour, that particular issue is not one that is disputed in this case. It is not, and we apprehend that really to be the outcome of the final of the trilogy of the cases that concerned disciplinary charges in respect of offences in Australia. There is an explanation as to why that is so in Mr Justice Dixon’s judgment – as his Honour then was - in Cox which we will come to in the course of submissions, if we may. Your Honour, in response to that complaint, and as the special case recites, a military investigation was convened - - -

KIRBY J: The complainant only complained to the Australian defence services.

MR LOGAN: Indeed.

KIRBY J: She did not complain to the Thai authorities.

MR LOGAN: Not at all, no.

KIRBY J: At least arguably, an offence may have been committed against the law of the kingdom of Thailand if an offence occurred, because it would defy credulity to believe that there was no crime of rape under the law of Thailand.

MR LOGAN: There is recited in the special case the provision from the law of Thailand that relates to this form of conduct.

KIRBY J: Is there any principle of public international law relating to the extension of the claim to criminal law operation in another country which has its own law on the subject? Is that a matter which should be taken into account in these proceedings? At least when I learned public international law, you started from the premise that criminal law was local and that each country had its own criminal law and the right to enforce it.

MR LOGAN: Yes. In deciding whether or not the Act on its face applied to the prosecutor is reasonably adapted to the head of constitutional power, we would submit that one would take into account that there is an ability on the part of the Commonwealth, should it so choose, to make conduct by Australians overseas criminal under our law.

KIRBY J: But this has nothing to do with the Commonwealth. It is criminal by the law of the place where it occurs. One of the points made by the Commonwealth is that in some places to which our military personnel are sent – one could think, for example, of Afghanistan – there is no effective criminal law and that therefore you need it, but Thailand is an organised country with an organised legal system and there would be a law of Thailand which, on the face of things, would apply.

MR LOGAN: Yes.

GUMMOW J: Paragraph 35 of the stated case deals with that.

MR LOGAN: The other aspect that one would consider, if I may complete an answer to your Honour Justice Kirby’s question, is that there are extradition relations between Australia and Thailand, so that in that sense there is a recognition of a relationship as between Thai law and our law in terms of matters of international comity. But that is as far as we would take that.

Paragraph 32 of the special case recites the convening, then, of the court martial as ordered. The order for its convening is at page 69 of the special case and it is issued by a general officer in the Australian Army who, on the face of it, describes himself as a “convening officer”.

As the convening officer then, he appoints both the members of the court martial who are officers, as well as the judge advocate. One sees that on the face of the convening order. The charge itself is found at page 71 of the special case. The marginal note there recites the incorporation by reference of a standard of behaviour, as it were, by section 61 of the Defence Force Discipline Act.

If the Court pleases, it might be convenient at this point if we hand up for your Honours’ use a consolidation of the Defence Force Discipline Act as it was in force on 29 September 2001. At the same time, might we also hand up some extracts of other legislation to which reference may be made in the course of submissions.

GLEESON CJ: Thank you.

MR LOGAN: Your Honours will find on page 52 of the consolidated Act handed up, section 61(1) provides that:

A person, being a defence member . . . is guilty of an offence if . . .

(c) the person does . . . outside the Jervis Bay Territory an act or thing the doing . . . of which, if it took place . . . in the Jervis Bay Territory, would be a Territory offence.

One might note whilst one has that particular part of the legislation open that section 63(1)(a) provides that if a particular range of offences- and we are concerned with (ia) - is committed in Australia the consent of the Director of Public Prosecutions is required. The particular offence with which we are concerned was formerly numbered as 92D in the ACT Crimes Act.

We go from 61, then, to section 3 to find out what a Territory offence is. One finds that on page 10 and one sees that in paragraph (b) it is:

an offence punishable under the Crimes Act 1900 of the Australian Capital Territory, in its application to the Jervis Bay Territory, as amended or affected by Ordinances in force in that Territory -

There are some other definitions one might note whilst one has section 3. Your Honour Justice Gummow has already asked in relation to “defence member”. That is defined in section 3. Paragraph (a) is the one that is germane here:

(a)	a member of the . . . Regular Army –

One might have noted in section 61 a reference to “defence civilian”. One sees that also defined just above “defence member”, a defence civilian being someone who “accompanies a part of the Defence Force” that is outside of Australia or on operations and has consented. There are other aspects to defence member, but one is not concerned, in our submission, with those in this case – those aspects being peculiar to Reserve soldiers, sailors or airmen.

“Service offence” is also defined. Paragraph (a) is the appropriate one in our submission here, meaning “an offence against this Act”. One might also note “service tribunal”, on page 9, means a court martial. Punishments are the province of Part IX of the Act. Might we first go please to section 67(1):

A court martial or a Defence Force magistrate shall not impose a punishment in respect of a conviction except in accordance with this Part and Schedule 2.

One might have noted in section 61 a punishment for an offence against that section is:

(a) if the relevant Territory offence is punishable by a fixed punishment - that fixed punishment; or
(b) in any other case – a punishment not more severe than the maximum for the relevant Territory offence.

If one goes from section 67 then to 68, one sees that:

the only punishments that may be imposed by a service tribunal on a convicted person are, in decreasing order of severity –

and the second one is germane here –

(b) imprisonment for a specific period –

Section 69 tells one, on page 58, that punishment is not to be “more severe than the maximum punishment”. Then there are restrictions which are imposed on service tribunals in relation to punishments. These are found in section 71 and, in particular, 71(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 that conviction the punishment of dismissal from the Defence Force.

Section 172(1)(b) provides that:

punishments imposed by a service tribunal –

which include imprisonment for a specific period –

do not take effect unless approved by a reviewing authority.

We have scheduled in our written submission in detail that review process. We do not propose, unless your Honours so require, to revisit the review process. In effect, it involves the ability for advice to be taken by the reviewing authority from a legal officer whose views on points of law are binding on that reviewing authority. There are two types of court martial for which provision is made in the Defence Force Discipline Act - - -

GUMMOW J: Section 170 sets up a system of warrants of commitment to State or Territory prisons.

MR LOGAN: Yes.

GUMMOW J: What then happens, for example, with parole systems?

MR LOGAN: Those parole systems are engaged - there is provision in this legislation – I can turn it up for your Honour - for parole aspects. I might give that to your Honour a little later in the submissions, if we may, please

GUMMOW J: Thank you.

KIRBY J: Just two little questions that I would like some help on. First of all, is there any provision in here for the role of the Governor-General as the Commander-in-Chief under the Constitution? Is that, as in the United States, given some special authority, or not?

MR LOGAN: Not that we would apprehend, no.

KIRBY J: I see the Governor-General has some things to do under section 194 but it does not seem as though they have been elevated into the kind of mystery that occurs in the United States.

MR LOGAN: Not quite. The Governor-General certainly has a role in relation to the appointment of the Judge Advocate General.

KIRBY J: But that would be acting on advice in the normal way.

MR LOGAN: One would expect, yes.

KIRBY J: What about the relationship to the court system? What is the provision under the Act for - - -

MR LOGAN: There is provision in the legislation - we have referred to it in the schedule to our outline - for an alternative path of challenge, as it were, to the Defence Force Discipline Appeals Tribunal, formally known as the Courts Martial Appeal Tribunal. From there one can go on a question of law to the Federal Court of Australia and thence, in theory, we would apprehend by special leave of this Court to this Court.

GUMMOW J: We had such a case a couple of years ago.

MR LOGAN: Hembury, as we recall, was the case that followed that path.

GUMMOW J: That is right. You were in it, I think.

MR LOGAN: Yes.

KIRBY J: But the service personnel do not have the right, as it were, the threshold, to opt out of this in-house disciplinary system and go into the normal courts under Chapter III.

MR LOGAN: For an offence committed overseas, no, and for an offence even in Australia, depending on the type of offence, there might be a need for the consent of the Director of Public Prosecutions. But there is no general opt-out given to a defence member in his or her capacity as a defence member. It is more a decision of the command authorities than the soldiers.

KIRBY J: That means in relation to rape, which would be an indictable offence, no guarantee of jury trial.

MR LOGAN: There is none at all, no.

KIRBY J: That seems an odd result, given section 80 of the Constitution.

MR LOGAN: Your Honour, that again is a subject which was aired at some length in earlier cases in this Court and we do not advance the submission that found in section 80 as some right to trial by jury. That is for another day.

GLEESON CJ: But if member of the defence forces, either in Australia or overseas, commits unlawful homicide, if the offence is committed outside Australia, he or she will be dealt with under this procedure. If the offence is committed in Australia, he or she may be dealt with under this procedure if the Director of Public Prosecutions agrees.

MR LOGAN: Precisely, yes, with respect, that is right.

KIRBY J: That would depend on the speed with which the overseas prosecuting authorities acted. One has read newspaper reports about cases in Japan where local prosecutors have sought to prosecute American servicemen in a country where they are acting under special treaty arrangements. One could well imagine that there would be countries whose pride in themselves and their own legal system and their criminal justice system would be such that they would not agree that an Australian service personnel is subject to Australian law. If you asked a person on the omnibus to Patong what they thought about the law of the Jervis Bay Territory of Australia via the law of the Australian Capital Territory operating on Patong Beach, I would think there would be an exclamation of astonishment.

MR LOGAN: With respect, yes. It is not something one would find on the enlistment oath, for example, and any recruiting centre, one would expect.

McHUGH J: If my recollection is right, were one or more soldiers not charged with murder in relation to the use of explosives or grenades in Vietnam?

MR LOGAN: Indeed, your recollection is dead right, with respect to your Honour. We have scheduled in our written submission the cases to which that very type of conduct relates. Those cases highlight how it is that, in our submission, one – there is a difficult line to draw, an impossible line really, on operations between conduct that is offensive to general concepts of criminal law, as well as conduct that is on any view subversive of good order and military discipline. We do not for one moment submit that this Act does not apply and would not apply in exactly the situations that are found in those Vietnam era cases.

McHUGH J: My recollection is that one of them was an attempt on an officer, if I remember rightly, or am I wrong?

MR LOGAN: Regrettably, there were two, each involving hand grenades - - -

CALLINAN J: Fragging they are called.

MR LOGAN: Fragging is the expression, that is right, yes.

GLEESON CJ: It could also apply in the case of looting.

MR LOGAN: It could, indeed, without any doubt, with respect, that is right.

CALLINAN J: I have an idea that during the war there were some American servicemen who were hanged in Australia and - - -

McHUGH J: Yes, Leonski. Leonski, the brownout killer, was hanged in Melbourne in 1942 or 1943.

MR LOGAN: Yes. One might apprehend that there was some – and forgive us for not knowing the detail of that – status of forces type arrangement between our country and the United States, one might expect, that would have allowed that process to occur. Your Honours, we have almost finished the trip, unless your Honours want to prolong it, through the Act and - - -

McHUGH J: Could I just ask you one question which is puzzling me slightly. The trilogy of cases that came before the Court, Foley and the other cases, were all concerned with the defence power, 51(vi), but since Polyukhovich it would now be settled that insofar as this legislation operated outside Australia, it is to be supported under the external affairs power. Now, does that make any difference to the approach? It probably does not make any difference to the Chapter III approach, although it gets you into the same sort of territory.

MR LOGAN: If one were to call in aid external affairs – and the Commonwealth has not, but if one were – then that is when we would open up Chapter III, with respect, if one is going to have that sort of application of power, but then - - -

KIRBY J: Why is it opened up by section 51(xxix) but not by section 51(vi)? I mean, in terms of principle, they are both subject to this Constitution. It is part of the legal and, if I can say so, the military mind to be a bit unquestioning, but it just does not seem to fit very well with the structure of our Constitution.

MR LOGAN: Yes.

KIRBY J: We inherited a whole baggage, and a noble and honourable baggage, from the British tradition, but we inherited it in the context of a Constitution of limited powers and structure and design. I just myself find it hard to see how courts martials live with the division and with the opening words of section 51. But, anyway, you are not challenging it in this case, so I will content myself with noting it and move on.

MR LOGAN: Yes, that is right.

KIRBY J: On one view it is a complete answer to the charge.

MR LOGAN: Yes. Might I, just before leaving the Act, and in answer to a question that his Honour Justice Gummow raised, section 72 deals with questions of provisions of the Crimes Act concerning fixing of non-parole periods.

GUMMOW J: Thank you.

MR LOGAN: We are going to take your Honours to the types of courts martial that existed. This one with which your Honours are concerned is a general court martial. There are two types. Section 114 of the Act gives one the two types and one gets from section 114 the composition as well of a court martial. One sees there that 114(1) shall be either “general” or “restricted”:

A general court martial shall consist of a President and not less than 4 other members.

Jurisdiction is conferred by section 115(1) and then eligibility might also be noted - that one is eligible for membership:

of a court martial if, and only if:

(a)	the person is an officer –

and as well has a particular period of continuous service and “holds a rank that is not lower than” that of the accused person. The presidency of the court martial is the province of subsection (2) and in the case of a general court martial paragraph (a) is appropriate. The first named of the first respondents fits that particular description. I would also note whilst in that territory, eligibility to be a judge advocate, one has to be on a judge advocate’s panel. We have dealt in a little more detail with that panelling process in our written submissions. Suffice to say, one has to be an officer and a legal practitioner and someone appointed to that panel by the Judge Advocate General.

GLEESON CJ: Does Australia have extradition arrangements with Thailand?

MR LOGAN: Yes.

GLEESON CJ: What is your client’s ultimate objective, to be brought to trial in Thailand?

MR LOGAN: No, your Honour. The ultimate objective is really to secure an order absolute for prohibition and then the law will take whatever course it takes.

GLEESON CJ: Including, possibly, extradition to Thailand?

MR LOGAN: That is something that is possible, yes. The thought might occur in this type of context, if only he allows himself to be court martialled here the Executive Government then, in its discretion, would decide that enough is enough and not send him off to the Thais, were they ever to make a request, but those are matters for conjecture, with respect, and perhaps, also, best not left to the Executive Government to have that particular consideration if it is not truly a lawful consideration as far as the court martial process is concerned.

CALLINAN J: The complainant is in England now, is she not?

MR LOGAN: Yes, that is right.

CALLINAN J: Perhaps the Thai authorities might not be so keen to bring her there, whereas I take it if the proceedings are prosecuted here, the Australian Government would pay for her journey to Australia?

MR LOGAN: Yes. One would expect she would have to give oral evidence here in a court martial, which would be a burden on the Commonwealth as part of the administration of the defence force. She has not complained to the Thai authorities, your Honour, so again that is conjectural at the moment.

KIRBY J: The Commonwealth says it is significant that she complained to the Australian defence personnel, that that is what she thought was the correct line of complaint. Anyway, you will get to the facts in due course.

MR LOGAN: Yes. Complaint does not make jurisdiction. That is our riposte to that. It might well make, and might well have made in 2001, the basis for the forming of a discretion by the Chief of Army that the prosecutor was not someone suitable for retention in the defence force.

GLEESON CJ: A trial before an ordinary criminal court in Australia is not an option?

MR LOGAN: It is not an option, no. There is no general criminal law applicable overseas. As your Honour might recall, of late there are some particular excursions by the Parliament into types of criminal conduct overseas, to do with child sex offenders notoriously of late, but not generally.

CALLINAN J: Is there a Thai criminal statute of limitations? You may not know. Some countries do have them.

MR LOGAN: I do not know whether we can give your Honour an answer to that in the material that is there. There was some limited material from Thailand before the court martial.

CALLINAN J: It would be a matter of evidence, would it not?

MR LOGAN: Indeed. The provisions of the Thai law constituting their rape offence, as it were, were evidenced before the court martial, which is how they have come into the special case, but I do not know that the limitation aspect, if any, was.

KIRBY J: Was there any evidence concerning a visiting forces arrangement with Thailand?

MR LOGAN: Yes. There is none.

GUMMOW J: There is none. It says so in the stated case. Do we have the document setting out the extradition arrangements with Thailand?

MR LOGAN: No. It is only that reference in the footnote, your Honour.

HEYDON J: Page 12, note 53 of your written submissions.

MR LOGAN: There is also a regulation made under the Extradition Act (Cth).

GUMMOW J: That is what I am worried about. Do we have that regulation, or reference to that regulation?

MR LOGAN: It is referred to in our written submission, but we do not have it in the material before the Court.

McHUGH J: At some stage that is convenient to you, I would like you to address some problems that concern me about the case. Just let me outline them for you so you can deal with them at some stage. The analysis of Commander Burnett’s judgment seems to me very able and it does concentrate on the distinction between service connection and service status, but I wonder if concentrating on those labels is not a mistake and that one has to go deeper to the question of the underlying principle. The reason, as I understand the cases which have upheld the exclusion of the Chapter III tribunals, is that it is appropriate for the proper discipline of the defence force to subject its members to penalties for offences that would be punishable under civil law, so for historical and other reasons you can justify giving a disciplinary power to service tribunals.

Now, if that is the basis upon which Chapter III is excluded, why is not the proper approach to the problem we have here not to ask whether it comes under the label “service connection” or under the label “service status” but to ask: is this law in its application to your client a law which is appropriate to the proper discipline of the defence force? That is not the way Commander Burnett seemed to deal with it. He picked up the labels from the cases. At some stage I would like to hear some submission of yours on that.

MR LOGAN: Yes, I shall try and develop that aspect, your Honour, yes. One final reference, if we may to – two rather – to the Act. Majority verdicts are the rule in relation to courts martial deliberations. One sees that from section 133(2):

Every question determined by the members of the court martial shall be decided by a majority of the votes of the members.

Some of your Honours might recall in Hembury that particular aspect came up in terms of the order of voting and the like. Then, 134(1) and (3) provide for the Judge Advocate’s rulings, in effect, to the binding on matters of law before the court martial. Hence, it was that when the second respondent, Wing Commander Burnett, made his ruling as to jurisdiction that bound then, under this Act, the first respondents in terms of the jurisdiction.

One might note briefly, perhaps, Schedule 2 on page 217 which sets out in a little more detail types of punishment that may be imposed. Suffice it to say, a general court martial has the maximum punitive powers that can be exercised by a service tribunal. The maximum in this particular case flowing from 61(2) when one goes off to the Crimes Act (ACT) is 12 years imprisonment.

KIRBY J: Is there provision for the keeping of a person who is sentenced to imprisonment for life in a civil prison?

MR LOGAN: In a civil prison, yes. There are two types of removal of liberty for which provision is made in this Act. There is imprisonment which is undertaken in a civilian prison and then there is detention which is undertaken in a military corrective establishment. One might apprehend from looking at the way that the Act is structured with imprisonment having as a necessary concomitant dismissal that the aim of military detention is not so much dismissal from the defence force but perhaps correction of some behaviour that might be aberrant but does not leave one wanting to dismiss a soldier from the defence force.

KIRBY J: We do not have any facility like Guantanamo Bay and, in any case, it would be answerable to section 75(v), I would think.

MR LOGAN: This is not a migration case, with respect, your Honour.

KIRBY J: No.

MR LOGAN: No, we do not.

KIRBY J: One just has to always keep an eye out of what might happen.

MR LOGAN: There is a military corrective establishment in Australia.

KIRBY J: Presumably, there would be some detention facility in Malaysia?

MR LOGAN: Yes. One sees that, actually, in the command instruction that there is a little facility there, yes. A cell of some sort. To move, then, if we may, please, to judicial authority, this Court has only once been directly confronted with a case concerning trial by court martial of an Australian for an offence outside the territorial limits of Australia. That case is R v Bevan; Ex parte Elias and Gordon [1942] HCA 12; (1942) 66 CLR 452. That case arose out of a murder committed on board HMAS Australia whilst that warship was outside the territorial limits of Australia. In Bevan’s Case, at least, there was a degree of swiftness about the process.

McHUGH J: Was he not hanged before it came before the Court?

GUMMOW J: No, prohibition was still open, as it were, in theory.

MR LOGAN: Prohibition and habeas corpus were what was sought. The speed of the proceedings one gleans from page 456, at about point one down the page. One sees there that on 12 March, murder was committed on board that warship whilst on the high seas.

GLEESON CJ: It was not an Australian warship?

MR LOGAN: It was an Australian warship, but, in terms of the facts, it, along with all of our warships, had been placed at the disposal of the Admiralty by the Governor-General at the start of World War II. Whilst it was an Australian-commissioned ship, the naval discipline regime that was appropriate, so the Court found, was the British Naval Discipline Act of 1866, which provided for the death penalty in respect of murder.

KIRBY J: Was that not a big source of dispute in the First World War? The New Zealand forces were made subject to the Imperial law and hanged, whereas the Australians never gave that - - -

MR LOGAN: Shot, your Honour, shot by firing squad. Yes, with respect, your Honour’s recollection of history is correct. There were amendments made to our Defence Act in the very early part of the last century to exclude the death penalty.

KIRBY J: That did not hold out in 1942. Such were the times.

MR LOGAN: They were sitting there in our Naval Discipline Act, that type of provision.

KIRBY J: Your papers are covering the microphone.

MR LOGAN: Sorry, your Honour. So, no, that was not, and there was a construction exercise that was a necessary part of the Court’s deliberations in Bevan. Because it has that flavour of an incidental rather than a direct focus on an Australian disciplinary regime, there are only incidental remarks made, in our submission, about the nature of the defence power and its relationship to courts martial in this case. One finds those at page 466 in Justice Starke’s judgment, about point eight down the page.

KIRBY J: What is the point of your argument to which you are addressing us on this case?

MR LOGAN: The point of it is really that there is a recognition in this case, which was carried through into Cox, of an ability to court martial. But the facts of this case are ones that sit entirely comfortably with the submission we make as to what is reasonable and adapted to the defence power. This one nicely highlights how in wartime this type of civil offence on board a warship is amenable to court martial.

GUMMOW J: Now, Justice Starke was off on a frolic of his own, really, because Dr Louat’s submissions for the applicant did not raise any Chapter III point, looking at pages 457 and 458. He was worried about these transfer arrangements and the effectiveness of that, was he not?

MR LOGAN: Yes, his Honour was greatly concerned, as one sees from the judgment, about the correctness of the procedure and the warrants for the commitment and the like. The case is interesting for his Honour’s noting of the similarities with the American constitution, which is a theme that one sees in the later trilogy of cases that has come to this Court.

GUMMOW J: Yes, but Article III of the United States Constitution and Article II do not stand in a relationship whereby one is expressed to be subject to the other.

MR LOGAN: Yes, hence there are - - -

GUMMOW J: It is a significant textual difference which is not adverted to by Justice Starke.

MR LOGAN: Yes. One might note at the bottom of 467 and over the top of 468 his Honour’s references there are not just to 51(vi) and to what was by then the leading authority Farey v Burvett, his Honour also makes reference as a possible source of power to section 69 and the incidental power in 51(xxxix), which again though is not pressed before your Honours as a source of power for the Commonwealth to enact this legislation by the third respondent.

Justice McTiernan at page 479 dealt very briefly at the conclusion of his Honour’s judgment, about point 9 of the way down the page, with the proposition that:

intra vires . . . was not argued. I see no reason to doubt that those provisions are a valid exercise of the powers vested in the Parliament by sec 51(vi) and (xxxix).

Justice Williams dealt with the subject at page 481 in the middle of the page of his Honour’s judgment. One might note a particular part there about point 7 of the way down the page:

the establishment of courts-martial is necessary to assist the Governor-General, as Commander-in-Chief of the Naval and Military Forces of the Commonwealth, to control the forces and thereby maintain discipline, I think it must follow that Commonwealth Parliament, like Congress, can legislate for such courts, although constitutional questions could arise as to the extent of the jurisdiction in the case of ordinary criminal as opposed to offences against discipline and duty which could be conferred upon them, but, as it would usually be impossible to separate such offences, a generous view would have to be taken on such questions.

We do not submit that one would not take a generous view. That is not a view that is just answered by matters of status, as opposed to a generous view as to what is reasonably adapted to the defence power.

GLEESON CJ: Historically, rape has been a fairly well-known form of undisciplined behaviour on the part of soldiers.

MR LOGAN: Soldiers in garrisons, yes, with respect. Your Honour, the connection here could come in terms of what is otherwise a restriction on one’s ability to be as foolhardy as one chooses overseas. The restriction would come if one is deployed in an area by our military or one enters an area by virtue of one’s status as a member of our military. If either of those qualities are not present, then, in our submission, the law which seeks to make a defence member, just because he or she is a defence member, amenable to court martial for whatever conduct, whatever foolhardy conduct it might be, lies beyond what is reasonably adapted to the defence power.

HAYNE J: Why does not prohibition of conduct which would disable you from being available to fulfil your duty - as, for example, because you are in the custody of local authorities – fall within the ambit of the principle you urge?

MR LOGAN: The answer to that is, at the time when one is undertaking that one is the same as any other civilian and have been released from particular command relationships.

HAYNE J: But to be drunk in a public place such that you might be locked up for 24 hours of your leave might be different from committing an offence for which you might be liable to be imprisoned by the foreign authorities for a term that extended more than a tad beyond the duration of your leave.

MR LOGAN: Indeed, and if one does not come back from leave one commits the service offence of being absent without leave. That is the limit, in our submission, of the military interest there. The only other case, which came out of World War II, in relation to courts martial again, was a case which raised questions only obliquely in relation to court martial, obliquely because the person concerned had been discharged from the defence force and was still in a military prison or corrective establishment and was charged with participating in a mutiny at that establishment. The case concerned is R v Cox; Ex parte Smith [1945] HCA 18; (1945) 71 CLR 1. The Chief Justice, at the bottom of page 13, point 8 and over the page, 14, deals with the particular context in which the question arose there, which was a submission that because someone had been discharged they were not amenable, whilst in the prison, to the court martial process. We cite that only because his Honour apparently accepts the ability, generally, to constitute a court martial. We particularly rely upon Justice Dixon’s comments, though, on page 23 in the middle of the page.

KIRBY J: Does this case give a clue as to how the Court was seeing the exclusion of the Chapter III requirement, that the source of the power of detention came from an Imperial Act and that, therefore, that was in some way seen or thought to be superior to the Australian Constitution Act?

MR LOGAN: No, your Honour, that Imperial Act was one, with respect, which was, as it were, incorporated by reference as providing for a code of behaviour in respect, at the time, of Australian soldiers on war service.

KIRBY J: The first of the holdings in the headnote says:

subject to all the provisions of the Army Act (Imp) - - -

MR LOGAN: Yes. Up until the Defence Force Discipline Act was enacted, as far as Australian soldiers on war service were concerned, the Army Act 1881 was incorporated by reference, subject to such modifications as were made in our Defence Act or by regulation. The part that we rely on in Justice Dixon’s judgment, and in a sense with respect, in our submission, answers the proposition about Chapter III in relation to what is truly to be regarded as a law adapted to the defence power, flows from his Honour’s remark at point 5 on page 23:

It is desirable to notice a further objection that was urged on the part of the prisoner to the jurisdiction of the court-martial over him. The objection is that, because he is now a civilian, to allow a court-martial to exercise jurisdiction over him would be contrary to the principles of Chapter III of the Commonwealth Constitution which confides the judicial power of the Commonwealth exclusively to courts of justice.

In the case of the armed forces, an apparent exception is admitted and the administration of military justice by courts-martial is considered constitutional (R v Bevan). The exception is not real. To ensure that discipline is just, tribunals acting judicially are essential to the organization –

we stress that word “organization” –

of an army or navy or air force. But they do not form part of the judicial system administering the law of the land.

KIRBY J: But that seems to turn the process of the Constitution on its head. Being adapted proportional to the power is one thing, but that is all subject to Chapter III, which is an entirely different thing outside finding the scope of the power and this is the problem I have now. You do not seem to want to argue this and I am perfectly happy to put it to one side but it creates a problem for me, just as Browne and Fitzpatrick creates a problem as to how, in our Constitution, you can have something in section 51 subject to Chapter III which just walks straight out of the requirements of Chapter III. I could understand that in time of war and conflict and on the battlefield you need something immediately, you cannot be going off to the courts, but all of that must be subject to Chapter III.

We are most defensive of Chapter III. Look at Wilson’s Case, look at all the other cases. Look at Wakim. The whole system of cross-vesting was pulled down because of Chapter III. I am just asking, what is it about the defence power that takes it marching right out of Chapter III? It just does not seem logical.

MR LOGAN: Might we approach it this way. Firstly, the prosecutor is not unmindful of this Court’s responsibility constitutionally in relation to Chapter III. It is that responsibility, in our submission, that one bears in mind in measuring what is reasonable and adapted to the defence power and allows it no greater role than that which can be seen to be objectively conducive to the control of the defence force.

GUMMOW J: I have been wondering about that. Your submissions, on one view of it, perhaps conflate two steps. The first step is, Chapter III aside, is this legislation within 51(vi)? If it is, is it then, however, subject to the operation of Chapter III, or do you bundle it all up together?

KIRBY J: You seem to be doing the latter, whereas the Constitution’s structure is the former.

MR LOGAN: Your Honour, the position in relation to courts martial exercising judicial power is, as we have submitted earlier, a battle which has been fought and would require this Court to reopen questions.

McHUGH J: The theory seems to be that it is not an exercise of judicial power but an exercise of disciplinary power. The Court reached a not dissimilar conclusion in relation to public servants in White’s Case [1962] HCA 51; (1962) 107 CLR 174, where it was held that notwithstanding that public servants can be charged with offences, fined and suffer other sanctions, nevertheless it is outside Chapter III.

MR LOGAN: Indeed.

KIRBY J: That might have seemed a rather fine point of distinction to Mr Cox as he was walking to the gallows.

MR LOGAN: We did try to find out what happened to those sailors.

HAYNE J: They were hanged, were they not? They were hanged.

MR LOGAN: They were? Thank you, your Honour.

HAYNE J: I am fairly certain they were. In the end, the point that seems to be the base of Cox and other cases is that you start from the proposition that the defence forces must be disciplined, orders must be obeyed, there must be a system for the enforcement of orders. Beyond that, where do you go? I can understand that having a system of sanctions for disobedience of orders may not engage the judicial power, but is it any more than an elaboration of that idea that underpins the separation between defence discipline and Chapter III?

MR LOGAN: It is exactly that, in our submission, and that is the end to which Sir Owen Dixon’s remarks were directed, that it is essential to the organisation of a disciplined force that one has that command and control with disciplinary sanctions.

HAYNE J: But precisely for that reason you have that glorious catch-all of “conduct prejudicial to good order and military discipline”, which captures a range of behaviours within which it may be said that the current behaviour is asserted to fall. Now, you say it does not. You say it is utterly civilian, if you want to attach a tag to it.

MR LOGAN: Yes. More than that though, too, with respect, your Honour, the submission is that to utilise that sort of generic offence is going to, if it is applied in the conduct concerned here, transgress the constitutional limits.

HAYNE J: I am not suggesting that that should be the charge. What I am suggesting is that the idea which underpins conduct prejudicial, etcetera, is the amplification of the discipline idea which begins with: if an order is given, you obey it.

MR LOGAN: Your Honour, in our own ponderous way we were going to go through matters of history, but might we come to that fairly quickly. In terms of history, in our submission, which underpins again the sentiments your Honour is voicing, out of the 17^th century, in mid-17^th century, and the struggles that came from the use of the prerogative in terms of issuing articles of war, then the existence of a new model army are known in terms of a standing army in our history. There emerged then Mutiny Acts. A feature of those Acts is, in effect, the subjection of a standing army to the control of the Parliament, even though the Crown is retained as the Commander-in-Chief.

When one goes to our Constitution, one finds, in our submission, exactly those sentiments reposing there. Section 68 vests the command in chief of our defence force in the Governor-General as the Queen’s representative. One then sees sitting in 51(vi) defence power as a head of Commonwealth power and as well control of the forces charged with the execution of the laws of the Commonwealth. In those two provisions, in our submission, one sees the heritage that we have from the United Kingdom in terms of parliamentary control.

The question then becomes, in our submission, is the parliamentary control here adapted to that defence power or are all we are quibbling about on behalf of the prosecutor something that is nothing more than a value judgement that is consigned truly to the Parliament. If it is that, if it is within power, then the justice or otherwise of military trials is really nothing or nothing as far as matters of constitutional principle are concerned.

Lurking behind that heritage though, in our submission, is the proposition that a soldier does not shed such rights or privileges as he or she has by becoming a soldier and that the civil courts, where they have jurisdiction, are ones which truly are to be given the jurisdiction. One restricts military courts, but the aspect of civil courts having jurisdiction is, in our submission, but one facet of a wider principle and that principle being that one is, as a civilian, free to do what one wishes at one’s peril, subject, if one happens also to be a soldier, to such laws as may be seen to be reasonably adapted to the defence power.

KIRBY J: I am getting a bit lost in the structure of your argument which is not really your fault because we have taken you off into things that you really were not going to argue, I think, on the basis your written submissions.

MR LOGAN: Well, some of them we were not, anyway, as far as trying to tilt at the Chapter III - - -

KIRBY J: In a sense the fact that this alleged offence occurred on a beach in Thailand when your client, you say, was a tourist really puts you to the test on your view of the exclusion of Chapter III and the exclusion of the judicial power and in a sense the exclusion of the Thai judicial system in the criminal offence alleged to have happened in their country. So that it makes you face up to these quandaries which, with all respect to Justice Dixon, does not seem to have been very convincingly explained in the past. Anyway, we have been over that ground, so I think you had better go back to your argument.

MR LOGAN: Your Honours, in terms of what the British in the 19^th century regarded as captured by the military justice system, a useful touchstone, in our submission, is found in a work by Mr Clode which we have extracted in a document which was filed in the court.

KIRBY J: Of course the British are never subject to Chapter III, the division of the judicial power, the section 80 guarantee of jury trial. They just do not understand these things.

MR LOGAN: That is right.

GUMMOW J: What are we going to get from Clode? What will it tell us?

MR LOGAN: If one goes to Clode, who - - -

GUMMOW J: It has been pretty well ploughed in the Nolan Case, this Clode.

MR LOGAN: As someone who seems to have been uniquely placed at the time to have an insight into the British military justice system, he voices a reservation about the ability to subject troops on leave to military law. That is what one gets, so that it is a touchstone from history. In the book that was filed on 25 February, titled “List of Unreported Decisions Statutory Materials” et cetera, on page 22, paragraph 32, we have reproduced that page 95 of Mr Clode’s work. He speculates there:

Whether an Officer or Soldier “on leave” or furlough continues liable to the Act has not (that I am aware of) been ever authoritatively decided. The question appears to have been discussed in September 1831 at the Board of Admiralty, and a doubt entertained whether an Officer on leave could be tried by a Court-martial for a Military offence; but in 1856 the late Sir W. Atherton advised that a sailor on leave could be tried for desertion. In Lieutenant Poe’s case, the misconduct of which a Court-martial had convicted him happened when he was returning home on leave as a passenger on board the ‘Caesar’; but no objection that the sentence was illegal on that ground was taken before the Court of King’s Bench. An Officer unemployed, and on half-pay, cannot be tried by Court-martial, except for offences committed when in full pay.

The case of Lieutenant Poe, to which Mr Clode makes reference, is found in the English Reports. Might we go there, please: R v Poe (1833) 5 B and A 681; [1833] EngR 134; 110 ER 942. The recitation that appears on page 942, using the English Reports page number, is that which is summarised by Mr Clode in his work. One sees there that the court martial was convened in respect of conduct arising from the accused being said to have stolen a £5 banknote. The nub of the charge was not so much that, but, as one sees from the middle of the page, that Poe:

under circumstances so degrading and disgraceful to him, neither then, nor any time afterwards, took measures as became an officer and a gentleman to vindicate his honour and reputation; all such conduct as aforesaid being –

Justice Hayne might recall the language there –

to the prejudice of good order and military discipline.

The case, in the end, turned on the unavailability, so it was thought by the King’s Bench, of prohibition, where the order had already been carried into effect by confirmation by his Majesty the King.

On page 944 of the English Reports, about point 8 of the way down the page, the judgment reads:

If, then, the writ were to issue at all, we see no Court or individual to whom it could be addressed than the King himself, who, acting on the sentence, has been pleased to dismiss the officer from his service. Now, admitting for a moment that it were possible to address any writ directly to His Majesty, when it is considered that this power is undoubtedly inherent in the Crown, and might have been lawfully executed even without any court-martial, it will at once appear manifest that no prohibition can lie in such a case. For what the King had power to do, independently of any enquiry, he plainly may do, though the enquiry should not be satisfactory to a Court of Law, or even though the Court which conducted it had no legal jurisdiction to enquire.

We do not think it necessary to consider whether the charge that has been tried is so framed as to bring the party within the Articles of War –

So that, truly, in our submission, the comment that Mr Clode makes in his work is borne out then by the recourse to that particular case. There are interests which the Commonwealth has in the conduct of people who happen to be defence members which lie outside that which might, we submit, be regarded as reasonably adapted to the defence power in terms of allowing someone to be gaoled. That interest is that if someone has, whilst on leave, recreational or otherwise, engaged in conduct that is, in the view of a commander, inappropriate, then that person can be removed from the defence force.

The particular regime which allowed that at the time, in 2001, is found in section 44 of the Defence Act and Regulation 176 of the Australian Military Regulations. We have reproduced those in the smaller of the two books handed up to your Honours this morning. Section 44 is found on page 12 of that smaller book, the one titled:

Book of Relevant Legislation as Agreed by Parties –

Section 44(1) provides that:

Subject to the regulations, a soldier may at any time be discharged by the Chief of Army for such reasons as are prescribed –

When one goes off to the regulations – one finds that on page 15 of the book – the relevant regulation is 176. It provides that:

For the purposes of section 44 of the Act, each of the following reasons is a reason for the discharge of a solider –

One might note in that that paragraph (l) allows discharge in circumstances where:

the Chief of Army is satisfied –

that is the jurisdictional fact, as it were, the state of satisfaction –

that the soldier is not suited to be a soldier –

Paragraph (n):

the Chief of Army is satisfied –

Another satisfaction-based jurisdictional fact –

that the retention of the soldier in the Army is not in the interest of Australia or of the Army –

Those regulations reflect, in our submission, the historic nature of the engagement of a soldier at pleasure, so that there are options open to the Commonwealth in respect of conduct that lies outside, that is adapted to a military trial with imprisonment as its sanction, to deal with matters of conduct that reflects upon the defence force in some way or the soldier’s ability to continue as a member of the defence force.

HAYNE J: Does it follow from your submission that if a soldier in this unit had taken local leave, as distinct from recreational leave; had gone into the local town, got drunk and trashed the bar in company with ten of his mates, he would not be subject to the defence force discipline structure?

MR LOGAN: No, your Honour. We make the point in our written submission that he, to use the prosecutor’s gender here, would be subject to military discipline. He has entered Malaysia by virtue of no reason other than a defence-related requirement and he is there as a military guest of that country.

HAYNE J: If he and his colleagues do it not on local leave but on recreational leave in the restricted area prescribed in standing orders, he is not subject?

MR LOGAN: No, because he is not there as a military guest of Thailand. He is there in the same way as any other Australian is.

KIRBY J: Malaysia is quite a big country and has different portions. What would be the case if he went to east Malaysia and was lolling on a beach there and this similar sort of incident happened, if he was on leave from his military service? What is the magic about Malaysia?

MR LOGAN: The magic about it is that that soldier has been sent by our country to Malaysia and has entered Malaysia as a guest of that country under arrangements, Five Power Defence Arrangements, by treaty. His very presence there is explicable and only explicable to his military service and one can see, in our submission, that it is a reasonable adaptation of the defence power to subject to that soldier, whilst he is there as a guest, to discipline.

GUMMOW J: As I understand your submission, it is to the effect that even if Chapter III were not there this particular application of the statute to your client would be beyond the defence power.

MR LOGAN: That is right, yes, with respect, for reasons that are rooted, we submit, in our history, our heritage. As to that heritage, might we go please to Groves v The Commonwealth [1982] HCA 21; 150 CLR 113. Your Honours might say what has a case to do with a personal injury to a serviceman to do with the subjection of a soldier to court martial. The answer to that though, in our submission, comes from some of the reasoning that was used as to why it was that the airman there in that case was entitled to sue the Commonwealth for damages.

The Commonwealth’s approach in that case one sees at page 125 in the joint judgment of Justices Stephen, Mason, Aickin and Wilson, about the middle of the page, where the proposition is identified as to what the Commonwealth’s argument was:

The question is simply whether, as the Commonwealth contends, the fact that the plaintiff and his fellow crewmen were all servicemen is enough to exclude the existence of that duty of care which is otherwise recognized by the common law as existing between those in a proximate relationship to one another.

The Commonwealth then was putting forward in that case the submission that there was some special rule applied to the military class. The answer to that was found then at the bottom of page 125:

In considering the wide scope of this claim it is useful to recall that it is a feature of our system that military law has a quite restricted range of operation and is seen as an additional, rather than a replacement, set of rights and duties –

Halsbury is cited.

As Lord Loughborough said in Grant v Sir Charles Gould, martial law in the all-encompassing form in which it existed in some Continental countries was unknown in England; the crimes of soldiers in England have always been amenable to the civil law and our concept of martial law is confined to the area of military discipline, the purpose of the creation of courts-martial being to have a system of courts: “invested with authority to try those who are a part of the army, in all their different descriptions of officers and soldiers; and the object of the trial is limited to breaches of military duty. Even . . . articles of war . . . are to be for the better government of “(the King’s)” forces, and can extend no further than they are thought necessary to the regularity and due discipline of the army”.

Then there is a quote, as one sees from the other great case that we submit in our heritage, Burdett v Abbot, at about point 7 of the way down the page:

“a soldier is gifted with all the rights of other citizens . . . the mistake should be corrected which supposes that an Englishman, by taking upon him the additional character of a soldier, puts off any of the rights and duties of an Englishman”.

In a sense we adapted that particular passage at the commencement of our submissions. One of the rights or privileges of an Australian overseas is to be as foolhardy as he or she chooses to be. One does not, in our submission, then, given that this is a particular heritage, lightly come to the view that it is reasonably adapted to the defence power to alter that position. Those particular remarks were the subject of general agreement by the then Chief Justice, Sir Harry Gibbs, and further by Justice Brennan. One might note as well a rather, with respect, pithy and pointed remark by Justice Murphy at page 136 of Groves’ Case. It is found at about point 6 of the way down the page, just into the paragraph starting “Leaving aside warlike operations”. His Honour makes the comment:

Servicepersons are not outlaws. Unless military necessity dictates otherwise, they should be entitled to the same rights as other persons.

That sentiment, we respectfully submit, is also that found in the joint judgment as well.

Could we move then, perhaps at last, to the trilogy of cases. Might we observe in respect of retracing Re Nolan and Re Tyler at the outset that in respect of each of them, it is apparent from the offence charged that it had a quality that related to command and control of the defence force. A “service connection” is perhaps just a label but each of them can be seen, in our submission, to relate to command and control. So that the outcome in those cases is perfectly at one with the proposition that we seek to advance, that a law is reasonably adapted if it is one that can be seen objectively to relate to command and control of the defence force, of which discipline is a necessary element.

Thus, in Tracey the offences, apart from absence without leave, were false entry in a service document; in Nolan, falsifying a pay list as well as using a false instrument; in Tyler, dishonest appropriation of a temporary rental allowance to which one was subject, or at least entitled, subject to particular criteria being met, as a service member. Hence the submission that a command or control element is evident in each of those cases. The Court in none of those cases was confronted directly with overseas service and especially not directly with leave taken in the course of overseas service.

In terms of those who held that there was an ability in Tracey to subject the prosecutor there to the court martial process, there are two schools of thought and it is perhaps trite now to rehearse those schools of thought in detail. They are canvassed in that detail in the submissions in writing that are lodged with the Court. At the risk of taxing patience on that subject, might we go firstly to the joint judgment of Justices Mason, Wilson and Dawson at page 543. At about point 7 of the way down the page in the paragraph that starts “During the course of argument we were referred to legislation in the United States, Canada and New Zealand”, in the sentence which follows that their Honours remark:

it has commonly been considered appropriate for the proper discipline of a defence force to subject its members to penalties under service law for the commission of offences punishable under civil law even where the only connexion between the offences and the defence force is the service membership of the offender.

GUMMOW J: What is the offence here punishable under civil law in the instant case?

MR LOGAN: In our case here?

GUMMOW J: Yes.

MR LOGAN: The offence punishable under civil law is that which is incorporated by reference, assuming it is adapted to the defence power.

HAYNE J: Your hypothesis is that there is no civil offence for which this man could be tried in Australia?

MR LOGAN: Quite. That, in our submission, provides an explanation as to why in each of this trilogy of cases there is a focus upon when the civil courts are open, because one is looking to cases that arise in the context - - -

GUMMOW J: That idea comes from Milligan in the United States, the notion of the civil courts being open.

MR LOGAN: Yes. One sees that flavour in the American - - -

GUMMOW J: It comes through here too.

MR LOGAN: Yes. What has occurred here is a situation which is perhaps something that was unknown in earlier times of defence deployments. That is the release of soldiers away from the area to which they are deployed for recreational purposes. It is just perhaps a phenomenon of the modern era that that is so. Underlying though the civil offence and the civil court presence - - -

HAYNE J: Apropos of that last point, it dates back at least to Korea I would have thought, does it not? I thought Korean troops went to Japan. I may be wrong.

MR LOGAN: That is certainly a matter of history. However, in that context, those visits, one to the other country, one might expect, were visits where one was a military guest in Japan taking leave as opposed to perhaps, going off to somewhere else. As one might recall from history, we had, at that stage, at the outbreak of the Korean War, troops still garrisoned - air force personnel from memory - mustang fighter pilots still garrisoned up in Japan.

KIRBY J: But the United States sends troops on recreation leave to Australia. One sees quite regularly reports that they are brought before the Australian courts.

MR LOGAN: Yes, one might expect - - -

KIRBY J: Is that pursuant to some agreement between - - -

MR LOGAN: There is a status of forces agreement, yes.

KIRBY J: But it cannot affect constitutional principle, one would think, at least so far as our Constitution is concerned. The fact that there are agreements between Executive Governments does not affect whether if jurisdiction is asserted it is found. That has to be determined by the Constitution.

MR LOGAN: Yes, that is certainly so. The stream can never rise higher than the source.

GUMMOW J: But there are statutes?

MR LOGAN: There is a Defence (Visiting Forces) Act as well.

GUMMOW J: That is what Bolton was about, was it not, Ex parte Bolton and Beane?

MR LOGAN: Yes.

KIRBY J: What is so different between our law applying to Americans when they are here and Thai law applying to Thais when offences occur in Thailand, except that we are us and they are them?

MR LOGAN: The prosecutor fully recognises in the submission made that we recognise an ability on the part of Thailand to request our country to extradite for offences against their law and that is a consideration, in our submission, which one uses in deciding whether subjection of someone to court martial is reasonable and adapted to the defence power when it has occurred on leave in a territory with whom we have friendly extradition relations.

GLEESON CJ: Your argument is that it is beyond the capacity of Parliament to make it a military offence for a member of the armed forces deployed overseas when on recreational leave to commit rape.

MR LOGAN: Yes.

GLEESON CJ: Would it make a difference if the victim was another member of the armed forces?

MR LOGAN: Not at all, no. That proposition is put by the Commonwealth in a less severe way, in terms of a fight between personnel that occurred. In principle, there could be no difference, in our submission, between a fight and something more severe as far as rape is concerned. That is behaviour that has occurred in which there is no military quality. It may very well provide a basis for discharging that person from the defence force and leaving them to the Thai authorities if they were apprehended there, or considering and applying our extradition law if a request is made by the Thais for the return of that person.

KIRBY J: You say there is no military quality, but recent experience in the Yugoslavian tribunal and in the International Criminal Tribunal in adding rape as offences of war rather suggests that that may not now be generally agreed. Rape as an action is now regarded as within the crimes for which persons can be brought before these international tribunals.

MR LOGAN: We are not submitting that had the crime his Honour the Chief Justice postulates occurred in Malaysia that it would not be possible to subject that person to defence force discipline, but that is because each of those persons are in that country because of and for no other reason than their military calling and their military deployment.

KIRBY J: Why is that so when he is on leave? Assume the prosecutor chose to spend his leave at some Malaysian resort rather than some Thai resort. Why do you say he is in the Malaysian resort on account of his being a soldier?

MR LOGAN: Because, in the special case, there is sitting there a land command staff instruction which provides for the deployment of a rifle company, of which this person is a member, to Butterworth and to that country under the auspices of a Five Power Defence Agreement, so that it is not status per se, but rather one can see against those facts that there is a connection there that makes it reasonable for the Commonwealth to have legislation in place which requires our soldiers, whilst in that country, to conform to a particular code of behaviour.

KIRBY J: You say you had to test it, what would have been the position in Greenland, if he had gone to Greenland. Can it really be said that that had anything whatsoever to do with the Australian military?

MR LOGAN: Effectively, yes.

KIRBY J: The factual features of the case tell a little against you here. He was only in that part of the world by reason of his defence service, he was subject to recall, he had to give his address and he did so and he was there with, apparently, 20 or so other Australian defence service personnel on recreation leave and it is the place next door, so that all of these are physical connections with his service as a member of the defence services.

HAYNE J: And it was one of the only places he could take his recreational leave unless exceptional circumstances existed.

MR LOGAN: Indeed, that is quite so.

HAYNE J: That is Standing Orders, Chapter Five, clause 5.03.

MR LOGAN: Yes. One looks though as well to how that leave is taken. That leave is not taken by way of entry to that country because one is a serviceman. One is not in any way funded or facilitated on that leave. One is dropped off, according to the special case, at the border by an air force bus and then one makes one’s way across the barrier by showing a civilian passport. The special case has two sets of facts which, in our submission, highlight the borders between what is adapted to the defence power and what is not in terms of the prosecutor’s presence in Thailand.

One might recall, from reading the special case, that about a week after the alleged incident the prosecutor returns to Thailand, but returns there for a form of – it is apparently called adventure training or the like, but it is an organised military activity. He is still allowed, it seems, according to the special case, leave at night on the beach in Phuket. In our submission, the vital difference between the two is that in the latter of the two visits he is subject to the control of his officers at all times. He is allowed the indulgence of local leave but he is subject to the control of his officers. The first visit is one which is made where he is not subject to the control of his officers. He can be brought back, as your Honours observed, very quickly indeed by immediate recall. That is a feature in peace or war, on leave or otherwise, of those who are in the regular services, but nothing more than that. He is released from the control of his officers in Thailand on that first visit.

We were at the point of taking your Honours then to the passage at 543 in the joint judgment. Over on page 544, their Honours make reference to what was then a quite recent American authority of Solorio. That is at about point 3 of the page. Before going to that, one might just complete reading the introductory words at the top of 544:

Good order and military discipline, upon which the proper functioning of any defence force must rest, are required no less at home in peace-time than upon overseas service or in war-time.

McHUGH J: But you are not going to get any assistance from a judgement of Chief Justice Mason and Justices Wilson and Dawson, are you, in this case? At 545 they expressly said:

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.

That puts you out of Court, does it not?

MR LOGAN: It certainly does, yes, that is right.

McHUGH J: My difficulty with it is in the past I have accepted as a matter of authority what these cases stood for. I could never until the day I die accept the reasoning that leads them to the conclusion. It just seems to me so obvious that the reasoning, with great respect to their Honours, is wrong, and yet the grounds for excluding Chapter III are set out in the joint judgment at the bottom of 540 over to 541. Their Honours accept that it is an exercise of judicial power and then at the bottom of 540 they say:

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 the judicature erected under Ch III, but as part of the organization of the force itself. Thus the power to make laws with respect to the defence of the Commonwealth contains within it the power to enact a disciplinary code standing outside Ch III and to impose upon those –

So it seems to make Chapter III subject to section 51(vi) and that turns the Constitution on its head. Justices Brennan and Toohey approach the matter in a not dissimilar way. At the bottom of 569 and 570 they say:

There are two sets of constitutional objectives to be reconciled. The first set of objectives, dictated by s 51(vi) . . . The second . . . by Ch III.

I would have thought, with great respect to their Honours, that section 51 is subject to Chapter III. If you are going to reconcile them, 51(vi) is the subordinate provision.

KIRBY J: I must admit that I read what Justice Brennan and Justice Toohey to mean was that when you bring the defence personnel into the Constitution you bring contained within that disciplinary history because of the very nature of a defence force and I took that to be what you were saying, but Justice McHugh’s point earlier in the day is you bring it to the extent that it is absolutely integral to history and necessity but you do not bring it any more, and that is what this case is about, at least within these premises.

MR LOGAN: Indeed, and, with respect, we perhaps start off at the same point and then depart only in terms of the impact that Chapter III has. The point that we start off at is that one does not lightly concede jurisdiction to military courts.

GLEESON CJ: I wonder if there is a more fundamental problem that is unspoken. I may be wrong about this, but we use the expression “subject to Chapter III” assuming that that means subject, amongst other things, to the principles relating to the separation of powers. I wonder whether there is a concern behind this reasoning that you would undermine the separation of powers if you came to a conclusion that the discipline of an army in wartime had to be handled by Chapter III judges.

MR LOGAN: Yes. One might, with respect, even do rather more than that. One of the cases that we schedule in the table of court martial cases is one where the note is very brief in the Federal Law Reports but it describes the court martial as being conducted almost under battle conditions.

GLEESON CJ: Yes. Judges, I might say, who in 1945 had to be appointed for life. I wonder whether Sir Owen Dixon, looking out of the corner of his eye, might not have seen a threat to the Boilermakers’ Case in a conclusion that military discipline in war time necessarily involved an exercise of Chapter III judicial power.

MR LOGAN: Yes, there are, with respect, very deep rhythms which are behind this and your Honour has identified one of them. That is also the subject of remark as to why that Public Service discipline case was allowed to go as something that was merely just amenable to administrative regulation of the Public Service, rather than regarding the tribunal that heard the Public Service discipline charge as a body exercising judicial power. It is raised in the more acute way with the discipline in the defence force.

McHUGH J: In the joint judgment of Chief Justice Mason and the other Justices, they would not rely on White’s Case, the Public Service case. They pushed it to one side. What has always amazed me about the reasoning is that at 540 they said:

Thus the real question in this case is not whether a court-martial in performing its functions under the Act is exercising judicial power. There has never been any real dispute about that.

So there has never been any real dispute that it exercises judicial power and they go on to say:

The question is whether it is exercising the judicial power of the Commonwealth under Ch III of the Constitution.

Well, where do they get their judicial power from unless it is from the Commonwealth? I just cannot, with great respect, follow it. One can read Justice Brennan, Justice Toohey’s judgment as, in effect, saying it is not judicial power, it is just pure disciplinary power. But Chief Justice Mason, Justice Wilson and Justice Dawson put it straight up to you. They say they are exercising judicial power, but it is not the judicial power of the Commonwealth.

MR LOGAN: That, with respect, is perhaps the very prophetic nature of Sir Owen Dixon’s remarks in World War II there, that that problem was well and truly alive in his Honour’s mind at that time.

GLEESON CJ: Sir Owen Dixon had a number of balls to keep in the air.

MR LOGAN: Tempting though it would be for us to kick a Chapter III ball into the air in this case, what we do not do or invite your Honours to do is to do what, with great respect, the American Supreme Court did in Solorio which was to overturn by a bare majority a decision which was of quite great recency in terms of the amenability of their service personnel to military trials.

HAYNE J: In the end it may be that if you push it to its extreme it comes back to an understanding of lis, an understanding of matter, where true it is at court martial you appear to have issue joined, but as the provisions for review reveal, in the end, it depends upon command. The commanding officer who is the reviewing officer says this is the punishment that is to be meted out to this person for this breach.

MR LOGAN: Yes.

HAYNE J: Although in many respects there may be the appearance, perhaps the reality, I do not know, of joinder of issue, controversy between parties and the like, in the end it is, “I say to this man, ‘Go’”, and he goeth. That is where it starts and ends.

McHUGH J: Unlike the biblical centurion, when you are dealing with this sort of case you bring across the ACT criminal legislation. He can be sentenced to gaol.

MR LOGAN: Yes, that is right, which is, one might think, with respect, a distinguishing feature from the Public Service discipline case which only had - there is a caveat in that case as one might recall about the minor punishments for which there was provision. That is, in our submission, the key to reconciliation is to regard these as firstly sui generis in their nature, they look like criminal offences, but they are truly sui generis and then as well, they are nothing more than an incident of command and then one tests what is reasonable by reference to that touchstone.

McHUGH J: Well, we have some artificial constraints on us. The Commonwealth does not want to argue that they can rely on the external affairs power. One would have thought they were home and hosed on that, a complete answer to your argument, if they would rely on it.

KIRBY J: And you do not want to rely on Chapter III, which might put you home and hosed.

MR LOGAN: Perhaps what one sees there is what used to be called “the balance of terror”, with respect.

HAYNE J: Mutual assured destruction.

MR LOGAN: The interesting feature, in our submission, about the joint judgment of Justices Brennan and Toohey is its survey of that same history to which we alluded, in a much more truncated way, earlier in our submissions. It is a very lengthy survey; it starts at page 554 and goes through to page 557. We will not tax your Honours by reading that part of the joint judgment out. We do, with respect, commend it to your Honours. The point at which it concludes is after the quote on page 557.8 from Grant v Gould:

The recital to the successive Mutiny Acts contained was Cockburn L.C.J. in Nelson and Brand called “the great constitutional dogma” that “whereas no man may be forejudged of life or limb, or subjected in time of peace to any kind of punishment by martial law, or in any other manner than by the judgment of his peers and according to the known and established laws of the realm”. The words “in time of peace” were inserted in the time of Queen Anne and they are significant for they show that, when the ordinary courts were open, there was no occasion for the exercise of martial law (or military law as it is called in modern times).

It might be thought from that passage, in our submission, that “the courts are open” is the touchstone of the ambit of what is excluded from the defence power. Their Honours continue, if we might go to page 563.4 of their Honours; joint judgment:

Naval and military law thus crated not only a system for punishing breaches of the laws peculiarly applicable to those forces but also a secondary system for enforcing the ordinary criminal law against naval and military personnel where it was not practicable or convenient for the ordinary courts to exercise their jurisdiction –

Those are remarks, in our submission, that are particularly and peculiarly germane to the factual background against which their Honours had occasion to consider the Defence Force Discipline Act at the time. It was a case which was in Australia, where the ordinary courts were open. Their Honours continue at page 564.2:

The traditional jurisdiction to discipline military personnel has two aspects. The first is an authority to compel military personnel to conduct themselves in a manner which is conducive to efficiency and morale of the service - - -

GUMMOW J: You skipped over page 563.

MR LOGAN: Yes, 564 now.

GUMMOW J: I know, but 563.5 says:

The scope of disciplinary authority necessarily extended to breaches of the ordinary criminal law, but the exercise of that authority was governed by the nature of the offence, the circumstances in which the offence was committed and the place and circumstances in which the disciplinary powers were invoked. If it was not practicable and convenient for the ordinary courts to exercise their jurisdiction –

There is that idea again, for example, outside their jurisdiction.

MR LOGAN: Yes. The Commonwealth’s secondary point, as it were, as we apprehend it, is that there are no civil courts of Australia and Thailand - - -

GUMMOW J: That is right. What is the answer to that?

MR LOGAN: The answer to that is, “That is right, there are no civil courts in Thailand, and I am there on release from military duty and I can be as foolhardy as I like. What right have you to subject me to a military trial for which I may be gaoled for conduct that is my own, on leave?”.

KIRBY J: The suggestion is because you wear the badge of her Majesty’s forces in Australia. You are subject to their discipline, you are there with a group of other military serving officers, and inevitably your reputation will impinge upon the Commonwealth. The fact that the complainant complained to the military personnel indicates that, and that is the way the world is today, but the Constitution keeps pace with it.

MR LOGAN: Yes. Your Honour, that argument is one which the Americans have used to justify their subjection of - - -

KIRBY J: Why should we be behind? We seem to go very much in tow with the Americans with these things. Our forces go where they go.

MR LOGAN: Yes.

GLEESON CJ: It has a bearing on the effectiveness of the defence forces, does it not? If they are deployed overseas and people go round raping women while they are on leave, they are not likely to get invited back.

MR LOGAN: It has a bearing if they do not turn up again. They are absent without leave. That is the only bearing, in our submission.

McHUGH J: It arouses hostility in the local population, which does not help the - - -

MR LOGAN: All of those arguments, with respect, are potent arguments if the badge that one wears in going into that country is the production of one’s service identity card to cross the customs barrier; otherwise, the only badge that one wears is an Australian passport. That is a badge which our Parliament in its wisdom has chosen as the sufficient touchstone to subject an Australian who, instead of dealing inappropriately with an adult, deals inappropriately with a young child.

KIRBY J: Do they use a passport to get into Thailand or a service personnel card?

MR LOGAN: Australian passport. That is the badge he wears. The Commonwealth is submitting – it puts it in its written submission – that the soldier on leave there is an ambassador for Australia. He is, with respect, no greater ambassador for Australia than any of us in Thailand who happens to hold a Commonwealth appointment as well as an Australian passport.

GUMMOW J: Anyhow, you were on 564.

MR LOGAN: I was, yes.

KIRBY J: There is a difference though that the defence personnel traditionally are subject to discipline. Historically, traditionally, they are not entirely free agents; they are members of a discipline service. They have signed up for that discipline.

MR LOGAN: Quite. The distinction though, as one might recall, that is drawn between those of British heritage and continental heritage is that one is not, as it were, a serf subjected to the full ambit of feudal power just because one happens to be in the army. Our heritage is different, in our submission. At 564 then, the two aspects are described there in that joint judgment:

the second is an authority to punish military personnel who transgress the ordinary law of the land while acting or purporting to act as military personnel.

Those words we stress and they provide, in our submission, the touchstone for what is reasonable and adapted to the defence power. One is still acting as a member of the defence force in a country to which one is being deployed there for defence purposes. This man is not acting as a member of the defence force.

Could we move from 564 then to their Honours’ discussion of a range of service offences at page 566, about point 5 of the way down the page.

GUMMOW J: The trouble with these judgments from your point of view is that they are not really construing the reach of 51(vi), are they?

MR LOGAN: That is quite right, with respect, yes, because it was not necessary for their Honours to do other than make remarks that are incidental only as far as the overseas aspect is concerned. So that the stresses or otherwise that are placed on incidental remarks about overseas reach in each of these cases are really ones that are just that. They are incidental.

GLEESON CJ: Your challenge is to the validity of section 61 and section 9, is that right?

MR LOGAN: Section 9, yes.

GLEESON CJ: That is general legislation, is it not?

MR LOGAN: It is.

GLEESON CJ: That applies equally to conduct in Baghdad and Thailand and Afghanistan and Honolulu.

MR LOGAN: Indeed, it does.

GLEESON CJ: Why is it not within the law-making capacity of the Federal Parliament to enact a general law that says, “We are not going to legislate specifically for each of the different circumstances that might apply in different localities where our troops are deployed. We are going to enact a general law that says, whether you are deployed in Afghanistan where there is no functioning system of law, or Thailand where there is a functioning system of law, you can’t commit rape.”

MR LOGAN: The answer to that, in our submission, is in the nature of the defence power itself. It is purposive in its quality and one still has to then characterise the law and pose the question objectively whether it can be seen, in the particular circumstances in which it is said to apply, to be reasonably adapted to that power.

GUMMOW J: Do you get any support from Illawarra v Wickham [1959] HCA 18; 101 CLR 467? That is the case that eventually struck down the preferential arrangement for ex-servicemen, gone beyond 51(vi) by the 1950s. That is an extreme situation. You seem to be a fair way back from that situation.

MR LOGAN: Yes, that is true.

KIRBY J: What was the name of that case?

McHUGH J: Illawarra Council.

GUMMOW J: Are there any other cases? Putting Chapter III in the cupboard for the moment, are there any other cases on 51(vi)?

MR LOGAN: The Communist Party Case is one that comes to mind, in our submission, in the sense that section 4 of that Act, as one might recall, dissolved the Communist Party, full stop, and it was said then to be referrable to the defence power. There were other provisions which excited interest which were based on a discretion to be exercised by the Governor-General, but section 4 of the Communist Party Dissolution Act used as its touchstone nothing other than just the mere fact of the existence of the Communist Party. That law was one which was said to be able to be sustained by the defence power, but lying behind that was still a need to look to the purpose.

GUMMOW J: The particular passage in Illawarra is at page 503 in Sir Victor Windeyer’s judgment.

KIRBY J: The Court has in the cases drawn a distinction between the reach of the defence power in time of actual conflict and so-called profound peace and somewhere in between.

MR LOGAN: Yes, one can to back to Farey v Burvett for that proposition from the First World War.

McHUGH J: There were a whole series of cases towards the end of 1949 where the Court invalidated the petrol rationing, the clothing rationing, real estate in Blair, I think the name of it was, in terms of price control of land. There was the Marcus Clark Capital Issues Case [1952] HCA 50; 87 CLR 177. The defence power would not support any of those.

MR LOGAN: Yes. The difficulty with this case is one’s instinctive reaction, with respect, is to say, “Here we are, he is a member of the defence force”. Of course, the defence power supports that in a way which perhaps does not raise the interrogative qualities of capital issues or the like which cause one to have pause for thought. But then one is cast back, in our submission, to look to the Communist Party Case and the climate of the times and the mere fact of dissolution of that party was still not one that was regarded as reasonably adapted to the defence power.

McHUGH J: I think there was a case in the 1930s – I cannot remember the name of it – which upheld under the defence power the Commonwealth acquiring a factory for the making of ammunition.

MR LOGAN: The Clothing Factory Case, yes, which, in the end, as we recall, was regarded as within power on the basis that it was necessary to have the sinews of war, as it were, there at one’s call.

KIRBY J: Is there anything in those words “and the control of the forces”? Section 51(vi) is not simply the naval and military defence. There is a specific grant of power for the control of the forces.

MR LOGAN: Yes. There are two different schools of thought, as it were, about that. One is that they are just related to internal security, and the other is that they have a rather wider ramification - - -

KIRBY J: Well, they are words in a Constitution and it is a Constitution which is minimalist in its expression, and therefore, on the face of things, they are meant to have some additional operation beyond what is granted by “the naval and military defence of the Commonwealth”.

GUMMOW J: There is some discussion by Chief Justice Mason, is there not? And the other is in Tracey.

MR LOGAN: Yes, that is right. Their Honours - - -

GUMMOW J: Not very detailed, though - - -

MR LOGAN: - - - relate those words just to internal security. Justice Brennan, Justice Toohey, as we recall, in the later case, though, after being taken to some American authorities, acknowledge that, but speculate nonetheless that they might have a wider - - -

GUMMOW J: Could you give us those references in due course? Do not take time now.

MR LOGAN: Yes, I will do that. To look at those words “control of the forces” – and this perhaps harkens back to the submission we were making earlier, in terms of the messages from history, from the mid-17^th century, particularly – the allocation of the parliamentary legislative power to control of the forces separate from the command of the defence force being vested in the Governor-General, is, in our submission, one of those themes that underpins our Constitution in terms of dividing the Executive Government’s role in command on a day to day basis.

GUMMOW J: Yes. The true explanation may be that those words were put in there with an eye to section 68.

MR LOGAN: Yes, that is right, with respect. One can – and this is a message one perhaps gets from the earlier cases - - -

GUMMOW J: That 68 is titular?

MR LOGAN: Yes. And then one might look to the incidental power, 51(xxxix), for legislative authority.

KIRBY J: In the United States, the command of the military forces has not being regarded by the Supreme Court, at least up till now, as titular. This may be tested in the case that is going to the Supreme Court in Ex parte Quirin. I think it was given substantive content, and much of the debate about Guantanamo Bay is related to the President’s so-called powers of command of the military forces.

MR LOGAN: In the 18^th century, perhaps the role of the sovereign was more than just merely titular, in the command of the defence force. In any event, the point, then, that we would stress - - -

GUMMOW J: Justice Hayne reminds me also of the view to section 119 of the Constitution:

The Commonwealth shall protect every State –

That may look like the Commonwealth Executive.

HAYNE J: And it is:

against invasion and, on the application of the Executive Government of the State, against domestic violence.

So it extends, at least, to the use of the military in aid of the civil power.

MR LOGAN: Yes, that is so. We were at 566 in Tracey’s Case, in the range of services offences discussion of Justices Brennan and Toohey. Their Honours there set out in a convenient way, in our submission, the state of American authority and cite that passage from Toth, which was picked up by the majority in O’Callahan v Parker, about there being dangers lurking in military trials. Those words were cited as well, as we recall, by Justice Kirby in Hembury’s Case recently.

Their Honours there look to the American authority really as providing a basis upon which one might by analogy find similar things to those which are present in our Constitution. If one goes to page 568 their Honours recite there:

The submission was colourfully put on behalf of the Commonwealth that if the Parliament has power to cast the legislative net, the fact that the net catches more fish than the Parliament is entitled to take is irrelevant. The answer to this submission lies in the true scope of the principle on which it is founded. The principle is applicable when the Court is engaged in characterizing a law. Such an examination involves the operation of the law in the circumstances to which it applies. If the law is found to comprehend cases which have no connexion with the subject-matter, that is a factor which affects the character attributed to the law.

The last part of their Honour’s judgment to which we would draw attention is at page 571, about point 5 of the way down the page where their Honours make reference to the difficulties that were apparently apprehended by the American Supreme Court as well as by Justices Mason, Wilson and Dawson in Tracey about where does one draw the line, as it were. Their Honours there speculate that:

No doubt similar factors would emerge in relation to jurisdiction under the Discipline Act. In any event practical difficulties in assessing facts cannot affect what is essentially a question of jurisdiction.

We respectfully adopt that particular approach to this. In terms of the state of different views, those views as to where one might be able to exercise jurisdiction really continue, in our submission, through the other two cases in that trilogy, Nolan and Tyler. We do not propose, unless your Honours’ wish, to detail further those things. They just continue.

Might we go though to the state of the American cases to which reference was made in Tracey. There are three of those: O’Callahan [1969] USSC 134; (1969) 395 US 258; Relford and Solorio. O’Callahan was on leave, as one sees, from his post in Hawaii, in civilian attire, where he assaulted a young lady and attempted rape and was then handed over by the civilian authorities to the military.

GUMMOW J: Well, there has been great debate later, has there not, about the depth of the discussion of English history by Justice Douglas in this case?

MR LOGAN: There is, yes, and in the end, in Solorio, it seems to turn on the particular content of English articles of war in 1775 - - -

GUMMOW J: Yes, that is right.

MR LOGAN: - - - which, with great respect to the majority in Solorio, rather looks to be a very thin basis upon which to cast aside the earlier 250-odd years of history.

KIRBY J: That is what Justice Marshall says in his dissent, in which he was joined by two other justices.

MR LOGAN: Yes, that is right.

KIRBY J: That is a dissent in Solorio.

MR LOGAN: Yes.

GUMMOW J: But Justice Harlan, who perhaps wears better than Justice Douglas, dissented in O’Callahan, did he not?

MR LOGAN: Yes, that is right. At page 267, in the middle of the page, the majority recites particular American cases, but then they pose this:

From these cases, the Government invites us to draw the conclusion that once it is established that the accused is a member of the Armed Forces, lack of relationship between the offense and identifiable military interests is irrelevant to the jurisdiction of a court-martial.

Later on that page, about point 9, their Honours observe of that “status” proposition that:

that is merely the beginning of the inquiry, not its end.

Over to page 268, at the top:

Both in England prior to the American Revolution and in our own national history military trial of soldiers committing civilian offenses has been viewed with suspicion. Abuses of the court-martial power were an important grievance of the parliamentary forces in the English constitutional crises of the 17^th century.

With respect, that is not an inaccurate recitation of history. If one goes to page 273, in terms of adaptation of the power then to the facts of the case, their Honours remark:

In the present case petitioner was properly absent from his military base when he committed the crimes with which he is charged. There was no connection – not even the remotest one – between his military duties and the crimes in question. The crimes were not committed on a military post or enclave; nor was the person whom he attacked performing any duties relating to the military. Moreover, Hawaii, the situs of the crime, is not an armed camp under military control, as are some of our far-flung outposts.

Finally –

and we stress that word “Finally” there; in other words, the point we make or submit is that it is an addendum rather than the rationale -

we deal with peacetime offenses, not with authority stemming from the war power. Civil courts were open.

GLEESON CJ: What do you say about the observation of General George Washington quoted at the bottom of 281 and the top of 282?

MR LOGAN: Yes. One would have to know the context in which his Honour wrote them. If he wrote them with reference to the conduct of soldiers in the course of military operations against an enemy - - -

HAYNE J: It is introduced by:

The soldier who acts the part of Mr Hyde while on leave is, at best, a precarious Dr Jekyll when back on duty.

That is the point on which it is deployed. Do you say the point is wrong?

MR LOGAN: If one has a soldier on leave in a theatre of operations, the conduciveness to discipline of his conduct is manifest, in our submission, manifest in the sense that the relations between the army on operations in that country and the civilian personnel in that country are of vital military interest, necessarily.

CALLINAN J: Mr Logan, Justice Dixon in the Communist Party Case at pages 192 to 195 draws a very, very clear distinction, I would say, between wartime and other times. It is clear that his Honour’s view is that the defence power is much narrower. I cannot read it any other way but as much narrower in times of peace. His Honour looked at the circumstances throughout the world. In fact, Sir John Latham’s dissent is based upon the same facts, but a different view of them.

MR LOGAN: Indeed.

CALLINAN J: The thread running through it is that you have to be very, very careful what you do about people who are not engaged in war, that they are not denied their civilian rights.

KIRBY J: And you say that is part of our very strong history and heritage.

MR LOGAN: Yes. Indeed, we pick up, with respect, part of what Sir Owen Dixon observed in those pages to which his Honour Justice Callinan draws attention.

McHUGH J: There was nothing novel about that, was there? Ever since Farey v Burvett, the view has been taken that the defence power has a primary and secondary operation, and the secondary operation extends dramatically in times of war or hostilities.

MR LOGAN: Yes. There is nothing idiosyncratic, with respect, about - - -

GUMMOW J: No, but part of the trouble is – and it runs through the Nolan Cases, too – there is this false dichotomy between peace and war. We have not declared war in my lifetime, I do not think, have we?

KIRBY J: It might be like midnight. You know when the dark has come. The Solicitor-General keeps telling us that.

MR LOGAN: I might have to check that.

CALLINAN J: That is what Sir John Latham said in the Communist Party Case. The Executive knows these things better than the courts.

KIRBY J: Well, we will hear that from the Solicitor, again.

GUMMOW J: If you go to section 3(7) of the Discipline Act, you find a specific accommodation of UN peace-keeping operations, for example, and that sort of activity which at this minute our forces are engaged in. So this grand 19^th century notion of this is a declaration of war, it is rather old-fashioned, I think.

MR LOGAN: History of recent times instructs in that regard, yes.

CALLINAN J: All the judges in the Communist Party Case looked at, if I can put it this way, contemporary international realities. The judgments are fact-laden in that sense. Sir Owen Dixon refers to the Korean hostilities and takes them into account.

McHUGH J: Legislative facts, not adjudicative facts.

CALLINAN J: Yes, exactly. But, of course, if you look at what his Honour said, he said they had to be facts very carefully ascertained, in fact beyond dispute.

MR LOGAN: Indeed.

GLEESON CJ: Mr Logan, we will adjourn for lunch, but can I just ask you this before we do, is it your submission that what is involved here deprives your client of a right?

MR LOGAN: What is involved here deprives our client of a privilege.

GLEESON CJ: Could you identify the nature of the privilege when we come back?

MR LOGAN: Yes.

GLEESON CJ: We will adjourn until 2.15.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

GLEESON CJ: Yes, Mr Logan.

MR LOGAN: Yes, thank you, your Honour. Prior to the luncheon adjournment the question was posed about the right or, as was submitted, privilege and there was requested of us an identification of that right or privilege. We submit it to be the privilege, some might term it a right, but the privilege of being treated like anyone else, like any other citizen, like any other Australian citizen in Thailand on that occasion. If there be a want of Commonwealth legislation which is germane to the behaviour of any other citizen, that is nothing more than a lacuna for the attention or otherwise of the Parliament as far as the behaviour of an Australian in Thailand is concerned.

If there be the lacuna there though and it is one amenable to legislation, then it would be via the external affairs power but it would direct one into a court constituted under Chapter III in respect of the rendering criminal of particular conduct that was similar to, or identical to, that which is alleged against the prosecutor.

The observation that your Honour Justice McHugh made in Tyler might be thought to underpin that, by reference to some remarks Lord Devlin made about:

“A sense of injustice is more easily aroused by the apprehension of unequal treatment than by anything else.”

That is on page 39 in Tyler. In effect, what the Commonwealth submits, so we apprehend, is that the mere status of an Australian as a service member entitles the Commonwealth to subject that Australian to unequal treatment.

Prior to the luncheon adjournment, it was also asked by Justice Gummow, as we recall, about that second limb of 51(vi) about control. Your Honour made reference to the joint judgement there is in Tyler, at page 30. We might take you to that just to complete that answer, as it were, before coming back to the course of United States cases. One sees, about point 2 of the way down the page:

Counsel for the Attorney-General drew heavily on the experience of comparable provisions in the Constitution of the United States with a view to showing that the true concern of the second limb of s. 51(vi) was with legislative control of the occasions on which the Executive Government might use a military force to maintain internal security. There is considerable historical support for that view though we do not see that “control of the forces” is only with legislative power when the forces are engaged in maintaining internal security.

That was the passage that we had in mind in that later case.

Might we go back then, please, to that course of United States decisional law. The outcome, as one might recall, in O’Callahan was that the military jurisdiction there was not upheld by majority. Relford was the next case that came into that court then chronologically. Relford is a case which, in our submission, were it put up under our system, would be decided in a like way in the sense that this particular alleged offence occurred on what the Americans called a military reservation. Here we might call it a barracks area or a defence area. It is conduct inside the garrison area, as it were. The court in that case at page 365 identified a number of factors which it drew from the earlier decision in O’Callahan as to particular matters that were touchstones, as it were – 1 through to 12 on page 365.

One might recall from looking at the Judge Advocate’s reasons in this case that he went through just such an exercise, but they are touchstones. In our submission, lurking behind those touchstones though, were one to look at it in terms of our principle, is the question of what is reasonable and adapted to the defence power, having regard to historic considerations in terms of limiting, especially in peacetime, the reach of military tribunals.

To those 12 we would add two further ones in relation to overseas service and those have already been mentioned, namely, did the serviceman enter the country by virtue of a service deployment or – and/or, really – it could be both or each – did the serviceman enter by virtue of his being a serviceman as opposed to just being a civilian or someone who was no different to a civilian.

KIRBY J: Why do you accept those exceptions? Are they historical? Are they supported by what the British law was before our Constitution was adopted because one could put forward other connectors such as going to Phuket with a group of Australian soldiers and saying, “Well, that is equivalent”?

MR LOGAN: That is coincidental, that going into Phuket with a group of others. If one meets one’s mates from school in Phuket there and the 25, as it were, 20 soldiers, plus five other Australians, all schoolmates, then there is no relevant distinction, in our submission, between those who are civilians, on any view, and those who are Australians who happen to also be soldiers.

So those 12 are nothing more than just convenient considerations but lurking behind that is a much greater principle, so we submit, about what is the proper bound of defence power. One gets that flavour, in our submission, from 367 in Relford in the middle of the page where the court there is stressing:

The essential and obvious interest of the military in the security of persons and of property on the military enclave –

and:

The responsibility of the military commander for maintenance of order in his command –

The last of the American cases is the one which is the subject of differing application in our jurisprudence, which is Solorio. The facts of that, were they translated into our jurisdiction, in our submission, would result in a holding of no jurisdiction for the military. The offence concerned there was sexual abuse of a fellow, in that case, coastguardsman’s minor daughters in his privately-owned house in Alaska, therefore part of territorial United States.

KIRBY J: It is interesting in Relford that at 369 the Court says that they recognise that they are setting a boundary for today but future cases may require setting of another boundary and what lies between is a decision for another time. So it seems to recognise that there is a boundary that has to be fixed, and you recognise that. The question is, what is the principle? We cannot just draw a line in the sand and say that that is it because we say so. We have to give reasons. It has to be principled.

MR LOGAN: Yes. We do not submit for one moment that those 12 are in any way exhaustive, because all they are, as we have submitted, is really a manifestation, if one translates it into our system, of where it is that it can be seen to be reasonable and adapted to the defence power; nothing more than that.

KIRBY J: That is a pretty uninformative phrase, is it not? I know it is used and that it is the way the Court usually explains connection with the head of power, but it really is a very unhelpful expression.

MR LOGAN: Perhaps, with respect, it is just a reflection of a purposive power that one has that quality of imprecision about it.

KIRBY J: There are obviously people in the Australian Defence Services who believe it is part of the purposive power for them to have control of discipline over Australian personnel who are in foreign countries near to the bases and subject to their disciplinary authority.

MR LOGAN: Yes, with respect. The Commonwealth, as we apprehend it, goes further. They put forward that it is enough in Australia or overseas, if you are a defence member. There is an unrepentant adherence to the views of Chief Justice Mason and Justices Wilson and Dawson. Our riposte to that is that it elevates form over substance.

KIRBY J: I thought your riposte to it was that it is completely inconsistent with the British tradition and our tradition of the military keeping their proper place under our constitutional arrangements.

MR LOGAN: Yes. If one goes to other works of Clode, or goes off to look to other views in the British military establishment, one can find in the late 19^th century, references by Lord Wolseley, a field marshal at the time, to lawyers fiddle-faddle attending courts martial.

GLEESON CJ: When the British Army was subjugating the subcontinent, was the maintenance of discipline in the forces left to the local indigenous authorities?

MR LOGAN: It depends how far back one goes, your Honour, and this, perhaps - - -

GLEESON CJ: Well, who dealt with looting, pillage and rape?

MR LOGAN: Up to the mutiny in 1853 or 1857 – I cannot remember precisely which now, that was the East India Company’s army which had that role, but after that, when it was brought into the mainstream of the military establishment - - -

GLEESON CJ: I am just inquiring, what was the British tradition in relation to maintaining discipline of its forces when they were invading countries like India?

MR LOGAN: The tradition there was, on deployment, offences such as rape were amenable to court martials, and we do not submit for one moment that that would not be the case in relation to Australian troops on deployment.

McHUGH J: Clive was impeached, I think, was he not? Lord Clive was impeached?

CALLINAN J: Warren Hastings. Yes, I was going to say a certain amount of leading may have been encouraged.

MR LOGAN: The navy would have called that taking prizes, perhaps, but - - -

GLEESON CJ: Well, if we are going to invoke British extradition, which is a very large and complex subject, we had better be accurate in our understanding of what exactly it was.

MR LOGAN: The understanding that we put forward is that which is in the joint judgement of Justices Brennan and Toohey in Tracey’s Case. That is what we submit is that tradition and then also - - -

KIRBY J: In comparison to most countries, the British kept a very small standing army at home, and they also subjected them, except in military matters, to the civilian power, at least in the last two centuries.

MR LOGAN: Yes.

KIRBY J: That was a very big point of distinction between them and the continent.

MR LOGAN: Yes.

KIRBY J: A beneficial one, in my opinion.

MR LOGAN: And one might not have seen either, perhaps, the release of a soldier from India on deployment, off to Burma or Thailand or - - -

GLEESON CJ: Did they subject them to the civilian power in overseas countries? Did they subject them, in other words, to foreign civilian power?

KIRBY J: It would depend on whether they went as conquerors, I think.

MR LOGAN: Your Honour, to answer that properly, I would have to go back to Clode’s works on the - - -

GLEESON CJ: That is the issue we are concerned with here, is it not? There is no question of your client being subjected to the civilian power in Australia.

MR LOGAN: No, there is not.

GLEESON CJ: Because there is no relevant civilian power.

MR LOGAN: There is no relevant civilian power as far as Australia is concerned. I do not know that we can answer that with the precision that your Honour would wish. The closest we get to it is Clode’s observation, to which we have taken you, about leave whereas your Honour is really dealing in the area of operations itself, or area of garrison deployment. They would be in a garrison area then, though, not as this chap, the prosecutor is, in our submission.

GLEESON CJ: On the subject of tradition, in the early days of the colony of New South Wales, when it was under military rule, what was the method that was used to discipline members of the forces there?

MR LOGAN: Prior to the Australian Courts Act, your Honour, there was a judge advocate appointed to the colony for the Royal Marine garrison.

GLEESON CJ: Military discipline.

MR LOGAN: Military discipline, yes. If one looks to take that forward in time, that is an area where one goes into a relevantly law-free zone and the forces there need a code of behaviour to regulate command and control relationships, as opposed to, for example – had New Caledonia been up and running, as it were, at that stage – releasing one of those Royal Marines to go off on leave to New Caledonia.

GUMMOW J: The position in India is discussed by Sir Victor Windeyer in Marks v The Commonwealth [1964] HCA 45; (1964) 111 CLR 549 at 576 and following. He deals with the anomalous position of the East India Company, as you mention.

MR LOGAN: Yes. So far as Solorio [1987] USSC 159; 483 US 435 (1987) is concerned then, the basis for the discounting of the earlier authority appears at pages 442 to 443 of the report and does seem to revolve around a particular view about a misinterpretation of British Articles of War rather than any other consideration, culminating, at the top of page 444, in the majority’s observation that:

the O’Callahan Court erred in suggesting that, at the time of the American Revolution, military tribunals in England were available “only where ordinary civil courts were unavailable”.

The Solorio Case, in our submission, is noteworthy, as Justices Brennan and Toohey thought it to be, for the dissent that was voiced in relation to that outcome. We would particularly adopt and submit to be applicable to our jurisprudence the remarks of Justice Marshall at page 457.

GUMMOW J: This is what Sir Victor said about Clode, which is your bible:

His books are a most valuable mine of interesting information, much of it not readily obtainable elsewhere. But it is, I think, a mistake to take all of his statements as if they were, in unqualified terms, authoritative pronouncements of law.

MR LOGAN: Your Honour is quoting Justice Windeyer from Marks’ Case?

GUMMOW J: Yes, at 577.

MR LOGAN: Yes, although with great respect to his Honour, who had, as is well known, a great military background, if one goes to Adcock v The Commonwealth - - -

GUMMOW J: He probably presided at some courts-martial in his day, too.

MR LOGAN: - - - one sees his reference there to the soldier in Australia crossing the quarter-guard and thereby becoming subject to military discipline. His Honour’s views in Parker v The Commonwealth about the reach of the common law as regards servicemen did not survive Groves’ Case.

GUMMOW J: Yes, that is right.

CALLINAN J: It was not even in issue, what he dealt with in Parker’s Case. It was really, in a sense, an excursion that had nothing to do with the decision. The point he took was not even pleaded.

MR LOGAN: Yes. Perhaps it is one of those areas where - - -

CALLINAN J: The Commonwealth wanted to admit liability and his Honour said that the Commonwealth could not. The Commonwealth could admit the facts and even on those facts the plaintiff ought not to succeed, but nonetheless he had assessed damages.

MR LOGAN: Yes. In any event, the history path led Justice Marshall in Solorio to a particular view about the test being not one of status, but of military relationship and, as is noted, he cites Clode there. The American military in that case had the same single-minded determination as our military has here to subject soldiers to military discipline just on the basis of their happening to be a soldier.

GLEESON CJ: But we are dealing with a particular problem here, we are dealing with conduct outside Australia and not amenable to the civil jurisdiction of Australia. Do any of these American cases deal with that problem?

MR LOGAN: No, they do not, not these ones at Supreme Court level. In between the decisions in O’Callahan and Relford there were a number of cases which threw up overseas conduct. The Commonwealth has mentioned those in a footnote, as we recall, in their written submission and we have dealt with those in our submission in reply. One of those they have copied for the Court’s assistance particularly. We understand that one to be United States v Keaton 41 CMR 64 (1969) which came into their court of military appeals, but never got to the Supreme Court.

The submission we make about that is that there was no need to try and look for some distinctions in respect of overseas conduct there. O’Callahan was convicted, as one sees in the right-hand column on the first page, second paragraph. The accused was convicted by general court-martial in Clark Air Base in the Philippines with “assault with intent to commit murder”.

The accused there must necessarily have been someone who was deployed to the Philippines as a serviceman, in the same way as someone in the prosecutor’s situation was deployed to Malaysia was necessarily someone who was there as a military guest. The outcome in that case, in our submission, is quite explicable by applying O’Callahan principles of service connection without any need to try and draw some artificial distinction in terms of an individual’s privileges just because they happen to be a soldier.

CALLINAN J: Mr Logan, would it have made any difference if your client had been charged and tried in Thailand?

MR LOGAN: Not as far as the right that is asserted on behalf of the Commonwealth is concerned. It might have gone to discretion but not to the right that the Commonwealth asserts.

CALLINAN J: So he could theoretically have been tried twice?

MR LOGAN: As we apprehend it, yes, that is right, assuming, of course, the Thais were interested and assuming there was a convergence which allowed what we regard as a right to be regarded as that by the Thais.

CALLINAN J: It is in the stated case what the Thai provision is. It would seem to encompass these facts, would it not?

MR LOGAN: The Judge Advocate was a little wary, as one might recall, from his reasons about venturing too far into the Thai law, which was the subject of some limited evidence before him, because of particular subtleties that there might be in that law that would be lost to a western-educated lawyer.

CALLINAN J: There might be subtleties about any foreign law, but on its face it appears to embrace this sort of alleged conduct.

MR LOGAN: Yes, in the general sense of unlawful penetration without consent, but it is perhaps the subtleties about whether there is any need for corroboration, that sort of thing.

CALLINAN J: That might even be a procedural matter, not a matter of substantive law. In a sense then, the complainant seeks to choose the forum for the criminal prosecution because she really invites the Australian military authorities to deal with the prosecutor but does not make any complaint to the Thai authorities. The evidence does go as far as that. She says she, in effect, does not trust them or does not have enough confidence in them.

MR LOGAN: Yes. There were responses, in our submission, that the Australian authorities, the Executive Government, could have made under our law such as, “We will consider such request as the Thai Government chooses to make should you complain to it, and further and in any event, we will consider your complaint in the context of whether this man is fit to remain in our defence force even though we cannot as a matter of jurisdiction try him”.

CALLINAN J: What happened to those American soldiers who were accused of raping some women in the occupied part of Japan where there was an American military base? Do you remember that?

GLEESON CJ: Okinawa.

CALLINAN J: Okinawa, yes.

MR LOGAN: I cannot say I know the outcome of that, as opposed to it being a matter of local - - -

CALLINAN J: Again, there may have been some sort of arrangement.

MR LOGAN: A status of forces agreement, yes, which would allow the American military to assert a jurisdiction, even though the event occurs on sovereign territory of another country.

KIRBY J: On your principle, that would still fall within power in a similar situation here because that was on a particular island where there was a particular base which was established for the purpose of United States defence activities.

MR LOGAN: One is posted there to undertake military duty and the command and control which, in our submission, lies at the heart of the disciplinary system can readily be seen to be adapted to the behaviour of the soldiers in the garrison area, as it were, which happens to be that country.

GLEESON CJ: Okinawa is a pretty large island.

MR LOGAN: Quite, but then that is still the country to which that man is sent on deployment. It is unnecessary for our case to make some sort of argument that if you are in that country but 100 miles or so away from the garrison area, the reach of military law is not sufficient to catch you.

GLEESON CJ: That is why you say if this event had occurred anywhere in Malaysia, there would have been no problem?

MR LOGAN: Yes, because that man has entered on a particular basis and the Commonwealth can be seen to have an interest in making sure that his behaviour conforms to particular norms. In that sense, whilst in that country he is, indeed, an ambassador for Australia.

GLEESON CJ: But if he takes his school tie off and goes somewhere else at the weekend, he is not subject to the discipline.

CALLINAN J: Why should you single him out from all of the other thousands of Australian civilian tourists in Thailand when he is on leave?

MR LOGAN: It is just a matter his free choice. He is allowed to make that choice. He goes there and the military do not have any particular facilitation of his entry into that country.

GLEESON CJ: Could the military have properly terminated his service for what he did in Thailand?

MR LOGAN: Yes.

GLEESON CJ: How would they go about deciding whether he had done it?

MR LOGAN: One might, given the jurisprudence from this Court in the migration area, apprehend there was some obligation about natural justice these days to put a particular case.

GLEESON CJ: Could they not have conducted a court martial for the purpose of determining whether what he did in Thailand was such that he should no longer remain a member of the army?

MR LOGAN: No, because that court martial procedure is one which is too intimately associated with the punitive aspects. The court martial decides not just guilt or innocence but also punishment.

GLEESON CJ: How would they go about deciding whether he had, in fact, committed the act alleged by the complainant and whether or not, if he had, that meant he should be dismissed from the army?

MR LOGAN: An administrative inquiry would be conducted. There are regulations. Defence (Inquiry) Regulations might be looked to. In any event, one would constitute an administrative inquiry in the same way as any other investigation that the Executive Government might make about whether it was satisfied about a particular fact.

GLEESON CJ: Terminating his service with the army would be a form of punishment itself, would it not?

MR LOGAN: It could be viewed as that.

GLEESON CJ: I think you showed us a list this morning in descending order and it was there.

MR LOGAN: Yes, it is one. It could be viewed as that. In the Public Service case that is mentioned, it is one that is there as a sanction for a breach of a code of behaviour.

GLEESON CJ: If they decided to have a proceeding to consider whether he should be dismissed from the army as a result of what he did in Thailand, why would the proper procedure to adopt not be a court martial?

MR LOGAN: The court martial is a body that, in that context, is able to punish in ways beyond just dismissal, so that the particular court martial regime the Defence Force Discipline Act sets us is not really adapted to that type of adjudication. One could have, as the Public Service has, a panel of appointees who make the inquiry and it might look very much like a court martial but it would still be an administrative inquiry.

There are, in our submission, still Boilermakers’ Cases that would be lurking there if one went beyond the dismissal aspect into matters of punishment such as imprisonment. Poe’s Case might provide an example of that, in a sense. There was a court martial there. It may or may not have been lawfully constituted, but the Crown was entitled to dispense with the services of a soldier at will and to be informed in a particular way about that.

The way in which one might review the decision here, if one were able to review it at all, would have all the limitations that your Honour Justice Gummow describes in Eshetu’s Case, in relation to jurisdictional fact being satisfied and matters just of value or taste being involved in that. At the moment, under this Act, the jurisdiction is just for service offences, not for that administrative inquiry aspect about infringement.

McHUGH J: I cannot recollect, is there any reference in your submissions to McWaters v Day?

MR LOGAN: No, there is not. Not directly.

McHUGH J: It does two things, McWaters v Day [1989] HCA 59; (1989) 168 CLR 289. There we held that the Discipline Act is supplementary to and not exclusive of the ordinary criminal law and the whole Court did state a principle in this case as applicable to this sort of case. At 298, we adopted what Justices Brennan and Toohey said:

“It is the difference between the purpose of proceedings before service tribunals and the purpose of proceedings before civil courts that justifies the subjection of service personnel to the jurisdiction of both.”

MR LOGAN: Yes, we accept the aspect that it is supplementary. The Commonwealth wants it really to be all embracing, though, not just supplementary.

McHUGH J: We specifically said that:

it is clear that the Discipline Act contemplates parallel systems of military and ordinary criminal law and does not evince any intention
that the defence force members enjoy an absolute immunity from liability under the ordinary criminal law –

We held there was no inconsistency under section 109 of the Constitution between the Motor Traffic Act - - -

MR LOGAN: Yes. As we recall, there was a reference then to the military offences being sui generis in that context.

McHUGH J: Yes, I think the term sui generis is in the judgment of Justice Brennan and Justice Toohey in one of the judgments. I do not think it was in McWaters, though.

MR LOGAN: Your Honours, might we remind you of - - -

GLEESON CJ: Have you made some sort of agreement on the division of the remaining time with your opponents?

MR LOGAN: I am just about at the end of that, your Honour.

GLEESON CJ: Yes.

MR LOGAN: Might we remind you of the remark made by Sir Owen Dixon in the passage in the Communist Party Case [1995] HCA 29; (1951) 183 CLR 1 at 193, to which Justice Callinan drew attention just prior to lunch. In the middle of the page there, his Honour makes the remark – this is the incidental power, of course:

The power is ancillary or incidental to sustaining and carrying on government. Moreover, it is government under the Constitution and that is an instrument framed in accordance with many traditional conceptions, to some of which it gives effect, as, for example, in separating the judicial power from other functions of government, others of which are simply assumed.

The traditional conception that we call in aid is that of the ordinary citizen who happens also to be a soldier not being subject to any greater amenability to trial by military courts than that which can be seen objectively to be adapted reasonably to the defence power. Those, if the Court pleases, are the submissions that I make for the prosecutor.

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

MR BENNETT: May it please the Court. It was said at the beginning of argument that there may not be a precise dichotomy between the test of service connection and the test of status connection. The reason for that is that the test of status connection was seen in the joint judgment in Re Tracey as, in effect, flowing from the need for whatever connection was required by section 51(vi).

One can use a number of different words. One can talk about the need for discipline of the armed forces. One can talk about the need for control. One can talk about the need of maintaining a cohesive force. One can use various phrases of that type as justifying the imposition of obligations such as those contained in section 61 and the subjection to military tribunals. But in considering all those phrases, there is one matter which was not considered in the trilogy because the trilogy involved, in each of them, an offence in Australia and what was basically a financial offence involving the institution itself. That is the element that today an army is more than a mere fighting machine.

When members of the Australian Defence Forces go overseas, they go overseas for many purposes, including peace-keeping, including training with other friendly governments and including various other purposes. In relation to most, if not all, of those purposes in 2004, one matter which the rulers of a military force need to bear in mind is the need to adopt the cliché “to win hearts and minds”. In other words, it is of vital importance today to the effectiveness to a defence force that it not be seen as a body of persons whose presence in a foreign country is unwelcome or unattractive to citizens or residents of that country.

KIRBY J: In the case of the appellant, at the relevant time he was not there with Australian forces in the course of service.

MR BENNETT: I will come to that if I may, your Honour, because I propose to build up to dealing with the facts of this particular case and showing that even if one is talking of service connection, in this case there is a very strong one.

My starting point is that when those judges have used phrases like “service connection” or when they have referred to the need to maintain discipline in the armed force and matters of that sort, one key element that must always be taken as part of that is the importance of the role of a member of the defence forces outside Australia as – and again I use a cliché – a quasi ambassador, as someone who will be seen as representative of Australia as well as of the defence forces themselves and whose conduct may well be weighed in that sort of manner. We saw examples of that in the example that has been given about Okinawa. Another example going back a lot further was the conduct of the person who was involved in the brownout murders.

McHUGH J: Leonski.

MR BENNETT: Yes, Leonski. Leonski was a very good example in its recent dramatisation in the play The Brownout Murders because the point that was made there was that there was a very important need, from the point of view of American military policy, of ensuring that he was dealt with in a manner that satisfied the local population. That may have other connotations which are unfortunate to use by way of an analogy. I do not use it is an analogy, but I use it simply to illustrate the general proposition that where one has visiting forces of any kind it is of the greatest importance to the home country of those forces that, to put it in general colloquial terms, they behave themselves. There is a secondary aspect to that which is relevant when one comes to the question of - - -

KIRBY J: Can I just ask you to pause. I do take the force of that first point, but what about the respect for the right of another country, especially in the matters of criminal law, to have its own criminal law apply in a particular case where it is clearly an offence against the good order of that country?

MR BENNETT: There is no disrespect shown here, your Honour. There has been no complaint to the authorities of that country.

KIRBY J: But we are asserting the law of Jervis Bay Territory on a beach in Thailand, which on the face of things is an unusual thing to do in respect of the criminal law.

MR BENNETT: We are asserting the law of Jervis Bay Territory in relation to the behaviour of a particular person, wherever that person happens to be. I will come to the additional connections, if I may, in a few moments, your Honour. There were a large number of factors listed by Justice Harlan in his dissent in O’Callahan [1969] USSC 134; 395 US 258, which, of course, was affirmed by the United States Supreme Court in Solorio. In his Honour’s judgment there is a passage at pages 281 to 282 where the point I have made is elaborated in some detail, commencing with a quotation from General George Washington.

KIRBY J: I think one of the points in the Declaration of Independence of the United States was a complaint against King George that he had required people to billet soldiers in their properties.

MR BENNETT: And that led to a particular prohibition in their Constitution.

HAYNE J: This dictum may have particular application in relation to offences of violence such as this, because rape is an offence of violence.

MR BENNETT: That is what I was coming to, your Honour. That is relevant to the second part of my argument which concerns the judicial power of the Commonwealth. The holding in White’s Case that discipline of a public servant was not part of the judicial power of the Commonwealth reflects something which has been said many years back in relation to disciplinary tribunals in the professions, that they impose sanctions for the purpose of protecting the community rather than for all the normal purposes that the criminal law applies to which may include that as one of its purposes.

McHUGH J: Mr Solicitor, in White’s Case the court regarded the exercise of the power as an administrative power and denied it was judicial power, but in these cases the prevailing view has been that it is an exercise of judicial power.

MR BENNETT: But not the judicial power of the Commonwealth.

McHUGH J: No.

GLEESON CJ: Courts martial, as I would understand it, are sometimes convened in times of battle and great emergency.

MR BENNETT: Yes, your Honour.

GLEESON CJ: I cannot imagine it would be suggested that the Australian Army should march into battle accompanied by a collection of Chapter III judges for the purpose of administering military justice.

MR BENNETT: One would hope not. That is so, your Honour. The point I was making about the analogy is the point which Justice Hayne was making a few moments ago.

KIRBY J: Could you not cover the microphone? Your papers are on the microphone.

MR BENNETT: Sorry, your Honour. The purpose of the analogy to discipline of the professions is the point Justice Hayne was making to me a moment ago. In the same way as disciplinary tribunals will deal more severely with a lawyer for an offence of dishonesty than, for example, a sexual offence – as we saw a few weeks ago – in relation to a member of the armed forces, the engaging in any offence of violence clearly has greater significance than engaging in certain other types of offence.

CALLINAN J: Mr Solicitor, Wellington was reputed to have said in the Peninsular War that he did not know how his troops affected the enemy, but they scared the daylights out of him – or words to that effect.

MR BENNETT: Yes. Well, your Honour, that gives rise to a number of problems, some of which Justice Harlan referred to. There is the need for members of the defence forces to work together, often in very close relationships of trust with each other. The defence forces today consist of both men and women, and, clearly, the Commonwealth has an interest in ensuring that women soldiers are not required to work alongside people who have been convicted of certain types of sexual offence.

HAYNE J: The military forces are concerned with the disciplined application of force. An offence of violence is fundamentally inconsistent with the disciplined application of force.

MR BENNETT: That is a more general way of putting the proposition I am putting to your Honour, yes.

HAYNE J: It is not a question of human relations between employees.

MR BENNETT: That is another aspect, your Honour, of the interest. Another aspect is that which was referred to in argument of the fact that a person who is dealt with under local law may be taken away from the military for a period, both for the trial, perhaps while on bail, and, if sentenced, to imprisonment. So there are all sorts of reasons why there is a legitimate interest in the Commonwealth, as part of the defence power, in maintaining certain standards in the defence forces.

GLEESON CJ: Is it the case that when an issue of whether a person should be dismissed from the defence forces for certain conduct that would warrant dismissal arises, it is dealt with by some kind of administrative procedure?

MR BENNETT: There are two separate acts of dismissal. There is administrative dismissal under a provision which, I think, was referred to this morning, regulation 176, where one may or may not need some sort of administrative inquiry to determine the facts, and there is dismissal as one of the alternatives in that list of possible punishments.

GLEESON CJ: Suppose there were to be an investigation, as your opponent concedes there could be, into whether Mr Alpert ought to be dismissed from the army because of this occurrence in Thailand. How would that be dealt with?

MR BENNETT: Your Honour, in the form in which that is suggested, it probably would not be dealt with by a court martial. A court martial would only be convened if there were a charge and a prosecutor therefore commenced the procedure for a criminal - - -

GLEESON CJ: So there would be some administrative determination of whether Mr Alpert raped the complainant, would there?

MR BENNETT: There might be, your Honour, yes, in that example.

KIRBY J: All of these points that you are making now could be well dealt with – and presumably, if this appeal goes against your submissions, will be dealt with – by the Commonwealth military forces when a complaint of the present kind is made facilitating the complainant to make complaint to the local authority, if there be one which is effective, and providing for the extradition of the Australian service personnel to be dealt with according to law in the country where the offence occurred, which is what would normally happen.

MR BENNETT: Neither side has taken your Honours to the details of the facts, but there is, as was said in the decision of the Judge Advocate General, a question as to whether the Thai statute would apply in the circumstances alleged, and one does not need to go further than that.

McHUGH J: It may be, Mr Solicitor, but your whole argument can be really turned against you. It may be that respect for the Australian Army when it is overseas would be enhanced by soldiers who commit offences against residents of foreign countries being tried by the courts of those foreign countries rather than by their own courts.

MR BENNETT: Your Honour, the answer to that, of course, is it depends on the country. It is of interest to note that in relation to - - -

McHUGH J: That was a big argument in the Okinawa case, I think, that there was a real argument as to who was going to try those soldiers.

MR BENNETT: Yes. Your Honour, in relation to Malaysia, as my friend has pointed out, there is a status of forces agreement, or exchange of notes, and that is set out in the special case book at pages 32 and 33. If your Honours go to paragraph 66 at the bottom of page 32, your Honours will see that:

During deployment, members of RCB are subject to both the DFDA and Malaysian civil law, within the following guidelines:

a. If a member commits an offence which is punishable under Malaysian law but not under a law of Australia the Malaysian courts have the exclusive right to try the member.

b. If a member commits an offence which is punishable under a law of Australia but not under Malaysian law, Australian authorities have the exclusive right . . .

c. If a member commits an offence which is punishable under both Malaysian law and a law of Australia:

(1) Australian authorities have the primary right –

in relation to one type of offence and in other types the Malaysian authorities have the primary right and the national authority may cede its rights to the other and “must give sympathetic consideration to any request from the other national authority”. So that is the regime between Australia and Malaysia. There is, of course, no such regime in relation to Thailand.

The expedient which has been adopted in relation to requiring appropriate standards of members of the defence force has been to say that they will be subject to at least, as a minimum I suppose, the same level of control that the criminal law applies within a particular part of Australia. The selection of that part may have a number of factors which we are not concerned with in this case.

KIRBY J: Is that not the way that is more consonant with international law, that you negotiate a particular agreement relating to military forces, and that is then the way in which you resolve borderline cases such as the present?

MR BENNETT: Well, one cannot do that with every place that a member of the Australian Defence Forces might happen to be.

McHUGH J: Quite, but see, subparagraph (2) is against you, is it not:

In all other cases the Malaysian authorities have the primary right to try the member –

which seems to indicate that the Australian authorities accept that in cases not concerning the property or security of Australia, or offences against members of the Australian contingent, they should be dealt with by the foreign judicial system. So why, on that line of reasoning, can you not apply to Thailand?

MR BENNETT: First of all, that is referring to primary right. It is subject to a right of session. It is an agreement between two countries involving compromises by both where it is regarded as in the interests of both for Australian troops to be based there. Our law is not in any way an affront to Thailand. Thailand has not sought to try him. There has been no commencement of proceedings or initiation of complaints to the Thai authorities.

McHUGH J: They have not heard about it yet. If they found out about it they might be.

MR BENNETT: If they do, no doubt the position would be considered. The present case is concerned with a different principle.

HAYNE J: Just before you go on, the document you took us to seems to me to be the land command staff instruction, not the exchange of notes. If I go back to the exchange of notes, do I find this reflected in - - -

MR BENNETT: My understanding is so, you Honour.

HAYNE J: So long as I understand where I am to go beyond the land command staff instruction, yes.

MR BENNETT: I am so instructed, your Honour. The present case starts from the proposition that it is appropriate to impose standards of conduct on members of the defence forces as a general matter and to do that by reference to home criminal law, or in the case of a federation, the criminal law of one appropriate part of the home country. That is referred to by a number of Justices in Re Tracey as an appropriate course and, in my respectful submission, it is.

There are various areas in which the Commonwealth may be concerned with questions of discipline and questions of whether people have committed other offences and need to deal with them administratively. One may have that in relation to company directors. One may have it in relation to migration agents. One may have it in relation to the holders of broadcasting licences. There are, and, of course, in State law there are a great many more examples in relation to the various professions. There is also the Public Service which was referred to in White’s case. In my respectful submission, those are all areas where it may be appropriate to require people to maintain a standard at least as high, if not higher for certain purposes, than that of the general community.

In relation to the facts of this case, may I just point out how a number of its features fit very comfortably with the approach that I have commenced with and with the significance of members of the Australian Defence Forces as potential quasi ambassadors of Australia. Phuket, as is known, is a resort town in Thailand. It is the sort of place which is clearly likely to be used for rest and recreation by military forces on leave in any of the surrounding countries. It is a place where one would have thought a group of Australian soldiers would, as a matter of reality, be likely to be reasonably conspicuous as such.

CALLINAN J: Mr Solicitor, you are really giving evidence, are you not?

MR BENNETT: No, your Honour, I am talking about matters which can be drawn from - - -

CALLINAN J: I do not know whether that is so or not. All the stated case tells us is that they were given permission to go there and that Australian soldiers on leave went there from time to time.

MR BENNETT: And we know that there was a group of Australian soldiers together on this occasion.

CALLINAN J: Yes, that is what I say. Soldiers were there from time to time.

MR BENNETT: And we know that the complainant identified them as Australian soldiers.

CALLINAN J: Because she had met the prosecutor earlier. She had met him in the preceding week, it appears from some of the material, and she asked the lieutenant who reported the matter to his superior officer who he was and particulars of him. Look, I do not want to get into that. The fact is, Mr Solicitor, so far as I am concerned, I am not the slightest bit interested in evidence from the Bar table, speaking for myself. All these facts might well be contestable. There might be all sorts of nuances. That is the difficulty with talking about facts that are not proved and tested in evidence.

MR BENNETT: Your Honour, what I need to - - -

CALLINAN J: On no view are these legislative facts.

MR BENNETT: The bulk of them appear fairly clearly from the facts we do know in the special case and the documents annexed to it. We know it was a beach resort, we know that there was a group of Australian soldiers together in a bar there adjacent to the beach, and we know that, in fact, however it occurred - - -

GUMMOW J: These all become constitutional facts, do they?

MR BENNETT: They are facts stated in the special case, your Honour.

GUMMOW J: Yes, I know.

MR BENNETT: There are facts in affidavits which were filed in order to obtain the order nisi and facts are taken from those and - - -

GUMMOW J: All I am saying to you is that your submission seems to rest on a fairly specific factual basis as underpinning 51(vi) power. I would have thought your approach has to be more principled.

MR BENNETT: Your Honour, my primary approach is principled, but I am merely defending an attack which is made which says that if you are looking for a service connection in order to satisfy 51(vi), it is not satisfied on the facts of this case. That is what I am seeking - - -

GUMMOW J: I think the service connection idea comes into Chapter III. I do not think it comes into 51(vi). Your opponent disclaims any Chapter III agitation, to put it that way.

MR BENNETT: I understood my learned - - -

GUMMOW J: I asked him directly and he said that Chapter III was not there. He would still say beyond 51(vi) power.

MR BENNETT: Your Honour, I understood his submissions to assert that for the validity of the imposition of Jervis Bay criminal law outside Australia under the defence power, one needs a service connection which is not satisfied by service status. That is how I understood his submission. If I misunderstood that, that makes my argument much simpler.

GLEESON CJ: What he does say is that there would be no problem if this event had taken place anywhere in Malaysia, but because it took place in Thailand the law that purports to apply to his client is beyond the law-making power.

MR BENNETT: Yes, and that is why I am dealing with the facts, your Honour, because one can readily see how conduct of the type alleged in this case might lead a country such as Thailand to prohibit the influx of Australian defence members on rest and recreation leave from nearby bases or, perhaps if a question of military co-operation became important in the future, not to engage in that military co-operation.

McHUGH J: But on what basis, on some basis of a propensity? Supposing a group of Sydney lawyers decided to go to this resort town in Thailand and all arrive there and one of them had allegedly committed an offence like this. You would hardly say they were guilty of professional misconduct, would you, because they were there as a group of lawyers?

MR BENNETT: No, your Honour, for a number of reasons. The first is that if one applies the newspaper test that a local newspaper would be unlikely to have as its headline “Visiting Australian lawyer commits rape” or “Visiting Australian public servant commits rape”, but it might well be inclined to have as its headline “Visiting Australian solider commits rape” for the reason given by Justice Hayne earlier, because a military force is concerned with the disciplined use of force and the undisciplined use of force is something which is attributed to military forces of which one disapproves and there are, therefore, many and good reasons why one might wish to prevent the undisciplined use of force by members of the defence forces in foreign countries.

KIRBY J: But stacked up against the so-called newspaper test, which I have never heard propounded in this Court before as a ground for constitutional validity, is the very long tradition, and one would say beneficial tradition, of keeping the military law to a very small realm and not denying the rights and duties of citizenship to members of the military forces.

MR BENNETT: Against that, your Honour, has to be weighed the importance of maintaining the reputation of Australia’s defence forces overseas, bearing in mind that, as I opened, a large part of the modern purpose of defence forces is winning hearts and minds rather than merely going into a battlefield and killing people. That is why the references to maintenance of military discipline in cases not concerned with conduct overseas and concerned only with defalcations within Australia should be construed in that broad way and as covering that type of need.

It is significant to note, as we have set out in our submissions in paragraph 30, that all the Justices in Re Tracey; Ex parte Ryan [1989] HCA 12; 166 CLR 518 implied – I should note in case I am accused of inconsistency that my application in an earlier case presently before your Honours to overrule part of that decision applies to a completely separate part of it and not to any of the aspects we are concerned with today. That was concerned with the aspect of taking away jurisdiction of State courts.

GUMMOW J: You will know the answer fairly soon.

MR BENNETT: I will know the answer tomorrow, I think, your Honour. Indeed, your Honours may know the answer.

McHUGH J: Sections 190(3) and (5) were struck down. They are still in the Act, I noticed, but the court held in Tracey that they are invalid.

MR BENNETT: I am told the Act has been amended since, your Honour, but there may be parts of that section - - -

McHUGH J: Just let me get this clear. When Justice Gummow put to you that the service test did not really apply here, you would not accede to it. That seems to indicate that you are accepting that Chapter III does apply and cuts down what would otherwise be the literal scope of 51(vi), because that is the only relevance of the service connection test. If you took Chapter III out and said, now let us forget all about it, it seems to me impossible to say that the Commonwealth under 51(vi) just could not make a law making it an offence for a serviceman, full stop.

MR BENNETT: Yes, that is so your Honour. It ultimately comes down to the question whether, in the consideration of the defence power against Chapter III, one applies the one test or the other.

McHUGH J: Well, I know, but it creates great difficulties trying to write a judgment. In a sense, you say, well, 51(vi) has got to be read against the background of Chapter III.

MR BENNETT: Your Honour, one aspect of it may need to be, but here, of course, one is not dealing, as one was in the trilogy of cases, with a competition between State or Territory courts and courts martial. One is dealing with a competition in which the only other claimant, first of all, is not making a claim, and, secondly, might well not be inconsistent, if it were to make a claim.

McHUGH J: That was why at an early stage I put to Mr Logan that you may have to get at the underlying principle here, namely, whether or not the particular offence is appropriate to discipline, quite apart from using labels like status or service connection.

MR BENNETT: Yes. Your Honour, I accept that, but my submission is that if one takes the word “discipline” as the appropriate word to define the area of concern, one must read into that word all the considerations referred to by Justice Harlan, and the consideration referred to by the Judge Advocate when he coined the work “amuck”, meaning, no doubt, a mock.

McHUGH J: The American cases have to be read very carefully, for the reasons that Justice Gummow mentioned earlier, that Article II is not subject to Article III, whereas section 51 is subject to Chapter III.

MR BENNETT: Yes.

McHUGH J: So you give us different starting points. Under the United States law, you have to balance these two things, Article II, Article III. Under our law, the leading provision is Chapter III, section 71, and 51(vi) is the subordinate provision.

MR BENNETT: Yes, your Honour, and it has been held in this Court that a military court martial does not engage the judicial power of the Commonwealth as defined in Chapter III, notwithstanding an obligation to act judicially and the judicial elements in that sense.

McHUGH J: Subject to this, Mr Solicitor, it does not exercise the judicial power of the Commonwealth up to a certain limit. The question is, where is the boundary? The judgments of Justices Brennan and Toohey in the trilogy seem to indicate once you step over the boundary, there is a break.

MR BENNETT: Yes. They take the break at the O’Callahan point of service connection and then - - -

McHUGH J: And the whole Court said the same thing in McWaters.

MR BENNETT: Yes, and then in Solorio and in the judgment of Chief Justice Mason and Justices Wilson and Dawson it is said, in effect, that service connection for this purpose is satisfied by service membership, and that is where the battlelines were drawn. There was a third view, of course, which your Honour has referred to and which Justice Deane and Justice Gaudron referred to.

GUMMOW J: How do you describe their view?

MR BENNETT: Their view was that it should not extend to matters covered by the ordinary criminal law.

GUMMOW J: Exactly, so that would not help your opponent in this case absent some extra-territorial - - -

MR BENNETT: Precisely, and that is why I was just taking your Honours to paragraph 30 of our submissions where we demonstrate that each of the four judgments in Re Tracey contains words suggesting that a different and wider rule might be applied in relation to conduct outside Australia. It is put slightly differently – and your Honours see in 30.1 on page 10 of our submissions the phrase used in the joint judgment is “in war-time or upon overseas service”. The width of the word “upon” is not dealt with. In 30.2 in the last sentence:

By the same token, the jurisdiction of service tribunals would expand greatly in time of war or when the relevant unit is serving outside Australia.

Justice Deane referred to:

active duty in a place beyond the reach of the ordinary criminal law –

and Justice Gaudron referred to:

conduct by a defence member outside Australia, the vesting of such jurisdiction is readily seen as appropriate and adapted to the object of control.

HAYNE J: The riposte made, I think, to all of those is he was on leave. He was not upon overseas service. He was not part of the relevant unit serving outside, et cetera. He is on leave. He happened to be on leave from an overseas posting, but “So what?” is the way the riposte goes. Now, what is the answer to that?

MR BENNETT: Your Honour, there are a number of answers. He was on a fairly restricted form of leave. He was on a leave where - if your Honours look at the new document which was added this morning, your Honours will see the - - -

GLEESON CJ: That is the one with “RESTRICTED” on it?

MR BENNETT: Yes, your Honour.

GUMMOW J: At 5.03?

MR BENNETT: Yes, your Honour, 5.03, plus if one goes back to Chapter Four, your Honour will see 4.02a, which applies at all times as a minimum dress standard.

GLEESON CJ: Sorry, I am missing that. In my document I go straight from Chapter Four to Chapter Six.

HEYDON J: I think Chapter Five is on the back of Chapter Six.

GLEESON CJ: Chapter Five is on the back of Chapter Six, exactly where you would expect it to be.

GUMMOW J: That is why it has tricked us.

HAYNE J: It is a cunning plot.

GLEESON CJ: It would send you mad if you - - -

MR BENNETT: I am sorry, your Honours. It is a form of economy in printing which I share, your Honours, in deploring. Your Honours see 4.02 - - -

HAYNE J: And 4.02 is to be explained by reference to 1.01 because the Standing Orders apply from time of arrival until return to Australia. So they purport to cover 24 hours a day.

MR BENNETT: Yes, your Honour, and there were specific limitations - - -

KIRBY J: Even in bed, apparently.

GLEESON CJ: Maybe especially in bed.

MR BENNETT: Yes.

KIRBY J: .....thongs. It might be taking it a bit far to wear thongs to bed.

MR BENNETT: Paragraph 4.07, the clothes while travelling are dealt with. If your Honours go to the stated case itself, the special case itself, paragraph 54 on page 30 - 53 deals with the period of various types of leave, and 54 provides dress and conduct while on leave is to be in accordance with Standing Orders:

A Conducting Officer is to be appointed for all leave travel and is to closely monitor the behaviour of all ranks -

although it should be said that there is a paragraph in the stated case itself which points out that that was not done in this case. That is paragraph 15 which is, having been granted leave, the prosecutor proceeded in company with fellow soldiers to Phuket. He and fellow soldiers were driven to the Thai border by RAAF bus, then proceeded by private transport to Phuket. There was no conducting officer formally appointed for this travel. The distance is not dissimilar to the distance between Sydney and Canberra.

We submit, one cannot in this type of situation where one has - and I hope I am not going beyond what one can readily draw from the special case in saying this - a soldier going with other soldiers to a beach resort in a neighbouring country within just over 200 miles of the base. It is very artificial to say that there is some major difference which occurs, in the interest of the Commonwealth, under the defence power in controlling his conduct which would not apply in - - -

CALLINAN J: Where do we draw the line? 250 miles, 400 miles? You cannot depend upon that, Mr Solicitor.

MR BENNETT: No. In my submission, it does not, your Honour. What I am doing is responding - - -

CALLINAN J: Why are you telling us that it is 200 miles, and that that is relevant, if it is not relevant?

MR BENNETT: Because, your Honour, I am dealing with the proposition put against me that if the Court does not accept my submission about status and requires a service connection and one adds up the elements that give rise to the service connection – if one does that – which, we submit, one does not need to do, but if one does that – we submit there is still sufficient connection.

CALLINAN J: Is it different if it is a platoon of art lovers who visit the Pitti Palace in Florence?

MR BENNETT: Yes, your Honour, because – well, when your Honour says “a platoon”, your Honour means a platoon of defence force members?

CALLINAN J: Yes, on leave. But they happen to be art lovers, rather than people who like the recreation of the Thai beaches.

MR BENNETT: Your Honour, if those members of the defence forces run amuck and commit acts of violence while in Florence, the Australian military is likely to suffer damage to its reputation which could harm the national interest and harm the defence power.

CALLINAN J: Therefore it has nothing to do with how far away it is or where it is.

MR BENNETT: That is what I submit, your Honour. The submission I was putting a moment ago is predicated on your Honours’ not accepting that submission. What we submit is that the likelihood is that, in the same way as a lawyer who engages in dishonest conduct outside the practice of law is likely to bring disrepute on lawyers and be regarded as unfit to be a lawyer and may be dealt with appropriately, although maybe not the same in relation to a sexual offence, in the same way, a soldier or a member of the Australian Defence Forces who commits a crime associated with violence is likely to bring the relevant opprobrium on the force of which he is a member and cause the damage with which I am concerned.

In the present case there is the causative factor, which my learned friend describes as “coincidental”, that he was in that part of the world because of his posting. There is the fact that the choice of venue, the places he can go to on this type of leave, is controlled by the land force instructions, and he is with a group of soldiers.

McHUGH J: I know you are not interested in sport, Mr Solicitor, but I suppose there is a current analogy in that certain footballers while on leave are alleged to have brought their club and the rugby league competition itself into disrepute by virtue of conduct while they were on – they were not on holidays, but certainly on relaxation.

MR BENNETT: Your Honour, if some footballing authority were to deal with them in an appropriate disciplinary way in relation to that, we would submit that that is not inappropriate.

GLEESON CJ: Mr Solicitor, there has been some reference to international law and practice in relation to matters of this. I suppose, from the fact that nobody has mentioned it, that we have no information before us as to how Thailand deals with this issue in relation to its own armed forces?

MR BENNETT: No, your Honour,

GLEESON CJ: Reciprocity is usually a fairly important aspect of any international arrangements that are made in relation to things like this, but we just do not know what the Thai authorities do.

MR BENNETT: We do not, your Honour. We do not even know if there are any Thai forces based outside Thailand.

KIRBY J: You do occasionally, I think, see a Thai vessel moored in Sydney. The Royal Thai Navy sometimes comes to Australia, I think. But your point, I suppose, is that, whatever we might think about this, the issue is whether the Federal Parliament was entitled under a very large power, which has a phrase in it which you have not dealt with yet, to take the view in current circumstances that discipline extends to the sexual activity of Australian service people wherever they are and that that is in harmony with the concern that exists in the world today, not only in defence forces, and that that is therefore within the power, given that it is a constitutional power of very large ambit.

MR BENNETT: Yes, your Honour, but for - - -

HAYNE J: Yes, the sexual activity or, yes, the violent activity?

MR BENNETT: Both, your Honour.

HAYNE J: The relevant offence is rape.

MR BENNETT: Yes, your Honour, which fits into both categories.

KIRBY J: I had in the back of my mind that I mentioned earlier concerning the International Criminal Tribunal of the former Yugoslavia and the International Criminal Court had both in their statutes included rape as a crime which is of concern to them, so that this is obviously something which is, within the military area, a matter of concern.

MR BENNETT: Rape by armed forces has been a matter of international concern for some time. This is perhaps not in the overall category of that, but it is certainly – if one is going to the facts of this case, in my respectful submission, that element brings it well within the relevant scope, but there are two other reasons. There is the internal disciplinary reason, the need for members of the defence forces to work closely together and live in close proximity. There is also the problem that has been referred to, that if people commit crimes and are against local laws, it is possible the defence forces will be denied that person’s services and possibly denied the services of witnesses for some period.

KIRBY J: What would have happened if the Thai authorities had asserted their jurisdiction over the offence here? How do you say the Act operates in those circumstances?

MR BENNETT: Your Honour, there would be two questions of law to be considered. One is the extent to which the doctrine of autrefois convict or acquit applies in relation to foreign convictions and acquittals. The other is the question of the extent to which offences of that nature would be available in a court martial. I am not adequately informed on the answer to either of those questions.

KIRBY J: But is there nothing in the Act that allows the Australian prosecutor to say, “Given that in this case this person is prosecuted for speeding in Thailand, we won’t do anything about that. Given the person is prosecuted for murder in Thailand, we don’t prosecute for that. Given that the person is prosecuted for rape in Thailand, we leave it to the Thai authorities”?

MR BENNETT: If it was speeding, it would not be a Territory offence as defined, so it would not be picked up.

KIRBY J: They do not have a Territory law against – it is not in the Crimes Act, is that the point?

MR BENNETT: That is the reason, your Honour. Only the Crimes Act and the Police Offences Act are picked up.

CALLINAN J: What would happen if the Thai authorities sought to extradite him?

KIRBY J: In the middle of the proceeding in the Australian tribunal.

CALLINAN J: Now, because the proceeding has started.

MR BENNETT: It would be a matter for the discretion of the Attorney-General under section 22 of the Extradition Act.

GLEESON CJ: And if an international collision arose between Australia and Thailand, the resolution of that might well be affected by the way the Thai authorities deal with this issue in relation to their own armed forces.

MR BENNETT: That might be relevant, your Honour.

KIRBY J: But to the extent that we assert our criminal jurisdiction in respect of acts that occur in other countries who have their own sovereignty and their own concern to protect it, we run the risk of a conflict between our assertion and their assertion.

MR BENNETT: Then one has to look at the law of autrefois acquit of each country as it applies in that country to foreign convictions or acquittals and, no doubt, to the law of extradition and discretionary factors there. There are various factors external to this Act which would arise in the circumstance your Honour refers to. It would be a matter for ad hoc working out in each case, subject, of course, to the legal issues which a court martial or a Thai court would have to determine.

GLEESON CJ: Do issues of this kind arise in relation to the legislation that has been enacted in relation to child sex offences by Australian tourists in Thailand or other places?

MR BENNETT: I think that legislation contains some specific provisions, as I recall, your Honour.

HAYNE J: Just apropos of autrefois considerations, I think 144(3) of the Discipline Act has something to say on that subject, in particular (3)(b):

acquitted or convicted by an overseas court of an overseas offence –

MR BENNETT: I am sorry, your Honour?

HAYNE J: Section 144(3)(b).

MR BENNETT: Yes, I am indebted to your Honour. So there is an express autrefois provision in that paragraph. It is 144(3)(b) of the Defence Force Discipline Act.

KIRBY J: If the prosecutor had been somewhere else and had gone, say, to Hawaii and this had happened there, I hardly see the United States criminal authorities allowing the Australian criminal authorities to take charge of such an offence on Waikiki Beach.

GLEESON CJ: It might depend on the way the United States authorities deal with this issue in relation to their own armed forces.

MR BENNETT: Precisely, your Honour, and also - - -

KIRBY J: They may not be quite as reciprocal as other countries.

MR BENNETT: It might depend where he was, your Honour.

KIRBY J: But we have to work out how this purported extension of the Australian constitutional authority and the statutory authority is intended to operate vis-a-vis many other countries with whom we would have friendly relations.

MR BENNETT: Yes, and there are many places where member of the defence forces go where there is no effective civilian authority and that situation has to be dealt with by a code. I am told – but perhaps I do not want to give evidence from the Bar table except insofar as it is a precedent – that there is a case where we on one occasion tried a member of the Australian Defence Forces for an offence committed in the United States and the United States ceded jurisdiction, but that is a matter of adjustment between governments in particular cases.

In the child sex tourism legislation which is in Part IIIA of the Crimes Act 1914, section 50FC is a section which in the same sort of terms introduces an autrefois element. It says if one has been convicted or acquitted in a country outside Australia you cannot again be convicted in Australia in respect of the same conduct. That Act, of course, like the present one, may operate on conduct which is criminal in the foreign country and may operate on conduct which is not, because the age limit in the foreign country may be different, whereas the age limit laid down by the child sex tourism legislation is 16.

KIRBY J: There is no equivalent provision in the Defence Force Discipline Act, is there, to deal with this clash between authority of local criminal law and courts and the assertion of the jurisdiction of the tribunal?

MR BENNETT: Your Honour, there is the section that I just referred to, 144(3)(b).

KIRBY J: But that is ex post.

MR BENNETT: That is ex post, yes, as is 50FC, of course. There are no doubt prosecutorial discretions – and I have not taken your Honours to all the sections in relation to it – which might be called in aid in an appropriate case.

KIRBY J: I mentioned the particular phrase in section 51(vi). Is there anything you wish to say about the added words beyond the naval and military forces?

MR BENNETT: Your Honour, they would probably have been thought to be unnecessary to the opening words, because, clearly:

peace, order, and good government of the Commonwealth with respect to:
. . .
(vi) the naval and military defence –

would include control of the relevant forces. In any event, executive control is given in Chapter II to the Governor-General.

KIRBY J: So you read that more as a limitation, lest anyone think that you can use “the naval and military defence of the Commonwealth” as a means of utilising the defence services of the nation in putting down civil unrest?

MR BENNETT: No, your Honour, what I submit is that the second part deals with the control of the forces which are entrusted with the section 119 functions, I suppose whether or not they coincide with or overlap with the naval and military defence forces.

KIRBY J: I see, yes.

CALLINAN J: Mr Solicitor, what do you say about the passage – I think it was the one to which Justice McHugh referred earlier – in the judgment of Chief Justice Mason and Justices Wilson and Dawson in Re Tracey? I think it is at [1989] HCA 12; 166 CLR 518 at 545:

It is open to Parliament to provide that any conduct –

Do you say that that is consistent, for example, with what was said in the Communist Party Case, that Parliament’s decision can prevail as to what is service and what is sufficiently connected with the military duties, if you like?

MR BENNETT: Yes, your Honour, because the Court is making the judgment that within the range of what can be done under the power is to impose a standard on members of the defence forces.

CALLINAN J: But the commission of any civil offence is capable of affecting:

the maintenance of good order and discipline in those [defence] forces.

GLEESON CJ: That is subject to the concluding sentence in that paragraph.

MR BENNETT: Yes, your Honour, committed by a defence member.

CALLINAN J: Is “sufficiently connected”.

GLEESON CJ: It has to be:

sufficiently connected with the regulation of the forces and the good order and discipline - - -

MR BENNETT: Yes. My learned friend, in his submissions, seeks to ridicule that response of mine by referring to the example of someone who scribbles the word “eternity” on Westminster Bridge or affixes a boxing kangaroo sticker to the wall of his hotel in Phuket. But, of course, the fact is that offences range from the trivial to the serious. Even the most trivial offence can in some circumstances be quite serious, as the most serious offence can in some circumstances be considerably less heinous. In the same way as murder extends from euthanasia type situations to mass murder for self-gratification, defacing a building with a slogan can vary enormously in its seriousness, depending on what the slogan is and what the building is.

If one were to scrawl the words in Thailand which insulted the King of Thailand that, no doubt, would be regarded as a very serious matter. A boxing kangaroo might be ambiguous. Someone who was not familiar with the logo might think it was a cartoon illustrating the pugnacious nature of Australians. The mere fact that one can imagine circumstances where these offences would be so trivial that the appropriate response would be what in New South Wales is called a section 556A of the Crimes Act, the section which allows a court to impose no penalty without proceeding to conviction - - -

McHUGH J: Can I just ask you how far your morale argument extends? Supposing a soldier who is ordinarily stationed in Australia goes to South Africa on leave and there, dressed as a civilian, just as this applicant was, rapes a woman. Is that punishable as a service offence?

MR BENNETT: Yes, your Honour. That is capable, in my respectful submission, of damaging the reputation of Australia’s defence forces. It might receive publicity outside South Africa. It might receive publicity and be given publicity by those who seek to denigrate Australia and its defence forces for other purposes. It might make it difficult for the Australian Government to advocate high standards for defence forces internationally in international tribunals. It could create all sorts of problems. The fact that the person is off duty at the time would not necessarily prevent those problems arising. The service connection in that case is clearly related to the reputation aspect - - -

GUMMOW J: One has to remember that a lot of military activity these days is so-called “peace keeping” among civilian populations of other countries.

MR BENNETT: Precisely, your Honour, and the other two aspects also apply to your Honour’s example, because it is a case where it might have an effect on the ability of the armed forces to work together in barracks, if known to other members of the barracks, particularly of the opposite sex, and thirdly, of course, it might result in his detention and incarceration in South Africa, thus wasting the money which has been spent on his education and development in the defence forces and taking away from Australia the benefit of his services.

McHUGH J: It seems to come to this, that from the moment a soldier signs on until he or she is ultimately discharged, any offence against the civil law of any country can be regarded as a service offence for the purpose of the Defence Force Act - - -

MR BENNETT: That route has not been chosen, your Honour, because there are obviously laws in some countries which one would not wish to require members of visiting forces to obey, and one can think of examples of that sort of law.

McHUGH J: What about traffic offences?

MR BENNETT: Well, your Honour, one might be able to require them to obey local traffic offences because of the risk of their services being denied to the government during a period, if they are detained, held on bail, incarcerated, or if they were unable to drive in that country, as a result of traffic offences. Traffic offences against Australian law, while overseas, might be in a different category, but we have specifically not sought to do that. One can well imagine there were some humour, what would happen if one tried to apply a provision of the Road Traffic Act, but you must drive on the left, to Australian forces overseas? But that has not been done, and the laws adopted are the Crimes Act and the Police Offences Act, which specifically do not contain that sort of regulation.

GUMMOW J: Mr Solicitor, I think you have been giving away power again in answering Justice Kirby. If you look at 51(vi), that concluding phrase he was asking you about:

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

that, I think, is connected to section 61 and 68 and it provides a legislative support for Mr Chifley sending troops in the coal mines and Mr Menzies sending them to operate the wharves. The phrase “to execute and maintain the laws of the Commonwealth” is the linchpin of the executive power under 61. So it is not just 119 which requires the request of the States.

MR BENNETT: Yes, I accept what your Honour says, but the important thing is that the reference to “control of the forces” is not necessary to augment the opening words.

GUMMOW J: No, I understand that.

MR BENNETT: Because that is really the point I am making. If I was conceding power, as always, I was doing so in error.

GUMMOW J: You have to be watched, though.

MR BENNETT: Yes, I am sure I have, your Honour. Now, I had taken your Honours to the references to overseas activities in Re Tracey and the reasons for that. Of course, one can well imagine all sorts of operational reasons why it might be more convenient, in the administration of the armed forces, to be able to convene military tribunals. If conduct takes place overseas and the witnesses are overseas, it may well be convenient to hold the hearing at a place nearby. One has the flexibility; in this case, it has been suggested that the hearing would take place in Queensland.

Ultimately, if either side were to make an issue of venue, the tribunal would no doubt have to decide on an appropriate venue. In making that decision, it would have greater flexibility than a Chapter III court would have because, while a Chapter III court could no doubt take evidence on commission overseas, there may be a related question – which is before your Honours in the BHP Case at the moment – as to whether a Chapter III court could actually sit and conduct a hearing overseas, as opposed to taking evidence on a commission.

There are cases where the Federal Court has taken evidence on commission overseas. I am not aware of cases where it has conducted aspects of a hearing other than the taking of evidence overseas, but the procedure of the judge appointing himself or herself as a commissioner and then taking evidence overseas has been availed of. Justice McGregor sat in Los Angeles on one occasion for a period of two weeks in a case called Willara Pty Limited v Minister for the Arts and the Environment about whether a film called The Return of Captain Invincible was an Australian film or not.

As was suggested to me earlier, there would obviously be very great difficulties for Chapter III courts being convened in situations of military conflict or in places of general military or civilian danger. In my respectful submission, there are many reasons why. The other reason why it is appropriate to have a specialised tribunal is that, as has been pointed out in some of the authorities, the objectives of military discipline may be different to the objectives of the criminal law. Some of the objectives may intersect, as in the case of professional disciplinary bodies, but some of them do not intersect. The military tribunal might well adjourn to enable the defendant or witnesses to perform military duties. It might take into account in imposing sentence what military duties could or should still be performed by the person concerned. There are many considerations peculiar to a disciplinary body which would not necessarily apply in the simple administration of the criminal law on its own.

There is one final matter, and that is perhaps to put the submissions and the fall-back submissions into their logical order. We start with the proposition in the joint judgment in Re Tracey and the judgment of the United States Supreme Court in Solorio and Justice Harlan’s dissent in O’Callahan that the status test is more appropriate. Whether it is seen as an aspect of the service connection test or not, then the need in every case for the constitutional connection to be analysed in great detail – it was that spectre which largely concerned the Supreme Court in Solorio.

In any event, we would submit, a status test is appropriate in any case where the conduct takes place overseas. If your Honours are against us on both those propositions, we submit that the circumstances of this case are such that a service connection is sufficiently made out by the various considerations to which I have referred, particularly the character of the crime of rape when committed by members of a defence force outside their home country. So those are the different levels at which the proposition is put.

There are a number of minor matters arising out of what my learned friend submitted this morning. My learned friend has stressed the importance of dismissal as an option, but there is no reason why the defence power should be limited to dismissal as opposed to other appropriate ways of dealing with misbehaviour of various kinds. There are many situations in which it might be appropriate for the defence forces to say that this person has erred in some way and that he or she should be rehabilitated and able to continue as a member of the defence forces. In such cases some sanction less than dismissal might be appropriate.

In relation to professional discipline and public service discipline, it is a common feature that fines of various kinds, suspensions of various kinds, and matters of that sort, can be imposed instead of dismissal or striking off. The mere fact that those sanctions are available has not been regarded in the disciplinary field as limiting the scope of what can be done, and certainly should not be regarded as limiting the scope of what can be done under the defence power.

The examples given in Relford are, as was pointed out to my learned friend, merely examples based on the circumstances of that case and not any sort of exhaustive test, although I do note that one of them was that the conduct there occurred within the United States and that was seen as a significant factor.

Finally, in relation to the external affairs power, may I just say this. It may well be quite clear that section 61 alone could be justified under the external affairs power. There would be a much more serious question as to how sections conferring jurisdiction on courts martial would operate in relation to something done under the external affairs power. Where, of course, something can be done under more than one power and it can be done under another power without a limitation existing under the first power it is open, of course, to the Commonwealth Parliament to enact legislation under the power that does not contain or imply the relevant limitation.

Here, whatever limitation there is under the external affairs power might well be wider than the limitation under the defence power. That is why we have not sought to defend the relevant legislation under the defence power. May it please the Court.

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

MR LOGAN: Thank you, your Honour. If one were to exercise the external affairs power, one would axiomatically, we submit, subject the conduct to trial in a court constituted in accordance with Chapter III of the Constitution. That proposition if accepted is a reason, we submit, why it is that in considering what is reasonable and adapted to the defence power, one does not accord military tribunals any greater authority than can be seen to be necessary and adapted for defence, because that alternative exists.

As far as the aspects of protecting the community from those who are charged with the disciplined application of force is concerned, there is no objection on the part of the prosecutor to that subjection if the conduct concerned arises in the course of military duty, but the distinction is only that where one is released from that duty and from the control of one’s officers.

GUMMOW J: I have to be quite clear about this, is that distinction just made as to release one that is a dividing line within 56(vi) as to what is inside and outside 51(vi) power?

MR LOGAN: Yes.

GUMMOW J: That is what I understand your submission to be.

MR LOGAN: It is really. If one looks to, is this serviceman at the time subject to the control of his officers, then that provides a very ready touchstone, in our submission, for what is reasonable and adapted to the defence power because it is looking exactly to the disciplinary function of command.

GLEESON CJ: What do you mean by “subject to control”? Would their ability to cancel his leave and require him to report to base immediately be a form of control?

MR LOGAN: In this man’s case, control of his officers is exactly what your Honour has mentioned. You are on the beach in Phuket in Thailand, you have left, as is appropriate, the contact address, and you are requested and required – to use the old naval parlance – to return to Butterworth forthwith.

GLEESON CJ: And is that a form of control?

MR LOGAN: That is the form of control. Beyond that, the control is released. In other words, the control that is reserved is an ability to bring one back to the military. Apart from that, that is the line.

CALLINAN J: Would he have to obey an officer’s order if he met an officer in Thailand?

MR LOGAN: As far as going back to base, yes.

CALLINAN J: No, but any other order.

MR LOGAN: With respect, no, not on that occasion.

GUMMOW J: If you are right about this notion of release that we have just been talking about, it would follow, would it not, that an offence that was then created that operated after a release – so you have a release situation, the man is released – in your terms of discussion – then there is an offence provision which provides for the whole operation of Chapter III. It would still be beyond power in your submission, because it would be beyond 51(vi), is that right?

MR LOGAN: It depends on – we use the term “control of officers” in a very general way. It is really very difficult to see how there is a situation that would arise where there is some intermediate limbo because the intermediate limbo that strikes one is really a situation where the person concerned is, for all relevant purposes, in the same situation as an Australian civilian.

GUMMOW J: Yes.

HAYNE J: But it follows, does it, that you say that any member of the ADF who, while on leave from his or her unit, strikes an officer who is also on leave from his or her unit is guilty of an offence punishable in the Court of Petty Sessions at Queanbeyan – is beyond power because it is beyond 51(vi)?

MR LOGAN: Because in that situation that person has been put on leave and released, yes, that is so.

HAYNE J: Yes.

GUMMOW J: Thank you.

MR LOGAN: That behaviour may very well lead to dismissal from the defence force, but that is a different category entirely.

GUMMOW J: Yes.

MR LOGAN: The orders concerned at all times would have to be orders that are lawful orders, able to be given, so the answer to the proposition about football club behaviour or the like which occurs outside the confines of military duty is just they are thrown out of the club – nothing more or less than that.

That also extends if the offence is that of rape in South Africa, or any other conduct outside the realm of one’s military duty. The military purpose requirement is that which Justices Brennan and Toohey condition their view of the defence power in Tracey at page 564.

CALLINAN J: If he took drugs in Thailand and their effects were still present when he returned to duty, that would be - - -

MR LOGAN: What one would do in that situation, your Honour, if he returned to duty and he was under the influence, would be to charge him with being under the influence at the time of return to duty. If he has sobered up – he could have been on an awful bender in Phuket, but if he fronts at the gate at the Air Force Base at Butterworth, sober as a judge, with respect, then that is it.

CALLINAN J: It might not be unknown conduct.

MR LOGAN: In other words, one does not lightly go and look for jurisdiction for military tribunals, for reasons that we have canvassed in chief and will not repeat. If the Court pleases, those are our submissions.

GLEESON CJ: Thank you, Mr Logan. We will reserve our decision in this matter and we will adjourn until 10.15 tomorrow morning.

AT 4.24 PM THE MATTER WAS ADJOURNED