Lane v Morrison & Anor [2009] HCATrans 69 (22 April 2009)

Last Updated: 22 April 2009

[2009] HCATrans 069

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
No C3 of 2008

B e t w e e n -

BRIAN GEORGE LANE

Plaintiff

and

COLONEL PETER JOHN MORRISON, A MILITARY JUDGE OF THE AUSTRALIAN MILITARY COURT

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 22 APRIL 2009, AT 10.22 AM

Copyright in the High Court of Australia

MR A.W. STREET, SC: May it please the Court, I appear for the plaintiff with my learned friends, MS K.S. COCHRANE and MR M.J. DUNCAN. (instructed by Provest Law)

FRENCH CJ: There is a submitting appearance, I think, for the first defendant.

MR S.J. GAGELER, SC, (Solicitor-General of the Commonwealth of Australia): I appear with MR S.B. LLOYD, SC and MR J.G. RENWICK for the second defendant. (instructed by Australian Government Solicitor)

MR G.T.W. TANNIN, SC: May it please the Court, I appear with MS J.C. PRITCHARD for the Attorney-General for Western Australia in support of the plaintiff. (instructed by State Solicitor’s Office (WA))

FRENCH CJ: Mr Street, before you begin, the Court has of course had the opportunity to and has read your extensive written submissions. We would be most assisted if you could commence with the second ground – that is, the impermissible creation of the Australian Military Court, as you head it in your submissions.

MR STREET: If the Court pleases. Your Honours, in relation to the second ground, the thrust of it is that Part VII, Division 3, creating the Australian Military Court, offends section 71 and the principles in Chapter III of the Constitution.

Your Honour, the first part of the argument in relation in to ground 2 that we seek to identify in support of a violation of section 71 and Chapter III obviously arises from the provisions themselves which purport to first of all create a court. Your Honours, we say that section 71, in words which confer a power to create, imply the negative prohibition insofar as any other type of creation of a court by the Federal Parliament and to the extent relevant we say that accords with the doctrine identified in Boilermakers and that the language found in section 71 must carry that negative implication and to that extent Parliament can only create a court within Chapter III and that the lawmaking power to create a court is so confined.

Your Honours, in our respectful submission, when one looks at the entity that is being created, it is a court impermissibly created contrary to section 71 and not in compliance with Chapter III. The entity created is described as a court of record. Your Honours will have already identified that the significance of the court of record. It has been touched on in an article that was picked up in K-Generation that your Honours referred to in a judgment delivered by this Court and there was an article there, which I will hand up to your Honours, if it is convenient, dealing with courts of record. It is an article by Sir Isaac Isaacs Professor of Law of Monash University, Professor Campbell. If I could hand up to your Honours a copy of that article.

Your Honours, that article identifies a court of record relevantly as carrying with it ordinarily two consequences. The first consequence is an inherent power of contempt, the second consequence that the record is intended to be binding and conclusive for that court.

GUMMOW J: But contempt in the face of the court, is it not?

MR STREET: I am sorry, your Honour?

GUMMOW J: Is it not a limited form of contempt?

MR STREET: I am sorry, your Honour, I did not hear your Honour?

GUMMOW J: Contempt in the face of the court?

MR STREET: Yes, your Honour. Your Honour, in that regard the decision of this Court in the R v Taylor also supports a court of record having such a significance in terms of the power of contempt and identifying that such a court, described as a court of record, would be a court - - -

GUMMOW J: What is the citation of Taylor?

MR STREET: Your Honour, it is in [1951] HCA 22; (1951) 82 CLR 587 and the discussion in the joint judgment that we would refer your Honours to specifically is at page 599. But what your Honours advance is that the significance of the description of this Australian Military Court as being a court of record carries with it the clear characterisation that it is a court, and a court having an impact of a binding nature well beyond – if I can put it this way – the scope of power within section 51(vi), that the binding and conclusive nature of the record is not confined to the power to make laws in respect of defence found in 51(vi). It is, of its very nature, a binding consequence at large in the community in respect of all persons, all entities and has a significance which we say gives rise to identifying this entity as an entity impermissibly created outside Chapter III.

Your Honours, there are other indicia that flow. One of the submissions we would put in relation to characterising this Court as a court within Chapter III impermissibly created is the reverse of the chameleon doctrine in terms of identifying an entity as the nature of that entity being material as to whether the power vested is the judicial power of the Commonwealth or not the judicial power of the Commonwealth. Here Parliament has carefully identified and created a court. The significance of that, we would have said, to the extent of the chameleon doctrine that operates, is that it is clear this was intended to operate in a way in which it must be exercising the judicial power of the Commonwealth.

Your Honours, in relation to that issue of whether it is exercising a judicial power of the Commonwealth, we respectfully submit, it is clear that it is judicial power. It identifies a jurisdiction to make binding decisions on disputes as to rights arising form the operation of law upon past facts; classically within Brandy [1995] HCA 10; 183 CLR 245, 268, picked up in K-Generation by this Court relevantly at paragraph 132. Your Honours, the consequence of the creation of a court which is exercising judicial power created by the Parliament is one, we say, that must bring it within Chapter III.

FRENCH CJ: A military tribunal which exercises judicial power in the sense contemplated and described in the joint judgment in Tracey is invalid, notwithstanding what was said there. Is that your proposition?

MR STREET: No, your Honour, that is a service tribunal created by command and it is a tribunal constituted by command.

FRENCH CJ: But it exercises a judicial power.

MR STREET: An exercise in judicial power and to the extent relevant - - -

FRENCH CJ: So you do not say that one cannot have a military court which exercises a judicial power conferred on it pursuant to section 51(vi) of the Constitution?

MR STREET: No. Can I change your Honour’s language to a service tribunal which is, in essence, a tribunal that reflects a tribunal of command? To the extent that one has a command tribunal, it can be vested with judicial power.

FRENCH CJ: I am not sure that that label helps very much. I understand you are sort of drifting into the first ground here, but I am just asking whether you accept that a service tribunal can validly exercise judicial power outside the framework of Chapter III?

MR STREET: In relation to that proposition, your Honour, if it is a service tribunal of command, the answer must be yes, in respect of the subject matter of military duty and to the extent that the subject matter is one of military duty, yes, it can be the subject of a judicial power to determine breaches of military duty.

GUMMOW J: But, you say, this is different because this a court not a tribunal?

MR STREET: Yes, your Honour.

GUMMOW J: And there is a distinction between creating a court and between somebody, whatever it is, exercising judicial power?

MR STREET: Yes, your Honour.

HAYNE J: There is a different intersection between this body and the courts generally?

MR STREET: Yes, your Honour.

HAYNE J: The intersection is now to be defined apparently, is it, by notions of autrefois acquit and convict?

MR STREET: Your Honour, we would say, if I can, in response to your Honour that it sits outside the integrated court system identified by the Constitution and, relevantly, Chapter III.

HAYNE J: Yes, I understand that, that is why I am directing your attention to the intersection, whereas service tribunals, if you wish to adopt that description, set up under the Naval Discipline Act and under the Army Act dealt with service personnel and the fact of their dealing presented no bar to those persons later being dealt with in the courts.

MR STREET: Yes, your Honour.

HAYNE J: The intersection is now different, I think.

MR STREET: Yes, your Honour, and we do seek to put that difference is material and it now creates the very conflict that was identified by, I think it was, Justice Brennan and Justice Toohey in Tracey and in Nolan in relation to the consequence for a determination of this Court will create a direct conflict with the criminal jurisdiction of the States and the consequence of an acquittal or a conviction by this Court must have an impact where it is no longer supplementary, or a system supplementary or parallel to and subordinate to the State criminal jurisdictions. It must be a system that is prevailing over the State general criminal jurisdiction and that, for the reasons identified by Justice Brennan and Justice Toohey, is impermissible.

CRENNAN J: Do you regard the power to fine and imprison as an important characteristic of a court of record?

MR STREET: Your Honour, without doubt the power to have an enforcement of the orders that are made in terms of imprisonment is material to its characterisation. This is given legislative enforcement in respect of those orders that are made imprisoning, fining, and to that extent, yes, your Honour, classically the finding of guilt is clearly something of a kind touched on in Lim and Vasiljkovic as being something of a judicial nature and would be a judicial power and now we have a court exercising that judicial power and that gives rise, we say, to the very same problems that were identified in Tracey, which gave rise to the striking down of section 190.

It is the same issue that now arises as a result of creating a court that would make, as his Honour Justice Hayne has identified, a decision giving rise to an acquittal which would have to have an impact on an integrated court system and the institutions of the State being the criminal courts of the State in a way which would be impermissible, given the recognised existence of the States under section 106 and the consequence of section 109 in terms of the Commonwealth law.

Your Honours, for those reasons we say what one has in relation to the creation of this military court is a court that is impermissibly created. It clearly is not one created within Chapter III. That is conceded by the Commonwealth. I do not need to take your Honours to the provisions which identify the structure and terms of appointment of the judges, but they are not judges appointed under section 72. They do not have the independence and impartiality of judges appointed under Chapter III. Those are material matters, not least of which because the obligation on the Parliament to sustain the judiciary is a real one in that regard, ensuring that independence.

Your Honours, to the extent relevant we say that the significance of the repository being a court was touched on in Thomas v Mowbray by this Court, relevantly at paragraph 59 in supporting the nature of the power being one of a judicial power of a court. Your Honour, we rely upon Taylor’s Case, as we have identified in our written submissions, as well as Alexander v Waterside Workers’, which we say - - -

FRENCH CJ: I am trying to understand the relationship between your approach to ground 2 and ground 3. It seemed to me in answer to Justice Hayne’s question you were rolling into ground 3.

MR STREET: Yes, your Honour.

FRENCH CJ: Just confining it for a moment to your submissions on ground 2, part of it seems to be an argument that this is in effect a Chapter III court, although it does not purport to be so, because it has the trappings of a Chapter III court, and you make references to seals, stamps, nomenclature and so forth, and application of rules of evidence. Is that really the gravamen of the point, the statutory independence that is given to the court, the designation of it as a court of record and the other, what you call indicia – what perhaps one might call trappings – these mark it as a court of a kind which can only be created under Chapter III? Is that really the point in ground 2?

MR STREET: It is, your Honours. Your Honours, I actually did summarise the attributes. If I could hand them up to your Honours.

FRENCH CJ: I am looking at paragraph 39 of your submissions when I make this remark.

MR STREET: Your Honours, I did actually summarise the indicia or attributes or trappings, as your Honour the Chief Justice has described them, on page 3 of the summary that I have handed up to your Honours. One sees what we say are the attributes that reflect it being a Federal Court. Your Honours, the trappings, if I could use that language, embrace creating judges, describing them as a jury, giving it the status of a court, the jurisdiction it is exercising with the capacity to make those binding declarations and, your Honours, we say that the matters that we have summarised there on that page 3 all support this, in essence, as being the court impermissibly created within a Chapter III.

Your Honours, the exclusive and exhaustive nature of Chapter III has been touched on by this Court on a large number of occasions in relation to Boilermakers and the principle identified in that case, most recently in Thomas v Mowbray in the context of the defence power - - -

GUMMOW J: The question you have to address may not be difficult, but the question is, what powers are given to the Parliament to create courts in the text of the Constitution? No one ever wants to talk about the text. Where is the text in the Constitution that talks about creating courts?

MR STREET: Yes, your Honour, and we do - - -

GUMMOW J: Blind Freddie can see that this is intended to be a court at common law, forget about Chapter III.

MR STREET: Well, your Honour, we say to the extent relevant - - -

GUMMOW J: If this was a piece of State legislation, this would be a court of a State within the meaning of 77(iii) surely to goodness. Some bodies created in the States are not called courts, but they may nevertheless be courts for the purposes of 77(iii). That is not this case. The question then is you have got to start with the constitutional text.

MR STREET: Quite, your Honour, and the whole structure - - -

GUMMOW J: If we start with the text, what do we see?

MR STREET: Well, your Honour, we see that there is only one power to create a court and that is the power in section 71 and the power in section 71 consistent with a system of integrated courts where this Court is the ultimate appellate Court of all courts exercising judicial power within the Commonwealth of Australia for the united people of Australia. If I can take your Honours to section 71.

GUMMOW J: If that were not so, one could have an immigration court, I suppose, created under 51(xxvii), a bankruptcy court created under 51(xvii), a tax court created under 51(ii), a patent court and so on and so forth.

MR STREET: Your Honour, we do embrace the proposition that it is clear from the affirmative language as to the power to create courts found in section 71 that it carries with it the content of the implied prohibition against the creation of a court by Parliament outside Chapter III. In our respectful submission, that implied prohibition is something that I think your Honours touched on. It was picked up, your Honours, in relation to the Work Choices Case [2006] HCA 52; 229 CLR 1. If I can take your Honours very briefly to that. One has, in essence, the start of the principle that we would have said is of considerable significance in construing section 51 and that is first at paragraph 201. One sees the passage at page 122:

In the course of their treatment of the exhaustive operation of Ch III of the Constitution in the Boilermakers’ Case, Dixon CJ, McTiernan, Fullagar and Kitto JJ remarked that: “affirmative words appointing or limiting an order or form of things may have also a negative force and forbid the doing of the thing otherwise.”

Your Honours in that case and your Honour Justice Hayne, I think, in another case pointed out that the need to identify what is the order or form of things, which is said to be the subject of the negative implication or operation, is the creation of courts and the creation of courts, we say, in that regard is one which gives rise to the kind of prohibition identified in Boilermakers’ Case on the power to create courts outside Chapter III.

Your Honours, to the extent that it is suggested that there is some exception referable to section 122, we respectfully submit that there is no such exception, that to the extent relevant, section 122 is subject to Chapter III and that for the reasons that have been touched on by his Honour Justice Gummow in Kruger and then picked up, I think, and touched on briefly in, I think it is, Thomas v Mowbray – I will give your Honours a reference to it in a moment – there is in essence here a position where the notion that section 122 sits outside Chapter III runs contrary to the reasoning that was recently adopted by this Court in Wurridjal.

Wurridjal, in our respectful submission, flies in the face of the reasoning of the Privy Council in Porter and to the extent relevant contrary to the reasoning on Bernasconi, and it would follow that there are fact no exceptions to Chapter III. Chapter III is exhaustive in relation to the creation of courts and to that extent one cannot find a qualification arising from section 122.

Your Honours, the submissions on the second ground are the ones which we have summarised in - - -

KIEFEL J: Mr Street, could I please take you back to the question of contempt. I understand you to say that the Court has an enlarged jurisdiction with respect to contempt from that which was given by statute to the service tribunal. Could you explain to me how you say it has been enlarged and by what means?

MR STREET: Your Honours, can I go to the provision that has created the contempt within the Defence Force Discipline Act which is in section 53.

KIEFEL J: That is in terms similar to the service tribunal provision, is it not?

MR STREET: Your Honours, it is materially different because it is, in essence, dealing with the Australian Military Court and the service tribunal says – I sought to be put before – were command and we now have an entity which one refers to and engages in any conduct in the case of the Australian Military Court constitutes a contempt of that court. Your Honours, we would have said that the creation of it as a court of record – adopting what his Honour Justice Gummow has referred to – ensures that it is capable of having an inherent power to deal with a contempt in the face of the court as it - - -

KIEFEL J: Do you say then that it extends beyond the persons identified in section 53 and extends to any person?

MR STREET: Yes, your Honour.

KIEFEL J: How do you read the notion of the inherent power arising out of it being stated as a court of record with the express provision of section 53 which is limited in its terms?

MR STREET: Your Honour, to the extent that one has a position that has identified the scope of application confined to defence members and defence civilians, it was not seeking to deal with the consequences, we submit, of it being a court of record.

KIEFEL J: What I am really asking, I suppose, Mr Street, is whether or not it is possible that section 53, because it is a statutory court, intended to cut down what might otherwise be thought to be an inherent jurisdiction?

MR STREET: Your Honour, subsection (4)(d)(ii) would fly in the face of that, your Honour, because there is there a reference to service tribunals and the significance of the power of contempt if they were a court of record. So it is clear that the significance of a court of record has not been pared back in relation to the Australian Military Court by subsection (d).

GUMMOW J: I think that section has to be read perhaps having in mind what was said in Taylor [1951] HCA 22; 82 CLR 587 at 598, which you took us to, namely, that contempt is also, in the middle of the page, “a misdemeanour at common law . . . punishable on indictment”. Now, 53(4) may be a putting of that common law offence into a statute. Do you see what I mean?

MR STREET: Your Honours, we focus on the language of - - -

GUMMOW J: Non-constat, but there still was not the contempt of court.

MR STREET: Your Honour, it may be that that might have assisted the position so far as a service tribunal other than the Australian Military Court was concerned, but what we have so far as the Australian Military Court is concerned is language that deals solely with, we say in (d)(i), the defence member or civilian member and does not in any way detract from the court of record powers that would flow as a result of the very express reference to “court of record” in (ii).

KIEFEL J: Does the question of the inherent jurisdiction also have to be read – not necessarily read with but does one need to bear in mind provisions of the Defence Act in relation to contempt of service tribunals as well?

MR STREET: Your Honours, there is an equivalent provision.

KIEFEL J: Section 89, I think, is - - -

MR STREET: Yes, your Honour, we referred to it in our submissions, in the Defence Act and I think - - -

KIEFEL J: Yes. That extends to any person, does it not?

MR STREET: Yes, your Honour, although there, clearly, one has – that is not an offence that of itself is within the scope of jurisdiction vested in the Australian Military Court in respect of the Defence Act. Your Honours, we have identified in relation to the ground 2 a second argument which is this, that even if it were not a Chapter III court impermissibly created, it must fly in the face of undermining the institutions which are Chapter III courts and the institutions which are Chapter III juries. The creation of an entity which is so described as a court by Commonwealth power and which is, in fact, not and the creation of a jury which is not a federal jury under section 80 but by the Commonwealth law, must ultimately undermine public confidence in the institutions which are genuine Chapter III institutions, be it the judiciary in terms of federal courts, or federal juries.

In our respectful submission, we have a Kable consequence in relation to this court, even if it were not otherwise in violation of section 71 and Chapter III, in that it would inevitably lead to the undermining of public confidence in Chapter III courts if there were to be a parliamentary court created outside Chapter III without the protections of independence and impartiality that arise under Chapter III and if one has a jury created by Commonwealth law which does not have the inviolable features of a jury that arises under section 80.

Your Honours, we refer to some of those inviolable features. I will not take your Honours through them in detail, but on page 8 of the handout that I handed up I summarised some of the inviolable features that would be in conflict with a federal jury, recognised by Chapter III, by the jury now created with the AMC – first of all, the representative nature of the jury. Here we have a jury, as your Honours will well recognise, that is comprised only of a selection of particular service members with particular criteria.

FRENCH CJ: This is taking us into ground 3, is it?

MR STREET: No, your Honour, it is - - -

FRENCH CJ: You have got that heading. I do not quite see how it relates to ground 2.

MR STREET: Yes, your Honours, I think there is part of ground 3 there, but can I identify that we do say, in looking at whether it is one that offends section 71 that we look at the question of whether it is one that has a Kable problem, and for the reasons I have sought to identify the Kable problem is not just the creation of a court, it is also the creation of a jury operating with a court that is not a Chapter III court, a jury in respect of which its members, as I have said, are not representative.

Its members are not ones that are required to have a unanimous verdict. Its members are not equal. There is a particular senior officer appointed, so there is not equality of the jurors. So to that extent a particular senior officer of a particular rank is a minimum requirement for the members of that jury and that then equally undermines what we would have said would have been one of the features that would have applied if it were a section 80 jury, and one also has a limited number of juries for certain class offences which would otherwise - - -

FRENCH CJ: I am not sure where this is taking us. Ground 2 has to do with the characterisation of the Australian Military Court as a court exercising, impermissibly, the judicial power of the Commonwealth because its members are not appointed according to the criterion under the terms and conditions set out in Chapter III. That is what it is all about, is it not? There is nothing to do with Kable here.

MR STREET: Your Honour, it is to the extent that one says – and if one were to say that this is a court that can be created outside Chapter III, we would have said to the extent that it is suggested that the defence power provides a source or ability to create a court outside Chapter III we would have said it must be a court that does not give rise to a Kable problem and this does because - - -

GUMMOW J: You are saying, are you, that if there was a power in 51(vi) it would have this limitation in it?

MR STREET: Yes. So we say in the present case if in fact we are wrong in our primary submission that it is directly contrary to section 71 and violates Chapter III, and one finds that somehow it is a creature that can live, or seek to live, based on the defence power, we say it flies into the problem which we have identified in respect of Kable both in respect of the court itself and the court with the jury.

Your Honours, otherwise our submissions on ground 2 are summarised in paragraphs 38 to 42 of our submissions in-chief and our submissions in reply in paragraph 1(g) and 1(h). Your Honour, that is what I would seek to put in relation to ground 2.

FRENCH CJ: That is closely connected then with ground 3 on the intersection issue that Justice Hayne put to you, is it not?

MR STREET: It is, your Honour.

FRENCH CJ: Perhaps it is convenient to deal with that next.

MR STREET: If your Honours please. In relation to ground 3 - - -

GUMMOW J: You seem to want to reopen a whole lot of cases.

MR STREET: Not necessarily, your Honours. What we actually say is that one has a difference here in relation to the creation of a court from the earlier line of cases dealing with military discipline, so that the line of cases dealt with from Cox, Bevan, through to Nolan, Tracey, Tyler, Alpert, White, all dealt with a different statutory regime, all dealt with a regime in which there was not a court, all dealt with a regime where the consequence of the exercise of power was an exercise of power by command. Now, we have an exercise of judicial power by an entity outside of command, if it - - -

HAYNE J: Be it so, if that is the point you are making, that is a point wholly contained within ground 2, is it not? If you failed on ground 2 how does this ground survive thus expressed? I am not saying whether you win or lose on ground 2, but what is left of this ground if ground 2 fails?

MR STREET: Your Honour, I did seek to make clear it is one, we submit, that if the repository of this judicial power is not one that offends Chapter III so that ground 2 - - -

HAYNE J: But there is the point, Mr Street. Ground 2 depends, it seems to me, upon your demonstrating that the Australian Military Court is exercising judicial power. If it is not, then your point on ground 2 seems to me at that point to have some difficulties, and if it is exercising judicial power, we have gone far enough. If it not exercising judicial power, how can you make ground 3 without reopening however many cases it is?

MR STREET: Your Honour, can I indicate that perhaps the distinction I was seeking to make was this. We say there is no doubt and there always has been a clear recognition that where one did have what I will call the old military tribunal exercising its jurisdiction it was exercising judicial power, but to the extent - - -

HAYNE J: No. Go to Tracey 166 CLR 572. Let us clear some decks shall we, Mr Street? I want to know whether you challenge this. Do you understand what is said at 572 of 166 CLR to embody two propositions? Let me state them so that you know what they are. One:

the imposition of punishments by service authorities as for the commission of criminal offences in order to maintain or enforce service discipline has never been regarded as an exercise of the judicial power -

Proposition 2: observing (a):

That the functions performed by courts-martial in England are judicial in character -

(b) that the powers exercised by a court-martial -

are to be exercised judicially -

and (c) that -

The powers are conferred on officers of the Commonwealth by a law of the Commonwealth -

requires no different conclusion. Now, do I read Tracey aright or do I read it wrong?

MR STREET: Your Honour, it is here that we say the repository of the power is so material.

HAYNE J: I understand that. Your ground 2 is, but this is a court and this is a court which is exercising judicial power. I understand that, but I want to know whether you accept that the first two propositions, or the two propositions I have identified, are an accurate repetition of what appears in Tracey and if they are, whether you embrace them or reject them?

MR STREET: Your Honours, to the extent that one has a recognition that service tribunals can exist exercising a power to deal with breaches of military duty which are service tribunals of command, I accept that they can exercise a power which is in its nature judicial. To the extent that one has, though, a purported service tribunal which now has the characterisation of a court, even if it is not exercising the judicial power of the Commonwealth, no, one cannot confer on that entity, which is in the character of a court even if it is not the judicial power of the Commonwealth, a power to deal with and impose punishments upon service members.

Your Honours, I think I have in part addressed your Honour Justice Hayne’s question in the sense that what we say is we seek to distinguish Tracey because Tracey was not dealing with a repository of a power in the nature of judicial power that was called a court. It was not dealing with an entity that was outside of command. If one has an entity outside of command that is purporting to exercise a judicial power, even if it is not the judicial power of the Commonwealth, to the extent that Tracey suggests that that is permissible, it is wrong. To the extent that any of the earlier cases suggest that one could have a court vested with such a power to be exercised in that nature, we would maintain, it is wrong.

Your Honours, what we say is that there is a material difference between Tracey in those earlier decisions and what is now done. The significance of a court exercising jurisdiction, even if it is not the judicial power of the Commonwealth, to make binding findings as a court of record must be one in relation to which it is no longer simply exercising a command power in respect of command discipline. It has two significant consequences. It means that the determination that is being made by that entity, the Australia Military Court as a court of record, is a determination of a law of the Commonwealth that creates an offence which must now be an offence against the law of the Commonwealth. We say that the character that permitted a service offence to be treated as a service offence outside section 80 and being dealt with by an entity outside Chapter III, was that it was an exercise of control by command.

So, your Honour, in answer to your Honour Justice Hayne’s question what we say is, if it were a command entity that were exercising a power in the nature of judicial power in respect of a service offence, there is no suggestion that that cannot be done and I am not seeking to open up that line of country simply to explore the issues that are touched on in White.

FRENCH CJ: Can I just take you back to Tracey for a moment, to 540 in the joint judgment of Chief Justice Mason and Justices Wilson and Dawson. What they describe as the real question in that case is the question that is raised by your ground 2 in part, that 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. The question is whether it is exercising the judicial power of the Commonwealth under Ch. III of the Constitution.

Is that the question which you are raising in respect of the Australian Military Court?

MR STREET: That is the question we have raised in ground 2. I accept that. But what I was seeking to put in relation to ground 3 is that - - -

GUMMOW J: I thought your ground 2 was different. We had better be clear about this.

MR STREET: I am sorry, your Honours, I may have too quickly agreed with the Chief Justice in relation to - - -

GUMMOW J: You seem to agree with each of us.

MR STREET: I am seeking to be agreeable, your Honours.

GUMMOW J: But that has diminishing returns.

MR STREET: Yes, your Honours, to the extent relevant - - -

GUMMOW J: It avoids the immediate cyclone, but it does not avoid total disaster.

MR STREET: Yes. Well, your Honours, I think, in answer to the Chief Justice, the question formulated at page 540 does not reflect our ground 2 and I maintain what I have said in relation to ground 2. To the extent that there is a - - -

FRENCH CJ: What are you saying? How would you formulate the real question?

MR STREET: Your Honour, in relation to ground 2, the question is whether the Australian Military Court, created under Part VII, Division 3, is a court that offends section 71 and Chapter III.

GUMMOW J: What do you mean by “offends”? You talk about violation and offence. Why do you not just talk about the text?

MR STREET: Your Honour, it is created outside and not in compliance with section 71. Can I just deal with what your Honour the Chief Justice and Justice Hayne have raised in relation to Tracey. We do submit that the decisions that have touched upon military tribunals exercising a power that in its nature has been judicial power are distinguishable from what is now being created, even if I am wrong in respect of ground 2.

We say that they are distinguishable because in those cases the entity reposed with that power was not described as a court and was not a court which was a court of record, which has a binding impact and has a binding impact Australia wide. That carries with it, in our respectful submission, a consequence that this is a very different jurisdiction that is being exercised, even if it is not within our ground 2 submission.

CRENNAN J: Each of the passages from Justice Brennan and also the joint judgment do raise an issue about whether or not there is some historical recognition of a power to create a court outside Chapter III.

MR STREET: Your Honour, we respectfully submit that what was said by Justice Dixon in Cox is correct. There is no real exception and there was no power to create a court outside Chapter III at the time of the creation of this Constitution. The Naval Discipline Act and the Army Act did not permit creation of courts. They were not courts; they were bodies of command that could exercise command power and they were reviewable by command. There was still a prerogative in the commander-in-chief, the Queen, to review the outcome of the courts martial and punishment imposed. They were classically an exercise of power by command.

What we submit in relation to the third ground is this, that the function that is now being performed by this entity, if it is outside the submission we have put in relation to ground 2, if it in fact is an entity that is exercising a power that is not in violation of section 71 and in violation of Chapter III in the way we have sought to put, we respectfully submit that the independent entity, being the Australian Military Court, which is not subject to command in respect of its jurisdiction that it is then exercising where it makes convictions and findings or imposes penalties or acquits, is doing so as a court of record that must have a binding consequence Australia wide and that has a massive impact on its distinction from the earlier cases which characterise the power as being one which was in fact not a real exception to Chapter III.

So, your Honours, what one then has is an entity, in our respectful submission, whether or not within Chapter III that is no longer subordinate to the State jurisdiction in the manner which we have sought earlier to identify. It was at the kernel of the existence of the service tribunals that they would be subordinate and supplementary and not in conflict with the State criminal jurisdiction.

FRENCH CJ: Does paragraph 48 of your submissions set out what one might call the core proposition for the ground 3? Do not agree with me too quickly just in case you run into trouble with Justices Gummow and Hayne.

MR STREET: Your Honour, to the extent relevant, I do not think that does fully articulate - - -

FRENCH CJ: The Bill is saying that the jurisdiction, in effect, the range of offences which can be dealt with by this body, is beyond that which would be authorised by section 51(vi).

MR STREET: Yes, your Honour.

FRENCH CJ: That is it, is it not? And that it is confined by that category identified in 48 in the quotation from Tracey from Justices Brennan and Toohey?

MR STREET: I am too quickly agreeing with your Honour.

FRENCH CJ: Is there anything more in it than that?

MR STREET: Yes, there is, your Honour, because that was just dealing with serious crimes and there are, in relation to service offences, three kinds of offences that are, in essence, identified with the Defence Force Discipline Act. I do not want to be taken to be confining the argument simply to the most serious crimes so far as the service offences are concerned. Our submission in relation to ground 3 is not focused solely on the fact that we have a court that is dealing - - -

GUMMOW J: But that view of Justices Brennan and Toohey was a minority view, was it not, in Tracey, with respect to section 61?

MR STREET: When your Honour says in relation to section 61 - - -

GUMMOW J: Of the statute, yes. The question was whether that was valid.

MR STREET: Your Honour, to the extent that they sought to identify a theory that one, in essence, has a parallel system that is subordinate and supplementary to the criminal law, we would have said that was subsequently embraced in Nolan and that is the proposition that I am seeking to identify, that in ground 3 it is at the core of the existence of a service tribunal that lives outside Chapter III that it must, in essence, be one that is supplementary to the State criminal jurisdiction.

The submission we are seeking to advance in ground 3 is, in essence, picking up the proposition that his Honour Justice Hayne touched on that the consequence of the exercise of this jurisdiction by a court which is created as a court of record and has a binding significance Australia wide in respect of its convictions is that you no longer have it simply determining a matter that was within the service, if I can put it in that way. It is now making a conviction which has an impact or an acquittal that has an impact Australia wide.

Even if it were not exercising the judicial power of the Commonwealth, it is no longer capable of being said to be subordinate and supplementary because the power that it is exercising is one in respect of which it is determining criminal guilt. The Defence Force Discipline Act picks up through section 10 Chapter 2 of the Criminal Code. Chapter 2 of the Criminal Code identifies the elements that are to be applied in determining the guilt in respect of the offence.

So that what now is happening is not a command decision being made by command in respect of a breach of military duty, there is a determination being made by a non-Chapter III court for the purpose of ground 3 that is binding Australia wide in respect of guilt and we say that cannot sit as a parallel and subordinate system with the State jurisdictions in respect of the State criminal jurisdiction. For that reason, your Honours, we would respectfully submit that the very same problem that was identified in Tracey in respect of Melbourne Corporation rears its head.

BELL J: Mr Street, I am just trying to see the distinction that arises by virtue of the nomenclature of Australian Military Court and the significance of it being created as a court of record. You emphasise repeatedly the binding nature of its decisions and I understand that to be in support of a view that notwithstanding the provisions of section 144 of the Discipline Act, because it is created as a court of record, a conviction before the Australian Military Court would give rise to autrefois convict?

MR STREET: Yes.

BELL J: And you say that by contrast under the system of service tribunals a conviction, as used to be the description, was not a matter of which a State court would have noticed as a court of competent jurisdiction for the purpose of autrefois convict?

MR STREET: Yes. What your Honour raises is a material matter. Servicemen and women that come before summary authorities, for example, everyday are dealt with by summary authorities which are command, an exercise of command power by command. That exercise of command power where they are found guilty of having engaged in some inappropriate behaviour is one which creates no consequence outside the military. It has no record outside the military. It has no impact for them if they seek to leave the defence service and are seeking either to engage in migration activities or some other activity. Whereas a conviction by the AMC is now a conviction at large, binding across the country and a conviction that will have an impact on the servicemen and women of the Australian Defence Force. That is a material and significant consequence of this entity that is created.

So, picking up what your Honour Justice Bell has said, its impact is quite significant in relation to the consequences of it being described as a court of record and it exercising this power as a court, even if it were not within ground 2. In our respectful submission, that consequence is one in respect of which, because the character of the power was judicial in nature, because the repository is the court, one can no longer characterise the service offence as being a military duty offence which was outside section 80. Your Honours, we would put that as a final submission in relation to the operation of the third ground.

BELL J: One thing against that, Mr Street, might be that the majority in Tracey seemed to have contemplated that under the former system a conviction before a court martial might give rise to autrefois and it was an open issue.

MR STREET: Yes, your Honours, they identify that this was a topic that was not addressed, and it appears that for that purpose there was no development of any argument beyond the argument limited to section 190 and the particular provisions that were said to be invalid.

Your Honours, an exercise of command power and the consequence of an exercise of command power within command is a matter that we would have said is, of its nature, not capable of being effect to as a conviction that would have an Australian-wide impact, whereas this Court now has such a consequence with its convictions and acquittals, and that difference is one which, if it were – if I can go back to an old service tribunal – a court-martial that had dealt with an offence of assault, and if it made a finding adverse, it had no impact beyond the immediate service.

The consequence of that was this, in relation to enhancing discipline, just so that your Honours are alive to it, when one looks at creating a coherent and effective team in relation to the various military units that we have, those military units are ones in respect of which loyalty and respect for authority and integrity are core elements in the discharge of the relationship of command and those under command, and there is obviously a significant impact where it is the commanding officer who is seeking to bring forward a charge in respect of someone being late for returning to duty and having let down the rest of the team and the inclination to turn around and say “Well, I did it. Yes, I am going to plead guilty”, and the impact of the loyalty and respect within command that is built up by command exercising disciplinary powers is lost by this external entity.

The Australian Military Court is exercising its own authority. It is not part of command, it is not by command. It is not going to enhance morale and discipline. What it is is, in essence, to the extent of military duty, imposing a significant and much harsher regime upon the servicemen and women of our defence forces.

So that, your Honours, it has a consequence which, in our respectful submission, when we come to look at the third ground, if it is not within challenge in respect of section 71 and Chapter III, it nonetheless now has a consequence which we would respectfully submit means that it runs into the problem of Melbourne Corporation and the consequence of its acquittal or its conviction must be to exclude the State jurisdiction, something that would be impermissible. It must be a consequence that it is no longer a subordinate and ancillary jurisdiction. It is in conflict with and in fact dominates the - - -

FRENCH CJ: Your Melbourne Corporation point was knocked out. That was ground 5, so I do not know that there is much point in pursuing that. You are really focusing, I would have thought, on the proper construction of 51(vi) and the limits of power conferred by it having regard to other aspects of the Constitution.

MR STREET: Your Honours, can I just say that in that regard, we understood that the extent to which that Melbourne Corporation argument was dealt with, it was still open.

FRENCH CJ: Ground 5 was dismissed.

MR STREET: I am not running ground 5, I am running ground 3, and I am seeking to deal with ground 3.

FRENCH CJ: Yes. That has nothing about Melbourne Corporation in it, really. These seem to be all over the page Melbourne Corporation, Kable. It would be really useful to just focus upon the core issues here which have to do, as Justice Gummow said earlier, with the text of the Constitution and the limits of the power conferred by 51(vi).

MR STREET: Yes. Your Honour, can I just deal with one aspect, though. I understand what your Honour the Chief Justice did in relation to paragraph 26 of your Honour’s judgment in Lane v Morrison to identify the particular arguments were dismissed, but I think there is language that identifies except insofar as they are within the grounds that remain. It is that issue that we say we can still focus upon in relation to ground 3 because what we are seeking to put in relation to ground 3 is that it has a consequence where you do now have a court, if it is outside of Chapter III and does not offend section 71, you have a court that is now exercising, in essence, criminal jurisdiction and if it is exercising - - -

FRENCH CJ: Right. Your point is, is it not, that the Commonwealth Parliament does not have a general power to legislate with respect to criminal offences, except as an incident of the powers which are conferred upon it and that to the extent that the Defence Force Discipline Act purports to extend the reach of this Court to offences which you would call civil offences goes beyond the limits of what is properly incidental to section 51(vi). That is really the point, is it not?

MR STREET: Your Honour, I embrace that in relation to what I will call our fourth - - -

FRENCH CJ: I am just trying to characterise your argument.

MR STREET: I embrace it in relation to ground 4, your Honour, and our ground 4 embraces that.

FRENCH CJ: Let us move to ground 4.

MR STREET: Your Honour, just before we do, can I indicate that in relation to ground 3 the significance of ground 3 is that even if it were somehow held that the law made in the creation of the Australian Military Court was within the scope of power of the defence power and even if it were held that it does not violate section 71 and Chapter III, it still has a problem and that is what ground 3 was seeking to identify. Its problem now is it is determining criminal guilt in a way which is inconsistent with the continued existence of the State criminal jurisdiction.

Your Honours, we have dealt with the submissions in our written submissions in paragraphs, I think, 43 to 59 and in reply submissions, paragraphs 1(i) to (k) and paragraph 17. Your Honours, could I then turn to ground 4 in relation - - -

FRENCH CJ: But that is actually ground 6, I think, in the show cause application.

MR STREET: Yes. I am referring to the grounds by reference, your Honour, to our written submissions, if that is convenient?

FRENCH CJ: Yes, I understand that.

MR STREET: Your Honours, if it is convenient then to turn to the topic your Honour the Chief Justice raised and that is then the characterisation of the law that creates the Australian Military Court by Part VII, Division 3 and we say it is not a law that can be characterised as appropriate and adapted to the defence power within section 51(vi) but we say it is immediately identified as one which, at the very best for the Commonwealth, is a law in respect of more than one subject matter. If it were capable of being described as a defence subject matter, it is also one that falls within Chapter III and if it is a law falling within Chapter III in terms of the creation of such a court, in our respectful submission, the prohibition that arises from Chapter III must mean that it is not within the law-making power in section 51(vi).

Your Honours, in our respectful submission, the proposition I think was picked up again – if I could go back to the Work Choices decision 229 CLR 127 and take your Honours to paragraph 219:

There is a further general proposition that “a law with respect to a subject matter within Commonwealth power does not cease to be valid because it affects a subject outside power or can be characterised as a law with respect to a subject matter outside power”. That proposition, however, does not apply when, as it was put in Bourke v State Bank of New South Wales, “the second subject matter –

here, Chapter III power, creation of courts –

with respect to which the law can be characterised is not only outside power but is the subject of a positive prohibition or restriction” -

and we say that reasoning, even though I appreciate it was referring to the legislative powers within section 51, is equally applicable to the extent that we are looking at whether the defence power here can sustain what has been created under Part VII, Division 3.

In our respectful submission, this issue was flagged by your Honours in the decision of White 231 CLR as to the impact of Chapter III on the scope of the power. Perhaps I can just give your Honours some references in that regard. It is paragraph 5. If your Honours go to page 581 in the judgment of the Chief Justice, there is the start of a paragraph that says “This is a topic to which it will be necessary to return”, but his Honour continues at the bottom:

The plaintiff’s primary argument is that the trial and punishment of service offences necessarily involves an exercise of the judicial power of the Commonwealth, and may occur only within the limits imposed by Ch III of the Constitution. This, it is said, is because the power conferred by s 51(vi) of the Constitution, which is the power upon which Parliament relies to create service offences and establish a system of military justice, is given “subject to [the] Constitution”, that is, subject to Ch III and to the separation of powers inherent in the structure of the Constitution.

His Honour then continued, after identifying the passage in Tracey:

Their Honours went on to say that the Convention Debates are silent on this point, by which presumably they meant on the relationship between service tribunals and Ch III.

Your Honours, it is that relationship between the service tribunal and Chapter III that now arise in this case that is also touched on, I think, in your Honour’s judgments in the joint judgment at paragraph 39 on page 592:

Finally, the system established by the Act cannot operate wholly beyond the ambit of Ch III of the Constitution.

Your Honour, it is that proposition dealt with in paragraphs 39 and 40 that now arises in this case because, in our respectful submission, what we do have now is something that goes beyond the scope of the defence power because of the prohibition and restraint imposed both by Chapter III and by section 71.

Your Honour, the same proposition was touched on by the Court in Tracey. If I can go back to Tracey [1989] HCA 12; 166 CLR 518 at 538 in the first paragraph at about point 1:

Of course, the end to be achieved by martial law, consistently with s 51(vi) of the Constitution, is the promotion of the efficiency, good order and discipline of the defence forces and no more.

Now, if I can just stop there for a moment. “Good order and discipline of the defence forces and no more” does not include making decisions binding Australia wide. It does not include making a court of record. It does not include creating an Australian Military Court. Your Honours, there is a further passage in the same judgment that touches on it, page 567, at the bottom of the page:

In this Court the Commonwealth embraces the approach of the majority in Solorio, though the submission is founded on the principle, stated with reference to our own Constitution, that once a provision is seen to be appropriate and adapted to the carrying out of an object or purpose within a legislative power which involves the notion of object or purpose, the choice of legislative –

Your Honours, there is - - -

FRENCH CJ: Sorry, what do you take from that?

MR STREET: No, I am sorry, your Honours, I should have taken your Honours to page 570 in the joint judgment of Justice Brennan and Justice Toohey at the top of the page:

To achieve these objectives, it is appropriate to repose in service authorities a broad authority, to be exercised according to the exigencies of time, place and circumstance, to impose discipline on defence members and defence civilians. The second set of objectives, dictated both by Ch III and s 106 of the Constitution and by the constitutional history we have traced, consist of recognition of the pre-ordinate jurisdiction of the civil courts and the protection of civil rights which those courts assure alike to civilians and to defence members and defence civilians who are charged with criminal offences. To achieve these objectives, civil jurisdiction should be exercised when it can conveniently and appropriately be invoked and the jurisdiction of service tribunals should not be invoked, except for the purpose of maintaining or enforcing service discipline.

Your Honours, in our respectful submission, what one has now is something that is no longer enforcing service discipline. At page 571 at about point 3 where there is a reference to decisions being reviewable under section 75(v) of the Constitution:

Section 51(vi) does not support a jurisdiction standing outside Ch III of the Constitution –

Your Honours, in our respectful submission, that directly applies in relation to what is now being created.

FRENCH CJ: Except to the extent that – that is the big question – the jurisdiction serves “the purpose of maintaining or enforcing service discipline”.

MR STREET: Your Honours, in our respectful submission, it cannot be characterised as one that is servicing discipline for the reasons that we have summarised in the written submission we handed up on page 1. We have a list of features which we have said are destructive of it being appropriate and adapted to service discipline. Your Honours, for those reasons, we respectfully submit, it falls outside the law-making power, which is the defence power, which your Honours touched on in some length obviously recently in the Thomas v Mowbray decision dealing with the terrorist power.

Your Honours, in our respectful submission, it is one now that the consequence is not just that Part VII, Division 3 must fall, we respectfully submit that the interrelated provisions must also fall. If I could just identify them for your Honours. There were other interrelated provisions other than Part VII, Division 2. You have the interrelated division of the Director of Military Prosecutions under Part VII, Division 1. You have the trial powers of the AMC under Part VIII, Division 2. You have the appeals to the AMC under Part IX and you have then the appointment of the CMJ, chief military judge, under Part XI, Division 2, and the military judges under Division 2A and the appointment of the DMP under XIA, all of which, we would say, would fall, if it is the case, it is beyond the defence power, as we seek to submit.

Your Honours, can I indicate there is one last aspect to ground 4 that we put and that is the proposition that in respect of these proceedings themselves it would not in any event be one in which there was an inadequate service nexus. We have summarised on page 9 the criteria which we say takes it outside the service nexus. We have dealt with it in our written submissions. In relation to that ground, in paragraphs 69 to 70, we adopt what was said by the intervener in relation to those matters.

Your Honours, there are only then two housekeeping matters. If I could just identify them, your Honours. One is, I think the legislation that is applicable to the last issue that identified, that is, whether these proceedings, proceedings which have a sufficient service nexus, are said by the Commonwealth to be the legislation as it stood in October 2007. Your Honours, that in part just turns upon a question of construction. There is an agreement as to the facts, but could I just identify them, your Honours. If your Honours have the Commonwealth material, volume 1.

GUMMOW J: Yes. It is intensely irritating. It has got bits and pieces.

MR STREET: Your Honour, I was equally surprised, as I think was the learned Solicitor-General.

GUMMOW J: I realise it is not your preparation.

MR STREET: At page 580 in volume 1 of the Commonwealth material your Honour will see there is a provision which is in the transitional provisions that says:

This item applies if, before the commencement day:

(a) a person had been charged with a service offence under the old DFDA –

That is clearly the fact. That is correct in the present case –

(b) proceedings dealing with the charge of the offence had been commenced under the old DFDA –

Your Honours, we have an issue there. The facts are agreed but we say “proceedings dealing with the charge of the offence” had not been commenced. My client had not attended before the AMC. His attendance was required under section 139. He had not been properly subpoenaed to attend to the extent that there were military rules requiring his attendance. He did not appear. The issues relating to the objection to jurisdiction were raised without actually an appearance being made by the counsel that attended and we say “proceedings dealing with the charge” must mean when there has been an entering of the plea.

The Commonwealth seeks to put that as soon as the charge is referred to the AMC there are proceedings dealing with the charge. That is the issue that is presented. We say it only impacts in relation to what I will say the second limb of ground 4. Each of the other challenges we make are made to the legislation and its validity. We say we have such standing and it is the legislation in its current form. If the Court pleases.

GUMMOW J: Just a minute, Mr Street. Just look at section 114, “Creation of the Australian Military Court”. Do you see that?

MR STREET: Yes, your Honour.

GUMMOW J: Do you have any submission on this question? If 114(1A) were to take this body beyond legislative power, would 114(1A) be severable so that one would be left with something just called “the court” but not contravening section 71?

MR STREET: No. In our respectful submission, it is not severable. If your Honour looks at the structure of what is being created, when dealing first with the language of section 114 itself, it is clear that what has been created by subsection (1) – subsection (1A) we would have said is an integral part of it and when one goes to the provisions such as the ones we went to dealing with section 53 and “Contempt” and the reference to “not a court of record”, it is clear that being a court of record is inherent in the system that the legislation has created in respect of this entity.

There are also a number of other provisions that identify the significance of the record keeping that is to take place in relation to it. Would your Honours just excuse me one moment while I just identify those?

CRENNAN J: Are you looking for section 148?

MR STREET: I think that is one of the sections yes, your Honours. It identifies the significance of the record keeping and, your Honours, we say consistent with the language that was found in 114 the entity created and has been given various powers that are identified in the other parts we have referred to is the Australian Military Court as constituted. We respectfully submit subsection (1A) is not severable and that it would be creating - - -

GUMMOW J: What is the significance of section 144? Does 144 catch up not only notions of res judicata and autrefois convict and acquit, but also

ideas - principles of issue estoppel? How does it catch those broader notions?

MR STREET: Well, your Honour, in our respectful submission the consequence of section 144(1) does not save the impact of this being a court of record Australia wide. What we would have said is to the extent that you have section 144(1) it reinforces the significance of the non-severability of section 114(1A). But, your Honour, to the extent - - -

GUMMOW J: Is it the position that principles of issue estoppel have to be got out of (1A) out of court of record, the binding nature of the court of record activities because 144 of itself is not enough. That is what I am asking you; I do not know what the answer is, at the moment.

MR STREET: Yes, your Honour, we would have said that 144 does have an impact in relation to that acquittal, but it does not operate obviously beyond the service tribunal. For that reason it must be one where it is the significance of the determination of this tribunal as a court of record at large that carries with it the consequences of the estoppel in terms of autrefois acquit and autrefois convict.

HAYNE J: Well, is there any provision of 144 other than 144(3) that speaks of what I have earlier described as the intersection between the civil courts and the service tribunal? Section 144(3) is talking about what is to happen if a person has been proceeded against in the civil courts, vis-à-vis whether they may be proceeded against in the service tribunal, but is there any - - -

MR STREET: Your Honour, I do not believe there is. There was section 190, but section 190 really does not address the issue either, your Honour. It is simply confined to service charges.

GUMMOW J: But assume there is an action in tort in the State court, right? To what extent is that in any way influenced by necessary steps in reaching a conviction or acquittal of some criminal offence that is related to the tortious action?

MR STREET: Your Honour, we would have said being a court of record that conviction could be attended, it could be used in evidence, it could be the subject of relevant attack, be it either as admissions or on credit. If the Court pleases.

FRENCH CJ: Thank you, Mr Street. Yes, Mr Tannin.

HEYDON J: What does it matter to the State of Western Australia, Mr Tannin, whether or not Mr Street’s challenge succeeds?

MR TANNIN: The State intervenes in relation to this matter particularly in grounds 3 and 6 to the extent that 6 somehow in part repeats ground 2 and 3 is slightly elusive; they are not grounds we drafted. The important point is that our submission is that it is not open to the Commonwealth to vest a general criminal jurisdiction in the Australian Military Court as it has done under the Discipline Act.

HEYDON J: Is the point this, that events in the Military Court might take away from the Supreme Court of Western Australia and other Western Australian courts? Their powers over criminal - - -

MR TANNIN: Yes, we have developed that in paragraph 25 of our submissions. At least there is a question as to whether a conviction in the Australian Military Court might give rise to autrefois convict, but it certainly would give rise, in our respectful submission, to an argument about abuse of process were a person to have been convicted before the Australian Military Court and been sentenced to imprisonment, and having served that term, then being brought before a State court. The practical effect of the Australian Military Court exercising general criminal jurisdiction is to, in effect, impede the State jurisdictions and that is why we are here.

FRENCH CJ: We are not then concerned, are we, with the particulars of the particular case in terms of the time taken to bring the charge which is dealt with at 26 to 30 of your submissions, or matters which seem to relate to prosecutorial discretion in 31 and 32? We are rather concerned, are we not, with section 61 and so forth?

MR TANNIN: Yes.

FRENCH CJ: All right, focus on that.

MR TANNIN: I was just dealing with that housekeeping matter. In terms of the Commonwealth’s submissions, it has been put in their submissions in reply that some sort of inference can be drawn that there was a resignation by the plaintiff upon the charge. In fact the sequence is that he had resigned prior to any service of the charge upon him, so no inference of the kind the Commonwealth would draw can be drawn.

The only other housekeeping matter I would like to embark upon before we go further is that within these agreed facts there is annexed at the application book 41 and also at 42 and further at 22 - they are the same provisions - the charge sheets. The plaintiff has redacted properly the identity by name of the persons who were the subject of this alleged humiliation, but they have retained the identifying military numbers, and I would suggest respectfully that the Court redact those numbers as well, because it would be quite simple to identify the person who was the subject of this form of alleged abuse. That is significant.

HEYDON J: What about the name of the plaintiff, which is on the front of the application book?

MR TANNIN: Yes, anything that would identify the victim in the State jurisdiction - - -

HEYDON J: Is this the office of an intervener, though, to be taking a point like this?

MR TANNIN: I am sorry?

HEYDON J: Is this the office of an intervener? Mr Street is perfectly capable.

MR TANNIN: No, I am not taking the point at all.

FRENCH CJ: It is something you could have mentioned. You do not really have to raise it before us. You could have mentioned it to counsel. Anyway, let us get on to the issue of principle.

MR TANNIN: The court in this matter - - -

MR STREET: Your Honours, can I just apologise? I have just realised that I did not deal with ground 1, which was our section 68 point. We had put written submissions on it. I maintain the written submissions.

FRENCH CJ: We understand you rely on your written submissions.

MR TANNIN: Your Honours, I do not want to adopt the plaintiff’s submissions. Rather, I would promise to the Court as best I can that I do not wish to repeat them. What we would like to do is respond to the questions that were forwarded to the parties and to the intervener by the Court by letter of the Registrar on 20 April 2009. Those questions seek, in effect, to identify the head of legislative power which supports, or purports to support, the enactment of sections 114 through to 121 of the Discipline Act.

In our submission, those provisions of the Discipline Act are invalid for three reasons. The provisions are not supported by section 51(vi) of the Constitution. Secondly, the only source of power to create a court is in Chapter III of the Constitution. Courts established under Chapter III of the Constitution have to have certain characteristics. The AMC does not have those characteristics. Thirdly, the Commonwealth Parliament cannot under 51(vi) or any other head of legislative power establish a body described as a court which does not have the characteristics of a Chapter III court. In addition, in our submissions - - -

GUMMOW J: Could you just restate three?

MR TANNIN: The Commonwealth Parliament cannot under 51(vi) or any other head of legislative power establish a body described as a court which does not have the characteristics of a Chapter III court. I would add, in addition, that Divisions 2 and 2A of Part XI of the Discipline Act - - -

GUMMOW J: What is the difference between your third and first submission?

MR TANNIN: Not a great deal.

GUMMOW J: What was the first one again?

MR TANNIN: The provisions of the Discipline Act are not supported by section 51(vi) and, in particular, the judicial power able to be exercised under that placitum can only be exercised by tribunals which are outside the federal judicature. Now, in relation to the challenge that was made by the plaintiff, what is also implicit in the challenge, in our respectful submission, is that Divisions 2 and 2A of Part XI of the Discipline Act, which are found in the Commonwealth materials at page 486 onwards, are also invalid. I take your Honours there.

FRENCH CJ: This is beyond the scope of the intervention as set out in your submissions, is it not?

MR TANNIN: Yes, it is, but it is in answer to the questions that we were invited to make submissions on. I simply point out that there would be consequential invalidity here because these provisions create a chief military judge of the court in 188AA. They stipulate the terms of the holding of office for 10 years in 188AC. In 188AD the person who is recognised as the chief military judge must not be appointed subject to particular conditions and those conditions I will come back to in terms of the service requirements because they are significant. That is in paragraphs (b), (c) and (d).

Now, I will not take your Honours through the law in relation to courts of record other than to point out that in relation to the Military Court there are other clear indicia of it being a court. It has been given functions of the kind that are exercised by a court. For example, it can determine whether a person has committed an offence, including a criminal offence which is ordinarily dealt with in the State jurisdictions. I take your Honours, for example, to section 61(3). Its jurisdiction is to be exercised by judges. There is a chief military judge or a military judge and I will take your Honours to that part.

Those judges, significantly, have the protections and immunities of a Judge of the High Court. I take your Honours to 193(1) of the Discipline Act. There are many indicia within the Disciplinary Act that what is created is a court, not merely that it is a court of record, but many of the other not merely trappings but realities of a court.

FRENCH CJ: I think that formula for conferring immunity is used in a wide range of statutory settings. I think even in some settings mediators are given - - -

HAYNE J: Broadcasting tribunals and bodies like that, I think.

MR TANNIN: But it has the other relevance that I rely upon. Your Honours will note with interest the note to section 114(1) of the Discipline Act. Sometimes, your Honours, in microcosm great things are revealed. Note 1 provides that:

The Australian Military Court is not a court for the purposes of Chapter III of the Constitution.

Significantly, it does not deny that it is a court of some kind and literally it is correct that it is not a court for the purposes of Chapter III of the Constitution. Why then say it? One, with respect, looking at the note in terms of an interpretative aid would fairly be guided to the sense that it is an example of the parliamentary draftsperson protesting it just a bit too much, because what has been created is in many senses an apparent court.

Can I deal with the scope of the defence power under section 51(vi). The Commonwealth Parliament, in our submission, has legislative powers to enact a disciplinary code for the purposes of the maintenance of the discipline of the armed services through military tribunals which are not subject to Chapter III. For reasons of history and necessity it has been recognised that section 51(vi) authorises the exercise of a kind or a special kind of judicial power, the sui generis power described by his Honour Justice Dixon in Cox, by disciplinary tribunals which are not part of the federal judicature.

By creating the Military Court as a court with the features that we have described and which have been also touched upon by my learned friend for the plaintiff, the Commonwealth Parliament has not vested section 51(vi) judicial power in a military tribunal, rather, it has simply created a court. In our submission, 51(vi) does not authorise the establishment of courts which may exercise sui generis judicial power contemplated by section 51(vi), both as a matter of constitutional principle and having a regard to the authorities of this Court. As a matter of constitutional principle, 51(vi) should not be construed – and this is the point I made earlier – as authorising the establishment of courts outside the federal judicature established under Chapter III.

Reasons of history and necessity have been relied upon properly for the conclusion that military disciplinary jurisdiction should be exercised by service tribunals under 51(vi). As to history, military jurisdiction has been traditionally exercised by bodies which are not courts, and that is courts martial and service tribunals. As to necessity, it has been accepted from the time of Federation and since that it is necessary for the maintenance of the command hierarchy of the defence force and the maintenance of the discipline of the forces that the dispensation of military justice can be effected quickly and with little formality.

FRENCH CJ: How do you distinguish between a body which is a court and body which exercises judicial power and in the sense discussed in Tracey? I am not talking there about a body acting judicially, but a body exercising judicial power.

MR TANNIN: The purpose of the power is the point. That is the reason why, within section 51(vi), there is retained a capacity to discipline the armed service. The power has to be exercised judicially, but it is limited to questions of - - -

FRENCH CJ: I was hiving that off. I was asking really in terms of characterisation relevant to this case, can you have a body exercising judicial power that is not a court in a generic sense?

MR TANNIN: No. The point I wish to make was that in terms of this impetus of practicality and necessity there was traditionally a need to deal with issues of discipline quickly and with little formality. I have referred to the decision of their Honours Justices Brennan and Toohey in Tracey at pages 562 and 573 and also the decision in White at 570, particularly 586 in the judgment of his Honour the Chief Justice. Those considerations of necessity and practicality do not support the establishment of courts entitled to exercise that military jurisdiction.

As for the consideration of necessity, the creation of courts to exercise military discipline jurisdiction with elements of permanence, formality of process, tenure of judges that all of that that would have been entailed, would not be conducive to the efficient exercise of the defence power. Again I recite the judgment of their Honours Justices Brennan and Toohey in Tracey at 573. That does not mean that the Commonwealth cannot give Chapter III courts the jurisdiction to deal with service offences. It can. It just simply has not done that in this case.

The Commonwealth Parliament’s only source of authority to establish courts is in the Chapter III provisions, and the AMC is not a Chapter III Court. It is established entirely as a matter of accepted authority that the only source of the Commonwealth Parliament’s power to establish courts lies in Chapter III and not in the heads of power itself in section 51. In the question put by the Registrar on behalf of the Court to the parties reference was made to the Boilermakers’ Case and particularly the passage at page 269 in the final paragraph of the judgment of their Honours Chief Justice Dixon, Justices McTiernan, Fullagar and Kitto. There with eloquence, with respect, at the final third of that page is the answer. There is no further reliance required than that provision. I will not read it to your Honours as your Honours have been directed to it.

A similar conclusion has been reached in relation to the United States Constitution. Your Honours have referred the parties to the Northern Pipelines Construction Case. As a matter of general principle Chapter III is the sole source of the Commonwealth Parliament’s legislative power to create courts, but then in order to be valid, sections 114 to 121 of the Defence Act and Divisions 2 and 2A of Part XI of the Defence Act must establish a court that actually complies with Chapter III. A Chapter III court has minimum requirements, particularly of independence and impartiality. We do not, in intervening, necessarily adopt the emphasis on defence force command that the plaintiffs rely upon. This is about the character of the actual court that Chapter III contemplates. We would refer the Court to the decision of this Court in Forge, particularly the passages in the judgment of his Honour Chief Justice Gleeson.

FRENCH CJ: Reference please.

MR TANNIN: I am sorry. It is [2006] HCA 44; (2006) 228 CLR 45 at page 67 and particularly paragraph 41 where his Honour the Chief Justice observed at the final paragraph:

It follows from the terms of Ch III that State Supreme Courts must continue to answer the description of “courts”. For a body to answer the description of a court it must satisfy minimum requirements of independence and impartiality.

The AMC, the Australian Military Court, does not satisfy those minimum requirements. Let me illustrate that. The judges do not have life tenure; rather, they are appointed for a limited period. I take your Honours to section 188AC(2). The chief military judge, for example, holds office for 10 years and, similarly, the military judges are appointed for 10 years. The Military Court does not have institutional independence in the sense referred to by his Honour Chief Justice Gleeson in Forge. The Discipline Act requires that the chief military judge and military judges, for example, be members. They must remain permanent members of the Navy, the Army or the Air Force and their continued appointment is subject to compliance with their service deployment requirements.

Could I take your Honours to section 188AD and particularly paragraphs (b), (c) and (d) at 487 of the Commonwealth materials:

(b) the person is a member of the Permanent Navy, the Regular Army or the Permanent Air Force, or is a member of the Reserves who is rendering continuous full-time service; and

(c) the person holds a rank not lower than the naval rank of commodore or the rank of brigadier or air commodore –

so it is all subject and maintained as subject to rank:

(d) the person meets the person’s individual service deployment requirements.

That phrase is not defined in the Discipline Act but it would appear to be a reference to the requirement to continue to obey commands as to where you might serve.

FRENCH CJ: It is probably passing the annual fitness test.

MR TANNIN: Indeed. Interestingly, in this context, promotions are dealt with in the Act. Under section 188AX at 495 of the Commonwealth materials – and it is AX and AJ. We can go to AX:

(1) Subject to subsection (2), a Military Judge is not eligible for a promotion in rank during the period he or she is a Military Judge.

But, under subsection (2) any concern about that is then dealt with:

(2) A Military Judge is, by force of this subsection, promoted to the next rank on the 5 year anniversary of his or her appointment –

So there is a formal recognition within the Act of the problem that there is some concern in the draftsman to protect the promotion and command of the officer and then once they have finished their service they are then again subject to the entire command structure. That is completely inconsistent with institutional dependence of the kind that is recognised as to be required by a Chapter III court. The note, again, as I have referred your Honours - - -

FRENCH CJ: If this is just going to the proposition that this is not a Chapter III court, I do not think there is much dispute about that.

MR TANNIN: It goes also to the quality of this institution as a court. It has not any of the institutional independence and impartiality that is required.

FRENCH CJ: But that is the point of that submission. The point of that submission is it does not answer the requirements of a Chapter III court, is that right? There is no other point, is there?

MR TANNIN: No, but we would suggest that the Commonwealth does not have power to create courts or bodies called courts and give them some but not all of the features of a Chapter III court. In our submission, the Commonwealth has - - -

GUMMOW J: This would be an answer, would it, to a reading down argument that got rid of section 114(1A)?

MR TANNIN: Yes. The submission is that the Commonwealth power does not extend to vesting judicial power in a body which it describes as a court which selectively bears some of the features of a Chapter III court, but not all of them. To do so, in our submission, undermines the institutional integrity of and the public confidence in the impartial administration of justice by the federal judicature as a whole, and they are integral to the operation of the rule of law.

My friend, Mr Street, referred to the decision in Kable. I take your Honours to that decision not for the purpose my friend raised it but to illustrate by analogy the proposition which we make now. Can I take your Honours to particularly the judgment of her Honour Justice Gaudron at page 108 of the judgment and it is at the top of page 108 where her Honour observes in the first full paragraph:

In truth, the proceedings contemplated by s 5(1) are unique with unique procedures and with rules which apply only to the appellant. They are proceedings which the Act attempts to dress up as proceedings involving the judicial process. In so doing, the Act makes a mockery of that process and, inevitably, weakens public confidence in it. And because the judicial process is a defining feature of the judicial power of the Commonwealth, the Act weakens confidence in the institutions which compromise the judicial system brought into existence by Ch III of the Constitution.

In our respectful submission, that passage from her Honour’s judgment eloquently expresses the concern which we would express. There are similar expressions of concern. I will simply give your Honours the reference to the cases rather than reading them to you. In the decision of Thomas v Mowbray, particularly the judgment of his Honour Justice Hayne, at 477 through to 478, particularly paragraph 512, your Honour was in dissent - - -

HAYNE J: A dissenting view.

MR TANNIN: The point, with respect, is the same point that is validly made. We would also refer this Court to Fardon and particularly the judgment of his Honour Justice Gummow at paragraph 102 and the judgment of his Honour Justice Kirby at paragraph 144. We refer also in this regard to the judgment of his Honour Chief Justice French in K-Generation, particularly the passage at paragraph 88 at page 344. Similarly, Grollo v Palmer at page 365 in the judgment of their Honours Chief Justice Brennan, Justices Deane, Dawson and Toohey, and also in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs, the judgment of his Honour Chief Justice Brennan and Justices Dawson, Toohey, McHugh and Gummow at page 16 and the judgment of her Honour Justice Gaudron at 21 and 22.

The protection of the institution and integrity of the federal judicature is integral to the operation of the rule of law. That is the basis of the concern that we have in relation to the creation of the Australian Military Court as a court. In our submission, this submission we make is entirely consistent with the emphasis in the authorities that deal with military tribunals under 51(vi) as being tribunals outside the federal judicature. That is the point in R v Cox; Ex parte Smith that his Honour Justice Dixon was making. It is the same point that is picked up in the majority judgment of Tracey, particularly at page 573 in the judgment of their Honours Justices Brennan and Toohey.

Can I respectfully answer the questions that the Court posed. In relation to question one, what head of power is relied on to support the enactment of section 114 through to 121, adding the other divisions I have referred to? The answer is, no head of legislative power supports the enactment of those provisions or Divisions 2 and 2A of the Discipline Act.

GUMMOW J: Some of the authorities you have referred us to do not go back far enough, if I can put it this way. If one looks at the British Imperial Oil Case, which is the first of the taxation cases, in [1925] HCA 4; 35 CLR 422, it was held there that the old board of appeal was purportedly exercising the judicial power of the Commonwealth but it was not a court and therefore it was invalidly constituted.

MR TANNIN: Yes, I have given your Honour examples, not an exhaustive list.

GUMMOW J: Yes. So the mere fact that a body is exercising judicial power does not make the body a court.

MR TANNIN: No, but the point is here, it is created as a court.

GUMMOW J: But that is the question.

MR TANNIN: Yes.

FRENCH CJ: There may be two issues. The question is, is it a court for the purposes of Chapter III? Is it a court in a more generic common law sense? Is your argument really about badging? I am not trivialising it by saying that, but in the sense the designation “court” for a body created outside Chapter III raises a question of validity. If it were called the Australian Military Tribunal, what other changes would have to be made to - - -

MR TANNIN: It is not just that change. It is what this tribunal is then doing. It is adjudicating in a particular way in a context in this case. We have not really landed this case onto its facts, but we have an allegation in this matter that the plaintiff committed an indecent assault on a person in Queensland. It is an offence under the laws of Queensland to do that. There is entirely a competent and appropriate jurisdiction within which that matter could be prosecuted.

BELL J: Is that not a point that was taken up in White as to the difficulty in this context of looking at offences by reference to their ingredients. True enough it is this allegation would answer the description under the law of any State or Territory in Australia of being an indecent assault, but the conduct has particular significance in the context of military discipline. It might be viewed very differently if the same episode had occurred at a motel one evening in the course of a bucks night amongst a group of bank officers or what have you. It is something about the circumstance that this conduct occurred by a leading seaman, vis-à-vis a superior officer, in the presence of other members of the military force. For my own part I do not see the facts of this case as particularly enhancing the argument based on the scope of section 61.

MR TANNIN: We, in embarking there, go to the second area of my submissions in relation to what connection this has and our submission is that there is no disciplinary purpose served in this context where the plaintiff appears no longer a serving officer.

BELL J: So you can behave in a way designed to humiliate a superior officer and then if you get caught you can resign and that is the end of the matter in terms of the interests of military discipline?

MR TANNIN: Well, I do not want to put it so starkly, but if your Honour goes to the actual charges made against the plaintiff, the first is a charge of committing an act of indecency. The second is a charge of assault upon a superior officer. In relation to the assault upon a superior officer we have conceded there would be some service disciplinary connection. But in terms of the act of indecency that is really doubtful, with great respect. An indecency charge – especially here – has as a particular of the charge that the plaintiff was acting in company with other persons, but nothing in the statement of agreed facts suggests that those other persons have been charged. There is no connection of that kind where you might have co-defendants.

The indecency charge is particularised as an indecent assault on an identified individual, namely a sergeant who happened to be obviously a superior officer. But it is not an element of the indecency charge that the sergeant in question was a superior officer. That is not what is charged. The only link between the elements of that offence of indecency and the defence force itself is that the plaintiff once was a member of the police service and any form of disapproval of the allegation in societal terms is entirely and appropriately dealt with in the civilian courts.

HEYDON J: Just one small factual matter, the ranks of the people involved are all set out in relation to the first charge. Did you not make a submission that the fact that it was a superior officer was immaterial to the charge?

MR TANNIN: But it does not appear to be, with respect. It simply picks up a charge of indecent assault.

HEYDON J: Did something on “[number] Sergeant [blank’s] forehead” and the charged person is a leading seaman.

MR TANNIN: But that is only a particular, with respect. The elements of the offence are that there was an indecent assault upon another person.

BELL J: But the point is that the character of the indecent assault is relevantly different in a military context.

MR TANNIN: With great respect, that is accepted, but that is dealt with by the second charge which has as its element an assault upon a superior officer. It is the same assault and - - -

HAYNE J: Take out the element of superiority. As was pointed out in White, the defining characteristic of armed forces is disciplined forces organised hierarchically. Now, acts of the kind alleged here may – they may not – go to the disciplined aspect. They may also in this case, because of the hierarchy of the participants, engage notions of disciplined forces organised hierarchically. But as a disciplined force is there a sufficient connection between these events in their context serving personnel all together, this conduct occurring? Now, yes, there is a debate about whether there is a sufficient connection with military discipline. I understand that. But the bare attribution of the title “indecent assault” I would suggest is not conclusive of the issue.

MR TANNIN: Our submission is that the prosecution of the indecency charge against the plaintiff in this context does not serve a disciplinary purpose. One can argue that any form of infringement within the armed services has some connection simply because there is a need to maintain discipline, but in terms of a disciplinary purpose where the person to be dealt with, the plaintiff in this instance, had resigned, where time had passed, where there was a competent civil jurisdiction in a nation which within its borders is at relative peace, where the only penalties that could be applied were imprisonment or a fine under the Discipline Act of $500 and compare that to what is available under the Queensland formula, which I calculated by reference to their multiplier is something like $465,000, plus within the Queensland criminal system a capacity to order all forms of intervention in the criminal law, such as supervision, such as probation, such as counselling, all kinds of remedies designed to facilitate something more sophisticated in the criminal law than merely punishment, any form of discipline, any form of concern that could be had in relation to this conduct is entirely dealt with within the civil courts.

There is not a disciplinary connection in terms of the elements of the actual offence as charged. We acknowledge readily that it occurred in this particular context and there is a balance to be struck. But where the military disciplinary situation is such that a court is created, that is, when it proceeds, it is going to directly, in practical terms, impede the jurisdiction of the State courts and that that court is not a court within any proper analysis of Chapter III of the Constitution, then what disciplinary purpose is served? None.

KIEFEL J: Do you offer a bright-line for which - - -

MR TANNIN: No.

KIEFEL J: There has been some difficulty experienced in this regard in the past, but if you do not offer a bright-line, what do you suggest that this Court does?

MR TANNIN: Our principal submission is the submissions I made in relation to the invalidity of the creation of this court. In terms of how the Court approaches this matter, rather than bright-line, we would respectfully suggest that the balance of the authorities of this Court in the recent cases favours the view propounded by their Honours Justices Brennan and Toohey, that is, that there must be some form of disciplinary purpose to the exercise of the jurisdiction. It is set out in paragraph 10 of our original submissions that we contend that insofar as section 61(3) of the Discipline Act purports to apply to the plaintiff in the circumstances of this case, the offence which is described at section 60(2) of the Crimes Act (ACT) is not supported by section 51(vi) of the Constitution or any other head of legislative power. So that is the limit of the submission we make.

FRENCH CJ: Thank you, Mr Tannin. Yes, Mr Solicitor.

MR GAGELER: Your Honours, can I start with the extremely tedious but I promise very short topic of the correct version of the legislation to be looking at. The bottom line is the correct version, in our submission, is that which was in force as at 1 October 2007 and that your Honours ought have in a volume of legislative materials that was provided to you yesterday. To explain why that is so, I - - -

HEYDON J: By that you mean a document that has the Defence Force Discipline Act, the Defence Force Discipline Rules and the Australian Military Court Rules?

MR GAGELER: That is one, yes. There is a complete version of the Act as at what we say is the relevant date or in the relevant form at the beginning of that volume. Just to explain why that is so, I need to ask your Honours to look at a couple of pages in volume 1 of our materials and to have regard - - -

GUMMOW J: Where do we find this complete set?

MR GAGELER: I really apologise for such a boring issue arising, but it just has not been able to be resolved between us. Your Honours need also to look at pages 12 and 13 of the application book which sets out a relevant time line. I should say that what is said in paragraph 27 on page 13 it has emerged is slightly controversial in the way it is expressed and the parties have agreed on a document that sets out more precisely what occurred and we will provide that to your Honours after lunch as a supplement to the agreed statement of facts.

Relevantly, your Honours see in paragraph 17 that on 8 August 2007 the Director of Military Prosecutions charged the plaintiff, then in paragraph 22 that on 21 September 2007 the Director of Military Prosecutions requested the Registrar of Military Justice to convene a restricted court martial, but under paragraph 23 a restricted court martial was never convened.

FRENCH CJ: This is when the transitional provisions kicked in, is that right?

MR GAGELER: For the 2006 amendments, yes. Up to that point the Act was in precisely the same form as the Court has looked at it most recently in White. Then there was the 2006 amendment. If your Honours look in volume 1 of the Commonwealth materials to page 545 you will simply note that the 2006 amendment by Schedule 1 of the 2006 Act commenced on 1 October 2007. Then at page 568 one sees the relevant transitional provision, which in subitem (1) says:

if, before the commencement day –

which was 1 October 2007 –

(a) the Director of Military Prosecutions requested the Registrar of Military Justice to convene a court marital to try a charge of a service offence that was committed by a person before the commencement day; and

(b) the Registrar of Military Justice either:

(i) had not convened the court martial –

Subitem (2) applies and under subitem (2):

If this subitem applies, then . . .

(b) on the commencement day –

which is 1 October 2007 –

the Director of Military Prosecutions:

(i) is taken to have withdrawn the request; and

(ii) is taken to have requested the Registrar of the Australian Military Court to refer the charge to the Australian Military Court for trial –

That is a statutory step under section 103(1)(c) of the Act as amended by the 2006 Amendment Act, and then (c):

on and after the commencement day –

1 October 2007 –

the new law applies in relation to the service offence as if the offence had been committed after the commencement day.

And “new law” is defined in item 255 on the previous page to mean the 1982 Act as amended by the schedule to the 2006 Act. That is the provision that makes the 2006 amendment applicable. One then needs to look back to page 13 of the appeal book to see in paragraph 24 that:

On 19 November 2007 the Registrar of the AMC referred the charges against the plaintiff to the AMC for trial.

That was something he was required to do under section 118(1). In paragraph 26 that:

On 26 November 2007 the Chief Military Judge nominated the first defendant to try the charges against the plaintiff.

That took place pursuant to section 118(2).

One then sees in paragraph 27 and just explaining it slightly in the light of the expanded version that your Honours will see after lunch, what occurred on 25 March 2008 is that the matter actually came before the first defendant sitting as the Australian Military Court and at that time the legal officer who represented the plaintiff notified the court, or notified the first defendant, that an objection was being taken to the jurisdiction and he took the formal step, which he put in writing, of seeking an adjournment pursuant to section 141(1)(a)(v). That is he made what was identified as an application pursuant to section 141(1)(a)(v).

Now, he did that, it is said, without entering an appearance. There is no provision in the Rules or in the Act for an appearance to be entered in a proceeding of this nature. So, with that in mind, if one goes to the transitional provision for the 2008 amendment noting, your Honours, from page 545 of volume 1 of the materials that the amendments made relevantly by schedules 1 to 7 of the 2008 Amendment Act commenced on 20 September 2008, if one goes to page 579 - and your Honours ought note the definitions of “commencement day”, “old DFDA” and “old law” – and turning over the page to page 580:

(1) This item applies if, before the commencement day:

(a) a person had been charged with a service offence under the old DFDA –

That is this case –

(b) proceedings dealing with the charge of the offence had been commenced under the old DFDA –

That is what is controversial –

(c) those proceedings . . . had not been finally determined -

then, if that is the case, then one sees from item 4(2) that the old law continues to apply after the commencement day as if the amendments had not been made, and it is our submission that in the events that occurred, proceedings dealing with the charge of the offence had been commenced under the Act in the form that it existed as a result of the 2006 amendments.

As a matter of ordinary language, proceedings dealing with a matter are ordinarily treated as being commenced where there is the formal invocation of the jurisdiction of a body to deal with that matter. If authority for that is needed we refer your Honours to the case of Cheney v Spooner [1929] HCA 12; 41 CLR 532 at 536 to 537.

FRENCH CJ: Just so I understand where I am at with subitem (4), that is part of Schedule 8, which is in Table A to the existing Act but deals with the transitional provisions, as it were, arising out of the 2008 amendments?

MR GAGELER: I should have made that clear, that is exactly right.

FRENCH CJ: Yes, all right. Other elements of that table deal with transitional provisions arising out of earlier amendments, namely, the 2006 amendments?

MR GAGELER: They have been collected together in the current reprint, yes.

FRENCH CJ: Yes, all right.

MR GAGELER: That is right. So, your Honours, the question is, well, when did the proceeding commence? We say that it commenced when the Director of Military Prosecutions was taken to have requested the registrar to refer the charges to the AMC for trial. That is the step, the formal step, that initiates everything that follows - - -

FRENCH CJ: That is a commencement under the old DFDA for the purposes of subitem (4)?

MR GAGELER: Exactly, yes, which was a step that was taken to have occurred under section 103(2)(c) of the Act as amended in 2006. That, we say, your Honours, is the commencement. We say if that is not right then the proceedings must have commenced at least when the registrar referred the charges to the AMC for trial. That was the step under section 118(1), and it must certainly have commenced by the time that the AMC sat in fact, and when the application was made formally by the plaintiff pursuant to section 141(1)(a)(v).

Your Honours, all of that means that the relevant form of the Act is the form that I am sorry that we only gave your Honours yesterday in a complete form, but all of that is pretty much constitutionally irrelevant in this sense, that the only substantive provisions that were introduced by the 2008 Amendment Act on which the plaintiff relies in any way to support an argument of invalidity were those that were introduced by Part IX – those introduced in the new Part IX – that allows for an appeal to the AMC from a decision of a summary authority.

That topic, of course, has nothing to do with the present case, and an appeal from one service tribunal to another raises no issue that is different in principle from the appellate jurisdiction which has long been conferred on the Defence Force Discipline Appeals Tribunal since the 1950s by the Defence Force Discipline Appeals Act, which was considered by the Court in the case Hembury and noted as not involving an exercise of judicial power. The citation is 193 CLR 641 at paragraphs 13 and 33. There is one qualification to what I just said. My learned friend also says that he relies on section 131B introduced by the 2008 Act, so with those two qualifications the tedious issue does not matter very much.

FRENCH CJ: That might be a convenient moment, Mr Gageler?

MR GAGELER: It would.

FRENCH CJ: The Court will adjourn until 2.15.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.18 PM:

FRENCH CJ: Yes, Mr Solicitor.

MR GAGELER: Your Honours will have received from the parties an addendum to the agreed statement of facts. I would simply ask your Honours to note that and to put it with the papers. I do not believe that it requires any further order and I do not wish to go back to it. It is relevant only to the transitional issue that I addressed before lunch.

Your Honours, turning to matters of substance, to address those matters in a structured way I propose to deal first with the nature and scope of the power conferred by section 51(vi) of the Constitution which, in answer to the first question set out in the Court’s letter of 20 April, we say is the source of power to enact the entirety of the Defence Force Discipline Act, including its creation by sections 114 to 121 of the Australian Military Court.

I propose next to deal with the relationship between that power and the ordinary criminal laws administered in our system in State courts, that is, a broad issue that I believe to be encompassed within ground 3 of our learned friend’s case. I then propose to deal with the relationship between that power and Chapter III of the Constitution, an issue which is encompassed within grounds 2 and 3 in different ways and in that context to deal specifically with the particular problem of the designation of the AMC by section 114(1A) of the Act as a court of record. I acknowledge that is something I need to address with some particularity.

GUMMOW J: On that question of court of record, I just mention it now, there is further discussion Alexander’s Case [1918] HCA 56; 25 CLR 434 at 446, 454 to 456 and 467, in case you do not reach that this afternoon.

MR GAGELER: Yes. I was going to come to that, your Honour. The short point there is calling it a court of record did not mean that it was a Chapter III court. There is also, your Honours, while we are on that, just after Alexander there was another case, Turner; Ex parte Marine Board of Hobart [1927] ArgusLawRp 24; 39 CLR 411 where, in answer to an argument that was put by Sir Owen Dixon as counsel at 441 to 442, Justice Isaacs addressed the status of the Court of Marine Inquiry which had also been declared a court of record and said it was not a court that exercised judicial power and did not become one simply because it was called a court of record. I have jumped ahead of myself, but I do plan to say a few things about that.

Your Honours, I next, if I need to, will address the question of the relationship of section 51(vi) to section 68 of the Constitution which is my learned friend’s ground 1 and then may I deal finally with the service connection question which is really a question that goes to the scope of the power conferred by section 51(vi) in respect of the nature of the offences that can be brought within the military justice system. That is, as we read it, encompassed within grounds 3 and 6 and it is certainly the topic that Western Australia in its written submissions gleaned from those grounds and we are happy enough to have that argument. It has been floating around for a long time and it needs to be had out at some stage.

Your Honours, if I can then turn to the big picture question – that is, what is the nature and scope of the power over naval and military discipline in a time of peace that is conferred by section 51(vi) of the Constitution and that is conferred by the first limb of section 51(vi) of the Constitution. If you look at section 51(vi) it refers to the naval and military defence of the Commonwealth and of the several States – that is the first limb – and it goes on to refer to the control of the forces to execute and maintain the laws of the Commonwealth.

That the disciplinary control of the defence force is anchored in the first limb was the view of three Judges of the court in Tracey and two Judges saw it as within the second limb. We rely upon the analysis of your Honour Justice Gummow in Aird 220 CLR 308 at 58 to 61 to support the view that it is anchored in the first limb. The reference to the control of the forces to execute and maintain the laws of the Commonwealth harks to the language of section 61 – that is, the executive power is a power that extends to the execution and maintenance of the laws of the Commonwealth.

The second limb of section 51(vi) is one that supports laws in aid of that executive power and would extend to a law in aid of the protection of the internal security of the States in accordance with section 119. That is the view that your Honour expressed in Aird and it is a view that we commend to the Court. Although Justices Brennan and Toohey had originally taken a different view in Tracey, if your Honours were to look at Tyler – I do not ask you to turn to it now – [1994] HCA 25; 181 CLR 18 at page 30, it appears that those Judges, Justices Brennan and Toohey, appear to have been persuaded that the proper anchor is in the first limb and not the second.

In relation then to the scope of the power conferred by the first limb, the cases that have followed Re Tracey chronologically have tended to focus on the differences between the five Judges who constituted the majority in that case and to some extent have failed to focus on what was very firm common ground among those Judges. It is that firm common ground that I wanted to emphasise. In our submission, the cases, including Tracey but cases before Tracey and after Tracey, uniformly and, in our submission, looking at the majority in any event, unequivocally establish that the power to make laws with respect to the naval and military defence of the Commonwealth extends to the establishment of a code of discipline for the defence forces which is cumulative upon the ordinary criminal law as administered in State courts. It extends to the establishment of defence tribunals for the enforcement of that code of conduct through the exercise of what is unambiguously judicial power.

The touchstone, in our submission, in each case, that is, the constitutional reasoning that gets you to that position, is you start with the notion that section 51(vi) is a purposive power, as Sir Owen Dixon pointed out in Stenhouse v Coleman, you recognise that the purpose or end to be achieved is relatively limited to the promotion of the efficiency, good order and discipline of the defence forces – slightly different language has been used from time to time, that is essentially the purpose or end – and then you ask the usual characterisation question of whether a particular law is reasonably capable of being seen to be appropriate and adaptive to the achievement of that end. But in asking that question, you are strongly informed by historic conceptions of the nature of military authority and the relationship between the civil authority and the military authority dating back to at least the time of the Bill of Rights 1688; certainly the Mutiny Acts of 1689.

Your Honours, as to the relationship between the code of discipline and the ordinary criminal law, may I take your Honours to a couple of passages in Tracey and subsequent cases and then do the same chronologically with the Chapter III point. Starting with Tracey [1989] HCA 12; 166 CLR 518, at page 538 you see at the top of the page a statement in the judgment of three Judges:

Of course, the end to be achieved by martial law, consistently with s. 51(vi) of the Constitution, is the promotion of the efficiency, good order and discipline of the defence forces and no more. This object was made clear by this Court in Groves –

where it was said:

“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 -

I should point out also 538 further down the page after the quotation there is a further quotation from the famous judgment of Lord Mansfield in Burdett v Abbot to the same effect. Then at page 546 there is a citation from Tracey to exactly the same effect in a reference back to Burdett v Abbot, and it was by reference to that notion that at page 547 it was said that section 51(vi) did not extend to support subsections (3) and (5) of section 190 which would have, in limited circumstances, ousted the jurisdiction of State courts to deal with State offences. At page 576 - - -

HAYNE J: Sorry, just before you leave that, was that holding about subsections (3) and (5) founded in the conceptions cited from Justice Dixon at 539 at the foot of the page, where his Honour speaks of:

tribunals acting judicially are essential to the organization . . . But they do not form part of the judicial system administering the law of the land.

MR GAGELER: That is really the other point that I was going to come to. It is entirely consistent with it. It is more directly founded – certainly in the way in which their Honours reasoned – more directly founded on Lord Mansfield in Burdett v Abbot, for example, but it is all of a piece, your Honour.

HAYNE J: Yes.

MR GAGELER: At 576, your Honours see Justices Brennan and Toohey reaching exactly the same result in respect of section 190(3) and 190(5) by the same process of reasoning, that is, section 51(vi) supports cumulative disciplinary laws and not otherwise. That thought or understanding then gets teased out in McWaters v Day [1989] HCA 59; 168 CLR 289.

GUMMOW J: Just before you leave Tracey - - -

MR GAGELER: I was going to come back to it in the Chapter III context, your Honour. I have not left it alone. McWaters v Day [1989] HCA 59; 168 CLR 289 at 297. I will not read the entirety of the paragraph but it is the paragraph that begins at the bottom of the page referring to Tracey and it is said in the fourth last line:

Accordingly, a majority of the Court found that the Discipline Act was to be interpreted so as to ensure that the military disciplinary code it enacted was cumulative upon and not exclusive of the ordinary criminal law.

Then in Re Nolan [1991] HCA 29; 172 CLR 460 at page 482 the same theme is usefully returned to by Justices Brennan and Toohey. At page 482, about point 2 it is said:

The doctrine that military law is supplementary and subordinate to the general law is not expressed in the text of the Constitution any more than the doctrine of responsible government, yet both doctrines underpin the Constitution, inform its interpretation, and are calculated to secure the democratic freedom to which the Constitution and the nation it formed aspire.

There is then a reference in the next paragraph to Stenhouse v Coleman and to section 51(vi) being a purposive power. After Stenhouse v Coleman it is said:

Having regard to the history of military discipline and the terms of s 51(vi), the purpose for which the power to make a law relating to discipline of the Defence Force of the Commonwealth is conferred is to maintain the operational efficiency of the Force and to ensure that the standing Force, as an organized entity, is a buttress of, rather than a threat to, internal security.

Then on the next page at about point 4:

Once it is appreciated that the legislative power conferred by s 51(vi) is limited in the relevant respect to the creation of laws which are supplementary to the ordinary criminal law, it can be seen that no law of the Commonwealth can validly create a service offence which is inconsistent with, as distinct from supplementary to, the ordinary criminal law.

GUMMOW J: The question is, what does “supplementary” mean – as you recognise, I know.

MR GAGELER: Yes, I recognise and I hope I am dealing with it and your Honour will tell me if I have not adequately dealt with. Your Honours, what we say about that is we, of course, accept everything that is there said. Sections 190(3) and (5) held invalid in Tracey were subsequently repealed. They have not simply been left there as a redundant statement of parliamentary hope. The view has been respected and it has been adhered to in the current version of the Act, that is, the Act relevant for present purposes.

If you go to section 115 of the Act in its relevant form, you of course get a rather stark and potentially jarring impression from subsection (1), which says that subject to section 63 the Australian Military Court has “jurisdiction to try any charge against any person”. The effect of that is completely ameliorated when you have regard to the definition of “charge” in section 3, which is limited to “a charge of a service offence”. A service offence, of course, can only be committed by a person who is either a defence member or a defence civilian at the time of the commission of the offence. Nothing in the 2006 or, indeed, in the 2008 amendments to the Act has increased the range of service offences – that is, the range of service offences remain exactly as they were when the earlier defence force discipline cases were cited. One also needs to bear in mind section 96 - - -

HAYNE J: Just before you leave that, can you expand the statutory chain that leads to that conclusion? You go back to the definition of “charge” in section 3 – “charge of a service offence” – and you go to the definition of “service offence”, what is it that works the confinement to service personnel and service civilians?

MR GAGELER: Then when you go through the service offences, which you find are all addressed to a person who is a defence - - -

FRENCH CJ: That is (b)(iii) of the definition, is it?

MR GAGELER: Yes.

HEYDON J: It is (ii).

FRENCH CJ: I am sorry; you are right.

MR GAGELER: Yes, (b)(ii). The actual articulation of the offences is also addressed to a defence member and a defence civilian. It is properly (b)(ii). Does your Honour see that?

HAYNE J: Yes, (b)(ii) is dealing with ancillary offences, is it not? It is really in part (iii) where you see all, is it not?

MR GAGELER: No. It is page 10 of the print, “service offence”.

HAYNE J: Yes, and (b) is an offence that is “an ancillary offence”.

MR GAGELER: I am sorry; you are absolutely right. I was right the first time. It is the terms of the - - -

HAYNE J: So it is (a) under - - -

MR GAGELER: And when you work your way through they are all addressed to a defence member or a defence civilian, yes.

HAYNE J: And that includes, does it – we will come to that, yes.

MR GAGELER: That is right. If your Honours then go to section 96(6) you see:

A person who has ceased to be a member of the Defence Force or a defence civilian shall not be charged with a service offence unless:

(a) the period that has elapsed since the person so ceased does not exceed 6 months; and

(b) the maximum punishment for the service offence is imprisonment for a period of 2 years or a punishment that is more severe than that punishment.

That is to be compared – I do not ask your Honours to turn to it – with section 158 of the Army Act of 1881. It is reproduced in our volume of materials in volume 1 at page 459. What appears there is that a person could be charged for any offence committed under military law provided that the trial commenced within three months of ceasing to be subject to military law.

GUMMOW J: What section of the Army Act?

MR GAGELER: Section 158.

HAYNE J: Section 158(1). It is the proviso in 158(1), I think, which is what you are adverting to.

MR GAGELER: Yes, that is right.

HAYNE J: It hinges about ceasing to be subject to military law and - - -

MR GAGELER: Yes, that is right, without tracing through the detail. The point is that dealing in a period shortly after with an offence committed is something that has been there for a long time within our system. Your Honours, then under the Act as it currently stands the subordination of the military authority to the civilian authority is what is left of section 190. That is what is deliberately left of section 190(2) – this is at page 247 – and that is that the jurisdiction of a civil court to try a charge of a civil court offence – an ordinary criminal offence – is not affected by the Act.

If you turn to another section that I think has already been referred to this morning, section 144, which is at page 180, it is subsection (3) that deals with a restriction on a service tribunal being able to deal with someone who has already been dealt with by a civil court. There is no reciprocal provision that works the other way.

Your Honours, there is a question about the operation of the common law principles of autrefois convict and autrefois acquit. That issue was around at the time of Tracey. It was said in Tracey, in our submission, absolutely correctly at page 546 to have nothing to do with validity. Certainly there is a very long discussion of the topic in Professor Friedland’s book on Double Jeopardy. Professor Friedland really makes the point that nearly everyone else who had looked at the topic had thought that the principles of double jeopardy did not apply in respect of court martial convictions or acquittals. He said that he was not sure, but that really - - -

HAYNE J: But that was driven largely, was it not, by the provisions of section 162 of the Army Act which dealt with the question explicitly and in a fashion that made quite plain, did it not, that being dealt with by a court martial was no bar to being dealt with by the civil power?

MR GAGELER: That is right. I mean, it in essence appeared to codify the position that had been reached before because there is a history that goes back to 1689. But your Honour is right, that appeared to be pretty clearly the position. Professor Friedland was not sure about that and that is where the uncertainty that is alluded to in Tracey perhaps arises from, but it did not need to be resolved in Tracey and does not need to be resolved now. If there is a common law principle of autrefois convict or acquit that would otherwise be applicable, it is something that can be altered by State law.

HAYNE J: Maybe, but the question which you will have to come to in relation to the Chapter III point is whether making this body a court of record has that effect, but that is in that territory.

MR GAGELER: I am coming to that, but the short answer to that, your Honour, is we have found no authority – I am not saying none exists – but we have found no authority to suggest that making a body a court of record as distinct from a court that is not a court of record or some other body that exercises judicial power, we have found no authority to suggest that that has an impact on the question of whether autrefois acquit or autrefois convict applies in respect of the proceedings.

HAYNE J: You are right, because the question may be not whether it is a court of record, but whether it is a court properly so called, and court of record may be simply an amplification of the status which leads to the engagement of the plea in bar if subsequent proceedings are taken in another court, but these are joys to which we come.

MR GAGELER: Yes. I am not shying away from them, I am getting there and I am getting there pretty quickly because I will go back to Tracey at this point and I will do the Chapter III bit.

GUMMOW J: For what is Tracey authority?

MR GAGELER: Well, I hope to the propositions that I stated at the beginning, your Honour, which I am hoping to make good. What I am trying to show is that five Judges adhered pretty clearly to the views that I have expressed, that is, as to the nature of the power as to its limitation in the sense of being cumulative upon the ordinary criminal law, but insofar as it is cumulative upon the ordinary criminal law, allowing for the administration for what is undoubtedly judicial power in - - -

GUMMOW J: I think this expression “cumulative” can give rise to problems. If one looks at the argument in Tracey and Mr Doyle, the solicitor for South Australia at page 524 about point 4, there is a couple of sentences there which the reporter has extracted which seem to me to perhaps hit the nail on the head:

The judicial power of the Commonwealth does not extend to the enforcement of discipline in the defence force. Military law was always considered to be distinct from the ordinary law of the land. Military tribunals were never regarded as part of the judicial system.

So notions of accumulation are rather confusing really. You are in parallel universes; you are not in cumulative universes, if I can stretch things that way.

MR GAGELER: Your Honour, I got into this debate with Mr Street.

HAYNE J: Professor Hawking is very ill at the moment.

MR GAGELER: Your Honour, metaphors are probably unhelpful.

FRENCH CJ: Mr Street has been there before and we tried to usher him out of the parallel universes.

GUMMOW J: They are concurrent, rather than cumulative, that is the notion I am trying to convey.

MR GAGELER: I will accept concurrent works, your Honour, and I will use that terminology. If your Honours turn to page 537 - - -

GUMMOW J: Then this notion of supplementation again is apt to mislead for the same reason.

MR GAGELER: Concurrent, your Honour, is the word I will use.

HAYNE J: But it all stems from this notion that when an Englishman becomes a soldier he does not thereupon leave being an Englishman, et cetera, and all of these wonderful orotund phrases that are obscure.

MR GAGELER: Exactly. I beg to differ, your Honour. That is the language of Lord Mansfield and it really, in my respectful submission, illuminates.

HAYNE J: Yes.

MR GAGELER: At page 537 about point 3, the first full paragraph there, it is said:

It will be evident from the foregoing that in trying offences under Pt III of the Act, a service tribunal has practically all the characteristics of a court exercising judicial power.

In the next paragraph there is a reference to Davison. Then it is said:

It is sufficient to say that no relevant distinction can, in our view, be drawn between the power exercised by a service tribunal and the judicial power exercised by a court. Nor do we think - - -

GUMMOW J: The problem with that analysis is it is an ahistorical treatment - oddly enough, given the reference to Davison, it is an ahistorical treatment of this question.

MR GAGELER: It is a functional treatment.

GUMMOW J: Exactly.

MR GAGELER: It is not the entirety of the analysis. It is just accepting, as I accept, that functionally what one has is an exercise of judicial power. Indeed, it was accepted here, and I believe – I will get to White - but I believe accepted in the joint judgment in White that it is proper to describe what a court martial traditionally did as an exercise of judicial power, simply not the judicial power of the Commonwealth, but it is an exercise of judicial power.

FRENCH CJ: Is that to be distinguished from a tribunal that acts judicially?

MR GAGELER: Yes. Indeed, that distinction is made really at the bottom of page 537. There is a reference to White which is, of course, a tribunal acting judicially but their Honours said, well, that is not really a sufficient analysis to support a defence tribunal. One cannot simply treat it as sufficiently close to a disciplinary tribunal, as to say that it does not really exercise judicial power – a domestic disciplinary tribunal. Then at page 540 it is said at the top of the page that the real question – this is being read to your Honours:

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. The question - - -

GUMMOW J: I think there was because that is what Mr Doyle was talking about, I suspect on one branch of his argument, anyway.

MR GAGELER: Your Honour, the problem is that we only have Mr Doyle’s argument in an edited - - -

GUMMOW J: I have not been through all the other arguments, but I suspect there was.

HAYNE J: It reflected what Justice Dixon said in the passage I referred you to earlier at 539 that the courts martial are not administering the law of the land.

MR GAGELER: It is exactly right.

HAYNE J: Yes. So in what sense are we talking about them exercising judicial power? When we are in a constitutional context what are we saying when, if he said, “Well, they’re exercising judicial power”, in what constitutional sense are we using that phrase?

MR GAGELER: They are making determinations of rights and liabilities under a Commonwealth law. They are determining whether or not a person committed an offence under a Commonwealth law.

CRENNAN J: Making a binding decision.

MR GAGELER: Making a binding decision as to the existence or non-existence of a service offence. In that sense, with consequences – I know consequences do not necessarily determine the existence of judicial power or not – but consequences that are very similar to consequences that flow from a conviction in a criminal court; not exactly the same but can be very similar. In that sense they traditionally have exercised judicial power. Indeed, that is the point that the joint judgment made directly after - - -

GUMMOW J: The judicial power of whom?

MR GAGELER: Not Chapter III judicial power.

GUMMOW J: No, the judicial power of whom?

MR GAGELER: Judicial power conferred by a Commonwealth law that does not answer the description of the judicial power of the Commonwealth for the purposes of Chapter III of the Constitution.

HAYNE J: Which brings me back, Mr Solicitor, to what is the significance you are seeking to attach to the use of the phrase “judicial power” in this context? It seems to me you shy from saying the judicial power of a polity or shy from attributing the judicial power as possessed or stemming from somebody or thing, so in one sense are we using the phrase? We understand judicial power of the Commonwealth because we observe it in Chapter III.

MR GAGELER: Yes.

HAYNE J: Now, what is this competing phrase that is injected? What is the baggage train that is following it, beyond the notion these people have to act fairly? That I understand. They have to act judicially.

MR GAGELER: No, it goes beyond that. It goes beyond that to a recognition of what they are doing acting fairly and what they are doing acting fairly is making a binding determination of rights or liabilities. They are applying the facts to the law to determine whether an antecedent event gave rise to a liability under the Defence Force Discipline Code.

CRENNAN J: Are you saying that there is a judicial power which is a valid expression of the defence power?

MR GAGELER: Yes, and that is what was said in this case and has been said subsequently and was said earlier.

FRENCH CJ: What is the utility, given that we have this problem that we have a Constitution which speaks of the judicial power of the Commonwealth and that concept is really embedded in Chapter III? Now, when we are talking about these bodies exercising judicial power, we are not talking about the judicial power of the Commonwealth. That seems to be common ground. So it is being used in some generic sense, but to what end? What is the point of doing it? Why not just call it a judicial-like power or something? What is the point of it?

MR GAGELER: Your Honours, it could be done several ways. What one could say it is not the judicial power of the Commonwealth, therefore we will say it is not judicial power at all. That is said in this case to be an unrealistic way of looking at it. It was picked up in the joint judgment in White. But Harrison Moore was saying the same thing in 1910, certainly the second edition of his book. I have not looked at the first edition. What he was saying is, look, there are some things that if you looked at in the abstract functionally you would say it is judicial power and if you look at our Constitution it says judicial power of the Commonwealth goes into Chapter III, but not everything. There are some things that have to be approached historically.

GUMMOW J: I understand all that. How do you get this out of the defence power other than historically?

MR GAGELER: You do not, that is right. You do not, but it is the same - - -

GUMMOW J: Do you get it out of divorce and matrimonial causes, for example?

MR GAGELER: No.

GUMMOW J: Can there be legislative matrimonial causes courts?

MR GAGELER: You do not have a constitutional tradition going back to 1688 in respect of any of those things. That is the point. I quite deliberately read the passage from Nolan [1991] HCA 29; 172 CLR 460 at 482 to the effect that the – I was going to say supplementary nature, but that is not the right word – but the concurrent nature of the discipline power is not something that you get from the text of the Constitution. It is something that you get really from the extraordinarily strong and consistent constitutional tradition that informed the frames of the Constitution. That is the point they are making.

GUMMOW J: That is what we said in White, but to different effect. The question then is, what is the utility of drawing this notion of judicial power out of the defence history which is outside Chapter III?

FRENCH CJ: I think that is the question I just asked also.

GUMMOW J: That is what the Chief Justice was asking as well.

MR GAGELER: What is the utility of doing it?

GUMMOW J: Other than for some other purpose you have of strapping up some section.

MR GAGELER: Of course I am here to advocate a position, your Honour, but I am seeking to do it in a principled way.

FRENCH CJ: It is a serious question. Given that it is not engaging with Chapter III, what purpose does it serve of a constitutional character or to advance your argument to characterise what these courts do as the exercise of a judicial power?

MR GAGELER: Where I am going is, I wanted to point out that over and over again the Court has said, or certainly a majority in this Court has said let us not be squeamish about calling a spade a spade. What a court martial does, what a defence force magistrate does is exercise judicial power. It is just not Chapter III judicial power.

GUMMOW J: That is what we are trying to get at.

MR GAGELER: That is what I was going to get from these passages, your Honour. If that is what I legitimately get from the passages – I want to go a little bit more, but that is basically what is said – then where is the squeamishness in calling the thing that exercises the judicial power a court? Court of record is more problematic and I have got something to say about that, but whether it is - - -

FRENCH CJ: Does it raise a barrier against its transposition into other heads of power because it is rooted in the history of 51(vi)?

MR GAGELER: Absolutely. I am not trying to bootstrap - - -

FRENCH CJ: I am just asking whether judicial power might have that use in this context. In other words, that it is rooted in the history of military discipline in which 51(vi) is, as it were embedded, and you cannot translate it into other heads of power.

MR GAGELER: It is no part of my argument to start down some slippery slide that will translate the particular constitutional historical position that the control and discipline of the forces to some other head of power. For a start I would not be acknowledging that it is only cumulative upon or supplementary to State law.

FRENCH CJ: What I am putting to you is that maybe the characterisation – this is not against you, necessarily – the characterisation of what these tribunals do as judicial power may be a drag on any attempt at transposition into other heads of power.

MR GAGELER: Yes, indeed and really what I am trying to say – and I will do it quickly – is that this has been said over and over again and it is a position that is unique to the exercise of the first limb of section 51(vi). It does not have implications for other heads of power in section 51 of the Constitution at all. That is what is said at 540 of Tracey.

GUMMOW J: But it does have this peculiar bailiwick of its own that does raise questions of interface with the general law that Justice Kiefel was raising this morning, does it not?

MR GAGELER: Yes, and they are questions that I had in part addressed already, and that I intend to keep addressing. There is a real question as to what implications for the general law designating the body as a court of record may have, and I am going to get to that fairly soon. If I can very quickly give your Honours the other references, 540, I have given you the first reference, then on the same page immediately after the quotation is a sentence that begins “Although”. I will not read it. Then further down the page, again a lengthy passage which I will not read but is important, that begins:

The presence of Ch. III means that, unless, as with the defence power, a contrary intention may be discerned, jurisdiction of a judicial nature must be created under Ch. III –

and so it goes on over the page to the end of that paragraph. My point is - and it is not a point that transposes to another head of power in section 51, that is read in the light of this history - a contrary intention is to be discerned in section 51(vi) of the Constitution to the general position of judicial power needing to be reposed in Chapter III.

GUMMOW J: I do not want to keep interrupting, but this notion of contrary intention throws up the question we have been debating. This invocation of the necessity of a contrary intention, that raises the same debate again and assumes it.

MR GAGELER: That is right. I must say, most people who have looked it have assumed that, your Honour, and one sees that at the top of page 572, for example.

GUMMOW J: We cannot be controlled by most people, Mr Gageler.

MR GAGELER: The passage in the judgment of Justices Brennan - - -

GUMMOW J: Let alone by Lord Scarman, talking about the British system at some stage.

MR GAGELER: Yes. Your Honours see what is said by Lord Scarman and what had earlier been said.

GUMMOW J: But in what context was he saying that?

MR GAGELER: He was not saying it in a Chapter III context.

GUMMOW J: Some dispute with the BBC?

MR GAGELER: It is not clear. But the Americans had said it, your Honour, in 1857 in a relevantly similar constitutional setting. Sir Harrison Moore - - -

GUMMOW J: We would not want to get into the role of the Commander-in-Chief of the United States Constitution, would we?

MR GAGELER: We are not going to.

GUMMOW J: No.

MR GAGELER: What Sir Harrison Moore said is then across the page and I think your Honour has picked it up in White. I will not read that either, but it is making clear that what amounts to the judicial power of the Commonwealth for the purposes of Chapter III of the Constitution is strongly informed and relevantly informed in this precise context by longstanding constitutional usage and that leads to what is said at the bottom of page 574. I will not read the entirety of the passage but it begins with the sentence, “As the defence power authorizes the Parliament” and the last sentence there before the next heading says that:

when that jurisdiction falls to be exercised, the power which is exercised is not the judicial power of the Commonwealth; it is a power sui generis which is supported solely by s 51(vi) for the purpose of maintaining or enforcing service discipline.

GUMMOW J: That one can understand, the phrase “power sui generis”.

MR GAGELER: If your Honour joins the dots, what is said at the top of page 572, that point is the point that I wanted to get to. Your Honours, I thought that that had been the reasoning adopted in the joint judgment in White. If not, then it is something very close to it. That is [2007] HCA 29; 231 CLR 570. Starting at 595 at paragraph 50 there is a reference to Justice Starke asking in Elias and Gordon:

whilst the court martial had exercised “judicial power”, had it exercised “the judicial power of the Commonwealth” –

Answer, no. Then there is a reference to Dynes v Hoover, and it is said in paragraph 51:

In this way, generally expressed theories respecting the content of “judicial power” are accommodated to the constitutional term “the judicial power of the Commonwealth”.

GUMMOW J: It is really paragraph 58 on page 598, I think.

MR GAGELER: Yes, that is the point we embrace, your Honour. That is where it all leads. On the way there, your Honours might note at paragraph 52 where what is identified as the “decisive consideration” appears. Again, I will not read the entirety of the paragraph, but the decisive consideration is the historical one and it is said, part way through the paragraph:

Those military and naval justice systems –

which had existed historically –

were directed to the maintenance of the defining characteristic of armed forces as disciplined forces organised hierarchically.

That was said to be the defining characteristic which gave rise to the decisive consideration taking the establishment of the bodies administering that discipline outside the scope of Chapter III, even though considered functionally, what they were doing historically could be considered to be an exercise of judicial power. That is the point. Where I go from there - - -

HAYNE J: The reference to “considered functionally” could be the exercise of judicial power as an appeal to that notion of abstract reasoning alone which Justice Kitto warned against, is it not?

MR GAGELER: That is right.

HAYNE J: And thus we have been over the debate of what utility we get out of referring to it as judicial power alone when, if that is an appeal to abstract reasoning, we are told - - -

MR GAGELER: You take it into account. It is a bit more than that, your Honour – absent the history. Absent the history it would very easily be treated as an exercise of judicial power.

HAYNE J: I would suggest that the relevant starting point in White is paragraph 44 and the ending point is paragraph 58.

MR GAGELER: Certainly the ending point is paragraph 58, your Honour, yes.

HAYNE J: In 44 it is a question of “the judicial power of the Commonwealth”, not judicial power.

MR GAGELER: That is right. For Chapter III purposes the question is, is it judicial power of the Commonwealth? Absolutely. Your Honours, the point that I am about to make is that if you look historically and also to the contemporary position – I just wanted to go to Canada but also note Europe – the position historically has been that the military justice system has operated with a very high degree of independence from or separation from the command structure. I want to make that point about the position historically and I also wanted to make the point very briefly in relation to Europe and Canada, to which we have referred to in footnote 15 of our submissions, as providing the impetus for the move that one sees towards a more independent tribunal introduced with the Australian Military Court, and what is recognised in the cases that are referred to in footnote 15 of our submissions is a need for and an ability for military justice systems in comparable countries, England and Canada, to adjust to more modern standards of independence and impartiality while still maintaining their separate but very distinct military structure.

HAYNE J: You said this has always been a feature of the Australian military discipline?

MR GAGELER: To a degree, and I want to make that good, your Honour.

HAYNE J: Sections 86 and 87 of the Defence Act 1903 as originally passed, I would have thought, would represent a rather large hurdle in the way of that proposition.

MR GAGELER: I am just going to show your Honours by reference to the Act as it was immediately before the 2006 amendments how I make that proposition good. It is not a universal proposition, but there was a very high degree of independence.

HAYNE J: You stated it as one of great longevity and what I am putting to you, Mr Solicitor, is that from 1903 it was quite plain that it was the Governor-General that convened courts martial, appointed officers to constitute them, approved, confirmed, mitigated or remitted sentences and delegated those functions down the military command system.

MR GAGELER: Yes, but even within that system, your Honour, even with that system the oath that was taken and the practices that were implemented were court-like practices and I will show your Honour that in a moment. I want to just take you to one of the cases which are referred to in footnote 15. It is the case of Genereux in the Supreme Court of Canada [1992] INSC 17; [1992] 1 SCR 259. There are just two very short passages I wanted to refer to - one at page 295 in the judgment of Chief Justice Lamer.

GUMMOW J: We have the Dominion Law Reports. We have 88 DLR (4th) 110 and they did not have paragraphs in those days.

MR GAGELER: Can I tell you the Supreme Court references and I will not try to read them, probably hopeless. They are 295 and 308 of the Supreme Court Reports. I will give your Honours the references in the Dominion Law Reports.

GUMMOW J: Just a minute, what is the nearest heading in Chief Justice Lamer’s judgment?

MR GAGELER: “The purpose of a system of military tribunals”.

FRENCH CJ: That is at page 135 of the Dominion Law Report, I think.

MR GAGELER: Thank you. Then there is page 136, letters g to h – that is the first passage that I wanted to mention and the other passage - - -

FRENCH CJ: This is in the context of the impact of the Charter?

MR GAGELER: Requiring an independent and impartial tribunal. The other is under the heading “Institutional independence” which begins at page 146 and at line f there is the statement:

The idea of a separate system of military tribunals –

from there to the end of that paragraph. What was identified here was a number of respects in which the general court martial system was seen to lack a sufficient degree of independence and impartiality to survive Charter muster.

It is interesting that when you go to the decision of this Court in Tyler [1994] HCA 25; 181 CLR 18, what you see at page 22 developed in the argument of Mr Katz, who was appearing for the Attorney-General of New South Wales, was an argument based on Genereux and the argument was almost the inverse of the argument with which your Honours are faced here, and that is that the argument was, in effect, that section 51(vi) did not support the court martial system that earlier existed in Australia because it was not sufficiently independent and impartial. The answer to that was given by Justices Brennan and Toohey at pages 32 to 33 and that is an answer with which Chief Justice Mason and Justice Dawson agreed at page 27, and that is that the requirement of independence and impartiality was not one that was necessary for Australian constitutional purposes. But they say at the top of page 33:

In any event, the constitution of a general court martial pursuant to the Act answers the requirement of independence of a service tribunal exercising disciplinary power.

They give then a number of features of the system as it had evolved to that time. Where I am going with this, your Honours, is that one ought not overstate the extent of the changes that were brought about by the 2006 Act. There has a been a significant move to a greater degree of independence and impartiality from the command structure, but under the scheme of the 1982 Act as it existed before the 2006 amendments, the courts martial and defence force magistrates acted very much in a court-like manner, and under the scheme of the Act after the 2006 amendments, the ANC for all its court-like characteristics is still very much a service tribunal. I just wanted to take your Honours to a couple of sections in the Act as it previously existed and in the Act as it currently exists to make that good.

If you look in volume 1 of our original materials, what is given is extracts from the Act as it existed immediately before the 2006 amendments. Just focusing on the position of the court martial, if your Honours go to section 134(1), it said that:

In proceedings before a court martial, the judge advocate shall give any ruling, and exercise any discretion, that, in accordance with the law in force in the Jervis Bay Territory, would be given or exercised by a judge in a trial by jury.

FRENCH CJ: I am sorry, this is volume 1, the page number and the volume?

MR GAGELER: Volume 1, page 126.

FRENCH CJ: Thank you.

MR GAGELER: Section 134(1). The ruling was made binding on a court martial by subsection (4). If you then turn back to section 133, subsection (1) said:

Subject to section 134, in any proceeding before a court martial:

(a) the President shall preside; and

(b) every question shall be determined by the members of the court martial.

It was a majority of votes that determined the question under subsection (2). Subsection (6) said:

Notwithstanding anything contained in this Act, the members of a court martial:

(a) in determining the question whether an accused person:

(i) is guilty or not guilty of a service offence . . .

shall sit without any other person present.

If your Honours could then perhaps keep that Act to hand but go to the Rules made under it at that time. The Rules are behind the second tab in the bundle that contains the Act in the relevant form. So behind the second tab your Honours should note Rule 31(a) defining the functions of a president. This is page 25 of the print behind the second tab, Rule 31(a). Similarly, the functions of a judge advocate, Rule 32(b). Then over the page Rule 35 requires in Sub-rule (1) the taking of an oath by members of a court martial. Then in sub-rule (2) the oath is spelt out:

is an oath or affirmation that the person –

comprising the court martial –

will duly administer justice according to law without fear or favour, affection or ill-will, that the person will well and truly try the accused person or persons before the court martial according to the evidence and that the person will not disclose the vote or opinion of any member of the court martial unless required to do so in due course of law.

That form of oath has an ancient lineage. It is the form of oath with slight modernisation that was in the Army Act 1881 but goes much further back than that. In our material in volume 2 on the development of military law, if your Honours go to page 154 – this is an extract from Clode, I think. On page 154 you can see in the paragraph numbered 70 that the second part of that oath was introduced in 1748 and that the reason given by the Secretary at War was:

That though it would be impossible to have the Members of the Court-martial independent of the Commander-in-chief, yet as the best method of preventing his influence being used, this oath was adopted –

Your Honours will note then what Clode says in a different constitutional context, but within the same overall constitutional tradition dating from the Bill of Rights and the Mutiny Acts that a court martial, notwithstanding the terms of this oath, is a court of justice competent to try the guilt or innocence of persons liable for the Mutiny Act.

If your Honours then turn back to the Act as it was before the 2006 amendments, section 53 dealt with contempt of a service tribunal by a defence member or a defence civilian. What one sees – and there are various forms of contempt – in section 53(4)(d) was that a person who is a defence member or a defence civilian was guilty of an offence if the person:

engages in any other conduct that would, if a service tribunal were a court of record, constitute a contempt of that court.

An attempt to influence the court martial in the exercise of its jurisdiction to determine a service offence would have given rise to a service offence if committed by a person who was then a defence member or a defence civilian.

Separately, under the Defence Act as it then existed - your Honours have an extract of the Defence Act in a little bundle called “MATERIAL FROM LIST OF AUTHORITIES AND SUBMISSIONS OF THE COMMONWEALTH OF AUSTRALIA”. Section 89 as it then existed is on the second-last page and section 89(1)(d) created a similar civilian offence for any person who did any “act or thing that would, if a service tribunal were a court of record, constitute a contempt of that court”. That is civilian offence for which jurisdiction existed under section 39(2) of the Judiciary Act and section 68 of the Judiciary Act in the ordinary courts.

HAYNE J: If we are to have regard to the state of affairs that existed before the creation of the Australian Military Court, do we need to take account of the process for review of decisions of courts martial?

MR GAGELER: Yes, your Honour, that was different.

HAYNE J: Not only was it different; it was automatic, was it not?

MR GAGELER: Yes.

HAYNE J: It was review by a person appointed by, in effect, the chief of the relevant service and there was a very elaborated provision for review of every decision by a court martial, was there not?

MR GAGELER: Yes, it was by the Judge Advocate General, an ancient office - - -

HAYNE J: I think that if we are to take account of the proposition that courts martial before these changes were in pari materia with the Australian Military Court - - -

MR GAGELER: I do not take it that far, your Honour. I am not going that far.

HAYNE J: Let me just understand how far you are going, Mr Solicitor, because I understood you to say that the Australian Military Court was not relevantly different in many respects from the degree of fairness and judicial-like process that was undertaken by courts martial. Is that right?

MR GAGELER: Ultimately not relevantly different for constitutional purposes, but it is more independent - - -

HAYNE J: Not only more independent. The question of whether the decision of a court martial was final would, it might be thought, be not unimportant to determining what comparison may be drawn between courts martial under the old system and the system under the Australian Military Court.

MR GAGELER: Yes.

HAYNE J: Correct me if I am wrong, decisions of the Australian Military Court are not subject to review in the same fashion as are decisions of subordinate authorities, are they, or summary authorities?

MR GAGELER: They all feed into the same chain that ends with the defence force disciplinary tribunal.

HAYNE J: I am not sure that encapsulates it at all, Mr Solicitor. May we properly have regard to the differences between the position of a court martial whose decisions were subject to automatic review when making any comparison with the position of the military court?

MR GAGELER: Yes, I accept, your Honour, that is a difference. It is a difference that is highlighted in the written submissions, yes. I am naturally, for my own purposes, seeking to emphasise the court-like characteristics of the court martial. There were other aspects of the process, I fully accept, including the one that your Honour identifies, that are significantly different under the current system. I accept that.

If your Honours look at section 53 again, I had highlighted one aspect of the contempt offence created by section 53(4)(d). Your Honours ought also note the range of conduct that was treated as a contempt of the tribunal, therefore is a service offence able to be the subject of a charge dealt with by a service tribunal - subsection (1), subsection (2), subsection (4), particularly (a), (b) and (c), which would all be generally thought of as contempt in the face of the tribunal, and subsection (5), which was an ability to deal with that conduct in the course of the hearing in which it occurs.

KIEFEL J: Do you place any emphasis upon the provision for a maximum punishment? Does that have any relevance for the purpose of your argument?

MR GAGELER: Yes.

KIEFEL J: Perhaps later on?

MR GAGELER: Perhaps later on.

KIEFEL J: In relation to the Chapter III point.

MR GAGELER: It is the same in the current version of the Act and what I will be saying, your Honour, when I get to the current version of the Act is that when one looks at the structure, and it is not very different in section 53 as it currently stands, what one sees is a codified procedure for dealing with contempt. One does not get out of the designation of the body as a court of record some additional power to deal with contempt. It is all there in the Act, this much and no more. It is all there in the Act so far as defence members and defence civilians are concerned. That is what section 53 said and continues to say. Insofar as conduct might be engaged in by someone who is not a defence member or defence civilian and that conduct would amount to be contempt by conduct, it was dealt with in section 89 of the Defence Act and continues to be dealt with in section 89 of the Defence Act.

If you look then to section 132 at page 124 of that print it dealt with trial by a court martial. One sees a court-like process set out. If you look at section 137 there was a right to representation before a court martial, section 140 a requirement generally for proceedings to be in public. Section 141 allowed for a range of objections including section 141(2)(b) and (c) dealing with an objection to the Constitution at the tribunal on the ground of bias. Section 146 required application of the rules of evidence. Again, that was a very ancient provision. Section 148 required the keeping of a record and section 193, which is at page 166 gave protection in similar terms to the current version of section 193.

If you could then go to the position of the Australian Military Court after 2006, and again here I am seeking to emphasise its military nature. Your Honours were referred to section 188AR which in the print we have given your Honours is at page 255. The qualifications for military judges involve not only being a member of the defence force but paragraph (1)(d) and paragraph (2)(d) meeting individual service deployment requirements undefined, but meaning being sufficiently fit and able to be deployed on military service.

If you look to section 188AZ, the Governor-General was or is able to terminate the appointment, amongst other things, if the person is no longer able to meet those individual service deployment requirements. That is (1)(c). And a military judge, under subsection (2), ceases to hold office if ceasing to be a member of the Defence Force. Section 117 allows the military court to sit at any place in or outside Australia. Section 68, which is at page 76, sets out a scale of punishments, which is a distinctly military scale that is in the range and nature of the punishments that can be given for a service offence.

Section 70 requires a service tribunal in giving sentence, subsection (1)(b), to have regard to the need to maintain discipline in the defence force. Section 123, page 162, eligibility for membership of a military jury is restricted to members of the defence force who are not lower in rank than an accused and, in any event, not lower in rank than a warrant officer. That is basically what you get out of section 123.

our Honours, does the designation of the Australian Military Court as a court or as a court of record have any disqualifying effect, that is, does it take it outside the scope of the power conferred by section 51(vi) and put it within the space that can only be occupied by an exercise of power under section 71 of the Constitution?

So far as parliamentary intention is concerned, and we say it is relevant, if you look at the context in which section 114 appears, that is indeed in its immediate context, section 114(1A) follows on from section 114(1) which creates the Australian Military Court and then is followed by two notes, obviously not operative but indicative of parliamentary intention that would otherwise be apparent in any event from the constitution of the court under Part XI and that is the members of the court - - -

FRENCH CJ: What intention do you mean by that? To state the Australian Military Court is not a court for the purposes of Chapter III of the Constitution is a conclusionary statement, is it not?

MR GAGELER: Of course.

FRENCH CJ: So how can it help us with interpretation?

MR GAGELER: There is no intention to set up a body with the capacity to exercise the judicial power of the Commonwealth.

FRENCH CJ: Whether such a body exists or not depends upon its composition, its functions and so forth. I just do not quite see what function the note has, how it helps us.

MR GAGELER: I am not being circular. Your Honour is right, but in interpreting the functions, the nature of the functions conferred, one has in mind that such functions as are conferred are not sought to be conferred on a body exercising the judicial power of the Commonwealth. That is what I get out of the parliamentary intention. One also has to recognise that section 114 is followed immediately by section 115 which defines - in our respectful submission exhaustively defines - the jurisdiction of the Australian Military Court and that is its jurisdiction is relevantly subsection (1), “to try any charge” being a charge of a service offence.

It is our submission that contempt of a service tribunal is something that is dealt with exhaustively for the purposes of matters within the jurisdiction of the Australian Military Court by section 53 of the Act in its relevant form. Section 53, your Honours will see back at page 60 and it is in a very similar form to what it was before, contempt in the face of the court is something that is made a service offence when committed by a defence member or a defence civilian by subsection (4) and it is subsection (5) that empowers the court to deal with such conduct in the course of proceedings.

KIEFEL J: Mr Solicitor, how do you read section 4(d)(i) - any other conduct which “constitutes a contempt of that court”?

MR GAGELER: Its operative effect is no different from what subsection (4)(d) said.

KIEFEL J: Do you mean confined contextually? You do not say it extends beyond contempt in the face of the Court?

MR GAGELER: No, I do not seek to say that it is limited to contempt in the face of the court. A common characteristic of an ordinary court of record exercising judicial power is that it can deal with contempt in the face of the court. I was just confining my submission to that. All I am seeking to say is that even though the contempt offence would go wider than that, contempt in the face of the court would be an offence created by section 53(4) and the ability of the court to deal with that service offence in the course of the court’s proceedings is an ability that is conferred specifically by subsection (5).

HAYNE J: But that is an offence committed only by a defence member or defence civilian.

MR GAGELER: That is right.

HAYNE J: Does the court have power to punish a person who is neither a defence member nor a defence civilian?

MR GAGELER: Absolutely not. A contempt of that nature would be an offence created by section 89 of the Defence Act in its current form and dealing with that offence would be a matter outside the jurisdiction of the Australian Military Court.

BELL J: And it would be outside jurisdiction because of the operation of the provisions of section 115 to the extent that the inclusion of section 114(1A), with its statement that the Australian Military Court is a court of record, would ordinarily in other contexts be thought to carry with it the power for that court to deal with contempt in the face of it without the need for an offence, that is, a statutory offence.

MR GAGELER: Yes.

BELL J: You point to 115(1) and say it simply does not have jurisdiction and the creation of it as a court of record does not confer that?

MR GAGELER: Exactly. Surprisingly, a very similar point came up in relation to the powers of the Commonwealth Court of Conciliation and Arbitration in a case that is distinguished in the Taylor Case to which your Honour Justice Gummow referred today. It is a case called Metal Trades Employers’ Association. It is in the same volume[1951] HCA 3; , 82 CLR 208. The question was whether the Commonwealth Court of Conciliation and Arbitration, which we all know was held later in the Boilermakers’ Case not to be a Chapter III court – it was nevertheless constituted by the Act as a superior court of record. That is section 17(3). It is mentioned at page 254.

The question that was addressed in this case was whether the establishment of the arbitration court as a superior court of record meant that the by virtue of that status it had power to deal summarily for conduct amounting to contempt. The answer was that although that power would ordinarily flow at common law from the establishment of a court of record, there were particular provisions in the Act that made clear that the relevant topic of contempt was to be dealt with statutorily. That is at pages 254 through to 256. I am not going to read the passage.

KIEFEL J: I think that the particular reference to the process that you were referring to, which is to have regard to the particular statutory provisions for contempt including the curtailment of or the containment of the extent of the punishment, et cetera, can be taken to have limited a wider power which might be thought to be available under the common law. Justice Dixon at page 256 in the passage commencing “The whole question of the enforcement of orders as well as awards”, and I think that that was referred to by Justice Menzies in Ex parte Bevan [1972] HCA 34; 127 CLR 1 at page 9.

MR GAGELER: Thank you, your Honour, I had overlooked that reference. But, yes, our submission is that section 114(1A) cannot be read as a source or power or source of jurisdiction. The jurisdiction of the court is limited by section 115(1). Its jurisdiction is limited to trying service offences and the topic of contempt in the face of the court which would otherwise be invoked by a reference to a court of record is one that is exhaustively dealt with in section 53 of the Act as a service offence. So that cannot be the legal effect of creating the AMC as a court of record.

A question was raised this morning which we have attempted to look at, that is, does the fact that a conviction or acquittal maybe by a body that is designated a court of record as distinct from some other court or some other body exercising judicial power, have any consequence for autrefois acquit or autrefois convict? We have simply found no authority that bears upon that topic. If it did at common law, then the common law – and I am really being speculative here – but the common law, of course, according to Lange, has to conform to constitutional norms. One would not develop Australian constitutional law in a way that would lead to a transgression of constitutional principles articulated in Tracey and other cases.

HAYNE J: If that is so, does it follow that (1A) has no work to do?

MR GAGELER: It has probably got this work to do, your Honour. At common law the record of a court of record is conclusive evidence of what is recorded in it. That is as much as it does. It is not conclusive, of course – even that is qualified because it cannot be conclusive as to matters of jurisdiction. It cannot oust the jurisdiction of this Court under section 75(v) any more than could a privity clause and, of course, this Court has many times issued prohibition and mandamus to courts of record including superior courts of record, so it has that very limited legal effect.

KIEFEL J: Is section 191 connected with the notion of a court of record - 191(2)?

MR GAGELER: Yes, evidentiary certificate.

KIEFEL J: Subsection (2), in particular.

MR GAGELER: It is certainly connected. It seems to overlap with the conclusiveness of the record.

KIEFEL J: Yes. It probably predated the insertion of (1A), I suppose.

MR GAGELER: It probably did, your Honour, yes.

BELL J: I think it is in the same terms in the earlier legislation.

HEYDON J: It contradicts it.

MR GAGELER: In the earlier Act, yes.

KIEFEL J: Well, is it consistent I suppose is the question that arises then with the court of record provision.

MR GAGELER: Is it consistent. It is certainly consistent. I am just wondering whether it might actually - - -

HEYDON J: How can it be consistent if one says it is “prima facie evidence” and it follows from the other that it is conclusive evidence?

KIEFEL J: Conclusive.

MR GAGELER: Well, it cannot.

GUMMOW J: I think we are in Project Blue Sky territory, that is to say, the Parliament in one section says something is black and another section seems to say it is white.

MR GAGELER: Yes.

GUMMOW J: What do we do?

HEYDON J: But it leaves section 114(1A) perhaps just being some black marks on a page, but it would be a strange construction.

MR GAGELER: Yes, there are two consequences – pardon, your Honour?

HEYDON J: That would be a strange construction. Do you know what the history of section 114(1A) is? I mean, legislative - - -

MR GAGELER: I can provide you with it. I do know the history, yes.

HEYDON J: Well, whose idea was it?

GUMMOW J: Did it just appear in the course of the passage of the Bill through the Parliament?

MR GAGELER: Yes, yes, it did, it did. There was a Senate inquiry. It was suggested in the course of the Senate inquiry, and the suggestion was taken up. I can provide your Honours with the parliamentary history of it. But you could infer from it being (1A) that it was not seen as essential to the design of the Act in its amended form as proposed to the Parliament in leading to the 2006 amendment.

BELL J: Was it animated by concerns about contempt, so far as the parliamentary history is concerned?

MR GAGELER: I have to be careful to confine what I say to the public record and I am not sure that I can give your Honour an answer to that, but I can certainly provide - - -

HAYNE J: You might usefully go to the supplementary explanatory memorandum if we are confined to the public record, Mr Solicitor.

MR GAGELER: I am not saying I had not read it, your Honour. I just could not isolate the public record from other things I knew.

HAYNE J: It is the supplementary explanatory memorandum and corrigendum to the original explanatory memorandum which is accessible on ComLaw. I have in mind especially paragraphs 11 and following of that document:

A court of record is a court that is declared by an Act to be so or a court –

et cetera –

Courts martial and trials by Defence Force magistrates were not designated as ‘courts of record’ –

That point is developed –

Notwithstanding this, the functional attributes of a court of record are provided for in the Bill, including the capacity to deal with contempt of the court, conduct of proceedings in public, and a requirement to record proceedings. The AMC has now been accorded the status of a court of record, noting that there will be a provision to limit publication of proceedings - - -

MR GAGELER: Yes.

HAYNE J: You might also, as a piece of interest at least have a look at section 50 and the perceived need to amend the Judges Pensions’ Act to ensure that a judge of a Federal Court should be cut down by not including the judge of the Australian Military Court, and an amendment was made to the Judges Pensions’ Act to effect that. But perhaps that does not lead us terribly far.

MR GAGELER: I certainly did not see that as taking matters very far, your Honour, no. I can provide – if it would assist the Court – a more complete parliamentary history.

GUMMOW J: We had better know about it.

MR GAGELER: Yes.

GUMMOW J: I am surprised we do not know already.

MR GAGELER: I can certainly provide that. The two ordinary consequences of a court of record appear - - -

GUMMOW J: We will come back to the question. Having regard to what Justice Hayne put to you from the supplementary memorandum, are we really in Blue Sky territory?

MR GAGELER: Yes, your Honour.

GUMMOW J: We then have to give paramountcy to the supplementary memorandum, do we not?

MR GAGELER: No, you give paramountcy to the operative provisions of the Act.

GUMMOW J: Having regard to the fact that it went in later as a special edition to do something that otherwise was not being done and what was not otherwise being done was these sections - - -

MR GAGELER: Another way of reading those same passages is that it went in to give a label, which may be appropriate or inappropriate, for the court which was simply descriptive of attributes that the court could be seen to have by reference to operative provisions.

HAYNE J: But it marked this body off from courts martial. It marked this body off from courts martial because its decisions were final. Its decisions were not subject to review by superior authority all the way up to CDF. At some point in your argument you are going to have to grapple with the distinction and the differences that exist between the AMC and the previous history because all that we see in the cases is that notions of military discipline, according to the scheme that existed at Federation, stood outside the exercise of the judicial power of the Commonwealth and this scheme is said, rightly or wrongly, to be radically different.

Now, I observe some differences. I would be assisted by knowing whether the Commonwealth says that they are relevant or irrelevant. I would like to know what the Commonwealth position is, rather than simply be confined to those things that you consider assist your case.

CRENNAN J: One interesting similarity, and it is referred to in paragraph 11 of the supplementary memorandum is that a court of record, of course, has a power to fine and imprison, which is precisely what the service tribunals had before these amendments.

MR GAGELER: Of course. Your Honour Justice Hayne, I thought that I had been addressing those matters in a pretty measured way. I will review my position overnight and if there is a more balanced presentation that is necessary, I will bring it to bear.

FRENCH CJ: I think the remark may have come, Mr Solicitor, from your response to Justice Hayne earlier when you said in answer to the question that was put to you about the difference between the reviewability of courts martial and the reviewability of the Australian Military Court and you responded by saying you were emphasising those matters which assisted your case, so it is a fair comment and I think we are entitled to expect at least an explanation or what your submissions are in respect of those other aspects.

MR GAGELER: In respect of the finality of the court’s decision, yes.

FRENCH CJ: Vis-à-vis the reviewability of what existed before.

MR GAGELER: Indeed, yes. I will revise what I have said and return to it tomorrow, but my starting point and the point that I was seeking to anchor what I was saying to was really the point made in White [2007] HCA 29; 231 CLR 570 at paragraph 52. That is a passage that I have read to your Honours before, but I was trying to link the decisive feature identified in that paragraph to the structure of the Act as it currently exists, that is, that what one has is a military and naval justice system directed to the maintenance of the defining characteristic of armed forces as disciplined forces organised hierarchically.

It is that characteristic that existed historically in the military justice system. It is continued by the 2006 amendments. What has occurred in the 2006 amendments is that the institutions for the administration of military justice have been made more independent and created in circumstances which can lead to a greater perception of impartiality than existed before. In our respectful submission, that does not take them out of the defining characteristic. That is what I was seeking to say. If I can say it more articulately, on reflection, I will.

Putting it another way, it was not essential to the characteristics of a military tribunal which took it outside Chapter III of the Constitution and within section 51(vi) of the Constitution that it be linked to or subject to the supervision of persons within the command structure in the exercise of its disciplinary functions.

Your Honours, can I mention a couple of cases that deal with a court of record that is designated bodies that are not Chapter III courts as courts of record. The cases are Alexander’s Case [1918] HCA 56; 25 CLR 434. I should start there and there are a couple that followed it. Alexander’s Case, your Honours will recall, concerned a body designated as a court of conciliation and arbitration held not to be a court because it was not constituted in accordance with Chapter III, therefore it could not exercise the judicial power of the Commonwealth.

But as to the significance of its designation as a court of record, your Honours might note what is said by Justices Isaacs and Rich at page 466 to 467, in particular, page 467 first full paragraph:

It is said that the phrase “Court of record” is conclusive. But the context, Court of Conciliation and Arbitration, combined with sec. 12, shows that “Court of record” is not conclusive.

A little further on that:

“Court of record” is sometimes used for purposes other than to enable the Court to be an ordinary Court of law.

There is a reference to a decision, I think, of the Privy Council in Fielding v Thomas that makes that point. Justice Powers at page 482 quoted from the Chief Justice in The Tramways Case. Within that quote it is said at about point 5 of the page:

It is true that the Arbitration Act calls the Arbitration Court a ‘Court’ and a ‘Court of record,’ but the nomenclature does not alter the nature of the functions.

His Honour applied that at the top of page 483. Justice Barton said at the bottom of page 455 – Justice Barton taking a slightly different view, but exactly the same starting point – he says:

In its usual acceptation the term “Court of record” indicates a body which has power both to make its determinations and to enforce them.

Contrary to the other Judges to whom I have just referred, he saw that “usual acceptation” as being reinforced by the context in that case, as did the Chief Justice at page 446 at about point 2. The only point that one gets out of it usefully for present purposes is calling something a court of record does not automatically bring it within the conception of a court for the purpose of Chapter III of the Constitution.

BELL J: So much is clear from that case when the nomenclature does not fit with the functions.

MR GAGELER: That is right.

BELL J: Quite a deal of your argument is to accept that the functions here might be characterised as judicial.

MR GAGELER: Yes.

BELL J: And the nomenclature against this history has been chosen by the Parliament. Against the history it is a little hard to understand the insertion of (1A) is what I - - -

MR GAGELER: I agree. One starts, however, with the operative provisions, and particularly the provisions that define the jurisdiction. One reads it against the history. One reads it in the light of the obvious intention not to stray into Chapter III and one asks what does it do? If the answer is not very much, then that is the answer. If the answer is too much, then one reads it out of the Act by a process of reading down, to which I will turn in the morning.

FRENCH CJ: Is this a convenient time, or were you about to refer to another authority on the same point?

MR GAGELER: I was going to refer to two other authorities.

FRENCH CJ: Perhaps you can do that.

MR GAGELER: I can do that, and I do not need to read from them. Falconer’s Case [1971] HCA 10; 125 CLR 591, if your Honours look at page 603, which is a summary of what one gets from the Boilermakers’ Case – of course, another case that dealt with - - -

GUMMOW J: That is in a Territory context, is it?

MR GAGELER: Yes, in the Territory context, but a very useful summary by Justice Menzies of what one gets from the Boilermakers’ Case. He says, by reference to the Boilermakers’ Case:

The decision whether or not a court has been created as a federal court under s. 71 depends upon the legislative intention to be derived from the whole of the law establishing the court.

He sees the Boilermakers’ Case as illustrative of that, and the Boilermakers’ Case itself, your Honours, in [1956] HCA 10; 94 CLR 254 at page 289 in the joint judgment says this, and I will read just half a sentence:

it is difficult to see what escape there can be from the conclusion that the Arbitration Court, though under s. 51 (xxxv.) of the Constitution there is legislative power to give it the description and many of the characteristics of a court, is established as an arbitral tribunal which cannot constitutionally combine with its dominant purpose and essential functions the exercise of any part of the strictly judicial power of the Commonwealth.

But it was a body that was, according to that passage, within the scope of section 51(xxxv) established as a court and given the characteristics of a court, but what it could not be given was the judicial power of the Commonwealth. If the Court pleases.

FRENCH CJ: We will adjourn until 10.15 tomorrow morning.

AT 4.15 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 23 APRIL 2009