Lane v Morrison & Anor [2009] HCATrans 70 (23 April 2009)

Last Updated: 23 April 2009

[2009] HCATrans 070

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 THURSDAY, 23 APRIL 2009, AT 10.18 AM

(Continued from 22/4/09)

Copyright in the High Court of Australia

__________________

FRENCH CJ: Yes, Mr Solicitor.

MR GAGELER: Your Honours, before I return to section 114(1A) can I do four things in response to some questions that were quite fairly raised with me yesterday afternoon. Can I first provide your Honours with a comprehensive summary of the similarities and differences in procedure between the Defence Force Discipline Act before the 2006 amendments and then as a result of the entire 2006 amendment package. That is the first thing I want to do.

The second thing is, noting as your Honour Justice Hayne pointed out, that the Defence Act 1903 in its original form in sections 86 and 87 gave the Governor-General or his military delegate the power to convene courts martial and to approve or confirm the sentences of courts martial, can I say something about the extent to which decisions of courts martial historically were final and binding in the absence of confirmation or approval. Can I then return to say something about section 191 – not an important point – and then can I go to the parliamentary history of the 2006 Act. None of that will take too long.

But to deal with the first point – that is, comparing the Defence Force Discipline Act before the 2006 amendments when you had courts martial defence force magistrates reviewing authorities and convening authorities with the form of the Act procedurally after 1 October 2007 when you had the AMC and the DMP. Now, to do that we have provided your Honours with a little table and we have given your Honours some further pages from the version of the Act that appears at the beginning of volume 1 of the Commonwealth materials. Those pages go in between pages 156 and 157 using the numbering at the top of the page. I will do this fairly quickly.

If one starts procedurally with the laying of the charge, that was something that was done before and continues to be done under section 87 by an authorised officer. An “authorised officer” as defined in section 3 is an officer authorised in writing for that purpose “by the Chief of the Defence Force or a service chief”. There was not before, but is now, an ability, without proceeding in any way to deal with the charge himself or herself, for the commanding officer to refer the charge directly to the Director of Military Prosecutions. That is the current section 105A.

Previously, a summary authority which could be a superior summary authority, that was a senior officer who was appointed under section 105(1), could either try the charge himself or herself or refer the charge to a convening authority. Similarly, there was a capacity for the commanding officer to try the charge or direct that it be proceeded with, or refer the charge to a superior summary authority or a convening authority.

The equivalent of that now is that the superior summary authority may try the charge or refer the charge to the DMP and under section 110 the commanding officer may try the charge or direct that it be not proceeded with, or refer the charge to a superior summary authority or the DMP, pretty much equivalent. When you get to the trial before a summary authority, the earlier position was that the summary authority could refer the charge in the course of the trial to a convening authority. Where there is an election by an accused to be tried or punished by a court martial or a defence force magistrate, that could occur again in the course of the trial by the summary authority and your Honours can see broadly equivalent provisions for the course of the trial by a summary authority in the current version of the Act.

Where the charge got to a convening authority under the old system, the convening authority could direct that the charge not be proceeded with, or refer the charge to a summary authority or a commanding officer, or refer the charge to a court martial or a defence force magistrate, and could do so where there was an election on the part of the accused.

Now, if you look at the position it is the Director of Military Prosecutions who basically has those functions. The Director of Military Prosecutions may direct that a charge not be proceeded with, refer the charge to a summary authority or commanding officer or request the Registrar of the AMC to refer the charge to the AMC for trial and it is the DMP who refers the charge to the AMC after an accused elects for trial by the AMC.

One then has the provisions for trial by a service tribunal being either a court martial or a defence force magistrate under the old system, now a trial by the AMC under the new system. Then, in respect of review of proceedings, and I think this is getting close to something your Honour Justice Hayne was concerned to know the detail of, under the old system there was an immediate requirement, section 154(1), for a legal report to be obtained before a review occurred.

Under section 152 of the Act – this is page 143 using the numbering at the top right-hand corner of the bundle – there was an automatic review by a reviewing authority only in the case of a conviction. There was no review at all of an acquittal and that was the position historically, as I will show your Honours. So there was an automatic review of a conviction under section 152 and that was by a competent reviewing authority.

Your Honours will see from section 150 that a reviewing authority was again an officer appointed by the Chief of the Defence Force or a service chief and from section 150A a competent reviewing authority was a reviewing authority, or a person being a reviewing authority who had not been relevantly the convening authority.

In respect of that automatic review, then, as I mentioned, there is the legal officer’s report under section 154 and then the conduct of the review was governed by Division 3 of Part IX, commencing at section 157. Relevantly, in respect of the conviction itself, your Honours will see in section 158 that the conviction was able to be quashed only on those limited grounds set out in that section. In respect of the punishment, the punishment could be separately reviewed under section 162 and sufficiently under subsection (1) it could be quashed or revoked if the reviewing authority took the view that it was either wrong in law or excessive.

Where that occurred then under 162(5) another punishment could be given, but subsection (5)(a) in particular not so as to impose a punishment that was more severe than that imposed by the service tribunal.

Despite the automatic review there is also an ability for a person convicted under section 153 to petition a reviewing authority. There was, of course, separate ability for the person convicted to appeal to the Defence Force Discipline Appeals Tribunal. The process of review, confirmation and approval that existed under the old version of the Act has now, in essence, been replaced simply by a general appeal that is available to the Defence Force Discipline Appeals Tribunal.

There is one other aspect that I glossed over just then that I should emphasise and that is, if you go to section 171, which is in the additional little bundle, what it said was that:

Subject to this Act, a punishment imposed, or an order made, by a service tribunal, a reviewing authority or the Defence Force Discipline Tribunal takes effect forthwith and a punishment for a specific period commences on the day on which it is imposed.

That was subject to the exceptions in section 172 and that is more severe punishments did not take effect unless approved by the reviewing authority.

CRENNAN J: Were acquittals subject to the same review process?

MR GAGELER: No. Once you are acquitted you are acquitted and you could not do worse out of the review process. Your Honours, that is really, broadly, a comparison between the two systems. If one goes back historically to the extent to which the decisions of courts martial were final and binding, certainly at the time of Federation, if your Honours have volume 2 of the Commonwealth’s materials, looking at the Army Act, at page 410 there is section 54 and the position in relation to acquittals there was spelt out in section 54(3):

The finding of acquittal . . . shall not require confirmation or be subject to be revised –

Section 54(6) reads:

Subject to the provisions of this Act with respect to the finding of acquittal, the finding and sentence of a court-martial shall not be valid except in so far as the same may be confirmed by an authority authorised to confirm the same.

Then under section 57 there was an additional power for a confirming authority to mitigate or remit the punishment.

So again it is very similar to the position that had evolved by 2006, that is, there was simply no review of an acquittal by a court martial. There was, however, under the Army Act a need for a confirmation by a reviewing authority before any sentence took effect and that reviewing authority could reduce the sentence but not increase it. Under the Naval Discipline Act the position was just slightly different and a bit more severe. At page 367 section 53(3) of the Naval Discipline Act required confirmation by the Admiralty or the commander-in-chief upon a foreign station of a sentence of death except in the limited case of mutiny, but otherwise there was no restriction on a sentence of a naval court martial taking effect immediately.

Under section 53(1) only the Queen could remit a sentence of death, but any other sentence could be suspended, annulled, modified, et cetera, by the Admiralty but, you note the proviso right at the end of section 53(1), not so as to increase the sentence. So, naval court martial sentences, except in the case of a sentence of death otherwise than in a mutiny, took effect immediately but the sentence was capable of being reduced by the Admiralty but not increased.

GUMMOW J: Is there any definition of “foreign station”?

MR GAGELER: I do not know. I will have that checked, your Honour.

GUMMOW J: It is not insignificant because Sydney would have been a foreign station of the British fleet based in Sydney Harbour.

MR GAGELER: Yes, your Honour, that is right. You may have raised the question, who was the commander-in-chief? I will have that checked, your Honour.

GUMMOW J: I notice you have put on your list Findlay v United Kingdom.

MR GAGELER: Yes, in the Court of Justice decision.

GUMMOW J: Yes. That refers to the British Army Act 1955 which seems to have replaced the 1881 Act.

MR GAGELER: That is correct, yes.

GUMMOW J: And continued this confirmation system.

MR GAGELER: Yes. I am not sure of the precise modifications that it introduced.

GUMMOW J: The confirmation system appears at page 231 of [1997] ECHR 8; 24 EHRR 221.

MR GAGELER: Yes.

GUMMOW J: That went out in the UK in 1996.

MR GAGELER: Yes.

GUMMOW J: The British system – it was held that it contravened the international covenant, was it not?

MR GAGELER: The European equivalent, Article 6.1, yes - the requirement for an impartial and independent tribunal, yes. Your Honour is probably aware that there is legislation that has been passed in England that is enacted but not yet commenced that significantly modifies the system to bring it more into line with what are now international norms.

GUMMOW J: But Findlay seems to have had some impact on the deliberations here, does it not, in the committees?

MR GAGELER: Yes, very much. We mention the European cases and the Genereux case. There is an international recognition of the need for the separate and current military justice system to be brought into line with more modern standards of independence and impartiality and that has been recognised in modifications in Canada, which were forced by their Article 11 of their Charter of Rights and Freedoms, and modifications to the traditional United Kingdom system which has been seen to be required to bring it into conformity with Article 6 of the European Convention.

GUMMOW J: Do you know whether Australia has relevantly acceded to Article 6 of the Convention?

MR GAGELER: Can I take that on notice, your Honour?

GUMMOW J: Yes:

In the determination . . . of any criminal charge against him, everyone is entitled to –

et cetera.

MR GAGELER: I will check on that.

GUMMOW J: That is what was driving Findlay, I think.

MR GAGELER: Yes, I will check on that. Your Honours, the parliamentary history - - -

FRENCH CJ: Just before you leave that. Just completing the chain on the right-hand column, under the existing system there is an appeal from the AMC to the Defence Force Discipline Appeals Tribunal.

MR GAGELER: That is right.

FRENCH CJ: That is under the Defence Force Discipline Appeals Act.

MR GAGELER: Yes, that is right.

FRENCH CJ: And then there is judicial review of the tribunal by the Federal Court.

MR GAGELER: Yes.

FRENCH CJ: And that is in the original jurisdiction of that court.

MR GAGELER: Yes, it is styled in appeal but of course it is in the original jurisdiction.

FRENCH CJ: I think that would ordinarily be by Full Court and then there is special leave to the High Court. That is the way the track goes.

MR GAGELER: That is right.

FRENCH CJ: In the appeals from the Defence Force Discipline Appeals Tribunal to the Federal Court, is that confined in any way to questions of law, subject to the 39 - - -

MR GAGELER: I think it is, your Honour.

FRENCH CJ: That will be in the Defence Force Discipline Appeals Act, I imagine.

GUMMOW J: We had a case on the validity of this, did we not?

MR GAGELER: Yes, Hembury.

GUMMOW J: The chameleon principle came to the aid of the legislation.

MR GAGELER: I think the answer is yes, and I will just turn up the section to give it to you.

FRENCH CJ: The Defence Force Discipline Appeals Tribunal is certainly treated in the constitutional taxonomy as an administrative tribunal.

MR GAGELER: Yes, it really takes the place, or replaces, the reviewing authority.

FRENCH CJ: Yes.

MR GAGELER: Which had become over the years increasingly independent. The section dealing with appeals to the Federal Court is section 52 and it is on a question of law, like the appeal - - -

GUMMOW J: What is the section?

MR GAGELER: Section 52(1).

GUMMOW J: Of the?

MR GAGELER: Of the Defence Force Discipline Appeals Act 1955. Your Honours, the parliamentary history of the 2006 Act, warts and all, is contained in the further volume of extrinsic material, which I promise is the last. There was a Senate report in 2005 and there was a Government response to that Senate report. Can I just take your Honours to the Government response at page 400 of the bundle. You see recommendation 19 of the Senate Committee was that there be a permanent military court to be created in accordance with Chapter III of the Constitution to ensure its independence and impartiality. You can see that the Government did not agree with that recommendation. What is said – I will not read the entirety – but if you go to the next page, 401, about the middle of the page, it said:

The Government will instead establish a permanent military court, to be known as the Australian military court, to replace the current system of individually convened trials by Courts Martial and Defence Force Magistrates. The Australian military court would be established under appropriate Defence legislation and would satisfy the principles of impartiality and judicial independence through the statutory appointment of military judge advocates . . . To enhance the independence of military judge advocates outside the chain of command, they would not be eligible for promotion during the period of their appointment.

Then the Bill, as originally introduced, has in the explanatory memorandum at page 409 an explanation that it was being introduced to give effect to the Government’s response to the 2005 Senate report. In paragraph 3 it says:

The Government Response agreed to create a permanent military court . . .

2. satisfy the principles of impartiality and judicial independence, and independence from the chain of command, through –
   

those various factors. Then across the page at page 410 it said:

To give effect to the Government Response, the following philosophies and characteristics of the AMC are reflected in the Bill -

• The AMC is not an exercise of the ordinary criminal jurisdiction . . .
  
• The AMC is a ‘service tribunal’ . . .
  
• The AMC must be deployable and be able to sit in theatre and on operations . . .
  
• A knowledge and understanding of the military culture and context is essential . . .
  
• Military judges, as serving members of the Australian Defence Force, will still be subject to the provisions of the DFDA and ordinary discipline in the performance of their non-judicial duties, such as training.
  

Of course, as originally introduced, section 114(1A) was not there. The second reading speech spells out those principles a little more, page 429.

GUMMOW J: Mr Solicitor, the discussion of section 52 of the Appeals Act that we had in mind is in Hembury 193 CLR 641 at 653.

MR GAGELER: Thank you, your Honour.

GUMMOW J: It is uncontroversial I think.

MR GAGELER: It is uncontroversial. It was also uncontroversial in that case, that the tribunal was not exercising judicial power. So 429, the same principles spelt out in the speech. I do not want to read anything from that. Then in the course of the deliberations by the Senate on this Bill, there was another Senate report that one sees at page 442 and following. The Senate Committee before it produced this report had received a submission from the then Judge Advocate General that you see at page 506 and following. In the course of that submission, at the top of page 510 there is a reference to the Judge Advocate General’s view that, notwithstanding this was being created outside Chapter III, it should be designated as a court of record. Basically he was saying, look, it has got lots of characteristics of a court of record, why not call it a court of record. That is essentially what he was saying.

Then the Senate Committee, in dealing with that submission, wrote off to the Department of Defence. You will see at page 468 as an appendix to the Senate report that some written questions were given to the Department of Defence. One of those questions at page 473 is effectively please explain why you are not making it a court of record. Of course, the Judge Advocate General thinks it is a good idea. The response to that is at page 486 at the bottom of the page and across to the next page. Basically it is being said, look, you have got independence and impartiality in the structure, you do not have to give it the status of a court of record to achieve that. There is no good reason for calling this body a court of record, that is basically what is being said.

GUMMOW J: There was some consideration – I have a question – of these materials at some stage to a perception that section 80 of the Constitution would cause a problem if a Chapter III court were to be established.

MR GAGELER: In the materials?

GUMMOW J: I thought so. I may be wrong.

MR GAGELER: There is certainly reference to - - -

HAYNE J: Page 506, paragraph 3.

MR GAGELER: The Judge Advocate General’s letter, yes. There are certainly concerns and concerns underlying. The legal advice is not reproduced, but the concerns underlying the government response is if you put this into Chapter III then there are all sorts of problems with it behaving in a military way.

GUMMOW J: Why would section 80 be a problem, I wonder. You can say one thing about the system. It was not a case of trial on indictment.

MR GAGELER: That is right.

GUMMOW J: Unless you took a dissenting view in some cases under section 80.

FRENCH CJ: There is some general statutory provision, is there not – although that could have been dealt with, I suppose, that requires that any offences above a certain punishment level are to be on indictment. Is that in the Interpretation Act or in the Crimes Act?

MR GAGELER: That is in the Crimes Act, your Honour. I can turn that up if your Honour would be assisted. If you do not need to have some fights, it is better to avoid them. Then at page 454, the recommendation of the committee, relevantly, was that the government review the Bill based on the evidence that had been presented to the committee and amend or redraft the Bill accordingly. There was a supplementary comment by some senators. At page 460, towards the top of the page, those supplementary comments noted:

The committee notes that the jurisdiction of the AMC extends to the most serious offences. It supports the view that the bill stipulate that the AMC is a court of record.

That is how it happened. When you then get to the supplementary explanatory memorandum where it was put in, your Honour Justice Hayne really referred and read out, I think, the relevant paragraphs yesterday in this bundle – it is at pages 434 to 435, paragraphs 11, 12 and 13. Your Honours can read it, but, again, it is basically saying something like the Judge Advocate General was saying, and that is that here you have a permanent body that has functional attributes of a court of record. It would enhance its status if it could be called a court of record. That is basically what is being said.

FRENCH CJ: A court of record subject to administrative review.

MR GAGELER: By something called a tribunal?

FRENCH CJ: Yes. That would have had to go if they had made it a Chapter III court.

MR GAGELER: Yes, of course. The entire appellate structure would go. Your Honours, with that in mind can I just go back to section 114(1A), the provision that said as a result of all this that it is a court of record? It is a provision that obviously need not have been there to achieve the very degree of independence and impartiality that the Act otherwise gives to the institution, but it is not a provision that does nothing. It is not a provision that is without any legal operation.

It does two things. One is, I accept, almost trivial but it still does it as a matter of law. It does give conclusiveness to the record. I said that yesterday and I was taken by your Honours to section 191 which provides for the giving of an “Evidentiary certificate” by “An authorized officer”. Your Honours, that is a mechanism that does something that is simply not the same as doing something - - -

HEYDON J: Yes, you resolve the contradiction by saying that the record is conclusive, but in working out what is on the record a certificate can be issued which is prima facie evidence so that there are two different levels, as it were.

MR GAGELER: That is right. It is awkward.

HEYDON J: It saves having to prove, as it were, with original documents the record.

MR GAGELER: That is right. I agree that there is what appears to be at least an awkwardness and perhaps a practical contradiction. Nevertheless, the legal operation of conclusiveness of the record can co-exist with a provision for an evidentiary certificate being given by an authorised officer.

HEYDON J: And the second practical effect?

MR GAGELER: The second legally operative effect, your Honour?

HEYDON J: The second thing that that is done.

MR GAGELER: Yes. The second legally operative effect is this. If your Honours have section 53 to hand it is at page 61 of the print. We went to this in a slightly different version, and in this version yesterday, but section 53(4)(d)(i) was rephrased, your Honour, in the light of section 114(1A) and contrast (i) with (ii) where you have another service tribunal there is a service offence of contempt where the conduct - if the service tribunal were a court of record would constitute a contempt of that court. Now, in the light of the insertion of section 114(1A), paragraph (d)(i) simply says “constitute a contempt of that court”. So the definition of this offence only works with section 114(1A).

So there is that legally operative effect. That is it. That is the only legally operative effect, except that there is a similar modification to section 89(1)(d)(i) of the Defence Act. Section 89(1)(d)(i) creates the equivalent civilian offence, that is, offence under the general law applicable to any person. So, your Honours, that is all that it does. So it does something. It never did nothing.

GUMMOW J: Sorry that was 89? This is of the - - -

HEYDON J: The Defence Act?

GUMMOW J: Of the Defence Act.

MR GAGELER: Of the Defence Act, your Honour, yes. Section 89(1)(d)(i). It is in the same form - - -

HEYDON J: Forgive my irritation, but where is the Defence Act in the many folders and loose pieces of paper we have before us?

MR GAGELER: I hope you have it as a separate volume. In its current form it is at page 131. I think I took your Honours to the earlier form yesterday, that is, the form before the amendment. So, your Honours, this is not surplusage the way that the redraft has occurred. There is some legally operative effect, but surplusage in statutes is not unknown. Declarations in statutes that bodies that are not courts of law are courts of record is not unknown. I took your Honours to some examples of that yesterday.

Ultimately the question of whether a body that is called a court is sought to be established or invalidly established under Chapter III of the Constitution, there is a question of parliamentary intention and for all the reasons I have given, one cannot, in our respectful submission, infer a parliamentary intention to establish invalidly a Chapter III court in this case. That is a court capable of exercising judicial power of the Commonwealth. No part of the jurisdiction of this body goes beyond the dealing with service offences.

GUMMOW J: Where do we now find in the Discipline Act the review mechanism that eventually gets it into the Federal Court on a question of law?

FRENCH CJ: It is the Appeals Act, is it not?

MR GAGELER: The Appeals Act your Honour.

GUMMOW J: Still the Appeals Act?

MR GAGELER: It is the Appeals Act, yes. I think it is section 20, a person convicted can appeal. Then I think he said it was section 52 that allows for the appeal to the Federal Court, obviously in the original jurisdiction of the Federal Court.

GUMMOW J: I am not sure we have the Appeals Act, have we?

MR GAGELER: I thought I had it.

FRENCH CJ: So the review before the tribunal is on matters of fact by leave and questions of law without leave to the tribunal itself and AMC?

MR GAGELER: No, I think that was the old position, your Honour.

FRENCH CJ: So what is the position now? What is the nature of the review? In your chart you have on the right-hand side on the second page, “Appeal to the DFDAT is available against a conviction by the AMC . . . (Appeal against conviction on a ground that is not a question of law requires leave (s 20(1).).

MR GAGELER: That is right, section 20(1), your Honour.

FRENCH CJ: So there is an appeal on issues of fact generally. In other words, you can – yes.

MR GAGELER: Yes, by leave. The ability of the tribunal to quash a conviction is section 23. Have your Honours located this Act? It mirrors, really, the grounds upon which a reviewing authority could quash a conviction under the old system.

HEYDON J: I do not think we have this Act? I mean, we will get it, but just so that we understand each other, we have not got it.

MR GAGELER: I will not dwell on that. Your Honours, if section 114(1A) were to cause the Act to go beyond power, then it is severable. One could take a blue pencil to it. The only consequence for the rest of the Act would be to result in the redundancy of those two provisions defining one form of the offence of contempt under section 89 of the Defence Act and one form of the service offence of contempt under section 53(4) of the Defence Force Discipline Appeals Act. That would be the only consequence for the rest of the Act.

HEYDON J: Do you have the extrinsic material of the Defence Legislation Amendment Bill 2006 in front of you? The one that contained the Senate reports and the Defence Department’s response. Page 510 is the Judge Advocate General’s letter which seems to have led to section 114(1A). What is wrong with paragraph 19 of that letter, if anything?

MR GAGELER: What is wrong with - - -

HEYDON J: Is there anything wrong with it?

MR GAGELER: I do not like the last sentence, your Honour.

HEYDON J: Yes, but is there anything wrong with the previous sentences?

MR GAGELER: No.

HEYDON J: Is not the reasoning really that it has all the characteristics of a court of record, so let us call it that?

MR GAGELER: That is right.

HEYDON J: You spoke of parliamentary intention and so on. If you want to use that type of language, obviously the reasoning in paragraph 19 is crucial to the change. Does that not indicate that merely to draw a blue pencil through subsection (1A) will not solve the problem? You would have to draw a blue pencil through more or less the things that Mr Street wants them drawn through.

MR GAGELER: If you see the problem as lying in the structure, then obviously section 114(1A) is irrelevant, really. But what is the structure? How has it fundamentally changed? I have been seeking to show that it has not fundamentally changed. What you still have fundamentally and relevantly for constitutional purposes, that is for the purposes of characterisation under section 51(vi), is the establishment of an institution solely for the administration of military justice, critically, solely for the administration of military justice. The making of that body a permanent body, which is effectively all that has happened here, it has become permanent rather than ad hoc, and being given increased independence from the chain of command does not take it outside the scope of the power.

KIEFEL J: Is the removal of review by the command significant?

MR GAGELER: Well, it is to my learned friend’s case, in our submission.

KIEFEL J: But is it not to the structure because does that not point to a separation from what previously characterised a military tribunal and what is now intended, including the conclusiveness that was sought and the more limited appellate structure?

MR GAGELER: In our respectful submission, no, and what I was seeking to show was that there was extreme conclusiveness in the system as it previously existed, even as it previously existed before Federation. An acquittal by a court martial was simply the end of any charge against a sailor or a serviceman and a conviction by a court martial and a sentence by a court martial was automatically carried out in the Navy, except in the case of a capital offence. It was subject to review, but on review the conviction could be quashed or the sentence could be reduced. In the Army historically the position was that any court martial conviction did not take effect until it was the subject of review.

But over the years the review became increasingly a review essentially of an appellate nature. So by the time one got to the Defence Force Discipline Act in the form that I took your Honour to before 2006, the review by the reviewing authority was by an independent – that is independent of the prosecution of the initiation of the court martial – officer who was given legal advice and who could only quash a conviction on very limited grounds that approximated those applicable in a court of criminal appeal and in respect of punishment could only change the punishment in circumstances where it was seen to be excessive or legally erroneous, and then substitute a lesser punishment.

So, there was not some generalised subjection to the process to a structure of command. It sat within a structure of command, as in a very broad sense does the current court sit broadly within a structure of command. But it was in very critical respects separated out and given elements of independence which can lead to impartial decisions. That process has been taken further, quite deliberately further in this structure, but it does not change its fundamental character, in our submission.

FRENCH CJ: Just going back to the discussion we were having yesterday about characterisation of the courts martial as exercising judicial power in Tracey and so forth and the utility of that characterisation, can one really talk sensibly, even in a generic sense, outside of Chapter III and for any useful purpose of the military court as exercising judicial power if it is subject to administrative review?

MR GAGELER: Well, your Honour - - -

FRENCH CJ: This is not a matter of being squeamish. It is a matter of just asking what is the good of it.

MR GAGELER: I understand why your Honour is asking. You can do it in two ways. You can say this is not judicial power at all because judicial power belongs to Chapter III. This is sui generis, it is - - -

FRENCH CJ: It may not be necessary to your argument that it is.

MR GAGELER: No, it is not. On the other hand, you can say – well, as Justice Starke said in Elias and Bevan where men had been sentenced to death - let us call it what it is, let us call it what functionally it is. These people have been tried and they have been sentenced to death. That to me is judicial power. But it is not the judicial power of the Commonwealth. One can do it either way. I was favouring calling it judicial power, but not the judicial power of the Commonwealth because it is the approach that has been taken in the Australian cases. Certainly, it was taken by five members of the Court in Tracey.

GUMMOW J: Never taken by Sir Owen Dixon, though.

MR GAGELER: No, no, your Honour is right. It was not taken by Sir Owen Dixon.

GUMMOW J: Whose deep canniness never ceases to impress.

MR GAGELER: It was not taken by five members of the Court in Tracey and taking into account the views of Sir Owen Dixon. Now, I prefer that, your Honours, because it is in our respectful submission more straightforward. It is recognising the functional equivalence at a certain level and saying that there is still something that is unique about the exercise of this form of judicial power in the military context because it is in - - -

GUMMOW J: Your problem, I think, Mr Solicitor, is you want to say it is unique and I understand that. It is unique because of the history. You want to change the history - - -

MR GAGELER: A bit.

GUMMOW J: That is the question. The question is how much is carried with the phrase “a bit”?

MR GAGELER: Well, your Honour, I think I have addressed that.

FRENCH CJ: The question is whether if you have moved it too far by this restructuring out of the historical stream and support for the kind of functions that are conferred on the AMC, it may be that what you really have in the end is an administrative body purporting to impose penalties and you run into the kind of problem that you run into with things like the Human Rights and Equal Opportunities Commission, for example, imposing damages awards.

MR GAGELER: Your Honour, I have been quite strict in - - -

GUMMOW J: You see, I think if you do not have the benefit of the history you run into a Brandy problem, I think.

MR GAGELER: Of course you do, yes, and nothing that I have said, no element of my argument can be taken beyond section 51(vi), beyond the first limb of section 51(vi) and used to set up a Chapter I court, contrary to - - -

FRENCH CJ: That is why your connection with the history is so fundamental, is it not?

MR GAGELER: It is fundamental, yes.

FRENCH CJ: Otherwise you have the ACCC imposing spot fines and so forth.

MR GAGELER: And also if I can say this, also the connection with the concurrent disciplinary code, that is the confinement of the jurisdiction of the service tribunal to the concurrent disciplinary code. That is a critical part of my argument as well. So, your Honours, given that my learned friend did not address section 68 of the Constitution I am content to rely on our written submissions unless the Court wishes me to get into that.

I did want to say something about service connection, but before I do that can I just answer one or two questions. Indictable offences are dealt with in section 4G of the Crimes Act 1914:

Offences against a law of the Commonwealth punishable by imprisonment for a period exceeding 12 months are indictable offences - - -

GUMMOW J: That would mean punishable by a court. As a matter of construction that would mean punishable by a Chapter III court.

MR GAGELER: No, of course. Your Honour Justice Gummow’s question, Article 6 of the European Convention which is the subject of those European cases is equivalent to Article 14 of the International Covenant on Civil and Political Rights and Australia has acceded to that. It was ratified in 1980. Your Honour also asked about the definition of “foreign station” in the Naval Disciple Act. It is not defined in that Act.

Now, service connection, if required, is to be found in the facts and not in the elements of the offence. We had thought that had been decided in White and we rely upon the authority of White. If a service connection is required, then in our submission it is satisfied here by the circumstances of the alleged offence, being an indecent assault by one defence member on another in the presence of other defence members and no one else.

If it is necessary to look at the process of charging and not simply the circumstances of the offence then the plaintiff was here charged at a time when he remained connected with the military. He was a member of the naval reserve at the time of being charged and at the time of the referral of the charges one can see from the application book at page 30, contrary to the submission on behalf of the Attorney-General of Western Australia, one can see that he was proposed to be tried with the other alleged military participants in the offence.

Given that, there is strictly no need in this case to choose between the service connection test of Justices Brennan and Toohey and the so-called service status test but, your Honours, this issue has been around for a long time and it really has to be settled at some stage and we are content to grapple with it in this case. The notion of service status, in our submission, as a label is really quite inappropriate.

HEYDON J: Are these points developed in your written submissions?

MR GAGELER: Yes, in our submissions in reply.

HEYDON J: To?

MR GAGELER: To Western Australia, yes, your Honour.

HEYDON J: Thank you.

MR GAGELER: I am touching on it at a relatively high level, but it is developed there in detail.

If your Honours look at Aird 220 CLR 308, in our submission, the better view is that which is set out at page 329 in the judgment of your Honour Justice Gummow where the critical passages from Tracey, the joint judgment of three members of the Court in Tracey, are set out and we draw your Honours’ attention particularly to the italicised words in the third of those quotes and really what it comes down to this. It is open to Parliament to take the view that a rule that defence members must at all times while defence members comply with the minimum standards of behaviour applicable to the civilian population is itself conducive to good order and discipline of the defence force. That is what it comes down to.

In our submission, that is the position that one can see was historically the position well before Federation under the Army Act and the Naval Discipline Act. I just want to take your Honours back to those for the last time. In volume 2 of our materials at page 401 you see section 41 of the Army Act. It is worth looking at the structure of section 41 because what I will seek to show your Honours is that Justices Brennan and Toohey in Tracey – unfortunately, I appear to have misread this. Section 41 says:

Subject to such regulations for the purpose of preventing interference with the jurisdiction of the civil courts as are in this Act after mentioned, every person who, whilst he is subject to military law, shall commit any of the offences in this section mentioned shall be deemed to be guilty of an offence against military law, and if charged under this section with any such offence . . . shall be liable to be tried by court-martial, and on conviction to be punished -

So any of the following offences were deemed to be offences under military law. What were those offences? Treason, murder, manslaughter or treason-felony, rape, and then the last of them, numbered (5) –

any offence not before in this Act particularly specified which when committed in England is punishable by the law of England, be liable, whether the offence is committed in England or elsewhere –

and then there were some provisos. The first proviso is:

A person subject to military law shall not be tried by court-martial for –

those first things listed, that is –

treason, murder, manslaughter, treason-felony or rape committed in the United Kingdom . . . unless such the person at the time he committed the offence was on active service—

or at a place more than 100 miles from a competent civil court. So that was a proviso that applied to those very serious civil offences. The modern equivalent is in section 63 of the Act. Then there was (b):

A person subject to military law . . . may be tried by any competent civil court for any offence for which he would be triable if he were not subject to military law.

That is the preservation of the jurisdiction of the civil courts, which is alluded to in the opening words of section 41. The modern equivalent there is section 190(2). But very importantly, for everything but those very, very serious deemed capital offences, if it was an offence against civilian law then it was deemed to be a military offence whether committed in England or elsewhere and there was no proviso, there was no further proviso. There was complete concurrent military jurisdiction to deal with a code of military behaviour that picked up appropriate civilian behaviour.

Now, the Naval Discipline Act can be seen relevantly at page 364 and here there was just a complete concurrent code without any stated provisos. Section 45:

Every Person subject to this Act who shall be guilty of Murder shall suffer Death –

and then there a number of other things, and the last of them –

If he shall be guilty of any other Criminal Offence which if committed in England would be punishable by the Law of England he shall, whether the Offence be or be not committed in England, be punished either in pursuance of the First Part of this Act –

et cetera, and your Honours can see what it said. But again it picked up as a military offence – or a naval offence is conduct which would be punishable in England, whether or not that conduct occurred in England.

Now, then go to Tracey [1989] HCA 12; 166 CLR 518. At page 563, which comes a few pages after setting out section 41 of the Army Act, at about point 3 of the page this is said:

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

Their Honours just appear to be wrong in that.

GUMMOW J: Which page is this, Mr Solicitor?

MR GAGELER: Page 563.

HAYNE J: Unless, and I am not sure that this is right, but unless that is seen as somehow reflecting section 101 of the Naval Discipline Act – and I am not sure that it does – or 162(1), I think it is, of the Army Act, which are the preservation of the civil courts - 162(1) is it? Well, it is 162 of the Army Act generally.

MR GAGELER: Yes, particularly subsection (1). Your Honour is right.

HAYNE J: But it is perhaps going further than those provisions.

MR GAGELER: That is right. Section 162(1), of course, literally in its terms really reflects what is also spelt out in the second proviso, section 41(d). That is, of course, a topic that their Honours dealt with separately, that is the concurrent or cumulative or supplementary nature of military discipline. But here what their Honours really appear to us to have done is perhaps misread the first proviso, paragraph (a), and treated it as applicable to all offences, but it was not – it was only those couple of offences. That really gets compounded when you go across to the next page, page 564, at about point 2 where their Honours say:

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

But then they go on and say this:

the second is an authority to punish military personnel who transgress the ordinary law of the land while acting or purporting to act as military personnel. These two aspects of the traditional jurisdiction are reflected in the two limbs of s. 51(vi).

That second aspect then leads into the service connection test. It is a service connection not with the administration of a code of conduct for the efficiency and morale of the service, but service connection where somehow under military law you get the military courts enforcing in a surrogate way the ordinary civil justice standing in the place of the ordinary civil courts of justice. That is then said to be reflected in the two limbs of section 51(vi).

That is really the beginning of this service connection notion in Australia and, in our submission, it is just all based on a quite wrong historical understanding and our case is consistently with the joint judgment of three judges in Tracey that military discipline is all about defence personnel conducting themselves in a manner that is conducive to efficiency, morale and good order of the service. That is, it is just the first limb; it has nothing to do with the second limb at all. Your Honours, those are essentially our submissions.

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

MR STREET: If the Court pleases. Your Honours, can I deal with my learned friend’s table that he handed up this morning, which I think sought to identify the position in relation to the changes. Can we say immediately that it is one where the changes are ones which emphasise perhaps in relation to the blank spaces that appear beside “Convening Authority” and beside “Review of Proceedings” and “Petitions”, the core of the problem that my learned friend faces in relation to what he has created or the Commonwealth has created when one comes to look at whether the nature of what has now been created accords with the nature of the Naval Discipline Act and the Army Act tribunals that existed as at 1900.

The key to my learned friend’s argument that the Australian Military Court or judges, jury, seal, court of record, is in fact something that can lie outside Chapter III turns on paragraph 58 of White and the reference there to what it was that existed at the time of enactment or the passing of the Constitution.

Your Honours, the nature of courts martial under the Army Act and the Navy Act are not as, in my respectful submission, described simply by the references that my learned friend took your Honours to. If I can go back to that material which is in volume 2 of the Commonwealth materials. Could I say this, your Honours. It is apparent from the Naval Discipline Act from provisions such as section 68 and section 70 that the courts independently acted to take steps to assist, where it was required to, the activities of courts martial. In other words, the existence of the courts and their own authority and their continued superior authority was inherent in what was found I think in section 66 and then I think, your Honours, in section 70.

Your Honours, the structure of the courts martial, which one finds commencing in section 58, the material feature there, in our respectful submission, is identifying that in section 58(9):

The Admiralty shall have Power to order Courts-martial to be held for the Trial of Offences –

So it is command that is exercising the power to create such a court martial. It identifies the procedure that is to take place in section 58(13). In section 63 one identifies the oaths that must be taken by the members of the court martial and it is those court martial members that then administer the oath to the judge advocate in section 64. Now, that is not a procedure that in any way reflects the nature of the entity that is now created.

In section 65 it is the Admiralty that may make rules in relation to the procedures of court martial. Your Honours have seen now it is the entity created, the Australian Military Court, that is purported to create its own rules, just as one sees with other federal courts enacting laws. Your Honours, when one goes to section 69 one sees a reporting obligation in terms of the procedure that has been pursued. One sees the power to commute the sentence found in section 70. We have further steps in aid of the court in section 71. In section 90(4):

On Application made to the Lords of the Admiralty, or to the Commander-in-Chief, or senior Officer of any of Her Majesty’s Ships or Vessels of War abroad authorized to assemble and hold Courts-martial, the Lords of the Admiralty, Commander-in-Chief, or senior Officer (as the Case may be) shall assemble and hold a Court-martial for the Trial of the Offender –

In section 93, again the Admiralty has power in relation to separate trials. Then, in section 100:

Nothing in this Act shall take away, abridge, or control, further or otherwise than as expressly provided by this Act, any Right, Power, or Prerogative of Her Majesty the Queen in right of Her Crown, or in right of Her Office of Admiralty or any Right or Power of the Admiralty.

Now, your Honours, in our respectful submission, when one looks at the Canadian Constitution it identified that the commander-in-chief was the Queen for the purposes of its constitutional provision. It is clear section 100 preserves to the commander-in-chief a significant power of review. That power of the review is not contained in and is not preserved in relation to the nature of the Australian Military Court in the powers it is exercising.

The same thing when one goes to Army Act one sees again a number of other provisions which we would seek to take your Honours to. If I could start at section 28 which obviously identifies the scope of offences that might be touched upon by the court martial and, relevantly, a power of contempt which we say is inherent in section 114(1A). Your Honours, can I just deal with – while I interrupt myself in relation to section - - -

GUMMOW J: What is the prerogative section in the Military Act – the Army Act?

MR STREET: In the Military Act, your Honours, section 54 is the confirmation provision.

GUMMOW J: Yes, that is right.

MR STREET: There is a further provision we draw your Honours’ attention to in relation to - section 70(1):

Subject to the provisions of this Act Her Majesty may...

(e) The confirmation and revision of the findings and sentences of courts-martial –

Your Honour, the other provisions that we would have referred to in relation to the court martial is picked up in section 46 on page 405 of the material, the power to convene, reinforced then through section 47. I have touched section 54. One has then the provisions in section 64 in relation to the committing authority, again the role of command in the court martial process.

HAYNE J: You have to read that with 63(5) if you are going to take us to the discharging authority.

MR STREET: Yes, your Honour. Then section 53(5) there is a further discretion contained, and the discharging authority, your Honour, I think is identified.

HAYNE J: In 64(3) tells you who discharging authorities are; section 63(5) tells you that the discharging authority may at any time during a sentence of imprisonment order the discharge of the prisoner.

MR STREET: Yes, your Honour. When we come to the question of whether or not we have a creature that can live within what your Honours said in White, in paragraph 58, if I can take your Honours back to 231 CLR, on page 598 the reasoning that is there adopted in relation to finding something that is not within Chapter III is in essence picked up in the sentence:

To attribute to the presence in the Constitution of Ch III a rejection of service tribunals of the nature provided by the Naval Discipline Act and the Army Act would be to prefer the “abstract reasoning alone” to which Justice Kitto referred in Davidson.

Your Honours, in our respectful submission, the Australian Military Court is not of the nature of those tribunals. It is not of that nature in a number of material respects. We have sought to highlight them in relation to a power of review, but the ad hoc nature of tribunals was another material feature. That ad hoc nature of military tribunals was touched upon in Reid v Covert in the United States Supreme Court Reports, 354 US. That commences at page 1. The relevant passage I seek to take your Honours to is on page 36 on the right-hand side of the page. In the opinion of Justice Black, in the majority:

Courts-martial are typically ad hoc bodies appointed by a military officer from among his subordinates. They have always been subject to varying degrees of “command influence.” In essence, these tribunals are simply executive tribunals whose personnel are in the executive chain of command.

Now, your Honours, in our respectful submission, this separate entity is not within such a chain of command.

Frequently, the members of the court-martial must look to the appointing officer for promotions, advantageous assignments and efficiency ratings–in short, for their future progress in the service.

The same exists even in relation to the court martials that existed prior to the Australian Military Court.

Conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, the members of a court-martial, in the nature of things, do not and cannot have the independence of jurors drawn from the general public or of civilian judges.

Your Honours, in looking at the nature of a court martial in that regard, can I take your Honours back to Tracey 166 CLR. The passage I would seek to take your Honours to is in the joint judgment of Justices Brennan and Toohey on page 573 at about point 6 of the way down the page, just after the reference to Justice Dixon, as he then was, in R v Cox:

Courts-martial were constituted not by judges and juries but by naval and military personnel.

Your Honours, in our respectful submission, what has now been created clearly is an entity constituted by judges and juries. The significance of the role of command and the right of review was also touched upon in Bevan. If I can take your Honours back to 166 CLR, can I draw your Honours’ attention to the judgment, first of all, of Justice Starke on page 463 at about point 8 of the way down the page, starting:

So soon as the court-martial is dissolved the president is to wait upon the Commander-in-Chief –

GUMMOW J: What was the ground in that case on which prohibition was sought?

MR STREET: It was a case where there was, I think, your Honour, a failure to, in this case, identify the basis upon which the constitutional review could take place and the court itself went off on the task of identifying the constitutional ground which then obviously permitted the court to continue to deal with the matter even though that constitutional ground was not made out, but the point - - -

FRENCH CJ: You have picked up the accrued jurisdiction necessary to deal with habeas corpus by identifying a constitutional proposition when it should then, I think, reject it.

MR STREET: Yes, but, your Honours, the point I was seeking to make is that in the passage referred him to:

the president is to wait upon the Commander-in-Chief or senior officer with a letter reporting the finding and sentence. The Commander-in-Chief or senior officer must satisfy himself of the validity of the finding before he takes any step to give effect to the sentence, as by the issue of a warrant for imprisonment or detention. When sentence of death is to be executed the Commander-in-Chief or the convening authority gives direction as to the time, place and manner in which such sentence is to be carried out. No sentence of death passed by a court-martial can be carried into effect until confirmed by the Admiralty or by the Commander-in-Chief –

Your Honours, in our respectful submission, that shows the wrong, and a significant material wrong in relation to command. The same significance of the role of command is identified in the judgment of Justice Rich in dealing with the question of the authority of the court martial to deal with the matter, where on page 460, at about point 8 of the way down the page, there is a reference to identifying that:

At all relevant times Rear-Admiral Crace held commissions from the Lord Commissioners of the Admiralty and from His Excellency the Governor-General of the Commonwealth of Australia empowering him to assemble courts-martial.

Your Honours, the same proposition was touched on, I think, in the judgment of Justice - - -

GUMMOW J: It is interesting that he held two commissions.

MR STREET: He did, yes, your Honour, given the nature of the ship on which I think the two were serving. Can I take your Honours to - - -

GUMMOW J: It was HMAS Australia, was it not?

MR STREET: Yes, your Honour. Your Honour is correct. Yes, I think, though, that they had been loaned to the Royal Navy, though, and it was the facts - - -

FRENCH CJ: There was a transfer – a formal transfer.

MR STREET: Yes, and your Honour that was the source of the issue in relation to the death sentence under the construction of the Defence Act, but your Honours can I go to page 481 in the judgment of Justice Williams, about point 8 of the way down the page:

As the establishment of courts-martial is necessary to assist the Governor-General, as Commander-in-Chief of the Naval and Military Forces of the Commonwealth, to control the forces and thereby maintain discipline, I think it must follow that the Commonwealth Parliament, like Congress, can legislate for such courts, although constitutional questions could arise as to the extent of the jurisdiction in the case of ordinary criminal as opposed to offences against discipline and duty -

Now, your Honours, the point I am seeking to make is that the Governor-General as commander-in-chief was the source of the power of command in that regard. Your Honours, can I follow his Honour Justice Gummow’s invitation just still in relation to this question which really is our ground 2, albeit being whether it is a court, whether it offends section 71 and is in violation of the prohibition against the creation of any other court by parliament found in section 71 and in Chapter III.

Could I take your Honours back to the Constitution in that regard and just re-emphasise that there are only four vested powers that one finds in the Constitution. First, section 1 is the vested power in the legislature. Next, one finds the vested power which is identified in section 61 and the language of vesting is used. Next, one finds more commonly referred to the power found in section 71 where again the language of vesting is used. But then we have in section 68, again language, the vest of power:

The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen’s representative.

Your Honours, in our respectful submission, that vesting of power of a command in chief in the naval and military forces does real work and does real work in relation to the scope of command and the vesting of command just like the balance that is found in the other vested powers and the separation of powers from the legislature, the Executive and the judiciary.

What one has here is not an appointment of the Queen as the commander-in-chief, such as in the Canadian constitution, nor is it given to the Executive, because that is clearly different in language to the language found in section 61 to the extent that that means the federal counsel. So that, your Honours, it is not given to the federal executive counsel, it is given to the Governor. Why? For the very reason it was recognised in the American cases about the potential for the Executive to be the source of the potential abuse of power in respect of military command and we have the recent decision - - -

FRENCH CJ: Anyway, the relevance of all of this really just goes to the historical context in which courts martial existed and the question of whether or not the AMC falls within that historical stream.

MR STREET: No, your Honour. In our respectful submission, it goes higher than that. The text of section 68 identifies something that the legislature could not do. It identifies a prohibition. It identifies a restraint. It identifies that you could not vest the command in chief in some entity that is not identified - - -

CRENNAN J: It sounds very much like submissions in-chief in relation to ground 1.

MR STREET: No, your Honour, and what I am seeking to do is deal with section 51(vi) in the context of whether this is a court that can be created under the first limb of section 51(vi).

FRENCH CJ: This is by way of reply?

MR STREET: Yes, your Honour.

FRENCH CJ: You are both relying on your written submissions so far as section 68 is concerned, so I do not know that we need to really get into that.

MR STREET: But, your Honour, the significance of it was this, that my learned friend in this regard said if one simply looks at the defence power and says we can act anything that is to do with service discipline, what we say is no, it must be something that still preserves the work done by section 68 which recognises that not must only there be a command hierarchy for the purpose of discipline, but that command hierarchy is one in respect of which the power is vested in the commander-in-chief.

When one comes to look at this court – the Australian Military Court – it is clearly not, in our respectful submission, in its power and the powers that are now given to it which my learned friend concedes are judicial, exercising a power that is subject to command. To that extent what we have is something, in our respectful submission, that must be in its true characterisation a court contrary to section 71. The prohibition in relation to section 71, in our respectful submission, was not at the kernel of the focus when in Boilermakers’ there was a focus on mere description - - -

GUMMOW J: What was it that made or saved the validity of the previous Australian legislation which, since 1903, has had a complicated statutory system for courts martial?

MR STREET: Your Honour, what saved it was that it met what your Honour - - -

GUMMOW J: How was that compatible with your view of section 68?

MR STREET: Well, your Honour, it was because what met it was that it fulfilled the question your Honour asked of my learned friend which he never answered. It was judicial power of command and of whose - - -

GUMMOW J: This expression “judicial power of command” - and this may help you, I think - is something of a red herring. In Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 583 to 584, which we all know about, Justice Mason refers to what Lord Atkin said in the Electricity Commissioners [1924] 1 KB 205 as focusing:

attention on those elements in the making of administrative decisions which are analogous to judicial determination as a means of determining whether the rules of natural justice apply –

That seems to me maybe the subtext in the various statements in this Court over the years, going right back to the time when Electricity Commissioners was treated as significant authority, to say well this is almost judicial and, therefore, section 75(v) of the Constitution controls it by the prerogative writs. Now, your command structure which you say stems from section 68 was always controllable under section 75(v), is that not so? The wartime cases illustrate that. That is how they got here.

MR STREET: Whether the Governor-General in section 68 was subject to 75(v) is a question that perhaps his Honour Justice Callinan raised in White. We put some submissions in relation to it. When you look at section 64 of the Constitution it is difficult to see how he can be an officer of the Commonwealth. So that I fully appreciate the jealousy with which that jurisdiction is guarded, and below the Governor-General it may be that there is a sphere in respect of which it will operate, but there must be a matter and your Honour touched on the question of the difficulty in identifying when there is a matter.

If it is in fact an exercise of command discipline that is being engaged in by command, we respectfully submit that in the true nature of a disciplinary code where command is exercising its authority, it would be undermining that ability to exercise command if the breaches of duty of themselves gave rise to a matter within section 75(v), and the significance of that would be it would impair the ability to exercise that disciplinary command.

If I can pick up what your Honour Justice Gummow raised in relation to what I will call the label of judicial power for the purpose of the military tribunals that have existed, your Honours, we accept that that is really - it has been up until now a misnomer. It really was one where it was, if I can call it this, command judicial power, and command judicial power, not the executive power, not the legislative power, but it was command judicial power flowing out of the significance of the power vested through section 68 and the command hierarchy and structure that must exist because of that.

That is what takes it outside offending Chapter III. But once you create, as has been created here, an entity which is in essence not subject to command, not the subject of command review, we then have, in our respectful submission, a position very different, and when one looks at this entity my learned friend’s concession is correct. It is exercising judicial power. It is named as a court. It has all the functions and attributes of a court. In our respectful submission, there is no abstract reasoning or appeal to history that can overcome the violation that this entity has in relation to the text of section - - -

GUMMOW J: What, you are back to the language of rape again, Mr Street.

MR STREET: I am sorry, your Honours, I am seeking to contain myself in relation to the issue but, your Honours, my learned friend’s invitation not to be squeamish, we respectfully submit, is an invitation to depart from the text and structure of Chapter III. It is an appeal to look at history and abstract notions rather than the text and language in characterising whether this is a court and whether it offends section 71.

In our respectful submission, there is no feature that does not squarely fall within Brandy or the other cases dealing with the characterisation of judicial power and consistent with White and what was said in White in this case the repository is a court and the repository having been described as a court it flies, in our respectful submission, in the face of principle to find that this court so created stands outside section 71 or stands outside section 73.

Your Honours, can I then deal with the question as to whether the characterisation of it as a court of record is of itself unseverable. Our attack goes beyond just the characterisation of a court of record. Yes, we say the court of record makes perfectly clear it must be an entity that is a court and for that reason must fail. We identify in that regard more than the provisions that my learned friend referred to. It is a court with a jurisdiction through section 115 that reflects every law of the land in the Australian Capital Territory so far as criminal offences are concerned by servicemen and women.

The scope of the jurisdiction is vast and that vast jurisdiction that has been conferred on this entity is one which now has the feature of being one that exercises judicial power, makes final determinations, and in those circumstances we respectfully submit it must be one that offends section 71 whether or not one were to look at section 114(1A) as of itself causing a problem.

Your Honours, to the extent that one has the unattractive feature, if it were said to stand outside section 71 and Chapter III, of an entity that is described as a court subject to the review of a tribunal touched upon by your Honour the Chief Justice, we pick that up in our submissions identifying that is one of the reasons why this entity then falls into the difficulty confronted by Kable, and we adopt what was said by the learned Solicitor-General of Western Australia.

To the extent relevant, it is one where it would be entirely incompatible with principle to have what has been created by Parliament and masquerades and appears as a Chapter III court, even if it were held to be not one, to be subject to a power of review by a tribunal. That incompatibility alone would give rise to a problem, but it goes further than that and we maintain what we sought to identify.

Your Honours, as to the severability, I think your Honours will recall I indicated that there was another provision in the current Act, section 131B, that was of a material and significant nature. Now, your Honours, as I understand what my learned friend has done is not included the legislation up to date, based on the assumption of the construction that - - -

HEYDON J: Is this something that he says is not part of the correct version and you say is? I mean, this will be an important question, which is right to decide if this 131B were decisive of the whole case, but it is not, surely.

GUMMOW J: Is it not enough for your purposes to get a declaration that Part VII, Division 3 is invalid? I am just looking at this very comprehensive relief you seek on page 3 of the application book.

MR STREET: Your Honour, what we sought to do is to identify the other - - -

GUMMOW J: You want prohibition, I can understand that.

MR STREET: Yes, but your Honour, we sought to identify the provisions that appointed military judges, the provisions that appointed a jurisdiction to the military court, and that was the - - -

GUMMOW J: But if there is no military court that is the end of it, is that right?

MR STREET: Well, your Honour is probably correct. But, your Honour, section 131B did this though. It identified that in the 2008 legislation – my learned friend tells me in volume 1 – I apologise to your Honours – if I can take your Honours in volume 1 of my learned friend’s bundle of material - - -

FRENCH CJ: It is at page 436, I think, is it not?

MR STREET: Yes, your Honours. It identifies a material difference between the powers that are exercised by the Australian Military Court and the position of summary authorities. Your Honours, we would have said one would be amending the legislation, not severing a severable provision if one were to try and excise or blue pen subsection (1A) and that you would be impermissibly amending the legislation, contrary to what was said in the Bank Case 76 CLR 371 to 373, follows from looking at what it was my learned friend suggested, namely, well, there is probably a minor consequence for section 53 dealing with contempt.

It is perfectly clear that the contempt power referred to in section 53 has language that is incompatible with inability to sever subsection (1A). In our respectful submission, the other provisions dealing with the Australian Military Court and the language of subsection (1) itself clearly shows that it was intended to create a court.

To the extent that one goes to the legitimate legislative historical material, in our respectful submission, that would be the explanatory memorandum and the supplementary explanatory memorandum patently characterises this entity as being a court and a court of record in a way in which, in our respectful submission, it would not appear in any way to be severable. My learned friend cannot identify it as being severable by reference to the other material that he has there referred to.

So, in our respectful submission, when one goes back to the reasoning of the Judge Advocate General that it has all the attributes of a court and it is going to act judicially and exercise patently judicial power, in our respectful submission it is one that the whole Part VII, Division 3 must fall. Your Honours, to the extent that your Honour Justice Gummow referred in the course of argument with my learned friend to the British Imperial Oil Case we adopt what was said by Chief Justice Knox in relation to the exhaustive nature of Chapter III in that regard.

Your Honours, can I just touch on the argument that arose in relation to the power being sui generis. To the extent relevant, in our respectful submission, it is not a sui generis judicial power. It can only be command power that is exercised and the problem here is that it is in fact judicial power and there is no exception and to suggest that an exception can be one because it is sui generis is, in our respectful submission, misconceived.

Your Honours, turning to what was then our ground 3 in respect of the criminal jurisdiction, in our respectful submission, my learned friend has said nothing to advance why the characterisation of the determination of these service offences by a court is not now an exercise of criminal jurisdiction and a determination of offences that gives rise to the finality that we sought to advance before.

My learned friend suggested that the autrefois acquit estoppel principles operate by reason of common law. We respectfully submit they do not operate by common law. They operate in the context of the Commonwealth legislation that has here been created based on the rule of law recognised within the Constitution referred to in ALPA as being an implicit consequence of the nature of a constitution, and when one looks at section 80 and the finality that plainly flows from an acquittal in our criminal system through R v Snow, we would say it is a constitutional principle that gives rise to the conclusiveness of the outcome of a determination of the military tribunal exercising power in this way, so that the Australian Military Court’s final determination acquitting someone of murder or rape is one which could not be reopened in the State jurisdiction. If that is so it has impaired the State jurisdiction for the reasons which I think were touched on by Western Australia, which submissions we adopt.

Your Honour, to turn then to the source of power to enact section 51, we say, in our respectful submission, my learned friend has left out of the picture, as I have sought to identify, the significance of section 68 and its impact on the question of whether this law can be characterised as appropriate and adapted to that defence power. Nothing my learned friend has sought to advance answers the submissions we have put forward as to why this now stands outside the hierarchy of command, creates a separate independent entity, which is not promoting command authority, and is one in respect of which we say to create such a court flies in the face of the prohibition implicit in section 71 and Chapter III. For that reason one cannot find such power.

Your Honours, can I then turn to the issue raised as to the service connection in relation to these proceedings. Could I just emphasise that if this matter were to be heard in the State of Queensland very different powers and ranges of penalty would be open. There could be a determination that no conviction be recorded. There could be procedures for bonds. In sections 11 and 12, I think, of the Penalties and Sentences Act (Qld) it identifies a completely different regime - - -

FRENCH CJ: I think you mentioned this to us in-chief, did you not, the range of alternative dispositions available under State law?

MR STREET: Yes, your Honours, I was really raising that in the context of what was said by Justice Bell in the context of the sufficient connection and the significance of the connection. In our respectful submission, to characterise the nexus issue simply by reference to a context of “Does it relate to the regulation of discipline”, in essence is introducing an analysis that is too narrow because it does not permit the taking into account of the existence, as we have, of State criminal systems.

Although the discrimen of offences, in our respectful submission, is not an appropriate criterion to distinguish it, it is one where, in looking at that power and whether there is a sufficient nexus, it must be one that should take into account the ordinary jurisdiction that is available. In this case the features where one was not on service but one was not on duty in civilian quarters – the matters that we have identified – it is one where, we respectfully submit, it would not meet a criteria of having a substantial discipline impact to prosecute this plaintiff and it could not two or three years later be said to have such a disciplinary impact.

It is not one which should be looked at simply from the viewpoint of, “Were you within the command structure?” because if it was simply a test of “Are you senior to this person or are they junior to you?”, in essence, one is falling back into a service status test and that cannot be, in our respectful submission, an appropriate test. It has to be one which looks at whether it comes within the defence power, and that defence power should take into account when one looks at that question a characterisation test that, in our respectful submission, recognises the importance of the ordinary jurisdiction of the courts, and we touched on that in our submissions. Otherwise I adopt what I have said in those submissions.

Your Honours, can I turn then to the matter of the legislation that applies. My learned friend referred to Cheney - - -

GUMMOW J: The transitional point, is it?

MR STREET: The transitional point, your Honour.

GUMMOW J: This is probably truly in reply.

MR STREET: Cheney does not really assist my learned friend, in our respectful submission, to the extent that in 41 CLR it identifies a broad language of proceedings, because it is the words “dealing with the charge” that are material in relation to that question. In our respectful submission, if it had been intended to be the commencement of the charge or the referral of the charge to the RMJ it would have said so.

The words, “proceedings dealing with the charge” involve something more than preliminary applications or preliminary steps. In our respectful submission, it means when there has been a joinder. When the plaintiff has not appeared, when the plaintiff has not entered a plea, in our respectful submission, there is no joinder. But in any event the significance of the transitional provision, in our respectful submission, only goes to the second limb of ground 4. The prayers we seek for declarations, in our respectful submission, relate to the legislation as it currently is.

GUMMOW J: If Division 3 is invalid, matter that was included in the Act by reason of Act 159 of 2006 which repealed divisions of the old Part VII of the 1982 Act, that repeal would remain effective, would it?

MR STREET: Your Honour, I think it would not revive - - -

GUMMOW J: In other words, you would not get the old divisions back.

MR STREET: No, it would not revive it, and it will have to be cured. But what it does not do, your Honours, and can I emphasise this as a matter of importance, it does not in any way impair the ability of command to deal with – which are summary authorities – to exercise their summary authority power to the extent it was conferred on them. Could I just touch on one aspect there? A feature my learned friend did not emphasise and which we complain about in relation to this separate entity, it is not just the separate Australian Military Court, but we have standing outside it the Director of Military Prosecutions, and the powers under section 87 are not subject to command. The decision to pursue charges and the power to initiate charges are not done by command, and that was - - -

FRENCH CJ: We are going off on another tab now and we visited this in-chief. I think you should just confine yourself to matters strictly in reply.

MR STREET: Thank you, your Honour, I will do so, but I think I have almost finished, your Honours. Your Honours, there is one issue that we may seek to raise in relation to costs. Could we have leave to do so by written submissions if the occasion is appropriate?

FRENCH CJ: What is the issue?

MR STREET: Your Honour, I understand there was some correspondence that we would have sought to rely upon if it were appropriate to do so in relation to these proceedings and the disposal of them, depending on the outcome.

HEYDON J: You ask for costs if you win.

MR STREET: I ask for costs if I win. I say there is some correspondence - - -

HEYDON J: That seems a reasonable proposition. Is the correspondence good for you or bad for you?

MR STREET: The correspondence deals with the consequence that might flow if your Honours dismissed the application. All I would seek to do is have leave to put in such correspondence and a submission if appropriate.

GUMMOW J: We are not sure at the moment whether the Solicitor would press for costs if you were successful. I do not know.

MR STREET: It goes to some correspondence which invited that position and invited a position where there would not be a pursuit of costs and a rejection of that proposition.

HEYDON J: If Justice Kirby were here, he would say that costs are boring.

MR STREET: Yes, your Honour. They may not be for the representatives, your Honour. If the Court pleases.

FRENCH CJ: Thank you. Mr Solicitor, what is your position on the matter of costs?

MR GAGELER: We seek costs, your Honour, if we are successful.

FRENCH CJ: Yes, all right.

MR STREET: Then, your Honour, can I maintain the request for leave to put in submissions if appropriate in relation to costs?

FRENCH CJ: Yes. If you want to put in a short supplementary submission on costs, you can do so within 14 days, and Mr Solicitor, perhaps you can respond within 14. All right. Yes, thank you. The Court will reserve its decision and adjourns until 2.15 this afternoon.

AT 12.20 PM THE MATTER WAS ADJOURNED