White v Director of Military Prosecutions

231 CLR 570

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(Judgment by: Gummow J, Hayne J, Crennan J)

White
vDirector of Military Prosecutions

Court:

Judges: Gleeson CJ

Gummow JKirby J

Hayne JCallinan J
Heydon J

Crennan J

Hearing date:
Judgment date: 19 June 2007

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Judgment by:
Gummow J
Hayne J
Crennan J

[27] The plaintiff is a defence member within the meaning of the Defence Force Discipline Act 1982 (Cth) ("the Act"). She is a member of the Royal Australian Navy and a Chief Petty Officer, stationed on HMAS Manoora. The long title to the Act is "[a]n Act relating to the discipline of the Defence Force and for related purposes". The Act provides for a range of offences and for trial and punishment by service tribunals. The plaintiff challenges the validity of that system of justice.

The alleged offences

[28] Part III (ss 15-65) of the Act is headed "Offences". Reference should be made to those offences which are particularly relevant to this case. Division 3 (ss 25-34) is headed "Insubordination and violence". So far as material, s 33 states:

A person who is a defence member ... is guilty of an offence if the person is on service land, in a service ship, service aircraft or service vehicle or in a public place and the person:

(a)

assaults another person; ...

Maximum punishment: Imprisonment for 6 months.

Division 8 (s 61) is headed "Offences based on Territory offences". Section 61(3) provides:

A person who is a defence member ... is guilty of an offence if:

(a)

the person engages in conduct outside the Jervis Bay Territory (whether or not in a public place); and

(b)

engaging in that conduct would be a Territory offence, if it took place in the Jervis Bay Territory (whether or not in a public place).

With respect to punishment, s 61(4) states:

The maximum punishment for an offence against this section is:

(a)

if the relevant Territory offence is punishable by a fixed punishment -- that fixed punishment; or

(b)

otherwise -- a punishment that is not more severe than the maximum punishment for the relevant Territory offence.

The expression "Territory offence" is so defined in s 3(1) as to "pick up" offences punishable under the Crimes Act 1900 (ACT) ("the Crimes Act"), as a law in force in the Jervis Bay Territory.

[29] On 30 June 2006, the plaintiff was charged by the Acting Director of Military Prosecutions with seven offences. All but one of them relied upon s 61(3) of the Act in conjunction with s 60 of the Crimes Act. Section 60(1) states:

A person who commits an act of indecency on, or in the presence of, another person without the consent of that person and who knows that that other person does not consent, or who is reckless as to whether that other person consents, to the committing of the act of indecency is guilty of an offence punishable, on conviction, by imprisonment for 5 years.

[30] The charges indicate that there are five female complainants, all of inferior rank to the plaintiff; three hold the rank of Able Seaman and two that of Leading Seaman. The one charge of assault under s 33(a) of the Act (Charge 4) is in the alternative to one of the charges (Charge 3) under s 61(3) of the Act in conjunction with s 60 of the Crimes Act.

[31] The legislation makes some provision for the relationship between service tribunals and the civil courts and between service offences and civil court offences. Section 190(1) of the Act states:

Subject to the Constitution, a civil court does not have jurisdiction to try a charge of a service offence.

The offences with which the plaintiff is charged are "service offences" within the definition of that term in s 3(1). The expression "civil court" is defined in the same section as meaning "a federal court or a court of a State or Territory".

[32] Further, civil courts do not have jurisdiction to try charges of civil court offences committed by defence members or "defence civilians" which are "ancillary" to certain offences against the Act (s 190). ^[43] A person acquitted or convicted by a civil court for an offence not being a service offence, but being "substantially the same" as a service offence, is not liable to trial by a service tribunal for that service offence (s 144(3)). Neither s 190 nor s 144(3) is directly invoked in the present case.

The High Court litigation

[33] By application made to this Court, the plaintiff seeks prohibition against the first defendant, the Director of Military Prosecutions ("the Director"), restraining the Director from requesting the Registrar of Military Justice to refer the charges to a Defence Force magistrate for trial or from requesting the Registrar to convene a general court martial or a restricted court martial to try the charges. Authority to pursue those alternative courses in the various service tribunals is conferred upon the Director by s 103(1) of the Act. Jurisdiction to try charges is conferred by s 115 upon a court martial and upon a Defence Force magistrate by s 129.

[34] The plaintiff also seeks a declaration that a trial of the charges against her requires "an exercise of the judicial power of the Commonwealth within the meaning of Ch III of the Constitution". The plaintiff seeks a further declaration that the provisions of the Act purporting to confer jurisdiction on courts martial and Defence Force magistrates (ss 115 and 129 respectively) are invalid because courts martial and Defence Force magistrates are not courts invested with federal jurisdiction within the meaning of s 71 of the Constitution.

[35] The Director has undertaken not to pursue prosecution of the charges pending determination of the plaintiff's application by this Court. By order of the Chief Justice, the application was referred to the Full Court.

The place of military law

[36] Before turning to consider the submissions by the plaintiff, some general observations should be made. These provide the context in which the issues of validity fall for consideration.

[37] First, the English constitutional system as it developed after the turmoil of the seventeenth century did not allow for a military caste with its own set of all-encompassing legal norms, as was found in some other European nation states. ^[44] Secondly, the ascendency of parliamentary control denied any place for a general defence in the English criminal law of superior orders or of executive fiat, and this remains the case in Australia. ^[45] Thirdly, naval and military courts martial were liable to the supervisory jurisdiction of the superior courts. ^[46] Of the English system as it developed after the Revolution of 1688 the Supreme Court of the United States later said: ^[47]

By the mutiny acts, courts martial have been created, with authority to try those who are a part of the army or navy for breaches of military or naval duty. It has been repeatedly determined that the sentences of those courts are conclusive in any action brought in the courts of common law. But the courts of common law will examine whether courts martial have exceeded the jurisdiction given them, though it is said, 'not, however, after the sentence has been ratified and carried into execution.'

[38] Fourthly, the civil law of obligations does not cease to run merely because the obligations in question bind or confer rights upon a defence member. Thus, Groves v The Commonwealth ^[48] established that at common law an action in negligence is maintainable against the Commonwealth by a defence member for damages caused by the negligence of a fellow defence member while on duty in peace time.

[39] Finally, the system established by the Act cannot operate wholly beyond the ambit of Ch III of the Constitution. This is because those constituting the service tribunals under the Act are officers of the Commonwealth for the purposes of s 75(v) of the Constitution. Accordingly, the Constitution mandates one avenue for judicial review, in particular for jurisdictional error. Further, it has never been suggested that the laws made by the Parliament under s 51 of the Constitution, which give rise to matters in which the Parliament may make laws under s 76(ii) and s 77 conferring federal jurisdiction, do not include laws supported by s 51(vi) or that s 51(vi) is so walled-off from Ch III as to deny the competency of such laws. Thus, the Parliament has enlarged the participation of Ch III courts in the procedures for the prosecution of offences under the Act. The Defence Force Discipline Appeals Act 1955 (Cth) ("the Appeals Act") establishes a review system which includes provision for an "appeal" to the Federal Court on a question of law involved in a decision of the Defence Force Discipline Appeal Tribunal given on an "appeal" to the Tribunal under that statute (s 52). ^[49] The legislation for that system is founded upon s 51(vi), s 76(ii) and s 77(i) of the Constitution.

[40] There is an important distinction which should be made before considering the submissions respecting the validity of the Act. No party to the present case contends that it would be beyond the competence of the Parliament, by further reliance upon s 51(vi), s 76(ii) and s 77(i) (and, if need be, upon s 71 to create an additional federal court), to achieve the result that offences under the Act were tried by the exercise of the judicial power of the Commonwealth in a Ch III court. The defendants did not assert that the functions of the service tribunals would have been insusceptible of discharge by a Ch III court if the Act had so provided.

[41] Where the parties differ is with respect to a particular submission by the plaintiff. This is to the effect that it is only by the exercise of the judicial power of the Commonwealth that the functions of the service tribunals under the Act may be exercised conformably with the Constitution and that the system established by the Act therefore is invalid.

The plaintiff's first submission

[42] As the hearing developed, it became apparent that the plaintiff put her case essentially upon two grounds. The first had been developed in the written submissions. The second emerged in the course of oral argument. It is convenient to deal with these submissions in order.

[43] The first submission by the plaintiff is in the broad terms indicated above. It is that the offences which the Act creates, including those with which the plaintiff is charged, may not be tried in the manner for which the Act stipulates. This is for the following reasons:

(i)

the proceedings are matters in which the Commonwealth is a party (s 75(iii)) and matters arising under a law of the Commonwealth within the meaning of s 76(ii) of the Constitution;

(ii)

they involve the adjudication of guilt and infliction of punishment and this requires the exercise of the judicial power of the Commonwealth;

(iii)

none of the service tribunals for which the Act provides is a Ch III court and none may exercise the judicial power of the Commonwealth; and

(iv)

the Act invalidly purports to authorise the service tribunals to exercise the judicial power of the Commonwealth.

[44] The relationship between Ch III of the Constitution and service tribunals established in exercise of the legislative power conferred by s 51(vi) of the Constitution is not a straightforward one. At bottom, the relationship turns upon identification of the content of the expression "the judicial power of the Commonwealth" in s 71.

[45] In that regard, three observations by Kitto J in R v Davison ^[50] provide an appropriate starting point. His Honour first observed: ^[51]

It is well to remember that the framers of the Constitution, in distributing the functions of government amongst separate organs, were giving effect to a doctrine which was not a product of abstract reasoning alone, and was not based upon precise definitions of the terms employed.

Secondly, he said: ^[52]

[W]hen the Constitution of the Commonwealth prescribes as a safeguard of individual liberty a distribution of the functions of government amongst separate bodies, and does so by requiring a distinction to be maintained between powers described as legislative, executive and judicial, it is using terms which refer, not to fundamental functional differences between powers, but to distinctions generally accepted at the time when the Constitution was framed between classes of powers requiring different 'skills and professional habits' in the authorities entrusted with their exercise.

[46] Kitto J reached a conclusion which would seek an answer to the issues in the present case in the consideration of how similar or comparable powers to those exercised under the Act were treated in Australia at the time when the Constitution was prepared. His Honour said in that regard: ^[53]

Where the action to be taken is of a kind which had come by 1900 to be so consistently regarded as peculiarly appropriate for judicial performance that it then occupied an acknowledged place in the structure of the judicial system, the conclusion, it seems to me, is inevitable that the power to take that action is within the concept of judicial power as the framers of the Constitution must be taken to have understood it.

[47] The plaintiff seeks to turn to account the following statement by Jacobs J in R v Quinn; Ex parte Consolidated Food Corporation: ^[54]

The historical approach to the question whether a power is exclusively a judicial power is based upon the recognition that we have inherited and were intended by our Constitution to live under a system of law and government which has traditionally protected the rights of persons by ensuring that those rights are determined by a judiciary independent of the parliament and the executive. But the rights referred to in such an enunciation are the basic rights which traditionally, and therefore historically, are judged by that independent judiciary which is the bulwark of freedom. The governance of a trial for the determination of criminal guilt is the classic example.

[48] There are several difficulties in the path of unconditional acceptance of what Jacobs J called "the historical approach" and Kitto J expounded in the above passages. The modern regulatory state arrived after 1900 and did so with several pertinent consequences. First, modern federal legislation creates rights and imposes liabilities of a nature and with a scope for which there is no readily apparent analogue in the pre-federation legal systems of the colonies. Secondly, any treatment today of Ch III must allow for what has become a significant category of legislation where a power or function takes its character as judicial or administrative from the nature of the body in which the Parliament has located it.

[49] Thirdly, one upshot of this state of affairs has been the development of various theories or descriptions of judicial power which are expressed in general and ahistorical terms. Thus, consideration of the nature of the federal conciliation and arbitration system stimulated the development of a discrimen of judicial power as "concerned with the ascertainment, declaration and enforcement of the rights and liabilities of the parties as they exist, or are deemed to exist, at the moment the proceedings are instituted" and of arbitral power as the ascertainment and declaration (but without enforcement) of "what in the opinion of the arbitrator ought to be the respective rights and liabilities of the parties in relation to each other". ^[55]

[50] In R v Bevan; Ex parte Elias and Gordon, ^[56] Starke J referred to a general description of judicial power found in some of the earlier decisions of the Court. This was the identification ^[57] of judicial power with the exercise of sovereignty in giving binding authority to decisions upon controversies respecting life, liberty or property. The death sentences for murder imposed upon Elias and Gordon at the court martial conducted upon HMAS Australia answered that description. But, as Starke J then asked, whilst the court martial had exercised "judicial power", had it exercised "the judicial power of the Commonwealth" identified in s 71 of the Constitution? ^[58] The answer in the negative given by his Honour was based upon historical considerations. In particular, Starke J ^[59] referred to the decision of the Supreme Court of the United States in 1857 in Dynes v Hoover. ^[60] Dynes was a seaman serving on the USS Independence who had been convicted of attempted desertion by a naval court martial, and sentenced to six months imprisonment. He sued in a civil court, among other things, for false imprisonment. In upholding the dismissal of the civil action, the Supreme Court said ^[61] that, quite independently of Art III of the United States Constitution:

Congress has the power to provide for the trial and punishment of military and naval offences in the manner then [ie in 1789] and now practiced by civilized nations.

[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". The result of doing so allows for continued significance of the historical considerations to which Kitto J referred in Davison and Jacobs J in Quinn. This brings us to the present case.

[52] Here, the decisive consideration is as follows. To the judicial system for the determination of criminal guilt to which Jacobs J referred in Quinn, there was the well-recognised exception for legislatively based military and naval justice systems of the kind which the Supreme Court of the United States had recognised in 1857 and which applied in the Australian colonies at federation. Those military and naval justice systems were directed to the maintenance of the defining characteristic of armed forces as disciplined forces organised hierarchically. By the applicable statutes, the legislature controlled and regulated the administration by and within the forces of disciplinary measures intended to maintain discipline and morale within the forces. That regulation proceeded not only by general reference to acts "to the prejudice of good order and military discipline" ^[62] but also by reference to particular acts which would constitute offences under generally applicable laws.

[53] In Re Tracey; Ex parte Ryan, ^[63] Mason CJ, Wilson and Dawson JJ gave detailed consideration to the Imperial and Australian colonial legislation in the period leading up to the adoption of the Constitution. This included systems of courts martial based upon those provided by the Naval Discipline Act 1866 (Imp) ("the Naval Discipline Act") ^[64] and the Army Act 1881 (Imp) ("the Army Act"). ^[65] Reference also may be made to the arrival in Sydney in 1891 of an auxiliary fleet to be equipped and maintained at the joint expense of the United Kingdom and the colonies under comprehensive legislative arrangements headed by the Imperial Defence Act 1888 (Imp) ^[66] and to the movement, under the influence particularly of Sir Henry Parkes, for the federation of all the military forces in the Australian colonies. ^[67]

[54] With respect to the continued significance of the Imperial legislation, in their joint judgment in Tracey, Brennan and Toohey JJ remarked: ^[68]

The Naval Discipline Act and the Army Act were in force when federation of the Australian colonies was under consideration and when the Constitution came into force on 1 January 1901. After federation, the Naval Discipline Act and the Army Act as in force from time to time were adopted as the legal foundations for the discipline of the naval and military forces of the Commonwealth: see the Defence Act 1903 (Cth), ss 55 and 56. The Defence Act made the military forces of the Commonwealth subject to the Imperial Army Act as in force from time to time while those forces were on active service, ie, engaged in operations against the enemy including any naval or military service in time of war: ss 4, 55. A similar provision (s 56) was made subjecting naval forces on active service to the Naval Discipline Act. In 1910, the naval forces were made subject to the Naval Discipline Act generally (Naval Defence Act 1910 (Cth), s 36) and in 1964 the application of the Army Act to the military forces was extended to service outside Australia: Defence Act 1964 (Cth), s 26. When the Air Force Act 1923 (Cth) was enacted, its members were not subject to the Army Act but in 1939 the Imperial Air Force Act (semble, The Air Force (Constitution) Act 1917 (UK)) was applied generally to the members of the air force subject to prescribed modifications: Air Force Act 1939 (Cth), s 6.

[55] That significant elements of Imperial law continued to apply in the system of courts martial, is demonstrated by the procedures followed in the World War II cases, Bevan and R v Cox; Ex parte Smith. ^[69]

[56] We now return to the primary submission for the plaintiff. This is to the effect that the adjudication of the charges presented against her and the infliction of any punishment by the service tribunals provided by the Act necessarily would require the exercise of the judicial power of the Commonwealth.

[57] To accept that submission would involve departing from the long-standing decisions in Bevan and Cox. Upon the correctness of those decisions the Parliament was entitled to rely in enacting the Act and the Appeals Act. In any event, and as indicated above, those decisions were correctly based upon a consideration of the operation of military justice systems in the Australian colonies and the deep importance attached to the continuation of the Imperial defence connection were the colonies to federate.

[58] It is not a matter of whether the service tribunal system was "taken outside Ch III simply by reason of the events of history", ^[70] but whether that system was ever within the exclusive operation of Ch III. 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 Kitto J referred in Davison ^[71] to an appreciation of the content of "the judicial power of the Commonwealth" which must have been universally understood in 1900.

[59] The plaintiff sought to strengthen her primary submission by reference to ss 75 and 76 of the Constitution, particularly s 76(ii). This empowers the Parliament to make laws conferring original jurisdiction on this Court in any matter arising under any laws made by the Parliament. Plainly, with respect to the trial of the offences with which the plaintiff is charged, the Act does not confer the original jurisdiction spoken of in s 76(ii). Nevertheless, the plaintiff sought to draw an implication from s 76(ii) to support her first submission. The alleged implication appears to be that where a matter arises under a law of the Parliament and is "fit for determination" by the exercise of judicial power, it necessarily follows that any resolution of that matter can only be had by the exercise of the judicial power of the Commonwealth. However, the conclusion does not follow from the premise. The circumstance that the Parliament is empowered to confer jurisdiction on this Court in matters arising under laws it makes does not carry any implication that any controversy to which such a law gives rise is susceptible of resolution only by the exercise of the judicial power of the Commonwealth.

The plaintiff's second submission

[60] There are in the case law secondary issues. These respect the limits upon the exercise of the legislative power conferred by s 51(vi) of the Constitution to proscribe and provide for the punishment of conduct other than through the engagement of the judicial power of the Commonwealth. Granted the capacity of the Parliament to legislate under s 51(vi) and outside Ch III for the provision of service tribunals, what are the limits of that power? Some of the limiting criteria have been considered in Tracey Re Nolan; Ex parte Young ^[72] and Re Tyler; Ex parte Foley, ^[73] in particular the so-called "service related" and "service status" tests.

[61] It is unnecessary here to recapitulate what was said on these topics. However, what is presently significant is that these secondary issues reflect the importance of what earlier in these reasons is identified as the defining characteristic of armed forces as disciplined forces organised hierarchically.

[62] In her second submission, the plaintiff fixes upon another suggested criterion of sufficient connection. This looks to the presence of substantial identity between service and civilian offences or the absence of an "exclusively disciplinary" nature in the service offences as indicative of the invalidity of the service tribunal system in the particular case in question.

[63] The offences with which the plaintiff is charged are said to have occurred in the State of Victoria. In her written submissions, the plaintiff emphasised that in Victoria the conduct alleged to found the charge of assault under s 33(a) of the Act would amount to an indictable common law assault ^[74] and would attract a maximum penalty of five years imprisonment. ^[75] Further, the "Territory offences" providing for the basis of the charges under s 61(3) of the Act would, if committed in Victoria, be indictable offences under the law of that State, ^[76] with a maximum penalty of 10 years imprisonment.

[64] As the oral argument developed, it became apparent that the plaintiff emphasised that the charges based upon the Act involved conduct which could be charged and tried in the ordinary civil courts of the State of Victoria and the punishment of imprisonment was available in respect of both categories of offence. That conjunction of law and circumstance was said to have placed the relevant provisions of the Act outside that area within which the Parliament might legislate with respect to the prosecution of offences created by reliance upon the defence power and without necessarily engaging Ch III.

[65] Some footing for the distinction sought to be drawn in this way is provided by statements by Deane J and by Gaudron J in Tracey, Nolan and Tyler, and by McHugh J in Nolan. In Tracey, Deane J concluded: ^[77]

[T]he comprehensive jurisdiction purportedly conferred by the Act upon service tribunals which are not Ch III courts is valid, in so far as offences committed within an Australian State or Territory in time of peace are concerned, only to the extent that it extends to dealing with exclusively disciplinary offences. That being so, the learned defence force magistrate in the present case lacks jurisdiction to deal with the charge under s 55(1)(b) (falsification of service document) but possesses jurisdiction to deal with the two charges under s 24(1) (absent without leave). (emphasis added)

Then, in Nolan, McHugh J said: ^[78]

In my opinion, unless a service tribunal is established under Ch III of the Constitution, it has jurisdiction to deal with an 'offence' by a member of the armed services only if such an 'offence' is exclusively disciplinary in character or is concerned with the disciplinary aspect of conduct which constitutes an offence against the general law. (original emphasis)

Thereafter, in Tyler, Deane J said that he continued: ^[79]

to reject what [he saw] as an unjustifiable denial of the applicability of the Constitution's fundamental and overriding guarantee of judicial independence and due process to laws of the Parliament providing for the trial and punishment of members of the armed forces for ordinary (in the sense of not exclusively disciplinary) offences committed within the jurisdiction of the ordinary courts in times of peace and general civil order. (emphasis added)

[66] In Tracey, Gaudron J declared: ^[80]

In my view the Act, to the extent that it purports to vest in service tribunals jurisdiction in relation to conduct engaged in by defence members in Australia constituting service offences which are substantially the same as civil court offences, is, in the present circumstances, beyond legislative power and invalid. ...

[T]he charges of absence without leave have no counterpart under the general law. The order nisi must be discharged so far as it has effect with respect to these charges.

The service offence created by s 55(1)(b) of the Act (falsification of service document) is in a different category. (emphasis added)

In Tyler, ^[81] Gaudron J spoke of "charges under the Act in relation to acts or omissions which, although called 'service offences', are, in essence, the same or substantially the same as criminal offences under the general law".

[67] In Tyler, ^[82] McHugh J accepted, with respect correctly, that his views and those of Deane J had been rejected by a majority of Justices in Tracey and Nolan. Nevertheless, given the significance that the point assumed in oral argument in the present case, it is appropriate to look further to the notions of identity or substantial similarity of "service offences" and criminal offences under the general law.

[68] There are several implicit assumptions made here. One is that the service tribunal system established by the Act attempts to displace or overreach obligations imposed upon the population generally by the ordinary civil law. Another is that no more is involved than a comparison between the constituent elements of a service offence and a general law offence.

[69] These assumptions do not provide an adequate starting point for an analysis of what is permitted to service tribunals which are not Ch III courts, and the relationship between service and civilian offences.

[70] In many instances, service as a defence member involves additional responsibilities whose enforcement calls for more than the application of the general law by civilian courts. The location in particular instances of this intersection and accumulation of responsibilities does not call for determination in the present case. This is because the submissions for the plaintiff were so cast as to deny any inquiry beyond the application of a false distinction based upon identity of constituent elements of two categories of offences.

[71] A more adequate starting point for analysis is apparent in the following passage in the title "Royal Forces" in the first edition of Halsbury's Laws of England. ^[83] The passage is as follows:

It is one of the cardinal features of the law of England that a soldier does not by enlisting in the regular forces thereby cease to be a citizen, so as to deprive him of any of his rights or to exempt him from any of his liabilities under the ordinary law of the land. He does, however, in his capacity as a soldier, incur additional responsibilities, for he becomes subject at all times and in all circumstances to a code of military law contained in the Army Act, the King's Regulations and Orders for the Army, and Army Orders. (footnotes omitted)

[72] The matter was taken up by Windeyer J in the following passage in Marks v The Commonwealth: ^[84]

The relationship of members of the armed Services to the Crown differs essentially from that of civil servants whose service is governed by the regulations of the Public Service. The members of the Forces are under a discipline that the others are not: they have duties and obligations more stern than theirs: and rights and privileges that they cannot claim.

[73] The identification of that which is reasonably necessary to the regularity and due discipline of the defence force cannot depend simply upon the absence of any counterpart for a particular norm of conduct in the general law. ^[85] Additional responsibilities of defence members may give to general norms of conduct a distinct and emphatic operation. This may be apt for enforcement in a system of military justice such as that established by the Act.

[74] Examples, with respect to crimes of personal violence, may be found in the discussion by McHugh J in Re Aird; Ex parte Alpert. ^[86] His Honour discussed, in the factual context of that case, the perception by foreign governments and members of the local population of defence members as representatives of Australia in a way tourist visitors are not. McHugh J also mentioned the reluctance of defence members to serve with personnel who engage in violent conduct, whether that reluctance is from fear of personal safety or rejection of such conduct or both.

[75] Thus, it is unsatisfactory to apply as a criterion of constitutional validity in a case such as the present a discrimen which fixes upon offences which can be said to be "exclusively disciplinary in character" and to dismiss from further analysis the significance to be attached to the overlap between service offences and offences under the general law.

[76] Undoubtedly difficult questions may arise in considering the significance for a particular case of that overlap. However, these questions need not be pursued in this case. The plaintiff's second submission is cast in a form which denies an occasion here for consideration of the overlap.

Conclusion

[77] The application should be dismissed with costs.