White v Director of Military Prosecutions

231 CLR 570

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(Judgment by: Heydon J)

White
vDirector of Military Prosecutions

Court:

Judges: Gleeson CJ
Gummow J
Kirby J
Hayne J
Callinan J

Heydon JCrennan J

Hearing date:
Judgment date: 19 June 2007

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Judgment by:
Heydon J

[246] Subject to the qualifications set out below, I agree with Callinan J's account of the background, ^[340] and with his view ^[341] that the authorities, as analysed by Brennan and Toohey JJ in Re Tracey; Ex parte Ryan, ^[342] foreclose acceptance of the plaintiff's arguments. Those authorities should not be reopened in this case. On those grounds I agree that the application should be dismissed with costs.

[247] The qualifications referred to above are:

(a)

When Brennan and Toohey JJ referred to the teachings of "history", "established practice" and "necessity", they are to be understood as referring to history up to the time of federation, established practice as at that time, and necessity as understood at that time; ^[343] for later history and practice, and later perceptions of what was or is necessary, cannot affect the construction of at least those parts of the constitutional language as enacted in 1900 which are relevant to the present problem.

(b)

When Brennan and Toohey JJ referred to what the framers of the Constitution did or did not intend ^[344] they are to be taken to have referred to what the language drafted by the framers meant.