White v Director of Military Prosecutions

231 CLR 570

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(Decision by: Gleeson CJ)

White
vDirector of Military Prosecutions

Court:

Judges:
Gleeson CJGummow J
Kirby J
Hayne J
Callinan J
Heydon J
Crennan J

Hearing date:
Judgment date: 19 June 2007

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Decision by:
Gleeson CJ

[1] The plaintiff, a Chief Petty Officer in the Royal Australian Navy, has been charged with seven offences under the Defence Force Discipline Act 1982 (Cth) ("the Act"). The alleged offences are said to have occurred in Victoria. They involve complaints of acts of indecency, or assault, upon five other female members of the Australian Defence Force, all of lower rank. The trial of the charges has not yet occurred, but it will be either by court martial or a Defence Force magistrate. The plaintiff challenges the validity of the provisions of the Act creating the offences with which she has been charged and providing for trial and punishment of such offences. In order to sustain that challenge, the plaintiff invites the Court to overrule its previous decisions in Re Tracey; Ex parte Ryan, ^[1] Re Nolan; Ex parte Young, ^[2] and Re Tyler; Ex parte Foley. ^[3] For the reasons that follow, the invitation should be declined.

[2] Two arguments are advanced on behalf of the plaintiff. The first, which conflicts with the reasoning of all the Justices who participated in the trilogy of cases just mentioned, is that it is contrary to the Constitution, and beyond the power of the Parliament, to establish a system of military justice involving trial and punishment of service offences, being a form of Commonwealth-made criminal law, by tribunals operating outside Ch III of the Constitution. Under pressure of argument, senior counsel for the plaintiff developed a narrower submission, which was said to be supported by some of the dissenting reasoning in those cases. The alternative submission is that no such system of military justice can operate validly in the case of service offences constituted by conduct that would also be an offence against the civil law; that the Act purports to apply to such conduct; that it is impossible by any process of severance to confine its operation to exclusively disciplinary offences; and that the Act is therefore invalid. By an exclusively disciplinary offence, counsel said he meant an offence that has three characteristics: first, it is one for which there is no civilian equivalent; secondly, it pertains to service discipline; and thirdly, it involves no exposure to imprisonment.

[3] It is necessary to be clear about an argument the plaintiff did not seek to make. The alleged conduct of the plaintiff occurred at a time when the people involved were not in uniform and not on duty. However, counsel expressly disclaimed any argument that, if the Act were otherwise valid, the alleged offences in this case did not have the necessary service connection which some members of this Court have said is required for the valid application of the Act to particular conduct. ^[4] The defendants made it clear that, if any such argument had been advanced, they would have wished to lead evidence as to facts and circumstances relevant to the point. Because no such point was taken, the case proceeded on the basis of the existing state of the evidence. This matter, therefore, does not raise for decision the difference between what McHugh J, in Re Aird; Ex parte Alpert, ^[5] described as the "service status" and the "service connection" view of military jurisdiction. In the Supreme Court of the United States, the former view was adopted in O'Callahan v Parker, ^[6] but the latter view prevailed in the later case of Solorio v United States. ^[7] On the plaintiff's argument, both views are wrong, and the difference is presently immaterial. Whether the proceedings against the plaintiff "can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline", to use the test adopted by Brennan and Toohey JJ in Tracey, ^[8] is not an issue.

[4] Service offences under the Act include many offences constituted by conduct that would constitute an offence against the ordinary civil law. In Tracey, ^[9] it was pointed out that "both as a matter of history and of contemporary practice, it has commonly been considered appropriate for the proper discipline of a defence force to subject its members to penalties under service law for the commission of offences punishable under civil law", and reference was made to comparable legislation in the United States, Canada and New Zealand. Cases of sexual assault by one defence member upon another, or of offences involving prohibited drugs, provide examples of circumstances in which the requirements of Defence Force discipline and of the obedience which every citizen owes to the law may overlap. In that respect, it may be necessary to bear in mind that the seriousness of a certain form of misconduct may take on a different aspect if it occurs in the context of military service. In R v G é n é reux, ^[10] Lamer CJ said:

Many offences which are punishable under civil law take on a much more serious connotation as a service offence and as such warrant more severe punishment. Examples of such are manifold such as theft from a comrade. In the service that is more reprehensible since it detracts from the essential esprit de corps, mutual respect and trust in comrades and the exigencies of the barrack room life style. Again for a citizen to strike another a blow is assault punishable as such but for a soldier to strike a superior officer is much more serious detracting from discipline and in some circumstances may amount to mutiny. The converse, that is for an officer to strike a soldier is also a serious service offence. In civilian life it is the right of the citizen to refuse to work but for a soldier to do so is mutiny, a most serious offence, in some instances punishable by death. Similarly a citizen may leave his employment at any time and the only liability he may incur is for breach of contract but for a soldier to do so is the serious offence of absence without leave and if he does not intend to return the offence is desertion.

[5] This is a topic to which it will be necessary to return when dealing with the plaintiff's second argument. The difficulty of maintaining a clear distinction between breaches of service discipline and breaches of the civil law is exacerbated in circumstances of military conflict, but it is not limited to such circumstances. This may explain the plaintiff's preference for a challenge that turns upon no such distinction. The plaintiff's primary argument is that the trial and punishment of service offences necessarily involves an exercise of the judicial power of the Commonwealth, and may occur only within the limits imposed by Ch III of the Constitution. This, it is said, is because the power conferred by s 51(vi) of the Constitution, which is the power upon which Parliament relies to create service offences and establish a system of military justice, is given "subject to [the] Constitution", that is, subject to Ch III and to the separation of powers inherent in the structure of the Constitution. The scheme of the Act, it is said, is fundamentally inconsistent with the principles stated in the Boilermakers' Case. ^[11]

[6] In Tracey, ^[12] Brennan and Toohey JJ said:

[The Act] confers on service tribunals powers which are to be exercised judicially, which are subject to procedures spelt out in the statute appropriate to the exercise of judicial power, which provide for the imposition of penalties for conduct prohibited by law and which are subject to appeals that, on questions of law, may reach the Federal Court of Australia. The powers are conferred on officers of the Commonwealth by a law of the Commonwealth. These are indicia of the judicial power of the Commonwealth which can be exercised only by Ch III courts. They are not powers ... which [relate] merely to domestic discipline, not to the imposition of punishments as for the commission of criminal offences ... However, the imposition of punishments by service authorities as for the commission of criminal offences in order to maintain or enforce service discipline has never been regarded as an exercise of the judicial power of the Commonwealth. If that view be erroneous, no service tribunal has been validly constituted under a law of the Commonwealth since the Commonwealth assumed responsibility for the armed forces.

[7] Their Honours went on to say that the Convention Debates are silent on this point, by which presumably they meant on the relationship between service tribunals and Ch III. The Debates are not silent on the topic of courts martial. During the debate on s 68, which vests the command in chief of the naval and military forces of the Commonwealth in the Governor-General as the Queen's representative, Mr Deakin moved an amendment to put beyond doubt that the Governor-General, as commander in chief, was to act on the advice of Cabinet or the Minister of Defence. Mr Barton opposed the amendment as being unnecessary, and in that context discussed courts martial. He said: "A court-martial is a judicial tribunal, and a Minister cannot affect its decision in any way. He could not dismiss an officer conducting a court-martial, because that man would be acting in a purely judicial capacity." ^[13] Mr O'Connor said: ^[14]

You must have some one Commander-in-Chief, and, according to all notions of military discipline that we are aware of, the Commander-in-Chief must have control of questions of discipline, or remit them to properly constituted military courts. Dr Cockburn has referred to the trial of breaches of military discipline. Well, I should think that one of the most material parts of any Act constituting the forces of the Commonwealth would be to provide for the mode in which these courts-martial would be conducted, and the Parliament would have abundant power to decide how these matters were to be conducted, and what the particular form of the court was to be. (emphasis added)

[8] Not only is there "testimony to the absence of any consciousness on the part of the delegates that they were leaving the naval and military forces of the Commonwealth without authority to maintain or enforce naval and military discipline in the traditional manner", ^[15] but, rather, it is clear that, as would be expected, the delegates were well aware of the role and functions of service tribunals, and Mr O'Connor told them that Parliament would have "abundant power" to decide how such tribunals were to be set up for the purposes of the new naval and military defences forces.

[9] Five members of the Court in Tracey (Mason CJ, Wilson and Dawson JJ, and Brennan and Toohey JJ) examined the history of courts martial in Australia, the United Kingdom, and the United States, before Federation. ^[16] It is unnecessary to repeat what was there said, but it is necessary to recognise its importance. That history forms part of the context relevant to the construction of the Constitution and, in particular, to an understanding of the relationship between s 51(vi) and Ch III. In the Supreme Court of the United States, an examination of history was central to the reasoning in both of O'Callahan and Solorio. In the latter case, it was said that the earlier case understated the extent to which, in English and American history, there had been military trial of members of the armed forces committing civilian offences. The majority in Solorio said it was wrong to suggest that, at the time of the American Revolution, military tribunals in England were available only where ordinary civil courts were unavailable. ^[17] As to American practice, they referred to George Washington's statement that "[a]ll improper treatment of an inhabitant by an officer or soldier being destructive of good order and discipline as well as subversive of the rights of society is as much a breach of military, as civil law and as punishable by the one as the other". ^[18] It may be added that the separation of powers involved in the structure of the United States Constitution, which served as an important model for the framers of the Australian Constitution, was not regarded in the United States, either before or after 1900, and was not regarded in either O'Callahan or Solorio, as incompatible with a system of military tribunals operating outside Art III. It should also be noted that the constitutional foundation for the power to establish military tribunals was said in Solorio ^[19] to be Art I, §8, cl 14 which gives Congress power to make Rules for the "Government and Regulation of the land and naval Forces". This grant of power was said to be plenary, and cl 14 was to be given its plain meaning. ^[20] Reference was made to Alexander Hamilton's description of the power as "essential to the common defense", and to his statement: "These powers ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them." ^[21] The exemption in the Fifth Amendment of "cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger" from the requirement of prosecution by indictment and the right to trial by jury was not treated in Solorio as the source of the power of Congress to establish military tribunals. The source of the power was the original grant of power, which corresponds with s 51(vi) of the Australian Constitution.

[10] Professor W Harrison Moore, writing in 1910, ^[22] described courts martial as tribunals which exercise a judicial function but which stand outside Ch III. He cited an American author ^[23] who said of such tribunals in the United States that "although their legal sanction is no less than that of the Federal Courts, being equally with them authorized by the Constitution, they are, unlike these, not a portion of the judiciary of the United States. ... Not belonging to the judicial branch of the Government, it follows that Courts martial must appertain to the executive department, and they are in fact simply instrumentalities of the executive power provided by Congress for the President as Commander-in-Chief to aid him in properly commanding the army and navy, and enforcing discipline therein, and utilized under his orders or those of his authorized military representatives."

[11] Professor Moore said that it would be dangerous to attempt an exhaustive statement of the cases in which judicial functions may be exercised under the Constitution by authorities other than the courts established or invested with jurisdiction under s 71. ^[24] He gave three examples: the power of Parliament to deal with disputes as to elections and qualifications of members; the granting and withholding of licences; and the jurisdiction of courts martial. As to the first of those examples, in Sue v Hill ^[25] the majority held that such a power was capable of being conferred, and had been conferred, on a Ch III court (just as it would be possible for Parliament to assign service offences to Ch III courts), but nothing in any of the reasons for judgment in that case casts doubt upon Parliament's power to deal with such matters itself. There was no suggestion by any member of the Court that the principle of the separation of powers obliged Parliament to confer jurisdiction on a Ch III court.

[12] In R v Cox; Ex parte Smith, ^[26] a prisoner objected to the jurisdiction of a court martial on the ground that, because he had become a civilian again, to allow a court martial to exercise jurisdiction over him would be contrary to the principles of Ch III which confides the judicial power of the Commonwealth exclusively to courts of justice. Citing the decision of the Court in R v Bevan; Ex parte Elias and Gordon, ^[27] Dixon J rejected the argument, saying: ^[28]

In the case of the armed forces, an apparent exception is admitted and the administration of military justice by courts-martial is considered constitutional ... The exception is not real. To ensure that discipline is just, tribunals acting judicially are essential to the organization of an army or navy or air force. But they do not form part of the judicial system administering the law of the land. It is not uniformly true that the authority of courts-martial is restricted to members of the Royal forces. It may extend to others who fall under the same general military authority, as for instance those who accompany the armed forces in a civilian capacity.

[13] Dixon J's statement that military tribunals do not form part of the judicial system administering the law of the land echoes Starke J's observation in Bevan ^[29] that the Supreme Court of the United States had held that courts martial form no part of the judicial system of the United States. Starke J went on to say ^[30] that a similar construction of the Australian Constitution was necessary from a practical and administrative point of view.

[14] To adopt the language of Brennan and Toohey JJ in Tracey, ^[31] history and necessity combine to compel the conclusion, as a matter of construction of the Constitution, that the defence power authorises Parliament to grant disciplinary powers to be exercised judicially by officers of the armed forces and, when that jurisdiction is exercised, "the power which is exercised is not the judicial power of the Commonwealth; it is a power sui generis which is supported solely by s 51(vi) for the purpose of maintaining or enforcing service discipline." The plaintiff's primary argument fails.

[15] The plaintiff's second argument depends upon the proposition that, even if it is accepted (as established by an unbroken line of authority in this Court) that, as a matter of construction of the Constitution, military service tribunals do not exercise the judicial power of the Commonwealth within the meaning of s 71, that construction only holds good when such tribunals are dealing with exclusively disciplinary offences, as earlier defined. A somewhat similar, although by no means identical, approach appealed to Deane J and Gaudron J who were in dissent in Tracey, and for a time appealed to McHugh J, who later accepted that the weight of authority was against it. ^[32]

[16] It is an over-simplification, and an erroneous summary, of the opinion of Deane J in Tracey to say that, at least in time of peace and general civil order, and in respect of conduct in Australia, he considered that jurisdiction could be conferred on a service tribunal operating outside Ch III only in respect of exclusively disciplinary offences. To demonstrate that, it is necessary to refer in some detail to his reasoning. ^[33]

[17] Having begun his reasons by explaining the importance of the principle of the separation of powers, and of Ch III as a guarantee of due process, Deane J, rejecting by implication the primary argument for the plaintiff in this case, went on to consider the theoretical justification for accepting that in some circumstances service tribunals may be given jurisdiction outside Ch III. He said that a claim to exercise judicial power by any Commonwealth officer or instrumentality other than a court designated by Ch III can be allowed only if justified as a qualification of the provisions of Ch III, and, in the past, the Court had accepted at least two such qualifications: the powers of Parliament to deal with contempt or breach of privilege; and the powers of military tribunals to enforce military discipline. He cited the passage from the judgment of Dixon J in R v Cox quoted above, and said that the legal rationalisation for the acceptance of service tribunals outside Ch III "can only lie in an essentially pragmatic construction of the reference to 'the judicial power of the Commonwealth' in Ch III to exclude those judicial powers of military tribunals which [had] traditionally been seen as lying outside ... 'the judicial system administering the law of the land'". Accordingly, he said, it became necessary to identify the critical features of the powers that had traditionally been so regarded. Thus, Deane J saw the question as one of construction of the reference to the judicial power of the Commonwealth in Ch III, and accepted that some judicial powers of military tribunals did not involve the exercise of the judicial power of the Commonwealth. Which powers? The answer he gave was those that have traditionally been seen as lying outside the ordinary civilian judicial system.

[18] Deane J did not make the mistake of thinking that traditionally it was only exclusively disciplinary offences, in the sense of offences based on conduct that would not also constitute an offence against civil law, that were dealt with, and seen as properly dealt with, by service tribunals outside the ordinary civilian judicial system. He referred also to another category of offence, which he called service-related offences: offences involving conduct of a type which is commonly an offence under the ordinary criminal law but which takes on a "special character" by reason of the fact that it bears a particular relationship to military discipline. He gave, as an example, an assault on a superior officer. ^[34] He did not exclude such service-related offences from the matters that were traditionally accepted as falling within the proper jurisdiction of service tribunals. He said that if the legislation in question to deal with such service-related offences could properly be restricted, by a process of reading down or severance, "to a disciplinary jurisdiction, which did not supplant the jurisdiction of the ordinary criminal courts to deal with the general community aspects of such conduct, it would fall within the traditional judicial powers of military tribunals and escape the reach of Ch III of the Constitution". ^[35] He returned to this point in Nolan, ^[36] where he summarised the view he expressed in Tracey as being that Parliament can, consistently with Ch III, confer judicial powers upon service tribunals to deal with offences that were "essentially disciplinary" in their nature, in the sense of being concerned either with "exclusively disciplinary" offences or with the disciplinary aspects of other "service-related" offences. In Deane J's view, offences that were "essentially disciplinary" included, but were not limited to, offences that were exclusively disciplinary. To ignore his acceptance of what he called service-related offences, as well as exclusively disciplinary offences, as falling within the category of essentially disciplinary offences that could be dealt with by service tribunals operating outside Ch III would be to mis-state his reasoning.

[19] However, it is this part of the reasoning of Deane J that presents a difficulty. An illustration of the problem of separating essentially disciplinary offences from civil offences may be seen in the archetypal disciplinary offence: mutiny. The essence of mutiny lies in the combination to defy authority. The offence strikes at the heart of a disciplined, hierarchical service. The overt acts that accompany, and may evidence, mutiny will commonly involve conduct that is an offence at civil law. Injury to persons or property, or even the taking of life, may be involved. Trial and punishment for mutiny, which may well occur in exigent circumstances, is unlikely to permit a neat distinction between the disciplinary aspects and what Deane J called "the general community aspects" ^[37] of such conduct. The problem may also be illustrated by considering the example Deane J gave of a "service-related offence" -- an assault upon a superior officer. How does a body dealing with such an offence distinguish between the disciplinary aspects and the general community aspects of such conduct? George Washington has a place in tradition, and his views, quoted earlier, about military abuse of civilians are impossible to reconcile with such a distinction. If, as appears to be accepted generally, a given offence, such as theft from a comrade, may have, in a military context, an aspect more serious than the same conduct would have in a civilian context, there appears to be no foundation for the proposition that tradition attempted to distinguish, in terms of procedures or punishment, between the service-related aspects and the general community aspects of such conduct.

[20] A similar problem emerges from the more general qualification made by Deane J in introducing his statements of principle by limiting their application to times of peace and general civil order, ^[38] and to offences committed within Australia. ^[39] Those limitations allow for military tribunals to deal with offences committed during combat, but not with offences committed during training (in Australia) for combat. Military exercises, during peacetime, may require the same kind of discipline as combat in wartime.

[21] There are two basic difficulties. The first comes back to what was said by Alexander Hamilton about the nature of the defence power: it is impossible to foresee or define the extent and variety of national exigencies or of the means which may be necessary to satisfy them. The second was identified by Brennan and Toohey JJ in Tracey. ^[40] It is that whether an offence is more properly to be regarded as an offence against military discipline or a breach of civil order will often depend, not upon the elements of the offence, but upon the circumstances in which it is committed. Assaulting an officer might be identified readily as "essentially disciplinary" in most circumstances, but not in some. The same may be said of a sexual offence against another defence member; or conduct in relation to prohibited drugs. This was the point being made by an American author ^[41] cited in Tracey, ^[42] who said:

As to whether an act which is a civil crime is also a military offence no rule can be laid down which will cover all cases, for the reason that what may be a military offence under certain circumstances may lose that character under others.

[22] In the plaintiff's alternative argument, it is only exclusively disciplinary offences that may be tried by a service tribunal established outside Ch III, and, to decide whether an offence is of that character, one looks at the elements of the offence and asks whether those elements constitute an offence at civil law. The plaintiff's argument was not qualified by considerations of whether the offence occurred in a time of peace or war, or within or outside Australia.

[23] Insofar as the justification for the plaintiff's argument is said to be that it limits the jurisdiction of military tribunals to what is necessary for defence purposes, so as to give the exception to Ch III the narrowest scope consistent with its purpose, and thereby to allow the principle of separation of powers, and the protections of Ch III, the fullest scope, then such justification rests upon a bare and unconvincing assertion as to the requirements of necessity. If one were to ignore history, and simply to ask what jurisdiction s 51(vi) requires, as a matter of necessity, for service tribunals, then, for the reason stated by the American author in the passage quoted above, the answer will not be found in a formula that depends solely upon the elements of offences, and ignores the circumstances in which they were committed.

[24] There is a serious question of interpretation of the Constitution, involving the need to give due weight to the protections contained in Ch III, and to the separation of powers inherent in the structure of the Constitution, while at the same time acknowledging the considerations of history and necessity referred to by Brennan and Toohey JJ in Tracey. Their response to that question was to conclude that proceedings may be brought for a service offence in a tribunal established outside Ch III only if those proceedings can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline. That is a response that recognises the impossibility of classifying an offence as either military or civil simply by reference to the technical elements of the offence, ignoring the circumstances in which it is committed. If, contrary to the plaintiff's argument, one were to adopt a different test for conduct in wartime, or overseas, then one would be accepting that on some occasions the circumstances (of time and place) in which conduct occurred would be material, perhaps decisive, and on other occasions the circumstances would be irrelevant. This seems illogical.

[25] The plaintiff's alternative argument also fails.

[26] The application should be dismissed with costs.