Legal database - View: Cases: White v Director of Military Prosecutions

White v Director of Military Prosecutions
231 CLR 570

(Decision by: Kirby J)

White
vDirector of Military Prosecutions

Court:

High Court of Australia

Judges: Gleeson CJ
Gummow J

Kirby J Hayne J
Callinan J
Heydon J
Crennan J

Hearing date:
Judgment date: 19 June 2007

Decision by:
Kirby J

[78] These proceedings involve a challenge to the constitutional validity of the trial of charges brought under the Defence Force Discipline Act 1982 (Cth) ("the Act"). The case obliges this Court to return to first principles.

[79] In the past, there have been holdings, assumptions and dicta concerning the validity of the applicable provisions of the Act and its predecessors. However, the point now presented has not hitherto been decided. In a number of recent cases, it was reserved. ^[87] Where a challenge of such a kind is presented by a party with the requisite standing, this Court is engaged in the most important function for which it is established by the Constitution. ^[88] A laissez faire attitude to challenged federal legislation is not one that this Court has historically adopted. ^[89] It is not one that I would adopt now. ^[90]

[80] The challenge to the constitutional validity of the provisions in question succeeds on the second argument advanced in the proceedings. ^[91] Appropriate relief should issue. This would have the beneficial consequence of requiring a restructuring of the Act to confine the exercise of "military justice", outside the courts, to disciplinary offences properly defined, remitting all other contested offences to the independent courts of the Judicature, established in accordance with Ch III of the Constitution. Defence personnel are citizens. They are entitled, as much as any others, to one of the most precious guarantees that the Constitution offers -- the resolution of disputed charges of serious criminal conduct before independent courts operating wholly within the Judicature and outside the Executive.

The facts

[81] The alleged offences: Ms Anne White ("the plaintiff") is a defence member, ^[92] being a member of the Permanent Navy of the Commonwealth ("the Royal Australian Navy"). The expression "defence member" includes, in certain circumstances, members of the Reserves. ^[93] The plaintiff has been charged with seven "service offences". ^[94]

[82] Six of the alleged offences charge that the plaintiff engaged "in conduct outside the Jervis Bay Territory" which is a "Territory offence", ^[95] being an offence of an act of indecency without consent. The remaining charge, alleged in the alternative to such an offence, asserts that the plaintiff assaulted a named person in a public place. The indecency offences are based on the Crimes Act 1900 (ACT), s 60 as applied to a defence member by s 61(3) of the Act. That section extends defined Territory offences to "a defence member or a defence civilian". ^[96]

[83] The plaintiff denies all of the offences. A contest between the first defendant, the Director of Military Prosecutions ("the Director"), and the plaintiff is thus presented as to whether the Director can prove the charges against the plaintiff according to law in a constitutionally valid court or tribunal. Unless restrained by this Court, the Director intends to request the Registrar of Military Justice to refer the charges for trial before a Defence Force magistrate or to convene a court martial for such trial. ^[97] The determination of the charges at trial has been interrupted by these proceedings.

[84] The surrounding circumstances: Although this Court has not been asked to determine any contested facts, the record contains an affidavit of the plaintiff, included without stated objection by the Director or the Commonwealth (the latter added as second defendant). The affidavit contains unchallenged assertions which, although not determinative of any constitutional question, illustrate the kind of circumstance to which the language of the Act lends itself to application, if the Act is valid.

[85] Thus, the plaintiff states that she was not in uniform at the time of the alleged offences; nor on duty; nor on the property of the Commonwealth. Moreover, she states that the complainants were not in uniform, not on duty and not on the property of the Commonwealth at such times. As well, she states that no other person who was present at the time of the alleged offences was in uniform or on duty. These facts (and the extension of the Act to defence members in the Reserves as well as to defence civilians) give a clue as to the very wide ambit of the asserted operation of the Act.

[86] The loss of jury trial: The offences with which the plaintiff has been charged are all alleged to have occurred at a hotel at Williamstown in the State of Victoria. If the offences were prosecuted under the applicable criminal law of the State of Victoria (the Crimes Act 1958 (Vic), s 39), the offences of indecent assault would carry a punishment described as "Penalty: Level 5 imprisonment (10 years maximum)". Under s 2B of that Victorian statute, all offences against that Act are, unless a contrary intention appears, "deemed to be indictable offences". It follows that, if the plaintiff had been charged under Victorian law, in respect of the alleged offences, she would have been entitled to trial by jury.

[87] Likewise, under the criminal law of the Australian Capital Territory, as applicable in the Jervis Bay Territory, purportedly applied to the plaintiff as a defence member, the charges of indecent assault would involve offences punishable, on conviction, by imprisonment for five years. ^[98] That fact would similarly entitle the plaintiff to trial by jury, if disputing the charges, or any of them, in either of such Territories.

[88] In her affidavit, the plaintiff states that she wishes "to exercise my constitutional right to have the alleged indictable offences the subject of trial by jury". Under the Act, as it stood at the relevant time, the plaintiff purportedly has no entitlement to jury trial by federal law, whether before a jury of fellow citizens, of the kind envisaged by s 80 of the Constitution, or even before a "military jury", subsequently created by amendments to the Act which the parties agreed had not come into operation so as to apply to the plaintiff's case. ^[99]

[89] The present proceedings do not call for a decision as to whether the future provisions of the Act for a "military jury" (or for the proposed Australian Military Court outside Ch III of the Constitution) are valid. However, the existence of such provisions, called to the Court's notice during the argument, alerts the Court to the implications of the present case for the future operation of Ch III in the context of military justice. The amendments provide a warning about the importance of this decision for whether criminal laws might be applied, outside the ordinary courts of the land, to citizens who happen to be members of the Defence Force. The Court cannot later complain that it was not warned of the next intended step in military exceptionalism.

The legislation

[90] Service tribunals and offences: The Act contains many provisions governing the conviction and punishment of defence members. Through the vehicle of s 61 of the Act, such provisions extend to the whole gamut of criminal offences provided by the "Territory offences". ^[100]

[91] In drafting the Act, no attempt was made to confine the "offences" to those that could be characterised as exclusively or essentially related to the discipline of defence members (or other related personnel); to discipline in a time of war, in places of combat or on overseas or remote assignments; or to offences appropriate and adapted (or proportionate) to the disciplinary control of defence members, as such. On the contrary, the Act casts the widest possible net of "offences" to which a defence member is subject. Moreover, it sets up a system of prosecutions by the Director, an office-holder distinct from the Director of Public Prosecutions of the Commonwealth. ^[101] It provides for "service tribunals", including courts martial and Defence Force magistrates, outside the ordinary courts that exercise federal jurisdiction. ^[102] Neither of these specified kinds of "service tribunals" is a court within the Judicature for which Ch III of the Constitution provides. Each envisages significant departures from the time-honoured features of such courts. Those features are essential to the independence and impartiality of the courts.

[92] Under the Act, courts martial may be either "general" or "restricted". ^[103] To be eligible to be a member of a court martial, a person is not chosen by reference to legal training, skill, experience or competence but by reference to a defined association with the Defence Force and the holding of a specified rank in that Force. ^[104] Provision is made for a "judge advocate". ^[105] However, the President, members, reserve members and the judge advocate are not appointed as part of a permanent court. Instead, they are appointed on an ad hoc basis by the Registrar of Military Justice ^[106] as required for each particular court martial. ^[107] The lack of the necessity (or actuality) of universal legal training; the ad hoc constitution of the tribunal; the lack of tenure of members; and the requirement to select persons who must be associated with the Force (and therefore necessarily interested in the conduct of the accused), all represent very serious departures from the normal features of Ch III courts.

[93] Nor is the position of a Defence Force magistrate under the Act designed to remove the defects just mentioned. Despite the use of the word "magistrate", which in Australia (including in the new Federal Magistrates Court) now connotes judicial officers with characteristics of tenure and independence substantially the same as the judiciary of Ch III courts, ^[108] the Defence Force magistrates are quite different. They are not appointed by the Governor-General in Council. ^[109] Instead, they are appointed by the Judge Advocate General by instrument in writing. ^[110]

[94] The only person who can be appointed a Defence Force magistrate is an "officer" who is a member of the judge advocates' panel. ^[111] The word "officer" is defined in the Act to mean a person so appointed including, in the Royal Australian Navy, a person holding a specified rank. ^[112] An officer is appointed to the judge advocates' panel not for the normal tenure of a magistrate in Australia (ie to age 70 years) ^[113] but for the limited period specified in the instrument of appointment which may be no longer than a period of three years (and, by definition, may be shorter and even ad hoc). ^[114] Provision is made for the reappointment of such a "magistrate" for a further period or periods. ^[115] This is another feature alien to the judiciary in Ch III. It is a feature susceptible to misuse, with the potential to disadvantage those who perform their duties with complete impartiality but who do not satisfy the expectations of the Executive Government or the Defence Force. ^[116]

[95] At the very least, the appointment is therefore subject to the appearance of misuse and disadvantage. Defence Force magistrates must have legal qualifications. They are required to take an oath or affirmation in substantially the form of that taken by federal judges. ^[117] However, the conditions of appointment, particularly tenure, fall far short of those applicable under Australian federal law to members of the federal judiciary, including the federal magistracy.

[96] The importation of an entire criminal statute inevitably presented the risk of overlap between other applicable federal laws (containing criminal offences) and State or Territory laws addressed to the same conduct. The Act contains provisions to reduce the risks of conflict and double jeopardy. ^[118] Thus, for certain Territory crimes on the part of a defence member (including "treason, murder, manslaughter or bigamy") ^[119] , the consent of the Commonwealth Director of Public Prosecutions must be secured for a service prosecution. In all non-specified cases, decisions on prosecutions in "service tribunals" are to be made by the Director of Military Prosecutions. ^[120] Provision is made that "[s]ubject to the Constitution, a civil court does not have jurisdiction to try" a service offence or an offence ancillary to a service offence. ^[121] Once a person is convicted or acquitted of a service offence, or acquitted or convicted by a civil court of a civil court offence, the person is not liable to be tried by a service tribunal for the same offence or for an offence that is substantially the same offence. ^[122]

[97] Ambit of surrogate Territory offences: The integration of the "offences" in the Act and the general criminal law applied in civil courts in Australia is made clear by the incorporation, by reference, of the Crimes Act of the Australian Capital Territory as applied in the Jervis Bay Territory ^[123] -- a geographic place substantially devoted to Defence Force purposes. Other offences provided by the Act address much more specific service concerns. These include offences relating to operations against the enemy; ^[124] mutiny, desertion and unauthorised absence; ^[125] insubordination and service-related violence; ^[126] offences relating to the performance of duty; ^[127] and property offences (addressed to destruction, damage or misuse of Defence Force property) ^[128] . As well, the Act provides for various ancillary and miscellaneous offences, mainly connected with procedure, anterior proceedings before service tribunals, personnel matters and the like. ^[129]

[98] At least in certain circumstances, such offences might qualify as offences exclusively or essentially of a disciplinary character. However, even here, the Act is at pains to integrate the offences provided into the general criminal law of the Commonwealth. Thus s 10 of the Act renders Ch II of the Criminal Code of the Commonwealth (setting out general principles of criminal responsibility) applicable to "all service offences" other than transitional "old system offences". The provisions of the Act for the investigation of "service offences" ^[130] follow an altered version of the requirements ordinarily applied to civilian criminal investigation. In a general provision concerning "[s]entencing principles", the Act prescribes that a service tribunal, in determining what action should be taken in relation to a convicted person, shall have regard to "the principles of sentencing applied by the civil courts, from time to time" and "the need to maintain discipline in the Defence Force". ^[131]

[99] Range of service punishments: Whilst there are some restrictions, a service tribunal is generally empowered to impose a punishment of imprisonment on a person convicted of a service offence. ^[132] The maximum punishment provided for in the several service offences varies. Many punishments include imprisonment for a maximum of three months. Others provide for imprisonment for a term of years, typically up to two or five years. However, for several more serious offences, imprisonment for up to fifteen years is provided. ^[133] And for a limited number of offences a maximum punishment of imprisonment for life is provided. ^[134]

[100] Imprisonment for life is now the highest penalty provided under Australian law, whether federal, State or Territory law. Without exception, offences carrying a penalty of imprisonment for life, when provided by federal, State and Territory law, may only be prosecuted on indictment. In accordance with s 80 of the Constitution, a federal offence, prosecuted on indictment, attracts an unquestioned entitlement to jury trial in court.

[101] In fact, the offences alleged against the plaintiff do not attract a maximum punishment of life imprisonment. However, by s 61 the maximum punishment for an offence based on a Territory offence is the relevant Territory punishment. ^[135] Had the Director charged the plaintiff only with the offence of assault under s 33 of the Act, the maximum punishment applicable for the specific service offence would have been imprisonment for six months. By electing to pursue charges of offences based on the general Territory offence of indecent assault, the Director has exposed the plaintiff to a maximum punishment of five years imprisonment for each offence of which she may be convicted. ^[136] But without an indictment, the defendants argue, the plaintiff has no entitlement to jury trial. ^[137]

The issues

[102] The plaintiff's arguments: The reasons of Gummow, Hayne and Crennan JJ ("the joint reasons") point out ^[138] that the issues presented by the plaintiff's submissions developed somewhat during the course of oral argument. Ultimately, the two issues that arise for decision are, in the alternative:

(1): The strict separation issue: Having regard to the text and structure of the Constitution, are the relevant grants of constitutional power pursuant to which the Act was enacted (notably s 51(vi) [defence] and s 51(xxxix) [incidental powers]) all subjected to the requirements of Ch III of the Constitution, allowing no relevant exceptions? Most especially, having regard to s 71 of the Constitution, and to the true character of the functions committed by the Act to the named service tribunals, has an impermissible attempt been made to vest "the judicial power of the Commonwealth" in bodies other than the courts there described? If so, does such impermissible vesting of jurisdiction render the service tribunals, before one of which the Director proposes to prosecute the offences alleged against the plaintiff, invalid, so as to support the issue of a constitutional writ of prohibition addressed to the Director as an "officer of the Commonwealth", ^[139] to forbid that course?
(2): The limited exception issue: Alternatively to (1), is there a limited exception, consistent with the requirements of Ch III of the Constitution, so that particular but restricted jurisdiction may be conferred on bodies such as the service tribunals? Do the foregoing grants of federal legislative power support the establishment of a regime for the exercise of disciplinary powers outside the Ch III courts? If such an exceptional disciplinary jurisdiction is valid, what is the ambit of this permissible exception? Does the Act, by its provisions, fall within or outside that ambit? In considering that question, what weight should be given to the provision for jury trial expressed in s 80 of the Constitution? If, in its relevant provisions, the Act falls outside the ambit of the permissible exception, can the offending provisions be severed? Is the plaintiff entitled to the relief sought?

[103] Subsidiary issues: If a conclusion in favour of the plaintiff appears to arise on a consideration of the arguments presented under one or other of the issues proffered above, the question remains whether relief should nonetheless be withheld upon all, or any, of the following arguments, referred to in the joint reasons:

(3): The decisional authority issue: Is the relief claimed by the plaintiff inconsistent with the authority of this Court, in so far as it has hitherto decided or assumed the constitutional validity of service tribunals (especially courts martial) as they have evolved during the history of the Commonwealth?
(4): The historical exception issue: Is there an exception that sustains the constitutional validity of service tribunals, supported by the long history of such tribunals in British Imperial provisions, against the background of which the Australian Constitution was written?
(5): The regulatory state issue: Does an insistence on the separation of the judicial power overlook the advent of the modern regulatory state that has arisen since the adoption of the Constitution in 1900? May the jurisdiction and powers of the service tribunals, therefore, be seen as a special kind of regulatory order, necessary to the exercise of the defence power, which inherently contemplates a disciplined force?
(6): The abstract reasoning issue: Is the supposed inconsistency of the service tribunals with the requirements of Ch III of the Constitution an illustration of the dangers of "abstract reasoning" on the part of the plaintiff and her representatives? ^[140]
(7): The characterisation of offences issue: Does the plaintiff's second, or alternative, issue, rely upon a distinction between strictly "disciplinary" and other offences, that is illusory so that it cannot be what the Constitution requires?

The separation of judicial power issues

[104] The plaintiff's arguments: It is convenient to deal with the first and second issues together. The plaintiff presented the question before the Court as a relatively straight-forward one. Basically, it was to be answered in her favour by the application of no more than the language and structure of the Constitution.

[105] She accepted that the Act was an attempt to make a law concerning the discipline of defence members such as herself. On the face of things, it therefore fell within the power which s 51 of the Constitution confers on the Parliament to make laws:

for the peace, order, and good government of the Commonwealth with respect to:

...

(vi)
The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth.

If those words stood on their own, a federal law on the discipline of defence members would, prima facie, be within the grant of power.

[106] Breadth of the defence power: For three reasons, at least, it is self-evident that the grant of power in s 51(vi) of the Constitution should not be narrowly construed. First, it appears in a grant to a Parliament established to serve a new nation intended to take its place amongst the nations of the world. Secondly, in addition to the general principle that such grants of constitutional power should be afforded a full and ample meaning, ^[141] the power in s 51(vi) is particularly apt for such an approach, given its purposive expression. Thirdly, above and beyond the other particular grants of power, that for the naval and military defence of the Commonwealth is in many respects special.

[107] In Australian Communist Party v The Commonwealth, ^[142] Latham CJ observed that the defence power is designed to protect the "continued existence of the community under the Constitution". In a sense, it is thus "a condition of the exercise of all the other powers contained" in the Constitution, including therefore the judicial power. Whilst Latham CJ's words in that case were written in dissent, no one can doubt the very great importance of the grant of legislative power contained in para (vi) of s 51 of the Constitution. The plaintiff did not question the amplitude of the power. But she pointed to the established doctrine that its ambit waxes and wanes according to the necessities of war or the conditions of peace, as presently prevailing. ^[143]

[108] Moreover, however wide the ambit of the power may extend, s 51(vi) is still part of the "one coherent instrument" ^[144] that is the Constitution. The established doctrine of this Court is that a particular head of power is "intended to be construed and applied in the light of other provisions of the Constitution". ^[145] Accordingly, the defence power is subject to restrictions such as are contained in s 51(xxxi) [acquisition on just terms] ^[146] and s 92 [interstate trade]. ^[147] It may also be subject, in certain circumstances, to the limitations stated, for example, in s 116 [religion]. ^[148]

[109] Express subjection to Ch III: The subjection of the grant of power in s 51(vi) to other grants of power in s 51, where relevant, and to any express limitations upon law-making appearing in the Constitution, would probably have been inferred from the inclusion in the one constitutional instrument of such potentially overlapping provisions. However, in Australia, the subjection is not left to inference or implication. It is expressly stated by the opening words of s 51. The Parliament enjoys the powers enumerated, including in s 51(vi), "subject to this Constitution". This includes, relevantly, Ch III ("The Judicature"). Specifically, it includes s 71, by which "the judicial power of the Commonwealth" is vested in this Court, other federal courts created by the Parliament and such other courts as the Parliament invests with federal jurisdiction. It also includes s 80, dealing with trial by jury of certain offences.

[110] According to the plaintiff, these provisions of the Constitution, and the relatively strict way in which they have been construed by this Court over the years, mean that it is impossible entirely to detach service tribunals, created pursuant to s 51(vi) of the Constitution for military discipline, and to place them as legislative adjudicators outside the requirements of Ch III and its specific provisions, including s 71 (and s 80). In so far as, properly analysed, such service tribunals exercise any part of the "judicial power of the Commonwealth", they may be created by the Parliament. However, the Parliament must create them in the form of a "court", complying with the strict requirements laid down in Ch III of the Constitution as to the appointment, tenure, remuneration (s 72), appellate supervision (ss 73, 74) and facilities for trial by jury (s 80).

[111] Because, manifestly, the service tribunals created by the Act are not "courts" within s 71 of the Constitution, because their members' appointment, tenure and remuneration do not comply with s 72 and because they are not subjected, as such, to the appellate jurisdiction of this Court (s 73), without more they do not comply with the constitutional requirements stated in Ch III. The plaintiff argued that, although on one view the Act was a law with respect to defence, it was such a law as did not comply with the requirements of Ch III. This was so because of the invalid attempts, by federal law, to confer federal judicial power upon bodies not entitled to exercise that power.

[112] An alternative argument: Alternatively, the plaintiff submitted that, in so far as the grant of power under s 51(vi) necessarily included by implication a limited determination of strictly disciplinary offences by individuals or bodies other than courts, and in so far as, out of necessity, such offences and their determination were impliedly excluded from the requirements of Ch III, notwithstanding the general subjection to that Chapter, the provisions of the Act applicable to her travelled far beyond any such permissible, limited exception. To subject defence members to the comprehensive range of all general criminal offences, and to subject them, upon conviction, to potential punishments up to life imprisonment (and in the plaintiff's case potential cumulative maximum imprisonment of up to thirty years) ^[149] , went far beyond any necessity or obviousness unstated in the provisions of the Constitution itself. ^[150]

[113] According to the plaintiff, this contention was vividly illustrated in her case because the alleged facts bore, on their face, many indications of purely private, non-service features. Moreover, the result of the proceedings under the Act for the "offences" charged would be to deprive the plaintiff of the right to jury trial that would otherwise belong to her as a person subject to Australian law accused of such offences.

[114] The plaintiff's primary submission was that there was no relevant "exception" to the application of the provisions of Ch III of the Constitution to military justice. To the extent that past authority of this Court held, or suggested, otherwise, the plaintiff argued that such authority should be overruled. But, faced with the long survival of forms of service tribunals in Australia (notably courts martial) before and after the establishment of the Commonwealth, judicial authority in this and other courts concerning systems of military justice and the absence of any explicit judicial support for her primary proposition, the plaintiff fell back on her secondary submission. This was that, whatever the extent of any permitted exception to the requirements of Ch III, expressed in the language and structure of the Constitution, the provisions in the Act for her trial, and the potential convictions and punishment to which she was exposed, were well outside any such exception. On that ground, she was therefore entitled to relief.

[115] Fresh constitutional consideration: In effect, the plaintiff invited this Court to take the course followed by the Privy Council in deciding the appeal against this Court's decision in the Boilermakers' Case. ^[151] There, the Privy Council proceeded first to look at the issues raised (likewise concerned with the constitutional separation of the judicial power) as a matter of constitutional text and principle. Having done so, and concluded that this Court had been correct in its decision, and that there was "nothing in Ch III, to which alone recourse can be had, which justifies" the validity of the impugned legislation, ^[152] their Lordships said: ^[153]

Little reference has so far been made to the great volume of authority on this subject. Their Lordships have thought it right to make an independent approach to what is after all a short, if not a simple, question of construction of the Constitution.

[116] If this Court adopted the same approach as the Privy Council did in the Boilermakers' Case, the plaintiff submitted, it would reach a similar outcome. As in that case, years of constitutional assumptions would be disclosed as untenable and therefore unacceptable. Institutions built on those assumptions would be shown to be unsustainable. Some transitional inconvenience would, of course, arise. But this Court, as the only body with the power and duty to do so, would establish the correct constitutional principle. It would uphold the language and design of the Constitution, read in its entirety. Better to do so belatedly than to persist with a "defence of the indefensible". ^[154]

[117] An exercise of judicial power: On the face of things, the plaintiff's argument for strict separation of the trial and punishment of "offences" against the Act, and the commitment of such functions exclusively to independent courts exercising federal jurisdiction, is highly persuasive. The content of "judicial power" has not been established in a formula of universal application. However, the definition that captures the main elements in the Australian constitutional context is that stated by Griffith CJ in Huddart, Parker & Co Pty Ltd v Moorehead: ^[155]

[T]he words 'judicial power' as used in sec 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.

[118] The three features of this definition, pointing to the presence of "judicial power" in the constitutional sense, are thus (1) the existence of controversy; ^[156] which (2) is about legal rights and duties; ^[157] and (3) arises in a context where there is a capacity to reach a conclusive determination of such rights and duties. ^[158]

[119] By each of these criteria, the functions committed to service tribunals under the Act are indicative of the presence of judicial power. There is a sharply defined controversy presented by the plaintiff's contest of the accusations made against her under the Act. Those accusations are highly specific, carefully defined and made (in all but one instance) pursuant to a Territory law that is rendered applicable to defence members. It is a law otherwise of general operation that, of its character, affects the rights and duties of the individual, potentially including (upon conviction) the loss of personal liberty and of the entitlement to retain a senior employment position in the Defence Force.

[120] The determination of contested "offences" and the imposition of "punishment" extending to imprisonment classically involves the exercise of "judicial power". This historical characterisation of the function is a relevant consideration for determining whether the task committed by the Act to the service tribunals is, or involves, the exercise of "judicial power". ^[159] In each case, the service tribunals are established to make a binding and authoritative determination. There is no general provision for an "appeal" to a court. There is provision for consideration by a reviewing authority. ^[160] However, normally, a "punishment imposed, or an order made, by a service tribunal, a reviewing authority or the Defence Force Discipline Appeal Tribunal takes effect forthwith". A punishment for a specified period "commences on the day on which it is imposed". ^[161] Any fine imposed on a person is immediately recoverable by the Commonwealth out of that person's pay (if still in the employ of the Commonwealth). Otherwise, it may be sued for in a civil court. ^[162]

[121] It follows that the scheme of the Act commits to the specified service tribunals the exercise of "judicial power". Indeed, three members of this Court accepted that this proposition was virtually unarguable: ^[163]

[N]o relevant distinction can, in our view, be drawn between the power exercised by a service tribunal and the judicial power exercised by a court. Nor do we think it possible to admit the appearance of judicial power and yet deny its existence by regarding the function of a court-martial as merely administrative or disciplinary ...

Thus the real question in this case is not whether a court-martial in performing its functions under the Act is exercising judicial power. There has never been any real dispute about that.

[122] I agree with this characterisation. It is reinforced by a study of the Act. The conclusion is put beyond question by the importation into the Act of the whole gamut of criminal offences applicable in the identified Territories, rendering them all applicable to all defence members at all times. ^[164]

[123] Judicial power of the Commonwealth: The supposed point of distinction, propounded to permit service tribunals to escape from this characterisation in s 71 of the Constitution, is that, whilst they exercise "judicial power", it is not "the judicial power of the Commonwealth under Ch III of the Constitution". ^[165] As a matter of language, logic, constitutional object and policy, this supposed distinction should be rejected. It has never hitherto commanded the endorsement of a majority of this Court. It should not do so now.

[124] As to language, if what is being done is unquestionably the exercise of "judicial power" and if it is being performed under a law of the Commonwealth enacted by the Federal Parliament, that is sufficient to render it an attempted or purported exercise of "the judicial power of the Commonwealth". A law of the Commonwealth could not give it any other quality. The adjectival phrase "of the Commonwealth", contained in s 71 of the Constitution, applies to it. The Act is enacted, purportedly, for a purpose of the Commonwealth (namely defence, pursuant to the Constitution, s 51(vi)). It can hardly qualify as being an exercise of "judicial power" of a State or of a Territory (so far as the latter is not itself part of the judicial power of the Commonwealth) or of a foreign nation. ^[166]

[125] As to logic, it is circular to reason that, because the character of the power committed to a body can vary in accordance with the body exercising the power, ^[167] the power committed to service tribunals could therefore be other than "the judicial power of the Commonwealth". That is the very question presented in these proceedings for this Court's decision. Surely, the so-called "chameleon" doctrine has not so far debased our adherence to logic that the mere choice by the Federal Parliament to vest a power in a named tribunal conclusively avoids the limitations stated in s 71 of the Constitution. ^[168]

[126] If this Court were to dismiss the plaintiff's arguments by reference to the chameleon metaphor, it would abandon its function and constitutional duty. It always remains for the Court to examine what the impugned body actually does and then to decide whether what it does offends the constitutional limitations stated in s 71. The mere selection of a service tribunal as the repository for a power does not foreclose the requirement of judicial characterisation. That requirement remains to be discharged. Moreover, in this case, all that is required (there being no real doubt about the exercise of "judicial power") is the determination of whether such "judicial power" is that "of the Commonwealth" or not. Only a sleight of hand, suitable to a street magician, would permit any other characterisation of the "judicial power" committed by the Act to the service tribunals in this case.

[127] As for the constitutional object of s 71, it has been repeatedly held that its purpose is to confine the assignment of "the judicial power of the Commonwealth" solely to the "courts" listed in that section. During argument of this application, much mention was made of the significance of the separation of the judicial power in the Boilermakers' Case. ^[169] Although not frontally attacked or questioned by the defendants, the criticisms that have been expressed of the holding in Boilermakers' Case were mentioned.

[128] Such criticisms certainly exist. ^[170] However, they are immaterial to the primary issues in these proceedings. The Boilermakers' Case concerned essentially an extension of the separation of powers doctrine by expressing a second limb. This was that this Court and other federal courts created by the Parliament may not exercise legislative or executive functions mixed with their judicial functions. That limb, so stated, has been contested since it was established. It has sometimes given rise to difficulty and controversy.

[129] However, the first limb of the separation of powers doctrine, although also occasionally the subject of disagreement as to its ambit and availability, ^[171] has not otherwise been questioned. Since the Wheat Case ^[172] in 1915, it has been held by this Court that a body cannot exercise the judicial power of the Commonwealth under federal law if it is not a court, within the meaning of s 71. This first limb of the separation of powers doctrine has been repeatedly affirmed ^[173] by the Court. Thus, in 1925 it proved the undoing of the Taxation Boards of Appeal, whose members were appointed for seven years. They were held to have been invalidly invested with "the judicial power of the Commonwealth". ^[174] The parallels with this case are striking. Indeed, the powers of service tribunals under the Act, to decide whether defined criminal offences have been committed and, if so, the punishment (up to life imprisonment) that should be imposed, are even clearer instances than any earlier, or different, examples of attempted vesting of such power contrary to s 71.

[130] As to policy, the plain object of the separation of powers doctrine, expressed in s 71 of the Constitution and explained in the cases, is to ensure the observance of certain basic standards when federal law commits to bodies the conclusive determination of controversies as to legal rights and duties.

[131] Where federal offences are involved, the purpose of s 71 is made even clearer by the language of s 80, with its provision for jury trial. The separation of the judicial power is also specially important in a federation because it is the Judicature that has the final say on the constitutional division of powers and on matters of large moment affecting the rights and duties (relating to life, liberty or property) of all persons subject to the laws of the Commonwealth.

[132] The scheme of s 71 is thus intended to preserve the vesting of federal judicial power to the nominated courts. In the case of the named federal courts, the Constitution itself assures to its members conditions of appointment, tenure, remuneration and appellate supervision that guarantee the existence of the requisite qualities of independence and impartiality. In the case of State courts invested with federal jurisdiction, this Court has also upheld the constitutional implication that such courts must be constituted in a way that is appropriate to the vesting of federal jurisdiction. ^[175]

[133] It follows that this is an integrated constitutional scheme which this Court should uphold. To the extent that, by verbal formulae we draw a distinction between "the judicial power of the Commonwealth" and some other kind of "judicial power" that, although under federal law, can be vested in bodies other than the courts named in s 71 of the Constitution, we permit a haemorrhage of federal judicial power to "courts" for which the Constitution does not provide. We open the door to tribunals which, in truth, exercise federal "judicial power" yet are placed outside the properly constituted courts enumerated in s 71. Such a course would, in my view, be contrary to the policy of the Constitution, that the grants of legislative power to the Parliament under s 51 be subject to the requirement that contests about rights and duties under federal law, certainly over broadly stated criminal offences and punishment, be amenable to substantive determination in independent and impartial courts.

[134] In defence of the supposed distinction between "judicial power" and "the judicial power of the Commonwealth", mention was made of various activities that State courts may be required to perform by State legislation which could not be required of a federal court. Thus, the provision of an advisory opinion was, it was argued, an instance of "judicial power" that nevertheless fell outside the "judicial power of the Commonwealth". ^[176] Whether or not that is so, that argument has no present application. These proceedings are not concerned with decision-making activities that are alien to the "judicial power", such as is proper to federal courts. There is absolutely no reason why the functions assigned under the Act to service tribunals could not be performed by a Ch III court. Determining guilt of precisely defined "offences" (including those contained in a general Crimes Act) and deciding resulting questions of punishment (up to life imprisonment) are historically core functions of the courts. They are not functions performed in this country by non-court tribunals. Nor should they be.

[135] In addition, as the plaintiff pointed out, the International Covenant on Civil and Political Rights ^[177] ("the ICCPR"), signed by Australia, expresses relevant universal principles of fundamental human rights observed by civilised countries. Thus, Art 14(1) of the ICCPR provides:

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

[136] The ICCPR does not enjoy a constitutional status in Australia. It has not been expressly incorporated into municipal law. Further, the provisions of Art 14(1) envisage both "courts" and "tribunals". An argument might exist that the determination of a service "offence" before a service "tribunal" is not necessarily the same as the determination of a "criminal charge". However that may be, the requirement that a trial of an "offence" which carries the potential on conviction of substantial imprisonment must be before a competent, independent and impartial tribunal established by law is deeply rooted in the Australian legal system itself. ^[178]

[137] The theory of the Constitution propounded by the plaintiff upholds this hypothesis. The theory propounded for the defendants does not. The trial of the plaintiff under the Act, before either of the service tribunals provided in the Act, falls short of the requirements of independence and impartiality for decision-makers. As constituted, the service tribunals have an inherent tendency, missing from the courts, to conform to the views of those higher in the chain of service command (or to appear to do so). ^[179] The members of service tribunals might be personally acquainted with, or even have command over, the accused or have service associations with relevant personnel and witnesses. ^[180] The career aspirations of members of service tribunals (for promotion, reappointment or otherwise) might influence, or appear to influence, their conduct in the trial and its disposition. ^[181]

[138] Such concerns (and the perceived defects in the outcome of publicised trials before military tribunals in Australia) have occasioned a series of inquiries and reports addressed to the systemic defects of the tribunals created by the Act. ^[182] Such reports have led, in turn, to a comprehensive report published by the Federal Parliament Joint Standing Committee on Foreign Affairs, Defence and Trade. ^[183] Further disquiet led to yet another report, ^[184] which chronicled the long-standing institutional weaknesses that it saw in the existing service tribunals. It recorded proposals that they be replaced by "establishing a military bench of the Federal Magistrate's Court, or attributing appropriate status and perceived independence under the auspices of Ch III of the Commonwealth Constitution (or an otherwise federally recognised court)". ^[185] The Committee recommended that a Permanent Military Court "be created in accordance with Ch III of the Commonwealth Constitution to ensure its independence and impartiality", with judges appointed by the Governor-General in Council, having tenure until retirement age. ^[186]

[139] It is wrong to suggest, as some of the defendants' submissions did, that recent decisions of this Court had moved away from the principle of the separation of the judicial power. The Court could hardly do so, given the language and structure of the Constitution itself; the long-standing authority supporting the first limb of the Boilermakers' Case doctrine; the recent decisions that have reinforced this aspect of the doctrine; ^[187] the conformability of the principle with the universal standards of international human rights law; and the practical assurance that the doctrine affords against partisan, or partial tribunals determining outside the regular courts contested controversies affecting life, liberty and property.

[140] When a direct challenge to the system of military justice is brought, as in these proceedings, the only response proper to this Court is to return to basics and to test the impugned law against the language and structure of the Constitution itself. This is what the Court and the Privy Council did when a similar challenge was brought in the Boilermakers' Case. We should not shrink from performing a similar duty today.

[141] Supposed earlier exceptions: Yet should an "exception" be accepted that, either wholly or partly, takes service tribunals, as envisaged in the Act, outside the Court's doctrine concerning the requirements of Ch III, and specifically s 71?

[142] Several analogies have been advanced to justify such an "exception". All but the last of them fails to withstand even rudimentary analysis:

(1): Prerogative power: The earliest sources of military law in British legal history may be traced to the prerogatives of the King as defender of the Realm against its enemies. ^[188] It has been suggested that military discipline in Australia might constitute a residual prerogative power outside s 51 of the Constitution and, as such, one which, of its nature, is not subject to Ch III. ^[189]
: There are many insurmountable difficulties with such an hypothesis. From medieval times, military law has been expressed in statutes and ordinances of war. ^[190] Necessarily, such provisions have regulated and replaced the Royal prerogative. In any case, for Australia, the Constitution itself regulates and replaces the Royal prerogative. It affords a new and sufficient national source for the governmental powers of the Commonwealth. Such powers are now ultimately derived from the people of the Commonwealth. In certain specific respects, the prerogative powers of the Crown are preserved by the Constitution. ^[191] However, within the context of the constitutional arrangements expressed in Ch I, including s 51, this is done subject to Ch III of the Constitution. There is no lacuna.
In: any event, the service tribunals in question in this application are, and are only, those established by the express terms of the Act. They are not created under any prerogative power. Because expressed legislatively, they must find their source in a grant of federal legislative power. As such, they are subject to whatever Ch III and ss 51 and 71 require.
(2): Parliamentary and Territory trials: The defendants pointed to instances where, it was suggested, exceptions to the separation of powers doctrine expressed in s 71 had been recognised by this Court. When examined, however, these "exceptions" do not withstand close scrutiny.
: One supposed exception concerned the trial and punishment of persons for breach of the privileges of the Houses of Parliament. ^[192] There are several answers to this supposed exception. In its decision concerning imprisonment by order of the House of Representatives, this Court denied, in terms, that it was offending the separation of powers doctrine, which it did not question. ^[193] The decision was reached before the reinforcement of that doctrine in the Boilermakers' Case, decided in the following year. The supposed exception was based on s 49 of the Constitution and the unequivocal preservation there of the ancient powers, privileges and immunities of the Houses of the Parliament. Such an express constitutional source has no equivalent in respect of service tribunals. In any case, the Court's decision upholding the parliamentary power to try and punish persons for contempt (including by imprisonment) has been questioned and doubted. ^[194] In my view, it does not represent a persuasive exception. It is not analogous to the case in hand.
: Similarly, the invocation of the supposed exception of Territory courts, created under s 122 of the Constitution, is unpersuasive. ^[195] Although authority in this Court lends support for the conclusion that such Territory courts do not exercise the "judicial power of the Commonwealth" (and are therefore not subject to the requirements of Ch III) ^[196] , I will never accept that the Territories are constitutionally disjoined from the Commonwealth, and specifically from the integrated Judicature of the nation for which Ch III provides. The earlier holdings to that effect were influenced by pragmatic concerns about life appointments of judges in the Territories (when that was the federal rule) and over jury trials for native inhabitants of the then Territories of Papua and New Guinea. Such concerns have no modern relevance. The ultimate source of the legislative power in the Territories remains the Constitution of the Commonwealth. It is from that source that the legislative powers in the self-governing Territories derive to establish courts for such Territories. ^[197] They are therefore federal courts. The stream cannot rise higher than the source. Nor can it deny its origins. On analysis, the supposed exceptions collapse. ^[198]
(3): Imperial statutes: Another suggested source for placing service tribunals outside Ch III might be found in a view that they derive their jurisdiction and powers directly from Imperial legislation. On this theory, being co-equal with the Commonwealth of Australia Constitution Act 1900 (Imp) and specific to the subject of discipline of the forces of the Crown, it would suffice if they were in accord with the specific Imperial law, although apparently in breach of the separation of powers doctrine contained in the Constitution, also initially established by the Imperial Act of 1900. One can see reflections of this thinking in R v Bevan; Ex parte Elias and Gordon. ^[199]
: Bevan was a case, decided in 1942, where three members of this Court ^[200] held that legislation providing for the trial by court martial of two members of the Royal Australian Navy for murder was a valid exercise of the defence power. However, a reading of the reasons demonstrates the great weight given by the Court to the fact that Australian naval personnel had been transferred unconditionally, in time of war, to the King's naval forces and "placed at the disposal of the [British] Admiralty" within the Naval Discipline (Dominion Naval Forces) Act 1911 (Imp). ^[201] This, it was held, applied the Naval Discipline Act 1866 (Imp) to such personnel without any modifications or adaptations made by Australian federal law. This was so, although the Defence Act 1903 (Cth), s 98 had provided that no member of the Defence Force of the Commonwealth could be sentenced to death by any court martial (except for certain offences which did not include murder). ^[202]
: The record in Bevan suggests that the prisoners, who were sentenced to death by an Australian court martial, did not raise the constitutional question as to the limits of the power of the Federal Parliament to legislate for courts martial. ^[203] The reasoning of the judges appears to have been influenced by the exigencies of war and more particularly the operation of the Imperial statutes mentioned. ^[204]
: However that may be, the disparate analysis in Bevan has no relevance to the present proceedings. As noted in the joint reasons, ^[205] significant elements of Imperial law continued to apply in the system of law operating in Bevan. Here, there is no applicable, or even surrogate, Imperial law. The only relevant law is the Act. It is unquestionably an Act of the Parliament of the Commonwealth. As such, it must conform to all applicable requirements in Ch III of the Constitution. Specifically it must comply with ss 71 and 80. To the extent that Bevan, or the later decision in R v Cox; Ex parte Smith, ^[206] are said to bear on the plaintiff's challenge, they have, in my view, little, if any, persuasive force. If they are inconsistent with my conclusion, I would overrule them.
(4): Military necessities: The foregoing conclusions bring me to the last, and only persuasive textual foundation for an exception authorising service tribunals outside the courts required by Ch III. This is the argument that, inherent in the grant of legislative power in s 51(vi) of the Constitution, is a necessary and obvious implied exception from the requirement to have all instances of military offences decided by courts conforming to the requirements of Ch III.
: Accepting that there is some (but limited) force in this submission, I am led to a conclusion that the plaintiff's alternative argument in the proceedings should be accepted. I must explain why.

Accepting a limited exception for service tribunals

[143] Implications and assumptions: The grants of legislative power in s 51 of the Constitution, and all of them, are subject to the requirements of the Constitution stated elsewhere, relevantly to provisions in Ch III. The letter of the Constitution therefore appears to be contrary to an "exception" of any kind or degree. Certainly, there is no explicit mention in the Constitution of service tribunals, whether of courts martial or Defence Force magistrates. ^[207]

[144] In this respect, the Australian Constitution took a different direction from the Constitution of the United States of America that preceded it, or the Indian Constitution that followed (and in some particular respects copied) it. In the United States Constitution, the Fifth Amendment expressly states:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger ...

[145] This provision affords a textual foundation for some degree of military exceptionalism. The debates in the courts of the United States have concerned the scope of such exceptions from the ordinary requirements of the Constitution. The Fifth Amendment makes it clear that some such exception exists. ^[208] As was held in Solorio v United States, ^[209] the United States Congress may legislate for the exercise of jurisdiction by courts martial over offences committed by military personnel. The source of the power for such laws is Art I, §8, cl 14, the defence power of the United States Constitution which broadly corresponds to s 51(vi) of the Australian Constitution. However, it is the Fifth Amendment which has exempted such laws from the requirements of the separation of powers, which would otherwise render them invalid. ^[210]

[146] The exception has also encouraged the Supreme Court of the United States to attribute to the President as "Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States" certain exceptional powers of law-making. ^[211] It is an exception which the courts of this country have never recognised in the Governor-General, although, as the Queen's representative, he is vested with the command-in-chief of the naval and military forces of the Commonwealth. ^[212]

[147] In India, Pt III of the Constitution enshrines certain fundamental rights. Article 13 invalidates all laws if, and to the extent that, they are repugnant to the rights enumerated in Pt III. However, in two cases the Indian Parliament is expressly empowered to restrict or abridge such fundamental rights. One concerns a restriction while martial law is in force in any area. ^[213] Article 33 empowers Parliament, by law, to "determine to what extent any of the rights conferred by this Part shall, in their application to", relevantly, "members of the Armed Forces; or ... of the Forces charged with the maintenance of public order", be restricted or abrogated "so as to ensure the proper discharge of their duties and the maintenance of discipline among them".

[148] The latter provision has been held sufficient to sustain a court martial which otherwise violates a military petitioner's fundamental right under Art 14 of the Constitution. That Article otherwise guarantees "equality before the law or the equal protection of the laws within the territory of India". ^[214] The important point is that there is no equivalent to these express constitutional provisions in Australia affording a foundation in the Constitution itself for establishing a court martial (or other service tribunal) outside the ordinary courts referred to in Ch III.

[149] Criteria of necessity and obviousness: To import an unexpressed exception involves a serious step. Deriving implications from, or finding unexpressed assumptions in, the Constitution has commonly been controversial and often contested. The people of the Commonwealth, who have the final say in any formal amendment of the Constitution, can see the express provisions and judge them for themselves. Implied or assumed provisions, declared by judges, are controversial because of the seriousness of any glossing of the Constitution and the infrequency of opportunities to contest the results. This is why a rigorous criterion is invariably applied to test any such implication. ^[215]

[150] Once declared, implications cannot be removed unless this Court changes its mind or, exceptionally, a formal amendment to the Constitution is adopted. ^[216] All of the foregoing are reasons for hesitation in finding, and expressing, an implied exception to the text and structure of the Australian Constitution to take service tribunals outside the requirements of Ch III.

[151] Implication of military discipline: Notwithstanding the foregoing reasons for caution in acknowledging an implied exception for service tribunals (or upholding an imputed assumption that some such tribunals might be created and operate compatibly with Ch III of the Constitution), I accept that a limited role for such tribunals may co-exist with the text and structure of the Constitution.

[152] First, the grant of power by s 51(vi) of the Constitution, read in the manner proper to its purpose and against the history that preceded it, imports powers for individuals and institutions, as necessary, to ensure the proper functioning of naval and military forces. Such forces were obviously envisaged by the Constitution. ^[217] It is of the nature of naval and military (and now air) forces that they must be subject to elaborate requirements of discipline. This is essential both to ensure the effectiveness of such forces and to provide the proper protection for civilians from service personnel who bear, or have access to, arms.

[153] Secondly, in the case of discipline, properly so called, this Court has upheld the constitutional validity of charges laid by public service disciplinary tribunals against federal officials outside the courts. By inference, similar rather confined powers would be available in respect of the discipline of other officers of the Commonwealth who serve in the naval, military and air forces where the history of disciplinary provisions and institutions is longer and the need for its maintenance more acute.

[154] In R v White; Ex parte Byrnes ^[218] an officer of the federal public service submitted that, in imposing on him a fine of £3 under s 55 of the Public Service Act 1922 (Cth), the Chief Officer of the Department concerned (the Department of the Army) was exercising judicial power in breach of the Constitution. He argued that, in upholding the decision of the Chief Officer to impose the fine, the members of the Appeal Board were also exercising federal judicial power, contrary to Ch III. This Court rejected those arguments: ^[219]

Section 55, in creating so-called 'offences' and providing for their 'punishment', does no more than define what is misconduct on the part of a public servant warranting disciplinary action on behalf of the Commonwealth and the disciplinary penalties that may be imposed or recommended for such misconduct; it does not create offences punishable as crimes.

[155] The distinction between "disciplinary penalties" and "offences punishable as crimes" may sometimes be difficult to draw. In the plaintiff's case, because her "offences" are, in substance, defined by way of surrogate provisions of a Territory Crimes Act, the distinction appears inapplicable. But for present purposes, it is sufficient to acknowledge that, with the legislative power granted to the Parliament by s 51(vi) of the Constitution, came a power to create disciplinary offences, tried and determined in service tribunals outside the ordinary courts. It is then essential to differentiate wrong-doing proper to "discipline" from "offences punishable as crimes". The former might be committed to service tribunals, established as necessity and obviousness require. Likewise, such tribunals might enjoy a power to maintain the status quo in respect of an accused for an essential, but limited, interval. But that would leave "offences", substantially of a criminal character, to be tried and punished in the ordinary courts with all of the protections that those courts afford.

[156] Thirdly, there are some features of the defence forces and their mission that, of necessity and obviously, import a need to deal quickly and effectively with challenges to discipline. It is of the nature of such forces that they will sometimes be required to operate in remote places within Australia and overseas. Sometimes, it would be inherent in the needs of discipline in such circumstances for a commanding officer to have effective powers of various kinds. These might include reduction in rank, deprivation of seniority, loss of privileges, administration of a reprimand, dismissal from the service, fines or short-term deprivation of liberty.

[157] The advent of fast air travel, including (perhaps especially) to and from theatres of war, armed conflict, peace-keeping and like operations, has changed the content of what is necessary and obvious for the effective achievement of service discipline today. Even in the case of Bevan in 1942, the court martial which sentenced the prisoners to death did not assemble on the high seas. It was constituted on the ship in port and, once convicted and sentenced, the prisoners were transferred in custody to the New South Wales State Penitentiary at Long Bay. ^[220]

[158] Today, the spectacle of courts martial hastily convened in the field of battle appears a creature of imagination or cinema rather than a procedure for which the Act provides. The determination of a charge, the constitution of a service tribunal and the prosecution of the charge under the Act necessarily take time. In that time, a service member, where appropriate in temporary custody, could be transferred to a Ch III court or, in really urgent cases, be made to face a hearing by sound or video link by such a court. This obviates today the necessities of drumhead military trials, whatever may have occurred in other, earlier times.

[159] Nevertheless, by necessary and obvious implication, the grant of legislative power to the Parliament by s 51(vi) imports a power to deal with disputed cases of discipline, properly so called, for which prompt, local, low-key procedures, with restricted penalties, would be apt. Such cases would not challenge the language of s 71, the scheme of Ch III, or the subjection of the grant of legislative power in s 51(vi) to that Chapter of the Constitution. The difficulty arises in a case, such as the present, where what is involved is undoubtedly a "punishment" for an "offence" that amounts to a "crime", which is defined in a criminal statute and carries, on conviction, the possibility of a significant loss of liberty and, specifically, a penalty described as "imprisonment".

[160] Fourthly, in defining the boundary of military discipline proper to a service tribunal outside the courts for which Ch III provides, and distinguishing "offences punishable as crimes", this Court has been divided. In Re Tracey, ^[221] Mason CJ, Wilson and Dawson JJ concluded that service tribunals could validly exercise "judicial power" provided the exercise was "sufficiently connected with the regulation of the forces and the good order and discipline of defence members". This view was maintained by Mason CJ and Dawson J in Re Nolan; Ex parte Young ^[222] and Re Tyler; Ex parte Foley. ^[223] However, at least until Re Aird, ^[224] it was a view of the power of such tribunals that never gathered a majority of the Court.

[161] In each of Re Tracey; Re Nolanand Re Tyler, Brennan and Toohey JJ considered that proceedings before a service tribunal, in relation to a military offence, could only be brought and determined if the proceedings substantially served the purpose of maintaining or enforcing service discipline. ^[225] Their Honours posed the question "whether the jurisdiction of a competent civil court can conveniently and appropriately be invoked to hear and determine a corresponding civil court offence". ^[226] By such a criterion in the present case, the plaintiff's "offences" would clearly fall outside the "disciplinary" category postulated by Brennan and Toohey JJ.

[162] In her reasons in these cases, Gaudron J suggested that the test for permissible "disciplinary" proceedings was whether, in the particular case, the exercise of the "disciplinary" power was "reasonably capable of being regarded as appropriate and adapted to the object which gives the law in question its character as a law with respect to the relevant head of power". ^[227]

[163] The clearest exposition of the test, in my view, was that stated by Deane J in Re Tracey. ^[228] According to his Honour, the applicable criterion confined the powers of service tribunals to those subjects of military law that are necessary for the enforcement of military discipline. ^[229] According to this view, only an essentially disciplinary offence fell outside the judicial power of the Commonwealth, reserved to Ch III courts. ^[230] This would include "exclusively disciplinary" offences, and offences concerned with the disciplinary aspects of other "service-related" offences, but only where they did not "supplant the jurisdiction or function of the ordinary courts in relation to the general community aspects of conduct which also constitutes an offence under the ordinary criminal law". ^[231] Deane J called this latter class of offences "essentially disciplinary" offences.

[164] In Re Nolan, ^[232] McHugh J agreed with Deane J's approach. In Re Tyler, McHugh J adhered to his expressed belief that that approach was constitutionally correct and that the reasoning of the majority was erroneous. ^[233] Nevertheless, for reasons of comity, or perceived authority, McHugh J surrendered his preferred view in Re Tylerto that of the majority. This was the conclusion with which his Honour persisted in Re Aird.

[165] In my opinion, for the reasons given by McHugh J in Re Nolan( and Re Tyler) , Deane J's approach is the constitutionally correct one. ^[234] Only Deane J recognised the special role which Ch III of the Constitution plays as a "general guarantee of due process". ^[235] Only Deane J limited military exceptionalism to the essential needs of discipline in the military context, so far as consistent with the functions of the Defence Force and the availability, in most circumstances, of a civilian court. Only Deane J's test is consistent with the long-standing principle of British constitutional law subjecting the military to the civilian power and committing contested military cases to civil courts where such courts are geographically available and can perform their function without unacceptable delay or interference in the military function. ^[236] It follows that the only military exceptionalism permitted by the Constitution, consistent with the requirements of Ch III, is for exclusively or essentially disciplinary offences, as Deane J suggested. However, there is an additional limitation to which effect must also be given.

[166] The right to trial by jury: The plaintiff states that she wishes to exercise her "constitutional right" to trial by jury. Provision is made for an entitlement to jury trial in s 80 of the Constitution in respect of "any offence against any law of the Commonwealth". The section posits the availability of that mode of trial where the "offence", so defined, is tried "on indictment". Differences have arisen in this Court as to the meaning of the phrase "trial on indictment".

[167] In past cases, a majority of this Court has favoured the tautological ^[237] view that s 80's guarantee of "trial by jury" is limited to cases in which the Parliament and the Executive provide for the commencement of prosecution by filing an indictment. ^[238] However, a persistent minority has rejected this view as inconsistent with the function of s 80 as providing a guarantee of jury trial which could not so easily be circumvented. ^[239] With respect, I favour what is presently the minority view. It is more harmonious with the language, constitutional context, purpose and function of the section. ^[240] The contrary view renders trial by jury for the applicable federal offences optional in the hands of the very governmental agencies against whom jury trials can be a precious protection for the individual. That cannot be the meaning of the Constitution. When Australian judges and lawyers become more accustomed to reasoning by reference to fundamental rights, they will see the truth of this proposition more clearly.

[168] Ordinarily, a judge of this Court, having expressed his or her view about a contested matter of legal authority should accept a majority ruling on the point, where it was necessary to the disposition of a case. ^[241] In matters of private law, this is the course that I have observed. ^[242] Sometimes, in constitutional adjudication, it is also the proper course to adopt. ^[243]

[169] There are cases, however, where it is appropriate for a judge of this Court to adhere to an expressed view about the meaning of the Constitution. ^[244] As Barwick CJ remarked in Victoria v The Commonwealth, ^[245] "we are not construing judgments. Our task is to construe the Constitution which is always the text." The present is such an occasion. It involves the first direct challenge to the constitutional validity of the system of service tribunals established by the present Act. That system is in some respects different from that existing under earlier federal (and Imperial) statutes. Relevant to the challenge is the meaning and application of Ch III of the Constitution. That Chapter includes s 80. It is an integral part of the constitutional scheme. The terms of s 80 cannot, therefore, be ignored. It is important that that section should be given its proper meaning when resolving the plaintiff's challenge.

[170] I have previously expressed my view that the correct meaning of s 80 is that stated by Deane J in Kingswell v R. ^[246] In referring to the entitlement to trial by jury of federal offences prosecuted on indictment, the Constitution meant to distinguish "a serious offence against the laws of the Commonwealth". ^[247] To sharpen this expression, Deane J concluded, in Kingswell, ^[248] that the section applied where the federal offence in question carried a term of imprisonment of more than twelve months. This is the view that I would endorse. It should be given effect in the present context.

[171] Conclusion: provisions are invalid: The result is as follows. Because of the necessities of military discipline, strictly so called, the legislative power conferred on the Parliament by s 51(vi) of the Constitution (and other relevant powers including the express incidental power) carries with it the power, by federal law, to establish service tribunals for service discipline. However, their jurisdiction is limited to service discipline as such. That limited function is exceeded where the Parliament purports to confer on them jurisdiction and power to try and punish what are in substance contested criminal offences. Specifically, the power of such tribunals is limited by the requirement in s 80 of the Constitution that any offence against a law of the Commonwealth which carries on conviction a term of imprisonment of more than twelve months shall be, where the accused so requires, tried by jury.

[172] The Act does not conform to the foregoing constitutional requirements. Whilst provision is made in the Act for service tribunals to hear and determine trials, and to punish defence members upon conviction of conduct which might be described as exclusively or essentially disciplinary in character and carrying penalties of imprisonment for less than twelve months ^[249] (or a commensurate fine) ^[250] , the Act has not been drafted to comply with the stated constitutional discrimen. It makes no provision for trial of serious service offences before a Ch III court. Nor does it include the procedure of indictment in those offences carrying a constitutional right to jury trial. Moreover, by importing the whole gamut of criminal offences based on Territory offences, ^[251] but without the requisite procedural limitations and protections, the Act makes clear what is in any case obvious. It was intended to adopt a scheme for the separate trial and punishment of service members before service tribunals that are not Ch III courts for what are, in terms and substance, criminal offences carrying maximum penalties rising in some cases to life imprisonment.

[173] In my opinion, the Constitution forbids such trials in service tribunals which are not courts conforming to Ch III and which do not allow for jury trial in accordance with s 80 of the Constitution, in those cases where that section must be observed.

[174] Severance is unavailing: In the case of the offences with which the plaintiff has been charged, only one (charge 4) ^[252] is for an offence which, under the Act, carries a maximum punishment of imprisonment for less than 12 months. However, this offence could not, in my view, be severed from the six other charges laid against the plaintiff. The conditions for severance are not established. The attempt to sever the provision would involve this Court in substantially rewriting the Act: an impermissible judicial function. ^[253]

[175] In the result, therefore, the provisions of the Act, invoked to support the charges against the plaintiff, are constitutionally invalid. The plaintiff is entitled to relief. However, before proposing such relief, I will mention some of the issues raised in the joint reasons. In my view, they do not sustain a conclusion adverse to the plaintiff.

Rejecting the arguments against relief

[176] Past authority of the Court: The joint reasons reject the plaintiff's challenge on the basis that the system of service tribunals, outside Ch III courts, constitutes an exception to the requirements for the exercise of the judicial power recognised by such "long-standing decisions" as Bevan and Cox. ^[254]

[177] It is true that Bevan, for the somewhat unsatisfactory and disparate reasons that I have described, upheld the validity of the court martial that sentenced the accused defence members to death, contrary to the express provisions of Australian federal legislation. However, Bevan can best be understood as giving effect to superior Imperial legislation that was treated as standing outside the requirements of the Constitution, then also viewed as an Imperial statute. This is not the view now taken of the Constitution. Cox followed Bevan. But, in Cox, ^[255] Dixon J did not accept the reasoning in Bevan. He stated that the "exception" recognised there "is not real". He acknowledged the possible over-reach of courts martial. ^[256] Yet he declined to elaborate. With respect, the reasoning in these cases is far from sustained or persuasive. In any event, the decisions refer to earlier legislation. The present is the first direct challenge to the validity of the service tribunals under the Act.

[178] It is fair to say that several recent decisions of this Court, addressing the present Act, assume the validity of the service tribunals created there. ^[257] However, not until these proceedings has the Court faced a specific challenge to the validity of the entire legislative scheme. Moreover, the challenge is presented, divorced from any operation of Imperial law or the exigencies of war. It arises after a great deal of elaboration by the Court, including in the Boilermakers' Case of 1956, on the importance and function of the separation of the judicial power in Ch III of the Constitution as an institutional means essential to securing the effectiveness of the rule of law in Australia. ^[258]

[179] Against this background, when, as here, a direct challenge is brought, this Court should give fresh scrutiny to it. If that was good enough for the Court (and for the Privy Council) in the Boilermakers' Case, it should be sufficient for us, even if the ultimate conclusion were to go against the plaintiff. The issues presented are serious. They challenge the consistency of the Court's doctrine about Ch III in the context of service tribunals. Such a challenge is not met by an appeal to the unsatisfactory wartime decisions of Bevan and Cox.

[180] The terms of the Act, and in particular s 61 of the Act, under which the plaintiff faces six charges, introduce in the clearest possible way provisions for a parallel system of trial of offences, eo nomine, outside the courts involving the trial of Australian citizens who happen to be defence members. It envisages their "punishment", including by very lengthy "imprisonment", without most of the protections that would be afforded to them in the courts, including a right to trial by jury. This is an important issue. It has been recognised as such by scholars ^[259] and by public inquiries, including in the Parliament itself. ^[260]

[181] When an appeal is made to the text and structure of the Constitution, this Court is bound to explain how an apparent anomaly can be sustained and an "exception" reconciled with the constitutional text and its design. This is not a case where there is clear, long-standing authority supporting the validity of the service tribunals under the present Act. Appeals to wartime authority, clearly influenced by events and Imperial statutes, will not quell the controversy presented by the plaintiff arising from the text.

[182] Imperial and other history: Nor, with respect, is it convincing to say, as the joint reasons suggest, that the exception for service tribunals, and its ambit, can be understood against the background of the history of courts martial in British constitutional law. ^[261]

[183] There are many features of English law that are copied by, or implied or assumed within, the Constitution of the Commonwealth. There are others that have no place in the system of government established by the Australian Constitution. Thus, the notion of positioning a court within the Parliament, say as a Committee of the Senate (such as the judicial sitting of the House of Lords) or within the federal Executive (such as a local equivalent of the Judicial Committee of the Privy Council) is totally alien to Australian constitutional arrangements as expressed in the language and structure of the Constitution. In this sense, the Constitution represented a new beginning for a new nation. Subject to any applicable express provisions, ^[262] the separation of the federal judicial power, and the reservation of its exercise to Ch III courts, was a requirement intended to be observed.

[184] Moreover, it is a requirement the importance of which extends far beyond formalities. In the case of service tribunals, it keeps military exceptionalism to a minimum. To that extent, it actually preserves an important general feature of our constitutional arrangements, inherited from the United Kingdom. ^[263] It protects fundamental rights, now recognised by civilised nations and international law and, for much longer, inherent in our own legal system. It prevents any attempts of the other branches of government to expand the exceptions. When pressed, the defendants would not disclaim the possibility of relying on a precedent, established by this case, to attempt to expand such exceptions to other disciplined agencies (police, firemen, counter-terrorism and security agencies spring to mind). ^[264] Confining the "exceptions" discourages the creation of new federal "courts" outside the integrated Judicature of the Commonwealth for which Ch III provides.

[185] The fact that courts martial have existed for centuries and were in place before and after the Constitution came into effect, is a reason to pause before requiring their elimination, or the restriction of their jurisdiction and powers, by reference to Ch III of the Constitution. But so it was when the challenge was brought in 1956 to the Commonwealth Court of Conciliation and Arbitration. It had then existed since 1904. ^[265] So it was in 1997 when the use of a serving Federal Court judge as persona designata to conduct an inquiry for the Executive was forbidden by this Court, ^[266] despite a history of such use stretching back to the early days of the Commonwealth and, before that, to colonial times. ^[267]

[186] If anything, the Court's holdings on Ch III have become stricter in recent years. ^[268] This is not an occasion for changing course. To the extent that an appeal is made to the "chameleon" doctrine, by which a particular power may take its character from the body to which the power is committed, ^[269] this does not avail the defendants. The trial of criminal "offences" and the imposition of "penalties" and "punishments", extending to substantial imprisonment, remain inherently "judicial" in character. The Commonwealth conceded as much in argument during the recent case of Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board. ^[270] They do not lose that character simply by being reposed in a service tribunal.

[187] The least persuasive and most dangerous argument of all, in my respectful opinion, is the suggestion that there is a peculiar variety of "judicial power" under federal legislation which is not "the judicial power of the Commonwealth". ^[271] This was the way Starke J reasoned in Bevan. ^[272] I have already explained why such reasoning should be rejected. ^[273]

[188] In Bevan, ^[274] Starke J referred to United States jurisprudence. ^[275] A similar approach is reflected in the joint reasons. ^[276] However, with all respect, it overlooks the express exception in the Fifth Amendment to the United States Constitution for "cases arising in the land or naval forces, or in the Militia". As well, it overlooks the law-making power attributed to the President of the United States as "Commander in Chief", a view that has never been accepted of the Governor-General of Australia. ^[277] And if such a view were now belatedly accepted in Australia, the powers would, in any case, be subject to Ch III of the Constitution because Ch II, like Ch I, is subject to the separated judicial power in Ch III.

[189] Emergence of a regulatory state: In so far as the joint reasons suggest that an exception for service tribunals must be accepted because inherent in the "modern regulatory state [which] arrived after 1900", ^[278] I beg to differ. Certainly, the Constitution, as a functional instrument of government of a modern nation, adapts to the needs and circumstances of changing times. Although others have been ambivalent about this, I have been consistent in accepting a functional, rather than an originalist, interpretation of the Constitution and its meaning. I have acknowledged the fact that constitutional language may take on different meanings over time so as to fulfil functions enlivened by changed social conditions. ^[279]

[190] Nevertheless, when it comes to a feature of the Constitution that is fundamental, defensive of the rule of law and protective of the rights of persons to have serious controversies about life, liberty and property settled conclusively by independent and impartial courts, this Court must be vigilant to uphold the constitutional provisions.

[191] It is not convincing to sideline such arguments by a reference to generalities about the "modern regulatory state". Executive government, in particular, will constantly complain about the subjection of its decisions to judicial scrutiny and disallowance. The constitutional writs are an important protection. ^[280] However, under current doctrine, for the most part, they are confined in the remedies that they provide to cases of "jurisdictional error". The facility of access to the courts for the resolution of controversies under federal law is a much larger and more valuable protection.

[192] No necessity of the modern state removes this protection altogether. Certainly it does not do so in cases involving the determination of "offences", criminal in character, subject to significant "penalty" and "punishment", including in a case such as the present a lengthy loss of liberty. If this Court allows such questions to be decided outside Ch III courts because of the supposed necessities of the "modern regulatory state", there will remain virtually nothing that must, by Australian constitutional law, be dealt with by Ch III courts. This country will accept military commissions and military "courts". ^[281]

[193] In my opinion, the Australian Constitution holds too precious the determination of controversies over life, liberty and property to permit such a conclusion. That is why the objection raised by the present plaintiff is a very important one. To dismiss it on the basis of a supposed exception applicable to service tribunals requires, at the very least, a justification by those of that view of the exception that will not undermine the function that Ch III is intended to perform in this and other cases. ^[282]

[194] Abstract reasoning objection: Is the conclusion that I favour to be dismissed as "abstract reasoning alone" inapposite to the Constitution as a practical instrument of government? ^[283] The joint reasons answer the plaintiff's submissions by rejecting her argument in such terms. ^[284] They refer to how "the judicial power of the Commonwealth", as an expression, "must have been universally understood in 1900". ^[285]

[195] Understandings of constitutional expressions in 1900 do not control the attribution of meaning to them today. If it had been otherwise, decisions such as Sue v Hill ^[286] and Shaw v Minister for Immigration and Multicultural Affairs, ^[287] and many others, would have been differently resolved. Common assumptions about the meaning, and content, of the federal judicial power in 1900 must be measured against the elucidation of the provisions of the Constitution and their purposes over more than a hundred years. This incorporates reference to the growing elaboration by the Court of the importance to the operation in the Constitution of the separation of the judicial power and of the requirement that certain exercises of governmental power, under federal legislation, are reserved to Ch III courts.

[196] There is nothing at all "abstract" about depriving an individual of liberty in a tribunal that is not constituted so as to be manifestly impartial and independent. There is nothing "abstract" in subjecting a defence member, exceptionally, to a different kind of prosecution, trial and punishment from that which would apply to any other Australian citizen in the same circumstances. Nor is it "abstract" to deny a defence member the protection of jury trial for the determination of charges for serious offences carrying, upon conviction, penalties of imprisonment.

[197] Characterisation and bright lines: The reasons of Gleeson CJ and the joint reasons finally object that the adoption of a criterion that would confine the constitutional exception for military discipline, permissible for trial in service tribunals, to offences that are "exclusively disciplinary in character" is unsatisfactory and therefore, by inference, outside the constitutional scheme. ^[288]

[198] In constitutional adjudication, difficult cases inevitably arise, as the joint reasons themselves acknowledge. ^[289] The desire for a "bright line" is understandable; but such clarity is often elusive. As Hayne J pointed out in Re Refugee Review Tribunal; Ex parte Aala, ^[290] this does not necessarily undermine a propounded taxonomy. One of the functions of courts in constitutional cases is to draw lines and to decide on which side of the line, so drawn, the case falls.

[199] Even before this litigation, it has long been recognised in the Defence Force that difficult questions must sometimes be answered in deciding whether a particular offence should proceed in the general courts or before a service tribunal (or both). Criteria have been developed to permit that to happen. ^[291] It is not a complaint against the correctness of the plaintiff's submissions that they would require re-expression of those criteria and, consequently, different outcomes.

[200] When effect is given to the operation of s 80 of the Constitution, as part of the scheme of Ch III of the Constitution, the delineation between the proper functions of service tribunals and those of the general courts is comparatively clear. The former might deal with contested issues that are "exclusively disciplinary" or "essentially disciplinary" in character but which attract, on conviction, a maximum punishment of less than twelve months imprisonment. Anything else must be prosecuted in a court of the integrated Judicature for which Ch III provides. ^[292] Of course, provisions for the arrest, detention and transmission of an accused service member to the courts, as soon as practicable, would be within power. But subjecting service members to the risk of imprisonment (as in the plaintiff's case, a potential aggregate maximum of thirty years imprisonment) is inconsistent with the constitutional scheme.

[201] In recent decades, many countries have abolished their separate military justice system, at least outside times of war or national emergency. ^[293] According to commentaries, Sweden has "had no serious difficulty in returning servicemen accused of crimes to Sweden for trial in a civilian court." ^[294] Where a constitutional imperative intervenes, as in my view it does here, sensible practical arrangements are invariably devised without delay. ^[295]

[202] Conclusion: constitutional invalidity: The result is that none of the arguments that have found favour in the joint reasons persuades me to withhold the remedies to which, by the application of the Constitution's text and structure, the plaintiff is entitled. The time has come for this Court to limit the "exception" for military justice to "offences" that are exclusively or essentially disciplinary in character and which carry a punishment of less than one year's imprisonment. All other "offences" presently included in the Act must, by the Constitution, be tried in the ordinary courts as envisaged by Ch III. Measured by these criteria, the sections of the Act providing for the trial of the plaintiff in service tribunals are invalid. It is impossible to sever the provisions that are incompatible with Ch III from those that are not. The plaintiff has established her constitutional right to relief, based on these conclusions.

Orders

[203] The following orders should be made:

(1): Declare that a trial of the charges identified in the summons against the plaintiff, under the Defence Force Discipline Act 1982 (Cth), is invalid in accordance with the Constitution of the Commonwealth;
(2): Order that prohibition issue to the Director of Military Prosecutions restraining the Director from requesting the Registrar of Military Justice to refer the charges against the plaintiff to a Defence Force magistrate for trial or to request the Registrar of Military Justice to convene a general court martial or a restricted court martial to try the charges; and
(3): Order that the Commonwealth pay the plaintiff's costs of the application.

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