White v Director of Military Prosecutions

231 CLR 570

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(Judgment by: Callinan J)

White
vDirector of Military Prosecutions

Court:

Judges: Gleeson CJ
Gummow J
Kirby J
Hayne J

Callinan JHeydon J
Crennan J

Hearing date:
Judgment date: 19 June 2007

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Judgment by:
Callinan J

[204] The issues in this case are whether there is a federal military judicial power exercisable otherwise than by courts constituted under Ch III of the Constitution and, if there is, the nature and extent of that power.

The facts

[205] The plaintiff is a Chief Petty Officer in the Royal Australian Navy. She was charged on 30 June 2006 by the Acting Director of Military Prosecutions under the Defence Force Discipline Act 1982 (Cth) ("the Act") with seven offences: the commission of acts of indecency without consent and, in the alternative, assault, against five women, all of whom were sailors. The offences were alleged to have been committed in Victoria when neither the plaintiff nor the servicewomen were on duty or in uniform. The plaintiff expressly disavowed reliance upon any insufficiency of connexion between the acts alleged and the service as a member of the Navy. ^[296]

[206] Section 61(3) of the Act, under which six of the charges were laid, applies s 60 of the Crimes Act 1900 (ACT): ^[297]

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

(a)

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

(b)

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

[207] Section 60 of the Crimes Act 1900 (ACT) prohibits an act of indecency without consent. It carries a maximum penalty of five years imprisonment.

[208] The other charge, an alternative to one of the charges under s 60, was laid under s 33(a) of the Act. It provides that a member of the defence forces, or a defence civilian (a defined term), who assaults another person on service land, in a service ship, aircraft or vehicle, or in a public place is guilty of an offence carrying a maximum penalty of six months imprisonment.

[209] The action in this Court has interrupted the prosecution of the charges which otherwise would be proceeding in accordance with ss 87 and 103 of the Act. Because the charges under s 61(3) are "prescribed offences", they may only be tried by court martial or a Defence Force magistrate.

[210] The plaintiff seeks an order prohibiting the first defendant from requesting the Registrar of Military Justice to refer the charges to a Defence Force magistrate, restricted court martial or general court martial for trial. She seeks, further, declarations that she may only be tried by a federal court exercising the federal judicial power under Ch III of the Constitution and that s 103 of the Act, and those provisions purporting to vest jurisdiction in a Defence Force magistrate or a court martial, are invalid.

The plaintiff's arguments

[211] It is relevant to note that there was no issue raised as to the amenability of military tribunals to prerogative or other judicial supervision under Ch III of the Constitution, or the possibility of the establishment of special courts under Ch III of the Constitution to try members of the Australian Defence Force ("the ADF").

[212] The plaintiff's argument has these as its components. There are some limited types of military discipline that can be imposed without invoking or trespassing upon the judicial power of the Commonwealth: military discipline is divisible. If the discipline goes beyond what she would describe as the "purely disciplinary" or an administrative check, which the plaintiff was reluctant to describe as punishments, for example reduction in rank, docking of pay, confinement to barracks for minor instances of misbehaviour, or other lesser infractions, then only federal courts may deal with them. An exclusively disciplinary offence is one, the plaintiff submits, that has no equivalent in the non-military law, does not involve exposure to imprisonment and is ancillary to, or serves some, disciplinary end. The alleged crimes are creatures of Commonwealth law. As such they may only be dealt with by federal courts. The defence power under s 51(vi) of the Constitution, as with all other powers exercisable under s 51, is subject to all of the other relevant provisions of the Constitution.

[213] The Act purports to vest service tribunals with the jurisdiction to make binding decisions as to the plaintiff's guilt and to resolve controversies between parties with respect to their rights and obligations arising under a law of the Commonwealth: it purports therefore to vest service tribunals with the judicial power of the Commonwealth.

[214] The tribunals constituted under the Act undoubtedly exercise a form of judicial power. That judicial power, the plaintiff submits, can only be a form of federal judicial power and one that accordingly cannot be exercised by a court martial or any other tribunal that the Act seeks to establish.

[215] The text of s 51 and Ch III cannot be circumvented by characterizing the exercise of judicial power by service tribunals as a "recognized exception". Either the Constitution permits departure from Ch III or it does not.

[216] Save possibly for Parliament's power to punish for contempt (depending upon its correct characterization), there are no true exceptions to the vesting of the judicial power of the Commonwealth exclusively in Ch III courts. In Chu Kheng Lim v Minister for Immigration ^[298] some "exceptions" were said to have been identified, namely: arrest and custody pursuant to warrant pending trial, detention because of mental illness or infectious disease and detention of aliens for the purposes of deportation and extradition. On examination, however, these do not constitute exceptions at all. Properly understood, none of them involve the exercise of the actual judicial power of the Commonwealth as is the case here: judicial power that involves the making of binding decisions to resolve controversies arising under the Constitution or a law of the Commonwealth.

[217] The plaintiff, in support of this last submission, sought to rely on some passages in the judgment of Gummow and Hayne JJ in Vasiljkovic v Commonwealth ^[299] in which their Honours said that detention for extradition purposes was valid even though there had not been prior adjudication of guilt by a domestic court, and the detention was not with a view to the conduct of such a trial by a domestic court: ^[300] detention of that kind pending determination or surrender, and its judicial processes, stands outside Ch III, rather than as an exception to its application.

[218] The position is different in the case of service tribunals. Their purpose is to adjudicate upon guilt and impose punishment.

[219] The plaintiff accepts that the cases in this Court upon which the defendants rely, beginning with Re Tracey; Ex parte Ryan, ^[301] do hold that there is a military judicial power standing outside Ch III but, she argues, these have no common ratio. Alternatively, and if necessary, she submits, they were wrongly decided and are irreconcilable with this Court's more recent jurisprudence concerning Ch III of the Constitution, particularly the apparent recognition in Vasiljkovic that there are not, in fact, any true exceptions to the vesting of federal judicial power in Ch III courts exclusively, except for Parliament which may punish for contempt.

[220] The arbitrary and harsh excesses of the English military discipline contemplated by the Naval Deserters Act 1847 (UK), the Naval Discipline Act 1866 (UK) and the Army Discipline and Regulation Act 1879 (UK) are not only currently unacceptable but are also inconsistent with the Australian Constitution.

[221] The plaintiff also refers to ss 75(iii) and 76(ii) of the Constitution. She submits that, because the Commonwealth is a party and the subject matter of the charges made against her falls within the Act, a law made under the Constitution, the charges must be tried by a Ch III court. The argument is that if the executive (here, the ADF) seeks to exercise power of a judicial kind, conferred by legislation made under the Constitution, that power can only be exercised by a federal court or, presumably, a State court vested with federal judicial power.

[222] Before dealing with the plaintiff's submissions it is necessary to consider the scope of the Act, the provisions of which have been summarized by the second defendant substantially as I set them out.

[223] The Act provides for a formal system for the maintenance of military discipline in the ADF. It applies to "defence members" (officers, soldiers, sailors and airmen, including Reservists on duty or in uniform) and "defence civilians" (persons accompanying the ADF outside Australia or on operations against an enemy anywhere, who have consented to be subject to the Act). ^[302] It also applies to prisoners of war as if they were defence members. ^[303] Any of these can commit a "service offence", which is defined essentially as an offence against the Act or the Defence Force Discipline Regulations 1985 (Cth), or is an ancillary offence to such an offence. ^[304] Some service offences are peculiarly and historically of a military kind, such as absence without leave ^[305] and insubordinate conduct. ^[306] Some offences do have equivalents in non-military law, including assault, ^[307] theft ^[308] and dealing in, or possessing, narcotic goods. ^[309] Section 61 incorporates in the definition of a service offence any conduct that would be an offence in the Jervis Bay Territory. ^[310] As a general rule, service offences punishable by more than two years of imprisonment are "prescribed offences" and cannot be tried by service tribunals exercising summary jurisdiction. ^[311]

[224] Service tribunals may impose punishments ranging from imprisonment for life (general court martial) to a reprimand (all service tribunals). ^[312] Sentences are imposed having regard to sentencing principles applied by civilian courts from time to time, as well, significantly, as to the need to maintain discipline in the ADF. ^[313]

[225] There are three categories of service tribunals: summary authorities, courts martial, and Defence Force magistrates (Pt VII).

[226] There are three types of summary authority:

(1)

subordinate summary authority: an officer appointed by a commanding officer under s 105(2), who has jurisdiction to deal with (including try) a charge against a class of defence members and specified classes of offences but cannot try a prescribed offence (s 108). The subordinate summary authority is usually a Major in the Army or of equivalent rank in the other branches ^[314] and deals with minor offences;

(2)

commanding officer: an officer who has the jurisdiction to deal with any charge against any person and to try a charge of a service offence:

(i)

against any member of the ADF who is two or more ranks junior to the commanding officer; or

(ii)

against a person who is not a member of the ADF;

unless that offence is a prescribed offence (s 107). Commanding officers usually hold the rank of Lieutenant-Colonel (or equivalent) and command a unit, ship or detachment of the ADF;

(3)

superior summary authority: an officer who has jurisdiction to try a charge of a service offence against an officer who is two or more ranks junior to him or her, a warrant officer and a person who is not a member of the ADF unless the offence is a prescribed offence. ^[315]

[227] A summary service tribunal sits ad hoc as required, upon the alleged detection of the commission of a service offence by a person subject to the Act, and in the exercise of a commander's discretion to proceed against the accused person.

[228] There are two types of courts martial:

(1)

restricted court martial ("RCM"): a legally qualified officer nominated by the Judge Advocate General ("JAG") from the judge advocates' panel sits as a judge advocate with at least three other officers, one of whom is the President, nominated by the Registrar of Military Justice ("RMJ"). ^[316] An RCM has jurisdiction to try charges for service offences against any person, but the maximum punishment that can be awarded for a service offence is restricted to six months imprisonment or detention. ^[317] The judge advocate gives binding directions on law and the President and members of the RCM determine the questions of fact; ^[318]

(2)

general court martial ("GCM"): a GCM is constituted in the same way as an RCM except that the judge advocate sits with a panel of at least five other officers. ^[319] A GCM has jurisdiction to try charges for service offences against any person. ^[320]

[229] A court martial sits ad hoc. It is constituted by the RMJ ^[321] upon a request from the Director of Military Prosecutions ("DMP"). ^[322] Both the RMJ and the DMP are statutory appointments by the Minister for Defence and operate independently from the military chain of command. ^[323]

[230] The third category of service tribunal is a Defence Force magistrate, who must be a legally qualified officer nominated by the JAG from the judge advocates' panel. ^[324] A Defence Force magistrate sits alone and has the same jurisdiction and powers of punishment as an RCM. ^[325] A Defence Force magistrate assumes jurisdiction in relation to a particular charge when the DMP has requested the RMJ to refer it to a Defence Force magistrate for trial. ^[326]

[231] All service tribunals apply the criminal standard and onus of proof. ^[327] A prosecutor and a defending officer are appointed for each service tribunal at each level. The rules of evidence in force in the Jervis Bay Territory apply to a service tribunal as if that service tribunal were a criminal court in the Territory. ^[328]

[232] The defence power is stated, as are most of the provisions of s 51, in general terms:

The Parliament shall, subject to this Constitution, have power 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.

Disposition of the case

[233] There can be no doubt, to use the introductory language of s 51, that the "order and good government" of the forces required to defend the Commonwealth depend upon the establishment and maintenance of a relatively strict system of discipline. At the heart of this is the crucial and indubitable understanding that personnel must operate in circumstances of grave danger in which reliance upon one another and instantaneous obedience of orders are essential. The implication of this is that inevitably some discipline may have a more summary complexion, may attract somewhat more harsh penalties than, and may encompass conduct of different kinds from those found in civil life.

[234] The defendants do not shrink from the proposition that the tribunals established by the Act exercise a form of judicial power. This judicial power, however, the defendants argue, stands apart from conventional judicial power: this, they say, has been so from the beginning of organized military forces and was certainly so at the time of federation.

[235] It is unnecessary to restate all of that history. It is fully surveyed in the reasons for judgment of Brennan and Toohey JJ in Re Tracey; Ex parte Ryan. ^[329] Their Honours conclude that survey with this statement, which must now be read subject to the reasoning of the Court in Aird ^[330] but which relevantly requires no different a result here: ^[331]

The power to punish conferred by naval and military law extended to the most serious crimes in the criminal calendar, but those crimes were not to be tried by court-martial unless they were committed on active service outside the jurisdiction of the ordinary courts or in circumstances and places where the jurisdiction of the ordinary courts could not be conveniently exercised.

[236] Nor is it necessary to repeat the review of the authorities in this Court as they stood in 1989, including Bevan ^[332] and Cox ^[333] undertaken by their Honours in Tracey. Their conclusion about them is unquestionable: ^[334]

The view which has hitherto commanded assent in this Court is that Ch III of the Constitution does not preclude the making of a law which provides for the imposition of punishments by service tribunals to effect the discipline of the defence forces of the Commonwealth.

[237] In this matter the second defendant refers to the absence of express reference in the Convention Debates to the disciplining of the defence forces. It is almost always instructive to refer to the Debates and their historical setting. Certainly, the British Empire which flourished then was seen by the United Kingdom and its dependencies, not only as a trading network, but also as a mutual defence organization, the latter in part at least in order to protect the former. What was apt for the Imperial forces would have been regarded as apt for the Australian defence forces at the time, and they might expand and be required to meet different threats in the future. I respectfully agree with what Brennan and Toohey JJ said of the history in Tracey: ^[335]

The Convention Debates are silent on this point and their silence is testimony to the absence of any consciousness on the part of the delegates that they were leaving the naval and military forces of the Commonwealth without authority to maintain or enforce naval and military discipline in the traditional manner. It could hardly have been intended by the framers of the Constitution that, in times, places or circumstances in which it would be impracticable for the ordinary courts to exercise their jurisdiction -- eg, during service in a theatre of war outside Australia -- the discipline of the armed forces should be imperilled by want of power to impose penalties for breaches of service law, even though those are the times, places and circumstances in which the armed forces stand in most urgent need of such powers. Contemporary writers did not understand that such a radical change had occurred. Professor W Harrison Moore, writing in 1902 (Constitution of the Commonwealth of Australia, 1st ed, pp 280, 281), regarded courts-martial as not being within the provisions of Ch III of the Constitution. In the second edition (1910), Professor Moore treated the subject more extensively, asserting that proceedings before courts-martial were strictly judicial but referring to courts-martial as an instance of judicial functions being exercised otherwise than by Ch III courts: see pp 308, 321. The rationale for this view appears at pp 315-316:

Even in those Constitutions in which the separation of powers has been accepted as fundamental, by no means every function which is in its nature judicial is exclusively assigned, or permitted, to the judicial organ. Therefore, although neither history nor usage nor practical convenience can determine the nature of "judicial power", logical consistency may have to yield something to history and familiar and established practice in determining what is the judicial power of the Commonwealth committed to the Courts by sec 71.

[238] It follows that the plaintiff's arguments are foreclosed by the earlier decisions of the Court.

[239] There are however two further matters of importance favouring the defendants' stance. The presence of s 68 in the Constitution is the first of these: ^[336]

Command of naval and military forces

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

[240] In R v Bevan; Ex parte Elias and Gordon ^[337] Starke J saw that section as an instance of the "special and peculiar" provision contemplated for the management and disciplining of the defence forces and so do I. Another way of putting this is to say that the command and that which goes with it, namely discipline and sanctions of a special kind, for the reasons that I earlier gave, are matters of executive power, albeit that the power should still be exercised, so far as is reasonably possible, in a proper and judicial way, adapted as necessary to the special circumstances of military service, as I take the second defendant to accept. The presence of s 68 in the Constitution alone provides an answer to the plaintiff's submission that by necessary implication military judicial power may only be exercised by a Ch III court.

[241] The presence of s 68 in the Constitution may even, arguably, have further relevance to military justice, with the result that it may not be subject to judicial supervision under Ch III of the Constitution and is administrable only militarily and not by Ch III courts, whether specially constituted or not. The Convention Debates did not address this question. Their preoccupation was with the role of the Governor-General. Section 68 was left in the form that it has because the founders were content to read Governor-General as meaning Governor-General in Council. ^[338] If anything this is to emphasize rather than to detract from the unique and special nature of military power and control of it.

[242] A point about s 68 is that it vests a power of command which cannot be rejected or diminished, unlike powers exercisable under s 51 of the Constitution which Parliament may choose not to exercise. Section 71 vests the judicial power of the Commonwealth in Ch III courts and whether that vesting can include military judicial power may be a question. It is certainly true that s 75 begins with the words "In all matters" and in s 75(v) refers indiscriminately to "an officer of the Commonwealth" but, again, there may be a question whether any derogation from the absolute command, including discipline, vested in the Governor-General (in Council) is constitutionally open.

[243] It may be that the means of checking any misuse of that command, or threat of oppression by it, lies with Parliament under ss 64 and 65, in particular in its control of the executive and the raising and appropriation of revenue for the maintenance of the military. ^[339] These are not matters which were argued and therefore are not ones on which it would be right to express even a tentative view.

[244] The other matter is one accepted by the plaintiff: that a sufficient service connexion is present in this case, a matter which might otherwise be controversial. Because it is not here, necessarily implicit in that acceptance is the proposition that the charges laid are for the proper disciplining of a member of the ADF for misconduct (alleged but not yet proved) in the course of, or in sufficient connexion with, the plaintiff's service in the ADF. The charges accordingly call for the exercise, in a judicial manner, of an aspect of the defence and executive powers outside Ch III of the Constitution.

[245] I would dismiss the plaintiff's application with costs.