Haskins v The Commonwealth [2011] HCA 28 | Case summary

Haskins v The Commonwealth [2011] HCA 28 | Case summary | Zoe

At all times the Discipline Act has distinguished[6] the punishment of "detention" from that of "imprisonment". As documents annexed to the special case reveal, detention is a form of punishment imposed "[w]here there are reasonable grounds for expecting the offender to be rehabilitated" and is intended to serve three purposes: deterrence, punishment and rehabilitation. By contrast, imprisonment is generally a punishment of last resort and must be accompanied by the punishment of dismissal from the defence force[7].
The reference in item 5(4) to a review should be explained. Part 7 of Sched 1 permitted a person subject to punishment imposed by the AMC, other than a punishment of imprisonment, to seek a review, under Pt VIIIA of the Discipline Act (as amended by the Interim Measures No 1 Act), of the punishment that had been imposed. Item 25(4) of Sched 1 to the Interim Measures No 2 Act provided for the automatic review of punishments of detention. On a punishment review, by a reviewing authority within the chain of command of the defence force[8], the punishment imposed by the AMC (and declared by the Interim Measures No 2 Act to be a liability of the person in question) could be modified or revoked. The final decision about the imposition of the punishment of detention thus necessarily rested within the chain of command of the defence force; a person subject to any other form of punishment could seek and obtain a review[9]. The availability of such a review within the command structure of the defence force emphasises the fact that both the form and extent of the punishments dealt with by the Interim Measures No 2 Act could be, and in cases like the plaintiff's had to be and were, decided within the command structure of the force. Neither the form nor the extent of punishment was finally fixed by the Interim Measures No 2 Act.
The plaintiff having been sentenced to detention, item 5(2) of Sched 1 to the Interim Measures No 2 Act provided, in its terms, that "[t]he rights and liabilities of all persons are ... declared to be, and always to have been, the same" as if the four matters stated in item 5(2)(a)‑(d) had been the case. Those four matters can be summarised as being: (a) the Discipline Act (as amended by the Interim Measures No 1 Act) had been in force on and after the time the orders for detention were made; (b) the orders for detention had been properly imposed by a general court martial; (c) the review processes provided by the amended Discipline Act for review of the punishment had been completed, and the punishment had not been altered; and (d) there being orders for suspension of part of periods of detention to be served by the plaintiff, the general court martial had made like orders for suspension.
On their proper construction, how did the impugned provisions engage with the plaintiff's case?

The plaintiff submitted that items 3 to 5 of Sched 1 to the Interim Measures No 2 Act should be construed as not validating the warrant which had required the plaintiff's detention. In particular, the plaintiff submitted that item 5, by dealing with a "punishment" imposed by the AMC, did not have any effect in relation to the warrant. Item 2(2) of Sched 1 to the Interim Measures No 2 Act provided that the provisions of the Schedule that "declare people to have particular rights or liabilities have effect for Defence Force service purposes only" (emphasis added). This being so, the plaintiff submitted that the impugned provisions should be construed so as not to interfere with the plaintiff's common law right to be free from involuntary restrictions on his movement.
These submissions should be rejected. The construction of the impugned provisions urged by the plaintiff is not open and should not be adopted. Item 3(2)(a), in terms, declared that all persons (thereby including the officer who issued the warrant and those who executed it) are and always have been "entitled to act on the basis that other persons had, and have, the rights and liabilities as declared" by the applicable item of the Schedule. Item 3(2)(b) provided that the rights and liabilities declared (in the plaintiff's case by item 5 of the Schedule) are rights and liabilities that are "to be regarded as always having been exercisable or enforceable" as if the matters assumed (again, in this case, by item 5) had in fact been the case. Fixing the rights and liabilities of the plaintiff as a member of the defence force and of both the officer who issued the warrant and those who executed it cannot be given "effect for Defence Force service purposes only"[10] without validating the warrant which required the plaintiff's detention. Validation of the warrant necessarily affects any common law rights the plaintiff may otherwise have had against other members of the defence force. That the Interim Measures No 2 Act affects the plaintiff's common law rights does not mean that it has effect for purposes beyond defence force service purposes.
Are the impugned provisions valid?

The plaintiff advanced two lines of argument in support of the submission that the impugned provisions are invalid - one founded in Ch III of the Constitution, the other in the prohibition against acquisition of property otherwise than on just terms derived from s 51(xxxi).
The plaintiff submitted that the Interim Measures No 2 Act usurped judicial power. Both in amplification, and as a more specific restatement, of that general proposition the plaintiff submitted that the impugned provisions possessed the prohibited features of a bill of pains and penalties. More particularly, the plaintiff submitted that the Interim Measures No 2 Act provided for legislative punishment of a specifically designated person or group[11] or, put another way, that the impugned provisions were laws directed to a particular group of individuals which punished them without the procedural safeguards involved in a judicial trial. Particular reliance was placed upon what was said in this regard in Polyukhovich v The Commonwealth (War Crimes Act Case)[12], Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs[13] and International Finance Trust Co Ltd v New South Wales Crime Commission[14].
The plaintiff further submitted that the system of military justice was to be seen as a confined exception to Ch III which should not be extended beyond the actual, as distinct from deemed or hypothetical, exercise of power by service tribunals. To permit extension of the exception to a legislatively assumed, or hypothetical, exercise of power by service tribunals would offend, so the argument continued, the principle that prevents Parliament from doing indirectly what it is forbidden to do directly. Reference was made in this regard to Commissioner for Motor Transport v Antill Ranger & Co Pty Ltd[15] and Coleman v Power[16].
The second line of argument which the plaintiff advanced was that the impugned provisions effected an acquisition of a valuable chose in action - his asserted common law action for false imprisonment - and did so without provision of any terms, let alone just terms.
The plaintiff's arguments will be considered in that order: first, the allegation of invalidity for contravention of Ch III, and second, the allegation of invalidity for contravention of the just terms requirement of s 51(xxxi).

It is to be borne at the forefront of consideration of the plaintiff's arguments about the application of Ch III of the Constitution that this Court has repeatedly upheld[17] the validity of legislation permitting the imposition by a service tribunal that is not a Ch III court of punishment on a service member for a service offence. Legislation permitting service tribunals to punish service members has been held to be valid on the footing that there is, in such a case, no exercise of the judicial power of the Commonwealth. Punishment of a member of the defence force for a service offence, even by deprivation of liberty, can be imposed without exercising the judicial power of the Commonwealth. Because the decisions made by courts martial and other service tribunals are amenable to intervention from within the chain of command, the steps that are taken to punish service members are taken only for the purpose of, and constitute no more than, the imposition and maintenance of discipline within the defence force; they are not steps taken in exercise of the judicial power of the Commonwealth.
By contrast, the legislation declared invalid in Lane v Morrison was held[18] to be an impermissible attempt to provide for the exercise of the judicial power of the Commonwealth by a body that was not established in the manner required by Ch III. As noted at the outset of these reasons, the AMC was empowered by the legislation held invalid in Lane v Morrison to make binding and authoritative decisions of guilt, and determinations about punishment for service offences, without further intervention from within the chain of command of the defence force. But the members of the AMC were not appointed in the manner, or with the tenure of office, that s 72 of the Constitution requires. Lane v Morrison did not decide that only a Ch III court could impose military punishment on a service member found to have committed a service offence.
With these basic considerations in mind, the plaintiff's arguments that the impugned provisions contravene Ch III can be dealt with shortly. It is convenient to deal first with the more general proposition that there was a usurpation of judicial power.
The impugned provisions do not usurp judicial power. The argument that the impugned provisions have this effect proceeds from an unstated premise of exclusivity: that only a Ch III court could impose the punishment of detention on the plaintiff or others with whom the AMC dealt. Unless that punishment could be imposed only in the exercise of the judicial power of the Commonwealth, the declaration of rights and liabilities by the impugned provisions cannot amount to any usurpation of judicial power. As Mason J said in R v Humby; Ex parte Rooney[19]: "[i]n the context of the Commonwealth Constitution, [usurpation of judicial power] must signify some infringement of the provisions which Ch III makes respecting the exercise of the federal judicial power." As the earlier decisions upholding the validity of legislation providing for those forms of service tribunals that existed before the creation of the AMC demonstrate, the premise for the plaintiff's argument that there has been a legislative usurpation of judicial power is wrong.

The plaintiff submitted that the impugned provisions constitute a bill of pains and penalties because those provisions amount to the legislative imposition of punishment on a designated person or group of persons without the procedural safeguards of a judicial trial[20]. In Polyukhovich, it was pointed out that in the Australian constitutional context, an Act that is a bill of pains and penalties is not prohibited merely because it matches that description. As Dawson J said[21], "the real question is not whether the Act amounts to a bill of attainder [or a bill of pains and penalties], but whether it exhibits that characteristic of a bill of attainder which is said to represent a legislative intrusion upon judicial power". And Mason CJ, Toohey and McHugh JJ each made the same point[22]. It follows that the plaintiff's argument in relation to a bill of pains and penalties necessarily proceeded from the unstated premise that has been earlier identified, namely, that only a Ch III court could impose the punishment of detention on the plaintiff or others with whom the AMC dealt. But as has been pointed out, the premise is wrong and that is reason enough to reject the plaintiff's argument that the impugned provisions are invalid because they have the features of a bill of pains and penalties.
Further, the impugned provisions do not have the prohibited features of a bill of pains and penalties. First, it is inapposite to describe the impugned provisions as having imposed a punishment on those with whom the AMC had dealt. Second, the impugned provisions made no legislative determination of guilt and did not make crimes of any acts after they had been done.
As explained earlier, the Interim Measures No 2 Act provided[23] that the declaration of rights and liabilities was "subject to the outcome of any review" provided for by Pt 7 of Sched 1. Because the plaintiff was sentenced to detention there was an automatic review of the punishment imposed on him. On 29 March 2010, the reviewing authority upheld the punishment imposed on the plaintiff. The final decision about his punishment was therefore made within the chain of command; the punishment to which he was declared liable by the Interim Measures No 2 Act was not finally fixed by the Act. And because those who had been sentenced to some lesser form of punishment could seek a punishment review, this punishment, too, was not necessarily fixed finally by the Act.
The availability of, and in some cases, including the plaintiff's, the requirement for, a punishment review denies that the Interim Measures No 2 Act imposed punishment on those with whom the AMC had dealt. There are, moreover, further reasons to conclude that to describe the Act as imposing punishment is inappropriate.
The impugned provisions, and in particular item 5(2) of Sched 1, declare the "rights and liabilities of all persons" to be, and always to have been, the same as if certain events had occurred. The hypotheses identified as the bases for the declaration of rights and liabilities can be summarised as being that punishment had been validly imposed by a properly constituted tribunal, had been reviewed within the chain of command but had not been varied.
In cases where the punishment that was imposed by the AMC had been fully satisfied by the time the impugned provisions came into force (as, for example, by the service of the whole of a period of detention and the expiration of any period for which an order of detention was suspended) it would not be right to describe the effect of the provisions as being a legislative imposition of punishment. The better description of the provisions would be that they were in the nature of an act of indemnity intended to preclude liability for past acts. More particularly, in the language of Willes J in Phillips v Eyre[24], the impugned provisions sought to "confirm irregular acts", not to void and punish "what had been lawful when done".
There is a long history of enactment of statutes which may treat as effective transactions which when conducted lacked legal authority, and may also exempt persons from what otherwise would be liabilities for acts purportedly done in the public service[25]. Thus, the Indemnity Act 1920 (UK) restricted the taking of legal proceedings in respect of certain acts done in the Great War and validated sentences, judgments and orders of certain military courts during that conflict.
If, as was said to be the plaintiff's case, the punishment imposed by the AMC was not fully satisfied by the time the impugned provisions came into force (there being in his case an unexpired period of suspension[26] of seven days' detention) to describe the provisions as a legislative imposition of punishment would be too compressed a description of their effect. The impugned provisions declared the rights and liabilities of more than those who had been the subject of punishment orders and in that respect were in the nature of an act of indemnity. To say, in those circumstances, that the impugned provisions imposed a punishment on the plaintiff does not accurately reflect the complete operation of those provisions.
Nor was there any legislative finding of contravention of a norm of conduct. The impugned provisions said nothing about the contraventions of the Discipline Act that lay behind the punishments with which the Interim Measures No 2 Act dealt. The sole focus of the latter Act, and more particularly the impugned provisions, was punishments that had been imposed, not what had prompted those punishments. Thus, contrary to the plaintiff's submissions, the impugned provisions did not determine any question of guilt, or make crimes of any acts, let alone crimes of acts after they had been committed[27].
The impugned provisions do not have the prohibited features of a bill of pains and penalties or in any other way constitute the attempted exercise of the judicial power of the Commonwealth[28].
The plaintiff's argument, that the impugned provisions sought to achieve indirectly an object which the Parliament is forbidden to achieve directly, fails because it, too, is an argument that necessarily proceeded from the unstated, but incorrect, premise that the imposition of punishment for a service offence could be effected only in the exercise of the judicial power of the Commonwealth.

The plaintiff submitted that the impugned provisions were invalid as being contrary to Ch III because the system of military justice is to be seen as a confined exception to Ch III which should not be extended beyond the actual, as distinct from deemed or hypothetical, exercise of power by service tribunals. This manner of putting the argument directed attention away from why it is that the imposition of punishment by a service tribunal on a member of the defence force is not an exercise of the judicial power of the Commonwealth. The proper ambit of what is described as an "exception" or "qualification" to Ch III cannot be identified without close attention to both the reasons for, and the content of, the principle or principles that yield the exception.
Two kinds of consideration lead to the conclusion that disciplinary measures can be applied in the defence force without exercise of the judicial power of the Commonwealth. First, there is not the exercise of the judicial power of the Commonwealth in such a case because the punishment is imposed by the (legislatively regulated) exercise of the power of command that is a necessary and defining characteristic of the defence force: a power of command that is essential to the creation and maintenance of a disciplined and effective fighting force. Second, there is not the exercise of the judicial power of the Commonwealth in such a case because there is not the binding and authoritative decision of guilt or determination of punishment for a service offence that stands apart from the chain of command of the defence force.
Once it is observed, as has already been explained, that the impugned provisions focus only upon punishments that have been imposed, and are subject to review within the chain of command of the defence force, it is then apparent that no new or larger exception must be made to the application of Ch III to conclude that the impugned provisions are valid.
The imposition of punishment within Australia's defence force and the anterior finding of contravention of some relevant norm of conduct has been regulated by statute since the time of federation[29]. And the history of statutory regulation of naval and military discipline can be traced in Britain to at least the 17th century[30]. What has marked that statutory regulation of naval and military discipline has been the establishment of procedures by which the imposition of punishments for disciplinary offences can be seen not only to have been fair, but also to have rested ultimately in the control by officers of the service more senior than the officer or officers immediately responsible for fixing the punishment in question. The provisions made by the Interim Measures No 2 Act for punishment reviews are wholly consonant with the principles that have informed those earlier statutes.
Legislation which seeks (as the impugned provisions seek) to validate the imposition of punishment that has been imposed invalidly does not depend for its validity upon creating any new or larger exception to Ch III. Describing the impugned provisions as depending upon a "deemed" or "hypothetical" imposition of punishment by a service tribunal does not deny that what is done by the impugned provisions is for the enforcement of discipline within the defence force. Tying the operation of the impugned provisions to the hypothesis that the punishments in question had been validly imposed by a general court martial may be a useful drafting device upon which to base the provisions for punishment reviews but it does not alter the fact that, as has already been observed, the impugned provisions say nothing about the guilt or innocence of any of those with whom the AMC dealt. The impugned provisions make no determination (let alone a binding or authoritative determination) of such an issue. The impugned provisions do not finally fix the punishments that are to be deemed to have been imposed.

In his initial written submissions in this Court, the plaintiff alleged that the issue of the warrant of commitment was "without authority and unlawful". But in his reply, the plaintiff indicated that he did not press that submission (although he sought to reserve the right to raise it as an issue at trial if he succeeded on the constitutional issue).
Upon the AMC making orders for the plaintiff's detention, the military judge, who with a military jury had constituted the court that tried the plaintiff, issued a warrant for the commitment of the plaintiff to the Corrective Establishment. The military judge did that as an "authorized officer": "an officer, or an officer included in a class of officers, authorized, in writing, by the Chief of the Defence Force or a service chief for the purposes of the provision in which the expression occurs"[36]. Section 170(1) of the Discipline Act permitted "an authorized officer ... [to] issue a warrant for the commitment of a detainee to a detention centre". A "detainee" was defined generally in the Discipline Act[37] as "a person who is undergoing a punishment of detention in a detention centre". But for the purposes of s 170, "detainee" was defined[38] as "a convicted person on whom a punishment of detention has been imposed". The parties addressed no argument to whether the definition should be understood as confined in its reach to those on whom a punishment of detention has been validly imposed. While there appears much to be said for this construction, the question need not be explored.
The warrant took the form of written commands by the authorised officer, who in this case held the rank of Brigadier, first, requiring service police members to convey the plaintiff to the officer in charge of the Corrective Establishment and, second, requiring the officer in charge of the Corrective Establishment to detain the plaintiff "for as long as his detention is necessary for the execution" of the punishment imposed by the AMC's orders. The warrant, in its terms, thus obliged the officer in charge of the Corrective Establishment to detain the plaintiff. Nothing suggested that the warrant, and the orders it embodied, went beyond what was authorised by s 170 of the Discipline Act.
Disobedience of a lawful command of a superior officer was (and remains) an offence under s 27 of the Discipline Act. Even in his initial submission, in which he had challenged the validity of the warrant, the plaintiff accepted not only that the officer in charge of the Corrective Establishment had no discretion to release the plaintiff but that it would have been an offence against the Discipline Act to have done so without authority. It is not necessary to examine the correctness of this proposition. Argument proceeded on the basis that the officer in charge of the Corrective Establishment had no reason to doubt that he was bound to give effect to the warrant's commands.
Did the plaintiff have an action against the officer in charge of the Corrective Establishment for false imprisonment?

This Court's decision in Groves v The Commonwealth[50] shows that the statement by Windeyer J was expressed too widely. In Groves the Court held that an action in negligence is maintainable against the Commonwealth by a serving member of the defence force for damage caused by the negligence of a fellow service member while on duty in peace time where such an action would be available to a civilian in the same situation as the plaintiff service member. The plaintiff in Groves was held to be able to recover damages for personal injury suffered when he fell from a ladder that had not been securely fastened by a crew member on the Royal Australian Air Force aircraft on which both were serving. All members of the Court left open[51] whether some other rule should apply if injury was suffered in warlike operations (including "activities of a purely military character"[52] such as training exercises[53]). And the difficulties presented by acts done in intended enforcement of discipline within the services were also recognised[54].
As Gibbs CJ pointed out[55] in Groves, the cases to which Windeyer J referred in Parker "were all cases in which the conduct of the defendant was intentional and purported to have been done in the course of military duty or discipline, and the plaintiff's case was that there had been an exercise of authority that was malicious or otherwise wrongful" (emphasis added). As Gibbs CJ also noted[56], reluctance has more than once been expressed[57] about formulating any general rule excluding from consideration by the courts all cases founded in what is alleged to be the wrongful exercise of military discipline. And the plurality reasons in Groves explore and emphasise[58] the difficulties that underpin that reluctance. But a majority of the Court expressly distinguished[59] the negligent conduct at issue in Groves from conduct carried out in obedience to a specific order of a superior officer.
In Sutton v Johnstone[60], the several Dawkins cases[61] and Heddon v Evans[62], it was held that no action lay (in cases variously for malicious prosecution, defamation and false imprisonment) for certain acts done in the course, or for the purposes, of military discipline, even if malice were proved[63]. In all but Heddon v Evans, maintenance of discipline was a critical reason advanced for the conclusion reached. In Heddon v Evans, McCardie J concluded[64] that the actions of which complaint was made were not actions done in excess of or without jurisdiction. It is neither necessary nor appropriate, however, to attempt to distil from those decisions, or now state, a general rule to the effect that no action in tort will lie in respect of any act done or omission made in the course of, or for the purposes of, military discipline.
A rule cast in those terms directs attention only to the purposes for which an act was done or omission made. That would not address the several difficulties both of principle and application that were explored in Groves. A rule of the kind postulated could not meet those difficulties without being the subject of much greater elaboration. How that could be done need not be decided but it is useful to make one point about the subject. Elaboration of the kind required would not be assisted by use of the word "malice", no matter whether that term was intended to describe a matter which, if present, would allow a member of the services to bring an action in tort against another[65], or, as some of the older cases appear to suggest, was intended to identify a consideration that should be held irrelevant to whether or not an action lies. "'Malice' has proved a slippery word in the law of torts"[66].
Nor is it appropriate to pursue the path followed by McCardie J in Heddon v Evans and seek to frame a rule based only on a distinction between acts done within or without jurisdiction. As will later be explained, a rule of that kind does not meet the need to avoid destruction of military discipline. As already explained, the orders made by the AMC were not validly made. If it is accepted that what was done in execution of those orders was done "without jurisdiction", the question remains whether an action for false imprisonment should be found to lie in those circumstances.
The present case should be decided on the footing that the acts of which the plaintiff complains were acts done by one member of the defence force to another in obedience to what appeared to be a lawful command. The acts were not done for any reason other than the bona fide application of a kind of disciplinary measure for which the Discipline Act provided. That is, the punishment imposed was a lawful form of punishment. The punishment was executed in the manner prescribed by law. The complaint of false imprisonment is founded wholly on the invalidity of the law that established the body that imposed the punishment. No allegation of improper purpose, "malice" (whether that is understood as spite, ill will, ulterior motive, or otherwise) or oppression is made or was available. The plaintiff's detention was effected in obedience to commands made by a warrant that those to whom the warrant was directed had no occasion to believe were other than lawful commands.
In Keighly v Bell[67], Willes J said that:

It is characteristic of states governed by the rule of law that substantive laws are prospective, not retrospective. That is particularly so where the criminal law is concerned. The rule of law requires that people are not to be punished for conduct which was not unlawful at the time it was carried out. This case does not concern a retrospective substantive law. The crimes of which the plaintiff was convicted were known to the law at the time of the conduct alleged against him by reason of s 60 of the Financial Management and Accountability Act 1997 (Cth) and s 61(3) of the Defence Force Discipline Act 1982 (Cth).
Instead this case concerns another type of retrospectivity. A free society under the rule of law seeks to control the use of force by conferring a monopoly of it on the state through a "social apparatus of compulsion and coercion"[69]. But coupled with that monopoly is an expectation. The expectation is that, at least in relation to the more extreme forms of force, such as the deprivation of liberty under coercion, the state will supply as part of the social apparatus a system of courts or tribunals in which the allegations against persons allegedly in breach of the law can be heard, relevant factual circumstances proved, relevant rules of law applied to them, and, if guilt is established, relevant criminal sanctions imposed.
The plaintiff was subjected to deprivation of liberty under coercion and the threat of coercion. The plaintiff was detained in a cell in the Defence Force Corrective Establishment at Holsworthy in New South Wales. When not in that cell, he was obliged to participate in various training activities and in work. Section 54A(1)(g) of the Defence Force Discipline Act 1982 (Cth) made it an offence for the plaintiff to enter or leave his cell without lawful authority, and that offence was punishable by segregated confinement for a maximum of 10 days (s 54A(4)). The state had no legal warrant for treating the plaintiff in this way. That is because the "Australian Military Court" which imposed the relevant orders and sentences was held in Lane v Morrison[70] to carry out judicial functions although it was not a court, and hence contravene Ch III of the Constitution. It was also held to make decisions which were not amenable to intervention from within the chain of command, and hence not to operate validly in accordance with earlier authorities on the court martial system. It had no validity. It had no power to coerce the plaintiff in the way it did. The Commonwealth had failed to supply a court or tribunal in which the allegations against the plaintiff could be heard, the facts found, the rules of law applied and the sanctions imposed.
For a body which is not a Ch III court, like the Australian Military Court, to purport to carry out judicial functions is not a breach of a merely formal requirement. It is of fundamental substantive significance. The provisions of s 72 of the Constitution relating to the method of appointment of judges, the duration of their appointment, their removal, and the irreducibility of their remuneration operate so as to create a particular kind of judiciary. It is a kind of judiciary quite distinct from the Australian Military Court. There are circumstances in which retrospective legislation may work no injustice if it has the effect of creating a state of affairs which would have existed but for some purely formal defect. Non-compliance with Ch III is not a defect of that type.

Item 5 is not entirely retrospective. When enacted, it could have had some future operation. This can be seen in two ways.
Some of the plaintiff's sentences were sentences of detention for 42 days. The sentences were suspended as to seven days. Pursuant to s 81 of the Defence Force Discipline Act 1982 (Cth) the seven day period which was suspended was not remitted until one year had passed - ie 10 December 2009. Although the plaintiff did not re-offend within that year, if he had done so, he could have been made liable to serve that seven day period of detention at any time up to the day when Lane v Morrison was decided on 26 August 2009. He could not have been made to serve that seven day period of detention during the period between 26 August 2009 and the day when the impugned legislation was enacted on 22 September 2009. But his obligation to serve the seven day period would have arisen again in the period between 22 September 2009 and 10 December 2009.
Secondly, although once Lane v Morrison was decided on 26 August 2009 all persons serving a sentence of detention imposed by the Australian Military Court were released, the enactment of item 5 had consequences for those who had not served their whole terms. Once item 5 came into force on 22 September 2009, those persons were required by operation of law to do something they were not previously liable to do - to serve the balance of their invalidly imposed sentences.
Hence there were persons - the plaintiff so far as the suspended part of his sentence was concerned, and others with unsuspended parts of their sentences to be served - who were sentenced to detention - prospectively - not by force of any valid court decision, but by force of legislation. The Second Reading Speech fully accepted that consequence when it stated: "the Bill, by its own force, purports to impose disciplinary sanctions."[80] If the plaintiff had had to serve the seven day period of his sentence which was originally suspended and had been asked: "By what right is the Navy doing this to you?" his answer would not have been: "The Australian Military Court convicted and punished me" but: "Parliament by its legislation is punishing me." Persons released on 26 August 2009 but subsequently called on to complete their terms of detention would give the same answer.
Is that legislation, whether retrospective or prospective, within the power of the legislature?

Military discipline is subject to conflicting demands. There is a need for a system which can be speedily administered by officers, sworn to defeat the Queen's enemies, who are appropriately experienced in the servitude and grandeur of arms and the splendours and miseries of military life. That need has helped cause the traditional system of military tribunals to continue. There is also a need for the procedural fairness and expertise built up over many generations in the ordinary courts of the land. It is this which impelled the legislature to enact the legislation invalidated in Lane v Morrison, which created the Australian Military Court as a body approaching but not arriving at the status of a Ch III court. These conflicting demands have led to historical compromises. Those compromises have caused traditional military tribunals to be seen as operating by way of exception to Ch III, or operating as a qualification to Ch III, or operating outside Ch III.
Is item 5(2) within the conception of traditional military tribunals?
Under item 5(2)(a) it is necessary to postulate - or, to use the word repeatedly used by the Solicitor-General of the Commonwealth in explaining item 5(2), to "hypothesise" - that the Defence Force Discipline Act 1982 (Cth) as amended by the Military Justice (Interim Measures) Act (No 1) 2009 (Cth) was in force on 11 December 2008. It was not.
Under item 5(2)(b) it is necessary to postulate that the orders of punishment made against the plaintiff were made by a general court martial. If they had been made in that way, they would have been valid[107]. But they were not made in that way.
Under item 5(2)(c)(i) it is necessary to postulate that a competent reviewing authority had reviewed the order made by the general court martial. It had not.
Under item 5(2)(c)(ii) it is necessary to postulate that the reviewing authority had approved the punishment or had decided not to quash or revoke the punishment. No reviewing authority had done either thing.
Under item 5(2)(c)(iii) it is necessary to postulate that any possibility of further review (other than review provided for by Pt 7 of Sched 1, in which item 25 appears) had been exhausted. There had been no review of any kind, and the possibilities had not been exhausted.
The plaintiff did not submit or assume that only a Ch III court could impose a punishment of detention. Indeed the plaintiff made an explicit submission to the contrary. He submitted that whether the traditional military tribunal system operates as an exception to Ch III, or as a qualification to it, or outside it, there is no doubt it permits a general court martial lawfully to impose a sentence of detention. That is correct. But that is not the imposition of a sentence of detention by the legislature. As the plaintiff submitted, it has never been held that the legislature (as distinct from a military tribunal subject to review in the chain of command) could create a valid sentence of detention on the basis of what a hypothetical general court martial might have ordered but never did, on the basis that a competent reviewing authority had hypothetically reviewed the punishment but never did, and on the basis that possibilities of further review were hypothetically exhausted when they were not. This extensive reliance on false hypotheses went beyond the "adjustment of military and civil law" described in White v Director of Military Prosecutions[108]. The traditional military tribunal system shares methods of review with the structure created by items 5 and 25. But the former system reviews real events and constitutionally valid acts. The latter reviews non-existent events and invalid acts. The regime created by items 5 and 25 is intermediate between the valid traditional system and a Ch III court system. The distinct reasons why each of those systems is valid do not apply to the intermediate regime.
It is true that the technique upheld in R v Humby; Ex parte Rooney employs hypotheses. The words "as if" in the relevant legislation introduced various false hypotheses. It was not in that case a source of invalidity to provide that the rights of persons should be "as if" an invalid decree had been validly made by a Supreme Court judge, even though no such decision had been made. That is because the rights in question flowed from the divorce power, and the legislature's power over divorce extended beyond legislative grants of power to courts to including a power in the legislature itself to divorce. In that field, the selection of hypotheses did not go beyond an exception to or qualification of Ch III. In the field of military justice, it does.

Haskins v The Commonwealth

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