Lane v Morrison

Lane v Morrison - [2009] HCA 29 - HCA 2009 case summary — Zoe

[41]

In Dao, as a matter of statutory construction, it was held that the Equal Opportunity Tribunal, established by the Anti‑Discrimination Act 1977 (NSW), was a "court" within the meaning of the Suitors' Fund Act 1951 (NSW). In Trevor Boiler Engineering Co Pty Ltd v Morley[22] the Supreme Court of Victoria held that the Workers Compensation Board was "a court of law" within the meaning of the Administrative Law Act 1978 (Vic), with the consequence that its decisions were not amenable to review under that statute. On the other hand, the Tasmanian Anti‑Discrimination Tribunal is not a "court of a State" within the meaning of s 77(iii) of the Constitution[23], nor is the New South Wales Administrative Decisions Tribunal[24].
The "creation" or "erection" of a "court" provides for the formation and constitution of a body which answers that description[25]. There is a distinction between the creation of a federal court by the Parliament and the conferral of its jurisdiction under s 77 of the Constitution. The judicial power of the Commonwealth spoken of in s 71 of the Constitution identifies the function of a court rather than the body of law to be applied in exercise of that function[26].
Section 71 speaks of "such other federal courts as the Parliament creates". The Justices of those federal courts are appointed in accordance with, and have the tenure and remuneration provided in, s 72. Whilst in office they cannot be removed otherwise than as provided by s 72(ii). It would appear to follow that once created by the Parliament, and at least while its Justices are in office, a federal court may not be abolished by the Parliament.
The provisions formerly made in Pt IX of the Navigation Act 1912 (Cth)[27] for Courts of Marine Inquiry were an example of the Parliament creating a body with use of the term "court" without seeking to endow it with the character of a court as understood in Ch III of the Constitution. When considering Pt IX in R v Turner; Ex parte Marine Board of Hobart[28] at least a majority of the Court (Knox CJ, Gavan Duffy, Rich and Starke JJ and Powers J) were able to dispose of the case without ruling on the question whether s 51(i) empowered the Parliament to erect a court with exclusive power to deal with marine collisions in inter‑state trade.
In Turner Higgins J[29] was attracted to United States decisions which upheld the validity of what became known as "legislative courts". These courts are not limited to military tribunals and territorial courts, and decide cases and controversies between the United States and citizens which arise under the laws of the United States, yet they are sufficiently supported by Art I of the Constitution and do not exercise the judicial power of the United States provided for in Art III[30]. These courts currently include the Tax Court, the validity of which was upheld in Simanonok v Commissioner of Internal Revenue[31], and the body known as the Foreign Intelligence Surveillance Court, which comprises a panel of serving federal judges designated by the Chief Justice of the United States for a maximum of seven years[32].
However, in Australia, matters stand differently. In the Boilermakers' Case[33] Dixon CJ, McTiernan, Fullagar and Kitto JJ remarked:

[47]

The Defence Act 1903 (Cth) ("the 1903 Act") provided in Pt VIII (ss 86‑100) for courts‑martial. The 1903 Act applied to the naval and military forces of the Commonwealth (s 5). The effect of s 88 was that except so far as inconsistent with the 1903 Act, there applied to the composition, procedures and powers of courts‑martial the provisions of the current Imperial law. In 1903 this was found principally in the Naval Discipline Act 1866 (Imp)[40] ("the 1866 Act") and the Army Act 1881 (Imp)[41] ("the 1881 Act").
The 1866 Act stipulated that, save in the case of the death sentence (which could be remitted only by the sovereign), the Admiralty might suspend, annul or modify sentences passed at a court‑martial (s 53(1)). The death sentence, save in the case of mutiny, was not to be carried out until it was confirmed by the Admiralty or by the Commander in Chief on a foreign station (s 53(3)).
Section 46 of the 1881 Act dealt with the power of the commanding officer with respect to charges against a person under his command; the officer might dismiss the charge if he was of the opinion that it should not proceed, or take steps to bring the offender to a court‑martial or, in the case of a soldier, deal himself with the case summarily. There were regimental, general, district and field general courts‑martial (s 54(1)). Findings of acquittal apart (s 54(3)), the finding and sentence of a court‑martial was valid only if confirmed by the relevant authority specified in s 54(1) (s 54(6)). The confirming authority might send back a finding or sentence for revision (s 54(2)) or mitigate or remit the punishment (s 57(1)). A sentence of death or penal servitude awarded by a field general court‑martial was not to be carried into effect unless and until confirmed by the general or field officer commanding the force (s 54(1)(d)).
If a sentence passed by a court‑martial was confirmed and the sentence was undergone in a colony, the officer commanding the forces in that colony was empowered by s 57(2)(c) of the 1881 Act to remit, mitigate or commute the punishment. Where there was no superior authority in a colony to confirm the findings or sentences of a court‑martial, the Governor had power to do so (s 54(4)). The Governor, if in command of the regular forces of the colony, was a qualified officer to confirm findings or sentences (s 54(7))[42].
That these systems of naval and military justice did not administer the ordinary law of the land was made apparent by s 101 of the 1866 Act (which stated that nothing in that statute was to supersede the authority of the ordinary civil and criminal courts) and s 41(5)(b) of the 1881 Act (which confirmed that a person subject to military law might be tried by any competent civil court for an offence for which he could be triable if not subject to military law).
In Australia, s 86 of the 1903 Act, which was located in Pt VIII, empowered the Governor‑General to convene, and appoint the officers to, courts‑martial, and to approve, confirm, mitigate or remit any sentence. Section 87 conferred a power of delegation upon the Governor‑General. No death sentence was to be carried into effect until confirmed by the Governor‑General (s 98).
Section 86 was amended[43] to provide in s 86(2) to the effect that nothing in s 86 affected the powers of convening courts‑martial and confirming findings and sentences, as provided in the 1866 Act, the 1881 Act and the Air Force Act 1917 (Imp). Section 5 of the Naval Defence Act 1910 (Cth) continued the application of Pt VIII of the 1903 Act to the Naval Forces of the Commonwealth and s 36 confirmed the operation of the 1866 Act[44].
Part VIII of the 1903 Act was repealed by the Defence Force (Miscellaneous Provisions) Act 1982 (Cth). Provision for review of proceedings of "service tribunals", being a court‑martial, a Defence Force magistrate or a summary authority, was made by Pt IX of the 1982 Act (ss 150‑169). Section 150 provided for the appointment by a chief of staff of officers to be a "reviewing authority". In the case of convictions by a subordinate summary authority there was a preliminary automatic review by the commanding officer (s 151); in the case of convictions by another service tribunal, there was automatic review by a reviewing authority (s 152). Provision was made for further review by a chief of staff, upon sufficient grounds appearing to him for that review (s 155). The system of "appeals" under the Appeals Act to the Appeal Tribunal was accommodated by s 156 to those review processes of Pt IX of the 1982 Act; the general effect of the lodgement of an appeal or application to the Appeal Tribunal for leave to appeal was to bar the exercise of the powers of the reviewing authority pending dismissal of the appeal or refusal of leave.

[56]

The 1982 Act had continued the long‑established system of automatic review within the command structure of the defence forces. From this system the 2006 Act departed with the creation and interposition of the AMC. The heading of Pt IX was changed from "Review of proceedings of service tribunals" to "Review of proceedings of summary authorities". The AMC is a "service tribunal" but is not a summary authority and the review provisions of Pt IX do not apply to it. Part VII of the 1982 Act now distinguishes between summary authorities (Div 2, ss 104‑113) and the AMC (Div 3, ss 114‑121). Summary authorities are officers appointed by the Chief of the Defence Force as a "superior summary authority" or by a commanding officer as a "subordinate summary authority", and, in the case of certain charges, a commanding officer is the summary authority (ss 105, 107). A charge may be referred by a commanding officer, or a superior officer, to the DMP (s 105A(2)). The DMP may request the Registrar of the AMC to refer the charge to the AMC for trial (s 118(1)). (This is the procedure which was followed with respect to the plaintiff, as explained, with reference to the transitional provisions, earlier in these reasons.)
A punishment imposed or order made by the AMC takes effect forthwith (s 171), save that the AMC may order that the execution of the punishment be stayed in whole or part pending the determination of an "appeal" or application for leave to appeal to the Appeal Tribunal (s 176(2)). On the other hand, a range of punishments imposed, and orders made, by a summary authority do not take effect unless approved by a reviewing authority (s 172).
The decision of the AMC upon the trial of a charge is conclusive, subject to the success of an "appeal" to the Appeal Tribunal and of any further "appeal" to the Federal Court. The result is that, as indicated by authorities including Brandy v Human Rights and Equal Opportunity Commission[55], the 2006 Act purports to entrust to the AMC the exercise of the judicial power of the Commonwealth unless it can be said, despite the placement of the AMC outside the chain of command, that the 2006 Act is supported by s 51(vi) of the Constitution.

[65]

The plaintiff has been charged with offences allegedly committed when he was a member of the Permanent Navy, and thus a "defence member"[66]. It is intended that the charges will be tried by the AMC. The first defendant, Colonel Morrison, is a Military Judge of the AMC and has been nominated to try the case. The plaintiff has brought proceedings in this Court against Colonel Morrison and the Commonwealth seeking relief that includes prohibition directed to the first defendant and a declaration that the provisions of Div 3 of Pt VII of the DFDA (ss 114‑121) are invalid. The first defendant filed a submitting appearance. The plaintiff and the Commonwealth having agreed in a statement of agreed facts, the proceedings were referred for hearing by the Full Court. The Attorney‑General for Western Australia intervened in support of the plaintiff.
The plaintiff put his claim that the legislation creating the AMC is invalid on several different bases. It is convenient to deal first with the argument that Div 3 of Pt VII of the DFDA is invalid because it provides for the exercise of the judicial power of the Commonwealth by a body not created in accordance with Ch III of the Constitution.
In connection with that argument, the plaintiff relied on amendments made to the DFDA by the Defence Legislation Amendment Act 2008 (Cth) ("the 2008 Amendment Act") providing for the AMC to hear "appeals" from the decisions of summary authorities made under the DFDA. The amendments made by the 2008 Amendment Act do not apply to the proceedings against the plaintiff. Not only would the provisions to which the plaintiff points not be engaged, the transitional provisions of the 2008 Amendment Act provide[67] that the DFDA, as in force before the commencement of the 2008 Amendment Act, is to apply in relation to proceedings which had been commenced under the earlier form of the legislation. The proceedings brought against the plaintiff had been commenced under the earlier form of the legislation. It is not necessary to decide when they were commenced but that had happened by November 2007 when they were referred for trial by the AMC.
It is, therefore, neither necessary nor appropriate to have regard in this matter to the amendments made by the 2008 Amendment Act. These reasons are directed to the validity of the relevant provisions of the DFDA (Div 3 of Pt VII) as those provisions stood before the commencement of the 2008 Amendment Act.
Section 114 provides:

[72]

The provisions of Div 3 of Pt VII were introduced into the DFDA by the Defence Legislation Amendment Act 2006 (Cth) ("the 2006 Amendment Act"). The 2006 Amendment Act was enacted after a lengthy inquiry by the Senate Foreign Affairs, Defence and Trade References Committee into the effectiveness of the Australian military justice system in providing "impartial, rigorous and fair outcomes, and mechanisms to improve the transparency and public accountability of military justice procedures"[68].
In its report, the Committee noted[69] that the United States[70], Canada[71], the United Kingdom[72] and other European nations[73], as well as Australia[74], had seen numerous court challenges in the preceding 20 years to the legal validity of their respective military justice systems. In Europe and Canada the challenges had centred upon whether service tribunals were independent and impartial. In particular, the European Court of Human Rights had concluded[75] that courts‑martial of United Kingdom service personnel (conducted under statutory provisions generally similar to those for which the DFDA then provided) violated the requirements of Art 6(1) of the European Convention on Human Rights that the determination of any criminal charge be by "an independent and impartial tribunal established by law". And the Supreme Court of Canada had held[76] that the system of General Courts Martial then in force in Canada infringed the right to trial by an independent and impartial tribunal guaranteed by s 11(d) of the Canadian Charter of Rights and Freedoms.
The 2005 Senate Committee Report recommended changes in the military justice system. In particular, it recommended[77] that a permanent military court be created in accordance with Ch III of the Constitution to ensure its independence and impartiality.
The Government published a written response to the 2005 Senate Committee Report. In that response the Government agreed[78] to create a permanent military court, but did not support[79] the creation of such a court under Ch III. The purpose of the Bill for the 2006 Amendment Act was to give effect to the Government Response[80].
Both the Government Response[81] to the 2005 Senate Committee Report and the Explanatory Memorandum for the Defence Legislation Amendment Bill 2006 (Cth)[82] made plain that the AMC was intended to satisfy the principles of impartiality and judicial independence, and independence from the chain of command in matters of military discipline. As will later be demonstrated, it is the independence of the AMC from the chain of command which is the chief feature distinguishing it from earlier forms of service tribunal which have been held not to exercise the judicial power of the Commonwealth.

[75]

The Commonwealth submitted that s 114, and the other provisions of Div 3 of Pt VII of the DFDA, are made under s 51(vi) as a law with respect to "the naval and military defence of the Commonwealth and of the several States". The Commonwealth submitted that the AMC is not a court encompassed by the phrase, in s 71 of the Constitution, "such other federal courts as the Parliament creates". The Commonwealth noted, correctly, that since long before Federation, tribunals acting judicially have been seen as essential to the organisation of an army, navy or air force[84]. Courts‑martial have been held[85] not to exercise the judicial power of the Commonwealth. The Commonwealth submitted that what the AMC is to do is not relevantly different from what was done by courts‑martial or other forms of service tribunal.
The Commonwealth sought to develop its argument by describing the functions performed by courts‑martial as an exercise of "judicial power" which was not the exercise of the "judicial power of the Commonwealth". In this connection the Commonwealth referred to dicta[86] in earlier decisions of this Court which were said to support such an analysis. But as will later appear, reference to the exercise of a species of judicial power that is not the judicial power of the Commonwealth does not assist the resolution of the issue in this case. Rather, it is necessary to focus upon the central plank of the Commonwealth's argument: that the AMC does not differ in any material respect from earlier forms of service tribunal, particularly naval and military courts‑martial, which have been held not to exercise the judicial power of the Commonwealth.
As noted earlier, the AMC was intended to differ from earlier forms of service tribunal. It is independent from the chain of command. That independence is critical to the decision whether the AMC is to exercise the judicial power of the Commonwealth.
To explain the nature and extent of the changes made by the 2006 Amendment Act it is necessary to say something about courts‑martial, and then compare the AMC with those earlier institutions and associated arrangements for service discipline.

[76]

Part VIII (ss 86‑100) of the Defence Act 1903 (Cth), as originally enacted, provided that the Governor‑General may convene[87] courts‑martial, appoint[88] officers to constitute courts‑martial, and "[a]pprove, confirm, mitigate, or remit the sentence of any court‑martial"[89]. Those powers could be delegated[90]. Section 88 of the Defence Act provided that, except so far as inconsistent with the Act, "the laws and regulations for the time being in force in relation to the composition, mode of procedure, and powers of courts‑martial" in the Imperial forces ("the King's Regular Naval Forces" and "the King's Regular Forces") were to apply to the naval and military forces of the Commonwealth.
At the time of enactment of the Defence Act, courts‑martial in the Imperial forces were regulated by the Naval Discipline Act 1866 (Imp) (29 & 30 Vict c 109) and the Army Act[91]. Consistent with the provisions of s 86 of the Defence Act (and its reference to the Governor‑General's power to "confirm, mitigate, or remit the sentence of any court‑martial") neither a finding of guilt nor a sentence passed by a military court‑martial held under the Army Act was valid or effective until confirmed by an army officer designated as a confirming authority[92]. And the sentence passed by a naval court‑martial could (except in the case of a sentence of death, which could be remitted only by the sovereign) be suspended, annulled, modified, substituted by an inferior punishment or remitted by the Admiralty[93]. Except in the case of mutiny, the punishment of death could not be inflicted until the sentence had been confirmed by the Admiralty or by the Commander‑in‑Chief on a foreign station[94].
In 1910, the Naval Defence Act 1910 (Cth) was enacted. That Act made particular provisions for the Naval Forces of the Commonwealth. Section 5 provided that a number of provisions of the Defence Act (including the provisions of Pt VIII concerning courts‑martial) continued to apply in relation to the Naval Forces of the Commonwealth. Section 36 provided that, subject to the Naval Defence Act, the Naval Discipline Act[95] "and the King's Regulations and Admiralty Instructions for the time being in force in relation to the King's Naval Forces" applied to the Naval Forces of the Commonwealth.
In 1917, s 86 of the Defence Act was amended[96] to provide that the powers given to the Governor‑General by that section did not affect the powers conferred by the Naval Discipline Act or the Army Act "of convening courts‑martial and confirming the findings and sentences of those courts". This amendment emphasised a point already apparent from the conferral of authority on the Governor‑General to convene courts‑martial, and to approve, confirm, mitigate or remit the sentence of any court‑martial. The decisions, not only whether to hold a court‑martial, but also whether and how effect should be given to a finding by a court‑martial of guilt, were matters for confirmation or review by higher authority within the chain of command of the forces. They were matters for the Governor‑General as Commander in Chief of the naval and military forces of the Commonwealth[97], or an officer designated by or on behalf of the Commander in Chief as a convening or confirming authority under the applicable Imperial legislation.
Although written in a different time and context, the central point to be made about these arrangements was accurately captured by Platt J of the Supreme Court of New York when he said that[98]: "The proceedings of the Court‑Martial were not definitive, but merely in the nature of an inquest, to inform the conscience of the commanding officer. He, alone, could not condemn or punish, without the judgment of a Court‑Martial; and, it is equally clear, that the Court could not punish without his order of confirmation."
These features of the provisions for courts‑martial set them apart from the exercise of the judicial power of the Commonwealth. The decisions of courts‑martial were not "definitive" of guilt; the punishments awarded by courts‑martial were subject to confirmation or review. Dispositive decisions about guilt and punishment were made on confirmation or review within the chain of command. It was, therefore, right to describe courts‑martial as directed to the maintenance of discipline of the forces. They were tribunals established to ensure that the discipline administered within the forces was just. But as Dixon J pointed out in R v Cox; Ex parte Smith[99], courts‑martial did "not form part of the judicial system administering the law of the land".
Until the enactment of the DFDA in 1982, the Defence Act continued to provide[100] for courts‑martial, and to identify the laws applicable to military courts‑martial (as distinct from naval courts‑martial) by reference to "the Imperial Act called the Army Act" as in force at identified times. The Naval Defence Act continued to make special provision for the Naval Forces of the Commonwealth but continued to provide[101] that Pt VIII of the Defence Act (dealing with courts‑martial) applied to and in relation to the Naval Forces and the members of those Forces. And like provision was made in respect of the Air Force by the Air Force Act 1923 (Cth).
Until the enactment of the DFDA in 1982, the Defence Act continued to provide power to the Governor‑General to convene courts‑martial, to appoint officers to constitute courts‑martial, to "confirm the finding, or finding and sentence of any court‑martial, or in the case of a military or air‑force court‑martial send back the finding and sentence or either of them for revision"[102], to mitigate or remit the punishment awarded by any sentence, or commute the punishment for some less punishment[103], and to suspend the execution or currency of any sentence[104]. And the powers conferred by Imperial Acts with respect to convening courts‑martial, and confirming the findings and sentences of those courts, as picked up and applied by s 86(2) of the Defence Act, remained unaffected.
Although the DFDA recast the law relating to service discipline, some particular features of the former law remained substantially unaltered. In particular, under the DFDA as originally enacted, courts‑martial in all arms of the Australian Defence Force were convened by an officer appointed as a convening authority by the Chief of Defence Force Staff, Chief of Naval Staff, Chief of the General Staff or Chief of the Air Staff[105]. The President and other members of a court‑martial were appointed by a convening authority[106]. If a person was convicted by a court‑martial, the proceedings were automatically to be reviewed[107] by an officer appointed[108] by a chief of staff as a reviewing authority. In addition, a person convicted by a court‑martial could petition[109] for review of the proceedings by a reviewing authority. A review by a reviewing authority did not prevent a further review of the proceedings by a chief of staff "if it appears to him that there are sufficient grounds for a further review"[110]. On review, whether by a reviewing authority or a chief of staff, the conviction could be quashed[111], a new trial could be ordered[112], conviction for an alternative offence could be substituted[113], or in some cases the punishment imposed could be quashed[114].
The grounds upon which a reviewing authority could exercise these powers were limited. The limits were expressed in terms very like those found in common form criminal appeal statutes. So, for example, s 158(1) of the DFDA obliged a reviewing authority to quash a court‑martial conviction if it appeared (among other things) that "the conviction is unreasonable, or cannot be supported, having regard to the evidence", or that, "as a result of a wrong decision on a question of law, or of mixed law and fact, the conviction was wrong in law and that a substantial miscarriage of justice has occurred". And reviewing authorities were bound[115] to obtain a report on the proceedings from a legal officer, and bound[116] by any opinion on a question of law set out in the report. But the point of present importance to be observed is that the final decision about guilt or punishment was not made by the court‑martial; the final decision about those matters was made within the chain of command of the forces.
In 2005 the DFDA was amended, by the Defence Legislation Amendment Act (No 2) 2005 (Cth), to provide for the offices of Director of Military Prosecutions ("the Director") and Registrar of Military Justice ("the Registrar"). The general effect of the amendments was to give the Registrar some of the powers of a convening authority and the Director the power to decide[117] whether a charge should proceed and, if it should, whether it was to be dealt with summarily, by trial before a Defence Force magistrate or by trial by court‑martial. Other features of the scheme for trial by court‑martial remained substantially unaltered.
In addition to the "review" system for which provision was made by the DFDA, a person convicted by court‑martial could appeal against the conviction. In 1955, the Parliament had provided for appeals from courts‑martial to a Courts‑Martial Appeal Tribunal[118]. That body, renamed the Defence Force Discipline Appeal Tribunal by the Defence Force (Miscellaneous Provisions) Act 1982 (Cth) ("the Appeal Tribunal"), was given power to hear and determine certain appeals against conviction by court‑martial and, more recently[119], appeals against sentence.
Since 1982, the Appeal Tribunal has been constituted by persons holding State or federal judicial office. It was not submitted, however, and it is not the case, that the Appeal Tribunal is a federal court, or that it exercises the judicial power of the Commonwealth[120]. The references made in legislation to "appeals" to the Appeal Tribunal are to be understood accordingly. Following the amendments made to the DFDA by the 2006 Amendment Act, the Appeal Tribunal may hear appeals from the AMC.

[77]

The Bill for the 2006 Amendment Act, which among other things was to create the AMC, was intended to give effect to the Government Response to the 2005 Senate Committee Report. The provisions of the Bill for the 2006 Amendment Act were considered by the Senate Standing Committee on Foreign Affairs, Defence and Trade. The report[121] of that Committee (the 2006 Senate Committee) was tabled in October 2006.
Although the 2006 Senate Committee considered[122] that the proposed AMC would not achieve the level of independence and impartiality needed to ensure a fair and effective military justice system, it is evident that a central principle informing the relevant provisions of the 2006 Amendment Act was that the AMC was to be independent of the chain of command in the Australian Defence Force. Whereas the decisions of a court‑martial to convict and sentence a member of the forces were subject to automatic review and confirmation by reviewing and confirming officers designated by a chief of staff, the decisions of the AMC were not to be subject to any review or confirmation within the chain of command. To adopt and adapt the dictum of Platt J[123], no longer were there to be proceedings "in the nature of an inquest, to inform the conscience of the commanding officer"; the new court was to be able to condemn and punish without review or confirmation by a commanding officer.
At least since the enactment of the Imperial Naval Discipline Act and Army Act, courts‑martial of members of the forces subject to naval or military discipline were conducted according to procedures generally analogous to those followed by the civil courts. Courts‑martial pronounced verdicts of guilt or innocence of offences, some of which were or were analogous to offences against the general criminal law. The punishments awarded by courts‑martial included forms of punishment provided by the general criminal law. It is, then, not surprising that it has been said that courts‑martial exercised a form of judicial power. Such an observation, however, is not helpful in the resolution of the issue that arises in this case. First, on analysis the observation may go no further than asserting that courts‑martial act judicially[124]. That observation may be made of many tribunals. Secondly, and more importantly, the question which is presented by Ch III of the Constitution is whether the body under consideration exercises the judicial power of the Commonwealth. To speak of a court‑martial exercising a species of judicial power is unhelpful if it distracts attention from the relevant constitutional question.
That constitutional question was resolved in respect of courts‑martial, as it was in R v Bevan, R v Cox and later Re Tracey, at a time when courts‑martial were not independent of the chain of command of the forces. Courts‑martial were convened only by order from within the chain of command; conclusions of guilt and determinations of punishment were subject to review or confirmation within that chain of command. A court‑martial did not make a binding and authoritative decision of guilt or determination of punishment[125]. A court‑martial did not enforce its decisions[126]. Enforcement of any decision, other than acquittal of the accused, depended upon the outcome of review of the decision within the chain of command. But a central purpose of the creation of the AMC was to have the new body make binding and authoritative decisions of guilt and determinations about punishment which, without further intervention from within the chain of command, would be enforced.
That the AMC is to make binding and authoritative decisions on the issues identified without further intervention from within the chain of command is reason enough to conclude that it is to exercise the judicial power of the Commonwealth. It is, however, desirable to notice two further aspects of the amendments made by the 2006 Amendment Act, both of which relate to s 114(1A), providing that the AMC is a court of record.

[90]

Section 3(1) of the DFDA defines "charge" as "a charge of a service offence". Section 61 of the DFDA makes it an offence against the DFDA, and thus a "service offence", to engage in conduct that would be an offence against a law of the Commonwealth in force in the Jervis Bay Territory, or any other law (including any unwritten law) in force in that Territory which creates offences or imposes criminal liability for offences[137]. Offences of these several kinds are identified[138] in the DFDA as Territory offences. Because s 115(1) gives the AMC jurisdiction (subject to s 63) to try any charge against any person, the charges that may be tried by the AMC extend to charges of service offences that are constituted by engaging in conduct contrary to the general criminal law.
The qualification to the jurisdiction of the AMC provided by the reference to s 63 is not unimportant but is of limited effect. Section 63 provides, in substance, that except with the consent of the Director of Public Prosecutions of the Commonwealth, proceedings under the DFDA are not to be instituted for certain identified offences including treason, murder, manslaughter, bigamy and certain sexual offences. There remains a wide range of Territory offences that are subject to the jurisdiction of the AMC. The offences with which the plaintiff is charged include a Territory offence that is not an offence of a kind described in s 63.
Before the amendments made by the 2006 Amendment Act, s 190 of the DFDA provided for the jurisdiction of the civil courts in relation to service offences. In particular, s 190(1) provided that "[s]ubject to the Constitution, a civil court does not have jurisdiction to try a charge of a service offence" and s 190(2) provided that, subject to some qualifications, "the jurisdiction of a civil court to try a charge of a civil court offence is not affected by this Act". As orginally enacted, sub‑s (5) of s 190 provided that "[w]here a person has been acquitted or convicted of a service offence, the person is not liable to be tried by a civil court for a civil court offence that is substantially the same offence". And sub‑s (3) provided that if a court‑martial (or a Defence Force magistrate) was asked to, and did, take some other service offence into consideration when dealing with a person convicted of a service offence, the person was not liable to be tried for a civil court offence that was substantially the same offence as that taken into consideration. Both sub‑s (3) and sub‑s (5) were held invalid in Re Tracey[139] because they interfered with the exercise by State courts of their general criminal jurisdiction.
The consequence of the decision in Re Tracey was not substantially different from that which had obtained, before Federation, under the Imperial Army Act. Section 162 of that Act had provided for what the sidenote to the section described as the "[a]djustment of military and civil law" by providing:

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