McWaters v Day

On 4 March 1987 the respondent, a member of the Australian Regular Army, was driving his motor vehicle on a road within the Enoggera Army Barracks in Queensland. He was involved in a traffic accident within the barracks which was attended both by the Garrison Military Police and the Queensland State Police. The appellant is a constable of police in the Queensland force. He arrested the respondent and charged him with an offence under s. 16(1)(a) of the Traffic Act 1949 Q. ("the State Act").

Any person who whilst he is under the influence of liquor or a drug -

is guilty of an offence and liable to a penalty not exceeding $1 400 or to imprisonment for a term not exceeding nine months or to both such penalty and imprisonment. It is not disputed that this provision on its face applies to acts committed within the Enoggera Army Barracks, which is a "Commonwealth place" within the meaning of the Commonwealth Places (Application of Laws) Act 1970 Cth: see s. 4 of that Act.

The Full Court of the Supreme Court of Queensland (McPherson and Dowsett JJ., Williams J. dissenting) made absolute an order nisi for prohibition restraining the Magistrates Court at Brisbane from hearing or proceeding upon the charge, upon the grounds that since the respondent was a member of the defence forces driving on service land, his behaviour was relevantly governed by s. 40(2) of the Defence Force Discipline Act 1982 Cth ("the Discipline Act"), and that this provision was inconsistent with s. 16(1) of the State Act, which was therefore invalid to the extent of the inconsistency by reason of s. 109 of the Commonwealth Constitution. From this decision the appellant now appeals.

Section 40 of the Discipline Act creates a number of offences which may be committed by a defence member or a defence civilian in connexion with the use of a vehicle. The central elements in the conduct proscribed by the section for the most part reflect conduct which is proscribed by the laws of the States and Territories, e.g., driving while under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of the vehicle (s. 40(1) and (2)), driving at a speed or in a manner dangerous to another (s. 40(3) and (4)), driving negligently (s. 40(5) and (6)). The scheme of the section is to make conduct of the proscribed kind a central element in two distinct offences, one the driving of a service vehicle in any place, whether a public place or not, and the second the driving of a vehicle on service land. Thus, s. 40(1) and (2) provide:

(1) A person, being a defence member or a defence civilian, who drives a service vehicle in any place, whether a public place or not, while he is under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of the vehicle is guilty of an offence for which the maximum punishment is imprisonment for 12 months.

(2) A person, being a defence member or a defence civilian, who drives a vehicle on service land while he is under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of the vehicle is guilty of an offence for which the maximum punishment is imprisonment for 12 months.

The respondent contended in the Supreme Court and again in this Court that s. 40(2) of the Discipline Act and s. 16(1)(a) of the State Act are inconsistent because, it was said, they have the same subject-matter and purpose and the Commonwealth provision creates an offence the elements of which and the applicable punishment for which differ from those laid down by the State law. The appellant argues that the two provisions do not have the same subject-matter and purpose, so that there could be no relevant inconsistency for the purposes of s. 109. In the alternative, the appellant contends, albeit somewhat faintly, that s. 40(2) of the Discipline Act exceeds the legislative power of the Commonwealth and is for that reason invalid. The argument for invalidity rests on a contention that a majority of this Court in Re Tracey; Ex parte Ryan [1] held that the defence power contained in s. 51(vi) of the Constitution required for its valid exercise a sufficient "service connection" in relation to an offence created as part of military law. That connexion is said to be absent in the present case.

As evidence of the inconsistency contended for, the respondent points to the different penalties which the respective laws stipulate and to the fact that the Commonwealth offence differs in substance by containing a requirement that the person charged be incapable of having proper control of the vehicle concerned. It is true that a difference in penalties prescribed for conduct prohibited by Commonwealth and State laws has been held to give rise to inconsistency between those laws for the purposes of s. 109: Hume v. Palmer [2] ; Ex parte McLean [3] ; Reg. v. Loewenthal; Ex parte Blacklock [4] . Equally, a difference between the rules of conduct prescribed by Commonwealth and State laws might give rise to such inconsistency. But the mere fact that such differences exist is insufficient to establish an inconsistency in the relevant sense. It is necessary to inquire whether the Commonwealth statute, in prescribing the rule to be observed, evinces an intention to cover the subject-matter to the exclusion of any other law: Ex parte McLean [5] ; Blacklock [6] ; Reg. v. Winneke; Ex parte Gallagher [7] ; University of Wollongong v. Metwally [8] . In the words of Dixon J. in Ex parte McLean [5] :

The inconsistency does not lie in the mere coexistence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed. 1. (1926) 38 C.L.R. 441. 2. (1930) 43 C.L.R. 472. 3. (1974) 131 C.L.R. 338. 4. (1930) 43 C.L.R., at p. 483. 5. (1974) 131 C.L.R., at p. 347. 6. (1982) 152 C.L.R. 211, at pp. 218, 224, 233. 7. (1984) 158 C.L.R. 447, at p. 456. 8. (1930) 43 C.L.R., at p. 483.

The respondent asserts that the Commonwealth Parliament intended to express completely, exhaustively or exclusively what shall be the law governing particular conduct, but only in relation to some offences and not to others. In relation to those service offences, such as mutiny, in respect of which there is no equivalent civil offence, the respondent submits that the Discipline Act provides an exhaustive statement of criminal liability, since, in the absence of equivalent offences under State law, no question of inconsistency could arise. In relation to service offences created by s. 61, which are defined by reference to civil offences, the respondent acknowledges that there is no legislative intention to provide an exhaustive statement. It follows that these service offences are cumulative upon the civil offences and there is no inconsistency. Finally, the respondent argues that there is a class of other service offences, expressed as comprehensive statements of liability, in respect of which there is a civil equivalent. In this category of case which, according to the respondent, includes s. 40(2), inconsistency with equivalent provisions in State legislation arises.

In support of this argument, the respondent points to the decision in Blacklock, where s. 29 of the Crimes Act 1914 Cth, which makes it an offence wilfully and unlawfully to damage Commonwealth property, was held to be exhaustive and so to invalidate, to the extent of the resulting inconsistency, a State law prohibiting wilful and unlawful damage to property generally. For similar reasons, the respondent suggested that s. 43(1) of the Discipline Act, dealing with damage to service property, would have the same effect.

The analogy with Blacklock's Case depends for its force upon the proposition that the relevant sections of the Discipline Act are intended to be exhaustive statements of criminal liability: see Blacklock [9] . The respondent suggests that, just as s. 29 of the Crimes Act had as its purpose the protection of Commonwealth property, so s. 40 is intended to protect defence property and defence personnel. The respondent also points to the specific and comprehensive wording of the provisions. But common sense and principles of statutory construction demand that the provisions be read in their context: K. & S. Lake City Freighters Pty. Ltd. v. Gordon & Gotch Ltd. [10] . That context was recently considered by this Court in Re Tracey.

1. (1974) 131 C.L.R., at pp. 342-343, 346-347. 2. (1985) 157 C.L.R. 309, at p. 315.

The judgments in that case demonstrate that the purpose of the Discipline Act is to create a disciplinary code for the promotion of the efficiency, good order and discipline of the defence forces and no more [11] . Mason C.J., Wilson, Brennan, Dawson and Toohey JJ. considered the scope of the legislative power conferred by s. 51(vi) of the Constitution by reference to the principle that "military law has a quite restricted range of operation and is seen as an additional, rather than a replacement, set of rights and duties": Groves v. The Commonwealth [12] . Deane J. considered that a corresponding restriction of Commonwealth legislative power resulted from the operation of Ch. III of the Constitution. Accordingly, a majority of the Court found that the Discipline Act was to be interpreted so as to ensure that the military disciplinary code it enacted was cumulative upon and not exclusive of the ordinary criminal law: see per Mason C.J., Wilson and Dawson JJ. [13] ; Brennan and Toohey JJ. [14] ; Deane J. [15] ; but cf. Gaudron J. [16] .

1. (1989) 166 C.L.R., at p. 538. 2. (1982) 150 C.L.R. 113, at p. 125. 3. (1989) 166 C.L.R., at pp. 538, 546. 4. (1989) 166 C.L.R., at pp. 570, 575-576. 5. (1989) 166 C.L.R., at p. 285. 6. (1989) 166 C.L.R., at pp. 599-600.

Once it is recognized that the decision in Re Tracey requires that military law is limited in scope and effect in the manner outlined, it remains only to consider whether the relevant provisions of the Discipline Act meet this criterion. Strictly speaking, the question is whether the Discipline Act cannot be construed as meeting the constitutional requirement, since an interpretation favouring validity is to be preferred. But it is clear that the Discipline Act contemplates parallel systems of military and ordinary criminal law and does not evince any intention that defence force members enjoy an absolute immunity from liability under the ordinary criminal law, notwithstanding that the Discipline Act addresses the question of double jeopardy. As is implicit in the judgments in Re Tracey [17] , the Discipline Act does not seek to do other than enact a system of military law in accordance with the traditional and constitutional view of the supplementary function of such law [18] . The different purposes underlying military discipline and the ordinary criminal law were emphasized. Thus, Brennan and Toohey JJ. said [19] :

It is the difference between the purpose of proceedings before service tribunals and the purpose of proceedings before civil courts that justifies the subjection of service personnel to the jurisdiction of both. See also [18] . It is this difference in purpose that immediately distinguishes the present case from Blacklock [20] where there was no similar basis for concluding that the Commonwealth law was intended to operate as an additional, rather than a replacement, set of rights and duties. 1. (1989) 166 C.L.R. 518. 2. (1989) 166 C.L.R., at p. 549. 3. (1989) 166 C.L.R., at p. 571. 4. (1989) 166 C.L.R., at p. 549. 5. (1974) 131 C.L.R. 338.

Parliament included in the Discipline Act provisions which were designed to prevent civil courts from hearing charges of civil offences which were substantially the same as service offences. The operation of these provisions depended upon a trial for the service offence having taken place: s. 190(3), (5). Their purpose was not to exclude the criminal law, but rather to enact a statutory rule against double jeopardy. But s. 190(3) and (5) were held in Re Tracey to be invalid because they involved an impermissible ouster of the jurisdiction of the courts to try charges of civil offences. The Court found that their invalidity did not affect the validity of the Discipline Act as a whole. Nor does it prevent the Court from making reference to the provisions as they were enacted, for the purpose of ascertaining the intention of the Parliament in enacting the remainder of the Act: see Davis v. Wallace [21] .

But even had s. 190(3) and (5) been held valid, they would not have demonstrated a legislative intention that the disciplinary code established by the Discipline Act operate to the exclusion of the ordinary criminal law. Similarly, s. 144(3) provides that where a person has been tried for a civil offence he shall not subsequently be tried for a service offence which is substantially the same offence. Viewed in their context, these provisions do not suggest that the Discipline Act intends to exclude the operation of State criminal law. In Blacklock [22] , it was held that comparable provisions threw no light on the question whether the Commonwealth law was intended to be exclusive and exhaustive. But against the constitutional background obtaining in the special case of military law, it is not necessary to decide whether the relevant provisions in the Discipline Act indicate affirmatively an intention that the Discipline Act operate to the exclusion of the State law.

Since the Discipline Act is supplementary to, and not exclusive of, the ordinary criminal law, it follows that it does not deal with the same subject-matter or serve the same purpose as laws forming part of the ordinary criminal law. The result is that there is no inconsistency between s. 40(2) of the Discipline Act and s. 16(1) of the State Act for the purposes of s. 109 of the Constitution. It is accordingly unnecessary to consider the appellant's contention that s. 40(2) is invalid.

The appeal must be allowed. The orders of the Supreme Court should be set aside and in lieu thereof it should be ordered that the order nisi for prohibition be discharged. In accordance with conditions imposed upon the grant of special leave, the appellant should pay the costs of the respondent in the Supreme Court and in this Court.