//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2011] HCA 29
defendant. The special-case question was answered: “Yes.” Nicholas was ordered to pay the defendants' costs. Heydon J would have held item 5 invalid and ordered the first defendant to pay Nicholas's costs.
No linked legislation citations have been extracted yet.
The High Court majority upheld item 5 of the 2009 Act against Nicholas's constitutional challenge. The majority said that the provision was not an unconstitutional bill of pains and penalties, relying on the reasons in the companion Haskins case. Heydon J disagreed and would have found the item invalid. The majority's formal order required Nicholas to pay the defendants' costs.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
1,724 words · generated 04/10/2026
Paul Nicholas had served as a commissioned officer in the Australian Army, holding the rank of Captain, from 1 January 2004 until 25 August 2008 ([1]). Between 18 and 25 August 2008, he was tried by the Australian Military Court (AMC) on 11 charges under the Defence Force Discipline Act 1982 (Cth) ([1]).
On 25 August 2008, the AMC convicted Nicholas of four offences. Two convictions concerned obtaining a financial advantage, one concerned conduct tending and intended to pervert the course of justice, and one concerned attempting to pervert the course of justice ([1]). The punishments recorded in the judgment were reduction in rank to Lieutenant, dismissal from the Defence Force effective 19 September 2008, and a severe reprimand. The AMC also made orders requiring him to pay specified amounts as reparation to the Commonwealth ([1]).
The constitutional setting changed after those punishments had taken effect. On 26 August 2009, the High Court declared invalid the provisions of the Defence Force Discipline Act that established the AMC ([2]). The judgment cites Lane v Morrison (2009) 239 CLR 230; [2009] HCA 29 for that declaration ([2] and footnote 2).
Parliament then enacted the Military Justice (Interim Measures) Act (No 2) 2009 (Cth) (the Interim Measures No 2 Act). The judgment says that Part 2 of Schedule 1 applied to certain punishments imposed by the AMC, including Nicholas's ([2]). Nicholas challenged the provisions that purported to give effect to the AMC's punishments and orders. The special case placed one question before the Full Court: “Is item 5 of Schedule 1 to the [Interim Measures No 2 Act] a valid law of the Commonwealth Parliament?” ([5]).
The majority answered “Yes” and ordered Nicholas to pay the defendants' costs. Heydon J dissented. He would have answered that item 5 was invalid and would have ordered the first defendant to pay Nicholas's costs ([6], [9]).
The majority's reasoning in Nicholas is brief because it expressly relies on the companion decision, Haskins v The Commonwealth [2011] HCA 28. The majority said that the impugned provisions and the arguments about whether they constituted a bill of pains and penalties were “sufficiently recorded in the reasons given in Haskins” ([6]). It then adopted the reasons given there and concluded that item 5 was valid.
The core statement in Nicholas is that the provisions “do not have the prohibited features of a bill of pains and penalties” and are “not invalid as contrary to Ch III” ([6]). That is the stated constitutional conclusion. The supplied judgment does not set out the full doctrinal explanation for identifying the prohibited features, nor does it reproduce the detailed analysis of item 5's operation. Those matters cannot be reconstructed from this short decision alone without relying on the separate Haskins judgment, which is cited but not reproduced in the material provided.
The majority's approach was therefore to decide Nicholas on the same reasoning as Haskins, rather than develop an independent account of the bill-of-pains-and-penalties argument. The result applies to the precise question stated in the special case: the validity of item 5. The order does not, in the text supplied, separately determine each declaration Nicholas sought about his convictions, punishments and dismissal.
Heydon J reached the opposite conclusion by adopting his reasons in Haskins. He said item 5 was invalid and that the declarations Nicholas sought should be made ([7]-[8] and the unnumbered concluding passage). His reasons in this judgment are also not set out in detail. The judgment thus records a clear division on the validity question but directs the reader to Haskins for the competing reasoning.
The judgment describes a sequence of events rather than setting out a comprehensive account of the law before and after Nicholas. Before the challenge, the AMC had tried Nicholas and imposed convictions, punishments and reparation orders under the statutory military discipline framework ([1]). The High Court later declared invalid the provisions establishing the AMC ([2]). The reasons do not explain the full consequences of that declaration for every AMC decision.
Parliament's response was the Interim Measures No 2 Act. The judgment says that relevant provisions applied to certain AMC punishments, including Nicholas's ([2]). Nicholas's challenge focused on item 5 of Schedule 1 and the argument that the legislation was a bill of pains and penalties contrary to Chapter III ([4]-[5]).
After the High Court's decision in this case, the majority's answer established, for the question before it, that item 5 was valid. The decision does not set out a wider statement of the Act's operation, the treatment of every affected person's circumstances, or the status of all AMC decisions. The holding should therefore be described at the level the order states: item 5 was held to be a valid Commonwealth law in answer to the special-case question.
The dissent illustrates that the constitutional issue was contested within the Court. Heydon J considered item 5 invalid, while the other six judges answered that it was valid. The difference in outcome was tied to their respective reasoning in Haskins, not to a separately elaborated analysis in Nicholas itself.
At [4], the judgment identifies Nicholas's central allegation: the Act was said to be a bill of pains and penalties and therefore contrary to Chapter III. In plain English, Nicholas argued that Parliament had enacted a law that crossed a constitutional boundary associated with the exercise of judicial power. The judgment does not provide a detailed definition of that category in this case.
At [5], the special case frames the issue narrowly: “Is item 5 of Schedule 1 ... a valid law of the Commonwealth Parliament?” This means the Court was asked to answer a legal validity question about a specific statutory item, not to decide every factual or remedial issue raised in Nicholas's originating action.
At [6], the majority says the item “does not have the prohibited features of a bill of pains and penalties.” In plain English, the majority rejected the constitutional characterisation Nicholas relied on. The significance is the conclusion, not a full account of how the relevant features were identified: the majority expressly referred to Haskins for its reasons.
The majority also says the item “is not invalid as contrary to Ch III” ([6]). This states the constitutional outcome directly. The majority then directs that the special-case question be answered “Yes” and orders Nicholas to pay the defendants' costs.
Heydon J's contrary position appears in his reasons following [8]. He says item 5 is invalid for the reasons he gave in Haskins and that Nicholas's requested declarations should be made. In plain English, the dissent would have treated the statutory response as constitutionally defective and granted relief consistent with that conclusion. The passage is not accompanied by a visible paragraph number in the supplied extract.
The facts addressed here involve a service member disciplined by the AMC, followed by a High Court declaration that the statutory provisions establishing that court were invalid, and subsequent Commonwealth legislation applying to certain punishments imposed by the AMC ([1]-[2]). The constitutional challenge was directed to item 5 of Schedule 1 and characterised the legislation as a bill of pains and penalties ([4]-[5]).
The holding is most directly connected to that statutory and procedural setting. It concerns the validity of item 5, not a general assessment of all retrospective or remedial legislation, all military discipline arrangements, or all legislation affecting prior court decisions. The supplied text does not identify a broader test or provide examples of other circumstances that would fall within or outside the rule.
For legal analysis of a fact pattern involving the same Act, a careful comparison would need to identify whether the relevant person and punishment fell within the statutory provisions referred to in the judgment, whether the challenged measure is item 5, and whether the issue is the same Chapter III objection. Those are points for comparison, not conclusions about any other person's legal position. The full explanation in Haskins would also be important because Nicholas expressly incorporates its reasoning.
The supplied judgment does not discuss any later decisions, and it was delivered on 10 August 2011. It therefore provides no source-grounded basis for describing how later courts treated Nicholas. It does identify Haskins v The Commonwealth [2011] HCA 28 as the companion case whose reasoning the majority adopted ([5]-[6]); that is a contemporaneous relationship, not evidence of later treatment.
The judgment also cites Lane v Morrison (2009) 239 CLR 230; [2009] HCA 29 for the earlier declaration that the provisions establishing the AMC were invalid ([2]). That citation explains part of the factual and legislative background. It is not a later application of Nicholas.
Accordingly, the available text supports saying that Nicholas applied the reasoning in Haskins and referred to Lane v Morrison. It does not support a claim that a later court followed, distinguished, limited, or overruled Nicholas.
Several points cannot be resolved from this judgment's text alone. First, the majority's detailed reasoning about bills of pains and penalties is in Haskins, not reproduced here. A full doctrinal analysis therefore requires the companion judgment rather than inference from the short conclusion at [6].
Second, the judgment does not spell out the detailed operation of item 5, the review process under the Act, or how its provisions affected each category of AMC punishment. The catchwords refer to review under Part 7 of Schedule 1, but the reasons reproduced here do not explain that process.
Third, although Nicholas sought declarations about his convictions, punishments and dismissal, the formal order set out in this judgment answers the special-case question and makes a costs order. The text does not provide a separate order granting those declarations. Heydon J would have granted them, but the majority's formal disposition was different.
Finally, the supplied decision does not describe later judicial treatment. Any account of subsequent developments would require additional legal sources. The safe reading of this judgment is limited to its majority holding on item 5, its reliance on Haskins, and the recorded dissent.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have a qualified Australian lawyer check it.
Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
FRENCH CJ,
GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ
PAUL NICHOLAS PLAINTIFF
AND
THE COMMONWEALTH OF AUSTRALIA & ANOR DEFENDANTS
Nicholas v The Commonwealth [2011] HCA 29
10 August 2011
S183/2010
ORDER
1. Order that the question stated in the special case be answered as follows:
Question: Is item 5 of Schedule 1 to the Military Justice (Interim Measures) Act (No 2) 2009 (Cth) a valid law of the Commonwealth Parliament?
Answer: Yes.
2. The plaintiff pay the defendants' costs.
Representation
B Levet with A B Petrie for the plaintiff (instructed by Kinghan & Associates)
S J Gageler SC, Solicitor-General of the Commonwealth with S J Free for the first defendant (instructed by Australian Government Solicitor)
Submitting appearance for the second defendant
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Nicholas v The Commonwealth
Constitutional law (Cth) – Judicial power of Commonwealth – Constitution, Ch III – Validity of laws – Plaintiff defence force member – Plaintiff convicted of disciplinary offences and sentenced to punishment by Australian Military Court ("AMC") established under Defence Force Discipline Act 1982 (Cth) ("Discipline Act") – Plaintiff subjected to punishment – High Court subsequently held invalid provisions of Discipline Act establishing AMC – Military Justice (Interim Measures) Act (No 2) 2009 (Cth) ("Interim Measures Act"), Sched 1, item 5 applied where AMC had imposed punishment to declare rights and liabilities of all persons to be same as if punishment properly imposed by general court-martial, subject to review under Sched 1, Pt 7 – Whether provisions of Interim Measures Act had prohibited features of bill of pains and penalties – Whether provisions invalid as contrary to Ch III.
Words and phrases – "bill of pains and penalties", "usurpation of judicial power".
Constitution, s 51(vi), Ch III.
Defence Force Discipline Act 1982 (Cth), ss 27, Pt VIIIA.
Military Justice (Interim Measures) Act (No 2) 2009 (Cth), Sched 1, items 3, 4, 5, Pt 7.
FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ. From 1 January 2004 until 25 August 2008, the plaintiff was a commissioned officer in the Australian Army, holding the rank of Captain. Between 18 and 25 August 2008 he was tried by the Australian Military Court ("the AMC") on 11 charges under the Defence Force Discipline Act 1982 (Cth) ("the Discipline Act"). On 25 August 2008, he was convicted of four of those offences, two of obtaining a financial advantage contrary to s 135.2(1) of the Criminal Code (Cth) (as applied by s 61(3) of the Discipline Act), one of engaging in conduct tending and intended to pervert the course of justice and one of attempting to pervert the course of justice. He was sentenced to be reduced in rank to Lieutenant with seniority in that rank dating from 1 January 2006, to dismissal from the defence force effective on 19 September 2008 and to a severe reprimand. Orders were made that he pay certain amounts as reparation to the Commonwealth.
On 26 August 2009, after the orders made by the AMC had taken effect, this Court declared1 that the provisions of Div 3 of Pt VII of the Discipline Act, which established the AMC, were invalid. In response to this decision, the Parliament enacted the Military Justice (Interim Measures) Act (No 2) 2009 (Cth) ("the Interim Measures No 2 Act"), the provisions of Pt 2 of Sched 1 to which Act apply with respect to certain punishments imposed by the AMC (including those imposed on the plaintiff).
By an action brought in the original jurisdiction of this Court the plaintiff alleged that those provisions of the Interim Measures No 2 Act which "purport to give effect to punishments … and orders made by the [AMC] are invalid". He sought a declaration that the relevant provisions of the Interim Measures No 2 Act are invalid, together with declarations that the convictions recorded by the AMC against him are invalid, that the punishments imposed on him are invalid and that his dismissal from the defence force was invalid and of no effect.
His central allegation was that the Interim Measures No 2 Act is a bill of pains and penalties and thus invalid as being contrary to Ch III of the Constitution.
The second defendant, the Chief of the Defence Force, filed a submitting appearance. The plaintiff and the Commonwealth joined in stating a special case in which the following question was stated for the opinion of the Full Court:
"Is item 5 of Schedule 1 to the [Interim Measures No 2 Act] a valid law of the Commonwealth Parliament?"
The special case was heard at the same time as the special case stated in Haskins v The Commonwealth2.
The impugned provisions and the arguments advanced in support of the submission that the impugned provisions constituted a bill of pains and penalties are sufficiently recorded in the reasons given in Haskins. For the reasons given in Haskins, the question stated in the special case in this matter should be answered "Yes". The impugned provisions of the Interim Measures No 2 Act do not have the prohibited features of a bill of pains and penalties. The impugned provisions are not invalid as contrary to Ch III. The plaintiff must pay the costs of the special case.
HEYDON J. The plaintiff, Paul Nicholas, seeks certain declarations against the first defendant, the Commonwealth of Australia, and the second defendant, the Chief of the Defence Force. The declarations include declarations that convictions recorded by the Australian Military Court against him, punishments imposed by the Australian Military Court on him, and his dismissal from the Australian Defence Force were invalid. He was convicted on two charges relating to the obtaining of financial advantage, and two charges relating to perverting the course of justice. Taken as a whole, the sentences were a reduction in rank, orders to pay reparation, a severe reprimand, and dismissal from the Defence Force.
The circumstances relating to the plaintiff's claim are largely the same as those relating to the plaintiff in Haskins v The Commonwealth3, save that the plaintiff in that case lost his liberty for a time, and the plaintiff in this case has been dismissed. The Australian Military Court's convictions, punishments and orders would have been invalid but for the Military Justice (Interim Measures) Act (No 2) 2009 (Cth).
However, for the reasons given in relation to the plaintiff in Haskins v The Commonwealth4, item 5 of Sched 1 to that Act is invalid. The question in the Special Case should be so answered. Some additional arguments were advanced for that outcome, but they need not be considered. The declarations which the plaintiff seeks should be made. The first defendant must pay the plaintiff's costs.
Nicholas
The Commonwealth [2011] HCA 29
(2009) 239 CLR 230
The special-case question was answered: “Yes.” Nicholas was ordered to pay the defendants' costs. Heydon J would have held item 5 invalid and ordered the first defendant to pay Nicholas's costs.