R v Young

[1991] HCA 29

High Court of Australia|1988-02-18|Before: McHugh JJ, Dawson J, Toohey J

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Source facts

Court

High Court of Australia

Decision date

1988-02-18

Before

McHugh JJ, Dawson J, Toohey J

Source

Original judgment source is linked above.

Judgment (42 paragraphs)

[1]

The application of this doctrine avoids the possibility, albeit a faint possibility, of unresolved conflict between a substantive provision of the ordinary criminal law (whether Commonwealth law, State law or common law) and a substantive provision of a law creating (whether by the Discipline Act or by regulation) a service offence: the substantive provision of the ordinary criminal law would prevail where simultaneous obedience to both would not be practicable. Thus, if simultaneous obedience to a law prescribing a service offence and a State criminal law were not practicable, the State criminal law would prevail provided that law were itself consistent with Commonwealth laws governing the creation, organization and functions of the Defence Force. To say that a State criminal law of that kind - characteristically, a State criminal law prescribing a general norm of personal conduct - would prevail over a law creating a service offence is not to destroy the operation of s. 109 of the Constitution, though it may appear at first sight to do so. Once it is appreciated that the legislative power conferred by s. 51(vi) is limited in the relevant respect to the creation of laws which are supplementary to the ordinary criminal law, it can be seen that no law of the Commonwealth can validly create a service offence which is inconsistent with, as distinct from supplementary to, the ordinary criminal law. A law creating a service offence is denied an operation inconsistent with the operation of an ordinary criminal law of a State, not because the will of the State legislature prevails over the will of the Commonwealth legislature but because the support of s. 51(vi) of the Constitution for the creation of service offences vanishes when it is impracticable to obey simultaneously the law creating the service offence and the ordinary criminal law enforceable by the courts of this country.

[2]

[6]

Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power. Where a law operates distributively and, on a literal construction, embraces cases which are beyond legislative power, s. 15A can restrict its operation to cases which are within power provided certain conditions are met. First, it is necessary that "the law itself indicates a standard or test which may be applied for the purpose of limiting, and thereby preserving the validity of, the law": per Latham C.J. in Pidoto v. Victoria [32] . His Honour stated the effect of s. 15A in these terms [33] : where there are general words or expressions which apply both to cases within power and to cases beyond power, then if an intention of Parliament that there should be a partial operation of the law based upon some particular standard criterion or test can be discovered from the terms of the law itself or from the nature of the subject matter with which the law deals, it can be read down so as to give valid operation of a partial character. In such a case also it would be necessary to consider whether such reading down would alter the policy or operation of the statute with respect to the cases which, after the reading down, would still remain within its terms. But if a law can be reduced to validity by adopting any one or more of a number of several possible limitations, and no reason based upon the law itself can be stated for selecting one limitation rather than another, the law should be held to be invalid. In such a case the law cannot be saved by the Acts Interpretation Act. A second condition was stated by Barwick C.J. in Strickland v. Rocla Concrete Pipes Ltd. [34] : where the enacted words are capable of division or distribution, the reduced form of the enactment which results must operate upon the persons and things affected by it in the same manner as the enacted words would have operated upon those persons and things had Parliament had the legislative power to have validly passed the enactment. In such a case, it cannot be accepted that the Parliament intended an Act with a different operation upon or with respect to such persons and things. Again, the reduced form or operation of the Act must result in a "consistent workable and effective body of provisions". But within such limits, the parliamentary expression that it intends to enact any law within any of its powers which emerges by construction from the enacted words, notwithstanding any invalidity in parts of the enactment, is imperative. See also per Walsh J. [35] . 1. (1943) 68 C.L.R. 87, at p. 109. 2. (1943) 68 C.L.R., at p. 111. 3. (1971) 124 C.L.R. 468, at p. 493. 4. (1971) 124 C.L.R., at pp. 516-520.

[7]

The cases in which s. 15A has been applied have generally related to laws which have defined their subject matter in terms of persons or activities, some of whom or some of which lie outside the reach of the relevant constitutional power. Section 15A can apply when the impugned law generally prohibits activities engaged in by a class of persons, some of whom are beyond the reach of the supportive constitutional power in respect of some only of their activities: Bourke v. State Bank of New South Wales [36] . The Discipline Act purports to relate to defence members and defence civilians, all of whom are within the reach of the disciplinary aspect of the defence power. But the limit on the reach of the disciplinary aspect of the defence power with which we are here concerned is not a limit on the classes of persons who have been brought within the net of military discipline, nor a limit on the scope of the conduct which might be forbidden to defence members and defence civilians as a service offence, nor a limit on the jurisdiction or power of service tribunals when they are validly hearing and determining charges of service offences and imposing penalties for their commission. The relevant limit is on the occasions for the exercise of disciplinary jurisdiction: "if, but only if, those proceedings can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline": Re Tracey [37] . In a sense, the hearing and determination of a charge of a service offence can be described as an activity but an exercise of jurisdiction is not accurately so described. Characteristically an exercise of jurisdiction is attended by an exercise of power (see per Toohey J. in Harris v. Caladine [38] ) and it is the occasions when the disciplinary jurisdiction with its associated powers may be exercised which are at issue. The question is whether s. 15A operates to limit the occasions on which the power to charge a defence member or defence civilian with the commission of a service offence, the jurisdiction to hear and determine such a charge and the power to impose punishment for commission of such an offence can be exercised with the result that the relevant provisions of the Discipline Act themselves operate only when they are constitutionally supported. If s. 15A is to apply to limit those occasions, there must be discovered in the Discipline Act or in its subject matter a standard, criterion or test on which the limit can be based. The standard, criterion or test is not hard to find.

[9]

It is to be found in the nature of military discipline which, traditionally and constitutionally, is supplementary to the ordinary criminal law. It is implied in the title of the Discipline Act and in its preamble which declares it to be "An Act relating to the discipline of the Defence Force and for related purposes". The gradations of service tribunals, the punishments which they may respectively impose and the variation in punishments available according to the rank of the offender all go to show that the purpose of conferring jurisdiction on service tribunals is simply to maintain and enforce military discipline, not to create criminal offences which might be committed by defence members and defence civilians. The general provisions conferring jurisdiction can and must be read down so that the powers conferred by the Discipline Act are exercised only for the purpose of maintaining and enforcing military discipline. To read down the general provisions of the Discipline Act so that proceedings can be validly brought only when they can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline is simply to confine the exercise of powers conferred in general terms so as to serve the purpose which the Parliament manifestly intended to achieve and which s. 51(vi) of the Constitution will support. Section 15A could not be invoked to read down a law conferring in general terms a power which might be exercised sometimes without constitutional support unless any decision to exercise the power can be judicially reviewed to ensure compliance with the purpose for which the power is conferred. A purported conferring of general powers to charge a person with a service offence and to hear and determine such charges would be invalid if "its exercise is not examinable and is not susceptible of testing by reference to the constitutional power above which it cannot validly rise": per Dixon J. in Australian Communist Party v. The Commonwealth [39] . But the conferring of a general power in terms that are prima facie too wide is no obstacle to its validity when its true scope is defined by s. 15A of the Acts Interpretation Act and it can effectively be confined by judicial review to operate in a constitutionally supportable field: see per Brennan J. in Miller v. TCN Channel Nine Pty. Ltd. [40] . In the present case, as we explained in Re Tracey [41] , the occasions when a defence member or defence civilian is charged with a service offence and the occasions when a service tribunal purports to exercise jurisdiction to hear and determine those charges can be effectively supervised. And, the Discipline Act being confined within constitutional bounds, there is no disconformity between its operation in particular cases and the operation which the Parliament intended it to have in those cases.

[11]

The present application for prohibition against the first respondent attacks the exercise of jurisdiction by a service tribunal to hear and determine the fourteen charges against Sergeant Young, a defence member. In the case of the seven charges alleging falsification of forms relating to the defence member's pay (charges 1, 3, 5, 7, 9, 11 and 13), the defence member is alleged to have been carrying out the duties of unit pay representative for his squadron at the time of the offences charged and the offences are said to have been committed on service premises. In the case of the other seven charges (charges 2, 4, 6, 8, 10, 12 and 14), again Keswick Barracks is identified as the place where the offence was committed; again the defence member is said to have been carrying out the duties of unit pay representative for his squadron; and he is alleged to have been seeking a personal benefit to which he was not entitled from his employer, the Commonwealth, by use of a document which he allegedly falsified in the course of carrying out his service duties. Each of the odd-numbered charges is linked to the even-numbered charge that follows it in that the same form is involved. The charges allege conduct that, if established, clearly constitute breaches of the service duties of Sergeant Young. Perhaps Sergeant Young's alleged service offences might have been charged as offences under the law of South Australia (see, e.g., the Criminal Law Consolidation Act 1935 S.A., ss. 195, 235) but, however that may be, it would usually be prejudicial to service discipline to exempt an offender from service punishment when the offence consists in the malperformance of his service duties. Service discipline is not merely punishment for wrongdoing. It embraces the maintenance of standards and morale in the service community of which the offender is a member, the preservation of respect for and the habit of obedience to lawful service authority and the enhancing of efficiency in the performance of service functions. Here, the charges are obviously "service connected" but that is not the ultimate criterion though it is an important element in determining whether proceeding on those charges could reasonably be regarded as serving the purpose of maintaining and enforcing service discipline. In our view, it can reasonably be said that the maintenance and enforcement of service discipline would be served by proceeding on all charges against Sergeant Young before a service tribunal constituted, as the Discipline Act provides, by a Defence Force Magistrate.

[15]

First, I am unable to identify in the judgments in Re Tracey any general line of reasoning in relation to service-related offences which enjoyed the support of a majority of the seven Justices who constituted the Court. Secondly, the acceptance of Re Tracey as authority for the highest common factor which enjoyed majority support is attended by conceptual difficulties. That highest common factor is to be found in the conclusion of Brennan and Toohey JJ. that a service tribunal could validly be invested with jurisdiction to deal with both the disciplinary and community aspects of a service-related offence in a case where ("if, but only if") the proceedings can "reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline" [46] . As their Honours recognized [47] , in the context of provisions purportedly conferring a wider jurisdiction, the effect of that conclusion would be that a service tribunal was required to determine, presumably as a preliminary question of jurisdiction, whether the proceedings in a particular case would "serve a substantial disciplinary purpose". Examination of the other judgments in Re Tracey discloses, however, that such a test is, on the differing views expressed by the other members of the Court, either unnecessary or unavailing in the context of the particular statutory provisions. Thirdly, even if I were to accept that conclusion of Brennan and Toohey JJ. about the limits of Commonwealth legislative power, there would remain, for me, serious unbridged - and unbridgeable - gaps between that conclusion and the ultimate decision in Re Tracey about validity and invalidity. For one thing, it does not seem to me that there is to be found in the judgments in Re Tracey any real explanation of how, consistently with settled principles governing severance and reading down in the context of s. 15A of the Acts Interpretation Act 1901 Cth, the Court could convert what was intended by the Parliament to be an exclusionary jurisdiction to deal finally with the disciplinary and community aspects of criminal conduct into a non-exclusionary jurisdiction with the result that, depending upon the lottery of which jurisdiction is first exercised, an accused can be subjected to proceedings in both service tribunal and civil court and exposed to twice the maximum or fixed penalty which the Parliament intended. For another, I have great difficulty with the conclusion of the majority in Re Tracey that, if the provisions of the Act validly confer jurisdiction upon service tribunals to deal comprehensively with the disciplinary and community aspects of at least some service-related offences, the provisions of s. 190(3) and (5) are not valid to the extent that they deprive State courts of jurisdiction to deal with substantially the same offence after the service tribunal has exercised that comprehensive jurisdiction. If the Parliament possesses the legislative power to validly confer such comprehensive jurisdiction upon service tribunals, it seems to me to be at least incidental to the exercise of that legislative power to provide that persons tried or punished by service tribunals for the community aspects of an offence should not be again tried or punished for that aspect of the same or substantially the same offence by a State civil court. Since Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. [1] , it is simply not to the point that an immunity from State jurisdiction conferred by a Commonwealth law as involved in, or incidental to, the establishment of comprehensive Commonwealth jurisdiction would involve a pro tanto interference with the exercise by State courts of their general criminal jurisdiction. Indeed, if s. 190(3) and (5) had not been in the Act, it seems to me that the Constitution itself, by s. 109, would necessarily have deprived a State court of jurisdiction to retry and again punish the same or substantially the same offence as that which had been comprehensively dealt with by a service tribunal in the exercise of judicial power conferred by a valid law of the Commonwealth (see per Gaudron J., Re Tracey [2] ). Fourthly, and most importantly, the reasoning which led me to the conclusion to which I came in Re Tracey reflects my understanding of the content of the separation of judicial from executive or legislative power upon which our Constitution is structured [3] .

[17]

The considerations favouring and militating against a departure by this Court from a recent decision dealing with the scope of Commonwealth legislative power under the Constitution were identified in the judgments of the five members of the Court (Barwick C.J., Gibbs, Stephen, Murphy and Aickin JJ.) who considered the matter in Queensland v. The Commonwealth [4] , a case in which it was sought to challenge the correctness of a then recent decision of the Court (Western Australia v. The Commonwealth [5] ) upholding the validity of a Commonwealth law providing for representation of an internal Territory in the Senate. In the particular circumstances of that case, Barwick C.J. [6] and Aickin J. [7] thought that the previous decision should be overruled. Gibbs J. [8] and Stephen J. [9] considered that the previous decision was wrong but that, in the particular circumstances, it should be followed. However, Gibbs J. added [10] the important qualification that, if the Parliament were to increase the number of Territory senators, "that would be a circumstance that might be regarded as sufficient to justify a reconsideration" of the earlier decision (but note per Stephen J., to the contrary [11] ). Murphy J. [12] made clear that, if he had thought that the previous decision was mistaken, he would have favoured overruling it for the reason that the task of the Court "is to apply the Constitution, not the judicial decisions". As the division of judicial opinion in Queensland v. The Commonwealth makes plain and as the history of the decisions of this Court on ss. 90 and 92 of the Constitution demonstrates, the arguments favouring and militating against the abandonment by a member of the Court of his or her own views about the effect of fundamental constitutional provisions in favour of what was decided by, or said by a majority of, the Court in an earlier case can, in some circumstances, be evenly balanced and appeal to different minds differently. That is not, however, so in the present case where it is impossible to identify in the earlier decision any general principle accepted by a majority of the Court as justifying the actual decision (cf.Hughes and Vale Pty. Ltd. v. New South Wales [13] ) and where the earlier decision has extended the immunity of military tribunals in time of peace from the requirement of the Constitution's fundamental guarantee of the manner of exercise of Commonwealth judicial power and is beset by quite extraordinary conceptual difficulties (see above). In such a case, it is, in my view, an "imperative judicial necessity" that I adhere to my own view of what the Constitution allows and forbids (cf. Hughes and Vale [14] ).