R v Young

The test of validity of the Discipline Act is whether its provisions are appropriate and adapted to the achievement of the constitutional purposes earlier mentioned, namely, maintaining the operational efficiency of the Defence Force and ensuring that the Defence Force is a buttress of, rather than a threat to, internal security. Those purposes being the relevant object of the power, the ultimate criterion of validity is as stated in Castlemaine Tooheys Ltd. v. South Australia [27] :

if the means which the law adopts are disproportionate to the object to be achieved, the law has not been considered to be appropriate to the achievement of the object: the Tasmanian Dam Case [28] ; South Australia v. Tanner [29] . In our view, as expressed in Re Tracey [30] , the relevant power conferred by s. 51(vi) does not extend to the making of a law to punish defence members and defence civilians for their conduct unless the proceedings taken in order to punish them can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline. The support available from s. 51(vi) for a particular prosecution for a service offence varies with the circumstances. In Andrews v. Howell [31] , Dixon J. said of s. 51(vi): though its meaning does not change, yet unlike some other powers its application depends upon facts, and as those facts change so may its actual operation as a power enabling the legislature to make a particular law. In some circumstances conduct amounting to a service offence calls for proceedings to be taken before a service tribunal in order to maintain or enforce service discipline; in other circumstances, it does not. That being so, Pts III and VII of the Discipline Act, which are drawn in general terms, must be held invalid unless they can be read down to apply only in the circumstances in which their application is constitutionally supportable. 1. (1990) 169 C.L.R. 436, at p. 473. 2. (1983) 158 C.L.R. 1, at p. 278. 3. (1989) 166 C.L.R. 161, at pp. 165, 178. 4. (1989) 166 C.L.R., at p. 570. 5. (1941) 65 C.L.R. 255, at p. 278.

Though it may be impossible to prescribe a priori the times and circumstances in which proceedings before a service tribunal will be regarded as substantially serving the purpose of maintaining or enforcing service discipline, it does not follow that a failure by the Discipline Act expressly to restrict the application of these general provisions destroys its validity. Though the Discipline Act appears to authorize an exercise of jurisdiction in every case literally falling within its terms, and thus to authorize an invalid as well as a valid exercise of the jurisdiction to hear and determine charges of committing service offences, the distributive operation of the Discipline Act is confined by s. 15A of the Acts Interpretation Act so that the jurisdiction conferred on service tribunals is available for exercise only on occasions when there is constitutional support for its exercise.

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.

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.

1. (1990) 170 C.L.R. 276, at p. 291. 2. (1989) 166 C.L.R., at p. 570. 3. (1991) 172 C.L.R. 84, at pp. 135-137.

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.

1. (1951) 83 C.L.R. 1, at p. 186. 2. (1986) 161 C.L.R. 556, at pp. 611-614. 3. (1989) 166 C.L.R., at p. 571.

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.

In the event that jurisdiction was held to exist, the prosecutor sought to challenge the first respondent's refusal, in the exercise of a supposed discretion, to decline to hear and determine the charges. That challenge must fail, for there was no other tribunal with jurisdiction to hear and determine charges of service offences. It is the duty of the first respondent to hear and determine the charges.

In Re Tracey; Ex parte Ryan [42] , I explained in considerable detail my reasons for thinking that the judicial powers which the Parliament can, consistently with Ch. III of the Constitution, confer upon service tribunals to deal with offences by members of the armed forces within the jurisdiction of the ordinary courts in time of peace and general civil order are necessarily confined in two fundamental respects: (i) they must be essentially disciplinary in their nature in the sense of being concerned either with "exclusively disciplinary" offences (see Re Tracey [43] ) or with the disciplinary aspects of other "service-related" offences [44] ; and (ii) they must be "supplementary" in their character in the sense that they do not supplant the jurisdiction or function of the ordinary courts in relation to the general community aspects of conduct which also constitutes an offence under the ordinary criminal law [45] . Those views led me to conclude that the purported conferral by the Defence Force Discipline Act 1982 Cth of comprehensive jurisdiction upon service tribunals is invalid, in so far as offences committed within an Australian State or Territory in time of peace are concerned, except to the extent that that jurisdiction relates to exclusively disciplinary offences. My conclusion to that effect was in general conformity with that reached by Gaudron J. It was, however, contrary to the conclusions reached by the other members of the Court. I have given careful consideration to the question whether I should adhere to my own views, which remain unaltered, for the purpose of disposing of the present case in which the respondent Defence Force magistrate proposes to deal with both the disciplinary and general community aspects of charges of offences which are service-related but not exclusively disciplinary in their nature. The following considerations combine to persuade me that I should.

1. (1989) 166 C.L.R. 518. 2. (1989) 166 C.L.R., at pp. 586-587. 3. (1989) 166 C.L.R., at p. 587. 4. (1989) 166 C.L.R., at p. 589.

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] .

1. (1989) 166 C.L.R., at p. 570. 2. (1989) 166 C.L.R., at p. 571. 3. (1920) 28 C.L.R. 129. 4. (1989) 166 C.L.R., at pp. 599-600. 5. (1989) 166 C.L.R., at pp. 579-581.

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] ).

1. (1977) 139 C.L.R. 585. 2. (1975) 134 C.L.R. 201. 3. (1977) 139 C.L.R., at pp. 592-594. 4. (1977) 139 C.L.R., at pp. 620-631. 5. (1977) 139 C.L.R., at pp. 598-601. 6. (1977) 139 C.L.R., at pp. 603-605. 7. (1977) 139 C.L.R., at p. 601. 8. (1977) 139 C.L.R., at pp. 604-605. 9. (1977) 139 C.L.R., at p. 610. 10. (1953) 87 C.L.R. 49, at pp. 104-105. 11. (1953) 87 C.L.R., at p. 70.

As has been said, the alleged offences in the present case are not exclusively disciplinary offences. They are all substantially the same as offences under the ordinary law. For the reasons which I explained in Re Tracey, the jurisdiction of service tribunals to deal with such offences cannot be read down to a jurisdiction to deal only with their disciplinary aspects. That being so, the Constitution decrees that the first respondent lacks jurisdiction to hear and determine them.

The order nisi for prohibition should be made absolute.

This is the return of an order nisi for prohibition directed to a Defence Force Magistrate before whom the prosecutor, Staff Sergeant Young, stands charged with a number of service offences under the Defence Force Discipline Act 1982 Cth ("the Act"). It is common ground that the offences with which he is charged are capable of bearing a disciplinary aspect. It is also common ground that they have counterparts under the general criminal law in the sense that the prosecutor could be charged in the ordinary courts with criminal offences the elements of which are the same or substantially the same as the elements of the service offences with which he is charged. The conduct to which the charges relate occurred in Australia.

Although it would seem unlikely and although questions might arise as to the availability of pleas of autrefois convict and autrefois acquit, it may be that, even if the service offences are prosecuted to finality, the prosecutor will be required to stand trial in the ordinary courts on charges of criminal offences which are the same or substantially the same as the service offences. In this respect it is sufficient to note that the effect of the decision in Re Tracey; Ex parte Ryan [15] was to hold s. 190(3) and (5) of the Act invalid. Those sub-sections purported to prevent the ordinary criminal courts from exercising jurisdiction with respect to offences which are substantially the same as service offences of which a person has been convicted or acquitted.

The prosecutor contends that it is beyond the constitutional power of Parliament to vest in service tribunals, not being courts established in accordance with Ch. III of the Constitution, jurisdiction to determine a person's guilt or innocence of, and punishment for, a service offence which is the same or substantially the same as an offence with which that person could be charged under the general criminal law. A service offence of that kind is necessarily one that is not exclusively disciplinary in nature. The argument made on behalf of the prosecutor is contrary to the judgments of those who formed the majority in Re Tracey, but, if confined to service offences committed or alleged to have been committed in Australia in time of peace, it accords with the view expressed in that case by Deane J. and is not inconsistent with the view that I expressed. The position with respect to offences committed or alleged to have been committed outside Australia or in time of war may be put to one side, for, as earlier indicated, the present case arises out of conduct in Australia and, certainly, that conduct occurred in a time of peace.

I agree with Deane J., for the reasons that his Honour gives, that the result in Re Tracey cannot be reconciled with settled principles governing constitutional interpretation (see Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. [16] ), the operation of s. 109 of the Constitution (see, e.g., Felton v. Mulligan [17] and University of Wollongong v. Metwally [18] ) and the reading down of invalid legislative provisions (see Bank of N.S.W. v. The Commonwealth [19] , per Dixon J.). Given these considerations, the fact that the result in Re Tracey proceeds from two different lines of reasoning, neither of which commanded the support of a majority and the fundamental nature and importance of the constitutional issue raised by Re Tracey and by the present case, it is necessary that I state my own view on the constitutional question raised.

1. (1920) 28 C.L.R. 129. 2. (1971) 124 C.L.R. 367. 3. (1984) 158 C.L.R. 447. 4. (1948) 76 C.L.R. 1, at p. 372.

The line of reasoning that I adopted in Re Tracey is no longer available. That reasoning proceeded from the view that, if it exists, a power to vest jurisdiction in service tribunals to hear and determine charges of service offences with respect to conduct which would ordinarily attract the operation of the general criminal law necessarily carries, as reasonably incidental to it, power to make that jurisdiction exclusive and, hence, power to exclude the operation of the general criminal law and the jurisdiction of the ordinary criminal courts. Although I remain of that view, the result in Re Tracey requires that the present case be determined on the basis that the Act does not in any way affect the operation of the general criminal law or the exercise by the ordinary courts of their criminal jurisdiction.

Chapter III of the Constitution makes provision with respect to the vesting and the exercise of the judicial power of the Commonwealth. The fundamental importance of Ch. III is to be discerned from the fact that, whereas s. 51 confers legislative power "subject to this Constitution", no provision in Ch. III is expressed to be subject to any other provision of the Constitution. Thus, even if, contrary to the view I expressed in Re Tracey, the provisions of the Act creating service offences which are the same or substantially the same as offences under the general criminal law are properly characterised in terms of s. 51(vi) of the Constitution as a law or laws with respect to the "defence of the Commonwealth [or] of the several States" or "the control of the forces to execute and maintain the laws of the Commonwealth", they are necessarily invalid to the extent, if any, that they come into collision with Ch. III. See Re Tracey [20] , per Mason C.J., Wilson and Dawson JJ.

It is unnecessary in the present case to go past s. 71 in Ch. III. That section provides that the judicial power of the Commonwealth "shall be vested" in this Court, in such other federal courts as the Parliament creates and in such other courts as it invests with federal jurisdiction. That provision has been described as one which deals completely and exhaustively with the judicial power of the Commonwealth: see, e.g., Huddart, Parker & Co. Proprietary Ltd. v. Moorehead [21] ; Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan [22] . Two prohibitions have been identified as resulting from the complete and exhaustive nature of s. 71. The first is that no body, tribunal or organization, which is not a court as named or indicated in s. 71, may exercise that power of the Commonwealth which, of its nature, is exclusively judicial: see Waterside Workers' Federation of Australia v. J.W. Alexander Ltd. [23] . The second is usually expressed in terms indicating that only judicial power and powers ancillary or incidental thereto may be conferred on a court as named or indicated in s. 71: see Reg v. Kirby; Ex parte Boilermakers' Society of Australia (the Boilermakers' Case) [24] . That may not be a very informative statement, for some powers (not being powers which are exclusively judicial) may be vested either in a court or in another body and, if vested in a court, will accurately be described as judicial, although they will bear a different character if vested in a different body. It should also be noted that the principal conclusion of the Boilermakers' Case was called into doubt by Barwick C.J. and by Mason J. in Reg. v. Joske; Ex parte Australian Building Construction Employees and Builders' Labourers' Federation [25] .

1. (1909) 8 C.L.R. 330, at p. 355. 2. (1931) 46 C.L.R. 73, at pp. 96-98, 116. 3. (1918) 25 C.L.R. 434. 4. (1956) 94 C.L.R. 254, at pp. 271-272, 289. 5. (1974) 130 C.L.R. 87, at pp. 90, 102.

It is not necessary to consider the precise effect which s. 71 has on the nature or extent of the powers that may be conferred upon a court for the question raised by this case is whether the power conferred on service tribunals to hear and determine charges of service offences which are the same or substantially the same as offences created by the general criminal law is a power which, by force of s. 71, can be conferred only on courts as named or indicated in that section. In answering that question it is important to bear in mind that an essential feature of judicial power is that it must be exercised in accordance with the judicial process. In Harris v. Caladine [26] , I described the general features of that process. Importantly for present purposes, those features include open and public enquiry (subject to limited exceptions), the application of the rules of natural justice, the ascertainment of the facts as they are and as they bear on the right or liability in issue and the identification of the applicable law, followed by an application of that law to those facts: see also Reg. v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty. Ltd. [27] , per Kitto J. Because it is an essential feature of judicial power that it be exercised in accordance with the judicial process, Ch. III provides a guarantee, albeit only by implication, of a fair trial of those offences created by a law of the Commonwealth which must be tried in the courts named or indicated in s. 71. Conversely, there is no such guarantee with respect to offences, if any, which may be tried in the exercise of non-judicial power by some other body or tribunal.

1. (1991) 172 C.L.R. 84, at pp. 150-152. 2. (1970) 123 C.L.R. 361, at p. 374.

The determination in accordance with the judicial process of controversies as to legal rights and obligations and as to the legal consequences attaching to conduct is vital to the maintenance of an open, just and free society. Quite apart from the public's right to know what matters are being determined in the courts and with what consequences, open and public proceedings are necessary in the public interest because secrecy is conducive to the abuse of power and, thus, to injustice. Moreover and more directly, the judicial process protects the individual from arbitrary punishment and the arbitrary abrogation of rights by ensuring that punishment is not inflicted and rights are not interfered with other than in consequence of the fair and impartial application of the relevant law to facts which have been properly ascertained.

By reason of the interests which the judicial process protects, that process is properly to be seen as partaking of the same fundamental importance as the democratic process. For that reason, it is necessary that the power which is exclusively judicial and, thus, can be exercised in accordance with the judicial process only by courts as named or indicated in s. 71 be jealously guarded against the possibility of usurpation.

It may not yet be possible to define "judicial power" in a way that is "at once exclusive and exhaustive" (Reg. v. Davison [28] , per Dixon C.J. and McTiernan J.). But, it is beyond dispute that the power to determine whether a person has engaged in conduct which is forbidden by law and, if so, to make a binding and enforceable declaration as to the consequences which the law imposes by reason of that conduct lies at the heart of exclusive judicial power. The power which the Act confers on service tribunals to hear and determine service offences is a power of that kind. Indeed, I do not understand the judgments in Re Tracey or the arguments in this case to suggest otherwise. Rather, as I understand it, it is said that the power which the Act confers on service tribunals stands outside Ch. III because it is a power exercised over persons subject to military discipline, and, for historical and practical reasons, military authorities have long exercised a power, like judicial power, over those persons.

In my view, if the power or any part of the power which the Act confers on service tribunals is to be seen as outside Ch. III of the Constitution, it must be by reason of the character of the law in so far as it creates service offences. It cannot be taken outside Ch. III simply because it is a power over persons subject to military discipline. Persons in that situation do not, on that account, become immune from the operation of the general law. Nor are they, on that account, deprived of the protection of the law. Nor can the power of service tribunals to hear and determine service offences be taken outside Ch. III simply by reason of the events of history. Times change. Whatever may have been the situation in earlier times, there is now no insuperable difficulty in bringing members of the armed forces stationed in Australia before the ordinary courts when questions arise as to the consequence, if any, which the general criminal law imposes by reason of their conduct in Australia.

There is no doubt that there exists a power, similar to but distinct from the judicial power of the Commonwealth, which may be exercised by military authorities over persons who are subject to military discipline: see R. v. Bevan; Ex parte Elias and Gordon [29] and R. v. Cox; Ex parte Smith [30] . However, there is no reason why that power should extend beyond what is appropriate and adapted to the maintenance of the authority of persons in command and the discipline of the forces. And, as already stated, legislative capacity to vest power in such authorities is subject to the Constitution as a whole, including Ch. III.

1. (1942) 66 C.L.R. 452. 2. (1945) 71 C.L.R. 1.

The limits of the power which may validly be vested in military authorities may vary according to the circumstances in which the forces are placed. But, so far as the forces are standing forces in Australia, neither the authority of persons in command nor the discipline of those forces is, in any way, dependent upon the participation of military authorities in the administration of ordinary criminal justice. That is not to deny that there may be a disciplinary aspect to conduct which infringes the general criminal law and that that aspect, isolated from its accompanying criminality, might properly attract the exercise of that power which inheres in military authorities. But it is to deny that, so far as the relevant conduct occurred or occurs in Australia, those authorities have any power with respect to its purely criminal character.

To the extent that the Act confers power on service tribunals to hear and determine service offences which are constituted by or said to be constituted by conduct occurring in Australia and which are the same or substantially the same as offences under the general criminal law, it purports to vest criminal jurisdiction in those tribunals and purports to authorize their participation in the administration of ordinary criminal justice. So much is clear from the fact that, in such cases, the Act selects as the criteria for proscription and punishment the same or substantially the same criteria already selected for the same purpose by the general criminal law and fails to select the disciplinary aspect of conduct which infringes the ordinary criminal law as the subject matter of proscription or punishment. And s. 144(3) of the Act, which provides that a service tribunal shall not hear charges of service offences which are substantially the same as offences of which the person has been acquitted or convicted in the ordinary courts, confirms that the Act, although concerned to see that conduct which offends the general criminal law is punished one way or another, is not at all concerned in that situation with those aspects of conduct which might bear upon the authority of those in command or upon the discipline of the forces.

The provisions of the Act which create service offences which are the same or substantially the same as offences under the general criminal law do not bear a different character because, as the law presently stands, the prosecution of a service offence to finality does not preclude subsequent criminal proceedings in the ordinary courts for the same or substantially similar offences. That possibility (which opens up the question of the availability of pleas of autrefois convict and autrefois acquit) merely serves to highlight that, in the event that a criminal offence were to be prosecuted to finality in an ordinary court, the court and the service tribunal would be engaged in the same exercise with respect to the same conduct and to the same end, namely, to determine innocence or guilt and, in the case of guilt, to impose punishment. Should pleas of autrefois convict and autrefois acquit be available in subsequent proceedings brought in the ordinary courts, that would merely emphasize that the Act purports to authorize service tribunals to participate in the administration of ordinary criminal justice.

In my opinion, unless a service tribunal is established under Ch. III of the Constitution, it has jurisdiction to deal with an "offence" by a member of the armed services only if such an "offence" is exclusively disciplinary in character or is concerned with the disciplinary aspect of conduct which constitutes an offence against the general law.

My reasons for this conclusion are the same as those expressed by Deane J. in Re Tracey; Ex parte Ryan [31] and by him in his judgment in this case. No useful purpose would be served by my reiterating those reasons in different words.