MASON CJ AND DAWSON J The prosecutor, Wing Commander Foley, seeks

a writ of prohibition prohibiting the respondents from proceeding

further with his trial before a general court martial upon a charge

laid under the Defence Force Discipline Act 1982 (Cth) ("the Act").

He is charged with contravening s.47(1) of the Act by dishonestly

appropriating the sum of $24,761.40, being the property of the

Commonwealth, with the intention of permanently depriving the

Commonwealth thereof. Offences of the same or a substantially similar

nature exist under s.71 of the Crimes Act 1914 (Cth) and s.178BA of

the Crimes Act 1900 (N.S.W.). He is also charged with breaching a

general order in contravention of s.29 of the Act.

2. The general court martial is constituted in accordance with the

Act, but not in accordance with Ch.III of the Constitution, and the

form of trial is not trial by jury. The prosecutor contends that it

is not necessary or appropriate for the maintenance or enforcement of

military discipline that he be tried by a service tribunal under the

Act rather than by a civil court, nor that he be deprived of a trial

by jury which, if he were tried in a civil court, would be required by

s.80 of the Constitution or under New South Wales law. He maintains

that s.47 of the Act and those provisions of the Act which provide for

the trial and punishment of an offence under that section by general

court martial purport to vest jurisdiction in a service tribunal to

deal with the non-disciplinary aspects of that offence in peace time

and are invalid. Accordingly, he submits that the general court

martial has no jurisdiction to try him upon the charge under s.47.

3. The prosecutor has been a member of the Royal Australian Air

Force ("RAAF") for some 30 years and was posted to 33 Squadron RAAF

Base, Richmond, on 20 December 1988. Shortly thereafter he became the

commanding officer of that squadron. He brought his wife and family

to Richmond and moved into rented accommodation. He applied for a

temporary rental allowance ("TRA") and his application was approved.

4. TRA was payable under a scheme laid down by a Determination

(Determination 0503) made under s.58B of the Defence Act 1903 (Cth)

and implemented by a Defence Instruction (General) ((1) See Defence

Act, s.9A(2).) known as INDMAN 0503. Defence Instructions (General)

are general orders under s.3(1) of the Act. It was part of the scheme

that, if a defence member was in receipt of TRA and purchased a house

which was suitable to house that member's family, the entitlement to

TRA ceased ((2) Determination 0503, cl.29.). The Defence Instruction

required a member to advise the appropriate authority of any change or

impending change that would or could affect that member's eligibility

for TRA ((3) INDMAN 0503, par.52 as on 17 July 1990. It was replaced

by INDMAN 0503, par.51 issued on 14 August 1991. The alleged offence

occurred between 17 July 1990 and 25 June 1992. Since 23 February 1993

the relevant paragraph has been INDMAN 0503, par.66.).

5. Whilst he was in receipt of TRA, the prosecutor purchased a house

which is alleged to have been suitable to house his family. He did

not move into that house, but rented it out. He did not notify the

appropriate authority of the purchase. Subsequently he sold the

house, but whilst he was the owner of it he continued to receive TRA

payments. It is alleged that the receipt of these payments, amounting

in all to $24,761.40, constituted a dishonest appropriation.

6. In Re Tracey; Ex parte Ryan ((4) [1989] HCA 12; (1989) 166 CLR 518.) we, together

with Wilson J, expressed the view that the power under s.51(vi) of the

Constitution to make laws with respect to the naval and military

defence of the Commonwealth and the several States necessarily includes

a power to provide for the discipline of the defence forces because

naval and military defence demands the provision of a disciplined force

or forces ((5) ibid. at 540.). The system of discipline required for

the proper organization of a defence force may, we said, be

administered judicially, not as part of the judicature enacted under

Ch.III, but as part of the organization of the force itself ((6) ibid.

at 541.). We concluded that the power to make laws with respect to

defence contains within it the power to enact a disciplinary code

standing outside Ch.III and to impose upon those administering that

code the duty to act judicially ((7) ibid.). It was implicit in the

view which we expressed that the trial of service offences might be by

way of court martial and not by way of trial by jury since the former

is not a trial on indictment and s.80 of the Constitution has no

7. Moreover, in that case ((8) ibid. at 544-545.) we accepted the

experience of the United States ((9) See Solorio v. United States

[1987] USSC 159; (1987) 483 US 435.) that it is not possible to draw a clear and

satisfactory line between those offences committed by defence members

which are of a military character and those which are not. We

considered that, even if offences against military law can extend no

further than is thought necessary for the regularity and discipline of

the defence forces ((10) See Groves v. The Commonwealth [1982] HCA 21; (1982) 150 CLR

113 at 125.), it was within the power of Parliament to provide that

any conduct which constitutes a civil offence shall constitute a

8. In Re Nolan; Ex parte Young we reiterated the view which we had

expressed in Re Tracey and summarized our reasons as follows ((11)

[1991] HCA 29; (1991) 172 CLR 460 at 474-475.) :

"The proscription of that conduct is relevant to the

maintenance of good order and discipline in the defence

forces; so long as the rule prescribed is sufficiently

connected with the regulation of the defence forces and the

good order and discipline of members, it will be valid.

Indeed, we do not understand how it can be suggested that

the prescription of a rule of conduct to be observed by

defence members, when that rule of conduct is required to be

observed by the general community for the good of society,

is not sufficiently connected with the regulation of the

defence forces and the good order and discipline of those

forces. Plainly Parliament can take the view that what is

good for society is good for the regulation of the defence

forces and can give effect to that view by creating service

9. Now, as in Re Nolan, we see no reason to resile from the view

which we expressed in Re Tracey. That is sufficient to dispose of the

prosecutor's main contentions. But even accepting the view of Brennan

and Toohey JJ in Re Tracey and Re Nolan the prosecutor cannot

10. The view expressed by Brennan and Toohey JJ was that the purpose

of criminal proceedings in the civil courts is wider than the purpose

of maintaining or enforcing service discipline. It is the latter

purpose, in their view, which marks the relevant limits of the defence

power. If one were able to draw the distinction which they sought to

draw (and it will be apparent that, with respect, we do not think that

to be possible), nevertheless, for the reasons given by Brennan and

Toohey JJ, the proceedings against the prosecutor in this case serve

the purpose of maintaining or enforcing service discipline.

11. Finally, some mention should be made of the reliance placed upon

the Canadian decision in Reg. v. Genereux ((12) (1992) 88 DLR (4th)

110.) by the prosecutor and by the Attorney-General for New South

Wales intervening to support his contentions. In that case a majority

of the Supreme Court of Canada held that the statutory provisions

governing courts martial were insufficient to guarantee their

independence from the executive. The decision was based upon s.11(d)

of the Canadian Charter of Rights and Freedoms, which guarantees a

person charged with an offence the right "to be presumed innocent until

proven guilty according to law in a fair and public hearing by an

independent and impartial tribunal". Section 11(d) has no counterpart

in this country and it is sufficient to express our agreement with the

conclusion reached by Brennan and Toohey JJ, in whose judgment the

relevant provisions of the Act are identified, that if there is to be

found outside Ch.III a requirement of sufficient independence on the

part of service tribunals exercising disciplinary power, that

requirement is met by a general court martial constituted in accordance

with the Act.

12. For these reasons we would refuse the application.

BRENNAN AND TOOHEY JJ The prosecutor holds the rank of

Wing Commander in the Royal Australian Air Force. He was charged

before a general court martial, constituted by the respondents, on two

counts under the Defence Force Discipline Act 1982 (Cth) ("the Act").

The first count, pursuant to s.47(1) of the Act, is that:

"Being a Defence member, at RAAF Base Richmond between

17 July 1990 and 25 June 1992 did dishonestly appropriate

the sum of $24,761.40, being the property of the

Commonwealth of Australia, with the intention of

permanently depriving the Commonwealth of Australia

thereof."

Section 47(1) provides that a defence member who dishonestly

appropriates property belonging to another person with the intention

of permanently depriving the other person of it is guilty of an

The second count, pursuant to s.29(1) of the Act, is that:

"Being a Defence member, at RAAF Base Richmond between

17 July 1990 and 25 June 1992 did not comply with a

lawful general order that was applicable to him by

failing to advise the approving authority namely the

Commanding Officer of the Administrative Support Squadron

Richmond, in writing of a change in circumstances that

could have affected his eligibility to receive temporary

rental allowance, namely the purchase by him as a joint

tenant with his wife on or about 17 July 1990 of a home at

58 Yaringa Road, Castle Hill, contrary to the provisions of

paragraph 51 of INDMAN 0503."

2. The second charge is mentioned for completeness and for the

light it throws on the circumstances of the first charge. However,

only the first charge is the subject of an application for a writ of

prohibition directed to the respondents "prohibiting them from acting

upon, giving effect to, proceeding further upon the trial of the

3. The prosecutor has already appeared before the general court

martial. He there took objection, in accordance with s.141 of the

Act, to the jurisdiction of that body to hear and determine the

charge against him. The judge advocate overruled the objection and

thereafter the prosecutor obtained an order from a Justice of this

Court directing him to apply by notice of motion to a Full Court for

a writ of prohibition prohibiting the respondents from proceeding

4. The basis of the application for prerogative relief is that,

the offence under s.47(1) being inherently criminal in character and

there being an appropriate civil court to determine the charge against

the prosecutor, the general court martial lacks jurisdiction.

Specifically, the prosecutor asserts that the offence with which he

is charged is substantially the same as an offence against s.71 of

the Crimes Act 1914 (Cth) and as an offence against s.178BA of

the Crimes Act 1900 (N.S.W.). He further contends that the

general court martial is not constituted in accordance with Ch.III

of the Constitution and has no authority to exercise the judicial

power of the Commonwealth. Moreover, the contention adds, a trial by

general court martial is not trial by jury as required by s.80 of the

Constitution.

5. The arguments as to the operation and constitutional validity of

the Act advanced by the prosecutor were considered by the Court in

Re Tracey; Ex parte Ryan ((13) [1989] HCA 12; (1989) 166 CLR 518.) and in Re Nolan;

Ex parte Young ((14) [1991] HCA 29; (1991) 172 CLR 460.). While differing views were

expressed by members of the Court on each of those occasions, no clear

majority view prevailed. The view we expressed in Re Tracey was ((15)

"(P)roceedings may be brought against a defence member or

a defence civilian for a service offence if, but only

if, those proceedings can reasonably be regarded as

substantially serving the purpose of maintaining or

enforcing service discipline".

It was a view we maintained in Re Nolan ((16) (1991) 172 CLR at 477.) .

There is nothing to be gained by rehearsing yet again the same

arguments that were addressed to the Court in those cases; nothing said

in that regard has persuaded us to a different view.

6. There was an additional argument by the prosecutor relating

to s.80 of the Constitution. It is clear from the judgments in

Re Tracey ((17) (1989) 166 CLR at 548-549, 578-579, 591, 596.) and Re

Nolan ((18) (1991) 172 CLR at 480.) that the trial of a defence member

for a service offence lies outside the judicial power of the

Commonwealth and does not attract the operation of s.80.

7. However, we should deal with a particular submission made on

behalf of the Attorney-General for New South Wales (an intervener)

that the conferral by the Act of jurisdiction on a general court

martial was, in terms of s.51(vi) of the Constitution, neither a law

for the "naval and military defence of the Commonwealth" nor a law for

"the control of the forces to execute and maintain the laws of the

Commonwealth". The submission contended that the second limb of

par.(vi) is not concerned with matters of service discipline and that

the first limb will not support the conferral of jurisdiction on

general courts martial because the Act is not reasonably proportionate

to the end which legislation may legitimately pursue.

8. In Re Tracey we referred to the second limb of s.51(vi) in these

"The traditional jurisdiction to discipline military

personnel has two aspects. The first is an authority to

compel military personnel to conduct themselves in a manner

which is conducive to efficiency and morale of the service;

the second is an authority to punish military personnel who

transgress the ordinary law of the land while acting or

purporting to act as military personnel. These two aspects

of the traditional jurisdiction are reflected in the two

limbs of s. 51(vi). If that sub-section supports a law

creating a military jurisdiction, the jurisdiction has two

aspects: first, to compel members of the armed forces to

conduct themselves in a manner which is conducive to the

efficiency and morale of the forces charged with the

defence of the Commonwealth and of the several States; and

secondly, to control persons who, being part of the armed

forces and acting or purporting to act in that capacity,

transgress the ordinary law of the land or fail to obey the

lawful directions of the Executive Government as to the

activities of the armed forces and the conduct of persons

who are part of the armed forces. This is the disciplinary

jurisdiction which, subject to the requirements of Ch III

..., s. 51(vi) will support."

9. Counsel for the Attorney-General drew heavily on the experience

of comparable provisions in the Constitution of the United States

with a view to showing that the true concern of the second limb of

s.51(vi) was with legislative control of the occasions on which the

Executive Government might use a military force to maintain internal

security. There is considerable historical support for that view

though we do not see that "control of the forces" is only within

legislative power when the forces are engaged in maintaining internal

security. There can be no doubt, in our view, that the Parliament has

power to legislate for the discipline of the Defence Force "to

maintain the operational efficiency of the Force and to ensure that

the standing Force, as an organized entity, is a buttress of, rather

than a threat to, internal security" ((20) Re Nolan (1991) 172 CLR at

10. We do not accept the argument that the relevant aspects of the

Act cannot be supported under the first limb of par.(vi). The end

to be pursued is, in the words of the Constitution, the "naval and

military defence of the Commonwealth". Essential to that defence is

the discipline of the armed forces. Traditionally, the maintenance

of that discipline has been through courts martial. The conferral of

jurisdiction on general courts martial is appropriate and adapted to

the end stated when prosecution before a court martial can reasonably

be regarded as substantially serving the purpose of maintaining or

11. The charge sheet identifies an offence by a defence member

at a RAAF Base, involving property of the Commonwealth of Australia.

The circumstances of the alleged offence, as detailed to the

general court martial, were that the prosecutor was posted to

33 Squadron RAAF Base, Richmond on 20 December 1988, initially as a

supernumerary and shortly thereafter as Commanding Officer of the

squadron. He was joined by his wife and three children. On

28 December 1988 he applied for a temporary rental allowance (TRA)

and at the same time applied for a rental ceiling increase. TRA is

available to defence members requiring temporary accommodation in the

course of their service duties. The amount of payment depends on the

size of the premises needed to house the family and also on the

defence member's rank. Importantly, it is a provision of the TRA

scheme that if a beneficiary buys his or her own premises and they

are suitable for housing the family, the beneficiary thereafter ceases

to be entitled to receive TRA benefits. Beneficiaries are required,

by an administrative order known as INDMAN 0503 ((21) An acronym for

"Industrial Manual" which is a manual of "Salaries and Conditions of

Service for the Permanent Forces" issued for members of the Defence

Force and giving effect to determinations made by the Minister pursuant

to s.58B(1)(b) of the Defence Act 1903 (Cth).), to notify the

12. The prosecutor's applications were approved by the

Commanding Officer of Administrative Support Command, Richmond,

the relevant approving officer. The prosecutor and his family then

moved into a four bedroom home in Glenhaven and he began receiving

TRA payments. On 17 July 1990 the prosecutor purchased a home in

Castle Hill. He did not notify the TRA scheme of his purchase. He

sold the house about a year later but in the interim let the house

while continuing to live in Glenhaven and receive TRA benefits. As

appears from a record of interview, the prosecutor claims that the

Castle Hill home was too small for his family and that he had been

told that he could continue to receive TRA benefits while living at

Glenhaven. This Court is not concerned with the accuracy of the

allegations against the prosecutor or with his answer to the charge

against him. This recital of facts serves only to throw light on the

13. In our view the proceedings in question can reasonably be

regarded as substantially serving the purpose of maintaining or

enforcing service discipline. The factors leading to that conclusion

are as follows. The charge involves a misappropriation of

"service property" as that term is defined in s.3(1) of the Act. The

TRA scheme giving rise to the charge is a scheme administered by the

Australian Defence Force for the benefit of defence members. The

authority for the TRA scheme is to be found in s.58B of the

Defence Act 1903 (Cth) and the elements of the scheme, in the form of

INDMAN 0503, constitute a Defence Instruction (General) which is a

"general order" as defined in s.3(1) of the Act. The prosecutor was

Commanding Officer of 33 Squadron and his alleged conduct related to a

scheme instituted for the benefit of defence members, including those

under the prosecutor's command. The effect on service morale and

discipline by a breach of the kind alleged committed by a commanding

officer might reasonably be regarded as substantial.

14. It is necessary to say something of another argument by the

prosecutor. While the argument turned mainly on the proposition

that the relevant provisions of the Act were not reasonably adapted

to the legitimate purposes to be served by the disciplining of the

Defence Force, it developed a wider dimension from the decision of the

Supreme Court of Canada in Reg. v. Genereux ((22) (1992) 88 DLR (4th)

15. In Genereux a member of the Canadian Forces was charged with

narcotics offences and desertion. He was convicted before a general

court martial but, on appeal, contended that his right to trial by an

independent tribunal, as guaranteed by s.11(d) of the Canadian Charter

of Rights and Freedoms, had been infringed ((23) Section 11(d)

guarantees a person charged with an offence, the right "to be presumed

innocent until proven guilty according to law in a fair and public

hearing by an independent and impartial tribunal".).

16. The Supreme Court of Canada (L'Heureux-Dube J dissenting)

held that trial before a general court martial convened under the

National Defence Act of Canada did not meet the requirement of a fair

and public trial by an independent and impartial tribunal. In the

view of five members of the Court ((24) Lamer CJC., Sopinka,

Gonthier, Cory and Iacobucci JJ concurring.), the essential

conditions for independence, namely, security of tenure, financial

security and institutional independence, were lacking. Particular

emphasis was placed on the possibility of perceived influence by the

Executive on the exercise of the tribunal's judicial function. Three

members of the Court applied those three conditions but held that some

connection between the Executive and those participating in a military

tribunal was inevitable ((25) Stevenson J, La Forest and McLachlin JJ

concurring.). L'Heureux-Dube J dissented, focussing on the military

nature of the tribunal and holding that it was not appropriate to apply

civilian criteria to evaluate the validity of a general court martial.

L'Heureux-Dube J considered that the three essential conditions

identified by the majority could not always be applicable to every

tribunal. Section 11(d) of the Canadian Charter of Rights and Freedoms

has no express analogy in our Constitution. If there were any analogy,

it would be found in Ch.III governing the courts in which the judicial

power of the Commonwealth is or can be vested. But a court martial

under the Act does not exercise the judicial power of the Commonwealth

((26) The King v. Bevan; Ex parte Elias and Gordon [1942] HCA 12; (1942) 66 CLR 452;

Re Tracey; Ex parte Ryan and Re Nolan; Ex parte Young.) and Ch.III has

no application to a law creating or conferring the jurisdiction of a

17. In any event, the constitution of a general court martial

pursuant to the Act answers the requirement of independence of a

service tribunal exercising disciplinary power. Eligibility for

membership of a court martial under the Act is in effect confined to

officers ((27) s.116.). A person is eligible to be the judge advocate

of a court martial if, and only if, he is a member of the judge

advocates' panel ((28) s.117.). The panel is constituted by officers

appointed by a chief of staff on the nomination of the Judge Advocate

General ((29) s.196(2).). An officer is not eligible for appointment

unless enrolled as a legal practitioner for not less than five years

((30) s.196(3).). The judge advocate fulfils the function performed

by a judge in a trial by jury ((31) s.134.). The position of Judge

Advocate General is dealt with in Pt XI of the Act. That appointment

is made by the Governor-General and may be made on a full-time or

part-time basis ((32) s.179(1).), for a term not exceeding seven years

((33) s.183(1).). A person shall not be appointed as Judge Advocate

General unless he is or has been a Justice or Judge of a federal court

or of a Supreme Court of a State or Territory ((34) s.180(1).).

18. A court martial is convened by a convening authority who is an

officer, or an officer included in a class of officers, appointed

by a chief of staff to be a convening authority ((35) s.102.). A

convening authority shall not appoint as a member, or as the judge

advocate, of a court martial an officer whom he believes to be biased,

likely to be biased, or likely to be thought on reasonable grounds to

be biased ((36) s.118.). The accused may object to a member of the

court martial or to the judge advocate on similar grounds ((37) s.121.).

The Judge Advocate General has security of tenure within the period

of his appointment. It is true that the members of the court martial

are chosen by the convening authority on an ad hoc basis but

historically this has always been the pattern according to which courts

martial have been appointed and necessarily so given the exigencies of

19. Part IX of the Act contains provisions for the review of a

decision of a court martial. The Defence Force Discipline Appeals Act

1955 (Cth) provides a right of appeal to the Defence Force Discipline

Tribunal against conviction, though only by leave of the Tribunal on a

ground that is not a question of law ((38) Defence Force Discipline

Appeals Act, s.20.).

20. The provisions of the Act to which we have referred establish

an independence on the part of courts martial commensurate with the

system of service tribunals for the discipline of the Defence Force.

DEANE J The argument of the present case, including the discussion

of the judgments of the Supreme Court of Canada in Reg. v.

Genereux ((39) (1992) 88 DLR (4th) 110.), has served to confirm the

conclusions which I expressed in Re Tracey; Ex parte Ryan ((40) [1989] HCA 12; (1989)

166 CLR 518.) about the limits of the judicial power 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. It has also served to reinforce the reasons which led me to

conclude, in Re Nolan; Ex parte Young ((41) [1991] HCA 29; (1991) 172 CLR 460.), that

I should continue to reject what I see as an unjustifiable denial of

the applicability of the Constitution's fundamental and overriding

guarantee of judicial independence and due process to laws of the

Parliament providing for the trial and punishment of members of the

armed forces for ordinary (in the sense of not exclusively

disciplinary) offences committed within the jurisdiction of the

ordinary courts in times of peace and general civil order.

2. The alleged offence against s.47 of the [Defence Force Discipline

](/cgi-bin/viewdoc/au/legis/cth/consol_act/dfda1982188/)Act 1982 (Cth) in the present case is not exclusively a disciplinary

offence. It is substantially the same as offences under both

Commonwealth ((42) Crimes Act 1914 (Cth), s.71.) and State ((43)

Crimes Act 1900 (N.S.W.), s.178BA.) legislation. That being so, the

general court martial lacks jurisdiction to entertain the proceedings

GAUDRON J This Court has twice considered the [Defence Force

](/cgi-bin/viewdoc/au/legis/cth/consol_act/dfda1982188/)Discipline Act 1982 (Cth)("the Act"), first in Re Tracey; Ex parte

Ryan ((44) [1989] HCA 12; (1989) 166 CLR 518.) and, later, in Re Nolan; Ex parte

Young ((45) [1991] HCA 29; (1991) 172 CLR 460.). In both cases, the central issue

was whether the Parliament can validly authorize service tribunals to

hear and determine charges against persons subject to military

discipline, where the service offence charged is also a criminal

offence under the general law ((46) Note, there was also an issue in Re

Tracey as to the validity of provisions ousting the jurisdiction of the

civil courts.). The same question arises in this case, this time

involving s.47(1) of the Act ((47) Section 47(1) provides that it is a

service offence for a defence member or a defence civilian dishonestly

to appropriate the property of another. Section 178BA(1) of the [Crimes

](/cgi-bin/viewdoc/au/legis/nsw/consol_act/ca190082/)Act 1900 (N.S.W.) covers the same conduct, as does s.71(1) of the

Crimes Act 1914 (Cth) in relation to the property of the

2. Neither of the earlier cases was determined by reference to a

principle or line of reasoning which commanded majority support. They

are, thus, of limited authority ((48) See Philip Morris Ltd. v.

Commissioner of Business Franchises (Vict.) [1989] HCA 38; (1989) 167 CLR 399 at

437-438, 481, 496-500 and the cases there cited.). Moreover, where

fundamental constitutional principle is involved, as in this and the

earlier cases, the Constitution must prevail over judicial

pronouncements on the subject ((49) See Stevens v. Head [1993] HCA 19; (1993) 176 CLR

433 at 461-462, 464-465 and the cases there cited.). Even so, I have

considered afresh whether Parliament can validly authorize service

tribunals, which plainly are not courts of the kind contemplated by

Ch.III of the Constitution, to hear and determine charges under the Act

in relation to acts or omissions which, although called "service

offences", are, in essence, the same or substantially the same as

3. I remain firmly of the view that persons who are subject to

military discipline cannot, on that account, be made "immune from

the operation of the general law .... or deprived of (its)

protection" ((50) Re Nolan (1991) 172 CLR at 497.). In particular,

they cannot, on that account, be deprived of the protection which flows

from Ch.III of the Constitution. For the reasons which I gave in Re

Nolan and which need not be repeated, the Act is invalid to the extent

that it authorizes a service tribunal to hear and determine the charge

laid against the prosecutor under s.47(1) of that Act.

McHUGH J The prosecutor seeks a writ of prohibition directed to

the respondents, who are the President and members of a general court

martial. The prosecutor asserts that the general court martial has no

jurisdiction to try charges brought against him for alleged offences

against ss.29(1) and 47(1) of the Defence Force Discipline Act 1982

(Cth) ("the Act"). The charge under s.29(1) alleges that the

prosecutor, who was a Wing Commander at the RAAF Base, Richmond "did

not comply with a lawful general order that was applicable to him by

failing to advise the approving authority, namely, the Commanding

Officer of the Administrative Support Squadron Richmond, in writing of

a change in circumstances that could have affected his eligibility to

receive temporary rental allowance". The charge under s.47(1) alleges

that the prosecutor "(b)eing a Defence member, at RAAF Base Richmond

... did dishonestly appropriate the sum of $24,761.40, being the

property of the Commonwealth of Australia, with the intention of

permanently depriving the Commonwealth of Australia thereof." The

prosecutor contends that the Act is invalid in so far as it purports

to authorise the general court martial to hear the charges. He

alleges that the members of the court martial are exercising the

judicial power of the Commonwealth and have not been appointed to

their offices in accordance with Ch.III of the Constitution. In my

2. In Re Tracey; Ex parte Ryan ((51) [1989] HCA 12; (1989) 166 CLR 518.), a majority of

this Court ((52) Mason CJ, Wilson, Brennan, Dawson and Toohey JJ,

held that the Act validly invested a Defence Force Magistrate with

jurisdiction to hear a charge that a Staff Sergeant in the Australian

Regular Army had made an entry in a service document with intent to

deceive, contrary to s.55(1)(b) of the Act. The majority of the Court

held that s.51(vi) of the Constitution authorised the Parliament to

invest the magistrate with that jurisdiction although he had not been

appointed in accordance with Ch.III of the Constitution. However, the

reasoning of the majority Justices differed in fundamental respects.

Mason CJ, Wilson and Dawson JJ held ((53) Re Tracey (1989) 166 CLR

at 545.) that a service tribunal need not be constituted in accordance

with Ch.III of the Constitution to hear and determine charges under

military law if the charge is sufficiently connected with the

regulation of the defence forces and their good order and discipline.

If the offence is so connected, it is for the Parliament to say whether

the offence is necessary for the regularity and discipline of the

defence forces. Brennan and Toohey JJ took a more limited view of the

power of the Parliament. Their Honours held ((54) ibid. at 570.) that

a service tribunal not appointed in accordance with Ch.III of the

Constitution had jurisdiction to hear a service offence only if the

proceedings could reasonably be regarded as substantially serving the

purpose of maintaining or enforcing service discipline. In determining

whether the proceedings could be so regarded, the accessibility and

appropriateness of hearing the charge in a civil court was a variable

factor to be weighed according to the circumstances.

3. In Re Nolan; Ex parte Young ((55) [1991] HCA 29; (1991) 172 CLR 460.), this Court by

majority ((56) Mason CJ, Brennan, Dawson and Toohey JJ, Deane and

Gaudron JJ and myself dissenting.) again rejected a challenge to the

power of the Parliament to invest a Defence Force Magistrate, who had

not been appointed in accordance with Ch.III of the Constitution, with

jurisdiction to hear charges under the Act. In Re Nolan, the defence

force member was charged with fourteen offences in relation to seven

documents. He was charged with two offences in respect of each

document. The first charge was that he had falsified a pay list,

contrary to s.55(1)(a) of the Act; the second charge was that he had

used a false instrument contrary to s.61(1) of the Act which adopts

s.135C(2) of the Crimes Act 1900 (N.S.W.). Mason CJ and Dawson J

said ((57) Re Nolan (1991) 172 CLR at 474.) that there was no reason

to resile from the view that they had expressed in Re Tracey. Brennan

and Toohey JJ also followed the views that they had expressed in Re

4. The divergent reasoning of the majority judges in Re Tracey and

Re Nolan means that neither of those cases has a ratio decidendi. But

that does not mean that the doctrine of stare decisis has no relevance

or that the decisions in those cases have no authority as precedents.

Because it is impossible to extract a ratio decidendi from either

of the two cases, each decision is authority only for what it

decided ((59) Dickenson's Arcade Pty. Ltd. v. Tasmania [1974] HCA 9; (1974) 130 CLR

177 at 188; Philip Morris Ltd. v. Commissioner of Business Franchises

(Vict.) [1989] HCA 38; (1989) 167 CLR 399 at 496.). But what is meant by saying that

a case, whose ratio decidendi cannot be discerned, is authority for

what it decided? It cannot mean that a court bound by that decision is

bound only by the precise facts of the case. Stare decisis and res

5. In my opinion, the true rule is that a court, bound by a previous

decision whose ratio decidendi is not discernible, is bound to apply

that decision when the circumstances of the instant case "are not

reasonably distinguishable from those which gave rise to the

decision" ((60) Scruttons Ltd. v. Midland Silicones Ltd. [1961] UKHL 4; (1962) AC 446

at 479 per Lord Reid.). In Great Western Railway Co. v. Owners of

S.S. Mostyn ("The Mostyn") ((61) (1928) AC 57.), Viscount Dunedin,

after concluding that no binding ratio decidendi could be extracted

from the House's decision in River Wear Commissioners v. Adamson ((62)

(1877) 2 App Cas 743.) said ((63) The Mostyn (1928) AC at 74.):

"Now, the judgment is binding. What, therefore, I think is

our duty on this occasion is to consider the statute for

ourselves in the light of the opinions, diverging as they

are, and to give an interpretation; but that interpretation

must necessarily be one which would not, if it applied to

the facts of Wear v. Adamson, lead to a different result."

6. This Court is not bound by its previous decisions but, in the

absence of special circumstances, its longstanding practice is to

follow its own decisions. However, the present case involves the

interpretation and application of provisions of the Constitution. The

doctrine of precedent is not as rigid in relation to decisions on the

Constitution as it is in relation to decisions under the general law.

A decision by the Court on a statute or the doctrines of the common

law or equity can be changed by the legislatures. A decision by the

Court on the Constitution can be changed only by referendum or by the

Court overruling the decision. In Australian Agricultural Co. v.

Federated Engine-Drivers and Firemen's Association of

Australasia ((64) [1913] HCA 41; (1913) 17 CLR 261 at 278.), Isaacs J declared:

"Our sworn loyalty is to the law itself, and to the organic

law of the Constitution first of all. If, then, we find

the law to be plainly in conflict with what we or any of our

predecessors erroneously thought it to be, we have, as I

conceive, no right to choose between giving effect to the

law, and maintaining an incorrect interpretation. It

is not, in my opinion, better that the Court should be

persistently wrong than that it should be ultimately right."

7. But as Gibbs J pointed out in Queensland v. The

Commonwealth ((65) [1977] HCA 60; (1977) 139 CLR 585 at 599.), this statement can be

misleading because, even in constitutional cases, no Justice of this

Court "is entitled to ignore the decisions and reasoning of his

predecessors, and to arrive at his own judgment as though the pages of

the law reports were blank". It is, as his Honour also pointed out,

only after the most careful consideration of the earlier decision and

after giving due weight to all the circumstances that a Justice may

give effect to his or her own opinion in preference to an earlier

8. In Re Nolan, I agreed with the judgment of Deane J in Re Tracey

and with his judgment in Re Nolan. I expressed the view ((66) Re Nolan

(1991) 172 CLR at 499.) that, unless a service tribunal is established

under Ch.III of the Constitution, it has jurisdiction to deal with an

"offence" only if that "offence" is exclusively disciplinary in

character or is concerned with the disciplinary aspects of conduct

which constitutes an offence against the general law. However, that

conclusion was rejected by a majority of Justices in both cases.

9. Although I remain convinced that the reasoning of the majority

Justices in Re Nolan and Re Tracey is erroneous, I do not regard that

as a sufficient reason to refuse to give effect to the decisions in

those cases. They are recent decisions of the Court where, after full

argument on each occasion, the Court upheld the validity of the Act in

circumstances where the facts are not readily distinguishable from the

present case. In both Re Tracey and Re Nolan, the Court held that,

consistently with Ch.III of the Constitution, a person, not appointed

in accordance with Ch.III, had jurisdiction under the Act to hear and

determine charges against a member of the defence forces. In each

case, the relevant charges involved allegations of dishonest conduct

by a member of the defence forces in the performance of his duty in

circumstances that were contrary to the good order and discipline

of the defence forces. In the present case, one charge alleges the

dishonest appropriation by a defence member of a large sum of money

belonging to the Commonwealth. The other charge alleges a failure

to comply with a lawful order that he advise a Commanding Officer at

an RAAF Base of any change in circumstances that could affect his

entitlement to receiving a temporary rent allowance. Obviously, the

10. Although a magistrate constituted the service tribunal in the two

earlier cases and a general court martial is the service tribunal in

the present case, I am unable to see any legally relevant distinction

between the three cases. Like cases should be decided alike.

Uniformity of judicial decision is a matter of great importance.

Without it, confidence in the administration of justice would soon

dissolve. As Lord Devlin has pointed out ((67) "The judge and the aequm et bonum in the Judge (1979) at 85.) : "A sense of injustice

is more easily aroused by the apprehension of unequal treatment than

11. Furthermore, for the Court now to hold that a service tribunal

had no jurisdiction to try this case after reaching the opposite

conclusion twice in the past five and a half years would defeat

the expectations of the Parliament and those concerned with the

administration of discipline in the defence forces. Both the

Parliament and those responsible for the administration of service

discipline could be fairly excused for thinking that the

constitutional question had been settled. Moreover, the two decisions

are confined to the special position of the defence forces and give

effect to a tradition that has existed in this country from its

earliest days. The decisions have no authority outside the situation

12. Accordingly, in my opinion, the Court should continue to follow

Re Tracey and Re Nolan in any case whose circumstances are not readily

distinguishable from the circumstances of those two decisions,

notwithstanding that they contain no binding ratio decidendi.