High Court of Australia|1994-06-01|Before: Mason CJ

Re Tyler; Ex Parte Foley [1994] HCA 25; (1994) 181 CLR 18; (1994) 68 ALJR 499; (1994) 121 ALR 153 (1 June 1994)

EX PARTE FOLEY [1994] HCA 25; (1994) 181 CLR 18, (1994) 68 ALJR 499, (1994) 121 ALR 153

MASON CJ(1), BRENNAN(2), DEANE(3), DAWSON(1), TOOHEY(2), GAUDRON(4) AND McHUGH(5) JJ

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

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

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

Re Tyler; Ex Parte Foley [1994] HCA 25; (1994) 181 CLR 18; (1994) 68 ALJR 499; (1994) 121 ALR 153 (1 June 1994)

At a glance

Court

Decision date

Before

Source

Judgment (566 paragraphs)

Re Tyler; Ex Parte Foley [1994] HCA 25; (1994) 181 CLR 18; (1994) 68 ALJR 499; (1994) 121 ALR 153 (1 June 1994)

Legislation Cited (4)

Cases Cited (13)