Tracey, Re; Ex parte Ryan [1989] HCA 12

Tracey, Re; Ex parte Ryan [1989] HCA 12 | Case summary | Zoe

[53]

During the course of argument, it was submitted that s. 61(1) of the Act exceeds the power conferred on the Parliament by s. 51(vi). It was argued that the possible operation of the section could encompass situations which had no sufficient connexion with the defence of the Commonwealth. Two preliminary points should be noted. First, the scope of s. 61(1) is severely limited by s. 63, which provides that, except with the consent of the Attorney-General, proceedings under the Act shall not be instituted for, inter alia, treason, murder, manslaughter, rape or bigamy, alleged to have been committed in Australia. Secondly, the pre-1900 legislative history of the power of courts-martial to try members of the forces for civil offences is relevant to a consideration of the scope of s. 51(vi). Already in 1900, when the Constitution was enacted, legislation both in the United Kingdom and in the Australian colonies contained provisions which conferred such power on courts-martial. In the United Kingdom, the gradual establishment, at the expense of the prerogative, of parliamentary control over the enforcement of military law saw a lessening of resistance to the intrusion of courts-martial or their predecessors into areas which had been the exclusive preserve of the civil courts. The Naval Discipline Act 1866 Imp. (29 & 30 Vict. c. 109) conferred jurisdiction on courts-martial to punish persons subject to the Act for offences against the law of England whether or not the offence was committed in England and authority was given for the offender to be punished either as for an act to the prejudice of good order and naval discipline not otherwise specified, or as he might be punished by the ordinary civil courts for the offence had it been committed in England: s. 45. Section 101 of that Act provided that nothing in the Act was to affect the authority of the ordinary courts. A provision similar to s. 45 of the Naval Discipline Act appeared as s. 41 of the Army Discipline and Regulation Act 1879 U.K. (42 & 43 Vict. c. 33) and s. 155 of the same Act provided that a person might be convicted in a civil court having been sentenced by a court-martial for the same offence, but that any military punishment that he had already undergone should be taken into account. The 1879 Act was repealed and re-enacted with some amendment in the Army Act 1881 U.K. (44 & 45 Vict. c. 58), but ss. 41 and 155 of the former Act appeared unchanged in the latter Act as ss. 41 and 162.

[65]

In any event, the desirability or undesirability of a person being exposed to double jeopardy sheds little light upon the question of the legislative power of the Commonwealth to enact s. 190(3) and (5). The section seeks to protect against double jeopardy and proceeds upon the assumption that statutory provision is necessary to achieve that objective. The method chosen in the provisions under challenge is to exempt persons from the operation of laws, for the most part State laws, which apply to those persons, by denying jurisdiction to the civil courts, for the most part State courts, to try cases brought under those laws. For our part we doubt whether provisions of that kind, which strike at the judicial power of the States, could ever be regarded as within the legislative capacity of the Commonwealth having regard to s. 106 of the Constitution, but it is sufficient to say that they clearly exceed the power to make laws with respect to the defence of the Commonwealth. No doubt if the imposition of criminal liability upon defence members or defence civilians in a particular instance or context were capable of interference with the defence of the Commonwealth, the Parliament would have power under s. 51(vi) to provide for the specific situation by enacting a law which did not involve the ouster of jurisdiction from the courts of the States. Such a law would prevail under s. 109 of the Constitution: see Pirrie v. McFarlane [40] . But sub-ss. (3) and (5) of s. 190 extend across the whole range of criminal conduct and apply whenever a person prosecuted for an offence in a civil court has been tried by court-martial for substantially the same offence or where a court-martial has taken into account an offence that is substantially the same. In our opinion it is clearly beyond the defence power and the incidental power of the Parliament to interfere in this manner with the exercise by State courts of their general criminal jurisdiction. Nor can the provisions be read down so as to apply only to federal courts. They are, therefore, wholly invalid.

[112]

The scope of military law and of special jurisdictions to enforce it has been a subject of controversy since feudal times. At first, armies were raised by the King only as occasion required and they were controlled during the war for which they were raised by the King's instructions which came to be known as Articles of War. When the Court of the Constable and Marshal was established, it tried offences committed by the military outside the country and had jurisdiction in some other military matters. The Lord High Constable and the Earl Marshal, who were the King's first and second military officers, were the ordinary judges of this Court. The Court of the Constable and Marshal was designed for a feudal army, called into existence for service in foreign wars as occasion required: Holdsworth, Martial Law Historically Considered, Law Quarterly Review, vol. 18 (1902) 117, at p. 119 . The Tudor monarchs sought to extend its jurisdiction to the prejudice of the peace-time jurisdiction of the ordinary courts of the land but it has been doubted whether this Court ever had jurisdiction to enforce military law within the Realm: see Manual of Military Law (1887), pp. 7-9; Clode, The Administration of Justice under Military and Martial Law (1872), p. 26 (hereafter Military Law). In his charge to the Grand Jury in Reg. v. Nelson and Brand [42] , Cockburn L.C.J. showed that it did have that jurisdiction, at least for a time. However, the Court fell into desuetude and lost one of its judges in 1521 with the beheading of the Duke of Buckingham, the Lord High Constable, whose office was not filled again: see also R. A. McDonald, The Trail of Discipline: The Historical Roots of Canadian Military Law, J.A.G. Journal, vol. 1 (1985) 1, at pp. 10-11 . During the reign of Charles I, the King issued commissions for the enforcement of military law in order to keep his soldiers from committing outrages and misdemeanours, the Commissioners being empowered to impose and carry out the capital penalty: Clode, The Military Forces of the Crown; Their Administration and Government (1869) vol. I, pp. 17-18 (hereafter Military Forces). These commissions were condemned by the Petition of Right, 1628: Holdsworth, A History of English Law, vol. I, pp. 575-576. Clause 7 of the Petition condemned both the assumption by military authorities of jurisdiction in capital cases arising within the Realm in times of peace and claims for exemption from the jurisdiction of the ordinary courts by those who were said to be punishable only by martial law. According to Holdsworth (Law Quarterly Review, vol. 18, at p. 120):

[113]

the Petition of Right has generally been taken to deal simply with the recent extensions which martial law had received, and to declare them illegal, leaving martial law only applicable to armies in time of war. But Cockburn L.C.J. (Nelson and Brand [43] ) attributes a broader effect to the Petition of Right: Two views have been propounded of this celebrated statute. The one that its effect is limited to commissions such as those of which the Commons had more immediate cause to complain, and especially to commissions issued in time of peace; the other that it was intended to prevent the exercise of martial law against the subject, under any circumstances, and even as against the soldier, except in the case of "armies in time of war". The latter would appear to have been the view of Lord Hale, and the words of the statute are certainly large enough to embrace the more general position; nor is it at all probable that the Commons, many of whom must have foreseen that, as things were then going on, armed resistance to the encroachments of the prerogative might become inevitable, intended to leave the subject, in the event of popular commotion, at the mercy of martial law. After the Restoration, the Orders and Articles of War of 1666 provided for the appointment of courts-martial and conferred on them general criminal jurisdiction over officers and soldiers, the jurisdiction being exclusive of the jurisdiction of the civil magistrates except for high treason or killing or robbing any person not being a soldier: Military Forces, pp. 54-55, 446-449. However, after Monmouth's rebellion, Colonel Kirke was directed in 1685 "that in all cases whatsoever, where the punishment is to be loss of life or limb, the Trial of any offender in His Majesty's pay be left to the Common Statute Law, the Articles of War being only to take place during the Rebellion which has now ceased": Military Forces, p. 478. Prior to the seventeenth century, standing armies were unknown. When the King was not engaged in foreign hostilities and when there was peace within the Realm, there was no necessity for military law. That position changed with the Restoration. The Manual of Military Law comments (p. 12, par. 16): when, after the Restoration in 1660, such a force was established, the necessity of special powers for the maintenance of decipline (sic) began to be felt. The growth of the army was, however, always regarded with jealousy, and Parliament was therefore unwilling to confer such powers on the Crown until it became absolutely necessary to do so. Thus, when William and Mary were invited to the throne the Declaration of Rights stated, and the statement was repeated in the Bill of Rights 1688 (1 Will. & Mary 2 c. 2), that "the raising or keeping a standing Army within the Kingdome in time of Peace unlesse it be with Consent of Parlyament is against law". Parliament gave consent for a standing army by the first Mutiny Act (1 Will. & Mary c. 5), which expired in November 1689 and was renewed annually thereafter (except during an hiatus), and at the same time made limited provision for the control of the standing army. The need for such a provision was stated by Lord Loughborough in the Court of Common Pleas in 1792 in Grant v. Gould [44] : The army being established by the authority of the legislature, it is an indispensable requisite of that establishment that there should be order and discipline kept up in it, and that the persons who compose the army, for all offences in their military capacity, should be subject to a trial by their officers. That has induced the absolute necessity of a mutiny act accompanying the army . It is one object of that act to provide for the army; but there is a much greater cause for the existence of a mutiny act, and that is, the preservation of the peace and safety of the kingdom: for there is nothing so dangerous to the civil establishment of a state, as a licentious and undisciplined army; and every country which has a standing army in it, is guarded and protected by a mutiny act. An undisciplined soldiery are apt to be too many for the civil power; but under the command of officers, those officers are answerable to the civil power, that they are kept in good order and discipline . The object of the mutiny act, therefore, is to create a court invested with authority to try those who are a part of the army, in all their different descriptions of officers and soldiers; and the object of the trial is limited to breaches of military duty. Even by that extensive power granted by the legislature to his majesty to make articles of war, those articles are to be for the better government of his forces, and can extend no further than they are thought necessary to the regularity and due discipline of the army. The object of establishing courts-martial being limited to the punishment of breaches of military duty, the ordinary processes of the criminal law were applied to persons subject to military discipline who were charged with offences against the ordinary criminal law. And in this they were entitled to the protection of the due process of the ordinary criminal courts, as the Mutiny Acts acknowledged. The recital to the successive Mutiny Acts contained what Cockburn L.C.J. in Nelson and Brand [45] called "the great constitutional dogma" that "whereas no man may be forejudged of life or limb, or subjected in time of peace to any kind of punishment by martial law, or in any other manner than by the judgment of his peers and according to the known and established laws of the realm". The words "in time of peace" were inserted in the time of Queen Anne and they are significant for they show that, when the ordinary courts were open, there was no occasion for the exercise of martial law (or military law as it is called in modern times). The editor's footnote to Nelson and Brand [46] explains the meaning of "in time of peace": According to Lord Coke, "the time of peace is when the courts are open. For, when they are, you may have a commission of Oyer and Terminer, and where the common law can determine a thing, the martial law ought not." And again he says - "When the courts are open martial law cannot be executed" [47] . Lord Hale also says - "The exercise of martial law, whereby any person shall lose his life, or members, or liberty, may not be permitted in time of peace when the King's courts are open." Both these writers, it is to be observed, are speaking of martial law, not with reference to its exercise for the purpose of suppressing a rebellion, but as a rude substitute for the law of the land when, in time of war, justice cannot be administered by the ordinary tribunals. Thus, Lord Loughborough in Grant v. Gould [48] declared that: In this country, all the delinquencies of soldiers are not triable, as in most countries in Europe, by martial law; but where they are ordinary offences against the civil peace, they are tried by the common law courts. Therefore it is totally inaccurate to state martial law as having any place whatever within the realm of Great Britain. The offences punishable by court-martial under the first Mutiny Act were clearly military offences - mutiny, sedition and desertion. Other offences were added in later Acts. One of the effects of the Mutiny Act, according to Clode (Military Forces, p. 206), was that "the trial of an offender by a civil court [was] conclusive of his guilt or innocence, and an answer to all further punishment, except that of dismissal from the service of the Crown". 1. (1867) Special Report, at pp. 93-95. 2. (1867) Special Report, at p. 66. 3. (1792) 2 H. Bl. 69, at pp. 99-100 [126 E.R. 434, at p. 450]. 4. (1867) Special Report, at p. 68. 5. (1867) Special Report, at pp. 69-70. 6. 3 Rushworth Collect., App., at p. 81. 7. (1792) 2 H. Bl., at p. 99 [126 E.R., at p. 450].

[136]

The discipline which naval and military law was intended to secure was no mere obedience by individual sailors and soldiers to lawful commands nor even their conformity with particular canons of naval or military behaviour. The most important aspect of the discipline which that law was intended to secure was the control of armed forces to ensure that their existence as a permanent armed body under hierarchical command should not threaten the peace and civil order of the Realm. This discipline was achieved primarily by subjecting members of the naval and military forces to the processes of the ordinary courts of law where that was practicable and convenient. It was not practicable and convenient to do so when the forces were deployed at sea or outside the Crown's dominions, nor would it have been practicable and convenient to do so within the Realm in times when the courts were closed because of hostilities. But the jurisdiction of the ordinary courts was not exclusive. Those who were subject to naval or military discipline were amenable not only to the exercise of the jurisdiction of theordinary courts but also to the exercise of the power to punish reposed in commanding officers and courts-martial, exercised within prescribed limits. The power to punish conferred by naval and military law extended to the most serious crimes in the criminal calendar, but those crimes were not to be tried by court-martial unless they were committed on active service outside the jurisdiction of the ordinary courts or in circumstances and places where the jurisdiction of the ordinary courts could not be conveniently exercised. The exercise of a disciplinary power to punish did not derogate from the jurisdiction of the ordinary courts but, if the ordinary courts convicted and punished an offender who was subject to naval or military discipline, he was not liable under naval or military law to any further punishment save dismissal from the service. Naval and military law thus created not only a system for punishing breaches of the laws peculiarly applicable to those forces but also a secondary system for enforcing the ordinary criminal law against naval and military personnel where it was not practicable or convenient for the ordinary courts to exercise their jurisdiction to do so. The scope of disciplinary authority necessarily extended to breaches of the ordinary criminal law, but the exercise of that authority was governed by the nature of the offence, the circumstances in which the offence was committed and the place and circumstances in which the disciplinary powers were invoked. If it was not practicable and convenient for the ordinary courts to exercise their jurisdiction - a situation which existed usually in relation to offences of a specific naval or military character or in relation to civil offences committed outside the territorial jurisdiction of the ordinary courts or in relation to naval or military personnel serving outside the Crown's dominions - the disciplinary powers were exercised.

[139]

The Parliament has legislated to provide for a permanent navy and a standing army and air force in times of peace as well as in times of war. As the creation of a military jurisdiction to discipline army personnel has been regarded since the first Mutiny Act to be the essential concomitant of the raising and keeping of a standing army, the power conferred by s. 51(vi) to provide for a permanent defence force prima facie includes a power to create a military jurisdiction to discipline members of that defence force. 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 next to be mentioned, s. 51(vi) will support. The legislative power to create a military jurisdiction to discipline persons who are part of the armed forces is conferred by s. 51(vi) subject to this Constitution and the question arises whether a law conferring jurisdiction on service tribunals to hear and determine charges of committing service offences and to impose penalties on conviction is part of "[t]he judicial power of the Commonwealth" within the meaning of that phrase in s. 71 of the Constitution. If it is, the jurisdiction can be validly vested only in a court mentioned in s. 71 of the Constitution - a Ch. III court - but, if it is not, there can be no objection to the vesting of that jurisdiction in service tribunals.

[141]

though the power contained in s. 51(vi) is subject to the Constitution, still the words "naval and military defence of the Commonwealth and the control of the forces to execute and maintain the laws of the Commonwealth", coupled with s. 69 and the incidental power (s. 51(xxxix)), indicate legislative provisions special and peculiar to those forces in the way of discipline and otherwise, and indeed the Court should incline towards a construction that is necessary, not only from a practical, but also from an administrative point of view. Williams J. said [50] : As the establishment of courts-martial is necessary to assist the Governor-General, as Commander-in-Chief of the naval and military forces of the Commonwealth, to control the forces and thereby maintain discipline, I think it must follow that the Commonwealth Parliament, like Congress, can legislate for such courts, although constitutional questions could arise as to the extent of the jurisdiction in the case of ordinary criminal as opposed to offences against discipline and duty which could be conferred upon them, but, as it would usually be impossible to separate such offences, a generous view would have to be taken on such questions. In R. v. Cox; Ex parte Smith [51] Dixon J. said: In the case of the armed forces, an apparent exception is admitted and the administration of military justice by courts-martial is considered constitutional: R. v. Bevan [52] . The exception is not real. To ensure that discipline is just, tribunals acting judicially are essential to the organization of an army or navy or air force. But they do not form part of the judicial system administering the law of the land. It is not uniformly true that the authority of courts-martial is restricted to members of the Royal forces. It may extend to others who fall under the same general military authority, as for instance those who accompany the armed forces in a civilian capacity. This construction of the Constitution was adopted by Gibbs J. in Administration of Papua and New Guinea v. Daera Guba [53] . However, this view was first expressed judicially in reference to the conditions of active naval service during the Second World War referred to in Elias and Gordon. It is appropriate now to consider whether the jurisdiction conferred on service tribunals by the Discipline Act for exercise in times of peace as well as in times of war and within Australia as well as outside Australia is sustained by the Constitution. The challenge to the validity of the Discipline Act is founded on three arguments: the range of service offences is so broad as to provide for the punishment of conduct unrelated to discipline of the defence force; the functions and powers of service tribunals are unmistakably judicial in character; and an exercise of the jurisdiction of service tribunals effectively ousts the jurisdiction of the ordinary civil courts. Questions of severability arise if the first or third argument is upheld. The challenge which invokes s. 80 of the Constitution can be left aside for consideration if the primary arguments fail. 1. (1942) 66 C.L.R. 452, at pp. 467-468. 2. (1942) 66 C.L.R., at p. 481. 3. (1945) 71 C.L.R. 1, at p. 23. 4. (1942) 66 C.L.R., at pp. 467, 468, 481. 5. (1973) 130 C.L.R. 353, at p. 453.

[145]

(1955) 350 U.S. 11, at p. 23. Douglas J. noted [57] that: The seventeenth century conflict over the proper role of courts-martial in the enforcement of the domestic criminal law was not, however, merely a dispute over what organ of government had jurisdiction. It also involved substantive disapproval of the general use of military courts for trial of ordinary crimes. The Court concluded "that the crime to be under military jurisdiction must be service connected" [58] . This test was founded on the terms of the Fifth Amendment which has no counterpart in our Constitution. A dissenting opinion was written for the minority by Harlan J. who cited [59] Alexander Hamilton as stating that Congress' power to prescribe rules for the government of the armed forces "ought to exist without limitation: Because it is impossible to foresee or define the extent and variety of national exigencies, or the corresponding extent and variety of the means which may be necessary to satisfy them". The minority opinion has now been endorsed by a majority of the Court in Solorio v. United States [60] . Rehnquist C.J., writing for the majority, found that the test of "service connexion" had "proved confusing and difficult for military courts to apply" [61] , as Harlan J. had foretold. The majority held that the jurisdiction of the military courts existed in conformity with the terms of the enactment which required no more than that the defendant be "a member of the armed services at the time of the offence charged" [62] . In a passage which parallels the view expressed by Williams J. in Elias and Gordon [63] , the majority reiterated an opinion [64] that " "judicial deference is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged" ". The overruling of O'Callahan [65] evoked a vigorous dissent from Marshall J. who, adhering to the test of "service connexion", accepted that that test "requires a careful, case-specific factual inquiry. But this is not beyond the capacity of the military courts" [66] .
1. (1953) 346 U.S. 137.
2. (1969) 395 U.S. 258, at p. 265.
3. (1955) 350 U.S. 11, at p. 23.
4. (1969) 395 U.S., at p. 268.
5. (1969) 395 U.S., at p. 272.
6. (1969) 395 U.S., at p. 277.
7. (1987) 97 Law. Ed. (2d) 364.
8. (1987) 97 Law. Ed. (2d), at p. 377.
9. (1987) 97 Law. Ed. (2d), at p. 378.
10. (1942) 66 C.L.R. 452.
11. (1987) 97 Law. Ed. (2d), at p. 376.
12. (1969) 395 U.S. 258.
13. (1987) 97 Law. Ed. (2d), at p. 387.

[154]

In the application of this test, much depends on the facts of the case and the outcome may depend upon matters of impression and degree, especially on the needs of service discipline. In determining whether it is reasonable to regard the maintenance or enforcement of service discipline as a substantial purpose of bringing proceedings, it is important to consider whether the jurisdiction of a competent civil court can conveniently and appropriately be invoked to hear and determine a corresponding civil court offence. Thus, in a remote part of Australia where no civil court can conveniently be approached to entertain a prosecution for a civil offence, it may be necessary to proceed against a defence member for a corresponding service offence in order to maintain discipline in the relevant unit of the armed forces although there would be no authority to do so if the unit were stationed closer to a town. By the same token, the jurisdiction of service tribunals would expand greatly in time of war or when the relevant unit is serving outside Australia. However, the test is an objective one. It must be applied by those in whom the Discipline Act vests certain procedural powers. The repositories include the Attorney-General (s. 63(1)), a convening authority (ss. 103(1), 129a(1)), a commanding officer (s. 110(1)) and a summary authority (ss. 109, 110(1), 111(2)) who may have a discretion to decide whether or not a step in proceedings for the prosecution of a service offence should be taken. Decisions that proceedings be taken on a charge of a service offence seem to be excluded by Sched. 1 of the Administrative Decisions (Judicial Review) Act 1977 Cth from review under that Act but the exclusion does not affect the factors which are relevant to the making of a valid decision. By whomsoever a decision to proceed or not to proceed is to be taken, the decision cannot empower service tribunals to exceed the jurisdiction which s. 51(vi) supports: Wilcox Mofflin Ltd. v. New South Wales [76] ; Inglis v. Moore [No. 2] [77] ; Hughes and Vale Pty. Ltd. v. New South Wales [No. 2] [78] . Any such decision is examinable under s. 75(v) of the Constitution. Section 51(vi) does not support a jurisdiction standing outside Ch. III of the Constitution except to the extent that the jurisdiction serves the purpose of maintaining or enforcing service discipline. That being the purpose which is essential to the jurisdiction, it is the purpose to which its exercise must be directed. The purpose of criminal proceedings in the civil courts is far wider and the exercise of jurisdiction by civil courts may properly embrace considerations which have no relevance to service discipline. It is the difference between the purpose of proceedings before service tribunals and the purpose of proceedings before civil courts that justifies the subjection of service personnel to the jurisdiction of both.

[163]

It is correct that the Constitution is based in its structure upon the separation of powers. It is true that the judicial power of the Commonwealth is reposed exclusively in the courts contemplated by Ch. III. It is further correct that it is a general principle of construction that the legislative powers should not be interpreted as allowing of the creation of judicial powers or authorities in any body except the courts which are described by Ch. III of the Constitution. Never the less, the Court upheld the validity of a resolution of the House of Representatives for the imprisonment of two men for contempt of the Parliament and the validity of the Speaker's warrant to carry the resolution into effect. In that case, the Court founded its decision on a construction of s. 49 of the Constitution which has no present relevance, but the case is an illustration of a broader principle. It shows that the validity of an exercise of power of a judicial nature by a federal instrumentality other than a Ch. III court depends upon the existence of a constitutional provision outside Ch. III which itself confers or authorizes the Parliament to confer that power on the instrumentality. In the present case, s. 51(vi) is the relevant provision. As the defence power authorizes the Parliament to establish the permanent armed forces of the Commonwealth and to employ them in different times and places and in a variety of circumstances, a grant of disciplinary powers to be exercised judicially by officers of the armed forces is - as it has historically been regarded - an essential concomitant. Just as the scope of s. 51(vi) changes according to time, place and circumstance, so does the jurisdiction of service tribunals. But, when that jurisdiction falls to be exercised, the power which is exercised is not the judicial power of the Commonwealth; it is a power sui generis which is supported solely by s. 51(vi) for the purpose of maintaining or enforcing service discipline. 1. (1955) 92 C.L.R. 157, at p. 166.

[166]

It may be that the soldiers who participated in it were guilty of mutiny and that they were properly dealt with by the military authorities for a mutiny, but it does not follow because an act or a series of acts may amount to a mutiny that they may not also amount to a riot. If that which is done by an ordinary civilian in common with two or more other civilians is a riot, it seems to me to be equally a riot when it is done by three or more soldiers. If a thing done by an ordinary citizen is an offence against the law it is equally an offence against the law if it is done by a soldier. The position of a soldier carries with it duties and gives some rights and privileges which civilians do not possess, but there is nothing in the status of a soldier which relieves him from the ordinary law relating to an ordinary citizen. The law has been laid down to that effect as I understand it over and over again. Lord Mansfield C.J. in Burdett v. Abbot [92] said that "a soldier is gifted with all the rights of other citizens, and is bound to all the duties of other citizens, and he is as much bound to prevent a breach of the peace, or a felony, as any other citizen". If he is bound to all the duties of other citizens, and he disregards those duties, he commits a crime just as any other citizen. On appeal Atkin L.J. [93] said: It is to be remembered that every person subject to military law in this realm is still subject to the criminal law, and a criminal offence committed by a soldier would be just as much an offence against the criminal law as if it were committed by a civilian. The same view was expressed by Starke J. in Pirrie v. McFarlane [94] : A soldier or a member of the air force does not cease to be a citizen: if he commits an offence against the ordinary criminal law, he can be tried and punished as if he were a civilian. And the majority of this Court pointed out in Groves v. The Commonwealth [95] : it is useful to recall that it is a feature of our system that military law has a quite restricted range of operation and is seen as an additional, rather than a replacement, set of rights and duties: Halsbury's Laws of England, 3rd ed., vol. 33, par. 1386. A defence member is and must remain liable to the ordinary criminal law; he does not acquire immunity merely because he has been dealt with by a tribunal other than the ordinary courts. An object of the defence power is the preservation of the civil government of the Commonwealth and the several States a characteristic of which is the administration of the criminal law by the ordinary courts. To the extent that the civil courts are prohibited from exercising their jurisdiction, that object is defeated. Sections 190(3) and 190(5) cannot be supported as provisions incidental to a valid grant of jurisdiction to service tribunals. What is incidental to the exercise of a legislative power is dependent on the nature of the power and, for reasons earlier given, the defence power must stop short of any interference with the exercise by the civil courts of their jurisdiction to administer the law of the land. It follows that sub-ss. (3) and (5) are invalid. It is unnecessary to consider the validity of sub-s. (4) which may be affected by different principles. 1. [1923] 2 K.B. 57, at p. 62. 2. (1812) 4 Taunt. 401, 449 [128 E.R. 384, at p. 403]. 3. [1923] 2 K.B., at p. 75. 4. (1925) 36 C.L.R. 170, at p. 227. 5. (1982) 150 C.L.R. 113, at p. 125.

[168]

the question usually is whether the operation or effect of the remainder of the Act upon the persons or things to which it would apply would be changed if the clauses, provisos and qualifications held bad were excised. In other words, in such a case the right question to ask may be whether liabilities or rights of a different tenor, measure or nature would result. See also Bank of N.S.W. v. The Commonwealth [97] . The amenability of a defence member to the jurisdiction of a service tribunal and his liability to punishment as for a service offence are, of course, the same whether or not he is also amenable to the jurisdiction of a civil court and liable to punishment as for a corresponding civil offence. To the question whether, if the immunity from punishment by a civil court fails, the operation of the remainder of the Discipline Act would impose liabilities of a different tenor, measure or nature, the answer must be: no. The immunity prescribed by s. 190(3) depends upon the imposition upon a defence member of punishment in respect of a service offence and the immunity prescribed by s. 190(5) depends upon the exercise by a service tribunal of its jurisdiction over a defence member. It is not possible to impute to the Parliament an intention that, if the immunity provisions be ineffective, the disciplinary regime created by the Discipline Act should fail. It might be an arguable question whether the Parliament would have intended the disciplinary regime to fail if it were not exclusive. The answer may have depended, as Dixon J. pointed out in Australian National Airways Pty. Ltd. v. The Commonwealth [98] , "on an intuitive understanding of the underlying purpose of the plan of the framer of the instrument". But, his Honour said, "it is precisely that uncertain and undesirable mode of solution that s. 15A supersedes". In any event, except where the penalty prescribed for a civil court offence is fixed by law, a judge sentencing the offender in a civil court would be bound to take into account any disciplinary penalty undergone or to be undergone by the offender in respect of the disciplinary offence. 1. (1939) 61 C.L.R. 634, at p. 652. 2. (1948) 76 C.L.R. 1, at p. 371. 3. (1945) 71 C.L.R. 29, at p. 93.

[173]

To study the provisions of Ch. III of the Constitution "is to see at once that it is an exhaustive statement of the manner in which the judicial power of the Commonwealth is or may be vested. No part of the judicial power can be conferred in virtue of any other authority or otherwise than in accordance with the provisions of Ch. III": per Dixon C.J., McTiernan, Fullagar and Kitto JJ., Reg. v. Kirby; Ex parte Boilermakers' Society of Australia [99] . Ours is a Constitution "which deals with the demarcation of powers, leaves to the courts of law the question of whether there has been any excess of power, and requires them to pronounce as void any act which is ultra vires", and which reposes the judicial power of the Commonwealth "exclusively in the courts contemplated by Ch. III": per Dixon C.J., McTiernan, Williams, Webb, Fullagar, Kitto and Taylor JJ., Reg. v. Richards; Ex parte Fitzpatrick and Browne [1] . "In this distinct and separate existence of the judicial power consists one main preservative of the public liberty; which cannot subsist long in any state, unless the administration of common justice be in some degree separated both from the legislative and also from the executive power. Were [judicial power] joined with the legislative, the life, liberty, and property of the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions, and not by any fundamental principles of law; which, though legislators may depart from, yet judges are bound to observe. Were it joined with the executive, this union might soon be an overbalance for the legislative. For which reason, by the statute of 16 C.I. c. 10 which abolished the court of star-chamber, effectual care is taken to remove all judicial power out of the hands of the king's privy council; who, as then was evident from recent instances, might soon be inclined to pronounce that for law, which was most agreeable to the prince or his officers. Nothing therefore is more to be avoided, in a free constitution, than uniting the provinces of a judge and a minister of state": Blackstone, Commentaries (1830), vol. 1, p. 269.

[184]

This traditional confinement of the nature and range of the disciplinary powers of military tribunals has long been rightly recognized as fundamental to our system of government: see, e.g., O'Callahan v. Parker [16] . It avoids the creation of a military class removed from the reach of the ordinary law and courts of the land: see, e.g., Burdett v. Abbot [17] ; Pitchers v. Surrey County Council [18] ; Pirrie v. McFarlane [19] ; Illawarra District County Council v. Wickham [20] . It protects the civilian from being subjected to military law and deprived of the benefits and safeguards of the administration of justice by independent courts. It limits the extent to which those subject to military authority are deprived of those benefits and safeguards to what is "thought necessary" for the maintenance and enforcement of military discipline and duty: Groves [21] ; and see also, e.g., MacKay v. The Queen [22] . It is that confinement of the nature and range of the traditional disciplinary powers of such tribunals which has alone enabled them to be rationally seen as not encroaching upon the ordinary administration of criminal justice by courts of law and as beyond the intended reach of Ch. III of the Constitution. In that regard, it should be borne in mind that, in 1900, the unanimous judgment of a very strong Court of Exchequer Chamber (Kelly C.B., Martin, Bramwell, Channell, Pigott, and Cleasby B.B.; Byles, Keating, Brett and Grove JJ.) in Dawkins v. Lord Rokeby [23] stood as authority for the proposition that, when the whole question involved in a cause related to a matter of military discipline ("a military question"), the cause was "not cognizable in a court of law" [24] for the reason that cases "involving questions of military discipline and military duty alone are cognizable only by a military tribunal" [25] . As a matter of legal principle, that perception of a dichotomy between the disciplinary functions of military tribunals and the jurisdiction of ordinary courts of law is open to serious question: see Gibbons v. Duffell [26] ; Groves [27] . As a matter of historical fact, however, the perception itself remains of undiminished importance both in understanding why it has been held by the Court that the framers of the Constitution could not have intended to include military disciplinary powers in the judicial power which Ch. III exclusively vested in courts which are independent of the Commonwealth Executive and in determining the nature and scope of the military disciplinary powers so excluded.

[186]

The actual powers which may properly be seen as encompassed by the traditional disciplinary powers of military tribunals may vary according to circumstances. For example, what lies within their legitimate ambit in relation to members of an armed force on active duty in a place beyond the reach of the ordinary criminal law and courts has long been seen as being more extensive than what lies within their legitimate ambit in relation to a member of a standing army within the jurisdiction of the ordinary domestic courts in time of peace. It is, however, unnecessary for the purposes of the present case to consider the extent to which special circumstances may expand the legitimate scope of traditional powers of military discipline or to seek to identify the precise content of those traditional powers. It suffices for present purposes to say that the disciplinary powers of military tribunals excluded from the reach of Ch. III of the Constitution are, in their application to members of armed forces within the jurisdiction of the ordinary courts in time of peace and general civil order, confined in the two fundamental respects already mentioned, namely, (i) they are essentially disciplinary in their nature in the sense of being concerned either with exclusively disciplinary offences or with the disciplinary aspects of other service-related offences ("confined to the area of military discipline"; "limited to breaches of military duty" (see Groves [28] , citing Lord Loughborough in Grant v. Sir Charles Gould [29] ) and (ii) they are supplementary in their character in 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. So to say is to do no more than recognize what was, in 1900, accepted as "the fixed doctrine" of the common law: see, e.g., Dicey, Introduction to the Law of the Constitution, 5th ed. (1897), p. 281. In the following pages (pp. 282-283) Professor Dicey was at pains to stress that a consequence of the restricted disciplinary nature of the legitimate powers of military tribunals under our system of government is that those powers do not displace the jurisdiction of the civil courts to deal with the general community aspects of criminal conduct:

[190]

Many offences which are punishable under civil law take on a much more serious connotation as a service offence and as such warrant more severe punishment. Examples of such are manifold such as theft from a comrade. In the service that is more reprehensible since it detracts from the essential esprit de corps, mutual respect and trust in comrades and the exigencies of the barrack room life style. Again for a citizen to strike another a blow is assault punishable as such but for a soldier to strike a superior officer is much more serious detracting from discipline and in some circumstances may amount to mutiny. Yet other service offences have no necessary relationship with the services or military discipline beyond the requirement that the offender be a defence member or a defence civilian. For example, s. 46 of the Act provides that any defence member or defence civilian "who is in possession of property that may be reasonably suspected of having been unlawfully obtained" is guilty of an offence punishable by a maximum term of imprisonment for six months. Section 47 provides that any defence member or defence civilian who dishonestly appropriates property belonging to another person with the intention of permanently depriving the other person of it or who receives property that has to his knowledge been so appropriated or that has otherwise been unlawfully obtained is guilty of an offence punishable by a maximum term of imprisonment for five years. Any room for doubting the comprehensive nature of the special system of criminal law which the Act establishes for defence members and civilians is removed by s. 61(1). That sub-section provides that any defence member or defence civilian is guilty of an offence if he does or omits to do anything which would be an offence if it took place in the Australian Capital Territory. Section 61(2) provides that the punishment for an offence against s. 61(1) is "if the relevant Territory offence is punishable by a fixed punishment - that fixed punishment" or "in any other case - a punishment not more severe than the maximum punishment for the relevant Territory offence". 1. (1982) 150 C.L.R. 113. 2. [1980] 2 S.C.R., at pp. 399-400.

[191]

The Act purports to divide among the "service tribunals" which it designates (i.e. general court-martial, restricted court-martial, defence force magistrate and summary authority) the exclusive jurisdiction to try a charge of any of the service offences which it creates: see the Act, s. 190(1). It is common ground that these service tribunals are not Ch. III courts. The Act provides that, where a service tribunal exercises its jurisdiction to deal with an offence against the Act, the defence member or defence civilian is rendered immune from the criminal jurisdiction of the ordinary courts in respect of any offence under the ordinary law that is "substantially the same offence" as that which has been dealt with by a service tribunal (s. 190(5)) or taken into consideration by a court-martial or defence force magistrate: s. 190(3). If the alleged offender is dealt with first by an ordinary criminal court for breach of the ordinary criminal law, he is rendered immune from the jurisdiction of the service tribunal in respect of an offence against the Act which is "substantially the same offence" as the offence of which he has been acquitted or convicted by an ordinary court: s. 144(3). As those provisions make clear, the criminal jurisdiction which the Act purportedly confers is intended to be comprehensive both in its subject-matter and its exercise in the sense that the service tribunals are entrusted with jurisdiction which (when exercised) encompasses exclusive judicial power to deal with all aspects of conduct covered by a general criminal code. That jurisdiction is not confined to those on overseas service or to time of war or civil crisis. In the circumstances which now exist, its essential operation is within the Commonwealth during a period of prolonged peace. To the extent that it overlaps and supplants the jurisdiction of the ordinary courts to deal with the non-disciplinary or general community aspects of criminal conduct, it plainly goes far beyond the traditional disciplinary powers of military tribunals. To that extent, it encroaches upon the judicial power of the Commonwealth which Ch. III of the Constitution reserves to the courts which it designates and is unconstitutional and invalid. Accordingly, it becomes necessary to consider whether, and if so to what extent, the legislation granting jurisdiction to the service tribunals under the Act can be saved from total invalidity by any process of severance or reading down.

[192]

It is convenient for the moment to put to one side what I have described as exclusively disciplinary offences and to consider the jurisdiction which the Act purports to confer on service tribunals to deal with the second category of service offences, namely, service-related offences involving conduct of a kind which will commonly constitute an offence under the ordinary criminal law if committed in an Australian State or Territory. As I followed the argument, it is not disputed that the alleged offence against s. 55(1)(b) (falsification of a service document) involved in the present case is within this category of offence: cf. Queensland Criminal Code (1899), ss. 486, 488 and note Crimes Act 1914 Cth, s. 67(b). If the jurisdiction to deal with such service-related offences could properly be restricted, by any process of severance or reading down, to a disciplinary jurisdiction, which did not supplant the jurisdiction of the ordinary criminal courts to deal with the general community aspects of such conduct, it would fall within the traditional judicial powers of military tribunals and escape the reach of Ch. III of the Constitution. There are, however, two insurmountable obstacles in the path of reading down the provisions of the Act in that way. First, the Act manifests a clear composite legislative intent to the effect that an offender (i) should not escape punishment for the non-disciplinary or general community aspects of criminal conduct but (ii) should be protected from being subjected to trial by both service tribunal and ordinary court for the same conduct. It would not be proper, in the context of that plain legislative intent, to transform a service tribunal's comprehensive jurisdiction to deal with both the disciplinary and general community aspects of criminal conduct to the exclusion of the ordinary courts into a supplementary jurisdiction to deal only with the disciplinary aspects of such conduct with the consequence that the offender was (depending upon the validity of s. 190(3), (4) and (5)) either immune from being punished for the general community aspects of that conduct or subjected to the jeopardy of a second trial (and, arguably, the possibility of a conflicting decision) in the ordinary courts. Secondly, it would be an unjustified and quite unjust exercise of judicial law-making to convert statutory provisions imposing maximum penalties as comprehensive and exclusive punishment for all aspects of specified conduct into statutory provisions imposing those same maximum penalties as supplementary military punishment for only the disciplinary aspects of such conduct. In that regard, it seems to me that to convert the penalty fixed by the Parliament as the appropriate comprehensive punishment for all aspects of criminal conduct into a supplementary military penalty for the disciplinary aspects (of that conduct) alone would be to make a new and different law which would be in actual contrariety to the law which the Parliament purported to enact and the legislative intent to be discerned in it.

[193]

The position is even a fortiori in relation to the jurisdiction which the Act purports to confer upon military tribunals to deal with offences committed within an Australian State or Territory which have no particular relationship with military discipline or duty beyond the fact that the alleged offender is a defence member or defence civilian. The general provision of s. 61(1) to the effect that any defence member or defence civilian is guilty of an offence if he does or omits to do anything which would be an offence if it took place in the Australian Capital Territory provides the best example of such offences. It is difficult to accept that the vast range of offences against the law of the Australian Capital Territory which are caught up by that provision could all involve some connexion with military discipline or military duty merely because they are committed by a defence member or defence civilian. However, even if it be accepted that any breach at all of the ordinary criminal law by a defence member or defence civilian gives rise to some question of military discipline or military duty, it is obvious that the disciplinary aspects of some classes of such offences will be, at most, of comparatively minor significance. Clearly, it could not have been the legislative intent that the fixed or maximum penalty (be it life imprisonment or some lesser punishment) which represented the Parliament's judgment of what constituted the appropriate comprehensive punishment for both the general community and the disciplinary aspects of such an offence should be, by some process of "reading down", applied as the appropriate supplementary military punishment for the comparatively insignificant disciplinary aspects alone. If, e.g., the view be taken that the provisions of s. 190(3) and (5) are beyond the legislative power conferred by s. 51(vi), the effect of such a reading down in the case of a s. 61 offence for which the penalty was a fixed one would be that the total of the penalties to which the offender was made liable (in a service tribunal and ordinary criminal court) would, in a case where the offence was committed in the Australian Capital Territory or in a State or Territory whose criminal law imposed a corresponding fixed penalty, be precisely twice that which the Parliament had intended. And that in a context where the Act manifests an unmistakable legislative intent that the judicial power of the service tribunals should be excluded in any case where a person is punished by the ordinary courts for the conduct in question.

[197]

It should also be mentioned that I have not found it necessary to deal with the prosecutor's argument that some of the relevant sections of the Act were, quite apart from any contravention of the provisions of Ch. III, beyond the legislative powers conferred upon the Parliament by s. 51 of the Constitution. In particular, it was argued that the provisions of s. 61 and s. 190(3), (4) and (5) of the Act could not properly be characterized as laws with respect to either the "naval and military defence of the Commonwealth and of the several States" or "the control of the forces to execute and maintain the laws of the Commonwealth": Constitution, s. 51(vi). My conclusion that the only jurisdiction validly conferred by the Act (at least in time of peace and civil order) in respect of local offences is confined to offences which are exclusively disciplinary in character effectively renders the question of the validity of s. 190(3), (4) and (5) immaterial for the purposes of the present case since such exclusively disciplinary offences are not of a kind to attract the competing jurisdiction of the ordinary criminal courts. Nor is it necessary that I express any view about the legislative competence of the Parliament under s. 51(vi) to create a "service offence" of the type contained in s. 61(1). Regardless of whether the provisions of that sub-section are within or beyond the ambit of the legislative power conferred by s. 51(vi), the provisions of the Act creating essentially disciplinary offences are, in my view, severable and clearly within that legislative power. I would, however, add that, if I had not been of the view that Ch. III of the Constitution precluded the conferral upon military tribunals of judicial powers which went beyond the traditional disciplinary powers of such tribunals, I would none the less have been of the view that, in the context of the general structure of the Constitution including the provisions of Ch. III, the grant of legislative power contained in s. 51(vi) did not authorize the conferral upon military tribunals of judicial powers which are supplantive rather than supplementary of the jurisdiction of the ordinary criminal courts or which are not confined to dealing with the disciplinary aspects of conduct.

[247]

The history of military law and the history of military tribunals, both comprehensively detailed in the judgment of Brennan and Toohey JJ., and the decisions in Bevan and Cox , point inexorably to the recognition within our legal system of a military judicial power in respect of persons subject to military law which is separate and distinct from the judicial power which a sovereign State has in respect of those persons subject to its general laws, the latter being descriptive of the nature of the judicial power comprehended in the expression "[t]he judicial power of the Commonwealth" as used in Ch. III of the Constitution: see Huddart, Parker & Co. Pty. Ltd. v. Moorehead [51] . However, neither history nor the course of judicial decision provides any authoritative basis for the demarcation of the limits of military judicial power, whether by reference to subject-matter, time, place or circumstance. The arguments made in the present case do not necessitate a consideration of those limits. The reference point of the prosecutor's arguments is the vesting of jurisdiction in service tribunals to hear and determine service offences which are substantially the same as civil court offences. Had some other reference point been selected, e.g., matters appropriate to be dealt with by the civil courts, different issues would arise. But the selected reference point and the fact that the case concerns the application of the Act to a defence member confine the issue in the present case to the constitutional relationship between, on the one hand, military judicial power and, on the other hand, the judicial power of the Commonwealth and the judicial power of the States over conduct by a defence member which, if proven, constitutes a service offence that is substantially the same as a civil court offence. It suffices here to note that Ch. III is premised on the continued existence of State courts (see Constitution ss. 71, 73 and 77) and, by ss. 106 and 108 of the Constitution, the Constitutions and the laws of the States respectively are preserved subject to the Constitution.

[249]

In putting the question in the above way I leave out of specific account the exclusion of the jurisdiction of the civil courts by s. 190(3), (4) and (5). It seems to me that, if the jurisdiction in issue may validly be vested in service tribunals, the exclusion of the jurisdiction of the civil courts, at least to the extent specified in s. 190(5), must be viewed as reasonably incidental to the vesting of that jurisdiction in service tribunals. That is so because, without a provision such as that contained in s. 190(5), (subject to ss. 63(1) and 144(3), and subject to such operation as the Act permits of principles relating to the fairness and integrity of the trial process which may require that no or no further proceedings be taken in a service tribunal if proceedings are commenced for substantially the same offence in a civil court) the same conduct may fall for adjudication by a service tribunal and by a civil court with the possibility of different results. That possibility may raise an operational inconsistency between the Act and a law which vests jurisdiction in a civil court to hear and determine a civil court offence which is substantially the same as a service offence for which a person has been convicted or acquitted by a service tribunal: see Victoria v. The Commonwealth [52] . Such an inconsistency would, by force of s. 109 of the Constitution, result in the State law being rendered inoperative, and, it would seem, constitute an implied repeal of any earlier Commonwealth law vesting jurisdiction in a civil court to hear a civil court offence which was substantially the same as the service offence. If there be such an inconsistency, s. 190(5) merely makes explicit the extent of the intended operational inconsistency. If there be no operational inconsistency, the exclusion of the possibility of different results by the exclusion of the jurisdiction of civil courts when a person has been convicted or acquitted by a service tribunal is reasonably incidental to the establishment of service tribunals with jurisdiction to hear and determine service offences which are substantially the same as civil court offences.

[255]

But the same practical and administrative considerations do not apply to conduct on the part of defence members in Australia. Given the availability of modern means of transport and communication, there is no practical or administrative difficulty in that conduct, which (if proved) is a civil court offence, being brought before the civil courts. True it is that one can envisage circumstances necessitating the immediate and continued military availability of the members of the defence forces. In those circumstances the first part of the power conferred by s. 51(vi) of the Constitution would authorize a law putting members of the forces beyond the reach of the civil courts for so long as the circumstances required. So too, in my view, there would be no doubt as to the validity of a law to that effect if its operation were conditional upon the existence of such circumstances. A law to that effect and having operation in those circumstances would not be a law on the subject of control of the forces, but on the subject of defence. The operation of a law to that effect would then be a circumstance in the light of which the vesting of jurisdiction in service tribunals to hear and determine as service offences charges of conduct then put beyond the reach of the civil courts would be capable of being viewed as appropriate and adapted to the control of the forces having regard to practical and administrative necessities. But there is no suggestion that any such special or extraordinary circumstance is relevant to the present matter. Accordingly, the question of appropriateness and adaptation falls for answer solely by a consideration of the operation of the Act in the context of the ordinary legal arrangements. Within that context, the provisions of the Act themselves, in my view, dictate that the vesting of jurisdiction in service tribunals to hear and determine service offences which are substantially the same as civil court offences cannot reasonably be regarded as appropriate and adapted to the object of control of the forces. In the first place s. 144(3)(a) posits the continued existence and exercise of jurisdiction by civil courts in respect of civil court offences save to the extent that it is displaced by s. 190(3), (4) and (5). Whether it be the case that a service tribunal may proceed with the hearing of a charge of a service offence until a conviction or acquittal is sustained in a civil court or whether it be the case that general principles (if not displaced by the Act) require a service tribunal to refrain from proceeding further once proceedings for substantially the same offence have been instituted in a civil court, an inconclusive hearing is not in any way conducive to the control of the forces. The exercise of jurisdiction by service tribunals only relevantly bears upon control of the forces to the extent that it is a concluded exercise.

[260]

The service offence created by s. 55(1)(b) of the Act (falsification of service document) is in a different category. To the extent that the act of falsification is done with a view to gain or with intent to cause loss or injury to another it constitutes clearly recognized offences under the general law. The service offence created by s. 55(1)(b) is also committed if there is an act of falsification with intent to deceive. The charge against the prosecutor is that he "at Townsville on 1 November 1986 with intent to deceive, did make an entry in a Movement Requisition (PY9) dated 1 November 1986 in connexion with the movement of he, the accused, that was false in a material particular in that it showed "MBR On Approved Leave until Date of March In", he, the accused, not having been approved the leave in question". Prima facie, the conduct charged amounts to the offence of forgery under s. 67(b) of the Crimes Act 1914 Cth, which makes it an offence to forge "any document issuable by, or deliverable to, any Department of the Commonwealth or any public authority under the Commonwealth, or any Commonwealth officer". Forgery is defined in s. 63 of the Crimes Act to include the making of a document, register or record which is false, knowing it to be false with intent that any person may, in the belief that it is genuine, be induced to do or refrain from doing any act whether in Australia or elsewhere. The allegation of intent to deceive in the charge brought against the prosecutor would seem to comprehend both knowledge of falsity and intent that a person might, in the belief of genuineness, be induced to do or refrain from doing an act as required by the definition of forgery in s. 63 of the Crimes Act. However, the precise facts are not before the Court and the question whether the charge laid against the prosecutor is substantially the same as a civil court offence was only touched upon briefly. In these circumstances the appropriate course in respect of this charge is to discharge the order nisi, leaving the question whether the offence charged is substantially the same as a civil court offence to be determined by the respondent.

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