THE JURISDICTIONAL OBJECTION - GROUND OF APPEAL (A)
27 It is contended in the first ground of appeal that there was insufficient connection between the charged conduct and the maintenance of military discipline to justify the lawful exercise of jurisdiction under the DFDA.
28 The appellant was first arraigned before COL Woodward DFM on 11 December 2014, at which time an objection was taken to jurisdiction. Applying the "service connection" test, that DFM held that there was sufficient connection to found jurisdiction. COL Woodward subsequently recused herself, and the appellant was again arraigned before WGCDR Lynham DFM, before whom the objection to jurisdiction was renewed and who again (on 20 April 2015) overruled the objection, essentially adopting the reasons which had been given by his predecessor.
29 As was submitted for the respondent, the appellant's contention assumes that for jurisdiction under the DFDA to be available, the "service connection" test must be satisfied - that is, the proceedings can reasonably be regarded as serving the purpose of maintaining and enforcing service discipline. But the appellant concedes that, if the "service status" test is applicable, then there could be no doubt as to jurisdiction - because the appellant is, self-evidently, a defence member. The state of the law as to the requisite nexus was summarised by McHugh J in Re Aird; Ex parte Alpert (2004) 220 CLR 308, as follows:
"[31] A trilogy of cases in this Court has held that, although a court martial tribunal exercises judicial power, it does not exercise the judicial power of the Commonwealth. That is because the power to make laws with respect to the defence of the Commonwealth under s 51(vi) of the Constitution contains the power to enact a disciplinary code that stands outside Ch III of the Constitution [Re Tracey; Ex parte Ryan (1989) 166 CLR 518; Re Nolan; Ex parte Young (1991) 172 CLR 460; Re Tyler; Ex parte Foley (1994) 181 CLR 18]. In Re Tracey; Ex parte Ryan, a majority of the Court held that a Defence Force magistrate, not appointed in accordance with Ch III of the Constitution, had jurisdiction to hear a charge of making an entry in a service document with intent to deceive, as well as two charges of being absent without leave. Mason CJ, Wilson and Dawson JJ held that ''it is not possible to draw a clear and satisfactory line between offences committed by defence members which are of a military character and those which are not'' [Re Tracey (1989) 166 CLR 518 at 544]. Their Honours said [Re Tracey (1989) 166 CLR 518 at 545]:
'It is open to Parliament to provide that any conduct which constitutes a civil offence shall constitute a service offence, if committed by a defence member. As already explained, the proscription of that conduct is relevant to the maintenance of good order and discipline in the defence forces. The power to proscribe such conduct on the part of defence members is but an instance of Parliament's power to regulate the defence forces and the conduct of the members of those forces. In exercising that power it is for Parliament to decide what it considers necessary and appropriate for the maintenance of good order and discipline in those forces.'
[32] Two other Justices in the majority in Re Tracey (Brennan and Toohey JJ) took a different view of the power of Parliament to invest service tribunals with jurisdiction to hear offences. Brennan and Toohey JJ said that two constitutional objectives had to be reconciled [Re Tracey (1989) 166 CLR 518 at 569-570]. The first was dictated by s 51(vi) which empowered the parliament to give service authorities a broad authority to impose discipline on defence members and defence civilians. The second was dictated by Ch III and s 106 of the Constitution. It consisted in the recognition of the pre-ordinate jurisdiction of the civil courts and the protection of civil rights which those courts afforded civilians and defence members including defence civilians who are charged with criminal offences. Their Honours said [Re Tracey (1989) 166 CLR 518 at 570]:
'To achieve these objectives, civil jurisdiction should be exercised when it can conveniently and appropriately be invoked and the jurisdiction of service tribunals should not be invoked, except for the purpose of maintaining or enforcing service discipline.'
[33] They went on to say that "proceedings 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" [Re Tracey (1989) 166 CLR 518 at 570]. Brennan and Toohey JJ said that the power conferred on service tribunals was "sui generis which is supported solely by s 51(vi) for the purpose of maintaining or enforcing service discipline" [Re Tracey (1989) 166 CLR 518 at 574]. Deane and Gaudron JJ, the other justices who heard Re Tracey, dissented.
[34] The division of opinion that arose in Re Tracey continued in Re Nolan; Ex parte Young [(1991) 172 CLR 460], a case decided after Wilson J had left the Court. In Re Nolan, a majority of the Court held that a Defence Force magistrate, not appointed in accordance with Ch III, had jurisdiction to hear charges concerning falsifying and using a service document - a pay list. Mason CJ and Dawson J said that they saw no reason to resile from the views that they had expressed in Re Tracey as to the scope of legislative power [Re Nolan (1991) 172 CLR 460 at 474]. They considered that it was open to the Parliament to provide that any conduct which constitutes a civil offence should constitute a service offence if committed by a defence member. Brennan and Toohey JJ also maintained the views that they had expressed in Re Tracey. They said that "the relevant power conferred by s 51(vi) does not extend to the making of a law to punish defence members and defence civilians for their conduct unless the proceedings taken in order to punish them can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline" [Re Nolan (1991) 172 CLR 460 at 484]. Later their Honours said [Re Nolan (1991) 172 CLR 460 at 489]:
'Service discipline is not merely punishment for wrongdoing. It embraces the maintenance of standards and morale in the service community of which the offender is a member, the preservation of respect for and the habit of obedience to lawful service authority and the enhancing of efficiency in the performance of service functions. Here, the charges are obviously 'service connected' but that is not the ultimate criterion though it is an important element in determining whether proceedings on those charges could reasonably be regarded as serving the purpose of maintaining and enforcing service discipline.'
Deane and Gaudron JJ again dissented, holding to the views that they had expressed in Re Tracey. I agreed with the judgment of Deane J.
[35] As I explained in the third of the trilogy - Re Tyler; Ex parte Foley - the "divergent reasoning of the majority judges in Re Tracey and Re Nolan means that neither of those cases has a ratio decidendi" [Re Tyler (1994) 181 CLR 18 at 37]. In Re Tyler, a majority of the Court held that a general court martial had jurisdiction to hear a charge against an Army officer that he had dishonestly appropriated property of the Commonwealth. Re Tyler also failed to obtain a majority of justices in favour of any particular construction of the defence power in relation to offences by service personnel.
[36] The difference between the views of Mason CJ, Wilson and Dawson JJ and on the other hand Brennan and Toohey JJ in these cases is the difference between the "service status" view of the jurisdiction and the "service connection" view of that jurisdiction. The "service status" view - which is now applied in the United States [Solorio v United States (1987) 483 US 435] - gives a service tribunal jurisdiction over a person solely on the basis of the accused's status as a member of the armed forces. The "service connection" view of the jurisdiction requires a connection between the service and the offence. It was the view formerly accepted in the United States [O'Callahan v Parker (1969) 395 US 258]. However, Solorio v United States rejected the "service connection" view. In Relford v US Disciplinary Commandant [401 US 355 (1971) at 365], the Supreme Court had referred to twelve factors which the Court considered O'Callahan v Parker [(1969) 395 US 258 at 273-274] had emphasised in requiring a service connection. They were:
'1. The serviceman's proper absence from the base.
2. The crime's commission away from the base.
3. Its commission at a place not under military control.
4. Its commission within our territorial limits and not in an occupied zone of a foreign country.
5. Its commission in peacetime and its being unrelated to authority stemming from the war power.
6. The absence of any connection between the defendant's military duties and the crime.
7. The victim's not being engaged in the performance of any duty relating to the military.
8. The presence and availability of a civilian court in which the case can be prosecuted.
9. The absence of any flouting of military authority.
10. The absence of any threat to a military post.
11. The absence of any violation of military property.
One might add still another factor implicit in the others:
12. The offense's being among those traditionally prosecuted in civilian courts.'
[37] The argument of the parties in the present case accepted, sometimes expressly but more often by assumption, that the general words of s 51(vi) of the Constitution must be read down to comply with Ch III of the Constitution, as interpreted in the trilogy of Tracey, Nolan and Tyler. Since those cases, it seems to have been generally accepted [Tracey, "The Constitution and Military Justice", paper delivered at the Annual Public Law Weekend: "The Australian Constitution in Troubled Times", Canberra, 8 November 2003, p 13] - indeed it was accepted by the Judge Advocate in the present case - that the proper test is the "service connection" test and not the "service status" test."
30 About that passage, the following observations may be made. First, the so-called "service connection" test requires, and requires only, that the proceedings can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline; while, in determining that question, "service connection" is an important aspect, it is not the ultimate criterion. Secondly, the factors listed by McHugh J (extracted from Relford v US Disciplinary Commandant 401 US 355 (1971)) are factors the existence of which may contribute to a finding of absence of service connection; however, as McHugh J explained, those factors are not exhaustive (Re Aird at 324 [45]), and it does not follow that it is necessary to exclude all or any of them in order to establish that proceedings can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline. Thirdly, the "general acceptance" since the trilogy cases of the "service connection" test has proceeded on the basis that it is the "lowest common denominator" and that if it is satisfied, the "service status" test will necessarily be satisfied; it has not proceeded on the basis of any judgment that it is necessarily the correct or preferable view.
31 The appellant pointed to the circumstances that the charged conduct took place when all concerned were off duty, on a public holiday, at a private dwelling, in town, not on base, and in a purely social and domestic setting. The appellant's submissions stressed that the offence was complete when it was committed in those circumstances, and jurisdiction could not be attracted by later developments - such as any need to provide counselling for the complainant, or to make administrative arrangements for her posting because of difficulties that might be encountered by her working in close proximity to the appellant.
32 In his powerful if somewhat polemical dissent in Solorio v United States 483 US 435 (1987), Marshall J (with whom Brennan J and, in this respect, Blackmun J agreed) - who would have retained the "service connection" test - explained why (in his Honour's view) it was not satisfied in that case, which concerned sexual abuse by the petitioner of children of fellow service personnel (483 US 435 at 462-463, emphasis added):
"Petitioner's offenses did not detract from the performance of his military duties. He committed these crimes while properly absent from his unit, and there was no connection between his assigned duties and his crimes. Nor did petitioner's crimes threaten people or areas under military control. The crimes were committed in petitioner's private home in the civilian community in Juneau, where there is not even a base for Coast Guard personnel. Petitioner's acts were not likely to go unpunished; the court-martial judge determined that the offenses were of a type traditionally prosecuted by civilian courts, that such courts were available, and that, while the Alaska courts had deferred prosecution in light of the court-martial proceeding, the State had not declined to prosecute the offenses. Nor did the crimes implicate any authority stemming from the war power; they were committed within the territorial United States while the Nation was at peace.
Moreover, the crimes caused no measurable interference with military relationships. Though the victims were dependents of Coast Guard members, the court-martial judge found that there was only de minimis military interaction between petitioner and the fathers of the victims, and that the relationships between petitioner and the families of the victims "were founded primarily upon the ages and activities of the children and additionally upon common sporting interests, common spousal interest and employment and neighborly relationships", rather than the connection of petitioner and the families through the Coast Guard. Because the crimes did not take place in an area within military control or have any effect on petitioner's military duties, their commission posed no challenge to the maintenance of order in the local command. The military judge found that the Government had not demonstrated any impact of the offenses on "morale, discipline, [or] the reputation or the integrity of the Coast Guard in Juneau". The only connection between the military and the offenses at issue was the fact that the victims were military dependents. But the military judge found explicitly that the military association of petitioner and the victims' fathers did not facilitate petitioner's crimes, and that "[t]he impact apparent in this case, that is, on the parents and the victims themselves is no different than that which would be produced by a civilian perpetrator"."
33 Even in that minority view of the service connection test there are apparent important distinctions with the present case, as appears from the emphasised passages in the above extract. Here, the victim was a military member, who worked in close proximity to the appellant, on the same base, and shared the same mess. The relationship between them was founded on their common service in the Australian Army. The conduct was calculated to affect their future ability to work together under those conditions. And whatever might have been the position in the United States in 1987, in Australia in 2014 such conduct if it became known would inevitably impact on the morale and reputation of the Army and the Australian Defence Force ("the ADF"), in Toowoomba and elsewhere.
34 The minority judgment in Solorio appears to insist that there be evidence that conduct has adversely impacted on good order, discipline, morale, welfare or reputation of a service or force element if its effect in that regard is to be relied on to establish service connection. However, whether conduct constitutes a service offence must be capable of ascertainment when it is committed, and cannot depend on its subsequent effect in fact. As the appellant argued, upon assumption that the service connection test governs, conduct which has no sufficient service connection when committed cannot be converted into a service offence by later events.
35 Nonetheless, the requisite impact on service discipline may lie in the inherent potential of the conduct to have future consequences in the service environment. If conduct is calculated to impact adversely on the good order, discipline, morale, welfare or reputation of a service or force element, that will tell in favour of a conclusion that the requisite service connection exists, regardless of whether or not such impact in fact eventuates. What is important is not its effect in fact, but its potential to have such an effect.
36 Sexual misconduct by one defence member against another - particularly when posted to the same location - is calculated to affect their working and service relationship, as well as the reputation of the Army and the ADF. This was referred to by McHugh J in Re Aird, in the following terms (at 323-324 [42] and 325 [45]):
"… And it need hardly be said that other members of the Defence Force will be reluctant to serve with personnel who are guilty of conduct that in the Australian Capital Territory amounts to rape or sexual assault. This may be out of fear for personal safety or rejection of such conduct or both. Such reluctance can only have a detrimental effect on the discipline and morale of the armed services.
…
… In any event, as Brennan and Toohey JJ pointed out in Re Tracey, a service connection is evidence of but not definitive of what is necessary to maintain discipline and morale in the armed forces. A soldier who rapes another person undermines the discipline and morale of his army. He does so whether he is on active service or recreation leave."
37 In White v Director of Military Prosecutions (2007) 231 CLR 570, CPO White had been charged with seven Territory offences, involving acts of indecency or assault on five lower-ranking female members of the ADF, which occurred when the accused and the complainants were off duty, not in uniform, and away from Commonwealth premises. It was not suggested that there was insufficient service connection to found jurisdiction: see (2007) 231 CLR 570 at 580 [3] (Gleeson CJ), 650 [244] (Callinan J, with whom Heydon J agreed). In Lane v Morrison (2009) 239 CLR 230, LS Lane had been charged with an act of indecency after a day of drinking and golf while on a recruitment drive; he was off duty, out of uniform and on private property, but the suggestion that jurisdiction under the DFDA would not extend to such circumstances was rejected by French CJ and Gummow J ((2009) 239 CLR 230 at 251 [63]).
38 In our view, sufficient service connection is amply established in the present case. Both the complainant and the appellant were members of the ADF, in the Australian Regular Army. Both were members of the Royal Australian Signals, a relatively small corps. They knew each other through their service. From 2011 and at the time of the conduct charged, the complainant was posted to the Defence Force School of Signals, Electronic Warfare Wing, Borneo Barracks, Cabarlah. The appellant was, at the time of the conduct, posted to 7th Signal Regiment, also located at Borneo Barracks. While they were not then posted to the same unit and were not in the same chain of command, they were on the same base, in close geographical proximity, and shared the same mess, where they would inevitably encounter each other and be expected to socialise. The DFM adopted the reasoning of COL Woodward as to the jurisdictional question. COL Woodward, and hence the DFM, found:
"[T]he 7th Signal regiment at Cabarlah is a reasonably small and specialised unit located on its own, outside of Toowoomba. Although called a regiment, it is not the size of an infantry regiment. Members of the unit undergo specialised training that can only be generally utilised in a Signals unit. It would be clear that the size of the unit (and the corps) would lead to an inference being drawn that everyone would be acquainted with each other at some level, particularly at the Sergeant level, when they would both be members of the Sergeant's mess, irrespective of the particular part of the regiment they were posted to."
39 In addition, the function, though off base, was attended by defence members and their families: all the guests at the barbeque were ADF members (and their families).
40 Reference was made to a number of circumstances that arose after the charged conduct. At least on the minority view in Solorio, evidence of such matters is necessary to establish service connection; but the better view is that it is the potential of the conduct and not its actual effect that is significant, and that subsequent events cannot change the legal character of the conduct. However, subsequent events can illustrate the potential inherent in the conduct to have adverse service-related impacts, and it is in that way that these matters are significant. Thus, that the complainant made a complaint to another service member in the same unit, so that her allegations became known within the small unit; that the complainant was fearful after the incident that she would encounter the appellant when walking around the barracks; the consequent necessity to repost her because of the difficulties that would be encountered by her working in close proximity to the appellant; and her request not to return to her specialty of Electronic Warfare so long as the appellant was in that trade, are relevant as proof, if it be needed, of the inherent potential of the charged conduct to have adverse service-related impacts. The inherent potential of such conduct to impact adversely in the service environment is exacerbated when the members are members of the same small corps, working in the same physical environment. As the respondent submitted, because of their pre-existing relationship and the relatively small size of Borneo Barracks, this incident could never have been "left at the front gate".
41 It follows that proceedings for the punishment of such conduct plainly serve the purpose of maintaining or enforcing service discipline.
42 The respondent submitted that, regardless of satisfaction of the "service connection" test, jurisdiction should be upheld on the footing of the "service status" test. As mentioned above, the "service connection" test has been generally applied since the trilogy cases, not by way of rejection of the "service status" test, but because it represents the "lowest common denominator", and in the factual situations that have arisen it has not been necessary to resort to "service status" alone to found jurisdiction. As explained in the above extract from the judgment of McHugh J in Re Aird, the "service status" test was preferred by Mason CJ, Wilson and Dawson JJ in Re Tracey; Ex parte Ryan (1989) 166 CLR 518, and adhered to by Mason CJ and Dawson J in Re Nolan; Ex parte Young (1991) 172 CLR 460. Its rationale, as expressed by Mason CJ, Wilson and Dawson JJ in Re Tracey (at 543-544), is this:
"Suffice it to say that both as a matter of history and of contemporary practice, it has commonly been considered appropriate for the proper discipline of a defence force to subject its members to penalties under service law for the commission of offences punishable under civil law even where the only connexion between the offences and the defence force is the service membership of the offender. Such legislation is based upon the premise that, as a matter of discipline, the proper administration of a defence force requires the observance by its members of the standards of behaviour demanded of ordinary citizens and the enforcement of those standards by military tribunals. To act in contravention of those standards is not only to break the law, but also to act to the prejudice of good order and military discipline. It is appropriate that such conduct should be punished in the interests not only of the community but of the defence force as well. There can be little doubt that in war-time or upon overseas service such considerations warrant the treatment of civil offences as service offences and it is open to the legislature to regard the position in peace-time as warranting similar treatment. Good order and military discipline, upon which the proper functioning of any defence force must rest, are required no less at home in peace-time than upon overseas service or in war-time."
43 The service status test has been adopted by the United States Supreme Court in Solorio - overruling its earlier preference for the service connection test in O'Callahan v Parker 395 US 258 (1969). This appears to have been dependent primarily on giving full and unconstrained effect to the constitutional power of Congress "[t]o make Rules for the Government and Regulation of the land and naval Forces", but was also supported by policy considerations (483 US 435 at 449-450):
"Since O'Callahan and Relford, military courts have identified numerous categories of offences requiring specialized analysis of the service connection requirement. For example, the courts have highlighted subtle distinctions among offences committed on a military base, offences committed off-base, offences arising from events occurring both on and off a base, and offences committed on or near the boundaries of a base. Much time and energy has also been expended in litigation over other jurisdictional factors, such as the status of the victim of the crime, and the results are difficult to reconcile. The confusion created by the complexity of the service connection requirement, however, is perhaps best illustrated in the area of off-base drug offences. Soon after O'Callahan, the Court of Military Appeals held that drug offences were of such 'special military significance' that their trial by court-martial was unaffected by the decision: United States v Beeker, 18 U.S.C.M.A. 563, 565; 40 C.M.R. 275, 277 (1969). Nevertheless, the court has changed its position on the issue no less than two times since Beeker, each time basing its decision on O'Callahan and Relford."
(Footnotes omitted.)
44 While the High Court cases subsequent to the trilogy cases have not presented the necessity to resolve the issue - because "service connection" was established in any event - there are indications favourable to the "service status" test in Re Aird, in the judgment of Gummow J - with whose judgment Gleeson CJ and Hayne J expressed agreement. While stating that "this [was] no occasion to choose between 'the service connection' or any other 'test'", his Honour made the following relevant observations:
"[65] Two passages from the joint judgment of Mason CJ, Wilson and Dawson JJ in Tracey make what for the present case is the essential point. The first passage followed acceptance by their Honours of the premise that [Re Tracey (1989) 166 CLR 518 at 543]:
'as a matter of discipline, the proper administration of a defence force requires the observance by its members of the standards of behaviour demanded of ordinary citizens and the enforcement of those standards by military tribunals.'
Their Honours continued [Re Tracey (1989) 166 CLR 518 at 544]:
'There can be little doubt that in war-time or upon overseas service such considerations warrant the treatment of civil offences as service offences and it is open to the legislature to regard the position in peace-time as warranting similar treatment. Good order and military discipline, upon which the proper functioning of any defence force must rest, are required no less at home in peace-time than upon overseas service or in war-time.'
[66] The second passage in the joint judgment of Mason CJ, Wilson and Dawson JJ in Tracey is as follows [Re Tracey (1989) 166 CLR 518 at 545]:
'In exercising that power it is for Parliament to decide what it considers necessary and appropriate for the maintenance of good order and discipline in those forces. And Parliament's decision will prevail so long at any rate as the rule which it prescribes is sufficiently connected with the regulation of the forces and the good order and discipline of defence members.' (Emphasis added.)
[67] Article 1, s 8, cl 14 of the Constitution of the United States empowers the Congress "to make Rules for the Government and Regulation of the land and naval Forces". In his judgment in O'Callahan v Parker [(1969) 395 US 258], Harlan J, in the course of construing that provision, made observations of present significance. This is nonetheless so given that, whilst Harlan J was in dissent, his views later achieved acceptance by the Supreme Court [Solorio v United States (1987) 483 US 435 at 441, 444, 446]. Harlan J said [O'Callahan (1969) 395 US 258 at 281-2 (footnote omitted)]:
'The United States has a vital interest in creating and maintaining an armed force of honest, upright, and well-disciplined persons, and in preserving the reputation, morale, and integrity of the military services. Furthermore, because its personnel must, perforce, live and work in close proximity to one another, the military has an obligation to protect each of its members from the misconduct of fellow servicemen. The commission of offenses against the civil order manifests qualities of attitude and character equally destructive of military order and safety. The soldier who acts the part of Mr Hyde while on leave is, at best, a precarious Dr Jekyll when back on duty. Thus, as General George Washington recognised: 'All improper treatment of an inhabitant by an officer or soldier being destructive of good order and discipline as well as subversive of the rights of society is as much a breach of military, as civil law and as punishable by the one as the other' [Writings of George Washington, vol 14, pp 140-141 (Bicent ed).]'
[68] Harlan J went on to stress a consideration of particular importance where defence personnel are stationed in other countries, namely, that [O'Callahan (1969) 395 US 258 at 282]:
'[a] soldier's misconduct directed against civilians, moreover, brings discredit upon the service of which he is a member.'
[69] With these further reasons, I support the conclusion that the provisions of the DFDA which permit the trial by general court martial of the prosecutor in respect of the alleged offence are not invalid. The offence provisions of the DFDA are sufficiently connected with the regulation of the Regular Army of which the prosecutor is a member, and with the maintenance of good order and discipline among its members."
45 The context of Re Aird was admittedly an overseas deployment - in which scope for military jurisdiction is arguably wider than in a domestic Australian peacetime context - albeit a training as distinct from an operational deployment; and the charged conduct occurred while PTE Alpert was on recreational leave. Nonetheless, Gummow J's endorsement of the passages cited by his Honour from Mason CJ, Wilson and Dawson JJ in Tracey and from Harlan J in O'Callahan v Parker - which judgment was influential in the reinstatement of the "service status" test in Solorio - tends to lend some support to the "service status" test.
46 The Constitution vests command of the Defence Force in the Governor-General as Commander-in-Chief. Command of the Defence Force is an aspect of the executive power. The discipline of the force is an aspect of its command. Service tribunals may act judicially, but they operate within the chain of command to "inform the conscience of the commanding officer": see Mills v Martin (1821) 19 Johnson's Supreme Court Reports (NY) 7 at 30, cited with approval in Lane at 257. Ultimately, they operate as part of the command (executive) function, albeit that they act judicially; the presence of the "trappings" of a trial is a necessary and appropriate concomitant of any formal process of adjudication of alleged violations of a disciplinary code in order to afford procedural fairness, but it does not transform the essentially executive nature of the function of maintaining a disciplined and effective defence force into a judicial one: see R v White; Ex parte Byrnes (1963) 109 CLR 665 at 670, 671; cf Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 65; The Shell Company of Australia Limited v Federal Commissioner of Taxation (1930) 44 CLR 530 at 544; R v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1 at 5, 6, 8-9, 12. Amenability to service discipline is an incident of being under command of the relevant Service Chief (or, as is now the case, the Chief of the Defence Force) and ultimately the Governor-General - that is to say, having the status of a defence member.
47 The objects of disciplinary proceedings conventionally include protecting the public, maintaining proper standards of professional conduct by members of the relevant profession (here, the ADF), and protecting the profession's reputation. Thus, conduct extraneous to professional practice attracts professional discipline because it can inform questions of "fitness" of the individual, and the reputation of the profession as a whole. In his dissent in Solorio, Marshall J decried the prospect that under the "service status" test any member of the Armed Forces could be subjected to military jurisdiction for any offense, "from tax fraud to passing a bad check, regardless of its lack of relation to 'military discipline, morale and fitness'" (483 US 435 at 467). However, "tax fraud" has been held to provide a basis for disciplinary proceedings against barristers (see, e.g., New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284), as no doubt would issuing bad cheques. The notion that disciplinary tribunals can impose disciplinary sanctions for conduct that is also a criminal offence, without offending the rule against double jeopardy, is well established: see, for example, Hardcastle v Commissioner of Police (1984) 53 ALR 593, 596-597. As was said (by a Full Court of the Federal Court) in Hardcastle (a case concerning disciplinary proceedings against a police officer for misconduct which was also a criminal offence) (at 597):'
"If the appellant were charged with, and convicted of, the same unlawful assaults as are the subject of the disciplinary offences he would not face double jeopardy or be punished twice for the same offence. He would be convicted of an offence against the criminal law and be guilty of a breach of the disciplinary code of the Australian Federal Police. The two proceedings are essentially different in character and result."
48 Likewise, if a defence member be convicted of a service offence under the DFDA and subsequently prosecuted under civilian criminal law in respect of the same conduct, he or she does not face double jeopardy, but would be convicted of an offence against the criminal law and be guilty of a breach of the disciplinary code constituted by the DFDA.
49 It is, as pointed out in Re Tracey by Mason CJ, Wilson and Dawson JJ, in the passage subsequently endorsed in Re Aird by Gummow J with the concurrence of Gleeson CJ and Hayne J, for Parliament to decide what it considers necessary and appropriate for the maintenance of good order and discipline in those forces, and Parliament's decision will prevail so long at any rate as the rule which it prescribes is sufficiently connected with the regulation of the forces and the good order and discipline of defence members. In the military context, the commission of crimes by defence members, even when off duty and extraneous to their service, can reflect on their fitness, and on the reputation of the ADF as a whole. Parliament may thus decide, as it has, that any crime committed by a defence member may be prosecuted as a service offence.
50 Moreover, as recognised in Solorio, the "service status" test has the advantage of providing a much clearer and cleaner test than that of "service connection".
51 The DFDA attaches amenability to service discipline to status as a "defence member" (and, in certain cases, a "defence civilian"). In other words, the legislation is framed in terms of the "service status" test. As explained above, no decision of the High Court rejects the "service status" test, and it has never been held that, insofar as the DFDA embraces the "service status" test, it is beyond power. Accordingly, even if the "service connection" test were not satisfied, in the absence of any decision of the High Court precluding its acceptance, we would find jurisdiction on the basis of the "service status" test.
52 Ground of appeal (a) therefore fails.