Defence of the Indefensible? Reassessing the Constitutional Validity of Military Service Tribunals in Australia*
| Author | Andrew D Mitchell,Tania Voon |
| DOI | 10.22145/flr.27.3.6 |
| Published date | 01 September 1999 |
| Date | 01 September 1999 |
| Subject Matter | Article |
DEFENCE
OF
THE INDEFENSIBLE?
REASSESSING
THE
CONSTITUTIONAL
VALIDITY
OF
MILITARY
SERVICE
TRIBUNALS
IN
AUSTRALIA
Andrew
D
Mitchellt
and
Tania
Voont
Soldiers
must
be
treated
in
the
first
instance
with
humanity
but
kept
under
control
by
means
of
iron
discipline.
1
I
INTRODUCTION
In
the
past
fifty
years
the
High
Court
of
Australia has
scrutinised
the
constitutional
validity
of
military
service
tribunals
on
several
occasions.
Each
time,
the validity
of
service
tribunals
to
conduct
trials and
impose
punishment
in
relation
to
the
particular
offence
has
been
upheld
on
the
basis
that
it derives
from
a
proper
exercise
by
the
legislature
of
its
power
under
s
51(vi)
of
the
Constitution.
On
no
occasion
has
this
been
considered
by
the
Court
as a
whole
to
involve
a
breach
of
the
separation
of
powers
doctrine.
However,
while
it
is
generally
accepted
that
service
tribunals
exercise
what
would
ordinarily
be
seen
as
falling
within the definition
of
judicial
power',
2
there
has
been
no
unifying
and
satisfactory
explanation
as
to
why
this does
not
breach
the
separation
of
powers
doctrine.
In
addition,
no
clear
majority
position
has
emerged
as
to
the
limits
of
the
functions
of service
tribunals
or
the criteria
for
determining
which
offences
can
be
properly dealt
with by
service
tribunals
without usurping
the
role
of
the
courts.
In
particular,
there
is
no
consensus
as
to
whether
it
is
acceptable for defence
legislation
to
provide
simply
that
all civil
offences
in
a
particular
jurisdiction
automatically constitute disciplinary
offences
for
defence
purposes
which
therefore
fall
within
the
realm
of
service
tribunals.
Since
the latest
relevant High
Court
case,
3
the composition
of
the High
Court
has
changed
dramatically.
Only
two
of
the
present
Justices,
4
Gaudron and
McHughJJ,
We
would
like
to
thank
Dr
James
Thomson
and
Mr
John
Waugh
for
their
helpful
comments
on
an
earlier
draft
of
this
article.
The
views
expressed
herein, and
any
errors
or
omissions,
are
ours.
t
1-IB
(Hons)
(Melb),
BCom
(-Ions)
(Melb).
Solicitor,
Arthur
Robinson
&
Iedderwicks;
postgraduate
student,
University
of
Melbourne.
,
LLB
(Hons)
(Melb),
BSc
(Melb),
AMusA.
Solicitor,
Mallesons
Stephen
Jaques;
postgraduate
student,
University
of
Melbourne.
1
S
Tzu,
The
Art
of
I/Var
(trans
L
Giles,
1988)
98
cited
in
E
Kronenburg,
E
Lie
and
C
Wong,
"Civil
Jurisdiction in
the
Military
Courts:
An
Unnecessary Overlap? An
Evaluation
of
Section
112
of
the
Singapore
Armed
Forces
Act"
(1993)
14
Singapore
LR
320
at
324.
2
Constitution,
s
71.
3
Re
Tyler;
Ex
parte
Foley
(1994)
181
CLR
18.
Federal
Law Review
have delivered
judgments
on
this issue
in
that
Court,
and
on
those
occasions
both
Justices
indicated
that
they
disagreed with
the
reasoning
of
the
majority
in
the
prevailing authorities.
5
If
this
issue
came
before
the
High
Court
today
it
is
unclear
how
the
other
Justices
would
decide.
However,
it
is
quite
possible
that
a
majority
of
the
Court
would
choose
not
to
follow
those
authorities.
In
addition,
the
separation
of
powers
doctrine
has
enjoyed
a
re-emergence
of
sorts
in
recent years, exemplified
by
cases
such
as
Brandy
v
Human Rights
and
Equal
Opportunity
Conmnission.
6
Finally,
the
Commonwealth Parliament
Joint
Standing
Committee
on
Foreign
Affairs,
Defence
and
Trade very
recently
completed
its
inquiry
into
military
justice
in
Australia.
These
circumstances
present
an
appropriate opportunity
to
reassess
the
state
of
the
law
regarding
military
service
tribunals
in
Australia, in
anticipation
of
a
more certain
and
defensible
position
being
reached
by
the
High
Court
in
the
near
future.
II
THE
MILITARY
JUSTICE
SYSTEM
IN
AUSTRALIA
The defence
power
The
Commonwealth Parliament's
power
to
legislate
in
respect
of
military
justice
derives
from
section
51(vi)
of
the
Commonwealth
Constitution:
The
Parliament
shall,
subject
to
this
Constitution,
have
power
to
make laws
for
the
peace,
order,
and good
government
of
the
Commonwealth
with
respect
to:
-
(vi)
The
naval
and
military
defence
of
the
Commonwealth
and
of
the
several
States,
and
the
control
of the
forces
to
execute
and maintain
the
laws
of
the
Commonwealth.
The defence
power
has
been
described
as a
"purposive"
power,
meaning
that
whether
a
particular
Commonwealth
Act falls
within
s
51(vi)
depends
on
whether
the
Act
is
for
the
purpose
of
the
defence
of
the
Commonwealth
and
is,
in
some real
way,
connected
with
that purpose.
7
Hence,
in
many
cases
it will
be
impossible
to
determine the
scope
of
this
head
of
power
in
the abstract.
Its
scope
varies according
to
facts
8
and
circunstances,
including
the
existence
of
"international
tension".
9
That
is,
a
law which
would
be
beyond
the
scope
of
the
defence
power
in
peace
time
(because
it
is
not
seen
as
having
the
real
purpose
of
defence)
may
at
other
times
fall
within
it
due
to
the
4
Gleeson
C, Gaudron,
McHugh,
Gummow,
Kirby,
Hayne
and
Callinan
JJ.
5
Re
Tracey;
Ex
parte Ryan
(1989)
166
CLR
518
at
602-603
per
Gaudronj;
Re
Nolan;
Ex
parte
Young
(1991)
172
CLR
460
at
498
per Gaudron
J,
at
499
per
McHughJ;
Re
Tyler;
Ex
parte
Foley
(1994)
181
CLR
18
at
34-35
per
Gaudron
J,
at
38-39
per
McHugh
J.
In
Re Tyler
McHugh
J
nevertheless
decided
to
follow
the
decisions
in
the earlier
cases
on
the
basis
of
precedent.
It
is
unclear whether
his
Honour
would
feel
bound
to
follow
those
decisions
today.
See
below,
Part
V
under
the
heading
"Approaches
of
the
High
Court".
6
(1995)
183
CLR
245.
7
Stenhouse
v
Coleman
(1945)
69
CLR 457
at
471.
DP
Derham,
"The
Defence
Power" in
R
Else-
Mitchell
(ed),
Essays
on
the
Australian
Constitution
(2nd
ed
1961)
at
157
and
160-161;
CHoward,
Australian
Federal
Cons
titutional
Law
(3rd
ed
1985)
at
476-477;
J
Kirk,
"Constitutional
Guarantees,
Characterisation
and
Proportionality"
(1997)
21
MULR
1
at
22-
23.
8
Andrews
v
Howell
(1941)
65
CLR
255
at
278;
W
Wynes,
Legislative,
Executive
and
Judicial
Powers in
Australia
(3rd
ed
1.962)
at
201-202
and
279-280.
9 P
H
Lane,
Lane's Commentary
on
the
Australian
Constitution
(2nd
ed
1997)
at
191.
Volume
27
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