Military Justice and Chapter III: The Constitutional Basis of Courts Martial

AuthorSuri Ratnapala,Jonathan Crowe
Published date01 June 2012
Date01 June 2012
Subject MatterArticle
Jonathan Crowe* and Suri Ratnapala
The High Court has long struggled with the constitutional status of military tribunals
established to hear disciplinary charges against service personnel. The Court's
judgments reveal three distinct theories on this issue. The first view holds that military
tribunals exercise judicial power, but not 'the judicial power of the Commonwealth '
within the meaning of s 71 of the Constitution. The second view holds that the power in
question is not judicial power at all for constitutional purposes. The third view holds
that the power is 'the judicial power of the Commonwealth', but can be exercised by
courts martial under a limited exception to the rules set out in Chapter III of the
Constitution. The first view dominated the High Court's reasoning until Lane v Morrison
(2009) 239 CLR 230, where the judges endorsed the second view. This article con tends
that the first and second views pose insuperable difficulties w hen placed in their
broader constitutional context. The authors therefore argue for the third interpretation.
They further argue that the constitutional basis for the third view strongly implies that
military tribunals may only exercise jurisdiction over offences by military pers onnel
that relate to service discipline.
Chapter III of the Commonwealth Constitution contains the Constitution's express
requirements and directives concerning the adm inistration of justice. The first section,
s 71, is a pivotal provision of the Constitution. It states that '[t]he judicial p ower of the
Commonwealth shall be vested in a Federal Supreme Court, to be called the High
Court of Australia, and in such other federal courts as the Parliame nt creates, and in
such other courts as it invests with federal jurisdiction.' The only clear injunction in s
71 is to the effect that the judicial power of the Commonwealth shall be vested in the
courts mentioned in that section. However, the High Co urt has derived from
provisions of Chapter III and the structure and theory of the Constitution as a whole a
doctrine that, subject to certain exceptions, seeks both to vest the judicial power of the
Commonwealth in the courts specified in s 71 and to prevent the vesting of non-
judicial powers in the High Court and other federal courts. In recent years, the High
* Associate Professor, T C Beirne School of Law, University of Queensland.
Professor of Public Law, T C Beirne School of Law, University of Queensland. The
comments of the anonymous referee are gratefully acknowledged.
162 Federal Law Review Volume 40
Court has also ruled that State courts must not be vested with powers that are
incompatible with their constitutional position as courts exercisin g federal judicial
The first major question of interpretation arising from s 71 is whether the
affirmative character of the words that vest judicial power in the relevant courts
negates the capacity of Parliament to vest such powers in ot her bodies. In t he first case
on judicial power decided by the High Court, Griff ith CJ decided without discussion
that '[i]t follows [from t he words of s 71] that the Parliament has no power to entrust
the exercise of judicial power to a ny other hands .'
In R v Davison,
the question was
thought to have been settled by Waterside Workers' Federation of Australia v J W
Alexander Ltd ('Alexander's Case'), although that case, too, failed to discuss reasons for
the interpretation.
It was not until R v Kirby; Ex parte Boilermakers' Society of Australia
('Boilermakers' Case')
that the interpretive question was addressed squarely by the
In reiterating the position stated in earlier cases, the majority held that Chapter III
'is an exhaustive statement of the manner in which the judicial power of the
Commonwealth is or may be vested' and hence 'no part of the judicial power can be
conferred in virtue of any other authority or otherwise than in accordance with the
provisions of Chap. III'.
O n appeal, the Privy Council reached the same conclusion,
again tre ating the question as one of interpretation. Their Lordships agreed with the
High Court majority that the affirmative language of s 71 negated the possibility of
vesting judicial power in other courts or bodies. They held that Chapter III 'is in its
terms detailed and exhau stive'; hence, it is not open to Parliament 'to turn from
Chap. III to some other source of power'.
The rule in the Boil ermakers' Case has been stringently enforced by the High Court
for more than fifty years with only a very limited number of exceptions. However, the
rule has posed significant problems for the High Court's approach to military tribunals
established under Commonwealth legislation to hear criminal and other disciplinary
charges against service personnel. The High Court has acknowledged that Parliament
may grant military tribunals not constituted in accordance with Chapter III the power
to try military offences, subject to certain limitations. However, the nature of this
exception and the precise limits of the power that may be granted have not been fully
spelt out. In particular, the High Court has found it difficult to settle on a coherent
rationale for its decisions in this area.
See, eg, Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; S outh Australia v
Totani (2010) 242 CLR 1; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531;
Wainohu v New South Wales (2011) 243 CLR 181. For further discussion, see Suri Ratnapala
and Jonathan Crowe, 'Broadening the Reach of Chapter III: The Institutional Integrity of
State Courts and the Constitutional Limits of State Legislative Power' (2012) 36 Melbourne
University Law Review (forthcoming).
Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330, 355.
(1954) 90 CLR 353, 364.
(1918) 25 CLR 434, 442, 467, 480.
(1956) 94 CLR 254.
Ibid 270.
Attorney-General (Cth) v The Queen (1957) 95 CLR 529, 538.

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