The Constitution and Military Justice after White V Director of Military Prosecutions

AuthorGeoffrey Kennett
Published date01 June 2008
Date01 June 2008
Subject MatterArticle
Geoffrey Kennett*
For a time, the discipline of Australian military forces provided an interesting study in
the application of Imperial legislation.1 That feature of the system has fallen away at
least since the enactment of the Defence Force Discipline Act 1982 (Cth) ('Discipline Act').
Since then, attention has been directed to the consequences of a tension between the
necessary (or at least universally accepted) nature of military discipline and the values
embedded in Chapter III of the Constitution.
Beginning a discussion of the Constitution and military justice in 2005, Mr Tracey
In the long history of warfare it has come to be regarded as a truism that any effective
and successful military force must be well disciplined. That discipline is to be maintained
and enforced by commanders at all levels. It is as necessary in small matters such as
punctuality and cleanliness as it is in more important ones like the protection of the
human rights of non-combatants.2
That introduction refers to two features of the maintenance of an effective defence
force. First, military discipline sometimes needs to be administered in circumstances of
great urgency and isolation, and commanders must take responsibility. Secondly,
military life has long been regarded as calling for obedience (and hence discipline) that
is all-encompassing. A soldier may face punishment for not polishing his or her
buttons properly, as well as for rape or murder.
Maintenance of an effective defence force can be viewed as a constitutional
imperative.3 The tension referred to above is between these necessary (or at least
* Barrister, Sydney. This article is an expanded version of a paper delivered at the Public
Law Weekend, Australian National University, 10 November 2007. The author thanks
Benjamin O'Donnell for his comments on an advanced draft.
1 See the sources referred to in Richard Tracey, 'The Constitution and Military Justice' (2005)
28 University of New South Wales Law Journal 426, 426–8.
2 Ibid 426.
3 At least in a 'small-c' sense. Adam Smith famously made defence the first duty of
government ('According to the system of natural liberty, the sovereign has only three
duties to attend to ... first, the duty of protecting the society from the violence and invasion
of other independent societies': The Wealth of Nations, Book IV, Chapter IX). In Re Tracey; Ex
parte Ryan (1989) 166 CLR 518, 569–70 Brennan and Toohey JJ described the defence of the
Commonwealth and the several States as a 'constitutional objective'.
232 Federal Law Review Volume 36
widely accepted) features of military discipline and another constitutional imperative:
the separation of judicial and executive powers, entrenched by Chapter III of the
Constitution. Military discipline involves the imposition of punishment — historically
including death4 — upon a judgment that a person is guilty of an offence. This is a
function which is normally the exclusive preserve of the courts.5 A principled
justification for allowing the function to be performed by military tribunals, lacking
some of the features of a court, has so far proved elusive.
This article examines the decisions which have dealt with the constitutional validity
of military discipline since the enactment of the Discipline Act. This has been done
before.6 The occasion for doing it again is an addition to that jurisprudence: White v
Director of Military Prosecutions ('White').7
At least twice before the enactment of the Discipline Act, the High Court had accepted
that punishment for offences against military discipline could validly be imposed by
service tribunals that were not Chapter III courts.8 The modern cases begin with Re
Tracey; Ex parte Ryan ('Re Tracey').9 Staff Sergeant Ryan was charged with making a
false entry in a service document, and being absent without leave. His case was
referred to Major Tracey, a defence force magistrate, but objection was taken to Major
Tracey's jurisdiction. Sergeant Ryan sought prohibition in the original jurisdiction of
the High Court, where three strong streams of judicial opinion emerged.
Nobody seriously doubted that the jurisdiction proposed to be exercised by the
magistrate involved the exercise of judicial power by a body that was not, on any view,
a court constituted in accordance with Chapter III. However, it was also agreed that
this was not the end of the matter: s 51(vi) of the Constitution (the defence power) must
be construed as conferring power on the Parliament to enact a scheme of military
discipline, including rules for the trial and punishment of offences, lying outside
Chapter III.10 Differences emerged between the Justices as to how far that power
Mason CJ, Wilson and Dawson JJ would have upheld the validity of s 61 of the
Discipline Act, which made any conduct that would be an offence under the law of the
Australian Capital Territory a service offence.11 They regarded it as impossible to
4 As in R v Bevan; Ex parte Elias (1942) 66 CLR 452 ('Bevan').
5 See eg Polyukhovich v Commonwealth (1991) 172 CLR 501, 608–9 (Deane J) ('War Crimes Act
6 For example, by Tracey, above n 1; Mitchell and Voon, 'Justice at the Sharp End —
Improving Australia's Military Justice System' (2005) 28 University of New South Wales Law
Journal 396; Andrew Mitchell and Tania Voon, 'Defence of the Indefensible? Re-assessing
the Constitutional Validity of Military Service Tribunals in Australia' (1999) 27 Federal Law
Review 499.
7 (2007) 231 CLR 570.
8 Bevan (1942) 66 CLR 452, 467–8 (Starke J); R v Cox; Ex parte Smith (1945) 71 CLR 1 ('Cox').
9 (1989) 166 CLR 518.
10 Ibid 540–1 (Mason CJ, Wilson and Dawson JJ), 574 (Brennan and Toohey JJ), 581–3
(Deane J), 598 (Gaudron J).
11 Ibid 545.

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