BY STEPHEN MCDONALD

Introduction

The Commonwealth Constitution embodies a separation of judicial power from executive and legislative power. While the boundaries between each species of power are not sharply defined, it has long been accepted that “convictions for offences and the imposition of penalties and punishments are matters appertaining exclusively to [the judicial power]”, and that the “adjudgment and punishment of criminal guilt” is “essentially and exclusively judicial in character”.

Section 71 of the Commonwealth Constitution vests “the judicial power of the Commonwealth” in the High Court of Australia, in other “courts” created by legislation enacted by the Commonwealth Parliament, and in state courts created under state law. Chapter III imposes minimum requirements of independence for federal courts (see s 72), and has also been held to require, by implication, that state courts be maintained with minimum standards of independence and impartiality, and that they not be required to perform functions in a manner that is incompatible with the nature of judicial power or their status as “courts” (see eg, Kable v DPP (NSW) (1996) and Forge v ASIC (2006)).

Chapter III of the Constitution has repeatedly been held to be “exhaustive”, in the sense that “the judicial power of the Commonwealth” cannot be exercised otherwise than “through, or in conformity with, Chap III” (see eg, Boilermakers (1956) at 270; Rizeq v WA (2017) at [58]; see also Burns v Corbett (2018) at [3], [43]-[55], [59]).

Against this background, it might seem surprising that there should be a significant class of Australian citizens (at least 58,000) who are exposed to the prospect of trial and “conviction” for committing an “offence” — including any offence against the ordinary criminal law in force in the Jervis Bay Territory — exposing them to “punishments” imposed by an authority that is not a “court” established by or under Ch III of the Constitution. Moreover, the punishments to which they may be exposed upon conviction include, among others, “imprisonment for life”, “imprisonment for a specific period”, and “fine” — punishments of kinds ordinarily associated with the exercise of judicial power and in particular, with criminal sentencing.

This class of citizens is the class defined in the Defence Force Discipline Act 1982 (Cth) as “defence members”. It includes all members of the Permanent Navy, the Regular Army or the Permanent Air Force, and any member of the Naval Reserve, the Army Reserve or the Air Force Reserve who is rendering continuous full-time service. The class also includes all other members of the Reserves, but only when they are on duty or in uniform.

Setting the scene for Private R

In R v Bevan; Ex parte Elias (1942) and in R v Cox; Ex parte Smith (1945), the High Court held that the Commonwealth Parliament could validly enact legislation for the establishment of courts martial or military tribunals pursuant to the defence power, s 51(vi) of the Constitution, and could confer upon them the power to try military offences and to impose punishments (including the death penalty). The correctness of this conclusion is now treated as settled.

However, since the late 1980s there has remained a disputed and unresolved question as to whether it is open to the Commonwealth Parliament to provide for the trial and punishment of any offence, or whether the offences so punishable are confined to those bearing a greater connection with the defence of the Commonwealth or with the maintenance of discipline and morale in the defence forces.

Private R v Cowen

In 2020, this question has finally been resolved. In Private R v Cowen, the High Court has decided, by majority, that the Commonwealth Parliament may validly provide for the trial and punishment of a defence force member by a service tribunal constituted by a Defence Force Magistrate — not being one of the “courts” referred to in Ch III of the Constitution. The law in question was s 61(3) of the Defence Force Discipline Act, which relevantly provided as follows:

A person who is a defence member or a defence civilian is guilty of an offence if:

(a)        the person engages in conduct outside the Jervis Bay Territory (whether or not in a public place); and

(b)        engaging in that conduct would be a Territory offence, if it took place in the Jervis Bay Territory (whether or not in a public place).

Private R was a “defence member”. He was charged by the Director of Military Prosecutions with the offence of assault occasioning actual bodily harm, an offence against s 24 of the Crimes Act 1900 (ACT), which applied in the Jervis Bay Territory. The alleged offence was described by Gordon J in the following terms (at [144]):

The plaintiff is alleged to have attacked the complainant – grabbing her by the throat and holding her against the wall; shaking her by the throat backwards and forwards against the wall; tackling her to the ground and putting both of his knees on her chest; and choking her. The plaintiff was a member of the Australian Defence Force, though off-duty, at the time of the alleged offence.

In the result, all justices agreed that the service tribunal had jurisdiction to try Private R for the particular offence with which he was charged.

Despite this unanimous agreement as to the result of the case, a clear majority of the Court — Kiefel CJ, Bell and Keane JJ in a single joint judgment, and Gageler J and Edelman J in separate judgments — accepted in substance that the “service status” of the accused provided a sufficient connection with defence and that s 61(3) was a valid enactment under s 51(vi) of the Constitution (at [78] per Kiefel CJ, Bell and Keane JJ; [108]-[109] per Gageler J; [154], [194]-[195] Edelman J). The minority — Nettle J and Gordon J, each writing their own judgment — insisted on the more stringent requirement that there be a more direct connection between the particular conduct constituting the alleged offence and the maintenance of defence force discipline, before it could be tried by a military service tribunal sitting outside Ch III of the Constitution (at [130] per Nettle J; [141]-[142] per Gordon J).

In what follows, I shall attempt to distil some key points from the lengthy judgments. Some important nuances, and differences of reasoning and emphasis between the judgments, will inevitably be lost in the process.

The ultimate difference between the majority and the minority is a disagreement as to whether the imposition by a service tribunal of punishment upon a defence member for any offence against the ordinary criminal law is sufficiently capable of affecting “discipline, morale, and the capability of the Defence Force to carry out its assignments” as to amount to a law with respect to “the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the Constitution”. The majority accepted that requiring and enforcing compliance with “the general law of the land” by defence members was a matter which it was open to the Parliament to regard as essential to the maintenance of a disciplined defence force (at [78]-[80] per Kiefel CJ, Bell and Keane JJ; [95(e)], [108] per Gageler J; [193]-[194] per Edelman J). The minority accepted that the trial and punishment of the particular offence with which Private R was charged (involving serious violence) was capable of having such an effect, (at [131] per Nettle J; [145] per Gordon J) but that the same could not be said in relation to all ordinary statutory criminal offences (at [130] per Nettle J; [141] per Gordon J).

The justices in the majority emphasised that:

  1. the service offences and system of military justice established by the Defence Force Discipline Act was “cumulative” upon, and not in substitution for, the ordinary criminal law and the ordinary jurisdiction of the criminal courts (at [62] per Kiefel CJ, Bell and Keane JJ; [95(d)], [101] per Gageler J; [189] per Edelman J); and
  2. “the system of military justice pursues the specific purpose of securing and maintaining discipline within the armed forces rather than the general purpose of punishing those guilty of criminal conduct” (at [55] per Kiefel CJ, Bell and Keane JJ).

However, the system of military justice does seem in practice to be treated as applying in place of the administration of criminal justice by the ordinary criminal courts— even though it cannot exclude the possibility of further punishment for the same conduct by such courts (Re Tracey; Ex parte Ryan (1989)). Trial and punishment in accordance with the Defence Force Discipline Act is clearly designed to serve all the purposes of the ordinary criminal law, as well as the specific need to maintain discipline in the defence forces: “punishments” under s 70(1) of the Defence Force Discipline Act are required to be imposed having regard to “the principles of sentencing applied by the civil courts, from time to time” as well as “the need to maintain discipline in the Defence Force”. (It may provide little consolation to a defence member, sentenced to a lengthy term of imprisonment for a service offence, to appreciate that they may yet, at least theoretically, be exposed to further punishment for the same offence following a fair trial by one of the courts referred to in Ch III of the Constitution.)

It seems to be universally accepted that it is too late in the day now to suggest that the “exception” for military justice / service tribunals / courts martial operating outside the requirements of Ch III should no longer be recognised. As is apparent from all of the judgments in Private R v Cowen, this is explained and justified on the grounds of historical (principally pre-federation) practice over a long period of time in England, the United States and Australia, and the long-accepted “necessity” of having a separate system of military justice separate from the courts administering the ordinary law of the land.

However, once that historical exception to the separation of judicial power is acknowledged, the only available limit seems to be that fixed by the need for a law to be characterised as a law with respect to defence under s 51(vi). Regarded purely as a matter of characterisation in accordance with ordinary principles, it seems difficult to maintain that the prohibition, trial and punishment of conduct by defence members that constitutes an offence against the ordinary criminal law does not conduce to the maintenance of discipline in the defence forces (and thus that it does not have a sufficient connection with the defence of the Commonwealth). This was the view of the majority in Private R v Cowen (at [78]-[80] per Kiefel CJ, Bell and Keane JJ; [95(e)], [108] per Gageler J; [193]-[194] per Edelman J).

Yet there remains a residual sense of discomfort with this conclusion. The achievement of the general purposes of the criminal law through the imposition of military “punishments”, by tribunals not constituted in accordance with Ch III of the Constitution, appears inconsistent with the functionalist considerations that support the separation of judicial power.

Considerations of this kind can be seen to have influenced the minority (Nettle and Gordon JJ). In assessing whether the exposure of military personnel to punishment by a military tribunal for the commission of any ordinary criminal offence is to be regarded as being for the purposes of “the naval and military defence of the Commonwealth”, their Honours appear to have considered it appropriate to give weight to the policy considerations that underly Ch III of the Constitution, and the separation of judicial power that it creates.

Thus, for Nettle and Gordon JJ, the issue of characterisation was perceived as involving a “balancing” of “competing constitutional demands” or policy considerations (at [122] per Nettle J), or the “reconciliation” of different constitutional objectives reflected in Ch III and s 51(vi) (at [126] per Nettle J; see also White v DMP (2006) at [24]). It had to be shown not merely that the trial and punishment of defence members for offences against the ordinary criminal law was apt to promote discipline in the armed forces, but that such trial and punishment outside of the structure created by Ch III was necessary. As Gordon J pithily expressed it: “the justification for Parliament’s capacity to legislate under s 51(vi) and outside of Ch III is taken into account” (at [140] (emphasis in original)). Justices Nettle and Gordon appear, in effect, to have treated the jurisdiction of the ordinary courts as the default means for trying and punishing offences, such that departure from that archetype must be distinctly justified. This may, at least partly, explain the different conclusion reached on the question of characterisation.

Justice Edelman (in the majority) also recognised a further limit on the scope of the “exception” for military tribunals, namely that they must be “constituted in a manner that is broadly consistent with [their] historical roots” and “operate consistently with … historical antecedents” (at [180]). However, those historical antecedents “conferred broad jurisdiction on service tribunals over civil offences” and so his Honour concluded that the Defence Force Discipline Act “operates consistently with its historical antecedents”.

The exercise of judicial power outside Ch III of the Constitution

One question lurking in the background — not essential to the resolution of the issue in Private R v Cowen, but potentially capable of influencing it — is whether the trial and “conviction” of defence members for service “offences”, and the imposition of “punishments”, should be regarded as:

  1. involving the exercise of “judicial power”, but outside of the judicial system established by Ch III and thus as operating as a recognised “exception” to the otherwise generally exclusive and exhaustive nature of Ch III (as accepted by Nettle, Gordon and Edelman JJ); or
  2. involving the exercise of executive power rather than judicial power, even though it involves “adjudgment and punishment of criminal guilt” (the view favoured by Kiefel CJ, Bell and Keane JJ).

It is true that, as Edelman J pointed out, the distinction between these positions might be regarded as “no more than semantic” (at [180]).

In another sense, however, the choice between these two ways of explaining the position of military tribunals may be seen as involving a choice between:

  1. on the one hand, a degree of doctrinal incoherence — Ch III exhaustively defines the conferral of judicial power by the Constitution and the Commonwealth Parliament, yet judicial power can nevertheless be conferred outside of Ch III; and
  2. on the other hand, the acceptance of a somewhat implausible conclusion regarding characterisation and judicial power — although the exercise of power by military tribunals has the hallmarks of an exclusively judicial function, we shall nonetheless say it does not involve the exercise of judicial power, but rather is to be characterised as purely “administrative” or “disciplinary” in nature.

Chief Justice Kiefel, Bell and Keane JJ concluded that “it may be more accurate to say that the power so exercised is executive or administrative in character” (at [55]). It may be no coincidence that the three justices who were most willing to characterise the power of military tribunals as “administrative” or non-judicial (thus maintaining doctrinal purity) were also the same three justices who, in Burns v Corbett (2018), had regarded the exhaustive nature of Ch III as a sufficiently strong consideration, by itself, to support the conclusion that state administrative tribunals could not constitutionally have conferred upon them judicial power with respect to the classes of “federal” matters identified in ss 75 and 76 of the Constitution (at [41]-[55]). (I have said more about Burns v Corbett in a previous post.)

Given that all “officers of the Commonwealth”, including judges of inferior and superior courts, are amenable to judicial review under s 75(v) of the Constitution, I find unconvincing the assertion that “the circumstance that the decisions of service tribunals are amenable to review under s 75(v) of the Constitution ‘points away’ from the conclusion that such tribunals exercise judicial power” (Private R v Cowen at [55] per Kiefel CJ, Bell and Keane JJ; A-G (Cth) v Alinta Ltd (2008) at [100]).

Moreover, it does not much assist to observe that decisions of military tribunals are subject to confirmation within the military “chain of command” so that their decisions lack the finality or conclusiveness that is a hallmark of the exercise of judicial power, because this merely seems to transfer the character of conclusiveness to the decision of other officers of the executive branch (see at [52]-[53] per Kiefel CJ, Bell and Keane JJ; see also Edelman J’s refutation at [173]-[177]; cf Lane v Morrison (2009) at [81]-[93]). (Further, it could hardly be said that that the conferral of, say, a ministerial discretion to override or confirm criminal convictions for offences by civilians would avoid the conclusion that their trial and punishment involved the exercise of judicial power, such that this could be done by a tribunal outside the judicial system created and recognised by Ch III.)

In my view, the preferable approach is to recognise — as did each of Nettle, Gordon and Edelman JJ — that military tribunals do exercise judicial power, albeit outside of, and in exception to the otherwise exhaustive nature of, Ch III (at [111]-[122] per Nettle J; [134]  per Gordon J; [163]-[177] per Edelman J).

It has sometimes been said that, while military tribunals exercise judicial power, they do not exercise “the judicial power of the Commonwealth” (see, eg, R v Bevan; Ex parte Elias and Gordon (1942); Re Tracey; Ex parte Ryan (1989); see also the discussion by Edelman J in Private R v Cowen at [178]-[180].) This terminology may be unproblematic if it is understood merely as a way of expressing the conclusion that, although such tribunals do exercise judicial power, they do so outside of Ch III (and as an exception to the separation of judicial power) — but it may have the potential to confuse if it is understood as placing emphasis on the words “of the Commonwealth”. It can hardly be suggested that the power exercised by service tribunals, to try offences created by laws of the Commonwealth, in relation to personnel of the defence forces of the Commonwealth, is not a power “of the Commonwealth”. Indeed, it was expressly recognised by several justices in Private R that persons constituting military tribunals are “officers of the Commonwealth” (at [56] per Kiefel CJ, Bell and Keane JJ; [135] per Gordon J). All that really seems to be meant in saying that military tribunals exercise judicial power, but not “the judicial power of the Commonwealth” is that, even though they do exercise a power properly classified as “judicial power”, that is permissible because military tribunals are an admitted exception to normal Ch III principles.

Conclusion

There is nothing in the judgments in Private R v Cowen to suggest that it would not be possible, consistently with the Constitution, to create a military court, or a system of military courts, outside of the military “chain of command” structure, for the trial of some or all offences allegedly committed by defence members in the exercise of the judicial power of the Commonwealth (as has previously been recommended by a Senate Committee). Both Gageler J (at [97]) and Edelman J (at [196]) in Private R expressly recognised this as an available legislative choice.  Such a court would have to comply with the requirements of s 72 of the Constitution (as to tenure and remuneration of judges) and other implied requirements applicable to Ch III courts. But, providing those minimum requirements were met, the membership and proceedings of such a court might be appropriately adapted to the military context.

Even accepting that “a soldier accused of an offence against the law of the land did not, as a matter of history, have the choice of a trial within the civil system” (at [64] per Kiefel CJ, Bell and Keane JJ), we may nevertheless ask whether it is desirable that, in 2020, a significant group of citizens should be subject to punishment — and potentially severe punishment — for any conduct amounting to the commission of an offence against the ordinary criminal law, by service tribunals that need not adhere to the requirements of courts created in accordance with Ch III of the Constitution.

As a civilian lawyer with no direct experience of military justice, I do not feel well placed to offer any opinion on this question. (On the other hand, there may be a risk that those involved in the present system of military justice may too readily assume that a military tribunal could not function effectively as a Court established under Ch III of the Constitution, at least in most cases.)

It is a question that, following the decision in Private R, is now clearly left to the Commonwealth Parliament to answer. And the Parliament’s answer, at least for the time being, is that expressed in the Defence Force Discipline Act.

Steve McDonald is a barrister at Hanson Chambers, and an Adjunct at the University of Adelaide Law School.

Suggested citation: Stephen McDonald, ‘“You CAN handle the … trial of defence members for any offence,” High Court tells Military Tribunals’ on AUSPUBLAW (25 September 2020) <https://auspublaw.org/2020/09/you-can-handle-the-trial-of-defence-members-for-any-offence-high-court-tells-military-tribunals>