Lane v Morrison [2009] HCA 29 (26 August 2009)

Last Updated: 26 August 2009

HIGH COURT OF AUSTRALIA

 

FRENCH CJ,
GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

BRIAN GEORGE LANE PLAINTIFF

 

AND

 

COLONEL PETER JOHN MORRISON, A MILITARY
JUDGE OF THE AUSTRALIAN MILITARY COURT
& ANOR DEFENDANTS

 

Lane v Morrison [2009] HCA 29
26 August 2009
C3/2008

 

ORDER

 

1.             Declare that the provisions of Division 3 of Part VII of the Defence Force Discipline Act 1982 (Cth) are invalid.

2.             Order that a writ of prohibition issue directed to the first defendant, Colonel Peter John Morrison, a Military Judge of the Australian Military Court, prohibiting him from proceeding further with the charges relating to the plaintiff identified in the charge sheet dated 8 August 2007 and referred to the Australian Military Court for trial.

3. Second defendant to pay the costs of the plaintiff.

 

Representation

 

A W Street SC with K S Cochrane and M J Duncan for the plaintiff (instructed by Provest Law)

 

S J Gageler SC, Solicitor-General of the Commonwealth with S B Lloyd SC and J G Renwick for the second defendant (instructed by Australian Government Solicitor)

 

Submitting appearance for the first defendant

 

Intervener

 

G T W Tannin SC with J C Pritchard intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor for Western Australia)

 

Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

 

CATCHWORDS

 

Lane v Morrison

 

Constitutional law (Cth) – Judicial power of the Commonwealth – Military courts – Member of Australian Defence Force charged under Defence Force Discipline Act 1982 (Cth) (”Act”) – Where hearing before Australian Military Court (”AMC”), established by s 114 of Act – Where AMC a court of record and decision subject to appeal to tribunal – Relevance of fact that AMC has criminal jurisdiction – Whether AMC exercising judicial power of the Commonwealth – Whether AMC created in accordance with Ch III of Constitution.

 

Constitutional law (Cth) – Defence power – Military courts – AMC independent from command structure – Whether creation of AMC beyond the scope of s 51(vi) of Constitution – Whether creation of AMC inconsistent with power vested in Governor-General by s 68 of Constitution.

 

Words and phrases – “command structure”, “court”, “court of record”, “courts-martial”, “judicial power”, “judicial power of the Commonwealth”, “service tribunal”.

 

Constitution, Ch III, ss 51(vi), 68, 71, 72, 73(ii), 75(v), 77, 122.
Defence Act 1903 (Cth).
Defence Force Discipline Act 1982 (Cth), ss 3(1), 53, 61, 63, 114-121, 140, 188AP, 188AZ, 191.
Defence Force Discipline Appeals Act 1955 (Cth), s 20.

 

1.             FRENCH CJ AND GUMMOW J. The first defendant, Colonel Morrison, is a Military Judge holding office as a member of the Australian Military Court (”the AMC”). He is an officer of the Commonwealth within the meaning of s 75(v) of the Constitution[1]. The AMC is created by s 114 of the Defence Force Discipline Act 1982 (Cth) (”the 1982 Act” or “the Act“). Section 114 is found in Div 3 (ss 114-121) of Pt VII. That Division was inserted by the Defence Legislation Amendment Act 2006 (Cth) (”the 2006 Act“)[2] and was amended by the Defence Legislation Amendment Act 2008 (Cth) (”the 2008 Act“).

3.             On 21 September 2007 the Director of Military Prosecutions (”the DMP”) sought the convening of a court-martial to try the charges against the plaintiff. By force of the transitional provisions in the 2006 Act[3] the DMP was taken, on 1 October 2007, to have withdrawn that request and requested referral of the charges to the AMC for trial. On 26 November 2007, the Chief Military Judge nominated the first defendant to try the charges against the plaintiff.

4.             Section 114 of the Act states:

“(1) A court, to be known as the Australian Military Court, is created by this Act.
Note 1: The Australian Military Court is not a court for the purposes of Chapter III of the Constitution.
Note 2: The Australian Military Court is a service tribunal for the purposes of this Act: see the definition of service tribunal in subsection 3(1).
(1A) The Australian Military Court is a court of record.
(2) The Australian Military Court consists of:
(a) the Chief Military Judge; and
(b) such other Military Judges as from time to time hold office in accordance with this Act.”

The significance of the classification of the AMC as a “service tribunal” is discussed later in these reasons[4]. The AMC has jurisdiction conferred by s 115 to try certain charges of offences against the Act or the regulations made under it and, by virtue of the 2008 Act, to hear and determine certain “appeals” from decisions of “summary authorities”, including commanding officers. The AMC is to have a seal (s 119). It may sit at any place in or outside Australia (s 117) and is constituted by a single Military Judge (s 116).

 

20.         “The limitations resulting from those constraints means that having a separate military court outside Chapter III is preferable to bringing the military justice system into line with Chapter III requirements.
The Government will instead establish a permanent military court, to be known as the Australian military court, to replace the current system of individually convened trials by Courts Martial and Defence Force Magistrates.

Courts and the Constitution

 

21.         The noun “court” is used in varied contexts and in many senses. The Oxford English Dictionary[19] gives the following meanings, among others: “a princely residence, household, retinue”, and “an assembly held by the sovereign”, a use which gave rise to the terms “the ‘high court of parliament’” and “‘the king’s courts’ of justice”. Of its use in the sense last mentioned, Barton J said[20]:

“‘Court’ as the name of a place is merely a secondary meaning. ‘The Court’ is the deciding and enforcing authority, even if it sits under a tree, as sometimes it does in parts of the British Empire.”

22.         Hence the statement by McHugh JA in Australian Postal Commission v Dao (No 2)[21]:

“In ordinary usage the word ‘court’ has many meanings: they range from the group who form the retinue of a sovereign to an area used to play certain ball games. Legal usage also gives the word several meanings. Thus a ‘court’ may refer to a body exercising judicial power as in the Constitution, Ch III, or to a body exercising non-judicial power such as the Coroners Court or to a court of petty sessions hearing committal proceedings. It may even refer to a body exercising judicial and arbitral powers such as the former Commonwealth Court of Conciliation and Arbitration or the Queensland Industrial Court.”

23.         In Dao, as a matter of statutory construction, it was held that the Equal Opportunity Tribunal, established by the Anti-Discrimination Act 1977 (NSW), was a “court” within the meaning of the Suitors’ Fund Act 1951 (NSW). In Trevor Boiler Engineering Co Pty Ltd v Morley[22] the Supreme Court of Victoria held that the Workers Compensation Board was “a court of law” within the meaning of the Administrative Law Act 1978 (Vic), with the consequence that its decisions were not amenable to review under that statute. On the other hand, the Tasmanian Anti-Discrimination Tribunal is not a “court of a State” within the meaning of s 77(iii) of the Constitution[23], nor is the New South Wales Administrative Decisions Tribunal[24].

24.         The “creation” or “erection” of a “court” provides for the formation and constitution of a body which answers that description[25]. There is a distinction between the creation of a federal court by the Parliament and the conferral of its jurisdiction under s 77 of the Constitution. The judicial power of the Commonwealth spoken of in s 71 of the Constitution identifies the function of a court rather than the body of law to be applied in exercise of that function[26].

25.         Section 71 speaks of “such other federal courts as the Parliament creates”. The Justices of those federal courts are appointed in accordance with, and have the tenure and remuneration provided in, s 72. Whilst in office they cannot be removed otherwise than as provided by s 72(ii). It would appear to follow that once created by the Parliament, and at least while its Justices are in office, a federal court may not be abolished by the Parliament.

26.         The provisions formerly made in Pt IX of the Navigation Act 1912 (Cth)[27] for Courts of Marine Inquiry were an example of the Parliament creating a body with use of the term “court” without seeking to endow it with the character of a court as understood in Ch III of the Constitution. When considering Pt IX in R v Turner; Ex parte Marine Board of Hobart[28] at least a majority of the Court (Knox CJ, Gavan Duffy, Rich and Starke JJ and Powers J) were able to dispose of the case without ruling on the question whether s 51(i) empowered the Parliament to erect a court with exclusive power to deal with marine collisions in inter-state trade.

28.         However, in Australia, matters stand differently. In the Boilermakers’ Case[33] Dixon CJ, McTiernan, Fullagar and Kitto JJ remarked:

“Had there been no Chap III in the Constitution it may be supposed that some at least of the legislative powers would have been construed as extending to the creation of courts with jurisdictions appropriate to the subject matter of the power. This could hardly have been otherwise with the powers in respect of bankruptcy and insolvency (s 51(xvii)) and with respect to divorce and matrimonial causes (s 51(xxii)). The legislature would then have been under no limitations as to the tribunals to be set up or the tenure of the judicial officers by whom they might be constituted. But the existence in the Constitution of Chap III and the nature of the provisions it contains make it clear that no resort can be made to judicial power except under or in conformity with ss 71-80.”

30.         This submission appeared to lay the ground in Australia for a system of “legislative courts” resembling the United States model. Any such submission should be rejected. It cannot stand with the statement of general principle in the passage from the Boilermakers’ Case set out above.

31.         In his oral submissions the Solicitor-General correctly disclaimed the existence of any general power in the Parliament to create legislative courts. Rather, he stressed the special position occupied by the defence power as the basis for the creation of the AMC.

32.         The provisions of the 2006 Act indicate a legislative intention to create a body with the character of a court created by the Parliament under Ch III of the Constitution, save for the manner of appointment and tenure of its members. That intention is emphasised by the statement in s 114(1A) of the Act that the AMC is “a court of record”. Such a court has two relevant attributes. First, a court of record which is not created as a superior court nevertheless has the power to punish for contempt committed in the face of the court[34]. Section 53(4)(d)(i) creates an offence of engagement in conduct which constitutes a contempt of the AMC; this appears to supplement the contempt power of the AMC itself. However, of that contempt power, the following statement in R v Taylor; Ex parte Roach[35] is in point. Dixon, Webb, Fullagar and Kitto JJ said:

“By definition contempt is confined as an offence to courses of conduct prejudicial to the judicial power and does not extend to impairments of other forms of authority. Obstructions to the exercise of executive power, administrative power, legislative power or other governmental power are not within the conception of the offence of contempt of court.”

33.         Secondly, the proceedings of a court of record preserved in its archives are called records, and are conclusive evidence of that which is recorded therein[36]. More generally, as Barton J put it in Waterside Workers’ Federation of Australia v J W Alexander Ltd[37], in its usual acceptation the term “court of record” identifies “a body which has power both to make its determinations and to enforce them”.

Judicial power

 

46.         In Grant v Gould[45], when giving the judgment of the Court of Common Pleas, Lord Loughborough said:

“Naval Courts Martial, Military Courts Martial, Courts of Admiralty, Courts of Prize, are all liable to the controlling authority, which the Courts of Westminster Hall have from time to time exercised, for the purpose of preventing them from exceeding the jurisdiction given to them: the general ground of prohibition being an excess of jurisdiction, when they assume a power to act in matters not within their cognizance.”

That reasoning was applicable to the jurisdiction of this Court established by s 75(v) of the Constitution.

 

47.         However, in England the reasons of Atkin LJ in R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd[46] supported the proposition that prohibition and certiorari may be issued to bodies “having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially”. The effect of these influential observations, as Mason J put it in Kioa v West[47]:

“was to focus attention on those elements in the making of administrative decisions which are analogous to judicial determination as a means of determining whether the rules of natural justice apply in a particular case. The emphasis given in subsequent decisions to the presence and absence of these characteristics diverted attention from the need to insist on the adoption in the administrative process of fair and flexible procedures for decision-making, procedures which do not necessarily take curial procedures as their model.”

Thereafter, in Australian Broadcasting Tribunal v Bond[48] Deane J explained:

 

“There was a time when it was customary to refer to the duty of a non-curial statutory decision-maker to observe common law requirements of fairness and detachment in certain circumstances as a ‘duty to act judicially’ (see, eg, Testro Bros Pty Ltd v Tait[49]; Board of Education v Rice[50]; R v Electricity Commissioners[51]; Local Government Board v Arlidge[52]). There were, however, disadvantages in that phraseology. For one thing, as Lord Diplock pointed out in O’Reilly v Mackman[53], it tended to give rise to, and preserve, subtle and often confusing distinctions between decisions that were ‘quasi-judicial’ and those that were ‘merely’ administrative. For another, particularly in this country where there is a constitutional barrier against the conferral of any part of the judicial power of the Commonwealth upon an administrative decision-maker, it involved the potential for confusion between an obligation to act judicially and the well-settled notion of exercising judicial power.”

48.         The treatment of the jurisdiction conferred by s 75(v) of the Constitution with respect to prohibition directed to officers of the Commonwealth constituting military tribunals appears to have been influenced in the way described by Mason J and by Deane J. It may explain the frame of mind in which statements have been made, notably by Starke J in R v Bevan; Ex parte Elias and Gordon[54], that although military tribunals did not exercise “the judicial power of the Commonwealth” identified in s 71, they did exercise “judicial power”. But the only judicial power which the Constitution recognises is that exercised by the branch of government identified in Ch III.

60.         There remains the secondary, but more substantial, submission that the 2006 Act in creating the AMC apart from the command structure described earlier in these reasons, and in thereby purporting to provide for its exercise of the judicial power of the Commonwealth, cannot be sustained by s 51(vi). It is upon this ground that the case falls for decision.

Conclusions

 

63.         It therefore is unnecessary to deal, save in one respect, with the further arguments presented by the plaintiff. It was submitted that the power conferred by s 51(vi) was limited to the punishment of crimes such as those charged here which were committed on active service (not this case) or in the circumstances and places where the jurisdiction of the ordinary courts could not conveniently be exercised[63]. That submission is inconsistent with decisions, the most recent of which is White v Director of Military Prosecutions[64], which should not be re-opened.

Orders

 

64.         Upon the further amended application for an order to show cause, referred by the Chief Justice to the Full Court by order made 16 January 2009, there should be, pursuant to r 25.03.4 of the High Court Rules 2004, an order for a writ of prohibition directed to the first defendant. This should prohibit him from trying the charges against the plaintiff identified in par 17 of the agreed statement of facts dated 16 January 2009. There should also be a declaration that Div 3 of Pt VII of the Defence Force Discipline Act 1982 (Cth) is invalid. The plaintiff should have against the second defendant his costs in the cause.

65.          

65.         HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ. The determinative issue in this matter is whether the DFDA provides for the AMC, a court not created in accordance with Ch III of the Constitution, to exercise the judicial power of the Commonwealth.

The proceedings

 

67.         It is convenient to deal first with the argument that Div 3 of Pt VII of the DFDA is invalid because it provides for the exercise of the judicial power of the Commonwealth by a body not created in accordance with Ch III of the Constitution.

A court of record

 

99.         The plaintiff submitted, and the Commonwealth disputed, that because the AMC is created as a court and as a court of record, it exercises the judicial power of the Commonwealth. Particular attention was given in this connection to what power the AMC has to deal with that species of contempt referred to as contempt in the face of the court. The plaintiff submitted that the AMC has that power because it is a court of record, and that having that power demonstrates that the AMC exercises the judicial power of the Commonwealth. The Commonwealth submitted that courts-martial had always had power not substantially different from a court of record’s power to deal with contempt in the face of the court, at least in respect of persons subject to naval or military law[127], and that the inclusion of s 114(1A) did no more than ascribe a particular status to the new body; it did not give the new body powers different from those of courts-martial.

100.     It is not necessary to resolve this aspect of the debate between the parties. Designation of a body created by a law of the Parliament as a “court of record” may not, without more, show that it exercises the judicial power of the Commonwealth[128]. It is necessary to have regard to what the body does. And in this case the validity of the provisions which create the AMC turns on more fundamental considerations than what power it has to punish for contempt in the face of the court and whether that power is given by express provision or by designating the AMC as a court of record. It is, nonetheless, desirable to say something further about the provisions that create the AMC as a court and, in particular, s 114(1A), which provides that it is a court of record. It is convenient to do that by reference to some features of the legislative history that lies behind the inclusion of s 114(1A) in the DFDA by the 2006 Amendment Act.

113.     For the AMC to make a binding and authoritative determination of such issues pursuant to the DFDA is to exercise the judicial power of the Commonwealth. There is no dispute that the AMC is not constituted in accordance with Ch III.

114.     It is unprofitable to examine whether, or in what sense, it is right to describe the AMC as a “court”. To ask whether the legislature’s use of the word is apposite invites debate about the definition of a word that has been used in diverse circumstances not always associated with the exercise of judicial power. What is determinative of the issue in the present case is what the AMC is to do under the DFDA, as amended by the 2006 Amendment Act. And what the AMC is to do is to exercise the judicial power of the Commonwealth otherwise than in accordance with Ch III. The AMC cannot validly exercise the judicial power of the Commonwealth.

Severance?

 

118.     There should be a declaration that the provisions of Div 3 of Pt VII of the Defence Force Discipline Act 1982 (Cth) are invalid. A writ of prohibition should issue directed to the first defendant, Colonel Peter John Morrison, a Military Judge of the Australian Military Court, prohibiting him from proceeding further with the charges relating to the plaintiff identified in the charge sheet dated 8 August 2007 and referred to the Australian Military Court for trial. The Commonwealth should pay the plaintiff’s costs of the proceedings.