Wednesday, September 9, 2020

An important decision in Australia

The High Court of Australia today handed down an important military justice judgment. Here is the court's news release on the decision in Private R. v. Brigadier Michael Cowen & Anor., [2020] HCA 31:
Today the High Court unanimously dismissed an application which challenged the jurisdiction of a Defence Force magistrate to try a charge against a member of the Australian Defence Force ("ADF"). The application concerned the extent to which the defence power conferred on the Commonwealth Parliament by s 51(vi) of the Constitution supports the conferral of jurisdiction by the Defence Force Discipline Act 1982 (Cth) ("the Act") upon military service tribunals to hear and determine charges relating to conduct that also constitutes an offence under ordinary criminal law and that is committed in a time of peace when civil courts are reasonably available. 
On 12 June 2019, the plaintiff was charged by the Director of Military Prosecutions ("DMP") with one count of assault occasioning actual bodily harm against a woman with whom he had previously been in an intimate relationship. The alleged offending occurred after a birthday party in Fortitude Valley, Brisbane. It was alleged that, throughout the night, the plaintiff had made unwanted advances towards the complainant. At the end of the evening in a hotel room, the plaintiff, who was intoxicated and angry, allegedly threw the complainant's phone across the room, grabbed her by the throat and pushed her against the wall, shaking her and yelling at her. After the complainant broke free, the plaintiff tackled her to the ground, placed his knees on her chest and choked her until two security guards entered the room. The plaintiff was and is a member of the ADF and the complainant, at the time of the alleged assault, was a member of the ADF. Neither was on duty or in uniform at the time of the alleged offending. 
On 26 August 2019, the plaintiff appeared before a Defence Force magistrate on a charge under s 61(3) of the Act, which provides that a defence member is guilty of an offence if the person engages in conduct outside the Jervis Bay Territory and that conduct would be an offence if it took place in the Jervis Bay Territory. Assault occasioning actual bodily harm is an offence under s 61(3) by reason of s 24 of the Crimes Act 1900 (ACT). The plaintiff objected to the Defence Force magistrate's jurisdiction to hear the charge. The Defence Force magistrate dismissed the objection on the basis that it is sufficient to confer jurisdiction on a service tribunal that the accused was a member of the armed forces when the charged offence was allegedly committed. 
The plaintiff commenced proceedings in the original jurisdiction of the High Court seeking prohibition to prevent the Defence Force magistrate hearing the charge against him. The Court unanimously held that the Defence Force magistrate had jurisdiction to hear the charge. Five Justices of the Court held that s 61(3) of the Act, in obliging defence members to obey the law of the land, is, in all its applications, a valid exercise of the defence power. Two Justices of the Court held that s 61(3) is valid only in its application to offences which, because of their nature or circumstances of commission, have a proven connection with defence force discipline, and that such a threshold was satisfied in the present case.
From the opinion of Justice Edelman:
After at least three decades of uncertainty, the reasoning of Mason CJ, Wilson and Dawson JJ in Re Tracey; Ex parte Ryan should be accepted in its entirety. I therefore agree with the conclusion in the joint judgment that s 61(3) of the Defence Force Discipline Act is valid in all its applications and with the proposed orders that the plaintiff's application should be dismissed with the plaintiff to pay the costs of the second defendant. 
This conclusion about the validity of the application of s 61(3) of the Defence Force Discipline Act is a matter of law, not policy. The provision in legislation such as the Defence Force Discipline Act for judicial power of service tribunals to extend to all the offences in the Crimes Act has been subjected to searching criticisms and expressions of dissatisfaction with the justice that it delivers. The attempt by the Commonwealth Parliament to establish an Australian Military Court was an attempt to "improve upon ... that system with one more nearly approaching, but stopping short of, the Ch III paradigm". That attempt failed because although "[t]here is absolutely no reason why the functions assigned under the Act to service tribunals could not be performed by a Ch III court", there is no constitutional half-way house between a Ch III court and a service tribunal established consistently with the historical foundations that justify that application of the power in s 51(vi) of the Constitution.
Whether this outcome comports with Parliament's current thinking about the proper scope of military jurisdiction remains to be seen. Those who were hoping for change will have to wait some more. 

1 comment:

  1. Gene: I would not presume to comment on the importance, if any, of this judgment in the US sphere. American exceptionalism being what it is, it may have little or no jurisprudential impact. However, the reasoning of the plurality (and even some of the concurring judgments) echoes similar reasoning in Canada. Reference to R v Stillman, 2019 SCC 40 is brief and limited to observing that the SCC rejected the so-called 'impressionistic' approach (typically raised in Canada as the 'military nexus test'). Interestingly, in the subsequent paras, the HCA then examines the 'service connection' test (which is the Australian version of Canada's 'military nexus test'). The HCA had similar disdain for the 'service connection test' that the SCC had for the 'military nexus test'.

    I would suggest that it is not a matter of "... waiting some more ...". In Australia, as in Canada, I suggest that the connection/nexus test is dead. It is unwieldy and invites litigation. I would suggest that reform needs to arise from considered legislative reform. Often, in Canada at least, reform is typically prompted by appeals. Those driving the legislative machinery (who are not always Members of Parliament) will often act only when the results of an appeal force them to act.

    However, the framework in Australia may hint at potential reform in Canada. The upcoming appeal in R v Edwards will be largely inconsequential. Its focus will be on a CDS order, which reflects a broader legislative regime. The appeal to follow is R v Crépeau. Even then, there are multiple options to preserve judicial independence.


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