FEDERAL COURT OF AUSTRALIA

Rowley v Chief of Army [2017] FCA 1119

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

THE COURT NOTES THAT:

2.    In the event that the respondent presses his claim for costs, and costs are not agreed, the parties are to liaise as to a timetable for the filing of short submissions with the Court to determine the issue on the papers.

3.    In the event that the respondent does not press any claim for costs, the legal representatives are to notify the Associate to Justice Perry and the applicant on or before 4pm on 5 October 2017.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    By a further amended originating application, the applicant seeks judicial review under s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act) of the sentence for imprisonment subject to a Recognizance Release Order imposed with respect to his conviction for two offences of dishonesty under the Defence Force Discipline Act 1982 (Cth) (DFDA). No challenge is made to the sentences imposed by the Defence Force Magistrate (DFM) on the other charges of which he was convicted. The conduct giving rise to the charges comprised: first, a series of dishonest acts in relation to the applicant’s living address committed for the purpose of maximising his rental allowance from Defence Housing Australia (DHA); and secondly, dishonesty and documents submitted to the ADF seeking recognition of a relationship in relation to his living address.

2    As articulated in his written submissions and confirmed at the commencement of the hearing, the applicant seeks to raise the following issues:

(1)    Grounds 1-4: Constitutional issues

(a)    Section 68(1)(b) of the DFDA is beyond the Commonwealth’s power to make laws with respect to defence under s 51(vi) of the Constitution or otherwise and is therefore invalid insofar as it prescribes as a punishment, the imposition of a sentence of imprisonment to be served in a civilian correctional facility concurrently with dismissal from the Defence Force during peacetime;

(b)    Section 68(1)(b) of the DFDA is invalid insofar as it purports to authorise the imposition of a sentence by the executive without the making of provision for an appeal as to sentence, thereby rendering the length of any sentence of imprisonment imposed under the DFDA subject to the effective discretion of the executive.

(2)    Ground 5(a): In the alternative, as a matter of statutory construction s 72 of the DFDA does not operate to pick up the power to make a Recognizance Release Order under s 19AC of the Crimes Act 1914 (Cth) (Crimes Act) because ss 68A, 68C, 78 and 79 of the DFDA do not provide for the suspension of a period of imprisonment and those provisions “amount to the lex specialis in relation to the imposition of penalties by service tribunals”, that is, they are exhaustive. (I note that, while pleaded as a constitutional issue in the further amended originating application, the argument was put as a matter of statutory interpretation only in the written submissions. The applicant confirmed at the hearing that no constitutional point with respect to this ground was pressed.)

(3)    Ground 5(b): In the further alternative, following the amendment to s 72 of the DFDA by the Defence Legislation (Enhancement of Military Justice) Act 2015 (Cth) (2015 Amending Act) with effect on 1 July 2015, at the date of the automatic review of conviction and sentence on 21 July 2015 there was no power to release the applicant pursuant to a Recognizance Release Order made before that date. This had the consequence that the entire sentencing discretion miscarried.

(4)    Ground 6: The exercise of the sentencing discretion miscarried so as to constitute jurisdictional error because:

(a)    the DFM misdirected himself in the exercise of discretion in applying the first limb of s 70 of the DFDA in finding that a sentence of imprisonment of no less than three years could be expected in a civilian court because he failed to have regard to the fact that in a civilian court, the matter would have been heard summarily where no custodial sentence would likely have been expected; and/or

(b)    the imposition of a sentence of imprisonment was so manifestly excessive as to amount to an unreasonable exercise of the power.

3    The applicant seeks declarations in terms of grounds 1 to 4 of the application and/or that the discretion exercised by the service tribunal miscarried in its entirety so as to amount to jurisdictional error. The applicant also seeks declarations restraining the respondent from giving effect to (or allowing to stand) the sentence imposed upon the applicant or that part of the sentence constituted by a sentence of imprisonment, whether subject to a recognizance release order or otherwise. An interlocutory injunction restraining the respondent from effecting the dismissal or discharge of the applicant was earlier discharged on the ground that no basis existed for maintaining that injunction: Rowley v Chief of Army [2016] FCA 1209.

4    It was not in issue that the onus of establishing jurisdictional error lies upon the applicant: Williams v Keelty [2001] FCA 1301; (2001) 111 FCR 175 at [166] and [236] (Hely J). Nor was it in issue that if the applicant succeeded on his constitutional grounds or established that the DFM’s sentencing decision was tainted by jurisdictional error, the matter should be remitted to the DFM to re-exercise the sentencing discretion. The respondent also correctly accepted that the subsequent reviews of the DFM’s decision could not “cure” any defect of the kinds alleged in the DFM’s sentencing decision.

5    Notwithstanding the order in which the grounds were pleaded, as the applicant submitted the Court should not address the issue of constitutional validity if the matter can be disposed of on other grounds. Questions of constitutional validity should be addressed only when it is necessary “to do justice in the given case and to determine the rights of the parties”: Lambert v Weichelt (1954) 28 ALJ 282 at 283 (Dixon CJ) (quoted with approval in ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51; (2009) 240 CLR 140 at 199 [141] (Hayne, Kiefel and Bell JJ); see also Duncan v New South Wales [2015] HCA 13; (2015) 255 CLR 388 at 410 [52] (French CJ, Hayne, Kiefel, Bell, Gageler, Keane and Nettle JJ); and AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 at [53] (Flick, Griffiths and Perry JJ). The applicant also did not seek to address the Court orally on the constitutional issues save in reply, being otherwise content to rely upon his written submissions. Accordingly, I have addressed the alleged jurisdictional errors before considering the constitutional issues.

6    I note that notice of a constitutional matter was given in accordance with s 78B of the Judiciary Act. None of the Attorneys-General of the Commonwealth, the states or the territories sought to intervene.

7    For the reasons set out below, the applicant has not established that the sentencing discretion was tainted by jurisdictional error nor established that any part of the sentencing powers are invalid. The application must therefore be dismissed.

2.    BACKGROUND

2.1    The circumstances in which the offending took place

8    The facts summarised below are taken from the DFM’s sentencing remarks.

9    DHA provides a scheme for rental allowance to ADF members. Under that scheme, DHA relies upon information provided by ADF members as to their entitlement to receive rental allowance and with respect to their continuing entitlement to do so. In the event of a change in circumstances of an ADF member, an obligation is imposed upon that member to inform the DHA so that an adjustment to the entitlement to rental allowance may be made if necessary.

10    From February 2012 to 20 December 2012, the applicant occupied an apartment on Kitchener Drive, Darwin (the Kitchener apartment) and received rental allowance. The property was managed by a rental agent, Mr S Peace, from Ray White Real Estate. The applicant’s then girlfriend, a civilian, moved into the Kitchener premises with the applicant in November 2012. On 20 December 2012, the Kitchener apartment was vacated and the applicant moved to a new address on Harry Chan Avenue, Darwin (the Chan Avenue address). These premises had previously been occupied by another ADF member, CAPT Kennedy-Stiff, who had ceased occupying the premises to take up an overseas deployment. The premises were made available to the applicant by a private arrangement with CAPT Kennedy-Stiff. However the applicant continued to receive rental allowance in respect of the Kitchener premises on the basis that he was sharing with one other, even though he was no longer residing in those premises. No notification was given to DHA of this change in the applicant’s circumstances.

11    On 19 March 2013, the applicant completed and submitted a “Domestic Circumstances Change” form to DHA. In that form, the applicant indicated that on 8 January 2013 his girlfriend had moved into the Kitchener apartment and was paying $750 per fortnight rent. The false information in this form was relied upon by DHA to make rental assistance payments to the applicant to which he was not entitled (Charge 4 – obtaining a financial advantage by deception). The financial advantage claimed was all of the rental allowance paid to the applicant in the period 8 January 2013 to 3 April 2013 which totalled $1946.29. That statement was false because, the property had been vacated on 22 December 2012. The applicant has since repaid this amount.

12    On 3 April 2013, the applicant submitted an application form to the ADF for “Recognition of Interdependent Relationship” with his girlfriend. The application was false in that it gave the Kitchener apartment as the permanent residential address of the applicant and his girlfriend (Charge 6 – making false entry in a service document).

13    The application form had other documentation attached to it purporting to disclose and confirm the address as the Kitchener apartment, including the applicant’s will. Despite the will being prepared and dated 12 March 2013 when the applicant had ceased living in the Kitchener apartment, the will described the applicant’s and his girlfriend’s address as the Kitchener apartment. Included in the supporting documentation was also an “Addendum to the Residential Lease Agreement” for the Kitchener apartment dated 8 January 2013. That document purported to record an amendment to the residential tenancy agreement whereby LT Grant Donald was replaced by the applicant’s girlfriend as a tenant with the agreement of the applicant and of Mr Stuart Peace, in his capacity as property management department, Ray White Real Estate, on behalf of the owners. The document was purportedly signed by the applicant, his girlfriend, Mr Peace and LT Grant Donald. That documentation was false in a number of respects: first, in the use of the Ray White Real Estate Agency letterhead; secondly, the Kitchener apartment had been vacated around 22 December 2012; and thirdly, LT Donald’s and Mr Peace’s signatures had been forged. (Charge 9 - using a forged instrument).

14    On 11 April 2013, as part of the process for his change in categorisation to Member with Dependants (MWD) status, the applicant completed and submitted a “Live Out AA157” form to his commanding officer which listed the Kitchener apartment as the relevant address (Charge 7 – making false entry in a service document). That information was false and known to the applicant to be false.

15    On 11 April 2013, the applicant completed the form entitled “ADF application for live in/live out and categorisation”. He wrote his address as the Kitchener apartment. That application was approved on 12 April 2013 following its submission to MAJ Shane Haley.

16    The applicant moved into premises in Carey Street, Darwin, after his application to enable him and his girlfriend to live as a ‘married – with dependents’ (MWD status), was authorised by DHA following approval by LTCOL McMaster.

17    On 4 June 2013, DHA contacted the applicant requesting a “cease RA” (i.e., cease rental assistance) form for the Kitchener apartment, noting that according to its records the applicant had vacated the property on 29 April 2013. In response to this request, on 7 June 2013 the applicant sent an email to DHA attaching a document on Ray White letterhead entitled “Final Rental Receipt’ which indicated that the applicant had paid rent of $1500 on 18 April 2013 and purportedly bore Mr Peace’s signature. This document was false as Mr Peace’s signature had again been forged and the applicant had ceased residing in the premises on 22 December 2012 (charge 11 – using a forged instrument).

2.2    Charges and guilty pleas

18    On 13 November 2014, the applicant was charged by the Director of Military Prosecutions (DMP) with 11 offences under the DFDA.

19    The particulars of the charges to which the applicant pleaded guilty may be summarised as follows, that, being a member of the Australian Defence Force (ADF), the applicant:

(1)    on 19 March 2013, by deception dishonestly obtained a financial advantage from the Commonwealth by preventing the identification and initiation of debt recovery of rental allowance payment between 8 January and 30 April 2013 to which he was not entitled, contrary to s 61(3) of the DFDA and s 134.2(1) of the Criminal Code Act 1995 (Cth) (The Criminal Code) (the fourth charge);

(2)    on 3 April 2013, making an entry in a service document, namely an application for recognition of an interdependent relationship, which indicated his permanent resident address to be at an address in Darwin where he no longer lived (the Kitchener apartment) contrary to s 55(1)(b) of the DFDA (the sixth charge);

(3)    on 11 April 2013 making an entry in a service document, namely a “Live Out (AA157) form”, that was false in a material particular and which he knew to be false, indicating his address to be the Kitchener apartment address where he no longer lived contrary to s 55(1)(b) of the DFDA (the seventh charge)

(4)    on 3 April 2013, knowing that a document, namely, an Addendum to the Residential Tenancy Agreement, was a false document, used it with the intention of dishonestly inducing a person in his capacity as a Commonwealth public official to accept it as genuine and, if so accepted, to dishonestly influence the exercise of a public duty or function contrary to s 61(3) and s 145.1(1) of the CCA (the ninth charge); and

(5)    on 7 June 2013, knowing that a “final rental receipt” letter was a false document, used the letter with the intention of dishonestly inducing a person in his capacity as a Commonwealth public official to accept it as genuine and, if so accepted, to dishonestly influence the exercise of a public duty or function contrary to s 61(3) of the DFDA and s 145.1(1) of the CCA (the eleventh charge).

20    The applicant initially pleaded not guilty to each of the charges. The trial of the applicant began on 7 April 2015 before a DFM and continued until 10 April 2015. During that time, civilian witnesses were called and cross-examined. On 10 April 2015 the applicant changed his plea by pleading guilty to 5 of the 11 charges, namely, charges 4, 6, 7, 9 and 11. The remaining charges were not pursued as the Director of Military Prosecutions and the DFM accepted the guilty pleas in full satisfaction of the charge sheet.

21    The hearing resumed on the question of penalty on 13 April 2015 and continued on 14 April 2015, with the applicant giving evidence.

22    On 14 May 2015, the applicant was convicted and sentenced in respect of the five charges to which he had pleaded guilty and received the following punishments:

(1)    Fourth charge – Reduced to the rank of Second Lieutenant;

(2)    Sixth charge – Dismissed from the Australian Defence Force;

(3)    Seventh charge – Dismissed from the Australian Defence Force;

(4)    Ninth charge – Dismissed from the Australian Defence Force and sentenced to 6 months imprisonment subject to his being released forthwith upon entering into a recognizance in the sum of $2000 to be of good behaviour for a period of 2 years;

(5)    Eleventh charge – Dismissed from the Australian Defence Force and sentenced to imprisonment for 6 months subject to an order that he be released forthwith upon his entering into a recognizance in the sum of $2000 to be of good behaviour for a period of 2 years, such term to be served concurrently with the term imposed with respect to the ninth charge.

23    The applicant seeks to challenge only the sentences of imprisonment which were imposed on the ninth and eleventh charges. There is no challenge to the non-custodial sentences imposed on these and the remaining charges.

2.3    The sentencing remarks

24    The DFM’s reasons for the sentences imposed may be summarised as follows.

(1)    The rental allowance scheme is designed for the benefit of ADF members and its operation depends entirely upon the honesty of the information provided to it. In this instance “the obligation of trust imposed on the defendant entirely broke down, in consequence of which DHA was deceived for a period of over 3 months and as a result of which the defendant received rental allowance to which he was not entitled.”

(2)    The DFM did not accept the applicant’s explanation that the offences were committed because of an error of judgment when he was excessively busy in his duties, without access to counselling for the stress. The DFM noted that he had taken removal leave between 17 and 19 December 2012, as well as annual leave from 22 December 2012 until 21 January 2013.

(3)    Nor did the DFM consider that the applicant’s partner’s illness had anything to do with his conduct leading to the charges. While the DFM did not doubt that the applicant’s girlfriend was suffering from an illness and that the applicant is assisting with the cost of her treatment, that illness did not manifest itself until April 2013 at the earliest.

(4)    The DFM rejected the applicant’s alleged doubt as to the basis of his occupation of the Chan Street apartment having regard to an email from him to CAPT Kennedy–Stiff on 26 February 2013. Specifically, the DFM found that that email “makes it plain that the motive of the defendant was at all times to deceive DHA” and further that:

Any suggestion that the defendant did not know what he was doing or was in some way confused is completely dispelled by the calculated words of that email. The defendant had a full understanding of the circumstances and the email itself demonstrates a devious attempt to exploit the DHA system dishonestly. …

The Court is satisfied that at all relevant times the defendant was clearly thinking and as a primary consideration was concerned to know how to maximise his rental allowance to which he knew he was not entitled.

(5)    The DFM noted that within a week of fraud being detected, the applicant paid the debt totalling $2557.33.

(6)    While the applicant said that he is remorseful for his conduct, the DFM found that that did not sit well with the delay of approximately a week after he became aware of enquiries into his conduct and the time when he approached the DHA to offer to repay the monies. Furthermore, the DFM found that there was no evidence that the offences were committed as a result of any financial need; rather the applicant’s conduct leading to the charges has arisen from financial greed.

(7)    The DFM considered that the circumstances of this case justified the applicant not having pleaded guilty to the charges before 10 April 2015. The applicant had no prior convictions of any civilian kind or of any discipline offence under the DFDA. He was therefore a first offender.

(8)    With respect to the applicant’s background, the applicant joined the Australian Army in 2008 at the age of 20. He had several appraisal reports testifying as to his outstanding abilities and service. The DFM found that, but for the charges, a promotion for the applicant was imminent. The DFM heard testimony from six referees who knew the applicant through the ADF, spoke highly of him and his judgment and abilities, and described his offending conduct as an error of judgment.

(9)    The DFM considered that there were no extenuating circumstances of a medical nature, including as to the applicant’s mental health, which caused the applicant any disability at the time of offending. In so finding, the DFM rejected the opinion of a psychiatrist that the applicant had been suffering an adjustment disorder with mixed emotional features on the ground that the psychiatrist had not been provided with full details of the applicant’s conduct.

(10)    The DFM found that, by virtue of s 70 of the DFDA, he was required to take into account the principles observed in civilian courts when imposing sentences and that s 16A of the Crimes Act 1914 requires a court to take into account various matters when passing sentence.

(11)    The DFM accepted that he must take into consideration all of the circumstances of the case. Furthermore, while in determining the penalty, he was mindful of the principle that imprisonment is to be ordered only as the last resort, the DFM also considered that the issue of general deterrence “looms large in cases involving fraud and the making use of a false instrument”. The DFM took into consideration the principle of totality and the issue of proportionality, that is, that the punishment must be proportionate to the offence. In this regard the DFM found that:

In this instance, the amount involved in the fraud, while small, in total, was approximately $2500, which has been repaid. However, it is the circumstances in which the fraud was committed with which the Court and the community would be most concerned. The conduct of the defendant involved a breach of trust and also a breach of confidence.

(12)    The DFM further considered that:

Taking into account the serious nature of the charges, especially the use of a forged document on two occasions, in a civilian Court, a sentence of imprisonment of not less than 3 years could be expected. This is evident from the fact that the seriousness of the offence is indicated by the fact that a 10 year set prison sentence may be imposed.

Where offences involve providing a false declaration and it is made knowingly to deceive the Commonwealth, that is a serious matter. In this instance, that has occurred on two occasions.

(13)    The DFM took into account the remarks and observations of all of the referees and the excellent and outstanding service provided by the applicant, as well as the burden of the applicant’s partner’s current condition and illness.

(14)    The DFM concluded that:

The Court must also take into consideration that the operation of the ADF depends upon the unqualified trustworthiness and honesty of every member. In this instance, that trust has been totally destroyed, knowingly and deliberately. Regrettably, the Court is able [sic] to find any extenuating circumstances which can benefit the defendant. Further, having considered the content of the emails passing between the defendant and CAPT Kennedy-Stiff, it is obvious that the defendant sought, by calculated strategies, to abuse the rental allowance system. That abuse was designed to assist him.

When reading the emails, one cannot help but feel that the emails display a contempt by the defendant for the privilege which ADF members have, and enjoy, of rental assistance. The Court is satisfied that such a breach of trust has destroyed any future of the defendant in the Australian Defence Force. Whilst the monetary amount involved is small, the pattern of conduct demonstrates the seriousness of the offending. Further a jail sentence is required. However, in view of the fact that the defendant has had no prior convictions for any offence, of the fact that the defendant will suffer the termination of his career in the ADF, which in itself is a severe penalty, of the delay in bringing these proceedings to trial and of the fact that the defendant ultimately pleaded guilty to the charges, a lesser period of imprisonment than that which would have been imposed in a civilian Court will be imposed. Further, the Court is prepared to suspend any period of imprisonment, provided that the defendant remains of good behaviour for a period of 2 years.

2.4    Subsequent reviews of convictions and punishments in the chain of command

25    A number of reviews were then undertaken by the applicant’s chain of command which confirmed the convictions and punishments as follows:

(1)    An automatic review of punishment on 21 July 2015 was conducted by Brigadier Nothard, commander of the 17 Brigade, pursuant to s 152 of the DFDA (see also s 172), which was preceded by a report of a legal officer (Judge PE Smith, Colonel) pursuant to s 154(1)(a) of the DFDA. Brigadier Nothard confirmed the convictions and punishments save in relation to the punishment for Charge 4 where he fixed a commencement date for the reduction in rank.

(2)    On 4 September 2015 the applicant submitted a petition against his punishment. Upon the petition being lodged, Captain Renwick, RANR, SC, prepared a legal report pursuant to s 154(1)(a) of the DFDA. On 13 October 2015, Brigadier Field, Chief of Staff, Headquarters Forces Command, in his capacity as a Reviewing Officer pursuant to s 153 of the DFDA, rejected the petition and confirmed the punishments.

(3)    On 26 October 2015, the applicant submitted a further petition to the Chief of Army. A report was then prepared by Rear Admiral Slattery, RANR, Judge Advocate General (JAG), pursuant to s 155(3) of the DFDA. On 15 February 2016, Lieutenant General Campbell, Chief of Army, dismissed the petition and upheld the convictions and punishments.

(4)    On 22 February 2016 the applicant lodged a further petition against sentence to the Chief of Defence Force pursuant to s 155 of the DFDA. On 2 June 2016, the JAG provided a report under s 155 and on 23 June 2016, Air Chief Marshall Binskin, Chief of Defence Force, dismissed the petition.

26    On 26 February 2016, the Chief of Army agreed to conduct a further review of the case. At the conclusion of that review, it was accepted that the applicant will have exhausted his rights under the DFDA to petition for further review of the convictions and punishments.

27    Finally, I note that on 12 November 2015, the Medical Employment Classification Review Board classified the applicant as unfit for service. On 18 November 2015 the applicant was informed that if he was not dismissed from the ADF pursuant to his punishment by the DFM on 15 March 2015, he would be separated medically.

3.    WAS THE USE OF A RECOGNIZANCE PERMITTED? (GROUND 5A)

3.1    Relevant Provisions

28    The applicant submitted that the DFM, in finding that he was prepared to suspend any period of imprisonment provided that the applicant remained of good behaviour for a two-year period, was indicating his intention to use the vehicle of a recognizance release order as the means by which to bring about a suspended sentence. In this regard, s 72 of the DFDA provides that:

(1)    Sections 16, 19A to 19AZD (other than section 19AH), 20, 20A and 20AA of the Crimes Act 1914 apply to a service tribunal that imposes a punishment of imprisonment for a specific period on a convicted person as if:

(a)    the service tribunal were a court exercising jurisdiction in or in relation to the Jervis Bay Territory; and

(b)    the person were convicted in that Territory.

29    A “service tribunal”, in turn, is defined to include a Defence Force magistrate (s 3(1), DFDA).

30    The provisions of the Crimes Act referred to in s 72(1) appear in Part 1B of that Act entitled “Sentencing, imprisonment and release of federal offenders” (ss 16-22A, Crimes Act).

31    Section 19AC of the Crimes Act deals with the circumstances in which a court convicting a person of a federal offence must or may fix a recognizance release order. That section in turn relevantly provides that:

(1)    Subject to subsections (3) and (4), where:

(a)    a person is convicted of a federal offence, or of 2 or more federal offences at the same sitting; and

(b)    the court imposes on the person a federal sentence that does not exceed, or federal sentences that, in the aggregate, do not exceed, 3 years; and

(c)    at the time the sentence or sentences are imposed the person is not already serving or subject to a federal sentence;

the court must make a recognizance release order in respect of that sentence or those sentences and must not fix a non-parole period.

…

(3)    Where:

(a)    the federal sentence or federal sentences referred to in paragraph (1)(b); or

(b)    the unserved portions of the federal sentences referred to in paragraph (2)(b);

in the aggregate, do not exceed 6 months, the court is not required to make a recognizance release order.

(4)    Where, but for this subsection, a court would be required by this section to make a recognizance release order in respect of a person, the court may decline to do so if, having regard to the nature and circumstances of the offence or offences concerned and to the antecedents of the person, the court is satisfied that such an order is not appropriate.

(5)    Where the court decides that a recognizance release order is not appropriate, the court must:

(a)    state its reasons for so deciding; and

(b)    cause the reasons to be entered in the records of the court.

32    Section 16(1) of the Crimes Act defines a “sentence” in ss 16B to 19AZD inclusive to mean “a sentence of imprisonment”.

33    Section 72 of the DFD also expressly picks up and applies s 16 of the Crimes Act. Section 16(1) defines a “recognizance release order” for the purposes of Part 1B of the Crimes Act, subject to a contrary contention, as an order made under s 20(1)(b). Section 20(1)(b) authorises a court to sentence a person convicted of a federal offence or offence:

… to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a) either forthwith or after he or she has served a specified period of imprisonment in respect of that offence or those offences that is calculated in accordance with subsection 19AF(1).

34    In turn s 20(1)(a) operates together with s 19AC (as the respondent contended to confer power on the court to order that the person be released:

…upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions:

(i)    that he or she will be of good behaviour for such period, not exceeding 5 years, as the court specifies in the order;

(ii)    that he or she will make such reparation or restitution, or pay such compensation, in respect of the offence or offences (if any), or pay such costs in respect of his or her prosecution for the offence or offences (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay):

(A)    on or before a date specified in the order; or

(B)    in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs—by specified instalments as provided in the order;

(iii)    that he or she will pay to the Commonwealth such pecuniary penalty (if any) as the court specifies in the order (being a penalty not exceeding the maximum amount of the penalty that, in accordance with subsection (5), the court may specify in respect of the offence or offences) on or before a date specified in the order or by specified instalments as provided in the order; and

(iv)    that he or she will, during a period, not exceeding 2 years, that is specified in the order, comply with such other conditions (if any) as the court thinks fit to specify in the order, which conditions may include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed;

3.2    The applicant’s submissions

35    The applicant submitted that a period of suspended imprisonment “is not a punishment which is available under the DFDA” on the ground that, subject to exceptions not presently relevant, s 68(1) of the DFDA contains an exhaustive list of punishments which may be imposed. That section relevantly provides that:

… the only punishments that may be imposed by a service tribunal on a convicted person are, in decreasing order of severity, as follows:

(a)    imprisonment for life;

(b)    imprisonment for a specific period;

(c)    dismissal from the Defence Force;

(d)    detention for a period not exceeding 2 years;

(e)    reduction in rank;

…

36    The applicant also relied upon the fact that, while separate provision is made for the suspension of a punishment of detention or a fine under ss 78 and 79 respectively of the DFDA, there is no express provision for the suspension of a period of imprisonment. On this basis the applicant submitted that “between them, sections 68(1), 78 and 79 of the DFDA amount to the lex specialis in relation to the imposition of penalties by service tribunals.”

37    Finally, the applicant submitted that:

…the imposition of a recognizance implies some degree of capacity to supervise and enforce it. In the event of such an order being imposed by a civil court, there are clear mechanisms for allowing this to occur. A person breaching a recognizance would ordinarily be brought back before the court that imposed it and dealt with for the breach. However, in the case of a service tribunal attempting to impose a recognizance release order, there is no such capacity. Inherent in any sentence of imprisonment is that it must be accompanied by an order of dismissal from the defence force. There is only jurisdiction to deal with a former member of the defence force for a period of six months after they have ceased to be a member. One asks rhetorically how a service tribunal can supervise a recognizance for a period of two years, or what other legislative mechanism there is to do so?

38    For these reasons, the applicant submits that “the sections of the Crimes Act sought to be imported by section 72 of the DFDA should be read down so as to exclude the possibility of creating a new punishment, ie a ‘suspended sentence of imprisonment’, by the use of a recognizance release order.”

3.3    Consideration

39    The construction adopted by the applicant must be rejected.

40    First, the starting point in any task of statutory construction is the text of the provision which must be considered in its context including the statutory purpose: Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 at [22]-[23] (French CJ, Hayne, Kiefel, Gageler and Keane JJ). In this regard, the words actually used by the legislature are the surest guide to legislative intent: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27 at [47] (Hayne, Heydon, Crennan and Kiefel JJ). This points to a fundamental difficulty with the applicant’s construction. While the applicant submits that no order could be made under s 19AC of the Crimes Act that would suspend a sentence of imprisonment imposed under s 68 of the DFDA, s 72 of the DFDA expressly picks up and applies s 19AC and related provisions of the Crimes Act to a service tribunal as if it were a court, thereby authorising a service tribunal to do exactly that which the applicant denies. In effect, the purpose of s 72 is to pick up and apply those provisions of the Crimes Act as surrogate provisions of the DFDA in a manner broadly analogous to a State law picked up and applied in federal jurisdiction by s 79 of the Judiciary Act 1903 (Cth): see e.g. Austral Pacific Group Limited (In Liq) v Airservices Australia [2000] HCA 39; (2000) 203 CLR 136 at [11]-[13] (Gleeson CJ, Gummow and Hayne JJ). On the premise on which the DFM was therefore required to proceed under s 72 of the DFDA, the DFM was required to make a recognizance release order in respect of the sentences of imprisonment (which in the aggregate exceeded 6 months but not 3 years) under s 19AC(1)(b), unless the DFM decided that such an order was not appropriate under s 19AC(5) as also applied by s 72.

41    Secondly, the applicant’s submission that ss 68(1), 78 and 79 of the DFDA contain an exhaustive list of the penalties as a basis for reading down s 72 takes no account of s 67(1) of that Act. That section provides relevantly that “…a Defence Force magistrate must not impose a punishment in respect of a conviction except in accordance with this Part…”, that is, Part IV where s 72 is also located.

42    Thirdly, the applicant’s submissions wrongly characterise an order made under s 19B(1) of the Crimes Act that the person be released upon entering into a recognizance, as imposing a punishment. Rather, s 19B(1) of the Crimes Act is concerned with manner in which the person serves the sentence of imprisonment that has been imposed, by affording the person the opportunity to serve that sentence otherwise than by physical incarceration upon compliance with conditions. Thus, one of the preconditions for the operation of s 19C is that the court has imposed a sentence or sentences of imprisonment. Consistently with this, a recognizance release order is made under s 19AC(1) “in respect of that sentence or those sentences”. As such, the language of the provision does not support the characterisation given by the applicant that a recognizance order itself is a “punishment” even though it is ultimately a part of the sentence. Thus, as Kirby J explained in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [79], the first and primary determination is that a sentence of imprisonment (as a punishment of last resort) is warranted as opposed to some lesser sentence and, until that determination is made, the question whether that sentence should be suspended does not arise.

43    Fourthly, the applicant’s submission that such a sentence could not implemented because there is jurisdiction only to deal with a former Defence Force member for a period of six months after she or he has ceased to be a member is, with respect, misconceived. Presumably, as the respondent submits, the applicant is referring to s 96(6) of the DFDA. That section provides that a person who has ceased to be a member of the Defence Force or a defence civilian shall not be charged with a service offence unless:

(a)    the period that has elapsed since the person so ceased does not exceed 6 months; and

(b)    the maximum punishment for the service offence is imprisonment for a period of 2 years or a punishment that is more severe than that punishment.

44    However, s 96 imposes a time limit only on charging a person after they have ceased to be an ADF member, as opposed to imposing a time limit upon the capacity to continue a punishment imposed under the DFDA once a person has ceased to be a member of the ADF. Furthermore and contrary to the applicant’s submission, the section itself envisages that a person may be subject to punishment for a period in excess of 6 months after she or he has ceased to be a member. For this reason also the applicant’s submission that s 115 of the DFDA conferring jurisdiction upon a court martial to “try any charge against any person” should be read down so as conferring jurisdiction only as against a current member of the Defence Force cannot be sustained. Read in the context of the scheme of the Act, the use of the general word the “person” was deliberate and ought to be given its ordinary meaning, as the respondent submits.

45    In short, the effect of the applicant’s submission would be to sever s 72 of the DFDA and not to read it down, as the applicant ultimately appeared to accept. While severance may occur where a provision is invalid, the concept of severance is alien to the task of statutory construction, namely, to give effect to Parliament’s intent as expressed in the statute. As for example, the joint judgment explained in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, “The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute” at [69]. As their Honours continued:

71. Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume [(1905) 2 CLR 405 at 414] Griffith CJ cited R v Berchet [(1688) 1 Show KB 106] to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”.

46    It follows, as the respondent submitted, that the applicant’s argument “…founders on the plain words of the statute and that, to be blunt about it, is the beginning and the end of the argument. Practical issues are of no moment in terms of what the Parliament has provided.”

4.    WAS THE PENALTY NO LONGER AUTHORISED ON COMPLETION OF THE COMPULSORY REVIEW? (GROUND 5B)

47    By ground 5B, the applicant contends that the sentencing discretion miscarried because the sentence imposed by the DFM on 15 May 2015 had not been confirmed on the automatic review by Brigadier Nothard until after 1 July 2015 when the Enhancement of Military Justice Act 2015 (Cth) (the 2015 Amending Act) came into force. There are a number of steps in the applicant’s reasoning to this conclusion, some of which can be accepted even though, as I explain, I do not accept the conclusion which the applicant invites the Court to draw.

48    First, as the applicant submits, s 172(1) of the DFDA provides that certain punishments imposed by a service tribunal do not take effect unless approved by a reviewing authority, including relevantly imprisonment for a specific period. Part VIIIA of the DFDA (ss 150 to 169 inclusive) deals with the review of proceedings of a service tribunal.

49    The applicant relied in particular upon the automatic review of the proceeding before the service tribunal required by s152 of the DFDA by a reviewing authority. This must be undertaken as soon as practicable after a service tribunal convicts a person of a service offence. A reviewing authority (including one undertaking a review under s 152) has power under s 158 of the DFDA to quash a conviction where, for example, it is unsafe or unsatisfactory, and may order a new trial under s 160 or, in limited circumstances, may substitute a conviction of another offence under s 161. Where a conviction is quashed and no new trial is ordered, the person is deemed to have been acquitted of the offence by force of s 159 of the DFDA. With respect to punishment, where it appears to the reviewing authority that the punishment imposed or order made by the service tribunal is wrong in law or excessive, s 162 provides that the reviewing officer must quash the punishment and/or revoke the order (as applicable). Otherwise the reviewing officer must determine when the punishment or order is to take effect (s 168, DFDA).

50    Importantly for present purposes, a reviewing officer is an officer or a member of a class of officers appointed by the Chief of the Defence Force or a service chief to be a reviewing authority for the purpose of reviewing proceedings of a service tribunal (s 150, DFDA). In turn, a competent reviewing authority is a reviewing authority who did not exercise any of the powers or perform any of the functions of a superior authority in relation to the charge (s 150A). It follows, as the applicant submits, that the determination of guilt and punishment of a service offence does not therefore stand apart from the chain of command. It is for this reason that the High Court has held that disciplinary measures can be applied in the defence force without the exercise of the judicial power of the Commonwealth. As, for example, the High Court explained in Lane v Morrison [2009] HCA 29; (2009) 239 CLR 230 (Lane v Morrison) referring to the question of whether courts-martial exercise the judicial power of the Commonwealth:

97. That constitutional question was resolved in respect of courts-martial, as it was in R v Bevan, R v Cox and later Re Tracey, at a time when courts-martial were not independent of the chain of command of the forces. Courts-martial were convened only by order from within the chain of command; conclusions of guilt and determinations of punishment were subject to review or confirmation within that chain of command. A court-martial did not make a binding and authoritative decision of guilt or determination of punishment. A court-martial did not enforce its decisions. Enforcement of any decision, other than acquittal of the accused, depended upon the outcome of review of the decision within the chain of command.

51    Similarly, in Haskins v The Commonwealth [2011] HCA 28; (2011) 244 CLR 22 (Haskins), the High Court held that:

37. Two kinds of consideration lead to the conclusion that disciplinary measures can be applied in the defence force without exercise of the judicial power of the Commonwealth. First, there is not the exercise of the judicial power of the Commonwealth in such a case because the punishment is imposed by the (legislatively regulated) exercise of the power of command that is a necessary and defining characteristic of the defence power: a power of command that is essential to the creation and maintenance of a disciplined and effective fighting force. Secondly, there is not the exercise of the judicial power of the Commonwealth in such a case because there is not the binding and authoritative decision of guilt or determination of punishment for a service offence that stands apart from the chain of command of the defence force.

52    Secondly, as the applicant also submitted, the 2015 Amending Act repealed the power in s 72 of the DFDA to release the applicant pursuant to the recognizance release order. As amended in 2015, s 72 provided that:

(1)    Sections 16 and 19A to 19AZD (other than section 19AH) of the Crimes Act 1914 (the applied Crimes Act provisions) apply to a service tribunal that imposes a punishment of imprisonment for a specific period on a convicted person as if:

(a)    the service tribunal were a court exercising jurisdiction in or in relation to the Jervis Bay Territory; and

(b)    the person were convicted in that Territory.

(1A)    Despite the applied Crimes Act provisions, a service tribunal that imposes a punishment of imprisonment for a specific period (the sentence) on a convicted person:

(a)    must not make a recognizance release order in relation to the person; and

(b)    may fix a non-parole period in respect of the sentence, even if:

(i)    the sentence does not exceed 3 years; or

(ii)    if 2 or more sentences are imposed—the sentences in the aggregate do not exceed 3 years.

53    It was not in issue that there were no applicable transitional provisions in the 2015 Amending Act.

54    As a consequence of these matters, the applicant submits that:

(1)    the DFM decision coupled with the automatic review comprised a single decision-making process;

(2)    the punishments imposed by the DFM on 15 May 2015 were not “perfected” or “formally impos[ed]” until the automatic review by an officer in the chain of command had been completed in accordance with the requirements of s 152 of the DFDA;

(3)    as the 2015 Amending Act came into effect before the automatic review was completed under s 152 of the DFDA, the reviewing officer had no power to “impose” or “perfect” the “recognizance release order” to bring about a suspended sentence; and

(4)    the reviewing officer therefore fell into jurisdictional error in assuming that he had such power and the sentencing discretion miscarried in whole. As to the latter, the applicant submitted that, given that imprisonment is a last alternative, different considerations with respect to the sentencing discretion would have been engaged if the DFM had realised that the option of recognizance release order was not available and he may have decided to sentence the applicant to something less than imprisonment.

55    I agree with the respondent that the applicant’s argument fails at the third and crucial step by reason of the operation of s 7(2) of the Acts Interpretation Act 1901 (Cth). That section provides that:

(2)    If an Act, or an instrument under an Act, repeals or amends an Act (the affected Act) or a part of an Act, then the repeal or amendment does not:

(a)      revive anything not in force or existing at the time at which the repeal or amendment takes effect; or

(b)      affect the previous operation of the affected Act or part (including any amendment made by the affected Act or part), or anything duly done or suffered under the affected Act or part; or

(c)      affect any right, privilege, obligation or liability acquired, accrued or incurred under the affected Act or part; or

(d)      affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the affected Act or part; or

(e)     affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.

Any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the affected Act or part had not been repealed or amended.

56    Section 7 is consistent with the well-established common law principle that, absent a clear contrary intention, an Act that changes the law ought not to be understood as applying to facts or events that have already occurred so as to confer, impose or otherwise affect substantive rights or liabilities which the law had defined by reference to the past events: Maxwell v Murphy (1956) 96 CLR 261 at 267 (Dixon CJ); ADCO Construction Pty Ltd v Goudappel [2014] HCA 18; (2014) 254 CLR 1 at [27] (French CJ, Crennan, Keifel and Keane JJ). Both s 7 and the common law presumption give effect to “a beneficial and just principle… protective of accrued entitlements and obligations derived from statute”: Attorney-General for the State of Queensland v Australian Industrial Relations Commission [2002] HCA 42; (2002) 213 CLR 485 at [108] (Kirby J). However, while the respondent sought also to rely upon the common law presumption, the enactment of s 7 means that ordinarily such questions should be resolved by reference to the statutory provision: Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 at 582 (Windeyer J).

57    I agree with the respondent that, at the least ss 7(2)(b) and (c) of the Acts Interpretation Act apply to the present case. It is therefore unnecessary to consider whether, as the respondent also submits, s 7(2)(e) applies on the ground that the disciplinary process including the automatic review is a “legal proceeding”.

58    First, by virtue of s 7(2)(b) of the Acts Interpretation Act, the amendment did not affect the making by the DFM of the recognizance release order duly made pursuant to s 72 of the DFDA. This means that, unless his sentence of imprisonment was quashed by a reviewing authority because it was wrong in law or excessive, the applicant had the right to serve that sentence in accordance with the recognizance release order made by the DFM as opposed to being required to serve the sentence in custody. As such, that right is also properly characterised as an accrued right for the purposes of s 7(2)(c) which is protected by the limited powers conferred upon the reviewing authority on a review. It was not necessary, in other words, for the process of automatic review to have been completed in order to describe that right as accrued, contrary to the applicant’s submissions, because the reviewing officer had no power to revoke that order unless it was wrong in law or the convictions or sentences of imprisonment were overturned rendering the order irrelevant.

59    Nor by virtue also of s 7(2)(b) of the Acts Interpretation Act does the amendment affect the operation of s 152 of the DFDA requiring that on conviction the DFM must transmit a record of the proceedings to a competent reviewing authority and that the reviewing authority must “review the proceedings in accordance with [Part VIIIA of the DFDA]”. The obligation on the reviewing authority under s 152 and the rights of the applicant to such review had accrued as at the time that the 2015 Amending Act came into operation and were therefore unaffected by the amendment by virtue of s 7(2)(c).

60    Thirdly, the review required to be undertaken under Part VIIIA of the DFDA was, and remained after the 2015 Amending Act, to determine whether (relevantly) the punishment or order was wrong in law or excessive and should be quashed or revoked, and/or (depending on the answer to that question) to determine when the punishment or order is to take effect. While the punishment or order therefore cannot take effect before completion of the automatic review, the reviewing authority does not stand in the shoes of the DFM on the review and determine afresh what is the correct and preferable decision as at the time that the reviewing authority makes its decision: cf Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286. There is nothing therefore in the function of the reviewing authority under the DFDA which suggests that the reviewing authority is to apply the law as amended by the 2015 Amending Act, at least insofar as the reviewing authority determined whether the punishment and orders made by the DFM should be quashed or revoked and, if not, when the orders and punishment should commence.

61    In the fourth place, as the respondent submitted, the applicant’s construction would lead to an unlikely result which surely cannot have been intended, namely, that the reviewing authority would have been in something of a “legal no-man’s land, unable to apply the current law, nor able to apply the future amendments.”

62    Finally, no transitional or other provision was relied upon by the applicant to demonstrate a contrary intention so as to displace the operation of s 7(2) of the Acts Interpretation Act; nor is any apparent: cf e.g. Attorney-General for the State of Queensland v Australian Industrial Relations Commission [2002] HCA 42; (2002) 213 CLR 485 at [13] (Gleeson CJ), [51] (Gaudron, McHugh, Gummow and Hayne JJ), [108] and [133] (Kirby J).

5.    WAS THE PENALTY MANIFESTLY EXCESSIVE OR LEGALLY FLAWED? (GROUND 6)

5.1    The issues

63    It will be recalled that the offences in respect of which the applicant was sentenced to terms of 6 months imprisonment (to be served concurrently) were for forgery contrary to s 145.1(1) of The Criminal Code, as applied relevantly to a defence member by s 61 of the DFDA. Section 145.1 provides that:

(1)    A person commits an offence if:

(a)    the person knows that a document is a false document and uses it with the intention of:

(i)    dishonestly inducing another person in the other person’s capacity as a public official to accept it as genuine; and

(ii)    if it is so accepted, dishonestly obtaining a gain, dishonestly causing a loss, or dishonestly influencing the exercise of a public duty or function; and

(b)    the capacity is a capacity as a Commonwealth public official.

Penalty:    Imprisonment for 10 years.

64    By reason of s 61(4) of the DFDA, the maximum punishment for an offence against s 61 is either the same as the fixed punishment set by the relevant Territory offence or “otherwise - a punishment that is not more severe than the maximum punishment for the relevant Territory offence.” It was not in issue that the penalty prescribed by s 145.1 of The Criminal Code was the maximum penalty and not a fixed penalty, and that the DFM was therefore vested with a sentencing discretion subject to that maximum penalty.

65    The applicant seeks a declaration that the DFM’s exercise of the sentencing discretion miscarried in its entirety so as to constitute jurisdictional error on two bases:

(1)    the DFM misdirected himself in relation to s 70 of the DFDA; and

(2)    the sentences of 6 months imprisonment were manifestly excessive so as be unreasonable in a Wednesbury sense (referring to Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223 at 230, 233-234).

66    Sentencing must be undertaken by a service tribunal in accordance with s 70 of the DFDA. That section provides:

(1)    A service tribunal, in determining what action under this Part should be taken in relation to a convicted person, shall have regard to:

(a)    the principles of sentencing applied by the civil courts, from time to time; and

(b)    the need to maintain discipline in the Defence Force.

(2)    In so far as the principles referred to in paragraph (1)(a) require the taking into account of any mitigating or aggravating circumstances, the circumstances to be so taken into account in relation to a convicted person shall include:

(a)      the person’s rank, age and maturity;

(b)      the person’s physical and mental condition;

(c)      the person’s personal history;

(d)     the absence or existence in the person’s case of previous convictions for service offences, civil court offences and overseas offences;

(e)      if the service offence involves a victim, the person’s relationship with the victim;

(f)      the person’s behaviour before, during and after the commission of the service offence; and

(g)      any consequential effects of the person’s conviction or proposed punishment.

…

(emphasis added)

67    The respondent (rightly, in my view) accepted that, while s 70 sets out a number of mandatory relevant considerations, it does not follow that the section was intended to be exhaustive. As such, it is open to a service tribunal to have regard to other considerations in the exercise of its discretion, subject to limitations derived from the subject matter, scope and purpose of the statute: see by analogy The Queen v The Australian Broadcasting Tribunal; ex parte 2HD Proprietary Limited (1979) 144 CLR 45 at 49 (the Court).

5.2    Relevant principles

68    It is well established that a failure to take into account a relevant consideration under a law of the Parliament in a manner that affects the exercise of power will constitute jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82]-[83] (McHugh, Gummow and Hayne JJ). By his first ground, the applicant contends in effect that the DFM, in failing to consider the likely sentence that would be imposed if the charges had been heard summarily by a civilian court, failed to have regard to a relevant consideration prescribed by s 70(1)(a) of the DFDA.

69    Legal reasonableness or an absence of legal unreasonableness is also an essential element of lawfulness in decision-making, it being implied that Parliament intended that a discretionary power must be exercised reasonably: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) at [26], [29] (French CJ), 362 [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J); Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 (Eden) at [58] (the Court). The decision in Li was a watershed in terms of articulating the contemporary approach to legal unreasonableness, and that decision and subsequent authorities have superseded the approach in the Wednesbery line of cases.

70    In determining whether an administrative decision is vitiated by legal unreasonableness, it is necessary first to bear in mind that the Court’s jurisdiction is strictly supervisory: Li at [66]. As the Full Court emphasised in Eden at [59]:

It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision-maker… Nor does it involve the Court remaking the decision according to its own view of reasonableness…

(citations omitted)

71    Secondly, two contexts in which the concept of legal unreasonableness may be employed have been identified in the authorities. As the Full Court explained in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 (Singh) at [44] with reference to the High Court’s decision in Li:

Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: Li at [27]-[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error.

72    The applicant submissions in this case are properly characterised as legal unreasonableness by reason of the outcome of the sentencing decision.

73    Thirdly, an evaluation of whether an administrative decision is legally unreasonable and therefore outside the range of possible lawful outcomes must be made having regard to the terms, scope and policy of the statutory source of the power: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 (Stretton) at [11] (Allsop CJ, with whose reasons Wigney J agreed at [90])). As the Full Court explained in Eden at [63]:

… in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute: Li at 349 [24] (French CJ), 363 [67]-[67] (Hayne, Kiefel and Bell JJ); Stretton at [55] and [62] (Griffiths J). The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making: Stretton at [7] and [11] (Allsop CJ). The evaluation is also likely to be fact dependant and to require careful attention to the evidence: Singh at 445[42].

74    With respect to the values of the common law to which Allsop CJ referred in Stretton, his Honour explained at [9] of that decision that:

The terms, scope and policy of the statute and the fundamental values that attend the proper exercise of power – a rejection of unfairness, of unreasonableness and of arbitrariness; equality; and the humanity and dignity of the individual – will inform the conclusion, necessarily to a degree evaluative, as to whether the decision bespeaks an exercise of power beyond its source.

75    Fourthly, in assessing whether a particular outcome is legally unreasonable, the Court held in Eden that:

62. …it is necessary to bear in mind that within the boundaries of power there is an area of “decisional freedom” within which a decision-maker has a genuinely free discretion… Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness… Such a decision falls within the range of possible lawful outcomes of the exercise of the power…”.

76    In the fifth place, determining whether a decision is unreasonable by reference to the outcome has an analogy with a consideration of whether a sentence for a criminal conviction in civil courts is manifestly excessive or manifestly inadequate so as to warrant appellate intervention in accordance with the principles in House v The King (1936) 55 CLR 499. As the High Court has held in that context, appellate intervention on that ground in the exercise of the sentencing discretion “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.” (Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 (Wong) at [58] (emphasis added)). Similarly, the majority held in Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 (Barbaro) at [43]:

43. A statement of bounds, on its face, purports to identify the points at which conclusions of manifest excess and manifest inadequacy of sentence become open. Leaving aside the evident difficulties which attend such pretended accuracy, it is important to recognise that manifest excess or manifest inadequacy of sentence found an inference of error in the exercise of the sentencing discretion. But the nature of the error that has been made is not, and cannot be, identified. All that is known is that, because the result “upon the facts… is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance” [citing House v R (1936) 55 CLR 499 at 505].”

77    Sixthly, where reasons for the decision provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable: Eden at [64].

78    Finally, findings of unreasonableness ought not to be “lightly” made: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [40]-[41]. This is particularly so where the Parliament has constituted the decision-making body as an expert body required to make decisions including having regard to its own expertise on matters of judgment such as professional standards: Reece v Webber [2011] FCAFC 33; (2011) 192 FCR 254 at 272 [50]. In this regard, while not determinative, in considering whether the suspended sentence of 6 months imprisonment is unreasonable, it should not be overlooked that it has been subject to no fewer than four reviews by experienced members of the ADF to the highest levels of the chain of command.

5.3    The applicant’s submissions

79    The applicant’s argument focused on the DFM’s statement in his sentencing remarks that:

Taking into account the serious nature of the charges, especially the use of a forged document on two occasions, in a civilian Court, a sentence of imprisonment of not less than three years could be expected. This is evident from the fact that the seriousness of the offence is indicated by the fact that a 10−year prison imprisonment may be imposed.

(emphasis added)

80    The applicant submits first that the DFM failed to consider the different outcomes that could have been expected if the matter had been dealt with summarily in a civil court as opposed to considering the outcome if it had been dealt with on indictment, contending that “JIRS statistics indicate that when tried on indictment, a custodial sentence frequently ensues, but that when dealt with summarily a custodial sentence rarely is imposed.” The applicant relied in this regard on tables depicting the sentencing statistics for all offenders tried summarily in New South Wales for contraventions of s 145.1(1) for the period 1 July 2011 to 30 June 2016. The total number of offenders falling in this category was 24.

(1)    The first table (Table A) did not differentiate between the ages of the offenders, their prior criminal histories, or whether they pleaded guilty or were convicted following a trial. The statistics show that 8% received a custodial sentence, while 13% were granted a s 20(1)(b) release. The remaining 79% received lesser penalties.

(2)    The second and third tables (Tables B and C respectively) depicted subgroups of the sentencing statistics depicted in Table A:

(a)    Table B depicted the statistics for offenders who had no prior offending, pleaded guilty and were aged from 21 to 25 years. 100% of those offenders received a s 24(1)(a) recognizance. There were two offenders only in this category.

(b)    Table C depicted the statistics for persons who had no prior offending, pleaded guilty and were aged from 26-30 years. 25% of these offenders received a s 20(1)(a) recognizance and 75% received a s 19B recognizance. There were four offenders only in this category.

81    It was not in issue that these tables were not put in evidence before the DFM; nor that neither party made submissions to the effect that the DFM was required to consider what penalty would likely have been imposed if the offences had been tried summarily in a civil court. However, no point was taken by the respondent in this regard.

82    Based upon the data in these tables, the applicant submitted that “the civil sentencing principles mandated by the first limb of section 70 of the DFDA would not ordinarily result in a custodial sentence for a person of the Appellant’s age and antecedents were the matter to be heard summarily in a civil court.” The applicant further submitted that, having regard to Commonwealth prosecutorial guidelines, it was “inconceivable” that the matter would have proceeded otherwise than summarily if the charges had been heard in the civil courts, given the small monetary amount involved, the two year maximum available for a charge when disposed of summarily, and the cost of proceeding on indictment. Accordingly, the applicant submitted that:

41. … in considering the principles of sentencing applied by the civil courts from time to time for the purpose of complying with the first limb of section 70, the learner DFM should have turned his mind to the following:

(a)    whether, had the matter proceeded in the civil courts, it was one which could have been heard summarily;

(b)    whether, had the matter proceeded in the civil courts, it was one which was likely [to] have been heard summarily;

(c)    the likely range of sentence had the matter proceeded summarily in a civil court.

83    It follows, in the applicant’s submission, that the DFM was “clearly wrong” in finding that “in a civilian court a sentence of not less than three years could be expected”, which error infected the whole of the subsequent exercise of the sentencing discretion.

84    The applicant also relied upon decisions of service tribunals in relation to matters involving conscious dishonesty that might be considered comparable to demonstrate that the suspended sentence of imprisonment was unreasonable

85    It followed therefore, in the applicant’s submission that “[h]aving regard to comparable sentences imposed in both civil and military courts… the sentence imposed by the DFM in this case was manifestly excessive to the extent of jurisdictional error.”

86    With respect to these submissions, I note that it was not in issue that, while the maximum penalty for an offence against s 145.1 is 10 years imprisonment, lower jurisdictional limits may exist on the sentence which may be imposed if the matter were tried summarily in a civilian court. Thus the jurisdictional limit of the New South Wales Local Court dealing summarily with such a charge is 2 years (s 268, Criminal Procedure Act 1986 (NSW)), as is the jurisdictional limit of the Victorian Magistrates Court (s 113, Sentencing Act 1991 (Vic)). The jurisdictional limit of the Australian Capital Territory Magistrates Court, however, is 5 years (s 375, Crimes Act 1900 (ACT)). It was also not in issue that, where the maximum applicable penalty is lower because the charge has been prosecuted in a court with limited summary jurisdiction, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit: R v Doan [2000] NSWCCA 317; (2000) 50 NSWLR 115 (Doan) at [35] (Grove J (with whom Spigelman CJ and Kirby J agreed). As such, the Court in Doan rejected the proposition that the jurisdictional limit on penalties for offences tried summarily should be reserved for a “worst case”: Doan at [35]; see also Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [99] (Johnson J (McClellan CJ at CL and Rothman J agreeing)).

5.4    Are the sentences of imprisonment tainted by jurisdictional error?

87    In my view, the applicant has not established that the DFM misdirected himself in relation to s 70(1)(a) of the DFDA in finding that in a civilian court, a sentence of imprisonment of not less than 3 years could be expected; nor has the applicant established that the suspended sentences of imprisonment of six months to be served concurrently are legally unreasonable.

5.4.1    Did the DFM fail to comply with the requirement under s 70(1)(a), DFDA?

88    As to the first alleged jurisdictional error, the requirement under s 70(1)(a) is that the service tribunal have regard to “the principles of sentencing” applied by civil courts from time to time. However, the view expressed by the DFM in his sentencing remarks as to the sentence that a civil court may have imposed in a like case does not demonstrate any failure to have regard to sentencing “principles”. Rather, the applicant’s disagreement is with the DFM’s view as to the likely outcome before a civilian court hearing like charges summarily. As such, no failure to have regard to the relevant consideration prescribed by s 70(1)(a) has been demonstrated.

89    Secondly, it is a central pillar of the applicant’s argument as to the relevance of the statistical data to the question of unreasonableness that he would have been tried summarily rather than on indictment if the charges had been heard in a civilian court. However, I agree with the respondent that in so submitting, the applicant has proceeded down an increasingly speculative path in terms of requiring the DFM to speculate as to how the matter might have been approached by the prosecuting authorities and then as to the sentence which a civilian court might have disposed of a similar matter. No authorities were referred to in support of the proposition that this approach was required in order to comply with the requirement in s 70(1)(a) and the approach is one that is, in my view, potentially a dangerous one. In particular, as the respondent submits, it would risk diverting the service tribunal from its statutory task of determining the appropriate sentence in all of the circumstances within the different context of the military justice system in which there is no equivalent prosecutorial choice.

90    Thirdly, as the respondent submits, even if the DFM was wrong in his view as to the minimum sentence which a civilian court might have imposed, that would point to an error of fact. It has long been established that an error of fact is ordinarily an error made within jurisdiction consistently with the supervisory nature of the Court’s jurisdiction on judicial review: see e.g. Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 at [48] (Nettle J). That notwithstanding, I accept that in a particular case, a deviation from comparable cases, including those in the civilian context, may be such in the particular case as to be indicative of legal unreasonableness in line with the principles earlier explained.

5.4.2    Were the suspended sentences of imprisonment of six months legally unreasonable?

91    Turning then to the question of whether the DFM’s sentence was unreasonable, first, it is evident that the DFM has not relied upon statistical data or specific comparative decisions to make his finding as to what civilian courts have imposed for like offences. Rather, as the respondent submits, the DFM has made a qualitative assessment having regard to the seriousness of the charges in this case and the objective seriousness of the offence as indicted by the maximum penalty of 10 years imprisonment. I note in this regard that it is not suggested that any statistical data was provided to the DFM.

92    Secondly, the respondent rightly conceded that, while not required by s 70(1) of the DFDA, it was open to the DFM to consider the sentence which a civilian court might have imposed on a criminal prosecution of the same offences. In other words, it was not suggested that s 70 contained an exhaustive code of the matters which may be taken into account by the service tribunal in assessing the sentence to be imposed in the particular case. However, the applicant’s reliance here upon Tables A, B and C to establish such a deviation from comparable cases as to demonstrate that the DFM must have acted unreasonably suffers from a number of difficulties as follows.

(1)    Section 70(1)(b) of the DFDA expressly provides that in sentencing, the service tribunal must take into account the need to maintain discipline within the defence force. This highlights the different purpose served by military disciplinary law, as opposed to the criminal law, and therefore the fallacy in assuming that sentences imposed in the civil context in otherwise comparable circumstances can set a benchmark by which to determine whether sentences imposed in the context of the military discipline are legally unreasonable. It follows, as senior counsel for the respondent submitted, that the contention that s 70(1)(a) requires any exact correlation with sentences imposed by civil courts is inconsistent with s 70(1)(b) which recognises that the military context is “distinct and significant”.

(2)    Further and in any event, statistical evidence of the kind on which the applicant here seeks to rely is unhelpful, given the fact specific, balancing exercise involved in the sentencing process. As French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ explained in Hili v The Queen [2010] HCA 45; 242 CLR 520:

48… Presentation in any of these forms suggests, wrongly, that the task of a sentencing judge is to interpolate the result of the instant case on a graph that depicts the available outcomes. But not only is the number of federal offenders sentenced each year very small, the offences for which they are sentenced, the circumstances attending their offending, and their personal circumstances are so varied that it is not possible to make any useful statistical analysis or graphical depiction of the results.

Thus, subsequently in The Queen v Pham [2015] HCA 39; 256 CLR 550 (Pham), French CJ, Keane and Nettle JJ held at [28] that:

(1) Consistency in sentencing means that like cases are to be treated alike and different cases are to be treated differently.

(2) The consistency that is sought is consistency in the application of the relevant legal principles.

(3) Consistency in sentencing for federal offenders is to be achieved through the work of intermediate appellate courts.

(4) Such consistency is not synonymous with numerical equivalence and it is incapable of mathematical expression or expression in tabular form.

(5) For that and other reasons, presentation in the form of numerical tables, bar charts and graphs of sentences passed on federal offenders in other cases is unhelpful and should be avoided.

(See also Barbaro at [40]-[41] (French CJ, Hayne, Kiefel and Bell JJ))

(3)    The concerns expressed in these High Court authorities are illustrated by the tables relied upon by the applicant. These contain a statistically small number of sentences (particularly Tables B and C), and lack anything other than the most basic of information about the personal circumstances of those offenders: see above at [80].

(4)    Moreover, the statistics relied upon by the applicant relate only to New South Wales and do not depict sentences imposed in comparable cases throughout the Commonwealth: cf Pham at [24].

(5)    Even putting these difficulties aside, the High Court has held that, “….in the context of determining whether a given sentence is manifestly excessive or inadequate, it should now be accepted that intermediate appellate courts must have regard to sentencing decisions of other intermediate appellate courts in comparable cases as ‘yardsticks’ that may serve to illustrate (although not define) the possible range of sentences available”: Pham at [29] (French CJ, Keane and Nettle JJ) (referring to Hili at [54]; and Barbaro at [41]). As the joint judgment held in Hili at [54], a history of sentencing can establish a range of sentences that have in fact been imposed, but “…does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits.” By analogy, the comparative material on which the applicant relied could not define the outer limits of a reasonable decision.

93    Having regard to these considerations, the statistics relied upon by the applicant fall well short of demonstrating that the sentences of imprisonment which were imposed were so excessive as to be legally unreasonable.

94    Thirdly, the applicant also sought to rely upon sentences imposed by service tribunals in other matters. Redacted copies of the sentencing remarks in those other matters were tendered by the first respondent (exhibit R-1). I refer to the cases by reference to the tab behind which they are located in exhibit R-1 save for two loose copies of decisions also included in the bundle comprising the exhibit which are referred to as the s 56 DFDA (2015) decision and the s 135.2 CCA (2015) decision respectively. The cases in Exhibit R-1 are of limited utility insofar as they are relied upon as comparative cases for the following reasons:

(1)    Four of the comparative cases relied upon involved convictions under s 145.1 of the Criminal Code Act among other offences, being cases no. 1, 3, 6 and 7. While no sentence of imprisonment was imposed with respect to the convictions under s 145.1, the reasons for the punishment were not disclosed in cases no. 1, 6, and 7. As such, the personal circumstances of the offender and offending which were taken into account are unknown.

(2)    With respect to case no. 3, the flight sergeant pleaded guilty to ten charges (1 charge, using a forged document, Criminal Code Cth s.145.1); two charges, disobeying a lawful command (DFDA s.27); one charge prejudicial conduct (DFDA s.60), one charge making false entry in a service document (DFDA s.55(l)(b)), and four charges unauthorised modification of restricted data (Criminal Code Cth s.478.1). The offences concerned altered PMKeys entries relating to the offender’s IR status and a false entry in her record of training that she had completed her weapons-handling test. The offender was sentenced to forfeiture of seniority, a fine of $3600, and a severe reprimand. The circumstances of the offending and offender however bear little resemblance to those in the present case. The DFM found that the offender’s conduct relating to the altered PMKeys entries was opportunistic, with the other charges (which comprised a single course of conduct) to cover up her earlier offending as the more serious. That conduct was towards the low end of conduct intended to be caught by s 145.1, although that did not mean that it was not serious especially in a military context. Factors balanced in the sentencing process included her plea of guilty, her demonstration of remorse, that the risk of reoffending was low and her prospects of rehabilitation excellent, that there was no loss to the Commonwealth, the fact that her offending conduct prevented her from taking part in the deployment she sought, and the expectation that defence members of her rank will set an example to others.

(3)    No reasons for punishment were disclosed in cases no. 2 and 10, so that they take the matter no further.

(4)    The remaining cases involving different offences further demonstrate the dangers in simple numerical comparisons between sentences. For example, in the s 56 DFDA (2015) decision where a FLTLT was convicted of knowingly making false or misleading statement contrary to s 56 of the DFDA, sentencing proceeded on the basis that there is no evidence of financial gain being concealed by the offender and that there was tangible evidence of contrition and remorse. As a further example, the s 135.2 (2015) decision where a WGCDR was convicted of obtaining a financial advantage contrary to s 135.2 of the CCA, the DFM categorised the offence as “regulatory in nature and, significantly… does not entail an element of dishonesty.”

95    Notwithstanding the differences, however, consistent principles can be seen to emerge from a consideration of the cases on which the applicant sought to rely where reasons were available which align with those applied in the present case. Importantly, these include the seriousness of offending where benefits designed to ameliorate the rigours of service are concerned, given that the chain of command must be able to trust members of the ADF. For example, in case no. 8 an Army BDR was convicted of two counts of obtaining a financial advantage and two counts of making a false statement in a service document. In the course of his sentencing remarks, the DFM emphasised that “[t]he system of allowances made available to members of the ADF effectively means that the Commonwealth places their trust in their employees to only use those allowances appropriately and when authorised to do so. The law recognises in the case of offenders of this kind that general deterrence is an important sentencing objective.” The DFM later emphasised the point again, finding that that “the victim is the Commonwealth and the offending involves a breach of trust. In a service where there are a multitude of allowances available for members, trust in Defence members who are granted such allowances is imperative for the proper operation of the system.”

96    Finally, as the respondent contended, in determining whether the sentencing remarks of the DFM demonstrate jurisdictional error, the DFM’s view as to the likely sentence which a civilian court might have imposed should be read fairly bearing in mind that this was an ex tempore decision and in the context of the sentencing remarks as a whole. In this regard, ultimately the DFM did not impose a sentence of imprisonment even approaching the three year sentence of imprisonment which he expected in all of the circumstances may have been imposed if charges of this seriousness had been before a civilian court. Rather, when the sentencing remarks are considered as a whole, the DFM’s view on the likely sentence by a civilian court did not ultimately sound in any significant way in his decision as to the appropriate sentence, as senior counsel for the respondent submitted. In particular, in deciding to sentence the applicant here to a suspended sentence of six months imprisonment concurrently for charges 9 and 11, it is apparent that those particular matters which the DFM weighed against various mitigating factors were:

(1)    the objective seriousness of the charges for which a maximum penalty of 10 years imprisonment was prescribed;

(2)    that the applicant had used calculated strategies to abuse the system of rental assistance;

(3)    that he had shown contempt for the privilege of rental assistance by his emails; and

(4)    that he had knowingly and deliberately destroyed the trust on which the ADF relies from its members.

97    In line with the principles earlier explained, the question is not whether this court agrees with the sentence, that is, whether this court would have imposed the same sentence. The parties proceeded on the basis that it was necessary for the applicant to establish legal unreasonableness in the jurisdictional sense. In approaching the exercise of sentencing in the manner outlined above at [96] and explained in more detail earlier, no such error is apparent from the DFM’s reasoning; nor may it be implied from the outcome. Rather, it is apparent that in line with s 70(1)(a) and (b) of the DFDA, the DFM has had regard to the need to maintain discipline in accordance with s 70(1)(b), taken account of the matters required by s 70(2), and applied sentencing principles in line with s 70(1)(a). As to the last of these matters, his approach reflects among other things the principle that a sentencing judge in a civilian court must take account of all of the circumstances of the offence and the offender so as to balance the many different and conflicting features, and reach a single sentence for each offence: Wong at [75]-[76]: Barbaro [43].

98    Finally, the applicant’s reliance upon his expressions of remorse and the expert evidence led as to his mental state in support of his submission that the sentence was unreasonable ignores, with respect, that the DFM was not persuaded by the applicant’s statements of remorse and did not accept the expert evidence. It was rightly not alleged that those findings were tainted by any error of a jurisdictional kind.

99    In all of the circumstances, therefore, I do not consider that the applicant has established that the suspended sentences of imprisonment were legally unreasonable or failed to take into account sentencing principles as required by s 70(1)(a) of the DFDA.

6.    THE CONSTITUTIONAL CHALLENGE (GROUNDS 1-4)

6.1    The issues

100    The Applicant raises two arguments, namely, that the defence power does not extend to the making of a law authorising the imposition of a punishment of imprisonment:

(1)    where an order for the applicant’s dismissal was been made concurrently with the sentence of imprisonment;

(2)    where there is no right to "review of sentence by a court exercising the judicial power of the Commonwealth".

101    However, no issue is raised as to the nature of the connection required in order that an offence validly fall within the scope of s 51(vi), that is, as to the difference between the “service status” and the “service connection” view of military jurisdiction that may legitimately fall within the scope of s 51(vi), as described by McHugh J in Re Colonel Aird; ex parte Alpert [2004] HCA 44; (2004) 220 CLR 308 at [36]-[37].

6.2    Section 51(vi) of the Constitution extends to military discipline

102    Section 51(vi) confers power on the Commonwealth Parliament to make laws “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 laws of the Commonwealth”. The defence power (as the applicant submits) is purposive in nature, being referable to “aims or objectives” rather than subject-matter. As a consequence, a determination of whether the law falls within the scope of the defence power may involve a consideration of questions of proportionality, that is, that the means employed by the Parliament must be proportionate to a legitimate end within the head of power: Thomas v Mowbray [2007] HCA 33; (2008) 233 CLR 307 (Thomas v Mowbray) at [135] (Gummow and Crennan JJ). As Dawson J explained in Leask v Commonwealth (1996) 187 CLR 579 at 605-606:

Taking the defence power for example, a court must ask whether a law is for the purpose of defence. There is no subject matter as there is with other powers – lighthouses or external affairs, for example – and it is therefore not possible to delineate the boundaries of the power by reference to the subject matter: the acts, facts, matters or things upon which a law with respect to defence may operate are, at least in wartime, virtually without limits. To determine the validity of a law said to be supported by purposive power, a court must ask whether it is a law for the specified purpose, and the law may have to enquire into whether the law goes further than is necessary to achieve that purpose. That is an exercise in proportionality.

103    As alluded to in this passage, proportionality in this context will also be affected by whether the Commonwealth is in a time of peace or war.

104    Nonetheless, even in times of peace, the defence power must be broadly construed in common with the other constitutional heads of legislative power: see e.g. Thomas v Mowbray at [7] (Gleeson CJ), [138]-[140] (Gummow and Crennan JJ). As Fullagher J explained in the Australian Communist Party v Commonwealth (1951) 83 CLR 1 (the Australian Communist Party Case) at 254, such matters as:

… the enlistment (compulsory or voluntary) and training and equipment of men and women in navy, army and air force, the provision of ships and munitions, the maintenance of weapons and the erection of fortifications… These things can be undertaken by the Commonwealth as well in peace as in war, because they are ex facie connected with ‘naval and military defence’. From any legitimate point of view of a Court their only possible purpose or object is naval and military defence… The defence power in its primary aspect includes much more than the things I have mentioned. It could not, I think, be doubted that it includes a power to make laws for the prevention or prohibition and punishment of activities obstructive of the preparation by such means as I have mentioned of the nation for war – and this whether war appears to be imminent or the international sky to be completely serene.

105    Equally, it is well established that laws for the imposition of military discipline and establishment of courts martial fall within the scope of the defence power in s 51(vi): R v Bevan; ex parte Elias and Gordon (1942) 66 CLR 452 (Bevan) at 467-468 (Starke J), 479 (McTiernan J) and 481 (Williams J). More recently, the High Court held in Re Tracey; ex part Ryan (1989) CLR 166 CLR 518 (Re Tracey) and White v Director of Military Prosecutions (2007) 231 CLR 570 (White) that the defence power authorises the Commonwealth to make laws establishing a system of military discipline irrespective of whether Australia is involved in armed conflict.

106    As an aspect of this, the High Court has repeatedly upheld laws vesting power in a service tribunal that is not a Chapter III court to impose punishment, including imprisonment, on service members of service offences on the ground that such tribunals do not exercise the judicial power of the Commonwealth. As the majority explained in Haskins:

21. … Legislation permitting service tribunals to punish service members has been held to be valid on the footing that there is, in such a case, no exercise of the judicial power of the Commonwealth. Punishment of a member of the defence force for a service offence, even by deprivation of liberty, can be imposed without exercising the judicial power of the Commonwealth. Because the decisions made by courts martial and other service tribunals are amenable to intervention from within the chain of command, the steps that are taken to punish service members are taken only for the purpose of, and constitute no more than, the imposition and maintenance of discipline within the defence force; they are not steps taken in exercise of the judicial power of the Commonwealth.

(Emphasis added)

6.3    The applicant’s first contention: the alleged limitation upon imposing concurrent sentences of dismissal and imprisonment

107    The Applicant contends that the defence power in s 51(vi) of the Constitution does not extend to authorise an order of imprisonment of an ADF member where that member has concurrently been dismissed and that s 68(1)(b) authorising a punishment of imprisonment for a specific period is therefore invalid.

108    By virtue of s 71(1) (the validity of which is not challenged), a service tribunal is precluded from imposing a punishment of imprisonment on an ADF member convicted of a service offence unless the tribunal also imposes on that member in respect of that conviction the punishment of dismissal from the Defence Force. There is no equivalent requirement where the lesser punishment under s 68(1) is imposed instead of detention. This statutory hierarchy of punishments reflects the particular stigma associated with imprisonment which, in turn, would seem to explain the necessity for dismissal where imprisonment is ordered. As the respondent submitted, the specific punishment of detention traces back to amendments made in 1906 by the British Parliament to the Army Act 1881 (Imp) which was expressed to be “[f]or the purpose of preventing soldiers convicted against discipline, under the Army Act, and not discharged with ignominy, from being subjected to the stigma attaching to imprisonment”: Army (Annual) Act 1906 (Imp), s 4 (amending s 44 setting out the available punishments for offences by persons subject to the Act). The 1906 Act also inserted s 135A providing that detention (as opposed to imprisonment) was to be served in military custody or a detention barrack, but not in a public prison.

109    The High Court held in Haskins:

9. At all times the Discipline Act has distinguished the punishment of “detention” from that of “imprisonment”.… detention is a form of punishment imposed “[w]here there are reasonable grounds for expecting the offender to be rehabilitated” and is intended to serve three purposes: deterrence, punishment and rehabilitation. By contrast, imprisonment is generally a punishment of last resort and must be accompanied by the punishment of dismissal from the defence force.

110    As earlier mentioned, the applicant’s arguments in support of these grounds were developed only briefly in the written submissions and not expanded upon in oral argument save in reply. Specifically, the applicant submitted that:

12. As to the first ground of Appeal, it could not be said that the sentencing of a defence member (which must be concurrent with dismissal) could be said to be for the promotion of discipline within the Defence Force except by way of general and specific deterrence.

13. The person has been who has been so sentenced as at the time of sentencing, ceased to be a member of the Defence Force. The person will serve his sentence as a civilian, rather than as a Defence Member. The situation would be different if a person was sentenced to a period of incarceration in a military prison, followed by dismissal from the Defence Force. The deterrent effect would be no less great. The secondary aspect of the defence power does not arise in sufficient degree to authorise imprisonment in a civilian prison rather than detention in a military detention facility.

111    In effect, the applicant submits that the connection between imprisonment and the head of power in s 51(vi) is broken once the person subject to disciplinary action is dismissed. With respect, the submissions are conclusory only. No reference is made in the submissions to the line of High Court authority as to the permissible constitutional limits of military discipline save for references to certain passages in the judgment of Kirby J in dissent in Thomas v Mowbray. I agree with the respondent that the applicant’s contention does not, with respect, withstand analysis.

112    First, no submissions were ultimately put in support of the proposition that a sentence authorising imprisonment in a civilian prison could not validly be imposed. As such, I understand that any such proposition was rightly abandoned by the applicant. As the High Court most recently observed in Haskins, the imposition of punishment including deprivation of liberty is within the defence power. The proposition that a law of the Commonwealth could not authorise the imposition of a sentence of imprisonment for a service offence to be served in a civilian prison, as opposed to other forms of punishment, could not serve a legitimate defence purpose so as to fall beyond the scope of s 51(vi) is unsustainable.

113    Secondly, as the applicant accepts, there is a defence purpose in providing that a sentence of imprisonment is available to a service tribunal, namely, general deterrence effect on remaining members of the Australian Defence Force. That being so, the fact that a sentence of imprisonment is accompanied by a sentence of dismissal does not as a matter of logic affect the existence of the defence purpose. To the contrary, imprisonment coupled with dismissal was no doubt intended to increase the general deterrent effect. Furthermore, an offence under s 145.1 of the CCA as applied by s 61 of the DFDA is a serious one in which dishonesty is an element, the commission of which therefore potentially affects the trust necessary between members of the ADF and the chain of command. In those circumstances, it could not be suggested in my view that a law authorising the imposition of a sentence of imprisonment and dismissal goes beyond that which is proportionate to the imposition and maintenance of discipline within the Defence Force. Applying the principles earlier referred to, it follows that the challenge to the validity of s 68(1)(b) of the DFDA must fail.

114    Thirdly and consistently with this view, the authorities have held that s 52(vi) is not limited to laws imposing military discipline upon members of the Defence Force contrary to the applicant’s submissions. Thus in R v Cox; ex parte Smith (1945) 71 CLR 1, the High Court held that a soldier convicted of a service offence and sentenced to detention but also to dismissal remained liable to trial by court martial for a new offence while in detention. As Dixon J held at 23-24 that:

In the case of the armed forces, an apparent exception is admitted and the administration of military justice by courts-martial is considered constitutional (R v Bevan). The exception is not real. To ensure that discipline is just, tribunals acting judicially are essential to the organisation of an army or navy or air force. But they do not form part of the judicial system administering the law of the land. It is not uniformly true that the authority of courts-martial is restricted to members of the Royal forces. It may extend to others who fall under the same general military authority, as for instance those who accompany the armed forces in a civilian capacity. To include them with members of the armed forces as liable to courts-martial would involve no infringement upon the judicial power of the Commonwealth. In the same way, I think that to subject discharged men held in a detention camp or barracks to the authority of a court-martial would be warranted by the same considerations, founded upon the necessity of a just discipline as apply to the army itself.

115    Similarly, Williams J held at 27 that “[t]here are many occasions in which civilians are placed in such a position that it is necessary in the interests of defence, including the maintenance of discipline, to subject them to military law and to trial by court martial for offences under that law.”: see also Latham CJ at 14.

116    R v Cox was followed in Ex parte Cupit; Re Cupit (1954) 72 WN(NSW) 186; 55 SR (NSW) 184. In that case the applicant had been convicted of a service offence, murder, while serving in the Army in Korea but was found to be insane at the time the offence was committed. The applicant was brought back to Australia and held in custody, including after his subsequent discharge from the Army, ostensibly under s 130 of the Army Act providing for persons found guilty of service offences but insane to be kept in custody during the Governor’s pleasure. The New South Wales Court of Appeal unanimously rejected the applicant’s argument that as soon as he was discharged, he ceased to be subject to s 130 of the Army Act and that there was no longer authority for retaining him in custody. Rather, the Court held at 188 that:

… although the confinee is no longer subject to the Army Act, that fact does not put an end to the consequences which occurred to him while he was subject to it. Those consequences being in their nature such as would exist in time independently of his continued subjection to the Army Act, continue although that act no longer applies to him. There is no necessity for an express provision to ensure that a consequence incurred while subject to the Army Act should continue until it has been worked out. Whilst subject to the Act, the confinee became lawfully subject to the orders of the Governor-General of the Commonwealth of Australia for his safe custody during the pleasure of the Governor-General. That is a consequence which continues to apply to him during the pleasure of the Governor-General whether he is subject to the Army Act or not.

117    Fourthly, as the respondent submits, imprisonment together with dismissal have comprised part of military discipline and justice well before Federation. The pre-Federation legislative history of the power of courts martial to try and sentence members of the defence forces is relevant to a consideration of the scope of s 51(vi), providing context against which to undertake the task of constitutional construction: see e.g. Re Tracey at 541; White at [9] (Gleeson CJ). In this regard, in Re Tracey, Mason CJ, Wilson and Dawson JJ explained at 542 that:

By the time of federation, each of the Australian colonies had enacted legislation dealing with defence. That legislation reveals a pattern whereby United Kingdom statutes were invoked, in varying circumstances, to provide for the discipline of the forces… It is significant, therefore, that s 45 of the Naval Discipline Act and s. 41 of the Army Act – the sections being the forerunners of s. 61 of the [DFDA] were already operative in this country when s. 51(vi) of the Constitution was drafted. After federation, the colonial legislation continued in force in each of the States until it ceased to apply on the enactment of the Defence Act 1903 (Cth): see s 6. The Defence Act, in ss. 55 and 56, apply the provisions of the Army Act or the Naval Discipline Act respectively to the military and naval forces of the Commonwealth while on active service.…

118    That history is also significant in the present case for two reasons.

(1)    First, s 44(c) of the Army Act 1881 (Imp) provided for the imposition of sentences of imprisonment, including in public prisons (ss 131-132, Army Act 1881). Indeed, it would appear that since the Mutiny Act of 1823, an alternative punishment to corporal punishment was imprisonment, with one recourse widely followed being confinement of soldiers in civil gaols as opposed to barrack cells: Peter Burroughs, “Crime and Punishment in the British Army 1815-1870”, (1985) 100 The English Historical Review 545 at 564.

(2)    Secondly, s 44(2) and (4) of the Army Act 1881 respectively provided that an officer must be “cashiered” before he is sentenced to penal servitude or imprisonment and may be sentenced to “discharge with ignominy from Her Majesty’s service.” The reference to “cashiered” is a reference to the additional penalty imposed upon officers to forfeit their commission (which were generally bought by officers) to the Crown, with the consequence that they could not on-sell their commissions. The Explanatory Memorandum to the Defence Force Discipline Bill 1982 (HR) recognised that then cl 71(1) providing that a sentence of imprisonment cannot be imposed unless accompanied by dismissal, was a variation of the pre-existing practice of cashiering, stating that:

633. Present practice is similar, but existing law makes provision only in relation to imprisonment, with regard to which Army and Air Force law requires dismissal (cashiering) to be imposed only if the convicted person is an officer, and Navy law requires dismissal only if the period of imprisonment exceeds 2 years.

In this regard, the Explanatory Memorandum stated at [615] that “[c]ashiering has been dropped because the punishment of dismissal is considered to be adequate.”

119    Finally, I note that the applicant contended that s 68(1)(b) “would appear to rest for its constitutional validity on the second limb of the defence power, rather than the first.” That submission must be rejected. Rather, Mason CJ, Wilson and Dawson JJ held in Re Tracey at 540 that the Defence Force is “necessarily comprehended by the first part of s 51(vi) for the reason that the naval and military defence of the Commonwealth demands the provision of a disciplined force or forces” while the content of the second limb relates to the work of law enforcement which was not the ordinary function of the armed services.

6.4    The applicant’s second contention: the alleged requirement for an appeal

120    In support of his contention that s  68(1)(b) of the DFDA is invalid, the applicant also submits that:

14. The second and third grounds of appeal suggest that the defence power, and particularly the limb cannot authorise a sentence to be determined by executive act without review of sentence by a Court exercising the judicial power of the Commonwealth.

15. The Defence Force Discipline Appeals Act (1955) by section 20 makes provision for appeals to the Tribunal as to conviction, but does not make provision for appeals as to sentence. Similarly, the operation of Item (o) of Schedule 1 of the Administrative Decisions Judicial Review Act (1977) excludes judicial oversight under that act [sic]. The practical effect is that the length of any sentence imposed under the DFDA, including sentences of imprisonment for life or for a specified period, are at the effective discretion of the executive arm of government.

121    As the applicant submits, s 20 of the Defence Force Discipline Appeals Act 1955 (Cth) (DFD Appeals Act) provides only for an appeal to the Defence Force Discipline Appeal Tribunal (DFDA Tribunal), including with leave on a ground that is not a question of law. Further, as the applicant also submits, judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) is also excluded. However, the ground alleging that this leads to invalidity because there is no judicial review or “appeal” must be dismissed.

122    The short answer is that the ground fails to grapple with the fact that a service tribunal does not exercise the judicial power of the Commonwealth but is concerned with the imposition of discipline within the Defence Force. As the majority held in Haskins:

21. … this Court has repeatedly upheld the validity of legislation permitting the imposition by a service tribunal that is not a Ch III Court of punishment on a service member for a service offence. Legislation permitting service tribunals to punish service members has been held to be valid on the footing that there is, in such a case, no exercise the judicial power of the Commonwealth. Punishment of a member of the defence force for a service offence, even by deprivation of liberty, can be imposed without exercising the judicial power of the Commonwealth. Because the decisions made by courts martial and other service tribunals are amenable to intervention from within the chain of command, the steps that are taken to punish service members are taken only for the purpose of, and constitute no more than, the imposition and maintenance of discipline within the defence force; they are not steps taken in the exercise of the judicial power of the Commonwealth.

123    However, those constituting service tribunals are officers of the Commonwealth for the purposes of s 75(v) of the Constitution and therefore s 39B of the Judiciary Act 1901 (Cth) which confers like jurisdiction to s 75(v) upon this Court. As such, the decisions of service tribunals, including as to the sentences imposed, are subject to judicial review, of which these proceedings are an example: Haskins at [56]. It follows that the argument that judicial oversight of the exercise of the sentencing discretion is excluded is incorrect.

124    In so far as the applicant suggests that the right of judicial review afforded by s 75(v) and s 39B jurisdiction is less beneficial than an appeal against conviction of a criminal offence, that would not lead to invalidity. First, under s 73 of the Constitution, the High Court has jurisdiction to hear and determine appeals from all judgments, decrees, orders and sentences of any justice or justices of the High Court, of any other federal court or court exercising federal jurisdiction, or any other court of any State from which an appeal lay to the Queen in Council at federation, and of the Inter-State Commission but only as to questions of law. Subject only to the “anomalous exception” of the Inter-State Commission, “it has been assumed that the reference to judgments, decrees, orders and sentences relates to determinations made by the relevant courts in the exercise of judicial power.”: Mellifont v Attorney-General (Qld) (1991) 173 CLR 289 at 300 (Mason CJ, Deane, Dawson, Gaudron and McHugh JJ). Any law which purported to exclude an appeal contrary to s 73 of the Constitution would plainly be invalid. However, no appeal lies to the High Court from service tribunals under s 73 which, as explained above, do not exercise the judicial power of the Commonwealth and do not, either by their jurisdiction or constitution, constitute a Chapter III court. That being so, there is no basis on which it could be said that the lack of provision for an “appeal” against a sentencing decision of a service tribunal offends Ch III of the Constitution, even if service tribunals exercise non-federal judicial power as the applicant’s submissions on this aspect of his argument assume.

125    Thirdly and in any event, an appeal is not a common law remedy and (save for s 73 of the Constitution) appellate jurisdiction must therefore be created by statute: Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573 (Lacey) at [8] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). At common law, as the High Court also explained in Lacey at [8], there was no jurisdiction to entertain appeals by convicted persons or the Crown against conviction or sentence. Furthermore, statutory rights of appeal against sentence in criminal proceedings have limited the circumstances in which the appellate court can interfere to cases where it can be demonstrated that the court below has acted on a wrong principle: House v The King (1936) 55 CLR 499; Lacey at [9]-[13]. It is not enough in line with those principles, that an appellate court may have exercised the sentencing discretion differently and considers that the sentence imposed was over-severe. As such, as the respondent submits, while not identical, there is significant overlap between the principles articulated in House v The King and the unreasonableness ground of judicial review.

126    Fourthly, although styled an “appeal”, an appeal on a question of law from the DFDA Tribunal under s 20 of the DFD Appeals Act falls within the original jurisdiction of the Federal Court: Hembury v Chief of the General Staff [1998] HCA 47; (1998) 193 CLR 641 (Henbury) at [31] (Gummow and Callinan JJ); Li v Chief of Army [2013] HCA 49; (2013) 250 CLR 328 at [6] (French CJ, Crennan, Kiefel, Bell and Gageler JJ). The Federal Court does not in such a case exercise jurisdiction akin to that of a Court of Criminal Appeal: Henbury at [31].

127    It follows that the applicant’s contention that s 68(1)(b) of the DFDA is invalid by reason of the absence of a right of “appeal” or “review” cannot be sustained.

7.    CONCLUSION

128    For the reasons set out above, the application must be dismissed. I will hear the parties as to costs, in the event that the respondent seeks his costs. Otherwise, I will make an order that there be no order as to costs.

Associate:

Dated:    21 September 2017