The judgment states
On 30 January 2017, Daniel Matthew Igoe voluntarily subscribed to “the King’s hard bargain”, a traditional description for the rendering of military service to the Crown, made inaccurate in modern times only by the gender of the current Sovereign. He enlisted in the Australian Army. On that day, he became an Officer Cadet (OCDT), assigned for training and education to the Australian Defence Force Academy (ADFA). OCDT Igoe did not, by becoming a member of an arm of the Australian Defence Force (ADF), forfeit his civil rights and obligations or join a separate, military caste within Australian society. Rather, he assumed additional obligations, not the least of which was subjection to the Defence Force Discipline Act 1982 (Cth) (DFDA).
The DFDA may aptly be described as a disciplinary code for the Australian profession of arms. Such a code is essential not just for the efficiency and effectiveness of a military force but also so that a military force does not become a threat to a democratic society. The parliamentary mandate for the existence of the ADF is presently found in s 17 of the Defence Act 1903 (Cth) (Defence Act) with the DFDA being its disciplinary code. That the authority for the existence of each of the arms of the ADF and their discipline is parliamentary is not coincidental. It forms part of our constitutional heritage from the United Kingdom. I described that heritage and the origins of parliamentary authority for the existence of a military force and provision for its discipline in Millar v Bornholt [2009] FCA 637; (2009) 177 FCR 67, at [16] – [21] and [26] – [27]. Suffice it to say, though the memory in the latter half of the 17th century of how the regicide of King Charles I evolved not into a republican ideal but instead into the dictatorship of Lord Protector Cromwell, backed by the New Model Army was very fresh when the Bill of Rights 1688 (Eng) and the Mutiny Act 1688 (Eng) were enacted, that memory has proved an enduring one in terms of the threat that an unregulated military can present to civil liberties and democratic government.
These features of the ADF, the integration of its disciplinary code into its chains of command and an understanding of that constitutional heritage have underpinned the upholding of the valid operation of the DFDA and its predecessors and of the validity of the service tribunals (a court martial or a Defence Force magistrate (DFM)) for which the DFDA presently provides in a succession of cases in the High Court. The understanding just mentioned is evident in two authorities cited with approval by Gummow, Hayne and Crennan JJ in their joint judgment in the culminating case in that succession of High Court cases, White v Director of Military Prosecutions [2007] HCA 29; (2007) 231 CLR 570 (White v DMP), at [71] and [72]. Their Honours there cite the following passage in the title “Royal Forces” in the first edition of Halsbury’s Laws of England (vol 25, [79]):
It is one of the cardinal features of the law of England that a soldier does not by enlisting in the regular forces thereby cease to be a citizen, so as to deprive him of any of his rights or to exempt him from any of his liabilities under the ordinary law of the land. He does, however, in his capacity as a soldier, incur additional responsibilities, for he becomes subject at all times and in all circumstances to a code of military law contained in the Army Act, the King’s Regulations and Orders for the Army, and Army Orders.
They also cite this observation by Windeyer J, whose knowledge of legal history and experience of military service was profound, in Marks v The Commonwealth [1964] HCA 45; (1964) 111 CLR 549, at 573:
The relationship of members of the armed Services to the Crown differs essentially from that of civil servants whose service is governed by the regulations of the Public Service. The members of the Forces are under a discipline that the others are not: they have duties and obligations more stern than theirs: and rights and privileges that they cannot claim.
Not by coincidence, having regard to one of its predecessors, s 41 of the Army Act 1881 (UK), s 61 of the DFDA incorporates by reference a body of general criminal law and renders transgressions thereof, anywhere in the world, by a defence member or other individual subject to the DFDA a service offence. In the case of the DFDA, the body of criminal law incorporated by reference constitutes what are termed “Territory offences” (s 3 definition) and comprise: (a) an offence against a law of the Commonwealth in force in the Jervis Bay Territory other than [the DFDA] or the regulations [made thereunder]; or (b) an offence punishable under any other law in force in the Jervis Bay Territory (including any unwritten law) creating offences or imposing criminal liability for offences.
On 20 April 2020, OCDT Igoe, who had the benefit of representation by a Defending Officer who was a legal practitioner (Colonel R. Pearce), pleaded guilty before a DFM (Brigadier (BRIG) M Cowen QC, the third respondent) to the following service offences created by s 61 of the DFDA and was charged accordingly:
(a) First charge: That being a defence member in Canberra in the Australian Capital Territory on 17 August 2019, [the applicant] captured visual data of [OCDT XX, a female officer cadet] which a reasonable person would in all the circumstances consider the capturing of visual data to be an invasion of privacy and indecent. The particulars of that charge are said to be – (i) The visual data was captured by [the applicant] on a mobile phone using the social media platform Snapchat; (ii) The visual data captured [OCDT XX] engaging in sexual intercourse with OCDT Igoe and [Midshipman (MIDN) XY]; (iii) The visual data was captured at the Australian Defence Force Academy living-in accommodation.
(b) Second charge: That contrary to section 61(3) of the DFDA and the Crimes Act 1900 of the [Australian Capital Territory] section 72C, non-consensual distribution of intimate image, it’s said against [the applicant] being a Defence member at Canberra in the Australian Capital Territory on 17 August 2019, [the applicant] distributed an intimate image of [OCDT XX], being reckless about whether [OCDT XX] consented to the distribution.
The particulars of that charge are – (i) The intimate image was a moving image that depicted [OCDT XX] engaging in sexual intercourse with OCDT Igoe and [MIDN XY]; (ii) [The applicant] used the social media platform, Snapchat, to send the moving image to [two female officer cadets] and an unidentified civilian; (iii) The Snapchat had a caption with words to the effect of, “Threesomes with [XY] are fun”.
In this quotation of the charges, I have deleted the names of the other two ADFA cadets, one a female (XX), the other another male (XY) who conjointly participated with OCDT Igoe in consensual sexual activity at the ADFA barracks accommodation on 17 August 2019. On 20 July 2020, subject to exceptions which it is not necessary to detail, acting under the power conferred on the Court by s 37AF of the Federal Court of Australia Act 1976 (Cth) (FCA), I made an order prohibiting the publication of the names of these other two officer cadets. I did so because of my conclusion that it would be antithetical to, if not subversive of, the very purpose of rendering the charged conduct a service offence to allow the publication of the names of the other participants in what was otherwise a consensual, sexual activity conducted in private. Further, although the conduct was charged as service offences, rather than, as it alternatively could have been, as civilian, criminal offences, it also seemed to me that the naming of the other participants would occasion unnecessary distress or embarrassment to those individuals, which was also contrary to the proper administration of justice. I have also deleted from the quotation the names of the other ADFA cadets to whom the moving image was sent, because no useful purpose would be served by naming them. I record that the making of the non-publication order was supported both by OCDT Igoe and by the Chief of Army, Lieutenant General R Burr, AO, DSC, MVO, who was the second and only active party respondent. As they each acknowledged, it may be that the suppression of the names of the other participants in the consensual sexual activity is otherwise ordained by law but, there being ample power in s 37AF, and occasion under s 37AG, of the FCA so to have ordered, it is unnecessary to explore that subject further.
A third charge, which it is unnecessary to detail, was withdrawn by the Prosecuting Officer (Major C Kanaley) in the course of the proceedings before the DFM on 20 April 2020.
After the pleas of guilty were taken to each remaining charge, a statement of agreed facts was tendered to the DFM. These enlarged a little upon the essential facts of the offending conduct admitted by the pleas. Notably, however, there was nothing in these agreed facts about the technical characteristics of the “Snapchat” software program. The DFM then heard submissions in relation to sentence from both the Prosecuting Officer and the Defending Officer.
In the course of the submissions, what was recorded and transmitted by OCDT Igoe was described as a “loop” of about 10 seconds duration. Once again, there was nothing put in these oral submissions as to the technical characteristics of the “Snapchat” software program. The Defending Officer made reference in submissions to a civilian, criminal law case, heard in the Supreme Court of the Australian Capital Territory involving the conduct of two male ADFA cadets in what was described as “the Skype incident”. It arose from a Skype broadcast of consensual sexual activity between one of the accused and a female officer cadet, broadcast without her permission by him to, and viewed by, the other of the two accused. The two male cadets were found guilty, in the case of one of committing an act of indecency on the female complainant cadet and using a carriage service in a manner which was offensive and, in the case of the other, using a carriage service in a manner which was offensive. Each was convicted but ordered to be released upon entering into a bond to be of good behaviour for a period of 12 months.
The case concerned was R v Deblaquiere and McDonald, ACT Supreme Court Nos 346 of 2011 and 405 of 2011, 23 October 2013 (Deblaquiere and McDonald).
After submissions were completed, the DFM adjourned until later in the day in order to consider the disposition of the case. Over the course of the adjournment, the DFM obtained a copy of the sentencing proceedings in Deblaquiere and McDonald. On resuming, the DFM disclosed this to counsel, described the key features of the sentencing proceeding in that case as he saw them and invited both the Prosecuting Officer and the Defending Officer to make such further submissions as they wished arising from this. The Defending Officer put that, “The conduct was not so different as would warrant a different penalty”, even allowing for the military disciplinary nature of the present case. A further exchange followed between the DFM and the Defending Officer, in which the DFM mentioned two other recent military discipline cases involving the non-consensual photographing of female defence members while they were naked, neither of which, as the DFM noted, had involved an element of distribution of the images. The DFM observed that “circumstance[s] of this nature are coming before this jurisdiction more regularly”. For her part, the Prosecuting Officer highlighted that, although there had been an apology by OCDT Igoe to XX the morning after for sending a Snapchat out, XX had not then been aware as to the content of what had been sent.
The DFM then further adjourned, on this occasion for about an hour and a half. Upon resuming, the DFM proceeded to deliver his sentencing reasons ex tempore. At the commencement of these reasons, the DFM described what had been transmitted as a “loop recording”. However, later in his reasons, and more than once, he described the recording as an “indelible record”. In particular, he contrasted that characteristic of the recording in the present case from that in Deblaquiere and McDonald as a basis for a conclusion that the present case was more serious. He observed, “There has been a gross breach of trust in this case. Such an offence in the ADF can have a significant impact upon service discipline”. He also observed, “It is significant to my mind that 11 other people saw this. The serious aspect is that having created the image you then distributed it”.
Before pronouncing sentence, the DFM inquired, in turn, of the Prosecuting Officer and of the Defending Officer whether either had anything else to say. The Prosecuting Officer replied in the negative. The Defending Officer, inferentially at the request of OCDT Igoe, sought a moment to confer. To this the DFM replied, “Certainly”. Having so done, the Defending Officer stated: On my instructions, the video, once it’s accessed on Snapchat disappears. There is in fact no permanent record of the video. So I’ll just point that out if your Honour might like to factor that into your reasoning.
The DFM then inquired of the Defending Officer whether the video would continue to exist on OCDT Igoe’s membership account with Snapchat. To this the Defending Officer replied: No, I’m instructed not, your Honour. And I’m not an expert in the area but as I understanding it using the Snapchat app allows the conveyance, or the distribution of the message but the message and its contents then disappear, they're no longer retrievable once the recipient has accessed them.
The DFM then asked the Prosecuting Officer as to whether she agreed that Snapchat had this characteristic. She replied that she was “not an expert” on Snapchat, adding: So when someone receives the video it goes through twice and then it disappears. So the loop will play twice, you can close it and then reopen it and it will disappear after the second viewing, is my understanding.
The Prosecuting Officer also stated that she would take the Defending Officer’s word as to whether any recording remained on OCDT Igoe’s device once sent via Snapchat.
After this clarification of the characteristics of the Snapchat software application, the DFM made supplementary sentencing remarks which must be set out in full, given the course of events which these proceedings have taken:
Yes, thank you for putting that on the record, Mr Defending Officer. It’s relevant in this sense that what I meant to convey was once it’s sent to other people one loses control over that imagery. So I accept everything that's been said, that the imagery can disappear, but it doesn’t mean it’s not theoretically possible - and whilst I don’t have any information about this before me and he's not getting sentenced on that basis -it's not impossible for somebody else to record the imagery in that sense. So if somebody, for example, received an image and someone else was recording them receiving it then it is recordable. So I accept what you say in relation to it. The most serious aspect of this case is the distribution of it, having taken it. And what I was seeking to do was to distinguish that between - the Skype incident was live streaming and this offence, which is distributing the image. But I accept your submission and it's certainly not contradicted by the prosecution. And I’m sure if it was, for example if the prosecution had the imagery then that would have been contradictive.
Having delivered these supplementary remarks, the DFM then concluded his reasons in this way:
I accept that this is poor judgment, out of character, but I am satisfied that you are not a fit person to be a member of the Defence Force, but also I need to take into account general deterrence and maintenance of service discipline. I do not accept the submission that was made that in a civilian arena imprisonment would not be imposed in these circumstances. Your offending, to my mind, is so serious that the conclusion I have reached is, not only will you be dismissed from the Defence Force, but you are going to be sentenced to a relatively short period of imprisonment.
The DFM then imposed on OCDT Igoe, in respect of each charge, a sentence of dismissal from the ADF and imprisonment for a period of 35 days, the imprisonment to be served concurrently.
Having imposed the sentence, the DFM then inquired of a disciplinary warrant officer present as to whether he had two, at that stage, enveloped documents, one an order suspending OCDT Igoe from duty, the other an order into custody, pending the review of the sentence by a reviewing authority. The warrant officer examined the contents and confirmed that he had them. These were then served on OCDT Igoe and he was taken into custody accordingly.
Initially, something was sought to be made in submissions of the existence of the enveloped documents prior to the pronouncement of sentence. However, it came to be accepted that these always had an escrow status. It appears that they were generated prior to the clarification submission and in conjunction with the imminent delivery of the sentencing reasons by the DFM. The DFM could, if persuaded to a different view by the clarification, have directed that the enveloped documents be destroyed. The transcript discloses that the DFM approached his sentencing task with consummate fairness. He was patently receptive to the clarification offered. As will be seen, the arguable jurisdictional errors lie not in any apprehension of bias in relation to the reception of the clarification but in its assimilation in terms of applicable sentencing principles. The DFDA, by s 152(2), provides for a mandatory review, by a reviewing authority within the ADF chain of command, of proceedings before a service tribunal resulting in a conviction. Such reviews must be completed within 30 days of the receipt of the record of proceedings or, if this is prevented by the exigencies of service, as soon as practical thereafter. In this instance, the relevant reviewing authority was the first respondent, Major General (MAJGEN) M Ryan AM, the commander of the Australian Defence College.
By s 154(1)(a) and in respect, materially, of a conviction by a DFM, such a review is not to commence without first obtaining a report concerning the proceedings by “a legal officer appointed, by instrument in writing, for the purposes of this section by the Chief of the Defence Force or a service chief on the recommendation of the Judge Advocate General”. Such reports bind the reviewing authority on “any opinion on a question of law set out in a report”, subject only to a right on the part of a reviewing authority to refer a report so obtained to the Judge Advocate General or, if the Judge Advocate General so directs, to a Deputy Judge Advocate General: s 154(2) and s 154(3) of the DFDA respectively. The Judge Advocate General or, as the case may be, a Deputy Judge Advocate General may dissent from this report in which case this dissenting opinion then binds the reviewing authority on the question of law concerned: s 154(4), DFDA.
Apart from this automatic process of review, a defence member convicted and sentenced by a service tribunal may, under s 153 of the DFDA, submit a petition to the reviewing authority for the review of the conviction and sentence. Where this occurs, and it did in this instance, the automatic and review by petition processes converge with the reviewing authority determining the result both on automatic review and taking into account the grounds advanced in the petition.
Subject to the binding effect of these opinions on matters of law, a reviewing authority is granted power by the DFDA to quash convictions (s 158), to impose a different but not more severe punishment, within those open in respect of the service offence concerned, to that imposed by the service tribunal (s 169) or to approve the punishment imposed by the service tribunal. A punishment imposed by a service tribunal is operative only when confirmed by a reviewing authority: s 172, DFDA. A reviewing authority is empowered to determine when a punishment takes effect: s 168, DFDA.
The legal officer who provided the report to the reviewing authority was Group Captain (GPCPT) His Honour G Lynham, a Queensland District Court judge who holds, as a persona designata appointment, and as the DFDA envisages to be lawfully possible, a commission in the ADF. The voluntary involvement over the years of a number of judicial officers at many levels in Australia’s military justice system may not widely be known but, in my experience, is one of the strengths of that system.
In his report, GPCPT Lynham expressed an opinion that the convictions were not attended with any legal error but that the sentences of imprisonment were excessive. As he was entitled, the reviewing authority referred this report to the Judge Advocate General. In this instance, the Judge Advocate General directed that the opinion concerning it be furnished by a Deputy Judge Advocate General. The Deputy Judge Advocate General – Air Force, Air Commodore G Lerve, a New South Wales District Court judge also holding a persona designata appointment in the ADF furnished the opinion. He did not differ from GPCPT Lynham in relation to the convictions but considered that the sentences of imprisonment were not excessive, opining that a sentence even up to imprisonment for 3 months would not have been excessive.
On 27 May 2020, MAJGEN Ryan, as reviewing authority, confirmed the sentences, ordering that OCDT Igoe be transferred from his then present military custody to Silverwater Prison to commence serving his sentence of imprisonment on 9 June 2020.
On 29 May 2020, the second respondent, Chief of Army, refused an application by OCDT Igoe for a further review of the proceedings under s 155 of the DFDA.
On 3 June 2020, OCDT Igoe commenced proceedings in this Court under s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act) seeking that the sentence imposed on him by the DFM and the decision of the reviewing authority be quashed.
On 4 June 2020, on an urgent, ex parte basis and then on 5 June 2020, after hearing from the respondents Collier J, as duty judge and pending the docketing of the case to a judge, made interlocutory injunctive orders the effect of which was to restrain the sentence of imprisonment being carried into effect, pending the hearing and determination of the judicial review application: Igoe v Major General Michael Ryan AM (In his capacity as a Reviewing Authority) [2020] FCA 789. Those orders, which came on 5 June 2020 to be made consensually, did not disturb that part of the sentence which dismissed OCDT Igoe from the ADF.
On 9 June 2020, the proceeding having by then been docketed to me, I made various interlocutory orders to the end of the judicial review application being heard on 20 July 2020.
Quite properly, both MAJGEN Ryan as reviewing authority and the DFM, BRIG Cowen, have filed submitting appearances. Equally properly, the Chief of Army who, as the professional head of the Australian Army, is responsible to the Chief of the Defence Force (CDF) for, materially, its discipline, assumed the role of contradictor. In turn, while the CDF has command of the ADF (s 9, Defence Act) and with that responsibility for its discipline, the general control of the ADF is vested in the Minister for Defence (s 8, Defence Act). It is the Minister or, as occasion requires, the Federal Executive Council, who, in turn, advises the Governor-General in the latter’s role, as the Queen’s representative, as commander in chief of the ADF (s 68, The Constitution). This is a further manifestation of the subordination of the ADF to the civil power, reflecting our constitutional heritage.
As will be seen, the professional responsibility of the Chief of Army for the discipline of the Australian Army and his role as contradictor is not without significance for the disposal of this proceeding.
Compliance with the pre-trial interlocutory orders had reached the point of the filing of the contemplated court book of relevant documents when, on 2 July 2020, OCDT Igoe and the Chief of Army, the only active parties, jointly sent to chambers proposed orders for the consensual disposal, pursuant to r 39.11 of the Federal Court Rules 2011 (Cth) (Rules), of the proceeding. The orders as then proposed contemplated the quashing of so much of the decisions made by the DFM, and confirmed by the reviewing authority, as required the imprisonment of OCDT Igoe but contemplated that his dismissal from the ADF be left in place.
No explanation accompanied these proposed orders. This should not have occurred. On any view, the relief proposed entailed the exercise of a judicial discretion: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 (Aala), at [5], per Gleeson CJ, at [43] – [62], per Gaudron and Gummow JJ, at [145] – [150], per Kirby J, at [172], per Hayne J and, at [217], per Callinan J. It was by no means self-evident on the face of the proposed orders that it was appropriate to make them. Accordingly, I forthwith directed that the parties furnish an explanation as to why the proposed orders ought to be made. A joint explanation was received on 8 July 2020. Upon perusing this, I was not satisfied that it was appropriate to make the proposed orders without further explanation. Particular issues were drawn to the attention of the parties and provision was made for the filing of related written submissions with 20 July 2020 being reserved for the hearing of consequential oral submissions. Each of the active parties filed further written submissions, which were then supplemented by oral submissions on 20 July 2020.
These further submissions, both oral and in writing, together with a related exchange concerning them in the course of the hearing on 20 July 2020 were of assistance both to me and to the parties in terms of what orders might aptly be made without a full hearing on the merits. So it was that, on 20 July 2020, at the joint request of the active parties, I adjourned the proceeding to 27 July 2020 to enable discussions between them to be completed and requisite instructions obtained.
The hearing on 20 July 2020 also exposed a need for the originating application to be amended so as to include a claim for a writ of prohibition to be made in addition to certiorari as originally claimed. The Court’s jurisdiction under s 39B(1) of the Judiciary Act to issue writs of mandamus or prohibition against an officer of the Commonwealth is, subject to exceptions of no present relevance, the same as the constitutionally entrenched, original jurisdiction of the High Court conferred by s 75(v) of the Constitution. The conferral of jurisdiction to issue these writs carries with it by implication the conferral of authority to issue a writ of certiorari, as a form of incidental or ancillary relief: Aala, at [14], per Gaudron and Gummow JJ; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476, at [80], per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
Late on 24 July 2020, the active parties foreshadowed in a joint communication to chambers, and confirmed in open court by the tender for filing on 27 July 2020, revised orders the making of which they jointly proposed. Those revised proposed orders are as follows:
The Applicant is granted leave to amend the application to seek an order prohibiting the First and Second Respondents from executing the Warrant of Commitment to Imprisonment to imprison the Applicant dated 27 May 2020. The First and Second Respondents be prohibited from executing the Warrant of Commitment to Imprisonment to imprison the Applicant dated 27 May 2020. The decision of the First Respondent dated 27 May 2020 in accordance with ss 152, 153 and 172(1) of the Defence Force Discipline Act 1982 (Cth) be quashed. The decision of the Third Respondent (the sentence decision) dated 20 April 2020 be quashed. The sentence decision be remitted to a different Defence Force Magistrate to be considered and decided again [according to law]. The Second Respondent pay the Applicant’s reasonable standard costs fixed at $15,200 inclusive of GST and disbursements. [Parenthetical addition by me to paragraph 5, to accord with the usual form of order on remitter]
It is appropriate to make orders in the above terms. The interests of justice require that why that is so be disclosed in reasons for judgment published in open court.
Of course, no amount of consent can confer jurisdiction. However, two military discipline cases which came before the High Court during World War 2, R v Bevan; Ex parte Elias and Gordon [1942] HCA 12; (1942) 66 CLR 452 and R v Cox; Ex parte Smith [1945] HCA 18; (1945) 71 CLR 1, confirm what a reading of s 75(v) of the Constitution would in any event suggest, which is that those members of the ADF with particular duties in the administration of its military justice system as in force from time to time are officers of the Commonwealth, amenable to being required by writ of mandamus to perform those duties according to law or, as the case may be, to being prohibited by writ of prohibition from carrying out those duties otherwise than according to law. White v DMP is a modern example of the existence of this jurisdiction.
It is possible to find earlier United Kingdom authorities, of which R v The Army Council; Ex parte Ravenscroft [1917] 2 KB 504 (Ravenscroft) is a leading example and in which earlier authorities are collected which, if read uncritically, might be thought to suggest that the courts do not issue prerogative (or, as in recent times, they are termed in Australia, “constitutional”) writs such as mandamus in relation to military discipline cases. On analysis though, these cases do nothing more than highlight that such writs do not go in respect of cases involving nothing more than the making of discretionary value judgments concerning the command and discipline of the armed forces or, in the exercise of judicial discretion, are dismissed where it can be seen that there is an adequate alternative remedy available, for example via a redress of grievance petition through a chain of command. Save in relation to constitutional issues, the existence in the DFDA of automatic review or review by petition might be thought in most cases to warrant peremptory dismissal on discretionary grounds of endeavours to seek constitutional writs to challenge punishments imposed by service tribunals immediately after their imposition and prior to review. In Ravenscroft, at 511, Viscount Reading CJ (with Ridley and Avory JJ delivering separate judgments to like effect) allowed that a mandamus might go upon breach of a duty which an applicant had a right to enforce.
There is thus no doubt then that the Court has jurisdiction under s 39B of the Judiciary Act to grant substantive relief of the kind promoted by the parties. In relation to the ancillary order providing for the remaking of the sentence decision on remitter by a different DFM, even if s 39B did not itself provide the requisite power, that would be supplied by s 23 of the FCA. The fixing of costs is authorised by s 43 of the FCA. Jurisdiction is one thing, occasion for its exercise is another.
More particularly, there is no provision in Australian law for an appeal against a sentence imposed by a service tribunal as confirmed or varied by a reviewing authority. During the brief existence last decade of the Australian Military Court, the Defence Legislation Amendment Act 2006 (Cth), by amendments to the Defence Force Discipline Appeals Act 1955 (Cth) (Appeals Act), made provision for appeals to the Defence Force Discipline Appeal Tribunal (Tribunal) against punishments imposed by that supposed court. However, when the invalidity of the establishment of the Australian Military Court was exposed by Lane v Morrison [2009] HCA 29; (2009) 239 CLR 230, and the previous system of service tribunals was restored, provision for appeals to the Tribunal against punishments was not retained. It had never previously been possible to appeal to the Tribunal against a punishment imposed by a service tribunal.
It may well be that there is a public policy reason why, save for what must now be regarded as an aberration, there has never been provision in Australian military law for appeals against sentence. In the aftermath of World War 2, a need for a right of appeal to a legally qualified tribunal, sitting in public and outside the military chain of command, in respect of the lawfulness of court martial proceeding convictions was recognised both in the United Kingdom, Australia, in comparable Commonwealth jurisdictions as well as in the United States: see the Second Reading Speech of the then Minister for Defence, the Honourable Sir Philip McBride: Australia House of Representatives, Commonwealth Parliamentary Debates, (10 May 1955) Vol 6 (New Series), p 566; see also: Enderby KE (then Barrister and Senior Lecturer, ANU Law School; later Australian Attorney-General and later yet a judge of the New South Wales Supreme Court), Courts-Martial Appeals in Australia (1964) 1 FedLR 95. Parliamentary recognition of this need was manifested by the enactment of the Appeals Act with its provision for the establishment of the Tribunal and an appeal to the Tribunal against convictions by service tribunals. Unlike the position with civilian juries, a court martial does not just determine whether an offence is proved beyond reasonable doubt, it also, in the event of conviction, determines the appropriate punishment to impose from a list of punishments specified in the DFDA and, as to imprisonment, subject to any maximum applicable period of imprisonment for the commission of the service offence concerned. A reviewing authority within a military chain of command reviews both conviction and sentence. Unlike in relation to conviction, the imposition of a sentence in respect of a service offence either by a service tribunal or a reviewing authority entails the making of value judgments as to what is appropriate in relation to the maintenance of discipline of the ADF. This is expressly recognised as a sentencing principle by s 70(1)(b) of the DFDA. Given this principle, it by no means follows that the legal knowledge and experience necessary to determine the merits of an appeal against conviction would be apt, having regard to s 70(1)(b) of the DFDA, for a civilian tribunal (or court) to determine, for example, whether punishment imposed by a service tribunal was manifestly excessive. Such public policy considerations would be for parliament to consider in the event that the theoretical possibility of consigning adjudication of guilt and punishment in respect of alleged service offences to a court established under Ch III of the Constitution were ever contemplated. For the present, it is enough to recognise that it would not be an appropriate exercise of judicial power to make orders in the nature of constitutional writs and grant ancillary relief, even if consensually promoted, if such orders and relief in effect amounted to a re-exercise of a sentencing discretion by the Court.
Emphatically, certiorari is not a substitute for an absence of express provision for an appeal: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, at 175 (Craig). Instead, it is a remedy by which a superior court such as this Court supervises the acts of an inferior court or tribunal. It is no part of that remedy that the superior court may substitute its own opinion for that of the inferior court or tribunal. Rather, as was explained in Craig, at 175 – 176, occasion for the issuing of certiorari is only to be found in the following:
Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and “error of law on the face of the record”. Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the “record” of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record.
Also highlighted in Craig, at 176, with respect to certiorari are differences in relation to jurisdictional error between inferior courts on the one hand and tribunals exercising executive power on the other. The succession of cases in the High Court which culminated in White v DMP confirm that neither courts martial nor DFM exercise the judicial power of the Commonwealth. That is not to say that they do not exercise their power judicially. As Gleeson CJ observed in White v DMP, at [14]:
To adopt the language of Brennan and Toohey JJ in Tracey, history and necessity combine to compel the conclusion, as a matter of construction of the Constitution, that the defence power authorises Parliament to grant disciplinary powers to be exercised judicially by officers of the armed forces and, when that jurisdiction is exercised, “the power which is exercised is not the judicial power of the Commonwealth; it is a power sui generis which is supported solely by s 51(vi) for the purpose of maintaining or enforcing service discipline”.
Because an officer is not eligible to be appointed as a DFM unless a member of the judge advocates’ panel, each and every DFM must be a legal practitioner of at least five years standing: see s 127 and s 196(3), DFDA. Taken in conjunction with the sui generis nature of the jurisdiction which they exercise and having regard to the observations made in Craig about distinctions between inferior courts and tribunals with respect to jurisdictional error, that may well carry with it ramifications in relation to the occasion for the granting of certiorari in relation to a decision of a DFM. The position of a DFM, sui generis though that is, is rather closer to an inferior court than to a purely administrative tribunal. The course which events have taken in the present case makes it unnecessary further to consider this subject.
Craig is also noteworthy for the discussion, at 180 and following, as to what constitutes the “record” for the purpose of determining whether there is error of law on the face of the record. As was noted in Craig, at 180, with the aim of curbing the excessive availability of certiorari directed to magistrates, there were legislative reforms in the nineteenth century confining their “record” to “documents initiating and defining the matter in the inferior court and the impugned order or determination”. As Craig exposes, it by no means follows that the “record” of a civilian court includes a transcript of proceedings before it.
The position may be different in relation to a service tribunal. By s 148(1) of the DFDA, “A service tribunal shall keep a record of its proceedings and shall include in that record such particulars as are provided for by the rules of procedure”. The relevant rules as at 20 April 2020 were the then recently made Court Martial and Defence Force Magistrate Rules 2020 (Cth), r 52(1) of which materially provides:
52 Record of proceedings before court martial or Defence Force magistrate (1) Where the proceedings before a court martial or Defence Force magistrate are not recorded electronically, they shall be recorded in sufficient detail to enable the course of the proceedings to be followed, and the merits of the case to be judged, from the record, and in particular ... The balance of this rule is directed to that part of proceedings directed to the trial of whether a service offence has been proved, not the sentencing proceeding.
Nonetheless, insofar as occasion for the granting of the relief promoted may be found in error of law on the record, it is at least arguable, having regard to that part of r 52(1) quoted, that the “record” before the DFM includes the transcript of the sentencing proceedings, including his reasons. That is not without importance as each of the errors promoted depends for its ascertainment upon regard to that transcript. There was no issue between the parties as to whether it was appropriate to look to that transcript. In these circumstances and given that the position is arguably in favour of so doing, I have had regard to the transcript. Further, insofar as jurisdictional error was alleged, it may in any event be open to look to that transcript. I refrain, because it is unnecessary in the circumstances so to do, from expressing any concluded view as to what constitutes the “record” of a sentencing proceeding before a DFM.
I note, without more, that none of the issues just discussed was raised for consideration in Rowley v Chief of Army [2017] FCA 1119, an earlier case in which the judicial review of punishment imposed by a service tribunal was sought.
