ICAC and procedure

 R v Bell [2020] SADC 107 deals with allegations of inappropriate procedure by the South Australian Independent Commissioner Against Corruption (ICAC). It is of interest for people considering the operation of Australian anti-corruption agencies.

State MP Troy Bell was charged with 20 counts of theft and six counts of dishonestly dealing with documents allegedly committed between 2009 and 2013. His application for a stay of the proceedings on the basis they are an abuse of process  is said to arise from the ICAC's referral of the matter to the state DPP rather than to the state police force (SAPOL), the ongoing effect of notations on summonses and non-communication directions and the involvement of the ICAC investigators in the criminal process after charges were laid. 

The District Court holds that  

The ICAC's referral of the matter direct to the DPP, and the provision of information and evidence to the DPP at that time, was contrary to the ICAC Act. 

The matter should have been referred to the SAPOL for further investigation and prosecution. 

The involvement of the ICAC investigators in the prosecution of the charges once laid was beyond the functions of the ICAC. 

The failure to address notations on summonses and non-communication directions in a timely manner once charges were laid and the use by investigators of unexplained references to s 54 of the ICAC Act in emails when liaising with witnesses has resulted in at least a perception of forensic advantage to the prosecution and forensic disadvantage to the Applicant. 

The actual prejudice is not such that there is no means of remedying the unfairness. 

The circumstances are not such that allowing the prosecution to proceed would so much bring the administration of justice into disrepute that the prosecution should be stayed.

 In 2018 the ABC reported 

The trial for a South Australian MP accused of misappropriating more than $2 million of public funds will involve allegations of "money laundering", "document forging" and "outright thefts", the District Court has heard. Independent member for Mount Gambier Troy Bell pleaded not guilty to 20 counts of theft and six counts of dishonestly dealing with documents in June. The charges related to the time the former teacher spent running an independent learning centre in Mount Gambier between 2009 and 2013. He resigned from the Liberal Party in August last year, but continued as an independent MP. Mr Bell has strenuously denied any wrongdoing since being charged, and had previously said he looked forward to an opportunity to "clear his name". Prosecutor Mark Norman SC told the District Court Mr Bell's trial would be "extraordinarily complicated" and would likely run for up to three months. ..

The judgment states

The Applicant, Troy Stephen Bell, is charged with 20 counts of theft contrary to s 134(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) and six counts of aggravated dishonest dealings with documents contrary to s 140(4) of the CLCA. It is alleged the offending occurred between July 2009 and March 2013 at Mt Gambier. 

He has made an application for an order that these criminal proceedings be permanently stayed on the basis they are an abuse of process. The final version of the application is the further amended application for directions dated 8 July 2020, which sets out five grounds for the stay. The grounds arise from the investigation of this matter by the Independent Commissioner Against Corruption (the ICAC). The general basis of the application is that the ICAC, having conducted an investigation, had no power to refer the matter directly to the Director of Public Prosecutions (SA) (the DPP). Instead, the matter should have been referred by the ICAC to the South Australian Police (SAPOL). The exercise of the ICAC’s powers of investigation was permissible insofar as it was for the purpose of assembling a brief of evidence to be referred to SAPOL for further investigation and prosecution, but not permissible for the purpose of assembling a brief of evidence for direct referral to the DPP. Further, it is said that the continuing involvement of the ICAC in the preparation of the matter for trial alongside the DPP (rather than SAPOL, who were not involved at any stage) was beyond his jurisdiction. The exercise of his powers after referral was unlawful. The result is that the Applicant cannot now receive a fair trial. The direct referral and the subsequent conduct has resulted in a fundamental alteration to the accusatorial process. 

... In March 2014, the Office of Public Integrity (OPI) received a complaint which was assessed by the OPI as a matter raising a potential issue of misconduct in public administration. Under s 24(2)(b) of the ICAC Act, the matter was referred to the Department of Education and Child Development (DECD) for investigation. 

On 12 November 2014, following receipt of an internal audit from the DECD, the matter was re‑assessed by the Deputy ICAC as raising potential issues of corruption in public administration. Under s 24(1)(a) of the Independent Commissioner Against Corruption Act 2012 (ICAC Act), the ICAC determined that the matter should be investigated by him. As part of that investigation, the ICAC exercised his power to examine three witnesses, Mr Shelton, Mr Fox and the Applicant’s wife, Mrs Michaela Bell. He also issued search warrants and obtained search warrants following application to the Supreme Court. 

On 2 May 2017, the ICAC ‘referred’ the matter to the DPP. 

On 9 August 2017, an Information was filed in the Magistrates Court in the Director’s name laying charges against the Applicant. On 18 June 2018, the Applicant was committed for trial from the Magistrates Court to the District Court. 

On 9 October 2018, the Information was filed in the District Court. The Applicant was arraigned and pleaded not guilty. On 21 March 2019,[12] the trial date was listed to commence on 8 October 2019. 

On 4 July 2019, the trial date was vacated because the Applicant’s counsel was unable to continue due to ill health. The Applicant briefed alternative counsel and the trial was re-listed to commence on 6 July 2020. 

Statement of the grounds of the application for a permanent stay 

Grounds 3 and 4 of the application focus upon the ICAC’s referral of the matter, and provision of information and evidence to the DPP in May 2017. The Applicant submits the ICAC had no power to refer a matter for prosecution directly to the DPP (ground 4), or to provide evidence and information directly to the DPP (ground 3). Such is said not to be authorised by s 7 or s 36 of the ICAC Act (ground 4) or s 54, s 56A or sch 2 cl 3 of the ICAC Act (ground 3). 

Ground 4 is set out in the application as follows: The ICAC, having determined to conduct an investigation pursuant to section 24A(1)(a) of the Act, had available to him upon completion of his investigation the powers as contained in section 36(1) of the Act. That is, the ICAC was empowered to: 5.1 ‘refer a matter to the relevant law enforcement agency for further investigation and potential prosecution’; and, or 5.2 ‘refer a matter to a public authority for further investigation and potential disciplinary action against a public officer for whom the authority is responsible’. 

The ICAC therefore had no power to refer this investigation directly to the Director of Public Prosecutions (SA) and thereafter retain conduct of it. The referral, and all actions subsequent, were beyond power and constitute an abuse of process justifying a stay. 

Ground 3 is set out in the application as follows: Neither the ICAC nor an investigator appointed under the Act has jurisdiction to authorise the deployment of information obtained under search warrant, summonses to witnesses, compulsory examination or any other power under the Act beyond that prescribed in the Act, and in particular, for use or receipt as evidence in criminal proceedings not instituted under the ICAC Act. 

In so far as sections 54, 56A and schedule 2 clause 3(13) and (4) refer to the disclosure and use of information in a criminal investigation or proceedings, they are limited to criminal proceedings under the ICAC Act. Section 36 does not authorise unrestricted use by or publication to any other person or to a court of law. 

Ground 1 of the application focuses upon the conduct of the ICAC after the referral to the DPP in regard to three witnesses (Mr Shelton, Mr Fox and Mrs Bell who had been examined pursuant to s 29(1) of the ICAC Act prior to the referral) and in regard to another person (Mr Wheaton) who was the subject of an exercise of power to produce documents under s 29(2) of the ICAC Act after the referral. The contention is that the exercise of powers for the non‑communication of information and evidence in relation to those persons, which persisted for years (Mr Shelton, Mr Fox and Mrs Bell), or were made, after charges were laid (Mr Wheaton), has amounted to the prosecution having property in those witnesses. 

Ground 1 is set out in the application as follows:

The Independent Commissioner Against Corruption (‘ICAC’), by exercising his powers under the Independent Commissioner Against Corruption Act 2012 (SA) (‘the Act’), to seize documents, summons and examine witnesses and thereafter direct each of the witnesses summonsed for examination not to speak with persons (including the accused and his solicitors) about their examination and its subject matter, has acted unlawfully (see grounds 2, 3, and 4) and interfered with the fundamental premise of the accusatorial system that there is no property in witnesses, such that the accused cannot receive a fair trial. 

Ground 2 of the application combines the other four grounds and adds other aspects of the conduct of the ICAC to comprise the basis for a stay of the proceedings. It focuses upon conduct of the ICAC before referral to the DPP ([2.5] and [2.6] which comprise ground 5, [2.7]), conduct of the ICAC in referring the matter directly to the DPP ([2.10], [2.11], [2.13] which are grounds 3 and 4) and conduct of the ICAC following referral to the DPP ([2.1], [2.2], [2.3], [2.4], [2.8], [2.9] which is ground 1, [2.12]). 

Ground 2 is set out in the application as follows: 

2. The ICAC and his investigators, by; 

2.1 purporting to use its powers to seize or otherwise compel the production of documents and things, 

2.2 summonsing the witnesses, Robert Shelton and Peter Fox for compulsory examinations, requiring each of them to answer questions (including about seized or compulsorily acquired documents or things); 

2.3 summonsing a witness, Michaela Bell, who was not compellable against the accused by virtue of section 21 of the Evidence Act 1929 (SA), and requiring her to answer questions; 

2.4 converting the transcripts of compulsory examinations into a written statement of fact for use in a criminal proceeding when those transcripts and the evidence recorded in them were each inadmissible in a criminal proceeding; 

2.5 obtaining, and purporting to execute, search warrants from the Honourable Justice Lovell which were General Warrants and illegal and void, and thereafter purporting to seize documents or things and require the assistance of persons in doing so under the purported power of the warrants; 

2.6 issuing, and purporting to execute, search warrants which were General Warrants and illegal and void, and thereafter purporting to seize documents or things and require the assistance of persons in doing so under the purported power of the warrants; 

2.7 obtaining notice of the accused’s proposed defence by telephone intercepts in breach of legal professional privilege and using that notice for the express purpose of obtaining evidence to negate the accused’s proposed defence; 

2.8 purporting to prevent witnesses interviewed by investigators from disclosing any subject matter connected with the investigation, or their involvement in it, to anyone else save for those persons mentioned in section 54 of the Act, including the accused or his legal practitioners, by virtue of section 54 of the Act, both before and after the commencement of the prosecution by the laying of the Information; 

2.9 purporting to prevent the witnesses Shelton, Michaela Bell and Fox from disclosing to the accused and/or his legal practitioners that each was the subject of a compulsory examination under the Act or to otherwise discuss the evidence they may potentially give, including evidence exculpatory of the accused, with the accused and/or his legal advisers; 

2.10 disclosing evidence which is inadmissible against the accused to the Director of Public Prosecutions (‘DPP’) for the purposes of the DPP determining whether there was a prima facie case, reasonable prospects of conviction, and the public interest lay in prosecuting the accused, for the purpose of determining whether or not to lay criminal charges against the accused; 

2.11 disclosing evidence and material obtained under the Act to the DPP for use in a criminal proceeding against the accused; 

2.12 attending at proofings of prosecution witnesses by solicitors and counsel for the DPP; and 2.13 failing to refer the investigation to SA Police or a law enforcement agency within the meaning of the act for further investigation and potential prosecution, and instead referring a brief of evidence to the DDP in breach of section 36 of the Act;

has: 

undermined the fairness of the accused’s trial such that the accused cannot now receive a fair trial; undermined the accusatorial system of criminal justice such that the accused cannot now receive a fair trial; 

engaged in conduct in the investigation, both before and after the commencement of the within prosecution, which is vexatious, oppressive and unfair, and engaged in conduct in the investigation which brings the administration of justice into disrepute;

such that in all the circumstances the Information should be stayed as an abuse of process of this Honourable Court. 

Ground 5 relates to search warrants issued prior to the referral to the DPP. Ground 5 is set out in the application as follows:

The search warrants issued on 28 April 2016 by the Honourable Justice Lovell and on 4 May 2017 by the ICAC were general warrants and were illegal and void.

The Court's Summary of findings is 

One of the primary objects of the ICAC Act is to establish the ICAC with functions designed to further the identification and investigation of corruption in public administration. The primary object of the Commissioner is to investigate a matter raising a potential issue of corruption in public administration. A function of the ICAC is to identify corruption in public administration and then investigate it or refer the matter to SAPOL for investigation. The ICAC is invested with extraordinary powers to investigate corruption. Prosecution of an offence falling within the definition of corruption in public administration forms no part of the Commissioner’s functions. If a matter arising out of a corruption investigation is to be prosecuted in South Australia, then it must be referred by the ICAC to SAPOL via s 36(1)(a) of the ICAC Act. 

Once referred, if the matter is to proceed to charges and trial, SAPOL is to have conduct of the matter, as would occur in the ordinary course when criminal proceedings are on foot. The functions and powers of the ICAC do not extend to the gathering of evidence for the purpose of those criminal proceedings. After referral, if the ICAC has cause to perform functions or exercise powers in respect of that particular matter, the ICAC must endeavour to avoid prejudice to the accused person. 

The ICAC’s referral of this matter direct to the DPP in May 2017, with the provision of information and evidence at that time, was contrary to the ICAC Act. The matter should have been referred to SAPOL for further investigation and prosecution. The involvement of the ICAC investigators in the prosecution of the charges once laid (including serving the Applicant with the Information and Summons, purporting to restrict the ability of the Applicant to disclose matters, filing declarations and declaration delivery certificates in court, contacting witnesses and potential witnesses to obtain declarations, preparing witness statements from transcripts of examinations, exercising the s 29A power to inspect and take copies of financial records and exercising the s 29(2) power to require production of documents) was contrary to the ICAC Act. 

The failure to address notations on summonses and non‑communication directions in a timely manner once charges were laid and the use by investigators of unexplained references to s 54 (confidentiality provision in the ICAC Act) in emails when liaising with witnesses or potential witnesses has resulted in actual, or at least a perception of, forensic advantage to the prosecution and forensic disadvantage to the Applicant. 

The court does not condone conduct which is contrary to the ICAC Act. Nevertheless, a permanent stay of a criminal prosecution is an extraordinary step which will very rarely be justified. 

The actual prejudice to the Applicant is not such that there is no other means of remedying the unfairness. Nor is this a case in which allowing the prosecution of the Applicant to proceed would so much bring the administration of justice into disrepute that the prosecution should be stayed.

Weed and the Constitution

'How section 90 of the Constitution makes cannabis law reform less likely in Australia' by Patrick Keyzer in the latest Alternative Law Journal comments 

Cannabis law reform is unlikely in Australia because section 90 of the Constitution gives the exclusive power to tax goods to the Commonwealth, yet it is the states and territories that have the power to decriminalise use. What incentive does a state have to decriminalise cannabis if they cannot tax it? This article summarises the High Court’s s 90 jurisprudence. It also briefly explores the question of whether the states or territories could impose a levy on cannabis as a ‘fee for services rendered’ in the event that a user accesses state health services for cannabis-related health conditions.

Bureaucratisation and boredom

'The Corporatisation of Education: Bureaucracy, Boredom, and Transformative Possibilities' by Millicent Churcher and Debra Talbot in (2020) 100-101 new formations: a journal of culture/theory/politics 28-42 comments 

 In school and tertiary education sectors, the rise of accountability regimes parallels the growth in bureaucracy and marketisation of knowledge work. Increasing student numbers have not been matched by an increase in teaching staff, whilst new administrative positions in accounting, marketing, and legal services have ballooned. In this paper we are concerned to examine the impact of these institutional changes on the lived experiences of education professionals. In this context we are particularly interested in the potential rise of boredom among staff, and how boredom may work alongside other affects to generate both compliance and resistance to hyper-bureaucratic trends. Empirical studies on the intensification of ‘administrivia’ and ‘busy work’ in educational settings reveal among staff a perceived loss of intellectual integrity, longer work hours and impaired productivity, as well as diminished opportunities for interpersonal engagement. The collective feelings of anger, resentment, anxiety, and frustration that have accompanied these conditions have real potential to bottom out in feelings of disengagement and boredom among educators. Noting boredom’s role in sustaining hyper-bureaucratic structures within the education sector, we critically examine whether and to what extent it might also form part of shifting affective dynamics that can drive resistance to the proliferation of these structures.

Nekpen Euodia Okhawere's 'Colonisation of academic: a critical examination of academics' response to neoliberal practices in universities' (PhD dissertation, University of Newcastle) states 

The advancement of neoliberalism across the world, particularly in social institutions, brings value conflicts manifested in changes to professional practice and control of work. These conflicts are especially stark in universities where traditional values of academic freedom and collegiately are subsumed by institutional financial and reputational imperatives requiring greater centralised control of academics and their work. Although, much has been written about these conflicts and the disquiet they bring to academics, the question of why academics seemingly comply with neoliberal policies and practices remains a mystery. Studies on academic resistance to neoliberalist practices tend to conclude resistance is more individual, ideological and symbolic than collective and actual. Most academics grudgingly conform to the dictates of neoliberalism knowing it is not in their own interests nor the interests of academe generally. They justify compliance on the grounds of simply ‘playing the game’, however, this begs the question of when does the game become the reality. The aim of this thesis is to understand which university practices most affect academics, how these practices are experienced by academics, the tensions they create for academics, and how academics respond to these tensions. The research is based on a critical narrative analysis of 37 interview transcripts from academics across disciplines and employment levels in a single university. The analysis is underpinned by the Theory of Advanced Liberal Governance to explore the governance mechanisms through which academics experience and respond to neoliberal changes. The four governance mechanisms most affecting academics are decision-making; resource allocation; work allocation and work assessment. Although, most academics report negative experiences of these mechanisms, a small group welcome the change away from traditional university governance. The three main tensions arising from academics’ experience of these mechanisms are tensions between: academics as economic or social contributors; knowledge as a public good or a commodity and performance management or academic freedom. A collective narrative approach is employed to demonstrate four responses to the tensions through four fictional academic narratives. The responses are classified as: the Believer; Survivor; Victim and Resistor. In common with related studies, the Believer and the Resistor are the minorities. Unlike previous research, this research looks further into why the Survivor and Victim represent most academics and finds the omnipresence of governance processes supplemented by technology make it difficult to escape and thus resist. Additionally, the pressures on academics to perform and to a lesser extent fear, allow little time for academics to reflect on what is happening around them and/or being able to react so it becomes easier to comply in the short term. The research brings us back to the big questions around the future of academics and their universities; will we eventually be the Believer or Victim, or remain in a state of survival? Given the power of neoliberal governance practices, the future for resistance is not optimistic. The research is not without its limitations, including being a qualitative study in a single university, however, it does point to important areas for further investigation. One potentially intriguing question for further research relates to the Believer and what it is that allows the believer to embrace and prosper under neoliberal practices. Overall, the thesis contributes to further understanding the effects of neoliberalism on social institutions and their employees generally and universities specifically.

Conversion Therapy

The Queensland Parliament has passed the Health Legislation Amendment Bill 2019 (Qld), which among other things prohibits conversion therapy in the state. 

The Explanatory Statement for the Bill comments 

The objective of amendments to the Public Health Act prohibiting conversion therapy is to protect the Queensland LGBTIQ community from the harm caused by conversion therapy, and to send a strong message that being a LGBTIQ person is not a disorder that requires treatment or correction. Conversion therapy is a term used to describe treatments and practices that attempt to change or suppress a person’s sexual orientation or gender identity. There is no evidence of any benefits from conversion therapy, nor that sexual orientation or gender identity can be changed through therapeutic or other interventions. To the contrary, clinical and social science research has produced overwhelming evidence that conversion therapy is psychologically harmful and correlated with higher rates of suicidality, self-harm and other adverse health outcomes. Many professional and expert bodies, including the Australian Psychological Association, Australian Medical Association and World Health Organization, formally oppose the use of conversion therapy and acknowledge that these practices are harmful and unethical. Despite this strong consensus and evidence of harm, it is not unlawful for health service providers to perform conversion therapy in Queensland or in any other Australian jurisdiction. 

 

In November 2018, the Minister for Health and Minister for Ambulance Services convened the Ending Sexual Orientation Conversion Therapy Roundtable to consider how to end conversion therapy in Queensland. The roundtable, attended by representatives of the community and government, concluded that the Government should consider legislation making it an offence for health practitioners to perform conversion therapy. The roundtable also recommended that consideration be given to protecting children, young people and vulnerable groups from these practices. ... 

 

The Bill amends the Public Health Act to prohibit health service providers from performing conversion therapy and makes it an offence for a health service provider to perform conversion therapy. The new offence carries a maximum penalty of 100 penalty units, 12 months imprisonment or both. If the recipient of the conversion therapy is a vulnerable person, such as a child, the maximum penalty increases to 150 penalty units, 18 months imprisonment or both. 

 

The offence is a misdemeanour, which is an indictable offence, and may be heard summarily or on indictment, at the prosecution’s election, unless a Magistrates Court is satisfied that the offence should not be heard summarily because of exceptional circumstances. The creation of the offence will protect the public by prohibiting health service providers from performing conversion therapy. Health service providers who continue to perform conversion therapy will commit an offence carrying substantial penalties. Consistent with the recommendations of the Ending Sexual Orientation Conversion Therapy Roundtable, the increased penalties for conversion therapy performed on a vulnerable person will provide enhanced protections for children, people without legal capacity and people with an intellectual disability. This recognises that these people may be especially susceptible to health service providers offering conversion therapy services and more likely to suffer harm as a result of their treatment. 

 

The Bill defines conversion therapy as a treatment or practice that attempts to change or suppress a person’s sexual orientation or gender identity. Gender identity is a broad term that encompasses a person’s internal and individual experience of gender, including the person’s personal sense of the body and how they express their gender to themselves and others. 

 

The Bill targets practices that are based on the idea that being a LGBTIQ person is a disorder or deviant behaviour that requires correction or suppression. These ideas have long been discredited by the medical community and are not evidence-based. Examples of practices and treatments that are prohibited under the Bill include:

• aversion therapy, which may include administering an electric shock or nausea inducing drugs while showing a person an image of a person of the same sex; 

• regression or hypnotherapy to unlock latent heterosexual feelings; and 

• counselling sexual identity management which promotes individuals distinguishing between their public and private sexual feelings or gender identity.  

In contrast, the Bill does not prohibit treatments or practices that:

• assist individuals who are undergoing or considering a gender transition; 

• assist individuals to express their gender identity; 

• provide acceptance, support and understanding to these individuals; or 

• facilitate an individual’s coping, social support or identity exploration and development.  

These practices are expressly excluded from the definition of conversion therapy, and will not constitute an offence, because their purpose is to affirm and support, not to change or suppress, a person’s sexual orientation or gender identity. Conversion therapy also does not include treatments or medical interventions relating to gender transition. 

 

The Bill also excludes from the definition of conversion therapy treatment decisions and other practices by a health service provider that are reasonably necessary to provide a health service in a safe and appropriate manner or to comply with the provider’s legal or professional obligations. This exclusion will not allow health service providers to engage in prohibited practices such as those described above, which have been discredited and would not be performed by a reasonable health service provider. Rather, the exclusion will ensure that the prohibition of conversion therapy does not discourage practitioners from treating LGBTIQ patients out of concern that clinically appropriate decisions could be perceived as not affirming or supporting a patient’s sexual orientation or gender identity. The exclusion will protect practitioners who, acting reasonably, in good faith and in accordance with relevant professional standards, treat a patient in a manner that could be subjectively perceived as not affirming or supporting their sexual orientation or gender identity. For example, a doctor may advise against surgery because a patient has a pre-existing condition that means the surgery is not safe. A doctor may also be required to advise a patient about potential side effects of drugs. In cases such as these, health service providers will be able to rely on the reasonable professional judgment exception to ensure that the health services provided are delivered in a safe and clinically appropriate manner. 

 

The new offence applies to health service providers, as defined in section 8 of the Health Ombudsman Act 2013. The Bill is limited to health service providers because, as health professionals, they have ethical obligations not to engage in practices that are harmful and not evidence-based. It would be a violation of the trust that the community places in health service providers to allow these practices to be carried out in the health care system. Prohibiting conversion therapy by health service providers also sends the message that these practices are opposed by the Queensland Government and that being a LGBTIQ person is not a disorder that requires treatment. 

 

The definition of a health service provider is broad, comprising any individual or entity that provides a service that is, or purports to be, for maintaining or improving a person’s health or wellbeing. The definition includes registered health practitioners such as doctors, nurses and psychologists and unregistered health practitioners such as counsellors, naturopaths and social workers. The offence will apply regardless of whether the service is paid for or provided for free or the location where the service is provided.

Legislating to restrict ordinary activities, without sufficient justification, may be a breach of section(4)(2)(a) of the Legislative Standards Act, which requires legislation to have sufficient regard to the rights and liberties of the individual. Clause 28 of the Bill provides that a health service provider must not perform conversion therapy on another person in their professional capacity. This may be seen to infringe on the right of health service providers to go about ordinary activities and to conduct business without interference. 

The prohibition on conversion therapy is considered justified, as it is necessary to protect people from the harm caused by conversion therapy. Health service providers have an ethical obligation not to engage in practices that cause harm. There is a considerable body of evidence showing that conversion therapy is harmful and does not offer clinical or therapeutic benefits. The United Nations General Assembly states that conversion therapies have been found to be ‘unethical, unscientific and ineffective’. This is supported by the 2018 La Trobe University report Preventing harm, promoting justice: Responding to LGBT conversion therapy in Australia, which found significant negative health outcomes for individuals who have undergone conversion therapy. 

Under the Human Rights Act 2019 and the International Covenant on Civil and Political Rights, a person has the right to protection from torture and cruel, inhuman or degrading treatment. In its 2015 report Discrimination and Violence Against Individuals Based on Their Sexual Orientation and Gender Identity, the United Nations General Assembly commented that some forms of conversion therapy may be considered torture and breach the human rights of those subjected to the practices. 

It is therefore appropriate to ensure that these practices are not engaged in by health service providers, and that the rights of the LGBTIQ community are protected, even if the prohibition may result in a limitation on the rights of health service providers who perform conversion therapy. 

Any further restriction of the religious rights and liberties of individuals is limited by the scope of the prohibition on conversion therapy, which applies only to treatments or practices performed by health service providers. As such, the prohibition applies to conversion therapy that is performed in the course of providing a health service. The right to freedom of thought, conscience, religion and belief is not limited by the Bill. Religious or spiritual practices, such as praying for a person to change their sexual orientation, are not prohibited by the Bill. Further, only the practice of conversion therapy is prohibited; holding and expressing views or beliefs on conversion therapy, religious or otherwise, is not prohibited. 

To give effect to the prohibition of conversion therapy, clause 28 of the Bill makes it an offence for a health service provider to perform conversion therapy on another person. The offence is subject to a maximum penalty of 150 penalty units, 18 months imprisonment, or both, if the person who is subject to conversion therapy is a vulnerable person. Otherwise the maximum penalty is 100 penalty units, 12 months imprisonment or both. 

The offence and penalties are justified as an appropriate response to the harm caused by conversion therapy and the need to ensure these practices are not carried out in a health care context. A term of imprisonment is necessary to send the message that conversion therapy is not condoned by the Queensland Government and to ensure the offence is a strong deterrent. A term of 12 months imprisonment (or 18 months imprisonment if the treatment is performed on a vulnerable person) is appropriate as, under the Health Practitioner Regulation National Law, registered health practitioners are required to notify the relevant registration body if charged with an offence punishable by 12 months imprisonment or more. This may result in registration consequences for the practitioner, which is a further disincentive for health practitioners to engage in conversion therapy. It is appropriate to impose a higher penalty where the subject of the conversion therapy is a vulnerable person. A higher penalty acknowledges that vulnerable people, including children, people without legal capacity or people with an impairment that may limit their understanding of the treatment, are especially susceptible to these unproven and unethical practices. 

A person who commits the offence of performing conversion therapy will commit a misdemeanour. This is an indictable offence, which is appropriate given the serious breach of public trust involved when a health service provider engages in a practice that is known to be harmful and discriminatory and to offer no countervailing benefit to a person’s health or wellbeing. Additionally, as an indictable offence, the offence will not be subject to a limitations period for laying charges or bringing prosecutions. Limiting the time during which charges can be laid could frustrate enforcement because claimants are vulnerable, private and unlikely to come forward immediately. In some cases, victims may be underage when the alleged offence occurred and may not be able to make a complaint until several years later. 

Proceedings for the offence of performing conversion therapy will be dealt with summarily or on indictment, at the prosecution’s election. However, to ensure fairness and protect the rights of defendants, a Magistrates Court must abstain from hearing or deciding the proceeding summarily if the defence demonstrates that this would be inappropriate because of exceptional circumstances, including the need to decide important questions of law or to have a jury consider issues involving contemporary community standards.

The amendments to prohibit conversion therapy may engage the right to freedom of thought, conscience, religion and belief under section 20 of the Human Rights Act. The Bill does not limit this right, as the prohibition applies only to treatments and other practices provided by health service providers. It does not extend to prohibiting a health service provider from holding and expressing views or beliefs on conversion therapy, or from engaging in religious or spiritual practices that are not performed in their capacity as a health service provider, such as praying for a person to change their sexual orientation. 

If there is any limitation on the right to freedom of thought, conscience, religion and belief, this must be balanced against the purpose of the limitation and the protection of human rights of those who may be subjected to conversion therapy. The purpose of the limitation is to protect LGBTIQ individuals from the harm caused by conversion therapy. Health service providers have an ethical obligation not to engage in practices that cause harm and there is considerable body of evidence showing that conversion therapy is harmful and does not offer therapeutic benefits. Conversion therapy may also violate the human rights of LGBTIQ people. 

Section 17 of the Human Rights Act provides that a person must not be subjected to torture or treated in a cruel, inhuman or degrading way. In its report Discrimination and Violence Against Individuals Based on Their Sexual Orientation and Gender Identity, the United Nations General Assembly condemned conversion therapy, stating that conversion therapy may be ‘tantamount to torture’ and that ‘states have an obligation to protect all persons, including LGBT and intersex persons, from torture and other cruel, inhuman or degrading treatment or punishment in custodial, medical and other settings [which includes] conversion therapy’. 

Section 37 of the Human Rights Act provides that every person has the right to access health services without discrimination. This right has been interpreted in international jurisprudence as requiring states to ensure health services are accessible without discrimination, accompanied by access to appropriate information, acceptable from a gender, cultural and age perspective, and scientifically and medically appropriate. There is broad scientific consensus that conversion therapy offers no clinical or therapeutic benefits. The United Nations General Assembly states that conversion therapies have been found to be “unethical, unscientific and ineffective”. This is supported by the 2018 La Trobe University report Preventing harm, promoting justice: Responding to LGBT conversion therapy in Australia, which found significant negative health outcomes for individuals who have undergone conversion therapy. 

Prohibiting conversion therapy by health service providers is a reasonable and appropriate limitation to protect LGBTIQ people from treatments and practices that amount to torture and ensure they can access appropriate and scientifically supported health care without discrimination.

Jurisdiction, Snapchat and the ADF

Igoe v Major General Michael Ryan AM in his capacity as a Reviewing Authority (No 2) [2020] FCA 1091 considers questions of jurisdiction and procedure in relation to judicial review of a sentence for imprisonment and dismissal from the Australian Defence Force imposed by the service tribunal on a defence member for offences of capturing and distributing intimate video images without authorisation and in breach of privacy under Defence Force Discipline Act 1982 (Cth). Igoe was granted leave to amend an application to seek an order prohibiting execution of the Warrant of Commitment to Imprisonment to imprison him, with the sentence decision be remitted to a different Defence Force Magistrate to be considered and decided again according to law. 

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.