Director of Military Prosecutions v Henderson [2017] FCA 1608

FEDERAL COURT OF AUSTRALIA

Director of Military Prosecutions v Henderson [2017] FCA 1608 File number: ACD 60 of 2017

Judge: TRACEY J

Date of judgment: 5 December 2017

Date of publication of reasons: 21 December 2017

Catchwords: DEFENCE AND WAR – application pursuant to s 39B(1) of the Judiciary Act 1903 (Cth) for judicial review of a decision of a Defence Force Magistrate to decline jurisdiction and refer common assault charges to the Director of Military Prosecutions – where that decision was purportedly made pursuant to s 141(8) of the Defence Force Discipline Act 1982 (Cth) – whether the Defence Force Magistrate erred in so deciding – consideration of Hoffman v Chief of Army (2004) 137 FCR 520 – whether the Federal Court of Australia may grant declaratory relief in relation to an application made under s 39B(1)

Legislation: Defence Force Discipline Act 1982 (Cth) ss 3(1), 15-60, 33(a), 61, 61(3), 141, 141(1)(a), 141(1)(b), 141(8), Part III Divs 1-7 Federal Court of Australia Act 1976 (Cth) s 21 Jervis Bay Territory Acceptance Act 1915 (Cth) s 4A(1) Judiciary Act 1903 (Cth) ss 39B, 39B(1) Crimes Act 1900 (ACT) s 26

Cases cited: Dhillon v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 107; [1994] FCA 31 Hoffman v Chief of Army (2004) 137 FCR 520; [2004] FCAFC 148 Jones v Chief of Navy (2012) 205 FCR 458; [2012] FCAFC 125 Li v Chief of Army (2013) 250 CLR 328; [2013] HCA 49 New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission (1995) 59 FCR 369; [1995] FCA 672 Re Tracey; Ex parte Ryan (1989) 166 CLR 518 White v Director of Military Prosecutions (2007) 231 CLR 570; [2007] HCA 29