High Court of Australia
HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ
RE COLONEL STEVEN AIRD & ORS RESPONDENTS
EX PARTE STEWART WAYNE ALPERT APPLICANT/PROSECUTOR
Re Colonel Aird; Ex parte Alpert [2004] HCA 44
9 September 2004
B60/2003
ORDER
1. The question asked in the case stated:
"Insofar as s 9 of the Defence Force Discipline Act 1982 (Cth) ('DFDA') purports to apply the provisions of that Act, including s 61 DFDA, so as to permit the trial by general court martial under that Act of the Prosecutor in respect of the alleged offence … is it beyond the legislative power of the Commonwealth and, to that extent, invalid?"
is answered "No".
1. Costs in the case are to be costs in the action in this Court.
Representation:
J A Logan SC with P E Nolan for the applicant/prosecutor (instructed by Beven Bowe & Associates)
No appearance for the first and second respondents
D M J Bennett QC, Solicitor-General of the Commonwealth with G B Hevey, S B Lloyd and B D O'Donnell for the third respondent (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Re Colonel Aird; Ex parte Alpert
Constitutional law (Cth) – Defence – Offences by service members – Service offences – Offence of sexual intercourse without consent – Offence allegedly committed overseas – Service member on leave – Whether beyond legislative power to make conduct of a service member allegedly committed while overseas on leave a service offence triable before an Australian service tribunal.
Defence – Military forces – Discipline – Service member on leave – Offence of sexual intercourse without consent – Offence alleged to have occurred in Thailand – Whether offence may be prosecuted before Australian service tribunal in Australia – Whether beyond constitutional power so to provide – Whether service connection sufficient within Constitution to found valid conferral of power upon tribunal.
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