Haskins v The Commonwealth [2011] HCA 28

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

ABLE SEAMAN JOSEPH ANTHONY PETER HASKINS PLAINTIFF

AND

THE COMMONWEALTH OF AUSTRALIA DEFENDANT

Haskins v The Commonwealth [2011] HCA 28

10 August 2011

S8/2011

ORDER

1. Order that the questions stated in the special case be answered as follows:

Question 1: On its proper construction does the Military Justice (Interim Measures) Act (No 2) 2009 (Cth) provide lawful authority justifying the detention of the plaintiff?

Answer: Yes.

Question 2: If the answer to question 1 is "yes", are items 3, 4 and 5 of Schedule 1 to the Military Justice (Interim Measures) Act (No 2) 2009 (Cth) valid laws of the Commonwealth Parliament?

Answer: Yes.

2. The plaintiff pay the defendant's costs.

Representation

J G Renwick with D H Katter and A M Stewart for the plaintiff (instructed by Wyatt Attorneys)

S J Gageler SC, Solicitor-General of the Commonwealth with S J Free for the defendant (instructed by Australian Government Solicitor)

Intervener

R J Meadows QC, Solicitor-General for the State of Western Australia with A J Sefton intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor for Western Australia)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Haskins v The Commonwealth

Constitutional law (Cth) – Judicial power of Commonwealth – Constitution, Ch III – Validity of laws – Plaintiff defence force member – Plaintiff convicted of disciplinary offences and sentenced to punishment including detention by Australian Military Court ("AMC") established under Defence Force Discipline Act 1982 (Cth) ("Discipline Act") – Plaintiff subjected to punishment – High Court subsequently held invalid provisions of Discipline Act establishing AMC – Military Justice (Interim Measures) Act (No 2) 2009 (Cth) ("Interim Measures Act"), Sched 1, item 5 applied where AMC had imposed punishment to declare rights and liabilities of all persons to be same as if punishment properly imposed by general court-martial, subject to review under Sched 1, Pt 7 – Whether provisions of Interim Measures Act constituted usurpation of judicial power – Whether provisions had prohibited features of bill of pains and penalties.