Tracey, Re; Ex parte Ryan [1989] HCA 12

High Court of Australia Mason C.J. Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ. Tracey, Re; Ex parte Ryan [1989] HCA 12

ORDER Order nisi for prohibition discharged. No order as to costs.

Cur. adv. vult.

The following written judgments were delivered:—

1989, Feb. 10 Mason C.J., Wilson and Dawson JJ.

The prosecutor, who is a Staff Sergeant in the Australian Regular Army, was charged with three offences under the Defence Force Discipline Act 1982 Cth ("the Act"). The first charge was laid under s. 55(1)(b) which makes it an offence to make an entry in a service document, with intent to deceive, that is false in a material particular. That charge related to a movement requisition signed by the prosecutor. The other two charges, which were laid under s. 24(1), alleged that the prosecutor was absent without leave on two separate occasions.

The three charges came before a defence force magistrate appointed pursuant to s. 127 of the Act. He commenced to hear the charges but objection was taken to his jurisdiction to do so. The objection was taken upon the basis that the hearing and determination of the charges involved the exercise of the judicial power of the Commonwealth. It was said that the defence force magistrate was not qualified to exercise that power, not having been appointed pursuant to Ch. III of the Constitution. A further objection was taken that each of the offences charged was an indictable offence against a law of the Commonwealth and was, under s. 80 of the Constitution, triable only by a jury.

The defence force magistrate ruled against each of the objections to his jurisdiction and announced his intention to continue with the proceedings. The prosecutor then obtained an order nisi for a writ of prohibition and it is the return of that order which is before us.