Constitutional Law 7226 Take Home Exam
Constitutional Law (7226)
Take Home Exam
Date Due: 15 October 2013
Student: Nima Dorji
Student ID: 3102533
Contact Number: 0416396599
1
PART A
SAME-SEX MARRIAGE
Introduction
The same-sex marriage has been continued source of debates and discussions. It seems
that the Federal Government will be first institution to challenge the ACT’s same-sex law
if passed. The key constitutional and legislative challenges in Federal, State and Territory
level seems to be of authority or power to legislate on this subject matter (same-sex
marriage), and that of consistency. Detailed discussions on these issues are presented as
follows:
Inconsistency of Marriage Equality Act
Under s 122, the Federal Parliament is conferred power to make laws for Territory if it
deems fit. Territory derives all its legislative power from this provision. The issue,
therefore, becomes even complex when it concerns Territory. It seems that the
Commonwealth can, legislate to limit the Territory’s power to legislate on same-sex, as it
have resorted to this measure previously in relation to euthanasia. However, before
Commonwealth resort to this remedy, it can still rely on inconsistency test.
Key issues can be explored and discussed by running through inconsistency tests. Section
109 provides supremacy to the Commonwealth law if law enacted by State is
inconsistent. First requirement for applying this provision is that, there must be a valid
law enacted by the federal Parliament and a valid law enacted by a State Parliament. In
present scenario, the Same-sex law and the Commonwealth Marriage Act are valid by
virtue of the power conferred by s 51(21).
The three test for inconsistency was adopted in Clyde Engineering Co Ltd v Cowburn
(1926) 37 CLR 466. First, when it is impossible to obey both laws. This inconsistency
does not arise in this case because it is possible to obey both laws. Section 6(a) of
Marriage Equality Act provides that the Act will apply to matters not covered by the
Commonwealth Marriage Act. Section 5(1) of the Commonwealth to the contrary defines
2
marriage as union between man and woman. Same-sex marriage law regulates marriage
between same-sex and Marriage Act marriage between opposite-sex. Therefore, it is not
impossible to obey both laws.
Second inconsistency is when one law purports to confer a legal right, privilege or
entitlement, which other purports to take away or diminish. That is, State law is invalid if
it alters, impairs or detracts from the operation of a federal law. This inconsistency does
not arise in the present case as well. It is very clear that same-sex marriage is not possible
under Marriage Act. Both laws confer right to form marriage, but in each case to a
different type of union without prohibiting the other.
Third inconsistency arises if the Commonwealth law shows a legislative intention to
cover the field. This involves two questions. First, whether Commonwealth law intended
to be exclusive within its field: (Viskauskas v Niland (1983) 153 CLR 280)? Was the
Marriage Act intended to be the only law on the topic of marriage? As there is no explicit
mention on this issue, a court might decide either way. However, given the detailed and
comprehensive regime in the federal Act, as well as problems of having two sets of law
dealing with marriage, a court might imply its exclusiveness.
The second test requires, us to determine the field covered by Marriage Act and whether
the State or Territory Marriage Equality Act operates in this same field. In my opinion,
Marriage Act covers the field of marriage generally (irrespective of the sex of partners).
It covers field of same-sex marriage to the extent of prohibiting same-sex marriage. That
is, Commonwealth law restricts same-sex marriage. This conclusion is drawn from s
88EA. It provides that same-sex unions solemnized in a foreign country cannot be
recognized in Australia. Therefore, presumption can be made that the Commonwealth
Marriage Act recognizes union of man and woman only. Therefore, finding indirect
inconsistency.
However, it can also be argued otherwise, as Marriage Act covering the marriage only
between a man and a woman. It can be assumed that the Act establishes the boundaries of
3
marriage as being opposite-sex marriage. As professor William argues that the analogy
can be drawn with the approach taken by the High Court in Metal Trades Industry
Association v Amalgamated Metal Workers’ and Shipwrights’s Union (1983) 152 CLR
632: when the federal award makes no provision on a particular matter, a State award
may be able to operate on that matter without being overridden under s 109. Therefore,
Marriage Equality Act may be found valid, as it does not in general operate with the
federal field of opposite-sex marriage.
Legal Challenge of Extending Definition of Marriage in Federal Laws
What would happen if s 5(1) of the Marriage Act is amended to define marriage as union
between two persons? This question relates back to theories of constitutional
interpretation. As per orthodox rules meaning to be given to a term is that which it had at
the time of adopting Constitution: R v Barger (1908) 6 CLR 4. In Re Wakim; Ex parte
McNally (1999) 198 CLR 511, McHugh J. stated that the starting point for a
interpretation of the Constitution is the search for the intention of the makers. In light of
traditional principles of constitutional interpretation, the word ‘marriage’ needs to have
the same meaning as it had at the time the Constitution was enacted. It relates back to the
definition provided in Hyde v Hyde LR1P&D130, as ‘the voluntary union for life
between one man and one woman, to the exclusion of all others’. If the Court applies this
traditional interpretation, then the federal Parliament will have no power to legislate for
same-sex marriage.
However, there is still a possibility where the Court might give broader interpretation or
the meaning to ‘marriage’. For instance, as early as 1908 Higgins J in Attorney General
for NSW v Brewery Employees Union of NSW (1908) 6 CLR 469, observed that the
Parliament has power to prescribe what union are to be regarded as marriages. Similarly,
in Attorney General (Vic) v Commonwealth (1962) 107 CLR 529, McTiernan and
Wineyer JJ are supposed to have taken opposing views about whether marriage is limited
to monogamous marriage. McHugh J in Re Wakim, ex parte McNally (1999) 198 CLR
511, suggested that marriage now means, or in the near future may mean, a voluntary
union for life between two people to the exclusion of others. Therefore, it is likely that it
4
may be interpreted on the basis of recognizing marriage as an evolving legal institution.
Given the possibility of two interpretative techniques, orthodox versus evolutionary, it is
not very certain if the Commonwealth law can withstand challenges any better than State
and Territory legislations.
Conclusion
There can be no answer to these issues unless tested in the High Court. With regard to the
issue of extending definition of marriage in federal law, it is very likely that majority
would allow the federal Parliament to legislate on same-sex marriage. Similarly, for the
reason above, the majority may also declare same-sex legislations inconsistent at this
point of time, as marriage in Australia is intended to be between a man and a woman
excluding all forms of other unions.
PART B
JUDICIAL POWER, DEFENCE POWER, AND RIGHTS
Introduction
Carson’s conviction and supervision order involves issue of judicial power, defence
power and constitutional rights. To challenge his conviction and supervision, it would
require us to test the validity of the Defence Force Discipline Act 1982 (Cth) (DFDA). It
is very likely that Carson may succeed in this endeavor for following reasons:
Characterisation of the Defence Force Discipline Act: Head of Power
The validity of any law is tested by categorization. First step or test is to identify head of
power of enacting legislation. In the present case head of power is defence power under s
51(vi), that is, power to make law concerning naval and military defence.
Subject Matter and Connection to Head of Power
Second step is to identify subject matter covered by the head of power. Apart from other
subject matter, military justice is accepted as covered by defence power. Majority in Re
5
Tracey; Ex parte Ryan (1989) 166 CLR 518, held that any offence committed by a
service member may be treated as a service offence. Therefore, in the present case, the
offence of indecency or assault is very much with the head of power. Third step is to
examine whether, subject matter is connected to the head of power. In the present case, it
is clear that subject matter is connected to the head of power.
Constitutional Limitation: Judicial Power
Fourth test is to identify if it is limited by the Constitution. The DFDA requires
establishment of the Military Court of Australia, which has the power to hear and
determine service offence. Therefore, in present case it is important to examine if DFDA
provides for exercise of judicial power of the Commonwealth provided by Ch III of the
Constitution. Courts-martial are accorded with exception from the principles of Chapter
III of the Constitution. However, it is important to note that as decided in R v Cox; Ex
Parte Smith, the exception is not real. Such courts in anyway cannot form part of the
judicial system administering the law of the land. In other words, it cannot exercise
judicial power of the Commonwealth. It can exercise judicial power outside judicial
power of the Commonwealth. In the present case, Carson can argue against the validity of
the DFDA on the ground that Military Court purports to exercise judicial power provided
by Ch III.
In the present case, the Military Court sits outside the military chain of command. This
purports to provide the Court with power to make decision, which is authoritative and
binding. However, Court has taken different approach while defining the nature and
scope court-martial. In White v Director of Military Prosecution (1996) 189 CLR 1,
defence court system functions in contrast to the operation of the civilian justice system,
that is, it functions in the chain of commands. The sentences of the courts-martial
required confirmation by a superior office and that confirmation in turn might be
quashed. The Court in Australia thus far, has continued to stick to this construction.
The defence power under s 51(vi), with regard to legislating on judicial power in military
justice is discussed in Lane v Morrison (Military Case) (2009) HCA 29. In this case,
6
military officer was charged for same offence as in present case. Court while deciding the
case, relied on R v Kirby; Ex parte Boilermakers' Society of Australia (the Boilermakers
Case), and said that Ch III limits the creation of courts with jurisdiction appropriate to the
subject matter of the power. In R v Bevan; Ex parte Elias and Gordon, it was observed
that judicial power recognized by the Constitution could only be exercised by the branch
of government identified in Ch III. Therefore, in Military Case, it was held that the
creation of a legislative court which operates outside the previous system of military
justice is beyond the power conferred by s 51(vi). Provisions of the DFDA was held to be
invalid because it provides for the exercise of the judicial power of the Commonwealth
by a body not created in accordance with Ch III of the Constitution. The independence
status granted to Military Court from the chain of command, made the military court to
exercise judicial power of the Commonwealth.
As Military Court is established to make binding and authoritative decisions of guilt or
innocence independently from the chain of command, it is very likely that Court might
find it as exercise of the judicial power of the Commonwealth. Therefore, relying on
these grounds, Carson can challenge his conviction or supervision order and validity of
the law itself.
Constitutional Limitation: Right to Jury Trial
As per s 80 of the Constitution, the trial on indictment of any offence against any law of
the Commonwealth shall be by jury. This provision guarantees the right to trial by jury. In
R v Archdall and Roskruge (1928) 41 CLR 128, the High Court held that s 80 applies
when the Commonwealth chooses to make offence triable by indictment. In the present
case, as the service offences of which Carson was convicted are classified as indictable
offences, the Commonwealth has chosen to make offence triable by jury. Therefore, s 80
will apply in the present case.
Now, next step is to examine what are the requirements of s 80. It seems that in jury trial,
usual number of jurors is twelve. In the present case, there were only six jurors. Would it
then mean, failure to meet the requirement of s 80? In Cheatle v R (1993) 177 CLR 541,
7
the Court observed that purpose of having twelve jurors is to ensure group size that
promote discussion. Court observed that this objective could be met, if not less than ten
jurors survive the trial. However, it was further observed that any number less than ten
might be constitutionally suspect. As per Brownlee v R (2001) 207 CLR 278, jury must be
of a sufficient number capable of performing the group deliberation inherent in jury trial.
Therefore, as in the present case, jurors were less than ten; Carson may successfully
challenge his conviction, for the violation of s 80. Thereby, his supervision order would
not hold, if conviction is quashed.
Kirky J. in R v Ng (2003) 217 CLR 521 listed essential characteristics for jury trial: jury
must be randomly and impartially selected. Prosecution or the state should not choose
jurors. Another requirement is that, the jury must be comprised of lay decision-makers
who are impartial as to the issues in contest. However, in the present case, it was just the
opposite. Under DFDA, specialist juries were required to determine indictable service
offences. Therefore, jurors were handpicked, and not randomly or impartially selected.
The Military Court Registrar selected all the jurors from serving members of the
Australian Defence Forces. This was against the observation made in Cheatle and
Brownlee, purpose of jury being to ensure a representative cross section of the people,
who are impartial. In the present case as all the jurors were serving members of military,
there is a higher chance of impartiality. Therefore, it is against the very objective of
institution of jury trial, as they are not lay decision makers. Therefore, Carson may use
this ground to challenge his conviction and supervision order.
Constitutional Limitation: Freedom of Political Communication
Freedom of political communication is implied constitutional freedom. Its implication is
drawn from principles of responsive and representative democracy as observed in
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1. It prohibits legislative or executive
infringement of the freedom unless the restriction imposed is necessary to protect
legitimate interests. In the present case, order passed under s 5(b) infringes Carson’s
freedom of political communication, that is, his freedom of association and movement:
Kruger v Commonwealth (1997) 190 CLR 1. The indefinite term or supervision and
8
control, places burden on free communication, which is disproportionate to attainment of
competing public interest: (Australian Capital Television Pty Ltd v Commonwealth (No
2) (1992) 177 CLR 106).
Section (13)(1) read with s 5(b) gives power to issue an order only if there is risk of reoffending. The reason given for issuing his supervision order doesn’t show that there is
likelihood of committing the said offence again. Therefore, Carson may challenge his
supervision on proportionality ground. However, the letters of law seems to be valid, it is
only proportionality of order (as reason given is not determinative), subject to challenge.
The validity of provisions of Div 3 in present case may not be challenged.
Conclusion
For the reason given above it is very likely that the law may not pass fourth step
characterization. Therefore, the High Court may, declare establishment of the Military
Court of Australia and its function invalid as it purports to exercise judicial power of the
Commonwealth which is beyond power conferred by s 51(vi). The Court may declare law
invalid to the extent of the Military Court’s constitution and provision requiring specialist
jurors, which is in contradiction to jury trial tradition. The order or decision passed by
invalid body may therefore be declared invalid as well. If incase, High Court affirms the
validity of the law, Carson may still successfully challenge his conviction and supervision
order for violation of s 80 of the Constitution and his implied freedom of association and
movement.
9
Take Home Exam
Date Due: 15 October 2013
Student: Nima Dorji
Student ID: 3102533
Contact Number: 0416396599
1
PART A
SAME-SEX MARRIAGE
Introduction
The same-sex marriage has been continued source of debates and discussions. It seems
that the Federal Government will be first institution to challenge the ACT’s same-sex law
if passed. The key constitutional and legislative challenges in Federal, State and Territory
level seems to be of authority or power to legislate on this subject matter (same-sex
marriage), and that of consistency. Detailed discussions on these issues are presented as
follows:
Inconsistency of Marriage Equality Act
Under s 122, the Federal Parliament is conferred power to make laws for Territory if it
deems fit. Territory derives all its legislative power from this provision. The issue,
therefore, becomes even complex when it concerns Territory. It seems that the
Commonwealth can, legislate to limit the Territory’s power to legislate on same-sex, as it
have resorted to this measure previously in relation to euthanasia. However, before
Commonwealth resort to this remedy, it can still rely on inconsistency test.
Key issues can be explored and discussed by running through inconsistency tests. Section
109 provides supremacy to the Commonwealth law if law enacted by State is
inconsistent. First requirement for applying this provision is that, there must be a valid
law enacted by the federal Parliament and a valid law enacted by a State Parliament. In
present scenario, the Same-sex law and the Commonwealth Marriage Act are valid by
virtue of the power conferred by s 51(21).
The three test for inconsistency was adopted in Clyde Engineering Co Ltd v Cowburn
(1926) 37 CLR 466. First, when it is impossible to obey both laws. This inconsistency
does not arise in this case because it is possible to obey both laws. Section 6(a) of
Marriage Equality Act provides that the Act will apply to matters not covered by the
Commonwealth Marriage Act. Section 5(1) of the Commonwealth to the contrary defines
2
marriage as union between man and woman. Same-sex marriage law regulates marriage
between same-sex and Marriage Act marriage between opposite-sex. Therefore, it is not
impossible to obey both laws.
Second inconsistency is when one law purports to confer a legal right, privilege or
entitlement, which other purports to take away or diminish. That is, State law is invalid if
it alters, impairs or detracts from the operation of a federal law. This inconsistency does
not arise in the present case as well. It is very clear that same-sex marriage is not possible
under Marriage Act. Both laws confer right to form marriage, but in each case to a
different type of union without prohibiting the other.
Third inconsistency arises if the Commonwealth law shows a legislative intention to
cover the field. This involves two questions. First, whether Commonwealth law intended
to be exclusive within its field: (Viskauskas v Niland (1983) 153 CLR 280)? Was the
Marriage Act intended to be the only law on the topic of marriage? As there is no explicit
mention on this issue, a court might decide either way. However, given the detailed and
comprehensive regime in the federal Act, as well as problems of having two sets of law
dealing with marriage, a court might imply its exclusiveness.
The second test requires, us to determine the field covered by Marriage Act and whether
the State or Territory Marriage Equality Act operates in this same field. In my opinion,
Marriage Act covers the field of marriage generally (irrespective of the sex of partners).
It covers field of same-sex marriage to the extent of prohibiting same-sex marriage. That
is, Commonwealth law restricts same-sex marriage. This conclusion is drawn from s
88EA. It provides that same-sex unions solemnized in a foreign country cannot be
recognized in Australia. Therefore, presumption can be made that the Commonwealth
Marriage Act recognizes union of man and woman only. Therefore, finding indirect
inconsistency.
However, it can also be argued otherwise, as Marriage Act covering the marriage only
between a man and a woman. It can be assumed that the Act establishes the boundaries of
3
marriage as being opposite-sex marriage. As professor William argues that the analogy
can be drawn with the approach taken by the High Court in Metal Trades Industry
Association v Amalgamated Metal Workers’ and Shipwrights’s Union (1983) 152 CLR
632: when the federal award makes no provision on a particular matter, a State award
may be able to operate on that matter without being overridden under s 109. Therefore,
Marriage Equality Act may be found valid, as it does not in general operate with the
federal field of opposite-sex marriage.
Legal Challenge of Extending Definition of Marriage in Federal Laws
What would happen if s 5(1) of the Marriage Act is amended to define marriage as union
between two persons? This question relates back to theories of constitutional
interpretation. As per orthodox rules meaning to be given to a term is that which it had at
the time of adopting Constitution: R v Barger (1908) 6 CLR 4. In Re Wakim; Ex parte
McNally (1999) 198 CLR 511, McHugh J. stated that the starting point for a
interpretation of the Constitution is the search for the intention of the makers. In light of
traditional principles of constitutional interpretation, the word ‘marriage’ needs to have
the same meaning as it had at the time the Constitution was enacted. It relates back to the
definition provided in Hyde v Hyde LR1P&D130, as ‘the voluntary union for life
between one man and one woman, to the exclusion of all others’. If the Court applies this
traditional interpretation, then the federal Parliament will have no power to legislate for
same-sex marriage.
However, there is still a possibility where the Court might give broader interpretation or
the meaning to ‘marriage’. For instance, as early as 1908 Higgins J in Attorney General
for NSW v Brewery Employees Union of NSW (1908) 6 CLR 469, observed that the
Parliament has power to prescribe what union are to be regarded as marriages. Similarly,
in Attorney General (Vic) v Commonwealth (1962) 107 CLR 529, McTiernan and
Wineyer JJ are supposed to have taken opposing views about whether marriage is limited
to monogamous marriage. McHugh J in Re Wakim, ex parte McNally (1999) 198 CLR
511, suggested that marriage now means, or in the near future may mean, a voluntary
union for life between two people to the exclusion of others. Therefore, it is likely that it
4
may be interpreted on the basis of recognizing marriage as an evolving legal institution.
Given the possibility of two interpretative techniques, orthodox versus evolutionary, it is
not very certain if the Commonwealth law can withstand challenges any better than State
and Territory legislations.
Conclusion
There can be no answer to these issues unless tested in the High Court. With regard to the
issue of extending definition of marriage in federal law, it is very likely that majority
would allow the federal Parliament to legislate on same-sex marriage. Similarly, for the
reason above, the majority may also declare same-sex legislations inconsistent at this
point of time, as marriage in Australia is intended to be between a man and a woman
excluding all forms of other unions.
PART B
JUDICIAL POWER, DEFENCE POWER, AND RIGHTS
Introduction
Carson’s conviction and supervision order involves issue of judicial power, defence
power and constitutional rights. To challenge his conviction and supervision, it would
require us to test the validity of the Defence Force Discipline Act 1982 (Cth) (DFDA). It
is very likely that Carson may succeed in this endeavor for following reasons:
Characterisation of the Defence Force Discipline Act: Head of Power
The validity of any law is tested by categorization. First step or test is to identify head of
power of enacting legislation. In the present case head of power is defence power under s
51(vi), that is, power to make law concerning naval and military defence.
Subject Matter and Connection to Head of Power
Second step is to identify subject matter covered by the head of power. Apart from other
subject matter, military justice is accepted as covered by defence power. Majority in Re
5
Tracey; Ex parte Ryan (1989) 166 CLR 518, held that any offence committed by a
service member may be treated as a service offence. Therefore, in the present case, the
offence of indecency or assault is very much with the head of power. Third step is to
examine whether, subject matter is connected to the head of power. In the present case, it
is clear that subject matter is connected to the head of power.
Constitutional Limitation: Judicial Power
Fourth test is to identify if it is limited by the Constitution. The DFDA requires
establishment of the Military Court of Australia, which has the power to hear and
determine service offence. Therefore, in present case it is important to examine if DFDA
provides for exercise of judicial power of the Commonwealth provided by Ch III of the
Constitution. Courts-martial are accorded with exception from the principles of Chapter
III of the Constitution. However, it is important to note that as decided in R v Cox; Ex
Parte Smith, the exception is not real. Such courts in anyway cannot form part of the
judicial system administering the law of the land. In other words, it cannot exercise
judicial power of the Commonwealth. It can exercise judicial power outside judicial
power of the Commonwealth. In the present case, Carson can argue against the validity of
the DFDA on the ground that Military Court purports to exercise judicial power provided
by Ch III.
In the present case, the Military Court sits outside the military chain of command. This
purports to provide the Court with power to make decision, which is authoritative and
binding. However, Court has taken different approach while defining the nature and
scope court-martial. In White v Director of Military Prosecution (1996) 189 CLR 1,
defence court system functions in contrast to the operation of the civilian justice system,
that is, it functions in the chain of commands. The sentences of the courts-martial
required confirmation by a superior office and that confirmation in turn might be
quashed. The Court in Australia thus far, has continued to stick to this construction.
The defence power under s 51(vi), with regard to legislating on judicial power in military
justice is discussed in Lane v Morrison (Military Case) (2009) HCA 29. In this case,
6
military officer was charged for same offence as in present case. Court while deciding the
case, relied on R v Kirby; Ex parte Boilermakers' Society of Australia (the Boilermakers
Case), and said that Ch III limits the creation of courts with jurisdiction appropriate to the
subject matter of the power. In R v Bevan; Ex parte Elias and Gordon, it was observed
that judicial power recognized by the Constitution could only be exercised by the branch
of government identified in Ch III. Therefore, in Military Case, it was held that the
creation of a legislative court which operates outside the previous system of military
justice is beyond the power conferred by s 51(vi). Provisions of the DFDA was held to be
invalid because it provides for the exercise of the judicial power of the Commonwealth
by a body not created in accordance with Ch III of the Constitution. The independence
status granted to Military Court from the chain of command, made the military court to
exercise judicial power of the Commonwealth.
As Military Court is established to make binding and authoritative decisions of guilt or
innocence independently from the chain of command, it is very likely that Court might
find it as exercise of the judicial power of the Commonwealth. Therefore, relying on
these grounds, Carson can challenge his conviction or supervision order and validity of
the law itself.
Constitutional Limitation: Right to Jury Trial
As per s 80 of the Constitution, the trial on indictment of any offence against any law of
the Commonwealth shall be by jury. This provision guarantees the right to trial by jury. In
R v Archdall and Roskruge (1928) 41 CLR 128, the High Court held that s 80 applies
when the Commonwealth chooses to make offence triable by indictment. In the present
case, as the service offences of which Carson was convicted are classified as indictable
offences, the Commonwealth has chosen to make offence triable by jury. Therefore, s 80
will apply in the present case.
Now, next step is to examine what are the requirements of s 80. It seems that in jury trial,
usual number of jurors is twelve. In the present case, there were only six jurors. Would it
then mean, failure to meet the requirement of s 80? In Cheatle v R (1993) 177 CLR 541,
7
the Court observed that purpose of having twelve jurors is to ensure group size that
promote discussion. Court observed that this objective could be met, if not less than ten
jurors survive the trial. However, it was further observed that any number less than ten
might be constitutionally suspect. As per Brownlee v R (2001) 207 CLR 278, jury must be
of a sufficient number capable of performing the group deliberation inherent in jury trial.
Therefore, as in the present case, jurors were less than ten; Carson may successfully
challenge his conviction, for the violation of s 80. Thereby, his supervision order would
not hold, if conviction is quashed.
Kirky J. in R v Ng (2003) 217 CLR 521 listed essential characteristics for jury trial: jury
must be randomly and impartially selected. Prosecution or the state should not choose
jurors. Another requirement is that, the jury must be comprised of lay decision-makers
who are impartial as to the issues in contest. However, in the present case, it was just the
opposite. Under DFDA, specialist juries were required to determine indictable service
offences. Therefore, jurors were handpicked, and not randomly or impartially selected.
The Military Court Registrar selected all the jurors from serving members of the
Australian Defence Forces. This was against the observation made in Cheatle and
Brownlee, purpose of jury being to ensure a representative cross section of the people,
who are impartial. In the present case as all the jurors were serving members of military,
there is a higher chance of impartiality. Therefore, it is against the very objective of
institution of jury trial, as they are not lay decision makers. Therefore, Carson may use
this ground to challenge his conviction and supervision order.
Constitutional Limitation: Freedom of Political Communication
Freedom of political communication is implied constitutional freedom. Its implication is
drawn from principles of responsive and representative democracy as observed in
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1. It prohibits legislative or executive
infringement of the freedom unless the restriction imposed is necessary to protect
legitimate interests. In the present case, order passed under s 5(b) infringes Carson’s
freedom of political communication, that is, his freedom of association and movement:
Kruger v Commonwealth (1997) 190 CLR 1. The indefinite term or supervision and
8
control, places burden on free communication, which is disproportionate to attainment of
competing public interest: (Australian Capital Television Pty Ltd v Commonwealth (No
2) (1992) 177 CLR 106).
Section (13)(1) read with s 5(b) gives power to issue an order only if there is risk of reoffending. The reason given for issuing his supervision order doesn’t show that there is
likelihood of committing the said offence again. Therefore, Carson may challenge his
supervision on proportionality ground. However, the letters of law seems to be valid, it is
only proportionality of order (as reason given is not determinative), subject to challenge.
The validity of provisions of Div 3 in present case may not be challenged.
Conclusion
For the reason given above it is very likely that the law may not pass fourth step
characterization. Therefore, the High Court may, declare establishment of the Military
Court of Australia and its function invalid as it purports to exercise judicial power of the
Commonwealth which is beyond power conferred by s 51(vi). The Court may declare law
invalid to the extent of the Military Court’s constitution and provision requiring specialist
jurors, which is in contradiction to jury trial tradition. The order or decision passed by
invalid body may therefore be declared invalid as well. If incase, High Court affirms the
validity of the law, Carson may still successfully challenge his conviction and supervision
order for violation of s 80 of the Constitution and his implied freedom of association and
movement.
9