Re Colonel Aird; Ex parte Alpert [2004] HCA 44

Re Colonel Aird; Ex parte Alpert [2004] HCA 44

By majority, the High Court held that s 9 of the Defence Force Discipline Act 1982 (Cth), in its application to s 61 to permit the trial by general court martial of a defence member for overseas conduct (rape while on leave), is not beyond the Commonwealth legislative power and is valid. The provisions are sufficiently connected to the regulation of the Defence Force and the maintenance of good order and discipline among its members, given Parliament's judgment on the requirements for discipline overseas.

Parties
Applicant/prosecutor: Stewart Wayne Alpert; Respondents: Colonel Steven Aird & Ors; Respondent: Commonwealth of Australia (Third respondent)
Jurisdiction
Australia
Judgment Date
09 September 2004
Procedural Posture
Constitutional Law Case Stated / High Court of Australia Full Court Opinion on a Stated Question
Outcome
Majority: Question in the stated case answered 'No'. Sections 9 and 61 of the Defence Force Discipline Act 1982 (Cth), as applied to these facts, are not invalid.
Legal Topics
Defence Power Under S 51(vi) of the Australian Constitution, Extra Territorial Operation of Australian Military Law, Service Offences by Defence Force Members, Jurisdiction of Military Tribunals, Separation of Powers Ch III of the Constitution, Trial of Civil Offences as Service Offences, Standards of Behaviour for Defence Personnel Overseas
Constitutional Law Military Law Criminal Law Defence Power Under S 51(vi) of the Australian Constitution Extra Territorial Operation of Australian Military Law Service Offences by Defence Force Members Jurisdiction of Military Tribunals Separation of Powers Ch III of the Constitution +2 more

Case Brief

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Parties

Stewart Wayne Alpert

Applicant/prosecutor

Colonel Steven Aird & Ors

Respondents

Commonwealth of Australia (Third respondent)

Respondent

Procedural Posture

Constitutional Law Case Stated / High Court of Australia Full Court Opinion on a Stated Question

Legal Issues

  1. 1 Whether s 9 of the Defence Force Discipline Act 1982 (Cth), in applying the Act to conduct of defence members overseas (including s 61, rape overseas while on leave), is beyond the legislative power of the Commonwealth and therefore invalid
  2. 2 Whether the offence is sufficiently connected to military service to constitute a valid service offence triable by military tribunal under the defence power
  3. 3 What is the constitutional test for validity: 'service status', 'service connection', or 'exclusively disciplinary'

Ratio Decidendi

By majority, the High Court held that s 9 of the Defence Force Discipline Act 1982 (Cth), in its application to s 61 to permit the trial by general court martial of a defence member for overseas conduct (rape while on leave), is not beyond the Commonwealth legislative power and is valid. The provisions are sufficiently connected to the regulation of the Defence Force and the maintenance of good order and discipline among its members, given Parliament's judgment on the requirements for discipline overseas.

Court Disposition

Majority: Question in the stated case answered 'No'. Sections 9 and 61 of the Defence Force Discipline Act 1982 (Cth), as applied to these facts, are not invalid.

Orders

  • The question asked in the case stated is answered 'No'.
  • Costs in the case are to be costs in the action in this Court.