Private R v CowenCitation:[2020] HCA 31Before:Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJDate:09 Sep 2020Case Number:S272/2019Read more

Private R v CowenCitation:[2020] HCA 31Before:Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJDate:09 Sep 2020Case Number:S272/2019Read more

Section 51(vi) of the Constitution supports the conferral of jurisdiction by the Defence Force Discipline Act upon service tribunals to hear charges against service members for service-connected offences, even where the conduct also constitutes an offence under ordinary criminal law and civil courts are available.

Parties
Plaintiff: Plaintiff; Defendant: Australian Defence Force
Jurisdiction
Australia
Judgment Date
09 September 2020
Procedural Posture
Constitutional Law Defence/military Discipline / Judgment
Outcome
Plaintiff's challenge to jurisdiction dismissed
Legal Topics
Defence Force Discipline, Jurisdiction of Service Tribunals, Section 51(vi) Constitution, Military V Civil Jurisdiction
Constitutional Law Criminal Law Military Law Defence Force Discipline Jurisdiction of Service Tribunals Section 51(vi) Constitution Military V Civil Jurisdiction

Case Brief

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Parties

Plaintiff

Plaintiff

Australian Defence Force

Defendant

Procedural Posture

Constitutional Law Defence/military Discipline / Judgment

Legal Issues

  1. 1 Whether s 51(vi) of the Constitution supports conferral of jurisdiction by Defence Force Discipline Act upon service tribunal to hear charge
  2. 2 Whether the Defence Force magistrate had jurisdiction to hear the charge when the conduct also constituted an offence under ordinary criminal law and civil courts were available

Ratio Decidendi

Section 51(vi) of the Constitution supports the conferral of jurisdiction by the Defence Force Discipline Act upon service tribunals to hear charges against service members for service-connected offences, even where the conduct also constitutes an offence under ordinary criminal law and civil courts are available.

Court Disposition

Plaintiff's challenge to jurisdiction dismissed

Orders

  • Service tribunal has jurisdiction to hear the charge
  • Proceedings before the Defence Force magistrate may continue