Private R v Cowen [2020] HCA 31

Private R v Cowen [2020] HCA 31

Section 61(3) of the Defence Force Discipline Act 1982 (Cth) is a valid exercise of the defence power under s 51(vi) of the Constitution because requiring members of the ADF to observe the law of the land and empowering service tribunals to enforce this standard sufficiently conduces to the discipline and morale essential to an effective defence force. The existence of concurrent civil jurisdiction does not negate this connection; accordingly, the section is valid in all its applications.

Parties
Plaintiff: Private R; First Defendant: Brigadier Michael Cowen; Second Defendant: Second Defendant (unnamed in this extract, represented by Commonwealth)
Jurisdiction
Australia
Judgment Date
09 September 2020
Procedural Posture
Constitutional Law Challenge (original Jurisdiction Application for Prohibition) / High Court of Australia Final Judgment
Outcome
Application dismissed.
Legal Topics
Defence Power (s 51(vi) of the Constitution), Military Discipline, Service Tribunal Jurisdiction, Concurrent Jurisdiction (military and Civil Courts), Good Order and Discipline in Defence Force, Judicial Power and Ch III Courts
Constitutional Law Military Law Administrative Law Defence Power (s 51(vi) of the Constitution) Military Discipline Service Tribunal Jurisdiction Concurrent Jurisdiction (military and Civil Courts) Good Order and Discipline in Defence Force +1 more

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Parties

Private R

Plaintiff

Brigadier Michael Cowen

First Defendant

Second Defendant (unnamed in this extract, represented by Commonwealth)

Second Defendant

Procedural Posture

Constitutional Law Challenge (original Jurisdiction Application for Prohibition) / High Court of Australia Final Judgment

Legal Issues

  1. 1 Whether s 61(3) of the Defence Force Discipline Act 1982 (Cth) is supported by s 51(vi) of the Constitution in conferring jurisdiction to try and punish offences by service tribunals where civil courts are available
  2. 2 Whether military discipline jurisdiction is validly concurrent with civil jurisdiction in peacetime for ordinary criminal offences

Ratio Decidendi

Section 61(3) of the Defence Force Discipline Act 1982 (Cth) is a valid exercise of the defence power under s 51(vi) of the Constitution because requiring members of the ADF to observe the law of the land and empowering service tribunals to enforce this standard sufficiently conduces to the discipline and morale essential to an effective defence force. The existence of concurrent civil jurisdiction does not negate this connection; accordingly, the section is valid in all its applications.

Court Disposition

Application dismissed.

Orders

  • Application dismissed.
  • The plaintiff pay the second defendant's costs of the application.