DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

 

Gooch v Chief of Air Force [2007] ADFDAT 2

 

 

DEFENCE – applicant convicted by a Defence Force Magistrate on charge referred to DFM at request of Acting Director of Military Prosecutions


Held:


1.      Referral did not have to state it was made pursuant to request of Acting DMP.

2.      Appointment of Acting DMP, although made before DefenceLegislation Amendment Act (No 2) 2005(Cth) came into operation, was valid because of operation of s 4 of Acts Interpretation Act 1901 (Cth).

3.   By virtue of s 33A of Acts Interpretation Act, Acting DFM could exercise powers of DFM.


 


Acts Interpretation Act 1901 (Cth) ss 4, 33A

Defence Force Discipline Act 1982 (Cth) ss 103, 188GP  


 


 

GOOCH v CHIEF OF AIR FORCE

DFDAT NO 2 OF 2006

 

heerey j (President), underwood Cj (deputy president) AND DUGGAN j (member)

7 MARCH 2007

SYDNEY


DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

 

 

DFDAT 2 OF 2006

 

BETWEEN:

BRIAN GOOCH   

APPLICANT               

 

AND:

 

CHIEF OF AIR FORCE

RESPONDENT

 

TRIBUNAL:

heerey j (President), underwood cj (deputy president) AND DUGGAN j (member)

 

DATE OF ORDER:

7 MARCH 2007

 

WHERE MADE:

sydney

 

THE TRIBUNAL ORDERS THAT:

 

The application for leave to appeal is dismissed.




DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

 

 

DFDAT 2 OF 2006

 

BETWEEN:

BRIAN gOOch

APPLICANT

 

AND:

chief of air force

RESPONDENT

 

TRIBUNAL:

heerey j (president), underwood cJ (deputy president) and DUGGAN J (member)

 

DATE:

7 MARCH 2007

 

PLACE:

sydney


REASONS FOR JUDGMENT

Introduction

1                     The applicant pleaded guilty to four counts of causing a loss contrary to s 61(3) of the Defence Force Discipline Act 1982 (Cth) (“DFD Act”), and ss 61(3) and 135.1(3) of the Criminal Code Act 1995 (Cth).  Upon the applicant’s request, the Defence Force Magistrate (“DFM”) took into account 14 other like offences.  The applicant was convicted and sentenced to three months imprisonment on each count, all the sentences to be served concurrently.  The DFM also made a conditional recognizance release order after one month of the prison sentence had been served and ordered dismissal from the Defence Force.  The applicant now wants to challenge those orders upon the basis that the DFM had no jurisdiction to make them. 

2                     The Defence Force Discipline Appeals Act 1955 (Cth), s 21, prescribes the time within which appeals are to be brought.  In this case, the time for appealing expired on 2 September 2006.  The applicant did not lodge an application for leave to appeal until 30 November 2006.  Accordingly, the applicant applies for an order extending the time within which to bring an appeal.  As the merits of a proposed appeal are relevant to the grant of an extension of time, it is convenient in this case to deal with that issue at the outset.

The statutory framework for bringing charges to a DFM

3                     The DFD Act was amended in 2005 by the Defence Legislation Amendment Act (No 2) (Cth), No 142 of 2005 ("the Amending Act").  Principally, Schedule 1 of the Amending Act created the offices of Director of Military Prosecutions ("DMP"), and Registrar of Military Justice (“RMJ”).  Schedule 2 of the same Act created the office of Inspector-General of the Australian Defence Force.

4                     The Amending Act also prescribed the powers and duties of those office holders, and made provision for the appointment of persons to act in those offices.  Section 2 of the Amending Act set out the dates upon which the various amending provisions came into force.  As a result of these amendments, the following procedure had to be followed in order to bring a charge before a DFM:

(1)        By virtue of (inter alia) s 105A of the DFD Act, a charge may be referred to the DMP by a commanding officer;

(2)        Section 103 of the DFD Act provides that where a charge is referred to the DMP, he or she may (inter alia) "request the Registrar of Military Justice to refer the charge to a Defence Force Magistrate for trial";

(3)        Section 188FA of the DFD Act prescribes, in general terms, that the RMJ is to provide "administrative and management services in connection with charges and trials under this Act", and if requested would no doubt refer the charge to a DFM.

What happened in this case? 

5                     Section 2 of the Amending Act provided that the commencement date of the provisions relating to the DMP and the RMJ will be fixed by proclamation, but went on to provide that in the event of there being no proclamation within six months of the Act receiving the Royal Assent, those provisions commenced “on the first day after the end of that period”.  It was common ground that that day was 12 June 2006 as the Act received the Royal Assent on 12 December 2005.  This is what happened in this case:

(1)        On 1 June 2006, the Minister for Defence appointed Lieutenant-Colonel James Gaynor to act as the Director of Military Prosecutions for the period from 12 June 2006 until the appointment of the First Director of Military Prosecutions;

(2)        On the same date, the Minister appointed Squadron Leader Belinda Crookes-Burns to act as the Registrar of Military Justice for the same period;

(3)        On 13 June 2006, the acting DMP and the acting RMJ subscribed to the oaths of office;

(4)        On 19 June 2006, the charges in respect of which the applicant later pleaded guilty, was convicted and sentenced to prison, were referred to the DMP by his commanding officer;

(5)        On 27 June 2006, the acting DMP wrote to the acting RMJ and requested her to refer the charges to a DFM for trial;

(6)        They were so referred on 30 June 2006 and the hearing took place on 4 July 2006.

The applicant's contentions

6                     The applicant’s basic contention is that no request was made to the RMJ by the DMP pursuant to s 103 of the DFD Act to refer the charges to a DFM and therefore the latter had no jurisdiction to make any of the impugned orders.  The submission was that there was non-compliance with s 103 because:

·        the referral to the DFM on 30 June 2006 did not state on its face that it was made pursuant to any request;

·        alternatively, the purported letter of request dated 27 June 2006, was a nullity because the acting DMP did not have the power to make a request for the following reasons:

(a)   his purported appointment was made before the Amending Act came into force and was therefore a nullity;

(b)   the provisions of the Acts Interpretation Act 1901 (Cth) ("the Interpretation Act"), s 4, do not apply because the Amending Act shows a contrary intention;

(c)   alternatively, if the appointment of the acting DMP was valid because s 4 of the Interpretation Act applied, s 103 of the DFD Act only conferred a power on the DMP, not on an Acting DMP, to make the request;

(d)   section 33A of the Interpretation Act did not confer power on an acting DMP to make the request because the Amending Act showed a contrary intention.

The contentions dismissed

7                     There is no substance in any of the contentions. 

8                     If the referral was in fact validly made pursuant to a request by the Acting DMP, the referral did not have to state that fact on its face.

9                     As to the alternative argument, s 4(1) of the Interpretation Act provides as follows:

“Exercise of certain powers between passing and commencing of Act

(1)  Where an Act (in this section referred to as the Act concerned), being:

(a)   an Act enacted on or after the date of commencement of this section that is not to come into operation immediately upon its enactment; or

(b)   an Act enacted before the date of commencement of this section that did not come into operation on or before that date;

is expressed to confer power, or to amend another Act in such a manner that the other Act, as amended, will confer power, to make an appointment or to make an instrument of a legislative or administrative character (including rules, regulations or by‑laws), then, unless the contrary intention appears, the power may be exercised, and anything may be done for the purpose of enabling the exercise of the power or of bringing the appointment or instrument into effect, before the Act concerned comes into operation as if it had come into operation.”

This is a machinery provision.  It does not operate so that appointments will take effect, or powers conferred until, at the earliest, the authorising legislation commences.  Subsection (2) provides:

“(2)     An appointment made under subsection (1) takes effect:

(a)  on the day specified in the appointment, being a day that is not earlier than the day on which the Act concerned comes into operation; or

(b)  if a day is not specified in the appointment—on the day on which the Act concerned comes into operation.”

10                  These provisions were designed to meet needs like those created by the Amending Act.  But for s 4 of the Interpretation Act there would be a high risk of a hiatus occurring between the time the provisions of the Amending Act came into force and the time all the relevant appointments could be made.  By virtue of s 4 of the Interpretation Act all the appointments could be made in advance so that as soon as the Amending Act came into force, all the powers it conferred could be exercised immediately .

11                  The Amending Act effects the amendments by the enactment of two schedules, each containing numbered items.  Item 2 of schedule 1 makes an amendment to the definition of Chief Judge Advocate.  This amendment is separate from the amendments relating to the creation of the offices of the DMP, the RMJ, and the Inspector-General.  Section 2 of the Amending Act provides that this item comes into force on the day the Amending Act received the Royal Assent.

12                  Item 1 and items 3 – 99 of schedule 1 all make changes to the DFD Act consequential upon the creation of the offices of the DMP and RMJ.  Section 2 of the Amending Act provides that all these changes come into force on the same day which, in the events that happened, turned out to be 12 June 2006.

13                  Items 100 – 105 of schedule 1 make some changes to the remuneration of the Judge Advocate General.  Section 2 of the Amending Act provides that these items come into force on the day on which the Amending Act received the Royal Assent.

14                  Items 106 and 107 of schedule 1 enact many provisions to set up the offices of the RMP and RMJ and to confer powers and duties upon both of them.  Section 2 of the Amending Act provides, not surprisingly, that all these provisions come into force at the same time as the provisions that make consequential changes to the DFD Act. 

15                  Item 108 of schedule 1 confers the same protection and immunity on the Judge Advocate General as is conferred on a Justice of the High Court.  This provision is unrelated to the creation of the offices of the RMP and the RMJ and s 2 of the Amending Act provides that this item will come into force on the day the Act received the Royal Assent.

16                  Items 109 – 114 of schedule 1 enact miscellaneous provisions concerning the DMP and again, not surprisingly, s 2 of the Amending Act provides that these provisions take effect from the same date as do all the other provisions that relate to the creation of the two offices.

17                  The last item in schedule 1 is numbered 115 and it confers a power to make regulations.  Section 2 provides that this enactment takes effect from the date the Act received the Royal Assent.

18                  Schedule 2 deals with changes to a different Act, the Defence Act 1903 (Cth).  It follows the same format as schedule 1 with respect to the creation of the office of Inspector-General, the conferring of powers on the office holder and other matters such as transitional regulations.  Section 2 of the Amending Act provides the same regime for the commencement dates of the various items in schedule 2 as it does for corresponding items in schedule 1.

19                  Mr Street SC, senior counsel for the applicant, submitted that because s 2 of the Amending Act singled out the provisions relating to the offices of DMP and RMJ, and provided for different commencement dates for the different provisions, and further, because separate provision was made for the appointment of the Inspector-General, an intention could be discerned on the part of Parliament to exclude the operation of s 4 of the Interpretation Act on the Amending Act.

20                  In our view no such intention is disclosed at all.  What can be ascertained from the provisions of the Amending Act, and in particular, s 2, is as follows:

(1)       All the amendments to the DFD Act are enacted in schedule 1;

(2)       All the amendments to the Defence Act are enacted in schedule 2;

(3)       In both schedules the items effecting amendments or inserting new provisions in the two principal Acts are set out in the same numerical sequence as are the provisions in the principal Acts that they amend or add to;

(4)       Section 2 follows the same numerical sequence as is adopted in the two schedules, and in the case of each item or groups of items, enacts a commencement date.  For all those items that do not specifically relate to the appointments of the DMP, the RMJ or the Inspector-General, the commencing date is the date the Amending Act receives the Royal Assent.  All those items that  specifically relate to the appointments of the DMP, the RMJ or the Inspector-General the commencing date is the date that turned out to be 12 June 2006.

21                  All of this is no more than an orderly numerical organisation providing for the commencement dates of amending provisions, provisions that need the application of s 4 of the Interpretation Act to make the amending legislation efficiently effective.

22                  Item 107 of schedule 1 of the Amending Act enacts section 188GP into the DFD Act.  It gives a power to appoint an acting DMP, relevantly:

“During a vacancy in the office whether or not an appointment has previously been made to that office.”

23                  In the exercise of that power, an acting DMP was appointed and he made the request to the RMJ to refer the charge to a DFM.  The Amending Act makes no provision for the powers that may be exercised by an acting DMP.  However, reliance was placed on section 33A(1)(e) of the Interpretation Act which provides:

“(1)Where a provision of an Act (other than subsection 33(4) of this Act) confers on a person or body (in this section called the appointer ) a power to appoint a person (in this section called the appointee ) to act in a particular office, then, except so far as the Act otherwise provides, the following paragraphs apply in relation to an appointment made under the provision:

(e)   while the appointee is acting in the office:

(i)   the appointee has and may exercise all the powers, and shall perform all the functions and duties, of the holder of the office; and

(ii)  that or any other Act applies in relation to the appointee as if the appointee were the holder of the office.”

24                              Mr Street submitted that because s 103 of the DFD Act refers only to “the Director of Military Prosecutions” making a request to the RMJ, Parliament manifested an intention to oust the operation of that paragraph of s 33A(1) of the Interpretation Act.

25                  If that submission is correct, it would follow that s 33A(1)(e) of the Interpretation Act would only apply to those Acts that referred to both the acting office holder and the office holder as having the capacity to exercise the powers of the office holder.  However, in that case s 33A(1)(e) would have no, or very little, work to do.  There is nothing in the words of s 103 of the DFD Act from which an intention on the part of Parliament to exclude the operation of the Interpretation Act can be discerned.  Indeed, s 33A(1)(e) was specifically enacted to save enactments such as s 188GP of the Defence Act from having to specify that all the powers of the DMP can be exercised by the acting DMP.

26                  We are clearly of the view that there are no merits in the contentions that the applicant wishes to advance upon appeal and therefore whatever the reasons for the delay in filing the appeal, and they are far from clear, the application for leave to appeal should be dismissed.

An addendum

27                  The jurisdiction of a DMP is prescribed by ss 129 and 115 of the DFD Act.  Upon its face, the legislature does not constrain the exercise of this jurisdiction by mandatory compliance with procedural statutory prerequisites.  However, as this point was not argued, we express no opinion about it. 

 

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey (President), Chief Justice Underwood (Deputy President) and Justice Duggan (Member).



Associate:


Dated:         7 March 2007



Counsel for the Applicant:

A W Street SC and A J Abadee

 

 

Solicitors for the Applicant:

Cichero McLean & Menzies

 

 

Counsel for the Respondent:

Brigadier L A McDade

 

 

Solicitor for the Respondent:

Director of Military Prosecutions

 

 

Date of Hearing:

21 February 2007

 

 

Date of Judgment:

7 March 2007