IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1485 OF 2003

ON APPEAL FROM THE DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

APPELLANT

AND:

CHIEF OF ARMY

RESPONDENT

JUDGES:	BLACK CJ, BEAUMONT, WILCOX, LINDGREN AND GYLES JJ
DATE:	31 MAY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BLACK CJ, WILCOX AND GYLES JJ:

1 This is an appeal pursuant to s 52 of the Defence Force Discipline Appeals Act 1955 (Cth) (the Appeals Act) from a decision of the Defence Force Discipline Appeal Tribunal (the Tribunal) dismissing an appeal against the conviction of the appellant by a Defence Force Magistrate for common assault contrary to s 61 of the Defence Force Discipline Act 1982 (the Discipline Act) (Hoffman v Chief of Army [2003] ADFDAT 4).

Proceedings before the Tribunal

2 The charge, the proceedings before the Magistrate and the relevant statutory provisions are set out in the judgment of Beaumont J which we have had the advantage of reading in draft. The appellant was legally represented before the Magistrate and pleaded guilty.

3 The notice of appeal to the Tribunal was as follows:

'The applicant appeals from an order of a Defence Force Magistrate at RAAF Base Williamtown made on 10 March 2003.

Grounds of the appeal

1. The learned Defence Force Magistrate erred in law by purporting to exercise jurisdiction under s.129 and s.115 of the Defence Force Discipline Act ('the DFDA') by trying the charge and by convicting the applicant under s.135 of the DFDA, by taking action under part 4 of the DFDA and by imposing punishment on the applicant pursuant to s.75 of the DFDA because the proper construction of s.61(1) and s.190(5) of the DFDA is that it does not proscribe as a service offence conduct that would constitute a civil offence under s.26 of Crimes Act 1900 (ACT) when ss.33(a) and 34 of the DFDA specifically provide for a service offence for substantially the same physical and mental elements and accordingly there was as a matter of jurisdiction no charge of a service offence and no conviction of a service offence.

2. Alternatively, the learned Defence Force Magistrate erred in law by purporting to exercise jurisdiction under s.129 and s.115 of the DFDA by trying the charge and by convicting the applicant under s.135 of the DFDA, by taking action under part 4 of the DFDA and by imposing punishment on the applicant pursuant to s.75 of the DFDA because s.61 of the DFDA is beyond the legislative power of the Commonwealth and invalid and / or should be read down in so far as it purports to proscribe as a service offence conduct that would constitute a civil offence under s.26 of Crimes Act 1900 (ACT) and accordingly the conviction is invalid and of no effect.

3. Alternatively, the learned Defence Force Magistrate erred in law by purporting to exercise jurisdiction under s.129 and s.115 of the DFDA by trying the charge and by convicting the applicant under s.135 of the DFDA, by taking action under part 4 of the DFDA and by imposing punishment on the applicant pursuant to s.75 of the DFDA because the Defence Force Magistrate was purporting to exercise the judicial power of the Commonwealth. In so far as s.129 of the DFDA purports to vest in the Defence Force Magistrate jurisdiction to exercise the judicial power of the Commonwealth in respect of the hearing and determination of an offence against s.26 of Crimes Act 1900 (ACT) as a service offence, it is contrary to ss. 71 and 72 of the Constitution and accordingly the conviction is invalid and of no effect.

4. Alternatively, the learned Defence Force Magistrate erred in law by purporting to exercise jurisdiction under s.129 and s.115 of the DFDA by trying the charge and by convicting the applicant under s.135 of the DFDA, by taking action under part 4 of the DFDA and by imposing punishment on the applicant pursuant to s.75 of the DFDA because the charge against the applicant pursuant to s.61 of the DFDA applying s.26 of Crimes Act 1900 (ACT) was an indictable offence against a law of the Commonwealth and was required to be tried by a jury pursuant to s.80 of the Constitution and accordingly the conviction is invalid and of no effect.

5. Alternatively, the learned Defence Force Magistrate erred in law by trying the charge and by convicting the applicant under s.135 of the DFDA, by taking action under part 4 of the DFDA and by imposing punishment on the applicant pursuant to s.75 of the DFDA because it was an abuse of process to permit the applicant to be charged and convicted under s.61 of the DFDA applying s.26 of Crimes Act 1900 (ACT) when:

a) ss. 33(a) and 34 of the DFDA provide for a service offence for substantially the same physical and mental elements; and

b) at the time that the applicant was charged in 2002 with an offence against s.61 of the DFDA, s.96 prohibited him being charged with an offence against either of ss.33(a) and 34 of the DFDA.

6. Alternatively, the learned Defence Force Magistrate erred in law by trying the charge and by convicting the applicant under s.135 of the DFDA, by taking action under part 4 of the DFDA and by imposing punishment on the applicant pursuant to s.75 of the DFDA because it was an abuse of process to permit the applicant to be charged and convicted under the DFDA in circumstances where:

a) there had been extraordinary and unexplained delay between the commission of the alleged offence in 1996 and the hearing before the Defence Force Magistrate on 10 March 2003;

b) at the time that the applicant was charged in 2002 with an offence against s.61 of the DFDA, s.96 prohibited him being charged with an offence against either of ss.33(a) and 34 of the DFDA.

7. By reason of the matters above, the applicant's conviction resulted in a miscarriage of justice and should be quashed because in law he could not be convicted by the Defence Force Magistrate of the offence charged.

8. Alternatively, the applicant's conviction resulted in a miscarriage of justice and should be quashed because he was not fully advised of:

a) his right to raise each of the matters set out above and have them determined by the Defence Force Magistrate expeditiously;

b) the existence of reasonable prospects of success of the matters set out above;

and in the premises his right to plead not guilty.

9. Alternatively, the applicant's conviction resulted in a miscarriage of justice and should be quashed because if the conviction be set aside, having received further advice the applicant disputes the elements of the offence and seeks to plead not guilty.'

4 Evidence was admitted by the Tribunal from the appellant and a legal officer who represented the appellant during the course of proceedings in support of grounds 5 to 9 (inclusive).

5 The most comprehensive reasons in the Tribunal were given by Duggan J. His Honour rejected the constitutional arguments reflected in grounds of appeal 2, 3 and 4 by reference to established authority in the High Court. He also rejected the legal argument underpinning ground of appeal 1 and, in particular, distinguished the decisions in Saraswati v The Queen (1991) 172 CLR 1 and Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1. His Honour then proceeded to examine in detail and reject each of the remaining grounds of appeal, taking into account the evidence which had been tendered before the Tribunal and referring to relevant authorities. Heerey J agreed generally with Duggan J that the appeal should be dismissed for the reasons given by his Honour. Heerey J added some reasons of his own in relation to ground of appeal 1 and said (at [10]):

'No question of abuse of process arises. There is no suggestion in the material before the Tribunal of personal animus against the appellant, nor of any ulterior or improper purpose to be achieved by bringing the charge against him. The appellant was legally represented and pleaded guilty after the question of limitation periods was specifically raised by the Defence Force Magistrate.'

Mildren J upheld ground of appeal 1, substantially basing himself upon the reasoning in Saraswati. His Honour did not need to deal with the remaining grounds of appeal.

The appeal to this Court

6 The Notice of Appeal to this Court is as follows:

'The appellant appeals from the whole of the judgment of the Defence Force Discipline Appeal Tribunal given on 1 September 2003 at Melbourne.

GROUNDS:

1. The Defence Force Discipline Appeal Tribunal ('the Tribunal') erred in law by failing to hold that the learned Defence Force Magistrate erred in law by purporting to exercise jurisdiction under s.129 and s.115 of the Defence Force Discipline Act ('the DFDA') by trying the charge and by convicting the appellant under s.135 of the DFDA, by taking action under part 4 of the DFDA and by imposing punishment on the appellant pursuant to s.75 of the DFDA because the proper construction of s.61(1) and s.190(5) of the DFDA is that it does not proscribe as a service offence conduct that would constitute a civil offence under s.26 of Crimes Act 1900 (ACT) when ss.33(a) and 34 of the DFDA specifically provide for a service offence for substantially the same physical and mental elements and accordingly there was as a matter of jurisdiction no charge of a service offence and no conviction of a service offence.

2. Alternatively, the Tribunal erred in law by:

a) taking into account at [10] that for an abuse of process to arise, it was necessary for there to have been personal animus against the appellant;

b) failing to take into account that the learned Defence Force Magistrate erred in law by trying the charge and by convicting the appellant under s.135 of the DFDA, by taking action under part 4 of the DFDA and by imposing punishment on the appellant pursuant to s.75 of the DFDA because it was an abuse of process to permit the appellant to be charged and convicted under s.61 of the DFDA applying s.26 of Crimes Act 1900 (ACT) when:

i) ss. 33(a) and 34 of the DFDA provide for a service offence for substantially the same physical and mental elements; and

ii) at the time that the appellant was charged in 2002 with an offence against s.61 of the DFDA, s.96 prohibited him being charged with an offence against either of ss.33(a) and 34 of the DFDA.

3. Alternatively, the Tribunal erred in law by failing to hold that the learned Defence Force Magistrate erred in law by trying the charge and by convicting the appellant under s.135 of the DFDA, by taking action under part 4 of the DFDA and by imposing punishment on the appellant pursuant to s.75 of the DFDA because it was an abuse of process to permit the appellant to be charged and convicted under the DFDA in circumstances where:

a) there had been extraordinary and unexplained delay between the commission of the alleged offence in 1996 and the hearing before the Defence Force Magistrate on 10 March 2003;

b) at the time that the appellant was charged in 2002 with an offence against s.61 of the DFDA, s.96 prohibited him being charged with an offence against either of ss.33(a) and 34 of the DFDA;

4. Alternatively, the Tribunal erred in law by:

a) failing to hold that the appellant's conviction resulted in a miscarriage of justice and should be quashed because the instructions provided to his legal officers were inconsistent with his plea of not guilty;

b) taking into account at [65] that there was a change of instructions by the appellant to his legal officers by the time the agreed facts were prepared.

5. Alternatively, the Tribunal erred in law by:

a) holding at [66] that the appellant had not been placed under pressure by the advice that it would take up to a further 12 months to deal with his case if he pleaded not guilty;

b) failing to take into account that the appellant's conviction resulted in a miscarriage of justice and should be quashed because he was not fully advised of:

i) his right to raise each of the matters set out above and have them determined by the Defence Force Magistrate expeditiously;

ii) the existence of reasonable prospects of success of the matters set out above;

and in the premises his right to plead not guilty.

6. Alternatively, the Tribunal erred in law by failing to hold that the appellant's conviction resulted in a miscarriage of justice and should be quashed, because he was induced into pleading guilty as a result of the incorrect advice from the head of the Australian Defence Force ("ADF") Prosecutions Cell to the appellant's legal officer, that the only record of any conviction of the appellant would be within the ADF.

7. Alternatively, the Tribunal erred in law by failing to hold that the learned Defence Force Magistrate erred in law by purporting to exercise jurisdiction under s.129 and s.115 of the DFDA by trying the charge and by convicting the appellant under s.135 of the DFDA, by taking action under part 4 of the DFDA and by imposing punishment on the appellant pursuant to s.75 of the DFDA because s.61 of the DFDA is beyond the legislative power of the Commonwealth and invalid and / or should be read down in so far as it purports to proscribe as a service offence conduct that would constitute a civil offence under s.26 of Crimes Act 1900 (ACT) and accordingly the conviction is invalid and of no effect.

8. Alternatively, the Tribunal erred in law by failing to hold that the learned Defence Force Magistrate erred in law by purporting to exercise jurisdiction under s.129 and s.115 of the DFDA by trying the charge and by convicting the appellant under s.135 of the DFDA, by taking action under part 4 of the DFDA and by imposing punishment on the appellant pursuant to s.75 of the DFDA because the Defence Force Magistrate was purporting to exercise the judicial power of the Commonwealth and in so far as s.129 of the DFDA purports to vest in the Defence Force Magistrate jurisdiction to exercise the judicial power of the Commonwealth in respect of the hearing and determination of an offence against s.26 of Crimes Act 1900 (ACT) as a service offence, it is contrary to ss. 71 and 72 of the Constitution and accordingly the conviction is invalid and of no effect.

9. Alternatively, the Tribunal erred in law by failing to hold that the learned Defence Force Magistrate erred in law by purporting to exercise jurisdiction under s.129 and s.115 of the DFDA by trying the charge and by convicting the appellant under s.135 of the DFDA, by taking action under part 4 of the DFDA and by imposing punishment on the appellant pursuant to s.75 of the DFDA because the charge against the appellant pursuant to s.61 of the DFDA applying s.26 of Crimes Act 1900 (ACT) was an indictable offence against a law of the Commonwealth and was required to be tried by a jury pursuant to s.80 of the Constitution and accordingly the conviction is invalid and of no effect.'

The first ground of appeal: the application of s 61

7 The question raised by this ground is narrow. The appellant was charged pursuant to s 61 of the Discipline Act (picking up s 26 of the Crimes Act 1900 (ACT) (the Crimes Act)) that he, '[b]eing a defence member at Shoalwater Bay Training Area, Queensland ... did assault ... Captain Paul Barrie Higgins, by pointing a pistol at him during an orders group on Exercise NIGHT CROCODILE 96'. That is the manner in which a charge pursuant to s 33(a) of the Act would have been framed. The elements of the charged offence were identical to the elements of a charge, in respect of the same conduct, that might have been laid under s 33(a). However, there are two important differences between the charge as laid and any charge that might have been brought under s 33(a). First, the maximum penalty for breach of s 33 is six months' imprisonment whereas the maximum penalty for breach of s 61 is two years' imprisonment. Secondly, a charge pursuant to s 33 would have been time barred if laid at the time when the s 61 charge was brought.

8 The question that arises here concerns the construction of the one statute. It is not a question of inconsistency between different statutes. The offence charged is a breach of s 61 of the Discipline Act, a service offence, and not a breach of s 26 of the Crimes Act. As Dixon J pointed out in South Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603 at 626:

'...when two apparently inconsistent provisions occur in one Act of Parliament, to reconcile them by interpretation is the only course open. They cannot both receive their full meaning as it is expressed.'

9 In Network Ten Pty Limited v TCN Channel Nine Pty Limited [2004] HCA 14, (2004) 205 ALR 1, McHugh ACJ, Gummow and Hayne JJ, after discussing various sections of a statute, said of the preferred interpretation (at 18 [61]):

'In this way, effect is given to each provision, while maintaining the unity of the statute in the sense discussed in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[70].'

10 The question of inconsistency and the related question of double jeopardy have often been discussed in relation to similar offences created by different statutes (eg, Butler v Attorney-General (Vic) (1961) 106 CLR 268; Rose v Hvric (1963) 108 CLR 353; Parramatta City Council v Stauffer Chemical Co (Aust) Pty Ltd [1971] 2 NSWLR 500; Environment Protection Authority v Australian Iron and Steel Pty Ltd (1992) 28 NSWLR 502). Sometimes the statutes are of different legislatures, giving rise to a constitutional question (eg Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466; Hume v Palmer (1926) 38 CLR 441; Ex parte McLean (1930) 43 CLR 472; The Queen v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338; The Queen v Winneke; Ex parte Gallagher (1982) 152 CLR 211). Even in such circumstances, the provision for a different penalty for the same act in different statutes is regarded as inconsistent, unless there is a relevant point of distinction (see Isaacs J in Clyde Engineering v Cowburn at 489; Starke J in Hume v Palmer at 462; Mason J in Ex parte Blacklock at 347; and Gleeson CJ in Environment Protection Authority v Australian Iron & Steel Pty Ltd at 507G-508B).

11 Providing two different penalties for an offence with the same elements in two sections of the same statute gives rise to a question of construction that cannot be resolved otherwise than by choosing one section over the other. It is hardly likely that the legislature intended to allow the same conduct to be treated differently, where there is no relevant aggravating or distinguishing circumstance, dependent upon the whim of the prosecuting authority. Such a result would be capricious and arbitrary. As Isaacs J pointed out in Clyde Engineering v Cowburn (at 489):

'If an Act of Parliament, for instance, prescribed 25 lashes for robbery under arms and a later Act prescribed that such an offender should be punished with 20 lashes, it could, of course, ... be said that both provisions could be obeyed, and therefore, applying the suggested test [as to whether the two provisions were inconsistent], the offender must receive 45 lashes. But surely the vital question would be: Was the second Act on its true construction intended to cover the whole ground and, therefore, to supersede the first?'

It is, of course, commonplace that the one act or course of conduct might lead to a variety of offences created by the same statute. However, those offences would all be different in character, one from the other, usually with an ascending order of gravity.

12 A conventional method of resolving such an inconsistency as arises here is for the general to yield to the particular, whether this be attributed to the maxim 'expressum facit cessare tacitum' or the maxim 'generalia specialibus non derogant' (Pearce and Geddes, Statutory Interpretation in Australia, 5^th Ed, para [4.28]-[4.30]).

13 The matter was put by Deane J in Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Live-Stock Corporation (1980) 29 ALR 333 at 347 as follows:

'As a matter of general construction, where there is repugnancy between the general provision of a statute and provisions dealing with a particular subject matter, the latter must prevail and, to the extent of any such repugnancy, the general provisions will be inapplicable to the subject matter of the special provisions. "The rule is, that wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be taken to be operative ..." (per Romilly MR: Pretty v Solly (1859) 26 Beav 606 at 610). Repugnancy can be present in cases where there is no direct contradiction between the relevant legislative provisions. It is present where it appears, as a matter of construction, that special provisions were intended exhaustively to govern their particular subject matter and where general provisions, if held to be applicable to the particular subject matter, would constitute a departure from that intention by encroaching on that subject matter.'

(See also White v Mason [1958] VR 79 per Herring CJ at 81-82.)

14 In Smith v The Queen (1994) 181 CLR 338, Mason CJ, Dawson, Gaudron and McHugh JJ said at 348:

'...where there is a conflict between general and specific provisions, the specific provision prevails (generalia specialibus non derogant). That principle is based upon the presumed intention of Parliament and has, we think, a particular application where the conflict arises from different sections in the same Act. ... It is but common sense that Parliament having before it two apparently conflicting sections at the same time cannot have intended the general provision to have deprived the specific provision of effect.'

15 In No 20 Cannon Street Ltd v Singer & Friedlander Ltd [1974] 1 Ch 229 Megarry J said at 235G:

'Put formally, it seems to me that the proper principle to apply if an enactment contains two similar prohibitions, one wide and the other applying only to a limited class of case wholly within the wide prohibition, is to treat the wide prohibition as not applying to cases within the limited prohibition, especially if the limited prohibition is made subject to some exception and the wide prohibition is not.'

16 It becomes clear when the structure of the Act is considered that s 33 is a particular provision and s 61 is a general provision for present purposes. Part III creates offences. There are nine divisions in the Part. The last division, headed 'Miscellaneous', does not create any primary offence. Division 8 headed 'Other Offences' is the last division that creates offences. It is constituted by s 61 which in terms picks up and incorporates the criminal law of the Jervis Bay Territory.

17 It is correct to say that s 61 incorporates a series of particular offences. That does not detract from the proposition that the preceding provisions, such as s 33, each relate to a topic to which the legislature has given particular attention, whereas s 61 is a catch-all provision. The provisions of Part III which precede Division 8 can readily be recognised as offences which may reasonably be regarded as having a particular relevance to military discipline. The same cannot be said of s 61.

18 This conclusion is supported by the reasoning in Saraswati v The Queen (1991) 172 CLR 1 which had some prominence in the reasons of members of the Tribunal. The facts of that case are stated in the report (at 2-3) as follows:

'Akhandananda Saraswati was convicted before the District Court of New South Wales upon three counts of committing an act of indecency with a person under the age of sixteen years contrary to s. 61E(2) of the Crimes Act 1900 (N.S.W.). The offences were all alleged to have occurred between 8 April and 3 November 1983. No prosecution was commenced until 1987. The evidence led in support of two of the counts amounted to evidence of indecent assault, an offence created by s. 61E(1). The evidence led in support of the third count amounted to unlawful carnal knowledge under s. 71. Saraswati could not have been prosecuted for offences against s. 61E(1) or s. 71 because s. 78 required prosecutions for such offences to be commenced within twelve months from the time of the alleged offence. Saraswati appealed to the Court of Criminal Appeal (Mahoney J.A., Hunt and Badgery-Parker JJ.) on the ground that a charge of committing an act of indecency with a person under the age of sixteen years could not be brought under s. 61E(2) when the conduct relied on was an indecent assault for the purpose of s. 61E(1) or an act of carnal knowledge for the purposes of s. 71. The appeal was dismissed.'

19 McHugh J (with whom Toohey J agreed) accepted the appellant's argument which he summarised as follows (at 20):

'Mr. Porter Q.C., counsel for the applicant, did not dispute that the touching of the complainant's breasts, buttocks and vagina and the act of sexual intercourse each constituted an "act of indecency" within the meaning of that term as it has been judicially interpreted: see R. v. Sorlie (1925) 42 W.N. (N.S.W.) 152; Reg. v. Valence (1958) 76 W.N. (N.S.W.) 137; R. v. Hare (1933) 24 Cr. App. R. 108. He submitted, however, that, in the context of the Act, the term "act of indecency" in s. 61E(2) did not cover a case which fell within the terms of ss. 71, 72 or 61E(1). He submitted that, if s. 61E(2) was construed to cover a case which fell within any of those provisions, an accused person could lose the benefit of the protection given by s. 78 of the Act, and that it could not have been the intention of Parliament in enacting s. 61E(2) to permit a prosecution which s. 78 specifically prohibited.'

20 McHugh J summarised his opinion as follows (at 23):

'Two considerations persuade me that in the present case "the ordinary meaning" of the words "act of indecency" in s. 61E(2) is not their literal meaning. The first is that, when one has regard to the history of s. 61E(2), it is clear that the purpose of Parliament in enacting s. 76A, the predecessor of s. 61E(2), was to deal with cases which did not constitute indecent assaults. The second is the rule that, when a statute specifically deals with a matter and makes it the subject of a condition or limitation, it excludes the right to use a general provision in the same statute to avoid that condition or limitation.'

21 As to the second of the two considerations identified, His Honour said (at 24):

'The Act makes it an offence for a person to have carnal knowledge of or to indecently assault a girl under the age of sixteen. But if the girl is over fourteen years of age, the Act requires the prosecution to be instituted within twelve months of the commission of the offence. It is difficult to accept that, when Parliament enacted s. 61E(2) and authorized the institution of prosecutions for acts of indecency under s. 61E(2), it intended that general power to be used to circumvent the limitation which s. 78 placed on ss. 61E(1), 71 and 72 of the same Act. To use the words of Gavan Duffy C.J. and Dixon J. in Anthony Hordern & Sons Ltd. (1932) 47 C.L.R., at p. 7, the enactment of ss. 61E(1), 71, 72 and 78 "excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power". Accordingly, in my opinion, the context of s. 61E(2) indicates that Parliament did not intend the words "an act of indecency" to cover conduct which constitutes an indecent assault or carnal knowledge. And as s. 34 of the Interpretation Act makes plain, "the ordinary meaning" of a legislative provision in New South Wales can be ascertained only after taking account of its context in the Act.'

22 Gaudron J, the other member of the majority, arrived at the same result by different reasoning. Her Honour said (at 17-18):

'It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other: see Butler v Attorney-General (Vict.) (1961) 106 C.L.R. 268, at p. 276, per Fullagar J., and per Windeyer J. (1961) 106 C.L.R., at p. 290. More particularly, an intention to affect the earlier provision will not be implied if the later is of general application (as is the provision by which indecent dealing is constituted an offence under the Act) and the earlier deals with some matter affecting the individual (as does the limitation provision in s. 78). Nor will an intention to affect the earlier provision be implied if the later is otherwise capable of sensible operation.

...

If s. 61E(2) of the Act has the meaning for which the respondent contends, it necessarily derogates from the protection earlier afforded by s. 78. So much may be seen from the present case for, although, by force of s. 78, the applicant could not be charged with carnal knowledge and indecent assault, his prosecution under s. 61E(2) required him, as a matter of practical reality, to answer those very charges. In my view s. 61E(2) has neither the meaning nor the effect for which the respondent contends.'

23 Dawson J gave the leading judgment for the minority. After stating that at common law the applicant might have been convicted of committing an act of indecency when charged only with that offence, notwithstanding that the facts amounted to carnal knowledge or indecent assault, His Honour went on to say (at 14-15):

'The applicant placed great reliance upon the fact that the offence of committing an act of indecency was created to cover the gap left by the fact that the offence of indecent assault requires not only indecency, but also something in the nature of an assault. However, sexual offences are of their very nature progressive rather than mutually exclusive, so that the more serious offence includes the elements of the less serious offence. For the legislature to have sought to exclude from an act of indecency offences which otherwise would have included the act of indecency would have been to depart from the approach hitherto adopted by the law. Moreover, whilst the object of the legislature in creating the offence of committing an act of indecency appears to have been to close a gap which it perceived in the law, it does not follow that it chose to close that gap in a way which would give rise to incongruous results.

If the applicant's argument is correct, a person charged only with committing an act of indecency would be able to defeat that charge by proving by way of defence that he had in fact committed an indecent assault or unlawful carnal knowledge. If the defence were successful, he could not, upon the principles which I have endeavoured to explain, be subsequently convicted of either of the more serious offences whether or not the time for the commencement of prosecution had expired. But more than that, even if the jury were satisfied beyond reasonable doubt that an act of indecency (in the ordinary sense and not the confined sense contended for as a matter of construction) had been committed, if they entertained a doubt whether the accused was guilty of indecent assault or unlawful carnal knowledge - that is, if they considered that he might have committed those offences - it may be they must acquit upon the charge of committing an act of indecency (in the confined sense) because they would necessarily entertain a doubt whether what he had done amounted only to the commission of the latter offence ...'

24 Deane J agreed with Dawson J and added some comments of his own in which he examined the charging of greater and lesser offences. His Honour said (at 4):

'There are, upon analysis, compelling practical reasons why a statutory provision creating an offence should not be construed as inapplicable to circumstances where conduct which otherwise falls within its terms is aggravated by some circumstance (being part of a single transaction or course of action) which makes the overall conduct a more serious offence under some other statutory provision.'

His Honour further said (at 5):

'Common sense, the efficient working of the administration of criminal justice, and the presumption that the Legislature intends that its words be given their ordinary meaning, combine to dictate that, in the absence of an identified legislative intent to the contrary, a general statutory provision which makes specified conduct an offence should be construed in accordance with its terms and should not be confined so as to be inapplicable to a case where, in its context within a single transaction or course of action, the designated conduct also constitutes an element of a more serious offence. In such a case, the offender is guilty of both the basic offence and the more serious offence notwithstanding the fact that, as a matter of basic principle, he cannot be convicted of them both.'

25 Saraswati did not involve identical offences, and nothing said by any of the Justices is contrary to the conclusion that there is inconsistency in this case because of the differing penalties.

26 The use by Toohey and McHugh JJ in Saraswati of the principle that a general power cannot be used to circumvent the limitations on a specific power, did not command a majority of the Court. However, that does not cast doubt upon the principle itself. Indeed, a similar result was arrived at by Gaudron J using reasoning that is directly applicable to the present case and which did not depend upon the legislative history in that case.

27 In the present statute the existence of the time limitation in relation to s 33 is an indicator that the legislature would not have contemplated that the same offence in substance could be pursued outside the prescribed limitation period. This provides independent support for the conclusion that the s 61 charge was not open that would anyway be indicated by the existence of different maximum penalties for the same conduct. There are a myriad of offences against s 61 of the Discipline Act. The policy that s 96 of the Discipline Act embodies is that an offence against s 61 will be governed by the same limitation period as would have applied if that offence had been charged as a civilian offence. That policy says nothing as to the availability of a charge under s 61.

28 It has not been necessary to resort to extrinsic material or to history to resolve the question of construction that arises in this case. However, if there were a necessity to do so, support would be obtained for the appellant's position. Consideration of the historical excursus by Brennan and Toohey JJ in Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 554-563 is sufficient to indicate that incorporation of the general criminal law of England was supplementary to the particular codes of military discipline. The Report of the Working Party which preceded the Discipline Act, and which was referred to in the Explanatory Memorandum for the Bill (at paragraphs 63-65, 575), makes it clear (at page ix) that Territory criminal law was to be substituted for the English criminal law for the same purpose in Australia.

29 Before the Discipline Act was enacted Australian defence personnel were subject to what was described in the Explanatory Memorandum as a compound of United Kingdom and Australian legislation. The Army had two codes of discipline, one for war service and another when serving in Australia in peacetime. There were different codes again for members of the Air Force and for members of the Navy.

30 A central problem identified by the Working Party was the deeply seated differences in the summary punishments that could be imposed for service offences in the three Services. The Report of the Working Party records the negotiation between the Services of "an acceptable compromise on summary punishments" (see Report at (ii) to (iii)). The levels of summary punishments incorporated in the draft legislation proposed by the Working Party were said to "represent a consensus achieved within the Working Party and ... are regarded as workable by the Navy, the Army and the Air Force." That consensus was reflected in the penalty provisions of the Discipline Act.

31 The Working Party also proposed the reduction of maximum punishments to modern levels and "the demarcation of serious offences from breaches of discipline by the provision of appropriate maximum punishments ...". In explaining its approach the Working Party observed (at page v):

"Part of the value of setting out offences in a disciplinary code lies in their declaratory significance as a code of military conduct. Their educational and preventative value have been obscured or distorted by unrealistic maximum punishments. It does not enhance discipline to hold out minor breaches as serious crimes and we have not hesitated to reduce drastically maximum punishments." (emphasis added)

32 The recommendations of the Working Party that there should be a demarcation of serious offences from breaches of discipline were adopted in the Discipline Act, as the Explanatory Memorandum recites and as its provisions make plain.

33 The offences created by s 33 of the Discipline Act were evidently intended to be regarded as breaches of discipline, since the section was intended to embody the important elements of the former Navy offence of fighting and quarrelling (Navy Act 1957 (UK) s 33) whilst reducing the maximum penalty from imprisonment for 2 years to imprisonment for 6 months.

34 The offences of assaulting a member of the Defence Force of inferior rank (s 34(1)) and assaulting a superior officer (s 25(1)) were plainly to be regarded as more serious. The two-year maximum term of imprisonment for a offences of obvious importance to discipline in the Defence Force takes on an added significance in the present context when it is seen that under the former law the maximum penalty for assaulting a superior officer, if committed in the Navy, was life imprisonment.

BETWEEN:	MICHAEL WILLIAM HOFFMAN APPELLANT
AND:	CHIEF OF ARMY RESPONDENT
JUDGES:	BLACK CJ, BEAUMONT, WILCOX, LINDGREN AND GYLES JJ
DATE OF ORDER:	31 MAY 2004
WHERE MADE:	SYDNEY