By -

Key decisions

  • Private R v Brigadier Michael Cowen & Anor [2020] HCA 31
  • Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32

Military discipline 

Jurisdiction of Defence Force magistrate

In Private R v Brigadier Michael Cowen & Anor [2020] HCA 31 (9 September 2020) the High Court was required to consider whether the power conferred on the Commonwealth Parliament by s 51(vi) of the Constitution, to make laws with respect to ‘naval and military defence’ (defence power), supports the conferral of jurisdiction by the Defence Force Discipline Act 1982 (Cth) (‘DFDA’) on a Defence Force magistrate to try a charge of assault occasioning actual bodily harm during peacetime and when recourse to civil courts was available. 

It is an offence under s 61(3) of the DFDA if a defence member engages in conduct in the Jervis Bay Territory which amounts to a punishable offence under the law in the Jervis Bay Territory. Relevantly, assault occasioning actual bodily harm is an offence under s 24 of the Crimes Act 1900 (ACT) which applies in the Jervis Bay Territory by virtue of the Jervis Bay Territory Acceptance Act 1915 (Cth).

[I]f members of the Defence Force engage in ill-disciplined use of violence (whether at home or work) then the Defence Force’s confidence in them to execute their duties lawfully and discriminately, under extreme stress on the battlefield, is undermined. 

You've reached the end of this article preview

There's more to read! Subscribe to LSJ today to access the rest of our updates, articles and multimedia content.

Subscribe to LSJ

Already an LSJ subscriber or Law Society member? Sign in to read the rest of the article.

Sign in to read more