- Private R v Brigadier Michael Cowen & Anor  HCA 31
- Applicant S270/2019 v Minister for Immigration and Border Protection  HCA 32
Jurisdiction of Defence Force magistrate
In Private R v Brigadier Michael Cowen & Anor  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.