Case: Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1 ; (2001) 204 CLR 559
Outcome: applied
Paragraph 2.3.4 of the Defence Security Manual provides as follows: '2.3.4 DSA-SIU [Defence Security Authority Security Investigative Unit] is responsible for: a. liaising with external agencies involved with reportable major security incidents and investigating serious and complex security incidents relating to offences under the: i. Crimes Act 1914 , ii. Criminal Code Act 1995 , iii. Public Service Act 1999 , and iv. Defence Force Discipline Act (DFDA) 1982 (limited), b. referring appropriate incidents to the Service Police, AFP or ASIO, c. liaising with other internal and external investigating agencies, d. ensuring that security incidents are reported and maintained within the Defence Policing and Security Management System (DPSMS) for statistical purposes, and e. linking security investigation outcomes into the development of policy, training and vetting'. 35 The Judge Advocate recorded that he had sat without members of the court martial pursuant to s 141(7) of the DFD Act , to consider the admissibility, inter alia , of the Record of Interview. He also recorded that he had received oral and written submissions from the legal representatives of the parties. 36 The Judge Advocate noted that there were effectively two relevant sources of " legislated evidence law of potential application '. The first was Pt 6 of the DFD Act . The second was the Evidence Act 1995 (Cth) ( ' Evidence Act '), which could apply to a court martial by virtue of s 146 of the DFD Act . He pointed out that s 8(1) of the Evidence Act provides that, subject to certain irrelevant exceptions, the Evidence Act is not to affect the operation of the provisions of any other Act. He also noted that the Evidence Act does not authorise the conduct of investigative action and does not afford a person conducting an investigation any rights. 50 Section 77(i) of the Constitution empowers the Parliament, with respect to any of the matters mentioned in ss 75 and 76 of the Constitution , to make laws defining the jurisdiction of any federal court other than the High Court. Section 75(iii) confers original jurisdiction on the High Court in all matters in which the Commonwealth or a person suing or being sued on behalf of the Commonwealth is a party. Section 39B(1A)(a) of the Judiciary Act is an exercise of Parliament's power pursuant to s 77(i) of the Constitution . The provision defines the jurisdiction of the Federal Court with respect to a limited class of the matters mentioned in s 75(iii) of the Constitution : Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1 ; (2001) 204 CLR 559, at 581 [40], per Gleeson CJ, Gaudron and Gummow JJ (with whom Hayne and Callinan JJ agreed generally). 61 The precise character of the power exercised by a court martial may be debatable. In White v DPP at [10], Gleeson CJ cited Professor Harrison Moore's description of courts martial as tribunals which exercise a ' judicial function but which stand outside Chapter III '. The Chief Justice later adopted (at [14]) the view of Brennan and Toohey JJ in Re Tracey; Ex parte Ryan (1989) 166 CLR 578, at 574, that service tribunals exercise a: 'power sui generis which is supported solely by s 51(vi) [the defence power] for the purpose of maintaining or enforcing service discipline'. 62 Gummow, Hayne and Crennan JJ seemed to think that a court martial exercises judicial power, but not the judicial power of the Commonwealth for the purposes of Chapter III of the Constitution : White v DPP , at [50]-[51]. Callinan J, with whom Heydon J agreed, considered that courts martial ' undoubtedly exercise a form of judicial power ', but that the exercise of that power is outside Chapter III: White v DPP at [214], [235]-[236].