High Court of Australia

Haskins v The Commonwealth [2011] HCA 28

244 CLR 22; 85 ALJR 836; 279 ALR 434

10 Aug 2011

Case Number: S8/2011

Before

French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ

Catchwords

Constitutional law (Cth) – Judicial power of Commonwealth - Constitution, Ch III - Validity of laws - Plaintiff defence force member - Plaintiff convicted of disciplinary offences and sentenced to punishment including detention by Australian Military Court ("AMC") established under Defence Force Discipline Act 1982 (Cth) ("Discipline Act") - Plaintiff subjected to punishment - High Court subsequently held invalid provisions of Discipline Act establishing AMC - Military Justice (Interim Measures) Act (No 2) 2009 (Cth) ("Interim Measures Act"), Sched 1, item 5 applied where AMC had imposed punishment to declare rights and liabilities of all persons to be same as if punishment properly imposed by general court-martial, subject to review under Sched 1, Pt 7 - Whether provisions of Interim Measures Act constituted usurpation of judicial power - Whether provisions had prohibited features of bill of pains and penalties.

Constitutional law (Cth) – Powers of Commonwealth Parliament - Acquisition of property on just terms - Whether acquisition by Commonwealth of plaintiff's cause of action for false imprisonment.

Torts – False imprisonment - Liability of Commonwealth for acts of members of defence force - Detention of plaintiff a disciplinary measure applied by one member of defence force to another - Detention in obedience to command of superior - Command of superior lawful on its face - Whether action for false imprisonment destructive of military discipline - Whether action for false imprisonment available to plaintiff.

Words and phrases – "bill of pains and penalties", "false imprisonment", "military discipline", "usurpation of judicial power".

Constitution – ss 51(vi), 51(xxxi), Ch III.

Defence Force Discipline Act 1982 (Cth) – ss 3, 27, 68, 170, Pt VIIIA.

Military Justice (Interim Measures) Act (No 2) 2009 (Cth) – Sched 1, items 3, 4, 5, Pt 7.

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