High Court of Australia

Nicholas v The Commonwealth [2011] HCA 29

244 CLR 66

10 Aug 2011

Case Number: S183/2010


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


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 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 had prohibited features of bill of pains and penalties - Whether provisions invalid as contrary to Ch III.

Words and phrases – "bill of pains and penalties", "usurpation of judicial power".

Constitution – s 51(vi), Ch III.

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

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


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