White v Director of Military Prosecutions [2007] HCA 29: Could Section 68 Be a Better Source of Constitutional Authority for Military Judicial Power than Section 51(vi)?

Abstract

Callinan J's view expressed in White raises some intriguing possibilities. It might provide a more satisfactory explanation for the exception of military justice from the requirements of Chapter III of the Constitution. This would be because it is an exception that requires less contortion to the text of the Constitution than the current reliance on s 51(vi). This raises two further questions though. The first is whether command inherently includes discipline. There is some authority for this, including in White itself. The second question is, assuming that command does include discipline, whether it follows that s 68 'vests a power of command which cannot be rejected or diminished'. That is to say, can military disciplinary jurisdiction be exercised by a Chapter III court or only militarily? Further, could it be the case that 'it may not be subject judicial supervision under Ch III of the Constitution' mean there is not even room for judicial review by the High Court? This paper will attempt to address each of these questions in turn.