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Legislative Assembly for the ACT: 1998 Week 4 Hansard (25 June) . . Page.. 1174 ..

detention in cases of mental illness or infectious disease can also legitimately be seen as non-punitive in character and as not necessarily involving the exercise of judicial power. Otherwise, and putting to one side the traditional powers of the Parliament to punish for contempt See Reg v Richards; Ex parte Fitzpatrick and Browne (1955), 92 CLR 157; the War Crimes Act Case (1991), 172 CLR, at p 626. and of military tribunals to punish for breach of military discipline 65 See R v Bevan; Ex parte Elias and Gordon (1942), CLR 452; Re Tracey; Ex parte Ryan (1989), 166 CLR 5 18; Re Nolan; Ex parte Young (1991), 172 CLR 460; the War Crimes Act Case (1991), 172 CLR, at pp 626-627., the citizens of this country enjoy, at least in times of peace, a constitutional immunity from being imprisoned by Commonwealth authority except pursuant to an order by a court in the exercise of the judicial power of the Commonwealth.

There have been arguments that the provisions of Chapter III do not apply to territories, notably in R v Bernasconi (1915) 19 CLR 629. The point was further considered in Spratt v Hermes (1965) 114 CLR 226 where it was held that some of the provisions of Chapter III, namely those relating to appointment of judges, were not applicable to the ACT. However, Barwick CJ at 240 held

I feel after deep consideration, because of the logical consequences of doing so, to express the view that the Constitution ought not to be interpreted as if Chapter III were "inapplicable to territories".

This view has received recent support in Kruger v The Commonwealth (1997) 71 ALJR 991, particularly from Gummow J.

The consequence of these decisions is that some particular provisions such as sections 72 (appointment of judges) and 80 (trial by jury) may not always be applicable. However, the general separation of powers and consequent restrictions on legislative powers created by Chapter III is applicable.

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