## Facts

- Private Alpert, a member of the Australian Regular Army, was posted with his company to an air base in Malaysia.
- He was granted recreational leave under a military instruction restricting leave destinations to specified nearby countries; he took leave in Phuket, Thailand.
- During leave, he traveled on a civilian passport, wore civilian clothing, used private accommodation, and paid his own expenses.
- Thailand had no agreement reserving criminal jurisdiction to Australia over Australian defence personnel.
- Alpert allegedly engaged in non-consensual sexual intercourse with a woman in Phuket while on leave.
- He was charged under the Defence Force Discipline Act 1982 (Cth) with a service offence of “sexual intercourse without consent,” to be tried by a General Court Martial convened in Australia.
- Despite being on leave, Alpert remained a serving soldier overseas and was obliged to keep the Army informed of his whereabouts to permit recall if needed.

## Issues

1. Whether the defence power supports treating an overseas, off-duty offence committed on recreational leave as a “service offence” triable under the military discipline statute.
2. Whether conferring jurisdiction on a non–Chapter III service tribunal to try and punish a serious civilian-type offence is compatible with Chapter III limits, given the need for a sufficient “service connection.”

## Decision

- The High Court, by majority, held the relevant provisions valid as applied to Alpert and refused relief to stop the court-martial.
- The majority concluded the defence power supported applying the military disciplinary code extraterritorially to deployed personnel, including during leave, where sufficiently connected to service.
- The majority held Chapter III was not infringed because trying “service offences” by service tribunals is constitutionally permissible when the offence bears a sufficient service connection.
- Dissenting justices would have found the alleged conduct too remote from service (personal recreational activity abroad) to justify trial by a military tribunal for a serious civilian crime.

## Legal Principles

- The defence power permits Parliament to enact and apply a comprehensive system of service discipline that may extend beyond on-duty conduct and may operate overseas.
- A non–Chapter III service tribunal may try and punish offences only where the offence has a sufficient “service connection” to the accused’s military status and obligations.
- “Service connection” can exist even when the accused is off-duty and on recreational leave, where the member remains within an operational posting and subject to ongoing military obligations (including leave constraints and recall-related duties).
- Chapter III limits are policed through the requirement that service tribunal jurisdiction remain confined to matters properly connected to the defence function, rather than functioning as a general criminal court.

## Conclusion

The Court upheld court-martial jurisdiction over an alleged overseas sexual offence committed during recreational leave because Alpert’s deployed status and continuing military obligations supplied a sufficient service connection, making the disciplinary prosecution valid under the defence power and not inconsistent with Chapter III.


Re Colonel Aird; Ex parte Alpert, 220 C.L.R. 308 (Austl. 2004)