Millar v Bornholt [2009] FCA 637 (15 June 2009)
LOGAN J at TOWNSVILLE
The circumstances prevailing at the time of the passage of the Mutiny Act 1689 were singular. The “Glorious Revolution” had just occurred. King James II of England (King James VII of Scotland) had fled his kingdoms but was actively plotting his return with the assistance of the French. Parliament had adjudged that he had abdicated the Throne and offered it jointly to his elder daughter, Princess Mary and her husband, Prince William of Orange. The Army had been purged of supporters of the former King. It was necessary to provide for its governance. In his authoritative work, “The Military Forces of the Crown” (1869), Mr C M Clode, Barrister at law and legal advisor at the War Office, offers (at pp 84-85) the following account of what transpired and its enduring relevance:
It was under these circumstances that the Statesman of that period had to consider the course they should adopt in regard to a Standing Army. To disband it altogether was impossible, for the late King was seeking aid from France to recover his lost throne, and war of some kind was inevitable. The people had experienced the evil of two systems, - of an Army of Plebeians exclusively under the Parliament, and of an Army of Cavaliers exclusively under the Crown; and therefore the problem which presented itself was, - how, without risking a divided allegiance, the Army could be placed equably between the Crown and Parliament, that the interest of the one should not so prevail as to disturb the influence of the other.
Now this object was to be attained – not by destroying, but by strengthening the existing departments or powers of the Crown, and, at the same time, by adding to the legitimate functions of Parliament