Federal Court of Australia

Fulton v Chief of Defence Force [2023] FCAFC 134

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

LOGAN J:

1    It is difficult to have much sympathy for the cause of an officer, who seeks to challenge a decision made by a delegate of the Chief of Defence Force (CDF) pursuant to reg 24(1)(c) of the Defence Regulation 2016 (Cth) (2016 Regulations) to terminate early his service in the Australian Defence Force (ADF), when a major reason for the required conclusion that his retention was not in the interests of the ADF was found in his failure over a very lengthy period to pass a Personal Fitness Test (PFT). Flight Lieutenant (FLTLT) Heath Maxwell Ryan Fulton, to adopt his pre-termination rank in the Royal Australian Air Force (RAAF), is such an officer.

2    However, FLTLT Fulton’s appeal must be decided not on the basis of sympathy, or lack thereof, for either party but according to law. Necessarily, in a case like the present, that means that the limited role of the Court in the exercise of the original, judicial review jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) which FLTLT Fulton invoked, and of the Court when exercising appellate jurisdiction in respect of his challenge to the adverse outcome in the original jurisdiction, must be kept firmly in mind. To the extent that they can be distinguished from legality, that must translate into leaving the merits of the exercise of the early termination of service power in the 2016 Regulations to the CDF and his delegates alone: see, by analogy, Attorney-General (NSW) v Quin (1990) 170 CLR 1, at 35 – 36 per Brennan J, and see, more particularly, in the context of discretions vested in the executive concerning the ADF, Marks v The Commonwealth (1964) 111 CLR 549 (Marks), at 565 per Windeyer J.

3    Contemporary, Australian provision in respect of the nature of service in the ADF, and its early termination, does not fall for construction and application in a vacuum. It requires a proper understanding of our constitutional and related common law inheritance from the United Kingdom in relation to the establishment and governance of a standing military force, the relationship between such a force and the Crown and the termination of membership of such a force: The Commonwealth v Welsh (1947) 74 CLR 245 (Welsh), at 268 per Dixon J.

4    That inheritance, and Australian constitutional and legislative arrangements concerning the establishment, command, terms of service and termination of membership of the ADF, counsel, or should counsel, for judges a number of things – affording supreme importance to outcomes conducive to the absolute subservience of such an armed force to the civil power and its laws; antipathy in accepting submissions made by the CDF which would seek to curtail the apparent meaning of legislative or subordinate measures which modify a more severe common law position and a related preference for construing and applying such measures in a way which promotes the affording by those in command to those under their command of procedural fairness, to the extent that such a right can exist in the context of service in the ADF: Marks, at 564 – 565 per Windeyer J.

Primary Issues

5    As it came to be developed in the course of oral submissions on the appeal, FLTLT Fulton’s cause raised a number of truly important issues, some systemic. One such issue concerned the construction and application, in the circumstances of this case, of reg 24 and reg 6(2) of the 2016 Regulations. Related to that were issues as to what, if anything, was necessary either on the true construction of these provisions or in the circumstances of this case to afford him procedural fairness. Another related issue was whether either generally or in the circumstances of this case his personal performance and related reporting history were relevant considerations in respect of the early termination decision.

6    FLTLT Fulton also chose to press on appeal a number of separate, subsidiary issues. These, with respect, served only to divert attention from the important issues mentioned. Because it can be demonstrated in fairly short order that there is no merit in these other issues, it is convenient first to address them, before returning to the important issues.

7    To give context, it is first necessary to set out reg 24 of the 2016 Regulations:

Early termination of service

(1)    The Chief of the Defence Force may terminate the service of a member for one or more of the following reasons:

(a)    the member is medically unfit for service in the Defence Force;

(b)    the member cannot usefully serve because of redundancy in the Defence Force;

(c)    retention of the member’s service is not in the interests of the Defence Force.

Note:    For interests of the Defence Force, see subsection 6(2).

(2)    The member must be given notice of the termination and at least 14 days after the date of the notice to provide a written response.

Note:     For notice to members, see section 30.

(3)    However, notice is not required to be given under subsection (2) if:

(a)    the member’s appointment or enlistment is subject to a probationary period and that period has not ended; or

(b)    the termination decision is made in relation to a member who:

(i)    has failed to meet a condition of the member’s appointment or enlistment; or

(ii)    has been sentenced to imprisonment for an offence (whether or not the sentence has been suspended); or

(iii)    has been absent without leave for a continuous period of 3 months or more; or

(c)    the termination decision is made in relation to a member who has pleaded guilty to, or been convicted of, an offence and the Chief of the Defence Force is satisfied that it is not in the interests of the Defence Force for notice to be given to the member.

Note:    This subsection does not exclude or limit the operation of the common law relating to procedural fairness.

When termination because of redundancy can occur

(4)    Termination because of redundancy (other than during a probationary period) must not occur until 5 weeks after notice is given unless the member agrees to earlier termination.

It will be necessary, later in these reasons for judgment, to set out the terms of reg 6(2) of the 2016 Regulations.

The application for an adjournment

8    Although the termination decision under reg 24 of the 2016 Regulations in respect of FLTLT Fulton’s service was made on 3 December 2020, it took effect on 20 January 2021. The originating application was filed on 25 January 2021, more than 28 days after notice of the decision and related reasons was given to FLTLT Fulton. Orders granting an extension of time within which to challenge that decision under the ADJR Act were made on 23 August 2021. Thereafter, the trial of the application was consensually postponed, because of the impact of the then prevailing public health restrictions on a need, recognised by the parties and the Court, for that trial to be conducted by a hearing in person.

9    On 4 May 2022, the trial was listed to commence on Tuesday, 13 September 2022. Two business days before then, on 9 September 2022, FLTLT Fulton applied to amend the originating application, for related orders for discovery and for a consequential adjournment of the trial.

10    The proposed amendments raised entirely new issues. As summarised by the learned primary judge, those issues were that the delegate of the CDF, Wing Commander (WGCDR) Scott Nelson, as the decision-maker:

(1)    was biased or failed to act impartially in connection with making the termination decision by reason of the alleged involvement of Squadron Leader Aiden Scarfe who issued the Termination Notice in the decision-making process; and/or

(2)     acted at the direction or behest of individuals who had prepared and given advice to Squadron Leader Scarfe on the Termination Notice.

11    The learned primary judge recognised, correctly, that a power to grant an adjournment existed but that the exercise of this power was discretionary. Having adverted to the chronology of events just mentioned, to the nature of the proposed amendment and related orders and to the principles enunciated in Aon Risk Services Australia Pty Ltd v Australian National University (2009) 239 CLR 175 and, in amplification of what was said in that case, in Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75, at [42], her Honour refused to grant the amendment, related discovery and the adjournment.

12    On the face of the decision and related reasons, the termination decision was that of the delegate of the CDF, WGCDR Nelson and no-one else. WGCDR Nelson stated, at [6] of his reasons, “I have read, considered and formed my own conclusions regarding this matter”.

13    The proceeding under the ADJR Act in the original jurisdiction was adversarial, not inquisitorial and certainly not in the nature of an inquiry by the Inspector General of the ADF (IGADF). Discovery was available, by leave, in respect of an issue on the pleadings, as in any civil proceeding in the Court: Australian Securities Commission v Somerville (1994) 51 FCR 38. The statement in [8.1] of the Court’s Practice Note (ACLHR-1), Administrative and Constitutional Law and Human Rights that, “Unless a party provides an acceptable justification, no discovery or interrogatories will be ordered in proceedings for administrative law cases and constitutional law cases” must be read subject to that judgment of the Full Court. The written reasons furnished for the termination decision did not preclude the granting of such leave. That occurrence was nothing more than, at most, a factor to take into account in the exercise of a discretion as to whether to grant leave: Commissioner of Taxation v Nestle Ltd (1988) 12 FCR 257. However, the stage of proceedings at which discovery is sought is always also relevant. Coupled with radical proposed amendments to pleadings made at a very late stage, this application for discovery had the flavour of an exercise in fishing for a case that FLTLT Fulton did not have.

14    To allege that a serving officer exercising, as delegate of the CDF, the power of early termination of service conferred by reg 24 of the 2016 Regulations is not just biased but acting under dictation is a serious thing. Impressionistically, for such an officer to be animated by bias and act under the dictation of another would be to fail to perform that officer’s duty and thus to commit a service offence constituted by a contravention of s 35A of the Defence Force Discipline Act 1982 (Cth) (DFDA). Further or alternatively and also impressionistically, such conduct by an officer who was such a delegate might be regarded as likely to bring discredit on the ADF and thus constitute the service offence of prejudicial conduct, contrary to s 60(1) of the DFDA. Such allegations would not be established in a civil proceeding by inexact proofs or indirect references: s 140(2), Evidence Act 1995 (Cth); Briginshaw v Briginshaw (1938) 60 CLR 336, at 362 per Dixon J.

15    The position in relation to the making and proof in a civil proceeding of such allegations in relation to a military officer is akin to the allegation and proof of bad faith or other impropriety on the part of a civil servant, qv Daihatsu Australia Pty Ltd v Commissioner of Taxation (2001) 184 ALR 576, at [36] – [38], [48]; Commissioner of Taxation v Futuris (2008) 237 CLR 146, at [55]; Kordan Pty Ltd v Commissioner of Taxation [2000] FCA 1807, at [4]. Such allegations ought not lightly to be made and, even though the standard of proof is but on the balance of probabilities, require definite proofs.

16    The case FLTLT Fulton sought to make on these grounds, or even on the basis that there existed a reasonable apprehension of bias, did not rise beyond the level of inexact proofs and indirect references.

17    On analysis, all that the so-called “audit trail” relied upon by FLTLT Fulton revealed was that a relevant commander, WGCDR Nelson, as delegate of the CDF, was assisted in the exercise of a command function namely, the making of a decision as to whether or not to exercise the early termination power conferred by reg 24(1)(c) of the 2016 Regulations, by subordinates. The provision of assistance by subordinates to senior officers making command decisions is hardly novel in the ADF, any more than it is in civilian administration. The provision of such assistance does not mean that WGCDR Nelson was not responsible for and did not make the resultant decision. What was termed in submissions for FLTLT Fulton the “audit trail” in respect of drafting tasks undertaken prior to the making of the termination decision did not prove that the termination decision was made other than by WGCDR Nelson, or that in so doing, that officer was acting under the dictation of another, or that that officer, in adopting and furnishing reasons for the decision, was doing so other than, as he stated in his reasons, making a personal value judgment in the exercise of the command function mentioned.

18    To the extent that there was any requirement for separation between the person who issued the termination notice and the person who made the termination decision, it need only be stated that the evidence disclosed that WGCDR Nelson was not the person who issued the termination notice.

19    Contrary to a submission initially put on behalf of the CDF but, on reflection, abandoned during the course of an exchange with the Court on the hearing of the appeal, FLTLT Fulton was entitled, without leave, to include an alleged wrongful denial of an amendment of pleadings and related discovery in the challenge which he made to the final orders of the Court in respect of his application under the ADJR Act. This was not a bare refusal of an adjournment, to which the right of appeal limitation found in s 24(1AA)(ii) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) would have been applicable. Neither did FLTLT Fulton attempt to challenge the orders at an interlocutory stage, which would have required a grant of leave: s 24(1A), FCA Act.

20    That does not, however, mean that this ground of challenge is not a challenge to a judicial value judgment on a matter of practice and procedure made by the primary judge. There is no error of principle evident in her Honour’s reasons for refusing the amendment of the pleadings and related discovery and a consequential adjournment. Approaching 18 months after the date on which his termination took effect and in respect of a decision for which reasons in writing had been furnished contemporaneously in early December 2020, and no less than four months after the trial dates had been fixed, the orders made by the primary judge were, with respect, unremarkable. It is to be remembered, too, that there is a public interest in the timely finalisation of a controversy concerning the legality of the early termination of the service of a member of the ADF.

21    For these reasons, there is no merit in these aspects of FLTLT Fulton’s appeal.

Time to Respond

22    There are at least two odd features of reg 24 of the 2016 Regulations.

23    One is that, read in context, the reference in reg 24(2) to “notice of the termination” must mean notice of the proposed termination. For if a termination decision has already been made, it would be pointless to afford a person any time to respond. There is nothing in the regulation to suggest that the decision which the CDF may make as a sequel to any such response under reg 24(2) is a decision to vacate a termination decision already made. Rather, the purpose of making provision, via reg 24(2) and subject to exceptions for which reg 24(3) provides, for notice is that the exercise of the early termination power conferred by reg 24(1) must at least await the expiry of the notice period and be informed by such response, if any, as the defence member concerned may care to make.

24    In contrast, in those cases to which reg 24(3) of the 2016 Regulations is applicable, the termination power may (not must) be exercised peremptorily. The note to reg 24(3) of the 2016 Regulations makes it plain that it is not intended to exclude the common law in relation to procedural fairness obligations in those cases to which that provision applies. The existence and content of any such common law obligation would depend on the exigencies of a particular case: Kioa v West (1985) 159 CLR 550, at 585 per Mason J.

25    Further, such a construction of reg 24 is supported by reading that provision in a wider context, which materially includes reading it in conjunction with reg 30 of the 2016 Regulations. Although the drafting of that provision is also awkward – contrast in the chapeau to reg 30(1), “notice of an action to be given to a member” with the requirements in reg 30(1)(a) and 30(1)(b) that the notice must (a) “state that the action is proposed”; and (b) “set out the reason for the proposal” (emphasis added) – it is tolerably clear that a notice must specify proposed action. This reinforces the position that the exercise of the early termination power must await the making of a response, or at least the expiry of the applicable period for the making of a response. That is put beyond doubt by reg 30(2) of the 2016 Regulations, which provides:

When action can occur

(2)    The action must not take place before one of the following occurs:

(a)    the member provides the written response;

(b)    the member states in writing that he or she does not intend to provide the written response;

(c)    the period for providing the written response ends.

26    When it is recalled that the power of termination conferred by reg 24(1) of the Defence Regulations may fall to be exercised not just during peacetime but also under the exigencies of war or other operational service, another odd feature of reg 24 is that, of the exceptions found in reg 24(3) to the minimum 14 day notice period otherwise mandated by reg 24(2), none is grounded in these exigencies. It is possible to envisage circumstances in which a minimum 14 day notice period for early termination of the service of a defence member might not sit well with the exigencies of war or other operational conditions (as Kay LJ envisaged 128 years ago in relation to a similar power in Dunn v The Queen [1896] 1 QB 116 (Dunn), at 120). It is almost as if whoever drafted reg 24 forgot, if they ever knew, that the primary function of the ADF is warfighting or, to use an older and more prosaic phrase, apt for what is still a constitutional monarchy, to kill the King’s enemies.

27    As it happens, none of the provisions of reg 24(3) of the 2016 Regulation was applicable to FLTLT Fulton’s circumstances. Moreover, the power of early termination fell to be exercised in peacetime.

28    The termination notice, though dated 3 August 2020, was issued on 4 August 2020. FLTLT Fulton came to be given much longer than the regulatory minimum time within which to respond to the termination notice.

29    The learned primary judge made these findings of fact in respect of FLTLT Fulton and the circumstances relating to the period which followed his being given the termination notice, each of which was open on the evidence before her Honour:

(1)    He had a five week period within which to prepare his response;

(2)    He was relieved of other duties so that he could focus exclusively upon his response for part of that period;

(3)    He had physical access to every document relied upon in the termination notice and was advised of all of the allegations against him;

(4)    He was in fact able to prepare a detailed written response responding to all aspects of the termination notice (as the CDF had submitted);

(5)    He was able to obtain character references even though he made a decision not to submit them; and

(6)    Should he have so wished, he had the opportunity to obtain the Personal Performance Reviews (PPR).

30    The occasion for the sixth of these findings was that one basis upon which FLTLT Fulton alleged he had been denied procedural fairness by being afforded insufficient time within which to respond to the termination notice was that he had not, as he wished, been able to obtain the continuum of his PPR from the time of the commencement of his ADF service in order to support his response. Of course, opportunity to obtain and obtaining may be different things.

31    As will be seen, FLTLT Fulton did make reference to what he claimed was a position revealed by his PPR. However, that reference, and the manner with which it was dealt in the termination decision, are relevant to a separate basis upon which he came to advance that he had been denied procedural fairness.

32    The primary judge concluded that FLTLT Fulton had not been denied procedural fairness by a failure on the part of the CDF to allow him a reasonable time within which to respond to the termination notice.

33    Looking at the termination notice, which makes a wide-ranging survey of FLTLT Fulton’s service over a period of service of some 18 years and particular features of it, which are said to warrant the early termination of his service, it is inherently likely that it was the product of a considerable preparatory effort. A concomitant of that is that, if it were decided by a recipient, as was made known to the CDF by FLTLT Fulton, to make a comprehensive response, preparing that response would take quite some time. Further, it is a given that there was an imbalance of resources as between the CDF and FLTLT Fulton.

34    In addition and without being exhaustive, ADF operational considerations, even in peacetime, may be relevant to what is a reasonable time beyond the minimum to allow for a response. So, too, might the circumstances of service at the time of the particular defence member and, if known to the CDF, any medical condition suffered by the particular defence member, which might intrude on his or her ability readily to make a response.

35    Part of FLTLT Fulton’s claim that the time allowed for his response was not reasonable entailed an assertion that he had not had sufficient time to obtain a specialist medical opinion. However, this assertion was not developed by evidence in his judicial review challenge to the end of demonstrating that he suffered from a particular medical condition, known to the CDF, which intruded upon, and ought reasonably to have been regarded by the CDF as intruding upon, the time to allow him to make his response.

36    Another background circumstance at the time when the termination notice was issued was that various public health restrictions where then in force as a consequence of the then extent COVID-19 virus pandemic. FLTLT Fulton asserted that this “would have heightened his level of anxiety and adversely impacted upon his mental health and well-being” but this assertion was unsupported by medical evidence led in the original jurisdiction. At an evidentiary level in the original jurisdiction, the particular impact on FLTLT Fulton of circumstances arising from the prevailing pandemic was inchoate.

37    In the original jurisdiction, both the parties and the primary judge approached the ground of challenge based on the allowance of insufficient time to respond to the termination notice on the basis that, in those cases to which reg 24(2) of the 2016 Regulations applied, the regulation required that the recipient of a termination notice must be allowed such time beyond the minimum as was reasonable in the circumstances of a particular case.

38    This was the correct approach to take to the construction of reg 24(2). In my view, the position is analogous to the allowance of a time within which to comply with a notice under statute requiring the provision of information. In such cases, it is settled that the notice must allow a reasonable time: Ganke v Deputy Commissioner of Taxation (1975) 25 FLR 98, at 105; Hart v Deputy Commissioner of Taxation (2005) 148 FCR 198; [2005] FCA 1748, at [22] – [23]; Clarke v Deputy Commissioner of Taxation (Qld) (1989) 20 ATR 701, at 709. Conversely, what is an unreasonable time period is one which “looked at objectively” is “so devoid of any plausible justification, that no reasonable body of persons could have reached [it]”: see Wouters v Deputy Commissioner of Taxation (NSW) (1988) 20 FCR 342, at 352, referring to Bromley London Borough Council v Greater London Council [1983] 1 AC 768, at 821.

39    In light of the findings of fact made by the primary judge, and the terms of the termination notice, I am unable to conclude that, looked at objectively, the time allowed to FLTLT Fulton for making his response was, in the circumstances, unreasonable. Accordingly, this ground of appeal must fail.

The taking into account of an appearance in court

40    FLTLT Fulton contended that the primary judge should have concluded that, as delegate of the CDF, WGCDR Nelson had taken into account an irrelevant consideration by taking into account a traffic offence (driving without a licence) committed by him to which in 2017 he had pleaded guilty and in respect of which no conviction was recorded. His contention was that this was prohibited by s 85ZW(b)(ii) of the Crimes Act 1914 (Cth) (Crimes Act) and s 12(3) of the Penalties and Sentences Act 1992 (Qld) (Penalties and Sentences Act).

41    By virtue of s 85ZM(1) of the Crimes Act, the circumstance of the person being charged with, and found guilty of, an offence but discharged without conviction is taken to be a conviction for the purposes of the scheme found in Pt VIIC of the Crimes Act (which includes s 85ZW) in relation to the disclosure or taking into account of convictions which are the subject of a pardon, which have been quashed or which are spent.

42    In the reasons given for the termination decision, WGCDR Nelson stated in respect of the 2017 court appearance by FLTLT Fulton in respect of this traffic offence:

Your appearance in court for a traffic offence is relevant to my decision and I consider it appropriate that the Initiating Authority included it in their notice.

…

You appeared in a civilian court and the magistrate may not have imposed a conviction upon you however, they also did not prevent your current employer, being Defence, from considering your appearance in court. Defence has a reputation to protect and members are obliged to inform their chain of command when they come to the adverse notice of civilian police. I am satisfied that coming to the adverse attention of civilian police is below the expected standard of an Air Force member and Officer. Furthermore, as detailed in your TN I found your failure to notify your CO to be well below the standard expected of an officer of your rank and experience. It also created an unacceptable risk to Defence’s reputation, whereby, if you appeared in court and Defence found itself in a situation where it was not prepared for any public or media response pursuant to that appearance, if your appearance and your Defence employment were linked together. I have concluded that it is appropriate that I take all of this information into account regarding whether or not your service is in the interests of Defence.

[at [22(l) and (m)]; emphasis added by primary judge]

43    Although the primary judge chose first to confront the construction and application of s 85ZW(b)(ii) of the Crimes Act and s 12(3) of the Penalties and Sentences Act, her Honour also concluded (at [93]), having regard to those parts of WGCDR Nelson’s reasons which she emphasised in the passage just quoted, that:

… [E]ven if the delegate was prohibited by either s 85ZW of the Crimes Act or s 12(3) of the [Penalties and Sentences Act] from taking into account the fact of the applicant’s conviction for the traffic offence, the delegate did not fall into error. The delegate’s reasons make it clear that, rather than taking into account the “fact of the conviction”, the delegate had regard only to:

(1)    the fact that the applicant appeared in court charged with a criminal offence; and

(2)    the fact that the applicant had failed to notify his commanding officer that he had been charged with the traffic offence and was to appear in court,

in the context of considering whether his behaviour met the expected standards of an Air Force member and officer, and the risks to the Defence Force’s reputation.

[emphasis in original]

44    Having regard to the reasons for the termination decision, I respectfully agree with her Honour as to the use made by WGCDR Nelson of this court appearance by FLTLT Fulton.

45    In these circumstances, the point that FLTLT Fulton seeks to press concerning the meaning and effect of the Crimes Act and of the Penalties and Sentences Act does not arise. Even so, as these subjects were addressed in some depth in the submissions of the parties, it is as well to make some observations concerning them.

46    Within Pt VIIC of the Crimes Act, s 85ZW is found in Div 3. Materially, s 85ZZH of the Crimes Act provides that Pt VIIC, Div 3:

… does not apply in relation to the disclosure of information to or by, or the taking into account of information by a person or body referred to in one of the following paragraphs for the purpose specified in relation to the person or body:

…

(k)    a prescribed person or body, for a prescribed purpose, in relation to a conviction for a prescribed offence

47    Prescription, for the purposes of s 85ZZH(k) of the Crimes Act, is materially to be found in reg 21 and Sch 2, Item 1, Column 2, para (a) of the Crimes Regulations 2019 (Cth). That provides that, in respect of any offence, a Commonwealth authority may take into account a conviction for the purpose of “[a]ssessing the suitability of a person to be employed or otherwise engaged in work that is likely to involve access to national security information classified as secret or top secret”. By definition, the ADF is a “Commonwealth authority”: s 85ZL, Crimes Act.

48    The primary judge found that the purpose of the termination decision made by WGCDR Nelson was to decide whether FLTLT Fulton should remain a member of the ADF. As a general statement, this is true. But the decision had a more particular purpose. That more particular purpose was to decide whether the service of FLTLT Fulton should be terminated earlier than it would otherwise because, in terms of reg 24(1)(c) of the 2016 Regulations, “retention of the member's service is not in the interests of the Defence Force”.

49    It is desirable at this point to set out reg 6(2) of the 2016 Regulations, which provides:

(2)    Reasons for something being or not being in the interests of the Defence Force include reasons relating to one or more of the following:

(a)    a member’s performance;

(b)    a member’s behaviour (including any convictions for criminal or service offences);

(c)    a member’s suitability to serve:

(i)    in the Defence Force; or

(ii)    in a particular role or rank;

(ca)    a member’s failure to meet one or more conditions of the member’s enlistment, appointment or promotion;

(d)    workforce planning in the Defence Force;

(e)    the effectiveness and efficiency of the Defence Force;

(f)    the morale, welfare and discipline of the Defence Force;

(g)    the reputation and community standing of the Defence Force.

50    While it will be necessary to make further observations concerning reg 6(2) later in these reasons for judgment, for the present it can be stated that the definition is inclusory and the considerations which it specifies are obviously not mutually exclusive.

51    Clearly enough, if there were material before the CDF or a delegate reasonably admitting of a conclusion that a defence member was not suitable to be employed or otherwise engaged in work that was likely to involve access to national security information classified as secret or top secret, and the existing and probable future postings of that member required such access, that might in itself provide a basis for deciding that their retention was not “in the interests of the [ADF]” within an ordinary conception of what that phrase might embrace. That same material might also admit of a conclusion that the defence member fell within each of sub-paragraph (c)(ii) (suitability to serve in a particular role or rank), sub-paragraph (ca) (member’s failure to meet one or more conditions of the member’s enlistment, appointment or promotion), sub-paragraph (e) (effectiveness and efficiency of the ADF) and sub-paragraph (g) (reputation and community standing of the ADF).

52    The evidence before the primary judge established, as her Honour found (at [88]), that, at the time of his termination, FLTLT Fulton’s posting immediately before his termination required him to have an NV2 (Top Secret) security clearance. That same evidence established, and the primary judge found, that, given FLTLT Fulton’s rank and seniority, any position to which he might be posted in the future would require him to have at least an NV1 (Secret) security clearance, while some would require an NV2 (Top Secret) (or a PV (Positive Vetting)) security clearance.

53    The primary judge then reasoned (at [88]) that the objective criteria for the exemption found in s 85ZZH of the Crimes Act were met “as, in deciding whether the applicant’s service with the Defence Force should be terminated, the task of the delegate was to assess the applicant’s suitability to be employed in work likely to involve access to secret or top secret national security information”. Her Honour rejected a submission made on behalf of FLTLT Fulton that the reference by WGCDR Nelson in the reasons for the termination decision to the downgrading of FLTLT Fulton’s security clearance was a reference only in the context of an episode in 2017. Her Honour concluded that this did not mean that the s 85ZW Crimes Act exemption made by s 85ZZH of that Act was “somehow displaced”. Her Honour considered that it followed that WGCDR Nelson was not prevented from considering the matters concerning the applicant’s traffic offence in making the termination decision.

54    Reading the reasons offered by WGCDR Nelson for the termination decision as a whole, I am unable, with respect, to share her Honour’s conclusion that a purpose of this particular termination decision entailed assessing FLTLT Fulton’s suitability to be employed in work likely to involve access to secret or top secret national security information. One reason for that is that nowhere in the reasons does WGCDR Nelson state this. The reference in those reasons to the security clearance downgrade was as follows:

On 01 February 2017, as a result of the 31 December 2016 incident at Inala Police Station, the Unit Security Officer submitted documentation to have your security clearance downgraded from Negative Vetting level 2 (NV2) to Baseline. You held .Baseline clearance until 28 August 2017 when it was raised to Negative Vetting Level 1 (NV1). As an OPSO, NVl is the minimum security clearance required. and NV2 may be required for some positions.

[sic]

55    In context, the security clearance downgrade to which WGCDR Nelson referred was associated not with the 2017 court appearance but with an incident at Inala Police Station in 2016. That 2016 incident and its sequel formed part of a chain of reasoning about FLTLT Fulton’s character and behaviour and suitability as an officer. FLTLT Fulton’s suitability or otherwise to be employed or otherwise engaged in work that was likely to involve access to national security information classified as secret or top secret was never developed in WGCDR Nelson’s reasons at all, much less to the end of deciding whether an absence of such suitability was a reason why it was not in the interests of the ADF to retain his service. It was nothing more than a necessary consequence of the termination decision made by WGCDR Nelson that cessation of FLTLT Fulton’s membership of the ADF would entail cessation of any likelihood that he would be engaged in work that would involve access to national security information classified as secret or top secret. The primary judge has, with respect, conflated that consequence with purpose. An assessment of FLTLT Fulton’s suitability to engage in such work did not inform the termination decision. That was not a purpose in the making of the decision.

56    With all due respect to the CDF and those who acted for him in the original and appellate jurisdictions, the tender of evidence (the Adams affidavit) about positions which FLTLT Fulton might come to hold if retained in the ADF was a form of forensic sophistry, designed to provide a purpose for the termination decision never articulated by WGCDR Nelson in his reasons for that decision, to the end of providing a purpose of the decision which might ground a s 85ZZH exemption from s 85ZW of the Crimes Act. To this extent, the submission made on behalf of FLTLT Fulton should have been accepted. However, for reasons already given, acceptance of this submission would have led nowhere in terms of upholding a ground of review based on use of the information contrary to either the Crimes Act or the Penalties and Sentences Act.

57    As to s 12(3) of the Penalties and Sentences Act, I respectfully agree with the primary judge, for the reasons which her Honour gave, that this provision had no application in any event.

58    As the primary judge recognised, a complete answer to the alleged transgression of s 12(3) of the Penalties and Sentences was provided by Kiefel J (as her Honour then was) in Hartwig v Hack [2007] FCA 1039 (Hartwig). As was held in Hartwig, s 12(3) of the Penalties and Sentences Act is concerned with there being no record of a conviction. It does not prevent the taking into account “of the fact of conviction, which is to say: the acceptance of the record and the plea upon which it was based, together with such facts and circumstances as are necessary to provide an understanding of the offence, so far as they are relevant to the question” to be answered in an administrative decision: Hartwig, at [12].

59    Hartwig is referred to in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17 (Thornton), an appeal decided by the High Court after the conclusion of oral submissions in the present appeal. For this reason, the Court afforded the parties an opportunity, in addition to an opportunity already granted in respect of an unrelated issue, before judgment was to stand reserved, to make supplementary submissions in respect of the ramifications, if any, of Thornton for the present case.

60    FLTLT Fulton saw in Thornton support for his contention that WGCDR Nelson had made impermissible use of the 2017 court outcome. However, as the CDF correctly submitted, Thornton is predicated on the correctness of what Kiefel J observed in Hartwig of s 12(3) of the Penalties and Sentences Act but distinguishes those observations and that Act on the basis of the different statutory scheme found in the provision relevant to the alleged impermissible use in that case. That different scheme was found in s 184(2) of Youth Justice Act 1992 (Qld), which provided that a finding of guilt without the recording of a conviction was not taken to be a conviction for any purpose. In turn, s 85ZR(2)(b) of the Crimes Act provides that where, under State law, a person is, in particular circumstances or for particular purpose, taken never to have been convicted of an offence under a law of that State, the person shall be taken, in any State, in corresponding circumstances or for corresponding purpose, by any Commonwealth authority in that State, never to have been convicted of that offence. In Thornton, the Minister had taken into account a person’s offending as a child for which no conviction had been recorded in deciding not to revoke the cancellation of that person’s visa. In dismissing the Minister’s appeal in Thornton, the High Court confirmed that the Minister had made impermissible use of this youthful offending and thus taken into account an irrelevant consideration. In contrast, as Gageler and Jagot JJ identified in their joint judgment in Thornton at [25], s 12(3) of the Penalties and Sentences Act, which concerns only that there be no record of a conviction, does not engage the application of s 85ZR(2) of the Crimes Act; see also to like effect in Thornton per Gordon and Edelman JJ at [81].

Failure to consider Personal Performance Reports

61    I turn now to the truly important issues.

62    To give context, it is necessary to set out an excerpt from FLTLT Fulton’s response of 9 September 2020 to the termination notice. In the closing, “Conclusions” portion of his response, FLTLT Fulton stated, at [62]:

62.    … As the TN issuing authority, FAILED to take into account all of the evidence already available; having annual assessments by over 20 different supervisors across 18 years with not one “Not suitable” assessment. This is a clear violation of the trust the organisation expects from this position. The TN is an abuse of Military Justice System, breach of privacy information, twisting of events or in some cases selecting snippets of information out of context with the whole piece of evidence. This directorate has FAILED and continues to FAIL the Airwomen and Airmen they have been established to manage.

[Sic – “TN” refers to the termination notice – emphasis added]

63    With reference to this paragraph of FLTLT Fulton’s response, WGCDR Nelson stated in his reasons:

You raise concerns regarding the weighing of evidence within your TN. You state that ‘conditional probability’ and ‘un-contextual evidence … hold little weight against recent reporting history of successful performance’. As you have not attached nor pointed me in the direction of any evidence of the reporting history to which you refer, I am unable to consider this; however I am satisfied that the evidence which I have been able to consider, informs an assessment and conclusion of poor performance and justifies the termination of your service.

[emphasis added]

64    The words emphasised in both the response to the termination notice and in the reasons gave rise to what proved to be multi-faceted grounds of appellate challenge.

65    Ground 1 of the notice of appeal was expressed in this way:

1    The primary judge erred in holding that the delegate complied with his duty to consider the Appellant’s service history in circumstances where:

(a)    the delegate failed to consider the Appellant’s Personnel Performance Reports (PPR);

(b)    those reports were available to be considered by the delegate;

(c)    the Appellant raised his service history and the PPR’s in his response to the Termination Notice; and

(d)    the PPR’s are the primary tool for assessment of career management in the Air Force.

66    As so expressed, FLTLT Fulton did not expressly allege error on the part of the primary judge in failing to conclude that WGCDR Nelson denied him procedural fairness or further or alternatively, had, constructively, failed to perform the delegated function of deciding whether to exercise the power of early termination, because he had failed to consider the PPR mentioned in the response to the termination notice. However, in her comprehensively expressed reasons for judgment, the learned primary judge (at [117] – [119]) expressly identified how such an error might arise and concluded that there was no such error.

67    In the course of his developing oral submissions concerning ground 1, it was put to senior counsel for FLTLT Fulton that the way these were being developed suggested an assertion of just such errors, particularly in light of Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 (Dranichnikov). This being acknowledged on behalf of FLTLT Fulton, senior counsel for the CDF accepted that treating ground 1 as embracing an allegation of such alleged errors would occasion no embarrassment to the CDF. Indeed, he highlighted to the Court that the primary judge had addressed the subject. In these circumstances, it is in the interests of justice to grant FLTLT Fulton such leave as may be necessary to advance these alleged errors.

68    In a passage with which I respectfully agree in terms of principle, the primary judge stated (at [117] – [118]):

117    If the applicant had made clearly articulated, substantial arguments to the delegate against termination based on his performance reports, those submissions would have had to be considered (although that is not to say that the contents of the reports themselves would have become relevant considerations or that the delegate would have had to accept their relevance): see, eg, Plaintiff M61/2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at [90] (the Court). This would have required the decision-maker to consider the representations in the sense explained by Kiefel J (as her Honour then was) in Tickner v Chapman (1995) 57 FCR 452; [1995] FCA 987 at 495, and within the bounds of rationality and reasonableness. As Kiefel CJ, Keane, Gordon and Steward JJ recently explained in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 at [24]:

Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by [an applicant].

(Citations omitted.)

118    Moreover, as their Honours also explained in Plaintiff M1 at [25]:

What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated and which do not clearly arise on the materials before them.

69    When regard is had to the reference in reg 24(2) of the 2016 Regulations to the provision of a written response by the defence member concerned, to the references to an invitation to that member to provide a written response in reg 30(1)(c), to the requirement in reg 30(1)(d) that the notice “set out the facts and circumstances necessary for the member to prepare the written response”, to the further requirement, found in reg 30(1)(e) that the notice “specify the period for providing the written response” and to the references to written response in reg 30(2) of those regulations, it must follow that there is an obligation on the part of the CDF or a delegate, in the exercise of the early termination power conferred by reg 24(1) of the 2016 Regulations to consider the response.

70    Sub-regulation 30(2) provides, in respect of the exercise of that power (“the action”):

(2)    The action must not take place before one of the following occurs:

(a)    the member provides the written response;

(b)    the member states in writing that he or she does not intend to provide the written response;

(c)    the period for providing the written response ends.

71    There is, in my view, an obvious affinity between these provisions of the 2016 Regulations and s 501CA(3) and s 501CA(4) of the Migration Act 1958 (Cth), considered by the High Court in Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 (Plaintiff M1/2021). Although the primary judge did not expressly refer to such an affinity, her Honour did, as the passage quoted above reveals, accept that, if FLTLT Fulton “had made clearly articulated, substantial arguments to the delegate against termination based on his performance reports, those submissions would have had to be considered” in the way described in the passages which she quoted from Plaintiff M1/2021.

72    One of the authorities identified by Kiefel CJ, Keane, Gordon and Steward JJ in these passages (Plaintiff M1/2021, at [24], fn 41) is Dranichnikov. In Dranichnikov, a failure by an official of the executive branch to deal with an articulated integer of a claim, which claim that official was bound to consider in the exercise of a statutory function, was regarded by Gummow and Callinan JJ, at [32] (with whom Hayne J agreed) and by Kirby J, at [86] – [89], as constituting a constructive failure to exercise jurisdiction, with Gummow and Callinan JJ also stating, at [24], that the error might alternatively be characterised as a failure to afford the claimant natural justice.

73    Because, relevantly, the claim for relief in Dranichnikov was made under s 75(v) of the Constitution, the error concerned had to be jurisdictional in order to ground relief. However, the relief which FLTLT Fulton claimed in this Court’s original jurisdiction was not in the exercise of the equivalent jurisdiction to s 75(v), conferred on the Court by s 39B(1) of the Judiciary Act 1903 (Cth), but rather under the ADJR Act. In order to make out the statutory grounds of review specified in s 5 of the ADJR Act, it was not necessary for FLTLT Fulton to show that those errors were jurisdictional. A demonstrated failure to afford natural justice would engage the ground specified in s 5(1)(a) of the ADJR Act. A demonstrated failure to discharge a statutory function according to law would engage either or each of the grounds specified in ss 5(1)(b), (f) or (j) of that Act. However, even if such an error were demonstrated, it would fall to the Court to determine whether, as a matter of discretion, relief by the making of an order pursuant to s 16 of the ADJR Act should be granted.

74    Where I respectfully differ from the primary judge is with respect to whether FLTLT Fulton clearly articulated his performance as assessed over the years as a reason why his service in the ADF should not be terminated early. As to this, her Honour stated (at [119]):

119    However, in his response to the Termination Notice, the applicant’s submissions about his performance reporting were pitched at the highest level of generality and did not explain their relevance, bearing in mind that performance reports are not concerned with termination of service but are rather “the primary tool to inform career management decisions including promotions, postings and competitive selections”: Air Force Personnel Standing Instructions at [9.14]; see also at [9.23] (Annexure JA-01, Adams affidavit). Specifically, the applicant stated in his response to the Termination Notice that:

Regarding performance, behaviour and suitability, a multitude of evidence has been available through on time promotions and annual reporting (from over 20 different supervisors) over my 18 years that provide a longitudinal picture of my performance, behaviour and suitability.

(Applicant’s response to the Termination Notice at [55(a)].)

75    Although her Honour mentions [55(a)] of FLTLT Fulton’s response, she does not mention [62] thereof and, in particular, the part I have emphasised. FLTLT Fulton’s response was certainly prolix. But so, too, was the termination notice, especially taking into account its annexures. The former was reactive to the latter.

76    It is necessary to read FLTLT Fulton’s response as a whole. Read as a whole, it is, in my respectful view, clear to the point of demonstration that FLTLT Fulton was putting forward, as a reason why his service ought not to be terminated early, that his personal performance had never, in the course of his career in the RAAF, been assessed as “not suitable”. That statement was not gratuitous. It was not, with respect, “pitched at the highest level of generality”; rather, it was expressed succinctly, starkly and with precision. It was a clearly articulated “integer” of his response. It was certainly at least as clearly articulated as the “particular social group” discerned by the majority in Dranichnikov.

77    Moreover, as the emphasised part of WGCDR Nelson’s reasons proves, he well understood this was an integer of FLTLT Fulton’s response as to why his service should not be terminated early. This notwithstanding, WGCDR Nelson chose, deliberately, not to address this integer of the response in making the termination decision. This was not whimsy on the part of WGCDR Nelson. As his reasons reveal, it was because FLTLT Fulton had not annexed the PPR of a service career of some 18 years to his response. Yet, as was expressly conceded by his counsel in the course of oral submissions on the appeal, these PPR were always in the possession of the CDF.

78    Irrespective of whether, as was also contended on behalf of FLTLT Fulton, it was necessary, in light of reg 6(2) of the 2016 Regulations, or prior authority, namely, Martincevic v The Commonwealth (2007) 164 FCR 45 (Martincevic) or service orders, or any combination of these, for WGCDR Nelson to address FLTLT Fulton’s assessed performance, FLTLT Fulton’s response had made that necessary. Given that these PPR were always in the possession of the CDF, the failure to consider that subject by reference to them before making the termination decision was especially egregious. It ought to have been concluded that, in terms of s 5(1)(a) of the ADJR Act, there had been a failure to afford FLTLT Fulton natural justice and, further or alternatively, that WGCDR Nelson had constructively failed to discharge the function delegated to him by the CDF of deciding whether to terminate early FLTLT Fulton’s service pursuant to reg 24(1)(c) of the 2016 Regulations.

79    Before turning to whether, as a matter of discretion, relief ought to have been granted to FLTLT Fulton pursuant to s 16 of the ADJR Act, it is necessary to address other bases upon which it was submitted that these errors were established.

80    In Welsh, at 268, Dixon J stated, “The relation to the Crown of members of the armed forces is no new subject; the rules of the common law define it.” His Honour’s construction of the meaning and effect of the particular regulations made under the Defence Act 1903 (Cth) (Defence Act) under consideration in that case was informed by recognition that those regulations governed one of the armed forces of the Crown (coincidentally also the RAAF) and were thus required to be considered in light of the related common law rules “and of the long tradition to which they have contributed”. So it must be in the present case.

81    In relation to the ADF, and in terms of our constitutional inheritance from the United Kingdom, a succession of 17th century events form part of the long tradition concerning the relationship between the Crown and the Armed Forces. [The account that follows draws on the entries in the Encyclopaedia Britannica (Online Edition) in respect of the New Model Army, the Declaration of Breda, King Charles II and the Glorious Revolution, C M Clode, “The Military Forces of the Crown” (1869), at pp 84 – 85 and Halsbury’s Laws of England, 4th Ed, Reissue, Vol 2(2), para 1 and Vol 8(2), para 882 – 883, and the footnotes to these paragraphs in Halsbury].

82    The experience in England, and Scotland, in the mid-17th century was that the regicide of King Charles I following a vicious civil war led not to a republican ideal and parliamentary sovereignty but to the military dictatorship of Lord Protector Oliver Cromwell, backed by the New Model Army. After the death of Lord Protector Cromwell, one of his leading generals, George Monck came to realise that there had been an ineffectual succession as Lord Protector by Cromwell’s son, Richard and that England and Scotland were in danger of falling into anarchy. This view was widely held by influential persons in these kingdoms. It culminated, in 1660, in the Restoration. This saw King Charles II restored to power but on terms set out by him in the Declaration of Breda of 1660. This yielded a form of constitutional monarchy. However, the Militia Act 1661 (Eng) granted the King unlimited power to raise a standing army. Upon King Charles II’s death in 1685 and the succession of his brother, King James II, there came to be growing apprehension that he was assuming despotic power and, in a country which had broken with the Church of Rome over 150 years earlier under King Henry VIII, promoting Roman Catholicism. Support for King James II fell away and, in effect, in what came to be called the Glorious Revolution, one of his daughters, Mary, and her husband, William of Orange were invited to invade England. King James II fled the kingdom. William and Mary assumed the thrones of England and Scotland but for England on terms set out in the Bill of Rights 1688 (OS) (Eng). That set out a number of important freedoms which endure to this day, notably, freedom of speech in parliament. But for present purposes it is the prescription in that legislation (s 1) that “the raising or keeping a standing Army within the Kingdom in time of Peace unless it be with consent of parliament is against law” (as rendered into contemporary English) which is important. It was no coincidence that, at the same time, parliament also enacted the Mutiny Act 1688 (OS) (Eng), which provided for the governance and funding of the Army and the suppression of mutiny by the Army against the restored monarch and his officers.

83    The importance of this for present purposes is that, before the English Civil War of the mid-17th century, authority for the existence and governance of the Armed Forces was wholly to be found in the Royal Prerogative. However, by the end of that century, and throughout all of the Australian colonial period (and to this day in the United Kingdom), authority for the existence of a standing army became parliamentary.

84    Later constitutional developments in the United Kingdom notably included the Act of Settlement 1700 (Eng) and the Roman Catholic Relief Act 1829 (UK) (sometimes termed the Catholic Emancipation Act (Emancipation Act)). Although the Emancipation Act manifested an evolution in some of the societal concerns which had occasioned the Glorious Revolution, it did not manifest abandonment of a tradition of disquiet about the threat which a standing Armed Force could present and a need for its parliamentary authorisation. It is in keeping with the tumultuous history described not to construe narrowly provisions which intrude upon common law prerogatives in relation to the Armed Forces.

85    That is, however, but one consideration at large when it comes to construing reg 6(2) and reg 24 of the 2016 Regulation. As with any legislation or subordinate legislation, the task of construction must commence with the text approved by parliament or, as the case may be, the Governor General in Council. In turn, regard must be had to context and purpose. But if there are constructional choices to be made, one would not lightly, in light of the history mentioned, assume that no change to the position at common law under the prerogative was intended.

86    That approach is also in keeping with this observation made by Kitto J (Taylor J agreeing) in Marks, at 556:

A conclusion that a provision solemnly enacted and expressed as conferring a right or a liberty intends nevertheless to make no change in the law is not lightly to be formed.

It is also in keeping with the approach of the Judicial Committee in Gould v Stuart [1896] AC 575 (Gould v Stuart) to the construction of statutory provisions which apparently modified a like common law prerogative of dismissing civil servants at will and without reason. In rejecting a submission on behalf of a representative of the Crown that no change had been intended, the Judicial Committee stated, at 578, “In that case they would be superfluous, useless, and delusive.”

87    On and from when, as a sequel to Federation, colonial military forces passed to the Commonwealth, authority for the existence of the Australian Army and, as they came later successively to be established, the Royal Australian Navy and the RAAF has always been statutory, rather than in some combination of federal executive power (s 61 of the Constitution) and of the vesting of the command in chief of the ADF in the Governor-General, as the Sovereign’s representative (s 68 of the Constitution). That statutory authority is presently to be found in s 17 of the Defence Act, enacted pursuant to s 51(vi) of the Constitution.

88    Yet echoes of the prerogative remain in terms of the relationship between members of the ADF and the Crown.

89    At common law, there is no contract of employment between a member of the Armed Forces and the Crown. Instead, a member of the Armed Forces serves at the pleasure of the Sovereign and may be dismissed at will and without the assignment of any reason. In the United Kingdom, this is established by a long line of cases: In re Tufnell (1876) 2 Ch D 164 (Tufnell); Grant v Secretary of State for India (1877) 2 CPD 445; Mitchell v The Queen [1896] 1 QB 121; Dunn; Gould v Stuart; De Dohse v The Queen (1897) Law J Rep 442; Hales v The King (1918) 34 Times LR 589; Leaman v The King [1920] 3 KB 663; Kynaston v Attorney-General (1933) 49 Times LR 300 and, latterly, Quinn v Ministry for Defence [1998] PIQR P387.

90    In Tufnell, at 173, Malins V-C summarised the common law position thus:

It is an arbitrary power, and one which may be exercised most injuriously to the interests of the officer, but such is the benignity and the conduct of Government and of the Sovereign towards all officers, naval, military, or others, that it is never exercised arbitrarily or improperly, or except on proper occasions, and it is absolutely necessary for the discipline of the army and navy, and for the good conduct of the public service, that such an arbitrary power should exist.

This is a description of a form of despotic power.

91    There is no different understanding in Australia of the position at common law: The Commonwealth v Quince (1944) 68 CLR 227, at 234 per Latham CJ, at 242 per Rich J, 245 per Starke J, 250 per McTiernan J, 253 per Williams J; Coutts v The Commonwealth (1985) 157 CLR 91, at 98 per Wilson J, 105 per Brennan J and 120 per Dawson J.

92    In its stipulation that, “No civil contract of any kind is created with the Crown or the Commonwealth in connection with a member’s service in the Defence Force” s 27 of the Defence Act is declaratory of the common law.

93    At least nominally, reg 24(1) of the 2016 Defence Regulations alters the common law in relation to termination of an ADF member’s service in two respects.

94    One alteration, already discussed, is that, read with reg 30 and subject to the exceptions in reg 24(3), the termination power must be exercised on notice rather than at will. This alteration is therefore not just nominal.

95    Another alteration made by reg 24(1) is that it requires the assignment of a reason by the CDF for the termination.

96    There is an element of precision of application in the reasons specified in regs 24(1)(a) (medically unfit for service in the ADF) and reg 24(1)(b) (cannot usefully serve because of redundancy in the ADF). Material either reasonably admits of a conclusion that a defence member is medically unfit or it does not. There is either a particular redundancy in the ADF or there is not. Thus, in substance and in form, these alternations are more than nominal.

97    However, depending on the meaning one gives to the definition of “the interests of the Defence Force” in reg 6(2) and in any event because of the inclusive rather than exhaustive nature of that definition, the alteration to the common law made by the reason for which reg 24(1)(c) provides, “retention of the member’s service is not in the interests of the [ADF]” may in practice be more apparent rather than real.

98    Absent some definitional content, “the interests of the Defence Force” is ephemeral. Although this consideration is focussed on the ADF, the ADF is, for reasons already given, subject to the civil power. So the interests of the ADF must by necessary implication at least be the interests of the ADF not as a separate military caste but as a military subordinated to the civil power. The phrase “the interests of the Defence Force” is similar to “in the national interest”. With respect to the latter, Kiefel CJ, Gageler and Jagot JJ, in ENT19 v Minister for Home Affairs [2023] HCA 18, at [13], recently cited with approval what was stated in Plaintiff S297/2013 v Minister for Immigration and Border Protection (No 2) (2015) 255 CLR 231, at 242 [18], quoting Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438, at 455 [50], “the decision-maker may properly have regard to a wide range of considerations of which some may be seen as bearing upon such matters as the political fortunes of the government of which the Minister is a member and, thus, affect the Minister’s continuance in office”.

99    As evaluative criteria, phrases such as these exemplify a “matter of opinion or policy or taste” as to which Gibbs J observed in Buck v Bavone (1976) 135 CLR 110 (Buck v Bavone), at 118 – 119 it may be “very difficult to show that it has erred” by an absence of good faith; acting merely arbitrarily or capriciously, misdirection in law, a failure to consider matters required to be considered, a consideration of irrelevant matters or unreasonableness in the sense that the decision could not reasonably have been reached. In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, at [137], Gummow J added, in respect of those observations in Buck v Bavone:

This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.

100    This understanding of the broad, evaluative content of “the interests of the Defence Force” is evident in the Full Court’s judgment in Chief of the Defence Force v Gaynor (2017) 246 FCR 298 (Gaynor), at [101] – [103], which arose under the termination regime which immediately preceded the 2016 Regulations. Gaynor confirms, at [101] – [103], that, broad and evaluative though the content of “the interests of the Defence Force” may be, a termination decision is nonetheless amenable to judicial review on grounds described by Gibbs J in Buck v Bavone. Gaynor is particularly noteworthy for present purposes for the Full Court’s statement, at [102], that “Neither the breadth of the discretion, nor its location in regulations dealing with the Defence Force, indicates that in performing its judicial task of supervising for legal error the exercise of a power, a Court should adopt any deference to the opinion [of the CDF or a delegate” as to what is or is not “the interests of the Defence Force”]”.

101    Given the presence of s 75(v) in the Constitution, it must follow that, even were this Court’s jurisdiction either under the equivalent of s 75(v), s 39B(1) of the Judiciary Act or under the ADJR Act to review a particular decision of the CDF withdrawn, there would remain vested in the High Court of Australia a minimum content of judicial review found in that court’s ability to issue constitutional writs and other relief in aid of such writs. R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452 offers an example of the invocation, even at the height of the Second World War, of this jurisdiction.

102    Existence of a judicial review jurisdiction is one thing, the practical consequence of its invocation and exercise is quite another.

103    The position of the CDF is that reg 6(2) does nothing more than give examples and does not specify relevant considerations. That is contested by FLTLT Fulton, who submits to the contrary.

104    On its face, the text of reg 6(2) of the 2016 Regulations does not state that the instances it specifies are mere examples. In any event, as examples, it does not follow from this that they are not relevant considerations in the sense described by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Peko-Wallsend), at 39 – 40. When it is recalled that, at common law, no reason need be given for the dismissal of an officer by the Crown and that, absent content, the relevant consideration of “the interests of the Defence Force” is ephemeral and may, in practice, be so difficult to challenge on judicial review as to leave the common law position unaltered. Thus, to accept the submission of the CDF as to the meaning of reg 6(2) would be to render the provision, to adopt the language of the Judicial Committee in Gould v Stuart, “superfluous, useless, and delusive.” It would, in practice, return near-despotic power to the CDF in relation to the early termination of the service of defence members.

105    The construction promoted by the CDF was said to be supported by the explanatory statement circulated by the Minister for Defence in respect of the 2016 Regulations and by the amendments made to the Defence Act to provide, by s 9(1), that the CDF “has command of the Defence Force”.

106    I am unable to accept this. As amended, s 9(1) does not turn the CDF into a General Monck, much less a Lord Protector or an early Stuart Monarch. Part of the reason for that is found in the supremacy of civilian ministerial control enshrined in s 8 of the Defence Act, another in the vesting of the command in chief not in the CDF but in the Governor General, as the King’s representative (Constitution, s 68) and the convention that the Governor General acts on the advice of the Federal Executive Council in this role. These, in turn, are but manifestations of the long tradition already described. Another manifestation, also already described, is the preference not to construe narrowly modifications of the common law which confer liberties.

107    Related to that approach to statutory construction, recently highlighted in its application to property rights by Disorganized Developments Pty Ltd v South Australia [2023] HCA 22, at [28], is a requirement, in the absence of clear language to the contrary, preferentially to construe provisions which confer an authority to visit pecuniary loss on a person as carrying with them an obligation to afford procedural fairness to a person affected: Sydney Corporation v Harris (1912) 14 CLR 1, at 7 – 8 per Griffith CJ, at 9 – 10 per Barton J, and at 14 per Isaacs J. Even with respect to the common law, the settled position in relation to its application to military operations or exercises designed to replicate such conditions is not to afford the military any greater immunity from suit than that necessary effectively to conduct such operations: Groves v The Commonwealth (1982) 150 CLR 113; and that is so even in wartime: Shaw Savill and Albion Co. Ltd. v. The Commonwealth (1940) 66 CLR 344. The position is no less strong in relation to provisions which modify the common law. Requiring an administrative decision-maker, civilian or military, to take into account a relevant consideration is conducive to fairness in decision-making. To construe the definition of “the interests of the Defence Force” in reg 6(2) as specifying relevant considerations enhances the modification of the arbitrary common law position made by the 2016 Regulations in relation to the power of early termination. There is nothing in the explanatory statement which supports a construction of reg 24(1)(c) or reg 6(2) to the contrary, even if the text admitted of constructional choices.

108    The construction of regs 24, 6(2) and 30 of the 2016 Defence Regulations promoted by the CDF would also be odd, because the immediate a predecessor, reg 87 of Defence (Personnel) Regulations 2002 (Cth) (Personnel Regulations) was, in Martincevic, at [47], held to “significantly alter the relationship between the Crown and an enlisted Army member from that at common law”. Having referred to Peko-Wallsend, the Full Court in Martincevic, at [60], observed of the 2002 Regulations:

60    Regulation 87 of the Personnel Regulations does not state expressly what considerations a decision-maker is bound to consider in reaching the opinion in reg 87(4) that precipitates the termination of an enlisted member’s service. Regulation 7 of the Personnel Regulations provides limited guidance in so far as it stipulates, in a non-exhaustive way, matters to which a decision-maker must have regard when determining a matter or making a decision under the Regulations, …

[emphasis added]

In my view, reg 6(2) of the 2016 Regulations performs a like role to reg 7 of the Personnel Regulations. It specifies, in a non-exhaustive way, matters to which a decision-maker must have regard when deciding whether to exercise the termination power under reg 24(1)(c) of the 2016 Regulations.

109    It was put on behalf of the CDF that the 2016 Regulations had to be administered in war as well as in peace and to construe the subjects specified in reg 6(2) of the 2016 Regulations as considerations which must be taken into account may admit of difficulty in particular wartime circumstances. Of this, however, it may be said that it is necessary to distinguish the consideration itself from the material available which may or may not support it or even require it to be taken into account at all. For example, first hand observation of the performance of an officer on the battlefield may make it immediately obvious to a superior that the officer is not just a danger to him or herself but to those under his or her command. Although, as I have mentioned, the odd way in which reg 24(3) of the 2016 Regulations is drafted might prevent peremptory termination of that officer’s membership of the ADF, that would not prevent that officer being relieved of command, ordered from the field and then subject to the termination procedure for which the 2016 Regulations provide. And a report of observed performance might inform termination under reg 24(1)(c) on grounds specified in reg 6(2)(a) and perhaps also regs 6(2)(c), 6(2)(e) and 6(2)(f). So, even allowing for the oddity of drafting, in practice it seems unlikely that there is substance in the position put on behalf of the CDF. Further, one might, on reflection, think in any event that poor performance in wartime ought not to be a pathway to early termination of service in the ADF, as opposed, perhaps, to disciplinary proceedings under the DFDA, demotion and reassignment.

110    Yet all this preferred construction of reg 6(2) does is to lead to a conclusion that, in deciding whether to exercise the termination power under reg 24(1)(c) of the 2016 Regulations, WGCDR Nelson was bound, in light of reg 6(2)(a), to consider FLTLT Fulton’s performance. As [62] of his reasons reveals, WGCDR Nelson considered this subject but did not do so (as FLTLT Fulton had requested) with reference to FLTLT Fulton’s performance reports, even though these were always in the possession of the CDF.

111    Also in Martincevic, at [64], the Full Court observed of the termination power found in reg 87 of the Personnel Regulations:

[T]he subject matter and context of the termination decision make it virtually inconceivable that a decision-maker under reg 87 would not be obliged to consider a soldier’s service history. This is because a soldier’s service history would in some way lie at the heart of any proposed termination decision and has some bearing on the proposed reason for termination (which fell for consideration in the opinion to be formed under reg 87(4)). A soldier’s service history was therefore a relevant consideration, in the sense used in Peko-Wallsend 162 CLR at 39.

112    It was put on behalf of the CDF that Martincevic was distinguishable, because the case concerned a proposed termination for medical reasons. But the observation in relation to the relevance of a service history had nothing to do with that particular circumstance and everything to do with what the Full Court considered flowed as a matter of necessary implication from the text, subject matter and scope of the early termination power which fell to be exercised under reg 87 of the Personnel Regulations. Moreover, the particular report which the Full Court held the delegate of the CDF was bound to consider, in light of the Full Court’s conclusion (at [64]) that it was “virtually inconceivable” that a defence member’s service history was not relevant, was not a medical report but rather the report of a senior officer who had conducted an inquiry and made recommendations in respect of allegations of bullying and mistreatment by Private Martincevic.

113    The subject matter and scope of reg 24(1)(c) of the 2016 Regulations is no different. Further, reg 6(2)(a) expressly mentions performance and on its face makes it plain that it is not exhaustive of the content of “the interests of the Defence Force”.

114    Martincevic is not obviously wrong. If anything, subject to one possible caveat, which does not arise in this case, it is, in my respectful view, obviously right. It should therefore be followed.

115    The possible caveat is that the necessary implication found in Martincevic may, given the subject matter, carry with it the rider of “unless necessarily prevented by ADF operational considerations”. Like the present, the termination decision in Martincevic was made under peacetime conditions, making it unnecessary for either the parties or the Full Court directly to confront the ramifications of operational conditions.

116    Demonstrably, WGCDR Nelson has failed to consider FLTLT Fulton’s service history, which must include his PPR. WGCDR Nelson has therefore, on the true construction of the 2016 Regulations, failed to take into account a relevant consideration.

117    It was also put on behalf of FLTLT Fulton that WGCDR Nelson was required by the Military Personnel Manual of (MILPERSMAN3, Chapter 2.6(c)) to take his performance into account in making the termination decision. On the hearing of the appeal, neither his counsel nor, somewhat surprisingly, counsel for the CDF, was able precisely to identify the authority for this document. This became a subject for supplementary submissions. I do not consider it necessary to chart out in detail the authority for the making of the MILPERSMAN. Suffice it to say, it is clear from these that the issuing by the CDF or a subordinate of the MILPERSMAN is authorised by the Defence Act.

118    Also somewhat surprisingly, especially having regard to reg 6(2)(a) of the 2016 Regulations, the CDF contested whether the MILPERSMAN obliged WGCDR Nelson to take account of FLTLT Fulton’s performance and his PPR. This was particularly surprising, when one reads the requirement in the MILPERSMAN to consider performance in light of the RAAF specific the Air Force Personnel Standing Instructions (AFPSI) Chapter 9. One finds in AFPSI Chapter 9 these statements about PPR:

Performance reporting is fundamental to the development and selection of Air Force personnel to meet future capability needs. Promotions and key posting selections are informed by an individual’s reported performance and identified potential. Honest, reliable and timely feedback underpins the integrity of the PPS and subsequent Personnel Branch – Air Force (PERSBR-AF) decision making. Accordingly, performance reports must be afforded the highest priority and closest attention by all supervisors.

The PPS is a holistic personnel reporting system supporting career management decisions.

[PPR] is the primary tool to inform career management decisions including promotions, postings, and competitive selections. The PPR incorporates performance development (goal setting) and performance review by both the assessed member and the assessor. The number of days observed will determine whether a full or abridged PPR is required.

The assessor and the senior assessor are required to assess the future employment suitability of the assessed member …

119    It is difficult to conceive of a more fundamental career management decision for the CDF and his delegates than whether or not to terminate a defence member’s career early pursuant to reg 24(1)(c) of the 2016 Regulations.

120    FLTLT Fulton has also demonstrated that, on this basis also WGCDR Nelson was obliged to take into account his PPR. In this regard, the position is indeed, as he submitted, similar to the requirement found in Martincevic, at [63], which flowed from the then prevailing Defence Instructions (DI(A) PERS 116-5, as well as DI(A) PERS 124-29).

121    FLTLT Fulton has therefore established multiple reasons why WGCDR Nelson erred in failing to take into account his PPR for the purpose of making the early termination decision.

122    It does not necessarily follow that FLTLT Fulton should be granted relief in the exercise of the power conferred on the Court by s 16 of the ADJR Act. The power to grant that relief is discretionary.

123    One basis upon which relief might be withheld is the sheer lapse of time since the termination decision was made – over two and a half years ago. However, the trial of the proceeding in the original jurisdiction was consensually deferred for reasons set out above. So delay is not, in my view, a factor telling against the granting of relief.

124    A factor which has much troubled me is that adverted to at the commencement of these reasons, repeated failure over a lengthy period to pass a PFT. Yet, reflecting further, it is distinctly odd that, this notwithstanding, FLTLT Fulton was not just retained in the RAAF for some 18 years but promoted and deployed on operational service. Further, that deployment involved a waiver of a requirement to pass a PFT. And there look to be other bases in FLTLT Fulton’s service history in which a requirement to undertake a PFT was at least deferred for medical reasons. Moreover and most importantly in terms of discretion, his most recent PPR, the only ones in evidence (2018 and 2019), do not rate him as unsuitable, rather the reverse.

125    To refuse relief on the basis that the result could be no different is, in the circumstances of the present case in my view, to make a decision on the merits. That is something the judiciary must not do in this type of case. It is possible that, considered in the context of the whole of the material, FLTLT Fulton’s PPR just might make a difference. This, in effect, is the view reached by the Full Court in the exercise of the like s 16 ADJR Act discretion in Martincevic in relation to the taking into account of the investigation report. In relation to the exercise of the discretion under s 16 of the ADJR Act as to whether to grant relief, there is a like standard of “reasonable conjecture” to that which informs whether an error is jurisdictional (qv Nathanson v Minister for Home Affairs (2022) 96 ALJR 737, at [33]), and that standard is similarly undemanding.

126    There is another, related reason why I would grant relief to FLTLT Fulton in the exercise of the s 16 ADJR Act discretion.

127    One basis upon which he should succeed is that he was denied procedural fairness by WGCDR Nelson. That brings to mind a long ago case which underscores in a way which should never be forgotten just how important procedural fairness can be in relation to the exercise of the power of early termination of defence service. That is the case of Archer-Shee v The King: see the account of the case in Professor E R Keedy, A Petition of Right: Archer-Shee v The King (1939) 87 University of Pennsylvania Law Review 895. As a young student then studying in the United Kingdom, Professor Keedy had attended the court proceedings in Archer-Shee. Much later, the circumstances of the case were dramatised by the British playwright, Terence Rattigan, in his play, “The Winslow Boy” but in their raw form they are dramatic and instructive enough.

128    Archer-Shee was a young naval cadet at the Royal Naval College, Osborne, dismissed from the Royal Navy in 1908 on the basis of his alleged theft of a postal note. The Admiralty adamantly refused to reconsider that decision. At that time, the common law position prevailed in relation to a dismissal from the Armed Forces but it was thought by those advising him that the position might be different in relation to a naval cadet in respect of whose training a tuition fee was payable. Proceedings by way of a petition of right (a dubious device, given his status) were instituted. These at least afforded an opportunity for exposing the benefits affording procedural fairness can bring. On the hearing of the petition under cross-examination by Sir Edward Carson (as his Lordship then was) for the petitioner, the post mistress at the Isle of Wight post office admitted that all naval cadets looked alike to her. In the face of that admission, and of other exposed flaws in the foundation for the dismissal (including the dubious worth of the handwriting evidence) the Crown, represented by the then Solicitor-General, Sir Rufus Isaacs (as his Lordship then was) informed the court “on behalf of the Admiralty, as a result of the investigation which had taken place, [stated] that he accepted the declaration of Cadet George Archer-Shee that he did not write the name on the postal order, that he did not take it, and that he did not cash it; and that consequently he was innocent of the charge which had been brought against him.” Ironically, Archer-Shee was by then too old to return to Osborne. However, the experience of the saga did not diminish his patriotism. He was an early volunteer during the First World War and, as a junior infantry officer, was killed in action in 1914.

129    Insistence on affording procedural fairness to a defence member, where that right exists, is important for service morale and discipline, just as important as early termination for that reason or others.

130    For these reasons, I would grant leave to FLTLT Fulton to raise the additional issue mentioned, allow the appeal, set aside the early termination decision and remit the matter to the CDF with a direction that the question of early termination be considered afresh either by him or a different delegate. Given the emphatic views which he has expressed and the failings exposed, that fresh consideration ought not to be by WGCDR Nelson.

131    I would also order the CDF to pay FLTLT Fulton’s costs both in respect of the appeal and in the original jurisdiction.

132    It should be recorded that this is not FLTLT Fulton’s first encounter with the exercise of the early termination power. On an earlier occasion, on the basis of a conceded error in the exercise of that power, I was persuaded that it was appropriate to quash that decision: Fulton v Chief of the Defence Force (2017) 60 ALD 209. On that occasion, at [17], I observed that “the quashing of the termination decision neither assures FLTLT Fulton of continued tenure nor limits the CDF or his delegate, if disposed again to consider termination, to the basis chosen before”. I make a like observation in this case.

133    Recently, in Burns v Chief of the Defence Force (No 2) [2023] FCA 866, at [17] – [20], I was sufficiently concerned in the circumstances of that case in relation to an apparent, systemic misunderstanding of the exercise of the early termination power within the ADF to direct the Registrar to refer the court file to the Inspector General of the ADF for such action, if any, as the Inspector General might deem fit, pursuant to s 110C of the Defence Act. Taking into account that this is the second occasion when a flawed termination decision has been made in respect of FLTLT Fulton, I would do likewise in this case, for like reasons.

Associate:    

Dated:    18 August 2023

REASONS FOR JUDGMENT

SARAH C DERRINGTON AND STEWART JJ:

134    At common law, the fundamental feature of the relation to the Crown of members of the armed services is that members of those services hold their engagement at the pleasure of the Crown: Marks v Commonwealth [1964] HCA 45; 111 CLR 549 at 586 per Windeyer J; Coutts v Commonwealth [1985] HCA 40; 157 CLR 91 at 98 per Wilson J, at 105 per Brennan J, at 120 per Dawson J. Section 24(2) of the Defence Regulation 2016 (Cth) alters the common law position by requiring members of the Australian Defence Force, as defined in s 4 of the Defence Act 1903 (Cth), to be given an opportunity, in most circumstances, to respond before a decision is made to terminate their service.

135    These proceedings were brought to challenge the validity of the termination of the appellant’s service in the Royal Australian Airforce (RAAF). His service was terminated, purportedly in accordance with s 24(2) of the Defence Regulation, on the ground that his retention is not in the interests of the Defence Force.

136    The primary question that arises on this appeal is whether, despite the appellant having been given the opportunity to respond in accordance with s 24(2), the decision to terminate his service was nevertheless infected by jurisdictional error because the decision-maker failed to have regard to a relevant consideration, in the sense referred to by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24, or failed to consider a claim that was clearly articulated or which arose clearly on the materials before him: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497 at [24].

137    Additionally, the appellant complains that he was afforded insufficient time to respond to the Termination Notice (TN), that a non-recorded conviction was impermissibly taken into account by the decision-maker, and that the person who issued the Termination Decision (TD) was the same person who issued the TN, contrary to clause 2.15, Part 10, Chapter 2 of MILPERSMAN – the Military Personnel Manual.

138    For the reasons that follow, none of the grounds can succeed and the appeal must be dismissed.

Background

139    By a TN issued on 3 August 2020 pursuant to s 24(2) of the Defence Regulation, the appellant was informed by a delegate of the Chief of the Defence Force (CDF) that it was proposed to terminate his service in the Defence Force. The appellant served as a member of the RAAF Active Reserve between 3 October 2003 and 12 August 2004, and as a permanent member of the RAAF from 20 January 2005 until 20 January 2021 – a total of some 18 years’ service. As at the date of the TN, the appellant held the rank of Flight Lieutenant.

140    The TN gave the following reason for his proposed termination:

Throughout your service you have demonstrated a long-standing inability to pass the Air Force Physical Fitness Test (PFT) despite being medically fit, previous administrative sanctions, and the ongoing support of your chain of command. You have demonstrated a pattern of behaviour that is below the standard expected of an Air Force officer. Your behaviour includes coming to the adverse attention of Queensland Police and driving without a licence. You have repeatedly displayed a disrespect for authority by wilfully defying the directions of your chain of command. Your actions are contrary to Air Force values and demonstrate your unsuitability to be a member of the Defence Force. Giving consideration to the guidance of subsection 6(2) of Defence Regulation 2016, I have formed the opinion your retention is not in the interests of the Defence Force.

(Emphasis underlined added.)

141    There was no dispute that the appellant had only passed one PFT, being that undertaken at Officer Training School on 23 May 2003. Similarly, there was no dispute that the appellant had come to the adverse attention of Queensland Police, nor that he appeared in court for a traffic offence.

142    The “guidance” to which the delegate referred in the TN is the definition of something being or not being in the “interests of the Defence Force” as set out in s 6(2) of the Defence Regulation. It provides:

Reasons for something being or not being in the interests of the Defence Force include reasons relating to one or more of the following:

(a)     a member’s performance;

(b)     a member’s behaviour (including any convictions for criminal or service offences);

(c)     a member’s suitability to serve:

(i)     in the Defence Force; or

(ii)     in a particular role or rank;

(ca)     a member’s failure to meet one or more conditions of the member’s enlistment, appointment or promotion;

(d)     workforce planning in the Defence Force;

(e)     the effectiveness and efficiency of the Defence Force;

(f)     the morale, welfare and discipline of the Defence Force;

(g)     the reputation and community standing of the Defence Force.

(Emphasis underlined added.)

143    Purportedly in accordance with that “guidance”, the delegate addressed in the TN only those matters in s 6(2) he deemed relevant to the prospective termination, being performance, behaviour, suitability, effectiveness and efficiency, and reputation and community standing of the Defence Force.

144    Paragraph 6 of the TN addressed the appellant’s history of failing to pass a PFT, and paragraph 13(a), which was headed “Performance”, dealt solely with the appellant’s performance in relation to his ability to achieve and maintain a physically fit status. In particular, paragraph 13(a) referred to it being “an inherent requirement of service in the Defence Force, that all members maintain a minimum physical fitness standard in order to successfully complete a PFT”. The evidence relevant to the delegate’s consideration of this aspect of the appellant’s performance was detailed over 8 pages in Annexure A to the TN.

145    As to the appellant’s unsuitability to remain in the RAAF, the TN at paragraph 8 detailed his “poor attitude and poor performance resulting in administrative action” as described in Annexure B and Enclosures 7 and 27. His “poor conduct” was detailed at Annexure C.

146    The TN specified that the appellant had fallen short of the standard of behaviour and performance expected of him, relevantly, identifying the “Inherent Requirements of Service in the Australian Defence Force” as detailed in the MILPERSMAN Part 2, Chapter 1.

147    Paragraph 16 of the TN informed the appellant that, in relation to the content of his response, “[a]ny additional information (including documents or statements) that you wish the decision maker to consider must be relevant to the decision and attached to your response”.

148    Following the grant of two extensions to the initial 14-day period, by which he was invited (and to which he was entitled by Defence Regulation s 24(2)) to provide a written response, the appellant submitted his response on 9 September 2020.

149    Relevant to the assessment in the TN of his performance, behaviour and suitability, the appellant said in his response:

[55](a)    Regarding performance, behaviour and suitability, a multitude of evidence has been available through on time promotions, and annual reporting (from over 20 different supervisors) over my 18 years that provide a longitudinal picture of my performance, behaviour and suitability.

150    The appellant also asserted that the TN “demonstrates a FAILURE to understand ‘risk’” saying:

[55]    Risk is a potential or probability. Claims based on a possibility of an unknown future event to form a further probability of a negative outcome is a ‘conditional probability’ (ie based on multiple chained assumptions; not facts). This ‘conditional probability’ then becomes an infantile factor when compared to demonstrated (and repeatedly reported) performance far outweighs the claims in a balance of probabilities…

151    Under the heading “Conclusion”, the appellant said:

[62]    As the recommending authority and issuer of the TN, to have relied upon evidence provided by the “case officer” is not IAW administrative law principles and was an improper basis for issuing administrative action. As the TN issuing authority, FAILED to take account of all the evidence already available; having assessments by over 20 different supervisors across 18 years with not one “Not suitable” assessment. This is a clear violation of the trust the organisation expects from this position…

152    On 3 December 2020, the appellant was informed in the TD that his retention was not in the interests of the Defence Force and that his service would be terminated, effective 20 January 2020. Relevantly, paragraph 12 of the TD records:

You allege that the “TN issuing authority”, which I take to mean the Initiating Authority, “failed to take account of all the evidence”. In particular, you refer to your annual reporting spanning 18 years. I have afforded this assertion low weight. It is for the Initiating Authority to determine what evidence is relevant to support their reasons for proposing a member’s termination. It is then for the member to provide any additional evidence that they deem relevant in countering or mitigating against this proposal. As you have not attached the reports to which you refer, I am unable to consider them: however, I am satisfied that the evidence which I have considered justifies the need to terminate your service.

Was the decision-maker required to take the PPRs into account?

153    The gravamen of the appellant’s complaint is that he had clearly submitted that the delegate ought to have taken into account his PPRs and the failure to do so amounted to a failure to have regard to a relevant consideration in the sense referred to in Peko-Wallsend at [45] per Mason J:

It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time decision is made. But that principle is itself a reflection of the fact that there may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.

(Emphasis added.)

154    Alternatively, as emerged during argument, the appellant also put his case on the basis of jurisdictional error on the part of the decision-maker in failing to consider the claim that the appellant was making: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088; Plaintiff M1.

155    The policy relevant to PPRs is contained in MILPERSMAN Part 5, Chapter 2. The policy statement reads:

2.2    Each Service is to employ a performance reporting system suitable to their individual needs consistent with minimum Defence performance reporting requirement outlined in this chapter. Personnel performance reporting is designed to assess competency in rank and posted position in order to identify potential eligibility for promotion and future career aspirations.

156    The purpose of performance reporting on Defence members is specified in 2.4 to:

a.    truthfully record the work performance of the member within their assigned position, role and rank for the given performance period

b.    identify the member’s strengths and weaknesses

c.    provide honest feedback to the member on performance and development needs

d.    identify their suitability for promotion, courses, and selective postings

e.    provide information which will assist in further career management and employability

f.    monitor performance levels to ensure that required standards of effective performance are maintained.

157    The principles that are said to guide the development of single-Service policies are outlined in 2.12. Relevantly, 12.2(e) provides:

Assessors must not use performance reporting as a method of administrative or disciplinary action against an assessed member. However, for the purpose of providing a complete picture of the assessed member’s adherence to Defence Values and Behaviours, the annual performance report should note and comment on any substantiated poor performance and unacceptable behaviour that occurred within the reporting period. Further, irrespective of when the catalysing incident occurred, performance reports should also detail any administrative action and civilian or service convictions and the underlying behaviour of any Discipline Officer infringements that are imposed within the reporting period.

158    There was no dispute that the PPRs were the property of the CDF and were available to the delegate. There was equally no dispute that the appellant had the right to access his PPRs but did not seek to do so.

159    As the Full Court articulated in Martincevic v Commonwealth [2007] FCAFC 164; 164 FCR 45 at [59]:

Under the Judicial Review Act, as at common law, the accepted position is that: (i) the ground of failure to take a relevant consideration into account can only be made out if a decision-maker fails to take into account a consideration that he or she is bound to take into account in making the decision; (ii) the considerations a decision-maker is bound to take into account are determined by the statute … conferring the discretion; (iii) if the relevant considerations are not expressly stated, then they must be determined by implication from the subject-matter, scope and purpose of the statute; and (iv) a court will not find that a decision-maker is bound to take a particular matter into account unless an implication to that effect can properly be made.

(Emphasis in original).

160    Martincevic was concerned with a decision that had been made to terminate a soldier’s service on medical grounds where it was accepted by the Full Court that the decision-maker failed to take into account a report that was, in the appellant’s submission, “relevant to the appellant’s history and pertinent to the question of whether or not he could continue in the army once the systemic bastardisation of him” ceased: Martincevic at [38], [64]-[67]. The circumstances of the case arose under an earlier version of the Defence Act and the predecessor to the Defence Regulation, the Defence (Personnel) Regulations 2002 (Cth). In that context, the Full Court said, at [47], that what is required of a decision-maker to act fairly, or accord natural justice, in circumstances such as those presently under consideration, depends on the circumstances of the case, the subject matter and context, and the legal framework in which the decision is made [citation omitted]. The circumstances are set out above. For this purpose, the Personnel Regulations, especially reg 87, supply the relevant legal framework.

161    To succeed on this ground, the appellant must show the current statutory context and legal framework compelled the delegate to take his 18 years of PPRs into account.

The statutory context

162    Section 24 of the Defence Regulation is made pursuant to s 124(1)(a) of the Defence Act by which the Governor-General may make regulations prescribing matters providing for and in relation to, inter alia, “[t]he enlistment, appointment, promotion, reduction in rank, retirement and discharge of members of the Defence Force”. Section 11 of the Defence Act provides that, for the purposes of the administration of the Defence Force, the Secretary and the CDF together may issue Defence Instructions.

163    The previous iteration of s 24, and with which Martincevic was concerned, provided:

87     Termination of service of enlisted member for other reasons

(1)    The service in the Defence Force of an enlisted member may be terminated, in accordance with this regulation, for any of the following reasons:

(a)    if the enlisted member is less than 18 years old—the enlisted member’s father, mother or guardian has requested the termination of the enlistment;

(b)    the enlisted member will, on termination, be appointed as an officer;

(c)    the enlisted member is medically unfit (including unfitness because of mental incapacity);

(d)    the enlisted member does not comply with the medical standard for the trade or employment in which the enlisted member is engaged;

(e)    the Chief of the enlisted member’s Service is satisfied that the enlisted member is not suited to be an enlisted member of the Defence Force;

(f)    if the enlisted member is undergoing:

(i)    recruit training; or

(ii)    initial employment training; or

(iii)    apprentice training; or

(iv)    trade training;

the Chief of the enlisted member’s Service is satisfied that the enlisted member is unsuitable for further training;

(g)    the Chief of the enlisted member’s Service is satisfied that the retention of the enlisted member is not in the interest of:

(i)    the Defence Force; or

(ii)    the Chief’s Service;

(h)    the enlisted member gave false or misleading information to a person to whom the enlisted member was required to give information in relation to the enlisted member’s enlistment;

(i)    the enlisted member has not been granted, or has not accepted, Australian citizenship;

(j)    the enlisted member has failed to render service that the enlisted member was required to render.

(1A)    Without limiting paragraph (1)(g), the Chief of the enlisted member’s Service may be satisfied for that paragraph for reasons relating to the enlisted member’s:

(a)    performance; or

(b)    behaviour; or

(b)    conviction of an offence or a service offence.

(2)    The Chief of an enlisted member’s Service may give the enlisted member a termination notice:

(a)    stating that it is proposed to terminate the enlisted member’s service in the Defence Force; and

(b)    stating the reason for terminating the service; and

(c)    setting out particulars of the facts and circumstances relating to the reason for terminating the service that is sufficient to allow the enlisted member to prepare a statement of reasons why the service should not be terminated; and

(d)    inviting the enlisted member to give the Chief a written statement of reasons why the service should not be terminated; and

(e)    specifying a period of at least 28 days after the date of the notice as the period in which the enlisted member may give the statement of reasons.

(3)    If:

(a)    the enlisted member does not give the Chief a statement of reasons in the specified period; and

(b)    the Chief is of the opinion that the reason for terminating the enlisted member’s service has not been affected by a change in circumstances since the termination notice was given to the enlisted member;

the Chief must terminate the enlisted member’s service in the Defence Force.

(4)    If:

(a)    the enlisted member gives the Chief a statement of reasons in the specified period; and

(b)    having considered the statement, the Chief is of the opinion that the reason for terminating the enlisted member’s service:

(i)    has been established; and

(ii)    has not been affected by a change in circumstances since the termination notice was given to the enlisted member;

the Chief must terminate the enlisted member’s service in the Defence Force.

(5)    The Chief must not terminate the enlisted member’s service under this regulation in any other circumstances.

(6)    If a delegate gives a termination notice to an enlisted member, the delegate must not himself or herself terminate the enlisted member’s service under this regulation.

(Emphasis added).

164    The Full Court in Martincevic observed, at [60], that reg 87 did not state expressly what considerations a decision-maker is bound to consider in reaching the opinion specified in reg 87(4). It is plain, however, that reg 7 stipulated the mandatory considerations of any decision-maker:

7    Criteria

(1)    This regulation applies to a person who is required to make a determination or decision under these Regulations.

Examples

1 A determination of conditions under regulation 14 or 23.

2 A determination of seniority under regulation 16 or 26.

(2)    The person must have regard to the following matters when determining the matter or making the decision:

(a)    the ability of the relevant Service to carry out operations that it is carrying out or may be required to carry out;

(b)    the size and composition of the relevant Service;

(c)    the organisational effectiveness of the relevant Service;

(d)    the training of the relevant Service;

(e)    the need to ensure the availability of an adequate supply of suitable officers and enlisted members in the relevant Service;

(f)    the skills, experience and standards of behaviour and conduct required for the proper performance of duties in the relevant Service;

(g)    the management of officers and enlisted members in the relevant Service;

(h)    the career advancement needs of officers and enlisted members in the relevant Service.

(3)    If the decision or determination relates to an individual, the person must consider whether, having regard to the individual’s past and present conduct, the individual is of good character.

(Emphasis added.)

165    The circumstances in Martincevic called for consideration of the relevance of a Defence Force Instruction (DI(A) PERS116-5) made under s 9A of the Defence Act, as it was then enacted. DI(A) PERS116-5 specified, in a non-exhaustive way, certain factors that a decision-maker should (but was not thereby limited to) consider. No comparable Defence Instruction is applicable in the present case.

166    Subsequent to the decision in Martincevic, the Defence Act was relevantly amended in 2015 by the Defence Legislation Amendment (First Principles) Act 2015 (Cth). The First Principles Act repealed Parts II and III of the Defence Act and substituted a new Part II, “Control and administration” and a new Part III, “The Australian Defence Force”.

167    The First Principles Act commenced on 1 July 2016. As stated in the Explanatory Memorandum to the Defence Legislation Amendment (First Principles) Bill 2015 (Cth), its purpose was to clarify the CDF’s role as the sole commander of the Defence Force. It also consolidated relevant provisions of the Naval Defence Act 1910 (Cth) and the Air Force Act 1923 (Cth) into the Defence Act, while repealing those earlier Acts. The amendments also gave full command of the Defence Force to the CDF by removing legislative limitations in the Defence Act. 

168    One of those amendments was to repeal s 9A, pursuant to which the Defence Instructions relevant in Martincevic were made, and replace it with s 11, which is in comparable terms.

169    The Defence Instruction Administrative Policy (DI ADMINPOL) is a Defence Instruction issued pursuant to s 11 of the Defence Act. DI ADMINPOL is an administrative policy framework document which establishes the administrative policy framework that supports the Secretary to administer Defence, and the Secretary and CDF to jointly administer the Defence Force. DI ADMINPOL states that Defence personnel must not depart from the provisions contained in Annexes B to L.

170    Paragraphs 3 and 4 of DI ADMINPOL state, respectively, that the Secretary and the CDF expect Defence personnel to comply with, and consistently apply, administrative policies contained in “framework documents”, and that the failure to adhere to administrative policy may result in breach of legislation or other legal obligations. The term “framework documents” is defined as administrative policy documents that are part of the administrative policy framework in Defence, which are the DI ADMINPOL, accountable authority instructions, interim Defence Instructions, and policies (including those known as manuals).

171    DI ADMINPOL states at paragraph 16: “The Secretary and the Chief of the Defence Force expect Defence personnel to comply with administrative policies unless particular circumstances warrant departure”.

172    For the purposes of DI ADMINPOL, MILPERSMAN is a “framework document”. It is a “policy” or “manual”. Chapter 1 of MILPERSMAN is the preliminary chapter which explains its status and context. Relevantly, it provides:

1.4    This manual is an administrative policy framework document that applies to all Defence Personnel – and where it is a term of their contract, contractors, consultants and outsourced service providers.

1.5    The Secretary and the Chief of the Defence Force (CDF) require Defence personnel to comply with provisions in this manual unless particular circumstances warrant departure from the provisions.

1.6    Some provisions in this manual may support Defence personnel to comply with obligations that exist in:

a.    applicable laws

b.    directives or determinations issued under the Defence Act 1903

or

c.    Defence Instructions.

1.7    Defence personnel must not depart from the provisions in this manual in a way that would result in any breach of the obligations outlined in paragraph 1.6.

173    MILPERSMAN was issued on 14 October 2013, following approval by the CDF and the Secretary. A revised version of MILPERSMAN (Edition 2) was issued on 15 December 2017, following approval by the Deputy Secretary Defence People. This version of MILPERSMAN, incorporating amendments made up to 27 October 2020, was in effect as at the date of the TD. It can be inferred that the source of power for the CDF and the Secretary (or any person on their behalf) to issue MILPERSMAN was s 10 of the Defence Act, as a function of their joint administration of the Defence Force. MILPERSMAN is not a Defence Instruction issued pursuant to s 11 of the Act, nor a regulation made pursuant to s 124 of the Defence Act.

174    Consequent upon the amendments to the Defence Act, commensurate amendments were made to the Regulations. The Defence Regulation replaced the Personnel Regulations, the Defence Force Regulations 1952, and the Defence (Prohibited Words and Letters) Regulations 1957. Only the former is relevant for present purposes.

175    The Explanatory Statement to the Defence Regulation states that the old Regulations were replaced for the following reasons, at [3]:

•    To enhance the CDF’s position as the sole commander of the Defence Force, in accordance with the agreed recommendations of the report First Principles Review - Creating One Defence, and consistent with the Defence Legislation Amendment (First Principles) Act 2015

•    To provide greater flexibility in personnel decision-making in line with the requirement for a capable, agile and potent future force, while retaining essential protections against unfairness

•    To insert new substantive provisions, or to replace provisions in the old Regulations that are no longer fit for purpose, including to implement decisions arising from the Pathway to Change recommendations and the Re-Thinking Systems Review

•    To begin the process of consolidating the bulk of regulations made under the Act into a single instrument

•    To modernise, clarify and simplify provisions, and to remove redundant provisions

•    To replace the old Regulations before they sunset in accordance with the Legislation Act 2003.

176    Under the heading “Flexible personnel decision-making”, the Explanatory Statement says:

[18]    The mission of Defence Force is to defend Australia and its national interests. To fulfil this role, the Defence Force must generate capability, not only for the direct defence of Australia, but to support and enhance regional stability, to contribute to global and coalition responses to threats, and to support peacekeeping, humanitarian assistance and disaster relief operations worldwide. The foundation of the Defence Force’s capability, effectiveness and reputation is its people.

[19]    Service in the Defence Force is unique. The nature of the risks Defence Force members face in combat and the authority to use armed force give rise to the essential nature of service in the Defence Force: while a person is a member of the Defence Force, they have a non-contractual and unlimited liability to serve. The system of command lies at the heart of service in the Defence Force. Defence Force members must follow all lawful commands, including orders that involve considerable risk to their life. Members in the Permanent Forces are required to render whatever service is required of them by the Defence Force, in whatever location the Defence Force requires them to be. Defence Force members can only leave the Defence Force if they reach the end of their agreed period of service or if the Defence Force agrees to release them from service - there is no right to resign unilaterally. A member who fails to attend duty can be charged with an offence, and is liable to imprisonment. These differences from civilian employment are essential for the Defence Force to successfully fulfil its mission as a professional and disciplined force operating in diverse environments.

[20]    In this context, recruiting, developing and retaining sufficient capable and motivated people is crucial, and requires innovative and flexible approaches to build the capable, diverse, agile and potent force that will be required in the future.

…

[22]    Previously, the Defence (Personnel) Regulations 2002 provided for appointment, enlistment, promotion, reduction in rank, transfer between parts of the Defence Force, and the end of service in the Defence Force. These provisions were, in many cases, too prescriptive, hampering the Defence Force’s ability to take innovative approaches to personnel management, and potentially undermining the CDF’s ability to effectively command the Defence Force, as envisaged in the First Principles Review. The provisions in the Regulation that deal with these matters are far less prescriptive than in the Defence (Personnel) Regulations 2002, and give personnel decision-makers greater flexibility to adapt decision-making processes to the Defence Force’s requirements as they change over time.

…

[24]    While the Regulation provides greater flexibility to meet future needs, it is also important to make personnel decisions fairly and transparently. The common law position remains that Defence Force members serve at the pleasure of the Crown. This means that decisions about a member’s service could be made without any notice, and without reason. This position has been altered for some decisions made under regulations, including in the Defence (Personnel) Regulations 2002. Consistent with the Defence (Personnel) Regulations 2002, the Regulation includes requirements to give members an opportunity to respond before making most decisions about termination of service, reduction in rank, compulsory transfer from the Permanent Forces to the Reserves, and suspension from duty without pay or on part pay, reflecting that these decisions may have a significant adverse effect on the member.

(Emphasis added.)

177    The Defence Regulation introduced several substantially new provisions, which did not have an equivalent in the previous Regulations. One of those provisions was the Objects provision. It provides:

5    Objects of this regulation

The objects of this instrument are as follows:

(a)    to facilitate the good governance and the effective and efficient operation of the Defence Force;

(b)    to provide the Chief of the Defence Force with the flexibility to deliver capability and preparedness outcomes (including developing force structure options);

(c)    to achieve the Government’s objectives and provide stewardship of the Defence Force;

(d)    to provide personnel management that supports the appointment, enlistment, promotion and retention of appropriate persons for service in the Defence Force.

178    Section 24 of the Defence Regulation is the new iteration of reg 87 of the Personnel Regulations. It provides:

24     Early termination of service

(1)    The Chief of the Defence Force may terminate the service of a member for one or more of the following reasons:

(a)    the member is medically unfit for service in the Defence Force;

(b)    the member cannot usefully serve because of redundancy in the Defence Force;

(c)    retention of the member’s service is not in the interests of the Defence Force.

(2)    The member must be given notice of the termination and at least 14 days after the date of the notice to provide a written response.

(3)    However, notice is not required to be given under subsection (2) if:

(a)    the member’s appointment or enlistment is subject to a probationary period and that period has not ended; or

(b)    the termination decision is made in relation to a member who:    

(i)     has failed to meet a condition of the member’s employment or enlistment; or

(ii)    has been sentenced to imprisonment for an offence (whether or not the sentence has been suspended); or

(iii)    has been absent without leave for a continuous period of 3 months or more; or

(c)    the termination decision is made in relation to a member who has pleaded guilty to, or been convicted of, an offence and the Chief of the Defence Force is satisfied that it is not in the interests of the Defence Force for notice to be given to the member.

(4)    Termination because of redundancy (other than during a probationary period) must not occur until 5 weeks after notice is given unless the member agrees to earlier termination.

179    As can be observed, s 24 is cast in different terms from reg 87. It is immediately apparent that the constraint placed on the CDF by sub-reg 87(5) has been removed. The long list of specified reasons, which provide the only grounds on which an enlisted member may be terminated (reg 87(5)), has been replaced by the wide discretion accorded to the CDF to terminate the service of a member for “one or more of the following reasons”, being medical unfitness, redundancy, and the member’s retention not being in the interests of the Defence Force.

180    That is not to suggest that there has been any return to the unfettered common law position with respect to the dismissal of Defence Force members. Section 24(2) requires members be given an opportunity to respond before a termination decision. However, unlike reg 87(4), there is no longer any express requirement for the CDF to consider any statement of reasons given by the member.

181    Section 30 of the Defence Regulation specifies what any notice given under, inter alia, s 24(2) must contain:

(1)    If a provision of this Part requires notice of an action to be given to a member, the notice must:

(a)    state that the action is proposed; and

(b)    set out the reason for the proposal; and

(c)    invite the member to provide a written response as to why the proposed action should not be taken; and

(d)    set out the facts and circumstances necessary for the member to prepare the written response; and

(e)    specify the period for providing the written response.

(2)    The action must not take place before one of the following occurs:

(a)    the member provides the written response;

(b)    the member states in writing that he or she does not intend to provide the written response;

(c)    the period for providing the written response ends.

182    It is also noteworthy that reg 7 of the Personnel Regulations, which prescribed the mandatory considerations for a decision-maker in respect of a decision under reg 87, has been removed.

183    It has already been observed that s 6(2) of the Defence Regulation provides an inclusive list of “one or more of the following reasons” for something being or not being in the “interests of the Defence Force”. As explained in Attachment A to the Explanatory Statement to the Defence Regulation:

[10]     ‘Interests of the Defence Force’ is a phrase that encompasses the requirements of the Defence Force from time to time. It includes considerations of the personal qualities of a member (that is, their individual performance, behaviour and suitability), and considerations relating to the Defence Force as a whole and the capacity of the Defence Force to develop and maintain capability to fulfil the requirements of the government of the day (that is, decision-making for workforce planning, efficiency and effectiveness, morale and discipline, or reputational reasons). For this reason, a member whose performance, behaviour and suitability are not in question may, nevertheless, be the subject of one of these decisions because of the interests of the Defence Force. An example might include a member whose performance is not in question, but who is nevertheless transferred to the Reserves because they are no longer widely employable in the Permanent Forces or because they are restricting the promotion opportunities of other Defence Force members. (In this type of situation, a transfer could be accompanied by payment of a special benefit in accordance with a determination under section 58B of the Act. Such payments are not governed by the Regulation.)

[11]    The list in subsection 6(2) is not exhaustive, and other factors may be relevant in deciding whether something is or is not in the interests of the Defence Force. The objects outlined in section 5 may assist when considering the interests of the Defence Force. That is: facilitating the effective and efficient operation of the Defence Force, providing the CDF with flexibility to deliver capability and preparedness outcomes (including developing force structure options); delivering the Government’s objectives; and providing personnel management that supports the appointment, enlistment, promotion and retention of appropriate persons for service in the Defence Force.

(Emphasis added).

184    The significant amendments to the Defence Act and the Defence Regulation create a different legislative framework from that which confronted the Full Court in Martincevic. The Court’s observation, at [47], that “it is apparent that the Personnel Regulations made under the Defence Act 1903 (Cth) (‘Defence Act’) significantly alter the relationship between the Crown and an enlisted Army member from that common law”, is less apt post the amendments. Certainly, the relationship between the Crown and its servicemen remains different from the common law position, but it is equally clear that there has been a decision by the Parliament to ensure the CDF has the flexibility to, inter alia, “deliver capability and preparedness outcomes” and “provide personnel management that supports … retention of appropriate persons” in accordance with the Objects of the Defence Regulation. There are no longer any mandatory considerations, and the CDF is no longer limited by a prescriptive list of reasons for terminating a member’s service.

185    Consequently, the Court’s conclusion in Martincevic at [64], that a soldier’s service history was a relevant consideration in the Peko-Wallsend sense, because “the subject matter and context of the termination decision make it virtually inconceivable that a decision-maker under reg 87 would not be obliged to consider a soldier’s service history”, does not apply to the new and current legislative context. Nevertheless, it remains necessary to determine whether the same conclusion ought to be reached in respect of the TD made by the decision-maker in the present case under s 24 of the Defence Regulation.

The reasons for termination identified in the TN

Performance, Behaviour, Suitability, Effectiveness and efficiency, and Reputation and community standing of the Defence Force

186    The TN identified with particularity the “reason” for the proposed action, as required by s 30(1)(b) of the Defence Regulation. That reason was: the appellant’s inability, throughout his service, to meet the inherent requirements of service in the ADF because of his inability to pass a fitness test; a demonstrated pattern of behaviour below that expected of an Air Force Officer; and wilful defiance of the directions of the chain of command.

187    In concluding that the appellant’s retention was not in the interests of the defence force, the TN referred to five of the factors listed in s 6(2) of the Defence Regulation: performance, behaviour, suitability, effectiveness and efficiency, and reputation and community standing of the Defence Force. In relation to all of those factors, except behaviour, the appellant’s failure to pass a PFT underpinned the conclusion that his retention was not in the interests of the Defence Force.

188    The aspects of the appellant’s behaviour which were identified as causing Air Force Headquarters to have lost confidence in his ability to abide by the standards of behaviour expected of him were threefold. As described in paragraph 13(c) of the TN, they included “lying” to his squadron leader in December 2016 about an alleged police raid, resulting in a downgrading of his security clearance, and not reporting his interaction with Queensland Police in 2018 for driving on a suspended licence and failing to notify his commanding officer that he had been required to appear in court for that offence. The TN also identified the appellant’s return to work on 5 May 2020 out of uniform with long hair and a beard, in contravention of the Air Force Dress Manual.

189    It was made pellucid that the particular, and perhaps sole, aspect of the appellant’s performance which led to the determination that his continued service was not in the interests of the Defence Force was his failure to pass a PFT. Subparagraph (4) of paragraph 13(a) of the TN concluded, “I have lost confidence in your ability to achieve and maintain a physically fit status. Consequently, your performance and poor attitude informs my assessment that your retention [is] not in the interests of the Defence Force”. No other aspect of the appellant’s performance was raised in the TN.

190    At paragraph 13(d), the issue of the appellant’s suitability was again tied to his inability “to be classed as individually ready and therefore able to freely deploy on operations and exercises as your last recorded pass for the PFT was in 2003”. At paragraph 13(f), it was said, “[y]our demonstrated lack of effort represents a poor attitude, the significance of which is magnified by the fact that you are a senior FLTLT and your conduct sets the standard for the more junior people around you … I am satisfied that your unsatisfactory performance and attitude as detailed in this notice makes you unsuitable for the Defence Force”.

191    As to the effectiveness and efficiency of the Defence Force, while reference was made to the appellant’s misconduct in relation to his unlicensed driving and uniform breaches, the TN said at paragraph 13(g), “[a]ttending PT sessions and passing the PFT is your own responsibility, and should not require the ongoing attention of your supervisors, particularly for a senior FLTLT who is expected to be able to lead”.

192    Further, paragraph 13(i) of the TN said, “[y]our lack of IR [individual readiness] currency, attributable to a lack of PFT currency, means that you are not deployable … Your demonstrated inability to improve continues to adversely impact the effectiveness and efficiency of the Defence Force”.

193    The appellant’s failure to pass his PFT was also central to the conclusion that the appellant’s retention posed an ongoing risk to the reputation and community standing of the Defence Force. At paragraph 13(k), the TN said, “[t]he community also expects that members of the Defence Force be physically fit to undertake their duties. Your failure to pass a fitness test since 2003 is in contrast to the reputational image sought by the Air Force, and in contrast to community expectations of an Air Force Officer. Your long-standing disregard of Air Force fitness standards, and your ongoing disregard of Air Force authority presents the potential of gaining adverse public attention …”.

194    There was no dispute that the delegate considered the material before him which was relevant to the appellant’s history relating to his personal fitness. The appellant’s complaint is the failure to consider “annual reporting” or “assessments” across 18 years in addition to the material relevant to his personal fitness, and to his behaviour concerning his unlicensed driving, his failure to report, and his uniform infringements.

The primary judge’s conclusion

195    The appellant made six criticisms of the primary judge’s conclusion as to the PPRs.

196    First, he contended that once the CDF decided his retention was not in the interests of the Defence Force based upon, inter alia, his performance, it was incumbent on the decision-maker to have regard to what the appellant characterised as “the primary tool for career management”, and the primary judge’s conclusion to the contrary, at [109], was an error. The appellant contended that because he made submissions as to the importance of the positive PPRs over his 18 years of service, they became a mandatory relevant consideration under ss 24(1)(c) and 6(2) of the Defence Regulation.

197    Secondly, the appellant rejects the primary judge’s conclusion, at [110], that the implication for which he contends above would run counter to the procedural fairness scheme of the Defence Regulation. The appellant contended that the policy set out in MILPERSMAN compels the decision-maker to consider the PPRs that were available, and if necessary, provide the member with an opportunity to respond.

198    Thirdly, the appellant contended that the primary judge erred, at [114], in failing to find, consistently with Martincevic, that the decision-maker was bound to consider the content of all of the appellant’s performance reports or performance on each deployment.

199    Fourthly, it is contended that the primary judge’s characterisation, at [119], of the appellant’s submissions about his performance reporting as “pitched at the highest level of generality” was an error. It was submitted that as the Air Force Personnel Standing Instructions, at [9.14], expressly state that PPRs are used as a “primary tool to inform career management decisions including promotions, postings and competitive selections”, they should also be used to consider whether to retain a member or terminate his or her service.

200    Fifthly, the appellant contends the primary judge erred, at [120], in concluding that it was open to the decision-maker to accord the appellant’s assertion as to his PPRs low weight in circumstances where the appellant was required to attach to his submissions any material he wished to be considered, but did not do so.

201    Finally, the appellant submitted that the primary judge was wrong to conclude, at [122], that the decision-maker had appropriately considered the appellant’s service history in the absence of considering the PPRs.

202    The criticisms of the primary judge’s findings are unfounded.

203    First, nothing in the statutory context or legal framework within which s 24(1)(c) and s 6(2) sit elevates the PPRs to the status of a mandatory relevant consideration. The appellant’s characterisation of the PPRs is apparently drawn from their description as such in an Air Force Personnel Standing Instruction (AFPSI) which provides “policy guidance” (at [1.7]) reflective of the Chief of Airforce’s “intent” (at [1.7]). It is expressed to be “subordinate to” relevant Acts, Regulations, Determinations, Defence Instructions and MILPERSMAN (at [1.11]-[1.12]). The AFPSI is not a Defence Instruction issued pursuant to s 11 nor a regulation made pursuant to s 124 of the Defence Act.

204    Assessments conducted under the framework of the PPRs are made by the member’s superior officer. There is no requirement for a decision-maker in determining what is in the best interests of the Defence Force to have any regard to the opinions of the superior officer, although he may do so. Further, it is plain from the content of MILPERSMAN Part 5 Chapter 2, and from the PPR forms themselves, that PPRs are not the tool by which an assessment is made of whether to retain a member or terminate his service. That the role of the PPRs is not to provide a basis for administrative or disciplinary action against an assessed member is made clear by the two PPRs which were in evidence, those for 2018 and 2019. Whilst both referred to the appellant’s non-compliance with IR requirements because of his failure to complete PFT, neither made any reference to the circumstances concerning his driving without a licence in 2018, nor his failure to notify his commanding officer.

205    Secondly, the primary judge was correct to characterise the appellant’s submissions with respect to his PPRs as “pitched at the highest level of generality”. The appellant did not even refer to his two most recent PPRs except for a single reference to his 2018 PPR, albeit negatively. He was clearly not submitting it would assist in reaching an accurate conclusion in relation to his performance. The appellant did not suggest that there was anything in the PPRs that would cast a different light on his history in relation to his failure to complete PFTs. Rather, the use sought to be made of the PPRs was to have them somehow “weigh in the balance” by giving a “longitudinal picture” of the appellant’s service.

206    The present circumstances are not the same as those with which the High Court was concerned in Peko-Wallsend, where more recent information had become available to the decision-maker which corrected, updated or elucidated the true position. As the High Court has said, the length, clarity, and degree of relevance of the representations must be considered in assessing whether the decision-maker has complied with the statutory requirement for a valid exercise of power: Plaintiff M1 at [25]. It could not be concluded reasonably that a mere reference to “annual reporting … over my 18 years that provide a longitudinal picture of my performance, behaviour and suitability”, was a clearly articulated claim that those annual reports would be relevant to the reason for his proposed termination – being his failure to complete even one PFT since 2003.

207    The decision-maker’s obligation is to “read, identify, understand and evaluate the representations”: Plaintiff M1 at [24]. In the present case, the decision-maker did just that. He read the appellant’s submission. He identified and understood the appellant to be making a representation that the 18-year history of annual reports should be taken into account. The decision-maker should be assumed to understand the purpose of PPRs within the policy framework and as articulated in MILPERSMAN. He evaluated that representation in light of the evidence that the Initiating Authority had to support the reasons for proposing the appellant’s termination, despite 18 years of service, and concluded that he accorded “low weight” to the appellant’s assertion that the Initiating Authority had failed to take account of all the evidence. Not only had the appellant not sought to contradict any of the evidence about his PFTs, he had failed to put the PPRs into evidence or even to identify the particular PPRs that he deemed relevant to his case notwithstanding the stated requirement of the process in paragraph 16 of the TN that any additional information including documents that the member wished the decision-maker to consider should be attached (see [147] above). It is to be inferred that is because nothing contained in the historical PPRs could counter the appellant’s failure to successfully complete a PFT since 2003, nor gainsay the circumstances surrounding his unlicensed driving, failure to report, or uniform transgressions.

208    In circumstances where the appellant did not demur from the finding that he had demonstrated a “long-standing inability to pass the Airforce Physical Fitness Test”, which was an inherent requirement and necessary to meet his Individual Readiness for deployment, it was not incumbent on the decision-maker to take into account 18 years of annual reports that were not in any way suggested by the appellant to counter the fundamental factual finding. In the context of the TN and the evidence presented to the appellant, to which he was invited to respond, the decision-maker, consistently with Martincevic, appropriately considered the appellant’s service history.

209    Thirdly, the procedural fairness scheme of the Defence Regulation contemplates that it is for the delegate to identify the reasons which underpinned the preliminary assessment that the appellant’s retention was not in the interests of the Defence Force. As has been explained, four of the five factors identified as critical to the appellant’s retention not being in the interests of the Defence Force rested on his failure to fulfil his obligation to complete a PFT since 2003. The fifth factor relied on his unlicensed driving, failure to report to his commanding officer, and uniform transgressions. In respect of each of these factors, the evidence to support such failure was provided in detail to the appellant. There was no procedural unfairness to the appellant.

210    In circumstances where it was not suggested that the PPRs would reveal that the appellant had in fact successfully completed a PFT in the last 18 years or which would gainsay the circumstances surrounding his unlicensed driving, failure to report, or uniform transgressions, it is difficult to see how the decision-maker’s failure to have regard to those PPRs could, in any event, have made a difference to the TD – materiality of the failure being a requirement for the establishment of reviewable error: Peko-Wallsend at [40]. Whether the content of the PPRs was material “falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities”: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 at [38]; Nathanson v Minister for Home Affairs [2022] HCA 26; 96 ALJR 737 at [32]. The High Court went on to explain in MZAPC, at [39]:

Bearing the overall onus of proving jurisdictional error, the plaintiff in an application for judicial review must bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture. The burden of the plaintiff is not to prove on the balance of probabilities that a different decision would have been made … the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made …

211    The evidence in the present circumstances reveals that the appellant has had 18 years to successfully pass a PFT but does not remain individually ready for deployment. There was also evidence of deteriorating behavioural issues since 2016 up until May of 2020. Within the current statutory context and legal framework as has been described above, it was decided that it was not in the interests of the Defence Force for the appellant’s service to be retained. It is accepted that the PPRs would reveal 18 years of at least satisfactory performance, given that the appellant has been retained in the service for that length of time. Indeed, the most recent PPR (2019) described his performance in his current position of leading a squadron training team as “exceeds expectations”, although noting he was not compliant with IR requirements because he had not passed his PFT. Nevertheless, the appellant did not identify any historical fact that would enable this Court to be satisfied of the realistic possibility that a different decision could have been made had the decision-maker considered the PPRs. Indeed, the contrary emerges from the 2019 PPR in that it records that, as at the date of his performance appraisal, the appellant was “undergoing a 90 day PT program” which was expected to be completed by 3 December 2019. The appellant adduced no evidence that it was completed.

212    For these reasons, the primary judge was correct to hold that the delegate was not compelled to consider the appellant’s PPRs. Ground 1 must be dismissed.

Was the appellant given sufficient time to formulate his response?

213    The appellant contended that, despite having been given 35 days, rather than the required 14 days, to provide his response, he was nevertheless denied procedural fairness.

214    The primary judge rejected the appellant’s claim on the grounds that:

(1)    whilst not determinative, the express procedural fairness requirements of the Defence Regulation had not merely been met, but exceeded, at [57];

(2)    the evidence fell short of establishing any practical injustice, nor did it explain his failure to obtain copies of his PPRs, his inability to obtain a medical report within the 5-week period available to him, or why he could not include character references which, it appeared, he had largely obtained the week before his response was due, at [58]-[62];

(3)    the appellant failed to engage with the facts that: (1) he had a 5-week period in which to prepare his response; (2) he was relieved of other duties so that he could focus exclusively on his response for that period; (3) he had physical access to every document relied upon in the TN; (4) he was able to prepare a detailed written response to all aspects of the TN; (5) he was able to obtain character references even though he did not submit them; and (6) he had the opportunity to obtain his PPRs if he had wished to do so, at [63]-[65].

215    The appellant has not pointed to any error on the part of the trial judge except to assert that, in circumstances where the appellant was pursuing other grievance procedures and given the disparity in resources between the appellant and the CDF, the primary judge ought to have found that he should be given an extended time of 90 days.

216    No error has been established. Ground 2 must be dismissed.

Did the delegate take into account an irrelevant consideration?

217    The appellant contended that the primary judge erred in holding that the delegate did not take into account an irrelevant consideration, being a “spent” conviction. By this ground, the appellant relies on s 85ZV(3) of the Crimes Act 1914 (Cth) to contend that, by virtue of s 5 of the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) and s 12(3) of the Penalties and Sentences Act 1992 (Qld) (PSA), the decision-maker was prohibited from taking into account the appellant’s “non-recorded conviction” for driving whilst unlicensed.

218    The impeached portion of the TD is at paragraph 22(l)-(m):

Reliance on non-recorded conviction

l.    You state that the TN relied upon a traffic offence, however “the Magistrate did not record a conviction” in relation to this offence. You then state that one reason for deciding not to record a conviction may be to avoid harm in relation to a person’s employment and wellbeing. You claim that avoiding “further interference with [your] employment” was the reason the Magistrate decided not to record a conviction in your case. However, you have not provided me with any evidence to support this claim. Your appearance in court for a traffic offence is relevant to my decision and I consider it appropriate that the Initiating Authority included it in their notice.

m.    You appeared in a civilian court and the magistrate may not have imposed a conviction upon you however, they also did not prevent your current employer, being Defence, from considering your appearance in court. Defence has a reputation to protect and members are obliged to inform their chain of command when they come to the adverse notice of civilian police. I am satisfied that coming to the adverse attention of civilian police is below the expected standard of an Air Force member and Officer. Furthermore, as detailed in your TN I found your failure to notify your CO to be well below the standard expected of an officer of your rank and experience. It also created an unacceptable risk to Defence’s reputation, whereby, if you appeared in court and Defence found itself in a situation where it was not prepared for any public or media response pursuant to that appearance, if your appearance and your Defence employment were linked together. I have concluded that it is appropriate that I take all of this information into account regarding whether or not your service is in the interests of Defence.

(Emphasis added.)

219    The primary judge held, at [93], that these paragraphs make clear that the delegate did not take into account the “fact of the conviction”. Rather, the delegate had regard only to the fact that the appellant appeared in court charged with a criminal offence, and the fact that the appellant had failed to notify his commanding officer that he had been so charged and was to appear in court. Both of these facts were relevant to the delegate’s consideration of the appellant’s behaviour and the risks to the reputation of the Defence Force. The heading, which might suggest the contrary, simply mirrors the heading used by the appellant in his response to the TN and does not colour the content of paragraphs 22(l)-(m) when read in context. To the extent that the appellant contends that the delegate took into account a spent conviction, the contention is misconceived.

220    It is therefore strictly unnecessary to consider whether the delegate was prohibited by s 85ZV(3) of the Crimes Act or s 12(3) of the PSA and s 5 of the Rehabilitation of Offenders Act from taking into account the fact of the appellant’s conviction for the traffic offence.

221    The primary judge found that there had been no breach of s 85ZW of the Crimes Act, nor s 12(3) of the PSA. The primary judge did not refer to s 5 of the Rehabilitation of Offenders Act. The CDF submitted that was because it was not raised in any of the grounds of challenge in the appellant’s application for review of the TD. Nor was it raised in his Notice of Appeal. Despite that submission, it is apparent that s 5 was raised, at least in passing, in the appellant’s submissions in reply before the primary judge. As will become apparent, s 5 of the Rehabilitation of Offenders Act does not assist the appellant in any event.

222    The appellant’s attack on the primary judge’s finding is essentially two-fold. First, the appellant submitted that the conviction for the State traffic offence was “spent” and so he was not required to disclose it to any Commonwealth authority for any purpose: s 85ZV(2)(b). Consequently, the delegate was prohibited by s 85ZW(b)(ii) from taking account of the fact that he was charged with, or convicted of, the offence. Secondly, the appellant relies on s 85ZV(3)(c) to assert that similarly, the delegate was prohibited by s 85ZW(b)(ii) from taking account of the fact of the conviction for the offence on the basis that s 5 of the Rehabilitation of Offenders Act and s 12(3) of the PSA are laws in force in a State which make it lawful for him not to disclose the fact that he was charged or convicted of the offence.

223    Section 85ZW is contained in Division 3 of the Crimes Act. It provides:

Effect of right of non-disclosure

Subject to Division 6, but despite any other Commonwealth law, or any State law or Territory law, where, under section 85ZV, it is lawful for a person not to disclose, in particular circumstances, or for a particular purpose, the fact that he or she was charged with, or convicted of, an offence:

(a)     it is lawful for the person to claim, in those circumstances, or for that purpose, on oath or otherwise, that he or she was not charged with, or convicted of, the offence; and

(b)     anyone else who knows, or could reasonably be expected to know, that section 85ZV applies to the person in relation to the offence shall not:

(i)     without the person’s consent, disclose the fact that the person was charged with, or convicted of, the offence to any other person, or to a Commonwealth authority or State authority, where it is lawful for the first-mentioned person not to disclose it to that other person or that authority; or

(ii)     in those circumstances, or for that purpose, take account of the fact that the person was charged with, or convicted of, the offence.

224    The appellant’s reliance on s 85ZV(2)(b) to make good his criticism of the primary judge’s finding is misconceived. That section provides, relevantly, that subject to Div 6, but despite any other Commonwealth law or any Territory law, if a person’s conviction of a state offence is spent, the person is not required to disclose the fact of the charge to any Commonwealth authority for any purpose. Although the appellant was charged, found guilty, and discharged without conviction, by s 85ZM(1)(b), he is nevertheless taken to have been convicted for the purposes of Pt VIIC of the Crimes Act. However, pursuant to s 85ZM(2), for the purposes of Pt VIIC, his conviction would be “spent” if, not having been sentenced to imprisonment for the offence, the waiting period for the offence has ended. In the appellant’s case, the waiting period (defined in s 85ZL to be 10 years beginning on the date of conviction) had not expired, as required by s 85ZM(2)(b). Therefore, the offence was not spent.

225    The appellant’s reliance on s 85ZV(3)(c) is also misplaced. It provides relevantly that, subject to Division 6, but despite any other Commonwealth law or any Territory law, if a person is convicted of a state offence and, under a law in force in that state, it is lawful not to disclose the fact of the charge or the conviction in particular circumstances or for a particular circumstance, the person is not required to disclose that fact to any Commonwealth authority in corresponding circumstances or for a corresponding purpose. It is this provision which the appellant contends invokes the application of s 5 of the Rehabilitation of Offenders Act and s 12(3) of the PSA.

226    Section 5 of the Rehabilitation of Offenders Act provides:

Matter excluded from criminal history

(1)    It is declared that a conviction that is set aside or quashed and a charge are not part of the criminal history of any person.

(2)    A person shall not be required or asked to disclose and, if so required or asked, shall not be obliged to disclose for any purpose a conviction that is not part of the person’s criminal history or of the criminal history of another person or a charge made against the person or another person.

(3)    Subsection (2) does not apply where the requirement or request to disclose a conviction or charge therein referred to is made—

(a)    for the purposes of an inquiry being conducted pursuant to authority conferred by or under an Act; or

(b)    in criminal or civil proceedings before a court if the fact of the conviction or charge is relevant to an issue in the proceedings or the court has granted permission for the requisition or request to be made.

227    Section 3 of that Act provides that a “charge” includes an allegation formally made in court that a person has committed an offence where conviction is not recorded.

228    Neither party made any submission as to whether s 5(3)(a) operated to exclude the application of s 5(2) in the present circumstances. There is no definition of “inquiry” in the Rehabilitation of Offenders Act. As a matter of ordinary language, the process leading to the TN, and ultimately the TD, might properly be construed as an “inquiry” being conducted pursuant to the Defence Regulation, and therefore pursuant to authority conferred by the Defence Act, as to whether it was in the interests of the Defence Force for the appellant to remain in the service. It is, however, undesirable to express any concluded view on this issue in the absence of argument.

229    Section 12 of the PSA provides:

(1)    A court may exercise a discretion to record or not record a conviction as provided by this Act.

(2)    …

(3)    Except as otherwise expressly provided by this or another Act –

(a)     a conviction without recording the conviction is taken not to be a conviction for any purpose; and

(b)     the conviction must not be entered in any records except –

(i)     in the records of the court before which the offender was convicted; and

(ii)     in the offender’s criminal history but only for the purposes of subsection (4)(b).

230    The interpretation of this section, and on which the primary judge relied (J[90]-[91]), was considered in Hartwig v PE Hack [2007] FCA 1039. The question which arose was whether the Administrative Appeals Tribunal, by virtue of s 12(3) of the PSA, was entitled to take account of the fact of conviction (albeit that none was recorded), being the acceptance of the record and the plea upon which it was based, together with such facts and circumstances as are necessary to provide an understanding of the offence, so far as they were relevant to the question before the AAT, which involved the purpose for which a person is said to be fit and proper.

231    In Hartwig, Kiefel J held:

8    The nature of the State legislation, to which s 85ZR(2) of the Crimes Act (Cth) refers, is one which deems a person never to have been convicted of an offence. The effect of the provision must be such as to take away the fact of the conviction, as a pardon might do. It is not without significance that the section is headed ‘Pardons for Persons Wrongly Convicted’. Other legislation of the type to which s 85ZR(2) refers maybe that which deems a person not to have been convicted after the lapse of a number of years.

…

11     Section 12(3) of the Penalties and Sentences Act (Qld) and s 85ZR(2) of the Crimes Act (Cth) are however dissimilar. The former is concerned that there be no record of a conviction. The Commonwealth provision envisages a state legislation provision, which removes or disregards the conviction altogether. Their common purpose might be said to be rehabilitation, but they arise in different ways, and from a different circumstance. In my view, the Commonwealth provision is not referring to a provision such as the non-recording provision in s 12(3) of the Penalties and Sentences Act (Qld). The Commonwealth provision does not operate on that provision in the way contended for.

232    What flows from that judgment is the necessity of considering “like with like” in determining the applicability of the Commonwealth legislation. In Hartwig, it was a comparison between, s 12(3) of the PSA, a State Act which did not take away the fact of a conviction, as did s 85ZR(2) of the Crimes Act. By contrast, in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17, the High Court held that the relevant State legislation, s 184(2) of the Youth Justice Act (Qld) did take away the fact of the conviction as might s 85ZR(2). Consequently, Hartwig was to be distinguished.

233    In the present case, the relevant comparison is between s 12(3) of the PSA, which is concerned with the recording of convictions and proscribes a conviction without recording the conviction from being taken to be a conviction for any purpose, and s 85ZV(3) of the Crimes Act which makes it lawful for a person not to disclose the fact of a spent conviction, with the correlative proscription on taking into account the fact that the person was charged with, or convicted of, the offence: s 85ZW(b)(iii). It will be recalled that, as defined in s 85ZM, a person’s conviction of an offence is spent if, inter alia, the person was charged with, and found guilty of, the offence but discharged without conviction and the waiting period for the offence has ended.

234    The PSA does not define a “spent offence”, nor is s 12(3) concerned with a person’s right to non-disclosure, as is 85ZV(3). Contrary to the appellant’s submissions, s 12(3) cannot be considered to be a State law dealing with the disclosure or taking into account of spent offences. As was held in Hartwig at [11], it is concerned that there be no record of conviction. For that reason, s 85ZV(3) is of no assistance to the appellant.

235    The appellant’s reliance on s 12(3) of the PSA and s 5 of the Rehabilitation of Offenders Act is, in any event, wholly misplaced. In order for them to have any operation in the present context, they must trigger the operation of s 85ZV and s 85ZW. Both of those sections operate “Subject to Division 6”.

236    Division 6 is concerned with exclusions. In particular, s 85ZZH, which is in Subdiv B of Div 6, is concerned with exclusions from Div 3. Relevantly, it provides:

Division 3 does not apply in relation to the disclosure of information to or by, or the taking into account of information by a person or body referred to in one of the following paragraphs for the purpose specified in relation to the person or body:

…

(k)    a prescribed person or body, for a prescribed purpose, in relation to a conviction for a prescribed offence.

237    Section 21 of the Crimes Regulations 2019 (Cth) provides that Schedule 2 of that instrument prescribes persons, purposes and offences for the purposes of s 85ZZH(k). In particular, Schedule 2 excludes a Commonwealth authority, in relation to any offence, for the purpose of assessing the suitability of a person to be employed or otherwise engaged in work that is likely to involve access to national security information classified as secret or top secret.

238    As the primary judge found, and as was uncontroversial, the appellant’s posting immediately prior to his termination required him to have an NV2 (Top Secret) security clearance: J[88]. Further, any position to which he might be posted in the future would require him to have at least an NV1 (Secret) security clearance: J[88]. Contrary to the appellant’s submissions, the circumstance that his security clearance had been downgraded previously in the context of his untrue assertion of being raided by police did not preclude the delegate from considering any other offence when considering his suitability for retention in the Defence Force where his service would require work that is likely to involve access to national security information classified as secret or top secret.

Should the appellant have been granted an adjournment of the review hearing?

239    Ground 4 of the Notice of Appeal challenges the primary judge’s dismissal of the appellant’s interlocutory application, filed two business days before the final hearing was due to commence. By that application, the appellant sought leave to amend his originating application to raise entirely new grounds of review based on entirely new issues: J[7]. One of those grounds was that, contrary to clause 2.15, Part 10, Chapter 2 of MILPERSMAN, the person who issued the TD acted at the behest of the person who had issued the TN. The other raised an allegation of bias on the part of the decision-maker.

240    The reasons given by the primary judge at [6]-[19] do not reveal any error of the kind explained in House v The King (1936) 55 CLR 499 at 505.

241    Ground 4 must be dismissed.

Disposition

242    For these reasons, the appellant cannot succeed on any of the grounds raised in the Notice of Appeal. The appeal must be dismissed. There is no reason why costs should not follow the event.

Associate:    

Dated:    18 August 2023