FEDERAL COURT OF AUSTRALIA

Millar v Bornholt [2009] FCA 637

ADMINISTRATIVE LAW – Referral to Delegate of Chief of Army of redress of grievance complaint in respect of termination of service in the Australian Army – Judicial review of delegate’s decision – Whether denial of procedural fairness – Whether decision unreasonable – No procedural unfairness – Decision not unreasonable

DEFENCE AND WAR – Members of the Defence Force – Referral to Delegate of Chief of Army of redress of grievance complaint in respect of termination of service in the Australian Army – Nature of power exercisable by Chief of Army or delegate – Plenary nature of power

CONSTITUTIONAL LAW – Crown – Relationship between the Crown, Parliament and the Australian Defence Force – role of redress of grievance system with respect to that relationship and discipline, command and control within the Defence Force

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1)(e)

Defence Act 1903 (Cth) ss 8, 9, 30, 31 and 55 (repealed)

Defence Force Discipline Act 1982 (Cth) s 20

Constitution ss 51(vi), 68 and 75(v)

Act of Settlement 1701 (Eng)

Armed Forces Act 2006 (UK) s 334

Army Act 1881 (UK) ss 42 and 43

Army Discipline and Regulation Act 1879 (UK)

Australian Courts Act 1828 (UK) s 24

Bill of Rights 1689 (Eng) art 5, 6 and 9

Defence Act 1990 (NZ) s 49

Magna Carta 1215 (Eng) art 61

Mutiny Act 1689 (Eng)

National Defence Act 1985 (Can) s 29

Australian Military Regulations 1927 reg 9(2A) (repealed) and 194 (repealed)

Defence Force Amendment Regulations 2008 (No 1) Pt XV

Defence Regulations 1952 (Cth) reg 75, 76, 77, 81

Defence (Personnel) Regulations 2002 (Cth) reg 4, 87 and Sch 1

Australian Military Regulations and Orders  O 289A

Defence Instruction (General) PERS 34-1 Redress of Grievance – Tri-Service Procedures

Articles of War (1873) (UK) art 12 and 13

Queen’s Regulations and Orders for the Canadian Forces (Can)Ch 7

Bankstown Municipal Council v Fripp (1919) 26 CLR 385 cited

Commonwealth v Welsh (1947) 74 CLR 245 considered

Attorney-General (NSW) v. Perpetual Trustee Company (1951-1952) 85 CLR 237 cited

Attorney-General (NSW) v. Perpetual Trustee Company [1955] AC 457 cited

Marks v. The Commonwealth (1964) 111 CLR 549 considered

Buck v Bavone (1976) 135 CLR 110 considered

R v Federal Court of Australia; ex parte Pilkington ACI (Operations) Pty Ltd (1978) 142 CLR 113 considered

Coutts v. The Commonwealth (1984-1985) 157 CLR 91 cited

Kioa v West (1985) 159 CLR 550 applied

Attorney-General (NSW) v Quin(1990) 170 CLR 1 followed

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 followed

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 considered

Martincevic v Commonwealth (2007) 164 FCR 45 cited

Bowthorpe v. Minister for Defence (1986) 17 IR 192 cited

Bromet v. Oddie ((2002) 78 ALD 320 cited

R v The Army Council; ex parte Ravenscroft [1917] 2 KB 504 considered

R v Army Board of the Defence Council; ex parte Anderson [1992] 1 QB 169 cited

Armstrong v Canada (Attorney General) [2006] F.C.J. No. 625; 2006 FC 505 considered

Armstrong v Canada (Attorney General)[2007] F.C.J. No. 546;2007 FCA 157 cited

Leading Seaman D.M. Morphy v. Canada (Attorney General)[2008] F.C.J. No. 242; 2008 FC 190 cited

Clode CM, The Military Forces of the Crown (1869)

Clode CM, The Administration of Justice under Military and Martial Law, (2^nd Ed 1874)

TRISHA LEE MILLAR v BRIGADIER M D BORNHOLT (AS DELEGATE OF THE CHIEF OF ARMY) and MAJOR M WILKINSON (AS DELEGATE OF THE CHIEF OF ARMY)

QUD64 of 2009

LOGAN J

15 JUNE 2009

TOWNSVILLE

THE COURT ORDERS THAT:

1.                  The application is dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     Overseas operational service in the Australian Defence Force can entail hazards and stresses of kinds that are utterly beyond the experience of civilian life in Australia. This case has its ultimate origin in such service, more particularly in operational service performed between July and October 2006 in the Middle East Area of Operations (MEAO), principally in Iraq, by the Applicant, Corporal T L Millar (CPL Millar), an enlisted member of the Australian Army, in the course of the Australian Defence Force operation known as OPERATION CATALYST 2. The more immediate origin of the case lies in a value judgement later made by a senior officer of the Australian Army, a Brigadier, following that service, to confirm a decision taken by a more junior officer, a Major, to discharge CPL Millar from the Army because of satisfaction that she was not suited to be an enlisted member of the Army.

2                     The following is a chronology of the relevant, formal decisions. On 4 April 2008 CPL Millar sought the referral to the Chief of Army, pursuant to reg 76 of the Defence Regulations 1952 (Cth) (the Defence Regulations) made under the Defence Act 1903 (Cth), of a complaint she had made on 11 September 2007 to the commanding officer of her unit, 10 Force Support Battalion (10 FSB), pursuant to reg 75 of the Defence Regulations, seeking redress in respect of a grievance with a decision taken on 4 August 2007 by a delegate of the Chief of Army within the Soldier Career Management Agency (SCMA) to discharge her from the Australian Army pursuant to reg 87(1)(e) and reg 87(4) of the Defence (Personnel) Regulations 2002 (Cth).

3                     Upon such a referral, reg 77 of the Defence Regulations charged the Chief of Army with the investigation without delay of the referred complaint and the notification of the results of that investigation to CPL Millar, again without delay. Following its investigation, CPL Millar’s complaint came before the first respondent, Brigadier M D Bornholt, AM (BRIG Bornholt), Director General, Army Operations and a delegate of the Chief of Army for the purposes of reg 77 of the Defence Regulations. BRIG Bornholt determined on 6 February 2009 that the complaint by which she sought redress of her grievance should not be upheld and notified her accordingly. BRIG Bornholt also directed SCMA to proceed with discharge action as soon as administratively possible. As a result, the Second Respondent, Major M Wilkinson (MAJ Wilkinson), a delegate of the Chief of Army within SCMA, came to fix 6 March 2009 as the date for CPL Millar’s discharge.

4                     The material parts of the regulations just mentioned should now be set out:

From the Defence Regulations:

75        Making of complaint

(1)        Subject to this Part, where a member considers that he or she has a grievance concerning any matter relating to his or her service, the member may make a complaint to his or her commanding officer.

(2)        A complaint shall be in writing.

76        Referral of complaint

(1)        …, if a member is not satisfied with the decision of a commanding officer on a complaint, the member may refer the complaint:

…

(b)        in the case of a member of the Army — to the Chief of Army; …

77        Investigating and reporting outcome of complaint

An officer to whom a complaint is made under subregulation 75 (1) or referred under regulation 76, must:

(a)        investigate the complaint without delay or cause it to be investigated without delay; and

(b)        notify the member of the results of the investigation without delay.

From the Defence (Personnel) Regulations:

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:

…

(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;

…

(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 operation of the decision to discharge CPL Millar on 6 March 2009 has been stayed pending the determination of her application for the review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) of the decisions made by BRIG Bornholt and MAJ Wilkinson. MAJ Wilkinson’s decision is but a sequel to that of BRIG Bornholt. It gives it administrative effect. Though that has the result that MAJ Wilkinson is a necessary party, the fate of CPL Millar’s challenge to the decision taken by BRIG Bornholt will determine the fate of her challenge to MAJ Wilkinson’s decision.

6                     It will later be necessary to elaborate further on the administrative law error grounds which CPL Millar presses. For the present it is enough to note that there are two essential elements to the challenge which she now makes to BRIG Bornholt’s decision. The first is said to be a denial of procedural fairness constituted by a failure to afford her an opportunity to be heard on various subjects; the second is that the decision was unreasonable. It is necessary to appreciate that CPL Millar has not sought the judicial review of the anterior decision to terminate her service as a member of the Army but rather of the later decision in respect of her referred redress of grievance complaint.

7                     An understanding of the nature and origins of the power exercised by BRIG Bornholt is an essential prerequisite to determining whether there is any substance in the grounds of review.

8                     At one stage it was submitted on behalf of the respondent Commonwealth military officers, seemingly on instructions given to their solicitor by the Defence Department, that BRIG Bornholt’s power on investigating the complaint was limited to making recommendations to the officer (another delegate of the Chief of Army holding the rank of Major) who had determined to discharge CPL Millar from the Army or to MAJ Wilkinson. Even when pressed further in the course of oral argument, there was, in the end, no clear view expressed on behalf of the Commonwealth as to the nature of the power. In fairness, I should add that it is not evident from the detailed reasons for his decision which BRIG Bornholt furnished to CPL Millar, of which more later, that he shared either a limited conception of, or uncertainty in relation to, the power entrusted to him by the Chief of Army by delegation.

9                     As to the notion of BRIG Bornholt’s power being limited to the making of a recommendation to MAJ Wilkinson (or any other officer holding a delegation to terminate service for that matter), each officer, it is true, was a delegate of the Chief of Army, but the powers they were respectively exercising were different and separate, although not unrelated. The impressionistic incongruity, evident from the Army’s rank structure (q.v. reg 4 and Sch 1 to the Defence (Personnel) Regulations), in the notion that a Brigadier would ever make a recommendation to a Major gives one pause for thought about the Commonwealth’s submission. On further examination, that impressionistic incongruity is but a reflection of the plenary nature of the power exercisable on the merits by the Chief of Army or an officer to whom the chief of Army may permissibly delegate that power in relation to a referred complaint in respect of a redress of grievance.

10                  Like the power to terminate the service of an officer or an enlisted member, the power exercisable in respect of a referred redress of grievance complaint is in modern form statutory and found in the Defence Regulations but, to borrow language employed by Sir Own Dixon in describing the former in Commonwealth v Welsh (1947) 74 CLR 245 at 268, it is no new subject. Though, for the purposes of the present case (Part XV was further amended on 1 May 2008 by the Defence Force Amendment Regulations 2008 (No 1), SLI 68 of 2008 in ways not presently material), they find contemporary expression in reg 75, 76 and 77 within Part XV of the Defence Regulations,  when CPL Millar made a complaint to her commanding officer seeking redress of a grievance and then sought the subsequent referral of that complaint to the professional head of the Australian Army she was invoking rights the origins of which are ancient and deeply rooted in our constitutional heritage.

11                  As will be seen, it is also no coincidence that the Governor-General in Council by (at the time) reg 81(1)(b) of the Defence Regulations, prescribed Brigadier to be the minimum rank to be held by an officer to whom the Chief of Army may delegate the power to determine a referred redress of grievance complaint.

12                  Knowledge of legal history, of the relationship between the Sovereign, the Parliament and the Armed Forces, of the rank structure and chain of command within the Army and of the responsibilities in respect of subordinates assumed by those who hold the Queen’s commission in the Defence Force is essential to an appreciation of the nature of the power exercisable on the referral of a complaint seeking a redress of grievance; all the more so because the language of reg 77 is compressed. That regulation assumes that its reader will either have that knowledge or at least make an effort to obtain it.

13                  In Australian military law, the predecessor of reg 75, 76 and 77 of the Defence Regulations is to be found in the former reg 194 of the Australian Military Regulations 1927 (AMR – numbered as Order 289 in the Australian Military Regulations and Orders and Orders – AMR&O). At the time, the scheme of the Defence Act, as found in the former s 55, was that, while on active service, members of the Australian Army were subject to the Army Act 1881 (UK) (Army Act 1881) insofar as that Act was not inconsistent with the Defence Act or not modified or adapted by subordinate legislation.

14                  The Army Act 1881 by s 42 and s 43 made the following provision for “redress of wrongs” by officers and soldiers (i.e. other ranks) respectively:

Redress of Wrongs

42.       If an officer thinks himself wronged by his commanding officer, and on due application made to him does not receive the redress to which he may consider himself entitled, he may complain to the Army Council in order to obtain justice, who are hereby required to examine into such complaint, and (if so required by the officer) through a Secretary of State make their report to His Majesty in order to receive the directions of His Majesty thereon.

43.       If any soldier thinks himself wronged in any matter by an officer other than his captain, or by any soldier, he may complain thereof to his captain, and if he think himself wronged by his captain, either in respect of his complaint not being redressed or in respect of any other matter, he may complain thereof to his commanding officer, and if he thinks himself wronged by his commanding officer, either in respect of his complaint not being redressed or in respect of any other matter, he may complain thereof to such officer, being either a general officer or Brigadier or an air officer as may be prescribed or, in the case of a soldier serving in India, to such officer as the Commander-in-Chief of the Forces in India with the approval of the Governor General of India in Council may appoint; and every officer to whom a complaint is made in pursuance of this section shall cause such complaint to be inquired into, and shall, if on inquiry he is satisfied of the justice of the complaint so made, take such steps as may be necessary for giving full redress to the complainant in respect of the matter complained of.

These provisions were omitted from the Army Act in its application to the Australian Army by the former reg 9(2A) of the AMR (Order 13(2A), AMR&O). Instead, to suit local circumstances both in peace and in war, the former reg 194 (AMR&O 289) made analogous provision thus (as extracted from the last consolidation of the AMR&O in the since superseded Army Law Manual):

Redress of Wrong – Reg 194 (Order 289)

289 (R 194)

(1)        If a member thinks himself wronged, he may complain in succession, to:

(a)        his commanding officer;

(b)        his formation commander;

(c)        any superior formation commander; and

(d)        the Chief of the General Staff.

(2)        * * * (omitted) * * *

(3)        Each authority mentioned in sub-regulation (1) to whom complaint is made shall, so far as practicable and so far as not already done, cause the complaint to be investigated, and, if it appears to the authority that the member has suffered a wrong, shall cause the wrong to be fully redressed, if full redress is within the power of the authority, or if investigation or full redress is not within the power of the authority, shall refer the complaint to the next superior authority, in order that it may be investigated and redressed as fully as possible.

(4)        If an officer is dissatisfied with the decision of the Chief of the General Staff he may require that his complaint be referred to the Governor-General in Council.

(5)        No authority to whom a complaint is made or referred under this regulation shall attempt to prevent or dissuade any member from carrying his complaint to a superior authority in accordance with this regulation.

15                  Order 298A of the AMR&O required that a member be given, in language intelligible to that member, written reasons for the rejection of an application for redress, save in those circumstances where security or other compelling reasons dictated otherwise.

16                  Regard to the preamble to the Army Act 1881 informs one that its purpose was to consolidate the Army Discipline and Regulation Act 1879 (UK) and subsequent Acts which had amended that Act. The Army Discipline and Regulation Act 1879 in turn replaced annual Mutiny Acts of the British and before then English Parliaments for the governance of discipline within the Army which may be traced back to the original Mutiny Act 1689 (Eng).

17                  The circumstances prevailing at the time of the passage of the Mutiny Act 1689 were singular. The “Glorious Revolution” had just occurred. King James II of England (King James VII of Scotland) had fled his kingdoms but was actively plotting his return with the assistance of the French. Parliament had adjudged that he had abdicated the Throne and offered it jointly to his elder daughter, Princess Mary and her husband, Prince William of Orange. The Army had been purged of supporters of the former King. It was necessary to provide for its governance. In his authoritative work, “The Military Forces of the Crown” (1869), Mr C M Clode, Barrister at law and legal advisor at the War Office, offers (at pp 84-85) the following account of what transpired and its enduring relevance:

4.         It was under these circumstances that the Statesman of that period had to consider the course they should adopt in regard to a Standing Army.  To disband it altogether was impossible, for the late King was seeking aid from France to recover his lost throne, and war of some kind was inevitable.  The people had experienced the evil of two systems, - of an Army of Plebeians exclusively under the Parliament, and of an Army of Cavaliers exclusively under the Crown; and therefore the problem which presented itself was, - how, without risking a divided allegiance, the Army could be placed equably between the Crown and Parliament, that the interest of the one should not so prevail as to disturb the influence of the other.

5.         Now this object was to be attained – not by destroying, but by strengthening the existing departments or powers of the Crown, and, at the same time, by adding to the legitimate functions of Parliament.  These ends were brought about, so far as need be referred to here, by three separate measures:-

1.         By laying down certain fundamental principles in relation to the Army by the Bill of Rights and Act of Settlement. 

2.         By placing the pay of the Army under the control of Parliament, or more especially of the House of Commons; and

3.         By granting to the Crown statutory powers for the Government and discipline of the Army.

6.                  Other statutory guarantees against the encroachments of the power of the Crown and of the Standing Army were added…  but the greatest security was and still is to be found in the Constitutional doctrine developed at the Revolution, which made every Minister of the Crown personally responsible to Parliament for his own conduct, and for the acts of the Crown taken upon his advice.  This agency of governing the kingdom by responsible ministers applies to the Army as well as to the civil Government, although for many years some few Politicians and many Soldiers were ready to contend that the Crown, without the intervention of any responsible minister, might use the Army for any purpose, and govern and command it in any matter that the will of the sovereign, for the time being, should direct.  There is no good function, as will be seen, for any such theory.  The Army, as part, or rather as the instrument of the State, must be under the ordinary rule of law, whether as applied to the prerogatives of the Crown or obedience to the civil magistrate. 

The “Army of Plebeians” to which Mr Clode refers was Oliver Cromwell’s New Model Army. Regicide in respect of King Charles I and the republican ideal had, in the mid-seventeenth century, culminated not in parliamentary democracy but in the military dictatorship of Lord Protector Cromwell backed by the New Model Army. The memory of this and of the no lesser evils of the “Divine Right of Kings” was fresh in the minds of those who drew both the Bill of Rights 1689 (Eng) and the first Mutiny Act,

18                  The Bill of Rights 1689 provided the basis upon which the Crown was offered by Parliament to and accepted by King William III and Queen Mary II as they became. In turn, the rights there enshrined underpinned the basis upon which the Act of Settlement 1701 (Eng) made provision for a succession to the Throne which obtains to this day both in relation to the United Kingdom, Australia and other constitutional monarchies within the Commonwealth of Nations. These statutes represented a recognition born of bitter experience with alternatives that the checks and balances on absolute power offered by a constitutional monarchy provided the best assurance of individual freedom under the rule of law.

19                  In modern times, Article 9 of the Bill of Rights, which provides “That the freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament” and which underpins the law of parliamentary privilege, is the most frequently encountered provision of that statute. Two other provisions of the Bill of Rights, Articles 5 and 6, are of present relevance:

5.         That it is the right of the subjects to petition the King, and all commitments and prosecutions for such petitioning are illegal.

6.         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.

The Bill of Rights formed part of the Law of England the application of which in colonial Australia, subject to local legislative modification, was confirmed by s 24 of the Australian Courts Act 1828 (UK).

20                  Parliamentary control over the Army’s existence as declared by Article 6 of the Bill of Rights was achieved by limiting the duration of the original Mutiny Act 1689 to seven months (12 April to 10 November 1689). Its enactment at the same time as the Bill of Rights 1689 was no coincidence. There was to be no repetition of the New Model Army. Thereafter, until more permanent provision was made in 1879, the parliamentary control declared by the Bill of Rights was maintained by annual passage of the Mutiny Act which relevantly provided for a temporally limited continuance standing army and for its discipline.

21                  As Mr Clode explains (supra at p 146), early Mutiny Acts made express provision only for the discipline of the Army within the Realm, consigning provision for the discipline of the Army when on service abroad to Articles of War made in the exercise of Prerogative power. Though these were issued in the name of the Sovereign, they were promulgated by the Minister responsible for the War Office who was, in turn, responsible to Parliament. Gradually, the Mutiny Acts came to have a wider application. Even though Articles of War continued to be promulgated in the manner just described, they were reissued annually in conformity with statutory provisions made in each successive Mutiny Act (Clode, supra, at p 144).

22                  Guidance as to the content of the Articles of War as they stood at the time when more permanent provision was made in 1879 for the discipline of the Army is offered in another of Mr Clode’s authoritative works, The Administration of Justice under Military and Martial Law (2^nd ed, 1874), which enjoyed contemporary official approval pursuant to British Army General Orders. Significantly for present purposes, one finds in that work (at pp 258-259) that those articles made the following provision in respect of “Redress of Wrongs”:

Redress of Wrongs

12.       If any officer shall think himself wronged by his commanding officer, and shall, upon due application made to him, not receive the redress to which he may consider himself to be entitled; - he may complain to the general commanding in chief of our forces, in order to obtain justice; - who is hereby required to examine into such complaint; - and either by himself, or by our Secretary of State for War, to make his report to us thereupon, in order to receive our further directions.

13.       If a non-commissioned officer or soldier shall think himself wronged [in any matter affecting his pay or clothing] by his captain, or other officer commanding the troop or company to which he belongs, he is to complain thereof to the commanding officer of the regiment, who is hereby required to summon a regimental court of inquiry for the purpose of determining whether such complaint is just; - from the decision of which court of inquiry either party may, if he think himself still aggrieved, appeal to the general court martial; - [and such court shall hear and determine the merits of the appeal, and after determining the same, and after allowing the appellant to show cause to the contrary, by himself, and by witnesses, if any, may either confirm the appeal or dismiss it without more, or may, if it shall think fit, pronounce such appeal groundless and vexatious, and may thereupon sentence such appellant to such punishment as a general court-martial is competent to award: - Provided that no stoppage of pay in respect of barrack damage duly assessed by a court of inquiry shall give any non-commissioned officer or soldier a right of appeal to a general or other court martial.]

Mr Clode’s footnoted annotations to these articles indicate that their presence in the Articles of War may be traced back at least to 1717. A further footnote discloses that the parenthetical reference in Article 13 to “pay or clothing” was inserted by amendment in 1856.

23                  The right of an officer, through the chain of command and ultimately via the War Office, to seek “redress” from the Sovereign in respect of a wrong or grievance and a corresponding right of a soldier to such the like redress from his commander, who would hold the Sovereign’s commission, found, at the times material to the present case, its contemporary exposition and adaptation to suit the circumstances of the command and control of the Australian Defence Force in reg 75, 76 and 77 of the Defence Regulations.

24                  The right of redress is an exact military law derivative of the right to petition the King declared by Article 5 of the Bill of Rights. The latter, in turn, was but a reassertion of a right the existence of which may be traced back at least to Article 61 of Magna Carta 1215 (Eng). The right of petition formed the basis in earlier times of the equity jurisdiction of the Lord Chancellor and of civil proceedings against the Crown by “petition of right”.

25                  The existence of a right of redress, of a right to have the complaint referred to the highest levels of command and of the obligation of an officer promptly to deal with the complaint either when initially made or on referral serve to temper the arbitrary, uncaring, ignorant or unjust exercise of authority within the Army. They are of fundamental importance to command and control and discipline within the Army. They ameliorate the duty of those in the Army to obey the lawful commands of their superiors under pain of prosecution and, if convicted, sentencing for mutiny. Under the Mutiny Acts, the latter offence was a capital crime. Though that penalty does not attend the offence of mutiny in Australian military law, the maximum punishment for the offence is serious enough – imprisonment either for 10 years or for life, depending on the circumstances in which it is committed: see s 20 Defence Force Discipline Act 1982 (Cth).

26                  Our constitutional heritage from the Bill of Rights and the original Mutiny Act finds contemporary expression in other ways in relation to the Australian Army.

27                  Though s 68 of the Commonwealth Constitution vests the command in chief of the naval and military forces of the Commonwealth in the Governor-General as the Queen’s representative, the authority for the existence of the Army is statutory, not the prerogative: see s 30 and s 31 of the Defence Act, enacted pursuant to s 51(vi) of the Commonwealth Constitution. Further, though the Governor-General has the command in chief, that command, in accordance with convention, is exercised on the advice of a Minister responsible to Parliament. That convention was recognised in the 19^th century by Mr Clode at item 6 in the passage quoted above. A century later but to like effect the following expression of opinion by the Right Honourable Sir Victor Windeyer, by then retired from the High Court and himself a former general officer in the Australian Army, commended itself to another retired High Court judge, the Right Honourable Sir Ninian Stephen in an address which he gave in 1983, in his then capacity as Governor-General, to the graduating class of the Joint Services Staff College in relation to the position of the Governor-General as commander in chief of the Defence Force:

The question here depends on the Constitution, not on provisions of the Defence Act. Some provisions of the Constitution refer to ‘the Governor-General in Council’ – which section 63 stipulates is to be construed as the Governor-General acting with the advice of the Federal Executive Council: but other provisions refer simply to ‘the Governor-General’. The distinction is significant. Section 68 states that ‘The Command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as The Queen’s representative’ – not in the Governor-General in Council. It follows that orders by the Governor-General to the Defence Force, including calling it out, are given by virtue of the authority of command in chief. That does not mean that His Excellency may act without ministerial advice. He must act on the advice of a responsible minister; but not necessarily by an Order-in-Council after a meeting of the Executive Council.

[http://www.gg.gov.au/governorgeneral/content.php?id=16]

In turn and in conformity with this position, s 8 of the Defence Act gives the Minister for Defence the general control and administration of the Defence Force and, subject to s 8 and s 9 of that Act provides for the appointment by the Governor-General of an officer known as the Chief of the Defence Force to command the Australian Defence Force and, materially, for the appointment by the Governor-General of a subordinate officer known as the Chief of Army to command the Australian Army.

28                  In this fashion, it can be seen that the redress complaints of officers and soldiers respectively are in modern times able finally to be decided by those officers to whom the Governor-General as commander in chief has, with parliamentary authority, respectively appointed to be the professional heads of the Australian Defence Force and the Australian Army.

29                  The importance of the redress of grievance system at the times when CPL Millar made her complaint and then sought its referral was underscored by the penalisation by reg 80 of the Defence Regulations of conduct directed to dissuading a member from making a complaint, seeking its referral, conducting inquiries in respect of a complaint or taking any other action under Part XV. In the present context, it was not only CPL Millar who enjoyed that protection but also BRIG Bornholt. If he, for example, were to be victimised on the basis of the decision he made those engaging in that conduct, no matter what their rank or appointment, would commit an offence.

30                  Apart from in Australia, a right of redress exists to this day as part of the military law of the United Kingdom – s 334 of the Armed Forces Act 2006 (UK) and of other constitutional monarchies within the Commonwealth: see, as to Canada, s 29 of the National Defence Act 1985 (Can) and Queen’s Regulations and Orders for the Canadian Forces, Ch 7 and, as to New Zealand, s 49 of the Defence Act 1990 (NZ). The purpose and provenance of these provisions are identical to those of Australia.

31                  In our Army and in the armies of each of these countries the right of redress gives formal recognition to an ethos that is sought to be instilled into officer cadets at their military colleges, academies and other officer cadet training units with respect to the obligation for fair treatment and concern for the welfare of subordinates that the holder of a Queen’s commission assumes in respect of those under his or her command. That obligation was definitively expressed by Field Marshal Sir Philip Walhouse Chetwode, then Commander in Chief of the Indian Army, in an address delivered at the formal inauguration of the Indian Military Academy in 1932:

The safety, honour and welfare of your country come first, always and every time. The honour, welfare and comfort of the men you command come next. Your own ease, comfort and safety come last, always and every time.

32                  The right of redress is one of the checks and balances within a disciplined armed force designed to ensure that, on complaint, that ethos will be brought to bear in the scrutiny of action which has occasioned the complaint and in ensuring that whatever action is necessary and appropriate to address a complaint which is found justified will be taken. There are other, informal means, well known within the military, by which a commander’s attention may be drawn to matters pertaining to the “honour, welfare and comfort” of those under his or her command. Within the Army it is a particular responsibility of a Regimental Sergeant Major (RSM) in an infantry battalion (or the equivalent office holder in other units major or minor), who is the senior soldier in the unit, to provide advice to the commanding officer on that subject. In turn, at formation level headquarters (i.e. Brigade and above) a formation RSM provides the like advice to a formation commander. It is that role which explains the existence of the appointment of a Regimental Sergeant Major of the Army, the senior soldier’s appointment in the Army, whose task is to provide just such advice to the Army’s professional head, the Chief of Army.

33                  The reason why the Defence Regulations, like others before them, reserve at least to the rank of Brigadier (or equivalent in the other arms of the Australian Defence Force) the exercise of power in respect of a referred redress complaint arises from the nature of the power and the need to ensure that its exercise conforms with the chain of command within the Army. The system for redress of grievances is not intended to be subversive of the Army’s chain of command. Thus the initial complaint is made under reg 75 of the Defence Regulations to a commanding officer, who will, if permanently appointed, invariably hold the rank of Lieutenant Colonel in a major unit or of Major in a minor unit. By reserving the exercise of the power under reg 77 of deciding referred redress complaints at least to an officer of the rank of Brigadier the Governor-General in Council has reserved the exercise of that power to a formation commander rank level, i.e. to a rank the holder of which usually exercises command over a number of major and minor units. In this fashion, the redress system conforms with and buttresses the chain of command within the Army.

34                  Once this constitutional law heritage and its adaptation to the command and control of the Australian Army are understood, it can readily be seen that it is antithetical to that heritage and that command and control that the power which the Chief of Army or a delegate may lawfully exercise upon the investigation of a referred redress complaint is limited to the making of a “recommendation” in respect of an earlier decision to, in this instance, terminate the service of a soldier. Neither, in light of these matters, is there cause for any uncertainty about the nature of the power. Where it lies within the power of the Chief of Army or subordinate officer to make a decision or to issue an order that has given rise to the complaint, it lies within the power of the Chief of Army or a delegate upon the investigation of a referred redress complaint to vacate that earlier decision or to countermand that order. The power is truly plenary.

35                  Though the occasion for the exercise in this case of the power to review on referral a referred redress of grievance complaint was the exercise of a power to terminate a member’s Army service, the ability to seek redress and later referral extends over the entirety of relationships between superior and subordinate within the Army. That has the necessary consequence that underlying circumstances and the nature of the decision under review will necessarily influence the manner and formality of the exercise of power in respect of a referred redress complaint. What does not change is the nature of the review power. The Chief of Army or a delegate considering the redress complaint on referral is fully empowered to consider afresh and on the merits the subject matter of the complaint, to reach his or her own decision in respect of it and to modify or countermand any decision which has given rise to a complaint which is upheld.

36                  That is not to say that Chief of Army or the delegate is obliged to interfere with the decision being reviewed. The obligation is to investigate the complaint and to reach a view as to what ought to be the result of that investigation. The Chief of Army or delegate might, for example, reach a conclusion that the decision under investigation, while not unreasonable, was not one which he or she personally would have made. In that circumstance, the Chief of Army or the delegate has a choice, guided by considerations of command and control as well as welfare of the complainant, as to whether or not to interfere with the decision of which complaint has been made. Yet another outcome might, for example, be that the complaint ought to be upheld, any order giving rise to it countermanded and the author of that order being subject to disciplinary action or counselling.

37                  Such is the plenary nature of the power exercisable on the merits by the Chief of Army or a delegate on a referred redress complaint that this Court might decide, as a matter of discretion rather than jurisdiction, summarily to dismiss the application of a member of the Army who has chosen to seek judicial review of a termination of service decision rather than seek redress under the Defence Regulations. That, I note, was one of the bases upon which a Queen’s Bench Divisional Court refused to grant prerogative relief to an officer in such a position in R v The Army Council; ex parte Ravenscroft [1917] 2 KB 504. Insofar as there are also suggestions (at 508 per Viscount Reading CJ, at 512 per Ridley J and at 513 per Avory J) in that case that a court would not interfere with the dismissal of an officer because that was a matter of military discipline, the case is inconsistent with, for example, Welsh’s Case, supra, here and not good law. The latter aspect of the case is perhaps explicable on the basis that, at the time, officers served at the pleasure of the Crown with the basis for their dismissal being the Prerogative rather than, as in Australia, statutory. That distinguishing feature does not though affect the authority of that case insofar as it recognises that the plenary nature of the right of redress may provide a basis for discretionary refusal of a prerogative writ.

38                  For completeness, I should note that, though reference is made by the Full Court in Martincevic v Commonwealth (2007) 164 FCR 45 to a redress of grievance investigation, it did not prove necessary in that case for the Full Court to explore the nature of the power able to be exercised by the Chief of Army upon the referral of a redress complaint. Rather, that case highlighted that the existence and outcome of a subsisting redress investigation before the making of a discharge decision may constitute (and in the circumstances of that case was held to constitute) a relevant consideration for the purposes of the making of that discharge decision.  

39                  It does not follow from the lack of understanding of the nature of the power evident in the Commonwealth’s submissions that CPL Millar must succeed in her judicial review application. To determine that it is first necessary to relate in more detail the factual background which gave rise to CPL Millar’s initial redress complaint, its later referral and this judicial review application. It is also necessary to set out why BRIG Bornholt came to confirm the decision to terminate her service with the Army. BRIG Bornholt’s reasons are comprehensive. It would do that officer less than justice not to set them out in full but so to do in the main body of the judgement would, in my opinion, detract from its continuity and ready comprehensibility. I therefore annex the full text of BRIG Bornholt’s reasons and highlight pertinent features in the main body of the judgement.

40                  Before CPL Millar deployed to Iraq as part of Operation CATALYST 2 she undertook pre-deployment training at Randwick Barracks in Sydney from 27 June 2006 for a period of one month. During that time, CPL Millar maintained a good rapport with most, but not all, of the members attending this pre-deployment training course.

41                  The unit in which CPL Millar was to serve in the Middle East was a joint force unit, i.e. its members were drawn from each arm of the Defence Force. Prior to her deployment, CPL Millar encountered significant problems with Leading Seaman Hillier, Royal Australian Navy. She worked closely with LSSN Hillier during her pre-deployment training and whilst deployed to the MEAO.

42                  In Iraq CPL Millar and LSSN Hillier had a number of interpersonal clashes while on duty, to the extent that a meeting involving, Flight Lieutenant Walker, the Company Quarter Master Sergeant (CQ), Warrant Officer Class 2 Onus, LSSN Hillier and CPL Millar was convened. At this meeting, LSSN Hillier and CPL Millar agreed to resolve their differences. It is apparent that this meeting did not have the desired outcome, as CPL Millar and LSSN Hillier had a number of subsequent confrontations involving the former’s view of CPL Millar’s management of subordinates.

43                  CPL Millar conversed repeatedly with her CQ, WO2 Onus, in an attempt to resolve her differences with LSSN Hillier. WO2 Onus and CPL Millar had a heated argument, in which CPL Millar claimed that WO2 Onus said: “I’m sick of you” and directed her to get out of her sight.

44                  CPL Millar spoke to FLTLEUT Walker about other conflict resolution options in relation to LSSN Hillier. At an “O-Group” (orders group) that same evening CPL Millar was told: “if you have an equity issue on operations, right or wrong, you would get sent home and it would be investigated there”.

45                  In her affidavit CPL Millar stated that she felt let down by her chain of command and by her unit with respect to her relationship with LSSN Hillier. While still stationed in the MEAO she approached the Padre assigned to her unit concerning the issue, who advised her to contact the psychologist deployed to the MEAO to get assistance with conflict management strategies. On 4 October 2006 CPL Millar telephoned that psychologist, Major D R Hadfield, to discuss conflict management strategies.

46                  CPL Millar was selected to go on the first rotation of ROCCL (“relief out of country leave”) and was due to leave Baghdad on 11 October 2006 to fly to Amsterdam.

47                  On 5 October 2006 FLTLEUT Walker spoke with MAJ Hadfield and raised concerns with respect to CPL Millar’s suitability to remain on deployment. On 6 October 2006, the OC-Force Level Logistic Asset-Kuwait referred CPL Millar for psychological assessment regarding her emotional state and her suitability to remain on deployment and in the Defence Force. This assessment was conducted by MAJ Hadfield on 8 October 2006. MAJ Hadfield concluded that:

·                    CPL Millar was not suitable to remain on deployment;

·                    CPL Millar needed to have access to support in what was likely to be a time of heightened stress and anxiety prior to and upon repatriation to Australia; and

·                    Even with further counselling, CPL Millar appeared not to be suitable to remain in the Defence Force.

48                  On 11 October 2006, in anticipation of the CPL Millar’s return to 10 FSB, the Commanding Officer (CO) of that unit referred her to Psychology Support Services-Northern Queensland for assessment for suitability to remain a member of the Defence Force. CPL Millar landed in Australia late on 12 October 2006. She was met by her unit’s Operations Officer and its Squadron Quarter Master Sergeant, who drove her to her residence. The following morning, 13 October 2006, at 7:30am, she was advised of and later attended an initial assessment appointment with Dr Richard Green, an Army Reserve psychiatrist. CPL Millar had requested that this appointment be rescheduled, owing to the draining nature of the return flight home from the MEAO.

49                  Dr Green met with CPL Millar at 10:00am that morning. She again requested that their interview be deferred for a few days, owing to her suffering from jet lag. The interview was rescheduled for 25 October 2006.

50                  Following her appointment with Dr Green, CPL Millar attended upon her unit’s Regimental Aid Post (RAP). There, she saw 10 FSB’s Regimental Medical Officer (RMO), Dr Mitra, who diagnosed stress, anxiety and jetlag, and prescribed the drug Zanax for nine days. CPL Millar was given a medical certificate for 10 days’ sick leave.

51                  Whilst on sick leave, CPL Millar referred herself to the Vietnam Veterans’ Counselling Service (VVCS) for assistance with respect to ongoing anxiety. There, she attended upon a psychologist recommended by the Counselling Service, who provided her with relaxation therapy. On 25 October 2006 she again visited the RMO, who extended her sick leave by 5 days. On this same day CPL Millar again met with Dr Green. She requested a second opinion with respect to MAJ Hadfield’s decision to recommend her return to Australia. She was referred to CAPT J. Brown (CAPT Brown) of Psychology Support Services-Northern Queensland. The appellant met with CAPT Brown on 30 October 2006 and on 15 November 2006.

52                  At the consultation on 30 October 2006, CAPT Brown informed her that she was being assessed as to her suitability to remain in the Defence Force. CPL Millar asked CAPT Brown whether the purpose of the appointment was to obtain the second opinion which she had requested from Dr Green. During this interview, CPL Millar advised CAPT Brown that she would be pursuing an equity complaint in relation to events that had occurred whilst in theatre. CAPT Brown advised the appellant that the assessment would be delayed for three months until CPL Millar returned to work.

53                  On 15 November 2006, CPL Millar attended the further appointment with CAPT Brown. In the course of that appointment CPL Millar advised CAPT Brown that she would not be pursuing the equity complaint. Additionally, she informed CAPT Brown of her Zanax prescription, of her then unforeseeable return to duty in the near future and of her self-referral to VVCS.

54                  On 30 January 2007, 10 FSB issued CPL Millar with a Termination Notice citing reg 87(1)(e) of the Defence (Personnel) Regulations, ‘Not suited to be an enlisted member of the Defence Force’, as the proposed reason for discharge. CPL Millar acknowledged receipt of this notice. She submitted a response to it on 15 March 2007. On 20 April 2007, the CO 10 FSB advised CPL Millar that he did not uphold her request to be retained in the Defence Force and subsequently recommended to SCMA that CPL Millar not be retained. The formal termination decision and redress complaint already noted then followed. 

55                  CPL Millar’s response to the termination notice and to the initial disposal of her complaint for redress of grievance relied upon opinions in respect of her by a psychologist in private practice, a Mr Robert Zemaitis.  Mr Zemaitis furnished two reports: one dated 7 March 2009, the other dated 3 September 2007.  The former was considered by the Delegate of the Chief of Army who made the decision to terminate her service; the latter was obtained prior to CPL Millar’s seeking the referral of her redress complaint to the Chief of Army.  Mr Zemaitis’ opinion was that CPL Millar was not “suffering from any current levels of psychology systems” and that she was “quite capable of continuing to serve at her current posting”.  Contrary views were expressed concerning CPL Millar’s suitability for continued military service, especially having regard to a need to undertake operational service, by MAJ Hadfield and CAPT Brown.

56                  CAPT Brown furnished two reports in respect of CPL Millar, one dated 8 November 2006, the other 15 November 2006. The former seems to have been a precursor to and overtaken by the latter.  It is CAPT Brown’s report of 15 November 2006 which contains findings that proved influential in relation to BRIG Bornholt’s ultimate disposal of CPL Millar’s referred to redress complaint.  In her report of 15 November 2006, CAPT Brown’s opinion was that “this member presents with a persuasive history of interpersonal difficulties within the workplace and personality issues … the attention to this member is likely to result in ongoing workplace conflict and extensive use of military resources”.

57                  It was common ground as between CPL Millar and the Respondents that BRIG Bornholt was obliged to afford her procedural fairness in deciding her referred redress complaint. As it happens, there is contemporary English intermediate appellate authority which would support such a conclusion in the particular context of the consideration of a referred redress of grievance complaint, in that case one arising from an allegation of racial discrimination by a member of the British Army: R v Army Board of the Defence Council; Ex parte Anderson [1992] 1 QB 169. 

58                  In what has become a seminal Australian exposition on the subject of procedural fairness, Mason J, in Kioa v West (1985) 159 CLR 550 at 585, remarked of the expression that it “conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case”. It is not difficult to see how, in the context of operational service in times of a large scale deployment of the Australian Army, the content of a procedural fairness obligation in respect of a redress complaint either as initially made or on referral may in some cases be very limited indeed.  In the present case, though the occasion for the initiation of termination procedures arose from incidents on operational service, the decision making process occurred in more benign circumstances in Australia.  There is nothing in the circumstances which would suggest that any attenuated procedural fairness obligation attended BRIG Bornholt’s consideration of the referred redress complaint. Thus, the assumption of the parties that the making of a decision by him was attended with a procedural fairness obligation which included the affording of a fair opportunity to CPL Millar to know the case made against her and to contradict it is correct. I accept therefore that he was obliged to afford CPL Millar procedural fairness in determining that referred redress complaint.  The nature of that obligation though, as Mason J observed, depends on the circumstances of the particular case.

59                  In this case, CPL Millar had already been the recipient of a Termination Notice which set out the basis upon which it was proposed to terminate her service in the Army. Only after that notice and an opportunity to respond had been given was the decision to terminate her service made by a delegate of the Chief of Army. In turn, before BRIG Bornholt became involved, CPL Millar had already sought redress from her CO and had the benefit of a reasoned decision as to why her complaint was not upheld. In light of those processes and their outcomes, it is clear that CPL Millar was well aware by then that the reason why a decision had been made to terminate her service on the basis of unsuitability and why her initial grievance was not upheld was a view, supported by the opinion of the Army psychologist CAPT Brown in her report of 15 November 2006 in particular, that, considering her behaviour on operational service in Iraq against the background of her service as a whole, there was a risk that under stress her performance would not be satisfactory. In seeking to have the Chief of Army overturn the termination decision on the review of her grievance complaint she furnished a further report from Mr Zemaitis along with character references from military associates and superiors.

60                  Upon referral and as required by Defence Instruction (General) PERS 34-1 Redress of Grievance – Tri-Service Procedures made under the Defence Act, a report in respect of the referred complaint was prepared for the Chief of Army’s (or delegate’s) consideration by the Complaints Resolution Agency within the Headquarters of the Australian Defence Force. It is the report of that agency which came before BRIG Bornholt and which he came to adopt. In adopting that report, its suggested outcome and the reasons as his own BRIG Bornholt adopted a report in which the case advanced by CPL Millar was thoroughly rehearsed and commented upon, as was the process that had led up to the decision to terminate her service and the initial rejection of her redress complaint. No new consideration personal to CPL Millar was introduced by the staff who compiled the report for Brig Bornholt. Neither did he do this of his own motion.

61                  In these circumstances, a further passage from the judgement of Mason J in Kioa v West (at 559) is apposite:

[T]his is not to say that fairness will necessarily, or even generally, require that an applicant for a further entry permit be given an opportunity to be heard even where deportation may follow from its refusal. The grant of an entry permit is a matter of discretion. Indeed, the cancellation of a temporary entry permit is expressed to be a matter of absolute discretion (s.7(1)). In the ordinary course of granting or refusing entry permits there is no occasion for the principles of natural justice to be called into play. The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. But if in fact the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter (In re H.K. (An Infant) (1967) 2 QB 617). If the application is for a further temporary entry permit and it is made in circumstances which are relevantly similar to those in which the earlier permit was granted, the applicant may have a legitimate expectation that the further entry permit will be granted or will not be refused in the absence of an opportunity to deal with the grounds on which it is to be refused. And if the refusal is to be attended by the making of a deportation order, the case for holding that procedural fairness requires that such an opportunity be given is unquestionably stronger.

40. In this respect recent decisions illustrate the importance which the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it. FAI is one illustration. Cole v. Cunningham (1983) 49 ALR 123, is another, as are Reg. v. Gaming Board for Great Britain; Ex parte Benaim and Khaida (1970) 2 QB 417, at p 431; and Daganayasi v. Minister of Immigration (1980) 2 NZLR 130.

BRIG Bornholt was obliged to investigate the referred complaint. As a senior officer he was able, as would have been the Chief of Army of Army himself, to require staff to prepare a report on the subject. In that regard, the procedure envisaged by the Defence Instruction (General) is not inconsistent with the Defence Regulations in relation to the investigation of a referred redress complaint. Whether he interfered with the termination decision was a matter for the exercise of discretion after investigation. Given the particular way in which the investigation was conducted, effectively on the papers, there was no need to give CPL Millar any further opportunity to be heard before making a decision. At the very latest, the fullness of the case she had to meet, both in terms of expert opinion and underlying reports and service history had been exposed to her in the disposal by her CO of her redress complaint. BRIG Bornholt decided not to uphold her redress complaint not on the basis of new information personal to her obtained from another source and not exposed already to her but on the basis of existing materials. In these circumstances, and contrary to the submission advanced on her behalf, he was not obliged again to revert to her and to offer her an opportunity to comment upon the reasons he proposed to adopt in declining to uphold her redress application. Rather, as is evident from the passage quoted, she, “cannot complain if the authorities reject [her] application because they do not accept, without further notice to [her], what [she] puts forward”. I therefore reject the submission that BRIG Bornholt denied CPL Millar procedural fairness in making his decision.

62                  A further submission was made that CPL Millar had not been afforded an opportunity to comment upon an assessment made of her by her Squadron Sergeant Major which was taken into account by CAPT Brown in her report. However, as the Respondents demonstrated in their written submissions, by the time that CPL Millar sought the referral of her redress complaint she had had two opportunities to comment upon this assessment, of which she had taken advantage; once in the course of showing cause why her service ought not be terminated and again in the seeking of the referral of her redress complaint. There is no substance in this aspect of her procedural fairness challenge. Neither, when it is recalled that it is the referral decision which is under review is there any substance in her assertion that she was denied an opportunity to comment upon comments made by the Army’s Psychological Support Service North Queensland on the subject of her suitability. Those comments were limited to a concurrence with the views already expressed by CAPT Brown and were exposed to CPL Millar in the results of the “Quick Assessment” which was made of her initial redress complaint.

63                  An examination of his reasons discloses that BRIG Bornholt approached his task in two particular ways. On the one hand, he examined whether the procedures adopted to date had been appropriate and whether the decisions reached were reasonably open; on the other and in any event he reached his own opinion on the whole of the evidence before him, which included the further evidence provided by CPL Millar in seeking the referral of her redress complaint, as to whether she was, in terms of reg 87(1)(e) of the Defence (Personnel) Regulations, suited to be an enlisted member.

64                  This, with respect, was an appropriate procedure to adopt. If, for example, BRIG Bornholt had detected a procedural flaw in the termination process he would have been perfectly entitled, on the strength of that finding alone, to countermand the termination order. What followed from such a result would then have been a matter for the exercise of a further command discretion. He may have ordered that the termination consideration be commenced afresh by another delegate or he may have chosen just to leave the termination order countermanded. As it happens, he found no procedural flaw; nor did he consider that the views reached in respect of the termination were not reasonably open. Appropriately though, especially given that CPL Millar had presented fresh evidence in support of her referral request, BRIG Bornholt went on to reach his own decision on the merits as a result of the investigation conducted on his behalf by staff. This evidences an appreciation by him of the plenary nature of the power entrusted to him. He was perfectly entitled to reach his own opinion as to CPL Millar’s suitability to be an enlisted member. This indeed is what she wanted him to do.

65                  As it happens, BRIG Bornholt’s opinion was that CPL Millar was not suited to be an enlisted member. It was submitted that this was an unreasonable opinion. That submission in effect amounted to an appeal that decisive weight ought to have been given to the opinions of Mr Zemaitis. It was also submitted that it was erroneous to conclude that Mr Zemaitis had not had access to CPL Millar’s full psychological file.

66                  Each of these submissions was sought to be controverted by the Respondents, each on the basis that the conclusion was reasonably open.

67                  It is a feature of reg 87(4) of the Defence (Personnel) Regulations, noted by the Full Court in Martincevic (2007) 164 FCR 45 at 54, [44], that, once the Chief of Army (or a delegate) forms the opinion described in that sub-regulation, the service of the member concerned must be terminated. One aspect of that opinion is whether the decision-maker is “satisfied” in terms of reg 87(1)(e) that the member is not suited to be an enlisted member. These features of reg 87 mean that it is one of those provisions where “some fact or event [is] condition upon the existence of which the jurisdiction of a court or tribunal shall depend”: R v Federal Court of Australia; ex parte Pilkington ACI (Operations) Pty Ltd (1978) 142 CLR 113 at 125. In this instance, the “fact or event” upon which the jurisdiction of the Chief of Army to terminate the service of a member depends is a state of subjective satisfaction, an opinion. In Bankstown Municipal Council v Fripp (1919) 26 CLR 385 at 403, Isaacs and Rich JJ observed of provisions of this type that they are employed with the object of preventing litigation on matters of jurisdictional fact.

68                  The feature just mentioned does not mean that statutory powers the exercise of which is dependent upon the engendering or achievement of a state of “satisfaction” in relation to an event or fact are unexaminable on judicial review either at common law or under the Administrative Decisions (Judicial Review) Act, as was explained by Brennan CJ, Toohey, McHugh and Gummow JJ in a survey of pertinent authority in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-277. Paragraph 5(1)(f) of the Administrative Decisions (Judicial Review) Act would permit the setting aside of BRIG Bornholt’s decision in the event that it “involved an error of law”.  CPL Millar’s referred redress complaint relevantly pressed a case that he should countermand the termination decision because he ought on the whole of the material not form an opinion in terms of reg 87(4) and 87(1)(e) of the Defence Personnel Regulations. In these circumstances and having regard to the nature of the regulation concerned an error of law might be found, as with judicial review under s 75(v) of the Constitution, in one or more of the ways described by Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118-119:

In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. [Emphasis added]

In respect of the words emphasised in the passage quoted. Gummow J made the following observation in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 654, [137]:

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.

69                  In “not suited to be an enlisted member” the present offers a paradigm example of “a matter of opinion or policy or taste”. Further, as Sir Owen Dixon noted in Welsh (1947) 74 CLR 245, at 268of other regulations governing the relationship between the Commonwealth (and that term is used to include the Crown in right of the Commonwealth) and members of the Defence Force and in a passage to which I have already alluded:

[In] considering the meaning and effect of the Air Force Regulations their purpose cannot be neglected, namely to provide rules to govern one of the armed forces of the Crown. The relation to the Crown of members of the armed forces is no new subject; the rules of the common law define it. The regulations are not to be read in disregard of those rules and of the long tradition to which they have contributed. At common law neither commission nor enlistment in the services does or can amount to a contract with the Crown and neither officer nor man obtains any legal right against the Crown to pay, deferred pay, half pay, pension or emolument. ‘All engagements between those in the military service of the Crown and the Crown are voluntary only on the part of the Crown, and give no occasion for an action in respect of any alleged contract:’ per Lord Esher M.R. in Dunn v. The Queen: see Macdonald v. Steele; Gibson v. East India Co.; R. v. Secretary of State for War; Leaman v. The King: Lucas v. Lucas. (footnote references omitted).

70                  The relationship between the Crown and a soldier is not that of employer and employee:  Attorney-General (NSW) v Perpetual Trustee Company [1955] AC 457, at 489-490; Attorney-General (NSW) v Perpetual Trustee Company (1951-1952) 85 CLR 237, at 301-302 per Kitto J. At common law, the relationship between the Crown and a soldier may be terminated without notice and for any reason, no reason or a mistaken reason: The Commonwealth v Welsh (1947) 74 CLR 245, at 257-258 per Latham CJ, McTiernan J agreeing; at 262 per Rich J, at 274 per Williams J; Coutts v The Commonwealth (1984-1985) 157 CLR 91, at 105 per Brennan J.

71                  In a passage later cited with approval by Dawson J in Coutts v The Commonwealth (1984-1985) 157 CLR 91, at 120, Windeyer J, observed in Marks v The Commonwealth  (1964) 111 CLR 549, at 564 that, in Australia, the position of the Crown in relation to the Defence Force depended not upon the prerogative but rather upon statute such that the inquiry was whether the relevant statute law modified or abrogated the common law position. Hence the significance of Sir Owen Dixon’s observation as to the manner of construing the provisions now found in reg 87 of the Defence (Personnel) Regulations. This observation of Sir Owen Dixonhas subsequently been cited with approval both in the High Court (Marks v The Commonwealth (1964) 111 CLR 549, at 573 per Windeyer J; Coutts v The Commonwealth (1984-1985) 157 CLR 91, at 98 per Wilson J, Brennan J agreeing).and in this Court (Bowthorpe v Minister for Defence (1986) 17 IR 192, at 195 per Neaves J; Bromet v Oddie ((2002) 78 ALD 320, at 331 per Finn J).

72                  In a sense, the Defence (Personnel) Regulationsdo significantly modify the common law, for the provision they make for termination of the service of an enlisted member of the Defence Force exhausts, rather than supplements, the common law:see reg 87(5), Defence (Personnel) Regulations. However, once it is appreciated that the giving of a prior “show cause” notice is not compulsory (In reg 87(2), which provides for the giving of a “termination notice”, the word “may”, rather than “must” is used, connoting, in context, and especially having regard to the contingencies that might arise making the step either impractical or even impossible, that the giving of such a notice is not compulsory) and that a Service Chief such as the Chief of Army may terminate the service of an enlisted member for reasons as ephemeral as that which formed the basis of CPL Millar’s termination or that “the retention of the enlisted member is not in the interest of Australia ; or the Defence Force; or the Chief’s Service” (reg 87(1)(g), Defence (Personnel) Regulations), the heritage of the common law remains evident.

73                  Where the evidence is not all one way, and that is emphatically the situation in the present case, this heritage and that the subject matter for “satisfaction” is one of opinion or policy or taste counsel a principled restraint on a court conducting judicial review lest the appearance be given that, in respect of this aspect of the making of value judgements in relation to the Defence Force, command has impermissibly passed from those to whom that task has been consigned by the Governor-General under parliamentary authority to the Judiciary.

74                  These same sentiments are evident in judgements of the Federal Court of Canada with respect to the judicial review of decisions relating to the disposition of grievances in the Canadian Forces. In Armstrong v Canada (Attorney General) [2006] F.C.J. No. 625; 2006 FC 505 Layden-Stevenson J observed of the grievance procedures for which s 29 of the National Defence Act (Can) and Chapter 7 of the Queen’s Regulations and Orders made thereunder provide:

[34]       The purpose of the National Defence Act (NDA) is to provide for the management, direction and administration of the Canadian Forces (CF). The purpose of the specific provisions, in relation to this matter, is the efficient resolution of grievances or disputes. The issue in this case is not polycentric. Rather, it is of a private or personal nature. Some deference is appropriate in view of the fact that the final decision lies with the Chief of the Defence Staff (CDS), or an officer delegated by him.

[35]       The expertise of the decision-maker militates in favour of deference. The CDS, the most senior officer in the CF, is charged with control and administration of the CF. The NDA mandates that all orders and instructions to the CF, to carry out the directions of the Governor in Council or the Minister, are to be issued through the CDS. It is to be expected that the CDS, or his delegate, will be conversant with all facets of the military context, unlike the court. This factor indicates a high level of deference.

Her Honour’s judgement was affirmed on appeal to the Federal Court of Appeal:  Armstrong v Canada (Attorney General) [2007] F.C.J. No. 546; 2007 FCA 157 and has since been cited with approval in relation to another judicial review proceeding arising out of the Canadian Forces grievance resolution provisions: Leading Seaman D.M. Morphy v Canada (Attorney General)[2008] F.C.J. No. 242; 2008 FC 190 at [63]. The observation Layden-Stevenson J made has like application for like reasons in the present case in relation to whether CPL Millar is suitable to be an enlisted member. In the circumstances of this case, the person to be “satisfied” or not on this subject was a senior military officer, not a judicial officer. Deference is called for in relation to the value judgement made by that military officer.

75                  The following observation of Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-6 is no less pertinent in this case than in other judicial review cases:

The essential warrant for judicial intervention is the declaration and enforcing of the law affecting the extent and exercise of power: that is the characteristic duty of the judicature as the third branch of government  … [T]he duty extends to judicial review of administrative action alleged to go beyond the power conferred by statute or by the prerogative or alleged to be otherwise in disconformity with the law. The duty and the jurisdiction of the courts are expressed in the memorable words of Marshall CJ in Marbury v Madison:

“It is, emphatically, the province and duty of the judicial department to say what the law is.”

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

(footnote reference omitted)

Like other officers of the Commonwealth, the decisions of the Chief of Army and his delegates are amenable to judicial review either by the High Court by constitutional writ under s 75(v) of the Constitution or in such other courts as the Parliament invests with federal jurisdiction judicially to review their decisions, but only for error of law.

76                  There is nothing inherently illogical or unreasonable about the opinion as to CPL Millar’s suitability to which BRIG Bornholt came. Twice before she had been considered for discharge on the basis of unsuitability but a choice had been made as between competing assessments not to discharge her. As a result of her performance on operational service two psychologists, MAJ Hadfield (provisionally) and CAPT Brown formed the opinion that CPL Millar was not suited to be a soldier. Assisted by their opinions and looking at the whole of her service history, BRIG Bornholt was entitled to form the opinion he did as to her unsuitability. In so doing, he was entitled to and self evidently did take into account the views of Mr Zemaitis. It is just that he chose not to accept the latter’s views.

77                  BRIG Bornholt was also entitled to form a view, based on a comparison of the reports of the Army psychologists and Mr Zemaitis prepared for him by staff and adopted by him that one reason for the differing views may have been that Mr Zemaitis did not have access to CPL Millar’s full psychological file.

78                  There is nothing on the face of BRIG Bornholt’s reasons which suggests that CPL Millar’s complaint has received anything other than sympathetic, dispassionate consideration by a senior officer. Indeed, the question of whether CPL Millar was suited to be a member of Defence Force has received elaborate consideration. Subject to affording her procedural fairness, and to any intrusions mandated by Defence Instructions, it would have been possible to form an opinion as to her lack of suitability even without the benefit of psychologists reports, based on reports from her unit as to her performance on operational service.

79                  For these reasons, the challenge to BRIG Borholt’s decision must fail. As no separate grounds of challenge were advanced in respect of MAJ Wilkinson’s decision, which was wholly consequential upon that of BRIG Bornholt, the challenge to his decision must also fail. The time which that officer fixed for CPL Millar’s discharge has now passed. The stay in respect of her discharge will expire upon the determination of the judicial review application. It will be for the Chief of Army or a delegate to fix such fresh discharge date as that officer may be advised.

80                  The application is dismissed. I shall hear the parties as to costs.

Associate:

Dated:         15 June 2009

Annexure “A”

Redress of Grievance Determination by BRIG Bornholt

(as per memorandum of 6 February 2009 directed to CPL Millar)

1.         Your application for Redress of Grievance (ROG), concerning a decision by the Soldier Career Management Agency (SCMA) on 4 August 2007, under the terms of the Defence (Personnel) Regulations 2002 (D(P)R) 87(1)(e) ‘Not suited to be an enlisted member of the Defence Force’ on psychological grounds, has been independently reviewed in accordance with the provisions of DI(G) PERS 34-1.  Having regarding to the report of that review, your submissions and other supporting documentation, I have determined, on behalf of the Chief of Army (CA), that your redress should not be upheld.  The reasons for my decision are set out below.

2.         I note that as part of your Statement of Reasons (SOR) for retention, your ROG and your referral to CA, you stated that your Termination Notice (TN) advised that the reason for your proposed termination was that you were ‘medically unfit’.  However, this is incorrect in that your termination is proposed pursuant to D(P)R 87(1)(e) “not suited to be an enlisted member of the Defence Force”.  Accordingly, your circumstances have been reviewed with this in mind.

3.         Defence Instruction (Army) Personnel (DI(A) PERS) 116-5 – Separation of Regular Army Soldiers, Army Reserve Soldiers and Soldier on Full-Time Service – Policy and Procedures particulars the Army specific procedures and management of soldier voluntary discharges, transfers from ARA to the Reserves, transfer from ARA to other services, automatic separations, involuntary separations and medical separations.  In particular, Part Four of this instruction details the requirements when a Commanding Officer (CO) considers that a soldier’s unsatisfactory service may be due to psychological reasons.  In your case, I note your discharge process has accorded with these instructions.

4.         You refuted the assessment made by CAPT Brown that you were not suitable for retention and contended that CAPT Brown’s report and opinions were premised upon an insufficient assessment of your suitability for retention; relied upon inadequate and inaccurate information; and failed to take account of the events that occurred in the Middle East Area of Operations that precipitated your involuntary return to Australia (RTA).  To support your contention, you argued that you had served for more than 12 years during which time you had undertaken and completed all necessary courses enabling you to be promoted to Corporal.  While this is acknowledged, it is not this aspect of your service that is under review rather it is whether you are psychologically suitable for service in the Australian Defence Force.

5.         You also referred to two previous occasions when you had successfully challenged your termination on psychological grounds.  In so doing, you argued that the opinion expressed by CAPT Brown was similar to those of two previous psychologists who had determined that you were unsuitable for continued service in that CAPT Brown’s report was without foundation or failed to properly assess your suitability.  In particular, you criticised CAPT Brown for not referring to the two “supportive” assessments (from other psychologists who supported your retention at the time albeit without access to your complete psychological file) and explaining why your current circumstances now differed and thus justified your discharge.  It is acknowledged that CAPT Brown did not specifically refer to either of these two “supportive” assessments in her report of 15 November 2006.  Rather her assessment did not focus on isolated incidents but it encapsulated your entire psychological history and thus she was able to determine that ‘this member presents with a pervasive history of interpersonal difficulties within the workplace and personality issues … [and that] the retention of this member is likely to result in ongoing workplace conflict and extensive use of military resources’.  As such, CAPT Brown determined that you were permanently unsuitable for future deployments or retention.

6.         I note, however, that the two independent psychological reports provided by Mr Zemaitis (commissioned by you in support of your retention) similarly make no mention of the two previous psychological reports that assessed you as unsuitable for continued service.  Rather he relied solely upon the two contrary reports that supported your retention; copies which were provided to Mr Zemaitis by you.

7.         You argued that the view expressed by your Squadron Sergeant Major (SSM) to CAPT Brown was contrary to those expressed in your several character references.  On 15 November 2006, CAPT Brown contacted your SSM regarding your return to work.  His opinion was also sought regarding your performance.  He advised that you were experiencing interpersonal difficulties with a Private (PTE) and a CPL there were likely to resolve with the posting of the PTE at the end of the year.  He also provided other qualifying remarks about your performance.  While it is acknowledged that his remarks are contrary to those expressed in your references, this is not unexpected given that character references generally emphasise the positive attributes of the member.  Nevertheless, this does not mean that the SSM’s remarks should be disregarded because they provide a contrary view particularly given that his remarks were a further illustration of your history of an inability to maintain effective workplace relationships and were current at the time that CAPT Brown prepared her report.

8.         You submitted two independent psychological assessment reports as a consequence of having been assessed by Mr Zemaitis, a consultant psychologist to the ADF and compared the assessment process undertaken with CAPT Brown with that conducted by Mr Zemaitis.  While CAPT Brown relied largely on your recorded psychological history and her discussions with you, Mr Zemaitis relied on your self-reports and the utilisation of two well accepted personality tests.  Thus you appeared to infer that Mr Zemaitis’ tests were more stringent and greater weight should therefore be given to his conclusion that you should continue to serve in the Australian Regular Army (ARA).

9.         While it is acknowledged that, on paper, Mr Zemaitis appears to have conducted a more thorough one-on-one psychological assessment of you than CAPT Brown, it is unclear as to whether he was provided with your ‘complete psych file’ and thus your entire psychological history upon which to formulate his diagnosis.  As such, it would appear that Mr Zemaitis may have relied heavily on your self-report, the documentation you provided and the two personality tests he conducted to support his findings.  In this regard, it is notable that both Mr Zemaitis’ reports repudiated those provided by MAJ Hadfield and CAPT Brown and in some part appeared to reflect opposite character attributes and assessments. In particular, I noted some discrepancies with Mr Zemaitis’ report, that he had access to your complete psychological history, may not have arisen or his observations may have been reported differently.  These were:

a.         Mr Zemaitis advised that you had been recommended by Army psychologists as unsuitable for service however, he only discussed the “supportive” reports (provided by you) rather than reviewing and discussing all the relevant documents.

b.         Mr Zemaitis advised that you stated ‘that it was never explained to her by the Army psychologists the purpose of the interview’, however, CAPT Brown’s report noted that you advised ‘that she was unaware that she was being assessed for suitability for retention’.  This would suggest that CAPT Brown had informed you of the purpose during your first interview on 30 October 2006.

c.         Mr Zemaitis advised that you had indicated that generally you had never been asked to explain your situation in Iraq, however, MAJ Hadfield’s notes indicated that your situation had been discussed in some detail.

d.         Mr Zemaitis noted some of your characteristics as being ‘resilient and adaptive in the face of most stressors’, and ‘seldom feels frustrated, irritable, and angry at others … able to cope well with stress’.  He also noted that ‘she has performed quite positively particularly in the past 7 years of her military service’.  While these conclusions are clearly inconsistent with your psychological history, Mr Zemaitis’ report makes no attempt to explain these differences.

10.       Accordingly, it is concluded that Mr Zemaitis either did not have access to your complete psychology file as you claimed, that he failed to recognise discrepancies between the two accounts, or that he disregarded the significance of the discrepancies identified.  Therefore, I consider that Mr Zemaitis’ reports should be viewed with these caveats in mind.

11.       You argued that your RTA was a consequence of a ‘one-off’ workplace disagreement with a peer and that CAPT Brown had failed to give due regard to these circumstances when assessing you.  However, your psychological file indicates that you have a history of interpersonal relationship difficulties with your earliest referral in 1996 (about 18 months after joining the ARA).  In this regard, MAJ Hadfield noted that, ‘when confronted with a list of previous clashes, she stated that she was simply unlucky to have come across one person in each new environment that had it in for her’ and, as such, you saw his recommendation ‘as stemming from an isolated 1-on-1 battle with a more popular adversary rather than a continuation of a pattern with her as a common factor’.  Thus, you continuedto see your problems as being external to yourself.  Similarly, CAPT Brown’s assessment also took account of your circumstances in Iraq since the issue was raised during your discussions at your first interview on 30 October 2006.  CAPT Brown’s review of your entire psychological file also enabled her to determine that you had a ‘pervasive history of interpersonal difficulties within the workplace and personality issues’.  Accordingly, it is considered that this aspect of your ROG cannot be sustained.

12.       You argued that the SCMA decision-maker gave insufficient weighting to the content of Mr Zemaitis’ report preferring to rely on the reports and opinions provided by MAJ Hadfield and CAPT Brown.  As part of the SOR of the TSD, the decision-maker advised that high weight had been afforded to the reports of MAJ Hadfield and CAPT Brown and salient points from each report were noted in the SOR.  Similarly, your response to the TN (which included Mr Zemaitis’ report) was afforded very high weight.  However, the decision-maker determined that Mr Zemaitis’ report should not be given precedence over the other two reports since ‘these two reports were conducted specifically to assess suitability for service on deployment, and continued service in the ADF and not generic personality/psychological assessments’.  This was a conclusion open to the decision-maker to reach after having taken into account each report.

13.       You provided a supplementary report from Mr Zemaitis following your receipt of the SOR for the TSD advising that his experience in assessing ADF personnel was extensive and lengthy and that his testing regime was not “generic”.  Accordingly, you argued that his opinion should be preferred to that ‘of a far less experienced and junior psychologist who failed to carry out the proper testing necessary to form a proper opinion as to my suitability’.  It is acknowledged that the methodologies used to asses you by CAPT Brown and Mr Zemaitis were different.  However, CAPT Brown’s course of action is supported given that she advised that your inability or unwillingness to participate cooperatively in the retention assessment process was likely to produce invalid results (your psychological file also provided ample support for this view).  Importantly, CAPT Brown was able to access your entire psychological file when formulating her opinion while some doubt exists as to whether Mr Zemaitis had similar access.

14.       Nevertheless, you appear to have placed great store in Mr Zemaitis’ opinion that you were not suffering from a psychological or psychiatric disorder and therefore considers you were suitable for retention in the ADF.  However, DI(A) PERS 159-1 – PULHEEMS Employment Standards advises that many people are temperamentally unsuited to Army life and that this unsuitability may not be directly related to psychotic condition.  In such cases, they will not become effective soldiers and should be recommended for administrative discharge.  In this regard, some personality traits, attitudes, values, and the like exist that would make assimilation into the military problematic, including those mentioned by the psychologists and psychiatrists you have seen throughout your career to date.  Thus, your reliance upon the lack of a formal diagnosis as a defence against discharge is not supported.

15.       You provided several character references as part of your response to the TN and your ROG arguing that they supported your retention thus contradicting CAPT Brown’s recommendation that should be given great weight.  The decision-maker noted that your character references enclosed with your response to your TN were supportive of your performance and retention.  However, it was also noted that the references were provided by personnel from your previous chain of command and supportive elements in Baghdad.  As such, the decision-maker considered that these reports need to be weighted against the absence of support from your current chain of command and the non-recommendation for retention from your CO.  Furthermore, I have also weighted these character references against the determination of your CO that you should RTA early.

16.       You have provided two additional character references as part of your ROG’ both are supportive of you and your retention.  These are acknowledged.  However, your psychological file indicates that you have the capacity to maintain appropriate standards of workplace behaviour for a period of time. Similarly, you have a long history of interpersonal difficulties, alleged harassment and equity-type complaints with evidence to suggest that these behaviours are more likely to manifest in situations where you are under pressure or are feeling stressed, for example where your everyday stress coping mechanisms become overwhelmed.  In this regard, with the current operational tempo and general conditions of service, these stress-free periods may remain the exception rather than the rule for the foreseeable future.  Further, I consider that your propensity to externalise blame, and your associated unwillingness or inability to adopt change strategies recommended by psychology and others, suggests that you may continue to experience these problems.

17.       You submitted a copy of your most recent Soldier Performance Appraisal Report (PAR) contending that it confirmed your suitability for continued service in the ADF.  However, since this PAR was incomplete, a completed PAR was provided by SCMA.  It indicated that you were performing at a satisfactory level across each of the performance dimensions.  Nevertheless, as previously noted, you are capable of maintaining appropriate standards of workplace behaviour for a period of time and it is when you are under pressure or feeling stressed that your adverse behaviours are more likely to appear.  Accordingly, I have taken these aspects into consideration when reviewing your PAR.

18.       You argued that the decision-maker had taken into account an irrelevant consideration by referring to your assessment of non-deployability to East Timor in 2002 which you contended had been overturned by the “supportive” report written by Ms Detering to support your retention in the ARA at that time.  As part of the SOR for the TSD, the decision-maker afforded very high weight to the inherent service requirements (DI(A) PERS36-3 – Inherent requirements of service in the ADF refers) and considered that you were incapable of meeting these requirements.  This conclusion appears to have been drawn from MAJ Hadfield’s report where he recommended that you were not suitable to remain on deployment and also noted a previous recommendation of non-deployability in 2002 (ie to East Timor).  While you have referred to Ms Detering’s report, this was not available to either MAJ Hadfield or the decision-maker since you did not provide a copy until 8 November 2006.  In any event, having now received this report, it did not specifically address your deployability rather it could not account for another psychologist’s findings regarding your psychological condition and supported your continued service.  In any event, your level of deployability is a matter for the Army rather than an assessment given by a civilian psychologist.  As such, it is not considered that the decision-maker considered irrelevant material.

19.       As part of your CO’s response to your ROG, you were provided a copy of the Initial Review Advice by the Directorate of Complaint Resolution (CR).  Subsequently, you contended that your CO had failed to consider Mr Zemaitis’ supplementary report and provide reasons as to why his opinion that supported your retention was not preferred to those of the two Army psychologists.  Thus, given CR’s concerns regarding the CO’s proposed course of action, you argued that ‘a fair minded observer appraised of the matter might entertain a reasonable apprehension [of bias] that my unit had already made up its mind to reject my redress of grievance regardless of the merit of the matters raised by me.  In these circumstances I submit that the decision is wrong at law’.

20.       The CR document is not usually provided to the complainant except through a Freedom of Information (FOI) application. Nevertheless, the advice provided by CR related to the CO’s proposed course of action; that is, she was waiting for legal advice from CR, determining that a formal investigation was not required, and that your ROG was not upheld.  Given the latter statement, and based on the information available to CR at that time, CR considered that all relevant material may not have been considered before that decision and advised CO 10 FSB to obtain a SOR from the decision-maker if it was considered that there was insufficient evidence to support the termination decision.  Subsequently, the CO was then required to determine whether the ROG had merit according to the guidelines provided by CR.

21.       Accordingly, on 14 November 2007, CO 10 FSB sought a SOR from SCMA, and the TSD was provided to you on 12 February 2008.  As such, and notwithstanding your contention of bias (based on CR’s initial advice), it is considered that CO 10 FSB was able to demonstrate her impartiality by her preparedness to seek further information from SCMA prior to making a decision on the ROG.  While CR initially held some doubts about the appropriateness of CO 10 FSB’s proposed course of action regarding your ROG, these were resolved with the actions taken subsequent to CR’s advice.  Accordingly, it is not considered that a contention of bias (whether real or apprehended) can be sustained.

22.       As part of your CO’s response to your ROG, you were provided with a copy of the Quick Assessment (QA) conducted on 17 September 2007.  This indicated that (former) CO 10 FSB had sought the expert opinion of the Officer Commanding Psychology Support Service – Northern Queensland (OC PSS-NQ) prior to responding to your SOR for retention.  Subsequently, you argued that you had been denied natural justice since you had not had opportunity to comment on the expert advice provided to your former CO by the senior psychologist PSS-NQ as part of the ROG process.  The QA report is not normally provided to the complainant unless requested under a FOI application.  However, in regards to the expert advice, you were first advised by (former) CO 10 FSB on 20 April 2007, as part of his response to your SOR for retention, that he had sought advice from the OC PSS-NQ prior to making his recommendation to SCMA on your retention since he did not have expertise on psychological behaviours and assessments.  On 26 April 2007, you acknowledged receipt of (former) CO 10 FSB’s response to your SOR and indicated that you had read and understood the contents; this included the advice that your CO had sought expert opinion.  I note that no request for, or challenge to, the advice was made by you at that time.

23.       Nevertheless, it is considered that the advice sought from OC PSS-NQ was provided to (former) CO 10 FSB for his consideration prior to making a recommendation to SCMA in regard to your retention or otherwise.  As such, OC PSS-NQ’s advice was not provided to, or considered by the original decision-maker prior to him determining that you should be discharged.  As such, and given there was no new adverse material provided by (former) CO 10 FSB in his recommendation to SCMA, it is considered that there has not been a breach of procedural fairness.

24.       Pursuant to D(P)R 87(1)(e), a member’s service may be terminated if that member is not suited to be an enlisted member of the Defence Force.  In this regard, SO2 SEPARATIONS is an authorised delegate of CA and is therefore able to make determinations regarding the suitability of a member for retention in the Defence Force.  Given your TN and its supporting evidence, it is considered reasonable for SO2 SEPARATIONS to have determined that you should be discharged.  In reaching this decision, SO2 SEPARATIONS had given due consideration to the merits of your case and to your submissions, and it was in accordance with the policy provisions and the principles of natural justice.  Furthermore, there were no procedural irregularities that would require the decision to discharge you to be overturned.  Accordingly, I have advised SCMA to initiate discharge action as soon as administratively possible.

25.       If you have a complainant about the administrative processes associated with my decision, or the handling of your ROG, or if you consider that the process has been too slow, you can request the Defence Force Ombudsman (DFO) to investigate the matter.  A brochure explaining the role of the DFO is enclosed.  If you decide to pursue this option, you should contact the DFO personally, informing your OC in writing of your actions.