Federal Court of Australia

Fulton v Chief of the Defence Force [2022] FCA 1582

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    Costs are reserved.

THE COURT NOTES THAT:

3.    The parties are to liaise in an endeavour to agree orders as to costs or, if not agreed, to prepare draft minutes of order setting a proposed timetable for the filing of short written submissions on the question of costs.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    The applicant, Heath Fulton, served as a member of the Royal Australian Air Force Active Reserve between 3 October 2002 and 12 August 2004, and as a permanent member in the Royal Australian Air Force (RAAF or Air Force) from 20 January 2005 until 20 January 2021.

2    The applicant seeks judicial review of the decision made by a delegate of the respondent, the Chief of the Defence Force (CDF), to terminate his service in the Australian Defence Force (Defence Force) with effect from 20 January 2021, pursuant to reg 24(1)(c) of the Defence Regulation 2016 (Cth) (the Termination Decision or TD). That decision was made on the ground that the retention of his service was not in the interests of the Defence Force.

3    The application for judicial review is brought pursuant to ss 5(1)(a) and (e) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). The applicant seeks orders pursuant to s 16 of the ADJR Act relevantly quashing the Termination Decision and directing the respondent to reinstate his commission at the rank of Flight Lieutenant and service with the RAAF as if his service had not been terminated. Orders allowing the application for an extension of time were made by consent on 23 August 2021.

4    Four issues arise on the second amended originating application, namely:

(1)    whether, in all the circumstances, the Termination Decision was vitiated by a breach of the rules of natural justice on the ground that the applicant was not given sufficient time to formulate his response and obtain evidence (ground 1);

(2)    whether the delegate erred in failing to take into account relevant considerations, namely: the applicant’s mental health, his service, his career annual reports, and his response to the termination notice issued on 4 August 2020 pursuant to reg 24(2) of the Defence Regulation (Termination Notice or TN) (ground 2);

(3)    whether the delegate erred in taking into account an irrelevant consideration, namely, a traffic offence where no conviction was recorded, contrary to s 12(3) of the Penalties and Sentences Act 1992 (Qld) and s 85ZW(b)(ii) of the Crimes Act 1914 (Cth) (ground 3); and

(4)    whether the delegate erred in misdirecting himself as to the requirements of reg 24(1)(c) of the Defence Regulation (ground 4).

5    Finally, I note that the hearing of this application was delayed due to the COVID-19 pandemic and associated lockdowns, given that the parties considered, and I accepted, that it was necessary for the matter to proceed by way of an in-person hearing.

2.    THE APPLICATION FOR AN ADJOURNMENT

6    On Friday 9 September 2022, the applicant filed an interlocutory application seeking leave to further amend the amended originating application for judicial review, orders for discovery, and an adjournment of the trial listed two business days hence on Tuesday 13 September 2022. Save for the proposed amendments to grounds 1(c) and 2(d) of the draft second amended originating application, the amendments and other orders were opposed by the respondent.

7    The proposed amendments which were contested sought to raise entirely new issues, namely that the delegate for the respondent, Wing Commander Nelson, as the decision-maker:

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

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

8    The application was supported by an affidavit affirmed by the applicant on 9 September 2022. In his affidavit, the applicant deposed to having requested copies of audit trails from the Defence Force record management system for documents pertaining to his Termination Notice and Termination Decision, the correct version of which he identified on 21 December 2021, and his detailed analysis of the alleged involvement of others in the decision-making process and alleged lack thereof by the decision-maker. The applicant also deposed to his solicitors having sent a letter on 7 September 2022 to the respondent’s solicitors summarising his concerns and asking the respondent to immediately disclose documents which it was alleged they had failed to disclose in relation to the decision-making process. The letter also foreshadowed the applicant’s intention to seek leave to rely on further grounds of review. The affidavit also annexed a letter of reply from the respondent’s solicitors dated 8 September 2022 explaining why it rejected the assertions made in the letter from the applicant’s solicitors, and declining to provide the documents sought given, among other things, the applicant’s apparent delay in raising the issues, the absence of any order requiring production of the documents now sought, and the proximity to the hearing date.

9    The applicant also relied upon a further affidavit also affirmed by him on 9 September 2022 in which he sought to explain the delay in raising the new grounds of judicial review. Key features of that evidence are as follows:

(1)    in early November 2021, the applicant submitted a freedom of information request to the Department of Defence seeking production of, relevantly, the audit trail of the Termination Notice and Termination Decision created and saved on the relevant software system, Defence Objective;

(2)    he received all of the documents sought on 25 November 2021 which he converted into chronological order;

(3)    the audit trail revealed that many people had worked on the Termination Notice and Termination Decision;

(4)    while the applicant emailed the audit trail to his solicitors, it was close to Christmas and he was stuck in Adelaide due to the COVID-19 pandemic and stated that he was therefore “was unable to properly meet with [his] solicitor to discuss and consider the audit trail”;

(5)    the applicant returned to Brisbane in late February 2022 but, due to the ongoing COVID-19 pandemic, he decided to delay any meeting with his solicitor, and also became further involved in the coronal inquest and the police investigation into his mother’s disappearance;

(6)    “[t]he first available opportunity to meet to discuss about the audit trail with [his] solicitor was in late June 2022”, but he could not further consult with his barrister and solicitor in July 2022 because his barrister was due to be away for two weeks in August “so there wasn’t enough time to make an appointment to consult with both of them”; and

(7)    “[o]n Saturday, 3 September 2022, whilst I maintain my legal professional privilege, upon my further discussion with my Counsel and my solicitor, I have decided to raise additional grounds of review for my application. This was the very first opportunity where I have been able to discuss in detail about the audit trail records with my Counsel and solicitor.”

10    Following an urgent hearing on 9 September 2022, I refused the interlocutory application save for the amendments to the amended originating application which were not opposed, and indicated that I would provide brief reasons in my reasons for judgment on the substantive application for so ruling. Those reasons follow.

11    The power of the Court to grant an adjournment is discretionary, to be exercised having regard to the objectives in s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act): Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 (Luck (FCAFC)) at [42]. In Luck (FCAFC), the Court noted at [44]:

In Aon Risk Services Australia Pty Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27, the plurality of the High Court recognised four matters which should, in the circumstances of that particular case, have been taken into account by the Court when exercising its discretion whether to grant an adjournment so as to allow substantial amendments to be made to the statement of claim. Those factors were: the explanation for the adjournment sought (at [108]), the parties’ choices to date in the litigation (and the consequences of those choices) (at [112]), the detriment to other parties, and the detriment to other litigants in the Court (at [114]).

12    The applicant’s counsel acknowledged that the application was very late but submitted that the justice of the case required his client to be able to advance his case. He also sought to distinguish the decision in Aon Risk Services Australia Pty Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 on the ground that in contrast to Aon Risk, this was not a case where the trial was set down for four weeks and an application to amend the pleadings was made after the trial had commenced. The applicant submitted that in the present case the trial had not yet commenced, and further, he had provided an explanation for the delay. It was also said that the new issues sought to be raised were arguable and important.

13    The respondent submitted that, applying the principles in Aon Risk, the Court should refuse the application for an adjournment. I agreed for the following reasons.

14    First, the trial was listed on 4 May 2022 for a two day hearing in Brisbane on 13 and 14 September 2022. However, the application for adjournment was made only on the Friday before the commencement of the trial the following Tuesday, effectively therefore two business days before the trial.

15    Secondly, the applicant has had more than a sufficient opportunity to formulate and finalise his application for judicial review and to prepare for the hearing, and indeed had already amended his application in August 2021.

16    Thirdly, the applicant’s explanation for the delay in making the interlocutory application is not sufficient. According to the applicant’s own evidence, he met with his solicitor in June 2022 but failed to raise the issues arising from his analysis of the audit trail until 3 September 2022. That was a choice made by him for which no sufficient explanation has been given.

17    Fourthly, I accepted the respondent’s submissions that there were real concerns about the arguability of the proposed new grounds. Not only did the proposed pleading manifestly fail to plead with any real particularity, the very serious allegations of actual bias, lack of impartiality, and dictation, but, as counsel for the respondent submitted, there was also nothing in the material relied upon by the applicant which even approached establishing an arguable case of actual bias or dictation. Furthermore, the fact that the relevant military policy requires a division between the decision-maker and the person who issues a Termination Notice does not mean that the latter cannot have any involvement in the process leading to the decision.

18    Fifthly, the orders sought for discovery in relation to the new proposed grounds were very wide ranging and likely, as the respondent submitted, to be expensive and to substantially delay the trial.

19    Finally, under s 37M of the FCA Act, the Federal Court Rules 2011 (Cth) must be applied in a way that best promotes the overarching purpose of facilitating the just resolution of disputes, relevantly, “as quickly, inexpensively and efficiently as possible”. Obligations are also imposed directly on the parties to a civil proceeding and their legal representatives to conduct the proceeding in a way that is consistent with this overarching purpose, as articulated by s 37N. In this case, to accede to the amendments, the application for discovery, and the adjournment would have prejudiced the respondent which was ready to proceed to trial the following week, and would have significantly delayed both the trial and the final resolution of the matter. It would further mean that the Court’s resources would have been wasted in preparing for the hearing of the trial and making arrangements to travel to Brisbane for the hearing, with consequential impacts on the availability of the Court’s resources for the hearing of other matters. In all of the circumstances, granting the interlocutory application would not, therefore, have promoted the overarching purpose of the FCA Act.

20    Accordingly, I refused the applicant’s interlocutory application.

3.    EVIDENCE

21    Mr Fulton relied upon his affidavits affirmed on 18 January 2021, 22 January 2022, 20 May 2021 (Fulton 20 May affidavit), 24 May 2021 and, in reply to the respondent’s evidence, 6 September 2022, save for those parts of the affidavits which were the subject of rulings are upheld by me and objections which were conceded by the applicant. Following the hearing, the applicant provided copies of these affidavits with the agreement of the respondent which applied these rulings by redacting those parts of the affidavits which were not admitted.

22    The respondent relied upon the following affidavits in chief:

(1)    the affidavit of Julie Adams, Group Captain in the RAAF (now Air Commodore), affirmed on 19 November 2021 (Adams affidavit) which:

(a)    annexed a copy of Chapter 9 of the Air Force Personnel Standing Instructions providing details of the Air Force performance appraisal system;

(b)    explained that Mr Fulton’s “ADO Service Record”, providing detailed information about his service, was included as enclosure 18 to the Termination Notice and in the respondent’s bundle of material before the delegate filed in this proceeding on 14 April 2021 (RB);

(c)    explained that Mr Fulton’s posted position required him to have a NV2 (Top Secret) security clearance; and

(d)    gave evidence that, based on her knowledge of the Employment Process for Operations Officers (OPSO), every OPSO position for the ranks of Flying Officer to Wing Commander requires at least an NV1 (Secret) security clearance, and some OPSO positions require an a NV2 (Top Secret) security clearance or a PV (Positive Vetting) security clearance; and

(2)    the affidavit of Michael Small, RAAF Squadron Leader, affirmed on 16 August 2022 (Small affidavit) who, at the time of affirming his affidavit, was posted to the Personnel Branch of the RAAF where he held the position of Air Operations Officer 3. His evidence was directed to the question of whether the applicant had a waiver from complying with the Physical Fitness Test (PFT) component of the Individual Readiness (IR) requirements for members of the Air Force.

23    These affidavits were admitted without objection and both deponents were cross-examined.

24    The respondent also tendered his notice to admit filed on 1 November 2021 (NtoA) (Exhibit R-1) and the bundle of materials before the delegate (filed in 3 parts) (Exhibit R-2).

4.    FACTUAL BACKGROUND

4.1    The applicant’s service

25    The applicant commenced his service with the RAAF as an Officer Cadet and was promoted in April 2011 to Flight Lieutenant. He served predominantly as an Operations Officer until termination of his service.

26    He was posted in Darwin from 2011 to 2016 as part of Operation Resolute, during which time he was posted to Learmonth on multiple rotations. He was also deployed as part of the escort for the Governor-General to East Timor in 2008 and to the Pacific Islands Forum in August 2019. I accept the applicant’s evidence that he received a waiver for the PFT component of his IR assessment for both of these deployments. While Squadron Leader Small testified that he was only able to locate one waiver on the applicant’s file in the software filing system known as Objective which was for the Pacific Islands Forum, he accepted that particular units could have different places where the waivers are stored.

27    As part of Operation Resolute, the applicant was involved with the interception of boats arriving illegally to Australia and with border protection generally.

28    On 25 May 2020, the applicant made a complaint of unacceptable behaviour (unacceptable behaviour complaint or UB) in which he alleged that he had been bullied and harassed by his commanding officer of 382 Squadron (RB, Part C at 414).

4.2    The Termination Notice issued on 4 August 2020

29    On 4 August 2020, the applicant was issued with the Termination Notice pursuant to reg 24(2) of the Defence Regulation by a delegate of the CDF, Squadron Leader Scarfe, Deputy Director Administrative Sanctions and Medical Review, Directorate of Personnel Air Force. The Termination Notice gave the applicant notice that the delegate was proposing to terminate his service in the Defence Force (RB, Part A at tab 2).

30    Under the heading “Reason”, the Termination Notice stated at [3]:

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

31    The Termination Notice then described the facts and circumstances which the decision-maker would consider in deciding whether or not to terminate the applicant’s service, as follows:

(1)    the applicant’s demonstrated inability to meet minimum individual readiness as required by Defence and Air Force policy by reason of his failure to pass the PFT despite being medically fit, and previous administrative sanctions as detailed in Annexure A to the Termination Notice (TN at [6]);

(2)    the applicant’s unsuitability to be an officer in the Air Force, based on:

(a)    his “poor attitude and poor performance resulting in administrative action” as described in Annexure B and Enclosures 7 and 27;

(b)    his failure to meet the standards expected of him including the fact that, despite his nine-year seniority as a Flight Lieutenant, he had been assessed as having potential for his current rank only; and

(c)    his demonstrated “ongoing flawed judgement, poor conduct, and a disregard for Air Force fitness standards” (TN at [7]-[9]); and

(3)    the applicant had fallen short of the standard of behaviour and performance expected of him, with the following policies being identified as of relevance:

(a)    inherent requirements of the service: Military Personnel Policy Manual (MILPERSMAN), Part 2 Chapter 1, “Inherent Requirements of Service in the Australian Defence Force”;

(b)    Air Force values and in particular, “integrity” which is defined as “Air Force People have the courage to do what is right. Our people are honest, ethical and demonstrate sound judgement. We hold ourselves and others to account”; and

(c)    the increased responsibility which accompanies commissioned officer rank to adhere to expected behaviours and display values-based leadership.

32    I provide further detail as to the facts and circumstances underlying the concerns identified in the Termination Notice later in these reasons, in the context of addressing the specific grounds of additional review.

33    The Termination Notice also invited the applicant to submit a written response within 14 days of receipt of the notice as to why his service in the Defence Force should not be terminated. The Termination Notice further advised that the applicant could apply for an extension of time if he considered that he would be unable to submit his response in the time provided, and that any such application should clearly explain why the applicant believed the extension was necessary. In terms of the content of any response to the Termination Notice, the notice advised that (at [16]):

Content. In your response, you should consider addressing the facts and, in particular, whether they support a conclusion that the reason for terminating your service (that your retention is not in the interests of the Defence Force) has been established. You should also consider addressing other forms of administrative action available to the decision maker, short of termination. Any additional information (including documents or statements) that you wish the decision-maker to consider must be relevant to the decision and attached to your response.

(Emphasis added.)

4.3    The applicant’s requests for an extension of time

34    On 7 August 2020, the applicant made a request for an extension of 90 days within which to provide his written response to the Termination Notice (RB, Part C at tab 53). The applicant submitted that he was unable to properly respond within the 14 day timeframe, relying on the following considerations:

(1)    the Termination Notice comprised over 350 pages and spanned documents between 2003 and 2020;

(2)    the alleged disparity in the allocation of time for generating the Termination Notice vis-à-vis the time within which the applicant was to respond was said to raise a question as to the fairness of the process;

(3)    while the applicant had been immediately approved to receive Defence Legal Support, the first opportunity he had to conduct a conference with his Reserve Legal Officer was not until six days after receipt of the Termination Notice;

(4)    the Termination Notice was issued during the COVID-19 pandemic which may result in delays and impact on the applicant’s ability to source evidence from other individuals and organisations; and

(5)    the case was complex, as a result of which considerable time was said to be necessary to gather the evidence “in order to provide the complete and holistic factual response”.

35    On 11 August 2020, Squadron Leader Scarfe granted the applicant an extension of 14 days to provide his written response to the Termination Notice, that is, until 2 September 2020 (RB, Part C at tab 54).

36    On 28 August 2020, the applicant wrote requesting that the administrative processes in relation to the termination of service be suspended pending resolution of two separate processes, namely: the applicant’s unresolved unacceptable behaviour complaint, and the applicant’s proposed petition under s 153 of the Defence Force Discipline Act 1982 (Cth) (DFDA) in relation to his conviction of a disciplinary offence under that Act. With respect to the first of these processes, the applicant submitted that he had received a response to his unacceptable behaviour complaint on 21 August 2020, being 11 days (only) before the due date for his response to the Termination Notice, and he had already submitted a redress of grievance seeking further review of his unacceptable behaviour complaint. With respect to the DFDA petition, the applicant submitted that it would be premature to proceed to any decision as to the termination of his service in circumstances where he was preparing a petition which may result in a quashed conviction, thus affecting the weight which the decision-maker could attach to evidence regarding his behaviour.

37    On 1 September 2020, the applicant’s commanding officer, Wing Commander Wheal, decided to suspend the applicant from duty with full pay pursuant to reg 28 of the Defence Regulation. The applicant was notified that his suspension was not a punishment or sanction, but rather was done to give him “the time and space required” to prepare his written response to the Termination Notice.

38    On 4 September 2020, Squadron Leader Scarfe granted the applicant a further extension of 7 days to prepare his written response to the Termination Notice, that is, until 9 September 2020 (RB, Part C at tab 57). In his letter granting the extension, Squadron Leader Scarfe explained as follows:

In your application to me to cease termination action, you raised four key points as justification. My response and rationale to these points are as follows:

1.    You received the response to your Unacceptable Behaviour [UB] complaint 11 days prior to the Termination Notice (TN) Response submission date: Given that you have been stood down from your duties to enable you to work exclusively on your TN Response, I deem you have more than sufficient time to and opportunity consider and address any relevant matters in the UB investigation outcome documentation without a further extension.

2.    As you are unsatisfied with the outcome of your UB complaint, you intend to submit a ROG[.] You wish to have the ROG resolved prior to responding to the TN: While you have every right to submit a ROG, there is no requirement to suspend the TN process to finalise the ROG. The UB Fact finding was not referenced in the TN and the termination process and any potential ROG are two entirely separate processes that can run in parallel. Importantly from a procedural fairness perspective, you are able to highlight any concerns you have with the UB investigation in your TN Response. These points can then be considered independently by myself and if necessary, the termination imposing authority.

3.    You plan to petition the outcome of the Summary Authority trial review. You wish to have this resolved prior to submitting your response to the TN: The TN is based on conduct and performance that span the length of your career. The conduct that resulted in DFDA action being taken against you is only one small consideration in the TN. Further, the TN does not reference the DFDA proceedings or outcome in anyway [sic] and the TN delegate would only become aware of the DFDA action if you choose to raise it in your response. Also, as you point out in your application, decisions made under the DFDA and for administrative sanctions are subject to different burdens of proof, with Admin Sanction decisions requiring the lower burden of proof. It is therefore appropriate that administrative sanction and DFDA decisions are made independently, noting a decision under one process is not a predictor or mitigation for the other. For these reasons, there is no requirement to delay the Termination action taken against you while you contest the DFDA outcome.

4.    You have requested documentation regarding your UB complaint (via Sentinel) and DFDA action. These had yet to be supplied to you: Documents relating to the DFDA petition are not applicable as explained above, however, I acknowledge the documentation related to the Sentential report (UB complaint) may be. I have confirmed with SQNLDR Wilson that you now have access to these additional documents. The extension to 09 Sep 20 will give you sufficient time to consider and incorporate them into your TN response if you deem it appropriate. Again I note you have been stood down to focus exclusively on this task. Given that you already have physical access to every document that is relied on in the TN and all the allegations made against you; you now have the opportunity to provide a full and comprehensive response to the TN.

(Emphasis added.)

4.4    The applicant’s response to the Termination Notice

39    The applicant submitted his 17-page written response to the Termination Notice on 9 September 2020 (applicant’s response to the Termination Notice) (RB, Part C at tab 51). In his response, the applicant, among other things, repeated his allegations of procedural unfairness and included a number of additional grounds, namely that: he lacked access to relevant documentation, he was unable to obtain a medical report from his treating medical specialist within the response period, and he had been unable “to have returned all of the character references (through my RAAF working career) needed to show that I have been performing to a high standard as a commissioned officer”. The applicant also raised a complaint with respect to reliance in the Termination Notice upon the traffic offence because no conviction was recorded in relation to the offence.

4.5    The decision of the delegate terminating the applicant’s service

40    A delegate of the CDF, Wing Commander Nelson, issued a written decision with reasons on 3 December 2020 in which he decided to terminate the applicant’s service in the Defence Force with effect from 20 January 2021, pursuant to reg 24(1)(c) of the Defence Regulation on the ground that the applicant’s retention was not in the interests of the Defence Force (RB, Part A at tab 1).

41    In his reasons, the delegate first set out his conclusions on the relevant facts and circumstances on the balance of probabilities based on the information provided in the Termination Notice, the applicant’s response, and the material referenced by the applicant in his response. With respect to the latter, the delegate noted that, while the applicant had not provided copies of the material referenced in his response, the delegate had taken the time to collect and review that material (TD at [4]).

42    The delegate’s reasons relevantly included the following findings.

43    First, the delegate rejected the applicant’s complaints that he had not had sufficient time to prepare his response, finding that he was satisfied that the applicant had been afforded “more than the minimum time in which to draft [his] response and obtain references, and that [he] had access to the complaint [ROG] outcome and references and legal review in sufficient time.” (TD at [22(b)]). The delegate also rejected the applicant’s complaint that he did not have access to evidence which would have allowed him to “properly respond to the allegations”, finding that:

you have not provided any further comment or explanation of what relevant documentation you are referring to. Based on the information and evidence before me, including the fact that all Enclosures of your TN were included in the document pack provided to you, I do not assess your assertion as credible.

(TD at [22(c)].)

44    Nor did the delegate accept the applicant’s submission as to his inability to access a medical report from a person described by him as his “treating medical specialist”, finding that:

You do not then expand on whom this medical specialist is, what they are treating you for, nor what value this purported medical evidence has to your response. Furthermore, you do not provide any evidence or information to support an assertion that you tried to obtain this information or that it could not be obtained in your response timeframe.

(TD at [22(d)].)

45    Secondly, the delegate rejected the applicant’s claim that the TN should await the outcome of the DFDA proceedings and the applicant’s unacceptable behaviour complaint.

46    Thirdly, with respect to the applicant’s traffic offence, the delegate found that in coming to the adverse attention of civilian police, the applicant had fallen below the expected standard of an RAAF member and officer. The delegate further found that his failure to notify his commanding officer also fell below the expected standard and created an unacceptable risk to the Defence Force’s reputation (TD at [22(m)]).

47    The delegate concluded that termination of the applicant’s service “is the only appropriate course of action as [his] retention is not in the interests of Defence” based on the “extensive evidence in the TN, which indicates that [he] pose[s] an unacceptable risk to the morale, welfare and discipline of the Defence Force”, the length of time that the applicant had to rehabilitate, and the fact that his poor performance and attitude were evident when he joined (TD at [27], see also at [29]-[36]).

5.    DISPOSITION OF THE APPLICATION

5.1    The alleged breach of natural justice (grounds 1(a), (c) and (d))

5.1.1    Relevant principles

48    The relevant legal principles with respect to an alleged breach of natural justice or procedural fairness are not in issue and were conveniently summarised by Griffiths J in Coutts v Close, Assistant Commissioner of Australian Federal Police [2014] FCA 19, on which the applicant relied. In particular, his Honour explained at [112]-[114] that:

… there are no universal rules governing the content of the requirements of natural justice or procedural fairness and the content of those requirements can vary according to the particular statutory framework [and other] relevant circumstances. That basal principle is reflected in the well-known following passage from Kitto J’s judgement in Mobil Oil [Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475] at [13] on 504 (citations omitted):

…By the statutory framework I mean the express and implied provisions of the relevant Act and the inferences of legislative intention to be drawn from the circumstances to which the Act was directed and from its subject-matter…As Tucker LJ said in Russell v Duke of Norfolk…, in a passage approved by the Privy Council in University of Ceylon v Fernando…, there are no words which are of universal application to every kind of inquiry and every kind of tribunal: “the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth”…What the law requires in the discharge of a quasi-judicial function is judicial fairness. That is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances….

…

Subject to any relevant statutory modification or variation, it is well-established that a person liable to be directly affected by an administrative decision to which the rules of procedural fairness apply must be given an opportunity of putting information or submissions to the decision-maker. For that right to have substance, the person affected must be given an opportunity of ascertaining the relevant issues, which requires the decision-maker to identify for the person affected any issue critical to the decision which is not apparent from the nature of that decision or the terms of the statute under which it is made. The obligation extends to informing the affected person of the nature and content of adverse material that is credible, relevant and significant obtained from sources other than the affected person, as well as of any adverse conclusion reached by the decision-maker in respect of which the affected person had no notice. The affected person must be given an adequate opportunity to address such new material and/or any unexpected conclusions by further information and submission … Ultimately, the fundamental issue here is whether the applicant was given a reasonable opportunity to address issues relevant to his interests.

(Citations omitted.)

49    Thus, in order to ascertain what is required to comply with procedural fairness in a given case, it is necessary to construe the legislation conferring power to make the decision in question: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [26] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ). Furthermore, it is sufficient if the applicant demonstrates that the denial of procedural fairness deprived him of the possibility of a successful outcome. As Emmett J observed in Ozepulse Pty Ltd v Minister for Agriculture Fisheries and Forestry [2007] FCA 1601; (2007) 163 FCR 562 at [58], “it is not a question of whether a court engaged in judicial review would have been persuaded by the response of the person affected: the question is whether the decision maker might possibly have been persuaded by the response of the person affected.”

50    As earlier mentioned, the power to terminate the applicant’s service was conferred by reg 24 of the Defence Regulation. Regulation 24(1) relevantly provides that:

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

…

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

51    While not exhaustive of the content of the decision-maker’s obligation of procedural fairness (as recognised in Chapter 2 of Part 10 of the MILSPERSMAN at [2.9]), the Defence Regulation also imposes certain specific procedural fairness requirements. Thus, reg 24(2) requires as a matter of procedural fairness that “[t]he member must be given notice of the termination and at least 14 days after the date of the notice to provide a written response.” Regulation 30 in turn provides that the notice must:

(a)     state that the action is proposed; and

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

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

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

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

52    Furthermore, as the respondent accepted, where a member provides a written response, the decision-maker is required to consider the response before making the decision, being a requirement which arises by implication from regs 24(2) and 30(2) of the Defence Regulation (respondent’s submissions (RS) at [33(d)]).

53    The purpose of the termination power in reg 24 is a disciplinary one. As the Full Court explained (by analogy) in Chief of Defence Force v Gaynor [2017] FCAFC 41; (2017) 246 FCR 298 at [95]:

Determining to end the service of an individual officer under reg 85 [of the Defence (Personnel) Regulations 2002 (Cth)] was one mechanism by which the Defence Force was able to maintain the tight and high standards of discipline necessary for any armed force: see Groves v Commonwealth (1982) 150 CLR 113 at 117-118 (Gibbs CJ), 130-134 (Stephen, Mason, Aickin and Wilson JJ); White v Director of Military Prosecutions (2007) 231 CLR 570 at [19] (Gleeson CJ), [52] and [61] (Gummow, Hayne, Crennan JJ); Haskins v Commonwealth (2011) 244 CLR 22 at [67] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

5.1.2    The alleged breach of natural justice on the ground that the applicant was given insufficient time within which to respond (grounds 1(a), (c) and (d))

54    There was no challenge made to the validity of the Termination Notice itself. Rather, the applicant asserts that he was denied procedural fairness because he was not given sufficient time within which to respond to the Termination Notice and, in particular:

(1)    to “formulate” his written response (ground 1(a));

(2)    to obtain “all relevant documentation” including an updated report from his treating medical specialist (ground 1(c)); and

(3)    to obtain character references (ground 1(d)).

55    In support of this ground, the applicant relied upon a number of alleged considerations, namely:

(1)    the Termination Notice sought to impugn the entirety of his service with the Defence Force spanning 18 years;

(2)    it was incumbent on the applicant to obtain all the relevant material over this period which may have been exculpatory and put it before the decision-maker;

(3)    no attempt was made by Wing Commander Nelson to obtain the relevant performance reviews or statements from the applicant’s supervisors during his deployment from 2011 to 2013;

(4)    the 2019 Personal Performance Report (PPR) found that the applicant was “suitable” for promotion;

(5)    there had been 15 PPRs conducted by 21 senior officers in the period from 2004 to 2019 from whom the applicant was required to obtain statements detailing their view of his service and whether his failure to complete the PFT affected his performance; and

(6)    the difficulties for the applicant were exacerbated by the failure to suspend the process until after the termination of his unacceptable behaviour complaint and dress code violation and “difficulties created by the COVID19 pandemic and his own PTSD”.

56    No denial of procedural fairness has been established.

57    First, while not determinative of the issue of procedural fairness, it was not in issue that the express procedural fairness requirements in regs 24 and 30 of the Defence Regulation were met in the present case. Indeed, the applicant was given a substantially longer period within which to prepare his response than the minimum required by reg 24(2).

58    Secondly, as Gleeson CJ held in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37], “[f]airness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice” (emphasis added). However, the applicant has failed to establish any practical injustice as a result of the refusal by the decision-maker to grant him any further extensions of time within which to prepare his response beyond the three week extension granted. Specifically, as the respondent correctly submitted:

In his Response [to the Termination Notice], the applicant did not specify:

(a)     which documents he says he was unable to access, why he could not access those documents in the 5-week period he had to prepare his response, and why the lack of access to those documents caused him detriment in preparing his written response; or

(b)     which medical specialist he intended to obtain a report from, why he could not obtain any such report within the 5-week period he had to prepare his response, and why the lack of any such report caused him detriment in preparing his written response; or

(c)     which persons he intended to obtain character [references] from, and why he could not obtain any character references at all within the 5-week period he had to prepare his written response (in circumstances where he did not submit any character references).

(RS at [36]; emphasis in original.)

59    Thirdly, for the following reasons, the applicant’s evidence in this proceeding also falls well short of establishing that he suffered a practical injustice as a consequence of being denied any further extensions.

60    With respect to [58(a)] above, the evidence of Air Commodore Adams establishes that it was open to the applicant to have sought copies of his PPRs if he had wanted to include those in this response. However, while the applicant’s evidence in this proceeding includes copies of his 2018 and 2019 PPRs, these were not included in his response and the applicant has in fact admitted that he made no request to obtain these documents before submitting his response to the Termination Notice (Fulton 20 May affidavit at [2] and [4]; NtoA at [1] and the admission in the applicant’s notice of dispute filed on 11 November 2021). No explanation is given for his failure to make any such request before submitting his response. Nor did the applicant give any evidence as to the relevance of these documents to the making of the Termination Decision and why he says that, if he had provided copies of them to the decision-maker, it is possible that a different outcome might have ensued.

61    With respect to [58(b)] above, the evidence in this proceeding was similarly deficient in explaining why any report from a medical expert could not have been obtained within the five week period.

62    With respect to [58(c)] above, the applicant’s evidence in this proceeding is that he received the more current of those references in the week before his response was due but did not include them (Fulton 20 May affidavit at [4]-[5]). The reasons which he gives for failing to include these references are that he “did not have the time available … to use them effectively or in the manner that [he] had envisaged” by quoting and relying on “key statements” in them to refute the allegations in the Termination Notice, and he did not believe that simply enclosing them would serve any “forensic purpose with the decision-maker who was quite likely not to read them in any event” (Fulton 20 May affidavit at [5]-[7]). Neither of these reasons establishes a breach of procedural fairness. Rather at their highest, they demonstrate merely that the applicant would have preferred to have more time to present material already in his possession in a way that he personally regarded as more likely to be persuasive, as opposed to establishing that the applicant was not afforded a “reasonable opportunity to address issues relevant to his interests” (as explained in Coutts in the passage quoted at [48] above). The last reason given by the applicant also ignores the fact that the decision-maker was required by law to consider any representations and material provided by the applicant in response to the Termination Notice and there is nothing to suggest that the decision-maker would have failed to comply with that duty if the applicant had provided the character references.

63    Fourthly, the applicant’s submissions merely asserted in a conclusory way that the applicant had various difficulties in responding to the Termination Notice and therefore that he should have been allowed further time in order to have a fair opportunity to respond. They fail to engage with the facts that:

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

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

(3)    the applicant had physical access to every document relied upon in the Termination Notice and was advised of all of the allegations against him (see RB, Part C at tab 57);

(4)    the applicant was in fact able to prepare a detailed written response responding to all aspects of the Termination Notice (as the respondent submits);

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

(6)    should he have so wished, the applicant had the opportunity to obtain the PPRs.

64    Furthermore, the applicant does not complain that he was given insufficient notice of the issues which he needed to address in his response.

65    In short, in all of the circumstances, no breach of procedural fairness has been established. The case is one where the words of Kirby J in Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at [38] are apt, namely:

Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.

66    Finally, insofar as the applicant submits that the delegate acted in breach of procedural fairness in failing to obtain copies of the applicant’s PPRs from his superior officers during his deployments, the submission is misconceived. As French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ observed in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 111 ALD 15 at [24], “[i]t is difficult to see any basis upon which a failure to inquire could constitute a breach of the requirements of procedural fairness at common law” (approving the position taken by Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 290). Nor does the Defence Regulation impose any such obligation upon the decision-maker. Rather, under the scheme established by the Defence Regulation for termination of service, the Termination Notice is intended to afford detailed notice to the member whose termination is under consideration of (among other things) the reason for the proposed termination and the facts and circumstances necessary for the member to prepare the written response. It is then for the member to respond. The onus, in other words, is clearly placed upon the member to explain why their service with the Defence Force should not be terminated and to put forward those materials upon which they rely for consideration by the decision-maker. This was also made clear in the Termination Notice itself which expressly stated (as earlier quoted) that: “Any additional information (including documents or statements) that you wish the decision-maker to consider must be relevant to the decision and attached to your response” (emphasis added).

5.2    The alleged breach of natural justice on the ground that the delegate failed to suspend the termination decision before finalisation of the redress of grievance (ground 1(b))

67    By ground 1(b), the applicant alleges that the Termination Decision was made in breach of natural justice because, relevantly, the decision was made before the finalisation of the applicant’s redress of grievance for a further review of his unacceptable behaviour complaint against his commanding officer.

68    The basis for ground 1(b) was not developed in the applicant’s written submissions in chief. However, in written reply at [13]-[15], the applicant submitted that the respondent’s failure to extend the time for the response to the Termination Notice until the redress of grievance application was finalised constituted a denial of natural justice, having regard to the following circumstances:

In May 2020, the Applicant lodged an unacceptable behaviour complaint against his Commanding Officer. After the complaint was investigated, the Applicant received an outcome of the investigation on 21 August 2020 but had very little time to consider the investigation outcome to determine if anything could be used in his response to the Termination Notice.

On 28 August 2020, the Applicant submitted a redress of grievance application against the outcome of the investigation of his unacceptable behaviour complaint against his Commanding Officer. In the Applicant’s application to the Respondent seeking suspension of the termination action, he expressly stated at paragraphs 2, 5 and 6 inter alia as follows:

“2. …    Pursuant to legal advice received, I have submitted a Redress of Grievance seeking further review of my unacceptable behaviour complaint. My complaint therefore remains extant and the complaint process set out in Ref E is not complete. In that the complaint is inextricably related to the grounds relied upon for Ref A, it would be pre-emptive or premature to proceed to any decision in relation to termination prior to the finalization of the redress of grievance. This would therefore be grounds for failure of the procedural fairness principle if the TN was to continue.”

“5. I have made multiple requests for documentation to be provided to me that relates to both my DFDA review Petition as well as my ROG for the decision on the UB complaint. As such directly impacts my ability to provide a response to the Termination Notice (see enclosed correspondence). In the absence of the relevant documentation I am not able to properly prepare a Petition nor am I able to properly respond to the Termination Notice. It is my submission that the non-provision of relevant documentation is a denial of procedural fairness.”

“6. In that I have lodged a redress and will be lodging a petition and that the outcome of both processes will be relevant to any decision regarding termination, I request that I be granted an extension to respond to Ref A until such time as both the redress and the petition are finalised.”

As explained at paragraphs 28 to 30 of the Applicant’s response to the Termination Notice, the Respondent’s failure to afford the Applicant additional time to enable him to obtain the necessary information (if any) from the redress of grievance application against the outcome of his unacceptable behaviour complaint against his Commanding Officer had hindered his ability to properly prepare his response. The information that the Applicant could have received from the redress of grievance application may have contained material that was exculpatory of the allegations contained in the Termination Notice.

(Emphasis added; citations omitted.)

69    The legend at the start of the applicant’s response to the Termination Notice explains that a reference to “Ref A” is a reference to “A. Termination Notice issued 04 Aug 20 (BP10051554)”, as opposed to the other issues such as the request for an extension of time within which to respond to the Termination Notice (Ref B).

70    In rejecting the applicant’s claim that the Termination Notice should await the outcome of the applicant’s unacceptable behaviour complaint and DFDA proceedings, the delegate found that:

Although I acknowledge your concerns, your DFDA proceedings were not presented as evidence alongside your TN and I have therefore determined them to have questionable relevance as to the matter of your termination. Further you have provided no evidence or further detail regarding your UB complaint. In the absence of any detail of the above claims, including their relevance to disputing or mitigating in any way the facts outlined to you in the TN, I have afforded them low weight in considering your termination.

(TD at [22(e)].)

71    This ground must also be dismissed for the reason that the applicant has failed to establish any denial of procedural fairness in preparing his response to the Termination Notice.

72    First, insofar as the applicant relies in submissions upon the fact that the DFDA process had not been concluded by the time of the Termination Decision, the submission is irrelevant. Despite the applicant having amended the pleadings twice, the originating application does not rely upon the DFDA process in support of the procedural fairness ground of judicial review or any other ground.

73    Secondly, the applicant did not explain in his submissions to the delegate or to this Court how the timing of the decision in relation to the unacceptable behaviour response meant that he lacked sufficient time within which fairly to prepare a response to the Termination Decision. As such, the applicant has not established a breach of procedural fairness on this basis. Furthermore, the applicant’s complaint ultimately appears to have focused upon the fact that the delegate had three months within which to make the termination decision, whereas the applicant was granted only 28 days within which to respond to the Termination Notice. However, the question of how much time the delegate had to reach a decision on whether to terminate the applicant’s service is irrelevant to the question of whether the failure to afford the applicant further time with which to respond to the Termination Notice was procedurally unfair.

74    Thirdly, the applicant merely asserted in his response to the Termination Notice that the unacceptable behaviour complaint was “inextricably linked to the grounds” which he wished to raise in response the Termination Notice, which was said to rely upon “claims based on the same questionable evidence”. As the delegate found, the applicant provided no evidence or further detail regarding the unacceptable behaviour complaint which could substantiate the alleged link between the Termination Notice and the unacceptable behaviour complaint. Nor is any such link apparent from the Termination Notice, which does not mention or reference the unacceptable behaviour complaint. As such, no error has been demonstrated in the decision-maker’s finding that he could afford the unacceptable behaviour complaint (and, for like reasons, the DFDA proceeding) only “low weight” in considering the applicant’s termination.

5.3    The alleged error in the decision-maker’s treatment of the traffic offence (ground 3)

75    Ground 3 of the second amended originating application asserts that the delegate took into account a traffic offence committed by the applicant for which no conviction was recorded, despite the delegate being prohibited from taking that offence into account by reason of s 85ZW(b)(ii) of the Crimes Act and s 12(3) of the Penalties and Sentences Act. The applicant alleges that, as a result, the Termination Decision was an improper exercise of the power by reason of the delegate taking into account an irrelevant consideration.

76    Section 85ZW is found in Part VIIC, Division 3 of the Crimes Act and provides that:

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

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

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

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

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

77    Section 85ZV(2)(b) relevantly provides that, subject to Division 6, but despite any other Commonwealth law or any Territory law, if a person’s conviction of a state offence is spent, the person is not required to disclose the fact of the charge to any Commonwealth authority for any purpose.

78    Section 85ZM in turn defines “conviction” to mean relevantly that the person has been charged with, and found guilty of, the offence but discharged without conviction (s 85ZM(1)(b) of the Crimes Act). A person’s conviction is spent if the person was not sentenced to imprisonment for the offence and the waiting period for the offence has ended (s 85ZM(2)(b) of the Crimes Act).

79    The term “Commonwealth authority” includes the Defence Force (s 85ZL of the Crimes Act).

80    Section 12 of the Penalties and Sentences Act provides:

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

(2)    …

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

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

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

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

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

81    Among other things, the Termination Decision expressed, as earlier explained, a concern that the applicant had fallen short of the standard of behaviour and performance expected of him, including the increased responsibility accompanying commissioned officer rank to adhere to expected behaviours and display values-based leadership. With respect to this matter, the Termination Notice further explained that (at [11]):

Poor Conduct. In contrast to the obligations described above, you have demonstrated an inability to adhere to the required standards of behaviour, and you have failed to hold yourself to account. You have demonstrated poor judgement resulting in unsatisfactory behaviour both inside and outside the workplace. You have on two occasions come to the adverse attention of Queensland Police. Furthermore, since you returned to duty on 05 May 2020 (after a period of extended leave) you have displayed an attitude of disobedience with your performance and behaviour declining significantly. These incidents are detailed at Annex C. The effects of this misconduct are not confined to yourself, but impacts the wider organisation, adversely affecting the morale and discipline of those around you, and you placing the reputation of the Defence Force at risk.

82    The two incidents referred to in this passage, in which the applicant was said to have come to the “adverse attention of Queensland Police”, were detailed in Annexure C to the Termination Notice (RB, Part A at tab 5) and comprised the following.

(1)    The first incident allegedly occurred on 31 December 2016, when the applicant telephoned his supervising officer (XO 23SQN) and told him that the applicant’s place of residence had been “raided” by the police and that he had been requested to attend Sherwood Police Station later that morning. However, when the applicant’s supervising officer spoke to the police officer, he was advised that there had been no police activity at the applicant’s residence and the applicant was not a person of interest to the police. This incident resulted in the applicant’s security clearance being downgraded in February 2017.

(2)    The second incident (which is the subject of the current ground of review) occurred in 2018 when the applicant was caught by police driving without a driver’s licence and was issued with a notice to attend court. He subsequently appeared in court and pleaded guilty with no conviction being recorded. The applicant failed to notify his commanding officer (Wing Commander Elliott) that he had been issued with the notice to appear in court for driving without a licence. As a result he was counselled by his commanding officer that future failures to advise his chain of command “will be dealt with via disciplinary or administrative action”. That counselling was formally recorded in a form known as a “Record of Conversation” or RoC and was filed in the applicant’s personnel file. Of this incident, Annexure C of the Termination Notice stated that “[i]t is reasonable to expect that a member of your rank and experience would be aware of their responsibility to notify the chain of command after attracting adverse attention from civilian police – or if in any doubt, to seek further guidance” (referring to the obligations imposed by CO 382SQN Directive 01/18 – Commander’s Critical Information Requirements (Enclosure 35)).

83    In his response to the Termination Notice, the applicant submitted that no conviction was recorded in relation to the traffic offence, and therefore “the traffic offence should be excluded as evidence in this administrative action so that the non-recorded conviction [did] not harm [his] employment circumstances or [his] well-being”, in accordance with s 12 of the Penalties and Sentences Act (at [52]-[53]).

84    With respect to the applicant’s traffic offence, the delegate subsequently found that the applicant had not provided him with any evidence to support his claim that the reason why no conviction was recorded was to avoid harm in relation to his employment. The delegate further found that:

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

…

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

(TD at [22(l) and (m)]; emphasis added.)

85    The applicant has not in my view established his complaint that the delegate took into account an irrelevant consideration in his consideration of the traffic offence because no conviction was recorded.

86    First, contrary to the applicant’s submissions, s 85ZW of the Crimes Act did not apply to the delegate when making the Termination Decision by reason of a statutory exemption. Specifically, s 85ZZH of the Crimes Act relevantly provides that Part VIIC, Division 3 (where s 85ZW is located):

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

…

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

87    Regulation 21 and Sch 2 of the Crimes Regulations 2019 (Cth), in turn, relevantly provide that, for the purposes of s 85ZZH(k) of the Crimes Act, any “Commonwealth authority” (which, it will be recalled, includes the Defence Force) is a prescribed person or body, and that a Commonwealth authority may take into account a conviction for “[a]ny offence” for the purpose of “[a]ssessing the suitability of a person to be employed or otherwise engaged in work that is likely to involve access to national security information classified as secret or top secret” (the Exemption).

88    As the respondent submits, in the present case, the purpose of the Termination Decision was to assess the applicant’s suitability to remain as a member of the Defence Force. The evidence establishes that, at the time of his termination, the applicant’s posting immediately before his termination required him to have an NV2 (Top Secret) security clearance (Adams affidavit at [14]-[15]). Further, given the applicant’s rank and seniority, any position to which he might be posted in the future would require him to have at least an NV1 (Secret) security clearance, while some require an NV2 (Top Secret) (or a PV (Positive Vetting)) security clearance (Adams affidavit at [16]), as the Termination Decision specifically found in the context of referring to the downgrading of his security clearance in 2017 following the first occasion on which the applicant came to the attention of the police in 2016 (TD at [4(n)]). As such, the objective criteria for the Exemption were met as, in deciding whether the applicant’s service with the Defence Force should be terminated, the task of the delegate was to assess the applicant’s suitability to be employed in work likely to involve access to secret or top secret national security information. Contrary to the applicant’s submissions, therefore, the fact that the downgrading of the security clearance was referred to by the delegate in the context of the 2017 episode does not mean that the Exemption was somehow displaced. It follows that s 85ZW of the Crimes Act did not apply to prevent the delegate from considering the matters concerning the applicant’s traffic offence in making the Termination Decision.

89    Secondly, contrary to the applicant’s submission, s 12(3) of the Penalties and Sentences Act (quoted earlier above) did not apply to the delegate when making the Termination Decision. In terms, s 12(3)(a) of the Penalties and Sentences Act declares that a conviction without recording the conviction “is taken not to be a conviction for any purpose”, while s 12(3)(b) prohibits a person from entering or recording a person’s “conviction” into “any records”. However, as the respondent submits at RS [55], s 12(3) does not prevent a decision-maker from taking into consideration the fact of a “conviction” and the facts and circumstances of the offence.

90    This is clear from the decision of Kiefel J in Hartwig v Hack [2007] FCA 1039. Hartwig concerned judicial review of a ruling by the AAT that, in determining whether the applicant was a fit and proper person for the purpose of determining whether to refuse him registration under the Motor Vehicle Standards Act 1989 (Cth), the Tribunal could have regard to a conviction against the applicant which the sentencing judge directed not to be recorded despite the terms of s 12(3). In upholding the Tribunal’s decision, Kiefel J held at [6] that s 12(3) had a limited operation:

… requir[ing] that no record be kept of a person’s conviction, except for the Court’s purposes concerning an appeal or subsequent offences. It requires that it not count as a conviction for any purpose, other than those. As McPherson JA pointed out in R v Gallagher (1999) 1 Qd R 200, that does not mean that there is no conviction in the usual sense of the word. ‘Conviction’ usually refers to the Court’s acceptance of a verdict or a plea of guilty.

91    Thus, her Honour explained at [8]-[12]:

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

…

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

It follows, in my view, that the AAT is entitled to take account of the fact of conviction, which is to say: the acceptance of the record and the plea upon which it was based, together with such facts and circumstances as are necessary to provide an understanding of the offence, so far as they are relevant to the question before the AAT, which involves the purpose for which a person is said to be fit and proper.

92    That being so, the delegate did not breach s 12(3) of the Penalties and Sentences Act in so far as the delegate took the fact of the traffic offence and relevant circumstances pertaining to the offence into consideration.

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

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

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

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

94    As such, the ground is, with respect, misconceived.

5.4    The alleged failure to have regard to relevant considerations (ground 2)

5.4.1    Relevant principles

95    Ground 2 of the second amended originating application alleges that the making of the Termination Decision was an improper exercise of power because the delegate failed to take into account relevant considerations in the exercise of the power to terminate the applicant’s service. Those relevant considerations are alleged to be the applicant’s mental health, his service including his deployments, and his career annual reports including his 2018 and 2019 PPRs. Furthermore, while ground 2 as amended also pleaded that the delegate had erred in failing to consider the applicant’s response to the Termination Notice, that aspect of ground 2 was apparently not pressed as no oral or written submissions were made in support of the contention. In any event, this contention lacked any merit as manifestly the delegate did consider the applicant’s response to the Termination Notice.

96    It was not in issue that a failure to have regard to a relevant consideration which affects the exercise of power is an error of law and gives rise to jurisdictional error: see, eg, Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-40 (Mason J); and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82]-[84] (McHugh, Gummow and Hayne JJ). As Kiefel and Bennett JJ explained in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; (2004) 139 FCR 505 at 522-523 (in a passage on which the applicant relied):

A relevant consideration in an administrative law sense has a limited meaning. It is one which the decision-maker is bound to take into account in making the decision in question. The factors which the decision-maker is bound to take into account are determined by the construction of the statute conferring the discretion. If they are not stated, they are to be determined by implication from the subject matter, scope and purpose of the Act …

(Emphasis added.)

(See also Martincevic v Commonwealth [2007] FCAFC 164; (2007) 164 FCR 45 at [59] (the Court).)

5.4.2    The alleged failure to consider the applicant’s service and performance reports (ground 2(b) and (c))

97    As earlier explained, the power to terminate the applicant’s service was conferred by reg 24(1)(c) of the Defence Regulation and included the reason that the “retention of the member’s service is not in the interests of the Defence Force”. A list of reasons for something being or not being in the “interests of the Defence Force” is set out in reg 6(2) as follows:

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

(a)     a member’s performance;

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

(c)     a member’s suitability to serve:

(i)     in the Defence Force; or

(ii)     in a particular role or rank;

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

(d)     workforce planning in the Defence Force;

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

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

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

(Emphasis in underline added.)

98    Importantly, reg 6(2) does not contain an exhaustive list of the reasons for something being or not being in the interests of the Defence Force, emphasising the width of that concept and the broad evaluative judgment vested in the CDF. For example, Heerey J held in Graham v Deputy Chief of Air Force [2004] FCA 1377 at [40] that:

The Chief of Service or his or her delegate is in the best position to decide whether retention of a member is in the best interests of that Service, especially having regard to the elements of trust, loyalty and confidence which are fundamental to military service. It would be quite impossible to specify in advance the infinite variety of circumstances which might cause the Chief to reach that state of satisfaction in relation to a particular individual. An analogy is to be found in the long-established military offense of conduct prejudicial to good order and military discipline … Such conduct may take many forms and it is “impossible, indeed unwise, to attempt any exhaustive definition”: Chief of the General Staff v Stuart (1995) 58 FCR 299 at 323.

See also Shand v Chief of Army [1998] FCA 265; (1998) 51 ALD 278 at 282 (Burchett J); Gaynor at [101] (the Court) (application for special leave to appeal to the High Court dismissed: [2017] HCATrans 162).

99    Further, as the respondent submitted, there is nothing in the language of reg 6(2) which demonstrates that the provision is intended to prescribe mandatory considerations for the CDF, given the breadth of the criteria contained in and the non-exhaustive nature of the definition in reg 6(2): cf the mandatory criteria specified by reg 7 of the Defence (Personnel) Regulations 2002 (Cth) (Personnel Regulations) (since repealed and replaced by the Defence Regulation) considered by Buchanan J in Gaynor v Chief of the Defence Force (No 3) [2015] FCA 1370; (2015) 237 FCR 188 at [52]-[55].

100    The Defence Force’s policy regarding the termination of service mechanisms in the Defence Act 1903 (Cth) and the Defence Regulation is contained in (relevantly) Chapter 2 of Part 10 of the MILSPERSMAN. That policy explains the Defence Force’s understanding of the Defence Regulation and procedural fairness requirements, and repeats the reasons for something not being in the interests of the Defence Force which are set out non-exhaustively in reg 6(2) of the Defence Regulation.

101    It was common ground that the delegate was required to consider whether termination of the applicant’s service was in the interests of the Defence Force pursuant to reg 24(1)(c) read with reg 6(2) of the Defence Regulation. The applicant also correctly accepted that the delegate was not required to have regard “to each and every” consideration included in the definition of the criterion “interests of the Defence Force” in every case (T13/9/22 at 48.8-13). It was also not in issue that the delegate was required to consider the representations made by the applicant to the decision-maker as to why his service should not terminated. I agree with each of these propositions.

102    However, the applicant submits that:

(1)    the delegate was required to have regard to his PPRs, including his 2018 and 2019 PPRs, on the basis that “the performance reports were not an insignificant part of that consideration, in relation to performance” (T13/9/22 at 49.3-4);

(2)    the statement by the delegate at [12] of his reasons “obviously misstates that obligation … because the obligation for the decision-maker is to have regard to the material which is available to the decision-maker” (emphasis added) regardless of whether or not the applicant had provided that material if that material was otherwise available to the decision-maker (T13/9/22 at 49.4-7 and 50.1-5); and

(3)    the PPRs were in fact available to the delegate.

103    The evidence of Air Commodore Adams established that PPRs contain information about a member’s performance during the relevant reporting period and are a primary tool for career management in the RAAF. Further, where a member is dissatisfied with her or his PPR, they can seek review of the assessment, with three levels of review being available. The PPRs are administered by and stored with the Directorate of the Personnel of the Air Force (the DPAF), and are filed in an electronic filing system called Objective. They can be accessed by the CDF (and his or her delegate) on a “need to know” basis.

104    The applicant also alleged a failure to consider his service, including deployments.

105    Ultimately the applicant’s contention reduces to the proposition that the delegate was bound, but failed, to consider material which was significant to assessing the applicant’s performance and was available to the delegate in the sense that it was capable of being accessed or obtained by the delegate from Defence Force records. That contention must be rejected.

106    First, the applicant relies upon the reference by Mason J in Peko-Wallsend at 45 to “the general principle that that an administrative decision-maker is required to make [her or] his decision on the basis of material available to[her or] him at the time the decision is made”, which his Honour explained:

is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.

107    In that case, Gibbs CJ, Mason and Dawson JJ held that the Minister for Aboriginal Affairs was required under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), pursuant to which unalienated Crown land may be granted to the traditional owners, to take into account the comments made by the Aboriginal Land Commissioner in his report under that Act on the possible detriment to other persons if a grant over particular land were made (at 44). Their Honours also held that the Minister was required to take into account submissions made to him which corrected, updated, or elucidated upon, the Commissioner’s comments on detriment (at 45-46 (Mason J, Gibbs CJ agreeing at 30, Dawson J agreeing at 71)). Brennan and Deane JJ similarly held that the Minister’s recommendation was void on the basis that he was not free to make a recommendation to the Governor-General on whether a land grant should be made in ignorance of the existence of those submissions (at 63-67 (Brennan J, Deane J agreeing at 71)).

108    However, Mason J was not, in the passage on which the applicant relies, articulating a general principle that a decision-maker is required to make a decision taking into account all (potentially) significant material which the decision-maker might access or obtain. Rather, as Mason J held at 45, in the context of referring to the “general principle” on which the applicant purports to rely here:

It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading.

109    Secondly, there is no express requirement under regs 6(2) or 24(1)(c) of the Defence Regulation for a decision-maker to consider the opinions of the member’s superior officers as to the member’s performance, whether contained in the member’s PPRs or otherwise, in determining whether or not it is in the interests of the Defence Force to retain that member. Nor did the applicant identify any basis on which a requirement to that effect was implied, or any case law to this effect. Rather, as the respondent submits (at RS [65]), under reg 24(1)(c) of the Defence Regulation the decision-maker must form her or his own opinion as to whether the retention of the member is in the interests of the Defence Force (although of course, the decision-maker may take into account the opinions of the member’s superior officers).

110    Furthermore, an implication of the kind for which the applicant contends would run counter to the procedural fairness scheme created under the Defence Regulation. That scheme requires that notice be given to the member concerned which relevantly explains the reasons for the proposed termination, and sets out the facts and circumstances necessary to place the member in a position to respond to the proposed termination in accordance with the invitation to do so, which must be extended to the member: regs 24 and 30 of the Defence Regulation. It is therefore the Termination Notice which defines the issues to which the member is afforded an opportunity to respond with such evidence and submissions as the member considers relevant and supportive of her or his case. The Defence Regulation does not impose a duty upon the decision-maker to make the member’s case as to why her or his service should not be terminated. Yet that is effectively what the applicant contends for in this case.

111    Thirdly, the respondent correctly accepted that, in making the Termination Decision, the delegate was required to consider the applicant’s “service history”, citing Martincevic at [64] (the Court). The decision in Martincevic concerned an exercise of the power to terminate a member’s service in the Defence Force on medical grounds pursuant to reg 87(1)(c) of the Personnel Regulations. In that case, the member challenged the decision terminating his service relevantly on the ground that the decision to terminate his service was made without regard to a report into the allegations of his mistreatment at 7 CSSB (the 7 CSSB report), which was said to be the cause of the member’s medical condition.

112    While, under the now superseded Personnel Regulations, the factors to be taken into consideration by the Discharge Authority (i.e. the person or position authorised to make determinations of discharge), expressly included “complete service history, including adverse and supporting material” (DI(A) PERS 116-5), the Full Court held at [64] that:

Even apart from DI(A) PERS 116-5, the subject matter and context of the termination decision make it virtually inconceivable that a decision-maker under reg 87 would not be obliged to consider a soldier’s service history. This is because a soldier’s service history would in some way lie at the heart of any proposed termination decision and has some bearing on the proposed reason for termination (which fell for consideration in the opinion to be formed under reg 87(4)). A soldier’s service history was therefore a relevant consideration, in the sense used in Peko-Wallsend 162 CLR at 39. Naturally enough, the weight that a decision-maker might give this service history would vary depending on the circumstances of the case, including the proposed reason for termination, especially perhaps where “medical discharge” was in question.

113    In holding that the decision-maker was bound to consider the 7 CSSB report, the Full Court took into account that:

(1)    the report was “a not insignificant part of the appellant’s service history” given, in particular, that the report elucidated the history at 7 CSSB which was contemporaneous with his adverse medical reports;

(2)    the report came into existence and was forwarded through the appropriate channels about a month after the termination notice;

(3)    it was not in issue that the 7 CSSB report was part of the material available to the Chief of Army and thus to his delegate;

(4)    given correspondence from the member to the decision-maker, the decision-maker must have been aware, first, that the 7 CSSB report into the member’s allegations regarding his mistreatment had been commissioned some months earlier and, secondly, that the appellant alleged that the 7 CSSB report was relevant to his medical condition and, therefore, his case in opposition to termination; and

(5)    the 7 CSSB report and its findings were capable of constituting a change in circumstances affecting the proposed reason for termination, given that the appellant had submitted to the Discharge Authority that his medical condition was attributable to that mistreatment and would have abated if he were no longer subject to the mistreatment (at [68]).

(Martincevic at [65]-[66] and [68] (the Court).)

114    The decision in Martincevic therefore supports the proposition that (as conceded) the delegate in the present case was bound to consider the applicant’s service history insofar as it related to those matters the subject of concern in the Termination Notice. However, it does not follow that the delegate was bound to consider the content of all of the applicant’s performance reports or performance on each deployment, as is also plain from the reasoning in Martincevic. In so holding, the reasoning in Martincevic is consistent with the approach adopted by Mason J in Peko-Wallsend to which I have earlier referred. The question of what material must be considered in the course of considering the applicant’s service history, and the weight that might be given to that material, will depend upon the particular circumstances of the case, including the proposed reason for termination: see Martincevic at [64] (the Court).

115    Fourthly, the applicant specifically challenged [12] of the delegate’s reasons on the basis of the delegate’s alleged failure to consider the applicant’s performance reports. The delegate found at [12] that:

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

116    No error of law has been established in the delegate so reasoning.

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

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

(Citations omitted.)

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

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

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

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

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

120    Nor, as the delegate found, were the PPRs provided by the applicant to the delegate despite it being open to the applicant to obtain his PPRs and the applicant being advised in the Termination Notice that any additional material which he wished the delegate to consider must be attached to his response. In these circumstances, it was clearly open to the delegate to give the assertion at [52(a)] of the applicant’s response low weight and to consider the issue no further. This is also not a case where it might be said that there was a constructive failure to exercise jurisdiction by reason of the delegate having failed “to make an obvious inquiry about a critical fact, the existence of which is easily ascertained”: SZIAI at [19]-[25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); nor is that the way in which the issue has been pleaded.

121    Moreover, despite the prominence given in his application for judicial review to his 2018 and 2019 PPRs, they were not referred to by the applicant in his response to the Termination Notice save insofar as he suggested that a comment in his 2018 PPR from by his supervisor was defective and demonstrated negligence on the part of the Defence Force (response to the Termination Notice at [7(c)]). Far from suggesting, therefore, that the applicant wished to rely upon the 2018 PPR in support of his position that his service should not be terminated, this submission suggested that the applicant was concerned that the report might be taken into account adversely to him, despite it not being referred to in the Termination Notice.

122    Finally, I agree with the respondent’s submission that the delegate here complied with his duty to consider the applicant’s service history. As the respondent submits at RS [63]:

The written reasons for making the Termination Decision demonstrate that the delegate carefully considered the applicant’s poor service history, including his “sustained sub-standard behaviour”, which encompassed “repeated failures to comply with routine orders” and “basic expectations of full-time military service such as maintaining ‘individually ready’ status” (para 31). The delegate took account of the fact that the applicant had been engaged in some “operational service”, as part of OP RESOLUTE, and noted that he was only able to do so because he was given a waiver (paragraph 30). The delegate also noted that the applicant was not presently deployable without a waiver because of his failure to meet the Air Force’s PFT requirements (para 32). These were all aspects of the applicant’s “service history”, the factor which the delegate was required to consider, and which the delegate did in fact consider.

5.4.3    The alleged failure to consider the applicant’s mental health (ground 2(a))

123    The applicant also submitted that “[a]s a consideration under [reg] 6(2)(f) it was incumbent to consider Former FLTLT Fulton’s mental health in making the Termination Decision, particularly in circumstances where former FLTLT Fulton suffered from PTSD as a result of his service” (applicant’s submissions (AS) at [45]).

124    That submission must be rejected.

125    First, the list of reasons on the basis of which a member’s service may be terminated in reg 6(2) does not include the mental health of the member. Nor did the applicant identify any basis on which it could be implied from the subject matter, scope and purpose of the Defence Regulation that mental health was a mandatory consideration.

126    Secondly and in any event, the reasons of the delegate establish that he did in fact take the applicant’s submissions as to his mental health into account. Specifically, in his response to the Termination Notice, the applicant submitted that the termination of his service would not accord with the ADF Mental Health and Wellbeing Plan. This submission, which was the only submission made by the applicant in his response about his mental health, was addressed by the delegate at [22(h)] of his reasons, finding that:

You assert that there has not been ‘proper consideration’ of the ADF Mental Health and Wellbeing Plan. I have considered your claims that the decision to terminate your service is not in keeping with the objectives of this plan. The ADF Mental Health and Wellbeing Plan was not established to limit the ability of Defence to manage its people and the operation of legislation. I have formed the view that the existence of the ADF Mental Health and Wellbeing [Plan] does not preclude authorised delegates within Defence from identifying where members do not align with the interests of Defence for one or more of the reasons outlined in [reg] 6(2) of Defence Regulation 2016.

127    In these circumstances, there was no obligation on the delegate to consider the applicant’s mental health any further. Nor is any error apparent in the reasons given by the delegate for deciding that matters pertaining to the applicant’s mental health did not preclude him from deciding to terminate the applicant’s service if the delegate otherwise decided that the applicant’s retention was not in the interests of the Defence Force. To the contrary, given the breadth of the discretion conferred by reg 24(1)(c) of the Defence Regulation read with reg 6(2), that conclusion was plainly correct.

5.5    Did the decision-maker impermissibly limit the material which he was obliged to consider (ground 4)?

128    Ground 4 of the second amended originating application alleges that the termination decision “was made in error of law as the Respondent misdirected itself as to the requirements of [reg] 24(1)(c) of the Defence Regulations 2016.” In support of the ground, the applicant submitted that:

WGCDR [Nelson] was not limited in those considerations by what was put in the Termination Notice and the Response. The Respondent was obliged to take into account the matters set out in regulation 6(2). In making the Termination Decision, WGCDR Nelson considered that the only matters which could be considered were those raised in the Termination Notice and the response to the Termination Notice. However that impermissibly limited the material to which the Respondent was obliged to consider. This is particularly so given the time a member has to respond to a Termination Notice. In making the Termination Decision the Respondent was obliged to obtain the material, such as Personal Performance Reviews, and the views of supervising officers where those matters were not contained in the Termination Notice or Response.

The failure to undertake those [inquiries] was a result of WGCDR Nelson considering that the role was confined to adjudicating between the competing submissions rather than making the determination based on the requirements of [reg] 6(2) of the [Defence] Regulation.

Those inquiries may have required giving former FLTLT Fulton a further opportunity to respond but nonetheless should have been undertaken in circumstances where it was clear this information was missing from the Termination Notice.

(AS at [48]-[50].)

129    This ground has also not been established.

130    First, I agree with the submissions of the respondent that there is nothing in the text or structure of the Defence Regulation imposing any duty to inquire on the CDF or his delegate in determining whether or not to terminate a member’s service pursuant to reg 24(1)(c) of the Defence Regulation. The only consideration identified by the applicant in support of the suggestion that such a duty exists is the shortness of the period of time within which a member must respond to a Termination Notice. However, reg 24 sets only a minimum time period within which a member must respond, thereby allowing a decision-maker to set a different time and/or extend the period of time within which the member must respond as in fact occurred in this case.

131    More fundamentally, to imply any such duty would run counter to the scheme under the Defence Regulation for according procedural fairness to an applicant which is directed towards ensuring that an applicant is made aware of the basis on which their service might be terminated and is then afforded the opportunity to respond. That scheme therefore assumes that:

(1)    the material and allegations on which the decision-maker might rely to terminate the member’s service are provided to the member by way of a Termination Notice in advance of the member being afforded an opportunity to respond; and

(2)    the onus will then lie upon the member to persuade the decision-maker that their service should not be terminated, by providing evidence and making submissions in support of that contention.

132    Secondly, as the applicant accepted, a decision-maker is not obliged to consider every reason in reg 6(2) of the Defence Regulation in each case where termination of a member’s service is being considered under reg 24. Nor does reg 6(2) require the decision-maker to take into account the opinions of the member’s superior officers, whether expressed in PPRs or otherwise.

133    Thirdly, it is, with respect, untenable to suggest that the delegate was required to obtain and consider copies of the applicant’s 2018 and 2019 PPRs in order to make a lawful decision under reg 24(1)(c) in circumstances where the applicant’s 2018 and 2019 PPRs were not referred to either in the Termination Notice or by the applicant in his response to the Termination Notice.

6.    CONCLUSION

134    It follows for these reasons that the application must be dismissed. I will afford the parties the opportunity to be heard as to costs.

Associate:

Dated:    22 December 2022