FEDERAL COURT OF AUSTRALIA

Burns v Chief of the Defence Force [2024] FCA 781

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The Registrar refer a copy of the reasons for judgment to:

(a)    the Inspector-General of the Australian Defence Force for such inquiry action, if any, as the Inspector-General may deem fit under s 110C of the Defence Act 1903 (Cth); and

(b)    the Judge Advocate General for such consideration as the Judge Advocate General may deem fit in relation to his responsibility under s 196A of the Defence Force Discipline Act 1982 (Cth) of annually reporting to Parliament with respect to the operation of that Act.

3.    Subject to the restriction made by the Court’s order of 27 March 2024 in relation to the USB drives is concerned (liberty to apply as to access to which is reserved to the Inspector-General and the Judge Advocate General), the registrar may, if so requested by the Inspector-General or the Judge Advocate General, provide a copy of the court book to these officials for the statutory purposes mentioned.

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

REASONS FOR JUDGMENT

LOGAN J:

1    The immediate origin of this case lies in decisions respectively made on 13 December 2023 by a delegate (Wing Commander (WGCDR) N L Lucas) of the Respondent Chief of Defence Force (CDF) to terminate the service of each of the Applicants in the Australian Defence Force (ADF) pursuant to s 24(1)(c) of the Defence Regulation 2016 (Cth) (Defence Regulation). There is a wider background, related below.

2    The Applicants are, respectively, Corporal (CPL) Mitchell Burns, Leading Aircraftman (LAC) Alexander Honeysett and CPL William Dyson. Each was, at the time of the termination decisions, a member of the Royal Australian Air Force, posted to 23 Squadron (SQN) at RAAF Base Amberley. They were airport firefighting crew members.

3    The terminations took effect on and from 28 February 2024 in the case of CPL Burns and CPL Dyson, and 10 April 2024 in the case of LAC Honeysett. There is a common substratum of facts and related administrative decision-making which made it appropriate for the challenges made by each of the Applicants to the respective termination decisions to be heard together.

4    The applications are brought pursuant to the jurisdiction conferred on the Court by the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). To record that is to reveal at once that the proceedings are, necessarily, wholly unconcerned with the evaluative merits of the termination decisions. Instead, they are wholly concerned with whether the Applicants have proved one or the other of the pleaded and pressed statutory grounds of review drawn from s 5 of the ADJR Act.

5    The reason for this distinction is no different to the difference between the review for jurisdictional error of an administrative decision and its review on the merits explained by Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 (Quin), at 35. The remit of the judicial branch, be that under the jurisdiction conferred on the High Court under s 75(v) of the Constitution or on a court such as this Court under a statutory equivalent thereof (s 39B(1) of the Judiciary Act 1903 (Cth)), or under the ADJR Act, is, in essence, to determine whether an administrative decision has been made according to law. In contrast, the remit of the executive branch, either in civilian public administration or, as here, in military public administration, in respect of such a decision entails making evaluative determinations on the factual merits and may also involve public policy value judgements. More particularly and in the context of the present case, it is no part of the Court’s role to decide for itself whether, on the material before WGCDR Lucas, the service of any of the Applicants should have been terminated.

6    An understanding of this distinction was manifest in the careful submissions made on the Applicants’ behalf by their counsel, Mr P McCafferty KC and Mr H Clift. With commendable forensic discernment, they refined the issues in the case to whether:

(a)    each of the termination decisions was an improper exercise of power in that it constituted an abuse of power: s 5(1)(e) and s 5(2)(j), ADJR Act; and

(b)    WGCDR Lucas, as delegate, impermissibly had regard to material obtained under the search and seizure provisions of the Defence Force Discipline Act 1982 (Cth) (DFDA): s 5(1)(b), s 5(1)(h), ss 5(1)(e) and 5(2)(a), and ss 5(1)(e) and 5(2)(g), ADJR Act.

An abuse of power or process?

7    Consideration of this ground requires an account of the broader background to the termination decisions, as revealed by the evidence. First, however, it is necessary to set out the terms of the power which is said to have been abused.

8    Section 24 of the Defence Regulation provides:

Early termination of service

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

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

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

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

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

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

Note:     For notice to members, see section 30.

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

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

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

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

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

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

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

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

When termination because of redundancy can occur

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

9    In relation to the term “interests of the Defence Force”, found in s 24(1)(c), it is also necessary to set out s 6(2) of the Defence Regulation, which provides:

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

(a)    a member’s performance;

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

(c)     a member’s suitability to serve:

(i)    in the Defence Force; or

(ii)    in a particular role or rank;

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

(d)     workforce planning in the Defence Force;

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

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

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

10    In Fulton v Chief of Defence Force (2023) 300 FCR 623 (Fulton), at [184] and by way of contrast with the immediate predecessor termination power found in reg 87 of the Defence (Personnel) Regulations 2002 (Cth) (repealed), Sarah C Derrington and Stewart JJ observed:

Certainly, the relationship between the Crown and its servicemen remains different from the common law position, but it is equally clear that there has been a decision by the Parliament to ensure the CDF has the flexibility to, inter alia, “deliver capability and preparedness outcomes” and “provide personnel management that supports … retention of appropriate persons” in accordance with the Objects of the Defence Regulation. There are no longer any mandatory considerations, and the CDF is no longer limited by a prescriptive list of reasons for terminating a member’s service.

11    Given that the termination power reposes in a regulation made under the Defence Act 1903 (Cth) (Defence Act), rather than in that Act itself, one might, with very great respect, question whether whatever change the current regulation wrought entailed a decision by Parliament, as opposed to one made by the Governor-General in Council. Further, and with like respect, some, familiar with observations made by the Judicial Committee in Gould v Stuart [1896] AC 575, at 578, and by Kitto J (Taylor J agreeing) in Marks v The Commonwealth (1964) 111 CLR 549, at 556, as to the antipathy which should attend construing provisions which modify an unfettered common law power of dismissal of defence members possessed by the Crown as if in substance there has been no modification, might have difficulty reconciling those observations with the conclusion reached in the passage quoted. Yet further, and also with like respect, the ordained approach to statutory construction is to give primacy to the text of the provision concerned, rather than extrinsic materials: Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, at [39] (the Court). An application for special leave to appeal in Fulton failed (Fulton v Chief of Defence Force [2024] HCASL 11) but that case ultimately turned upon an alleged denial of procedural fairness on particular facts. It seems likely that the reference in the refusal of special leave to an absence of identification of a question of law of public importance was to this feature of the case, rather than to the construction of a provision of pervasive application to the termination of the service of members of the ADF. So it may be that the correctness of what is stated in the passage quoted will one day have to be revisited. However all this may be, such is the doctrine of stare decisis, the precedent created is binding in the original jurisdiction. Thus, it must be accepted that, albeit related to a procedural fairness obligation, s 24(1)(c) has modified the common law, but the present position is that considerations specified in s 6(2) are not “relevant considerations” in the sense described by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, at 39 – 40. In other words, what follows from the conclusion reached by the majority in Fulton is that, even if s 6(2) specified considerations are raised on the material before a decision-maker, it is not obligatory to consider them, unless, as read fairly, they form an “integer” of a defence member’s response to a notice of proposed termination: Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088.

12    The Applicants did not advance a submission to the contrary as to the construction of s 24(1)(c) in pressing their “abuse of power” ground. The occasion for placing quotation marks around “abuse of power” in describing this ground will emerge later in these reasons. Further, the Applicants came to abandon any suggestion that the termination decisions were an unlawful, disciplinary measure. At a time when that remained a live issue, I had raised with the parties whether, if the purpose of the termination decisions were disciplinary, a question might arise, in light of the High Court’s judgment in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005 (NZYQ), as to whether s 24(1)(c) was beyond the regulation-making power in the Defence Act, because it was beyond the constitutional legislative competence of the Parliament to confer any punitive power otherwise than on a court exercising federal jurisdiction under Ch III of the Constitution? In turn, that may have raised a need to reconcile NZYQ with Private R v Cowen (2020) 271 CLR 316 (Private R) and White v Director of Military Prosecutions (2007) 231 CLR 570, which recognise that, although they are not established under Ch III, service tribunals may validly exercise a sui generis, punitive jurisdiction for the discipline of the ADF. Yet further, if the purpose of the terminations were disciplinary, a question may have arisen as to whether the DFDA, in conjunction with the Defence Force Discipline Appeals Act 1955 (Cth) (Appeals Act), had covered the field in relation to the disciplining of members of the ADF, to the exclusion of authorising the creation, by a regulation made under the Defence Act, of some parallel or alternative military administrative system of discipline? Because the Applicants expressly disavowed any contention that the terminations were the punitive result of an exercise of a disciplinary power, it is neither necessary nor appropriate in this case to consider these subjects.

13    Instead, the “abuse of power” case developed by the Applicants was highly fact specific, arising from a course of conduct with respect to the Applicants by the CDF via various delegates. That is not to say there are no difficult questions of principle entailed, only that first it is necessary to detail that course of conduct, which includes the reasons furnished by WGCDR Lucas for the termination decisions.

14    In making the termination decisions, WGCDR Lucas made, administratively, particular findings of fact. It is no part of the Applicants’ case that these findings were not open on the material before WGCDR Lucas.

15    The chronology offered below includes such administrative findings of fact. For the avoidance of any doubt, I emphasise that these are not judicial findings of fact made by me in this proceeding. That is a reflection of the observations made above as to the limited role of a court conducting a review under the ADJR Act. Related to that, I also emphasise that although some, viewing the video recordings to which reference is made, might perhaps be disposed to regard what is depicted as equally consistent with skylarking and larrikin behaviour and that, in responding to “show cause” notices which preceded the termination decisions, the Applicants expressly denied any use of prohibited substances. WGCDR Lucas took a different view. Whether, on the merits, to make the findings concerned was for WGCDR Lucas, not for me.

16    The following findings were made administratively:

(a)    On 13 March 2022, at CPL Burns’ residence, the Applicants and another defence member not a party to these proceedings:

(i)    began talking about buying substances prohibited under the Defence (Prohibited Substances) Determination 2021 (Cth), namely Nitrous Oxide (colloquially known as “Nangs”) and Ketamine (colloquially known as “Ket”). That determination is a legislative instrument made under the Defence Act;

(ii)    were video recorded displaying behaviour consistent with consuming prohibited substances.

(b)    Also on 13 March 2022, CPL Burns sent the video recordings concerned to a female LAC (the complainant) using the “Snapchat” social media software application.

(c)    On 15 March 2022, CPL Burns sent the same video recordings to the complainant via the “Facebook Messenger” social media software application.

(d)    On 29 August 2022, the complainant met and had a conversation with CPL Eliza Burton, an ADF Investigator from the Joint Military Police Station (JMPS) Brisbane, during which the complainant provided CPL Burton with the information later recorded in a witness statement signed by the complainant. In the course of that conversation and in that statement, the complainant, amongst other things, alleged the use of the prohibited substances mentioned and referenced the video recordings mentioned.

(e)    Later on 29 August 2022, CPL Burns was interviewed under caution by Petty Officer (PO) Tegan Hatfield of the JMPS.

(f)    Also on 29 August 2022, and in conjunction with other JMPS investigators, PO Hatfield executed a search warrant issued under s 101X of the DFDA, pursuant to which CPL Burns’ mobile telephone was seized.

(g)    On 30 August 2022, CPL Burns’ telephone was subject to a Universal Forensic Examination Device (UFED) process.

(h)    On 31 August 2022, following the obtaining under s 101ZA of the DFDA from the complainant of her consent to search it, members of the JMPS obtained the complainant’s mobile telephone and subjected it to a UFED process. That process yielded the video recordings viewed by WGCDR Lucas in making the termination decisions.

(i)    On 1 September 2022, the Applicants undertook a prohibited substance test. Those tests proved negative in respect of a period from 25 May to 25 August 2022, with the Applicants being advised of this on 20 September 2022.

(j)    On 13 September 2022, the complainant signed her statement.

(k)    On 5 October 2022, WGCDR P J Murray, as delegate of the CDF, issued notices of proposed termination to the Applicants.

(l)    On 31 October 2022, the Applicants responded to these notices.

(m)    On 25 November 2022, the material obtained from the complainant’s mobile telephone, which included the video recordings, was provided through the chain of command to higher headquarters.

(n)    On 22 February 2023, the 23 SQN Fire Station Manager, Flight Sergeant David Denning, made a statutory declaration in which he identified the Applicants as persons in or heard in the video recordings obtained from the complainant’s mobile telephone. That statement was considered by WGCDR Lucas.

(o)    On 15 March 2023, Squadron Leader (SQNLDR) M J Smith, as delegate of the CDF, withdrew the October 2022 notices of proposed termination. At the same time, SQNLDR Smith issued to each of the Applicants fresh notices of proposed termination.

(p)    On 3 May 2023, LAC Honeysett and CPL Dyson submitted their responses to these new notices. CPL Burns did the same on 10 May 2023.

17    In the meantime, on 28 March 2023, the Applicants instituted judicial review proceedings in this Court (QUD 109/2023) by which they sought the review of the decision to issue the March 2023 proposed termination notices. The substantive hearing of that application was thereafter fixed to occur on Monday, 17 July 2023.

18    On 14 July 2023, the last business day prior to date appointed for the hearing of their judicial review applications, WGCDR J Arnold, another delegate of the CDF, advised each of the Applicants in writing that the CDF had decided not to proceed further with the termination of service proposed by the March 2023 notices.

19    The effect of this decision was, as I noted in a judgment of 17 July 2023 dismissing the Applicants’ judicial review application but with costs to be paid by the CDF, to remove from that proceeding any practical utility: Burns v Chief of the Defence Force (No 2) [2023] FCA 866 (Burns (No 2)). The dismissal entailed recognition of this and thus no adjudication on the merits of the grounds of review. As I also then recorded, I was sufficiently concerned by the circumstance that this was the second occasion upon which a decision to issue a notice of proposed termination had been vacated in respect of the Applicants to direct the Registrar to refer the papers to the Inspector-General of the ADF for consideration of whether there may be a systemic difficulty within the ADF in the administration of the termination power conferred by s 24. I also reiterated an observation, which I had earlier made in Fulton v Chief of the Defence Force (2018) 160 ALD 209, that the vacation of a decision not to proceed with a particular notice of proposed termination did not necessarily preclude the initiation administratively of a further proposed termination proceeding.

20    To resume the chronology of administrative events and related fact finding:

(q)    On 30 August 2023, WGCDR R Harrison issued fresh notices of proposed termination to the Applicants.

(r)    On 4 October 2023, each of the Applicants submitted responses to these fresh notices.

(s)    On 13 December 2023, WGCDR Lucas made the termination of service decisions under review.

21    The alleged conduct foundation for the October 2022 and March 2023 notices of proposed termination overlapped with the alleged conduct foundation for the August 2023 notices. In respect of each Applicant, the overlap was in respect of an alleged use of prohibited substances and, in CPL Burns’ case, the distribution of audio-visual recordings of the same.

22    As there had been with the two earlier notices of proposed termination, there were more wide-ranging allegations in relation to CPL Burns, which extended to alleged sexual harassment of a female defence member and an alleged sharing of intimate images. As to these more wide-ranging allegations, and in light of conclusions she reached concerning use of or involvement with prohibited substances and social media use and that termination of service was, on this basis alone, warranted, WGCDR Lucas found it unnecessary to reach a concluded view as to whether the more wide-ranging alleged conduct occurred. She expressly stated that she placed no weight on those allegations in reaching her termination decision in respect of CPL Burns.

23    In the reasons for decision furnished, WGCDR Lucas found that each of the Applicants had, on enlistment, signed a declaration acknowledging an awareness of the ADF’s “zero tolerance” policy in relation to the use of or involvement with any prohibited substance. Reference was also made in the reasons to an ADF documented policy expectation that defence members using unofficial social media accounts in a private capacity, or otherwise publishing online, not post any content or engage in any activity which could be seen to damage the reputation of the ADF.

24    In making the administrative findings, WGCDR Lucas expressly adverted to the denials made by each of the Applicants and to the gravity of a conclusion that the Applicants had engaged in the conduct alleged. She also found that it was permissible for her to have regard to the video recordings provided by the complainant, because her allegations of prohibited substance use were made prior to the issuance of any search warrant and provided by her by consent.

25    WGCDR Lucas’ reasons reveal a detailed consideration of the respective submissions in response made by each of the Applicants. This extends to a consideration of past performance and character (including related character references), the investment made by the RAAF in their training and the impact which a termination of service would have on the firefighting capabilities at the airfield fire station at RAAF Amberley. She also adverted to the possibility of alternative administrative action, such as the issuing of a formal warning.

26    In so doing, WGCDR Lucas patently engaged with the responses made by each of the Applicants. These responses had, hardly surprisingly, been structured by reference to the considerations specified in s 6(2) as thought applicable to the respective Applicants. Thus, although there is, in light of the majority view in Fulton, no general obligation to advert to such considerations when exercising the termination power found in s 24(1)(c), insofar as WGCDR Lucas was obliged by the circumstances of the particular representations made by the Applicants to address those considerations, she did that.

27    More particularly, WGCDR Lucas expressly addressed and rejected a submission by each of the Applicants that the continuance of consideration of termination constituted an “abuse of process” (her terminology, although the response to the notices of proposed termination used process and power interchangeably in relation to alleged abuse). She acknowledged that there had been two earlier notices of proposed termination which had been withdrawn. She recorded (and it is not challenged) that the August 2023 notices were issued independently of the earlier notices. She also stated (and it is not submitted otherwise) that she had had no earlier involvement with the issue of whether the service of the Applicants should be terminated.

28    WGCDR Lucas described the regime for administrative termination as protective rather than punitive. In each instance, her reasons culminated in an evaluative conclusion, based on the findings of fact she had made and the related reasons she had detailed, that the retention of the particular Applicant was not “in the interests of the Defence Force”. Being of that view, she decided to terminate the service of that Applicant.

29    Elaborate though WGCDR Lucas’ reasons are, they are noteworthy for a complete absence of any consideration as to whether disciplinary action under the DFDA should be taken against any of the Applicants or why it was that such action had not, to that point, been taken, notwithstanding the initial investigatory action by the JMPS.

30    Based on the succession of vacated notices of proposed termination to the Applicants and then that given in August 2023, one end of the submission for the Applicants was that there had been an “abuse of power”. However, it was also put that the administrative processes of the CDF by his delegates had become “an instrument of injustice or unfairness” and thus an abuse of the s 24(1)(c) termination power. It was put that the conduct would “bring the administration of justice into disrepute” and thus an abuse of power in terms of s 5(2)(j) of the ADJR Act.

31    In support, the opening paragraph of Lord Diplock’s speech in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (Hunter), at 536, was cited. It is desirable to set out that paragraph, because, with minimal explanation, so doing reveals why that case is of no present relevance insofar as the basis of challenge is said to be an abuse of power:

My Lords, this is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied; those which give rise to the instant appeal must surely be unique. It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power.

[Emphasis added]

32    Hunter was a civil jurisdiction sequel to a criminal trial and resultant conviction and sentencing to life imprisonment (and unsuccessful application for leave to appeal to the Court of Criminal Appeal) of six men, men who have passed into legal history as “the Birmingham Six”. The case arose from an horrific bombing incident occasioning much loss of life and many other casualties in Birmingham in the United Kingdom in 1974. At the criminal trial, it was controversial both during a voir dire and before the jury as to whether alleged confessions were voluntary or procured by beatings of the accused by the police. The confessions were ruled admissible at the voir dire and the jury chose to convict. The six men issued writs against the chief constables of the West Midlands and the Lancashire police and also against the Home Office claiming damages against the police for injuries caused by assaults, which were the same allegations as had been made before the criminal trial judge at the voir dire and then the jury at trial, and also against the Home Office in respect of assaults by prison officers and prisoners while they had been in Winson Green Prison. They relied, inter alia, on new medico-forensic evidence as to the photographs taken on their admission to prison, which were said to reveal that some injuries had been sustained prior to that date, and statements from the three prison officers that the six men had been bruised and injured on their arrival at the prison.

33    The six men, by leave of the House of Lords, sought to challenge the striking out, as an abuse of process, of their statement of claim by the Court of Appeal. The opening paragraph of Lord Diplock’s speech set the scene for the disposal of the appeal and stated a general principle attending the exercise of judicial power but the appeal ultimately failed. As the headnote in the report accurately records, at 530, the House of Lords concluded that:

… where a final decision had been made by a criminal court of competent jurisdiction it was a general rule of public policy that the use of a civil action to initiate a collateral attack on that decision was an abuse of the process of the court; and that such fresh evidence as the plaintiff sought to adduce in his civil action fell far short of satisfying the test to be applied in considering whether an exception to that general rule of public policy should be made, which, in the case of a collateral attack in a court of coordinate jurisdiction, was whether the fresh evidence entirely changed the aspect of the case.

[emphasis added]

34    History also records that, in 1991, the convictions of these six men were overturned by the Court of Appeal after being declared unsafe and unsatisfactory. That case and other revelations of miscarriages of justice led to the establishment in the United Kingdom in 1991 of a Royal Commission on Criminal Justice. In turn, the recommendations of that Royal Commission led to the Criminal Appeal Act 1995 (UK), which in 1997 established the Criminal Cases Review Commission.

35    There is much to be learned and remembered about Hunter and its sequel but the point for present purposes is that the case, and Lord Diplock’s quoted observation, concerned an interplay between a prior exercise of judicial power and an endeavour, by a later invocation of judicial power, collaterally to attack an issue decided by the prior exercise of judicial power. Here, there has only ever been one prior exercise of judicial power, Burns (No 2), and that prior exercise of judicial power expressly recognised that the outcome did not necessarily inhibit a later exercise of the military administrative termination power found in s 24(1)(c). This aside, there is no evidence that, in the exercise of military administrative power in vacating earlier decisions to require the Applicants to show cause why their service should not be terminated under s 24(1)(c), there was ever any representation to any of the Applicants that no further action towards that end would be taken.

36    Even if there had been such a prior administrative representation, it does not at all follow, on the present state of judicial authority in Australia, that any “abuse of power” statutory ground of review would necessarily have arisen.

37    In Australia, a prior administrative representation might, on particular facts, govern the content of a procedural fairness obligation prior to the exercise of an administrative power and the consequence of a failure to discharge that obligation: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 (Lam). Much would depend on whether an applicant proved that the administrative procedure adopted was unfair, not that an expectation engendered by a representation had been disappointed. If, on the evidence, an applicant could not prove that the departure from an earlier represented position had in fact deprived him or her of the opportunity of putting forward additional material on which reliance would otherwise have been placed, no denial of procedural fairness would be established. Later, in Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 (Plaintiff S10), Gummow, Hayne, Crennan and Bell JJ observed, at [65], “the phrase ‘legitimate expectation’ when used in the field of public law either adds nothing or poses more questions than it answers and thus is an unfortunate expression which should be disregarded”. Lam and Plaintiff S10 evince a divergence between Australian and English public law in relation to the granting of substantive relief to those in whom a “legitimate expectation” has been engendered by a representation made by a public official: cf R v North and East Devon Health Authority; Ex parte Coughlan [2001] QB 213 and see Singh v Minister for Immigration and Citizenship (2011) 190 FCR 552, at [47].

38    Section 24(1)(c) of the Defence Regulations confers on the CDF and his delegates a discretionary power to terminate a defence member’s service for particular reasons, the material one of which, “interests of the Defence Force”, is dependent on the formation of a subjective, evaluative opinion. In itself, a prior representation could not operate to preclude the exercise of that discretionary power if that reason were considered to exist by the CDF or a delegate. When a judge of this Court, Gummow J in Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, at 210, explained:

[In] a case of a discretion, there is a duty under the statute to exercise a free and unhindered discretion and an estoppel cannot be raised (any more than a contract might be relied upon) to prevent or hinder the exercise of the discretion; the point is that the legislature intends the discretion to be exercised on the basis of a proper understanding of what is required by the statute, and that the repository of the discretion is not to be held to a decision which mistakes or forecloses that understanding.

39    On the facts of this case, no prior representation has been made to any of the Applicants that no further action would be taken in respect of the allegations which formed the subject of the earlier notices to show cause. Rather, what has occurred is a series of endeavours to comply according to law with an administrative procedure which may lead to a decision to terminate the service of one or more of the Applicants in the ADF under s 24(1)(c). Two earlier such attempts were conceded to have miscarried. There is no evidence of bad faith on the part of the CDF or any of the various delegates at any stage. Moreover, such a finding is not one which would lightly be made: s 140(2), Evidence Act 1995 (Cth). Responsibly in the circumstances, counsel for the Applicants did not invite such a finding to be made. Instead, and although, for the reasons given, reliance on Hunter was misplaced in relation to an allegation of abuse of power, one limb of the Applicants’ submission was that there must come a time when repeated endeavours to exercise a termination power in respect of ever more distant alleged events amounted to an abuse of that power.

40    It may be accepted that the law requires that the exercise of the termination power must be reasonable: Quin, at 36 per Brennan J; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li), at [47], [64] – [65] per Hayne, Kiefel and Bell JJ, at [88] – [90] per Gageler J. As Brennan J explained in Quin, at 36, “the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action”. As is made explicit by Brennan J in Quin, at 36, that formulation is derived from Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223 (Wednesbury) and such an abuse may be described as an abuse of that power. In s 5(2) of the ADJR Act, a distinction is drawn between “an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power” (s 5(2)(g)) and “any other exercise of a power in a way that constitutes abuse of the power” (s 5(2)(j)). The language of the former has an obvious provenance in Wednesbury and, as the earlier reference to an observation by Brennan J in Quin at 36 shows, that ground, if made out, would also demonstrate a type of “abuse of power”. In truth, this is but one instance of there being scope for overlap in the instances of what s 5(2) of the ADJR Act states may constitute an improper exercise of the power conferred by an enactment.

41    In Li, at [105] – [112], Gageler J surveyed issues of principle and practice which attend judging the reasonableness of the exercise of an administrative power. That survey included, at [105], this observation:

Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.

[Footnote references omitted]

42    In Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 (SZVFW), further explanation is offered about the unreasonableness ground of review, the incompleteness of Wednesbury derived formulations of the content of that ground and the stringency attending a conclusion that the ground is established. Thus, in SZVFW, at [11], Kiefel CJ stated:

Statements such as that made in the Wednesbury case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies.

[Footnote references omitted]

43    Also in SZVFW, Gageler J highlighted a distinction between the conception of legal unreasonableness as an “abuse of power” and the staying of proceedings on the basis that they constitute an “abuse of process”. His Honour stated, at [58]:

References in Li, as in Quin, to legal unreasonableness as an “abuse of power” cannot be read as treating a judicial conclusion of unreasonableness as admitting of a margin of appreciation of the kind involved in a judicial conclusion of “abuse of process”. Except to the extent specifically permitted by statute, a judge undertaking judicial review of administrative action would depart from performance of the judicial function and impermissibly enter the zone of discretion committed to the administrator were the judge to be drawn into forming his or her own conclusion as to whether the administrator had exercised power in a manner which, though lawful, might be characterised as an abuse.

[Footnote references omitted]

44    There is no basis for quashing the termination decisions on the basis of legal unreasonableness in the sense described. The reasons offered rationally explain an outcome based not just on findings of fact which are not challenged but on questions of policy and a resultant professional military evaluation of “the interests of the Defence Force”. WGCDR Lucas’ reasons disclose that she came to a decision within her lawful, delegated authority after weighing the competing considerations; hence the decision was not legally unreasonable: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1, at [75] per Griffiths J (with whom Allsop CJ, at [1] and [17], and Wigney J, at [90], agreed).

45    But the Applicants’ reliance on Hunter properly understood is not, I rather think (reflecting on the written and oral submissions as a whole and notwithstanding some interchangeability of reference), directed to the end of establishing an “abuse of power”, but rather directed to the end of establishing an “abuse of process”.

46    Thus far I have discounted the relevance of Hunter because of an absence of any anterior and material judicial determination and because it was concerned with an alleged abuse of process, not an alleged abuse of power. Hunter features in an introductory way in a discussion by Mason CJ, Deane and Dawson JJ in Walton v Gardiner (1993) 177 CLR 378 (Walton), at 393, as to the ability of a superior court to stay proceedings in an administrative tribunal on the basis that they constitute an abuse of process. The relevant principles, in respect of which it is said guidance is offered by cases concerning the ability of a court to stay its proceedings on the basis of abuse of process, are stated by their Honours, at 395:

In its application to the Tribunal, the concept of abuse of process requires some adjustment to reflect the fact that the jurisdiction of the Tribunal, which is not a court in the strict sense, is essentially protective - i.e. protective of the public - in character. Nonetheless, the legal principles and the decided cases bearing upon the circumstances which will give rise to the inherent power of a superior court to stay its proceedings on the grounds of abuse of process provide guidance in determining whether, assuming jurisdiction to do so, the circumstances of a particular case are such as to warrant an order being made by the Supreme Court staying proceedings in the Tribunal on abuse of process grounds. In particular, in a context where the disciplinary power of the Tribunal extends both to the making of an order permanently removing a medical practitioner from the Register with consequent loss of entitlement to practise and to the imposition of a fine of up to $25,000, there is plainly an analogy between the concept of abuse of a court’s process in relation to criminal proceedings and the concept of abuse of the Tribunal’s process in relation to disciplinary proceedings. In that regard, it is relevant to mention that we do not read any of the provisions of the Act as expressly or impliedly cutting down the scope of the general supervisory jurisdiction of the Court of Appeal to stay proceedings in the Tribunal on abuse of process grounds.

[Footnote references omitted]

47    Informed by principles which attend the exercise of a jurisdiction by a court to stay proceedings on the basis that they constitute an abuse of process, the majority in Walton, at 396, expressed the test to apply in deciding whether to stay an administrative process thus:

The question whether disciplinary proceedings in the Tribunal should be stayed by the Supreme Court on abuse of process grounds should be determined by reference to a weighing process similar to the kind appropriate in the case of criminal proceedings but adapted to take account of the differences between the two kinds of proceedings. In particular, in deciding whether a permanent stay of disciplinary proceedings in the Tribunal should be ordered, consideration will necessarily be given to the protective character of such proceedings and to the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners.

48    “Abuse of process” by an administrative tribunal or officer, as distinct from “abuse of power” by that officer, might, for reasons already given, be better characterised as falling under the “otherwise contrary to law” ground of review in s 5(1)(j) of the ADJR Act rather than the “otherwise abuse of power” ground in s 5(2)(j) of that Act. Further, the acceptance in Walton that a court’s supervisory jurisdiction in respect of “the administration of justice in New South Wales” (at 391-2) extended to the permanent staying of proceedings before a non-judicial body exercising a protective jurisdiction which amounted to an abuse of process is consistent with acceptance that, where jurisdiction to review the decision is conferred under the ADJR Act, it falls within s 5(1)(j) that it is contrary to law if, in singular circumstances amounting to an abuse of process, it is decided to pursue to finality a yet further endeavour to exercise the termination power conferred by s 24(1)(c). It is also consistent with acceptance that, if the ground were made out, the powers conferred by s 16 of the ADJR Act extend to ordering a permanent stay of that process. In other words, when exercisable by the Court under the ADJR Act, the jurisdiction is no less apt to prevent an abuse of process by an administrative official or body than that exercised by the New South Wales Supreme Court in Walton.

49    A military administrative process to the end of deciding whether the service of a defence member should be terminated under s 24(1)(c) is protective, not disciplinary, in character. A conclusion under s 24(1)(c) that a defence member’s retention is not “in the interests of the Defence Force” is protective of the Australian profession of arms by removing from its membership, according to the evaluation of the CDF or a delegate by reference to that criterion, persons of particular character or physical and mental capabilities or skills. Behaviour entailing consumption of prohibited substances offers a ready, rational example of a circumstance where retention may not (not necessarily must not) be “in the interests of the Defence Force”. As mentioned already, the Applicants no longer suggest that the character of the process is disciplinary.

50    WGCDR Lucas was correct in her understanding of the protective nature of the delegated power which it fell to her to exercise. Nonetheless, even though she was correct in that understanding and exercised the power in good faith, it does not necessarily follow that the administrative process which resulted in the termination of the Applicants’ membership of the ADF was not an “abuse of process”.

51    When all is said and done, Walton confirms that what is entailed in deciding whether there has been an abuse of process is a weighing process. Fairness to the Applicants is one consideration. Related to that, the termination decisions also truncated career choices of the Applicants in which income was but one factor; their responses to the show cause notices demonstrate that service to the Nation and related sense of pride and self-worth were also influential. The public interest earlier described is, obviously, another consideration. That is not the only public interest discernible. There is surely also a public interest in members of the ADF being treated fairly, in the sense of not oppressively, by the CDF and his delegates and being seen to have been so treated. Delay is a separate but not unrelated relevant factor. Delay may also have practical consequences, “Memories fade. Relevant evidence becomes lost.”: Herron v McGregor (1986) 6 NSWLR 246, at 253 per McHugh JA (with whom Street CJ and Priestly JA agreed). Delay may also carry with it a public interest consideration in the prompt resolution of questions concerning the suitability of particular defence members for continued service in the ADF. Elongation of process is obviously detrimental to the morale of the individuals concerned but perhaps also of 23 SQN, or even of the ADF generally. Such elongation also necessarily carries with it ADF command and control and organisational composition issues arising from a necessary uncertainty of outcome while the proposed termination process runs its course with respect to the defence members concerned. However, the varied circumstances in which further pursuit of a s 24(1)(c) process might amount to an abuse of process do not lend themselves to an exhaustive statement.

52    The fact that none of the earlier administrative processes which led to notices being vacated entailed a judicial decision on the merits is not necessarily decisive against the granting of a permanent stay. As Mason CJ, Deane and Dawson JJ observed in Walton, at 398, “It is true that the absence of an earlier hearing on the merits and the variations between personal complainants and the details of the complaints mean that, even if a strict rule against double jeopardy is applicable to proceedings in the Tribunal, the current proceedings would not fall within it. The sense of injustice which inspires the doctrine against double jeopardy was, however, plainly present in large measure.”

53    Here, the overall delay was not gross. The CDF, either personally or via a delegate, did have power to vacate earlier decisions to give notices of proposed termination if persuaded that those notices had not been given according to law: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. Where decisions to issue proposed termination notices were vacated, they were re-issued promptly. There is no suggestion that memories have faded or of an essential witness having become for whatever reason not available. The elongation of the process has doubtless been stressful for the Applicants and their families. Against that is the protective element in termination if, on the whole of the material, it supports, as WGCDR Lucas found it did, administrative satisfaction of the consumption of prohibited substances contrary to lawfully promulgated and individually acknowledged ADF policy. What occurred on and from the initial complaint was hardly exemplary military administration but weighing up all such considerations, I am not satisfied that the continuance of the s 24(1)(c) procedure in respect of the Applicants constituted an abuse of process.

54    In reaching that conclusion, I have also taken into account the absence of consideration in WGCDR Lucas’ reasons as to why a complaint which led to the initiation of investigatory procedures under the DFDA did not lead to the laying of charges under that Act in respect of service offences. The Applicants did not press a submission that a dimension of their abuse of process ground in relation to the termination process was a deliberate subversion by WGCDR Lucas of, or the potential for, a military disciplinary process under the DFDA. On the abuse of process ground as developed for the Applicants, the conclusion in law I have reached is that, in the circumstances, the ground is not made out. That conclusion is one for the Court. However, that conclusion having been reached, what to do in respect of the absence of consideration about why a military disciplinary process was not pursued is answered by regard to another passage in Sir Gerard Brennan’s enduringly influential judgment in Quin. Having stated that the role of the judicial branch was to answer the question of law raised in a case, his Honour stated, at 37:

In giving its answer, the court needs to remember that the judicature is but one of the three coordinate branches of government and that the authority of the judicature is not derived from a superior capacity to balance the interests of the community against the interests of an individual. The repository of administrative power must often balance the interests of the public at large and the interests of minority groups or individuals. The courts are not equipped to evaluate the policy considerations which properly bear on such decisions, nor is the adversary system ideally suited to the doing of administrative justice: interests which are not represented as well as interests which are represented must often be considered. Moreover, if the courts were permitted to review the merits of administrative action whenever interested parties were prepared to risk the costs of litigation, the exercise of administrative power might be skewed in favour of the rich, the powerful, or the simply litigious.

55    It is neither necessary, appropriate nor on the evidence open to me to reach a conclusion that either WGCDR Lucas personally or the CDF as a matter of deliberate policy has a disposition to subvert the elaborate checks and balances and military justice procedures found in the DFDA and the right of appeal against conviction conferred by the Appeals Act by preferentially resorting to what, after Fulton, is a near replication of the despotic power once exercisable at common law by the Crown in respect of the termination of military service. The absence of any explanation for the apparent abandonment of an original military disciplinary investigation does nothing more than raise an interrogative note. The conclusion reached in Private R as to the lawful reach of the DFDA suggests that the fact that consumption of prohibited substances by defence members occurred at CPL Burns’ private residence would not put that conduct beyond the reach of a charge being laid under the DFDA. Proceedings under the DFDA offer a range of sentencing outcomes on conviction, of which dismissal from the ADF is but one, but which also include sentences which may serve both punitive, as well as rehabilitative, purposes. On the other hand, there can be occasions when insufficient admissible evidence is available to prove offending conduct beyond reasonable doubt but when what is to hand, which need not be evidence admissible in a proceeding before a service tribunal, may reasonably engender administrative satisfaction that the conduct occurred. In those circumstances, resort to a military administrative termination process might be unremarkable. Many policy questions may possibly also be raised. Was the absence of laying of charges under the DFDA the result of an insufficiency of investigative competency in the JMPS or prosecutorial competency in the office of the Director Military Prosecutions? Was that absence affected by a command preference for the greater control and more limited review offered by administrative termination to the procedures under the DFDA? The ability lawfully and efficiently to conduct proceedings under the DFDA being a procedure inherently necessary in any deployment of the ADF in war (as a plethora of cases which came before the then termed Court Martial Appeal Tribunal in the Vietnam War exemplify), why was opportunity not taken to practise that procedure in peacetime if evidence permitted? After all, to maintain competency in the profession of arms, the ADF practises in peacetime many procedures which it knows it will need to conduct in war.

56    For just the reasons given by Brennan J in Quin, it is no part of the Court’s role to answer such questions. However, under our law, there are responsible officials who, depending on a policy value judgement which is for them to make, may be disposed to seek answers to one or the other of them, or others within their public policy remit. Under s 110C of the Defence Act, the Inspector-General of the ADF has inquiry and investigatory functions in relation to the military justice system. Under s 196A of the DFDA, the Judge Advocate General has a responsibility of annually reporting to Parliament in relation to the operation of that Act, the regulations, the rules of procedure, as well as ADF discipline and the operation of any other law of the Commonwealth or of the Australian Capital Territory in so far as that law relates to the discipline of the ADF. If, truly, there is a subversion of military discipline law by a preferential use of the termination power conferred by regulation under the Defence Act, then that would seem to me to “relate to” the discipline of the ADF in terms of s 196A of the DFDA. I shall therefore direct the Registrar to provide a copy of these reasons for judgment to each of these officials for such action, if any, as they think fit. To facilitate the making of such a policy value judgement, I shall also order that the Registrar make available to either or each of these officials on request a copy of the court book (subject to an existing access restriction regarding the USB containing the video recordings).

57    Finally in respect of this ground, it is not inconceivable that an unlawful use of information to initiate and inform the exercise of a power conferred by or under statute might be characterised as an abuse of that power. Further, it is likewise not inconceivable that, when based on an unlawful use of information, calling upon a person to show cause why that power should not be exercised might be characterised as an abuse of process. Thus, the two pressed grounds of review, although separate, may not be unrelated. Although I have, for the reasons given above, otherwise found no merit in the ground whether put as an abuse of power or an abuse of process, that conclusion may therefore need to be revisited depending upon the conclusion reached in relation to the alleged unlawful use of the video recording.

Unlawful use of the video recording?

58    It bears repeating that the video recording to which WGCDR Lucas referred in making the decisions under review was not that seized under warrant issued pursuant to s 101X of the DFDA. It was the video recording seized from the complainant after search under s 101W of the DFDA by an investigator after obtaining, in accordance with s 101ZA, her consent to the search. Further, the conduct of that search and the obtaining of that consent did not entail any derivative use of anything obtained under the search warrant issued pursuant to s 101X.

59    That distinction is not necessarily fatal to the ground of review which challenges the ability of WGCDR Lucas lawfully to refer to the video recording for the purposes of making the termination decisions. It does, however, mean that it is necessary to understand the meaning and effect, in context, of s 101ZA before dealing with the submissions made in respect of this ground.

60    By s 101W(1) of the DFDA, it is provided:

Search and seizure

(1)    An investigating officer may search a defence member or defence civilian, or clothing being worn by, or property under the immediate control of, a defence member or defence civilian, and may seize anything found in the course of the search that the investigating officer believes on reasonable grounds to be connected with a service offence if, and only if, the search and seizure is made by the investigating officer:

(a)    in pursuance of a search warrant issued under section 101X or 101Y.

(b)    in accordance with section 101P or 101Z; or

(c)    after obtaining, in accordance with section 101ZA, the consent of the defence member or defence civilian, as the case may be, to the search.

61    Section 101ZA provides:

Consent to search

(1)    Before obtaining the consent of a person for the purposes of section 101W, an investigating officer shall inform the person that the person may refuse to give his or her consent.

(2)    An investigating officer who obtains the consent of a person for the purposes of section 101W shall ask the person to sign an acknowledgement, in accordance with the prescribed form:

(a)    of the fact that the person has been informed that the person may refuse to give his or her consent;

(b)    of the fact that the person has voluntarily given his or her consent; and

(c)    of the date on which, and the time at which, the person gave his or her consent.

(3)    A search or entry and search, as the case requires, by an investigating officer by virtue of the consent of a person is not lawful unless the person concerned voluntarily consented to the search or entry and search, as the case may be.

(4)    Where it is material, in any action or proceeding, for a civil court or service tribunal to be satisfied of the voluntary consent of a person for the purposes of section 101W and an acknowledgment of the kind referred to in subsection (2) signed by the person is not produced in evidence, the civil court or service tribunal, as the case may be, shall presume, unless the contrary is proved, that the person did not give such a voluntary consent.

62    The prescribed form is Form 9: s 50 and Sch 1, Defence Force Discipline Regulations 2018 (Cth). That provides for a consent to “in relation to the investigation of a service offence”. As she records in her statement, the complainant signed a Form 9 prior to the search and seizure of her mobile telephone and the related access to and obtaining of the video recording referred to by WGCDR Lucas. WGCDR Lucas was entitled to, and did, proceed on the basis that the video recording she viewed was obtained via such a consent from the complainant.

63    Related to this, there is no submission that it should be presumed, pursuant to s 101ZA(4) of the DFDA, that there was an absence of voluntary consent by the complainant.

64    On its face, the purpose of s 101ZA is to reduce the prospect of controversy, in any proceeding under the DFDA in respect of a service offence, as to whether a search and any related seizure of a particular thing was consensual. It does this by providing for documentary evidence of an informed, voluntary consent by a person, while also incorporating a rebuttable presumption of involuntariness if there is no such written consent. That is both protective of a person said to have provided something to investigators and conducive to the obtaining of such evidenced consent by investigators. It is necessary to say “reduce”, because the possibility exists that, in a given case, a Form 9 apparently evidencing such a consent may itself have been given involuntarily. There is no suggestion of that in this case.

65    Regard to extrinsic materials confirms that this is the purpose of s 101ZA and also reveals its provenance.

66    Part VI of the DFDA, in which s 101W and s 101ZA are found, was inserted into the DFDA by s 44 of the Defence Legislation Amendment Act 1984 (Cth). From the Explanatory Memorandum circulated by the then Minister for Defence, the Honourable Gordon Scholes MP, it is apparent (pp 20-21) that Pt VI was introduced in anticipation that like rights, safeguards and powers would form part of a Criminal Investigation Bill proposed to be introduced (in succession to an earlier Criminal Investigation Bill 1981, which had lapsed when Parliament was dissolved in February 1983) but which could not be brought into force before the DFDA was to be brought into force. The intent was that those suspected of the commission of a service offence should enjoy like rights to those suspected of the commission of a federal or Australian Capital Territory criminal offence. As it happens, that proposed Criminal Investigation Bill was not introduced but the anticipated regime has remained in Pt VI of the DFDA. In turn, it is evident that the Criminal Investigation Bill 1981, and thus the replications found in Pt VI of the DFDA, was responsive to a recommendation (at [205]) made in a report of the Australian Law Reform Commission: ALRC, Criminal Investigation, (Interim Report, No 2, 1975). Regard to this report confirms what a reading of s 101W(1) (“if and only if”) in conjunction with s 101ZA and s 101ZB would suggest, which is that all searches and seizures are unlawful, unless compliant with the procedures specified in Pt VI. These procedures materially include an evidenced, voluntary consent given under s 101ZA, subject to a discretion, conferred by s 101ZB, exercisable by a service tribunal, in the circumstances of a given case, nonetheless to allow evidence so obtained to be admitted.

67    At the forefront of the Applicants’ submissions was the proposition that a judgment given by Atkinson J in Flori v Commissioner of Police [2015] 2 Qd R 497 (Flori) should be applied by analogy to the end of concluding that the termination decisions were tainted and should be quashed by reason of an unlawful reference to the video recording obtained by an officer of the JMPS for the purposes of the investigation of an alleged service offence.

68    In Flori, the applicant was a Queensland Police Service (QPS) officer who was suspected of committing certain offences. The QPS had applied for and was granted a warrant to enter and search the applicant’s premises under s 150(1)(a) of the Police Powers and Responsibilities Act 2000 (Qld) (the PPR Act). The purpose of that search warrant was to obtain evidence for the purpose of investigating certain criminal offences. During the execution of the search warrant, the QPS seized certain evidence, including computers. Ultimately, the QPS decided not to prosecute any criminal charges against the applicant, but instead to commence disciplinary proceedings against him for misconduct. The applicant sought injunctive and declaratory relief restraining the QPS from using the property seized under the search warrant or the post search approval order, or data, evidence or information derived from it in the disciplinary proceedings. That relief was granted.

69    Flori is noteworthy for a comprehensive discussion by Atkinson J of some undoubtedly pertinent authority. The principle derived (at [27]) by her Honour from this discussion was that, “Where information or material is obtained under compulsion authorised by statute, the use that can be made of that information or material is limited by the statute.” Having regard to Australian Securities and Investments Commission v Rich (2005) 52 ACSR 374 (Rich), at [305] per Austin J, her Honour stated (at [39]) that a “freely formed consent of the owner of seized documents to their prospective use in a proposed civil proceeding for the owner’s potential benefit is effective to remove the constraint that would otherwise prevent their use in civil proceedings”. Because Mr Flori had given no such consent, her Honour concluded that it was not lawfully possible for the QPS to use the information obtained pursuant to the search warrant granted under the PPR Act otherwise than for the purposes of consequential criminal proceedings.

70    At first blush, Flori does look so ostensibly similar as to require the upholding of this ground of review.

71    The Applicants starting premise in pressing for this conclusion was that the text of Pt VI demonstrated that the purpose of the search and seizure power was confined to the investigation of service offences. So much should be accepted, as to the exercise of that power. Part VI provides no authority to conduct a search, be that under warrant or by s 101ZA consent, for the purpose of obtaining material which may inform whether to exercise the termination power granted by s 24(1)(c). But it does not necessarily follow that Pt VI is exhaustive of the use which might lawfully be made of material obtained as a result of the exercise, for the purpose of the investigation of service offences, of the search power.

72    The Applicants’ further submission was that this purpose is not limited only to the procedure established by search warrants but extends to the procedure created for giving consent to search. They submitted that, properly construed, consent provided pursuant to s 101W(1)(c) and s 101ZA was, relevantly, the provision of consent to search property and seize “anything found in the course of the search that the investigating officer believes on reasonable grounds to be connected with a service offence.” In this manner, they sought to meet the consensual exception as to collateral use, acknowledged in Rich and Flori, by submitting that the use of material obtained as a sequel to consensual search and seizure was necessarily limited by the purpose for which that consent was given.

73    These further submissions, too, should be accepted, but again subject to a possible exception. Section 101W affords the same status to a search pursuant to a s 101ZA consent as it does to a search under warrant. It is clearly s 101W, and the attending purposes for exercising the powers in that section, that is determinative, in the sense that s 101W is the authorising provision for the search and seizure powers. Section 101ZA does no more than provide a framework to guide the exercise of the power that is contained in s 101W(1). The consent in Form 9 which the complainant gave was “in relation to the investigation of a service offence”, nothing more and nothing less.

74    Acceptance of these propositions is necessary but not sufficient to make out the Applicants’ case. It is necessary, in light of the CDF’s submissions, to consider the possibility that there is an applicable public interest use exception to the use limitation which flows by implication from s 101W, s 101ZA and the terms of the Form 9 consent.

75    Explaining why that is so requires quite some excursion into authority both in Australia and in the United Kingdom. Some of those authorities were addressed by Atkinson J in Flori. However, the possibility of a public interest use exception was not raised before her Honour by the QPS and therefore not addressed by her.

76    Like Atkinson J in Flori, I commence with the general proposition, discerned by Brennan J (with whom Dawson, Gaudron and McHugh JJ largely agreed) in Johns v Australian Securities Commission (1993) 178 CLR 408 (Johns), that the use which may be made of material obtained by a statutory process is dictated by the statute concerned, properly construed. Thus, at 423, his Honour stated:

… when a power to require disclosure of information is conferred for a particular purpose, the extent of dissemination or use of the information disclosed must itself by limited by the purpose for which the power was conferred. In other words, the purpose for which power to require disclosure of information is conferred limits the purpose for which the information disclosed can lawfully be disseminated or used. In Marcel v. Commissioner of Police of the Metropolis Sir Nicolas Browne-Wilkinson V-C said, in reference to a statutory power conferred on police to seize documents:

‘Powers conferred for one purpose cannot lawfully be used for other purposes without giving rise to an abuse of power. Hence, in the absence of express provision, the Act cannot be taken to have authorised the use and disclosure of seized documents for purposes other than police purposes.’

[Footnote references omitted]

77    It is necessary to say more about Johns, as it is the most relevant High Court authority in this area, albeit not directly on point. Johns involved, in part, a challenge by the appellant to the use of transcripts of interviews he was subject to under the Australian Securities Commission Act 1989 (Cth) (repealed) (ASC Act) by a State Royal Commission inquiring into the same subject matter. The ASC Act provided for an express confidentiality obligation on the Australian Securities Commission (ASC) in s 127. Further, it also expressly provided for the release of examinations under s 25. The ASC had purported to release the examination transcripts to the Royal Commission under either or both of s 127 and s 25 through an ASC officer who was seconded to the Royal Commission.

78    In what is arguably the leading judgment in Johns, Brennan J went on to say, at 424, “[a] statute which confers a power to obtain information for a purpose defines, expressly or impliedly, the purpose for which the information when obtained can be used or disclosed.” (emphasis added). Here, Brennan J recognises the possibility that the relevant purpose can be express or implied. Certainly, in Johns, the relevant statutory provisions provided express purposes for the use of the information obtained by the ASC. However, the DFDA does not have any like confidentiality regime. This means that any limitation on the use of information obtained under Pt VI must be made by implication.

79    Similarly, Dawson J stated, at 436, that “[t]here is also a general rule that where a body has statutory powers to compel the provision of information to it, it should not disclose the information except for the purposes for which the powers were conferred. … But in this case, the purposes for which disclosure may be made are specifically set out in the Act.” (emphasis added). Again, Dawson J identified that a critical part of Johns was the express provision of a confidentiality regime and related disclosure powers in the ASC Act. This is not the case with the DFDA.

80    In terms of using implication to derive an appropriate purpose of the use of information obtained under statute, McHugh J stated, at 467, “[a] statute conferring compulsory powers of examination is strictly construed. It is construed as authorizing only those actions which are necessary to give effect to the purpose for which the power is conferred and whatever is reasonably incidental to that purpose.” (emphasis added). The scope left by McHugh J for acts that are “reasonably incidental” to the purpose of the power further supports the proposition that implication has a role in determining the existence and scope of any confidentiality regime related to statutory powers.

81    Therefore, while Johns concerns a comprehensive statutory regime, it by no means forecloses on the role of implication in determining whether an obligation of confidence exists and the contents of such an obligation. This is particularly so in the context of this proceeding where the DFDA, and more specifically Pt VI of that Act, does not provide for an express confidentiality regime. This absence elevates the importance of both the statutory provisions authorising the obtaining of information (as discussed above) and the common law of confidentiality as established by Marcel v Commissioner of Police of the Metropolis [1992] Ch 225 (Marcel) (as discussed below).

82    A like point was made by Hely J in Williams v Keelty (2001) 111 FCR 175, where his Honour stated:

… it would be consistent with general principle to hold that it would be improper for documents seized pursuant to the warrant to be used for any purposes outside those comprehended by the warrant.

This conclusion was reached after consideration of Grollo v Macauley (1995) 56 FCR 533, in particular the comments by Northrop and Ryan JJ, at 551 – 552.

83    Given the issues in the present case, it is necessary to refer to more of what Sir Nicolas Browne-Wilkinson V-C said in Marcel than just the passage, at 234, cited in Johns, and also to refer to what was stated in the subsequent appeal to the Court of Appeal. To give context, it is desirable to set out, from the headnote in Marcel, a summary of the background facts. In the course of a criminal investigation concerning a property development, the police seized documents from the plaintiffs pursuant to powers contained in Pt II of the Police and Criminal Evidence Act 1984 (UK) (1984 Act). The plaintiffs were witnesses in two civil actions (the main actions) brought in connection with the property development. At the instance of the solicitors acting for Mr Jaggard, the defendant in those actions, a subpoena duces tecum was issued requiring the police to produce at the trial of one of the actions certain documents concerning the criminal investigation which Mr Jaggard wished to use as evidence, including documents which had been seized from the plaintiffs. The police allowed a representative of the solicitors to inspect and copy some of those documents before the subpoena was served. The documents, some of which were the subject of legal professional privilege, were produced by the police at court on the first day of the hearing of the actions, and some of those that had been disclosed to the solicitors were read out in open court. The plaintiffs, who objected to the use of the documents in the actions, then issued proceedings against the Commissioner of Police of the Metropolis and Mr Jaggard and his solicitors, and on the plaintiffs’ motion Browne-Wilkinson V-C made an order requiring Mr Jaggard and the solicitors to deliver up to the commissioner copies obtained by them from the police, of the plaintiffs documents, restraining the use by Mr Jaggard and the solicitors of information obtained from those documents except such as had already been read out or referred to in open court, and setting aside the writ of subpoena.

84    In Marcel, at 235, Browne-Wilkinson V-C also stated:

In my judgment, subject to any express statutory provision in other Acts, the police are authorised to seize, retain and use documents only for public purposes related to the investigation and prosecution of crime and the return of stolen property to the true owner. Those investigations and prosecutions will normally be by the police themselves and involve no communication of documents or information to others. However, if communication to others is necessary for the purpose of the police investigation and prosecution, it is authorised. It may also be, though I do not decide, that there are other public authorities to which the documents can properly be disclosed, for example to City and other regulatory authorities or to the security services. But in my judgment the powers to seize and retain are conferred for the better performance of public functions by public bodies and cannot be used to make information available to private individuals for their private purposes. It follows that in my judgment it was not lawful for the police to make the documents seized available to Mr. Jaggard’s solicitors for the private purposes of Mr. Jaggard’s litigation against the company.

[Emphasis in original]

85    On the subsequent appeal in Marcel, also reported at [1992] Ch 225, that order was set aside, but not because of any error in what Browne-Wilkinson V-C had stated, at 234 or 235. Instead, it was concluded that, while there were restrictions on the voluntary use to which the police could put documents seized by them under the 1984 Act, and notwithstanding any duty of confidentiality owed by the police to the owners of documents so seized, the plaintiffs could have been required by subpoena to produce in court, at the trial of the main actions, documents seized from them by the police if those documents had still been in their possession, or copies of them if they had been supplied with such copies by the police. Of the members of the Court of Appeal, Dillon and Nolan LJJ concluded that the police, in response to the order of the court represented by the subpoena duces tecum duly issued, were bound to produce in court the plaintiffs’ documents seized by them, except documents, including those the subject of legal professional privilege, although the plaintiffs had a legitimate ground of challenge to the latter. The remaining member, Sir Christopher Slade, took a different path but to the same end, referring to a need for the proper balancing by the court in its discretion of the competing public interests in ensuring the observance of the obligation of confidentiality and in ensuring that any trial should be conducted on full evidence required such production by the police; and that, therefore, except as regards the privileged documents, the judge’s order should be set aside.

86    It is not necessary for present purposes further to detail the reasons why the order was set aside in Marcel. What is presently important is what was said by the Court of Appeal of the observations made by Browne-Wilkinson V-C at 235. Dillon LJ, at 256, expressed general agreement both with the passage from the judgment of Browne-Wilkinson V-C at 234 (cited in Johns), as well as the further observations his Lordship made, at 235. In so doing, Dillon LJ added, at 256, “But I agree with these views solely in relation to the voluntary use by the police of documents seized under the [1984 Act] which are the property of other persons.” I interpolate that, in the present case, the video recording accessed by WGCDR Lucas remained the property of the complainant.

87    Nolan LJ agreed with the reasons of Dillon LJ, and, notably for present purposes, added, at 261:

The statutory powers given to the police are plainly coupled with a public law duty. The precise extent of the duty is, I think, difficult to define in general terms beyond saying that the powers must be exercised only in the public interest and with due regard to the rights of individuals. In the context of the seizure and retention of documents, I would hold that the public law duty is combined with a private law duty of confidentiality towards the owner of the documents.

88    Sir Christopher Slade, at 263, stated:

Further, the relevant sections would, I think, authorise acts which were reasonably incidental to the pursuit of those primary purposes, thus including in appropriate circumstances the disclosure to third parties of seized documents.

89    Thus, as cited and understood in Johns and Flori, Marcel certainly stands for the proposition that, “when a power to require disclosure of information is conferred for a particular purpose, the extent of dissemination or use of the information disclosed must itself by limited by the purpose for which the power was conferred”: Johns, at 423 per Brennan J. Indeed, this proposition is often now referred to as the “Marcel principle”. The additional observations by Browne-Wilkinson V-C, at 235, were undoubtedly obiter. However, their correctness was not just unaffected by the fate of the subsequent appeal but endorsed on that appeal.

90    Thus, Marcel also stands for the proposition that it by no means follows that there can be no additional uses of information obtained by or under statutory process. The correctness of this additional proposition is borne out by subsequent authority. Indeed, it is not so much an additional proposition as a concomitant of a principle which is grounded in what follows by necessary implication from the terms on which an information gathering power is conferred by statute. Of course, the extent to which wider disclosure might be made would necessarily be affected by the terms of the particular statutory regime. If the regime for the obtaining of the information also contained a charter listing out those to whom wider disclosure might be made, it may be difficult, if not impossible, to imply a yet wider class, no matter how compelling a public interest in that disclosure may seem. The latter is not a consideration in this case, because Pt VI of the DFDA contains no such wider disclosure charter.

91    So understood, and as will also be seen, the “Marcel principle” is analogous to the implied undertaking to a court restricting collateral use of documents obtained on discovery and inspection under the rules of court, for which Harman v Secretary of State for the Home Department [1983] 1 AC 280 is the root authority (hence the term, “Harman undertaking”), and to the circumstances in which a court will release a party from that implied undertaking. The strength of the analogy is highlighted by recalling a pithy but accurate description of the underlying rationale for the undertaking offered by McPherson J in Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509, at 510, “a document furnished for use for one purpose may not legitimately be used for another.” In Australia, more recent High Court authority holds that the implied undertaking is better understood as a substantive obligation of law: Hearne v Street (2008) 235 CLR 125, at [3] per Gleeson CJ, and at [96] and [105] to [108] per Hayne, Heydon and Crennan JJ. Thus, although the term “Harman undertaking” retains much local currency, its use must, in Australia, carry with it that understanding.

92    The aptness of such an analogy was recently accepted in the United Kingdom by Nicklin J in Baroness Lawrence of Clarendon v Associated Newspapers Ltd [2023] EWHC 2789 (KB). That was a case arising from an endeavour to use, in litigation, documents obtained under statutory process during the Leveson Inquiry in that country. Nicklin J stated, at [297]:

Where statutory powers to compel the production of documents from an individual have been used for a public inquiry, there is a corresponding expectation that any confidentiality in those documents will be appropriately respected. Ultimately, the public inquiry may decide that any confidentiality in documents that are provided is outweighed by a countervailing interest, but until such determination is made the party disclosing the documents and the inquiry share a common interest in appropriately protecting any confidentiality. Whilst the disclosing party has obvious private interests in maintaining confidentiality, the inquiry must also consider the broader public interest in the proper administration of justice, particularly the candour principle. It is not in the public interest for an individual in possession of documents that are potentially relevant to, and could assist with, a public inquiry to be discouraged from providing them in response to a s.21 Notice by a fear that the inquiry will not properly take into account any confidentiality interests. The analogy with the restrictions on collateral use of documents disclosed in legal proceedings is a powerful one because the underlying policy considerations are very similar.

93    As to this statement and with respect to the present case, it might equally be said, by analogy and in favour of acceptance of the Applicants’ submission, that it is important that those who would be disposed to assist with the investigation of an alleged service offence by the giving of a consent pursuant to s 101ZA of the DFDA should not be discouraged from providing that consent by a fear that the investigators will not properly take into account any confidentiality interests.

94    Before looking further to analogy, it is helpful in addressing the merits of the Applicants’ submission, and the CDF’s riposte, to consider authorities in the United Kingdom before and after Marcel concerning the further disclosure of material obtained pursuant to a statutory process.

95    A starting point for that consideration is R v Licensing Authority Established under Medicines Act 1968; Ex parte Smith Kline & French Laboratories Ltd [1990] 1 AC 64. As related (at 103) by Lord Templeman, who delivered the judgment of the House of Lords, the issue to be determined on that appeal was “whether English law prohibits the licensing authority from having recourse to the confidential information provided by the appellants in the course of their application for a product licence relating to cimetidine for the purpose of considering whether to grant or reject an application by Generics or Harris or anyone else for a product licence in respect of cimetidine.” In explaining why it was that the licensing authority was entitled to make additional use of the information provided, Lord Templeman stated (at 103-4):

It is essential for the licensing authority to compare the applications of the first and subsequent applicants in order to satisfy themselves that both products are similar, safe, effective and reliable. The licensing authority cannot discharge its duty to safeguard the health of the nation and its duty to act fairly and equally between applicants without having recourse to all the information available to the licensing authority, confidential or otherwise. Indeed it would not be practicable and it would be highly dangerous for the licensing authority to attempt to segregate in the case of each applicant the information which was confidential to that applicant and to forget or ignore that information when carrying out any function imposed upon the licensing authority by the Act of 1968 in the interests of the public.

My Lords, I am satisfied that it is the right and duty of the licensing authority to make use of all the information supplied by any applicant for a product licence which assists the licensing authority in considering whether to grant or reject any other application, or which assists the licensing authority in performing any of its other functions under the Act of 1968. The use of such information should not harm the appellants and even were it to do so, this is the price which the appellants must pay for cooperating in the regime designed by Parliament for the protection of the public and for the protection of the appellants and all manufacturers of medicinal products from the dangers inherent in the introduction and reproduction of modern drugs.

…

If the appellants choose to apply for a product licence under the Act, they choose to provide information to the licensing authority for the purposes of the Act. It is not unconscionable for the licensing authority to make use of that information in the public interest for the purposes of the Act, although it would be unconscionable for the licensing authority to disclose that information to third parties for other purposes.

96    A tempering consideration in relation to the CDF’s riposte in this case, flowing from these statements by Lord Templeman, is that the use made by WGCDR Lucas as his delegate was not for the purposes of the DFDA but rather for the purposes of s 24(1)(c), a regulation made not under the DFDA but rather the Defence Act.

97    Later is In re Arrows (No 4) [1995] 2 AC 75 (Re Arrows). While it would be necessary in any event to refer to this case, that reference is given added significance by the fact that the judgment of the House of Lords was delivered by Lord Browne-Wilkinson, who had by then been elevated. The background to that case, as related (at 92) by Lord Browne-Wilkinson was as follows:

The appellant was concerned with the running of a company. When it collapsed, he was examined by the liquidators under section 236 of the Insolvency Act 1986. There are transcripts of that examination. Acting under powers conferred by section 2(3) of the Criminal Justice Act 1987 the Serious Fraud Office (“the S.F.O.”) required the liquidators to produce those transcripts with a view to the S.F.O. using them as evidence in criminal proceedings against the appellant. The liquidators applied to the Companies Court for directions and the judge ordered that transcripts should not be handed over to the S.F.O. except upon an undertaking not to use the transcripts in evidence in the criminal proceedings. The question is whether the judge (whose decision was reversed by the Court of Appeal) was entitled to impose such undertaking precluding the use of the appellant’s answers as evidence in the pending criminal trial.

98    It is, in my respectful view, clear from the following statement by Lord Browne-Wilkinson in this case, at 98, that the obiter observations he had made in Marcel (at 235), as to additional uses which might lawfully be made of material obtained under statute for a particular purpose, commanded the agreement of the House of Lords (through the acceptance by counsel, Mr Lightman, of the proposition adverse to his case in the final sentence of the below quotation):

Mr. Lightman submitted that where information is extracted from an individual under statutory powers such information can only be used for the purposes for which those powers were conferred. The person who so obtains the information owes a private law duty of confidentiality not to disclose such information to others: Marcel v. Commissioner of Police of the Metropolis [1992] Ch. 225. He accepts that, like any other duty of confidentiality, this duty is not absolute but the court has a discretion to override it in the public interest: Marcel’s case.

99    Although the result in Re Arrows turned (see at 102) on what one might, with respect, see as the unremarkable proposition that a Marcel principle supported private duty of confidentiality necessarily yielded to a disclosure authorised or required by statute, its importance for present purposes is derived from its acceptance that the public interest might in any event support additional uses of information obtained under statute. That proposition offers some support for the submission made in this case by the CDF.

100    Yet more recent authority at ultimate appellate level in the United Kingdom is R (Ingenious Media plc) v Commissioners for Her Majesty’s Revenue and Customs [2016] 1 WLR 4164. That case concerned the confidentiality obligation of Her Majesty’s Revenue and Customs Commissioners (HMRC). HMRC had a statutory duty to keep information confidential unless its disclosure was made for the purposes of a function of the Revenue and Customs. A Commissioner had, albeit in good faith, given an “off the record” briefing to journalists about the tax “schemes” of Ingenious Media. This information was then reported in the media. Flowing from a conclusion that the briefing was not for the for the purposes of a function of the Revenue and Customs, it was held that there had been a breach of confidence. Lord Toulson delivered the judgment of the Supreme Court. The judgment of the Supreme Court includes these statements of principle:

(a)    at [17]: “Unfortunately the courts below were not referred (or were only scarcely referred) to the common law of confidentiality. The duty of confidentiality owed by HMRC to individual taxpayers is not something which sprang fresh from the mind of the legislative drafter. It is a well-established principle of the law of confidentiality that where information of a personal or confidential nature is obtained or received in the exercise of a legal power or in furtherance of a public duty, the recipient will in general owe a duty to the person from whom it was received or to whom it relates not to use it for other purposes. The principle is sometimes referred to as the Marcel principle, after Marcel v Commissioner of Police of the Metropolis [1992] Ch 225. …”

(b)    at [18]: “The Marcel principle may be overridden by explicit statutory provisions. In In re Arrows Ltd (No 4) [1995] 2 AC 75, 102, Lord Browne-Wilkinson said:

“In my view, where information has been obtained under statutory powers the duty of confidence owed on the Marcel principle cannot operate so as to prevent the person obtaining the information from disclosing it to those persons to whom the statutory provisions either require or authorise him to make disclosure.””

(c)    at [28]: “It is a cardinal error to suppose that the public law remedies and principles associated with judicial review of the exercise of administrative power, developed by the common law from the ancient prerogative writs, occupy the entire field whenever the party whose conduct is under challenge holds a public position. It is important to emphasise that public bodies are not immune from the ordinary application of the common law, including in this case the law of confidentiality. The common law is multi-faceted and remains the bedrock of the English legal system.”

101    Drawing what was said in these later United Kingdom cases at ultimate appellate level together, and applying them to the present case, I conclude that the CDF and the investigators were under a duty of confidence, flowing from s 101W and the limited permission granted to them by the Form 9 consent given to them by the complainant under s 101ZA of the DFDA, only to use the video recording and the information derived from it for the purposes of the investigation and any later prosecution of a service offence, subject only to an exception which would permit in the public interest a wider use. Alternatively, but to no different end insofar as that duty of confidence was derived by necessary implication from the terms of Pt VI of the DFDA, especially s 101W and s 101ZA, that implication extended to a wider permissible use in the public interest.

102    Other post-Marcel cases in the United Kingdom, decided below ultimate appellate level, offer some guidance as to what may, in the public interest, be wider permissible uses.

103    Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804 (QBD) arose from a use made by police of a photo of the plaintiff, taken while he was in custody suspected of shoplifting offences (of which he was later convicted). The police distributed the photo to shopkeepers in local area. The plaintiff sued the relevant Chief Constable for breach of confidence. The Chief Constable applied for summary dismissal. This was granted by Laws J, who concluded that the Chief Constable had a clear public interest defence available to the breach of confidence action (at 811). Although his Lordship accepted that a duty of confidence could arise when a photo of a suspect was taken in circumstances where his consent was not required, he concluded that in circumstances where the photograph was used reasonably and in good faith for the prevention and detection of crime, the investigation of alleged offences or the apprehension of suspects or persons unlawfully at large, the police would have a public interest defence to any action for breach of confidence (at 810). Lest it be thought otherwise, I should add that the consent to which his Lordship was referring was not a consent given under a regime where the alternative, were it not given, might be the taken of the photograph pursuant to some form of compulsory process.

104    Woolgar v Chief Constable of Sussex Police [2000] 1 WLR 25 (Woolgar) was a sequel to a police investigation into the death of an elderly person in a nursing home, which included interviewing a nurse. There were no charges laid. The police referred the matter to the nursing regulator, which then requested the interview transcript. The police asked the nurse for her consent to disclose the transcript. The nurse refused to provide consent and brought proceedings to obtain an injunction to prevent disclosure. The judgment of a unanimous Court of Appeal upholding a judgment dismissing the application for that injunction was delivered by Kennedy LJ. The question for resolution on the appeal was identified (at 29) by his Lordship in this way:

The question which arises in this case is whether, if the regulatory body of the profession to which the suspect belongs is investigating serious allegations and makes a formal request to the police for disclosure of what was said in interview, the public interest in the proper working of the regulatory body is or may be such as to justify disclosure of the material sought.

105    The reasons why this question was answered adversely to the appellant are found at 36:

Essentially [the plaintiff]’s submission was and is that when the plaintiff answered questions when interviewed by the police she did so in the reasonable belief that what she said would go no further unless it was used by the police for the purposes of criminal proceedings. The caution administered to her so indicated, and in order to safeguard the free flow of information to the police it is essential that those who give information should be able to have confidence that what they say will not be used for some collateral purpose.

However, in my judgment, where a regulatory body such as U.K.C.C., operating in the field of public health and safety, seeks access to confidential material in the possession of the police, being material which the police are reasonably persuaded is of some relevance to the subject matter of an inquiry being conducted by the regulatory body, then a countervailing public interest is shown to exist which, as in this case, entitles the police to release the material to the regulatory body on the basis that, save in so far as it may be used by the regulatory body for the purposes of its own inquiry, the confidentiality which already attaches to the material will be maintained. As [the respondent] said in [its] skeleton argument:

“A properly and efficiently regulated nursing profession is necessary in the interest of the medical welfare of the country, to keep the public safe, and to protect the rights and freedoms of those vulnerable individuals in need of nursing care. A necessary part of such regulation is the ensuring of the free flow of the best available information to those charged by statute with the responsibility to regulate.”

Putting the matter in Convention terms Lord Lester submitted, and I would accept, that disclosure is “necessary in a democratic society in the interests of … public safety or … for the protection of health or morals, or for the protection of the rights and freedoms of others”. Even if there is no request from the regulatory body, it seems to me that if the police come into possession of confidential information which, in their reasonable view, in the interests of public health or safety, should be considered by a professional or regulatory body, then the police are free to pass that information to the relevant regulatory body for its consideration.

106    One might, in my view, without straining all features of the Marcel principle, paraphrase the argument accepted by the Court of Appeal in Woolgar in the passage quoted in a way which would support the use by WGCDR Lucas of the video recording. An ADF comprised only of those whom it is “in the interests of the Defence Force” to retain is necessary in the interests of the country, to defend Australia, which includes the protection of our rights and also those of Australia’s allies. A necessary part of an ADF so comprised is the ensuring of the free flow of the best available information to those charged under s 24(1)(c) with the responsibility of deciding whether retention of a particular defence member is “in the interests of the Defence Force”.

107    The last United Kingdom case to which I would refer is R v Chief Constable of the North Wales Police, Ex parte AB [1999] QB 396 (Ex parte AB). Although decided in a Divisional Court, the judgment was delivered by one of that country’s greatest judges of the modern era, Lord Bingham. His Lordship offered, at 409 – 410, this statement of principle:

When, in the course of performing its public duties, a public body (such as a police force) comes into possession of information relating to a member of the public, being information not generally available and potentially damaging to that member of the public if disclosed, the body ought not to disclose such information save for the purpose of and to the extent necessary for performance of its public duty or enabling some other public body to perform its public duty. This principle would not prevent the police making factual statements concerning police operations, even if such statements involved a report that an individual had been arrested or charged, but it would prevent the disclosure of damaging information about individuals acquired by the police in the course of their operations unless there was a specific public justification for such disclosure. This principle does not in my view rest on the existence of a duty of confidence owed by the public body to the member of the public, although it might well be that such a duty of confidence might in certain circumstances arise. The principle, as I think, rests on a fundamental rule of good public administration, which the law must recognise and if necessary enforce.

108    An appeal from the Divisional Court’s decision was dismissed by the Court of Appeal: also reported at [1999] QB 396.

109    In the government of the Commonwealth, as in the United Kingdom, but explicitly in the Australian Constitution, public administration is not confined to civilian public administration. It includes military public administration. Under the Constitution, ultimate responsibility in respect of each aspect of public administration vests in the Governor General as the King’s representative. That is via s 61 which vests the executive government, which includes civilian public administration, of the Commonwealth in the Governor General in that capacity and, as to military public administration, via s 61, which also includes military public administration, and s 68, which vests the command in chief of the ADF in the Governor General in that like capacity. In each instance, via s 62 and convention, the Governor General acts on the advice of the Federal Executive Council. The point therefore is that there is nothing materially different under Australian constitutional arrangements which would preclude the fundamental rule of good public administration discerned by Lord Bingham in Ex parte AB. And that principle offers the most satisfactory rationale for the proposition I derived from Woolgar in an earlier paragraph.

110    Such principles must of course yield to statutory provision to the contrary. As already mentioned, Pt VI of the DFDA does not contain any express charter of authorised wider recipients which might by implication limit disclosure to a yet wider class. It is not an acceptable approach to statutory construction to approach that task as if a statute were a “suicide pact” (cf Terminiello v. City of Chicago, 337 U.S. 1 (1949), at 37, per Jackson J). Thus, as Browne-Wilkinson V-C allowed might be so in Marcel, at 235, it is surely a necessary concomitant in respect of any information obtained under Pt VI of the DFDA that it may lawfully disclosed in the interests of national security to another agency of the Commonwealth or of a State or Territory. Or used by the CDF for the purposes of the defence of Australia. And that is surely not the limit of such additional, permissible use of information so obtained.

111    Not every obtaining of information in good faith and for the purpose of the investigation of a service offence pursuant to Pt VI of the DFDA will result in the institution of proceedings before a service tribunal in respect of a service offence. There may be many reasons for this. Perhaps the most common circumstance will be an insufficiency of admissible evidence to institute a proceeding where the onus of proof for a service chief to discharge is beyond a reasonable doubt (as required by s 141, Evidence Act 2011 (ACT), as applicable via s 4A, Jervis Bay Territory Acceptance Act 1915 (Cth) and s 146(1), DFDA). One of the punishments which a service tribunal may impose where a service offence is proved is dismissal from the ADF: s 68(1)(c), DFDA. Although termination under s 24(1)(c) serves a protective, not punitive, purpose, it is an unlikely construction of Pt VI of the DFDA that, once possessed of material which might (if it proved possible later to institute a proceeding for a service offence) result in dismissal from the ADF, the CDF is unable to make any other use of that material, even if it might persuade him or a delegate that a defence member should be given notice to show cause why his or her service in the ADF ought not to be terminated “in the interests of the Defence Force”. The fundamental rule of good public administration discerned by Lord Bingham in Ex parte AB surely extends to the use of information so obtained for that purpose. Even where the reason why a service offence proceeding is unexplained, it is difficult to see how Pt IV of the DFDA by implication dictates that the CDF must quarantine information in his possession that may provide occasion for termination of service under s 24(1)(c).

112    It is neither necessary nor desirable to venture upon any attempted delineation of what may be the metes and bounds of this fundamental principle of good public administration in its application to disclosure of information obtained under Pt VI of the DFDA. It is only necessary to recognise that, whatever these may be, the use made by WGCDR Lucas as delegate of the CDF fell within them. That use was entirely in keeping with that principle and with uses contemplated by Browne-Wilkinson V-C in Marcel, at 235.

113    What follows then from this consideration of the further observations which Browne-Wilkinson V-C made in Marcel, and later authority, is that Flori is, for all its first blush attraction in support of this ground, distinguishable. The point taken by the CDF in this case was not taken by the QPS in that case. Although, for reasons given above, it is possible at a general level of abstraction to find some support in later authority for upholding this ground of review, the better view on the authorities, and having regard to the text, subject matter, scope and purpose of Pt VI of the DFDA, is that the point taken by the CDF is, also for the reasons given above, sound. The use of the video recordings by WGCDR Lucas was lawful. For this reason alone, the ground must fail.

114    As it happens, no different conclusion is occasioned by proceeding by analogy with authority concerning circumstances in which a court will release a party from a “Harman undertaking”, so as to permit a wider use of information obtained pursuant to discovery or other court process. As to this, the position in relation to such release was definitively stated by Gordon J (with whom, Kiefel CJ, Gageler and Gleeson JJ, at [12], relevantly agreed) in Deputy Commissioner of Taxation v Shi (2021) 273 CLR 235 (Shi), at [50]:

The undertaking also may be dispensed with or modified by the court in appropriate circumstances, although that dispensing power is “not freely exercised” (83). A party may be released from the undertaking with leave of the court provided the party shows “special circumstances” (84). Contrary to the submissions made by counsel for Mr Shi, leave of the court is required before a party will be permitted to use material obtained in a civil proceeding in furtherance of a criminal investigation or to provide such material to an investigative agency (85). Taking such steps without having sought and obtained leave of the court contravenes the Harman undertaking.

[Emphasis added, footnote references retained, footnotes omitted, save as follows]

115    One of the authorities cited with evident approval at footnote 85 in support of the highlighted circumstance where release may (not must) be permitted, namely release to an administrative agency, is the judgment I delivered in Sinnott v Chief of Defence Force [2020] FCA 643 (Sinnott), at [23] – [24]. In that case, I released the CDF from the obligation regarding the use of material for the purposes of that case so as to permit its use for the purpose of considering possible disciplinary charges under the DFDA or a reference to the Legal Services Commissioner. In that case, the material disclosed a use of information in an ADF publication marked “For Official Use Only”, which may have been outside the permissible class of use. Although it is fair to say that, before Shi, Sinnott had received a mixed reception in other cases at original and intermediate appellate level, it is neither necessary nor desirable in light of Shi to rehearse such cases in any detail. One need only additionally note its further citation with apparent approval by the Full Court in Glencore Coal Pty Ltd v Franks (2021) 284 FCR 622 (Glencore), at [26]. Although Glencore contains a comprehensive discussion of authority concerning circumstances in which release from a “Harman undertaking” might be granted, that discussion is to no different end than the summary offered by Gordon J in Shi. It is sufficient in this case to act on the latter.

116    Were the video recording to have been obtained from the complainant via, for example, discovery, non-party discovery or subpoena in the course of litigation to which the CDF was a party, it would, in my view, be entirely in keeping with the summary of principle offered by Gordon J in Shi to release the CDF from what would otherwise be an obligation to use that material solely for the purpose of that litigation if that material, prima facie, may have provided occasion for requiring a defence member to show cause why their membership of the ADF ought not be terminated pursuant to s 24(1)(c). In this regard also, it is not, in my view, an appropriate approach to the separation of powers for which the Constitution provides to proceed on the footing that there is, in that separation, a “suicide pact”. Certainly, each case in which release was sought would have to be considered on its individual merits. However, I find it difficult to see why, in terms of principle as summarised in Shi, if the CDF became aware as a party to litigation that particular defence members may be using prohibited substances, a court would not release the CDF from the restricted use obligation to which he was subject in order to pursue a s 24(1)(c) process.

117    Thus, proceeding by analogy confirms that this ground of review should not be upheld.

Outcome

118    It follows from the rejection of each of the grounds of review pressed that the application must be dismissed.

119    That the event on the originating application is dismissal would, in the ordinary course, see an order for costs, if sought, follow that event. Fulton offers an example of such a costs outcome in relation to an unsuccessful endeavour to challenge on judicial review a s 24(1)(c) termination of service decision.

120    However, the discretion as to costs conferred by s 43 of the Federal Court of Australia Act 1976 (Cth) is relevantly unfettered. My provisional view as to costs in this case is that, exceptionally, the costs discretion should be exercised such that, if they are sought by the CDF, there should be no order as to costs. Unlike in Fulton, this was a case which had its origins in an investigation of an alleged service offence and thus directed to the end of the institution of proceedings under the DFDA before a service tribunal if that investigation yielded sufficient evidence. Had such proceedings been prosecuted, and a conviction obtained, no service tribunal would have had power to make a costs order against the Applicants. Further, if the Applicants had challenged that conviction before the Defence Force Discipline Appeal Tribunal under the Appeals Act but without success, the ordinary way in which the Tribunal would have exercised the costs power conferred by s 37 of the Appeals Act would have been to make no order as to costs: Private R Army v Chief of Army [2022] ADFDAT 1; Stuart v Chief of the General Staff [1994] ADFDAT 2; Barry v Chief of Naval Staff [1994] ADFDAT 3. The position would be different on such an appeal, were, for example, it frivolous or vexatious. Why the Applicants were not dealt with under the DFDA is, as mentioned above, unclear.

121    Putting such considerations aside, and although I have concluded that there has been neither an abuse of power nor an abuse of process, the terminations of service of the Applicants were, nonetheless, the end result of a lengthy overall process which was, viewed overall, hardly a model of good military administration. That process was initiated and continued in circumstances where the Applicants always had, in light of Flori, a reasonably arguable case that it was not lawfully possible for the CDF or a delegate to make such use of the video recording obtained from the complainant. The interests served by this case are not wholly private to the Applicants. The outcome of the case has served a wider public interest in terms of the command and administration of the ADF by highlighting that material obtained under Pt VI of the DFDA may, in certain circumstances, be used for the purposes of the exercise of the termination power conferred by s 24(1)(c). That is a subject of pervasive importance in relation to the ADF. Another public interest served is the interrogative note, referred to above, raised by the circumstances of this case, which has prompted the making of the referral orders mentioned.

122    It was doubtless a considerable thing for three, quite junior in rank, members of the ADF to mount a challenge, relative to the virtually unlimited resources at the disposal of the CDF. Their civilian counterparts, if challenging before the Fair Work Commission a termination based on like material, would be unlikely to have been in jeopardy of any costs order. And the same would apply, given s 570 of the Fair Work Act 2009 (Cth), had such a challenge been pressed on judicial review of an industrial commission decision in this Court.

123    Relevant considerations and authorities concerning a departure from the usual way in which a costs discretion would be exercised were collected and discussed by the Full Court in Knowles v Secretary, Department of Defence (2021) 287 FCR 348 (Knowles), at [77] – [81]:

77.    Mr Knowles submitted that no order for costs ought to have been made against him. Once again, to overturn on appeal, the exercise of a judicial discretion requires that Mr Knowles demonstrate some error of principle.

78.    Mr Knowles put that a public interest was served by the case. He made reference to a number of cases in which, recognising this, the Court had, either in whole or in part, departed from the usual costs follow the event outcome in the exercise of a costs discretion: Singh v Minister for Immigration and Multicultural Affairs [1998] FCA 956, Shelton v Repatriation Commission (1999) 85 FCR 587 and Shafran v Repatriation Commission (No 2) [2020] FCA 1072. To these might be added, without in any way being exhaustive, Repatriation Commission v Braund (1991) 23 ALD 591 (Braund).

79.     In some circumstances, and the complexity of legislative provision currently favoured by Parliament in relation to various veterans’ entitlements can offer these, a particular case can be seen to highlight an issue of pervasive importance in public administration concerning an ambiguously worded statutory provision, not just the mere application of legislation in a given case. In these circumstances and where the issue raised is truly moot, a departure from the usual costs outcome can be warranted. But something more than just a need to construe a federal statute must be entailed to warrant such a departure. In Braund, for example, the point at issue concerned a truly difficult point of the construction and application of veterans’ entitlement provisions concerning the special (or totally and permanently incapacitated) rate pension to a veteran beyond the usual retirement age in the general population. At the time, that issue had a pervasive importance to a generation of Second World War veterans then in just that situation. In these circumstances, Pincus J (then a member of this Court) declined to make an order for costs, even though the Repatriation Commission succeeded in the proceeding.

80.     This case has none of those features. It concerns a purely private interest. There was no error of principle entailed in awarding costs in the usual way to the Secretary. These same considerations explain why it is that the usual order is appropriate in relation to the disposal of the appeal.

124    Taking into account what was stated in Knowles, my provisional view is that there should be no order as to costs. I emphasise, however, that this is not a concluded view. If a costs application is made by the CDF, it will be necessary to hear from the parties on its merits.

125    For the present, the order is that the application be dismissed, with additional referral orders as indicated.

Associate:    

Dated:    18 July 2024