Federal Court of Australia

Lee v Chief of Australian Defence Force [2026] FCA 519

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant’s application for an extension of time in respect of his judicial review application under ss 5(1)(e) and 5(2)(b), (f) and (g) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) is dismissed.

2.    The proceeding is otherwise dismissed.

3.    The Applicant pay the Respondent’s costs, to be taxed, if not agreed.

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

REASONS FOR JUDGMENT

BUTTON J:

1    The Applicant, Mr Lee, was previously employed by the Australian Defence Force (Defence Force). His employment was terminated pursuant to a decision made on 10 April 2024 of a delegate of the Respondent, the Chief of the Defence Force (Termination Decision). Mr Lee seeks judicial review of the Termination Decision pursuant to ss 5(1)(e) and 5(2)(b), (f) and (g) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).

2    I heard Mr Lee’s application for an extension of time to seek judicial review and (if leave be granted) his application for judicial review on 1 December 2025. Matters that arose during the hearing led to Mr Lee being given an opportunity to amend his application and make further submissions on the validity of s 24(1)(c) of the Defence Regulation 2016 (Cth) (Defence Regulation). The amendments made, and the disposition of the issues thereby arising, are addressed separately in these reasons, after addressing Mr Lee’s judicial review application (see paragraphs 88ff below).

The extension of time issue

3    Mr Lee accepts that his application for judicial review of the Termination Decision is out of time, and that he requires an extension of time in order to proceed. Mr Lee has sworn an affidavit (signed on 16 June 2025) explaining his delay on the basis that, until he read a paper authored by Justice Logan of this Court, he was unaware that he could seek judicial review of the Termination Decision.

4    Mr Lee’s affidavit explains that the “ordinary process”, as he understood it, was to raise a “redress of grievance” and ask the Defence Force Ombudsman to review the redress of grievance decision. Mr Lee did both of these things. The redress of grievance process concluded on 5 July 2024, and the Defence Force Ombudsman process concluded on 11 October 2024. Mr Lee then attempted to file an application in this Court on 17 February 2025, but it was not accepted for filing until 12 March 2025, due to some apparent deficiencies in his application for an extension of time not including a draft application for judicial review. Mr Lee was subsequently granted leave to file an amended application, annexing a draft application for judicial review, and did so on 2 July 2025.

5    Although the 28-day time limit for filing an application for judicial review under s 11(3) of the ADJR Act expired on 8 May 2024, the Respondent noted that the delay between the finalisation of the Defence Force Ombudsman process and Mr Lee’s attempt to initiate proceedings in February 2025 was just over four months. The Respondent accepted that it was reasonable for Mr Lee to exhaust internal review mechanisms first, and that he was not prejudiced by the delay. The Respondent did not submit that Mr Lee’s explanation for the delay was insufficient, and noted his status as a litigant in person.

6    The Respondent nevertheless opposed the grant of an extension of time on the basis that Mr Lee’s application lacked sufficient merit, and, for that reason, it was not in the interests of the administration of justice to grant an extension.

7    An application for an extension of time in which to file an application under the ADJR Act is made under r 31.02 of the Federal Court Rules 2011 (Cth) (Rules). Neither s 11(1)(c) of the ADJR Act (which allows an application to be made within “such further time” as the Court allows), nor r 31.02 of the Rules, prescribe any criteria for when the grant should be made, or refused, but both require that the supporting affidavit explain the delay. The considerations that are generally regarded as relevant to the Court’s exercise of its discretion to grant an extension of time include the length of delay, the explanation for the delay, any prejudice caused by the delay and the prospects of the application in respect of which the extension of time has been sought: Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 (Katoa) at [40] (Gordon, Edelman and Steward JJ), referring to Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 (Hunter Valley) at 348–349 (Wilcox J). The Court will not grant the application unless “positively satisfied that it is proper to do so”, which will usually require that the Court be satisfied that the applicant has provided an acceptable explanation for the delay, and that it is “‘fair and equitable in the circumstances’” to extend time: Hunter Valley at 348 (Wilcox J).

8    I accept that Mr Lee has satisfactorily explained the delay in making his judicial review application. By pursuing the redress of grievance procedure, and seeking a review by the Defence Force Ombudsman, Mr Lee has not “‘rested on his rights’” (Hunter Valley at 349 (Wilcox J), quoting Doyle v Chief of General Staff (1982) 42 ALR 283 at 287 (Fisher J)) or otherwise conducted himself on the basis that he accepted, and did not intend to challenge, the Termination Decision.

9    The only issue standing in the way of an extension of time is the merits of Mr Lee’s proposed judicial review application. While, in various statutory settings, the merits of a proposed application are addressed at a relatively impressionistic level in considering whether to grant an extension of time, the High Court confirmed in Katoa that there will be circumstances in which it is appropriate for the Court to engage more deeply with the merits: at [18]–[20] (Kiefel CJ, Gageler, Keane and Gleeson JJ); [62]–[64] (Gordon, Edelman and Steward JJ).

10    I consider this a case in which it is appropriate to assess the merits of the proposed judicial review grounds at the deeper level. They were fully argued before me and it would be artificial to attempt to address the extension of time application on the basis only of an impressionistic assessment. Further, as Mr Lee’s contentions on his judicial review case went beyond the strict bounds of the grounds set out in his proposed originating application but were addressed in argument, it would do Mr Lee a disservice to assess his extension of time application only on the basis of an impressionistic assessment of the grounds of judicial review articulated in his originating application. Once one moves beyond the originating application into the complaints Mr Lee actually advances, it is impractical to attempt to address the merits at an impressionistic level.

11    Having assessed the merits of Mr Lee’s contentions, I am of the view that they have no merit and refuse an extension of time accordingly. Even were I to have granted an extension of time, I would have dismissed his judicial review application in any event for the reasons set out below.

Factual background

12    The relevant factual background recorded in the Termination Decision is as follows:

(1)    On 16 September 2022, Mr Lee took a photo of a naked woman in his Defence Force living quarters. The woman did not give Mr Lee permission to take the photo.

(2)    On the same day, Mr Lee forwarded and shared the image via a chat on the “SIGNAL” application. The group on that chat, called “Session 18 (no staff)” comprised 12 Defence Force members (Session 18). The woman did not give consent for the naked photo of her to be shared with others. In an interview with the Joint Military Police Force — Melbourne (Military Police), Mr Lee described the Session 18 group chat as a group that was “used mostly for the duty student to inform the rest of our session about the next time we need to be somewhere” and added that “after hours it’s also used for just light hearted conversation”.

(3)    Another member of the Session 18 chat group, SIG Reiza Ariva-Hale, made a statement in which he, amongst other things, said he was “shocked because it was a chat group for work”. SIG Ariva-Hale also stated that the “Duty Student of the day, SIG Hin Lo had commented underneath the photo in the chat saying that the photo was not appropriate for that group and should be posted in another group if he, [Mr] Lee wanted to post that sort of thing”.

(4)    On 20 September 2022, an entry in Mr Lee’s Troop Commander’s Notebook indicated that Mr Lee had been bragging about his actions on 16 September 2022 and his subsequent Military Police interview. The Platoon Commander made the following note in Mr Lee’s notebook:

After being interviewed by ADFIS, SIG Lee believes he is off the hook and has been bragging about [it] within the session chat, showing photos of himself drinking and celebrating.

(5)    On 31 March 2023, Mr Lee shared an image of SIG Ariva-Hale’s witness statement on the Session 18 chat with the comment “Very disappointed in you Reiza”.

(6)    Mr Lee’s Commanding Officer, after considering Mr Lee’s response, recommended that Mr Lee’s service in the Defence Force be involuntarily ceased.

The provisions under which Mr Lee’s service was terminated

13    Section 24(1)(c) of the Defence Regulation provides that “The Chief of the Defence Force may terminate the service of a member for one or more of the following reasons: … (c) retention of the member’s service is not in the interests of the Defence Force”.

14    The term “interests of the Defence Force” is defined, on a non-exhaustive basis, by s 6(2) of the Defence Regulation, as follows (bold emphasis added):

(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.

15    The Defence Regulation is an instrument made under s 124 of the Defence Act 1903 (Cth) (Defence Act): s 3 of the Defence Regulation.

16    Section 30 of the Defence Regulation provides that, where notice of an action is to be given to a member — as was the case in respect of the proposed termination of Mr Lee’s service — the notice must set out the action that is proposed and the reason for the proposal, and must invite the member to provide a “written response as to why the proposed action should not be taken”. Section 30 further requires that the notice must “set out the facts and circumstances necessary for the member to prepare the written response”, as well as specifying when the response must be provided.

The Notice, Mr Lee’s response to the Notice, and the Termination Decision

17    The Respondent’s delegate had before him various documents, listed in the Termination Decision. Those documents included the “Involuntary Cessation of Service Notice” (Notice) dated 14 February 2024, notifying Mr Lee that it was proposed that his service in the Defence Force be ceased pursuant to s 24(1)(c) of the Defence Regulation, Mr Lee’s response to the Notice dated 28 February 2024, as well as the recommendation of Mr Lee’s Commanding Officer dated 15 March 2024.

18    The Notice issued to Mr Lee set out the facts and circumstances relevant to the proposal to cease Mr Lee’s service, including:

(1)    Mr Lee’s conduct in capturing an intimate image of a civilian female in his “LIA [Living In Accommodation] room” without the woman’s knowledge and sharing the image on the group chat demonstrated a disregard for “Defence Values” (Defence Values), specifically Respect, Integrity and Excellence.

(2)    Mr Lee’s conduct in bragging about being “off the hook” demonstrated a disregard for Defence Values, specifically Integrity and Excellence.

(3)    Mr Lee’s conduct in sharing the image of SIG Ariva-Hale’s witness statement on the group chat, with the comment “Very disappointed in you Reiza” constituted harassment and unacceptable behaviour as described in the Complaints and Alternative Resolutions Manual (CARM). The conduct was inconsistent with Defence Values, specifically Respect and Integrity.

(4)    The cumulative effect of Mr Lee’s conduct undermined Mr Lee’s Commanding Officer’s confidence in him, his professionalism and integrity and his suitability to be retained as a member of the Defence Force.

19    The Defence Values — service, courage, respect, integrity and excellence — were set out in an Australian Army Order of the Day document dated 6 October 2020.

20    The Notice also outlined that, in making a decision, the Respondent’s delegate would consider Mr Lee’s service record, posting and training history as recorded in his “PMKeyS Record of Service” and the criteria listed in ss 5 and 6(2) of the Defence Regulation.

21    In addition to notifying Mr Lee about his opportunity to respond, and the availability of service-funded legal assistance, the Notice stated that (bold emphasis added):

After reviewing this Notice and your written response, the delegate for the cessation of your service may determine it appropriate that your service be retained subject to other administrative actions or other action as per the MILPERSMAN, Part 9, Chapter 2 Formal Warnings and Censures in the Australian Defence Force. You should therefore address other administrative actions including Reduction in rank, Reduction in seniority, Censure or Formal Warning in your response.

22    In his response to the Notice, dated 28 February 2024, Mr Lee:

(1)    Stated that he is a “capable and deployable member who embodies the Defence values of Courage and Excellence”.

(2)    Contended that the image was not an “intimate” image.

(3)    Contended that no view should be taken on his regard for Defence Values based on his taking and dissemination of the image until the Victorian County Court — in which he was being prosecuted under the Victorian Summary Offences Act 1996 (Vic) — determined the matter before it, which involved determining whether the image was “intimate” for the purposes of the relevant summary offence.

(4)    Contended that his privacy was invaded when a member of the group chat, which was not the “main session group chat” but rather an “informal private group chat, which is used by members to write personal opinions, humour and light-hearted ‘banter’”, provided “my personal information” to another outside the group.

(5)    Said that he “believed that a private group chat of twelve members who I worked with closely, who were all men, held Negative Vetting 2 clearances and understood their responsibility to apply the Australian Privacy Principles, should be a safe space for me to communicate with my peers and express private and sensitive personal opinions about sexual preferences and philosophical beliefs”.

(6)    Said that no view should be taken of his regard for Defence Values “based on information obtained through a breach of the Australian Privacy Principles”.

(7)    Disputed that he had been “bragging” about being off the hook, contending that the source of the allegation was an unreliable person and that his privacy had likewise been invaded in relation to the contents of the group chat as the source of the allegation was not a member of the group chat. Mr Lee again stated that no view should be taken as to his regard for Defence Values where Defence Force staff obtained “private information without consent by breaching the Australian Privacy Principles”.

(8)    Stated that his posting of SIG Ariva-Hale’s witness statement to the chat with the “Very disappointed in you Reiza” comment was not malicious or action harassing SIG Ariva-Hale. Mr Lee stated that he did it to “uphold the intent” of the CARM “to resolve workplace conflict at the earliest opportunity and at the lowest appropriate level”.

(9)    Contended that he “hold[s] [the Defence Force] in high esteem”, does not gossip, does not disclose information from private group chats, does not go outside his chain of command to “secretly inform on my colleagues”, which Mr Lee said were “all behaviours I have had the bad luck to be subject to from some rather unscrupulous people I was on IET [Initial Employment Training] with at the DFSS [Defence Force School of Signals]”.

23    It should be noted that, in his response to the Notice, Mr Lee:

(1)    Did not raise the matter that he had not had the “SeMPRO Foundation of Knowledge” training until September 2023. “SeMPRO” stands for “Sexual Misconduct and Prevention Response Office”.

(2)    Did not contend that the Defence Values were vague (on the contrary, as mentioned in paragraph 22 above, he contended that he was a “deployable member who embodies the Defence values of Courage and Excellence”).

(3)    Did not contend that his actions were consistent with the Defence Values of Respect, Integrity and Excellence.

(4)    Did not take up the suggestion in the Notice (referred to in paragraph 21 above) that he make submissions regarding his service being retained subject to other, lesser administrative action (such as censure of a formal warning).

24    In the Termination Decision, the delegate of the Respondent reasoned as follows in determining that Mr Lee’s service was to be involuntarily ceased:

(1)    There was evidence that Mr Lee took a photo of the woman who was naked without her permission or consent and had posted the image on a group chat — consisting of approximately 12 male Defence Force members — again without her permission or consent.

(2)    There was evidence that Mr Lee knew that taking a photo of a woman who was naked without her permission, consent or knowledge was wrong, as was posting that photo on the group chat.

(3)    The photo of the woman would be considered an “intimate image” by a reasonable person, notwithstanding that Mr Lee claimed the image was not an “intimate image”.

(4)    Mr Lee’s Commanding Officer, after detailed consideration of his response, had lost confidence in Mr Lee’s ability to continue to serve, and recommended ceasing Mr Lee’s service.

(5)    Mr Lee’s response to the Notice showed that Mr Lee had not “demonstrated any acceptance of or responsibility for [his] actions”. Rather, Mr Lee’s response contended that the image he took of the naked woman was not an intimate image.

(6)    The fact that Mr Lee took the image of the naked woman without her consent, permission or knowledge and distributed the image, was considered “inappropriate and unacceptable behaviour by the standard of the ADF”.

(7)    While noting that Mr Lee claimed that the group on which he posted the image was private, the delegate found that the group chat in question was for Defence Force members on course with Mr Lee, and there was evidence that the group chat was considered for workplace communication between course members.

(8)    The collection of information regarding complaints of inappropriate behaviour by Mr Lee did not constitute a breach of his privacy. Although Mr Lee alleged that, as all members of the group held a “Negative Vetting 2 security clearance” and he (Mr Lee) was satisfied that the image would not be forwarded by members of the group chat, that did not mean that provision of the image and group conversation to “Service Police” constituted a breach of Mr Lee’s privacy. The delegate also referred to the fact that the information collected by the Defence Force was collected to investigate complaints made by other Defence Force members of possible inappropriate conduct.

(9)    In relation to Mr Lee’s conduct in posting the witness statement of SIG Ariva-Hale to the chat, the delegate rejected Mr Lee’s contention that he was trying to resolve a perceived workplace issue at the lowest appropriate level, noting that Mr Lee posted the witness statement on a group chat that allowed others to see the content, and had not communicated directly with SIG Ariva-Hale. The delegate went on to conclude that posting the witness statement was an attempt to “harass another member for speaking up and not being a bystander”.

25    The Termination Decision also included a section headed “Why the decision was made”. The reasoning set out in that section of the Termination Decision is as follows (bold emphasis and underlining in original):

13.     Retention of your service is not in the interests of the Defence Force. After consideration of the factors set out at paragraphs 9 and 12 above and in paragraph 4.18 of Reference H, I am satisfied that the retention of your service is not in the interests of the Defence Force. You have displayed unacceptable behaviour and lacked respect for others in your actions detailed within the ICSN.

14.     I have concluded that on the balance of probabilities, a reasonable person would consider the image you took of a naked female would be considered intimate. You showed a lack of respect and no regard for this person by taking the image without her permission, consent and knowledge, then posting the image on a group chat again without her permission consent or knowledge. I have determined that this constitutes unacceptable behaviour. You posted a witness statement again on a group chat, I have assessed this was an attempt to harass another member for speaking up and not being a bystander, this action is not aligned with behavioural expectations of a soldier. All Defence personnel have a responsibility to behave in a way that upholds our Values as an organisation, both at work and in any situation that may be connected to Defence. Values-based behaviour requires everyone to accept personal responsibility for their actions and the subsequent consequences for themselves, others and Defence.

15.     You have not demonstrated the strength and consistency of character to align your thoughts, words and actions to do the right thing always. You have not exhibited the humanity of character to value others and treat them with respect and dignity or align your behaviour with the Defence Values (Reference I). Your actions as outlined within the ICSN are incompatible with Defence Values, and not aligned with behavioural expectations of service within the ADF. You have lacked judgment, maturity and awareness of the consequences for your actions.

16.     As my decision concerns the involuntary cessation of your service, it is a decision in relation to which I have carefully and fully considered all of the factors including all aspects of your response at Reference D and the relevant policies and standards at References F to K. Because matters have not been stated in this document does not indicate that they have not been considered, or that they have been inadequately considered.

The proposed grounds of judicial review

26    Mr Lee’s draft originating application sets out four proposed grounds, as follows:

1.     The decision did not take a relevant consideration into account, which was that in September 2022 I had not received any training, instruction or guidance on the topic of intimate images, which the army did eventually implement in its annual mandatory training in 2023.

2.     The decision was made without regard to the merits of the particular case, which were that the misbehaviour was isolated to two instances of digital misbehaviour, the first being the sending of an image to the 'Signal' chat and the second being the sending of an excerpt of a military police witness statement to the same 'Signal' chat; behaviour which should have been handled in a manner other than early termination.

3.     In light of the frequency and scale of misbehaviour that occurs in the ADF which is not handled by the early termination power, the use of the early termination power in this instance on a junior soldier was unreasonable.

4.     I was not aware Defence, as my employer, would access private telecommunications for the purpose of deciding to terminate my employment in the ADF, and I believe that access breached the Privacy Act.

27    Mr Lee seeks to rely on s 5(1)(e), and ss 5(2)(b), (e) and (g) of the ADJR Act.

28    Section 5(1)(e) relevantly provides that: “(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the decision on any one or more of the following grounds: … (e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made”.

29    Section 5(2) provides that the reference to an improper exercise of a power is to be construed as including a reference to various things, including:

(a)    failing to take a relevant consideration into account in the exercise of a power (s 5(2)(b));

(b)    an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case (s 5(2)(f)); and

(c)    an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power (s 5(2)(g)).

30    As emerged from Mr Lee’s written and oral submissions, his contentions regarding the Termination Decision were not confined to those articulated in his originating application. In particular, Mr Lee raised additional matters under the broad rubric of the Termination Decision being unreasonable within the meaning of s 5(2)(g) of the ADJR Act. The Respondent addressed Mr Lee’s contentions and did not take any point about his submissions straying outside the bounds of his originating application.

31    As Mr Lee has not had the benefit of legal advice in formulating his grounds, and because the Respondent did not take issue with Mr Lee’s submissions going outside the bounds of his originating application, I have proceeded to consider Mr Lee’s various contentions in the course of addressing the articulated grounds.

Matters relevant to the judicial review application of a decision made under s 24(1)(c) of the Defence Regulation

32    Section 24(1)(c) of the Defence Regulation confers a broad discretionary power. Beyond requiring that the Respondent (or his delegate) reach a conclusion that retention of the member’s service is “not in the interests of the Defence Force”, s 24(1)(c) does not explicitly specify matters that must be taken into account in reaching that conclusion. Likewise, the section does not explicitly specify any matters that must not be taken into account.

33    As confirmed by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 (Peko-Wallsend) at 39, it is only where a mandatory relevant consideration is not considered that a judicial review application under ss 5(1)(e) and 5(2)(b) will succeed. The Full Court expanded on the matter in Martincevic v Commonwealth [2007] FCAFC 164; (2007) 164 FCR 45 (Martincevic) at [59] (Finn, Kenny and Greenwood JJ) (emphasis in original):

Under the Judicial Review Act as at common law, the accepted position is that: (i) the ground of failure to take a relevant consideration into account can only be made out if a decision-maker fails to take into account a consideration he or she is bound to take into account in making the decision; (ii) the considerations a decision-maker is bound to take into account are determined by the statute (in this case, the Defence Act and the Personnel Regulations and instructions made under the Act) conferring the discretion; (iii) if the relevant considerations are not expressly stated, then they must be determined by implication from the subject-matter, scope and purpose of the statute; and (iv) a court will not find that a decision-maker is bound to take a particular matter into account unless an implication to that effect can properly be made: see generally Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J.

These observations of the Full Court in Martincevic were recently confirmed by the majority in Fulton v Chief of Defence Force [2023] FCAFC 134; (2023) 300 FCR 623 (Fulton Appeal) at [159] (Sarah C Derrington and Stewart JJ) (note that the Fulton Appeal concerned the Defence Regulation, whereas Martincevic concerned the previous, prescriptive regime under the predecessor Defence (Personnel) Regulations 2002 (Cth)).

34    What, then, are the mandatory relevant considerations in the exercise of the s 24(1)(c) power? The matters that a decision-maker is bound to take into account are determined by construction of the legislation conferring the discretion: Peko-Wallsend at 39 (Mason J). In the absence of any explicit specification of relevant matters, the matters that a decision-maker is bound to take into account “must be determined by implication from the subject-matter, scope and purpose of the [legislation]”: Peko-Wallsend at 39–40 (Mason J). Here, the provision confers a broad discretionary power, to be exercised in the formation of a judgment that is inherently evaluative and in respect of which there is not only one legally reasonable path of reasoning that may be followed, or only one legally reasonable conclusion that may be reached.

35    While s 6(2) of the Defence Regulation sets out a non-exhaustive list of reasons for something being, or not being, in the interests of the Defence Force, the matters set out in s 6(2) are not mandatory relevant considerations: Fulton Appeal at [184] (Sarah C Derrington and Stewart JJ) (cf Logan J, differing on this point at [108]).

36    The scheme by which notice of a proposed termination is given to the member, and the member then has the opportunity to respond (s 30 of the Defence Regulation) is also relevant to the way in which the present judicial review application is to be approached. Consistent with long-standing principles of administrative law a decision-maker is required to read, identify, understand and evaluate representations made by a person the subject of the decision: see, eg, Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 at [24] (Kiefel CJ, Keane, Gordon and Steward JJ) and cases cited therein.

37    It follows that the Respondent’s delegate had to consider the matters raised by Mr Lee in his response to the Notice but, other than in respect of any mandatory relevant considerations, it was for Mr Lee to raise the matters that he wanted the Respondent’s delegate to take into account: Fulton v Chief of the Defence Force [2022] FCA 1582; (2022) 178 ALD 185 at [66], [117]–[118] (Fulton); see also Fulton Appeal at [207]–[208] (Sarah C Derrington and Stewart JJ); [68] (Logan J). This is of central relevance to Mr Lee’s contention based on a failure to take into account a relevant matter (specific aspects of his training), and Mr Lee’s contention that the Termination Decision was unreasonable by reason of a failure to consider certain matters.

38    Mr Lee contended that the Termination Decision was unreasonable on various bases. In addressing those contentions, it is important to keep two things firmly in mind. First, unreasonableness under s 5(2)(g) is limited to an exercise of power that is “so unreasonable that no reasonable person could have so exercised the power”. Secondly, and relatedly, legal unreasonableness constitutes a stringent standard. Legal unreasonableness is a conclusion reached where a decision lacks an evident and intelligible justification: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) at [76] (Hayne, Kiefel and Bell JJ); see also French CJ at [25]. Judicial review for unreasonableness respects the area of decisional freedom accorded to a decision-maker exercising a discretionary power; judicial review does not open a side door to merits review: Li at [66] (Hayne, Kiefel and Bell JJ). As French CJ explained in Li (at [30]):

The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker.

Without derogating from the force of those observations regarding the limits of judicial review for unreasonableness, particularly where the decision is based on a broad, evaluative discretion, a decision may nevertheless be legally unreasonable where it “exceeds what, on any view, is necessary for the purpose it serves”; eg using a “sledgehammer to crack a nut”: Li at [30] (French CJ).

Proposed Ground 1: whether Mr Lee’s lack of training, instruction or guidance on intimate images was a mandatory relevant consideration

2023 SeMPRO training

39    Mr Lee’s submissions focused on the fact that he had not undertaken the SeMPRO training until 2023, which was after the events in question occurred in 2022. Mr Lee’s submissions contend that it was only that training module, rolled out in 2023, that revealed to him that posting an image of a naked woman taken, and shared, without her consent, was unacceptable, and, if only he had been informed of this earlier, he would not have taken and shared the image as he did. These contentions are advanced in support of a submission that, by failing to consider that Mr Lee had not received this training before the events in question in 2022, the Respondent’s delegate failed to take a relevant consideration into account for the purposes of s 5(2)(b).

40    As set out above (see paragraph 37), this contention can only succeed if the matter regarding training, to which Mr Lee directs attention, was either something he raised in his response to the Notice, or was a mandatory relevant consideration.

41    In his response to the Notice, Mr Lee did not raise the nature and timing of his SeMPRO training as a matter he wanted the delegate to consider.

42    That leaves the question of whether the matter in question concerning training was a mandatory relevant consideration. In his reply submissions, Mr Lee contends that the Respondent and his delegates cannot “bury their heads in the sand” by requiring private soldiers to direct the Respondent and his delegates’ attention to their own organisation’s changes in policy. Mr Lee’s oral submissions also generally emphasised that junior soldiers should not have to bring such matters — specifically the fact that mandatory training on intimate images and the like was not rolled out until 2023 — to the attention of senior Defence Force personnel. These matters are not to the point.

43    The point is that Mr Lee has not identified any basis upon which the detail of the training he received, and when it was received relative to the events in question, was a mandatory relevant consideration such that the delegate was required to turn his mind to that matter even if not raised by Mr Lee.

44    As set out above, the s 24(1)(c) power is a broad discretionary power, to be exercised based on the delegate’s evaluation of where the interests of the Defence Force lie. The content of Mr Lee’s training on intimate images, and when the training was received, was not a relevant mandatory consideration. If Mr Lee wanted that matter to be considered, it was incumbent on Mr Lee to raise the matter of his training in his response to the Notice. He did not, and that is fatal to this ground of appeal.

45    In his submissions, Mr Lee raised a — possibly related — contention that the delegate mis-stated the training that Mr Lee had received. The delegate stated that Mr Lee had been exposed to an array of mandatory training, education and publications pertaining to conduct and prescribed standards for all Army personnel. That observation did not suggest that Mr Lee had undertaken specific training that he had not in fact undertaken.

46    Although Proposed Ground 1 was drafted in terms of failure to take a relevant consideration into account, Mr Lee’s submissions advanced substantially the same complaint by reference to the unreasonableness ground of review. Mr Lee submitted that the Termination Decision was unreasonable on the basis that the training module which would have informed him that he should not send an image that could be construed as intimate was not rolled out and provided to him until after the event, in 2023. He submits that “[t]o provide that education only after the behaviour has occurred and then proceed to also terminate their employment as a punitive measure is unreasonable and begins to approach the irrational, perhaps even the Kafkaesque”.

47    While outside the bounds of Proposed Ground 1, the contention lacks merit in any event. In addition to the fact that Mr Lee’s response to the Notice did not raise lack of education or training as an issue, Mr Lee’s contention of unreasonableness rests on an assumption that it was not open to the delegate to exercise the power under s 24(1)(c) of the Defence Regulation unless Mr Lee had received training of the kind he later received in 2023. There is no basis upon which to conclude that the Termination Decision was legally unreasonable on the basis that it was irrational or “Kafkaesque” because Mr Lee had not yet received that training.

48    The Termination Decision had a clear and intelligible path of reasoning. The delegate set out in his reasons the basis on which he concluded that Mr Lee’s conduct was unacceptable, did not align with the expectations of a soldier and did not accord with Defence Values. That path of reasoning is not rendered illogical, or outside the bounds of rational decision-making because, at the time of the events in question, Mr Lee had not yet received the SeMPRO training module.

49    The Termination Decision refers, amongst other matters, to Mr Lee’s interview with the Military Police, in which he accepted that taking the photo of the nude woman was “obviously not the right thing to do”, accepted that he did not obtain the woman’s consent to send the photo to anyone, and said that he did not think that it was “acceptable behaviour” to post the photo to a work group chat as a member of the Australian Regular Army. In light of these matters, and the course of the delegate’s reasons as a whole, it was not legally unreasonable for the delegate to make the Termination Decision on the basis that Mr Lee did not receive the SeMPRO training module until 2023.

50    Mr Lee’s reply submissions added a contention that the delegate failed to make an obvious inquiry about a critical fact, resulting in a constructive failure to exercise jurisdiction consistent with Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [19]–[25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). For reasons already canvassed, the delegate’s decision did not rest on the precise content of the training undertaken by Mr Lee, and it is not otherwise apparent on what basis it might be argued that the delegate’s consideration of the training that Mr Lee had and had not received, constituted a constructive failure to exercise jurisdiction. Mr Lee’s training on intimate images and the timing of that training was not a mandatory relevant consideration. It follows that it was also not a critical fact about which it was incumbent on the delegate to make enquiries.

SIG Ariva-Hale’s witness statement

51    Mr Lee structured his oral submissions by reference to the grounds he relied on under the ADJR Act. In his oral submissions on s 5(2)(b) — failure to take relevant matters into account — Mr Lee made submissions to the effect that his posting of SIG Ariva-Hale’s witness statement and associated comment was his attempt to resolve a dispute with a colleague at the lowest appropriate level, consistent with the CARM. Mr Lee raised this matter in his response to the Notice, and the delegate addressed it. The delegate considered and explicitly rejected Mr Lee’s claims. The delegate concluded that the posting was not an attempt to resolve a personal issue with an individual, but was an attempt to harass another service member. Accordingly, there is no relevant matter that the delegate failed to take into account. Rejecting Mr Lee’s account of his motivations in posting SIG Ariva-Hale’s witness statement and associated comment was within the ambit of the delegate’s role and is not subject to merits review in this proceeding.

52    Mr Lee’s oral submissions also referred to there being further messages in the chat group following his post of SIG Ariva-Hale’s witness statement, including a post from SIG Ariva-Hale saying “I’m not sure what to say about that”. These additional messages were not raised by Mr Lee in his response to the Notice. The delegate was addressing Mr Lee’s conduct in posting the witness statement in the group chat, along with the remark “Very disappointed in you Reiza”. Whatever subsequent messages may have been exchanged were not to the point and I do not accept that they constituted a matter to which the delegate was required to have regard without Mr Lee raising the matter.

2023 Ombudsman report “Defending Fairness”

53    Mr Lee’s oral submissions under the “relevant considerations” topic referred to a December 2023 Ombudsman enquiry “Defending Fairness” that he had recently located, concerning how the Defence Force handles unacceptable behaviour complaints (2023 Ombudsman report). Mr Lee submitted that the 2023 Ombudsman report was critical of the Defence Force’s dispute resolution system, including there being “an unclear direction on resolving complaints at the lowest appropriate level”. Mr Lee said that he may have been “misguided by thinking I had the ability to raise my unhappiness with that defence member [SIG Ariva-Hale], but I had at the front of my mind what I had been told by defence’s dispute resolution policy, was that I was able to raise matters with my colleagues at the lowest possible level”.

54    The 2023 Ombudsman report is irrelevant. The delegate rejected Mr Lee’s account of his motivations in posting SIG Ariva-Hale’s witness statement to the group chat; the issue of the extent to which CARM policies had, or had not, been well communicated in the Defence Force was irrelevant. Further and in any event, the 2023 Ombudsman report was not raised by Mr Lee in his response to the Notice, and was not concerned with any mandatory relevant consideration.

Proposed Ground 2: whether the decision was made without regard to the merits of the particular case given the misbehaviour comprised “two instances of digital misbehaviour”

55    The Termination Decision set out the course of reasoning by which the Respondent’s delegate concluded that Mr Lee’s service was to be involuntarily ceased. That course of reasoning, as summarised above, was all about the specifics of Mr Lee’s case. It was not a decision made “without regard to the merits of the particular case”, for the purposes of s 5(2)(f) of the ADJR Act.

56    Mr Lee contended that regard was not had to the merits of the particular case on the basis that his conduct comprised only, in his words “two instances of digital misbehaviour”, and, in his view, “should have been handled in a manner other than early termination”. Those contentions constitute an attempt at merits review. The substance of the contentions is that his conduct was not that bad, and should have been handled otherwise than by terminating his service. These contentions do not demonstrate that the decision in question was taken without regard to the merits of Mr Lee’s particular case.

57    This proposed ground, as framed under s 5(2)(f) of the ADJR Act, has no merit. However, as emerged from his written and oral submissions, Mr Lee’s substantive complaint was that the Termination Decision was unreasonable in light of the nature of his conduct.

Unreasonableness based on severity of outcome relative to conduct and circumstances

58    I do not consider that the Termination Decision was so unreasonable that no reasonable person could have so exercised the termination power, which is what s 5(2)(g) of the ADJR Act requires.

59    Far from lacking an evident and intelligible justification, the delegate’s reasons for decision set out the factual findings and course of reasoning by which the conclusion was reached that retention of Mr Lee’s service was not in the interests of the Defence Force. Those reasons identified that, by reason of:

(a)    Mr Lee’s taking and posting of the image of the naked woman without her knowledge or consent, which was found to constitute unacceptable behaviour; and

(b)    Mr Lee’s posting of the witness statement of SIG Ariva-Hale to the chat, which was found to be an attempt to harass him for speaking up and therefore an action not aligned with the behavioural expectations of a soldier,

Mr Lee’s conduct was incompatible with the Defence Values and was also not aligned with the behavioural expectations of service within the Defence Force. The delegate further concluded that Mr Lee lacked “judgment, maturity and awareness of the consequences” of his actions.

60    As is evident from the delegate’s reasons, the Termination Decision addressed what Mr Lee’s actions, and his responses to the investigation, revealed about his character. Mr Lee’s response to the Notice did not show any acceptance of responsibility; rather he argued that the image in question was not intimate, and that it was his privacy that had been invaded. In that context, and having regard to the breadth of the discretion afforded to the Respondent and his delegates, it cannot be said that the Termination Decision was legally unreasonable on the grounds that it was disproportionate or constituted using a “sledgehammer to crack a nut”. On the contrary, the decision was well within the bounds of legal reasonableness.

61    In his reply submissions, Mr Lee sought to explain why his response to the Notice focused on his perception that the image was not intimate, and his view that his privacy had been invaded. However, such post-hoc explanations, advanced through submissions, do not bear on whether the Termination Decision was legally unreasonable when it was made.

The CARM and availability of less severe administrative sanctions

62    Mr Lee’s submissions also contended that the Termination Decision ignored the Complaints and Alternative Resolutions Manual, referred to as the CARM procedures for responding to incidents of unacceptable behaviour. Mr Lee submits that the CARM does not contemplate early termination as a first response.

63    The CARM is a “framework document”; it is not a Defence Instruction. The Defence Instruction Administrative Policy (DI ADMINPOL) is a Defence Instruction. Defence Instructions may be issued by the Secretary and the Chief of the Defence Force pursuant to s 11(1) of the Defence Act. Paragraph 3 of DI ADMINPOL states that the Secretary and the Chief of the Defence Force “expect” Defence personnel to comply with and apply administrative policies contained in framework documents. Thus, the Respondent’s “expectation” was that CARM would be applied; but CARM was not itself a Defence Instruction, compliance with which was required under ss 3 and 29 of the Defence Force Discipline Act 1982 (Cth) (DFD Act).

64    The CARM states, under the heading “Outcomes to incidents of unacceptable behaviour”, that, if a Defence Force member is assessed to have behaved unacceptably, the Defence Force member “may be subject to” a range of outcomes. Those outcomes include “management action to stop and correct the behaviour”, a list of “administrative sanction[s]” and disciplinary action under the DFD Act. The administrative sanctions listed are counselling, formal warnings, censure, reduction in rank and termination.

65    Had Mr Lee’s contentions been framed in terms of a failure to have regard to the CARM as a relevant consideration, it would have been necessary to consider whether the matters set out in the CARM constitute mandatory relevant considerations. However, and as indicated, Mr Lee’s contention was put in terms that the Termination Decision was unreasonable because the CARM sets out a range of administrative sanctions short of termination.

66    The availability of other administrative sanctions under the CARM does not suggest that the Termination Decision was legally unreasonable. Termination is one of the sanctions available pursuant to the CARM. While a range of alternate administrative sanctions are listed in the CARM, the existence of options other than termination does not reveal any Defence Force policy that termination is a “last resort”, or only available after other sanctions have been expressly considered and rejected. The outcomes listed in the CARM are not set out in any escalating order of severity, and do not suggest, explicitly or implicitly, the order in which they must be considered or that options short of termination must be considered before turning to any harsher outcomes. While Mr Lee regards the delegate’s decision to terminate his service as harsh and considers that the delegate should have pursued one of the less severe administrative sanctions, that is not the test. As I have said, this application is not a merits review, and the contents of the CARM itself do not reveal the Termination Decision to have been legally unreasonable.

The Defence Values

67    In addition to the foregoing, Mr Lee’s submissions also suggest that the Termination Decision was unreasonable because the Defence Values are too broad and vague. Mr Lee did not suggest, in his response to the Notice, that the Defence Values are too broad and vague. On the contrary, and as set out above at paragraphs 22 and 23, he invoked two of those values in his favour. Otherwise, Mr Lee’s response said he ought not be assessed against the Defence Values before the Victorian County Court had determined whether the image was “intimate” for the purpose of the summary offence Mr Lee was prosecuted for, and in view of the (perceived) invasion of his privacy. I consider that Mr Lee’s failure to raise that the Defence Values were too broad and vague in his response to the Notice means it was not legally unreasonable for the delegate to assess Mr Lee’s conduct against those values.

68    In any event, it is clear from the Termination Decision that the delegate concluded that Mr Lee’s conduct was unacceptable and that his conduct, and Mr Lee’s response to the investigation, revealed character deficiencies warranting the exercise of the early termination power. The fact that the delegate referred to Mr Lee’s conduct not aligning with Defence Values does not detract from the force of the conclusions the delegate reached about Mr Lee’s character and his suitability for continued employment in the Defence Force.

Subversion of the purpose of the Defence Force

69    A further point raised by Mr Lee in his submissions is that it was “frivolous” for the early termination power to be deployed against him, and the exercise of the power subverted the purpose of the Defence Force itself by taking a “fully deployable member out of the army”. While this submission was not attached to any identified ground of judicial review, it may be regarded as a contention of irrationality, and therefore legal unreasonableness. It follows from the foregoing discussion that this contention lacks merit. The power of early termination is broadly framed. The power exists where the Respondent (here, by his delegate) concludes that “retention of the member’s service is not in the interests of the Defence Force”. The fact that early termination meant Mr Lee was not available to serve does not render the Termination Decision irrational. The “interests of the Defence Force” is a wide-ranging concept, and there is no irrationality in the Termination Decision being taken notwithstanding that it would render Mr Lee unable to serve.

The Army Standing Instruction (Personnel) Pt 2 Ch 4

70    In his written and oral submissions, Mr Lee drew attention to part of the Army Standing Instruction (Personnel) Pt 2 Ch 4 (ASI(P)). In particular, he relied on [4.18] which reads:

4.18. When the CA's separation delegate is deciding a member's suitability for retention, the following factors should be considered as a minimum:

a.    the evidence in support of the reasons for an involuntary separation contained in the Separation Notice (SN)

b.    age, rank and length of service of the solider

c.    complete service history, including adverse and supporting material

d.    likelihood of repetition of behaviours

e.    the contents of the Statement of Reasons

f.    the Commander's recommendation

g.    pertinent Australian Defence Force (ADF) Policy stipulation.

71    Mr Lee contended that the delegate had not had regard to items (b), (c), (d) and (g), and had he done so, the delegate “may have stopped short” of a decision to terminate Mr Lee’s service. Mr Lee noted his service had been brief — he had been in the army for two years — his rank was private and his age at the time was 37 or 38. As to the risk of repetition, Mr Lee pointed again to the matter of training and the unlikelihood of someone repeating such conduct after receiving relevant training. As to policy stipulations, Mr Lee did not refer to any particular policy stipulation in 2022, but referred to the de facto stipulation introduced in 2023 via the SeMPRO training.

72    Between his written and oral submissions, the ASI(P) featured in arguments on failing to have regard to relevant factors, unreasonableness and deciding otherwise than by reference to the merits of the case.

73    Mr Lee did not make any submissions about the status of the ASI(P) or articulate any basis upon which the matters there stated constitute mandatory relevant considerations. In his submissions, the Respondent submitted that they were not mandatory relevant considerations, as follows:

There is nothing in the statutory context or legal framework within which reg 24(1)(c) and 6(2) sit which elevate the ASI(P) to the status of a mandatory relevant consideration. The ASI(P) is described in Chapter 1 as “designed to provide Australian Army Personnel with a source document for non-financial Army personnel procedures and guidance.” It is also expressed as being subordinate to the Military Personnel Policy Manual (MILPERSMAN) and as issued on the authority of Chief of Army. There is therefore nothing to suggest, for example, that it takes the form of a Defence Instruction under s 11 of the Defence Act 1903 (Cth) or a regulation made pursuant to s 124 (See e.g. Fulton at [172]-[173] and [203] in which the MILSPERSMAN was found not to have been made under s 11 of the Act and that it takes the form of a policy or manual).

74    More broadly, the Respondent submitted:

In any event, the Delegate’s reasons reveal that it [sic] had regard to the Applicant’s service history and length of service (TB 5 [9]-[10]) and that the Applicant has not demonstrated any acceptance or responsibility for his actions (TB 8 [12(c)]). It may be reasonably inferred from this statement, together with the conduct found to have occurred after the image was taken without consent and permission, that the Delegate was not satisfied the Applicant would not repeat such behaviour.

75    I accept the Respondent’s submissions, save that I would not go so far as to conclude the delegate was not satisfied that Mr Lee would not repeat such behaviour. Rather, what the delegate’s reasons show is the views that the delegate formed concerning Mr Lee’s character and suitability for continued employment in the Defence Force, having regard not only to his actions in 2022, but his response and failure to take responsibility.

76    As to his age, it is not apparent on what basis Mr Lee contends that his age was a relevant matter given he was 37 or 38 years old in 2022.

77    As to the matter of there not being a policy statement regarding intimate images until the SeMPRO training in 2023, even if the delegate was bound to consider factor (g), the fact that a particular training program was rolled out in 2023 does not reveal the existence of a “pertinent Australian Defence Force Policy stipulation” that the delegate failed to consider.

78    I do not consider there to be any merit in the contention that the terms of the ASI(P) show the delegate’s decision to have been taken without regard to mandatory considerations, to have been legally unreasonable, or to have been taken without regard to the merits of the case.

Proposed Ground 3: whether the use of the early termination power on Mr Lee, as a junior soldier, was unreasonable in light of the frequency and scale of misbehaviour that occurs in the Defence Force

79    Mr Lee’s submissions advance a complaint that the Termination Decision was unreasonable as it was disproportionately severe in circumstances where other instances of misconduct in the Defence Force have been handled by other, less severe, means. Even assuming the premise to be correct (ie that similar misconduct has been handled in other, less severe ways by Defence Force magistrates dealing with disciplinary proceedings under the DFD Act) that does not reveal the Termination Decision to be legally unreasonable. No such contention was raised in Mr Lee’s response to the Notice.

80    Further, and in any event, in making the Termination Decision, the delegate had regard not only to the bare facts of what occurred, but what Mr Lee’s response revealed about his character and suitability for continued employment by the Defence Force. In other words, the delegate considered the whole picture regarding Mr Lee. Pointing to less severe outcomes to which some other Defence Force members may have been exposed, even assuming broad comparability in the underlying actions, does not reveal any legal unreasonableness in the Termination Decision.

81    It also appears that Mr Lee relies on outcomes — fines, reprimands, forfeiture of seniority or a reduction in rank — under the DFD Act. The DFD Act sets out a disciplinary regime in respect of offences. Mr Lee’s case was handled under the administrative sanctions available to the Respondent under the Defence Regulation.

82    I have otherwise addressed Mr Lee’s contention that the Termination Decision was unreasonable on the basis that it was excessive — a “sledgehammer to crack a nut” — and his submissions concerning other options under the CARM in addressing Proposed Ground 2 above.

Proposed Ground 4: Mr Lee’s contention that private telecommunications were accessed

83    Mr Lee contends that, in contravention of Australian Privacy Principle 3.3 of the Privacy Act 1988 (Cth), his “private telecommunications” were accessed. This contention pursues Mr Lee’s complaint that the Session 18 chat was private and that his privacy was invaded when his post with the photo of the nude woman was shared outside the group and accessed by the Defence Force authorities, leading to the disciplinary action against him.

84    The Respondent’s delegate considered, and rejected, Mr Lee’s contention that his privacy had been invaded. As set out above, the delegate’s reasons set out the basis upon which the delegate rejected the contention that Mr Lee’s privacy had been breached. Those reasons included that: the Session 18 chat was used for work purposes; the information collected by the Defence Force occurred to investigate complaints made by other Defence Force members of possible inappropriate conduct; the information was not publicly released; and (contrary to Mr Lee’s belief) the fact that the group members on the chat had “Negative Vetting 2” security clearance did not mean that the sharing of Mr Lee’s post outside the group was an invasion of his privacy.

85    It is not apparent how Mr Lee’s contentions relate to any provision in the ADJR Act. In oral submissions, Mr Lee appeared to raise the privacy issues on the basis that his belief that his privacy had been invaded influenced his response to the Notice.

86    The matters raised by Mr Lee appear either to seek a merits review on the issue of whether the way in which the Defence Force authorities obtained the chat group material involved a contravention of Australian Privacy Principles — which is obviously outside the bounds of a judicial review — or to suggest that the delegate erred in law in rejecting the privacy complaints. If the latter, Mr Lee has not articulated any cogent basis upon which the Termination Decision could be said to involve an error of law regarding the question of whether Mr Lee’s privacy was invaded. As best I can ascertain, Mr Lee’s contentions hinge on his contention that the Session 18 chat was not a “work” platform. The delegate rejected this contention. The delegate cited, in his reasons, a passage of Mr Lee’s interview with the Military Police in which Mr Lee himself described the chat group’s function as being for communication of work-related matters and “light hearted conversation” after hours.

87    Proposed Ground 4 has no merit.

The “Invalidity Arguments”

Procedural context for the two part hearing

88    In his reply submissions in the judicial review application, Mr Lee referred to Burns v Chief of the Defence Force [2024] FCA 781 (Burns) at [12] (Logan J). This submission stated that “[t]he purpose of this termination was disciplinary” whereas the DFD Act “covers the field” in relation to the disciplining of members. On that basis, the submission continued, “I would ask the Court to examine the validity of 24(1)(c) and 6(2) in light of the existence of an Act which has as its purpose the discipline of ADF personnel”.

89    Through the course of oral submissions on the hearing of the judicial review application, it emerged that Mr Lee wished to run a point that s 24(1)(c) of the Defence Regulation was invalid. Both Mr Lee, and the Respondent, referred to the potentially wide-ranging implications of the regulation itself being invalid.

90    The Respondent did not oppose Mr Lee being given an opportunity to advance the contention that s 24(1)(c) of the Defence Regulation was invalid. Timetabling orders were then made by consent on 1 December 2025 (1 December 2025 orders) allowing Mr Lee to file and serve a proposed amended originating application, with the amendments being expressly limited to addressing the “invalidity arguments”, as defined in those orders, together with written submissions. The Respondent was to file and serve written submissions in reply by 18 December 2025. The following arguments were defined as the “invalidity arguments” in the orders made on 1 December 2025 (bold emphasis in original):

s 24(1)(c) of the Defence Regulation 2016 (Cth) (the Defence Regulation) may be invalid on the basis that s 24(1)(c) of the Defence Regulation confers a power beyond the regulation-making power in the Defence Act 1903 (Cth) and because the Defence Force Discipline Act 1982 (Cth), together with the Defence Force Discipline Appeals Act 1955 (Cth), cover the field, rendering s 24(1)(c) of the Defence Regulation invalid (the invalidity arguments).

91    There was no leave granted by the 1 December 2025 orders for Mr Lee to re-open and expand his judicial review case generally.

92    On 8 December 2025, Mr Lee filed an amended originating application, together with submissions (December 2025 submissions), which put forward the invalidity arguments. The amendments made by Mr Lee added two paragraphs as follows:

5    There is no statutory authority for involuntary termination in the Defence Act 1903.

6    The termination decision lacked a judicial mandate.

93    The amended originating application also added, to the “Grounds of application”, references to the “Long Title of the Defence Act 1903 “ and “Chapter III, S 71, Constitution of Australia”.

94    Mr Lee’s December 2025 submissions advanced the proposition that “S 24(1)(c) of the Defence Regulations 2016 is not statutorily or constitutionally valid”. The body of the submission supported the first aspect of that proposition on the basis that the Defence Act did not authorise the making of regulations in relation to involuntary discharge from the Army, and also on the basis that the DFD Act covered the field in relation to involuntary termination. The second aspect of the proposition was supported on constitutional grounds on the basis that s 24(1)(c) of the Defence Regulation was beyond the executive and legislative power of the Commonwealth, relying on NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 280 CLR 137, as there was no judicial mandate for the imposition to terminate the employment of Defence Force members.

95    On 16 December 2025, the Respondent notified chambers that given the constitutional nature of the invalidity arguments, specifically the contention that s 24(1)(c) of the Defence Regulation confers a power beyond the regulation-making power in the Defence Act, the Respondent determined that it was necessary for notices to be issued and served on the Commonwealth and State Attorneys-General in accordance with s 78B of the Judiciary Act 1903 (Cth). Consistently with the case Mr Lee said he wanted to raise, and which was advanced in his December 2025 submissions, the s 78B notice stated that Mr Lee’s submissions “suggested that s 24(1)(c) of the Defence Regulation 2016 may be invalid”.

96    Further orders were made on 19 December 2025 adjusting the interlocutory timetable in respect of the invalidity arguments.

97    Pro bono counsel was arranged for Mr Lee in respect of the invalidity arguments. With the assistance of pro bono counsel, Mr Lee filed further submissions on the invalidity arguments on 20 February 2026 (February 2026 submissions), and reply submissions on 27 March 2026 (March 2026 submissions). The February 2026 submissions of Mr Lee stated that they “supplement” the earlier submissions on the invalidity arguments (ie the December 2025 submissions). Pro bono counsel — to whom the Court is indebted for taking on the referral — appeared at the resumed hearing, which was limited to the invalidity arguments.

98    The Respondent retained senior counsel, who signed submissions on the invalidity arguments (dated 20 March 2026) and appeared at the resumed hearing on the invalidity arguments.

Mr Lee’s departure from the grant of leave to amend

99    As set out above, the invalidity arguments were directed to the proposition that s 24(1)(c) of the Defence Regulation was invalid. Mr Lee’s February 2026 submissions did not address that proposition. Rather, those submissions mounted an argument that the Termination Decision itself was invalid. That invalidity was said to arise on the basis that:

(a)    The Termination Decision was properly to be characterised as a “disciplinary or punitive decision”, with the consequence that the Termination Decision exceeded the sui generis power of the Respondent under the defence power in the Constitution;

(b)    that being so, the Termination Decision was unconstitutional as punitive powers can only be conferred on courts exercising federal jurisdiction; and

(c)    the Termination Decision exceeded the authorisation conferred by the relevant regulation-making power and plain words of the relevant regulation.

100    Mr Lee’s March 2026 submissions explicitly disavowed any contention that s 24(1)(c) of the Defence Regulation was “invalid in toto” (emphasis in original). Rather, the submission continued, Mr Lee’s case was that the Termination Decision itself was “an improper exercise of the power conferred by the [regulation] in pursuance of which it was purported to be made”, thus seeking to advance a judicial review ground under s 5(1)(e) of the ADJR Act.

101    By his March 2026 submissions, Mr Lee explicitly disavowed the very proposition that lay at the heart of the invalidity arguments that he was given leave to advance; namely that s 24(1)(c) of the Defence Regulation was invalid. In oral submissions, counsel for Mr Lee accepted that the Defence Regulation exists for protective purposes, and that the protective mandate can give rise to a valid decision to terminate the service of a member of the Defence Force.

102    Mr Lee further accepted that the misconduct of a service member can validly lead to a decision to terminate the member’s service by exercise of the protective mandate, but only where that conduct can be seen to compromise the interests of the Defence Force as a whole. Mr Lee pointed to Stuart v Chief of Army [1999] FCA 501; (1999) 94 FCR 445 — where a private stole ammunition — Fulton — where the member failed to meet physical fitness requirements — and Burns — where the member purchased and used drugs on Defence Force property, and shared videos of such conduct with Defence Force personnel — all of which involved valid exercises of the power to terminate service, because a clear link was drawn between the conduct and the interests of the Defence Force in relation to matters such as morale (compromised by stealing), physical fitness and competence (compromised by being drug-affected).

103    Mr Lee contended, however, that the particular exercise of the termination power in respect of him was punitive on the basis that there was no link drawn between Mr Lee’s misconduct and the broader interests of the Defence Force concerning matters such as efficiency, effectiveness, morale and reputational issues.

The invalidity arguments must be rejected

104    The leave granted to Mr Lee to amend his application and make further submissions was limited to his contention that the Defence Regulation as a whole was invalid. That argument has now been eschewed by Mr Lee. The argument he seeks to run — that the particular exercise of the termination power in s 24(1)(c) against him was invalid — is outside the leave granted to Mr Lee to expand his case. This is, of itself, sufficient to dismiss this component of Mr Lee’s case. Mr Lee did not make any application to advance a case contending that the Termination Decision itself was invalid for reasons other than the invalidity of s 24(1)(c) of the Defence Regulation.

105    In any event, Mr Lee’s case that the Termination Decision was invalid on the basis that it was punitive, lacks merit.

106    To the extent that that argument was advanced on the basis that the specific exercise of the termination power in s 24(1)(c) was unconstitutional, as it involved the exercise of a power to punish that Ch III of the Constitution reserves to judges, that argument mistakes the level at which analysis for compliance with constitutional limitations occurs. As counsel for the Respondent submitted, compliance with constitutional constraints on powers is examined at the level of the legislative grant of the power, and not at the level of the specific exercise of the power. Rather, any exercise of a power that is consistent with constitutional limitations is only capable of being examined by conventional administrative law analyses. This is clear from the following cases: Palmer v Western Australia [2021] HCA 5; (2021) 272 CLR 505 (Palmer), Wotton v Queensland [2012] HCA 2; (2012) 246 CLR 1 (Wotton) and YBZF v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40; (2024) 99 ALJR 1 (YBZF).

107    In Palmer, s 56(1) of the Emergency Management Act 2005 (WA) (EM Act) permitted the Minister to declare a state of emergency, but that power was circumscribed by conditions stipulated in s 56(2). Section 67 of the EM Act then authorised certain officers to give directions prohibiting movement into, within, out of or around an emergency area. The closure of the West Australian border was effected by directions made under s 67 prohibiting entry into the emergency area, which was all of Western Australisa pursuant to a declaration made under s 56 of the EM Act. Mr Palmer challenged the directions made pursuant to s 67 as infringing s 92 of the Constitution, guaranteeing that trade, commerce and intercourse among the States shall be absolutely free.

108    All members of the High Court rejected the attempt to challenge, on constitutional grounds, the particular exercise of the power on the basis that the exercise of the s 67 power was inconsistent with s 92 of the Constitution. Rather, their Honours considered that the constitutional question was to be addressed by reference to the authorising provisions of the EM Act: at [63]–[68] (Kiefel CJ and Keane J); [118]–[121] (Gageler J); [200]–[202] (Gordon J); [223]–[228] (Edelman J).

109    The various reasons in Palmer applied the High Court’s earlier decision of Wotton. In Wotton, the legislative power in issue was the conferral of a discretion to attach conditions to a parole order that the parole board reasonably considered necessary to ensure good conduct or prevent offending pursuant to ss 132 and 200(2) of the Corrective Services Act 2006 (Qld) (CS Act). Wotton was released on parole subject to conditions restricting his attendance at public meetings and his receipt of payment for media dealings. He challenged those conditions, and ss 132 and 200(2) of the CS Act, as burdening the implied freedom of communication about government or political matters.

110    In Palmer, Kiefel CJ and Keane J explained the decision in Wotton at [65] (footnotes omitted):

Drawing upon what Brennan J said in Miller v TCN Channel Nine Pty Ltd, the joint judgment in Wotton explained that the exercise of the statutory power to condition the parole order might be subject to judicial review under the Judicial Review Act 1991 (Qld), but the question of compliance with the constitutional limitation is answered by the construction of the statute. This is consistent with an understanding that constitutionally guaranteed freedoms operate as limits on legislative and executive power. Their Honours [in Wotton] accepted that:

“if, on its proper construction, the statute complies with the constitutional limitation, without any need to read it down to save its validity, any complaint respecting the exercise of power thereunder in a given case, such as that in this litigation concerning the conditions attached to the Parole Order, does not raise a constitutional question, as distinct from a question of the exercise of statutory power”.

111    In Palmer, Gageler J noted that some statutory powers may be conferred in such broad terms that it is not feasible to assess their validity across the range of ways in which the power might be exercised. In that circumstance, a composite approach may be applied: Palmer at [123] (Gageler J).

112    Neither Palmer nor Wotton concerned the reservation of punitive power by Ch III of the Constitution. But YBZF was relied on by the Respondent as illustrating that the same approach — addressing constitutional constraints at the level of the power, and not its exercise — applies where the relevant constitutional limit concerns reservation to the judiciary of the power to punish. In broad terms, YBZF concerned whether cl 070.612A(1)(a) and (d) of the Migration Regulations 1994 (Cth) (Migration Regulations), made pursuant to the regulation-making power in s 504 of the Migration Act 1958 (Cth) (Migration Act), infringed Ch III of the Constitution by conferring on the Executive a power to impose punishment — being a function exclusively reserved to the judiciary.

113    In YBZF, the plurality (Gageler CJ, Gordon, Gleeson and Jagot JJ) addressed how the exercise of characterisation is to be undertaken, making it clear again that the question of characterisation is to be addressed at the level of the power, and not individual exercises of the power. The plurality set out the key task of characterisation at [16] and [18] (bold emphasis added, footnotes omitted):

In the constitutional context the prima facie character of a power may be punitive by default (for example, a power to impose involuntary detention in custody). If not punitive by default, the task of characterisation of the power begins by determining the meaning and scope of the law; the law’s practical and legal operation; and the end or object the law is designed to achieve (ascertained objectively from its whole text and context at a level of generality or specificity calibrated to the importance of the “constitutional value … at stake”). The object of the required analysis is ultimately “a single question of characterisation: whether the power to impose the detriment conferred by the law is properly characterised as punitive and therefore as exclusively judicial”.

…

In the constitutional context, in contemporary Australia, the question is whether there is justification for a non-judicial exercise of power interfering with liberty or bodily integrity. Justification involves asking if the power having a prima facie punitive character (by default or otherwise) is reasonably capable of being seen to be necessary (in the relevant sense of “reasonably appropriate and adapted” rather than essential or indispensable) for a legitimate and non-punitive purpose in which event the power’s constitutional character is nonpunitive. By breaking the question of characterisation into these subsidiary steps, the method and structure of the required analysis accommodates the complexity that is inherent in the question of characterisation.

114    The analytical framework set out by their Honours may be seen to involve the following steps:

(1)    Is the power punitive by default (eg involuntary detention in custody)?

(2)    If not, the power is to be characterised by reference to its meaning and scope, practical and legal operation, and the end or object it is designed to achieve.

(3)    Does that analysis show the power to be prima facie punitive?

(4)    If so, is the power reasonably capable of being seen as necessary for a legitimate and non-punitive purpose?

115    The relevant point, for present purposes, is that the question of characterisation for constitutional purposes must be addressed to the power itself — the power conferred by s 24(1)(c) of the Defence Regulation, being a regulation made under the broader grant of regulation-making power under s 124 of the Defence Act — and not how that power was exercised to terminate Mr Lee’s employment.

116    As Mr Lee no longer contends that the Defence Regulation is, per se, invalid on the basis that it confers a power that must be characterised as punitive, it is not necessary to go further and explain why any such submission would fail (applying the analysis in YBZF regarding powers that are, and are not, inherently punitive, termination of employment is not prima facie punitive, and the terms in which the s 24(1)(c) power is cast limit it to a power to terminate where retention of the member’s service is not in the interests of the Defence Force).

117    As mentioned, Mr Lee now accepts that s 24(1)(c) of the Defence Regulation can validly be exercised to terminate a member’s service due to misconduct, but says that an express link must be drawn between the misconduct and the wider interests of the Defence Force, in terms of morale, discipline, etc. To some extent, the Respondent agrees. His submission was that misconduct is neither a necessary nor sufficient condition for the exercise of the s 24(1)(c) power. Rather, the Respondent accepts that misconduct by a service member can only lead to the valid exercise of the s 24(1)(c) power where that misconduct leads the decision-maker to form the view that retention of the member’s service is not in the interests of the Defence Force.

118    In terms of a conventional administrative law challenge to the exercise of the termination power, I do not consider that Mr Lee has made out any case. In view of the limited grant of leave to expand his case, it is not open to Mr Lee to contend that the decision-maker exercised the power for an improper purpose, the improper purpose being to punish Mr Lee. As the Respondent’s counsel submitted, he would be prejudiced by a contention of that kind being permitted to be run.

119    The prejudice arises because the purpose of a decision-maker is the decision-maker’s actual purpose and, while an applicant can point to material and invite an inference as to the decision-maker’s purpose, a respondent can call the actual decision-maker to give evidence of his or her purpose: see Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability (7th ed, Thomson Reuters, 2021) at [6.410] and the cases there referred to: Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211; (2008) 38 WAR 276 at [66]–[67] (McLure JA); Golden v V’Landys [2016] NSWCA 300; (2016) 339 ALR 610 at [135] (Payne JA with McColl and Leeming JJA agreeing); Austral Monsoon Industries Pty Ltd v Pittwater Council [2009] NSWCA 154; (2009) 75 NSWLR 169 at [98]–[100] (Spigelman CJ with McColl JA and Handley AJA agreeing).

120    In any event, reference to the Termination Decision does not, contrary to Mr Lee’s submission, establish that the Respondent’s delegate acted with an improper purpose, being a purpose of punishing Mr Lee. Mr Lee accepted he would have the burden of establishing improper purpose. I do not accept Mr Lee’s submission that unless a decision-maker exercising the s 24(1)(c) power expressly explains how the misconduct (assuming it is a factual circumstance related to a service member’s misconduct) compromises the interests of the Defence Force, that is enough to show that the power was exercised for an improper purpose.

121    Further, I accept the Minister’s submission that the Termination Decision did in any case draw out how Mr Lee’s misconduct led to the view that it was not in the interests of the Defence Force to retain his service. As set out above, the Termination Decision exposes that Mr Lee’s conduct led the Respondent’s delegate to form adverse views as to Mr Lee’s character and how his character did not align with Defence Values. Just as retaining members who steal or use drugs and distribute videos of themselves using drugs may undermine morale and compromise competence (Stuart and Burns), retention of a service member whose character does not align with Defence Values draws a clear link between Mr Lee’s misconduct and the interests of the Defence Force in the character of those who make up its ranks.

122    Finally, I note that, in view of the argument ultimately advanced by Mr Lee, it is not necessary to address two matters that were addressed in the Respondent’s submissions: whether the DFD Act is a “code”; and whether the constitutional defence power would in any event support regulations made under s 124 of the Defence Act that did have a punitive power. As to the second point, while the Respondent did not concede that the defence power would not authorise a punitive termination power being effected by regulations made under s 124 of the Defence Act, he was prepared for the argument in this matter to be conducted on the assumption that, in order to be constitutionally valid, s 24(1)(c) had to only authorise non-punitive termination.

Conclusion

123    Mr Lee’s application for an extension of time is dismissed. The proceeding will otherwise be dismissed, with costs.

Associate:

Dated:    29 April 2026