The suspension decision
46 The learned primary judge assumed that Group Capt Oddie thought he was exercising the power to suspend under Annex D. His Honour said:
'There are, in my view, significant textual and contextual suggestions (relating both to the 2 November 2000 document and to the Unsuitability Report itself) capable of linking what was done to Annex D. Group Captain Oddie did not give evidence.'
However, his Honour held:
'To adapt what I said of a similar state of affairs in Anderson v Sullivan (at 400), if it was the case that the Group Captain mistakenly considered that the "head of power" for his Suspension Decision was Annex D, he intended an immediate suspension and it was and is open to him now to rely upon this command power at common law as his source of power. And again I rely analogically on "the general principle that an act purporting to be done under one statutory power may be supported under another": Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409 at 412. There was nothing in the reasons given for the actual decision, or in the conditions regulating the exercise both of the Annex D power and of the command power respectively, that would make it inappropriate to rely upon the command power to justify the decision.
I also reject the applicant's submission as to the code-like quality of DI(AF) PERS 4-19. It clearly does not, and does not purport to, encompass all of the situations in which a member of the RAAF may have a Suspension Decision of some form made in relation to him or her. There are other Defence Instructions, and for that matter statutory provisions: see eg Defence Force Discipline Act 1982 s 98 and s 99; that deal with specific circumstances in which a Suspension Decision may be taken. But even within the particular area of concern of DI(AF) PERS 4-19 it is a most improbable intention to attribute to the [Chief of the Air Force] that, in issuing the instruction, the common law power was to be so curtailed with the consequences that might have for resource allocation, the proper management of the Air Force, and even safety. It must be recalled that under Annex D the suspension could only be ordered where an Unsuitability or Adverse Report is submitted. Having regard (i) to what appears to be the RAAF's current perception of its service specific Defence Instructions, (ii) to the power the CAF possesses to alter and amend Air Force specific Defence Instructions and (iii) to the rule of construction to which I earlier referred; The Commonwealth v Welsh, above at 268; I do not consider that the language of the Instruction necessitates attributing to it the meaning and effect for which the applicant contends. It provides merely a specific express instance in which suspension is permitted. It does not thereby preclude resort to the command power whenever that power may appropriately be exercised to order a suspension from flying duties.'
I respectfully agree.
47 His Honour went on to conclude that the suspension decision was valid:
'The decision may well be said to have been precipitate and harsh - though advance warning of the possibility of it was given months earlier at the August 2000 meeting after the applicant had failed the ABNOPS course. It is impossible, though, to say that there were no reasons given for the decision. The 2 November 2000 document notifying the decision, the statement of rebuttal, the Group Captain's response, and all that went with the ROG and Group Captain Plenty's ROG report could leave little doubt as to the grounds and the rational basis of the suspension. The decision was clearly not unlawful and it related to the applicant's service. I am unable to discern any available ground on which it properly can be impugned in judicial review proceedings.'
48 With respect, I think that this involves some oversimplification of the scope of the power to suspend, of issues underlying an appreciation of the limits of that power and of the application of those limits in this case.
49 It is undoubted that the Defence Instructions are to be understood having regard to the nature of the military, that is to say: disciplined, fighting forces raised for national defence. Engagement in active combat or in other dangerous operations plainly cannot be unduly constrained by personnel management considerations, policies and instructions appropriate to less exigent times and circumstances. Even when a unit of the defence forces is not engaged in dangerous situations, there is a necessity for preparedness on short notice for such situations. The urgency of that necessity will vary from time to time. Finally, even in entirely quiet times, the necessity to maintain discipline of a stricter and more effective kind than in virtually all other organisations tells against reading the Defence Instructions as a code on all matters touching personnel administration or as precluding necessary flexibility.
50 That said, the Instructions dealing with personnel management issues were clearly not conceived, prepared or promulgated as mere counsels of perfection, able, without consequences, to be disregarded at a commanding officer's or any other officer's whim. No doubt, careful and fair, which is to say effective, decision-making on such issues is itself a potent factor in the maintenance and advancement of good discipline: As Windeyer J said in Welsh in answer to an argument founded on certain allegedly implicit necessities of military endeavour, "Duty and Discipline do not march well with Discontent". Further, the contemporary military in this country is conceived as a merit-based career service staffed, except in extremis, on a voluntary basis. The Instructions are to be construed bearing these aspects of their context and purposes, as well as the other necessities of military life, in mind.
51 Further, in attempting to judge factual situations as to whether potential discretions have been enlivened or, if enlivened, have miscarried, it seems right that, at least (as here) absent any serious suggestion of bad faith, some considerable degree of caution should be exercised by a court before interfering. In modern times it is unusual for judges to have had any significant military experience or even to be steeped in military history and lore. They should therefore tread carefully.
52 Thus, reading DI(AF) PERS 4-19 as a whole, a commanding officer's discretion to suspend an Air Force member is ordinarily only enlivened when that member is, in some way or another, either irretrievably (with reasonable use of resources) below minimum acceptable standard (c.f. Annex D) or there is some urgent problem involving the maintenance of an officer in his or her present position.
53 In a particular case, outside the scope of Annex D as to "aircrew" members of the Air Force (and of like situations as to RAAF members who are not involved in actually flying aircraft), considerations of efficient resource management could conceivably constitute such an urgent problem. If, for example, a unit had been placed on a degree of alertness for action which might quickly materialise; the commanding officer regarded a subordinate as unsuitable in the ways envisaged by Annex B (or otherwise in relation to shorter-term problems); the perceived unsuitability of the member was actually or imminently jeopardising utilisation of unit resources to a level of efficiency necessary in the circumstances, and the temporary removal of the member would rectify or avert that threatened inefficiency, it would be right to acknowledge in the commanding officer a power to act by suspension.
54 There is, however, another aspect to the question of suspension. Granting that the general power of command can authorise a commanding officer to suspend an Air Force member in particular circumstances not envisaged by the Defence Instructions and that such power will generally be exercised in circumstances of perceived short or long term unsuitability of the member for his/her posting, specialisation etc., a deal of somewhat arbitrary power is thereby reposed in the commanding officer. The established application for redress of grievance (AROG) procedures, if no other procedure, are designed to prevent injustice in that and other respects. Unless particular, temporary circumstances quite inescapably demand it, it is manifestly not the intention of the Defence Instructions, nor is any intention otherwise to be imputed to the Parliament, that commanding officers are to have absolute and unchallengeable authority over those under their command. Thus, most unsuitability decisions by commanding officers are, if challenged, liable to be set aside under the AROG process. In consequence, at least until the AROG process has confirmed the commanding officer's decision, there is no need for a suspension to be permanent for it to have its intended, curative effect.
55 That consideration supports the conclusion that, in a case such as the present, the power in a commanding officer to suspend should be limited to suspending only for so long as is reasonably necessary for a final conclusion to be reached as to what should be the final action in relation to the subject officer(in such a case, that would be: by the DPO). That time may include reasonable time for resolution of any AROG process initiated by that officer, assuming that the AROG process does not avail the complainant, or it may conclude with a decision favourable to the subject officer through the AROG process.
56 A power to suspend derived from the power of command (or otherwise) should, in short, not simply be assumed to be a power to suspend permanently. Nor should a temporary suspension be assumed to have the same consequences as a permanent or final suspension. Far less is there any warrant in military necessity or in the Defence Instructions for any Air Force member to be left in a sort of no-man's land, during leisurely and lengthy process delays, nor for suspensions to be effected in situations other than those that are unusual or urgent, in the sense discussed above. There is a balance to be drawn between the exigencies of effective command and officers' career rights, privileges and opportunities (which, in modern times, are also important factors to be taken into account for effective command).
57 Applying these considerations to the facts at hand, the commanding officer, Group Capt Oddie, appears to have carefully come to the conclusion that, to put it in a way that echoes the language of ANNEX B to DI(AF) PERS 4-19, the appellant did not have the abilities that both he and his supervisors had hoped and believed he would have for training within a reasonable period of time, through to the very high level of operational flying skills ultimately desired of Hercules pilots. Group Capt Oddie also appears to have reasonably considered that the time and resources that would need to be spent on the appellant in 36 Squadron could and should be better spent in other ways, and that there was no room to carry a marginal or slow performer.
58 On the other hand, there is nothing to indicate that fairly prompt consideration to finality of Flt Lt Bromet's position could not occur, whatever might be assumed about his initiation of an AROG process and the outcome of any such initiation. Flt Lt Bromet was, if barely, capable enough in the performance of the actual duties of his achieved, substantive post. Suspension would be likely to humiliate him. The commanding officer's own superiors might disagree with him, in which case the appellant would have been humiliated for nothing.
59 Even allowing a duly wide margin of appreciation for the opinions of the senior officers involved, it is not shown that this was a case of pressing urgency in relation to Flt Lt Bromet's deficiencies nor are of pressing prejudice to efficient operations of 36 Squadron. If, in fact, no positive advantage would actually, as distinct from potentially, flow from a suspension pending the DPO's decision, there would be no point to, and therefore no justification for, the suspension. It is not shown, for example, how or how quickly Flt Lt Bromet's seat in the cockpit might have been filled; how quickly a new trainee might have been inducted into 36 Squadron to replace him, nor how quickly and between how many persons already in the squadron, Flt Lt Bromet's flying time might have been divided.
60 Thus, I conclude that there was no actual necessity for the suspension decision and it was invalid. At the very least, if validly taken initially, its warrant ceased after 3 months, more then a reasonable time for a due administrative conclusion.
61 What the court can and should usefully do to give effect to that view is considered below.