Burns v Chief of the Defence Force

1. The application be dismissed.
2. Subject to this order, the Registrar refer the documents on the court file to the Inspector General of the Australian Defence Force (IGADF) together with this order and reasons for judgment given this day for such action, if any, as the IGADF deems necessary under s 110C of the Defence Act 1903 (Cth).
3. The Registrar may provide, if so requested by the IGADF, a copy of the USB containing video footage separately lodged with the court.
4. The respondent pay the applicants' costs of an incidental to the proceedings, including reserved costs, to be fixed in a lump sum by a Registrar if not agreed.
5. Liberty to apply be reserved to each of the parties in relation to such restrictions, if any, with respect to the referral to the IGADF, as ought to be made in relation to particular contents of filed documents. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 Corporal Mitchell Burns is a member of that arm of the Australian Defence Force (ADF) constituted by the Royal Australian Air Force (RAAF). He, along with the other applicants, also members of the RAAF, have instituted proceedings in the Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), to review decisions of a delegate of the respondent, Chief of the Defence Force (CDF), to give notice of a proposal to terminate their service early pursuant to reg 24(1)(c) of the Defence Regulation 2016 (Cth) (Defence Regulation). 2 It is not necessary, for reasons I shall detail shortly, to embark upon a hearing of the merits of the judicial review application. Suffice it to say, the proposals to terminate are a sequel to allegations of alleged unacceptable behaviour, in relation to Corporal Burns, entailing alleged sexual harassment and related alleged distribution of intimate images and, in relation to the other applicants, alleged use of prohibited substances. 3 No proceedings against any applicant came to be instituted under the Defence Force Discipline Act 1982 (Cth) (Defence Force Discipline Act). Instead, there was recourse by the CDF by his delegates to the early termination of service power. 4 On 5 October 2022, that recourse manifested itself in a series of termination notices. In the result, those termination notices were withdrawn. In March this year, fresh termination notices, which became the subject of the present proceedings, were issued. 5 This morning an affidavit by the CDF's solicitor was filed by leave. Exhibited to that affidavit is a series of minutes directed to the respective applicants which notifies that another delegate of the CDF, Wing Commander J.D. Arnold, has decided not to proceed on the basis of material presented to her. The upshot of that is that there is now no current termination notice. 6 In turn, the submission of the CDF, accepted by the solicitors for the applicants, is that there is now no occasion for the exercise by the Court of any of the powers conferred by s 16 of the ADJR Act. That appears to me to be the correct position. 7 It is not apparent, on the face of the minutes, that the CDF, either personally or by any delegate, proposes further to proceed, much less that the CDF proposes to proceed on the basis of particular material. 8 It was, in the present proceeding, controversial in relation to whether the CDF or a delegate could use particular material obtained under what was said to be an unlawful use of that gathered under a search warrant to the end of making early termination decisions. That particular use remains controversial as far as the applicants are concerned. But the controversy at present does not have any particular foundation in terms of any proposed future action using such material by the CDF. In these circumstances, it is doubtful although it does not, in light of the stance taken by the applicants, have to be decided, that there would be any foundation even for the granting of declaratory relief, and even taking into account the breadth of the Court's jurisdiction to grant such relief: see Edwards v Santos Ltd (2011) 242 CLR 421. 9 Instead the parties have, in light of the decision communicated by the several minutes, promoted orders for the dismissal of the applications on terms that the respondent pay the applicants' costs of and incidental to the applications. It is certainly appropriate in the circumstances to make such orders. 10 A question which I raised with the parties was whether or not, in addition to those orders, there ought to be a direction to the registrar to refer the papers to the Inspector-General ADF for such action, if any, as may commend itself to the Inspector-General, pursuant to s 110C of the Defence Act 1903 (Cth) (Defence Act). 11 In setting out the functions of the Inspector-General, s 110C(1) provides materially: Functions of the Inspector-General ADF (1) The Inspector-General ADF has the following functions: (a) to inquire into or investigate matters concerning the military justice system; (b) to conduct performance reviews of the military justice system, including internal audits, at the times and in the manner the Inspector-General ADF considers appropriate; (c) to advise on matters concerning the military justice system, including making recommendations for improvements; (d) to promote military justice values across the Defence Force; … 12 The military justice system, having regard to the Defence Regulation may not be confined to the hearing and determination of charges in respect of service offences under the Defence Force Discipline Act. It may be that the embrace of the term "military justice system" in s 110C of the Defence Act is wider and includes recourse to the early termination power found in reg 24, as well as the redress of a grievance system for which that Act and the Defence Regulation provides. 13 This particular case reveals two occasions upon which recourse to the early termination power has, for some reason or other, in the view of the CDF, on advice, miscarried. In turn, that provokes the thought that it may be that there is difficulty within the chain of command within the ADF in the administration of the early termination power and, related to that, the intersection between that power and the Defence Force Discipline Act. 14 In general, there is no necessary antipathy between outcomes under the Defence Force Discipline Act and the use of the early termination power, although there may be. An example of that may be if the outcome in respect of a service offence makes it plain that the conduct concerned was lawful. Another example may be where a service tribunal, as a matter of deliberate value judgment, has decided that the defence member concerned, although convicted, should not be dismissed from the Defence Force. It is neither necessary nor desirable to make any observations further on the latter subject, only to note that it was referred to in relation to what has been termed the conscience of command by the High Court in Lane v Morrison (2009) 239 CLR 230, at [85], and also in observations by the Defence Force Discipline Appeal Tribunal in Kearns v Chief of Army [2022] ADFDAT 3. 15 Equally, there can be cases where, for one reason or another, it is not possible to institute proceedings under the Defence Force Discipline Act, which nonetheless admit of recourse to the early termination power. 16 As I observed in Fulton v Chief of the Defence Force (2017) 160 ALD 209 in respect of another early termination decision which was vacated, I also observe in respect of the vacation of termination notices in this case, the outcome does not of itself assure the applicants that it is impossible for the CDF further to have recourse to reg 24. 17 That said, that there have been two endeavours which have apparently miscarried does seem to me at least to warrant consideration by the Inspector-General as to whether that is indicative of a systemic difficulty in administering according to law the early termination power. That does seem to me to fall within the terms of s 110C of the Defence Act, having regard to the particular provisions I have set out above with respect to the functions of the Inspector-General. Whether or not the Inspector-General chooses either at all or pending any final decision in respect of the applicants by the CDF is entirely a matter for the Inspector-General. 18 It does seem to me though that it is desirable to draw the case to the attention of the Inspector-General. One reason for that is that there are other cases also in the Court's list at present which entail early termination decisions. Once again, whether or not, if at all, the Inspector-General chooses to look into this aspect of the military justice system provoked by other cases is entirely a matter for the Inspector-General. However, I am sufficiently concerned by the process which has occurred to date to decide that the present case should at least be drawn to the Inspector-General's attention. 19 So far as I am aware there have not, on earlier occasions, been referrals by the Court to the Inspector-General. More frequently encountered, although happily not often, are circumstances where the Court directs the Registrar to refer papers to professional regulators with respect to conduct by legal practitioners or, on occasion, directs the Registrar to refer papers to a director of public prosecutions in relation to what may be criminal conduct revealed. 20 It seems to me that with respect to the ADF and the Inspector-General, having regard to the latter's functions, that it is within the same type of discretionary value judgment for the Court to refer a matter that may fall within the functions of the Inspector-General to the Inspector-General if a sufficient concern emerges from a particular case. The powers though to refer papers appears to me to repose in the Court in s 23 of the Federal Court of Australia Act 1976 (Cth). I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.