Failure to consider Personal Performance Reports
61 I turn now to the truly important issues.
62 To give context, it is necessary to set out an excerpt from FLTLT Fulton's response of 9 September 2020 to the termination notice. In the closing, "Conclusions" portion of his response, FLTLT Fulton stated, at [62]:
62. … As the TN issuing authority, FAILED to take into account all of the evidence already available; having annual assessments by over 20 different supervisors across 18 years with not one "Not suitable" assessment. This is a clear violation of the trust the organisation expects from this position. The TN is an abuse of Military Justice System, breach of privacy information, twisting of events or in some cases selecting snippets of information out of context with the whole piece of evidence. This directorate has FAILED and continues to FAIL the Airwomen and Airmen they have been established to manage.
[Sic - "TN" refers to the termination notice - emphasis added]
63 With reference to this paragraph of FLTLT Fulton's response, WGCDR Nelson stated in his reasons:
You raise concerns regarding the weighing of evidence within your TN. You state that 'conditional probability' and 'un-contextual evidence … hold little weight against recent reporting history of successful performance'. As you have not attached nor pointed me in the direction of any evidence of the reporting history to which you refer, I am unable to consider this; however I am satisfied that the evidence which I have been able to consider, informs an assessment and conclusion of poor performance and justifies the termination of your service.
[emphasis added]
64 The words emphasised in both the response to the termination notice and in the reasons gave rise to what proved to be multi-faceted grounds of appellate challenge.
65 Ground 1 of the notice of appeal was expressed in this way:
1 The primary judge erred in holding that the delegate complied with his duty to consider the Appellant's service history in circumstances where:
(a) the delegate failed to consider the Appellant's Personnel Performance Reports (PPR);
(b) those reports were available to be considered by the delegate;
(c) the Appellant raised his service history and the PPR's in his response to the Termination Notice; and
(d) the PPR's are the primary tool for assessment of career management in the Air Force.
66 As so expressed, FLTLT Fulton did not expressly allege error on the part of the primary judge in failing to conclude that WGCDR Nelson denied him procedural fairness or further or alternatively, had, constructively, failed to perform the delegated function of deciding whether to exercise the power of early termination, because he had failed to consider the PPR mentioned in the response to the termination notice. However, in her comprehensively expressed reasons for judgment, the learned primary judge (at [117] - [119]) expressly identified how such an error might arise and concluded that there was no such error.
67 In the course of his developing oral submissions concerning ground 1, it was put to senior counsel for FLTLT Fulton that the way these were being developed suggested an assertion of just such errors, particularly in light of Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 (Dranichnikov). This being acknowledged on behalf of FLTLT Fulton, senior counsel for the CDF accepted that treating ground 1 as embracing an allegation of such alleged errors would occasion no embarrassment to the CDF. Indeed, he highlighted to the Court that the primary judge had addressed the subject. In these circumstances, it is in the interests of justice to grant FLTLT Fulton such leave as may be necessary to advance these alleged errors.
68 In a passage with which I respectfully agree in terms of principle, the primary judge stated (at [117] - [118]):
117 If the applicant had made clearly articulated, substantial arguments to the delegate against termination based on his performance reports, those submissions would have had to be considered (although that is not to say that the contents of the reports themselves would have become relevant considerations or that the delegate would have had to accept their relevance): see, eg, Plaintiff M61/2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at [90] (the Court). This would have required the decision-maker to consider the representations in the sense explained by Kiefel J (as her Honour then was) in Tickner v Chapman (1995) 57 FCR 452; [1995] FCA 987 at 495, and within the bounds of rationality and reasonableness. As Kiefel CJ, Keane, Gordon and Steward JJ recently explained in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 at [24]:
Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged "to make actual findings of fact as an adjudication of all material claims" made by [an applicant].
(Citations omitted.)
118 Moreover, as their Honours also explained in Plaintiff M1 at [25]:
What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated and which do not clearly arise on the materials before them.
69 When regard is had to the reference in reg 24(2) of the 2016 Regulations to the provision of a written response by the defence member concerned, to the references to an invitation to that member to provide a written response in reg 30(1)(c), to the requirement in reg 30(1)(d) that the notice "set out the facts and circumstances necessary for the member to prepare the written response", to the further requirement, found in reg 30(1)(e) that the notice "specify the period for providing the written response" and to the references to written response in reg 30(2) of those regulations, it must follow that there is an obligation on the part of the CDF or a delegate, in the exercise of the early termination power conferred by reg 24(1) of the 2016 Regulations to consider the response.
70 Sub-regulation 30(2) provides, in respect of the exercise of that power ("the action"):
(2) The action must not take place before one of the following occurs:
(a) the member provides the written response;
(b) the member states in writing that he or she does not intend to provide the written response;
(c) the period for providing the written response ends.
71 There is, in my view, an obvious affinity between these provisions of the 2016 Regulations and s 501CA(3) and s 501CA(4) of the Migration Act 1958 (Cth), considered by the High Court in Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 (Plaintiff M1/2021). Although the primary judge did not expressly refer to such an affinity, her Honour did, as the passage quoted above reveals, accept that, if FLTLT Fulton "had made clearly articulated, substantial arguments to the delegate against termination based on his performance reports, those submissions would have had to be considered" in the way described in the passages which she quoted from Plaintiff M1/2021.
72 One of the authorities identified by Kiefel CJ, Keane, Gordon and Steward JJ in these passages (Plaintiff M1/2021, at [24], fn 41) is Dranichnikov. In Dranichnikov, a failure by an official of the executive branch to deal with an articulated integer of a claim, which claim that official was bound to consider in the exercise of a statutory function, was regarded by Gummow and Callinan JJ, at [32] (with whom Hayne J agreed) and by Kirby J, at [86] - [89], as constituting a constructive failure to exercise jurisdiction, with Gummow and Callinan JJ also stating, at [24], that the error might alternatively be characterised as a failure to afford the claimant natural justice.
73 Because, relevantly, the claim for relief in Dranichnikov was made under s 75(v) of the Constitution, the error concerned had to be jurisdictional in order to ground relief. However, the relief which FLTLT Fulton claimed in this Court's original jurisdiction was not in the exercise of the equivalent jurisdiction to s 75(v), conferred on the Court by s 39B(1) of the Judiciary Act 1903 (Cth), but rather under the ADJR Act. In order to make out the statutory grounds of review specified in s 5 of the ADJR Act, it was not necessary for FLTLT Fulton to show that those errors were jurisdictional. A demonstrated failure to afford natural justice would engage the ground specified in s 5(1)(a) of the ADJR Act. A demonstrated failure to discharge a statutory function according to law would engage either or each of the grounds specified in ss 5(1)(b), (f) or (j) of that Act. However, even if such an error were demonstrated, it would fall to the Court to determine whether, as a matter of discretion, relief by the making of an order pursuant to s 16 of the ADJR Act should be granted.
74 Where I respectfully differ from the primary judge is with respect to whether FLTLT Fulton clearly articulated his performance as assessed over the years as a reason why his service in the ADF should not be terminated early. As to this, her Honour stated (at [119]):
119 However, in his response to the Termination Notice, the applicant's submissions about his performance reporting were pitched at the highest level of generality and did not explain their relevance, bearing in mind that performance reports are not concerned with termination of service but are rather "the primary tool to inform career management decisions including promotions, postings and competitive selections": Air Force Personnel Standing Instructions at [9.14]; see also at [9.23] (Annexure JA-01, Adams affidavit). Specifically, the applicant stated in his response to the Termination Notice that:
Regarding performance, behaviour and suitability, a multitude of evidence has been available through on time promotions and annual reporting (from over 20 different supervisors) over my 18 years that provide a longitudinal picture of my performance, behaviour and suitability.
(Applicant's response to the Termination Notice at [55(a)].)
75 Although her Honour mentions [55(a)] of FLTLT Fulton's response, she does not mention [62] thereof and, in particular, the part I have emphasised. FLTLT Fulton's response was certainly prolix. But so, too, was the termination notice, especially taking into account its annexures. The former was reactive to the latter.
76 It is necessary to read FLTLT Fulton's response as a whole. Read as a whole, it is, in my respectful view, clear to the point of demonstration that FLTLT Fulton was putting forward, as a reason why his service ought not to be terminated early, that his personal performance had never, in the course of his career in the RAAF, been assessed as "not suitable". That statement was not gratuitous. It was not, with respect, "pitched at the highest level of generality"; rather, it was expressed succinctly, starkly and with precision. It was a clearly articulated "integer" of his response. It was certainly at least as clearly articulated as the "particular social group" discerned by the majority in Dranichnikov.
77 Moreover, as the emphasised part of WGCDR Nelson's reasons proves, he well understood this was an integer of FLTLT Fulton's response as to why his service should not be terminated early. This notwithstanding, WGCDR Nelson chose, deliberately, not to address this integer of the response in making the termination decision. This was not whimsy on the part of WGCDR Nelson. As his reasons reveal, it was because FLTLT Fulton had not annexed the PPR of a service career of some 18 years to his response. Yet, as was expressly conceded by his counsel in the course of oral submissions on the appeal, these PPR were always in the possession of the CDF.
78 Irrespective of whether, as was also contended on behalf of FLTLT Fulton, it was necessary, in light of reg 6(2) of the 2016 Regulations, or prior authority, namely, Martincevic v The Commonwealth (2007) 164 FCR 45 (Martincevic) or service orders, or any combination of these, for WGCDR Nelson to address FLTLT Fulton's assessed performance, FLTLT Fulton's response had made that necessary. Given that these PPR were always in the possession of the CDF, the failure to consider that subject by reference to them before making the termination decision was especially egregious. It ought to have been concluded that, in terms of s 5(1)(a) of the ADJR Act, there had been a failure to afford FLTLT Fulton natural justice and, further or alternatively, that WGCDR Nelson had constructively failed to discharge the function delegated to him by the CDF of deciding whether to terminate early FLTLT Fulton's service pursuant to reg 24(1)(c) of the 2016 Regulations.
79 Before turning to whether, as a matter of discretion, relief ought to have been granted to FLTLT Fulton pursuant to s 16 of the ADJR Act, it is necessary to address other bases upon which it was submitted that these errors were established.
80 In Welsh, at 268, Dixon J stated, "The relation to the Crown of members of the armed forces is no new subject; the rules of the common law define it." His Honour's construction of the meaning and effect of the particular regulations made under the Defence Act 1903 (Cth) (Defence Act) under consideration in that case was informed by recognition that those regulations governed one of the armed forces of the Crown (coincidentally also the RAAF) and were thus required to be considered in light of the related common law rules "and of the long tradition to which they have contributed". So it must be in the present case.
81 In relation to the ADF, and in terms of our constitutional inheritance from the United Kingdom, a succession of 17th century events form part of the long tradition concerning the relationship between the Crown and the Armed Forces. [The account that follows draws on the entries in the Encyclopaedia Britannica (Online Edition) in respect of the New Model Army, the Declaration of Breda, King Charles II and the Glorious Revolution, C M Clode, "The Military Forces of the Crown" (1869), at pp 84 - 85 and Halsbury's Laws of England, 4th Ed, Reissue, Vol 2(2), para 1 and Vol 8(2), para 882 - 883, and the footnotes to these paragraphs in Halsbury].
82 The experience in England, and Scotland, in the mid-17th century was that the regicide of King Charles I following a vicious civil war led not to a republican ideal and parliamentary sovereignty but to the military dictatorship of Lord Protector Oliver Cromwell, backed by the New Model Army. After the death of Lord Protector Cromwell, one of his leading generals, George Monck came to realise that there had been an ineffectual succession as Lord Protector by Cromwell's son, Richard and that England and Scotland were in danger of falling into anarchy. This view was widely held by influential persons in these kingdoms. It culminated, in 1660, in the Restoration. This saw King Charles II restored to power but on terms set out by him in the Declaration of Breda of 1660. This yielded a form of constitutional monarchy. However, the Militia Act 1661 (Eng) granted the King unlimited power to raise a standing army. Upon King Charles II's death in 1685 and the succession of his brother, King James II, there came to be growing apprehension that he was assuming despotic power and, in a country which had broken with the Church of Rome over 150 years earlier under King Henry VIII, promoting Roman Catholicism. Support for King James II fell away and, in effect, in what came to be called the Glorious Revolution, one of his daughters, Mary, and her husband, William of Orange were invited to invade England. King James II fled the kingdom. William and Mary assumed the thrones of England and Scotland but for England on terms set out in the Bill of Rights 1688 (OS) (Eng). That set out a number of important freedoms which endure to this day, notably, freedom of speech in parliament. But for present purposes it is the prescription in that legislation (s 1) that "the raising or keeping a standing Army within the Kingdom in time of Peace unless it be with consent of parliament is against law" (as rendered into contemporary English) which is important. It was no coincidence that, at the same time, parliament also enacted the Mutiny Act 1688 (OS) (Eng), which provided for the governance and funding of the Army and the suppression of mutiny by the Army against the restored monarch and his officers.
83 The importance of this for present purposes is that, before the English Civil War of the mid-17th century, authority for the existence and governance of the Armed Forces was wholly to be found in the Royal Prerogative. However, by the end of that century, and throughout all of the Australian colonial period (and to this day in the United Kingdom), authority for the existence of a standing army became parliamentary.
84 Later constitutional developments in the United Kingdom notably included the Act of Settlement 1700 (Eng) and the Roman Catholic Relief Act 1829 (UK) (sometimes termed the Catholic Emancipation Act (Emancipation Act)). Although the Emancipation Act manifested an evolution in some of the societal concerns which had occasioned the Glorious Revolution, it did not manifest abandonment of a tradition of disquiet about the threat which a standing Armed Force could present and a need for its parliamentary authorisation. It is in keeping with the tumultuous history described not to construe narrowly provisions which intrude upon common law prerogatives in relation to the Armed Forces.
85 That is, however, but one consideration at large when it comes to construing reg 6(2) and reg 24 of the 2016 Regulation. As with any legislation or subordinate legislation, the task of construction must commence with the text approved by parliament or, as the case may be, the Governor General in Council. In turn, regard must be had to context and purpose. But if there are constructional choices to be made, one would not lightly, in light of the history mentioned, assume that no change to the position at common law under the prerogative was intended.
86 That approach is also in keeping with this observation made by Kitto J (Taylor J agreeing) in Marks, at 556:
A conclusion that a provision solemnly enacted and expressed as conferring a right or a liberty intends nevertheless to make no change in the law is not lightly to be formed.
It is also in keeping with the approach of the Judicial Committee in Gould v Stuart [1896] AC 575 (Gould v Stuart) to the construction of statutory provisions which apparently modified a like common law prerogative of dismissing civil servants at will and without reason. In rejecting a submission on behalf of a representative of the Crown that no change had been intended, the Judicial Committee stated, at 578, "In that case they would be superfluous, useless, and delusive."
87 On and from when, as a sequel to Federation, colonial military forces passed to the Commonwealth, authority for the existence of the Australian Army and, as they came later successively to be established, the Royal Australian Navy and the RAAF has always been statutory, rather than in some combination of federal executive power (s 61 of the Constitution) and of the vesting of the command in chief of the ADF in the Governor-General, as the Sovereign's representative (s 68 of the Constitution). That statutory authority is presently to be found in s 17 of the Defence Act, enacted pursuant to s 51(vi) of the Constitution.
88 Yet echoes of the prerogative remain in terms of the relationship between members of the ADF and the Crown.
89 At common law, there is no contract of employment between a member of the Armed Forces and the Crown. Instead, a member of the Armed Forces serves at the pleasure of the Sovereign and may be dismissed at will and without the assignment of any reason. In the United Kingdom, this is established by a long line of cases: In re Tufnell (1876) 2 Ch D 164 (Tufnell); Grant v Secretary of State for India (1877) 2 CPD 445; Mitchell v The Queen [1896] 1 QB 121; Dunn; Gould v Stuart; De Dohse v The Queen (1897) Law J Rep 442; Hales v The King (1918) 34 Times LR 589; Leaman v The King [1920] 3 KB 663; Kynaston v Attorney-General (1933) 49 Times LR 300 and, latterly, Quinn v Ministry for Defence [1998] PIQR P387.
90 In Tufnell, at 173, Malins V-C summarised the common law position thus:
It is an arbitrary power, and one which may be exercised most injuriously to the interests of the officer, but such is the benignity and the conduct of Government and of the Sovereign towards all officers, naval, military, or others, that it is never exercised arbitrarily or improperly, or except on proper occasions, and it is absolutely necessary for the discipline of the army and navy, and for the good conduct of the public service, that such an arbitrary power should exist.
This is a description of a form of despotic power.
91 There is no different understanding in Australia of the position at common law: The Commonwealth v Quince (1944) 68 CLR 227, at 234 per Latham CJ, at 242 per Rich J, 245 per Starke J, 250 per McTiernan J, 253 per Williams J; Coutts v The Commonwealth (1985) 157 CLR 91, at 98 per Wilson J, 105 per Brennan J and 120 per Dawson J.
92 In its stipulation that, "No civil contract of any kind is created with the Crown or the Commonwealth in connection with a member's service in the Defence Force" s 27 of the Defence Act is declaratory of the common law.
93 At least nominally, reg 24(1) of the 2016 Defence Regulations alters the common law in relation to termination of an ADF member's service in two respects.
94 One alteration, already discussed, is that, read with reg 30 and subject to the exceptions in reg 24(3), the termination power must be exercised on notice rather than at will. This alteration is therefore not just nominal.
95 Another alteration made by reg 24(1) is that it requires the assignment of a reason by the CDF for the termination.
96 There is an element of precision of application in the reasons specified in regs 24(1)(a) (medically unfit for service in the ADF) and reg 24(1)(b) (cannot usefully serve because of redundancy in the ADF). Material either reasonably admits of a conclusion that a defence member is medically unfit or it does not. There is either a particular redundancy in the ADF or there is not. Thus, in substance and in form, these alternations are more than nominal.
97 However, depending on the meaning one gives to the definition of "the interests of the Defence Force" in reg 6(2) and in any event because of the inclusive rather than exhaustive nature of that definition, the alteration to the common law made by the reason for which reg 24(1)(c) provides, "retention of the member's service is not in the interests of the [ADF]" may in practice be more apparent rather than real.
98 Absent some definitional content, "the interests of the Defence Force" is ephemeral. Although this consideration is focussed on the ADF, the ADF is, for reasons already given, subject to the civil power. So the interests of the ADF must by necessary implication at least be the interests of the ADF not as a separate military caste but as a military subordinated to the civil power. The phrase "the interests of the Defence Force" is similar to "in the national interest". With respect to the latter, Kiefel CJ, Gageler and Jagot JJ, in ENT19 v Minister for Home Affairs [2023] HCA 18, at [13], recently cited with approval what was stated in Plaintiff S297/2013 v Minister for Immigration and Border Protection (No 2) (2015) 255 CLR 231, at 242 [18], quoting Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438, at 455 [50], "the decision-maker may properly have regard to a wide range of considerations of which some may be seen as bearing upon such matters as the political fortunes of the government of which the Minister is a member and, thus, affect the Minister's continuance in office".
99 As evaluative criteria, phrases such as these exemplify a "matter of opinion or policy or taste" as to which Gibbs J observed in Buck v Bavone (1976) 135 CLR 110 (Buck v Bavone), at 118 - 119 it may be "very difficult to show that it has erred" by an absence of good faith; acting merely arbitrarily or capriciously, misdirection in law, a failure to consider matters required to be considered, a consideration of irrelevant matters or unreasonableness in the sense that the decision could not reasonably have been reached. In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, at [137], Gummow J added, in respect of those observations in Buck v Bavone:
This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.
100 This understanding of the broad, evaluative content of "the interests of the Defence Force" is evident in the Full Court's judgment in Chief of the Defence Force v Gaynor (2017) 246 FCR 298 (Gaynor), at [101] - [103], which arose under the termination regime which immediately preceded the 2016 Regulations. Gaynor confirms, at [101] - [103], that, broad and evaluative though the content of "the interests of the Defence Force" may be, a termination decision is nonetheless amenable to judicial review on grounds described by Gibbs J in Buck v Bavone. Gaynor is particularly noteworthy for present purposes for the Full Court's statement, at [102], that "Neither the breadth of the discretion, nor its location in regulations dealing with the Defence Force, indicates that in performing its judicial task of supervising for legal error the exercise of a power, a Court should adopt any deference to the opinion [of the CDF or a delegate" as to what is or is not "the interests of the Defence Force"]".
101 Given the presence of s 75(v) in the Constitution, it must follow that, even were this Court's jurisdiction either under the equivalent of s 75(v), s 39B(1) of the Judiciary Act or under the ADJR Act to review a particular decision of the CDF withdrawn, there would remain vested in the High Court of Australia a minimum content of judicial review found in that court's ability to issue constitutional writs and other relief in aid of such writs. R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452 offers an example of the invocation, even at the height of the Second World War, of this jurisdiction.
102 Existence of a judicial review jurisdiction is one thing, the practical consequence of its invocation and exercise is quite another.
103 The position of the CDF is that reg 6(2) does nothing more than give examples and does not specify relevant considerations. That is contested by FLTLT Fulton, who submits to the contrary.
104 On its face, the text of reg 6(2) of the 2016 Regulations does not state that the instances it specifies are mere examples. In any event, as examples, it does not follow from this that they are not relevant considerations in the sense described by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Peko-Wallsend), at 39 - 40. When it is recalled that, at common law, no reason need be given for the dismissal of an officer by the Crown and that, absent content, the relevant consideration of "the interests of the Defence Force" is ephemeral and may, in practice, be so difficult to challenge on judicial review as to leave the common law position unaltered. Thus, to accept the submission of the CDF as to the meaning of reg 6(2) would be to render the provision, to adopt the language of the Judicial Committee in Gould v Stuart, "superfluous, useless, and delusive." It would, in practice, return near-despotic power to the CDF in relation to the early termination of the service of defence members.
105 The construction promoted by the CDF was said to be supported by the explanatory statement circulated by the Minister for Defence in respect of the 2016 Regulations and by the amendments made to the Defence Act to provide, by s 9(1), that the CDF "has command of the Defence Force".
106 I am unable to accept this. As amended, s 9(1) does not turn the CDF into a General Monck, much less a Lord Protector or an early Stuart Monarch. Part of the reason for that is found in the supremacy of civilian ministerial control enshrined in s 8 of the Defence Act, another in the vesting of the command in chief not in the CDF but in the Governor General, as the King's representative (Constitution, s 68) and the convention that the Governor General acts on the advice of the Federal Executive Council in this role. These, in turn, are but manifestations of the long tradition already described. Another manifestation, also already described, is the preference not to construe narrowly modifications of the common law which confer liberties.
107 Related to that approach to statutory construction, recently highlighted in its application to property rights by Disorganized Developments Pty Ltd v South Australia [2023] HCA 22, at [28], is a requirement, in the absence of clear language to the contrary, preferentially to construe provisions which confer an authority to visit pecuniary loss on a person as carrying with them an obligation to afford procedural fairness to a person affected: Sydney Corporation v Harris (1912) 14 CLR 1, at 7 - 8 per Griffith CJ, at 9 - 10 per Barton J, and at 14 per Isaacs J. Even with respect to the common law, the settled position in relation to its application to military operations or exercises designed to replicate such conditions is not to afford the military any greater immunity from suit than that necessary effectively to conduct such operations: Groves v The Commonwealth (1982) 150 CLR 113; and that is so even in wartime: Shaw Savill and Albion Co. Ltd. v. The Commonwealth (1940) 66 CLR 344. The position is no less strong in relation to provisions which modify the common law. Requiring an administrative decision-maker, civilian or military, to take into account a relevant consideration is conducive to fairness in decision-making. To construe the definition of "the interests of the Defence Force" in reg 6(2) as specifying relevant considerations enhances the modification of the arbitrary common law position made by the 2016 Regulations in relation to the power of early termination. There is nothing in the explanatory statement which supports a construction of reg 24(1)(c) or reg 6(2) to the contrary, even if the text admitted of constructional choices.
108 The construction of regs 24, 6(2) and 30 of the 2016 Defence Regulations promoted by the CDF would also be odd, because the immediate a predecessor, reg 87 of Defence (Personnel) Regulations 2002 (Cth) (Personnel Regulations) was, in Martincevic, at [47], held to "significantly alter the relationship between the Crown and an enlisted Army member from that at common law". Having referred to Peko-Wallsend, the Full Court in Martincevic, at [60], observed of the 2002 Regulations:
60 Regulation 87 of the Personnel Regulations does not state expressly what considerations a decision-maker is bound to consider in reaching the opinion in reg 87(4) that precipitates the termination of an enlisted member's service. Regulation 7 of the Personnel Regulations provides limited guidance in so far as it stipulates, in a non-exhaustive way, matters to which a decision-maker must have regard when determining a matter or making a decision under the Regulations, …
[emphasis added]
In my view, reg 6(2) of the 2016 Regulations performs a like role to reg 7 of the Personnel Regulations. It specifies, in a non-exhaustive way, matters to which a decision-maker must have regard when deciding whether to exercise the termination power under reg 24(1)(c) of the 2016 Regulations.
109 It was put on behalf of the CDF that the 2016 Regulations had to be administered in war as well as in peace and to construe the subjects specified in reg 6(2) of the 2016 Regulations as considerations which must be taken into account may admit of difficulty in particular wartime circumstances. Of this, however, it may be said that it is necessary to distinguish the consideration itself from the material available which may or may not support it or even require it to be taken into account at all. For example, first hand observation of the performance of an officer on the battlefield may make it immediately obvious to a superior that the officer is not just a danger to him or herself but to those under his or her command. Although, as I have mentioned, the odd way in which reg 24(3) of the 2016 Regulations is drafted might prevent peremptory termination of that officer's membership of the ADF, that would not prevent that officer being relieved of command, ordered from the field and then subject to the termination procedure for which the 2016 Regulations provide. And a report of observed performance might inform termination under reg 24(1)(c) on grounds specified in reg 6(2)(a) and perhaps also regs 6(2)(c), 6(2)(e) and 6(2)(f). So, even allowing for the oddity of drafting, in practice it seems unlikely that there is substance in the position put on behalf of the CDF. Further, one might, on reflection, think in any event that poor performance in wartime ought not to be a pathway to early termination of service in the ADF, as opposed, perhaps, to disciplinary proceedings under the DFDA, demotion and reassignment.
110 Yet all this preferred construction of reg 6(2) does is to lead to a conclusion that, in deciding whether to exercise the termination power under reg 24(1)(c) of the 2016 Regulations, WGCDR Nelson was bound, in light of reg 6(2)(a), to consider FLTLT Fulton's performance. As [62] of his reasons reveals, WGCDR Nelson considered this subject but did not do so (as FLTLT Fulton had requested) with reference to FLTLT Fulton's performance reports, even though these were always in the possession of the CDF.
111 Also in Martincevic, at [64], the Full Court observed of the termination power found in reg 87 of the Personnel Regulations:
[T]he subject matter and context of the termination decision make it virtually inconceivable that a decision-maker under reg 87 would not be obliged to consider a soldier's service history. This is because a soldier's service history would in some way lie at the heart of any proposed termination decision and has some bearing on the proposed reason for termination (which fell for consideration in the opinion to be formed under reg 87(4)). A soldier's service history was therefore a relevant consideration, in the sense used in Peko-Wallsend 162 CLR at 39.
112 It was put on behalf of the CDF that Martincevic was distinguishable, because the case concerned a proposed termination for medical reasons. But the observation in relation to the relevance of a service history had nothing to do with that particular circumstance and everything to do with what the Full Court considered flowed as a matter of necessary implication from the text, subject matter and scope of the early termination power which fell to be exercised under reg 87 of the Personnel Regulations. Moreover, the particular report which the Full Court held the delegate of the CDF was bound to consider, in light of the Full Court's conclusion (at [64]) that it was "virtually inconceivable" that a defence member's service history was not relevant, was not a medical report but rather the report of a senior officer who had conducted an inquiry and made recommendations in respect of allegations of bullying and mistreatment by Private Martincevic.
113 The subject matter and scope of reg 24(1)(c) of the 2016 Regulations is no different. Further, reg 6(2)(a) expressly mentions performance and on its face makes it plain that it is not exhaustive of the content of "the interests of the Defence Force".
114 Martincevic is not obviously wrong. If anything, subject to one possible caveat, which does not arise in this case, it is, in my respectful view, obviously right. It should therefore be followed.
115 The possible caveat is that the necessary implication found in Martincevic may, given the subject matter, carry with it the rider of "unless necessarily prevented by ADF operational considerations". Like the present, the termination decision in Martincevic was made under peacetime conditions, making it unnecessary for either the parties or the Full Court directly to confront the ramifications of operational conditions.
116 Demonstrably, WGCDR Nelson has failed to consider FLTLT Fulton's service history, which must include his PPR. WGCDR Nelson has therefore, on the true construction of the 2016 Regulations, failed to take into account a relevant consideration.
117 It was also put on behalf of FLTLT Fulton that WGCDR Nelson was required by the Military Personnel Manual of (MILPERSMAN3, Chapter 2.6(c)) to take his performance into account in making the termination decision. On the hearing of the appeal, neither his counsel nor, somewhat surprisingly, counsel for the CDF, was able precisely to identify the authority for this document. This became a subject for supplementary submissions. I do not consider it necessary to chart out in detail the authority for the making of the MILPERSMAN. Suffice it to say, it is clear from these that the issuing by the CDF or a subordinate of the MILPERSMAN is authorised by the Defence Act.
118 Also somewhat surprisingly, especially having regard to reg 6(2)(a) of the 2016 Regulations, the CDF contested whether the MILPERSMAN obliged WGCDR Nelson to take account of FLTLT Fulton's performance and his PPR. This was particularly surprising, when one reads the requirement in the MILPERSMAN to consider performance in light of the RAAF specific the Air Force Personnel Standing Instructions (AFPSI) Chapter 9. One finds in AFPSI Chapter 9 these statements about PPR:
Performance reporting is fundamental to the development and selection of Air Force personnel to meet future capability needs. Promotions and key posting selections are informed by an individual's reported performance and identified potential. Honest, reliable and timely feedback underpins the integrity of the PPS and subsequent Personnel Branch - Air Force (PERSBR-AF) decision making. Accordingly, performance reports must be afforded the highest priority and closest attention by all supervisors.
The PPS is a holistic personnel reporting system supporting career management decisions.
[PPR] is the primary tool to inform career management decisions including promotions, postings, and competitive selections. The PPR incorporates performance development (goal setting) and performance review by both the assessed member and the assessor. The number of days observed will determine whether a full or abridged PPR is required.
The assessor and the senior assessor are required to assess the future employment suitability of the assessed member …
119 It is difficult to conceive of a more fundamental career management decision for the CDF and his delegates than whether or not to terminate a defence member's career early pursuant to reg 24(1)(c) of the 2016 Regulations.
120 FLTLT Fulton has also demonstrated that, on this basis also WGCDR Nelson was obliged to take into account his PPR. In this regard, the position is indeed, as he submitted, similar to the requirement found in Martincevic, at [63], which flowed from the then prevailing Defence Instructions (DI(A) PERS 116-5, as well as DI(A) PERS 124-29).
121 FLTLT Fulton has therefore established multiple reasons why WGCDR Nelson erred in failing to take into account his PPR for the purpose of making the early termination decision.
122 It does not necessarily follow that FLTLT Fulton should be granted relief in the exercise of the power conferred on the Court by s 16 of the ADJR Act. The power to grant that relief is discretionary.
123 One basis upon which relief might be withheld is the sheer lapse of time since the termination decision was made - over two and a half years ago. However, the trial of the proceeding in the original jurisdiction was consensually deferred for reasons set out above. So delay is not, in my view, a factor telling against the granting of relief.
124 A factor which has much troubled me is that adverted to at the commencement of these reasons, repeated failure over a lengthy period to pass a PFT. Yet, reflecting further, it is distinctly odd that, this notwithstanding, FLTLT Fulton was not just retained in the RAAF for some 18 years but promoted and deployed on operational service. Further, that deployment involved a waiver of a requirement to pass a PFT. And there look to be other bases in FLTLT Fulton's service history in which a requirement to undertake a PFT was at least deferred for medical reasons. Moreover and most importantly in terms of discretion, his most recent PPR, the only ones in evidence (2018 and 2019), do not rate him as unsuitable, rather the reverse.
125 To refuse relief on the basis that the result could be no different is, in the circumstances of the present case in my view, to make a decision on the merits. That is something the judiciary must not do in this type of case. It is possible that, considered in the context of the whole of the material, FLTLT Fulton's PPR just might make a difference. This, in effect, is the view reached by the Full Court in the exercise of the like s 16 ADJR Act discretion in Martincevic in relation to the taking into account of the investigation report. In relation to the exercise of the discretion under s 16 of the ADJR Act as to whether to grant relief, there is a like standard of "reasonable conjecture" to that which informs whether an error is jurisdictional (qv Nathanson v Minister for Home Affairs (2022) 96 ALJR 737, at [33]), and that standard is similarly undemanding.
126 There is another, related reason why I would grant relief to FLTLT Fulton in the exercise of the s 16 ADJR Act discretion.
127 One basis upon which he should succeed is that he was denied procedural fairness by WGCDR Nelson. That brings to mind a long ago case which underscores in a way which should never be forgotten just how important procedural fairness can be in relation to the exercise of the power of early termination of defence service. That is the case of Archer-Shee v The King: see the account of the case in Professor E R Keedy, A Petition of Right: Archer-Shee v The King (1939) 87 University of Pennsylvania Law Review 895. As a young student then studying in the United Kingdom, Professor Keedy had attended the court proceedings in Archer-Shee. Much later, the circumstances of the case were dramatised by the British playwright, Terence Rattigan, in his play, "The Winslow Boy" but in their raw form they are dramatic and instructive enough.
128 Archer-Shee was a young naval cadet at the Royal Naval College, Osborne, dismissed from the Royal Navy in 1908 on the basis of his alleged theft of a postal note. The Admiralty adamantly refused to reconsider that decision. At that time, the common law position prevailed in relation to a dismissal from the Armed Forces but it was thought by those advising him that the position might be different in relation to a naval cadet in respect of whose training a tuition fee was payable. Proceedings by way of a petition of right (a dubious device, given his status) were instituted. These at least afforded an opportunity for exposing the benefits affording procedural fairness can bring. On the hearing of the petition under cross-examination by Sir Edward Carson (as his Lordship then was) for the petitioner, the post mistress at the Isle of Wight post office admitted that all naval cadets looked alike to her. In the face of that admission, and of other exposed flaws in the foundation for the dismissal (including the dubious worth of the handwriting evidence) the Crown, represented by the then Solicitor-General, Sir Rufus Isaacs (as his Lordship then was) informed the court "on behalf of the Admiralty, as a result of the investigation which had taken place, [stated] that he accepted the declaration of Cadet George Archer-Shee that he did not write the name on the postal order, that he did not take it, and that he did not cash it; and that consequently he was innocent of the charge which had been brought against him." Ironically, Archer-Shee was by then too old to return to Osborne. However, the experience of the saga did not diminish his patriotism. He was an early volunteer during the First World War and, as a junior infantry officer, was killed in action in 1914.
129 Insistence on affording procedural fairness to a defence member, where that right exists, is important for service morale and discipline, just as important as early termination for that reason or others.
130 For these reasons, I would grant leave to FLTLT Fulton to raise the additional issue mentioned, allow the appeal, set aside the early termination decision and remit the matter to the CDF with a direction that the question of early termination be considered afresh either by him or a different delegate. Given the emphatic views which he has expressed and the failings exposed, that fresh consideration ought not to be by WGCDR Nelson.
131 I would also order the CDF to pay FLTLT Fulton's costs both in respect of the appeal and in the original jurisdiction.
132 It should be recorded that this is not FLTLT Fulton's first encounter with the exercise of the early termination power. On an earlier occasion, on the basis of a conceded error in the exercise of that power, I was persuaded that it was appropriate to quash that decision: Fulton v Chief of the Defence Force (2017) 60 ALD 209. On that occasion, at [17], I observed that "the quashing of the termination decision neither assures FLTLT Fulton of continued tenure nor limits the CDF or his delegate, if disposed again to consider termination, to the basis chosen before". I make a like observation in this case.
133 Recently, in Burns v Chief of the Defence Force (No 2) [2023] FCA 866, at [17] - [20], I was sufficiently concerned in the circumstances of that case in relation to an apparent, systemic misunderstanding of the exercise of the early termination power within the ADF to direct the Registrar to refer the court file to the Inspector General of the ADF for such action, if any, as the Inspector General might deem fit, pursuant to s 110C of the Defence Act. Taking into account that this is the second occasion when a flawed termination decision has been made in respect of FLTLT Fulton, I would do likewise in this case, for like reasons.
I certify that the preceding one hundred and thirty-three (133) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.