Graham v Deputy Chief of Air Force

REASONS FOR JUDGMENT 1 The applicant was an enlisted member of the Royal Australian Air Force. On 11 September 2003 the second respondent Wing Commander B J Teisseire terminated his service on the ground that, as the delegate of Chief of Air Force, he was satisfied that the retention of the applicant was not in the interests of the Air Force: reg 87(1)(g)(iii) of the Defence (Personnel) Regulations 2002 (Cth) (the Regulations). 2 The applicant took Redress of Grievance procedures but on 28 May 2004 the first respondent, the Deputy Chief of Air Force, determined that the applicant's complaint about the decision to terminate his service not be upheld. 3 The applicant challenges the validity of both decisions under s 16(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth). 4 The applicant had enlisted in the Air Force in February 1997 at the age of 17. He had given good service and was well regarded by his superiors and peers. The termination of his service was bound up with his involvement in illegal drug use and in particular his possession of a "bong" (according to the Macquarie Dictionary, "a type of water pipe, used for smoking hashish") found in his quarters. This was after he had received an earlier warning against illegal drug use. 5 With one exception, the applicant's attack was directed at the termination decision of the second respondent. Grounds relied on 6 The applicant raised a number of what were said to be procedural or technical defects namely: · the second respondent purported to exercise a function which had not been delegated to him; · the notice of termination was defective in content; · the second respondent failed to make a necessary finding as to a particular matter; and · the second respondent failed to consider factors which he was obliged to consider. 7 The applicant also relied on what was said to be substantive grounds namely: · improper use of urinalysis results; · improper reliance upon possession of the bong; · the exercise of discretion by reference to a flexible application of a policy; and · breach of natural justice in relation to the Redress of Grievance decision. Warning 8 On 6 November 1998 the applicant pleaded guilty to a charge of using cannabis contrary to s 59(6) of the Defence Force Discipline Act 1982 (Cth). On the same day he was given a career length Air Force Headquarters Formal Warning (the Warning) that any further involvement in illegal drugs would result in his dismissal from the Air Force. 9 Periodic testing over the ensuing 18 months revealed no presence of illegal drugs. On 26 September 2000 testing was ceased although, as the applicant then acknowledged in writing, he remained subject to the Warning. Finding of bongs 10 On 19 June 2002 the applicant was based at Richmond but was on attachment to East Sale. Cleaners entered his room and found two bongs. Interview 11 On 23 August 2002, at his own initiative, the applicant was interviewed by his commanding officer Wing Commander K Millett in the presence of Sergeant G Toms. A record of conversation signed by Wing Commander Millett and Sergeant Toms includes the following: "Immediately after morning parade he asked for a meeting with me [Wing Commander Millett] to discuss the allegations. At the onset of the meeting he stated that he would not try to hide anything. It was a 'bong' in his room and that he had been asked to look after it by a friend who did not want to leave it at his house. He admitted that he had 'smoked' with this friend but not on Commonwealth property. I advised him that he would be interviewed formally by SECPOL in this matter and that SGT Toms could be present if he wished." 12 The record of conversation was not raised until October 2002 and not signed by Sergeant Toms until about December 2002. Urinalysis 13 On or about 26 August 2002 the applicant was interviewed by RAAF Service Police at Richmond. He declined to answer any questions in relation to illegal drug use at East Sale. He consented to the provision of a urine sample, which revealed cannabis at a level of less than 15 ng/ml. This was a level of less than 20 ng/ml prescribed by Defence Instructions General (Air Force) Personnel 11-29 (the Illegal Drugs Instructions) par 17. No charge was laid against the applicant. Another test by a private pathologist on behalf of the applicant returned a negative result. Adverse Report and response 14 On 3 April 2003 Wing Commander Millett issued an Adverse Report. She referred to the finding of the bongs, the urinalysis, the Warning and the interview. The report concluded by stating that the applicant had shown genuine contrition for his actions, was a valuable member of the unit and well liked by his peers but, regardless of his worth as a technician and his remorse, he was a repeat offender for non-medical use of drugs. It was recommended that he be discharged. 15 On 28 April 2003 the applicant provided a written rebuttal in response to the Adverse Report. As to the finding of the bongs, he said that he did not and could not admit the allegation. As to that part of the Adverse Report dealing with the interview, the applicant admitted saying that there was a bong in his room and he had been asked to look after it by a friend. He did not admit saying that he had "smoked" with this friend but not on Commonwealth property. He denied using cannabis since the 1998 incident. He said that he had not signed the record of conversation because of its "gross inadequacy" and that it was not contemporaneous in that it had not been signed by Sergeant Toms until an extended period of time had lapsed. 16 On 30 May 2003 Wing Commander Millett issued a written reply. She stated that at the time of the interview she believed it was not necessary to make a written record of conversation because the applicant stated that it was his intent to "come clean and make a full admission to the Service Police". When she realised that the applicant had reneged on this statement she prepared the written record. She did not ask him to sign her record as "quite clearly he would have refused". She noted that Sergeant Toms had prepared a non-contemporaneous record of the conversation, which was enclosed. The delay in processing the Adverse Report was due to Sergeant Toms being deployed elsewhere. 17 On 20 June 2003 the applicant provided a written reply supplying "new information". He referred to an email dated 8 May 2003 in which Sergeant Toms wrote: "I believe the ROC [record of conversation] was done around the middle of last year. I honestly can't remember what was said during the interview, it's not something I have consciously thought about. I'm not trying to aid in LAC Graham's efforts to stay in, I've just been a tad busy since then." However, in an interview with Wing Commander Millett on 29 May 2003, and in the presence of the applicant, Sergeant Toms said: "On 23 Aug 2002, I was asked to be present as an 'Airman's Friend' at an interview between WGCDR Millet, CO 1CCS, and LAC Graham. An allegation had been made that LAC Graham had a bong in his room when staying at RAAF Base East Sale. LAC Graham began by saying "I'm not going to lie, yeah I've been smoking". LAC Graham also specified that "he had not smoked on Government property." LAC Graham, through his own admission recognised his wrongdoing and expressed his remorse at his stupidity." 18 In a statutory declaration made on 24 June 2003 Sergeant Toms declared: "1. At the time I replied to the 1CCS admin via email, I believed that I was being asked to provide the complete details of the ROC from last year. 2. Given that I was on an operational deployment, this matter was not a priority on my mind. However I do clearly remember the statement made by LAC Graham. Both the ROCs I signed last year and this year are a clear recollection of the events." Termination procedures 19 On 22 July 2003 Flight Lieutenant I P Greenacre submitted a recommendation that the applicant: "be considered repeat NMUD [non-medical use of drugs] offender and that he be discharged from the Air Force pursuant to D(P) r 87(1)(g)(iii) - his retention is not in the interests of the Air Force." 20 On 28 July 2003 Squadron Leader P J McLeod, Acting Deputy Director - Airmen Career Management, issued a Termination Notice to the applicant. The notice stated the writer proposed to terminate the applicant's service pursuant to reg 87(1)(g)(iii). The reason for the proposed termination was said to be that the writer found, on the balance of probabilities, that the applicant had breached the requirements of the Warning. Particulars were stated to be that whilst subject to the Warning the applicant was found to be in the possession of an implement used in the consumption of cannabis. In addition, urinalysis did record a positive reading for cannabis and: "although this amount was too low for DFDA action to be initiated this does not discount the fact that there was cannabis in your system." (emphasis in original) Finally there was the admission to Wing Commander Millett and Sergeant Toms that the applicant had smoked cannabis, which he subsequently recanted. The writer could not identify any motive for Wing Commander Millett and Sergent Toms to lie. On the other hand, the applicant had a history of not telling the truth when it came to involvement with NMUD. He did not disclose NMUD prior to enlistment and denied involvement when originally questioned in 1998. On the balance of probabilities the writer was satisfied that the applicant had been involved in NMUD and was in breach of the Warning. 21 The applicant responded with a statement of reasons dated 29 August 2003 stating that there was no evidence that he was guilty of NMUD "other than mere suspicion". He stated that he did not accept the conversation recounted by Wing Commander Millett and Sergeant Toms was correct and maintained it was "unsafe to accept it on face value". He said it maintained a misinterpretation of what transpired, that is "I continue to admit to using cannabis prior to and in 1998 but not since". 22 On 9 September 2003, Flight Lieutenant Greenacre responded. On 10 September Squadron Leader McLeod considered the material and recommended termination. On 11 September the second respondent signed the formal letter of discharge. Amongst other things the letter stated: (emphasis in original) "I take this opportunity to emphasize that the decision to issue you with a Termination Notice was not based solely on the fact that you had a bong - it was based on the aggregation of all the issues associated with this case, as listed below: a. The urinalysis of 26 Aug 03, which indicated that there was cannabis in your system, and b. You had a bong in your possession, and c. The signed Record of Conversation from CO 1CCS, and d. The signed Records of Conversation and the Statutory Declaration of SGT Toms, and e. You lied about your involvement in NMUD at enlistment (which introduces an element of doubt in respect of your integrity in respect of NMUD), and f. You initially lied about your involvement in NMUD in 1998 (you only admitted your usage at that time following a positive urinalysis, which strengthens the doubts over your integrity in respect of NMUD), and g. You admitted to manufacturing a bong (to use with the cannabis that you purchased) in 1998." Redress of Grievance 23 On 28 October 2003 the applicant lodged an application for Redress of Grievance. He argued that in respect of urinalysis he did not knowingly ingest cannabis and did not make the admissions alleged against him. The evidence in support of those admissions was unreliable, and the presence of the bong in his room did not prove that he owned it or had smoked cannabis in it. He stated: "I probably did say 'I had smoked with this friend' but may not have elaborated enough to express or impress that the occurrence was pre 1998 conviction." 24 On 28 May 2004 Air Vice Marshall R K McLennan, Deputy Chief of Air Force, determined that the applicant did not have grounds for complaint. Delegation 25 Regulation 87(1) relevantly provides: "1. The service in the Defence Force of an enlisted member may be terminated, in accordance with this regulation, for any of the following reasons: … (g) the Chief of the enlisted member's Service is satisfied that the retention of the enlisted member is not in the interests of: (i) Australia; (ii) the Defence Force; or (iii) the Chief's Service." 26 Under reg 119(3) of the Regulations, the Chief of Air Force can delegate any of his powers to an officer of the Air Force who holds the substantive rank of Flight Lieutenant or a higher rank. 27 On 21 July 2003 Air Marshall A G Houston, Chief of Air Force, delegated to "DDACM" (Deputy Director - Airmen Career Management): "Power to issue a termination notice to an enlisted member of the Air Force up to and including the rank of CPL for any of the reasons specified in Regulations 87(1)(a), (b), (d)-(j) and to terminate enlistment." 28 It was submitted that although the delegation includes the power to issue a Termination Notice and to determine the grounds, including grounds prescribed by 87(1)(g), there was no delegation of the power to reach the requisite satisfaction. 29 This argument is conclusively answered by s 34A of the Acts Interpretation Act 1901 (Cth) which provides: "Where, under any Act, the exercise of a power or a function by a person is dependent upon the opinion, belief or state of mind of that person in relation to a matter and that power or function has been delegated pursuant to that or any other Act, that power or function may be exercised by the delegate upon the opinion, belief or state of mind of the delegate in relation to that matter." Whether Termination Notice defective 30 It was submitted that although the Termination Notice states "your continued service is not in the interests of the Air Force" that was an insufficient statement of reasons under reg 87. It was said that the reason must be that the Chief of Air Force is of the view that retention is not in the interests of the Air Force; it was not enough that the DDACM or a person acting in that position was of that view. In a sense, this is a variation of the delegation argument. 31 Regulation 87(2), (3), (4) and (5) provide for the procedures where the termination of service power is to be invoked. They are as follow: "(2) The Chief of an enlisted member's Service may give the enlisted member a termination notice: (a) stating that it is proposed to terminate the enlisted member's service in the Defence Force; and (b) stating the reason for terminating the service; and (c) setting out particulars of the facts and circumstances relating to the reason for terminating the service that is sufficient to allow the enlisted member to prepare a statement of reasons why the service should not be terminated; and (d) inviting the enlisted member to give the Chief a written statement of reasons why the service should not be terminated; and (e) specifying a period of at least 28 days after the date of the notice as the period in which the enlisted member may give the statement of reasons. (3) If: (a) the enlisted member does not give the Chief a statement of reasons in the specified period; and (b) the Chief is of the opinion that the reason for terminating the enlisted member's service has not been affected by a change in circumstances since the termination notice was given to the enlisted member; the Chief must terminate the enlisted member's service in the Defence Force. (4) If: (a) the enlisted member gives the Chief a statement of reasons in the specified period; and (b) having considered the statement, the Chief is of the opinion that the reason for terminating the enlisted member's service: (i) has been established; and (ii) has not been affected by a change in circumstances since the termination notice was given to the enlisted member; the Chief must terminate the enlisted member's service in the Defence Force. (5) The Chief must not terminate the enlisted member's service under this regulation in any other circumstances." 32 At the stage of the Termination Notice the state of satisfaction contemplated by reg 87(1)(g) has of necessity not yet been reached. Indeed it would be wrong for that satisfaction to be reached before the enlisted member is given the opportunity to respond to the Termination Notice. Whether failure to make necessary findings 33 It was argued that reg 84(7)(4)(b)(ii) required a finding to be made that the reason for terminating the enlisted member's service has not been affected by a change in circumstances since the Termination Notice was given. No finding had been made as to this. 34 However the Termination Notice itself stated: "If you give me a statement of reasons within a specified period I will consider that statement and any other relevant material submitted with it. If I am of the opinion that the reason for terminating your service has been established and has not been affected by a change in circumstances since this notice was given to you, I must terminate your service in the Defence Force." 35 Thus it was clearly drawn to the applicant's attention the need to bring to the mind of the decision-maker any relevant change in circumstances. There is no suggestion that there was any such change. Having not received any notification that there was, the decision-maker was entitled to act on the basis that that particular requirement of the regulation had been satisfied. Whether failure to consider "mandatory factors" 36 Senior counsel for the applicant pointed out that par 10 of the Illegal Drugs Instructions lists the factors which should be taken into account when considering an Australian Defence Force (ADF) member's suitability for retention following a finding of "involvement with illegal drugs". There are eight factors including such matters as "the type and quantity of illegal drugs involved", "frequency, period and level of use" and "age and rank of offender at present and at time of involvement". Senior counsel said that neither respondent had considered all the prescribed factors. 37 The Illegal Drugs Instructions were issued by the Secretary of the Department of Defence and the Chief of the Defence Force on 28 November 1994 under s 9A of the Defence Act 1903 (Cth). Their aim (par 3) is to state ADF policy on illegal drug involvement and drug education, identify administrative and urinalysis procedures and requirements, and prescribe the statistical data on illegal drug involvement to be maintained by the Services. In par 5 it is said that involvement with illegal drugs by members of the ADF is not condoned and that "(d)isciplinary and/or administrative action" that may result in discharge is to be initiated against any member so involved. Where retention is approved following involvement with illegal drugs, the member is to be advised that "any further involvement will result in termination of appointment or discharge" (par 12). There are provisions (pars 13-18) dealing with urinalysis. In relation to cannabis, a reading of equal to or greater than 20 ng/ml is to be regarded as confirming the member's involvement with that drug (par 17). 38 The present ground, and other grounds, assume that because illegal drugs formed part of the circumstances leading up to the applicant's termination it was necessary for the respondents to comply with the provisions of the Illegal Drugs Instructions. 39 In my view, this argument is misconceived. The power to terminate when the Chief of Service is satisfied that the retention of the enlisted member is not in the interests of the Service is expressed in quite general terms. While sub-regs (2), (3) and (4) require the enlisted member to be given a fair opportunity to answer the alleged facts and circumstance which might give rise to the requisite satisfaction, the regulations say nothing of the kind of facts and circumstances which might exist in any particular case. 40 The present case is not one for the application of the maxim generalia specialibus non derogant, where a later and general statutory instrument (here the Regulations) is construed so as not to impliedly repeal an earlier and more specific provision (the Illegal Drugs Instructions): Goodwin v Phillips (1908) 7 CLR 1 at 14, Pearce and Geddes Statutory Interpretation in Australia, 5th ed. 2001 at 7.18. The ultimate question is still the discernment of the legislative intention: Associated Minerals Consolidated Ltd v Wyong Shire Council (1974) 4 ALR 353 at 359. The Chief of Service or his or her delegate is in the best position to decide whether retention of a member is in the interests of that Service, especially having regard to the elements of trust, loyalty and confidence which are fundamental to military service. It would be quite impossible to specify in advance the infinite variety of circumstances which might cause the Chief to reach that state of satisfaction in relation to a particular individual. An analogy is to be found in the long-established military offence of conduct prejudicial to good order and military discipline (now s 60 of the Defence Force Discipline Act). Such conduct may take many forms and it is "impossible, indeed unwise, to attempt any exhaustive definition": Chief of the General Staff v Stuart (1995) 58 FCR 299 at 323. The power to terminate service cannot in my view be read down so as to be subject to the terms of a very detailed mechanism providing for administrative measures, not confined to termination of service, in relation to the specific problem of illegal drug use. 41 The present case is a good example why this should be so. Factors leading to the applicant's termination were not limited to drug use. His honesty was also in issue. It could hardly be suggested that once illegal drugs were involved the Illegal Drugs Instructions should provide a code for determining the case and no other factors, such as honesty, should be considered. Whether urinalysis could comprise involvement with illegal drugs 42 It was pointed out that the urinalysis of the applicant showed the presence of cannabis of less than 15 ng/ml and thus did not meet the level prescribed by par 17 of the Illegal Drugs Instructions. 43 As already mentioned, the Illegal Drugs Instructions are not determinative. The decision to terminate was not legally dependent upon any particular level of cannabis in the applicant's test. As well as the presence of some cannabis, there was also the finding of the bongs in his room and the admission of "smoking", which in the context can hardly mean anything other than smoking cannabis. This was a case where the decision depended upon the decision-maker's own subjective view of the matter rather than any objective ascertainment of a jurisdictional fact: Australian Heritage Commission v Mt Isa Mines Limited (1997) 187 CLR 297 at 303-4, 308, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 274-7, Buck v Bavone (1976) 135 CLR 110 at 118-9. The applicant would have to show that, having regard to all the foregoing matters, and of course the Warning, the decision-maker could not have reasonably reached a state of satisfaction that the applicant's service should be terminated in the interests of the Service. This is a high hurdle, and was not cleared. Whether possession of the bongs comprised involvement with illegal drugs 44 Paragraph 4(c) of the Illegal Drugs Instructions states that involvement in this context "includes possession, selling, dealing in or administering the illegal drug to oneself or another". It was pointed out that this did not extend to the use of a device such as a bong. It was argued that the possession of an implement per se could not possibly as a matter of law indicate the involvement with drugs, in the same way that possession of a knife does not show necessarily involvement with murder. The evidence was "incapable of being given any weight". 45 The analogy is hardly persuasive. It all depends on the circumstances. The possession of a knife by a person fleeing from premises where a person has recently been stabbed to death would at the very least be relevant in assessing that person's guilt or innocence. The possession of the bongs was only one element in the circumstances relied on by the respondents. It is fallacious to look at each item of evidence in isolation and say that in itself it "at most raised a suspicion". Whether inflexible application of policy 46 It was argued that the respondents had worked on the basis that any further involvement with illegal drugs must result in termination. 47 That is simply not so on the evidence. The applicant was given every opportunity to explain his conduct. Some part of his explanation was rejected. The fact that he had received the Warning could not be ignored. Obviously it formed a very important, but nevertheless not conclusive, circumstance. Irrelevant considerations 48 It was argued that urinalysis and possession of the bongs were irrelevant considerations, as was the fact that he had told lies at enlistment or in 1998. 49 However, these items were plainly relevant; the weight to be given to them was a matter for the decision-maker. Failure to take into account relevant considerations 50 It was argued that the respondents did not consider the possibility of faulty recollection, rather than deliberate dishonesty on the part of Wing Commander Millett and Sergeant Toms, as the explanation of the dispute about the alleged admission. Similarly, there was said to be a failure to take into account that the concentration of cannabis as disclosed in the urinalysis could have been anywhere between 0 and 14 ng/ml and that the level did not meet that specified by par 17. 51 There is no substance in these arguments. The reading of itself was a relevant factor but plainly not the only one. As to the alleged admission, the logical possibilities were that, in attributing the admission to the applicant, Wing Commander Millett and Sergeant Toms were truthful and accurate, or were lying, and necessarily collusively so. Faulty recollection seems unlikely, since people do not usually fail to recollect something which, on the applicant's case, did not happen. It was an obvious and rational comment that there was no apparent motive for Wing Commander Millett and Sergeant Toms to lie. The issue was a factual matter for the decision-maker. Conclusion that bong has only one purpose 52 There was a natural justice argument that the applicant was never given an opportunity to confront the finding that the bongs had only one purpose, which was said to be central to the relevance of the bongs at all. 53 Notwithstanding the applicant's taking full advantage of the opportunity he was given to put his case at the various stages of the process, he never suggested any other reasons for the use of the bongs. His case was that it was present in his quarters because he was looking after it for a friend. He admitted that he had "smoked" with that friend, although not on Commonwealth property. (He denied making the latter admission, but it was plainly open to the respondents to find he had made it.) So if the bong was his friend's, and the friend smoked, presumably by means of the bong, the possibility that the bong had been used for some other unspecified (and innocent) purpose seems to have been excluded by his own assertions. Investigating officer's report 54 This complaint relates to the Redress of Grievance procedure. An investigation report dated 11 May 2003 (sic, obviously 2004) was prepared by a case officer, Wing Commander K I Powell. It recommended that the first respondent find that the applicant did not have grounds for redress of his grievance. The report was never provided to the applicant for comment. 55 However, the applicant had had numerous opportunities to put forward matters relevant to the adverse findings against him. The only specific matter relied on in the present application is that in the course of his lengthy report Wing Commander Powell stated that he had asked Wing Commander Millett if there had been any pressure on Sergeant Toms to provide support for her version of events. She told him that despite Sergeant Toms' inability to recall the complete conversation he was certain that the applicant had admitted the use of illegal drugs. She said that Sergeant Toms was "taken aback" by the applicant's admission during the interview because when they were on their way to her office Sergeant Toms had suggested to the applicant that he not admit to anything at that stage. Wing Commander Powell goes on to say that he was unable to contact Sergeant Toms for comment because he was on overseas deployment. However, he was satisfied that notwithstanding the confusion created by the email of 8 May 2003, Sergeant Toms' position has been clarified by his record of conversation of 29 May 2003 and statutory declaration of 24 June 2003. He (Wing Commander Powell) was satisfied that there was no reason why Wing Commander Millett or Sergeant Toms would misrepresent the outcome of discussions with the applicant when they stood to lose the services of a previously well regarded airman. It stood to reason they would have been more than willing to provide support for the applicant had the circumstances allowed for this. 56 It was said that there was a breach of the rules of natural justice. The applicant was not given the opportunity to comment on the argument that Sergeant Toms' warning to the applicant not to say anything at the interview made the applicant's subsequent admission surprising and thus fixed it all the more firmly in Sergeant Toms' memory. 57 The doctrine of natural justice, generally speaking, requires a person affected to be provided with an opportunity to meet all adverse information that is "credible, relevant and significant": Kioa v West (1985) 159 CLR 550 at 629 per Brennan J. In Applicant M1015/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1309, Weinberg J reviews the authorities dealing with the issue whether, given a breach of natural justice, the person affected needs to show whether the opportunity, if given, would have been taken and whether it would have made any difference to the decision. As Weinberg J points out at [54], the relevant factors include "the importance of the material to the ultimate decision". 58 In the present case, I am satisfied that the information in question was quite peripheral in the overall scheme of things. Even if the applicant had denied that Sergeant Toms had given him a warning, it is difficult to see how in the light of all the circumstances as a whole, that would have made the slightest difference. There was no breach of the rules of natural justice because the information in question, while relevant, could not be said to be significant. Natural justice does not mean that "the source and nature of all material that comes before the decision maker must be disclosed": Muin v Refugee Review Tribunal (2002) 190 ALR 601 at [123] per McHugh J. Conclusion 59 None of the grounds have been made out. The application will be dismissed with costs. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.