Marks v The Commonwealth

Marks v The Commonwealth - [1964] HCA 45 - HCA 1964 case summary — Zoe

[10]

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. But I should not hesitate to accept that conclusion in the case of s. 17 (1) if faced with a choice between accepting it and upholding the plaintiff's contention on this demurrer. The two general considerations to which I have referred as assisting me to this conclusion are, first, the nature of military service in a regular army (for s. 17 is enacted for officers of the permanent forces as well as for others), and, secondly, the nature of service in an office under the Crown. It is enough to say of the former that, however unlikely it may be in the abstract that Parliament should intend no legal result to flow from its enactment, it is much more unlikely that Parliament should intend to enable a person who has accepted the Queen's commission as a military officer in a force raised for continuous service to set a precise limit of three months to the right of the Crown to retain his services regardless of circumstances, even in time of peace. In the cases of Parker v. Lord Clive [1] ; Vertue v. Lord Clive [2] , and Hearson v. Churchill [3] the special character of military service in a regular army and comparable forms of service seems to have been considered sufficient reason for instantly denying a contention that officers might, as Lord Mansfield expressed it in Parker v. Lord Clive [4] "resign their commissions, and quit the service, at any time and under any circumstances, merely ad libitum, whenever they themselves should think fit or be so inclined". Military service in a temporary or part-time defence force or one of special character has at times been regarded differently, both by the British Parliament: R. v. Dowley [5] (see the note to R. v. Witnesham [6] ), and by the Australian Parliament: Defence Act 1903 Cth, ss. 34 (now repealed), 39, 40, 41. See also Halsbury's Laws of England, 3rd ed., vol. 33, pp. 1002, 1007, 1061, pars. 1665, 1675, 1773. But clear language is used when for special reasons it is intended to allow an officer to withdraw from his military obligations. In my opinion such an intention ought not to be attributed to the Parliament unless it clearly appears from the language of the relevant statute.

[14]

Against this background, the language of s. 17 (1) - "may tender the resignation of his commission" - seems plainly to have been chosen with a careful intention of going so far and no farther. I can see no justification for departing from its prima facie meaning. It implies clearly enough an expectation that the tender of an officer's resignation by giving three months' notice will as a general rule be assented to with reasonable promptitude by the Governor-General (acting with the advice of the Federal Executive Council: s. 6). But it stops short, with evident deliberation and very obvious good reason, not only from making the resignation self-executing but also from imposing any legal obligation of acceptance upon the Executive. Having given its sanction to the tendering of a resignation if the specified period of notice be observed, the Parliament has significantly abstained from laying down any rigid rule as to what shall follow. It has therefore left every resignation to be dealt with by the Executive according to the exigencies of the time and of the particular case. Under a constitution which makes the Crown's advisers responsible to Parliament it is more readily to be understood than it might be under a different kind of constitution that in a sphere where flexibility in regard to executive action is important an enactment may be intended as no more than a general intimation of policy, giving rise to no legally enforceable right or duty, and intending no sanction beyond the political sanctions which are in the hands of the Parliament itself and its constituent Houses. In my opinion that is the principal function of s. 17 (1), and I should construe it as not entitling an officer to bring about the termination of his commission without the assent of the Governor-General, even if it were true that so to hold would be to deny the section any legal operation at all. I point out, however, that even when so construed it is not without legal operation; for at least it precludes the making, under s. 124, of regulations inconsistent with its provision, and denies the lawfulness of any inconsistent order.

[16]

At least, since the decisions in Reg. v. Cuming; Ex parte Hall [1] and Hearson v. Churchill [2] , there has been, as far as I can see, universal acceptance of the proposition that an officer in the regular Army has no absolute right to resign his commission and, thereby, terminate his service under the Crown (See e.g. Clode's Military Forces of the Crown, vol. 2, p. 96; Keith's Constitutional Law, 7th ed. (1939) p. 362; and Halsbury's Laws of England, 3rd ed., vol. 33, par. 1598). But that proposition cannot be decisive of this case if, as the argument of the plaintiff asserts, s. 17 of the Defence Act provides to the contrary. It is the plaintiff's contention that having, on 17th April 1963, tendered "three months' notice" of the resignation of his commission he ceased, on 17th July 1963, to be a commissioned officer in the Australian Military Forces or, alternatively, that, if acceptance of his resignation by the Governor-General was necessary in order to make it effective, the Governor-General should have accepted it at or before the expiration of the specified period of notice and is now bound to accept it. The primary contention proceeds upon the proposition that sub-s. (1) of s. 17 secures to an officer the right to terminate his service, except during time of war, by giving three months' notice and that is immaterial whether his resignation be accepted or not. Consequently, upon the expiration of the requisite period of notice, it is said, his obligation to serve is automatically terminated. In my view this proposition finds no support in the language of the section. What the section provides is that "except during time of war an officer may by writing under his hand tender the resignation of his commission at any time by giving three months' notice". But neither expressly nor by implication does it provide that an officer may, unilaterally, terminate his obligation to serve. The expression "may tender the resignation of his commission" does not convey any such meaning; its plain meaning is that the resignation of an officer may be tendered for consideration when, according to the exigencies of the service, it may be accepted or rejected. Nor do I think that the concluding words of the section - "by giving three months' notice" - provide any safe ground for departing from this meaning. Their presence may be said to create some difficulty in the construction of the section, but I can see no justification for the view that they operate to transform the plain meaning of the substance of the section. The argument to the contrary is that there was no need for the specification of a period of notice, unless it was intended that the tender of a resignation giving the prescribed period of notice should be effective to terminate an officer's service as from the expiration of that period. But I do not assent to this proposition. Undoubtedly the section does prescribe a period of notice which must be given if an officer wishes to resign his commission. But this goes only to the form of resignation which he may tender and not to the effect of the tender. To my mind the requirement that three months' notice must be given appears as a provision intended, merely, to minimize problems of administration and not as one intended to have the effect for which the plaintiff contends. Further, I should add, that having regard to the earlier law on the subject and for the reasons already adverted to by Kitto J., if it had been intended to give to an officer a right, unilaterally, to terminate his obligation to serve, it is only reasonable to assume that it would have been given explicitly and unequivocally.

[19]

I am in no doubt that, in the absence of statutory authority so to do, an officer of the Queen cannot resign his commission without Her Majesty's permission. I do not find it necessary to go beyond Hearson v. Churchill [1] for persuasive authority for this self-commending proposition. There Lord Esher M.R. said: "I wish to say that, though we cannot bind any other Court by a decision, as the matter is not before us, that I myself am strongly of opinion that an officer who has accepted a commission in Her Majesty's navy cannot, under any circumstances whatever, resign without the consent of Her Majesty the Queen" [2] . Fry L.J. said that the inclination of his opinion was in the same direction as that of the Master of the Rolls [3] . Lopes L.J. said: "It appears to me, looking at the provisions of the Naval Discipline Act, 1866, that under no circumstances is a naval officer entitled to resign his commission except by permission of Her Majesty" [2] . This was said after a reference to Reg. v. Cuming [4] , as to which his Lordship said: "I adopt what was said in Reg. v. Cuming [4] , with this qualification, that I carry the principle further than that case seems to do" [2] . Mr. Lush, for the plaintiff, by reference to an article in the George Washington Law Review, vol. 31, p. 431, by Prof. Avins indicated that an attempt had been made to extract from what was said by A. L. Smith J. in Reg. v. Cuming [4] a proposition to the effect that an officer's obligation goes no further than to bind him to serve for a reasonable time and upon reasonable terms leaving him free to surrender his commission upon due notice to the proper quarter. I do not think any authority for such a proposition is to be found in Reg. v. Cuming [4] . It is true that A. L. Smith J., in speaking for the Court, did use such terms but he used them to describe an argument which he rejected. The actual decision was expressed as follows: "But we are clearly of opinion that, where a commissioned officer accepts an appointment to serve in one of Her Majesty's ships in commission, and enters upon the performance of his duties, he subjects himself to the provisions of the Navy Discipline Act, and at his own will and pleasure cannot resign his appointment [5] ". It is on this basis that it is provided in The Queen's Regulations for the Army 1955 as follows: "S. 322 (a). An officer who applies for permission to retire or to resign his commission will remain on the strength of his regiment or corps until the day previous to the date of his retirement as published in the London Gazette. "

[33]

The form of the action at once raises questions. The Commonwealth is the defendant. But the relief sought is based upon the assertion of a legal duty to be performed by the Governor-General. Having regard to the provisions of the Act (s. 8) empowering the Governor-General to appoint officers and issue commissions to them, resignations of officers' commissions are no doubt matters for the Governor-General. And by definition in s. 4 the Governor-General here means the Governor-General acting with the advice of the Executive Council. Australian military law differs from that of the United Kingdom in an important aspect. The position of the Crown in relation to the Forces is in Australia dependent on statute and not on the prerogative. Doubtless the prerogative powers of the Crown in relation to military defence are constitutionally an attribute of the Crown in right of the Commonwealth, except in so far as they have been superseded by statute: but the Australian Military Regulations are made under the authority given by the Act (s. 124) and by the same procedures and subject to the same Parliamentary controls as are other statutory regulations. They are made by the Governor-General in Council, not by the Governor-General as Commander-in-Chief exercising a prerogative power on the advice only of a responsible minister. In the United Kingdom the Queen's Regulations are made under the royal prerogative of the command of the army, although recently, since 1955 especially, the area of regulation based on statutory authority has increased. Some aspects of the Crown's immunity from the control of the courts that were discussed by Scrutton L.J. and other members of the Court of Appeal in China Navigation Co. v. Attorney-General [1] are thus not, I think, applicable in Australia. Nevertheless the claim that the plaintiff makes in this action raises, it seems to me, constitutional questions of some nicety. These were referred to in argument; but they were not fully pursued. I do not think it necessary to enter upon them beyond saying that, as the Commonwealth can sue and be sued in the courts, the subjection of the Crown to the law can in appropriate cases be enforced in Australia by action against the Commonwealth, instead of by the procedure of petition of right formerly necessary in England. And the Court can, I do not doubt, restrain executive action that is contrary to law. But this does not, as I understand the law, mean that the Court can direct the manner of the exercise by the Governor-General of any discretion lawfully exercisable by him on the advice of the Executive Council; and the Court cannot dictate to ministers what advice they should give in such a case. I do not dispute that if the law imposes a duty upon the Crown to act in a particular manner, as distinct from arming it with a discretion so to act, the Court may declare the duty and compel its performance. And I agree with the remark recently made by Hale J. in the Supreme Court of Western Australia, when he said: "I am unable to follow the argument that to declare the true meaning of a statute is to interfere with a duty owed by a Minister to the Crown". But the plaintiff can have a declaration in this case only if in the events that have occurred he has become now entitled, as of legal right, to be released from the obligations of his office.

[34]

Before proceeding further, one matter mentioned in argument may be disposed of. It was said for the plaintiff that because the Act defines "officer" as meaning "an officer commissioned or in pay as an officer" and because s. 17 refers to an officer resigning his commission, the plaintiff could by resignation cease to be a commissioned officer but nevertheless continue after his resignation was effective to be subject to military law as an officer. I am not sure that I appreciated correctly the purpose of the argument. But its basis was mistaken. The definition of officer in the Act as it originally stood in 1903 stated that it "means any commissioned officer". It was altered in 1917. But the present form has a long ancestry and established effect. It is derived from the old Mutiny Acts in England which specified as the persons to which they were applicable persons "commissioned or in pay as officers or listed or in pay as soldiers". That form dates from the Mutiny Act of 1786. Before then the word "mustered" had been used in the place of "commissioned"; the alteration was made to make the half-pay officer subject to military law. Earlier still the words had been "mustered and in pay or listed and in pay". The word "or" was substituted for "and" to make all members of the army in actual pay subject to military law notwithstanding that, in the case of a soldier, his enlistment might have been irregular (Grant v. Gould [1] ; and see Ex parte Koutalianos; Re Rushton [2] ) or, in the case of an officer, that he might not have actually received a commission. The distinction between officers, who are appointed to an office and soldiers, who are enlisted into the ranks and have a military status but not an office was always fundamental: and, despite the use of the word "officer", non-commissioned officers were always soldiers: see Lloyd v. Wooddall [3] . Persons might be in pay as officers before being commissioned. For example, the "gentleman volunteer" of the eighteenth century, who served in anticipation of a vacancy, if in pay was an officer; and later officers whose appointments had been approved often waited a long time before their commissions issued when they had to be signed personally by the Sovereign, as was the rule until 1862 when Parliament relieved Queen Victoria of the task: see Simmons on Courts Martial, 7th ed. (1875) pp. 25-27; 25 Vict. c. 4 and Anson on the Constitution, 3rd ed. (1907) vol. II, p. 59. And in the present century officers appointed in war-time often did not receive commissions until long after appointment.

[40]

The legal concept embodied in the expression resignation of an office is founded upon the historic idea of offices, ecclesiastical, civil or military, held of the Crown or of a corporation, as a form of property. Beginning in the middle ages, this proprietary idea persisted into the nineteenth century; and it has left a legacy to the law and language of the present day. In mediaeval times and for long afterwards the grant of an office was made in much the same form as a grant of land. Blackstone put this plainly: "Offices, which are a right to exercise a public or private employment, and to take the fees and emoluments thereunto belonging, are also incorporeal hereditaments For a man may have an estate in them, either to him and his heirs, or for life, or for a term of years, or during pleasure only: save only that offices of public trust cannot be granted for a term of years, especially if they concern the administration of justice, for then they might perhaps vest in executors or administrators": Commentaries , vol. 2, p. 36. True, an office-holder must execute his office unless it were one that had become a mere place, a sinecure. If he failed to discharge the duties of the office the grant might be repealed by scire facias. But the duties could be performed by a deputy, unless the office were one, such as a judicial office, which the law required that the grantee serve personally: see Reynel's Case [1] . Those offices in which personal service was not required were, like other forms of property, assignable, although it is certainly true that "there is great obscurity in the books respecting the assignment of offices"; Cruise's Digest, vol. 3, p. 117. The notion of an office as a form of property in which a man can have an estate is foreign to present-day ideas. But it is, I think, the key to an understanding of the legal meanings of resigning an office and of holding an office at pleasure. Military offices were perhaps the longest survival of the old ideas, for, despite the attempt by William III to put it down, the system of purchase of appointments and promotions in the army lasted until 1871. It is not necessary to go into the complicated history of this. It is enough, for present purposes, to say that in 1809 the Act 49 Geo. III c. 26 extended the operation of an Act of 5 & 6 Ed. IV c. 16 making it unlawful to buy or sell offices, commissions, civil, naval or military, and places and employments under the Crown. But the Act made certain exceptions. One of these was in the proviso that it should not extend "to any purchases, sales or exchanges of any commissions in His Majesty's Forces for such prices as shall be regulated and fixed by any regulation to be made by His Majesty in that behalf". Pursuant to this, a regulation was made by royal warrant fixing the prices at which commissions for various ranks could be purchased. This was the legal foundation of the purchase system, which operated in the Guards, the cavalry and infantry of the line, but not in the artillery or engineers. The regulation prices were in fact unlawfully but openly exceeded by black market devices. In 1870 the Government resolved to end all this by Act of Parliament compensating the officers for the loss of their property in their saleable commissions. When the House of Lords failed to pass the Bill the Queen, advised by ministers, simply cancelled the royal warrant that had been issued pursuant to the Act of 1809. The exception to its provisions that that Act had permitted being thus at an end, the purchase system was at an end. The importance of this, for present purposes, is that the system had involved the resignation of his commission by the selling officer and thus helped to establish what that expression meant in military law. Before turning to that, however, it is as well to consider what in a more general sense resignation of an office involves.

[43]

A royal warrant of 1684 - quoted in the Report of the Royal Commissioners on the Purchase and Sale of Commissions in the Army (1867), Appendix I - speaks of any officer "who shall obtain leave from us to surrender his commission, command or employment". These words are significant. They are the earliest statement that I have come on of the necessity of a military officer obtaining the Sovereign's leave to surrender his commission. And they point to an important distinction between the surrender or resignation of an office held of the Crown and the surrender of an estate in land. The latter takes effect upon the execution of a deed of surrender by the surrenderor and without any formal acceptance or agreement by the surrenderee: assent is presumed unless dissent expressly appears. It was so held by the House of Lords in Thompson v. Leach [1] , reversing the decisions of the Common Pleas and King's Bench in the same case [2] . As stated in Salkeld's Reports : "A surrender immediately divests the estate out of the surrenderor, and vests it in the surrenderee; for this is a conveyance at common law, to the perfection of which no other act is requisite, but the bare grant; and though it be true that every grant is a contract, and there must be actus contra actum, or a mutual consent; yet that consent is implied" [1] . But for a resignation of an office to take effect it was necessary that the person under whom the office was held, King, bishop or corporation, should accept the resignation - that is assent to the surrender. The formalities for an effective surrender differed in the case of temporal offices according to whether the offices lay in grant, when a deed was needed, or was a corporation office filled by election, when an oral resignation would suffice if formally accepted: R. v. Rippon [2] . But however the resignation was made the office was not vacated until it was accepted. That this was always so in ecclesiastical law - where the word "resignation" was first used and whence it spread - may be seen from the materials collected under "resignation" in Jacob's Law Dictionary. And, although the resignation of ecclesiastical offices is a somewhat special topic, the observations, particularly of Cotton L.J., in Reichel v. Bishop of Oxford [3] emphasize the principle that the resignation of an office is not complete until acceptance. But, although at common law the resignation of an office must await acceptance, acceptance was, it seems, ordinarily given as of course. In the case of a sale of an assignable office that was so, because the way in which the sale was effected was for the seller to resign the office with a view to the buyer being admitted to it. (The case of Re Richardson; Ex parte Butler [4] is a remarkable illustration of the course adopted when a bankrupt's office as under-marshal of the City of London was sold for the benefit of his creditors.) And in general I think it may be said that in early times resignation of an office under the Crown could be made by deed of surrender and that acceptance although required was a formality. But the subject, so far as I have been able to examine the early cases, seems somewhat obscure. Whatever was the position in former times the rule that resignation of any office only takes effect upon acceptance and that there cannot be a unilateral resignation has in modern times become attenuated. Moreover the word "resignation" is no longer used only for the surrender of an office. It has come to be used for a withdrawal from contractual relationship, such as employment as a servant, or from membership of a club or other voluntary society. A resignation has thus come to be thought of, and spoken of, as a unilateral transaction. For example Lindley L.J., speaking of a resignation by a member of a voluntary association, said: "The other members have no power to say that he shall not retire, and there is no law that a resignation which cannot be refused must be accepted before it can take effect": Finch v. Oake [1] ; and see Maitlands' Case [2] . In cases of that sort, expressions such as the tendering and the acceptance of a resignation, although commonly used, are merely linguistic courtesies. I take, merely as examples of this use of the word "resignation", some miscellaneous statutory provisions.

[47]

In the statute book of the Commonwealth Parliament there is a surprising diversity of phraseology. I take a few examples, as contrasts with s. 17 (1). A member of the Australian Broadcasting Control Board, appointed by the Governor-General, "shall be deemed to have vacated his office if he resigns his office by writing addressed to the Governor-General and the resignation is accepted by the Governor-General": Broadcasting Act 1942-1950, s. 6G (2). The same form of words is used in other Acts, e.g. the Shipping Act 1949, s. 11 (1) and the Overseas Telecommunications Act 1946, s. 15 (1). A slightly different form, but presumbly having the same effect, is used in the Snowy Mountains Hydro-electric Power Act 1949, s. 13: there the office of a Commissioner or Associate-Commissioner, who are appointees of the Governor-General, "shall be vacated if he resigns his office by writing under his hand addressed to the Governor-General and the resignation has been accepted". In the Stevedoring Industry Act 1956 the words are "and his resignation is accepted and the Governor-General declares by notice in the Gazette that the office has become vacant". A similar form is used in the Conciliation and Arbitration Act, s. 15. The Australian Coastal Shipping Commission Act 1956 is different again: there nothing is said about acceptance: but by s. 13 (1), "If a Commissioner resigns his office by writing under his hand addressed to the Governor-General, the Governor-General shall, by notice in the Gazette, declare that the office of the Commissioner is vacant, and thereupon the office shall be deemed to be vacant". The provision as to members of the Courts-Martial Appeals Tribunal, who are appointed by the Governor-General by commission, is: "A member may resign his office by writing under his hand addressed to the Governor-General, but the resignation is not effective unless and until it has been accepted by the Governor-General": Court-Martial Appeals Act 1955, ss. 7 (2) and 12 (2). Still another variant exists - in the case of an appointment not made by the Governor-General: the Wheat Industry Stabilization Act 1948, s. 7 (2) states that members of the Wheat Board "shall be appointed by the Minister and shall hold office during his pleasure"; and by s. 8 (2) "a member of the Board may resign from office by notice of resignation given to the Minister". There are also places to which persons are appointed by the Governor-General pursuant to statute without any provision for resignation, for instance membership of the Boards created by the various Export Control Acts. There seems to be nothing about resignation from the Egg Board in the statute. But in the case of the Dairy Produce Board and others, although no method for resigning is prescribed, resignation is contemplated, as the Acts speak of filling vacancies in the Boards caused by death, resignation or removal from office.

[51]

An officer in the army gets his office by first appointment or by promotion to higher rank. He accepts a commission. He is not obliged to do so. His office is not in my opinion like one of the ancient compulsory offices for which a man was chosen for a term and which, when chosen, he must take up and serve for his term - a high sheriff in England, once pricked, has such an office; and so in former times had a petty constable and other parish officers. In regard to the sheriff the rule was explained in 1694 as founded upon an ancient common law principle that the King has a right to the service of any of his subjects in any station or capacity he chooses: R. v. Larwood [4] and see the Duke of Queensberry's Case [5] , per Lord Trevor [6] and R. v. Clarke [7] . In Chitty's Prerogatives of the Crown (1820), p. 18 it is said "The King has an interest in all his subjects; and is so far entitled to their services that in case of sudden invasion or formidable insurrection his Majesty may legally demand and enforce their personal assistance, though he can on no occasion compel them to leave the country for warlike or other purposes. His Majesty may also, on any occasion, employ, and compel his subjects to serve in such offices or functions as the public good and the nature of the constitution require". But I am unable to agree that this principle, which was relied upon in the argument for the Commonwealth, exists to-day in the unqualified terms asserted. It is I believe now obsolete. I think that the Government cannot now without the authority of Parliament, lawfully call up subjects, either individually or by conscription, and compel their service in any capacity it chooses. To-day when military service is compelled, whether in peace or war, this is done pursuant to statute, not by the exercise of what Lord Radcliffe very recently referred to as "the rusty weapons of the war prerogative". They were rusty in 1914. They have now been replaced by statute: see Burmah Oil Co. Ltd. v. Lord Advocate [1] . And the statutory obligations of military service arising from conscription in time of war and, on occasions, from compulsory service in peace-time are to serve in the ranks. As far as I am aware, no one is compellable in time of peace to accept an appointment as a military officer. Indeed I doubt whether even in time of war a man can be compelled to take upon himself the status and duties of an officer, except possibly when required to exercise special qualifications as, for example, as a medical officer. I reject, therefore, the contention that an officer in the Australian Military Forces is to be considered as if he had been appointed to a compulsory office. Section 17 (1) of the Act is I consider to be read as applying to a person who has voluntarily accepted an office.

[53]

What is now s. 17 (1) was in the Defence Act as enacted in 1903. It then formed the whole of s. 17. The other two sub-sections were added later by amendment. In my view, although it is legitimate to notice them in considering the meaning of s. 17, they do not alter its meaning. The meaning that it had in 1903 determines its operation now. At that time the naval and military Forces in the several States, which had existed before Federation, were being welded together by Sir Edward Hutton as the Naval and Military Forces of the Commonwealth. The Defence Act brought them all on to a common legal basis and provided the legal foundation for their command and administration under Commonwealth law. Section 10 of the Act provided that officers holding office at the commencement of the Act should continue to hold office as if appointed under the Act. The following sections, including s. 17, then prescribed the conditions under which all officers should thereafter hold their appointments. These conditions were in some respects more stringent than those which had governed some members of the existing Forces under the State Acts. Section 34 therefore provided that any member of the Forces existing at the date of the Act - and by definition "member" here included officers - might retire within three months of the Act coming into operation on giving fourteen days' notice in writing of his intention to do so. If he did not elect to retire then, he could only retire voluntarily thereafter by resignation pursuant to s. 17 if an officer, or, if a soldier, by discharge in accordance with the Act. In considering s. 17 it is to be remembered that it is of general application throughout the Australian Military Forces as a whole. It applies to all officers of the Regular Army, called in the Act the Permanent Military Forces, and of the Citizen Military Forces, both Active and Reserve. Any right or liberty of resignation that it gives, and whatever restrictions there are upon the capacity of an officer to resign, that right or liberty and those restrictions apply equally to them all. At the time of its enactment in 1903 the Australian Military Forces consisted, in point of numbers, mainly of militia and volunteers whose engagements were for home defence only. They vastly outnumbered the Permanent Forces. The structure of the Australian Army and the international position and obligations of the Australian nation have greatly altered since 1903 - and so has the character of warfare. Times of peace are not now so clearly distinct from times of war. It was urged by the Solicitor-General that if the Act were construed as the plaintiff suggested it would, as he put it, "produce consequences dangerous to the community" in that "the Executive Government would be without authority to retain in the armed forces, in conditions of any emergency which fell short of actual war, a sufficient nucleus of officers to ensure efficient leadership and to avoid disintegration". That such considerations may be admissible aids in determining the meaning of the Act, I do not deny. But it may be that they do no more than show that when it was made, sixty years ago, conditions were very different from those of more recent years. We cannot decide what was then, and is now, its legal effect by homiletic or wishful reasoning. Moreover, those consequences of the interpretation which the argument for the Crown condemned might be matched by other consequences no less serious flowing from the contention that it espoused. Duty and Discipline do not march well with Discontent. The getting of officers for the service is not likely to be aided by uncertainties as to their right to retire: and men might be the less ready to serve as officers in time of war if their release when war ended was unsure.

[54]

I turn now from general considerations concerning the meaning of the word resignation and the manner in which offices in general may be resigned to the common law and military practice which last century - that is before 1903 - gave a more specific meaning to the resignation of military commissions. Textbook writers and judges, in statements on this topic, then mostly adduced as their ultimate authority some remarks of Lord Mansfield in 1769 in two cases, Parker v. Lord Clive [1] and Vertue v. Lord Clive [2] , arising out of events in India during Lord Clive's second administration. What was said in those cases as to the position of military officers of the East India Company has been taken as applicable likewise to naval and military officers in the service of the Crown as the Company's officers' contractual service was regarded as on terms analogous to service under the Crown. The commissions of the Company's officers were recognized by the Crown and the officers and soldiers of the Company's Forces were subject to the Indian Mutiny Act of 1754, 27 Geo. II c. 9 and later similar Acts. Malins V.C., in In re Tufnell [3] , pointed out that in Gibson v. East India Company [4] "an officer of the Company was treated by the Court of Queen's Bench just like an officer in the Queen's service": and in Blachford v. Preston [5] . Lawrence J. in the matter there under discussion, an attempted sale of the command of a ship in the East India Company's service, saw no distinction "between offices held under the East India Company and those under Government"; and in the same case Lord Kenyon said that "the East India Company is a limb of the Government of the country" [6] . I am aware that the two lastmentioned cases were after the India Act of 1773. The cases against Lord Clive were earlier. Nevertheless I think, as others have done, that much of what was said in them is apposite to the position of military offices under the Crown notwithstanding Lord Esher's summary dismissal of them as irrelevant in Hearson v. Churchill [7] . But it is necessary to see on what principle they depend and what doctrine they establish; for some writers have given Lord Mansfield's words a much less qualified and far more dogmatic meaning than it seems to me they properly bear. As a result of statements in the works Military Forces of the Crown, 2 volumes, (1869) and Military and Martial Law (1872) by Charles Clode, it has often been said that they establish that "an officer has no right to resign". Mr. Clode, a lawyer, had an official position as solicitor and legal secretary at the War Office from 1858 to 1880: Wheeler, The War Office Past and Present (1914), p. 192. His books are a most valuable mine of interesting information, much of it not readily obtainable elsewhere. But it is, I think, a mistake to take all of his statements as if they were, in unqualified terms, authoritative pronouncements of law. Lord Mansfield did not say that an officer has no right to resign. What he said, in Parker's Case [1] , was that "a military officer in the service of the East India Company has not a right to resign his commission, at all times, and under any circumstances whatsoever, whenever he pleases" [2] . The qualifying words were meant to be significant because, quoting them seven months later in Vertue's Case [3] as expressing the opinion of the Court of King's Bench, his Lordship said "They (the court) very rightly guarded against laying down the absolute proposition. The right to resign must depend upon the particular circumstances of each particular case" [4] . The facts out of which those cases arose are set out in the reports and may be found more fully recounted in the Cambridge History of British India, vol. 5 (1929), p. 179. The two plaintiffs, Captain Parker and Lieutenant Vertue, were military officers in the service of the East India Company when Lord Clive was Commander-in-Chief. He had had instructions to reduce the amount of batta payable to officers. Batta was an allowance in the nature of a field allowance (I interpolate here to say that I was mistaken when I suggested in the course of the hearing that it had the same derivation as batman and bat-horse: actually it is, according to the Oxford Dictionary, a word of Indian or Indo-Portuguese origin). The reduction of the allowance was resented by the officers. Some two hundred of them mutinously sent in their resignations and forthwith abandoned their duties. Firm action was thereupon taken on Lord Clive's orders. Parker, Vertue and others were arrested, held in close arrest and afterwards tried by court martial. Parker was acquitted by the court martial "as they apprehended him to have a right to resign his commission and quit the service" [1] . Vertue, whose case was somewhat different, was convicted and "ignominiously broken" [2] , the sentence being confirmed by Lord Clive. Each sued Lord Clive in the King's Bench for damages for false imprisonment. The essential question in each case was whether, when ordered into arrest, the plaintiff was subject to military law. Parker's Case [3] came on first, before Lord Mansfield sitting at nisi prius. He non-suited the plaintiff, but with liberty to move to set the non-suit aside. In directing the non-suit he said that "military officers in the service of the East India Company were not at liberty to resign their commissions, and quit the service, at any time and under any circumstances, merely ad libitum, whenever they themselves should think fit or be so inclined" [1] . The question in the case turned, he said, upon "whether such an officer can quit the service whenever he pleases, at any time and under any circumstances whatever" [1] . He thought not: and on the motion to set aside the non-suit this opinion was upheld. Nevertheless the Court granted a new trial that the plaintiff might have an opportunity of showing the circumstances which induced his resignation, in order it seems to determine whether he could make out a justification for acting as he had done. The result of the new trial on this issue was against him.

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I may digress here to notice the controversy that occurred in England in 1804 - in the newspapers, in court and in Parliament - concerning the right of officers of volunteers to resign their commissions. It is of some indirect significance, because it is the only time in which statutory provisions for resignation of military offices came into question. The formation of numerous volunteer corps and the great surge of patriotic enthusiasm to enrol in them had been the nation's response to Napoleon's threat of invasion. But when the Grand Army marched away from Boulogne and the immediate threat declined, the enthusiasm and the strength of the volunteers declined. Many members sent in their resignations, regarding themselves as serving entirely voluntarily and governed by the rules peculiar to their own corps, as being in law in the same position as the members of any other voluntary society. The Government, on the other hand, wished to hold their services while the war lasted and considered them bound, under penalty, to attend drills. The Government view, which depended upon the effect of various statutes relating to the volunteer corps, particularly 43 Geo. III c. 66 and 43 Geo. III c. 121, was stated in an opinion of Spencer Perceval, then Attorney-General, which was published in the press. Its opponents found a champion in Erskine, then at the bar, himself commanding officer of the volunteer corps formed in the Temple and known as the "Devil's Own". The question came before the King's Bench on a motion to quash a conviction by magistrates by which a member of a volunteer cavalry corps, who had sent in his resignation, was fined for not attending a parade: R. v. Dowley [1] . The Court held that the conviction should be quashed as the man - he was not an officer - had effectually resigned. This was based mainly on a reference in 42 Geo. III c. 66 s. 4 to a member having "notified to his commanding officer his intention of discontinuing his service" followed by a reference to "such resignation". Lord Ellenborough said that, used in that way, the expression such resignation "clearly imports that the party had legally and effectually the power of making a resignation by his own act". The decision thus turned entirely on the special sense given to the word "resignation" in the statute. Lord Campbell, who himself remembered these events, gives an account of them in his Lives of the Chancellors, vol. 6, pp. 546-550; and see a footnote to the report of R. v. The Inhabitants of Witnesham [1] . The question was still lively when the Volunteer Regulation Bill, designed to consolidate earlier Acts and to improve the organization and efficiency of the volunteer forces, was before Parliament later in 1804. When it passed into law, as 44 Geo. III c. 54, it provided by ss. 30 and 31 that, except when called out in case of actual invasion or appearance of the enemy in force upon the coast, any person enrolled in any yeomanry or volunteer corps might "quit such corps" on giving fourteen days' notice in writing to his commanding officer of his intention to do so and delivering of the clothing, arms and accourtrements furnished to him. But a volunteer thus quitting became liable to serve in the militia or to find a substitute if balloted, and also to pay certain duties, including a duty upon wearing hair powder, from which he had been exempt while enrolled as a volunteer. Whether cheaper hair powder greatly encouraged men not to quit I do not know. The phrase "quit his corps" was that which Lord Mansfield had used in his judgments. In a later section of the Act (s. 33), the provision enabling a member to quit was referred to by the words "any person who may have given notice in writing of his intention to resign". And on a report from the law officers - which may be found in Clode , vol. 1, p. 592 - the Act was interpreted at the War Office as applying to officers equally with other ranks, and therefore as expressly enabling officers of volunteer corps to throw up their commissions without the previous consent of the King. The Act was the prototype of later Acts concerning auxiliary forces in England, and of Acts passed in the Australian Colonies before Federation having provisions for the retirement of members of their defence Forces. Their language varies. I have examined them; but I have not found any provision in the same terms as s. 17, and I do not think it necessary to refer to them further.

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Two nineteenth century decisions concerning purported resignations by naval officers were canvassed during the argument. They have generally been regarded as applicable to officers of the land forces as well as to naval officers. And for present purposes it is no doubt correct so to regard them, despite some historic distinctions still reflected in the Naval Discipline Act 1866 between the positions of officers of the two services. In Reg. v. Cuming; Ex parte Hall [1] , a Divisional Court of four judges (Lord Coleridge C.J., Mathew, Cave and A. L. Smith JJ.) heard an application for a habeas corpus. The prisoner, who had obtained a rule to show cause why the writ should not issue, was an officer borne on the books of one of Her Majesty's ships in commission. Being desirous of taking up civil employment ashore he twice sought (by letter and by cablegram) to resign his commission and retire from the navy during the currency of a cruise his ship was then making. His requests to do so were refused. Whereupon he left his ship at Simon's Bay and wrote to his captain sending his commission and claiming that he had retired. He then took his passage home in a mail steamer. On her arrival at Plymouth he was arrested with a view to being tried by court martial for desertion. In delivering the judgment of the Court to the effect that the officer had not ceased to be an officer or subject to the Naval Discipline Act, A. L. Smith J. said: "The question raised for our determination is one of great importance, viz. whether a commissioned officer in the Royal Navy who has accepted an appointment to serve on board one of Her Majesty's ships is entitled without permission from the Admiralty to resign his commission and to leave his ship. The Judge Advocate of the Fleet, who showed cause against the rule, contended that the officer's commission bound him to serve in the navy so long as he remained fit to perform his duty and the State required his services. On the other hand, it was contended for the applicant that the commission might be resigned at any time, like an ordinary mandate to one required to act as agent, and that the Crown had no right in time of peace to control the liberty of the subject, or insist upon the performance of duties from which the officer desired to escape. We are unable to agree with either contention. The cases of Parker v. Lord Clive [2] and Vertue v. Lord Clive [3] would seem to contain a complete condemnation of both propositions."

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I go back to the words of s. 17 (1). It is not clearly worded. A person reading it might well think, as apparently the plaintiff thought, that it gave an officer a right to be relieved of the duties and obligations of his office if he gave three months' notice that he wished to resign. And when the plaintiff received his appointment the Australian Army's official manuals had indicated that this was the accepted meaning: see the Manual of Military Law, 1941 (Australian Edition) p. 154; and the less explicit annotation to s. 17 of the Defence Act in Australian Military Regulations and Orders in the form that publication had before the edition of 1957. The section does not say that an officer may retire from the service and thus vacate his office by giving three months' notice of the resignation of his commission. Literally construed, the section apparently contemplates a notice in writing being given by the officer that he tenders his resignation as from a date three months after the date of the writing. So construed, it seems to me that it leaves the question of when his resignation can become effective to be governed by the established practices in the service and the common law existing in 1903. But it is not correct to say that so construed it does not alter the common law. At common law an officer could tender his resignation at any time. Section 17 alters this. An officer may be retired in time of war, either compulsorily because unfit or unsuitable, or at his own request on compassionate grounds or for some other reason; but he cannot tender his resignation. In peace-time he can, but only then by giving the three months' notice. This requirement of notice is obviously an administrative convenience. It ensures time for the transmitting of the tendered resignation through the proper channels to the Military Board, and for any necessary investigations of the officer's conduct or accounts before a recommendation is made to the Executive Council. But it does not otherwise add to or detract from the common law position, that an officer is at liberty to send in his resignation but that he cannot quit the service until his resignation is accepted.

[80]

The statement that an office under the Crown is held during pleasure derives from one form of the habendum of a grant by the Crown. As Blackstone said, in the passage I have earlier quoted, a man might have an estate in an office "either to him and his heirs, or for life, or for a term of years or during pleasure only". In the last-mentioned case the habendum of the grant or appointment was to the grantee "to have, hold and occupy the said office with its proper fees and emoluments during our pleasure" - " quamdiu nobis placuerit " or " durante bene placito ". A statement that an office voluntarily assumed is held for life, during good behavior, for a term of years, or during pleasure limits the term during which the office-holder may have it. It says nothing as to his capacity, liberty or right to relinquish it during that term. That was most emphatically asserted in Attorney-General v. Rowe [1] to which we were referred. The case concerned the domicile of a testator who at the date of his death was Chief Justice of Ceylon holding the office at pleasure. It was argued that he was precluded from relinquishing his appointment whenever he wished because his commission stated that he held it at the pleasure of the Crown. But Pollock C.B. said: "That is a perversion of its meaning. The Crown merely retains the power of terminating the appointment at any moment" [1] . And Wilde B. said: "It was said that, as the grant of the office was during the pleasure of the Crown, the testator could not by any act of his own, and in the exercise of his own discretion, divest himself of it. That was a mere proposition, wholly unsupported by any authority or analogy, and I see no reason for adopting it" [2] . It was suggested in the argument before us that the generality of these statements was in some way cut down by Pollock C.B. in the same case. "There is this difference", he said, "between a civil and a military officer; if the latter were to go away, he would be liable to be tried by a court martial, and punished; but in the case of a judge it would only be disrespectful not to tender his resignation and wait until his successor was appointed" [3] . That, however, only says, as Lord Mansfield had said a century before, that a military officer who quitted the service while subject to military law would be liable to court martial as a deserter; whereas a judge who left his duty without first effectively resigning his office would not be punishable. One other observation by Pollock C.B. in the same case is relevant. He said that "a person who accepts an office during the pleasure of the Crown is no more bound to retain it than a tenant at will is bound to remain at the will and pleasure of his landlord". That, if strictly understood, is scarcely a sound legal analogy. It is true that either party may at any time determine a tenancy at will of lands, even if it be expressed to be at the will and pleasure of the lessor only: Co. Litt. 559; Bastow v. Cox [4] . The tenant may determine the tenancy by simply abandoning the property. He cannot surrender, for he has no term to surrender. It is here that such a tenancy differs from an office held at the pleasure of the Crown. That was decided long ago in R. v. Kempe [5] , where Holt C.J. is reported as saying that "an estate at will in lands cannot be surrendered, because it is determinable by the will of either party; but such an office at will [scil. one held durante bene placito] is not properly at the will of both parties, but at the will of the King only; the party cannot determine his will, but by surrender; for if it be an office of trust, a mere forbearance to execute will be an offence, and finable; and surrender is the constant practice in such cases. So did the Chief Justices Hale and Scroggs [6] ".

[88]

In determining what is the meaning and effect of that section it is necessary to consider first what was the position at common law. According to Clode's Military Forces of the Crown, vol. 2, p. 96: "The obligation which a Commission lays upon the recipient is to serve the Sovereign for life, or until it is the pleasure of the Crown to relinquish the services of, or to dismiss the officer. It is clear that no Officer has the right to resign, and therefore, until his resignation is accepted by the Crown, he continues amenable to all the consequences of omitting to discharge the duty of an Officer under his Commission". To the same effect is a passage in Halsbury's Laws of England, 3rd ed., vol. 33, par. 1598, that "An officer has no right to resign his commission, but may apply for permission to do so". For the statement in Clode, the authorities cited are Parker v. Lord Clive [1] ; Vertue v. Lord Clive [2] and Attorney-General v. Rowe [3] . And, for the statement in Halsbury's Laws of England, the cases of Parker [1] and of Vertue [2] ; Reg. v. Cuming; Ex parte Hall [4] ; Hearson v. Churchill [5] and Ex parte Trenchard [6] are given as the authorities. The cases mentioned (with the exception of Reg. v. Cuming [4] and Hearson v. Churchill [5] in which the decisions turned in large measure upon the provisions of the Naval Discipline Act, 1866) do not seem to me to support the proposition for which they are cited and I will examine them in some detail. In Parker's Case [1] the plaintiff was an officer in the military service of the East India Company. He "threw up" his commission and quitted the service, whereupon Lord Clive, his Commander-in-Chief, caused him to be court-martialled and thereafter he brought an action for assault and false imprisonment. Lord Mansfield, before whom the case was tried, was of opinion that officers in the service of the Company were not at liberty to resign their commissions and quit the Company's service "at any time and under any circumstances, merely ad libitum, whenever they themselves should think fit or be so inclined" [7] . His Lordship considered, however, that the opinion of the Court of King's Bench should be taken upon that question. This was done and the opinion was given that "Upon the general abstract question, we are all of opinion "that a military officer in the service of the East India Company has not a right to resign his commission, at all times, and under any circumstances whatsoever, whenever he pleases" " [8] . Counsel for Parker then moved for a new trial "in order to have an opportunity of showing the particular circumstances under which Captain Parker stood, when he resigned his commission", those circumstances not having been investigated at the first trial. He argued that "as there may be circumstances under which such officer may have a right to resign; though under other circumstances, he may not have a right to do so; it was reasonable that he should have an opportunity of showing the true circumstances which induced this resignation" [1] . This submission was accepted and a new trial was ordered. From this it is apparent that the Court was of opinion that there could be circumstances in which an officer in the service of the East India Company had a right to resign his commission. The same view was expressed in the later case of Vertue v. Lord Clive [2] . The plaintiff there was also an officer in the military forces of the East India Company. The case turned, to quote the report, "upon the particular circumstances under which Captain Vertue stood, at the time when he resigned his commission" [2] . As in Parker's Case [3] the action was one for assault and false imprisonment. It appeared that the plaintiff, along with a number of other officers, had, on 7th May, offered his resignation to his Commanding Officer who had refused to accept it and ordered him to stay in camp. The plaintiff left his commission on the Commanding Officer's table, and on the following morning, went away from the camp. He was arrested, tried by court martial and "ignominously broken" [4] . Lord Mansfield left to the jury the question whether in all the circumstances the plaintiff had a right to "quit the camp, as being then out of his military capacity" [4] and a verdict was returned for the defendant. On a motion for a new trial, his Lordship related the facts at length. He pointed out that on 28th April the plaintiff's agent had received, on his behalf, one month's pay in advance and that on 7th May he had written a letter to his Commanding Officer owning himself a lieutenant, "consequently, he was so on the 8th in the morning". Lord Mansfield went on, "But the great ground is the combination amongst the officers, to throw up their commissions, in order to force the Company into allowing them the double batta . And the danger of such a combination and of all these officers quitting the service at once, is too obvious to be denied or doubted. There must, at the least, have been great danger of an insurrection amongst the Sepoys and common soldiers " [5] . Having regard to these circumstances there was, he thought, no ground for a new trial. Yates J., after referring to the "abstract opinion" given in Parker's Case [1] , said: "As to their being bound for life, by their contract - I freely declare my opinion "that they are not" - But though no particular period is fixed, and though they are not bound for life, it does not, however, follow "that they are at liberty to quit under all circumstances whatsoever" " [2] . He went on to refer to the facts and added: "This combination being a criminal act, it could not be a legal determination of the service" [2] . Aston J. agreed that the motion should be dismissed. He said: "And if everything else that he claims was to be admitted to him, yet there is no pretence to say that he could be at liberty to resign before the expiration of the month for which the agent had received his advanced pay. He had acknowledged himself to be a lieutenant upon the 6th, and also upon the 7th: and his letter imports his agreeing to continue so till the end of his month" [2] . Willes J. concurred. In Attorney-General v. Rowe [3] the question was whether Sir William Rowe, whose domicil of origin was in England, had at the date of his death acquired a domicil in Ceylon. In 1856 he had been appointed Chief Justice of Ceylon by letters patent issued by the Governor of Ceylon pursuant to a Royal Warrant addressed to the Governor. Under those letters the office was to be held during the pleasure of the Crown. It was contended for the defendant that the appointment bound the deceased to reside in Ceylon during Her Majesty's pleasure; that he could not vacate his office unless a tender of his resignation was accepted; and that he should therefore be regarded as having acquired a domicil in Ceylon. During argument Pollock C.B. said: "A Judge is under no obligation to hold the office any longer than he pleases" [4] ; and later "There is this difference between a civil and a military officer; if the latter were to go away, he would be liable to be tried by a court martial, and punished; but in the case of a Judge it would only be disrespectful not to tender his resignation and wait until his successor was appointed" [5] . In reply to an argument that under his commission Sir William Rowe had been obliged to reside in Ceylon for an indefinite time, Wilde B. said: "That assumes that he could not of his own will have resigned the office, and therefore he would hold it for life if the Crown did not think fit to relieve him" [6] , and the Chief Baron added: "A person who accepts an office during the pleasure of the Crown is no more bound to retain it than a tenant at will is bound to remain at the will and pleasure of his landlord" [1] . To a submission that "A military officer cannot resign his commission without the consent of the Crown" (1) and that the deceased by accepting the office "undertook to hold it during the pleasure of the Crown" [1] , he said: "That is a perversion of its meaning. The Crown merely retains the power of terminating the appointment at any moment" [1] . In his judgment, however, the Chief Baron rested his decision upon the "short point" that the domicil of origin was clear and that no intention to change it had been shown. Bramwell B. was of the same opinion. In the course of his judgment he doubted whether it was correct to say that Sir William could not have resigned his judicial office without the consent of the Crown, but thought it unnecessary to discuss the point. Wilde B. considered that the statement that the holder of the office of Chief Justice could not "by any act of his own, and in the exercise of his own discretion, divest himself of it" was "a mere proposition, wholly unsupported by any authority or analogy" and he saw "no reason for adopting it" [2] . If it was adopted, he said, "it might probably lead to a different conclusion" [3] . The tendency of these statements is against the proposition stated in Clode. In Reg. v. Cuming [4] a writ of habeas corpus was sought by one who was in detention pending his trial by court martial upon a charge, laid under the Naval Discipline Act, of absenting himself from one of Her Majesty's ships, upon the books of which his name was borne, with the intention of not returning. The applicant, a commissioned officer in the Royal Navy, by letter addressed to the Admiralty requested to be allowed to retire or resign his commission. The application was refused. He thereupon left his ship, informing his Captain that he had retired from the Service and handed him his Commission. A. L. Smith J., speaking for the Court, said that "The question raised for our determination is one of great importance, viz. whether a commissioned officer in the Royal Navy who has accepted an appointment to serve on board one of Her Majesty's ships is entitled without permission from the Admiralty to resign his commission and to leave his ship" [5] . His Lordship went on to refer to two competing contentions which had been put. One by the Judge Advocate of the Fleet "that the officer's commission bound him to serve in the Navy so long as he remained fit to perform his duty and the State required his services" [1] . The other, put forward on behalf of the applicant, "that the commission might be resigned at any time, like an ordinary mandate to one required to act as agent, and that the Crown had no right in time of peace to control the liberty of the subject, or insist upon the performance of duties from which the officer desired to escape" [2] . His Lordship said: "We are unable to agree with either contention. The cases of Parker v. Lord Clive [3] and Vertue v. Lord Clive [4] would seem to contain a complete condemnation of both propositions" [5] . After referring to ss. 19, 86 and 87 of the Naval Discipline Act he went on to say that the plaintiff "seems to us, at the time when he left his ship without any intention to return, to come clearly within these sections" [6] . Later he said: "But we are clearly of opinion that, where a commissioned officer accepts an appointment to serve in one of Her Majesty's ships in commission, and enters upon the performance of his duties, he subjects himself to the provisions of the Naval Discipline Act, and at his own will and pleasure cannot resign his appointment, and may be tried by court martial for any of the offences specified in the Act" [7] . Hearson v. Churchill [8] was a case which resembled Reg. v. Cuming [9] . The plaintiff, a commissioned Naval Officer whose name was borne on the books of a naval vessel in commission, asked the Admiralty to accept his resignation. His request was refused and he left his ship. Lord Esher M.R. referred to the cases of Parker [3] and Vertue [4] and said of them that they had nothing to do with the case before the Court "which depends not on service with a trading company, but upon the prerogative rights of the Sovereign of the United Kingdom", and with that statement I agree notwithstanding the remarks (which I have quoted earlier) made about those cases by A. L. Smith J. in Reg. v. Cuming [9] . Fry L.J. said: "Whether or no it is possible for an officer who has accepted a commission at any time to throw it up at his own will and pleasure, I do not undertake to say. I doubt whether it is so, but I am content to leave that question open, for it is clear to me that an officer who accepts a commission, receives an appointment under it, is in full service and in receipt of full pay cannot of his own will and pleasure resign his commission" [10] . Lopes L.J. adopted "what was said in Reg. v. Cuming [1] , with this qualification, that I carry the principle further than that case seems to do. It appears to me, looking at the provisions of the Naval Discipline Act, 1866, that under no circumstances is a naval officer entitled to resign his commission except by permission of Her Majesty" [2] . Lord Esher then said: "I wish to say that, though we cannot bind any other Court by a decision, as the matter is not before us, that I myself am strongly of opinion that an officer who has accepted a commission in Her Majesty's navy cannot, under any circumstances whatever, resign without the consent of Her Majesty" [2] ; and Fry L.J. added that, although he had reserved the point "as not requiring decision now, the inclination of my opinion is in the same direction" [3] . Ex parte Trenchard [4] need not be discussed. The only statement in it which can be said to be relevant to the present case is one made by Cockburn C.J. that "it is only by permission that an officer can sell out, and in time of war he cannot do so at all" [5] . The reference to "selling out" is of course explained by the fact that in 1870 the purchase system was still in force in the Army.

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(1769) 4 Burr. 2419 [98 E.R. 267]. 2. (1769) 4 Burr. 2472 [98 E.R. 296]. 3. (1862) 1 H. & C. 31 [158 E.R. 789]. 4. (1769) 4 Burr. 2419 [98 E.R. 267]. 5. (1769) 4 Burr. 2472 [98 E.R. 296]. 6. (1887) 19 Q.B.D. 13. 7. [1892] 2 Q.B. 144. 8. (1874) L.R. 9 Q.B. 406. 9. (1887) 19 Q.B.D. 13. 10. [1892] 2 Q.B. 144. 11. (1769) 4 Burr. 2419 [98 E.R. 267]. 12. (1769) 4 Burr., at p. 2419 [98 E.R., at p. 268]. 13. (1769) 4 Burr., at p. 2421 [98 E.R., at p. 269]. 14. (1769) 4 Burr., at p. 2422 [98 E.R., at p. 269]. 15. (1769) 4 Burr. 2472 [98 E.R. 296]. 16. (1769) 4 Burr. 2472 [98 E.R. 296]. 17. (1769) 4 Burr. 2419 [98 E.R. 267]. 18. (1769) 4 Burr., at p. 2475 [98 E.R., at p. 298]. 19. (1769) 4 Burr., at p. 2475 [98 E.R., at p. 298]. 20. (1769) 4 Burr., at pp. 2475, 2476 [98 E.R., at p. 298]. 21. (1769) 4 Burr., 2419 [98 E.R. 267]. 22. (1769) 4 Burr., at p. 2476 [98 E.R., at p. 298]. 23. (1769) 4 Burr., at p. 2476 [98 E.R., at p. 298]. 24. (1769) 4 Burr., at p. 2476 [98 E.R., at p. 298]. 25. (1862) 1 H. & C. 31 [158 E.R. 789]. 26. (1862) 1 H. & C., at p. 38 [158 E.R., at p. 792]. 27. (1862) 1 H. & C., at pp. 38, 39 [158 E.R., at p. 792]. 28. (1862) 1 H. & C., at p. 40 [158 E.R., at p. 793]. 29. (1862) 1 H. & C., at p. 40 [158 E.R., at p. 793]. 30. (1862) 1 H. & C., at p. 40 [158 E.R., at p. 793]. 31. (1862) 1 H. & C., at p. 40 [158 E.R., at p. 793]. 32. (1862) 1 H. & C., at pp. 47, 48 [158 E.R., at p. 796]. 33. (1862) 1 H. & C., at p. 48 [158 E.R., at p. 796]. 34. (1887) 19 Q.B.D. 13. 35. (1887) 19 Q.B.D., at p. 15. 36. (1887) 19 Q.B.D., at p. 15. 37. (1887) 19 Q.B.D., at pp. 15, 16. 38. (1769) 4 Burr. 2419 [98 E.R. 267]. 39. (1769) 4 Burr. 2472 [98 E.R. 296]. 40. (1887) 19 Q.B.D., at p. 16. 41. (1887) 19 Q.B.D., at p. 17. 42. (1887) 19 Q.B.D., at p. 19. 43. [1892] 2 Q.B. 144. 44. (1887) 19 Q.B.D. 13. 45. (1769) 4 Burr. 2419 [98 E.R. 267]. 46. (1769) 4 Burr. 2472 [98 E.R. 296]. 47. (1887) 19 Q.B.D. 13. 48. [1892] 2 Q.B., at p. 150. 49. (1887) 19 Q.B.D. 13. 50. [1892] 2 Q.B., at p. 151. 51. [1892] 2 Q.B., at p. 151. 52. [1892] 2 Q.B., at pp. 151, 152. 53. (1874) L.R. 9 Q.B. 406. 54. (1874) L.R. 9 Q.B., at p. 408.

[92]

It is against this background that the Defence Act, and in particular s. 17 (1), is to be construed. Section 13 provides that no appointment or promotion of an officer shall create a civil contract between the King or the Commonwealth and the person appointed or promoted, and, by s. 16, officers hold their appointments during the pleasure of the Governor-General. These provisions are declaratory of the common law. Section 17 (1) appeared as s. 17 of the original Defence Act of 1903 and it may be compared with s. 34 of that Act which was repealed in 1934 when no doubt its operation had been exhausted. It provided that "the Naval and Military Forces existing at the commencement of this Act shall be deemed to have been raised under this Act, and the members thereof, without any re-appointment, re-enlistment, or the taking of any fresh oath, shall be subject to this Act; but any member thereof (other than a member of the Permanent Forces) may, within three months after the commencement of this Act, retire therefrom on giving fourteen days' notice in writing of his intention to do so". This provision was designed to deal with the position of members of the Forces raised and maintained by the States before Federation under the various State Acts and the Act of the Federal Council of Australasia which are set out in the First Schedule to the Defence Act and which, by s. 6, were declared to be inapplicable to the Naval and Military Forces of the Commonwealth to be raised and maintained under the Commonwealth Act. Section 17 may also be compared with s. 13 of the Naval Defence Act of 1910 which was in these terms: "(1) Except in time of war, an officer may by writing under his hand resign his commission at the expiration of any time not being less than three months from the date of the receipt of the resignation. (2) The resignation shall not have effect until it has been accepted by the Governor-General. (3) For special reasons the Governor-General may accept any resignation at any time after the receipt thereof."

[93]

It will be noticed that while s. 17 of the Defence Act speaks of the "tender" by an officer of his resignation, s. 34 uses the words "may retire" and under s. 13 of the Naval Defence Act an officer may "resign his commission". It seems plain enough that in the case of a member of the Forces of a State who was, so to speak, compulsorily taken over by the Commonwealth on the passing of the Defence Act, s. 34 was intended to enable him by his own unilateral act to put an end to his obligation to serve. By giving the requisite notice within the time limited he could "retire" from the Forces whether the Crown was willing or unwilling that he should do so. And, in the case of a Naval Officer serving under the Naval Defence Act, it might well have been considered that, had it not been for sub-s. (2) of s. 13 of that Act, his resignation of his commission under sub-s. (1) would have operated in the same way, since the use of the words "resign" and "resignation" suggests that the person resigning could, by his own act, terminate his appointment (R. v. Dowley [1] ). But the phrase "may tender his resignation" in s. 17 of the Defence Act points in the other direction and suggests that the tender of his resignation by an officer is inoperative to terminate his obligation to serve and that an acceptance by the Governor-General of that tender or offer is necessary if an appointment is to be effectively terminated. Having regard to the background of the common law on the subject and comparing the language used in s. 17 with that used in s. 34 and in s. 13 of the Naval Defence Act, I am of opinion that the tender by the plaintiff of his resignation did not operate to terminate his services nor was the Governor-General bound to accept it. Section 17 does no more, in my opinion, than lay down, as a matter of administrative policy, the length of notice that is to be given by an officer of his desire to resign his commission. Had the Parliament intended that the section should confer on the holder of a commission from the Crown the legal right to terminate his services by giving three months' notice, I would have expected that intention to have been expressed in clear and unmistakable terms. It is not so expressed and in my opinion the demurrer should be upheld.

At a glance

Court

Decision date

Before

Source

Judgment (93 paragraphs)

Parties