REASONS FOR JUDGMENT
1 Overseas operational service in the Australian Defence Force can entail hazards and stresses of kinds that are utterly beyond the experience of civilian life in Australia. This case has its ultimate origin in such service, more particularly in operational service performed between July and October 2006 in the Middle East Area of Operations (MEAO), principally in Iraq, by the Applicant, Corporal T L Millar (CPL Millar), an enlisted member of the Australian Army, in the course of the Australian Defence Force operation known as OPERATION CATALYST 2. The more immediate origin of the case lies in a value judgement later made by a senior officer of the Australian Army, a Brigadier, following that service, to confirm a decision taken by a more junior officer, a Major, to discharge CPL Millar from the Army because of satisfaction that she was not suited to be an enlisted member of the Army.
2 The following is a chronology of the relevant, formal decisions. On 4 April 2008 CPL Millar sought the referral to the Chief of Army, pursuant to reg 76 of the Defence Regulations 1952 (Cth) (the Defence Regulations) made under the Defence Act 1903 (Cth), of a complaint she had made on 11 September 2007 to the commanding officer of her unit, 10 Force Support Battalion (10 FSB), pursuant to reg 75 of the Defence Regulations, seeking redress in respect of a grievance with a decision taken on 4 August 2007 by a delegate of the Chief of Army within the Soldier Career Management Agency (SCMA) to discharge her from the Australian Army pursuant to reg 87(1)(e) and reg 87(4) of the Defence (Personnel) Regulations 2002 (Cth).
3 Upon such a referral, reg 77 of the Defence Regulations charged the Chief of Army with the investigation without delay of the referred complaint and the notification of the results of that investigation to CPL Millar, again without delay. Following its investigation, CPL Millar's complaint came before the first respondent, Brigadier M D Bornholt, AM (BRIG Bornholt), Director General, Army Operations and a delegate of the Chief of Army for the purposes of reg 77 of the Defence Regulations. BRIG Bornholt determined on 6 February 2009 that the complaint by which she sought redress of her grievance should not be upheld and notified her accordingly. BRIG Bornholt also directed SCMA to proceed with discharge action as soon as administratively possible. As a result, the Second Respondent, Major M Wilkinson (MAJ Wilkinson), a delegate of the Chief of Army within SCMA, came to fix 6 March 2009 as the date for CPL Millar's discharge.
4 The material parts of the regulations just mentioned should now be set out:
From the Defence Regulations:
75 Making of complaint
(1) Subject to this Part, where a member considers that he or she has a grievance concerning any matter relating to his or her service, the member may make a complaint to his or her commanding officer.
(2) A complaint shall be in writing.
76 Referral of complaint
(1) …, if a member is not satisfied with the decision of a commanding officer on a complaint, the member may refer the complaint:
…
(b) in the case of a member of the Army - to the Chief of Army; …
77 Investigating and reporting outcome of complaint
An officer to whom a complaint is made under subregulation 75 (1) or referred under regulation 76, must:
(a) investigate the complaint without delay or cause it to be investigated without delay; and
(b) notify the member of the results of the investigation without delay.
From the Defence (Personnel) Regulations:
87 Termination of service of enlisted member for other reasons
(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:
…
(e) the Chief of the enlisted member's Service is satisfied that the enlisted member is not suited to be an enlisted member of 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 operation of the decision to discharge CPL Millar on 6 March 2009 has been stayed pending the determination of her application for the review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) of the decisions made by BRIG Bornholt and MAJ Wilkinson. MAJ Wilkinson's decision is but a sequel to that of BRIG Bornholt. It gives it administrative effect. Though that has the result that MAJ Wilkinson is a necessary party, the fate of CPL Millar's challenge to the decision taken by BRIG Bornholt will determine the fate of her challenge to MAJ Wilkinson's decision.
6 It will later be necessary to elaborate further on the administrative law error grounds which CPL Millar presses. For the present it is enough to note that there are two essential elements to the challenge which she now makes to BRIG Bornholt's decision. The first is said to be a denial of procedural fairness constituted by a failure to afford her an opportunity to be heard on various subjects; the second is that the decision was unreasonable. It is necessary to appreciate that CPL Millar has not sought the judicial review of the anterior decision to terminate her service as a member of the Army but rather of the later decision in respect of her referred redress of grievance complaint.
7 An understanding of the nature and origins of the power exercised by BRIG Bornholt is an essential prerequisite to determining whether there is any substance in the grounds of review.
8 At one stage it was submitted on behalf of the respondent Commonwealth military officers, seemingly on instructions given to their solicitor by the Defence Department, that BRIG Bornholt's power on investigating the complaint was limited to making recommendations to the officer (another delegate of the Chief of Army holding the rank of Major) who had determined to discharge CPL Millar from the Army or to MAJ Wilkinson. Even when pressed further in the course of oral argument, there was, in the end, no clear view expressed on behalf of the Commonwealth as to the nature of the power. In fairness, I should add that it is not evident from the detailed reasons for his decision which BRIG Bornholt furnished to CPL Millar, of which more later, that he shared either a limited conception of, or uncertainty in relation to, the power entrusted to him by the Chief of Army by delegation.
9 As to the notion of BRIG Bornholt's power being limited to the making of a recommendation to MAJ Wilkinson (or any other officer holding a delegation to terminate service for that matter), each officer, it is true, was a delegate of the Chief of Army, but the powers they were respectively exercising were different and separate, although not unrelated. The impressionistic incongruity, evident from the Army's rank structure (q.v. reg 4 and Sch 1 to the Defence (Personnel) Regulations), in the notion that a Brigadier would ever make a recommendation to a Major gives one pause for thought about the Commonwealth's submission. On further examination, that impressionistic incongruity is but a reflection of the plenary nature of the power exercisable on the merits by the Chief of Army or an officer to whom the chief of Army may permissibly delegate that power in relation to a referred complaint in respect of a redress of grievance.
10 Like the power to terminate the service of an officer or an enlisted member, the power exercisable in respect of a referred redress of grievance complaint is in modern form statutory and found in the Defence Regulations but, to borrow language employed by Sir Own Dixon in describing the former in Commonwealth v Welsh (1947) 74 CLR 245 at 268, it is no new subject. Though, for the purposes of the present case (Part XV was further amended on 1 May 2008 by the Defence Force Amendment Regulations 2008 (No 1), SLI 68 of 2008 in ways not presently material), they find contemporary expression in reg 75, 76 and 77 within Part XV of the Defence Regulations, when CPL Millar made a complaint to her commanding officer seeking redress of a grievance and then sought the subsequent referral of that complaint to the professional head of the Australian Army she was invoking rights the origins of which are ancient and deeply rooted in our constitutional heritage.
11 As will be seen, it is also no coincidence that the Governor-General in Council by (at the time) reg 81(1)(b) of the Defence Regulations, prescribed Brigadier to be the minimum rank to be held by an officer to whom the Chief of Army may delegate the power to determine a referred redress of grievance complaint.
12 Knowledge of legal history, of the relationship between the Sovereign, the Parliament and the Armed Forces, of the rank structure and chain of command within the Army and of the responsibilities in respect of subordinates assumed by those who hold the Queen's commission in the Defence Force is essential to an appreciation of the nature of the power exercisable on the referral of a complaint seeking a redress of grievance; all the more so because the language of reg 77 is compressed. That regulation assumes that its reader will either have that knowledge or at least make an effort to obtain it.
13 In Australian military law, the predecessor of reg 75, 76 and 77 of the Defence Regulations is to be found in the former reg 194 of the Australian Military Regulations 1927 (AMR - numbered as Order 289 in the Australian Military Regulations and Orders and Orders - AMR&O). At the time, the scheme of the Defence Act, as found in the former s 55, was that, while on active service, members of the Australian Army were subject to the Army Act 1881 (UK) (Army Act 1881) insofar as that Act was not inconsistent with the Defence Act or not modified or adapted by subordinate legislation.
14 The Army Act 1881 by s 42 and s 43 made the following provision for "redress of wrongs" by officers and soldiers (i.e. other ranks) respectively:
Redress of Wrongs
42. If an officer thinks himself wronged by his commanding officer, and on due application made to him does not receive the redress to which he may consider himself entitled, he may complain to the Army Council in order to obtain justice, who are hereby required to examine into such complaint, and (if so required by the officer) through a Secretary of State make their report to His Majesty in order to receive the directions of His Majesty thereon.
43. If any soldier thinks himself wronged in any matter by an officer other than his captain, or by any soldier, he may complain thereof to his captain, and if he think himself wronged by his captain, either in respect of his complaint not being redressed or in respect of any other matter, he may complain thereof to his commanding officer, and if he thinks himself wronged by his commanding officer, either in respect of his complaint not being redressed or in respect of any other matter, he may complain thereof to such officer, being either a general officer or Brigadier or an air officer as may be prescribed or, in the case of a soldier serving in India, to such officer as the Commander-in-Chief of the Forces in India with the approval of the Governor General of India in Council may appoint; and every officer to whom a complaint is made in pursuance of this section shall cause such complaint to be inquired into, and shall, if on inquiry he is satisfied of the justice of the complaint so made, take such steps as may be necessary for giving full redress to the complainant in respect of the matter complained of.
These provisions were omitted from the Army Act in its application to the Australian Army by the former reg 9(2A) of the AMR (Order 13(2A), AMR&O). Instead, to suit local circumstances both in peace and in war, the former reg 194 (AMR&O 289) made analogous provision thus (as extracted from the last consolidation of the AMR&O in the since superseded Army Law Manual):
Redress of Wrong - Reg 194 (Order 289)
289 (R 194)
(1) If a member thinks himself wronged, he may complain in succession, to:
(a) his commanding officer;
(b) his formation commander;
(c) any superior formation commander; and
(d) the Chief of the General Staff.
(2) * * * (omitted) * * *
(3) Each authority mentioned in sub-regulation (1) to whom complaint is made shall, so far as practicable and so far as not already done, cause the complaint to be investigated, and, if it appears to the authority that the member has suffered a wrong, shall cause the wrong to be fully redressed, if full redress is within the power of the authority, or if investigation or full redress is not within the power of the authority, shall refer the complaint to the next superior authority, in order that it may be investigated and redressed as fully as possible.
(4) If an officer is dissatisfied with the decision of the Chief of the General Staff he may require that his complaint be referred to the Governor-General in Council.
(5) No authority to whom a complaint is made or referred under this regulation shall attempt to prevent or dissuade any member from carrying his complaint to a superior authority in accordance with this regulation.
15 Order 298A of the AMR&O required that a member be given, in language intelligible to that member, written reasons for the rejection of an application for redress, save in those circumstances where security or other compelling reasons dictated otherwise.
16 Regard to the preamble to the Army Act 1881 informs one that its purpose was to consolidate the Army Discipline and Regulation Act 1879 (UK) and subsequent Acts which had amended that Act. The Army Discipline and Regulation Act 1879 in turn replaced annual Mutiny Acts of the British and before then English Parliaments for the governance of discipline within the Army which may be traced back to the original Mutiny Act 1689 (Eng).
17 The circumstances prevailing at the time of the passage of the Mutiny Act 1689 were singular. The "Glorious Revolution" had just occurred. King James II of England (King James VII of Scotland) had fled his kingdoms but was actively plotting his return with the assistance of the French. Parliament had adjudged that he had abdicated the Throne and offered it jointly to his elder daughter, Princess Mary and her husband, Prince William of Orange. The Army had been purged of supporters of the former King. It was necessary to provide for its governance. In his authoritative work, "The Military Forces of the Crown" (1869), Mr C M Clode, Barrister at law and legal advisor at the War Office, offers (at pp 84-85) the following account of what transpired and its enduring relevance:
4. It was under these circumstances that the Statesman of that period had to consider the course they should adopt in regard to a Standing Army. To disband it altogether was impossible, for the late King was seeking aid from France to recover his lost throne, and war of some kind was inevitable. The people had experienced the evil of two systems, - of an Army of Plebeians exclusively under the Parliament, and of an Army of Cavaliers exclusively under the Crown; and therefore the problem which presented itself was, - how, without risking a divided allegiance, the Army could be placed equably between the Crown and Parliament, that the interest of the one should not so prevail as to disturb the influence of the other.
5. Now this object was to be attained - not by destroying, but by strengthening the existing departments or powers of the Crown, and, at the same time, by adding to the legitimate functions of Parliament. These ends were brought about, so far as need be referred to here, by three separate measures:-
1. By laying down certain fundamental principles in relation to the Army by the Bill of Rights and Act of Settlement.
2. By placing the pay of the Army under the control of Parliament, or more especially of the House of Commons; and
3. By granting to the Crown statutory powers for the Government and discipline of the Army.
6. Other statutory guarantees against the encroachments of the power of the Crown and of the Standing Army were added… but the greatest security was and still is to be found in the Constitutional doctrine developed at the Revolution, which made every Minister of the Crown personally responsible to Parliament for his own conduct, and for the acts of the Crown taken upon his advice. This agency of governing the kingdom by responsible ministers applies to the Army as well as to the civil Government, although for many years some few Politicians and many Soldiers were ready to contend that the Crown, without the intervention of any responsible minister, might use the Army for any purpose, and govern and command it in any matter that the will of the sovereign, for the time being, should direct. There is no good function, as will be seen, for any such theory. The Army, as part, or rather as the instrument of the State, must be under the ordinary rule of law, whether as applied to the prerogatives of the Crown or obedience to the civil magistrate.
The "Army of Plebeians" to which Mr Clode refers was Oliver Cromwell's New Model Army. Regicide in respect of King Charles I and the republican ideal had, in the mid-seventeenth century, culminated not in parliamentary democracy but in the military dictatorship of Lord Protector Cromwell backed by the New Model Army. The memory of this and of the no lesser evils of the "Divine Right of Kings" was fresh in the minds of those who drew both the Bill of Rights 1689 (Eng) and the first Mutiny Act,
18 The Bill of Rights 1689 provided the basis upon which the Crown was offered by Parliament to and accepted by King William III and Queen Mary II as they became. In turn, the rights there enshrined underpinned the basis upon which the Act of Settlement 1701 (Eng) made provision for a succession to the Throne which obtains to this day both in relation to the United Kingdom, Australia and other constitutional monarchies within the Commonwealth of Nations. These statutes represented a recognition born of bitter experience with alternatives that the checks and balances on absolute power offered by a constitutional monarchy provided the best assurance of individual freedom under the rule of law.
19 In modern times, Article 9 of the Bill of Rights, which provides "That the freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament" and which underpins the law of parliamentary privilege, is the most frequently encountered provision of that statute. Two other provisions of the Bill of Rights, Articles 5 and 6, are of present relevance:
5. That it is the right of the subjects to petition the King, and all commitments and prosecutions for such petitioning are illegal.
6. That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law.
The Bill of Rights formed part of the Law of England the application of which in colonial Australia, subject to local legislative modification, was confirmed by s 24 of the Australian Courts Act 1828 (UK).
20 Parliamentary control over the Army's existence as declared by Article 6 of the Bill of Rights was achieved by limiting the duration of the original Mutiny Act 1689 to seven months (12 April to 10 November 1689). Its enactment at the same time as the Bill of Rights 1689 was no coincidence. There was to be no repetition of the New Model Army. Thereafter, until more permanent provision was made in 1879, the parliamentary control declared by the Bill of Rights was maintained by annual passage of the Mutiny Act which relevantly provided for a temporally limited continuance standing army and for its discipline.
21 As Mr Clode explains (supra at p 146), early Mutiny Acts made express provision only for the discipline of the Army within the Realm, consigning provision for the discipline of the Army when on service abroad to Articles of War made in the exercise of Prerogative power. Though these were issued in the name of the Sovereign, they were promulgated by the Minister responsible for the War Office who was, in turn, responsible to Parliament. Gradually, the Mutiny Acts came to have a wider application. Even though Articles of War continued to be promulgated in the manner just described, they were reissued annually in conformity with statutory provisions made in each successive Mutiny Act (Clode, supra, at p 144).
22 Guidance as to the content of the Articles of War as they stood at the time when more permanent provision was made in 1879 for the discipline of the Army is offered in another of Mr Clode's authoritative works, The Administration of Justice under Military and Martial Law (2nd ed, 1874), which enjoyed contemporary official approval pursuant to British Army General Orders. Significantly for present purposes, one finds in that work (at pp 258-259) that those articles made the following provision in respect of "Redress of Wrongs":
Redress of Wrongs
12. If any officer shall think himself wronged by his commanding officer, and shall, upon due application made to him, not receive the redress to which he may consider himself to be entitled; - he may complain to the general commanding in chief of our forces, in order to obtain justice; - who is hereby required to examine into such complaint; - and either by himself, or by our Secretary of State for War, to make his report to us thereupon, in order to receive our further directions.
13. If a non-commissioned officer or soldier shall think himself wronged [in any matter affecting his pay or clothing] by his captain, or other officer commanding the troop or company to which he belongs, he is to complain thereof to the commanding officer of the regiment, who is hereby required to summon a regimental court of inquiry for the purpose of determining whether such complaint is just; - from the decision of which court of inquiry either party may, if he think himself still aggrieved, appeal to the general court martial; - [and such court shall hear and determine the merits of the appeal, and after determining the same, and after allowing the appellant to show cause to the contrary, by himself, and by witnesses, if any, may either confirm the appeal or dismiss it without more, or may, if it shall think fit, pronounce such appeal groundless and vexatious, and may thereupon sentence such appellant to such punishment as a general court-martial is competent to award: - Provided that no stoppage of pay in respect of barrack damage duly assessed by a court of inquiry shall give any non-commissioned officer or soldier a right of appeal to a general or other court martial.]
Mr Clode's footnoted annotations to these articles indicate that their presence in the Articles of War may be traced back at least to 1717. A further footnote discloses that the parenthetical reference in Article 13 to "pay or clothing" was inserted by amendment in 1856.
23 The right of an officer, through the chain of command and ultimately via the War Office, to seek "redress" from the Sovereign in respect of a wrong or grievance and a corresponding right of a soldier to such the like redress from his commander, who would hold the Sovereign's commission, found, at the times material to the present case, its contemporary exposition and adaptation to suit the circumstances of the command and control of the Australian Defence Force in reg 75, 76 and 77 of the Defence Regulations.
24 The right of redress is an exact military law derivative of the right to petition the King declared by Article 5 of the Bill of Rights. The latter, in turn, was but a reassertion of a right the existence of which may be traced back at least to Article 61 of Magna Carta 1215 (Eng). The right of petition formed the basis in earlier times of the equity jurisdiction of the Lord Chancellor and of civil proceedings against the Crown by "petition of right".
25 The existence of a right of redress, of a right to have the complaint referred to the highest levels of command and of the obligation of an officer promptly to deal with the complaint either when initially made or on referral serve to temper the arbitrary, uncaring, ignorant or unjust exercise of authority within the Army. They are of fundamental importance to command and control and discipline within the Army. They ameliorate the duty of those in the Army to obey the lawful commands of their superiors under pain of prosecution and, if convicted, sentencing for mutiny. Under the Mutiny Acts, the latter offence was a capital crime. Though that penalty does not attend the offence of mutiny in Australian military law, the maximum punishment for the offence is serious enough - imprisonment either for 10 years or for life, depending on the circumstances in which it is committed: see s 20 Defence Force Discipline Act 1982 (Cth).
26 Our constitutional heritage from the Bill of Rights and the original Mutiny Act finds contemporary expression in other ways in relation to the Australian Army.
27 Though s 68 of the Commonwealth Constitution vests the command in chief of the naval and military forces of the Commonwealth in the Governor-General as the Queen's representative, the authority for the existence of the Army is statutory, not the prerogative: see s 30 and s 31 of the Defence Act, enacted pursuant to s 51(vi) of the Commonwealth Constitution. Further, though the Governor-General has the command in chief, that command, in accordance with convention, is exercised on the advice of a Minister responsible to Parliament. That convention was recognised in the 19th century by Mr Clode at item 6 in the passage quoted above. A century later but to like effect the following expression of opinion by the Right Honourable Sir Victor Windeyer, by then retired from the High Court and himself a former general officer in the Australian Army, commended itself to another retired High Court judge, the Right Honourable Sir Ninian Stephen in an address which he gave in 1983, in his then capacity as Governor-General, to the graduating class of the Joint Services Staff College in relation to the position of the Governor-General as commander in chief of the Defence Force:
The question here depends on the Constitution, not on provisions of the Defence Act. Some provisions of the Constitution refer to 'the Governor-General in Council' - which section 63 stipulates is to be construed as the Governor-General acting with the advice of the Federal Executive Council: but other provisions refer simply to 'the Governor-General'. The distinction is significant. Section 68 states that 'The Command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as The Queen's representative' - not in the Governor-General in Council. It follows that orders by the Governor-General to the Defence Force, including calling it out, are given by virtue of the authority of command in chief. That does not mean that His Excellency may act without ministerial advice. He must act on the advice of a responsible minister; but not necessarily by an Order-in-Council after a meeting of the Executive Council.
[http://www.gg.gov.au/governorgeneral/content.php?id=16]
In turn and in conformity with this position, s 8 of the Defence Act gives the Minister for Defence the general control and administration of the Defence Force and, subject to s 8 and s 9 of that Act provides for the appointment by the Governor-General of an officer known as the Chief of the Defence Force to command the Australian Defence Force and, materially, for the appointment by the Governor-General of a subordinate officer known as the Chief of Army to command the Australian Army.
28 In this fashion, it can be seen that the redress complaints of officers and soldiers respectively are in modern times able finally to be decided by those officers to whom the Governor-General as commander in chief has, with parliamentary authority, respectively appointed to be the professional heads of the Australian Defence Force and the Australian Army.
29 The importance of the redress of grievance system at the times when CPL Millar made her complaint and then sought its referral was underscored by the penalisation by reg 80 of the Defence Regulations of conduct directed to dissuading a member from making a complaint, seeking its referral, conducting inquiries in respect of a complaint or taking any other action under Part XV. In the present context, it was not only CPL Millar who enjoyed that protection but also BRIG Bornholt. If he, for example, were to be victimised on the basis of the decision he made those engaging in that conduct, no matter what their rank or appointment, would commit an offence.
30 Apart from in Australia, a right of redress exists to this day as part of the military law of the United Kingdom - s 334 of the Armed Forces Act 2006 (UK) and of other constitutional monarchies within the Commonwealth: see, as to Canada, s 29 of the National Defence Act 1985 (Can) and Queen's Regulations and Orders for the Canadian Forces, Ch 7 and, as to New Zealand, s 49 of the Defence Act 1990 (NZ). The purpose and provenance of these provisions are identical to those of Australia.
31 In our Army and in the armies of each of these countries the right of redress gives formal recognition to an ethos that is sought to be instilled into officer cadets at their military colleges, academies and other officer cadet training units with respect to the obligation for fair treatment and concern for the welfare of subordinates that the holder of a Queen's commission assumes in respect of those under his or her command. That obligation was definitively expressed by Field Marshal Sir Philip Walhouse Chetwode, then Commander in Chief of the Indian Army, in an address delivered at the formal inauguration of the Indian Military Academy in 1932:
The safety, honour and welfare of your country come first, always and every time. The honour, welfare and comfort of the men you command come next. Your own ease, comfort and safety come last, always and every time.
32 The right of redress is one of the checks and balances within a disciplined armed force designed to ensure that, on complaint, that ethos will be brought to bear in the scrutiny of action which has occasioned the complaint and in ensuring that whatever action is necessary and appropriate to address a complaint which is found justified will be taken. There are other, informal means, well known within the military, by which a commander's attention may be drawn to matters pertaining to the "honour, welfare and comfort" of those under his or her command. Within the Army it is a particular responsibility of a Regimental Sergeant Major (RSM) in an infantry battalion (or the equivalent office holder in other units major or minor), who is the senior soldier in the unit, to provide advice to the commanding officer on that subject. In turn, at formation level headquarters (i.e. Brigade and above) a formation RSM provides the like advice to a formation commander. It is that role which explains the existence of the appointment of a Regimental Sergeant Major of the Army, the senior soldier's appointment in the Army, whose task is to provide just such advice to the Army's professional head, the Chief of Army.
33 The reason why the Defence Regulations, like others before them, reserve at least to the rank of Brigadier (or equivalent in the other arms of the Australian Defence Force) the exercise of power in respect of a referred redress complaint arises from the nature of the power and the need to ensure that its exercise conforms with the chain of command within the Army. The system for redress of grievances is not intended to be subversive of the Army's chain of command. Thus the initial complaint is made under reg 75 of the Defence Regulations to a commanding officer, who will, if permanently appointed, invariably hold the rank of Lieutenant Colonel in a major unit or of Major in a minor unit. By reserving the exercise of the power under reg 77 of deciding referred redress complaints at least to an officer of the rank of Brigadier the Governor-General in Council has reserved the exercise of that power to a formation commander rank level, i.e. to a rank the holder of which usually exercises command over a number of major and minor units. In this fashion, the redress system conforms with and buttresses the chain of command within the Army.
34 Once this constitutional law heritage and its adaptation to the command and control of the Australian Army are understood, it can readily be seen that it is antithetical to that heritage and that command and control that the power which the Chief of Army or a delegate may lawfully exercise upon the investigation of a referred redress complaint is limited to the making of a "recommendation" in respect of an earlier decision to, in this instance, terminate the service of a soldier. Neither, in light of these matters, is there cause for any uncertainty about the nature of the power. Where it lies within the power of the Chief of Army or subordinate officer to make a decision or to issue an order that has given rise to the complaint, it lies within the power of the Chief of Army or a delegate upon the investigation of a referred redress complaint to vacate that earlier decision or to countermand that order. The power is truly plenary.
35 Though the occasion for the exercise in this case of the power to review on referral a referred redress of grievance complaint was the exercise of a power to terminate a member's Army service, the ability to seek redress and later referral extends over the entirety of relationships between superior and subordinate within the Army. That has the necessary consequence that underlying circumstances and the nature of the decision under review will necessarily influence the manner and formality of the exercise of power in respect of a referred redress complaint. What does not change is the nature of the review power. The Chief of Army or a delegate considering the redress complaint on referral is fully empowered to consider afresh and on the merits the subject matter of the complaint, to reach his or her own decision in respect of it and to modify or countermand any decision which has given rise to a complaint which is upheld.
36 That is not to say that Chief of Army or the delegate is obliged to interfere with the decision being reviewed. The obligation is to investigate the complaint and to reach a view as to what ought to be the result of that investigation. The Chief of Army or delegate might, for example, reach a conclusion that the decision under investigation, while not unreasonable, was not one which he or she personally would have made. In that circumstance, the Chief of Army or the delegate has a choice, guided by considerations of command and control as well as welfare of the complainant, as to whether or not to interfere with the decision of which complaint has been made. Yet another outcome might, for example, be that the complaint ought to be upheld, any order giving rise to it countermanded and the author of that order being subject to disciplinary action or counselling.
37 Such is the plenary nature of the power exercisable on the merits by the Chief of Army or a delegate on a referred redress complaint that this Court might decide, as a matter of discretion rather than jurisdiction, summarily to dismiss the application of a member of the Army who has chosen to seek judicial review of a termination of service decision rather than seek redress under the Defence Regulations. That, I note, was one of the bases upon which a Queen's Bench Divisional Court refused to grant prerogative relief to an officer in such a position in R v The Army Council; ex parte Ravenscroft [1917] 2 KB 504. Insofar as there are also suggestions (at 508 per Viscount Reading CJ, at 512 per Ridley J and at 513 per Avory J) in that case that a court would not interfere with the dismissal of an officer because that was a matter of military discipline, the case is inconsistent with, for example, Welsh's Case, supra, here and not good law. The latter aspect of the case is perhaps explicable on the basis that, at the time, officers served at the pleasure of the Crown with the basis for their dismissal being the Prerogative rather than, as in Australia, statutory. That distinguishing feature does not though affect the authority of that case insofar as it recognises that the plenary nature of the right of redress may provide a basis for discretionary refusal of a prerogative writ.
38 For completeness, I should note that, though reference is made by the Full Court in Martincevic v Commonwealth (2007) 164 FCR 45 to a redress of grievance investigation, it did not prove necessary in that case for the Full Court to explore the nature of the power able to be exercised by the Chief of Army upon the referral of a redress complaint. Rather, that case highlighted that the existence and outcome of a subsisting redress investigation before the making of a discharge decision may constitute (and in the circumstances of that case was held to constitute) a relevant consideration for the purposes of the making of that discharge decision.
39 It does not follow from the lack of understanding of the nature of the power evident in the Commonwealth's submissions that CPL Millar must succeed in her judicial review application. To determine that it is first necessary to relate in more detail the factual background which gave rise to CPL Millar's initial redress complaint, its later referral and this judicial review application. It is also necessary to set out why BRIG Bornholt came to confirm the decision to terminate her service with the Army. BRIG Bornholt's reasons are comprehensive. It would do that officer less than justice not to set them out in full but so to do in the main body of the judgement would, in my opinion, detract from its continuity and ready comprehensibility. I therefore annex the full text of BRIG Bornholt's reasons and highlight pertinent features in the main body of the judgement.
40 Before CPL Millar deployed to Iraq as part of Operation CATALYST 2 she undertook pre-deployment training at Randwick Barracks in Sydney from 27 June 2006 for a period of one month. During that time, CPL Millar maintained a good rapport with most, but not all, of the members attending this pre-deployment training course.
41 The unit in which CPL Millar was to serve in the Middle East was a joint force unit, i.e. its members were drawn from each arm of the Defence Force. Prior to her deployment, CPL Millar encountered significant problems with Leading Seaman Hillier, Royal Australian Navy. She worked closely with LSSN Hillier during her pre-deployment training and whilst deployed to the MEAO.
42 In Iraq CPL Millar and LSSN Hillier had a number of interpersonal clashes while on duty, to the extent that a meeting involving, Flight Lieutenant Walker, the Company Quarter Master Sergeant (CQ), Warrant Officer Class 2 Onus, LSSN Hillier and CPL Millar was convened. At this meeting, LSSN Hillier and CPL Millar agreed to resolve their differences. It is apparent that this meeting did not have the desired outcome, as CPL Millar and LSSN Hillier had a number of subsequent confrontations involving the former's view of CPL Millar's management of subordinates.
43 CPL Millar conversed repeatedly with her CQ, WO2 Onus, in an attempt to resolve her differences with LSSN Hillier. WO2 Onus and CPL Millar had a heated argument, in which CPL Millar claimed that WO2 Onus said: "I'm sick of you" and directed her to get out of her sight.
44 CPL Millar spoke to FLTLEUT Walker about other conflict resolution options in relation to LSSN Hillier. At an "O-Group" (orders group) that same evening CPL Millar was told: "if you have an equity issue on operations, right or wrong, you would get sent home and it would be investigated there".
45 In her affidavit CPL Millar stated that she felt let down by her chain of command and by her unit with respect to her relationship with LSSN Hillier. While still stationed in the MEAO she approached the Padre assigned to her unit concerning the issue, who advised her to contact the psychologist deployed to the MEAO to get assistance with conflict management strategies. On 4 October 2006 CPL Millar telephoned that psychologist, Major D R Hadfield, to discuss conflict management strategies.
46 CPL Millar was selected to go on the first rotation of ROCCL ("relief out of country leave") and was due to leave Baghdad on 11 October 2006 to fly to Amsterdam.
47 On 5 October 2006 FLTLEUT Walker spoke with MAJ Hadfield and raised concerns with respect to CPL Millar's suitability to remain on deployment. On 6 October 2006, the OC-Force Level Logistic Asset-Kuwait referred CPL Millar for psychological assessment regarding her emotional state and her suitability to remain on deployment and in the Defence Force. This assessment was conducted by MAJ Hadfield on 8 October 2006. MAJ Hadfield concluded that:
· CPL Millar was not suitable to remain on deployment;
· CPL Millar needed to have access to support in what was likely to be a time of heightened stress and anxiety prior to and upon repatriation to Australia; and
· Even with further counselling, CPL Millar appeared not to be suitable to remain in the Defence Force.
48 On 11 October 2006, in anticipation of the CPL Millar's return to 10 FSB, the Commanding Officer (CO) of that unit referred her to Psychology Support Services-Northern Queensland for assessment for suitability to remain a member of the Defence Force. CPL Millar landed in Australia late on 12 October 2006. She was met by her unit's Operations Officer and its Squadron Quarter Master Sergeant, who drove her to her residence. The following morning, 13 October 2006, at 7:30am, she was advised of and later attended an initial assessment appointment with Dr Richard Green, an Army Reserve psychiatrist. CPL Millar had requested that this appointment be rescheduled, owing to the draining nature of the return flight home from the MEAO.
49 Dr Green met with CPL Millar at 10:00am that morning. She again requested that their interview be deferred for a few days, owing to her suffering from jet lag. The interview was rescheduled for 25 October 2006.
50 Following her appointment with Dr Green, CPL Millar attended upon her unit's Regimental Aid Post (RAP). There, she saw 10 FSB's Regimental Medical Officer (RMO), Dr Mitra, who diagnosed stress, anxiety and jetlag, and prescribed the drug Zanax for nine days. CPL Millar was given a medical certificate for 10 days' sick leave.
51 Whilst on sick leave, CPL Millar referred herself to the Vietnam Veterans' Counselling Service (VVCS) for assistance with respect to ongoing anxiety. There, she attended upon a psychologist recommended by the Counselling Service, who provided her with relaxation therapy. On 25 October 2006 she again visited the RMO, who extended her sick leave by 5 days. On this same day CPL Millar again met with Dr Green. She requested a second opinion with respect to MAJ Hadfield's decision to recommend her return to Australia. She was referred to CAPT J. Brown (CAPT Brown) of Psychology Support Services-Northern Queensland. The appellant met with CAPT Brown on 30 October 2006 and on 15 November 2006.
52 At the consultation on 30 October 2006, CAPT Brown informed her that she was being assessed as to her suitability to remain in the Defence Force. CPL Millar asked CAPT Brown whether the purpose of the appointment was to obtain the second opinion which she had requested from Dr Green. During this interview, CPL Millar advised CAPT Brown that she would be pursuing an equity complaint in relation to events that had occurred whilst in theatre. CAPT Brown advised the appellant that the assessment would be delayed for three months until CPL Millar returned to work.
53 On 15 November 2006, CPL Millar attended the further appointment with CAPT Brown. In the course of that appointment CPL Millar advised CAPT Brown that she would not be pursuing the equity complaint. Additionally, she informed CAPT Brown of her Zanax prescription, of her then unforeseeable return to duty in the near future and of her self-referral to VVCS.
54 On 30 January 2007, 10 FSB issued CPL Millar with a Termination Notice citing reg 87(1)(e) of the Defence (Personnel) Regulations, 'Not suited to be an enlisted member of the Defence Force', as the proposed reason for discharge. CPL Millar acknowledged receipt of this notice. She submitted a response to it on 15 March 2007. On 20 April 2007, the CO 10 FSB advised CPL Millar that he did not uphold her request to be retained in the Defence Force and subsequently recommended to SCMA that CPL Millar not be retained. The formal termination decision and redress complaint already noted then followed.
55 CPL Millar's response to the termination notice and to the initial disposal of her complaint for redress of grievance relied upon opinions in respect of her by a psychologist in private practice, a Mr Robert Zemaitis. Mr Zemaitis furnished two reports: one dated 7 March 2009, the other dated 3 September 2007. The former was considered by the Delegate of the Chief of Army who made the decision to terminate her service; the latter was obtained prior to CPL Millar's seeking the referral of her redress complaint to the Chief of Army. Mr Zemaitis' opinion was that CPL Millar was not "suffering from any current levels of psychology systems" and that she was "quite capable of continuing to serve at her current posting". Contrary views were expressed concerning CPL Millar's suitability for continued military service, especially having regard to a need to undertake operational service, by MAJ Hadfield and CAPT Brown.
56 CAPT Brown furnished two reports in respect of CPL Millar, one dated 8 November 2006, the other 15 November 2006. The former seems to have been a precursor to and overtaken by the latter. It is CAPT Brown's report of 15 November 2006 which contains findings that proved influential in relation to BRIG Bornholt's ultimate disposal of CPL Millar's referred to redress complaint. In her report of 15 November 2006, CAPT Brown's opinion was that "this member presents with a persuasive history of interpersonal difficulties within the workplace and personality issues … the attention to this member is likely to result in ongoing workplace conflict and extensive use of military resources".
57 It was common ground as between CPL Millar and the Respondents that BRIG Bornholt was obliged to afford her procedural fairness in deciding her referred redress complaint. As it happens, there is contemporary English intermediate appellate authority which would support such a conclusion in the particular context of the consideration of a referred redress of grievance complaint, in that case one arising from an allegation of racial discrimination by a member of the British Army: R v Army Board of the Defence Council; Ex parte Anderson [1992] 1 QB 169.
58 In what has become a seminal Australian exposition on the subject of procedural fairness, Mason J, in Kioa v West (1985) 159 CLR 550 at 585, remarked of the expression that it "conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case". It is not difficult to see how, in the context of operational service in times of a large scale deployment of the Australian Army, the content of a procedural fairness obligation in respect of a redress complaint either as initially made or on referral may in some cases be very limited indeed. In the present case, though the occasion for the initiation of termination procedures arose from incidents on operational service, the decision making process occurred in more benign circumstances in Australia. There is nothing in the circumstances which would suggest that any attenuated procedural fairness obligation attended BRIG Bornholt's consideration of the referred redress complaint. Thus, the assumption of the parties that the making of a decision by him was attended with a procedural fairness obligation which included the affording of a fair opportunity to CPL Millar to know the case made against her and to contradict it is correct. I accept therefore that he was obliged to afford CPL Millar procedural fairness in determining that referred redress complaint. The nature of that obligation though, as Mason J observed, depends on the circumstances of the particular case.
59 In this case, CPL Millar had already been the recipient of a Termination Notice which set out the basis upon which it was proposed to terminate her service in the Army. Only after that notice and an opportunity to respond had been given was the decision to terminate her service made by a delegate of the Chief of Army. In turn, before BRIG Bornholt became involved, CPL Millar had already sought redress from her CO and had the benefit of a reasoned decision as to why her complaint was not upheld. In light of those processes and their outcomes, it is clear that CPL Millar was well aware by then that the reason why a decision had been made to terminate her service on the basis of unsuitability and why her initial grievance was not upheld was a view, supported by the opinion of the Army psychologist CAPT Brown in her report of 15 November 2006 in particular, that, considering her behaviour on operational service in Iraq against the background of her service as a whole, there was a risk that under stress her performance would not be satisfactory. In seeking to have the Chief of Army overturn the termination decision on the review of her grievance complaint she furnished a further report from Mr Zemaitis along with character references from military associates and superiors.
60 Upon referral and as required by Defence Instruction (General) PERS 34-1 Redress of Grievance - Tri-Service Procedures made under the Defence Act, a report in respect of the referred complaint was prepared for the Chief of Army's (or delegate's) consideration by the Complaints Resolution Agency within the Headquarters of the Australian Defence Force. It is the report of that agency which came before BRIG Bornholt and which he came to adopt. In adopting that report, its suggested outcome and the reasons as his own BRIG Bornholt adopted a report in which the case advanced by CPL Millar was thoroughly rehearsed and commented upon, as was the process that had led up to the decision to terminate her service and the initial rejection of her redress complaint. No new consideration personal to CPL Millar was introduced by the staff who compiled the report for Brig Bornholt. Neither did he do this of his own motion.
61 In these circumstances, a further passage from the judgement of Mason J in Kioa v West (at 559) is apposite:
[T]his is not to say that fairness will necessarily, or even generally, require that an applicant for a further entry permit be given an opportunity to be heard even where deportation may follow from its refusal. The grant of an entry permit is a matter of discretion. Indeed, the cancellation of a temporary entry permit is expressed to be a matter of absolute discretion (s.7(1)). In the ordinary course of granting or refusing entry permits there is no occasion for the principles of natural justice to be called into play. The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. But if in fact the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter (In re H.K. (An Infant) (1967) 2 QB 617). If the application is for a further temporary entry permit and it is made in circumstances which are relevantly similar to those in which the earlier permit was granted, the applicant may have a legitimate expectation that the further entry permit will be granted or will not be refused in the absence of an opportunity to deal with the grounds on which it is to be refused. And if the refusal is to be attended by the making of a deportation order, the case for holding that procedural fairness requires that such an opportunity be given is unquestionably stronger.
40. In this respect recent decisions illustrate the importance which the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it. FAI is one illustration. Cole v. Cunningham (1983) 49 ALR 123, is another, as are Reg. v. Gaming Board for Great Britain; Ex parte Benaim and Khaida (1970) 2 QB 417, at p 431; and Daganayasi v. Minister of Immigration (1980) 2 NZLR 130.
BRIG Bornholt was obliged to investigate the referred complaint. As a senior officer he was able, as would have been the Chief of Army of Army himself, to require staff to prepare a report on the subject. In that regard, the procedure envisaged by the Defence Instruction (General) is not inconsistent with the Defence Regulations in relation to the investigation of a referred redress complaint. Whether he interfered with the termination decision was a matter for the exercise of discretion after investigation. Given the particular way in which the investigation was conducted, effectively on the papers, there was no need to give CPL Millar any further opportunity to be heard before making a decision. At the very latest, the fullness of the case she had to meet, both in terms of expert opinion and underlying reports and service history had been exposed to her in the disposal by her CO of her redress complaint. BRIG Bornholt decided not to uphold her redress complaint not on the basis of new information personal to her obtained from another source and not exposed already to her but on the basis of existing materials. In these circumstances, and contrary to the submission advanced on her behalf, he was not obliged again to revert to her and to offer her an opportunity to comment upon the reasons he proposed to adopt in declining to uphold her redress application. Rather, as is evident from the passage quoted, she, "cannot complain if the authorities reject [her] application because they do not accept, without further notice to [her], what [she] puts forward". I therefore reject the submission that BRIG Bornholt denied CPL Millar procedural fairness in making his decision.
62 A further submission was made that CPL Millar had not been afforded an opportunity to comment upon an assessment made of her by her Squadron Sergeant Major which was taken into account by CAPT Brown in her report. However, as the Respondents demonstrated in their written submissions, by the time that CPL Millar sought the referral of her redress complaint she had had two opportunities to comment upon this assessment, of which she had taken advantage; once in the course of showing cause why her service ought not be terminated and again in the seeking of the referral of her redress complaint. There is no substance in this aspect of her procedural fairness challenge. Neither, when it is recalled that it is the referral decision which is under review is there any substance in her assertion that she was denied an opportunity to comment upon comments made by the Army's Psychological Support Service North Queensland on the subject of her suitability. Those comments were limited to a concurrence with the views already expressed by CAPT Brown and were exposed to CPL Millar in the results of the "Quick Assessment" which was made of her initial redress complaint.
63 An examination of his reasons discloses that BRIG Bornholt approached his task in two particular ways. On the one hand, he examined whether the procedures adopted to date had been appropriate and whether the decisions reached were reasonably open; on the other and in any event he reached his own opinion on the whole of the evidence before him, which included the further evidence provided by CPL Millar in seeking the referral of her redress complaint, as to whether she was, in terms of reg 87(1)(e) of the Defence (Personnel) Regulations, suited to be an enlisted member.
64 This, with respect, was an appropriate procedure to adopt. If, for example, BRIG Bornholt had detected a procedural flaw in the termination process he would have been perfectly entitled, on the strength of that finding alone, to countermand the termination order. What followed from such a result would then have been a matter for the exercise of a further command discretion. He may have ordered that the termination consideration be commenced afresh by another delegate or he may have chosen just to leave the termination order countermanded. As it happens, he found no procedural flaw; nor did he consider that the views reached in respect of the termination were not reasonably open. Appropriately though, especially given that CPL Millar had presented fresh evidence in support of her referral request, BRIG Bornholt went on to reach his own decision on the merits as a result of the investigation conducted on his behalf by staff. This evidences an appreciation by him of the plenary nature of the power entrusted to him. He was perfectly entitled to reach his own opinion as to CPL Millar's suitability to be an enlisted member. This indeed is what she wanted him to do.
65 As it happens, BRIG Bornholt's opinion was that CPL Millar was not suited to be an enlisted member. It was submitted that this was an unreasonable opinion. That submission in effect amounted to an appeal that decisive weight ought to have been given to the opinions of Mr Zemaitis. It was also submitted that it was erroneous to conclude that Mr Zemaitis had not had access to CPL Millar's full psychological file.
66 Each of these submissions was sought to be controverted by the Respondents, each on the basis that the conclusion was reasonably open.
67 It is a feature of reg 87(4) of the Defence (Personnel) Regulations, noted by the Full Court in Martincevic (2007) 164 FCR 45 at 54, [44], that, once the Chief of Army (or a delegate) forms the opinion described in that sub-regulation, the service of the member concerned must be terminated. One aspect of that opinion is whether the decision-maker is "satisfied" in terms of reg 87(1)(e) that the member is not suited to be an enlisted member. These features of reg 87 mean that it is one of those provisions where "some fact or event [is] condition upon the existence of which the jurisdiction of a court or tribunal shall depend": R v Federal Court of Australia; ex parte Pilkington ACI (Operations) Pty Ltd (1978) 142 CLR 113 at 125. In this instance, the "fact or event" upon which the jurisdiction of the Chief of Army to terminate the service of a member depends is a state of subjective satisfaction, an opinion. In Bankstown Municipal Council v Fripp (1919) 26 CLR 385 at 403, Isaacs and Rich JJ observed of provisions of this type that they are employed with the object of preventing litigation on matters of jurisdictional fact.
68 The feature just mentioned does not mean that statutory powers the exercise of which is dependent upon the engendering or achievement of a state of "satisfaction" in relation to an event or fact are unexaminable on judicial review either at common law or under the Administrative Decisions (Judicial Review) Act, as was explained by Brennan CJ, Toohey, McHugh and Gummow JJ in a survey of pertinent authority in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-277. Paragraph 5(1)(f) of the Administrative Decisions (Judicial Review) Act would permit the setting aside of BRIG Bornholt's decision in the event that it "involved an error of law". CPL Millar's referred redress complaint relevantly pressed a case that he should countermand the termination decision because he ought on the whole of the material not form an opinion in terms of reg 87(4) and 87(1)(e) of the Defence Personnel Regulations. In these circumstances and having regard to the nature of the regulation concerned an error of law might be found, as with judicial review under s 75(v) of the Constitution, in one or more of the ways described by Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118-119:
In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. [Emphasis added]
In respect of the words emphasised in the passage quoted. Gummow J made the following observation in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 654, [137]:
This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.
69 In "not suited to be an enlisted member" the present offers a paradigm example of "a matter of opinion or policy or taste". Further, as Sir Owen Dixon noted in Welsh (1947) 74 CLR 245, at 268of other regulations governing the relationship between the Commonwealth (and that term is used to include the Crown in right of the Commonwealth) and members of the Defence Force and in a passage to which I have already alluded:
[In] considering the meaning and effect of the Air Force Regulations their purpose cannot be neglected, namely to provide rules to govern one of the armed forces of the Crown. The relation to the Crown of members of the armed forces is no new subject; the rules of the common law define it. The regulations are not to be read in disregard of those rules and of the long tradition to which they have contributed. At common law neither commission nor enlistment in the services does or can amount to a contract with the Crown and neither officer nor man obtains any legal right against the Crown to pay, deferred pay, half pay, pension or emolument. 'All engagements between those in the military service of the Crown and the Crown are voluntary only on the part of the Crown, and give no occasion for an action in respect of any alleged contract:' per Lord Esher M.R. in Dunn v. The Queen: see Macdonald v. Steele; Gibson v. East India Co.; R. v. Secretary of State for War; Leaman v. The King: Lucas v. Lucas. (footnote references omitted).
70 The relationship between the Crown and a soldier is not that of employer and employee: Attorney-General (NSW) v Perpetual Trustee Company [1955] AC 457, at 489-490; Attorney-General (NSW) v Perpetual Trustee Company (1951-1952) 85 CLR 237, at 301-302 per Kitto J. At common law, the relationship between the Crown and a soldier may be terminated without notice and for any reason, no reason or a mistaken reason: The Commonwealth v Welsh (1947) 74 CLR 245, at 257-258 per Latham CJ, McTiernan J agreeing; at 262 per Rich J, at 274 per Williams J; Coutts v The Commonwealth (1984-1985) 157 CLR 91, at 105 per Brennan J.
71 In a passage later cited with approval by Dawson J in Coutts v The Commonwealth (1984-1985) 157 CLR 91, at 120, Windeyer J, observed in Marks v The Commonwealth (1964) 111 CLR 549, at 564 that, in Australia, the position of the Crown in relation to the Defence Force depended not upon the prerogative but rather upon statute such that the inquiry was whether the relevant statute law modified or abrogated the common law position. Hence the significance of Sir Owen Dixon's observation as to the manner of construing the provisions now found in reg 87 of the Defence (Personnel) Regulations. This observation of Sir Owen Dixonhas subsequently been cited with approval both in the High Court (Marks v The Commonwealth (1964) 111 CLR 549, at 573 per Windeyer J; Coutts v The Commonwealth (1984-1985) 157 CLR 91, at 98 per Wilson J, Brennan J agreeing).and in this Court (Bowthorpe v Minister for Defence (1986) 17 IR 192, at 195 per Neaves J; Bromet v Oddie ((2002) 78 ALD 320, at 331 per Finn J).
72 In a sense, the Defence (Personnel) Regulationsdo significantly modify the common law, for the provision they make for termination of the service of an enlisted member of the Defence Force exhausts, rather than supplements, the common law:see reg 87(5), Defence (Personnel) Regulations. However, once it is appreciated that the giving of a prior "show cause" notice is not compulsory (In reg 87(2), which provides for the giving of a "termination notice", the word "may", rather than "must" is used, connoting, in context, and especially having regard to the contingencies that might arise making the step either impractical or even impossible, that the giving of such a notice is not compulsory) and that a Service Chief such as the Chief of Army may terminate the service of an enlisted member for reasons as ephemeral as that which formed the basis of CPL Millar's termination or that "the retention of the enlisted member is not in the interest of Australia ; or the Defence Force; or the Chief's Service" (reg 87(1)(g), Defence (Personnel) Regulations), the heritage of the common law remains evident.
73 Where the evidence is not all one way, and that is emphatically the situation in the present case, this heritage and that the subject matter for "satisfaction" is one of opinion or policy or taste counsel a principled restraint on a court conducting judicial review lest the appearance be given that, in respect of this aspect of the making of value judgements in relation to the Defence Force, command has impermissibly passed from those to whom that task has been consigned by the Governor-General under parliamentary authority to the Judiciary.
74 These same sentiments are evident in judgements of the Federal Court of Canada with respect to the judicial review of decisions relating to the disposition of grievances in the Canadian Forces. In Armstrong v Canada (Attorney General) [2006] F.C.J. No. 625; 2006 FC 505 Layden-Stevenson J observed of the grievance procedures for which s 29 of the National Defence Act (Can) and Chapter 7 of the Queen's Regulations and Orders made thereunder provide:
[34] The purpose of the National Defence Act (NDA) is to provide for the management, direction and administration of the Canadian Forces (CF). The purpose of the specific provisions, in relation to this matter, is the efficient resolution of grievances or disputes. The issue in this case is not polycentric. Rather, it is of a private or personal nature. Some deference is appropriate in view of the fact that the final decision lies with the Chief of the Defence Staff (CDS), or an officer delegated by him.
[35] The expertise of the decision-maker militates in favour of deference. The CDS, the most senior officer in the CF, is charged with control and administration of the CF. The NDA mandates that all orders and instructions to the CF, to carry out the directions of the Governor in Council or the Minister, are to be issued through the CDS. It is to be expected that the CDS, or his delegate, will be conversant with all facets of the military context, unlike the court. This factor indicates a high level of deference.
Her Honour's judgement was affirmed on appeal to the Federal Court of Appeal: Armstrong v Canada (Attorney General) [2007] F.C.J. No. 546; 2007 FCA 157 and has since been cited with approval in relation to another judicial review proceeding arising out of the Canadian Forces grievance resolution provisions: Leading Seaman D.M. Morphy v Canada (Attorney General)[2008] F.C.J. No. 242; 2008 FC 190 at [63]. The observation Layden-Stevenson J made has like application for like reasons in the present case in relation to whether CPL Millar is suitable to be an enlisted member. In the circumstances of this case, the person to be "satisfied" or not on this subject was a senior military officer, not a judicial officer. Deference is called for in relation to the value judgement made by that military officer.
75 The following observation of Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-6 is no less pertinent in this case than in other judicial review cases:
The essential warrant for judicial intervention is the declaration and enforcing of the law affecting the extent and exercise of power: that is the characteristic duty of the judicature as the third branch of government … [T]he duty extends to judicial review of administrative action alleged to go beyond the power conferred by statute or by the prerogative or alleged to be otherwise in disconformity with the law. The duty and the jurisdiction of the courts are expressed in the memorable words of Marshall CJ in Marbury v Madison:
"It is, emphatically, the province and duty of the judicial department to say what the law is."
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
(footnote reference omitted)
Like other officers of the Commonwealth, the decisions of the Chief of Army and his delegates are amenable to judicial review either by the High Court by constitutional writ under s 75(v) of the Constitution or in such other courts as the Parliament invests with federal jurisdiction judicially to review their decisions, but only for error of law.
76 There is nothing inherently illogical or unreasonable about the opinion as to CPL Millar's suitability to which BRIG Bornholt came. Twice before she had been considered for discharge on the basis of unsuitability but a choice had been made as between competing assessments not to discharge her. As a result of her performance on operational service two psychologists, MAJ Hadfield (provisionally) and CAPT Brown formed the opinion that CPL Millar was not suited to be a soldier. Assisted by their opinions and looking at the whole of her service history, BRIG Bornholt was entitled to form the opinion he did as to her unsuitability. In so doing, he was entitled to and self evidently did take into account the views of Mr Zemaitis. It is just that he chose not to accept the latter's views.
77 BRIG Bornholt was also entitled to form a view, based on a comparison of the reports of the Army psychologists and Mr Zemaitis prepared for him by staff and adopted by him that one reason for the differing views may have been that Mr Zemaitis did not have access to CPL Millar's full psychological file.
78 There is nothing on the face of BRIG Bornholt's reasons which suggests that CPL Millar's complaint has received anything other than sympathetic, dispassionate consideration by a senior officer. Indeed, the question of whether CPL Millar was suited to be a member of Defence Force has received elaborate consideration. Subject to affording her procedural fairness, and to any intrusions mandated by Defence Instructions, it would have been possible to form an opinion as to her lack of suitability even without the benefit of psychologists reports, based on reports from her unit as to her performance on operational service.
79 For these reasons, the challenge to BRIG Borholt's decision must fail. As no separate grounds of challenge were advanced in respect of MAJ Wilkinson's decision, which was wholly consequential upon that of BRIG Bornholt, the challenge to his decision must also fail. The time which that officer fixed for CPL Millar's discharge has now passed. The stay in respect of her discharge will expire upon the determination of the judicial review application. It will be for the Chief of Army or a delegate to fix such fresh discharge date as that officer may be advised.
80 The application is dismissed. I shall hear the parties as to costs.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.