Burns v Chief of the Defence Force (No 2)

Four members of the Australian Defence Force (ADF) sought judicial review of decisions by the Chief of the Defence Force, or their delegate, to issue notices of early termination of service under regulation 24(1)(c) of the Defence Force Regulations 2016. The applicants' notices of early termination were withdrawn before the judicial review was determined. As a result, there was no occasion for the exercise by the Court of its powers under the Administrative Decisions (Judicial Review) Act 1977. Both parties promoted orders for the applications to be dismissed and for the respondent to pay costs. This was the second occasion on which the notices had been withdrawn. The Court observed that the ADF had twice miscarried in the exercise of the early termination power under regulation 24(1)(c). This was possibly indicative of systemic difficulties within the ADF in administering the early termination power according to law.

The Court considered whether it should refer the papers to the Inspector-General of the Australian Defence Force for consideration of an inquiry under section 110C of the Defence Act 1903. The Court had the power to make such a referral under section 23 of the Federal Court of Australia Act 1976. The Court ordered that the case be brought to the attention of the Inspector-General of the Australian Defence Force.

The Court dismissed the applications and ordered that the documents on the court file be referred to the Inspector-General of the Australian Defence Force together with the order and reasons for judgment. The Registrar may provide a copy of the USB containing video footage separately lodged with the court, if requested by the Inspector-General of the Australian Defence Force. The respondent was ordered to pay the applicants' costs of the proceedings, including reserved costs, to be fixed in a lump sum by a Registrar if not agreed. Liberty to apply was reserved to each of the parties in relation to any restrictions, if any, with respect to the referral to the Inspector-General of the Australian Defence Force, as ought to be made in relation to particular contents of filed documents.