Fisk v Chief of the Defence Force (No 2)

The matter of Fisk v Chief of the Defence Force (No 2) was before the Federal Court of Australia. The applicant, an officer of the Australian Defence Force, challenged the validity of a termination notice issued under regulation 85(2) of the Defence (Personnel) Regulations 2002 (Cth). The applicant contended that the termination notice was invalid because it was issued pursuant to an invalid delegation by the Governor-General. The court was tasked with determining whether the delegation was valid and, if not, whether the termination notice issued under it was invalid.

The central legal issue was whether the delegation made by the Governor-General under section 119 of the Defence Act 1903 (Cth) was valid. The applicant argued that the delegation was invalid as it purported to confer power on the Chief of the Defence Force to delegate the power to issue termination notices to officers, which exceeded the scope of the power permitted by regulation 119. The court needed to examine the principles relevant to the conditions of an instrument of delegation, including whether the delegation complied with the requirements set out in section 119 of the Defence Act 1903 (Cth).

The court held that the delegation was valid and, therefore, the termination notice issued under it was not invalid. The court found that the delegation complied with the conditions set out in section 119 of the Defence Act 1903 (Cth), which allowed for the delegation of the power to issue termination notices to officers. The court also noted that if the delegation had been construed as intended to confer power in excess of that permitted by regulation 119, it could have been read down by section 46(2) of the Acts Interpretation Act or at common law. The application was dismissed, and costs were reserved.

In summary, the Federal Court of Australia dismissed the applicant's challenge to the validity of the termination notice issued under regulation 85(2) of the Defence (Personnel) Regulations 2002 (Cth). The court held that the delegation made by the Governor-General was valid and, therefore, the termination notice issued under it was not invalid. The applicant's application was dismissed, and costs were reserved pending further consideration by the parties.