Fulton v Chief of Defence Force

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FEDERAL COURT OF AUSTRALIA

Fulton v Chief of Defence Force [2023] FCAFC 134

Appeal from: Fulton v Chief of the Defence Force (2022) 178 ALD 184
File number: QUD 12 of 2023
Judgment of: LOGAN, SARAH C DERRINGTON, STEWART JJ
Date of judgment: 18 August 2023
Catchwords:

DEFENCE AND WAR – appeal from dismissal of application for review of decision by delegate of Chief of Defence Force to terminate service with Defence Force – officer’s retention considered not to be in the interests of the Defence Force – whether delegate required to take into account annual personal performance reports – whether a mandatory relevant consideration within statutory context of Defence Regulation 2016

ADMINISTRATIVE LAW – appeal from dismissal of application for review of decision by delegate of Chief of Defence Force to terminate service with Defence Force – whether delegate failed to take into account a mandatory relevant consideration or a clearly articulated claim being 18 years of personal performance reports – whether delegate took into account an irrelevant consideration being a non-recorded conviction for a traffic offence

ADMINISTRATIVE LAW – procedural fairness – appeal from dismissal of application for review of decision by delegate of Chief of Defence Force to terminate service with Defence Force – whether despite being given 21 extra days to respond to termination notice appellant was denied procedural fairness

STATUTES – interpretation – general approaches to interpretation – whether s 12(3) of the Penalties and Sentences Act 1992 (Qld) operates in manner contemplated by s 85ZV(3) and s 85ZW of the Crimes Act 1914 (Cth) – whether s 5 of the Criminal Law (Rehabilitation of Offenders Act) 1986 (Qld) operated to relieve the appellant from being required to disclose a conviction that was not recorded – whether an “inquiry” was being conducted pursuant to the Defence Act 1903 (Cth)

Legislation:

Constitution ss 51, 61, 68, 75

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 16

Airforce Act 1923 (Cth)

Crimes Act 1914 (Cth) ss 85ZL, 85ZM, 85ZR, 85ZW, 85ZV, 85ZZH, Pt VIIC

Defence Act 1903 (Cth) ss 4, 8, 9, 9A (repealed), 11, 12, 17, 110C, 124

Defence Force Discipline Act 1982 (Cth) ss 35A, 60

Defence Legislation Amendment (First Principles) Act 2015 (Cth)

Evidence Act 1995 (Cth) s 140

Federal Court of Australia Act 1976 (Cth) s 24

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) s 501CA

Naval Defence Act 1910 (Cth)

Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) ss 3, 5

Penalties and Sentences Act 1992 (Qld) s 12

Youth Justice Act 1992 (Qld) s 184

Act of Settlement 1700 (Eng)

Bill of Rights 1688 (OS) (Eng)

Militia Act 1661 (Eng)

Mutiny Act 1688 (OS) (Eng)

Roman Catholic Relief Act 1829 (UK)

Crimes Regulations 2019 (Cth) reg 21

Defence Force Regulations 1952

Defence Regulation 2016 (Cth) regs 5 6, 24, 30

Defence (Personnel) Regulations 2002 (Cth) reg 87

Defence (Prohibited Words and Letters) Regulations 1957

Explanatory Statement to the Defence Regulation 2016

Explanatory Memorandum to the Defence Legislation…

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Details
Case
[2023] FCAFC 134
Decision Date

CaseChat Overview and Summary

Fulton appealed against the dismissal of an application for review of the decision by a delegate of the Chief of Defence Force to terminate his service with the Defence Force. The delegate's decision was based on a finding that the appellant's retention was not in the interests of the Defence Force. The primary issue for the court was whether the delegate was required to take into account the appellant's annual personal performance reports and if the delegate took into account an irrelevant consideration being a non-recorded conviction for a traffic offence. The court also considered whether the appellant was denied procedural fairness due to being given only 21 extra days to respond to the termination notice. Additionally, the court examined the interpretation of certain sections of the Penalties and Sentences Act 1992 (Qld) and the Crimes Act 1914 (Cth) in relation to the appellant's unrecorded conviction.

The court found that the delegate was not required to consider the appellant's performance reports as mandatory relevant considerations within the statutory context of the Defence Regulation 2016. The court held that the delegate did not take into account an irrelevant consideration being a non-recorded conviction for a traffic offence, as the delegate considered the fact that the appellant appeared in court charged with a criminal offence, and the fact that the appellant had failed to notify his commanding officer that he had been so charged and was to appear in court. The court also found that the appellant was not denied procedural fairness despite being given only 21 extra days to respond to the termination notice. The court dismissed the appeal and ordered that the appellant pay the respondent's costs to be assessed if not agreed.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs to be assessed if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

With reference to this paragraph of FLTLT Fulton’s response, WGCDR Nelson stated in his reasons:You raise concerns regarding the weighing of evidence within your TN. You state that ‘conditional probability’ and ‘un-contextual evidence … hold little weight against recent reporting history of successful performance’. As you have not attached nor pointed me in the direction of any evidence of the reporting history to which you refer, I am unable to consider this; however I am satisfied that the evidence which I have been able to consider, informs an assessment and conclusion of poor performance and justifies the termination of your service.[emphasis added] The words emphasised in both the response to the termination notice and in the reasons gave rise to what proved to be multi-faceted grounds of appellate challenge. Ground 1 of the notice of appeal was expressed in this way:1The primary judge erred in holding that the delegate complied with his duty to consider the Appellant’s service history in circumstances where:(a)the delegate failed to consider the Appellant’s Personnel Performance Reports (PPR);(b)those reports were available to be considered by the delegate;(c)the Appellant raised his service history and the PPR’s in his response to the Termination Notice; and(d)the PPR’s are the primary tool for assessment of career management in the Air Force. As so expressed, FLTLT Fulton did not expressly allege error on the part of the primary judge in failing to conclude that WGCDR Nelson denied him procedural fairness or further or alternatively, had, constructively, failed to perform the delegated function of deciding whether to exercise the power of early termination, because he had failed to consider the PPR mentioned in the response to the termination notice. However, in her comprehensively expressed reasons for judgment, the learned primary judge (at [117] – [119]) expressly identified how such an error might arise and concluded that there was no such error. In the course of his developing oral submissions concerning ground 1, it was put to senior counsel for FLTLT Fulton that the way these were being developed suggested an assertion of just such errors, particularly in light of Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 (Dranichnikov). This being acknowledged on behalf of FLTLT Fulton, senior counsel for the CDF accepted that treating ground 1 as embracing an allegation of such alleged errors would occasion no embarrassment to the CDF. Indeed, he highlighted to the Court that the primary judge had addressed the subject. In these circumstances, it is in the interests of justice to grant FLTLT Fulton such leave as may be necessary to advance these alleged errors. In a passage with which I respectfully agree in terms of principle, the primary judge stated (at [117] – [118]):117If the applicant had made clearly articulated, substantial arguments to the delegate against termination based on his performance reports, those submissions would have had to be considered (although that is not to say that the contents of the reports themselves would have become relevant considerations or that the delegate would have had to accept their relevance): see, eg, Plaintiff M61/2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at [90] (the Court). This would have required the decision-maker to consider the representations in the sense explained by Kiefel J (as her Honour then was) in Tickner v Chapman (1995) 57 FCR 452; [1995] FCA 987 at 495, and within the bounds of rationality and reasonableness. As Kiefel CJ, Keane, Gordon and Steward JJ recently explained in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 at [24]:Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by [an applicant].(Citations omitted.)118 Moreover, as their Honours also explained in Plaintiff M1 at [25]:What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated and which do not clearly arise on the materials before them.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

No error has been established. Ground 2 must be dismissed.DID THE DELEGATE TAKE INTO ACCOUNT AN IRRELEVANT CONSIDERATION? The appellant contended that the primary judge erred in holding that the delegate did not take into account an irrelevant consideration, being a “spent” conviction. By this ground, the appellant relies on s 85ZV(3) of the Crimes Act 1914 (Cth) to contend that, by virtue of s 5 of the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) and s 12(3) of the Penalties and Sentences Act 1992 (Qld) (PSA), the decision-maker was prohibited from taking into account the appellant’s “non-recorded conviction” for driving whilst unlicensed. The impeached portion of the TD is at paragraph 22(l)-(m):Reliance on non-recorded convictionl.You state that the TN relied upon a traffic offence, however “the Magistrate did not record a conviction” in relation to this offence. You then state that one reason for deciding not to record a conviction may be to avoid harm in relation to a person’s employment and wellbeing. You claim that avoiding “further interference with [your] employment” was the reason the Magistrate decided not to record a conviction in your case. However, you have not provided me with any evidence to support this claim. Your appearance in court for a traffic offence is relevant to my decision and I consider it appropriate that the Initiating Authority included it in their notice.m.You appeared in a civilian court and the magistrate may not have imposed a conviction upon you however, they also did not prevent your current employer, being Defence, from considering your appearance in court. Defence has a reputation to protect and members are obliged to inform their chain of command when they come to the adverse notice of civilian police. I am satisfied that coming to the adverse attention of civilian police is below the expected standard of an Air Force member and Officer. Furthermore, as detailed in your TN I found your failure to notify your CO to be well below the standard expected of an officer of your rank and experience. It also created an unacceptable risk to Defence’s reputation, whereby, if you appeared in court and Defence found itself in a situation where it was not prepared for any public or media response pursuant to that appearance, if your appearance and your Defence employment were linked together. I have concluded that it is appropriate that I take all of this information into account regarding whether or not your service is in the interests of Defence.(Emphasis added.) The primary judge held, at [93], that these paragraphs make clear that the delegate did not take into account the “fact of the conviction”. Rather, the delegate had regard only to the fact that the appellant appeared in court charged with a criminal offence, and the fact that the appellant had failed to notify his commanding officer that he had been so charged and was to appear in court. Both of these facts were relevant to the delegate’s consideration of the appellant’s behaviour and the risks to the reputation of the Defence Force. The heading, which might suggest the contrary, simply mirrors the heading used by the appellant in his response to the TN and does not colour the content of paragraphs 22(l)-(m) when read in context. To the extent that the appellant contends that the delegate took into account a spent conviction, the contention is misconceived.