Legal Research
Cases
Herbert v Chief of Air Force

Herbert v Chief of Air Force

Link copied

Case Copied 27 April 2018 66 min read

Contents

On this page

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
Herbert v Chief of Air Force [2018] ADFDAT 1

Appeal from: Defence Force Magistrate

File number: DFDAT 3 of 2017

Members: TRACEY (PRESIDENT), HILEY AND GARDE (MEMBERS) JJ

Date of decision: 27 April 2018

Catchwords: DEFENCE – appeal from a decision of a Defence Force Magistrate (“DFM”) – where the DFM found the appellant guilty of one count of obtaining a financial advantage contrary to s 61(3) of the Defence Force Discipline Act 1982 (Cth) and s 135.2(1) of the Criminal Code (Cth) by way of an overpayment of rental allowance knowing or believing that he was not eligible to receive that advantage – where the appellant failed to advise Defence Housing Australia in accordance with cl 1.5.2(4) of the Defence Determination 2005/15 (“the Determination”) that he was sharing a residence with his partner – whether the DFM misconstrued the status of the Determination – whether the Determination is a “law of the Commonwealth” for the purposes of s 4.3 of the Criminal Code (Cth) – whether the duty to notify of a change in circumstances is of a legislative or administrative character – whether the DFM erred by addressing the offence as if it were a strict liability offence – whether the DFM erred by misconstruing the evidence and rejecting the appellant’s evidence

Legislation:
Acts and Instruments (Framework Reform) Act 2015 (Cth) Sch 1 Pt 5 items 117 and 119, Sch 1 Pt 7 item 179

Acts Interpretation Act 1901 (Cth) Pt XII, s 46B

Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (Cth) Sch 1 item 1

Criminal Code Act 1995 (Cth) Sch 1 (“Criminal Code”) ss 4.1, 4.3(b), 4.3, 5.2, 5.2(1), 5.3, 5.6(1), 135, 135.2(1), 135.2(1)(a), 135.2(1A)

Defence Act 1903 (Cth) ss 58B, 58B(1), 58B(1A), 58B(1B), 58B(3), 58B(4), 58B(5), 58B(8), 58C, 58E, Pt IIIA Div 1

Defence Force Discipline Act 1982 (Cth) s 61(3)

Defence Force Discipline Appeals Act 1955 (Cth) s 20(1)

Defence Force Regulations 1952 (Cth) reg 72A

Defence Legislation Amendment Act (No. 1) 2010 (Cth) s 2(1), Sch 3 Pt 1 item 2, Sch 3 Pt 2 item 5

Financial Management and Accountability Act 1997 (Cth) s 44

Legislation Act 2003 (Cth) ss 8(2), 42

Legislative Instruments (Transitional Provisions and Consequential Amendments) Act 2003 (Cth) s 4(4), Sch 1 item 7

Legislative Instruments Act 2003 (Cth) ss 3, 7, 7(1), 7(1)(a)

Public Governance, Accountability and Performance Act 2013 (Cth) s 5(c)(iii)

Cases cited:
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41

Applied Medical Australia Pty Ltd v Minister for Health (2016) 246 FCR 555; [2016] FCA 35

Baker v Chief of Army (2017) 319 FLR 62; [2017] ADFDAT 3

Central Queensland Law Council Aboriginal Corporation v Attorney General of the Commonwealth (2002) 116 FCR 390; [2002] FCA 58

Commonwealth v Grunseit (1943) 67 CLR 58

Director of Public Prosecutions (Cth) v Poniatowska (2011) 244 CLR 408; [2011] HCA…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Herbert v Chief of Air Force and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] ADFDAT 1
Decision Date: 27 April 2018

CaseChat Overview and Summary

The appellant, Herbert, appealed against a decision of a Defence Force Magistrate who found him guilty of obtaining a financial advantage by receiving an overpayment of rental allowance, contrary to section 61(3) of the Defence Force Discipline Act 1982 (Cth) and section 135.2(1) of the Criminal Code (Cth). The issue arose from Herbert's failure to inform Defence Housing Australia that he was sharing a residence with his partner, in contravention of clause 1.5.2(4) of the Defence Determination 2005/15. The court had to determine whether the Defence Force Magistrate misconstrued the status of the Determination, whether the Determination constituted a "law of the Commonwealth" under section 4.3 of the Criminal Code, and whether the duty to notify Defence Housing Australia of a change in circumstances was of a legislative or administrative nature. Additionally, the court assessed whether the Defence Force Magistrate erred by treating the offence as one of strict liability and whether the magistrate misconstrued the evidence by rejecting Herbert's testimony.

The court held that the Defence Force Magistrate did not misconstrue the status of the Determination, which was indeed a legislative instrument and a "law of the Commonwealth" for the purposes of section 4.3 of the Criminal Code. The duty to notify Defence Housing Australia of a change in circumstances was of a legislative character. The court also held that the Defence Force Magistrate did not err by treating the offence as one of strict liability, as the relevant provisions of the Defence Force Discipline Act and the Criminal Code did not require proof of mens rea. Finally, the court found no error in the Defence Force Magistrate's rejection of Herbert's evidence, as it was satisfied that the magistrate's findings were supported by the evidence.

Herbert's appeal was dismissed. The court upheld the Defence Force Magistrate's decision, finding no grounds for overturning the conviction. The final orders of the court were that Herbert's appeal be dismissed, and the original conviction and sentence be confirmed.

Orders