Laurence v Chief of Navy

[2004] FCA 1535

FEDERAL COURT OF AUSTRALIA

Laurence v Chief of Navy [2004] FCA 1535

ADMINISTRATIVE LAW – Revocability of decision to grant an application by a serving member of the Defence Force to resign – Whether s 33(3) of the Acts Interpretation Act 1901 (Cth) (as applied to delegated legislation by s 46(1)(a) of that Act) enables revocation.

Acts Interpretation Act 1901 (Cth) ss 33(3), 46(1)(a)
Defence (Personnel) Regulations 2002 (Cth) regs 95, 98

Heslehurst v Government of New Zealand 117 FCR 104
Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (New South Wales) [1978] 1 ALD 167

PAUL ARTHUR WALLACE LAURENCE v CHIEF OF NAVY
NSD 1665 of 2004

WILCOX J
19 NOVEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1665 of 2004

BETWEEN:	PAUL ARTHUR WALLACE LAURENCE APPLICANT
AND:	CHIEF OF NAVY RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	19 NOVEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The following separate question of law be answered in the negative:

‘Whether, having regard to all relevant legislation, including relevant regulations, a delegate of the Chief of Navy has power to revoke a decision of another delegate to grant an application, by a serving member of the Defence Force, to resign from that Force’.

2.The further hearing of the matter be stood over in order to allow the parties time to consider the consequences of that answer.

3.The costs relating to the separate question be reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1665 of 2004

BETWEEN:	PAUL ARTHUR WALLACE LAURENCE APPLICANT
AND:	CHIEF OF NAVY RESPONDENT

JUDGE:	WILCOX J
DATE:	19 NOVEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This matter came before me for directions on 17 November 2004.  The matter was put into the list for directions on an urgent basis, at the request of the applicant.  It appeared there was a problem in the whole matter being heard within a short space of time.  However, the parties thought it might be helpful to them if one question of law, that had arisen between them, was promptly dealt with by the Court. 

2. Accordingly, I directed that the matter be listed for hearing on the following day – yesterday, 18 November 2004 – for the hearing and determination of the following separate question of law:

   ‘Whether, having regard to all relevant legislation, including relevant regulations, a delegate of the Chief of Navy has power to revoke a decision of another delegate to grant an application, by a serving member of the Defence Force, to resign from that Force’.

3. In order to explain the question, it is necessary for me to refer to the Defence (Personnel) Regulations 2002 (Cth), as amended by the Defence (Personnel) Amendment Regulations 2002 (No 1) (Cth) (‘the Regulations’).

4. Chapter 9 of the Regulations deals with completion of members’ service obligations. Division 3 of Part 3 of Chapter 9 deals with voluntary termination of service by enlisted members of the Defence Force. The applicant is an enlisted member of the Defence Force, serving in the Royal Australian Navy (‘the Navy’).

5. Regulation 95(1) provides that:

   ‘An enlisted member may apply to the Chief of the enlisted member’s Service to resign from the Defence Force.’

6. Subregulation (2) sets out certain requirements regarding an application to resign.  They are not in issue at the moment.  Subregulation (3) states:

   ‘The Chief of the enlisted member’s Service must:

   (a)  refuse the application in accordance with regulation 97; or

   (b)  grant the application under regulation 98.’

7. Regulation 97 deals with refusal.  It is not suggested that its terms are material to the present question. 

8. Regulation 98 provides as follows:

   ‘(1)If:

   (a)an enlisted member applies under regulation 95 to resign from the Defence Force; and

   (b)the application is not refused under regulation 97;

   the Chief of the enlisted member’s Service must grant the application.

   (2)If the Chief of the enlisted member’s Service considers that the application should be refused until the enlisted member has complied with a condition, the Chief:

   (a)must specify the condition; and

   (b)must not grant the application until:

   (i)the enlisted member has complied with the condition; or

   (ii)the Chief considers that it is no longer necessary for the enlisted member to comply with the condition.

   (3)The resignation takes effect:

   (a)on the seventh day after the date on which the application is granted; or

   (b)if the Chief specifies another date – on that date.’

9. There appears to be nothing in the Regulations, or in any other legislation that is specific to Defence Force personnel, that authorises revocation of a decision, under reg 98, to grant an application for an enlisted member to resign.

10. Some facts should be shortly stated.  In doing this, I bear in mind that the relevant facts may not all be before the Court. 

11. An affidavit of the applicant, dated 14 November 2004, discloses that, on 9 February 2004, he submitted an application to resign from the Defence Force, pursuant to reg 95(1) of the Regulations. In his affidavit, he stated that the application was approved pursuant to reg 98(1) of the Regulations on 1 March 2004, effective 15 November 2004.

12. The applicant mentioned activities he carried out after 1 March 2004 while on pre-discharge leave.  I am not presently concerned with that material. 

13. The affidavit further reveals that, on or about 29 October 2004, the applicant received a document signed by Captain S P Davies, who is identified as Acting Director General, Navy Personnel and Training. This document recited a decision of Warrant Officer Peter Whitehead, being a delegate of the Chief of Navy, pursuant to reg 98(1) of the Regulations, to grant the applicant's application to resign from the Defence Force with effect from 15 November 2004. The operative part of the document then stated:

    ‘I, Captain Stephen Paul Davies … being a delegate of the Chief of Navy, pursuant to Defence Personnel Regulations 2002 Regulation 98(1) now hereby revoke that grant of your application. 

    I have reconsidered your application to resign from the Defence Force and I refuse your application pursuant to Defence Personnel Regulations 2002 Regulation 97(7) for the reason that your resignation would not be in the interests of the Navy.’  (Original emphasis)

14. It is common ground that the reference by Captain Davies to reg 98(1), as a source of power to revoke, is incorrect. Regulation 98(1) contains no power to revoke. However, it is argued by Mr Andras Markus, the solicitor for the respondent, that Captain Davies had power to revoke Warrant Officer Whitehead’s decision because of s 33(3) of the Acts Interpretation Act 1901 (Cth) (‘the Act’), as applied to delegated legislation by s 46(1)(a) of the Act.

15. Section 33(3) of the Act reads as follows:

    ‘Where an Act confers a power to make, grant or issue any instrument (including rules, regulations or by-laws) the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend or vary any such instrument.’

16. Section 46(1)(a) of the Act provides that, where an Act confers upon any authority power to make any instrument (including regulations), then, unless the contrary intention appears, ‘this Act shall apply to any instrument so made … as if it were an Act’.

17. The question before the Court is whether the decision by Warrant Officer Whitehead can be said to be an exercise of ‘a power to make, grant or issue any instrument’. 

18. Mr Markus submits that s 33(3) of the Act is not limited to legislative instruments; it also includes instruments of an executive nature. He submits it would have been within the contemplation of the persons who drafted the Regulations that a decision under reg 98 would be manifested in writing; consequently, the exercise of power under that regulation should be seen as an exercise of power to make, grant or issue any instrument.

19. The issue whether s 33(3) is limited to legislative instruments was considered, in some detail, in Heslehurst v Government of New Zealand 117 FCR 104. Emmett J there referred to many decisions concerning the scope of s 33(3). He noted cases that suggested the subsection was confined to legislative instruments. However, he also noted a contrary decision of Brennan J, when President of the Administrative Appeals Tribunal, in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (New South Wales) [1978] 1 ALD 167 (‘Brian Lawlor’).  Brennan J’s view has been adopted in a number of subsequent cases in this Court.  Therefore, it is prudent for me to approach the present question upon the basis that this is the correct view, notwithstanding the contrary decisions.

20. However, that still leaves the question whether the power conferred by reg 98 should be regarded as a ‘power to make, grant or issue any instrument’ or simply a power to make a decision. 

21. In Brian Lawlor, Brennan J was concerned with a power to issue a licence.  Exercise of that power involved production of a document having legal effect.  In that situation, it is not surprising that Brennan J was prepared to regard the document as an ‘instrument’.  In the present case, the effect of an exercise of power under reg 98 is merely that the resignation of the enlisted member takes effect; after seven days, or on a later, specified, date.  No doubt the drafter of the regulation assumed the delegate’s decision would ordinarily be recorded in writing.  However, I see a conceptual distinction between a power to issue an instrument, which itself has an operative legal effect, and a power to make a statutory decision which is immediately operative but, in the interests of good administration, is thereafter recorded in writing.

22. It may be assumed that almost every exercise of a statutory power to make a decision will be recorded in writing. Accordingly, on Mr Markus’ argument, s 33(3) would apply to almost every statutory decision. It seems unlikely that Parliament would have intended, in an indirect way, to make almost every statutory discretion subject to the possibility of revocation or amendment at any time.

23. I note that subs (1) of s 33 of the Act refers to a situation where an Act ‘confers a power or imposes a duty’. The concept underlying that subsection contrasts with the concept which underlies subs (3). The power conferred on a delegate by reg 98 is a power of the type mentioned in s 33(1), not s 33(3).

24. I answer the separate question in the negative.  

25. I will stand over the further hearing of the matter in order to allow the parties time to consider the consequences of that answer.  I reserve the costs of the separate question.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             30 November 2004

Counsel for the Applicant:	Mr P W Kerr
Solicitor for the Applicant:	Wyatt Attorneys
Solicitor for the Respondent:	Mr A Markus, Australian Government Solicitor
Date of Hearing:	19 November 2004
Date of Judgment:	19 November 2004