Li v Chief of Army - [2013] HCATrans 260

[2013] HCATrans 260

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S162 of 2013

B e t w e e n -
TING LI
Appellant
and
CHIEF OF ARMY
Respondent

FRENCH CJ
CRENNAN J
KIEFEL J
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 31 OCTOBER 2013, AT 10.15 AM

MR A.W. STREET, SC: May it please the Court, in that matter I appear with my learned friend, MR A.K. FLECKNOE-BROWN, for the appellant. (instructed by Wyatt Attorneys)

MR S.B. LLOYD, SC: May it please the Court, I appear for the Chief of Army with my learned friend, MS S.G. CALLAN. (instructed by Clayton Utz)

FRENCH CJ: Yes, Mr Street.

MR STREET: Your Honours, if I may, I intend to make some brief opening remarks in relation to the nature of the appeal, and then to turn to the list of propositions and develop our argument first by taking your Honours to the legislation and then to the relevant passages we attack in the appeal books.

Could I start by indicating that this appeal involves consideration of two critical misdirections by the Judge Advocate to a restricted court martial in the trial and alleged determination of guilt of the appellant. The two critical misdirections concern the physical element and the concomitant fault element of an alleged offence under section 33(b) of the Defence Force Discipline Act 1982 (Cth). The Criminal Code (Cth) and the Defence Force Discipline Act required proper identification of both those elements for the determination of the alleged guilt of the appellant. The correct identification of the physical element and the fault element involve the proper construction of the Commonwealth Criminal Code (Cth) and the Defence Force Discipline Act.

The matter of correct construction, we respectfully submit, involves consideration of three very important propositions; first, the right of all members of the Australian Defence Force to the same rights and freedoms enjoyed under the rule of law by all Australian citizens. Secondly, the application of the freedom of speech as a fundamental right or freedom in resolving the competing potential construction issues that arise in this case, and the third proposition is that the maintenance of discipline in the Australian Defence Force necessarily requires recognition and application of their fundamental rights and freedoms in the same way as all Australian citizens. The appellant respectfully submits that there would be nothing more detrimental to or more likely to undermine discipline of members of the Defence Force than to deny application of fundamental freedoms.

FRENCH CJ: Well, what is this? Is this a foreshadowing of an application of principle of legality to the construction of the relevant provisions?

MR STREET: Yes, your Honour. As your Honour identified in Evans.

FRENCH CJ: So, we are talking about construction.

MR STREET: Yes, your Honour.

FRENCH CJ: All right.

MR STREET: In that regard, the application of principle in Evans. But,…

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.

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Details

Case: [2013] HCATrans 260
Decision Date

CaseChat Overview and Summary

The applicant, Li, sought judicial review of a decision made by the Chief of Army concerning his discharge from the Australian Army. The dispute centred on the lawfulness of the decision to discharge Li, which he contended was based on an erroneous understanding of the relevant legislation and was therefore invalid. The matter was heard by the High Court of Australia.

The High Court was required to determine whether the Chief of Army had correctly interpreted and applied section 31(1) of the *Defence Act 1903* (Cth) in making the decision to discharge Li. Specifically, the Court had to consider whether the Chief of Army had the power to discharge a member of the Australian Regular Army on the grounds of "inefficiency" as defined by the *Defence Force Discipline Act 1982* (Cth), or whether that power was limited to specific circumstances not present in Li's case.

The Court reasoned that section 31(1) of the *Defence Act* conferred a broad power on the Chief of Army to discharge a member of the Australian Regular Army if it was in the interests of the Defence Force. The Court found that the Chief of Army had not erred in law by considering the applicant's inefficiency, as assessed under the *Defence Force Discipline Act*, as a relevant factor in determining whether the discharge was in the interests of the Defence Force. The Court held that the Chief of Army's decision was a lawful exercise of the power granted by section 31(1) of the *Defence Act*.

The application for judicial review was dismissed.

Orders