Bromet v Oddie [2002] FCA 1148 (16 September 2002)

Last Updated: 17 September 2002

FEDERAL COURT OF AUSTRALIA

Bromet v Oddie [2002] FCA 1148

ADMINISTRATIVE LAW - Failure to comply with Defence Instructions - effect on validity of subsequent decision - requirement to provide a psychologist's report - whether an indispensable requirement or merely an administrative procedure - the subject matter of the report a relevant consideration.

ADMINISTRATIVE LAW - Armed forces - power to suspend from flying duties - express power in Defence Instructions - exercise not justified by those Instructions - justified by general power of command.

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Judiciary Act 1903 (Cth), s 39B

Defence Act 1903 (Cth), s 9(2), s 9(3), s 9(4), s 9A

Defence Force Discipline Act 1982 (Cth), s 3(1), s 29(1), s 98, s 99

Defence Force Regulations Part XV, 75(1)

Defence Instructions (General) PERS 34-1, cl 1, cl 13

Defence Instructions (Air Force) PERS 4-19, cl 5, cl 12, cl 18, cl 19, cl 20, Annex B,

Annex D

Defence Instructions (Air Force) ADMIN 6-1, cl 16

The Commonwealth v Welsh [1947] HCA 14; (1947) 74 CLR 245 referred to

Marks v The Commonwealth [1964] HCA 45; (1964) 111 CLR 549 referred to

The Commonwealth v Quince [1944] HCA 1; (1944) 68 CLR 227 referred to

Anderson v Sullivan (1997) 78 FCR 380 applied

McManus v Scott-Charlton (1996) 70 FCR 16 referred to

Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409 referred to

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 applied

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 referred to

FLIGHT LIEUTENANT MARCUS ROBERT DAVID BROMET v GROUP CAPTAIN STEPHEN JOHN ODDIE, WING COMMANDER DIANE JENSEN, AIR MARSHAL ALLAN GRANT HOUSTON

A3 of 2002

FLIGHT LIEUTENANT MARCUS ROBERT DAVID BROMET v GROUP CAPTAIN I J MEYN

A16 of 2002

FINN J

16 SEPTEMBER 2002

CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A3 OF 2002

BETWEEN:	FLIGHT LIEUTENANT MARCUS ROBERT DAVID BROMET APPLICANT
AND:	GROUP CAPTAIN STEPHEN JOHN ODDIE FIRST RESPONDENT WING COMMANDER DIANE JENSEN SECOND RESPONDENT AIR MARSHAL ALLAN GRANT HOUSTON THIRD RESPONDENT
JUDGE:	FINN J
DATE OF ORDER:	16 SEPTEMBER 2002
WHERE MADE:	CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A16 OF 2002

BETWEEN:	FLIGHT LIEUTENANT MARCUS ROBERT DAVID BROMET APPLICANT
AND:	GROUP CAPTAIN I J MEYN in his capacity as Director of Personnel Officers - Air Force RESPONDENT
JUDGE:	FINN J
DATE OF ORDER:	16 SEPTEMBER 2002
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

Applications A3 of 2002 and A16 of 2002 be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A3 OF 2002

BETWEEN:	FLIGHT LIEUTENANT MARCUS ROBERT DAVID BROMET APPLICANT
AND:	GROUP CAPTAIN STEPHEN JOHN ODDIE FIRST RESPONDENT WING COMMANDER DIANE JENSEN SECOND RESPONDENT AIR MARSHAL ALLAN GRANT HOUSTON THIRD RESPONDENT

JUDGE:	FINN J
DATE:	16 SEPTEMBER 2002
PLACE:	CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A16 OF 2002

BETWEEN:	FLIGHT LIEUTENANT MARCUS ROBERT DAVID BROMET APPLICANT
AND:	GROUP CAPTAIN I J MEYN in his capacity as Director of Personnel Officers - Air Force RESPONDENT
JUDGE:	FINN J
DATE:	16 SEPTEMBER 2002
WHERE MADE:	CANBERRA

REASONS FOR JUDGMENT

1 The circumstances giving rise to this combined proceeding could give no satisfaction to those charged with the command and administration of the Royal Australian Air Force. They are characterised by delay, error and confusion in the processes leading to the making of the four decisions of which the applicant, Flight Lieutenant Marcus Bromet, complains.

2 Those decisions were:

(i) the decision of the first respondent, Group Captain Stephen Oddie, on 2 November 2000 to suspend the applicant from flying duties, Group Captain Oddie being the Commanding Officer of 36 Squadron and Flight Lieutenant Bromet being a pilot in that Squadron ("the Suspension Decision");

(ii) the decision of either the second respondent, Wing Commander Jensen, or the third respondent, Air Marshall Alan Houston, of 27 November 2001 to take no further action in relation to an application for Redress of Grievance made by the applicant against the Suspension Decision ("the Redress of Grievance Decision");

(iii) the decision of Group Captain Oddie of 4 December 2001 to issue an Unsuitability Report recommending that the applicant be identified as unsuitable for employment in fixed wing tactical air transport ("the Unsuitability Report Recommendation");

(iv) the decision of Group Captain Ian Meyn, the respondent in A16 of 2002, on 20 March 2002 to uphold the Unsuitability Report ("the Unsuitability Report Decision").

3 The challenges to the decisions are made by way of an application for an order for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") and for writs of prohibition and certiorari under the Judiciary Act 1903 (Cth), s 39B. The ADJR Act application was out of time, but the respondents did not oppose the grant of leave for its filing. Neither did they prosecute the objection to competency they raised to some of the decisions for ADJR Act purposes.

4 To understand the nature and purpose of the various decisions challenged, it will be necessary to outline in a little detail both the events which gave rise to the decisions and the legal and administrative setting in which they occurred.

The Factual Background

5 This can be dealt with relatively shortly. In January 1999 Flight Lieutenant Bromet was posted to 36 Squadron to undertake C130H Hercules Aircraft Conversion. In May 2000 he was selected for a C130H Airborne Operations Course. He was awarded a fail grading for the Course and an ABNOPS ("Airborne Operations") Review Board assessed him as not able to achieve the required standard for a Co-pilot in the ABNOPS role.

6 Flight Lieutenant Bromet met with Group Captain Oddie in August 2000. His past and prospective performance were discussed at that meeting and a course of remedial action was proposed. One element in the proposals, to which I need refer because of its significance in this proceeding, was that he attended an interview with a service psychologist. The purpose of that interview was stated in a contemporary record of interview to be:

"to assist you to identify improvements that can assist your further development. The report from that interview will also assist me to decide what further training opportunities should be provided to achieve your development to meet unit expectations."

7 At the end of the interview (as recorded), Group Captain Oddie alerted the applicant to the following:

"If you are unable to achieve in any single segment of remedial training or my assessment of your overall performance on 1 Nov 00 is that your performance remains unsatisfactory for further progression to Cat B ALS Copilot in the immediate term and Cat C ABNOPS Captain in your future employment, I intend to take further administrative action." Emphasis added.

8 The psychologist's report (from Dr Ryder) was provided on 14 August 2000. It outlined (i) Flight Lieutenant Bromet's service background; (ii) a previous interview Dr Ryder had had with him in March 2000; (iii) the subject matter of the immediate interview; and (iv) Dr Ryder's behavioural concerns about the applicant which were discussed with him. It concluded with the observation that, though the Flight Lieutenant was very keen for a flying career in the RAAF, "he will have to make some major changes to his behaviour, if he is to achieve his goal".

9 As he had foreshadowed in the August meeting, Group Captain Oddie reviewed the applicant's achievements in the remedial programme on 1 November 2000. On 2 November 2000, the Suspension Decision was made by the Group Captain. It stated:

"PERFORMANCE REVIEW

1. I have reviewed your performance in accordance with the direction I gave you on 4 Aug 2000 and make the following observations:

a. You have generally achieved the minimum standard in all segments of the remedial training required of you, showing slight improvement in some cases.

b. With continued improvement you would be considered suitable for Category B upgrade training towards the middle of next year.

2. Taking into account the level of resources committed to you during the remedial period, and the limited resources available to assist your future progression, I am not confident that you have the ability to progress to the Category B induction standard within the immediate term. Further, I assess that you are unlikely to progress to Category C ABNOPS copilot, the lowest operationally declarable copilot skill at 36 Squadron, in the time remaining in your tour and within the resources available. The evidence of your flying achievements, subsequent to a previous command tour flying Twin Otters, is that your performance is considerably less than that of your peers, with whom you must compete for resources to reach these objectives.

3. I believe that your flying ability meets the minimum standard for your current category, but your demonstrated low rate of progression does not give you a reliable prospect of future achievement. I am therefore suspending you from flying duties at 36 Squadron immediately and am recommending to DPO that you be considered unsuitable for employment as a pilot on C130H at 36 Squadron.

4. If you choose to accept this decision, administrative action will progress immediately. If you choose to contest the decision, you may forward a rebuttal to me in writing by 16 Nov 00 and administrative action will be postponed until that date. I am seeking advice on your employment pending a final decision on your suitability and will advise you on this at the earliest opportunity."

At the foot of the document the following appeared:

"Acknowledgment of Unsuitability Report by Member:

I have read the Unsuitability Report made by CO36SQN and I have received a copy. I do/do not wish to make a statement in rebuttal of the Unsuitability Report."

The "do not" was crossed out and the acknowledgement was signed by the applicant.

10 The above "acknowledgement" was the first cause of confusion in the sequence of events that followed. To anticipate matters, the performance review document was not an Unsuitability Report, though it was the herald of the Report made by the Group Captain thirteen months later.

11 Flight Lieutenant Bromet made his statement in rebuttal on 16 November 2000. On 13 February, it was responded to by the Group Captain whose Minute indicated that, after reviewing all relevant information, he intended "continuing with the administrative process that commenced" with the 2 November notification of the Suspension Decision. He went on to require that (i) the applicant have a psychological assessment with Dr Ryder; (ii) he was to take steps (that were specified) that would lead to a decision on whether he would be required to undergo a Special Flying Assessment; and (iii) a request would be made that he be posted to Headquarters Air Lift Group ("HQALG"). The Minute then stated "[o]n completion of these tasks, all administrative action will be finalised". The two passages I have highlighted contained further seeds for confusion as I will later indicate.

12 A detailed written response to the statement in rebuttal was not provided to the applicant until 23 May 2001. The concluding observation in that response was "my decision to progress administration of an unsuitability report on you will remain extant".

13 Several significant events had occurred subsequent to the 13 February Minute and prior to the 23 May 2001 response. On 14 February the applicant submitted an Application for Redress of Grievance ("ROG") to Group Captain Oddie, such an application being provided for in the Defence Instructions (General) to which I will later refer. The "redress" sought was:

"to have the flying suspension that was issued on 02 Nov 00 removed, the period of posting at HQALG continue until Dec 01 to meet the needs of the Service, and a formal recommendation provided by CO36SQN returning me to flying duties NLT 31 Dec 01."

The only other matter in the application to which I need refer is that the applicant asked why the further appointment with Dr Ryder was "now necessary?"

14 On 16 February the applicant was posted to HQALG. On 19 February Group Captain Oddie wrote to the applicant formally acknowledging receipt of the ROG. He indicated that, pending resolution of the ROG, "all administrative action pertaining to your situation has been suspended". The following day he again wrote to the applicant indicating that, for reasons of conflict of interest, his ROG would be dealt with at Wing and not Squadron level. On 13 March Group Captain Plenty of 86 Wing informed the applicant that he would make the determination on the ROG. I would note in passing that the Defence Instructions (General) to which I earlier referred required that ROG's "be finalised without undue delay".

15 Group Captain Plenty's ROG Decision was communicated to Flight Lieutenant Bromet on 26 September 2001. It rejected the application. The only matters to which I need refer in the fourteen page statement of reasons are that (i) Group Captain Plenty considered that Group Captain Oddie had sufficient evidence before him to make the Suspension Decision; (ii) the labelling of the 2 November Suspension Decision document as an "Unsuitability Report" was erroneous but reflected a "statement of intent" to later raise such a Report; (iii) the applicant had experienced apparent (but not deliberate) unfairness, thoughtlessness and a reluctance to act expeditiously in the handling of his complaints; and (iv) if the applicant was not satisfied with the decision he had the right to have his ROG referred to the Chief of Air Force.

16 In response to a Minute of the applicant of 27 September concerning his future employment in the RAAF, the Group Captain indicated (apparently both in conversation on 27 September and then by letter of 15 October 2001) that the ROG related only to the Suspension Decision and that:

"I noted that your suitability for continued employment as an RAAF pilot would be determined after the Commanding Officer had submitted the Unsuitability Report. As you are aware, the lodgement of your Application for Redress of Grievance had placed the progression of the Unsuitability Report by the Commanding Officer in abeyance pending the outcome of your Redress."

17 After further correspondence between the applicant and the Group Captain, the latter indicated by letter of 14 November 2001 that, in consequence of an earlier request by the applicant, he was forwarding the ROG to the Chief of Air Force. I would interpolate that the terms "Chief of Air Staff" and "Chief of Air Force" are used interchangeably in the documentation in this proceeding.

18 On 17 November 2001 Group Captain Oddie wrote to the applicant a letter headed "Suspension From Flying - Administrative Action Closures". That letter stated in part:

"As you are aware, I was considering a number of actions to assist my deliberation in regard to your suspension from flying. These actions consisted of a requirement for further psychological assessment and a flying assessment. Following significant consideration, I have decided that I have sufficient advice to hand and will not be requiring further advice from DR Ryder DAFPS or from CFS in this regard."

I would note in passing that this letter did not link the "further psychological assessment" to the possible raising of an Unsuitability Report.

19 On 30 November 2001 Flight Lieutenant Bromet received from 86 Wing a copy of a Minute of Wing Commander Jensen of 27 November. This Minute evidences what has been called the Redress of Grievance Decision. It stated in part:

"REDRESS OF GRIEVANCE ACKNOWLEDGEMENT - FLTLT M.R.D. BROMET 0134590

References:

A. ...

B. DI(G)PERS 34-1 Redress of Grievance - Tri-Service Procedures

...

2. The unsuitability reporting process employed by Air Force affords members the opportunity to know the case against them through the provision of documents, to sight and comment on, or rebut, the report findings before the report is submitted and to have those comments placed before the decision-maker when the matter is determined. Their right to procedural fairness is therefore protected. For this reason, the expectation of the Agency is that, in the first instance, members will use the opportunities afforded by the normal administrative processes to bring to the attention of the decision-maker any matters concerning the case against them. This includes perceived shortcomings in the processes leading to the raising of the report. In FLTLT Bromet's case this would include the matter of his suspension from flying.

3. Reference B does include provision for the suspension of executive action, where the ROG is against that action. The principle underlying the suspension of proposed executive action is that a determining authority should not take irrevocable action that would prejudice an appropriate remedy, should a member's ROG subsequently be upheld. In FLTLT Bromet's case, his suspension from flying is an integral part of the suspension report process. It is only at the conclusion of this process that executive action will be proposed. It is at this point that the ROG system should be invoked, if FLTLT Bromet is dissatisfied with the outcome. The exception is where a member considers that the administrative process is not being adhered to by management, ie, the member is being denied access to material used in the raising of the report, or an opportunity to respond.

4. For the reasons outlined in the preceding paragraphs, further action on FLTLT Bromet's ROG will be suspended until the unsuitability report process is complete. Accordingly, the unsuitability report should be processed and a decision made on FLTLT Bromet's future. FLTLT Bromet should be encouraged to take advantage of the opportunity afforded by this process to bring to the attention of the decision-maker any concerns he may have about his suspension from flying. Should FLTLT Bromet be dissatisfied with the decision taken on the unsuitability report, he should advise the Agency. He may then revise, or add to, his ROG and the matter will be referred to CAF or his redress delegate for consideration."

20 On the day he received Wing Commander Jensen's Minute, the applicant wrote to her indicating, amongst other things, that he considered to be incorrect the statement (not reproduced above) that "CO 36SQN is in the process of raising an unsuitability report on FLTLT Bromet".

21 Shortly after 30 November Group Captain Plenty directed Group Captain Oddie to proceed with processing of the applicant's Unsuitability Report without undue delay. On 4 December Group Captain Oddie sent a copy of his Unsuitability Report to the applicant. The psychological assessment of Flight Lieutenant Bromet of which it took account was the report of Dr Ryder 14 August 2000. The final paragraphs of the Report were in the following terms:

"Conclusion

21. Since his arrival at 36SQN, FLTLT Bromet's performance level as a C130H copilot has rarely risen above marginally acceptable. Any improvements have been incremental and resulted from intensive periods of training and supervision by my most senior pilots. Once this intensive training has ended, FLTLT Bromet's performance has generally fallen back to a marginally unacceptable level.

22. FLTLT Bromet has been unable to respond to the encouragement and guidance of a range of senior and very capable mentors, instructors and supervisors. Despite his assertions in his rebuttal, FLTLT Bromet has been given significant resources. His failure to progress beyond being an average C Category ALS copilot leads me to conclude that a C130 captaincy, in either [Air Logistic Support] or ABNOPS, is unlikely to be achievable within available resources.

23. Given the current resources available to me, I cannot dedicate additional flying hours to marginal performers. To do so would compromise 36SQNs capability to meet its obligations to the ADF. In previous years there was sufficient excess capacity within the system to absorb under-performing pilots, but in the current and foreseeable operational environment that option does not exist. I must therefore dedicate scarce resources to those pilots who can reach C Category ABNOPS Captain, which is the minimum standard for a pilot at 36SQN if directed capabilities are to be met.

24. Future Employment. FLTLT Bromet has demonstrated qualities that indicate that he has significant difficulties working within a crew environment. Further, he has demonstrated qualities that indicate a substantial inability to interface with the dynamic and chaotic challenge of the tactical environment. On the basis of this demonstrated performance I consider he is unsuitable for employment in multi-crew tactical transport including C130H/J or Caribou. Given personal willingness to change, significant training and the opportunity for employment in a steady, predictable environment supported by personnel with substantive Captaincy skills, I suspect that FLTLT Bromet could progress to become marginally suitable for employment in other aviation environments. However, I remain deeply concerned by his poor [Crew Resource Management] skills and is apparent incapacity to recognise his personal challenges. The potential for FLTLT Bromet to mislead an inexperienced crewmember remains significant.

25. Recommendations. I recommend the following:

a. FLTLT Bromet be identified as unsuitable for employment in fixed wing tactical air transport.

b. Consideration be given to FLTLT Bromet's ongoing viability as a productive Air Force pilot."

22 The Report was forwarded to the Directorate of Personnel Officers - Air Force on 19 December. After receiving recommendations from Wing Commander Willmott, Group Captain Meyn made his decision on the Report confirming the recommendations of Group Captain Oddie. He issued the following direction for further action:

"1. I have issued my determination upholding the recommendations of the Unsuitability Report dated 4 December 2001 that:

a. FLTLT Bromet be identified as unsuitable for employment in fixed wing tactical air transport.

b. Consideration be given to FLTLT Bromet's ongoing viability as a productive Air Force Pilot.

2. In order to give proper effect to paragraph (b) of the recommendation, I direct that:

a. A report be prepared covering FLTLT Bromet's duties and performance in those duties from 2 November 2000 to date be prepared and assessed (sic). The report is to include contemporary appraisal reports by FLTLT's supervisors.

b. FLTLT Bromet be assessed by a psychologist. This assessment is to address FLTLT Bromet's position within the terms of DI(AF) PERS 4-19, and in particular Annex B to DI(AF) PERS 4-19.

c. Options and Recommendations specifically addressing the consideration of FLTLT Bromet's ongoing viability as a productive Air Force pilot be prepared in light of the actions noted in paragraphs a. and b.": emphasis added.

23 I would add that, for reasons which will become apparent below, it is Wing Commander Willmott's evidence that he prepared his recommendation to Group Captain Meyn on the basis that the Report itself had been prepared pursuant to Annexure B of Defence Instruction (Air Force) PERS 4-19.

24 The applicant's ROG was reactivated, apparently, on 3 May 2002 by the Complaint Resolution Agency ("the CRA") when it sought the applicant's advice as to whether he wished to add dissatisfaction with the Unsuitability Report to his ROG. Subject to his so doing the matter would be referred to the Chief of Air Force. This action would seem to have rendered inoperative the Redress of Grievance Decision challenged in this proceeding. The applicant's lawyers wrote to the respondent's lawyers indicating that they had advised him to take no action to provide written advice to the CRA with respect to the ROG. That matter, they said, was best left to the Federal Court.

25 I should add that the CRA was established in 1998 under a joint directive issued by the Chief of the Defence Force and the Secretary of the Department of Defence. Its purpose was to ensure independence in the investigation, review and handling of complaints.

26 By letter of 27 May 2002 the respondents' lawyer indicated to the applicant's solicitors that Group Captain Oddie's 2 November 2000 Suspension Decision was made in the general administration and command of the RAAF and not by reference to any Defence Instruction (on which see below).

Legal and Administrative Setting

27 Part II, Division 1 of the Defence Act 1903 (Cth) ("the Act") makes provision for the command and administration of the Defence Force. Subject to the direction of the Minister, the Chief of the Defence Force (who is an officer of the Force) has command of the Defence Force: s 9(2). Section 9 also makes provision for the appointment of officers to be respectively Chief of Naval Staff, Chief of General Staff and Chief of the Air Staff.

28 Section 9A of the Act provides for the administration of the Defence Force (in contra distinction to "command" of it). Insofar as presently relevant, that section provides:

"9A. (1) Subject to section 8, the Secretary and the Chief of the Defence Force shall jointly have the administration of the Defence Force except with respect to:

(a) matters falling within the command of the Defence Force by the Chief of the Defence Force or the command of an arm of the Defence Force by the chief of staff of that arm of the Defence Force; or

(b) any other matter specified by the Minister.

(2) Instructions issued by or with the authority of the Secretary and the Chief of the Defence Force in pursuance of the powers vested in them jointly by virtue of subsection (1) shall be known as Defence Instructions (General).

(3) The powers vested in the Secretary and the Chief of the Defence Force by virtue of subsection (1) extend to authorizing a chief of staff of an arm of the Defence Force to administer, in accordance with that authority, matters relating to that arm of the Defence Force, and instructions or orders issued or made by or with the authority of a chief of staff in relation to the administration of an arm of the Defence Force shall be known as:

...

(c) in the case of the Air Force - Defence Instructions (Air Force)."

29 Sub-clause 9(4) gives Defence Instructions (General) priority over the cl 9(3) service specific Instructions in case of, and to the extent of, any inconsistency between them.

30 In the present proceeding one set of Defence Instructions (General) ("DI(G)") is of relevance. It is DI(G) PERS 34-1, Redress of Grievance - Tri-Service Procedures. This Instruction provide for the detailed implementation of the Redress of Grievance mechanism created in Part XV of the Defence Force Regulations. It is unnecessary to refer to these Regulations other than to note the following. The Regulations allow a member of the Defence Force to make a complaint to his or her Commanding Officer when that member considers he or she "has a grievance concerning any matter relating to his or her service": reg 75(1). The Regulations make provision (inter alia) for the referral, the investigation and the further referral of complaints. I would note that the referral process can lead ultimately to the complainant being able to have his or her complaint dealt with, for present purposes, by the Chief of the Air Force ("the CAF") and then the Chief of the Defence Force ("the CDF"). Where the complaint is to be referred at a complainant's request to either the CAF or CDF, the Complaint Resolution Agency ("CRA") will review the substance of the complaint and will prepare a brief for consideration and decision by the CAF or CDF.

31 Clause 13 of the Tri-Service Procedures upon which the applicant has placed general reliance provides:

"When a complaint relates to a proposed action, that action is not normally to be taken until the complaint has been resolved. The underlying principle is that approving authorities should not take irrevocable, or pre-emptive, action that would prejudice an appropriate remedy, if a member's complaint were subsequently upheld."

32 The service specific Defence Instruction of present relevance is Defence Instructions (Air Force) PERS 4-19 ("DI(AF) PERS 4-19). The aim of this Instruction is stated to be "to outline the policy relating to the management of unacceptable and unsuitable behaviour in the Air Force". It makes provision for the raising of an "Unsuitability Report", cl 5 of the Instruction stating that:

"Unsuitability Reports (Annex B). To be the subject of an unsuitability report does not reflect discredit on the member concerned, as the problem is identified to be outside the member's control. When the CO is convinced that a member is unsuited to a mustering/specialisation, rank or posting, an Unsuitability Report is to be raised in accordance with Annex B. ... In addition to the general type of Unsuitability Report (ie Mustering/Specialisation, Rank or Posting), the following are particular Unsuitability Reports that may be considered more appropriate:

a. Incompatible With Service Life (Annex C). When a member is unable to meet the demands and stresses of Service life and is genuinely unsuited to the Service environment, a report should be raised by the CO or a standard application may be submitted by the member, to address the unsuitability.

b. Qualified Aircrew Assessed as Below Minimum Acceptable Standard (Annex D). An Unsuitability Report is to be raised when a qualified aircrew member is below the minimum acceptable standard in the performance of their aircrew duties."

33 Because of its significance in the present matter it is necessary to refer in a little detail to Annex B. It provides insofar as presently relevant:

"UNSUITABILITY REPORT - MUSTERING/SPECIALISATION, RANK OR POSTING

1. An Unsuitability Report does not reflect discredit on the member concerned and resolution of the report by Air Force Office will reflect this point.

2. Occasions for Unsuitability Reports. When a member, for reasons beyond their own control, is unable to perform satisfactorily the duties of the posting, rank, mustering or specialisation, a CO is to raise an Unsuitability Report. For example, a member may not possess the Service background or instructional skills demanded by a particular post; or the abilities predicted during selection and training for entry to a specialisation or mustering; or the ability to exercise the responsibilities of a rank. The CO is to be satisfied that the member's low performance is not due to lack of diligence or an unsatisfactory Service attitude, and is to specifically address this aspect in the report.

3. Unsuitability for Mustering/Specialisation. Where the CO is convinced that a member is unsuited to, or inefficient, in their mustering or specialisation, a report on unsuitability for mustering is to be raised, giving detailed reasons for the unsuitability and recommended remuster. The report must be accompanied by a psychologist's report which is to comment on the member's unsuitability in their present mustering or specialisation and assesses the member's suitability for alternative employment. Emphasis added.

...

6. Content of Unsuitability Reports. Unsuitability Reports are to be submitted in official letter format and must contain:

a. a description of the member's duties;

b. the nature of the member's unsuitability and the causes (if known);

c. recommended remedial action; and

d. a psychologist's report."

34 There is no direct explanation given for the requirement of the psychologist's report. Clause 12 of the Instruction deals generally with "Medical and Psychological Reports". It refers to their function in cases of involuntary discharge where both types of reports are required. It explains this need in the following terms:

"It is in the best interests of both the Service and its members to ensure that involuntary discharges are effected under the correct terms of discharge, and where applicable, that entitlements are preserved accordingly. Only by specialist assessment can the presence of medical (physical or psychiatric) illness or psychological aberrations be either detected or discounted, and the appropriate administrative action taken. Accordingly, specialists reports are to advise whether there were, or are, any medical or psychological factors contributing to the behaviour that led to the raising of the report. Reports of this nature are also required when an Unsuitability or Incompatibility Report is raised." Emphasis added.

35 I should interpolate that the issue of psychological reports looms large in this proceeding. No separate report was commissioned for the purpose of Flight Lieutenant Bromet's Unsuitability Report.

36 Annex D, which the applicant contends was relied upon by Group Captain Oddie in making his Unsuitability Report, provides (in part) that:

"1. Initial Action. When a CO considers that a qualified aircrew member is below the minimum acceptable standard in the performance of their aircrew duties and is unlikely to attain an acceptable standard of efficiency notwithstanding such further training as unit resources may permit, an Unsuitability Report or an Adverse Report is to be submitted.

2. The report is to include:

a. a brief resume of the member's flying history;

b. precise details regarding the member's inefficiency;

c. details of the extra training and tuition given to the member;

d. a Central Flying School (CFS) report (if applicable); and

e. a recommendation as to the member's future employment.

3. Recommendations. In recommending the member's future employment, the CO is to consider whether the member should be given an opportunity to demonstrate an acceptable standard of efficiency on another type of aircraft or whether the member would be suitable for transfer to another specialisation or mustering. The CO may suspend the member from flying duties when a report is submitted in accordance with this Instruction.

4. Special Flying Assessment - Pilots. Where the inefficiency of a pilot relates to their basic flying ability, as distinct from their flying ability as an operational pilot, the report is not to be submitted until the member's flying ability has been assessed by CFS."

37 I would note three matters about Annex D. First, in para 1 it refers to "such further training as unit resources may permit". Secondly, this Annex is the only one in the Instruction that makes express reference to suspension from flying duties. Thirdly, in para 4 reference is made to Special Flying Assessment. It will be recalled that when Group Captain Oddie wrote to the applicant on 13 February 2001, he indicated that in continuing the administrative process begun with Flight Lieutenant Bromet's suspension, a decision would need to be taken on whether he would be required to undergo a Special Flying Assessment.

38 Clauses 18-20 of this Instruction deal with the manner in which Unsuitability Reports are to be forwarded to the relevant decision-maker and a decision is to be made on them.

39 Turning to the status of Defence Instructions, I would note the following. First, a member of the Defence Force who does not comply with a lawful Defence Instruction (be it a General or a service specific Defence Instruction) which is applicable to that member is guilty of an offence under s 29(1) of the Defence Force Discipline Act 1982 (Cth): and see s 3(1) "general order". This provision sits unhappily with what now appears to be the Air Force's own perception of the present purpose and content of DI(AF). In DI(AF) ADMIN 6-1 it is stated in cl 16 that:

"Defence Instructions (Air Force). DI(AF) are prescribed by the Defence Act 1903 (Cwlth) and are issued to communicate CAS Instructions for the command of the RAAF. DI(AF) may include mandates, prohibitions, guidance or information. Whereas orders or directives are specific to an event, situation, appointment or person, DI(AF) have wider applicability. They may be expressed as doctrinal, policy, strategic, operational, administrative, implementation or procedural statements. They make subordinate commanders responsible and accountable, and provide the parameters for decisions and actions required to comply with the instructions. Instructions should be focussed on desired outcomes, rather than on procedures or methods used to achieve those outcomes. In some circumstances however, the inclusion of procedural mandates or guidance may be appropriate or desirable. Procedural information should be contained in an Annex or in a separate publication such as an AAP as appropriate ...": emphasis added.

There must be a very serious question today as to whether the provisions of s 29(1) of the Defence Force Discipline Act 1982 are an appropriate sanction for non-compliance with DI(AF) generally. As I will later indicate Group Captain Oddie did not comply with the requirements of Annex B to DI(AF) PERS 4-19.

40 Secondly, in The Commonwealth v Welsh [1947] HCA 14; (1947) 74 CLR 245 at 268, Dixon J observed:

"in considering the meaning and effect of the Air Force Regulations their purpose cannot be neglected, namely to provide rules to govern one of the armed forces of the Crown. The relation to the Crown of members of the armed forces is no new subject; the rules of the common law define it. The regulations are not to be read in disregard of those rules and of the long tradition to which they have contributed."

41 In Marks v The Commonwealth [1964] HCA 45; (1964) 111 CLR 549 at 573 Windeyer J commented of this that while the remarks were directed at statutory regulations they were equally applicable to the Act itself. It goes without saying in my view that they apply as of course to Defence Instructions made under s 9A of the Act.

42 Thirdly, it is not open to doubt that the power of command given by s 9 of the Act to (inter alia) the CDF and the CAS had its origins in constitutional arrangements acknowledged by the common law: see The Commonwealth v Quince [1944] HCA 1; (1944) 68 CLR 227 at 254-255. A clear correlative of it is the obligation of a member of the Defence Force to obey lawful orders given by a superior: ibid; for the analogous position in relation to police and public servants see Anderson v Sullivan (1997) 78 FCR 380 and McManus v Scott-Charlton (1996) 70 FCR 16. It is an offence under s 27(1) of the Defence Force Discipline Act 1982 for a member of the Defence Force to disobey a lawful command.

Submissions and Conclusions

43 There are three substantial issues in this proceeding. The first is whether Group Captain Oddie had power in the circumstances to suspend the applicant from flying duties. The second is whether Group Captain Oddie complied with the requirements of DI(AF) PERS 4-19 when raising the Unsuitability Report on 4 December 2001 and, if he did not, whether that failure would preclude Group Captain Meyn making a decision on it. The third relates to such connection as there may be between the Suspension Decision on the one hand and the Unsuitability Report and Unsuitability Report Decision on the other. If the latter Decision is declared invalid, does the Suspension Decision fall with it?

(1) The Suspension Decision

44 The applicant's principal submission is that Group Captain Oddie intended to suspend the applicant under Annex D to DI(AF) PERS 4-19 and that suspension was ineffective because "no report had been submitted in accordance with [the] Instruction" when the Suspension Decision was made. Further, as Group Captain Oddie had found the Flight Lieutenant had achieved the "minimum standard", Annex D provided no foundation for the Decision.

45 Secondly, it is submitted that DI(AF) PERS 4-19 is a comprehensive document covering all aspects of decision making coming within its purview. Only Annex D made provision for suspension. Annex B did not, hence suspension was not appropriate for an Unsuitability Report under Annex B.

46 The submission for the first respondent is that he had power under his command powers to order the suspension and, whether or not he laboured under a misapprehension as to the power he was exercising, what he did was supported by the command power. He gave a lawful direction (ie command) relating to Flight Lieutenant Bromet's service and in so doing he exercised a power of the very kind he purported to exercise: Anderson v Sullivan, above, at 400.

47 Secondly, it is submitted that there is no justification for giving a code-like operation to DI(AF) PERS 4-19 so as to exclude suspension under the command power. Reliance for this was placed upon both the proper approach to construction of the Act, Regulations and Defence Instructions to which I referred above and to my decision in Anderson v Sullivan, above, where a similar "exclusive code" argument was raised.

48 For my own part I am unable to accept the applicant's contention. I am prepared to assume that Group Captain Oddie thought he was exercising the power to suspend under Annex D - if he directed his mind at all to the question of the actual source of his power. There are, in my view, significant textual and contextual suggestions (relating both to the 2 November 2000 document and to the Unsuitability Report itself) capable of linking what was done to Annex D. Group Captain Oddie did not give evidence.

49 To adapt what I said of a similar state of affairs in Anderson v Sullivan (at 400), if it was the case that the Group Captain mistakenly considered that the "head of power" for his Suspension Decision was Annex D, he intended an immediate suspension and it was and is open to him now to rely upon this command power at common law as his source of power. And again I rely analogically on "the general principle that an act purporting to be done under one statutory power may be supported under another": Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409 at 412. There was nothing in the reasons given for the actual decision, or in the conditions regulating the exercise both of the Annex D power and of the command power respectively, that would make it inappropriate to rely upon the command power to justify the decision.

50 I also reject the applicant's submission as to the code-like quality of DI(AF) PERS 4-19. It clearly does not, and does not purport to, encompass all of the situations in which a member of the RAAF may have a Suspension Decision of some form made in relation to him or her. There are other Defence Instructions, and for that matter statutory provisions: see eg Defence Force Discipline Act 1982 s 98 and s 99; that deal with specific circumstances in which a Suspension Decision may be taken. But even within the particular area of concern of DI(AF) PERS 4-19 it is a most improbable intention to attribute to the CAF that, in issuing the instruction, the common law power was to be so curtailed with the consequences that might have for resource allocation, the proper management of the Air Force, and even safety. It must be recalled that under Annex D the suspension could only be ordered where an Unsuitability or Adverse Report is submitted. Having regard (i) to what appears to be the RAAF's current perception of its service specific Defence Instructions, (ii) to the power the CAF possesses to alter and amend Air Force specific Defence Instructions and (iii) to the rule of construction to which I earlier referred; The Commonwealth v Welsh, above at 268; I do not consider that the language of the Instruction necessitates attributing to it the meaning and effect for which the applicant contends. It provides merely a specific express instance in which suspension is permitted. It does not thereby preclude resort to the command power whenever that power may appropriately be exercised to order a suspension from flying duties.

51 Counsel for the applicant submitted, though increasingly faintly, that reasons were not given for this decision and that there was no pressing reason for it. I was invited in consequence to infer that there was no rational reason for it.

52 The decision may well be said to have been precipitate and harsh - though advance warning of the possibility of it was given months earlier at the August 2000 meeting after the applicant had failed the ABNOPS course. It is impossible, though, to say that there were no reasons given for the decision. The 2 November 2000 document notifying the decision, the statement of rebuttal, the Group Captain's response, and all that went with the ROG and Group Captain Plenty's ROG report could leave little doubt as to the grounds and the rational basis of the suspension. The decision was clearly not unlawful and it related to the applicant's service. I am unable to discern any available ground on which it properly can be impugned in judicial review proceedings.

53 The only question that remains is whether, if the Unsuitability Report Decision is invalid, this decision as a pendent decision also falls away. This is considered below.

54 Before turning to the Unsuitability Report I should indicate that I consider the challenge made to the Redress of Grievance Decision to be quite misconceived. Given that it is now the applicant who is insisting that the referral of this decision to the CAF not take place until this proceeding finishes, it will be a matter for him to determine whether he wishes the referral to proceed assuming that I uphold the Suspension Decision.

(2) The Unsuitability Report Decision

55 The communications made to Flight Lieutenant Bromet from 2 November 2000 onwards had the clear capacity to engender confusion and frustration in him. I say nothing of the advice on which some of those communications appear to have been based. He deserved better. But my concern in this proceeding is not with the care taken by, and thoughtlessness of, at least some of the officers dealing with him. Nor is it with the correctness of the advice on which they may have relied. It is with the lawfulness of their decisions.

56 Whatever he might have thought he had done on 2 November 2000 in relation to unsuitability, Group Captain Oddie did raise what was an Unsuitability Report on 4 December 2001. That Report could not be justified by Annex D. The basis now advanced for it is Annex B. That Annex required that "[t]he report must be accompanied by a psychologist's report which is to comment on the member's unsuitability in their present mustering or specialisation and assesses the member's suitability for alternative employment".

57 It is clear that Group Captain Oddie's Report was accompanied by a psychologist's report, being that of Dr Ryder of 14 August 2000. It is equally clear that that report was not prepared specifically for the purposes envisaged by Annex B, though it is the case that the content of the report could be said to have relevance to the question of the applicant's unsuitability for his mustering. It is not altogether clear from the terms of Annex B what was the sequence to be followed in the preparation of the Unsuitability Report and the psychologist's report. Was the former to precede the latter? Or were they to be prepared together so giving the Commanding Officer the opportunity to have regard to the psychologist's comments in making recommendations in the Unsuitability Report? What is not envisaged was a report prepared well before the Unsuitability Report which did not address at all one of the matters on which the Annex required comment (ie suitability for future employment) and which commented on aspects of the member's suitability for his mustering, but for a quite separate purpose (ie so as to help improve his performance).

58 There was non-compliance with the requirements of Annex B. The crucial question is what was the consequence of that non-compliance. The applicant contends that the stipulation for a psychologist's report commenting on the matters specified in the Annex was an essential requirement in that it prescribed what was essential information to be placed before the decision-maker and of which the decision-maker was required to take account. Absent that report, it is contended that Group Captain Meyn's decision is invalid either because that report was required before he could proceed to make a determination or else he failed to take a relevant consideration into account. It equally is contended that the Unsuitability Report itself should be set aside as it lacked an essential requirement that being the annexed report.

59 The respondents' contend that the effect of the non-compliance has to be considered in light of the principle affirmed in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 390-391, ie the question of validity despite non-compliance is to be determined by asking whether it was a purpose of DI(AF) PERS 4-19 that an act done in breach of one of its requirements should be invalid.

60 Having noted that service specific Instructions were made by the Chief of Air Staff, for the purposes of, and pursuant to the power given by, s 9A of the Defence Act 1903, the respondents contend that the Chief of Air Staff would not have intended in making the Instruction that breach of Annex B would render the Unsuitability Report invalid. While the Instruction has the force of law it is a very particular form of delegated legislation. It is not a disallowable instrument; it is of an essentially administrative character; and it is not to be interpreted strictly. They then point to characteristics of the process in question and to the manner in which its requirements have been, or will be, complied with substantially in the present case. In particular it is contended:

(a) the requirement for a psychologist's report merely regulates the exercise of the unsuitability report function of a Commanding Officer rather than imposing an essential preliminary for the exercise of that function; cf NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 at [482].

(b) to the extent that the Instruction sets out administrative procedures for the unsuitability process, its purpose is to give general guidance as to the conduct of that process - rather than to set out fixed rules requiring strict compliance;

(c) Dr Ryder's report complied with the requirements of Annex B to the extent that it commented on the applicant's suitability in his current role and substantially complied with the requirement to address suitability for alternative employment;

(d) Dr Ryder's comments were taken into account by Group Captain Oddie, and later by Group Captain Meyn;

(e) to the extent that a psychologist's report is required to address suitability for alternative employment, that was for the use of those who would need to make the alternative employment decision; and

(f) a psychologist's report addressing alternative employment under Annex B is directed to consequential action, and Group Captain Meyn had sought such a report for that purpose.

61 Unfairly, in my view, the respondents seek to derive some additional comfort from the Flight Lieutenant's declared opposition to being required to undertake further psychological assessment. It must be said he was entitled to ask why such assessment was necessary, the more so as he reasonably could have believed prior to the date the Unsuitability Report was raised, that the requirement was unrelated to a prospective Unsuitability Report. Group Captain Oddie's communications were particularly unrevealing of the connection between these two matters.

62 For my own part I am satisfied that non-compliance with the psychologist's report requirement of Annex B did not of itself doom Group Captain Meyn's decision to invalidity. A notable characteristic of the language of the Instruction generally is that it is replete with the imperative language of "is to", "is to be" and "must". In a service environment such use of the language of command is unsurprising. It would be mistaken, though, to draw from it the conclusion that non-compliance robbed any affected action of its validity.

63 It is important, as Project Blue Sky indicates, to consider the purpose of Annex B not only in the light of the particular Instruction in question, but also in light of the legislative framework of which it is part. That the Instruction was made in the exercise a power relating to administration rather than of command does not of itself tell against a finding of invalidity. But it does invite attention to the administrative setting in which this particular Instruction finds its place. It is a setting in which there is a statutorily mandated Redress of Grievance procedure such that any decisions adverse to Flight Lieutenant Bromet under the Instruction could be referred by him to the Chief of Air Staff. The system so established, including the creation of the CRA, was to enable the correction of wrong or unfair decisions: see DI(G) PERS 34-1 cl 1.

64 The Instruction of present concern was related, unquestionably, to an important area of decision-making. It could involve in a real sense decisions about a person's employment, career and livelihood. It is, for this reason, understandable that the individual Annexes to the Instruction should prescribe information to be contained in, or to accompany, Reports envisaged by those Annexes. This is an area in which it properly can be said that "the inclusion of procedural mandates ... may be appropriate or desirable": DI(AF) ADMIN 6-1, cl 16. I am satisfied that the purpose of those "procedural mandates" (or requirements) was to facilitate effective decision-making so assisting in achieving fair and correct decisions: cf DI(G) PERS 34-1, above. However this purpose did not go so far as to erect prerequisites for that decision-making.

65 Notwithstanding the significance of the decisions that can be made under the Instruction, I do not consider that a departure from a requirement of the Instruction relating to the content of, or annexures to, a report necessarily required that any decision made on such a report must be invalidated. The reason for the Annex's requirement of a psychologist's report is nowhere fully explained in the Instruction. One can infer from cl 12 of the Instruction set out earlier that such a report's objects were (a) to provide advice on whether psychological factors contributed to making a member unsuitable for his or her mustering and (b) to provide an assessment of the member's suitability for alternative employment in light of those factors (if any). One can likewise infer that such information was considered sufficiently important in the decision making process as to justify the imposition of a requirement that it be made available for the benefit and assistance of the decision-maker in making a correct and fair decision.

66 It can, in other words, properly be said that the Instruction identified a relevant consideration for the decision-maker to take into account. The Annex B requirement provided the means for facilitating this. It did not provide a condition precedent to the exercise of the power to make a determination on a member's suitability for his or her mustering. Rather it was a procedural provision in the processes antecedent to an exercise of the power which was designed to ensure that material of a particular character was brought to the attention of the decision-maker and hence regard would be had to it. It was a "procedural requirement serving ... administrative purposes". I do not consider that non-compliance with it as such affected the validity of the power to make a determination on the Unsuitability Report: NAAV's case, above, at [482].

67 This said, such a determination might still be open to challenge if the decision-maker failed to have regard to information possessing the character the requirement was designed to bring to the decision-maker's attention. In the present case I am satisfied that the combined effect of having regard to Dr Ryder's 14 August 2000 and Group Captain Meyn's direction that a report from Dr Ryder be obtained as part of the process of giving consideration to Flight Lieutenant Bromet's "ongoing viability as a productive Air Force Pilot", were sufficient in the circumstances to ensure that the underlying purpose of the requirement was in fact satisfied. Regard was had, and would in the ensuing phase of decision making be had, to what the Instruction identified as relevant considerations. Dr Ryder's report was not prepared for the purpose of the Unsuitability Report, but it was prepared as part of a remedial program for the applicant. It related directly to causes of difficulty affecting his general performance as a C130H pilot. And it expressed an opinion on what the applicant would have to address if he was to achieve his goal of a flying career in the RAAF. In my view, given the setting in which it was prepared and the purpose of it, this report sufficiently exposed the psychological factors which, in the applicant's case, affected his general performance as a C130H pilot. And expressed an opinion on them. Regard, then, was had to what I have inferred was the first of the objects of the Annex B psychological report (ie the contribution of psychological factors to the applicant's unsuitability for his mustering). Group Captain Meyn's direction ensured that regard would likewise continue to be had to psychological assessments in implementing his determination.

68 I am satisfied that the Group Captain's decision did not fail to take into account a relevant consideration. The information relied upon may not have been derived in the way envisaged by Annex B. But it was sufficient to satisfy the purpose of the Annex B requirement.

69 My conclusion, then, is that the failure to annex the required psychologist's report to the Unsuitability Report did not invalidate Group Captain Meyn's decision, nor did it rob the Unsuitability Report itself of its character. If Flight Lieutenant Bromet wished to contest the decision the ROG procedure was open to him.

70 I should add, if I am incorrect in my conclusion, and that the Group Captain Meyn's decision was invalid, this would only affect the validity of that decision. Group Captain Oddie's report would remain unaffected although it would require a psychologist's report to be attached to it before it could be transmitted to Air Force Office for a determination on it.

(3) The Connection between the Suspension Decision and the Unsuitability Report Decision

71 My conclusion above makes it strictly unnecessary for me to consider this matter. I should indicate, though, that if Group Captain Meyn's decision was invalidated for reasons relating to non-compliance with Annex B, the Suspension Decision would stand unaffected. The state of affairs giving rise to it had not changed. The action taken consequent upon it may have been invalid. That did not invalidate the suspension. It merely created the need for a further action to be taken under Annex B.

Conclusion

72 This proceeding suggests that there is a need for the Air Force to review the procedures it has in place to monitor the progress of action being taken against one of its members in a matter affecting that person's career and aspirations. Flight Lieutenant Bromet has been treated with no little thoughtlessness. It is over two years since the prospect of administrative action was raised against him. It is unsurprising that he has displayed frustration at what has transpired in the interim.

73 I will order that the applications in A3 of 2002 and A16 of 2002 be dismissed.

I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated: 16 September 2002

Counsel for the Applicant:	Mr C Erskine
Solicitor for the Applicant:	Meyer Clapham
Counsel for the Respondent:	Mr T Howe
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	11 September 2002
Date of Judgment:	16 September 2002