Coutts v Commonwealth
157 CLR 9159 ALR 699
(Judgment by: Brennan J)
Coutts
v Commonwealth
Judges:
Mason ACJ
Wilson J
Brennan JDeane J
Dawson J
Subject References:
Defence
Constitutional Law
Administrative Law
Judgment date: 20 June 1985
Sydney
Judgment by:
Brennan J
These proceedings were brought to challenge the validity of the dismissal by the Governor-General of an officer of the Air Force. His appointment was terminated on medical grounds purportedly in accordance with regs. 72(1) and 628(1) of the Air Force Regulations. It is objected that the grounds prescribed by reg. 628(1) did not exist and that the power to dismiss was not exercised in conformity with the requirements of natural justice. The question (stated in the form I adopted in F.A.I. Insurances Ltd. v. Winneke (1982) 151 CLR 342 , at p 409 ) is whether "a condition imposed by the statute upon the exercise of the power, albeit an implied condition, is not fulfilled." For the reasons stated by Wilson J., I agree that the valid exercise of the power to dismiss is not conditioned upon the existence of the circumstances prescribed by reg. 628(1) or the satisfying of some requirement of natural justice. The power to dismiss an officer of the Defence Force, whether it flows from statute or the prerogative, is a power to dismiss at pleasure. That is, the power to dismiss may be exercised at any time and for any reason, or for no reason or for a mistaken reason. In point of law, an officer has no security of appointment. If the Governor-General dismisses him in the belief that he is bound to do so under reg. 628(1), however erroneous that belief may be or however inappropriate was the procedure which led to the formation of that belief, the officer loses no legal right to which he was entitled. A power to dismiss members of the Defence Force at pleasure is an exceptional, perhaps anachronistic, power nowadays, but the legislature has seen fit to leave that power undiminished. As reg. 628(1) is neither a source of the power to dismiss nor a condition affecting the exercise of that power, the present case is to be distinguished from F.A.I. Insurances Ltd. v. Winneke.
When the power to dismiss is expressed to be exercised in accordance with reg. 628(1) the officer who is dismissed becomes entitled to invalidity benefits under Pt V of the Defence Force Retirement and Death Benefits Act 1973 (Cth). Invalidity benefits are available to a member of the Defence Force who is making contributions under s 17 of that Act and who is retired on the ground of invalidity or of physical or mental incapacity to perform his duty (s 26). They are not available to a member who is retired on other grounds (unless notice is subsequently given under s 37 that he could have been retired on a ground mentioned in s 26).
Regulation 628(1) is, therefore, a direction to the repository of the power to dismiss and it authorizes the specification of the grounds of retirement when the power is exercised. It gives no protection, procedural or otherwise, against dismissal but it is the means by which an officer's entitlement to invalidity benefits is assured when he is dismissed on the grounds prescribed by that regulation.
I would dismiss the appeal.