Case: Commonwealth v Welsh [1947] HCA 14 ; (1947) 74 CLR 245
Outcome: considered
the power to terminate the service of an officer or an enlisted member, the power exercisable in respect of a referred redress of grievance complaint is in modern form statutory and found in the Defence Regulations but, to borrow language employed by Sir Own Dixon in describing the former in Commonwealth v Welsh [1947] HCA 14 ; (1947) 74 CLR 245 at 268, it is no new subject. Though, for the purposes of the present case (Part XV was further amended on 1 May 2008 by the Defence Force Amendment Regulations 2008 (No 1), SLI 68 of 2008 in ways not presently material), they find contemporary expression in reg 75, 76 and 77 within Part XV of the Defence Regulations, when CPL Millar made a complaint to her commanding officer seeking redress of a grievance and then sought the subsequent referral of that complaint to the professional head of the Australian Army she was invoking rights the origins of which are ancient and deeply rooted in our constitutional heritage. As will be seen, it is also no coincidence that the Governor-General in Council by (at the time) reg 81(1)(b) of the Defence Regulations, prescribed Brigadier to be the minimum rank to be held by an officer to whom the Chief of Army may delegate the power to determine a referred redress of grievance complaint. Knowledge of legal history, of the relationship between the Sovereign, the Parliament and the Armed Forces, of the rank structure and chain of command within the Army and of the responsibilities in respect of subordinates assumed by those who hold the Queen's commission in the Defence Force is essential to an appreciation of the nature of the power exercisable on the referral of a complaint seeking a redress of grievance; all the more so because the language of reg 77 is compressed. That regulation assumes that its reader will either have that knowledge or at least make an effort to obtain it. In "not suited to be an enlisted member" the present offers a paradigm example of "a matter of opinion or policy or taste". Further, as Sir Owen Dixon noted in Welsh [1947] HCA 14 ; (1947) 74 CLR 245 , at 268 of other regulations governing the relationship between the Commonwealth (and that term is used to include the Crown in right of the Commonwealth) and members of the Defence Force and in a passage to which I have already alluded: [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. At common law neither commission nor enlistment in the services does or can amount to a contract with the Crown and neither officer nor man obtains any legal right against the Crown to pay, deferred pay, half pay, pension or emolument. 'All engagements between those in the military service of the Crown and the Crown are voluntary only on the part of the Crown, and give no occasion for an action in respect of any alleged contract:' per Lord Esher M.R. in Dunn v. The Queen: see Macdonald v. Steele; Gibson v. East India Co.; R. v. Secretary of State for War; Leaman v. The King: Lucas v. Lucas. (footnote references omitted). The relationship between the Crown and a soldier is not that of employer and employee: Attorney-General (NSW) v Perpetual Trustee Company [1955] AC 457, at 489-490; Attorney-General (NSW) v Perpetual Trustee Company [1952] HCA 2 ; (1951-1952) 85 CLR 237 , at 301-302 per Kitto J. At common law, the relationship between the Crown and a soldier may be terminated without notice and for any reason, no reason or a mistaken reason: The Commonwealth v Welsh [1947] HCA 14 ; (1947) 74 CLR 245 , at 257-258 per Latham CJ, McTiernan J agreeing; at 262 per Rich J, at 274 per Williams J; Coutts v The Commonwealth [1985] HCA 40 ; (1984-1985) 157 CLR 91 , at 105 per Brennan J.