Hot tips for young players: Actions On – Notice to Show Cause

June 27, 2024

Hot tips for young players: Actions On – Notice to Show Cause

Written by: Cameron Niven Date: 17 June 2024

Diggers and digglets, harbour up. It’s time to talk about the Australian Defence Force’s (ADF) administrative system.

Recent matters in the Federal Court of Australia may be critical of the incorrect use of the Defence Force Discipline Act 1982 (Cth)’s (DFDA) search and seizure powers being relied upon for an alien purpose, that purpose being to provide material which a decision maker relies upon in determining whether there should be early separation from service.

The ADF’s administrative system is distinct and separate from the ADF discipline system. It is inappropriate to substitute one for the other. Should a member be issued with adverse administrative action by way of a Notice to Show Cause: Formal Warning (Formal Warning) or a Notice to Show Cause: Termination (Termination Notice) when the proper course is to initiate disciplinary proceedings under the DFDA, there will very likely be a miscarriage of justice which warrants review.

The above is important as, given the ADF is a branch of government (and remembering ADF members do not enjoy protections afforded under the Fair Work Act 2009 (Cth), and therefore cannot seek intervention through the Fair Work Commission), decisions to terminate are subject to the ‘right of review’ under the Judiciary Act 1903 (Cth), or ‘judicial intervention’ provided by the Administrative Decisions (Judicial Review) Act 1977 (Cth).

Further, noting the administrative character of a decision to terminate a member’s service, it is necessary to ensure that when responding to a Formal Warning or a Termination Notice, appropriate consideration and weightings are given to matters of relevance when determining what action if any, is appropriate to take.

Too often, Soldiers, Sailors, and Air Force personnel form the view that their hierarchy will “look after them” when going through administrative processes, providing they “take it on the chin”. This is not the case, and hot tip - if a member has been issued a Notice to Show Cause: Formal Warning (Formal Warning), their hierarchy is probably not looking after them. Instead, the member’s hierarchy is attempting to lay the groundwork that weighs in favour of early separation of service.

Should a member be issued a Formal Warning, they should take steps to familiarise themselves with the following:

Military Personnel Manual (MILPERSMAN), Part 9, Chapter 2: Formal Warnings and Censures in the Australian Defence Force;
MILPERSMAN, Part 10, Chapter 2: Involuntary Separation from the Australian Defence Force; and
Good Administrative Decision-Making Manual.

MILPERSMAN is instructive insofar as it sets out the appropriate procedure which ought to be followed by the hierarchy. The philosophical objective of MILPERMAN does not set out that the overarching purpose is to assist members in improving their conduct, performance, or standards such that their service will continue. Instead, it highlights that MILPERSMAN empowers the use of formal warnings and censures as a management tool when conduct, performance, or standards are unsatisfactory.

The practical reality of MILPERSMAN, Part 9, Chapter 2, is that it is a document that is designed to assist in helping cease a member’s service.

From the outset, it should be considered that a member who is potentially subject to a Formal Warning or a Termination Notice has the right to contact Defence Counsel Services (DCS). DCS provides members with legal advice and assistance in preparing responses to various types of administrative action. However, the involvement of DCS does not guarantee that a member’s service will not be terminated.

Formal Warning

The basis for imposing a Formal Warning is distinct from the reasons that would warrant a Termination Notice. Relevantly, MILPERSMAN, Part 9, para 2.11 informs the reader that the purpose is to caution a member that should their conduct not improve, further action may be taken. This is critical as, should such a period have passed since the alleged poor conduct and the imposing of a Formal Warning, it may be the case that the Formal Warning serves no practical purpose, and on this basis, the imposition of same is a redundancy.

There is a requirement to provide procedural fairness in a Formal Warning process. This allows a member to persuade an Imposing Authority of the proper outcome before a final decision is reached. It is for this reason that one ought to review the basis of the Formal Warning as given by the Initiating Authority. Should this be incorrect, it must be addressed, as improper reliance on facts may lead to perverse outcomes.

Finally, the balance of proofs must be considered. Often, decision makers form the view that a member must be “beyond reasonable doubt” in their Statement of Reasons. This is a criminal standard, and, relevantly, there is no reverse onus of proof on a member – they are not “guilty” until proven “innocent”.

Termination Notice

A Termination Notice seeks to end a member’s career. The power to terminate a member’s service early is provided within the Defence Regulations 2016 (Cth), regulation 24(1), which states:

(1) The Chief of the Defence Force may terminate the service of a member for one or more of the following reasons:

(a) the member is medically unfit for service in the Defence Force;
(b) the member cannot usefully serve because of redundancy in the Defence Force;
(c) retention of the member’s service is not in the interests of the Defence Force;
(d) the member has failed to meet a condition of his or her appointment or enlistment;
(e) the member has been absent without leave for a continuous period of 3 months or more.

There is no “one size fits all” response that can be provided to a Formal Warning or a Termination Notice. Every matter is distinct and separate in its facts. However, when either of the above is received, appropriate steps may include:

Contact DCS and have your matter allocated to a Legal Officer for assistance;
Prepare a response which:

sets out matters of facts;
addresses relevant policy considerations;
informs of matters of relevance;
directs specific weight to be provided to relevant considerations;
directly contradicts or otherwise provides alternative considerations set out within the initiating document; and
proposes alternative outcomes.

Obtain character and professional references from friends and colleagues;
Obtain material that can be referred to within your response.

In most circumstances, a good defence is a better offence. There is no reason why a response to a Formal Warning or Termination Notice cannot be critical or dismissive of the authority, exercise of power, or factual basis which the initiating authority has relied upon. It remains the position that where there is inflexible application of policy, there will be grounds for review.

The basis of such a review may not be limited to the factual basis relied upon, it may also arise from the decision as reached. This will be determined by reference to the reasons provided. There is a duty to give reasons which is founded in statute or in common law. Notwithstanding this, there is no common law obligation to provide reasons, 1

For the above reasons, it is recommended that a member always respond to a Formal Warning or a Termination Notice.

What’s the key learning?

Decisions made by the ADF are subject to review, and the hierarchy should be aware their decision making may be interfered with by the Court;
Do respond to Formal Warning and Termination Notices;
There is no “one size fits all” approach to a Formal Warning or a Termination Notice;
Attack the decision on its policy or factual basis;
Engage DCS as a priority, early assistance will be necessary, and DCS has a large caseload;
Providing alternative outcomes obliges the decision maker to consider whether this outcome is appropriate;
Go hard, your hierarchy wants you gone, so you might as well make them work for it.

1 cf. Public Service Board (NSW) v Osmond [1986] HCA 7.

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