DO MEMBERS OF TIlE ARMED FORCES HAVE ANY RIGHTS IN THEIR EMPLOYMENT? By GARTH NETTHEIM*

Professor Nettheim's answer to this question involves a rigorous examination of legislation and judgments .from the eighteenth century on. The reluctance of courts and legislatures to protect servicemen from their employer, the Crown, in the matters of remuneration and termination of service is criticized. The right­ lessness of servicemen is presented as being not only inequitable, but also incompatible with the image of military service as a career, and with the related need to attract qualified personnel.

Iudicial Attitudes It is probably the element of discipline in the armed forces, coupled with a post-18th century judicial distaste for professional soldiery, that has inclined the courts to treat disputes concerning membership of the armed forces as non-justiciable and subject in the last resort to the Crown's prerogative control. Thus in Sutton v. Johnstone1 Lord Mans­ field and Lord Loughborough disallowed an action by a naval officer against his superior for malicious prosecution. The officer had been charged before a court martial but acquitted. In reversing the Court of Exchequer on writ of error their lordships did so on the ground that the commander had had probable cause for laying the charges, but they we,nt on to suggest (while conceding that the issue was doubtful) that suc'h matters are pre-eminently to be settled within the service. The salvation of this country depends upon the discipline of the fleet; without discipline they would be a rabble, dangerous only to their friends, and harmless to the enemy.... If this action is admitted, every acquittal before a court martial will produce one.2 Adverse reports, leading to dismissal from the army, did produce such actions in the 1860's. In Dickson v. Viscount Combermer~ the action (for conspiracy and malicious prosecution) went to trial and failed. But in Dawkins v. Lord Rokeby4 Willes J. non-suited the plain­ tiff in his action (for false imprisonment, malicious prosecution and conspiracy) and gave the judicial "hands off" attitude to military affairs perhaps its strongest formulation, though the decision was largely justified by the facts of the particular case:

*A.M. (Tufts), LL.B. (Syd.); Professor of Law, University of New South Wales. 1 (1786) 1 Term Rep. 493; 99 E.R. 1215. 2 Id., 549; 1246. s (1863) 3 F. & F. 527; 176 E.R. 236. 6 (1866) 4 F. & F. 806; 176 B.R. 800.

200 1973] Armed Forces: Employment Rights 201

In this country, the army is a body existing under Acts of Parlia­ ment; it is not, except in case of war, so to speak, a natural part of the constitution of this country: ...5 He added, with telling terseness, that "military matters between military men are for military tribunals to determine".6 This attitude was more fully expounded later in the judgment: Upon the whole case, I am bound to say, that no cause of action in a civil court has been shown. That is what I believe to be the law; and I am satisfied that at least that portion of the community who are not soldiers will desire that soldiers shall settle their dis­ putes among themselves, and that they should keep themselves to their own jurisdiction, at least with respect to all matters which are properly military. With respect to military men, I beg to say that I cannot conceive anything more fatal to themselves-anything more fatal to the discipline or the subordination of the army-if every officer who considers himself to have been slighted by his inferiors, or every officer aggrieved by his superiors, whom, having become a soldier, he has consented to submit to, should seek to undo their judgment before a tribunal which must neces­ sarily have but slight acquaintance with those matters upon which it is called to pronounce an opinion. I have no doubt that this is the law, and I have no doubt that it is that which is most beneficial to the community.? There is even statutory foundation for the view that the relationship betw,een the Crown and the members of the armed forces is a matter of prerogative, as. the Court of Appeal recognized in China Navigation Co. Ltd v. Attorney-GeneraLs The 1661 Statute, 13 Car. II, st. 1, c. 6, states in its preamble: Forasmuch as within all His Majesty's realms and dominions, the sole supreme government, comm.and and disposition of the militia, and of all forces by sea and land, and of all forts and places of strength, is, and by the laws of England ever was, the undoubted right of His Majesty, and his Royal predecessors Kings and Queens of England; and that both, or either of the Houses of P'arliament cannot nor ought to pretend to the same ...9 The last phrase of the preamble could scarcely prevent the King-in­ Parliament from legislating in regard to the government, command and disposition of the armed forces. But, as Slesser L.I. put it in 1932:

SId., 830; 811. 6 Id., 837; 813. 7 Id., 841; 815. For an Australian discussion on the extent of judicial non­ intervention in matters of military discipline, see Lindsay v. Lovell [1917] V.L.R~· 734. 8 [1932] 2 K.B. 197. 9 This preamble was repealed, by the Statute Law (Repeals) Act, 1969 (U.K.), on the ground that it merely "recites a well established principle". The Times, 17th May, 1969. 202 Federal Law Review [VOLUME 5

·.. at no time has Parliament derogated from the prerogative with regard to the command of the forces as it was declared in the time of Charles II. It has declared the standing army illegal in time of peace without the consent of Parliament, but has abstained from interfering with the comm'and by the Crown over a legalized army.10

And, later, "But in so far as such prerogative includes the government of the army, the Court cannot consider the propriety of its exercise".11 But it was only as a result of a series of judicial decisions commencing, for the most part, at the end of the 18th c.entury that this prerogative control over "the government, command and disposition" of the armed forces was interpreted as producing the result that a member of the forces had virtually no rights whatsoever in his employment. Today, of course, the position of members of the armed forces is increasingly governed by legislation rather than by common law, espec­ ially in Australia. Thus, as Windeyer J. observed in Marks v. The Commonwealth:

Australian military law differs from that of the United Kingdom in an important aspect. The position of the Crown in relation to the forces is in Australia dependent on statute and not on the prerogative. Doubtless the prerogative powers of the Crown in relation to military defence are constitutionally an attribute of the Crown in right of the Commonwealth, except in so far as they have been superseded by statute: but the Australian Military Regu­ lations are made under the authority given by the Act [the Defence Act 1903-1956, (Cth)] (s. 124) and by the same pro­ cedures and subject to the same parliamentary controls as are other statutory regulations. They are made by the Governor-General in Council, not by the Governor-General acting as Commander-in­ Chief exercising a prerogative power on the advice only of a responsible Minister. In the United Kingdom the Queen's Regula­ tions are made under the royal prerogative of the command of the army, although recently, since 1955 especially, the area of regu­ lation based on statutory authority has increased. Some aspects

10 [1932] 2 K.B. 197, 239. Beinart, however, states that the Army Act, 1881 (replacing the Mutiny Act, 1879 and its predecessors) expressly conferred legisla­ tive power on the Crown in the matter of the government of officers and soldiers, and made particular provision in such matters as enlistment, discharge, pay, etc.: SSe 69, 70, 76-99, 140. This, and navy legislation, have been largely ignored by the courts which "have been inclined to treat the relationship between the Crown and its military servants as a law apart almost like the law and custom of Parlia­ ment ...": "The Le.gal Relationship between the Government and its Employees" (1955) Butterworth's South African Law Review, 21,25-26. 11 [1932] 2 K.B. 197, 242. Also Macdonald v. Steele (1793) Peake 233, 234; 170 E.R. 140, 141 per Lord Kenyon C.l.: "His Majesty's pleasure supersedes all enquiry, as he has the absolute direction and command of the army"; Mitchell v. The Queen [1896] 1 Q.B. 121 n. 1973] Armed Forces: Employment Rights 203

of the Crown's immunity fl\om the control of the courts that were discussed by Scrutton L.J., and other members of the Court of Appeal in China Navigation Co. v. Attorney-General, are thus not, I think, applicable in Australia.12 But it is p,erhaps not surprising that governments, in introducing legislation in regard to public employment, have deliberately preserved common law rilles which favour the Crown at the expense of its servants. Thus Commonwealth legislation for the armed services specifically provides that appointments or promotions of officers shall not create a civil contract13 and that appointments are held at the Governor­ General's pleasure.14 But even when .legislation has not specifically enacted the old rules, judges have tended to interpret legislation in the light of the common law position. Thus in Commonwealth v. Welsh, Dixon C.J. said: 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.IS And in Marks v. The Commonwealth, Windeyer J. said, in considering the effect, not of a regulation, but of s. 17(1) of the Defence Act itself: And each statute must be seen against a background-in the case of the Defence Act against the background of the common law and the traditional practices and customs established in the military service of the Crown and recognized by the common law in 1903 when the Act was passed.16 So the evolution and extension of the disadvantages of service in the armed forces need to be considered.

Remuneration-Earnings for Future Service At the end of the 18th century the courts laid down a doctrine that army officers were incompetent to assign their future earnings, and that such future earnings were immune from attachment. There is clear evidence that the doctrine was not current earlier in the century. Thus in 1728 Parliament had felt the need to enact such a rule for sub­ ordinate officers and seamen in the Royal Navy,l'Z apparently to protect

12 (1964) 111 C.L.R. 549, 564-565. 13 Defence Act 1903-1970, s. 13 (Cth), made applicable to the other services by Naval Defence Act 1910-1971, s. 5 (Cth) and Air Force Act 1923-1965, s. 3 (Cth). 14 Defence Act 1903-1970, s. 16 (Cth); Naval Defence Act 1910-1971, s. 12 (Cth); Air Force Regulations, reg. 72. IS (1947) 74 C.L.R. 245, 268; contra 262-263 per Rich J. 16 (1964) 111 C.L.R. 549, 573. 17 1 Oeo. II, 81. 2, c. 14, s. 7, enlarged by the Naval and Marine Pay and Pensions Act, 1865, SSe 4 and 5. 204 Federal Law Review [VOLUME 5 such men from their own prodigality while in port.18 (A similar rule was 2fl first enacted for merchant sailors in 1835.19) There were dicta and decisions to the' effect that the pay of persons in military service could be assigned or charged, at law and in equity.21 The decisions, cited in Flarty v. Odlum,22 had turned on the question whether military office itself or its half-pay should be treated as assets of a bankrupt liable to assignment for the benefit of creditors. The earlier cases had apparently answered this question in the affirmative, but the King's Bench in Flarty v. OdIum held that half-pay was not assignable by an officer himself, and so was not subject to compulsory assignment for the benefit of creditors. Grose and Buller JJ. specifically limited the decision to future half-pay, Buller J. saying: If the question had been whether or not the pay which was actually due might be assigned, I should have thought it, like any other existing debt, assignable; but that does not extend to future accru­ ing payments.23 Lord Kenyon C.J., Ashhurst and Buller JJ. based the decision squarely on public policy. The Chief Justice said: Emoluments of this sort are granted for the dignity of the State, and for the decent support of those persons who are engaged in the service of it. It would therefore be highly impolitic to permit them to be assigned; for p,ersons, who are liable to be called out in the service of their country, ought not to· be taken from a state of poverty. Besides an officer has no certain interest in his half-pay; for the King may at any time strike him off the list. Indeed assign­ ments of half-pay have been frequently made in fact, but they cannot be supported in law. It might as well be contended that the salaries of the Judges, which are granted to support the dignity of the State and the administration of justice, may be assigned.24 The italicised passage was clearly only a subsidiary basis for the judg­ ment, as is shown by the statement that the principal public policy applied also to judges who by this time, of course, had secure tenure. The liability of an officer to dismissal at pleasure might be an additional

18 Stone v. Lidderdale (1795) 2 Anst. 533, 540; 145 E.R. 958, 960 per Macdonald C.B. 19 5 and 6 Will. IV, c. 19, s. 12. 20 Ex parte Butler and Purnell (1749) 1 Atk. 210, 214; 26 B.R. 136, 139 per Lord Hardwicke L.C. 21 Stuart v. Tucker (1770) 2 Bl. Rep. 1137; 96 E.R. 671. 22 (1790) 3 Term Rep. 681; 100 B.R. 801. The decision was apparently anti­ cipated by the House of Lords on an appeal from the Court of Session in Scot­ land in Cathcart v. Blackwood (1765), cited in (1795) 2 Anst. 533, 537; 145 B.R. 958, 959; and in Cooke's Bankrupt Laws (8th ed.) 318. 23 (1790) 3 Term Rep. 681, 683; 100 B.R. 801, 802. [Italics supplied]. 24Id., 682-683; 802. [Italics supplied]. 1973] Armed Forces: Employment Rights 205 factor ruling out assignment of future pay,25 but neither that nor the public interest in maintaining adequate financial support for future performance of public offices would prevent the assignment of pay already due. Buller J. expressly treated accrued pay as a debt, and one which might be assignable. In 1791 in Barwick v. Reade the Court of Common Pleas applied the same rule in setting aside the assignment of a military officer's full pay, on the officer's motion, on the ground that such assignment was illegal, "it being contrary to the policy of the law that a stipend given to one man for future services, should be transferred to another who could not perform them."2 16 The issue came again before the King's Bench in Lidderdale v. Duke of Montrose.27 An army officer brought an action against the Paymaster­ General for some £83 half-pay allegedly due to him. The defendants had paid the money to another in pursuance of the plaintiff's own assign­ ment of his future half-pay, but on the basis that the assignment was void, the plaintiff was able to recover, though the court hinted that the assignee might have an action against him on his covenant. The court adhered to Flarty v. Odium that on principles of public policy, as well as on account of the interest of the officers themselves, they were clearly of opinion that by law such assignments were void: that the half-pay of the officers was not only a chose in action, but that, with respect to such payments as were not dqe, it was also contingent whether or not they would ever be made.28 But again there is no suggestion that an officer cannot recover back pay by action, for the judgment specifically decided that he could. The sequel was a suit by the assignee in the ICourt of Exchequer, Stone v. Lidderdale,29 against both the officer and the paymasters. The latter, naturally, now refused to pay the officer's half-pay to the assignee, and the officer himself had countermanded the power of attorney he had given to the assignee. The assignee attempted to distinguish Flarty v. OdIum and Barwick v. Reade by treating them as authority only for the proposition that a chose in action is not assignable at law, without reference to the broader ground laid down. He claimed that while the assignment might not be enforceable at law, it "was yet good in equity", and he stressed the unconscionable aspects of the officer's conduct. But

25 Sed quaere? Wells v. Foster (1841) 8 M. & W. 149, 152; 151 B.R. 987, 988 per Parke B.: "even if it be payable only during pleasure, it appears to me that it is not therefore, in point of law, the less assignable, however little its value would be in consequence of its being liable to be withdrawn at any moment." 26 (1791) 1 Hy. Bl. 627, 627; 126 E.R. 357, 357. [Italics supplied]. 27 (1791) 4 Term Rep. 248; 100 E.R. 1000. 281d., 250-251; 1002. 29 (1795) 2 Anst. 533; 145 E.R. 958. 206 Federal Law Review [VOLUME 5

Macdonald C.B. held that half-pay was not assignable in equity. He explained that the court in Stuart v. Tucker«' had treated half-p'ay simply as a reward for past services, but Half-pay is intended by the state to provide decent maintenance for experienced officers, both as a reward for their past services, and to enable them to preserve such a situation that they may always be ready to return into actual service.31 And he expressly treated the position of a pension as distinguishable on this basis. In the meantime, Lord Kenyon in the King's Bench had dealt with a slightly different situation in Macdonald v. Steele.32 The defendants, the Paymasters-General, had directed that an army officer's half-pay should be withheld to meet his large overdraft with the regimental agents. The officer brought an action for his half-pay, and Lord Kenyon indicated that the defendants were not entitled to stop the pay for the debt due to the agent. However the King had endorsed their action through a letter by the Secretary at War (there is a reference in the report to some un­ proven Crown debt) and on this basis the plaintiff was non-suited. In an oft-quoted passage, Lord Kenyon said: ... his Majesty's pleasure supersedes all enquiry, as he has the absolute direction and command of the army. It is true, Parlia­ ment has provided a sum of money [for paying the forces] but that is to be distributed as the King chooses. The money is under his control till such time as it is paid out. The King cannot take it for his own use, but he may prevent it from being paid to a p·erson who is not entitled to receive it. The caveat of the agent was merely waste paper till adopted by the King; when he adopted it, it became his own act; and it is for the honour of government to see that money due to an officer is applied to the payment of his debts.33 Yet two years earlier Lord Kenyon himself had held, in Flarty v. Odlum, that it was for the honour of government ("the dignity of the State") that money due to an officer should not be applied to the pay­ ment of his debts.34 That case had been concerned with future earnings, while Macdonald could only have been suing. for pay already due, though that had been allocated in advance to meet his debts. It is, however, clear that the judgment does not say that an officer has no right to his pay. The extract quoted is a little ambiguous. The general tenor seems to be a recognition that the officer was entitled to his pay, save only for the intervention of the King in his prerogative control of

30 Supra n. 21. 31 (1795) 2 Anst. 533, 541; 145 B.R. 958, 96l. 32 (1793) Peake 233; 170 B.R. 140. 331d., 234-235; 141. 34 (1790) 3 Term Rep. 681, 682; 100 B.R. 801, 802. 1973] Armed Forces: Employment Rights 207 the forces, and that an exercise of this royal prerogative would be proof from judicial enquiry, at least when what is done falls properly within the scope of the prerogative ("it is for the honour of government .. ."). But Lord Kenyon also said that the King "may prevent it from being paid to a person who is not entitled to receive it", suggesting that some­ thing additional to the King's action disentitled the officer. He may have meant that he was "not entitled" morally rather than legally. Or it may have been that the debts were regarded as "internal" debts, within the army administration, as distinct from external assignments and charges which had been the subject of the other cases mentioned. The proposition thus established by the courts in regard to army officers stands today largely on a statutory basis. It now extends to members of the armed forces generally and also extends to cover accrued pay and pensions as well as future earnings on account of future service.3S At the same time the interests of significant classes of potential claimants on the earnings of a member of the forces are protected, for example, by provisions for deduction from earnings for the maintenance of wives and children,36 by provisions for service earnings to be made available to creditors on bankruptcy,37 by provisions for deduction from pay and from retirement pensions to meet judgment debts,38 etc. The doctrine has also been extended by analogy to civil servants. But it is clear from the cases discussed, and their rationes,39 that the common law doctrine preventing assignme,nt and attachment applied only to future earnings. Although the restriction against assignment and attachment has (subject to qualifications) been extended by statute to cover accrued pay and pensions, there is nothing in the decisions in the 1790's to suggest that the serviceman himself might not sue for arrears of pay. Indeed in Lidderdale v. Duke of Montrose such an action succeeded.40 Nineteenth century cases, however, did deny such a right of action to members of the armed forces. By this time, of COUIiSe, the concept of office as property was giving way to a contractual concept of employ­ ment. But in the case of members of the armed forces one fundamental element of a contractual relationship was denied when courts refused

35 Logan, "A Civil Servant and his Pay", (1945) 61 L.Q.R. 240, 246-247; Halsbury's Laws of England (3rd ed.) Vol. 33, 916, 968-969, 1055; and for Aus­ tralia, inter alia, the Repatriation Act 1920-1972, s. 52, and the Defence Forces Retirement Benefits Act 1948-1971, s. 85. 36 Logan, Ope cit. 243-244, Halsbury's Laws of England (3rd ed.) Vol. 33, 858-861, 916-917; and for Australia, the Defence Act 1903-1970, s. 124 (Cth). 37 Bankruptcy Act, 1914, s. 51 (Eng.), though this applies only to officers of the armed forces. It also applies to civil servants. 38 Armed Forces Act, 1971, SSe 59, 61 (U.K.). Defence Forces Retirement Benefits Act 1948-1971, s. 85A (Cth). 39 Also Picton v. Cullen [1900] 2 Ir.R. 612, 614-615 per Ashboume L.e. 40 Supra D. 27. 208 Federal Law Review [VOLUME 5 to entertain any action for wrongful dismissal. The evolution of this rule will shortly be considered.

Remuneration-Arrears of Pay In Flarty v. Odium, Buller J. in particular treated pay actually due as an existing debt capable of assignment.41 In Lidderdale v. Duke of Montrose an army officer was held entitled to recover accrued pay in an action against the Paymasters-General.42 In Macdonald v. Steele another officer would have recovered his pay from the Paymaster­ General but for the intervention of the King.43 Indeed the doctrine that future pay is incapable of being assigned or charged would not have been necessary if a member of the armed forces had no right to his earnings.44 What seems to have happened thereafter is a spread of the notion of the King's own prerogative immunity downwards to protect his servants, at least at ministerial level. Gidley v. Lord Palmerston40 has been one of the most influential decisions, though the failure of the action may be largely attributed to the form of proceedings followed. The plaintiff was the executor of the estate of a retired civil clerk in the war office and he sued the Secretary at War in assumpsit for the deceased's retirement allowance. The money had been specifically appropriated by Parliament and had 'actually been received by the Secretary, but Dallas C.J. held that the action would not lie, mainly on the ground that any obligations owed by the Secretary in the matter were owed to the Crown and not to the deceased,46 but even more broadly on the basis of a supposed public policy against exposing public officers to suit for acts done in their public capacity. The hapless plaintiff may have fared better had he proceeded by some other method, such as a petition of right.4'7 More to the point, though equally unsatisfactory, was the decision of Tindal C.J. in non-suiting the plaintiff in Gibson v. East India Com-

41 Supra n. 23. 4% Supra n. 27. 43 Supra n. 33. 44 Logan, Ope cit. 247. 4S (1822) 3 Brod. & Bing. 275; 129 B.R. 1290. 46 A similar approach was later taken in Kinloch v. Secretary of State for India in Council (1882) 7 App. Cas. 619. The Queen by Royal Warrant granted booty of war to the Secretary to be distributed on a prescribed basis, but an action to compel the Secretary to account to the persons entitled failed on the basis that the Warrant did not create a trust enforceable in the courts, and that the fund was held by the Secretary simply as agent for the Crown. This approach has been particularly marked in proceedings for mandamus against ministers, e.g. R. v. Secretary of State for War [1891] 2 Q.B. 326. 47 Oldham v. Lords of the Treasury cited in Ellis v. Earl Grey (1833) 6 Sim. 214, 220; 58 E.R. 574, 576. 1973] Armed Forces: Employment Rights 209 pany.'8 A lieutenant-colonel had retired after 25 years' service with the East India Company on a pension at the level of his full pay, as he was entitled to do under a Company resolution. He became bankrupt, however, and when the Company paid the following half-yearly instal­ ment to him, the plaintiffs, as assignees of the estate, sued the Company to recover it. To establish their entitlement, they argued that the officer himself had a legal right to the pension such that he might sue for arrears in contract. And they attempted to distinguish the case of a pension for past services from the case of half-pay along similar lines to the distinction drawn by Macdonald C.B. in Stone v. Lidderdale.49 The action could, conceivably, have been defeated on the basis that the question of the officer's entitlement to his pension should have been considered as at the date of the bankruptcy proceedings. At that date any entitlement lay only in the future so as to be incapable of assign­ ment on behalf of creditors. This in itself would have been a departure from the distinction drawn by Macdonald C.B. between pensions and half-pay, for, in the cases of 1791-1792, half-pay had been held proof from assignment or charge because of the public interest in the future ability of the officer to perform military service if required. There was no suggestion in those cases that the officer himself could not recover the money by action when it fell due. But such a suggestion was now made on the basis that there was no contractual right to a pension. The resolution, however, is a general regulation, affecting the whole of the army, not a separate contract with any individual officer; and although it may differ, in some particulars, from a grant of half pay by the Crown to the officers of the army or navy, upon their retirement from actual service, yet it bears a much stronger analogy to it in the mode of its being granted, and in the consequences attending it, than to any contract. Now it is clear that no action could be supported against anyone to recover the arrears of half pay granted by the Crown, at least unless the money has been specifically appropriated by the government, and placed in the hands of the paymaster or agent to the account of the particular officer; and there is no ground upon general principle to hold an action could be maintained against anyone, unless under the same circumstances, in the present case. ... The grant in question, therefore, appears to us to range itself under that class of obligations which is described by jurists as imperfect obligations; obligations which want the vinculum juris, although binqing in moral equity and conscience; to be a grant which the East India Company, as governors, are bound in foro conscientiae to make good, but of which the performance is to be

48 (1839) 5 Bing. N.C. 262; 132 B.R. 1105. The Queen's Bench treated service with the Company as for all relevant purposes equivalent to service under the Crown. 49 Supra D. 31. 210 Federal Law Review [VOLUME 5

sought for by petition, memorial, or remonstrance, not by action in a court of law.50 True, the decision protected the officer in this instance, but the Chief Justice clearly had the prospect of an action by an officer in mind when he referred to issues of expediency-if a retirement pension for formal service could be recovered by action, the grant of pay during actual service might also be sued for. The judgments thus represent a decisive shift in judicial thinking on the matter of entitlement to service emoluments. But the actual decision was mainly based on the point that, assuming there was a contract, it was not under seal so as to render the Company liable to suit. All else might conceivably be treated as obiter. Gibson's case was referred to in Ex parte Sir Charles Napier. 51 Pro­ ceedings for arrears of pay were brought by an officer, and no less an officer this time than the Commander-in-Chief of the East India Com­ pany's forces. The proceedings took the form of an application for mandamus, but the court held that there was no legal obligation on the Company to pay the sum. A legal obligation, which is the proper substratum of a mandamus, can only arise from common law, from statute, or from contract. Of course, the obligation here contended for cannot arise from the common law, and is not rested on contract.52 The court found no statutory basis for such obligation, either. He thus relies merely on practice; which may amount to an honourable, but does not to a legal, obligation.53 In Mitchell v. The Queen,M a retired colonel first sought redress of his pension grievances by way of petition of right, but the Court of Appeal upheld the Crown's demurrer in judgments which asserted the, total non-justiciability of claims against the Crown by those in military or naval service. Colonel Mitchell subsequently sought mandamus to compel the Secretary of State for War to perform what was alleged to be his duty under royal warrants in the matter of payment. But in R. v. Sec­ retary of State for War, 55 the Divisional Court discharged the rule nisi, and was affirmed by the Court of Appeal., on the ground that the ,Crown

50 (1839) 5 Bing. N.C. 262, 273-275; 132 E.R. 1105, 1110. [Italics supplied]. 51 (1852) 18 Q.B. 692; 118 E.R. 261. 52Id., 695; 263. The fact that the obligation contended for was not rested on contract was probably a legacy of the dicta in Gibson's case. Napier's case does not itself decide that an obligation could not be rested on contract. 53 Id., 699; 264. M (1890) [1896] 1 Q.B. 121 n. Lord Esher M.R., in this case and others (e.g. De Dohse v. The Queen (1885) 1 T.L.R. 509 and Dunn v. The Queen [1896] 1 Q.B. 116) seems to have been particularly ready to consign public employees to a state of legal rightlessness. 55 [1891] 2 Q.B. 326. 1973] Armed Forces: Employment Rights 211 itself was not under any legal obligation to make the allowance sought, and mandamus would not lie against the Secretary because he was simply the agent of the Crown in the matter, and any duty under the warrant was owed to the Crown alone. Mitchell's case was followed in Gillespie v. The Queen56 by Madden e.J. in the Victorian Supreme Court. The suppliant, as a gunner in Her Majesty's Victorian artillery, was entitled to 3/3d. per day plus 9d. for rations when in 1895 he accepted a Department offer to retire on receiv­ ing "six months salary". His claim was that this should have been asses­ sed at the rate of 4/- per day rather than 3/3d. There was argument as to whether the 9d. per day for rations should be regarded as salary but the ICrown also claimed that the action was not maintainable, and the Chief Justice held accordingly on the basis that there was "no contract enforceable by the petitioner against Her Majesty."57 Thus various forms of proceedings in regard to alleged debts, brought against the Crown and its ministers, had failed, for one reason or another. Yet Ian action for pay was entertained and dismissed solely on its merits by the Privy Council in Williams v. Howarth.58 The plain­ tiff, a member of New South Wales forces which had served in South Africa, sued a nominal defendant on behalf of the Crown in right of New South Wales alleging an agreement between him and the colonial government that he would be paid 10/- per day. In fact the Imperial Government paid him 4/6d. per day and the N.S.W. Government paid him 5/6d. per day, but he argued that the 4/6d. was not part of the 10/- promised by the N.S.W. Government. The trial judge and, on appeal, the Fun Supreme Court, held for the plaintiff, but the decision was reversed by the Privy Council, in its opinion delivered by Lord Halsbury L.C., solely on the ground that his agreement was with the Crown and had been satisfied by the Crown, it being irrelevant whether supplies for the purpose had been granted by the Imperial or the colonial government. There was no suggestion that there was no contract, or that the contract was not enforceable against the Crown. Professor Sawer comments that the case is of "doubtful authority" as "the obvious defence that soldiers have no common law rights against the Crown was not taken".~9 But such defence in an action for pay even by a soldier was by no means as "obvious" then as it has subsequently been regarded, unless the sweeping statements in Mitchell v. The Queen are to be accepted at face value, as they since have been.60 (Furthermore the availability of a direct right of action against a nominal defendant

56 (1895) 21 V.L.R. 584. 57 Id., 589. 58 [1905] A.C. SSt. 59 (1946) 62 L.Q.R. 22. 60 E.g. The Commonwealth v. Quince (1944) 68 C.L.R. 227. 212 Federal Law Review [VOLUME 5 on behalf of the New South Wales Government may have been seen as eliminating some of the technical barriers to successful litigation in previous cases.) The House of Lords itself, in Owners of S.S. Raphael v. Brandy,61 expressed some reservations about the more sweeping implications drawn from the earlier English decisions. An injured stoker was held entitled against his civilian employer to workers' compensation in respect of his Naval Reserve retainer which was treated as a concurrent contract of service. Lord Loreburn L.C. remarked: The authorities cited go no further than to say that when there is an engagement between the Crown and a military or naval officer the Crown is always entitled to determine it at pleasure, and that no obligation contrary to that would be recognized or valid in law.62 As one of the authorities cited was Mitchell v. The Queen this assess­ ment would cut the assertions in that case down to unrecognizable dimensions. But direct proceedings in the courts for arrears of pay for military and naval service continued to fail, and the Crown was able to get away with conduct which (if the allegations against it were true) was so high-handed and arbitrary that it becomes almost a matter for wonder that men were found willing to serve. The allegations, of course, may not have been capable of substantiation, but the Crown usually chose to demur. In Leaman v. The King/iS a private soldier, who enlisted in 1914 on advertised terms of 6/- per day for one year or the duration of the war, was informed in 1916 that he was in for seven years, plus 5 years reserve, at 1/- per day, and deductions were thereafter made from his reduced pay to recover some £120 which he had allegedly been over­ paid. On his discharge in 1920 he sought arrears of pay at 6/- per day in petition of right proceedings, but Acton J. sustained the Crown's de­ murrer and rejected the attempted distinction between the position of a private soldier and that of an officer. Assuming that the relation between $oldier and Crown was one of contract, it by no means follows that it vests in the soldier the right to enforce by proceedings in a Court of law the payment of the sums to which he claims to be entitled in respect of his services.64 In Kynaston v. Attorney-General65 a retired army surgeon had been recalled to duty in 1914 and found that changed conditions laid down

61 [1911] A.C. 413. 62 Id., 414. 6S [1920] 3 K.B. 663. 64 Id., 668. 6G (1933) 49 T.L.R. 300. 1973] Armed Forces: Employment Rights 213 in Royal Warrants affected him adversely in regard to pay and other matters. But the Court of Appeal held that his action for a declaration of his rights was simply not maintainable, and that any rights he might have had in the conditions of his retirement were subject to unilateral variation by the Crown. By this time the position was virtually irretrievable, despite the unsatisfactory nature of the earlier authorities, and the contrary Privy Council decision in Williams v. Howarth.66 The proposition had been firmly established that a member of the forces might be dismissed at will notwithstanding any stipulation to the contrary-a proposition justified in the name of prerogative, public policy or public interest. The proposition that future service earnings might not be assigned or charged had been placed on a statutory footing, subject to important statutory modifications, and in practice appears to have prejudiced not the servicemen themselves but their creditors; whatever the original rationale, it might possibly be conceived as a corollary to the doctrine of dismissal at pleasure. It is difficult, however, to discover any principle that would justify denying to a member of the forces any right of action for his earnings for services rendered. Apart from technical difficulties affecting specific forms of legal proceedings, and apart from vague references to public policy, judges appear to have decided, by analogy from the principle of dismissal at pleasure, that the relationship between the ,Crown and members of the armed forces was, in its entirety, either something apart from contract, or that it was a contract but one which was unilateral so that the serviceman had no right to enforce its terms against the Crown. These viewpoints will be considered later in this article. Australian legislation for the armed services does give a right of action for pay but only after the serviceman has left the service.67 The judges, influenced by what are taken to be common law principles on the matter, have interpreted such provisions narrowly. The plaintiff in Welsh v. Commonwealth of Australia68 was appointed to a commission in the Air Force on 16th October, 1939, on the basis of advertised conditions which were, themselves, based on regulations then in force which prescribed the rates of active pay, deferred pay and allowances. But subsequently these regulations were in part superseded by the Air Force (War Financial) Regulations gazetted on 13th April,

66 Supra n. 58. 67 Defence Act 1903-1970, s. 12, made applicable to the other services by Naval Defence Act 1910-1971, s. 5, and Air Force Act 1923-1965, s. 3: "Any person who has been a member of the Defence Forces may after having ceased to be a member recover from the Commonwealth by suit in any Court of com­ petent jurisdiction any moneys which under his engagement or by any agreement with the 'Commonwealth are due to him". 68 (1946) 47 S.R. (N.S.W.) 199; (1947) 74 C.L.R. 245. 214 Federal Law Review [VOLUME 5

1943, but which purported to commence operation from 6th October, 1939, (reg. 2), and to prevail over any inconsistent provisions in the Air Force Regulations (reg. 5). The plaintiff's entitlement to deferred pay was adversely affected and, after his discharge on 10th September, 1945, he sued the Commonwealth for what was alleged to be due to him. The plaintiff alleged that he had either a contractual right or, alternatively, a statutory right to pay at the rates applying at the date when he entered the service, and the provisions merely postponed until he had left the service the right to recover it. He also argued that the 1943 regulations were invalid so far as they purported retrospectively to deprive him of a right to receive pay at the 1939 rates.69 In the Supreme Court of New South Wales Jordan C.J. quoted from the judgment of Rich J. in The Commonwealth v. Quince10 to the effect that the relationship between the Crown and its military (and civil) servants was non-contractual. and non-justiciable, and, after refer­ ring to Defence Act, s. 13, and Air Force Regulation 32, the Chief Justice added: I think it clear that he had no contractual rights against the Com­ monwealth-no rights by agreement. It would be contrary to the whole scheme of the legislation to hold that he had; and at common law the Crown is incapable of contracting any legal obligations towards its servants.71 So any rights were necessarily statutory. He considered that there was nothing to prevent the regulation-making authority altering the provi­ sions as to pay prospectively. But the regulations prior to the 1943 regulations 'had overridden the common law and created vested rights, though the enjoyment of some of them is postponed and none of them can be enforced by a member by judicial process until he has left the Service.72 Furthermore, s. 48(2) of the Acts Interpretation Act 1901-1937 (Cth) invalidated any retrospective operation of the 1943 regulations so as to diminis'h those rights.

69 Acts Interpretation Act 1901-1937, s. 48(2) (Cth): "Regulations shall not be expressed to take effect from a date before the date of notification in any case where, if the regulations so took effect- (a) the rights of a person (other than the Commonwealth or an authority of the Commonwealth) existing at the date of notification, would be affected in a manner prejudicial to that person; and (b) liabilities would be imposed on any person (other than the Commonwealth or an authority of the Commonwealth) in respect of anything done or omitted to be done before the date of notification, and where, in any regulations, any provision is made in contravention of this sub-section, that provision shall be void and of no effect". 10 (1944) 68 C.L.R. 227,241-242. 71 (1946) 47 S.R. (N.S.W.) 199, 205. 121d.~ 206. 1973] Armed Forces: Employment Rights 215

Davidson and Roper JJ. took a similar view. Davidson J., in the course of his judgment, said: The Regulations are not a mere code of directions to officials in a department, nor do they purport to create a contract, but they do state the law prescribing the rights and duties of persons in the Defence Services. The meaning to be attached to the crediting of money and interest, therefore, must be that it was a special statutory provision conferring a vested right, ... 73 As concerns any alleged public policy in the matter, the remarks of Davidson· J. are of interest in suggesting that the 1943 regulations (to the extent of their possible operation in this case) might also be simply ultra vires the regulation-making power under the Air Force Act 1923­ 1941, s. 9 (Cth): ... it would be ludicrous to suggest that a proposed deprivation of members of the Defence Forces of money credited to them in respect of their past work could be aimed at securing the dis­ cipline and good government of the members, or to fall within the description of something required, or permitted to be prescribed, for the carrying-out or giving effect to the Act. Any course of action better calculated to cause indiscipline and unrest in opera­ tions under the Act would be hard to imagine. 74 The 'Commonwealth took the case to the High Court which, by a majority, allowed the appeal.75 The case revealed interesting variations in approach. Thus Dixon J. said: The relation to the Crown of members of the armed forces is no new subject; the rules of the common law define it. The regula­ tions are not to be read in disregard of those rules and of the long tradition to which they have contributed. 76 But Rich J. who, with Williams J., saw no reason to disagree with the conclusion of the Supreme Court, declared that: There is nothing to entitle us to assume that these regulations (which have the force of law) were intended to be read in a sense which would encroach as little as possible on the common law position of the Crown vis-a-vis persons in its military service. ...A provision, having the force of law, that a member of the forces "shall be paid" is inconsistent with the !Commonwealth being at liberty to pay him or not as its chooses; ... 77

73ld.,211. 14Id., 213. It seems that this passage was intended less to make a serious legal point (and see (1947) 74 C.L.R. 245, 267 per Dixon J.) than as a comment on the conduct of the government in the matter. 75 (1947) 74 C.L.R. 245. Latham C.l., Starke, Dixon and McTiernan JJ.; Rich and Williams JJ. dissenting. 76Id., 268. '17 Id., 26:2-263. 216 Federal Law Review [VOLUME 5

Otherwise the High Court was substantially united in its distaste for the injustice caused by the 1943 regulations,'18 and also agreed in the proposition that there could be ,no contractual b'asis for the alleged liability. What divided the majority from the minority (and from the Supreme Court) was a different assessment of when the plaintiff's statutory entitlement to deferred pay became an existing right so as to be immune from retroactive diminution. The 1943 regulation 5, according to the majority, affected only the right to recover money, and that right was not an existing right, for the purposes of s. 48 (2) of the Acts Interpretation Act, until after the plaintiff's discharge. Hence the 1943 regulations were valid and effective to reduce retroactively the deferred pay of anyone who had not, at the date of their gazettal, already been disch'arged. The High Court again interpreted legislation narrowly, against the background of common law rules in the matter of army pay, in Allpike v. The Commonwealth.'I1 A soldier died while a prisoner of war in Borneo and, at the date of his death, had credit to his account of some £665 for undrawn pay, deferred pay and interest on deferred pay which constituted his war service estate for the purposes of the War Service Estates Act 1942-1943 (Cth). Under this Act, s. 7, an "authorized person" could payor deliver such estate to persons defined in several categories, and the deceased's war service estate was allotted to his brother and sisters. The plaintiff was the sole beneficiary in the deceased's will and had been granted letters of administration with the will annexed, and she applied to the High Court by case stated to test the validity of the distribution of the war service estate. She claimed (1) that she as personal representative (the first category listed under s. 7) should have had priority; or (2) that if the payment had been validly made, it did not affect the beneficial title; or (3) that if these constructions failed, s. 7 was void (a) as outside the defence power and (b) as acquisition without just terms (s. 51 (xxxi)). The defendants argued simply that the deceased and, thus, those purporting to claim through him, never had any right to the money, and that s. 12 of the Defence Act gave a right only to a member of the forces after his discharge. The High Court accepted this point of view on the question of constitutional validity.

As far as the common law is concerned, a member of the forces has no contractual right and no right of action during his life against the Crown for the purpose of recovering such moneys. .·. In the case of the Commonwealth, therefore, such right as there is is the creation of Commonwealth statute or Commonwealth

'18Id., 261 per Latham C.J., 262 per Rich J., 266 per Starke J., 267-268 per Dixon J. '19 (1948) 77 C.L.R. 62. 1973] Armed Forces: Employment Rights 217

regulation. That right may be altered by the authority which created it. Therefore the War Service Estates Act may vary or modify any right which has been created, if indeed such a right has been created, by the War Financial Regulations. Accordingly, there can be no question as to the authority of the Commonwealth Parlia­ ment to attach conditions to the payment of military pay and (as it is a matter of bounty .. .) to determine the circumstances in which and the persons to whom payment shall be made.80 (Constitutional powers may, however, have been exceeded by the inclusion in the War Service Estates Act, as components of a war service estate, of assets other than those in question in this case.) It is submitted that any common law rule which can be used to justify decisions such as in the Welsh and Allpike cases should be received with scepticism and retained no longer than absolutely necessary. Remuneration-Pensions As far as the pension and similar entitlements of members of the armed forces are concerned, the common law recognizes no right of action. Some of the leading cases have been considered. Thus in Gibson v. East India Company Tindal iC.J. thought that public policy would preclude a right of action by a former member of the forces for his pension, just as it would prevent any action by a serving member for arrears of pay.S1 Mitchell v. The Queen82 and R. v. Secretary of State for Wa,s3 were also pension claims. In Robertson v. Minister of PensionsM Denning J. was prepared to enforce in terms of contract (or at least of estoppel) what he held to be the entitlement of a retired army colonel to a pension. But there was a statutory right in the matter once a pension had been properly awarded,85 and the judgment has been criticized on other grounds.

80Id., 68-69 per Latham e.J. McTiernan J. agreed with the Chief Justice, and Dixon J. delivered a separate judgment reaching the same conclusions. The court also decided the questions as to the construction of s. 7 against the plaintiff; also Shirlaw v. Sinclair (1946) 64 W.N. (N.S.W.) 138. By contrast, the Navy and Marines (Property of Deceased) Act, 1865 (U.K.) is at pains to preserve the interest of personal representatives in such cases; and the Navy and Marines (Property of Deceased) Order, 1956 (8.1. 1956, No. 1217). The disposition of such assets of deceased members of the British Army or the R.A.F. is governed by the Regimental Debts Act, 1893 (U.K.). Another complaint of unfair treatment in this area, voiced in 1970 by a Vietnam veteran, was that it was Government practice to pay money in lieu of accumulated leave credits to the family of servicemen killed in action only if the deceased serviceman was married but not if he was single. (The Sydney Morning Herald, 27th June, 1970). 81 Supra n. 50. 82 Supra n. 54. sa Supra n. 55. M [1949] 1 K.B. 227. 85 Pensions Appeal Tribunals Act, 1943, s. 11. 218 Federal Law Review [VOLUME 5

Of course, there has been some legislative encroachment, and members of the armed forces may have statutory rights.. As far as the U.K. armed forces are concerned, officers and men of the Royal Navy and Royal Marines (and, in case of death, their dependants) "shall be paid" "All Pay, Wages, Pensions, Bounty Money, Grants or other Allowances in the Nature thereof payable in respect of Services" in the navy or marines.:816 Members of all services have a statutory right to a disability pension once such pension is awarded (though the initial award remains a matter of discretion) .87 The National Insurance Act, 1965, covering sickness and unemployment insurance applies to Crown servants, civil and military, as well as to private employees, though subject to modifications in regard to members of the armed forces. 88 Otherwise the common law position remains applicable. As far as the Australian armed forces are concerned, the Defence Act, s.12, giving a right of action to any former member to recover moneys due to him would seem to cover all forms of moneys due, including pensions. The Defence Forces Retirement Benefits Act 1948­ 1971, sets up a detailed contributory scheme for pensions and other benefits, while pensions on death or incapacity due to war service are governed by the Repatriation Act 1920-1972. Both Acts use unequivocal language, such as "entitled", "shall be paid", "liable to pay", and·the common law may well have been squeezed out, though in view of the decisions in the Welsh and Allpike cases, any such assumption may be mistaken. Members of the defence forces are also, by s. 7(2), within the scope of the 'Compensation (Commonwealth Employees) Act 1971­ 1972.

Tenure-Dismissal That a member of the armed services can be dismissed at pleasure appears to have been long accepted. 89 Possibly the circumstances of the forces dictated such a rule; arguably they still might. In In re Poe,90 the applicant had been dismissed from the service by a court-martial. He sought prohibition, arguing, with some substance, that his case did not fall within the Articles of War and was outside the

86 Naval and Marine Pay and Pensions Act, 1865, s. 3; Naval and Marine Reserves Pay Act, 1957, s. 1(2). 87 War Pensions (Administrative Provisions) Act, 1919, s. 7; War Pensions Act, 1920, s. 8; Pensions Appeal Tribunals Act, 1943, s. 11. 8B Section 99; National Insurance (Members of the Forces) Regulations, 1968 (S.I. 1968, No. 827). 89 Flarly v. OdIum (1790) 3 Term Rep. 681, 682; 100 E.R. 801, 802 per Lord Kenyon C.l.: "Besides an officer has no certain interest in his half-pay; for the King may at any time· strike him off the list." Half-pay, of course, was an allow­ ance during semi-retirement, subject to the possibility of recall to full-time service. 90 (1833) 5 B. & Ad. 681; 110 E.R. 942. 1973] Armed Forces: Employment Rights 219 court-martial's jurisdiction. The sentence had however been confirmed by the King and put into execution, and the court-martial had disbanded. Prohibition was refused on the ground that the matter was functus officio and nothing remained· to prohibit, nor anyone (other than the King himself) to whom the order might be directed. However Denman C.J. in the King's Bench indicated (obiter) a more substantial reluctance to intervene which seems, once again, to show a judicial "hands off" attitude to military matters: Now, admitting for a moment that it were possible to address any writ directly to His Majesty, when it is considered that this power is undoubtedly inherent in the Crown, and might have been law­ fully executed even without any court-martial, it will at once appear manifest that no prohibition can lie in such a case. For what the King had plower to do, independently of any enquiry, he plainly may do, even though the enquiry should not be satisfactory to a Court of Law, or even though the Court which conducted it had no legal jurisdiction to enquire.91 The apparent impossibilty of a direct challenge by an army officer against the Crown in respect of his dismissal dictated the form of pro­

i ceedings instituted in Dickson v. Viscount Combermere,92 namely, an action against the Secretary of State for War and oth.ers for conspiracy and for malicious prosecution. The action went through to trial and failed, but at one stage Cockburn iC.J. pointed out: The Sovereign has the power of dismissing any officer. He receives his commission from his Sovereign and holds it at his pleasure, and it is in the will of the Sovereign to withdraw it. It is the will of the Sovereign to exercise that power through responsible servants of the Crown, and they are not responsible for its exercise before a jury.93 But in a similar action three years later, Dawkins v. Lord Rokeby, the plaintiff was simply non-suited on the basis that "military matters between military men are for military tribunals to determine".94 All that the dicta on the matter in the Poe and Dickson cases indicate is that service in the armed forces is prima facie subject to a liability to dismissal at pleasure by the Crown. Tms may simply equate such service with employment under a private contrac,t terminable at will. They establish nothing as to whether the Crown (or its agent) might make a contract not so terminable with a particular military or naval servant (or with military or naval· servants generally). Such issues were raised in Tufnell's case.

911d., 688; 944. 92 (1863) 3 F. & F. 527; 176 E.R. 236. 931d., 585; 267. M (1866) 4 F. & F. 806, 837; 176 E.R. 800, 813. Also 841; 815. 220 Federal Law Review [VOLUME 5

In re Tufnell95 was perhaps the first case of a direct challenge to the Crown itself in respect of dismissal from the army. The. case was some­ what special for the suppliant was an army medical officer who, at his own request, and on condition of waiving his right to promotion, had been appointed to the "permanent" medical charge of the Dublin military prison. He did in fact occupy the post for 28 years, but at 56 years of age he was retired on half-pay. In his petition of right he argued that a pennanent appointment meant an appointment for life, or until incapacitated by infirmity or misconduct.9fJ But Matins V.C., while stressing that the suppliant had suffered no hardship, allowed the Crown's demurrer on the ground that, assuming that the Secretary of State at War had purported to do so, he had no power to appoint the suppliant for life, and that the suppliant was like all other officers in the naval and military service, liable to the rules of that service, and removeable at the will and pleasure of the Sovereign. It would be a most injurious thing to the public service if theerown had not the power, which we know it has and exercises constantly, of saying to any naval or military officer misconducting himself, whether in his military or naval, or in his private capacity, simply by notice in the Gazette, that the Crown has no longer occasion for his services. It is an arbitrary power, and one which may be exercised most injuriously to the interests of the officer, but such is the benignity and the conduct of Govern­ ment and of the Sovereign towards all officers, naval, military, or others, that it is never exercised arbitrarily or improperly, or except on proper occasions, and it is absolutely necessary for the dis­ cipline of the army and navy, 'a'nd for the good conduct of the public service, that such an arbitrary power should exist. 97 Misconduct, of COUlise, is a ground for dismissal even in private contracts for employment for defined periods, and to state that a power of summary dismissal is justified to deal with misconduct is not to establish a need for a power of arbitrary dismissal in other cases. There was no indication of the reasons why the suppliant was retired on half-pay. The correspondence on behalf of the Secretary at War was treated simply as an announcement of the authorities' intention at that time towards the suppliant and was not contractually binding, nor could itbe: My opinion, therefore, is that the power of appointing a military officer under that section [of the Mutiny Act in force in 1846,

9,5 (1876) 3 Ch.D. 164. 96 The difficulty of regarding the word "permanent", by itself, as indicating life tenure was generally agreed by the House of Lords in McClelland v. Northern Ireland General Health Services Board [1957] 1 W.L.R. 594, a case concerning civil public employment. 97 (1876) 3 Ch.D. 164,173. [Italics supplied]. 1973] Armed Forces: Employment Rights 221

dealing with military prisons] only extends to an appointment subject to the rules of the service, and therefore removeable at the will and pleasure of the Crown with or without reason.98 The judgment indicates, at least, a presumption that government officials lack authority to bind the Crown to a term displacing the rule that a member of the armed forces is dismissable at pleasure,99 and the sta­ tutory provision was read narrowly so as not to conflict with that rule. Support was found in Gibson v. East India Company,l Gidley v. Lord Palmerston2 (both pay cases), In re Poe3 and the Dawkins litigation.4 Nothing however was said as to whether the Crown by itself (or by its agent having express authority in the matter) could displace the rule of dismissal at pleasure. But a negative answer was given the following year. Members of the Indian armed forces did not have to rely on petition of right but, after the legislation in 1858 transferring governmental func­ tions from the East India Company to the Crown,s they could sue the Secretary of State for India directly. The transfer legislation expressly preserved the rights of persons who had been in the Company's military and naval service, and in Grant v. Secretary of State for Indiae the plaintiff claimed that under the "customs, laws, regulations and pro­ visionsu of the Company's service,an officer had tenure so long ashe was physically and mentally efficient, and was entitled to a hearing before being removed. In fact he had been compulsorily retired by Gazettal in 1873 on the basis of a General Order which applied only to "unemployed officers who are ineligible for public employment" by reason of clear misconduct or proved physical or mental inefficiency or the like, none of which, he claimed, could apply to him. He sought damages for wrongful dismissal and for libel but the defendant success­ fully demurred. Grove J. seems to have accepted that statutes had vested in the East India Company a power to dismiss at pleasure which had then passed to the Crown. A statutory basis for the power would, of course, make it proof from displacement by anything short of a subsequent in­ consistent statute. But His Honour proceeded mainly as though the power was non-statutory, and he asserted that such power could not be contracted away.

98 Id., 174. 99 It thus bears a strong analogy to Dunn v. The Queen [1896] 1 Q.B. 116 concerning civil employment under the Crown. 1 (1839) 5 Bing. N.C. 262; 132 E.R. 1105. 2 (1822) 3 Brod. & Bing. 275; 129 E.R. 1290. 3 (1833) 5 B. & Ad. 681; 110 E.R. 942. 4 (1866) 4 F. & F. 806; 176 B.R. 800. 021 & 22 Viet. c. 106. 6 (1877) 2 C.P.D. 445. 222 Federal Law Review [VOLUME 5

I am. of opinion that the East India Company, and afterwards the Crown, had the absolute power to dismiss or compel retirement of an officer in the Indian army; that the power in the nature of Crown Prerogative, conferred upon the East India Company, being for the public benefit, the safety of the realm, and possibly the existence of the Indian empire, could not be waived by contracts with officers .. .7 In re Poe, Gibson v. East India Company, Ex parte Napier, In re Tufnell and Dickson v. Lord Combermere were referred to in support, but Grove J. also added that the special nature of military service would require reading the contract (if there was a contract) as neces­ sarily subject to variation by the CroWD, and to the power of dismissal at will. A similar view was taken in De Dohse v. The Queens by the Div­ isional Court, the Court of Appeal, and the House of Lords. .The suppliant claimed that he had been engaged in forces raised under the Enlistment of Foreigners Act, 1855, for a term of seven years.9 But Lord Halsbury L.C., in upholding the demurrer held (1) that the facts as pleaded disclosed no contract; (2) that if there was a contract, it contained by necessity an implied term for dismissal at pleasure; and (3) that if a contract purported to bind the Crown to a particular term, it would be unconstitutional and contrary to public policy that it be maintained. Tufnell's case had been decided on the basis of the lack of statutory authority of the Crown's "contracting" agent. tO In Grant's case the power to dismiss a member of the armed forces at pleasure had been described as "prerogative";ll if this be correct, it can be abridged only by statute, and not by the Crown itself. Lord Halsbury in De Dohse's case spoke of the power simply as an implied term, against which any contractual provision for a fixed term could not be maintained:l2 if it be only .an implied term, the Crown (or its agent having authority) might, by a contrary express term" exclude it, and the basis for Lord Halsbury's third point is not clear unless it be to place the right to dismiss at pleasure on a basis extrinsic to contract (as in the doctrine of govern­ mental effectiveness) so that a contract inconsistent with that right would be valid and binding unless and until the Crown had need to dismiss for reasons concerning "the welfare of the state".

7 Id., 453. Also 455. [Italics supplied]. 8 (1886) 3T.L.R. 114. 9 Subsequently in Dunn v. The Queen [1896] 1 Q.B. 116 the Court of Appeal took the view that a contractual provision for a fixed term of public (civil) employment was simply not inconsistent with retention of a power to dismiss within that term. 10 Supra n. 98. 11 Supra n. 7. 12 Supra n. 8. 1973] Armed Forces: Employment Rights 223

Thus far the authorities cannot be described as clear or consistent on the nature of the rule of dismissal at pleasure, and, thus, on the power to displace that rule. The Grant and De Dohse decisions appear to treat the rule as incapable of displacement by contract alone. The power might, thus, be prerogative in nature, or based on public policy. But in either case the power would be capable of exclusion by statute. The Australian colonies at this time did have fairly comprehensive legislation covering their defence forces. But the tenacity of the idea of dismissal at pleasure can be seen in the case of Flynn v. The Queen.1S The suppliant alleged wrongful dismissal from the Victorian navy. Regula­ tions made under the Discipline Act 1870 made provision for dismissal, constituted various offences, and so on, and argument at first instance turned largely on the question whether or not the regulations had been complied with. The jury found for the suppliant and awarded damages. But the Full Court entered a non-suit on the basis of the Crown's com­ mon law power to dismiss its servants at pleasure. In re Tufnell and Grant's case had been cited in argument. The reported judgments are not very revealing. Whatever the true nature of the 'Crown's common law right to dismiss at pleasure, it is hard to see how that right can resist statutory exclusion. The Full Court may have taken the view that the regulations were ultra vires the Discipline Act 1870, on the basis of a presumption against authority to displace dismissal at pleasure;14 or alternatively, they may have simply interpreted the regulations narrowly so as not to affect the Crown's power of arbitrary dismissal.1s There had been a statutory basis for retention of that power in Grant's case, and the "regulations" etc. of the East India Company in the matter had been treated as having nothing higher than contractual force-statutory regulations may properly be regarded as a component part of a contract but do, also, have the higher authority derived from statute. But in Parker v. The Queen,16 in which a military officer of the Tas­ manian Defence Force sought damages for wrongful dismissal, the Full Court was evenly divided on the question whether the prerogative power to dismiss at pleasure could be ousted by a special contract comprising regulations under the Defence Act 1885. Only the practice whereby the judgment of the junior judge was discounted led to a decision for the Crown on its demurrer. The broad prerogative arguments had nothing to do with the decision of the New South Wales Full Supreme Court in Ex parte Byrne17 in

13 (1880) 6 V.L.R., L. 208. 14 As in Tufnell's case or Riordan v. War Office [1959] 1 W.L.R. 1046. 15 As in the Australian police cases, infra D. 8, Stawell C.l. did rely OD Power v. The Queen (1873) 4 A. Iur. Rep. 288. 16 (1898) 1 N. & S. 91. 11 (1900) 21 L.R. (N.S.W.) 93. 224 Federal Law Review [VOLUME 5 holding, in proceedings for prohibition, that the dismissal for mis­ conduct of a volunteer under the Volunteer Force Regulation Act, 1867, s. 28 by his commanding officer was not invalid for failure to give him a hearing. Cohen J. at first instance had held otherwise, and the Full Court reversed his decision on the basis solely of differing views as to the implications to be drawn from the wording of the section, and as to policy considerations. Though there have been few modem cases on the power to dismiss at pleasure a member of the armed forces, that power has been accepted in cases concerning other aspects of public employment as perhaps the basic factor in the relationship between members of the armed forces and the Crown. This acceptance itself undoubtedly explains the paucity of modem cases on that issue. Acceptance of the power to dismiss at pleasure has also led judges to draw other conclusions as to the relationship, and was certainly in­ fluential in the growth of the doctrine that members of the services have no right of action for their pay. The differing views of the relationship between servicemen and the Crown will be considered at the end of this article. But first it is necessary to note the impact of modem legislation on the issue of dismissal. Legislation on the subject has been marginal in the United Kingdom. The Army Act, 1955, s. 11(3) and the Air Force Act, 1955, s. 11(3) provide that a soldier or airman shall not be discharged.

Except in pursuance of the sentence of a court-martial ... unless his discharge has been authorised by order of the competent [service] authority or by authority direct from Her Majesty; and in any case the discharge ... shall be carried out in accordance with the Queen's Regulations. The Queen's Regulations for the Army on the matter of dismissal of soldiers, which are thus given statutory support, contain an elaborate code setting out various grounds for discharge and the competent author­ ity and detailed procedures applicable to each case. Otherwise, the com­ mon law position persists in regard to officers of all services, and also in regard to non-officers in the Royal Navy.18 Australian legislation has been specific in providing that officers of all three services hold their appointments during the Governor-General's pleasure, but in the case of each service the legislation then purports to qualify this proposition by requirements for notification of any charge and for opportunity to be heard. The Defence Act 1903-1970, s. 16, provides as follows in regard to army officers:

18 E.g. Queen's Regulations for the Army, (1961, as amended), paras. 322, 323; Queen's Regulations for the Royal Navy, (1967, as amended), Appendix 4. 1973] Armed Forces: Employment Rights 225

Officers shall hold their appointments during the pleasure of the Governor-General, but the commission of an officer shall not be cancelled without the holder thereof being notified in writing of any complaint or charge made and of any action proposed to be taken against him, nor without his being called upon to show cause in relation thereto. Provided that no such notification shall be neces­ sary in the case of an officer absent from duty without leave for a period of three months or upwards.19 (The final proviso would seem to affirm that notification is necessary in all other cases) . In Cross v. The Commonwealth20 the plaintiff sought a declaration that his army commission was not validly cancelled, and an order for prayment of salary on that footing. (The salary claim was not pressed because of s. 13 of the Defence Act.) Alternatively he sought damages on the basis of a breach by servants or agents of the Commonwealth of statutory duties to him imposed by s. 16. A court of inquiry had found, against the plaintiff's denial, that he had written, and had attempted to have published in a newspaper, "an abusive 'and insulting letter which, was absolutely subversive to all dis­ cipline".A letter was sent to him informing him of this finding and calling on him to show cause under s. 16 why his commission should not be cancelled. The Commonwealth argued that the letter had been a sufficient com­ pliance with s. 16. It also argued that, in any event, the provisions re­ quiring the giving of notice were directory only so that failure to comply would not invalidate the cancellation or give rise to a cause of action. Knox e.J. in the High Court held for the Commonwealth on both points. On the first, he said that s. 16 did not require that the officer should be given an opportunity to appear before some tribunal in order to state his case: It is, in my opinion, sufficient if the officer concerned is in the first instance afforded an opportunity of stating either in writing or verbally any reason why his commission should not be cancelled. The plaintiff availed himself of the opportunity given him ...... in my opinion there was in this case a substantial compliance with the provisions of sec. 16 of the Act. This is enough to dispose of the case, and with regard to the second point I need say no more than that in my opinion the provisions in sec. 16 which are in­ troduced by the word "but" are directory only, and do not con­ stitute conditions precedent to the exercise by the Governor-General of the right of cancellation of a commission. Having regard to the words which precede these provisions, there is no ground for the

19 Similar provision is made in the Naval Defence Act 1910-1971, s. 12 and the Air Force Regulations, reg. 72. 20 (1921) 29 C.L.R. 219. 226 Federal Law Review [VOLUME 5

contention that an action for damages for wrongful dismissal will lie against the Commonwealth by an officer whose commission has been cancelled, even though the provisions in question have not been observed. In principle this question is covered by the decisions in Shenton v. Smith and Ryder v. Foley.21 With respect it is submitted that Shenton v. Smith22 and Ryder v. Foley,23 both cases concerning civil servants, do not take the rule of dismissal at pleasure as far as the decision in Cross's case where the limitations on exercise of the dismissal power are contained in the section itself. Even Venkata Rao v. Secretary of State for India in Counci[24 does not go so far, for in that case. the section establishing tenure at pleasure modified the proposition only by the phrase "subject to the provisions of this Act and of rules made thereunder", and limitations on the dismissal power occurred only in the rules. It might be, however, that Knox C.J., like the Judicial Committee in Venkata Rao's case, considered that pre­ scription of any limitation on exercise of the dismissal power is in­ trinsically inconsistent with tenure at pleasure and must yield to a clear statement of such tenure, and it is submitted that only on such a basis could the decision be supported.2l5 Cross's case also serves to illustrate the restrictive approach commonly taken by the courts in construing legislative provisions for the armed forces which depart from the com­ mon law situation. It is interesting to note that the corresponding provision in the Naval Defence Act 1910-1971, s. 12, was replaced in 1964 by a section which preserved the wording of the earlier section but set out the proposition and the qualification in two separate sub-sections, thus: s. 12( 1) Subject to this Act, an officer holds his appointment during the pleasure of the Governor-General. (2) The commission of an officer shall not be cancelled except for cause and after he has had notice, as pres­ cribed, of the cause and has been called upon to answer in his defence. Whether this new arrangement might induce a court to accept s. 12(2) as an effective qualification of s. 12(1) remains to be seen. The liability to discharge of non-officers of the Australian armed forces is also now laid down by statute. The Defence Act 1903-1970, s. 44, provides:

21 Id., 223-224. ~ [1895] A.C. 229. 23 (1906) 4 C.L.R. 422. 24 [1937] A.C. 248. 25 Richardson, "Incidents of the Crown-Servant Relationship" (1955) 33 Can. Bar Rev. 424, 437-440. 1973] Armed Forces: Employment Rights 227

A soldier may at any time be discharged by such authority and for such reasons as are prescribed, notwithstanding- (a) that he has not completed the period of service for which he is, or is deemed to have been, engaged or re-engaged to serve; or (b) that he has not attained the age prescribed for his compulsory retirement.26 It is probable, especially in view of the Australian police cases,2'1 that the courts would read this limited power of dismissal, granted by the regulations28 to specified authorities on specified grounds, as not intended to derogate from an ultimate power remaining in the Governor-General to dismiss at pleasure. Normally, of course, grounds and procedures laid down for dismissal should be completely adequate to the needs of the service authorities. But cases concerning police officers and other civil servants show that authorities are prepared to disregard such provisions when they see fit. And the courts, beguiled by arguments about public policy, have frequently refused to intervene. Tenure-Resignation The roster of rightlessness of members of the armed services at com­ mon law (and, subject to some concessions, under legislation) is com­ pleted by the proposition that a serviceman has no legal right to leave the service. The power of the Crown to dismiss him at pleasure might seem less unfair if the serviceman himself had a reciprocal right to terminate his service at will, but at common law the Crown may retain his services against his will. Of course, the Crown will in practice seldom need or choose to do so, and it may well be that the doctrine on this point involves nothing more than that a resignation by a member of the forces becomes effective only when the Crown can free him from his duty. Modern legislation for the armed services tends, at least in regard to officers, to preserve the, notion that resignation is a bilateral matter­ the officer may tender his resignation, but it is then for the Crown to accept it. Thus, The Queen's Regulations for the Army, 1961 (as amended) state: Para. 324. At the discretion of the Defence Council under such rules as they may from time to time lay down, an officer may be permitted, at his own request, to terminate his service on the active list....

26 Similar provision is made by the Naval Defence Act 1910-1971, s. 30, and Air Force Regulations, reg. 109. '27 Green v. The Queen (1891) 17 V.L.R. 329; Ryder v. Foley (1906) 4 C.L.R. 422; Fletcher v. N ott (1938) 60 C.L.R. 55; Kaye v. Attorney-General for Tasmania (1956) 94 C.L.R. 193; Reedman v. Hoare (1959) 102 C.L.R. 177. 28 Australian Military Regulations, regulations 175-180. 228 Federal Law Review [VOLUME 5

Para. 325 states that normally seven months' notice will be required, and para. 329 states that such an officer will remain on the strength of his regiment or corps until the day previous to the date of his retirement etc., as published in the London Gazette. By contrast, non-officer members of the British armed forces are given certain entitlements to be discharged "with all convenient speed" on the completion of their engagement or to transfer beforehand to the, reserve (though subject to possible postponement for limited periods in time of war or other defined contingency situations). There is also a limited right to purchase discharge for £20 in the initial six months of service.29 Problems remain in regard to those who develop, a desire to leave the service after the time for discharge by purchase and before termination of the period of engagement, particularly those who enlisted as boys. (In Britain in 1969 some 12,000 boys under the age of 18 were entering the Services each year, making up 68% of the Navy's intake, 30% of the Army's and 20% of the R.A.F.'s.) Recruiting for the British armed forces has fallen well below targets in recent years and, despite some concessions, the government has in the piast felt unable to dispense with the services of disenchanted servicemen during the time of their engage­ ments.so In Australia, too, legislation for the armed forces has been quite specific in dealing with the entitlement to discharge of members other than officers after the expiration of the period of enlistment or re­ engagement or of compulsory service save in time of war, "defence emergency", etc. Non-officer members of Citizen and Reserve forces may also (except in contingency situations) claim their discharge before the expiration of their engagement by giving three months' notice. In all such cases the soldier, seaman or airman "shall be discharged with all convenient speed" but until discharged shall remain a member of the service.31 A general power to discharge a non-officer prior to expiry of actual or deemed engagement (including, presumably, at the man's request) is also preserved.32 T'he position of officers in the armed forces was left far less specific by legislation, and provisions had to be read in the light of the position

29 E.g. Army Act, 1955, SSe 9-14; Air Force Act, 1955, SSe 9-14; Armed Forces Act, 1966, SSe 4-7, 12; Armed Forces (Discharge by Purchase) Regulations, 1968 (S.I. 1968, No. 1801). 30 Sunday Times, 14th September, 1969. 31 Defence Act 1903-1970, SSe 39-41; Naval Defence Act 1910-1971, s. 28; Air Force Regulations, reg. 110. In 1970 the Royal Australian Navy introduced, on a trial basis a scheme whereby recruits, who normally sign on for a minimum period of nine years, would be entitled to an almost automatic discharge after a limited period of service. The period varied from 30 days to seven months, depending on the recruit's category (The Australian, 23rd January, 1970). 32 Defence Act 1903-1970, SSe 39(6), 44; Naval Defence Act 1910-1971, SSe 28(6), 30; Air Force Regulations, reg. 109. 1973] Armed Forces: Employment Rights 229 at common law. The common law situation can best be considered from the standpoint of the High Court of Australia's decision in a case con­ cerning an army officer, Marks v. TheCommonwealth.33 The judgment of Windeyer J., in particular, reflects both his scholarship as a legal historian and his long and distinguished military experience. The Defence Act 1903-1956, s. 17(1) (Cth) provided: Except during time of war an officer may by writing under his hand tender the resignation of his commission at any time by giving three months' notice. The plaintiff had tendered his resignation and now sought declarations that the Governor-General should have accepted it within the three months' period; and that, on the expiry of that period, he had ceased to be an officer.34 Windeyer J. felt that s. 17 left the question of when a resignation be­ comes effective "to·be governed by the established practices in the service and the common law existing in 1903",35 and he proceeded to consider what those were. After considering the historical concept of offices (civil, military and ecclesiastical) and noting that resignation had generally been a bilateral matter, he proceeded to analyse appointment provisions in a number of Commonwealth statutes and noted that some retained this idea while others clearly contemplated unilateral resigna­ tion. He then rejected a suggestion that an army commission was like one of the ancient compulsory offices in England such as high sheriff, petty constable and others. He regarded the ancient principle that "His Majesty may also, on any occasion, employ, and compel his subjects to serve in such offices or functions as the public good and the nature of the constitution require",36 as "obsolete in general, abrogated by statute in particular in relation to the armed services, and surviving if at 'all in other fields only in conventional courtesies".37 By contrast, Kitto J. found no reason to suppose that this is not still the law, though what the nature of the constitution requires and what duties a subject may be

3S (1964) 111 C.L.R. 549. 34 The case was regarded as a test case, and Captain Marks' legal fees were said to have been paid out of a trust fund set up by officers from all branches of the Services. The number of officers affected was said to be at least 100. (The Adelaide News, 13th August, 1964, referred to in S. Deb., Vol. 26, 160). The Government replied that the number of resignations tendered was "considerably less than 100" (8. Deb., Vol. 27, 1333). The background, apparently, was dis­ content about service pay and conditions, and these were improved in 1964. as (1964) 111 C.L.R. 549, 585. 36 Chitty, Prerogatives of the Crown (1820), 18. 37 (1964) 111 C.L.R. 549, 587. 230 Federal Law Review [VOLUME 5

legally called upon to perform are not necessarily the same today as they were in earlier times.S8 Windeyer J. also rejected an argument that the right of the Crown to hold a man in office against his will was a corollary of s. 16 of the Defence Act providing that "officers shall hold their appointments at the pleasure of the Governor-General". The section merely preserved the old common law rule for military and civil servants of the Crown alike that the Crown may dismiss them at will without notice at any time. To regard the holding of an office at pleasure as making resignation impossible had been rejected in regard to a civil office in Attorney­ General v. Lady Rowe.30 The judgments, however, turned mainly on the interpretation of s. 17 itself and on the prior case law. The cases of Parker v. Lord Clive40 and Vertue v. Lord Clive41 had arisen from an incident in the army of the East India Company. Acting on instructions, Lord Clive, as Com­ mander-in-Chief, had reduced the amount of a field allowance payable to officers whereupon some 200 officers had sent in their resignations and abandoned their duties. The cases arose out of disciplinary pro­ ceedings against two of the officers. The other principal authorities were R. v. Cuming: Ex parte Ha1l42 and Hearson v. Churchi1l43 concerning purported resignations by naval officers. These cases had been cited as authority for an absolute proposition that an officer has no right to resign.44 Windeyer J. was concerned to show that the proposition must be qualified. He placed principal emphasis on the East India 'Company cases, stating that service in the Company had been regarded as equivalent to service under the Crown.tIS Lord Mansfield had laid down only a qualified disability

military officers in the service of the East India Company were not at liberty to resign their commissions, and quit the service,. at any time and under any circumstances, merely ad libitum, whenever they themselves should think fit or be so inclined.46

38 Id., 557. 39 (1862) 1 H. & C. 31; 158 E.R. 789. Owen J. disagreed with this assessment of the case, (1964) 111 C.L.R. 549, 596. Also 561 per Menzies J. 40 (1769) 4 Burr. 2419; 98 E.R. 267. 41 (1769) 4 Burr. 2472; 98 E.R. 296. 42 (1887) 19 Q.B.D. 13. 43 [1892] 2 Q.B. 144. 44 Clode, Military Forces of the Crown, Vol. 2, 96; Halsbury's Laws of England (3rd ed.) Vol. 33, para. 1598. 45 Blachford v. Preston (1799) 8 Term Rep. 89, 93; 101 E.R. 1282, 1284 per Lord Kenyon C.J., 95; 1285 per Lawrence I.; Gibson v. East India Company (1839) 5 Bing. N.C. 262, 273-274; 132 E.R. 1105, 1110 per Tindal C.l.; In re Tufnell (1876) 3Ch. D. 164, 175 per Malins V.C.; contra Hearson v. Churchill [1892] 2 Q.B. 144, 148 per Lord Esher M.R. 46 Parker v. Lord Clive (1769) 4 Burr. 2419, 2419; 98 E.R. 267, 268. 1973] Armed Forces: Employment Rights 231

In both the Parker and Vertue cases, in fact, the question was left to a jury whether in the particular circumstances the officers were justified in resigning. All that these cases established, according to Windeyer J., was that an officer does not upon sending in his papers become entitled at once to leave his post and quit the service. ... The obligation that the cases recognize is to remain in the service until a resignation is accepted. This accords with, the general law concerning the sur­ render of an office. It reflects too the prime principle of military duty that a man must remain at his post until relieved. This how­ ever is not incompatible with a right to be relieved.47 He then referred to nineteenth century military literature which affirmed that duty continued until resignation was accepted, but also indicated that the common practice in peace time was for a resignation to be accepted except in the event of a particular duty incompleted or of misconduct. At the same time, special legislation for volunteer forces (followed in some subsequent legislation both in England and in the Australian colonies) had been interpreted as giving a right of unilateral resignation: R. v. Dowley,48 R. v. Inhabitants of Witnesham.49 But Windeyer J. concluded against the plaintiff's claim, noting that he had not alleged that his resignation had been refused, much less indefinitely refused. The approach of Owen J. differed markedly. He treated as irrelevant the two Lord Clive cases which relate to service in the forces of the East India Company since they were cases in which the relationship between the Com­ pany and officer depended upon contract.50 And he found strong support for the absolute proposition in R. v. Cuming and Hearson v. Churchill. He continued: The sound basis for the rule that an officer has no right, by resign­ ing his commission, to put an end to his obligation to serve the Crown is, in my opinion, that his appointment is held during the pleasure of the Crown. Two results seem to me to follow from that fact. The first is that the Crown may, if it thinks fit, dispense with the services of the officer at any time and without notice; the second that until the Crown is pleased to terminate an appointment held during pleasure by dismissal or by accepting an offer to resign,

47 (1964) 111 C.L.R. 549, 579. 48 (1804) 4 East 512; 102 E.R. 927. 49 (1835) 2 Ad. & E1. 648, 654; 111 E.R. 249, 252. 50 (1964) 111 C.L.R. 549, 596. But see Gibson v. East India Company (1839) 5 Bing. N.C. 262; 132 E.R. 1105; Ex Parte Napier (1852) 18 Q.B. 692; 118 E.R. 261; Grant v. Secretary of State for India (1877) 2 C.P.D'. 445. 232 Federal Law Review [VOLUME 5

the appointee is bound to continue to serve. Service is during the pleasure of the Crown, not during the pleasure of the officer.St Is there any justification for the rule, either in its absolute form. or in its qualified form? Obviously, at least in its qualified form. as enunciated by Windeyer J., there is some justification in the prime principle of military duty that a man must remain at his post until relieved. This however is not incompatible with a right to be relieved.52 But there are clear dangers to the service (as well, of course, as a flagrant injustice to the individual) in an absolute denial of a right to resign or even in a qualified "right to be relieved" which the courts will not enforce. An officer retained against his will might try to secure his release by conduct designed to provoke dismissa1.53 In Marks's case, the Crown argued that the plaintiff's contention that he had a right to resign after his three months' notice would "produce consequences dangerous to the community" in that the Executive Government would be without authority to retain in the armed forces, in conditions of any emergency which fell short of actual war, a sufficient nucleus of officers to ensure efficient leadership and to avoid disintegration. Windeyer J. commented that these considerations might well be matched by others no less serious. Duty and Discipline do not march well with Discontent. The getting of officers for the service is not likely to be aided by uncertainties as to their right to retire: and men might be the less ready to serve as officers in time of war if their release when war ended was unsure.54 But his qualified formulation leaves ambiguities. If there is a right to be relieved, when does that right arise? And is it justiciable? Windeyer J. was able to note that it had not been alleged that resignation had been refused, let alone refused indefinitely, in Marks's case, and found it unnecessary to consider what would be the position in such a situation. Perhaps it would be no different in law, as "what might be expected could not necessarily be enforced".55 Likewise, Kitto J. considered that s. 17(1) implied an expectation that tender of an officer's resignation

51 (1964) 111 C.L.R. 549, 596-597. To attach this consequence to appointments during pleasure might well cause some disquiet among civil servants. 52Id., 579. 53 E.g. Re Nickols's Appeal (1966) 9 F.L.R. 120. M (1964) 111 C'.L.R. 549, 575-576.

6S Id. 1 590. 1973] Armed Forces: Employment Rights 233 would as a general rule be assented to with reaso~able promptitude, but that the subsection stops short, with evident deliberation and very obvious good reason, not only from making the resignation self-executing but also from imposing any legal obligation of acceptance upon the Ex­ ecutive.56 And the only sanction to control exercise of the Executive's discretion was parliamentary, not legal. So it seems that the differing views of Windeyer and Owen JJ. produce no different effect so far as the courts may be concerned and that the rider attached by Windeyer and Kitto JJ. to the Executive's freedom of action in regard to tendered resignations lacks any legal force and can rank only as exhortation. On the same day as judgment was delivered in Marks's case, the High Court also delivered judgment in a naval counterpart, O'Day v. The Commonwealth.57 The relevant legislative provision was s. 13 of the Naval Defence Act 1910-1952 (Cth) which in sub-so (1) spoke only of an officer resigning his commission on three months' notice but in sub-sse (2) and (3) expressly spoke of the Governor-General accepting such resignation. The High Court held that a naval officer was not entitled as a matter of legal right to have his resignation accepted within three months of tender. Kitto J. simply referred to the reasons he stated in Marks v. The Commonwealth and added The course to be followed by the Executive upon receipt of a resignation is not prescribed: it is left as a matter of executive dis­ cretion unfettered by any but political controls.58 Taylor, Menzies and Owen JJ. also gave short judgments referring back to Marks's case. Windeyer J. found nothing in s. 13 to displace the rule that the proffered resignation of an office under the Crown only be­ comes complete and effective when the Crown assents to it, and indeed that s. 13 (2) expressly stated that rule. After reviewing the scope of British and Australian navy legislation he continued: Of course it does not follow, in either the naval or the military service, that because a person is a member until he is actually dis­ charged, he might not have a right to be discharged. In the case of a seaman he has. That is provided for by s. 28 (2) of the Act. But the explicit terms of that provision may be contrasted with s. 13 concerning officers.59

.561d., 557. 07(1964) 111 C.L.R. 599. ~ld., 603. 591d.,606. 234 Federal Law Review [VOLUME 5

But he went on to state that while s. 13 (2) clearly contemplated that a resignation would ordinarily be accepted within three months there was nothing in the Act which "expressly, or by necessary implication, casts a duty on the Crown to accept a resignation within any period of time".60 In O'Day's case the plaintiff had been notified on 13th July 1963 that the Governor-General had refused to accept his resignation submitted on 13th June 1963, but that he could if he desired re-submit it in December 1964, and he was given a similar answer when he again submitted his resignation on 5th September 1963. This was not sufficient to attract any judicial intervention though Windeyer J. suggested that something more might, without specifying the nature such intervention might take: Had the statement of claim alleged that the Crown intended to hold the plaintiff indefinitely in its service, never to release him, and that it had refused absolutely and finally to consider his resignation at any time-then it may be that on the basis of some of the remarks in [the Lord Clive] cases and in Reg. v. Cuming this Court could entertain a claim for some relief. But those are not the facts. And I do not wish to be taken as agreeing that what was said by Lord Mansfield and others in the two early cases has any close bearing on this case.61 And he stressed the differences between service in the East India Com­ pany 200 years ago and in the R.A.N. of today, and, also, historical differences between army and navy service. (Yet in Marks's case he had been concerned to show that both the East India Company cases and the nineteenth century navy cases were relevant to the case of a modem army officer.) The New Zealand case, Hume v. Attorney-General,62 was an even stronger case than O'Day's in that the plaintiff naval officer's resignation had been refused indefinitely. McCarthy J. in the Supreme Court made brief reference to the common law position as expressed in R. v. Cuming; Ex parte Hall63 and Hearson v. Churchill,64 but relied mainly on the language of the two legislative provisions in question. S. 7 of the Naval Defence Act 1913, had been the operative provision when the plaintiff first enlisted and after he had been commissioned but, before he submitted his resignation, it was replaced by s. 19 of the Navy Act 1954, and he argued that as a matter of interpretation (the presumption against retroactivity in s. 20 of the Acts Interpretation Act 1908) the latter enactment should be presumed not to have affected his right to resign under the earlier Act. McCarthy J. rejected this argument on

00 Id., 607. 61 Id., 607. 62 [1960] N.Z.L.R. 880. 63 (1887) 19 Q.B.D. 13. 1M [1892] 2 Q.B. 144. 1973] Armed Forces: Employment Rights 235 the basis that any right to resign under the 1913 Act would only accrue when notice of resignation was given. But he also thought that under neither provision would a proffered resignation become operative until it was accepted. The Marks and O'Day judgments gave relatively clear answers on the question whether Australian army or naval officers had a right to resign. The position of air force officers at this time was rather different. Prior to 1956, Air Force Regulation 73 had been identical with Defence Act, s. 17. But by Statutory Rules 1956, No. 19, a new regulation 73 was substituted. The effect of this lengthy regulation was to confer a limited right of resignation. The circumstances in which a resignation might be refused were set out with some precision, and in other circumstances the Air Board was required to recommend the acceptance of the resignation. But this relatively liberal provision for air force officers was eroded in the legislative response to the Marks and O'Day judgments which was made uniform for all three services. The government repealed the exist­ ing provisions and replaced them with a much more detailed and rigorous provision which leaves no room for the common law. The new s. 17 of the Defence Act65 provides that an officer may tender his resignation to the Military Board "but a resignation shall not be accepted, and is not effective, except as provided by this section" (sub-s. 1). The section continues: (2) The Military Board may, without reference to the Governor­ General, reject the resignation of an officer if- (a) it is tendered in time of war or in time of defence emergency; (b) acceptance of the resignation would, in the opinion of the Board, seriously prejudice the ability of the Military Forces to carry out military operations that they are carrying out or may be required to carry out; or (c) in the case of an officer- (i) who is engaged in, or has completed, a course of special training, a period of employment on special duties or a period of service outside Australia; or (li) who was appointed outside Australia and whose trans­ port, or whose family's transport, was at the expense of the Commonwealth, the officer has not completed a period of service that, under a determination of the Military Board, and in the circum­ stances, the officer is required to complete.66

65 The new Naval Defence Act, s. 13 and the new Air Force Regulation 73 are identical but for references to "naval" and "air-force" instead of "military". 66 A further sub-sub-section, inserted in the Defence Act (only) in 1965, added a further basis for rejection: "(d) the officer would, but for his appointment as an officer, have been liable to render a period of service under the National Service Act 1951-1965". 236 Federal Law Review [VOLUME 5

(3) The Military Board shall forward to the Minister, for sub­ mission to the Governor-General, any resignation that has been tendered and has not been rejected in pursuance of the last preced­ ing sub-section. (4) Where the Minister considers that the resignation of the officer should not be accepted unless and until the officer has complied with a condition, the officer's resignation shall not be submitted to the Governor-General for acceptance until the officer has complied with that condition. (5) The Governor-General may accept, or refuse to accept, the resignation of an officer, and whenever he accepts the resignation of an officer, shall specify in the instrument of acceptance the date upon which the resignation becomes effective. The new provision leaves no doubt that an officer has no right of unilateral resignation. Sub-section (2), considered alone, might be taken as improving the situation of officers by indicating, and thus delimiting, the considerations which justify the Board in rejecting a tendered re­ signation-(a) and (b) are "operational" considerations while (c) is a "return on investment" consideration. Normally the required period of service under (c) would have been laid down in advance of the special training, transport, etc. But the power to reject a tendered resignation is left open by the minister's power under s. 17(4) to "sit on" a resignation until the officer has complied with "a condition". The section does not indicate what sort of condition might be imposed. And even if there were some limit on the minister's power under sub-s. (4), the Governor-General still retains an open discretion (exercisable, presumably, on the minister's advice) whether to accept or reject a resignation. It is instructive to discover what sort of condition was contemplated in sub-s. (4) and, generally, to discover whether the government considered that the new provisions changed the pre-existing law in any respect. In moving the second reading of the Defence Bill, the Minister for Defence, Senator Paltridge, said of the new provision: The Government has taken the first opportunity to give effect to observations by the High Court that the Statutes should indicate more precisely the circumstances in which an officer may reason­ ably expect to have his tender of resignation accepted or rejected. The High Court was unanimous· in the judgment that the Crown retains the right to accept or to decline to accept an officer's resignation. There is no intention to alter this basic law. However provision is now made to show quite clearly the type of circum­ stances that must exist before a Service board would be entitled to refuse a resignation. The new provisions recognize the practice whereby the appropriate Service board makes a recommendation as to whether a resignation be accepted or refused and in cases 1973] Armed Forces: Employment Rights 237

where it is clear that a resignation should be refused the power to refuse is vested in the Service board without the necessity for the resignation to go forward to the Executive Council. In any other case the resignation will be forwarded to the Minister for trans­ mission to the Governor-General and it may fairly be implied that in normal circumstances such a tender of resignation would be accepted. Provision is made however that if the Minister considers that an officer's resignation should not be accepted unless he complies with certain conditions, the officer's resignation would not be submitted to the Governor-General for acceptance until the officer has complied with the conditions. There are a number of officers on whom considerable amounts of public money have been expended in furthering their education. I refer to the cost of putting officers through the naval and military colleges and the R.A.A.F. Academy, the training of undergraduates at universities for appointment as medical and dental officers and the post graduate courses which are made available to officers with the necessary potential. In many instances if an officer who has received these educational benefits wishes to resign, 'his resignation will be rejected unless he has given in return a predetermined period of service. There will be instances however where it is impracticable or in­ equitable to require an officer to continue to serve but in which it would be appropriate to grant him his release only if he reimburses the Commonwealth in whole or in part for the funds expended on him.67 Dr Forbes, the Minister for the Army, in moving the second reading in the House of Representatives gave a similar explanation, and added: Prima facie, the preservation of the basic right to reject a tender of resignation may seem out of consonance with our democratic principles and without counterpart in civilian life. The Military Board has no desire to retain any officer against his wishes, but in the ultimate we must guard against the po'Ssibility of a situation arising which could threaten our national security, and for this reason, apart from the other factors I have mentioned, this basic provision is essential.68 Later in the debate, Dr Forbes said: The honorable member for La Trobe (Mr Jess) raised the question of officers' resignations. He said that he had studied the terms of section 17 as it is proposed to be amended and he found that there did not appear to be very much difference between the situation that had existed previously and the situation that will exist. As I said in my second reading speech, I believe that there will be a considerable difference. Although an officer will not be given

67 S. Deb. Vol. 26,1028-1029 (15th October, 1964). [Italics supplied]. 68 H.R. Deb. Vol. 44, 2320 (27th October, 1964). 238 Federal Law Review [VOLUME 5

an absolute right to resign at will-and obviously this right cannot be granted having regard to the nature of service in the forces-the new provisions will give a great deal more certainty to officers in the Regular Army in particular. I am led to that conclusion by the - terms of the Military Board instruction that it is proposed to issue following the enactment of this legislation. This instruction will give an interpretation of the new section 17 to the officer corps in the Army. For the benefit of the honorable member and the House I would like to read a section of this proposed instruction. It reads- "In determining the advice it-" That is, the Board- "will tender to the Governor-General or in making its decision, as appropriate, the Military Board will b:e guided by the expectation that officers appointed to permanent commissions will have sought such commissions with the- intention of making the Army their career and that short service commissioned officers will normally complete the period of their engagement". ' Then follows the important part- "It is not the desire of the Military Board to hold officers un­ willingly in the Service, and every application to resign will receive sympathetic consideration on its merits. The Board has the duty however to maintain the Army at a high level of efficiency having regard to its operational needs which must be paramount. In such circumstances that operational needs would be seriously prejudiced the Board will not recommend acceptance of resignations until the services of the officers concerned can be sp-ared". I emphasize the words "can be spared". It has been suggested that one of the effects of the current resignation policy of the Board is that officers are committed to a period of servitude for life. This has never been so and it is quite obviously not so under this Military Board interpretation of, the new section 17 of the Act.69 It thus app·ears that what the government intended by the new provision was, firstly, a de jure delegation to the Service Boards of what had previously been, in most cases, a de facto power in deciding whether officers' resignations should be accepted. Previously they had only the power to advise and recommend to their civilian sup,eriors. Now, when there are "operational" or "return on investment" reasons (as defined) for refusing a tendered resignation, the Boards may do so themselves without any reference to the minister or the Executive Council. So ad­ ministrative convenience is one factor underlying the amendment. Secondly, the power of the minister under sub-so (4) appears to have been intended to deal with a situation where there is a "return on invest­ ment" issue involved, but where it is "impracticable or inequitable" for the Service Board to reject the resignation under sub-s. (2)-presumably

69 Id., 2537 (29th October, 1964). 1973] Armed Forces: Employment Rights 239 the Board can pass the case on to the minister with a recommendation that the officer be permitted to commute the remaining portion of his pre-determined period of service for money.70 But the sub-section is not so confined in terms and allows the minister to impose any condition he considers appropriate. Thus he, too, like the Service Board, now has an independent legal power to stop a resignation being accepted.

Thirdly, and otherwise, it seems that the Minister for Defence was more correct, in saying that "there is no intention to alter this basic law", than the Minister for the Army who thought that "there will be a considerable difference". The new provision in sub-so (2) does indicate the dircumstances in which an officer may reasonably expect to have his tender of resignation accepted or rejected, and it may serve the "public relations" function of discounting the idea of servitude for life. But it leaves ample legal power with the authorities, at three levels, to refuse, or to delay acceptance of, a tendered resignation, and it seems to leave no room for the proposition which Windeyer and Kitto JJ. had drawn from the common law cases that there is, ultimately, a right to be relieved. Under s. 17, taken by itself, an officer has no legal right to resign.

Section 17 must, however, now be read subject to s. lOA of the Defence Act,'! also originally inserted in 1964 but which, as amended in 1965, recognizes that an officer appointed for a specified period of service is entitled72 to have his appointment terminated "with all convenient speed" on the completion of that period (subject to the same contingency situations as may affect soldiers). So, in the case of an officer appointed for a fixed period of service, s. 17 now clearly circum­ scribes only his power to resign during the period of his appointment. Section 10A(7)73 provides that the section does

not affect any power expressly or impliedly conferred by any other provision of this Act ... to terminate the appointment of an officer before the expiration of the term of his appointment.

But an officer appointed to a permanent commission is dependent solely on a beneficent exercise of power under s. 17 to secure his release, and, in law (if not in fact) might still be held in "servitude for life", or at least until the prescribed retiring age.

70 Scutage, of course, provides a precedent of considerable antiquity: Maitland, Constitutional History of England, 13, 158, 179. 71 For the navy, s. 9 of the Naval Defence Act is in virtually identical terms and would thus seem to limit s. 13. 72 Whether this entitlement is enforceable in the courts may remain to be decided. 73 Naval Defence Act, s. 9(6). 240 Federal Law Review [VOLUME 5

The nature of the relationship between members of the armed forces and the Crown In Mitchell v. The Queen74 the Cowt of Appeal did not state that the relationship between the Crown and its military servants was not contractual, but did assert a general principle that the relationship be­ tween a member of the armed forces and the Crown is simply non­ justiciable against the Crown. Lord Esher M.R. was emphatic: ... the law is as clear as it can be, ... that all engagements be­ tween 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.75 And after stressing that there was no statute on the matter, he went on: It has been decided over and over again that, whatever means of redress an officer may have in respect of a supposed grievance, he cannot as between himself and the Crown take proceedings in the courts of law in respect of anything which has happened between him and the Crown in consequence of his being a soldier. The courts of law have nothing whatever to do with such a matter.16 In Gillespie v. The Queen77 Madden C.J. in the Victorian Supreme Court referred to Mitchell v. The Queen as establishing that "the soldier has no rights, past, present, or future, in respect of his service as a soldier. Such apparent rights as he may have are not enforceable against Her Majesty".78 The Chief Justice (other of whose judgments do not stamp him as especially deferential to government) then went on to give this doctrine possibly its strongest formulation so that inconsistent colonial legislation would be invalid. The prerogative exists, and unless Her Majesty expressly assented, the local Legislature has no power to take it away, and any Act pur­ porting to do so would be ultra vires:19 The case, like Mitchell's case, was a pay claim, though the contractual element looked stronger than in Mitchell's case. Madden C.J. denied, not the existence of contract, but the existence of a contract enforceable by the petitioner against Her Majesty. The judgment is strange, and bears the marks of some confusion be­ tween two possible theories of the nature of the Crown's special powers in regard to members of the armed forces. If those powers are preroga­ tive in nature (as Madden C.J. stated) it would follow that only statute could displace them and the assent of Her Majesty would be immaterial and would, of course, be an element in the statute. If they stand no

74 (1890) [1896] 1 Q.B. 121 n. 75Id., 122. 76Id., 123. 77 (1895) 21 V.L.R. 584. 78Id., 588. 79 Id., 589. 1973] Armed Forces: Employment Rights 241 higher than implied terms of the contract, then the presumption against the authority of the Crown's contracting agent to displace them might arise (as in Tufnell's case80 or Dunn v. The Queen81 ) and Her Majesty's express assent would be material to rebut that presumption. However the case was brought on the basis, not of some contractual arrangement made by an official, but of regulations under the Defence and Discipline Act 1890, (Vic.). Lord Esher had made a point of noting that there was no statute on the question in Mitchell's case. Madden IC.J. treated the Crown's powers, if prerogative, as superior to a Victorian statute which would be invalid to the extent that it derogated from them. Or, if his theory was that of the implied term, he treated the Victorian Parliament in its legislative function as nothing more than the Crown's agent in the matter of conditions of military service. In view of the constitutional statu'S of the Victorian Parliament at the time, and in view of decisions that colonial Parliaments are not simply delegates of the Imperial Parliament,82 either approach is surprising. The effect is virtually to ignore the role of statute as statute, in matters concerning the armed forces.

The House of Lords held in Owners of S.S. Raphael v. Brandy83 that the doctrine as to dismissal at pleasure did not prevent the relationship between a sailor and the Crown being justiciable as against another and being, in fact, a contract. The question was whether a stoker on a mer­ chant ship who had been injured in an accident was entitled to compen­ sation under the Workmen's Compensation Act, 1906, in respect not only of his wages but also of a retainer of £6 a year which he received as a stoker in the Royal Navy Reserve. The House held he was so entitled as the retainer must be taken into account as earnings under a concurrent contract of service. As to the contention that there was no contract with the Crown, Lord Loreburn L.C. answered that

The authorities cited go no further than to say that when there is an engagement between the Crown and a military or naval officer the Crown is always entitled to determine it at pleasure, and that no obligation contrary to that would be recognized or valid in law.84 This interpretation of the cases certainly runs counter to the more sweeping statements that the contract is unenforceable against the Crown in 'any respect. .

80 (1876) 3 Ch. D. 164. 81 [1896] 1 Q.B. 116. 82 The Queen v. Burah (1878) 3 App. Cas. 889; Hodge v. The Queen (1883) 9 App. Cas. 117; Powell v. Apollo Candle Company (1885) 10 App. Cas. 282. 83 [1911] A.C. 413. MId., 414. The statement must be taken to refer only to contrary contractual obligations. 242 Federal Law Review [VOLUME 5

But in Kynaston v. Attorney-General, a former army surgeon sought a declaration of his rights, arising out of his service, as against the Crown, but the Court of Appeal held that the action was not maintain­ able. Lord Hanworth M.R. is reported as saying that

the terms on which persons in the civil and military services were employed were entirely apart from any form of contract which could not be altered without the consent of both parties ... In re Tufnell ...; Dunn v. The Queen ...; De Dohse v. The Queen ...; Mitchell v. The Queen ...85 The statement as reported is ambiguous. It could be a denial of any contractual element in public employment. If so, and if the basis for excluding contract was the Crown's power of unilateral variation, the conclusion does not follow the premise for the law does recognize as contracts agreements which contain a term allowing for unilateral variation. Alternatively, the statement could simply be a recognition that the agreement was a contract of the latter type so that the variations by the Crown complained of could not give rise to any legal liability. Dicta of Grove J. in Grant v. Secretary of State for India are to similar effect.86 The Crown has itself attempted to assert the legal nature of the relationship in actions against third parties (just as a serviceman was permitted to do in Owners of S.S. Raphael v. Brandy). The scope of actions for trespass per quod servitium amisit in regard to public em­ ployment generally, is a complex matter beyond the range of this article, but for present purposes it is relevant to consider such proceedings instituted in regard to members of the armed forces. In A ttorney-General v. Valle-Jones87 MacKinnon J. held that the Crown was entitled to recover damages for the temporary loss of the services of two R.A.F. aircraftsmen injured in a road accident caused by the defendant's negligence. The Crown had conceded that it could have avoided the cost of wages and medical attention simply by dis­ missing the men, but that this would not have been practicable be'cause of the investment in training them, and because of the damage which summary dismissal would do to the reputation of the Crown and to the service. MacKinnon J. pointed out that had the Crown not paid the wages and medical expenses, the injured men themselves could have recovered the amounts in their actions against the defendant, and he gave judgment for the Crown.

85 (1933) 49 T.L.R. 300, 301. 86 (1877) 2 C.P.D. 445, 453, 459. 87 [1935] 2 K.B. 209. The decision was subsequently disapproved by the Court of Appeal in Inland Revenue Commissioners v. Harnbrook [1956] 2 Q.B. 641. And, as pointed out in later cases, the central question-whether the action was available in respect of a serviceman-was not considered. 1973] Armed Forces: Employment Rights 243

But when the same issue came before the High Court of Australia in The Commonwealth v. Quince,,88 the Court held by a majority that the action would not lie. 'Counsel for the Commonwealth argued that entitlement to damages for loss of services did not necessarily depend on any contractual relationship but rather on a master-servant relation­ ship which might exist independently of contract. But it was also contended that the relationship between the Crown and a member of the armed forces was, to a limited extent, a contractual relationship. Counsel for the defendant denied any contractual relationship, and also denied that a member of the R.A.A.F. could be regarded as a servant of the Crown. All members of the Court agreed that the relationship between the airmen and the Crown was not contractual. After considering the relevant regulations as to the Active Citizen Air Force, Latham C.J. said:

Enlistment in the armed forces of the Crown may be voluntary ... or compulsory ... As Philp I. said in his judgment, it is difficult to suppose that a contract exists in the case of compulsory enlistment, and it cannot be argued that the relations between the Crown and a member of the forces in such a case are different from those which exist between the Crown and the person who has enlisted voluntarily. The oath of enlistment imposes an obligation to render service, but that obligation is created by law, and does not depend upon any 'contract to which the airman and the Crown are parties. The airman becomes subject to military discipline; but in enforcing discipline officers in the forces are not performing or acting under a contract; they are performing duties incidental to their position. The airman cannot sue the 'Commonwealth for breach of contract, except that he may sue for his pay after discharge. The remedies of damages, injunction and specific performance are not available either to the airman or to the Crown. The airman, in rendering service in the military forces, is performing a national duty, now largely defined by statute, and is not performing a contract made with the Commonwealth. The Commonwealth in relation to the airman acts in pursuance of statutory and common law powers, and is not engaged in performing any contract with him.89 Rich J. relied on decided cases, and especially the views of Lord Esher M.R. in Mitchell v. The Queen" as establishing that Crown servants

possess no rights against the Crown justiciable in courts of justice unless such rights have been conferred upon them by statute ...

88 (1944) 68C.L.R. 227. Rich, Starke and McTiernan JJ., Latham C.J. and Williams J. dissenting. 89 Id., 234-235. 90 (1890) [1896] 1 Q.B. 121 n., 122, 123. 244 Federal Law Review [VOLUME 5

This rule is just as applicable to persons in the civil as in the military service of the Crown, in the absence of some statutory provision to the contrary.91 Starke J., who was conscious of the anomalous nature of the action per quod servitium amisit generally, stated that a person in the armed forces of the Crown is performing a national duty and does not become a Crown or governmental servant or employee in any true sense of that term. ... no civil contract is created between the King and members of the forces. Indeed, that is expressly provided in the case of officers ...92 It is respectfully submitted that the English cases relied on do not establish that there is no contractual relationship between the Crown and members of the armed forces, and even less (despite Rich J.) between the ,Crown and its civil servants. Obviously the Crown's relation­ ship with conscripts is outside the scope of contract, but it does not follow that the Crown's relationship, with persons who 'have voluntarily enlisted in the forces should also be denied any contractual basis, for the very fact of voluntary enlistment connotes a consensual element. The power to conscript is today based on statute. Statute might also authorize conscription for civil employment but that does not take voluntary civil employment out of the domain of justiciable contract. The fact that conditions of service are regulated by law rather than by agreement no more takes such relationships outside contract than, in the case of private employment relationships, the operation of industrial awards and other (regulatory elements. The special rules as to future pay and pensions are historic anomalies; the rule of dismissal at pleasure may be justified by public policy, pending legislative provision; the rule denying the serviceman an action for accrued earnings has doubtful foundations, and has, in fact, been partly abolished by provi­ sions in Commonwealth legislation for the armed forces allowing a right of action after discharge. Legislation for the Australian forces does specifically exclude any element of civil contract in the relationship between the Crown and officers, but does not in terms extend to.non­ officers. Furthermore, as Williams J. made clear93 (contra McTiernan J.)94 it was not necessary for the purposes of Quince's case to establish the existence of a contractual element. Both Latham C.J. and Williams J. held that there was a master-servant status relationship" independently of contract, sufficient to found an action per quod servitium amisit. The action had its origins in times earlier than the development of contract

91 (1944) 68 C.L.R. 227, 241-242. 92 Id., 245. 93Id.,254. MId., 250. 1973] Armed Forces: Employment Rights 245 liability and "rested at bottom on the idea that the master had a quasi­ proprietary interest in 'his servant's services; and that idea is connected with ideas as to the, status of a servant . . ." ,95 and this sort of descrip­ tion is today perhaps uniquely applicable to the position of a member of the armed forces. It is, I think, true that a member of the forces is not a servant of the Crown in such a sense that the ordinary law of master and servant determines the relations of the parties. He may not be an officer or servant of the iCrown within the meaning of a statute which imposes liability upon the Crown for the acts of its officers and servants-as was held in McArthur v. The King.96 But the very essence of his position is that he is bound to render service, to obey orders, and, in my opinion, the history of this form of action shows that in such cases the action lies, even though the obligation is not based on contract.97 But Rich and Starke JJ. disagreed. In the opinion of Rich J., the services rendered to the Crown by members of those forces differ in kind from those rendered by a servant to a private master under a contract of service, and there is no principle upon which the Crown can recover in an action per quod servitium amisit in respect of the loss of such services.98 Whether or not the action per quod servitium amisit has any rational place in the mid-twentieth century, and whether it should apply to public employment relationships (civil or military) are questions which have provoked much discussion. It is, however, unfortunate that these issues provided the litigious context, just as the Second World War provided the temporal context, for judgments on the relationship between the Crown and members of the armed forces which were sub­ sequently to have such influence. In p'articular, the proposition from English authorities to the effect that a serviceman has no right of action was endorsed and transposed to Australia without any real examination, and provided the basis for the High Court's narrow interpretation of legislation in Welsh v. The Commonwealth99 and Allpike v. The Com­ monwealth.l The relationship should be regarded in the same light as any other employment relationship, that is, as basically contractual· (except in the case of conscripts) though with most of the tenns of that contract being provided by or under statute. The English decisions do not deny

96 Holdsworth, History of English Law (2nd ed., 1937), Vol. VIII, 429. 98 [1943] 3 D.L.R. 225. 97 (1944) 68 C.L.R. 227, 238 per Latham C.l. Also 254-257 per Williams J. 9:8 Id., 243. And 246 per Starke J. 99 (1947) 74 C.L.R. 245. 1 (1948) 77 C.L.R. 62. 246 Federal Law Review [VOLUME 5 the contractual nature of the employment, and important decisions and statements in the House of Lords and Privy Council affirm it. The rule of dismissal at pleasure may be proof from all but statutory exclusion but this "is not inconsistent with the existence of a contract until so determined".2 There is no other basis for the view that the contract is unenforceable against the Crown, a view used to justify denying a right of action for pay and pensions, and these cases are unsatisfactory and impossible to reconcile with the Privy Council's handling of Williams v. Howarth.3 The terms of Commonwealth defence legislation specifically deny any contractual nature in the relationship of officers to the Crown, but there is no other basis for the broad view (obiter) in Quince's case that the position of servicemen otherwise is non-contractual.

Conclusion The days of press gangs and "soldiery as rabble" are long since gone. Modern armed forces require the services of educated, technically skilled personnel, and the emphasis in recruitment, both for officers and other ranks, is on presenting service in the forces as a career. To attract voluntary enlistment, especially in the absence of National Service, the conditions of service have to be reasonably competitive with civilian employment. These objectives can hardly be achieved if the government chooses to retain the right to mete out to servicemen the sort of treat­ ment complained of in some of the cases mentioned above. In so far as such powers deter persons from joining the armed forces they are against the public interest in the maintenance of adequate defence forces. Nor is it necessary to retain such rights. The immunity from assign­ ment or attachment of service pay and pensions can be abolished (in so far as it still survives) without any prejudice to any public interest. The question of resignation in Australia appears finally to have been placed on a broadly satisfactory basis. Officers and non-officers alike are entitled to be released on completing the time of their engagement or appointment, "with all convenient speed", save only in the contingency situations. A general power to release them before that time is preserved subject, in the case of officers, to the detailed limitations enacted in 1964. If the power to refuse early release is exercised unfairly there seems little scope for judicial intervention. But the more important matter is the statutory right to be released on the expiry of the agreed period, and this may now be justiciable. It is impossible to find today any rational basis for the common law position on recovery of pay and pensions. Whether the relationship between the Crown and its servicemen is contractual or not should be irrelevant. If the regulations provide that a member of the forces should

2 Reilly v. The King [1934] A.C. 176, 180 per Lord Atkin. s [1905] A.C. 551. 1973] Armed Forces: Employment Rights 247 be paid at a certain rate he should be entitled to receive payment at that rate. This seems to be recognized in Australian pensions legislation and has been partially recognized in Commonwealth legislation granting a right of action after leaving the forces, but the inadequacy of this con­ cession is amply demonstrated by the Welsh and Allpike cases. The legislation should be amended to make clear that there is no place for the doubtful common law rule that a serviceman has no right to his pay, and to indicate that such right is an existing right when pay is earned, even if there is seen to be some point in postponing the power to assert that right in legal action. It may also be questione,d whether there is any need to postpone the right to recover. Courts should no longer be prepared to assume that the ,Crown needs a power to cheat its servants. Lastly, the question of dismissal at pleasure might deserve reconside­ ration. It has been found necessary to supplant this principle in regard to civil servants by giving them effective security of tenure. A career service in the armed forces should also offer basic security. This cannot be provided by the common law rule of dismissal at pleasure. It is not beyond the wit of government to draft legislation providing for proce­ dures and grounds (and, where appropriate, compensation) to cover all cases (even redundancy because of changed political circumstances) in which it may be necessary to dismiss servicemen. In the meantime, the courts could at least abandon 18th and 19th century attitudes when interpreting such legislation as does exist in the field, and show the same concern for the rights of members of the forces as they strive to do in the case of civilians. In cases of doubt or ambiguity, the doubt could be resolved in favour of the serviceman in the knowledge that governments today are perfectly capable of protect­ ing what they regard as their own essential interests.