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Imagereal Capture 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.
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