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Do Members of the Armed Forces have any Rights in their Employment?

Published online by Cambridge University Press:  24 January 2025

Garth Nettheim
Garth Nettheim*
Affiliation:
University of New South Wales
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Abstract

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.

Type
Research Article
Information
Federal Law Review , Volume 5 , Issue 2 , June 1973 , pp. 200 - 247
Copyright
Copyright © 1973 The Australian National University

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References

1 (1786) 1 Term Rep. 493; 99 E.R. 1215.

2 Id.,549; 1246.

3 (1863) 3 F. & F. 527; 176 E.R. 236.

4 (1866) 4 F. & F. 806; 176 E.R. 800.

5 Id., 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9 This preamble was repealed, by the Statute Law (Repeals) Act, 1969 (U.K.), on the ground that it merely “recites a well established principle”.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.

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 legislative 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.:ss. 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 Parliament ... “: “The Legal 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.J.: “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.

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.

15 (1947) 74 C.L.R. 245, 268; contra 262-263 per Rich J.

16 (1964) 111 C.L.R. 549, 573.

17 1 Geo. II, St. 2, c. 14, s. 7, enlarged by the Naval and Marine Pay and Pensions Act, 1865, ss. 4 and 5.

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 E.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 E.R. 801. The decision was apparently anticipated by the House of Lords on an appeal from the Court of Session in Scotland in Cathcart v. Blackwood (1765), cited in (1795) 2 Anst. 533, 537; 145 E.R. 958, 959; and in Cooke's Bankrupt Laws (8th ed.) 318.

23 (1790) 3 Term Rep. 681, 683; 100 E.R. 801, 802. [Italics supplied].

24 Id., 682-683; 802. [Italics supplied].

25 Sed quaere? Wells v. Foster (1841) 8 M. & W. 149, 152; 151 E.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.

28 Id., 250-251; 1002.

29 (1795) 2 Anst. 533; 145 E.R. 958.

30 Supra n. 21.

31 (1795) 2 Anst. 533, 541; 145 E.R. 958, 961.

32 (1793) Peake 233; 170 E.R. 140.

33 Id., 234-235; 141.

34 (1790) 3 Term Rep. 681, 682; 100 E.R. 801, 802.

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 Australia, inter alia, the Repatriation Act 1920-1972, s. 52, and the Defence Forces Retirement Benefits Act 1948-1971, s. 85.

36 Logan, op. 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, ss. 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 Ashbourne L.C.

40 Supra n. 27.

41 Supra n. 23.

42 Supra n. 27.

43 Supra n. 33.

44 Logan, op. cit.247.

45 (1822) 3 Brod. & Bing. 275; 129 E.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.

48 (1839)5Bing. N.C. 262; 132 E.R. 1105. The Queen's Bench treated service with the Company as for all relevant purposes equivalent to service under the Crown.

49 Supra n. 31.

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.

52 Id., 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.

54 (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.

56 (1895) 21 V.L.R. 584.

57 Id., 589.

58 &s [1905] A.C. 551.

59 (1946) 62 L.Q.R. 22.

60 E.g. The Commonwealth v. Quince (1944) 68 C.L.R. 227.

61 [1911] A.C. 413.

62 Id., 414.

63 [1920] 3 K.B. 663.

64 Id., 668.

65 (1933) 49 T.L.R. 300.

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 competent 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.

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— 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 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”.

70 (1944) 68 C.L.R. 227, 241-242.

71 (1946) 47 S.R. (N.S.W.) 199, 205.

72 Id., 206.

73 Id., 206.

74 Id., 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 commenton the conduct of the government in the matter.

75 (1947) 74 C.L.R. 245. Latham C.J., Starke, Dixon and McTieman JJ.; Rich and Williams JJ. dissenting.

76 Id., 268.

77 Id., 262-263.

78 Id., 261 per Latham C.J., 262 per Rich J., 266 per Starke J., 267-268 perDixon J.

79 (1948) 77 C.L.R. 62.

80 Id., 68-69 per Latham C.J. McTieman 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 Shir/aw 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 (S.I. 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. 5O.

82 Supra n. 54.

83 Supra n. 55.

84 [1949] 1 K.B. 227.

85 Pensions Appeal Tribunals Act, 1943, s. 11.

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.

88 Section 99; National Insurance (Members of the Forces) Regulations, 1968(S.I.1968, No. 827).

89 Flarty v. Odlum (1790) 3 Term Rep. 681, 682; 100 E.R. 801, 802 per Lord Kenyon C.J.: “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 allowance during semi-retirement, subject to the possibility of recall to full-time service.

90 (1833) 5 B. & Ad. 681; 110 E.R. 942.

91 Id., 688; 944.

92 (1863) 3 F. & F. 527; 176 E.R. 236.

93 Id., 585; 267.

94 (1866) 4 F. & F. 806, 837; 176 E.R. 800, 813. Also 841; 815.

95 (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].

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 E.R. 800.

5 21 & 22 Viet. c. 106.

6 (1877) 2 C.P.D. 445.

7 Id., 453. Also 455. [Italics supplied].

8 (1886) 3 T.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.

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 n. 8, Stawell C.J. did rely on Power v. The Queen (1873) 4 A. Jur. Rep. 288.

16 (1898) 1 N. & S. 91.

17 (1900) 21 L.R. (N.S.W.) 93.

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.

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.

21 Id., 223-224.

22 [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.

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. Nott (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.

29 E.g. Army Act, 1955, ss. 9-14; Air Force Act, 1955, ss. 9-14; Armed Forces Act, 1966, ss. 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, ss. 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, ss. 39(6), 44; Naval Defence Act 1910-1971, ss.28(6). 30; Air Force Regulations, reg. 109.

33 (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” (S. Deb., Vol. 27, 1333). The background, apparently, was discontent about service pay and conditions, and these were improved in 1964.

35 (1964) 111 C.L.R. 549, 585.

36 Chitty, Prerogatives of the Crown (1820), 18.

37 (1964) 111 C.L.R. 549, 587.

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 J.; Gibson v. East India Company (1839) 5 Bing. N.C. 262, 273-274; 132 E.R. 1105, 1110 per Tindal C.J.; In reTufnell (1876) 3 Ch. 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.

47 (1964) 111 C.L.R. 549, 579.

48 (1804) 4 East 512; 102 E.R. 927.

49 (1835) 2 Ad. & El. 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.

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.

52 Id., 579.

53 E.g. Re Nickols's Appeal (1966) 9 F.L.R. 120.

54 (1964) 111 C.L.R. 549, 575-576.

55 Id., 590.

56 Id., 557.

57 (1964) 111 C.L.R. 599.

58 Id., 603.

59 Id., 606.

60 Id. 607.

61 Id., 607.

62 [1960] N.Z.L.R. 880.

63 (1887) 19 Q.B.D. 13.

64 [1S92] 2 Q.B. 144.

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”.

67 S. Deb. Vol. 26, 1028-1029 (15th October, 1964). [Italics supplied].

68 H.R. Deb. Vol. 44, 2320 (27th October, 1964).

69 Id., 2537 (29th October, 1964).

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).

74 (1890) [1896] 1 Q.B. 121 n.

75 Id., 122.

76 Id., 123.

77 (1895) 21 V.L.R. 584.

78 Id., 588.

79 Id., 589.

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.

84 Id., 414. The statement must be taken to refer only to contrary contractual obligations.

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. Hambrook [1956] 2 Q.B. 641. And, as pointed out in later cases, the central question—whether the action was available in respect of aserviceman—was not considered.

88 (1944) 68 C.L.R. 227. Rich, Starke and McTieman JJ., Latham C.J. and Williams J. dissenting.

89 Id., 234—235.

90 (1890) [1896] 1 Q.B. 121 n., 122, 123.

91 (1944) 68 C.L.R. 227, 241—242.

92 Id., 245.

93 Id., 254.

94 Id., 250.

95 Holdsworth, History of English Law (2nd ed., 1937), Vol. VIII, 429.

96 [1943] 3 D.L.R. 225.

97 (1944) 68 C.L.R. 227, 238 per Latham C.J. Also 254-257 per Williams J.

98 Id., 243. And 246 per Starke J.

99 (1947) 74 C.L.R. 245.

1 (1948) 77 C.L.R. 62.

2 Reilly v. The King [1934] A.C. 176, 180 per Lord Atkin.

3 [1905] A.C. 551.