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Coutts v Commonwealth of Australia

Published online by Cambridge University Press:  24 January 2025

Allan O'Neil
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Extract

Natural justice — Judicial review — Armed forces — Air force officer — Power to dismiss where appointment held at pleasure — Governor-General in Council — Air Force Regulations 1927 (Cth) regulations 72(1), 628(1)

Flight Lieutenant Coutts was an officer in the Royal Australian Air Force. In 1980 the Governor-General in Council terminated his appointment on medical grounds in accordance with Regulations 72(1) and 628(1) of the Air Force Regulations, 1927 (Cth). Regulation 72(1) reads:

An officer shall hold his appointment during the pleasure of the Governor-General, but the commission of an officer shall not be cancelled except for cause and after he has had notice in writing of any complaint or charge made, and of any action proposed to be taken against him and has been given the opportunity of making such statement as he thinks fit regarding the cause.

Type
Research Article
Information
Federal Law Review , Volume 16 , Issue 2 , June 1986 , pp. 212 - 215
Copyright
Copyright © 1986 The Australian National University

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Footnotes

1

(1985) 59 ALR 699; (1985) 59 ALJR 548; High Court of Australia; Mason ACJ, Wilson, Brennan, Deane and Dawson JJ.

References

2 Coutts v Commonwealth (1983) 33 SASR 529.

3 Nettheim, G, “Do Members of the Armed Forces Have Any Rights in Their Employment?” (1973) 5 FLRev 200, 246-247.Google Scholar

4 (1985) 59 ALR 699, 703-704 per Wilson J (with whom Brennan J agreed), 719-720 perDawson J.

5 Ibid 708 per Deane J (with whom Mason ACJ agreed).

6 The Commissioner of Police v Tanos (1958) 98 CLR 383, 396 per Dixon CJ and Webb J.

7 (1985) 59 ALR 699, 700 per Mason ACJ.

8 Ibid 706-707 per Wilson J (with whom Brennan J agreed); 720 per Dawson J.

9 Ibid 715 per Deane J.

10 Ibid.

11 (1982) 151 CLR 342.

12 (1981) 151 CLR 170.

13 (1985) 59 ALR 699, 708 per Wilson J.

14 Ibid 719 per Dawson J quoting Kaye v Attorney-General (Tas) (1956) 94 CLR 193, 203 per Williams J.

15 Ibid 709 Per Brennan J.

16 Ibid 712 per Deane J.

17 Ibid 708 per Wilson J.

18 Sawer, G, Federation Under Strain: Australia 1972-1975 (1977) 147-148.Google Scholar

19 Winterton, G, Parliament, the Executive and the Governor General: A Constitutional Analysis (1983) 128-129.Google Scholar

20 (1982) 150 CLR 113. Although this case concerned different issues the forceful statements of the High Court suggested a general approach that would remove distinction between the rights of sevice persons and others.

21 Statute Law (Miscellaneous Provisions) Act (No I) 1985 (Cth) which repeals s 12 of the Defence Act 1903 (Cth) and inserts a new s 117B.

22 (1985) 59 ALR 699, 704 per Wilson J.

23 Council of Civil Service Unions and others v Minister for the Civil Service [1984) 3 AllER 935.

24 Although with very substantial exceptions: [1984) 3 AllER 935, 948 per Lord Scarman, 956 per Lord Roskill, 951 per Lord Diplock. Similar exceptions are mentioned by Mason J in R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170, 219-220.

25 Barton and Another v R (1980) 147 CLR 75; R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170.