DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
Table of Corrections
6 July 2018
In paragraph 14, an ellipsis has been inserted before subsection 58B(1A).
DATE OF ORDER:
THE TRIBUNAL ORDERS THAT:
2. The appeal be dismissed.
1 The appellant appeals from the decision of a Defence Force Magistrate (“the DFM”) made on 18 May 2017 finding him guilty of one count of obtaining a financial advantage contrary to s 61(3) of the Defence Force Discipline Act 1982 (Cth) and s 135.2(1) of the schedule to the Criminal Code Act 1995 (Cth) (“the Criminal Code”). The DFM found that the appellant had failed to advise Defence Housing Australia (“DHA”) in writing, in accordance with cl 1.5.2(4) of Defence Determination 2005/15 (“the Determination”), that he was sharing a residence in North Adelaide with his partner and that, as a result, he received an overpayment of rental allowance (“RA”) over the period of 12 March 2015 to 18 November 2015 (“the relevant period”) in the amount of $2,904.80, knowing or believing that he was not eligible to receive that financial advantage.
2 There was extensive agreement between the parties as to the facts and the relevant documents, leaving the mental element of the charge as the main area of dispute, viz whether the appellant intended to engage in the conduct by omission. The appellant’s defence was that, although he did fail to report the changed circumstances, this was due to an administrative oversight because of his high work tempo and state of mental health. There was no dispute that he shared his residence with his partner over the relevant period. There was also no dispute that, due to the appellant’s omission to advise DHA of his changed circumstances, he received RA at the “non-sharing” rate over the relevant period when he should have received RA at the lower “sharing with one” rate. After finding the appellant guilty, the DFM imposed a fine of $2,900, $1,450 of which was suspended.
3 The appellant appeals against his conviction on three grounds. The grounds may be summarised as follows:
(1) the Determination is not a “law of the Commonwealth” for the purposes of s 4.3 of the Criminal Code. Consequently, the duty to notify DHA of a change in circumstances is of an administrative character and an omission to perform that duty is not conduct capable of forming the basis of an offence under s 135.2(1) of the Criminal Code (Ground 1);
(2) the DFM found that the omission to perform the duty did not involve dishonesty on the part of the appellant and therefore erred when he addressed the offence as if it were a strict liability offence (Ground 2); and
(3) the DFM misconstrued the evidence, and rejected the appellant’s evidence, thereby erring in fact or as a matter of mixed law and fact (Ground 3).
4 To the extent that Ground 3 raised matters of fact, the appellant sought leave to appeal under s 20(1) of the Defence Force Discipline Appeals Act 1955 (Cth). The grant of leave was not opposed by the respondent and was given by the Tribunal.
5 Each ground of appeal is considered in detail in the reasons that follow.
6 Ground 1 alleges that the charge as amended discloses no offence known to the law and that the DFM made two errors:
(a) in finding that the Determination was a “law of the Commonwealth” within the meaning of s 4.3 of the Criminal Code; and
(b) in failing to find that the duty to notify DHA of a change of circumstances imposed on the appellant by the Determination was not a duty prescribed by a law of the Commonwealth and that an omission to perform that duty could not, therefore, constitute a physical element of the offence charged.
7 The charge of obtaining a financial advantage, of which the appellant was found guilty, arises under s 135 of the Criminal Code.
8 Subsections 135.2(1) and (1A) of the Criminal Code, as in force during the relevant period in 2015, provided that:
135.2 Obtaining financial advantage
(1) A person is guilty of an offence if:
(a) the person engages in conduct; and
(aa) as a result of that conduct, the person obtains a financial advantage for himself or herself from another person; and
(ab) the person knows or believes that he or she is not eligible to receive that financial advantage; and
(b) the other person is a Commonwealth entity.
Penalty: Imprisonment for 12 months.
(1A) Absolute liability applies to the paragraph (1)(b) element of the offence.
9 Section 4.1 of the Criminal Code provides that:
4.1 Physical elements
(1) A physical element of an offence may be:
(a) conduct; or
(b) a result of conduct; or
(c) a circumstance in which conduct, or a result of conduct, occurs.
(2) In this Code:
conduct means an act, on omission to perform an act or a state of affairs.
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
10 Omissions to perform an act are the subject of s 4.3 of the Criminal Code:
An omission to perform an act can only be a physical element if:
(a) the law creating the offence makes it so; or
(b) the law creating the offence impliedly provides that the offence is committed by an omission to perform an act that there is a duty to perform by a law of the Commonwealth, a State or a Territory, or at common law.
11 The scope of s 4.3(b) of the Criminal Code was expanded in 2013 to make it clear that a duty to perform an act, arising under a law operative in Australia or in any State or Territory or under the common law, is sufficient to constitute the basis of the commission of an offence by omission under s 4.3: see the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (Cth) Sch 1 item 1.
12 The applicable fault element for the physical conduct element in s 135.2(1)(a) is intention: see s 5.6(1) of the Criminal Code. Section 5.2 of the Criminal Code relevantly provides for intention as follows:
(1) A person has intention with respect to conduct if he or she means to engage in that conduct.
13 Section 5.3 defines “knowledge” for the purposes of the Criminal Code:
A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.
Defence Act provisions
14 Division 1 of Part IIIA of the Defence Act 1903 (Cth) (“the Defence Act”) is concerned with determinations made by the Minister in relation to remuneration, allowances and other benefits to be paid to Defence Force members and their families. At the relevant time, when the Determination was made and cl 1.5.2(4) was inserted in 2005, s 58B relevantly provided:
58B Minister may make determinations
(1) The Minister may, by instrument in writing, make determinations, not inconsistent with this Act, the Naval Defence Act 1910 or the Air Force Act 1923, providing for and in relation to:
(a) the remuneration of members or cadets; and
(b) the payment of allowances or other pecuniary benefits (except allowances or benefits by way of remuneration) to or for members or cadets, including the payment of additional compensation to members of the Reserves to whom compensation is payable under the Safety, Rehabilitation and Compensation Act 1988; and
(c) the payment of allowances or other pecuniary benefits to or in respect of members of the families of members or cadets; and
(d) leave of absence and long service leave of members; and
(e) the provision of other benefits to or in respect of members or cadets, or to or in respect of members of the families of members or cadets; and
(f) the payment of allowances and expenses to or in respect of, and the provision of travelling facilities for, applicants for appointment or engagement as members in respect of attendance at an enlistment centre of the Defence Force or attendance for interview or examination; and
(g) deductions from the remuneration of a member or cadet or from allowances or other pecuniary benefits referred to in paragraphs (b) and (c); and
(ga) payments, by way of compensation, incentives or other benefits, to:
(i) members of the Reserves; or
(ii) their dependants; or
(iii) their employers, business or professional partners or other associates; or
(iv) other persons;
in relation to the availability of the members for defence service, or for losses incurred or inconvenience suffered because of the members’ absence on defence service (including losses incurred or inconvenience suffered because of the operation of the Defence Reserve Service (Protection) Act 2001); and
(h) the meanings to be attributed to words and expressions used in existing determinations and future determinations made under this section, and the circumstances in which those meanings are to apply.
(1A) A determination made under this section may make provision for or in relation to a matter by applying, adopting or incorporating, with or without modification:
(a) the provisions of any Act or of any regulations made under an Act or of any determination made under this section, section 58H of this Act or section 24 of the Public Service Act 1999, as in force at a particular time or as in force from time to time; or
(b) any matter contained in any other instrument or writing as in force or existing at the time when the first-mentioned determination takes effect.
(1B) A determination under this section may provide that, where an amount has been paid (whether before or after the commencement of this subsection) to a member or cadet or to a member of the family of a member or cadet under the regulations or under a determination made under this section or under Division 2, the member or cadet or the member of the family of the member or cadet is required to pay to the Commonwealth an amount, not exceeding the first-mentioned amount, upon the occurrence of an event specified in the determination, and may provide for the manner of recovery of such an amount.
(3) A determination shall not be made providing for or in relation to the forfeiture or assignment of the whole or part of:
(a) the remuneration of a member or cadet; or
(b) allowances or other pecuniary benefits referred to in paragraph (1)(b) or (c).
(4) A determination takes effect:
(a) on the day on which it is made; or
(b) where another day (which may be a day earlier than the day on which it is made) is specified for the purpose in the determination, on the day so specified.
(5) A determination shall not be expressed to take effect on a day earlier than the day on which it is made in any case where, if the determination so took effect:
(a) the rights of a person (other than the Commonwealth) existing immediately before the last-mentioned day would be affected in a manner prejudicial to that person; or
(b) liabilities would be imposed on a person (other than the Commonwealth) in respect of anything done or omitted to be done before that last-mentioned day;
and where, in a determination, any provision is made in contravention of this subsection, that provision shall be void and of no effect.
(8) The Minister shall cause to be published in the Gazette, in respect of each determination, notice of:
(a) the fact that the determination has been made; and
(b) the place or places where copies of the determination can be obtained.
15 In 2005, when the Determination was made and cl 1.5.2(4) was inserted, s 58C of the Defence Act provided as follows:
58C Tabling, disallowance etc. of determinations
(1) The provisions of section 48 (other than paragraphs (1)(a) and (b) and subsection (2)) and sections 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 apply in relation to determinations as if:
(a) references in those provisions to regulations were references to determinations and references to a regulation were references to a provision of a determination; and
(b) references in those provisions to the repeal of a regulation were references to the revocation of a determination or of a provision of a determination, as the case requires.
(3) Determinations shall not be deemed to be statutory rules within the meaning of the Statutory Rules Publication Act 1903.
16 The provisions appearing in Pt XII of the Acts Interpretation Act 1901 (Cth), to which reference was made in s 58C, provided for the tabling and disallowance of regulations. Those Pt XII provisions were repealed with effect from 1 January 2005: see Legislative Instruments (Transitional Provisions and Consequential Amendments) Act 2003 (Cth) Sch 1 item 7. Nevertheless, the cross-references to those provisions remained in s 58C of the Defence Act for some time. Despite their repeal, the effect of the Pt XII provisions, in relation to the tabling and disallowance of determinations, was preserved by s 4(4) of the Legislative Instruments (Transitional Provisions and Consequential Amendments) Act 2003 (Cth).
17 The power to make determinations is capable of delegation by the Minister by regulation. Section 58E of the Defence Act, as it stood in 2005, provided:
The regulations may make provision for and in relation to the delegation by the Minister of his or her power to make determinations with respect to such of the matters with respect to which determinations may be made as are specified in the regulations.
18 In 2005, the delegation of the Minister’s power to make determinations in relation to specified matters was provided for in reg 72A of the Defence Force Regulations 1952 (Cth).
19 The Determination is dated 20 May 2005 and was made by a delegate of the Minister. It commenced on 31 May 2005. It is reproduced and published in the Defence Force’s Pay and Conditions Manual (“PACMAN”) and is the principal determination governing conditions of service within Australia and overseas. It deals with a wide range of conditions of service, and has comprehensive definitions and provisions. It has been amended a number of times. On 30 November 2005, the same delegate made Defence Determination 2005/52, which inserted cl 1.5.2(4) into the Determination. Clause 1.5.2(4) commenced on 1 December 2005.
20 Part 5 of Chapter 1 of the Determination deals with a member’s rights and obligations. Clauses 1.5.1 to 1.5.4 (as in force during the relevant period in 2015) relevantly provided:
Part 5: Member’s rights and obligations
A member must meet certain obligations when they have an entitlement. This Part sets out those obligations.
1.5.2 Change in member’s circumstances
1. Members are responsible for keeping themselves informed about their entitlements.
2. This clause applies if a member or their dependants meet both these conditions.
a. They have qualified for an entitlement.
b. There is a change in the circumstances by which they qualified.
3. The member must tell their Commanding Officer about the change as soon as practicable.
Note: This requirement helps the Commonwealth prevent overpayments being made.
4. The member must also inform the approving authority for any housing assistance that the member is in receipt of about the change as soon as practicable.
1. This clause applies if a person has been paid more than the amount they are entitled to.
2. The person must repay to the Commonwealth the difference between their entitlement and the amount they were paid.
Example: A member is paid vehicle allowance in advance of travel. They do not travel, or they travel less than they expected to. They must repay all or part of the allowance, whichever applies.
Exception: Where tax has been deducted from an amount overpaid and the amount was paid in a previous financial year.
1.5.4 Recovery by the Commonwealth
1. This clause applies if a member must repay an overpayment of salary or allowances to the Commonwealth.
2. The Commonwealth may recover the overpaid amount from the salary and allowances that the member has been – or may be – paid. The Commonwealth still has the right to recover the overpaid amount by other means.
21 The Explanatory Statement to the Determination relevantly states:
Mechanisms are provided for dealing with a range of general matters such as overpayments, calculation of fortnightly and daily rates, and joint entitlements where a member’s spouse is also an ADF member.
Criminal liability for an omission
22 In Director of Public Prosecutions (Cth) v Poniatowska (2011) 244 CLR 408;  HCA 43 the plurality of the High Court decided that a law creating an offence may impliedly provide that an omission to perform an act, which under the law there is a duty to perform, is a physical element of the offence: at 422  (French CJ, Gummow, Kiefel and Bell JJ), citing s 4.3(b) of the Criminal Code. However, there can be no criminal liability for an omission unless it is an omission to perform a legal obligation: at 421 .
23 Both parties made submissions to the DFM and to us as to whether cl 1.5.2 of the Determination was a law of the Commonwealth giving rise to legal obligations on the part of Defence Force members.
24 The appellant submitted that the DFM erred in declining to dismiss the charge on the basis that it disclosed no offence known to the law. He raised three grounds of objection to the charge before the DFM. Firstly, he submitted that the phrase “law of the Commonwealth” is confined to statutes of the Parliament and does not extend to regulatory instruments such as the Determination. Secondly, even if the phrase “law of the Commonwealth” is not confined to statutes but extends to statutory instruments, the word “law” confines the ambit of the provision to legislative instruments, whereas the Determination is purely administrative. Thirdly, it was said that unless the word “law” is confined to statutes, there would be an unconstitutional abdication of legislative power by the Parliament and an unconstitutional usurpation of legislative power by the Executive in breach of the doctrine of the separation of powers embodied in the Constitution.
25 Each of these objections was reiterated and pressed before us. In addition, the appellant developed an elaborate argument based on the provisions of the then Legislative Instruments Act 2003 (Cth) (“the LIA”) (now the Legislation Act 2003 (Cth)). We will return to this argument later in these reasons.
26 The respondent relied on the decision of the Full Court of the Federal Court of Australia in RG Capital Radio Ltd v Australian Broadcasting Authority (2001) 113 FCR 185;  FCA 855 where the Court held that there is no simple rule for determining whether a decision is of a legislative or administrative character: at 194  (Wilcox, Branson and Lindgren JJ). Instead, it is the task of the Court to determine whether the decision is legislative or administrative, taking into account the relevant considerations accepted in the decided cases: at 194 . The respondent extensively reviewed the relevant considerations, submitting that the duty to notify the approving authority of a change in circumstances in cl 1.5.2(4) of the Determination was a legal obligation, and not mere guidance to decision-makers and recipients of allowances.
27 The DFM dismissed each of the appellant’s objections to the charge. As to the first objection, that the Determination was not a “law”, he held that the ordinary meaning of the word “law” extended beyond statutes and that there was no principle of statutory interpretation that would confine it in this way. There was no obvious reason to exclude regulations, or the Determination, from the expression a “law of the Commonwealth”.
28 As to the second objection, that the Determination was of an administrative character, the DFM held that the Determination sets out general conditions of eligibility for entitlements and the type of entitlements available to members. It does not specify particular terms of employment. Having considered the points raised by the Full Court in RG Capital, as summarised by Tamberlin J in Visa International Service Association v Reserve Bank of Australia (2003) 131 FCR 300 at 424;  FCA 977 at , the DFM held that the Determination was of a legislative character.
29 As to the third objection to the charge, the DFM held that there was no constitutional reason why the word “law” in s 4.3 of the Criminal Code should not be given a meaning which would extend to, and include, cl 1.5.2(4) of the Determination. There was no reason based on the doctrine of separation of powers to read down or not apply cl 1.5.2(4) of the Determination to ss 4.3 and 135.2 of the Criminal Code.
Meaning of the word “law” in s 4.3 of the Criminal Code
30 In our view, the DFM was correct in dismissing each of the three objections raised by the appellant. We accept that the expression “law of the Commonwealth”, as used in s 4.3 of the Criminal Code, extends to and includes cl 1.5.2(4) of the Determination. We now set out our reasons for upholding the DFM’s rulings on the objections and for rejecting the appellant’s submissions concerning Ground 1.
Principles of construction of statutes and statutory instruments
31 It is first necessary to set out the principles of construction relating to statutes and statutory instruments. They are well established. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384;  HCA 28 at , McHugh, Gummow, Kirby and Hayne JJ said:
[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.
32 In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 at 46-47;  HCA 41 at , Hayne, Heydon, Crennan and Kiefel JJ said:
This Court has stated on many occasions that the task of statutory interpretation must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
33 In the same decision, French CJ (at 31 ) said:
[I]t must be accepted that context and legislative purpose will cast light upon the sense in which the words of the statute are to be read. Context is here used in a wide sense referable, inter alia, to the existing state of the law and the mischief which the statute was intended to remedy.
34 These principles are to be applied in the construction of the relevant provisions of the Defence Act and the Determination.
35 The meaning of the expression “law of the Commonwealth” was considered by the High Court in Re Colina; Ex parte Torney (1999) 200 CLR 386;  HCA 57, in the context of s 80 of the Constitution, where Gleeson CJ and Gummow J said (at 397 ):
The term “law of the Commonwealth” refers to laws made under the legislative powers of the Commonwealth. This meaning is settled by a long line of authority.
See also Baker v Chief of Army (2017) 319 FLR 62 at 72;  ADFDAT 3 at - (Tracey, Brereton and Hiley JJ).
36 In Re Colina, McHugh J also said (at 402 ):
A law of the Commonwealth is simply a law made under or by the authority of the Parliament of the Commonwealth.
37 In our view, the same meaning should be given to this expression as it appears in s 4.3(b) of the Criminal Code noting, however, that s 4.3(b) was expanded in 2013 to include the law of a State or Territory and the common law, as described above at . As a result, we reject the submissions by the appellant seeking to confine the expression “law of the Commonwealth” as it appears in s 4.3(b) to statutes or statutes and regulations only. Rather, it extends to any law made under the legislative powers of the Commonwealth, or made by or under the authority of the Parliament of the Commonwealth. Despite the appellant’s submission to the contrary, there is no constitutional limitation or reason which precludes the Tribunal from adopting such a construction of s 4.3(b).
The distinction between legislative and administrative provisions
38 The distinction between legislative and administrative provisions has long been recognised. In Commonwealth v Grunseit (1943) 67 CLR 58 at 82, Latham CJ observed that:
The general distinction between legislation and the execution of legislation is that legislation determines the content of a law as a rule of conduct or a declaration as to power, right or duty, whereas executive authority applies the law in particular cases.
39 Subsequently, in Latitude Fisheries Pty Ltd v Minister for Primary Industries and Energy (1992) 110 ALR 209 at 228-229;  FCA 623 at p 36, French J, quoting D Pearce, Delegated Legislation in Australia and New Zealand (LexisNexis, 1977) at 1-2, accepted that delegated legislation could be defined as:
instruments that lay down general rules of conduct affecting the community at large which have been made by a body expressly authorised so to act by an Act of parliament.
His Honour observed (at 229) that:
In the end, I think the better course in most cases is probably to eschew the taxonic debate and focus upon identification of the rights, duties, powers and privileges which arise as a result of the determination of the plan.
40 In Queensland Medical Laboratory v Blewett (1988) 16 ALD 440;  FCA 708, Gummow J noted (at 456) that the Constitution does not forbid the statutory authorisation of the Executive to make laws:
Rather, the Federal legislative powers of the parliament … authorise the parliament to repose in the Executive an authority of an essentially legislative character, at least where the exercise of the authority is subject to a measure of parliamentary control.
A decision made under an enactment of the Parliament by a Minister or his or her delegate may be essentially legislative in character in a direct and immediate sense: at 456.
41 To like effect, in Minister for Industry and Commerce v Tooheys Ltd  60 FLR 325;  FCA 135, the Full Court of the Federal Court of Australia held that the distinction between legislative and administrative acts was essentially between the creation or formulation of new rules of law having general application and the application of those general rules to particular cases: at 331 (Bowen CJ, Northrop and Lockhart JJ).
42 The distinction between legislative and administrative determinations made under legislative powers was revisited in Federal Airports Corporation v Aerolineas Argentinas (1997) 76 FCR 582;  FCA 723. Justice Lehane (Beaumont and Whitlam JJ agreeing) said (at 591):
If there is anything that the authorities make plain … it is that general tests will frequently provide no clear answer. It is, after all, not difficult to point to authority which supports the proposition that a decision which imposes obligations and is of general operation may nevertheless be administrative or executive … There is no escape … from the need to examine closely the particular provisions and the particular circumstances.
43 These decisions led to the adoption of a factorial approach by the Full Court in RG Capital. After observing that there is “no simple rule for determining whether a decision is of an administrative or a legislative character” (at 194 ) and that no one factor is decisive (at 194 ), the Court listed a number of factors relevant to that determination (at 194-202 -). In summary:
(a) “legislative decisions determine the content of rules of general, usually prospective, application whereas administrative decisions apply rules of that kind to particular cases” (at 194 );
(b) parliamentary control of the relevant decision, for example, by disallowance, although not definitive, is a factor pointing to the decision being properly characterised as legislative (at 198 );
(c) a requirement of public consultation is a further pointer to the decision being one of a legislative nature (at 198-199 -);
(d) provision for review of the decision on the merits, for example, by the Administrative Appeals Tribunal, is an indication that the decision is of an administrative character (at 201 -); and
(e) the fact that a decision has a binding legal effect, in the sense of directly affecting the operation of other statutory provisions, suggests it is legislative in nature (at 202 ).
See also Central Queensland Law Council Aboriginal Corporation v Attorney General of the Commonwealth (2002) 116 FCR 390 at 408;  FCA 58 at - (Wilcox J).
44 The factors to be considered have been subsequently refined and relied on in many cases where there is a need to distinguish legislative actions from administrative decision-making: see, for example, SAT FM Pty Ltd v Australian Broadcasting Authority (1997) 75 FCR 604;  FCA 647; Roche Products Pty Ltd v National Drugs and Poisons Schedule Committee (2007) 163 FCR 451;  FCA 1352; Harbour Radio Pty Ltd v Australian Communications and Media Authority (2012) 202 FCR 525 at 561-563;  FCA 614 at - (Griffiths J); Seafish Tasmania Pelagic Pty Ltd v Minister for Sustainability, Environment, Water, Population and Communities (No 2) (2014) 225 FCR 97 at 118-121;  FCA 117 at - (Logan J); Sea Shepherd Australia Ltd v Western Australia (2014) 313 ALR 184 at 192-198;  WASC 66 at - (Edelman J); Applied Medical Australia Pty Ltd v Minister for Health (2016) 246 FCR 555 at 577-579;  FCA 35 at - (Robertson J); Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296 at 305-307;  FCA 348 at - (Robertson J).
45 However, in McWilliam v Civil Aviation Safety Authority (2004) 142 FCR 74;  FCA 1701, Selway J observed that previous authority should not be understood as suggesting that administrative and legislative decisions fall into two mutually exclusive categories or that such categories can be clearly identified by particular characteristics: at 83 -.
Construction of the empowering provision
46 Section 58B of the Defence Act is the legislative power authorising the making of the Determination. It is fundamentally important that s 58B(1) deals with the financial entitlements of members of the Defence Force, including the payment of remuneration, allowances, compensation, incentives, and other benefits. Determinations are intended to confer and define such financial entitlements of members. They constitute the legal authority for the payment of remuneration and benefits. The entitlement of each and every member of the Defence Force to remuneration and other benefits is dependent on determinations made under s 58B(1). Clearly, the statutory purpose of s 58B is better effectuated if determinations are treated as law rather than as mere guidance as to what members should expect to receive and be paid.
47 Moreover, s 58B(1B) is concerned with the repayment to the Commonwealth of amounts or allowances which may have been overpaid to members and the families of members, such as in this case. The making of a determination that will require the repayment of monies in the circumstances described in the determination is a power conferred by s 58B(1B). The purpose of this power will not be achieved, or is much less likely to be achieved, if the provisions of a determination are regarded as mere guidance, rather than as establishing a duty and binding obligation to make repayment.
48 In our view, the language of s 58B(1B) points to the conclusion that determinations made under that power are intended to give rise to binding obligations. The provision directs that a determination may provide that a member or cadet or family member “is required to pay to the Commonwealth [the] amount”. A determination may provide “for the manner of recovery of such an amount”. It is clear, in our view, that the legislature intended that determinations requiring repayments or providing for the manner of recovery of overpayments would have the force of law and give rise to legal duties and obligations. This legislative purpose is not met if determinations are only administrative in character and are devoid of legal effect or enforceable consequences.
49 In addition, there are other indications in the statutory text of s 58B and 58C, as those provisions stood in 2005, that suggest determinations made under those provisions are intended to have legal effect:
(a) determinations are made by the Minister or a delegate by an instrument in writing not inconsistent with the Defence Act and other legislation (s 58B(1));
(b) a determination can apply, adopt, or incorporate, with or without modification, the provisions of other Acts or regulations, or the content of other instruments in force at the time when the determination is made (s 58B(1A));
(c) determinations cannot provide for the forfeiture or assignment of the whole or part of a member’s remuneration, allowances or other pecuniary benefits (s 58B(3));
(d) a determination takes effect on the day on which it is made, or another specified day (s 58B(4)), but cannot be expressed to take effect on a day earlier than the day on which it is made where the rights of a person (other than the Commonwealth) would be prejudicially affected, or a liability imposed on a person (other than the Commonwealth) in respect of anything done or omitted to be done prior to that day (s 58B(5));
(e) the Minister is required to cause notice of the making of a determination to be published in the Gazette, and of the place or places where copies of the determination can be obtained (s 58B(8));
(f) at the time when cl 1.5.2 of the Determination was made (on 20 May 2005) and relevantly amended (on 30 November 2005), and over the relevant period in 2015, determinations were disallowable instruments:
(i) in 2005, determinations were disallowable instruments by virtue of s 4(4) of the Legislative Instruments (Transitional Provisions and Consequential Amendments) Act 2003 (Cth), which preserved the effect of Pt XII of the Acts Interpretation Act 1903 (Cth) despite the repeal of that Part. Prior to the repeal of Pt XII, which coincided with the commencement of the LIA, a determination made under s 58B was, by virtue of s 58C of the Defence Act, subject to tabling and disallowance in the same manner as a regulation under Pt XII, albeit that a regulation was made under the authority of the Governor-General in Council rather than a Minister;
(ii) in 2010, s 58B(4) of the Defence Act was amended to expressly provide that “[a] determination is a disallowable instrument for the purposes of s 46B of the Acts Interpretation Act 1901” (s 46B otherwise applied to “disallowable non-legislative instruments”): see Defence Legislation Amendment Act (No. 1) 2010 (Cth) Sch 3 Pt 1 item 2. These amendments did not apply to determinations made and varied prior to the commencement of these amendments on 2 August 2010: see Defence Legislation Amendment Act (No. 1) 2010 (Cth) s 2(1), Sch 3 Pt 2 item 5;
(iii) in 2015, s 46B of the Acts Interpretation Act 1901 (Cth) was repealed and s 58B(1) of the Defence Act was amended to provide that “the Minister may, by legislative instrument, make determinations”: see Acts and Instruments (Framework Reform) Act 2015 (Cth) Sch 1 Pt 5 items 117 and 119. Those amendments, which commenced on 5 March 2016, made determinations subject to disallowance as legislative instruments: see Legislation Act 2003 (Cth) ss 8(2), 42. Despite its repeal, the application of s 46B was preserved for determinations in force immediately before the commencement the amendments: see Acts and Instruments (Framework Reform) Act 2015 (Cth) Sch 1 Pt 7 item 179; and
(g) the Minister’s power to make determinations could only be delegated with respect to those matters specified in the regulations (s 58E).
Construction of the determination
50 The provisions and language of the Determination, particularly the operative provisions, should also be scrutinised to see whether they are intended to give rise to legal obligations, and have legal effect. In the present case, these are unmistakable indications that the provisions of Pt 5 of the Determination are intended to give rise to legal rights and obligations:
(a) the heading of Pt 5, which is the operative part of the Determination, is entitled “Member’s rights and obligations”;
(b) the purpose of Pt 5 is to set out the obligations of members where they have an entitlement (cl 1.5.1);
(c) clause 1.5.1 provides that “[a] member must meet certain obligations when they have an entitlement”;
(d) clause 1.5.2 describes members as responsible for keeping themselves informed about their entitlements and provides that, where there is a change of qualifying circumstances, “[t]he member must tell their Commanding Officer about the change as soon as practicable” (cl 1.5.2(3));
(e) clause 1.5.2 also provides that “[t]he member must also inform the approving authority for any housing assistance that the member is in receipt of about the change as soon as practicable” (cl 1.5.2(4)). It was the omission to perform this duty which formed the basis of the appellant’s conviction under s 135.2(1) of the Criminal Code;
(f) clause 1.5.3 applies where a person has been paid more than the amount to which they are entitled and provides that the person “must repay to the Commonwealth the difference between their entitlement and the amount they were paid” (cl 1.5.3(2)); and
(g) clause 1.5.4 applies if a member must repay an overpayment of salary and allowances to the Commonwealth. It provides that the Commonwealth may recover the overpaid amount from the salary and allowances of the member, whilst confirming that the Commonwealth has the right to recover an overpaid amount by other means (cl 1.5.4(2)).
51 It is convenient to adopt the succinct statement of the factors considered by the Full Court in RG Capital and by Tamberlin J in Visa International at 424 . Aronson, Groves and Weeks summarise these factors by asking whether the challenged matter:
(i) creates new rules of general application, rather than applying existing rules to particular cases;
(ii) cannot be made until there has first been wide public consultation;
(iii) incorporates or has regard to wide policy considerations;
(iv) can be varied or amended unilaterally by its maker, the analogy being to primary legislation;
(v) cannot be varied or amended by the Executive;
(vi) is not subject to merits review in a tribunal such as the [Administrative Appeals Tribunal];
(vii) can be reviewed in Parliament (for example, it is a disallowable instrument);
(viii) triggers the operation of other legislative provisions; and
(ix) has binding effect.
See M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 6th ed, 2017) at 93 [2.500]. See also Schwennesen v Minister for Environment and Resource Management  QCA 340 at  n 66 (Holmes and Fraser JJA and Mullins J).
52 We now consider each of these factors in the present circumstances:
(a) New rules of general application
The Determination is the main determination dealing with conditions of service within Australia and overseas, and addresses a wide range of matters. It applies to the members of the Australian Defence Force of all three services, their families and cadets. The Determination establishes general rights and obligations in relation to pay and allowances. It does not purport to apply rules to a particular set of facts.
(b) Wide public consultation
The Explanatory Statement to the Determination notes, at p 2, that policy-makers in the Defence Personnel Executive were closely involved in developing and reviewing the structure and text of the revised chapters of the Determination “as drafting progressed over a period of 18 months”. Drafts were circulated to Defence administrators in Canberra and throughout Australia during this period and “[m]easures were taken to ensure that the extensive practical comments from users of the provisions were incorporated, without changing the policy effect of the [previous determination].” Although there was some debate as to this during the hearing, the Tribunal was informed by the Director of Military Prosecutions that the Determination was published on the Department of Defence intranet, and reproduced in the PACMAN. Regardless of the debate, but having regard to all other indicators and factors, the outcome of the appeal is not affected by any doubt that may exist as to the extent of public consultation prior to approval of the Determination.
(c) Wide policy considerations
The Determination has extensive scope. Defence Force conditions of service have considerable public importance, affecting the conduct of military operations in and out of Australia, as well as the remuneration and terms and conditions of service by Defence Force members within Australia. The Determination affects permanent and reserve Defence Force members, family members and cadets.
The Determination can be varied or amended by the Minister or delegate. This routinely occurs.
(e) Cannot be varied or amended by the Executive
The Determination cannot be varied or amended by executive actions; it can only be varied in the manner authorised by s 58B of the Defence Act.
(f) Merits review
A person dissatisfied with the Determination has no right to seek review of the Determination before the Administrative Appeals Tribunal. No other form of administrative review is available.
(g) Parliamentary review
As noted above, the Determination is subject to Parliamentary control and is subject to tabling, disallowance and incorporation in the same manner as other legislative instruments. Determinations and amending determinations are notified in the Gazette.
(h) Binding effect
As discussed above, the Determination is intended to have binding effect. The Determination must also be read in the context of other statutory obligations, for example, the obligation to promote the efficient, effective and ethical use of Commonwealth resources, and to use and manage public resources properly: see s 44 of the then Financial Management and Accountability Act 1997 (Cth); Public Governance, Accountability and Performance Act 2013 (Cth) s 5(c)(iii).
53 In the Tribunal’s view, the weight of the factors considered above strongly favours the view that the duty to notify the approving authority of a change of circumstances in cl 1.5.2(4) of the Determination gives rise to a legal obligation, and is not a mere administrative policy or an unenforceable expectation.
Distinction between the determination and policy statements
54 The Determination and the applicable empowering provisions are clearly distinguishable from the provisions before the Tribunal in Baker v Chief of Army (2017) 319 FLR 62;  ADFDAT 3. In that case, the operative clause in a Defence Instruction provided that: Defence personnel were to have responsibility for taking all practical steps to protect the health and safety of themselves and others in the workplace; supervisors were to be accountable for reasonably practicable action to prevent unacceptable behaviour in the workplace; and commanders and managers were to “manage and report all unacceptable behaviour complaints promptly and impartially in accordance with [the] Instruction”: at 73 . The Tribunal described these provisions as, in effect, “aspirational statements of policy”. They were “not provisions which could justify or excuse conduct that would otherwise constitute an offence”: at 73 .
55 In Baker, the relevant empowering provision was s 11 of the Defence Act. This section authorises the Secretary and the Chief of the Defence Force to issue instructions “[for] the purposes of the administration of the Defence Force”. Defence instructions made under s 11 are not subject to the formalities and requirements that apply to determinations made under s 58B of the Defence Act: see above at  and .
Appellant’s characterisation submission
56 There is one other submission made by the appellant concerning Ground 1 that remains to be dealt with by the Tribunal: see above at . The appellant submitted that, during the relevant period in 2015, the characterisation of the Determination was governed by the provisions of the then LIA and that this affected the characterisation of cl 1.5.2(4) of the Determination.
57 Although the submission was put in a number of ways, the main thrust of the appellant’s submission was that, if a determination under s 58B of the Defence Act was declared by s 7(1) of the LIA not to be a legislative instrument, then it could not be a legislative instrument or law of the Commonwealth for any purpose. The flaw in this argument is that s 7 of the LIA only declared determinations under s 58B of the Defence Act not to be legislative instruments “for the purposes of this Act”.
58 These critical words in s 7 of the LIA restricted the operation and effect of the provision relied on by the appellant to the LIA itself. It is clear that the provisions of the LIA were not intended to have wider consequences, or affect the interpretation of the Criminal Code. Nothing in the LIA or any other enactment provides otherwise.
59 The object of the LIA, found in s 3, was to provide a comprehensive regime for the management of Commonwealth legislative instruments through the establishment of a register. The register was to serve as a repository for legislative instruments including explanatory statements and compilations. Section 3 made clear that the new regime for the management of Commonwealth legislative instruments was intended to effect enhancements in consultation, drafting, public access, parliamentary scrutiny and periodic review.
60 Having regard to the express object and purposes of the LIA, the Tribunal is not persuaded that the provisions of the LIA offer any assistance in the construction of the phrase “law of the Commonwealth” in s 4.3 of the Criminal Code or in the resolution of the other issues before the Tribunal.
61 The exemption of determinations made under s 58B of the Defence Act from the provisions of the LIA generally, as provided for by s 7, make it plain that the LIA was not intended to have any role in the interpretation of the criminal law of the Commonwealth.
Conclusion as to Ground 1
62 For these reasons, Ground 1 of the Notice of Appeal must be dismissed.
GROUNDS 2 and 3
63 In short, the prosecution case at trial was that the appellant was required to advise DHA in writing that he was sharing a residence in North Adelaide (“the property”) with his partner “as soon as practicable” after that change in the circumstances by which he qualified for the “not sharing” rental allowance occurred. Although that change occurred on 12 March 2015, when his partner commenced living at the property on a full-time basis with the appellant, he did not notify DHA of that change until 18 November 2015.
64 The prosecution contended that the conclusion that his failure to so notify DHA was intentional can be inferred from a number of circumstances. These include: the fact that he did not notify DHA until 18 November 2015, some eight months after the change in circumstances; that he only notified DHA then as a result of a discussion earlier that day with his Administration Officer (“ADMINO”), FLGOFF Felicity Shearer (nee Upton); that he was well aware of the relevant requirements (under cl 1.5.2(4) of the Determination); that he had in the meantime notified DHA about other changes in circumstances that related to his entitlements, for example an extension to an overseas deployment in April 2015; and that he represented to DHA that he was “not sharing” when he returned his annual RA rent review form in April 2015.
65 In his opening before the DFM counsel for the appellant contended that the appellant’s failures to notify DHA were due to a number of circumstances including some mental health issues following his service overseas and the fact that he was very busy doing other things between March and November 2015. At no time did he attempt to hide the fact that he and his partner were living together after 12 March 2015. Counsel also stressed that the appellant was a man of good character. The prosecution, he submitted, had not established that the appellant had the necessary intent.
66 Counsel indicated before the DFM that he was proposing to call five witnesses on behalf of the accused, one of whom was SQNLDR Alex Cave, his immediate superior. SQNLDR Cave was the Commanding Officer (“the CO”) of the Joint Electronic Warfare Operations Support Unit. SQNLDR Cave would give evidence about his understanding of the relationship between the appellant and his partner and the fact that there appeared to be no effort on the part of the appellant to hide the fact of that relationship.
67 The appellant had been in a relationship with his partner since 2013. On 14 October 2014 both of them signed a lease document in relation to the property. The appellant was listed as the tenant and his partner was listed as a person permitted to reside at the premises. It was agreed, however, that at that time they were not cohabiting.
68 Later that day, on 14 October 2014, the appellant made an RA application to DHA using the DHA online service portal. He stated that he was a member without dependants (“MWOD”) and “not sharing”. He also indicated that his rent was $790 per fortnight. DHA processed his application and authorised RA to be paid to him based on the “not sharing” contribution rate for an MWOD.
69 On 12 February 2015 the appellant electronically signed an “AE162 Deployment Housing Retention” form notifying DHA of his forthcoming deployment from 3 March 2015 to 14 April 2015. On 23 February 2015 the appellant updated his next-of-kin details on the Personnel Management Key Solution (“PMKeyS”) program noting his partner as his “spouse” and as his primary next-of-kin contact. Notwithstanding that her address was shown as the property it was agreed that they were not cohabiting at that stage. A few hours later the appellant telephoned someone at DHA to confirm that they had received his AE162 form about his upcoming deployment. A consequence of him being so deployed was that he would be exempt from paying any contribution towards his rent and would thus be entitled to receive RA at a higher rate, equal to the total amount of his rent of $790 per fortnight.
70 The appellant was deployed on Operation OKRA on 3 March 2015 and returned to Australia on 17 April 2015, a short time after his intended return date. He notified DHA by email on 13 April 2015 that his return date had been extended. Accordingly he was entitled to, and did, receive the rental subsidy at the higher rate for that further period.
71 It was agreed that, on 12 March 2015, his partner commenced living at the property on a full-time basis with the appellant and that she commenced contributing to a joint bank account from which expenses, including rent, were met.
72 On 17 April 2015 DHA emailed the appellant about the annual RA rent review to be completed using the DHA online service portal. The form included the words “no change” opposite the words “not sharing” in the field marked “sharing”. When it was put to him that, when he submitted that form, he knew he had to inform DHA that his partner was in fact sharing with him, he had agreed “that would be logical but … it didn’t trigger.”
73 For some nine months the appellant had been expecting to be posted to Williamtown, New South Wales. However he was notified sometime between 12 and 17 November 2015 that he was to be posted to East Sale for about six months before going to Williamtown. Meanwhile he had already begun packing and sending some of his personal effects to Williamtown.
74 On 18 November 2015, at approximately 1000 hours, he attended a meeting with his ADMINO, FLGOFF Shearer. The purpose of the meeting was to discuss the appellant’s upcoming posting and what arrangements could be made for his partner to join the appellant or to obtain reunion travel. During discussions about whether or not their relationship was such that his partner would be entitled to such an allowance he told FLGOFF Shearer that they had been living together for some time. He had not previously informed DHA that he was sharing with her.
75 Later that day, at 1345 hours, the appellant emailed DHA advising of the change of his sharing circumstances. He said:
Good Afternoon DHA,
I have checked online – it appears that some information has been omitted since my last review around May 15. Since 12 March 15, I have had a housemate (my now partner) living with me … . I understand I will have to repay the monies owed – happy to make a lump sum payment. Apologies for not picking this up earlier.
76 During a recorded interview on 22 December 2015, known as the “digital record of interview” (“the DROI”), the appellant admitted that his partner had been living permanently at the property since March 2015. It was agreed that between 12 March 2015 and 18 November 2015 the appellant did not notify DHA of his change in circumstances, in particular that he was sharing with her. During that time the appellant received RA at the MWOD “not sharing” rate based on his rank and living location of Adelaide. During that time he should have been receiving RA at the MWOD “sharing with one” rate. Consequently, he received an overpayment of $2,904.80.
77 Much of the evidence comprised various documents. These included screen-prints of entries made by the appellant on the DHA portal and emails. Also tendered was a detailed Statement of Agreed Facts.
78 FLGOFF Shearer gave evidence about her meeting with the appellant at about 1000 hours on 18 November 2015. She said that SQNLDR Cave suggested to the appellant that he have a chat with her about his upcoming posting to East Sale.
79 She said that they discussed his upcoming posting and whether his partner at the time could live with him or whether they could have reunion travel. She said “it was established that they needed to be in an interdependent relationship for that to occur.” She said that they established that the appellant was not in such a relationship “at that stage” as the applicable policy required that they had to have been living together for 90 days. The appellant replied: “We’ve been living together roughly a year.”
80 They then discussed how he would prove that they had been living together. FLGOFF Shearer said that “the notification that he sent to DHA that somebody had moved in with him, that they were living together, would have been sufficient to prove they were living together.” The appellant responded by saying something like: “I haven’t done that” or “I didn’t know I had to do that”.
81 FLGOFF Shearer told the appellant that he was required to notify DHA in writing and she showed him the relevant PACMAN reference on her computer. She said that “he seemed unaware that he needed to send them that notification” and that he “said that he had not done that at that stage.”
82 The appellant gave evidence about his progress through the Royal Australian Air Force (“RAAF”), his various postings in Australia and overseas, and his relationship with his partner since August 2013. He talked about various stresses involved in his work and about seeking help from a psychologist. He also said that he had introduced his partner to his Flight Commander, SQNLDR Cave, and they would sometimes socialise with him and his partner.
83 The appellant’s counsel asked him how, in November 2015, he realised that he had not reported the fact that his partner was living with him in that capacity. The appellant said that for nine months he had been expecting to be posted to No. 77 Squadron RAAF at Williamtown. Sometime between 12 and 17 November 2015 he was at Sydney airport, on his way home from a funeral in America. He received a telephone call from the Executive Officer (“the XO”) of No. 81 Wing RAAF advising him that his posting had changed and that he was to attend a six month flying instructors’ course at East Sale before commencing his Williamtown posting. He was “very upset, angry” about that. He did not see this as part of his career path. Also, he had already packed up and sent a lot of his belongings off to Williamtown.
84 He said it was then that he “realised [he] hadn’t told DHA about [his partner].” He was then asked what steps he took. He said: “Fixed it online, saw the ADMINO, sent them an email.”
85 His counsel then asked him whether he talked to his CO, presumably SQNLDR Cave, as well. He said: “Yes. So, I rang the CO when I was at Sydney Airport, after I got the call from XO 81 Wing, and firstly asked him if he can change it back to my original posting.” He did not say anything about any discussion with SQNLDR Cave about his RA.
86 At the end of his evidence-in-chief he was asked whether he was “able to advance any the reason to the Court why [he] didn’t change [his] particulars to acknowledge [his partner’s] attendance until [he] did in November 2015.” He replied: “Admin oversight.” He was then asked whether he did that “as a deliberate effort to get the additional benefit” and he answered: “No.”
87 He was cross-examined at length about his knowledge of relevant procedures and his use of various means to access DHA over the preceding years and during the period between March and November 2015. This included his communications regarding deployment housing retention for the six weeks or so when he was deployed on Operation OKRA in March and April 2015, the annual RA rent review in April 2015, an application for a loan in July 2015, and completing online documents regarding workplace harassment and for medical purposes. It was put to him that he had numerous opportunities between March and November 2015 to notify DHA about his circumstances concerning his rental allowance.
88 He was asked about his meeting with FLGOFF Shearer on 18 November 2015. He said that he met with FLGOFF Shearer because he wanted to find out how many reunion travel trips he could have with his recognised partner during his six-month posting to East Sale. He had difficulty remembering parts of the conversation which included discussions about potential problems as a result of his partner not having Australian citizenship.
89 He conceded that he sent the email to DHA on 18 November 2015 after he had had the meeting with FLGOFF Shearer. It was put to him that “it was only during that meeting that [he] realised [he was] in trouble, that [he’d] been found out”. He denied this. It was also put to him that he did not realise his error before seeing FLGOFF Shearer that morning. He said that he did. He said that: “Otherwise I wouldn’t have – I had no reason to bring it up with her.” However he did not say anything in his evidence about having notified anyone else prior to then.
90 SQNLDR Cave was called to give evidence on behalf of the appellant. He did this on the telephone from the United States. He had been the appellant’s CO since 2014. He provided a character reference for the appellant. He also spoke about the importance of the appellant’s work during 2014 and 2015 and some of the pressures involved. He knew the appellant’s partner and that she had been living with the appellant.
91 During cross-examination SQNLDR Cave confirmed that it was the responsibility of an individual to organise his or her own personal administration and that if anyone under his command required leave or other assistance he would attempt to provide it. He said that the appellant did have leave made available to him to assist with his mental health.
… the charge FLTLT Herbert is here for today is failing to notify DHA that he had changed his living arrangements. Does that make sense? --- Yes, that does make sense.
… You say that at some point, FLTLT Herbert either went on his own volition or was referred to psych. Did you, as his superior officer, refer him to any other support services, such as an admino? --- I did, but that was much later on when he’d come to see me and said he needed to sort out his admin, specifically in relation to DHA saying that he’d, you know, dropped the ball and let it fall through the cracks and I said – I referred him to the admino saying that, “Go see the admino and she’ll give you advice on what you need to do to sort it out”.
93 There was no attempt to re-examine SQNLDR Cave about this evidence. In particular, no questions were asked by counsel whether this discussion with the appellant and the referral to the ADMINO occurred before or after SQNLDR Cave’s telephone discussion with the appellant concerning his reposting or, for that matter, whether it occurred before or after the appellant’s discussion with FLGOFF Shearer on 18 November 2015 concerning allowances for his partner when he was at East Sale.
Contentions before the DFM
94 As we have already noted, much of the prosecution case relied upon the documentary evidence and agreed facts that showed the appellant’s familiarity with rules concerning rental allowances and other entitlements and his use of various means to contact DHA in order to obtain such benefits. The various excuses that he offered for not notifying DHA of the circumstances that would have resulted in him having to refund the overpayments and stop receiving RA at the higher “non-sharing” rate, namely mental issues and excessive work pressures, did not prevent him from seeking other benefits when it was to his advantage.
95 An important part of the oral evidence concerned the events immediately preceding the appellant’s email to DHA of 18 November 2015 advising of the change of his sharing circumstances, in particular the context and contents of his discussion with FLGOFF Shearer a few hours earlier.
96 It was common ground that during that meeting the appellant told FLGOFF Shearer that his partner had been sharing the property with him. Counsel for the appellant contended that the appellant raised the fact of his need to notify DHA of his changed circumstances unprompted by anything that FLGOFF Shearer had already said. The prosecution contended that the matter only arose in the context of the discussion about how the appellant should organise his affairs prior to his posting to East Sale so that his partner could accompany him or so they could access reunion travel. This would entail, among other things, his partner being recognised as an interdependent partner, assuming there was no desire to become married at that point.
97 Counsel for the appellant relied heavily upon the good character of the appellant and his mental issues and work pressures as providing an explanation for his failure to notify DHA earlier of the changed circumstances. Counsel also stressed the fact that the appellant was quite open about his relationship with his partner and never attempted to hide the fact that they were living together, as would have been the case if he was intentionally misleading others, including DHA, about his RA entitlement. The appellant was guilty of oversight. At worst he was negligent or even reckless. His failure to notify was not intentional.
98 Counsel also stressed the evidence of SQNLDR Cave that emerged during cross-examination, to the effect that the appellant had volunteered to SQNLDR Cave that he, the appellant, “needed to sort out his admin specifically in relation to DHA saying that he’d … dropped the ball and let it fall through the cracks”, and that he should see the ADMINO for advice on how he should sort it out. This was evidence that the appellant knew of the problem and intended to fix it prior to and unprompted by his meeting with FLGOFF Shearer. Counsel contended that this was a case of self-referral.
99 On appeal, counsel for the appellant stated that:
The Appellant’s defence was that he overlooked notifying DHA of his change of circumstances, that in the circumstances and conditions of service under which he was operating at the time, it simply slipped his mind and that, when he realised his mistake, he “dobbed himself in” by reporting himself to his immediate superior, SQNLDR Cave, who advised him to see his admino who, in turn, told him to contact DHA.
DFM’s findings and conclusions
100 The DFM gave himself appropriate directions. These included directions about how he should take into account the evidence about the appellant’s good character. He then identified each element of the offence, including the fact that the fault element concerning the appellant’s failure to advise DHA of his change in circumstances was that he intended to engage in that conduct. He then found that all three of the prosecution witnesses were honest and reliable witnesses and, in particular, that he had no doubt about the credibility and reliability of the evidence of FLGOFF Shearer concerning the meeting on 18 November 2015.
101 The DFM said:
First, it’s common ground that the purpose of the meeting was not to discuss RA. It was about the accused’s upcoming posting and what arrangements could be made for either [his partner] to join the accused or for reunion travel. That led the conversation towards recognition of interdependent partnership.
The defence called the accused and five other witnesses who spoke to his character and his relationship with [his partner] or a couple of cases of both. Along with material already in evidence as part of the prosecution case, there are also numerous character statements, annual reports, course reports and other documents that were tendered.
As for the accused, I had the benefit of observing both his digital record of interview and his in-Court testimony. Broadly, I found him to be honest and reliable when it came to the objective facts of the case, facts which were often not in dispute in any event.
Having made allowance for the good character evidence and his reputation for honesty and integrity, I nonetheless do not share the same opinion when it comes to his evidence of his subjective understandings and beliefs.
103 The DFM proceeded to provide examples of why he had this concern. One was that the appellant had said in his DROI that he did not notify DHA because he was not able to access the DHA intranet site whilst he was overseas or away. However DHA could be contacted online over the Internet, by email, or by telephone. More importantly, the appellant himself has utilised all three methods of contacting DHA. Indeed, the DFM found that, when the appellant did advise DHA on 18 November 2015 of his changed circumstances, he did so “by way of simple email that did not involve the intranet.”
104 The DFM then referred to the issue as to whether the appellant had already decided to notify DHA before his discussion with FLGOFF Shearer on 18 November 2015, or whether he only notified DHA after he realised during his conversation with her that he had been caught out. The DFM said:
There is a dispute over why it was the accused finally raised in November ’15 the issue of [his partner] sharing the RA property and the fact that that had not been notified to DHA. To summarise, the accused says he raised the matter of [his partner] sharing the property without him having previously notified DHA unprompted, after receiving notification of a change of posting orders from 77 Squadron at Williamtown to attend the flying instructor course at East Sale for six months, prior to him subsequently taking up a posting to 76 Squadron at Williamtown.
The prosecution position is that the issue of [his partner] residing with the accused only came to the fore during a conversation between the accused and FLGOFF Shearer, then JCO, ADMINO come PCO in November ’15, and the purpose of that conversation was about how to best organise the accused’s affairs prior to his posting to East Sale so [his partner] could accompany him or he could access reunion travel.
This would entail, among other things, [his partner] being recognised as an interdependent partner, assuming there was no desire to become married at that point.
FLGOFF Shearer’s version makes some sense. The accused’s version seems more peculiar. If he had realised prior to the meeting with the admino that he had not notified DHA of his change of circumstance, why did he wait until after the meeting with the admino to notify DHA.
If the purpose of the meeting was to discuss the fact that he hadn’t previously notified DHA, which wasn’t FLGOFF Shearer’s testimony, but even if it was I don’t understand why he would have had to meet with the admino, he could simply have contacted DHA, something that he had done on other previous occasions; see paragraphs 34 and 35 of the agreed facts and exhibit 1 for the sequences of events.
This ordering of events, meeting with the admino, then notifying DHA is also contrary to what he said in answer to question 22 of his digital record of interview where he said he logged on to update his lease end date, I understood that to mean logging on to the DHA online portal, when he realised the “sharing, zero” was incorrect he fixed it online and send [sic] an email and then met with the admino.
There is nothing in exhibit 38 which is the exhibit that shows the various interactions with DHA, to indicate that the accused had made contact with DHA re the RA property and his change of circumstances, prior to the email sent on the afternoon of 18 November; see exhibit 46. There is a record of a phone call on 24 November, among other things, that deals with the lease end date; see exhibit 52 and the corresponding entry on page 1 of exhibit 38.
No contemporaneous material supports a version of the accused contacting DHA or logging on to the online service portal and amending things prior to the meeting with the admino. While I am prepared to accept in his digital record of interview that he may simply have been mistaken as to the order of events, even though the digital record of interview was only a little over four weeks after his meeting with the admino, what it does mean is his explanation for his state of mind is not supported by those order of events. The DHA records included in the online transactions have nothing of relevance prior to the meeting with the admino on 18 November ’15.
105 The DFM then referred to the evidence of SQNLDR Cave quoted at  above. It is common ground that the DFM misconstrued that evidence as the appellant telling SQNLDR Cave that someone from DHA had said that the appellant had “dropped the ball” whereas it was he, the appellant, who was acknowledging that he had “dropped the ball”. The DFM said:
It is apparent from that, that that referral to the admino would have been after the member had been in contact with DHA because SQNLDR Cave’s recollection is that the accused said to SQNLDR Cave that the reason why he needed to sort out his admin was in relation to DHA saying that he’d you know, dropped the ball. … I took that to colloquially mean that DHA was indicating to the member that he hadn’t attended to the relevant requirements.
106 On appeal, counsel for the appellant contended that this evidence of SQNLDR Cave (set out at  above), when properly construed, was in fact “contemporaneous material [supporting the] version of the accused contacting DHA … prior to the meeting with the admino” (referring back to the passage underlined at the end of the quotation in  above).
107 The DFM then turned his attention to the evidence other than that concerning the events on 18 November 2015, namely that concerning the appellant’s knowledge and ability to notify DHA of the relevant change in circumstances during the previous eight months or so.
I also find it unlikely that the status of the accused’s relationship with [his partner] did not factor in his thinking until he was notified of the change of posting to East Sale for a six month course prior to continuing to Williamtown.
On his evidence he had been on notice of a posting to Williamtown for some nine months which is after [his partner] had joined him in Adelaide. He had already undertaken a number of removals with the air force, surely, at some stage prior to notification of the East Sale posting, he and [his partner] would have discussed what would have happened when the accused went to Williamtown, as the accused then thought he was doing at the end of the year.
Not that this casts doubt on the purpose of the meeting in November, which was to sort out how [his partner] could potentially go to East Sale, or reunion travel, it just means that I find the accused’s explanations for motivations for activities difficult to reconcile with objective circumstances.
Finally, during the relevant period, the accused notified DHA of his change of return to Australia date as that affected his deployment housing retention, completed an online rent review which, amongst other things, specifically deals with sharing, and applied for a RAAF Welfare Trust Fund loan. I would add to that also on a number of occasions used the online services to reset his password and then book, cancel or otherwise vary living-in accommodation.
However, on his evidence, it was an administrative oversight not to notify DHA that he was sharing with [his partner], a fact he would be reminded of on every occasion he came home from work, when not absent from duty or away on leave, and if [his partner] was not otherwise absent from the premises herself.
While he was away, either on duty or leave for substantial periods, he was still in-location for a significant number of days between March and November ’15. I simply find it too convenient that he could attend to personal admin tasks, to all his other personal admin tasks which also included contacting DHA, but simply overlooked consistently a straightforward notification to DHA for eight months, a task which he had done on at least three previous occasions when occupying RA properties.
In short, I do not accept his evidence when it comes to describing his state of mind at any given time, rather, I put his testimony as to his state of mind at any given point to one side, and in the usual way draw conclusions about his state of mind from his actions and all the surrounding circumstances.
109 The DFM then referred to the five witnesses called by the defence, pointing out that their evidence related to the general character of the accused and “the openness of the relationship and residential status of [his partner].” He then said:
I accept that the accused is a person of good character. I also accept that he has a reputation for honesty and integrity. I note, however, the offence charged is not one of deception or dishonesty.
I also gather from the character statements and from other material, that the accused is more likely to apply himself to his work and to matters that engage him than to, for example, matters of personal admin which he, at any given time, may not consider important or a priority.
The good character and reputation evidence is, therefore, of only some assistance. To the extent that it is of assistance, I have had regard to it, particularly when considering the reckless [sic] of the fault elements that I have identified have been proven beyond reasonable doubt.
110 The DFM then considered the evidence in relation to each of the elements of the offence charged. This included a consideration of the phrase “as soon as practicable” in the duty to inform the approving authority set out in cl 1.5.3(4) of the Determination. In this regard the DFM acknowledged that the appellant was busy during the relevant period and that he had mental health issues. However he was still considered fit for duties and these matters did not prevent him from engaging in other administrative tasks. For example:
He managed to notify DHA by email on 13 April 2015 of his change of RTA date for the purposes of his deployment housing retention. This was about three weeks after [his partner] had moved in full time. It would not have been a demanding act to add one or two more sentences to that email. He had also previously contacted DHA via phone and knew that that was a method available to him. During the period, he had a number of other contacts via online services with DHA re: his password and living in accommodation.
111 The DFM then said:
His mental health issues might explain one off lapses, otherwise out of character behaviour during the period, or general degradation in his performance, not [that] there is particular evidence of that in this case. But his failing to notify for about eight months, where the change of circumstances were readily apparent, its effect on his entitlement was something that he was familiar with without the need of specialist advice, contrasts this to sometimes where people’s personal relationship circumstances have changed and the interpretation of that change under the determination of PACMAN might be a complex question. But it is not a complex factual circumstance whether a person is residing full time in your house or not.
The means to advise DHA were available to him and were neither time consuming nor physically, mentally or emotionally demanding as, I had said, he otherwise engaged with DHA on numerous occasions in the relevant period. I am satisfied beyond reasonable doubt that he failed to notify DHA of a notifiable change of circumstance between 12 March and 18 November 2015, that this amounted to a failure to notify DHA as soon as practicable, and as such he engaged in conduct by omission of a duty that he was legally required to perform.
The fault element for that is that he intended to engage in that conduct, so that is an intention an [sic] omission to notify. In the period March to November ’15, FLTLT Herbert corresponded or interacted with DHA on numerous occasions. There is the aforementioned change to his RTA date for the purposes of his deployment housing retention, there’s the rent review in April 2015 at exhibit 44, and there’s the number of other contacts via online services re: his password and living in accommodation.
He was a flight lieutenant. He is an educated and capable man with access to means of communication which he actually used to communicate with DHA. He had previous experience with DHA with rental allowance and change of sharing notifications on at least three occasions, see agreed facts paras 5 and 6. The conduct by admission occurred over and [sic] eight month period. I have already noted the stress and mental health issues, but I also noted he remained on duty and was regularly at work at Edinburgh.
He had a reminder that [his partner] was residing with him, every time he saw her at the RA property. This is important as sometimes there can be a change of circumstance that, in effect, once one moves past it, it is all in the background. That is not the case here.
The change in circumstance was neither factually nor administratively complex to grasp and appreciate. There is my dual point finding previously on his character, that he has a reputation for honesty and integrity, but he also has a reputation for being work-focused and will engage on matters that interest him and not prioritise those that do not.
A conclusion that he was aware of a personal admin task but did not give it his attention by way of actioning that task, is not inconsistent with a reputation for honesty and integrity. Over an eight-month period, with the physical presence of [his partner] in the RA property and being in contact with DHA on numerous other occasions, I do not accept that the failure to notify was oversight or mere inadvertence. Rather, I am positively satisfied beyond reasonable doubt that FLTLT Herbert was aware that he was sharing and that he intentionally never informed DHA about his change of circumstances.
Ground 2 – Misdirection as to the law
113 The appellant contends that:
[T]he [DFM] made a specific finding of fact that the Appellant’s failure to notify the change of circumstance was not dishonest. A finding that the failure was nevertheless intentional is inconsistent with a finding of honesty. It was therefore not open to the learned [DFM] to find that the offence had been made out.
114 Counsel quoted the conclusions set out in paragraph  above, and referred to the sentence which we have underlined. Counsel contends that “a person of honesty and integrity does not deliberately neglect his duty, especially when the known consequence of a deliberate neglect of duty will yield him an illicit financial advantage. That is the misdirection.” Counsel contended that the DFM’s observations to the effect that the appellant did not prioritise his obligations to attend to “mundane administrative tasks”, coupled with him being a man of honesty and integrity, may lead to an inference of negligence but not intent. Counsel submitted that “[t]he finding tends to turn the offence into one of strict liability.”
115 We disagree with these contentions. They ignore the careful attention given to the appellant’s good character and its relevance elsewhere in the DFM’s reasons, including in the passages quoted in paragraphs ,  and  above, in particular those parts which we have underlined. The DFM rejected the appellant’s evidence about his state of mind at any given time and drew his conclusions from the appellant’s actions and surrounding circumstances. These included the concerns noted in paragraph  above and his careful consideration of the evidence concerning the discussion with FLGOFF Shearer (see  above). The DFM also expressly referred to other evidence relevant to his consideration of the appellant’s state of mind during the relevant period: see, for example, the penultimate paragraph in the passage quoted in  above.
116 Further, as the DFM noted in the passage quoted in paragraph  above, the relevant offence did not require proof of dishonesty as such. Rather, the relevant fault element was intention. “A person has intention with respect to conduct if he or she means to engage in that conduct”: Criminal Code s 5.2(1). In cases concerning an omission to perform an act which the person is under a duty to perform, as was the case here, the person intends to omit to perform that act if he or she means not to perform it.
117 Intention is a question of fact for the decision-maker to decide by a process of inferential reasoning on the basis of all the facts and circumstances of the case: cf Smith v The Queen (2017) 259 CLR 291 at 320-321;  HCA 19 at  and  (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ). This is what the DFM did: see, for example, the penultimate paragraph in the passage quoted in  above. He did not treat the offence as a “strict liability” offence.
118 Fully cognisant of the appellant’s general good character, honesty and integrity, the DFM considered the appellant’s contentions that his failure to notify DHA was inadvertent and not intentional at length and concluded that such a theory was not a reasonable hypothesis. Having regard to all of the evidence he was entitled to find this element proven beyond reasonable doubt.
119 Ground 2 is not made out.
Ground 3 – Erroneous findings of fact or mixed fact and law
120 This ground turns on the DFM’s misunderstanding of part of the evidence of SQNLDR Cave quoted in  above. It is common ground that the DFM wrongly construed that evidence as the appellant telling SQNLDR Cave that someone at DHA had told him (the appellant) that he had “dropped the ball”. Rather, the proper construction is that the appellant was acknowledging to SQNLDR Cave that he (the appellant) had “dropped the ball” and “let it fall through the cracks”, not that someone at DHA had said this to the appellant.
121 Counsel for the appellant contended that this error seriously infected the DFM’s reasoning, in particular in relation to the appellant’s contentions that he had realised his obligations and decided to notify DHA of the change in circumstances prior to and un-prompted by his meeting with FLGOFF Shearer on 18 November 2015. On the DFM’s interpretation of that evidence of SQNLDR Cave, it was someone from DHA who initiated the process by telling the appellant that he had dropped the ball. Counsel submitted that the DFM’s erroneous understanding of that evidence led him to conclude, wrongly, that the appellant must have had a second meeting with FLGOFF Shearer, the existence of which there is no evidence. Counsel also queried why the appellant would have needed to consult FLGOFF Shearer about how to notify DHA if he had already had that discussion with someone at DHA. We would interpose by asking a similar rhetoric question: “Why did the appellant not notify DHA prior to his discussion with FLGOFF Shearer, if he was already aware of his obligation to do so?”
122 Counsel contended that the evidence properly construed shows that the appellant had raised his failure to notify DHA voluntarily and without being prompted or caught out. That is, he submitted, inconsistent with deliberate intent and entirely consistent with honest oversight.
123 Counsel also referred to the DFM’s reference (underlined in the text quoted at  above) to there being “no contemporaneous material [that] supports a version of the accused contacting DHA or logging on to the online service portal and amending things prior to the meeting with [FLGOFF Shearer]” and contended that this evidence of SQNLDR Cave, properly construed, does constitute such corroborative material.
124 There are some serious problems with these contentions. The appellant’s written submissions begin with the assertion that:
The Appellant’s evidence was that, when he realised he had not updated his rental status to inform DHA about his partner having moved in to his rental property, he approached his immediate commander, SQNLDR Cave, who told him to report it to the admino.
125 The appellant gave no such evidence. Moreover this was never part of the appellant’s case until final submissions when his counsel was able to seize upon that evidence which emerged at the end of SQNLDR Cave’s cross-examination. Until then, apart from his broad denials in relation to his meeting with FLGOFF Shearer on 18 November 2015, noted in paragraph  above, his position was that he had inadvertently failed to notify DHA of his changed circumstances, and that this was due to various reasons including mental health issues, being too busy at work and his inability to notify DHA for example because of his limited access to Internet.
126 In our opinion the DFM’s misunderstanding of that part of SQNLDR Cave’s evidence did not have a relevant bearing upon his conclusions. Even if the appellant was aware that he had “dropped the ball” some time before his meeting with FLGOFF Shearer on 18 November 2015 to discuss his allowances in the context of his forthcoming posting to East Sale, the fact is that he did not notify DHA until after that meeting. Even if he did realise a few days earlier that he had “dropped the ball” he could and should have notified DHA then. The fact that he did not do that further supports the inference that he was not going to do so “as soon as practicable”. He was well aware of how simple it was to notify DHA of the change in circumstances. This is readily apparent when one looks at the simple email which he sent to DHA on 18 November 2015.
127 As we have already noted, the DFM’s conclusions did not significantly rely even upon the events immediately before and during the appellant’s meeting with FLGOFF Shearer on 18 November 2015. Nor did they necessarily rely upon a rejection of the contention that the appellant had voluntarily reported to SQNLDR Cave. There was considerable other evidence upon which the DFM relied, and was entitled to rely, to draw the necessary inference beyond reasonable doubt.
128 The error of the DFM in misconstruing that part of SQNLDR Cave’s evidence does not render the appellant’s conviction unsafe or unsatisfactory. Having reconsidered the evidence we are of the view that it was open to the DFM to be satisfied of the appellant’s guilt beyond reasonable doubt: cf M v The Queen (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson, Toohey JJ); MFA v The Queen (2002) 213 CLR 606 at 614-615, 623;  HCA 53 at  (Gleeson CJ, Hayne and Callinan JJ),  (McHugh, Gummow and Kirby JJ); SKA v The Queen (2011) 243 CLR 400 at 405, 406;  HCA 13 at ,  (French CJ, Gummow and Kiefel JJ); Fitzgerald v The Queen (2014) 311 ALR 158 at 160;  HCA 28 at  (Hayne, Crennan, Kiefel, Bell and Gageler JJ); Filippou v The Queen (2015) 256 CLR 47 at 53-54, 75-76;  HCA 29 at - (French CJ, Bell, Keane and Nettle JJ), - (Gageler J).
129 Ground 3 is not made out.
130 The appeal must be dismissed.
I certify that the preceding one hundred and thirty (130) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justices Tracey (President), Hiley and Garde (Members).