NSW Administrative Decision Making of the Australian Defence Force?

Discussion in 'Employment Law Forum' started by WoundedWarrior, 5 February 2018.

  1. WoundedWarrior

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    Hello,

    I am after some information regarding administrative law and official decision making which will cause determent to someone.

    Background

    I am a serving member of the Australian Defence Force and have been charged with a number criminal offences.

    For the last 6-12 months Defence have been relentless in the attempt terminate my service prior to my trial.

    I can only assume this is because Defence perceive me as guilty and do not want the issue of a Defence member being convicted on criminal charges.

    Situation

    The decision to terminate my service has been made based on "fact" surrounding the charges against me. However, the information which is believed to be "fact" is incorrect.

    The decision maker believes I have been charged with more offences than I have. Therefore, the decision maker is bias and over influenced when determining an outcome regarding the termination of my service. As consequence, he will always determine a more severe punishment than necessary in these circumstances.

    I am submitting a Redress of Grievance in accordance with Defence Regulation 2016 (Cth) in a bid to get this decision revoked and if deemed appropriate another separation notice with correct fact issued.

    In a previous response, I submitted that the information being used in making a decision regarding the termination of my service was incorrect. This was not considered and the decision maker continued with the decision to terminate my service anyway.

    Help

    I am here for assistance. I do not know administrative or decision making law or legislation. I would appreciate if anyone could tell me how to correctly inform the decision maker that his decision is void and as a matter of procedural fairness/law? The decision must be revoked.

    Regards,
     
  2. Rob Legat - SBPL

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    The question is whether the 'fact' is material to the decision being made. We can't tell that from what is known here. Could it be that, even if the correct number of offences were taken into account, there is still enough seriousness to warrant the decision made?
     
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  3. WoundedWarrior

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    The decision document states that a very heavy weight in determining my termination has been placed on what the decision maker believes to be fact.

    Taking this into consideration, yes, the fact is material to the decision being made.

    If the document was correct and accurately listed the charges against me, I am unable to determine if the a similar outcome would be determined.

    However, in this circumstance, I informed the decision maker the facts were incorrect and no effort was made to validate my claim.

    Using invalid, incorrect information as material fact in my termination of service decision is procedurally unfair. Furthermore, it is an inherent defect in the entire decision making process.

    My redress needs to be sumbmitted by Thursday. I have the body complete but I require legal strength to support my claim that due to the circumstances the decision against me is void.

    If there are any precedent, legislation or law that you may know of which would assist me it would be greatly appreciated.
     
  4. Rob Legat - SBPL

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    Sorry, my question may have been unclear.

    The 'number of offences' is a 'fact' within a number of facts (even if that number is 1). Are there other facts which the decisions maker points to in making the decision? This will greatly affect how you make the application for redress.

    For example:
    - If there are charges which are not in dispute, and the decision maker has said they are serious enough to warrant the decision, then it's largely pointless arguing about the incorrect number of charges.
    - However, if the decision is based predominantly on the number of incorrect charges (or the seriousness of the incorrect charges) then you frame your application around the decision maker making a mistake of fact.

    If it's the latter, start looking at the sections and regulations referred to in the decision (and the surrounding ones), and see whether they've complied with the required steps and tests. I'd especially be looking for anything to do with procedural fairness and/or natural justice - then referring that back to the incorrect determination of the number of charges.
     
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  5. WoundedWarrior

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    I guess this is where it gets tricky.

    At law I am presumed to be innocent, therefore, the decision to terminate my service is not based on my charges. Rather, the decision regarding termination is that my retention is not in the interest of Defence.

    The decision maker states;

    “I have concluded that [my] retention is manifestly not in the interests of the Defence Force on the basis of the significant, adverse impact that [my] continued retention would have on morale, welfare standing and reputation of the Defence Force”

    Taking this into consideration, the incorrect information perceived as fact causes undue detriment to myself as the nature and number of the charges against would impact upon each one of the listed reasons that my continued retention would affect.
     
  6. Rod

    Rod Lawyer
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    Military law is a speciality area. You may need to find a lawyer with knowledge of military law. Not sure how many lawyers even look at this field.
     
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