Graham v Deputy Chief of Air Force [2004] FCA 1377

FEDERAL COURT OF AUSTRALIA

Graham v Deputy Chief of Air Force [2004] FCA 1377

ADMINISTRATIVE LAW – applicant enlisted member of Royal Australian Air Force – "bongs" found in applicant's room – applicant previously warned that involvement in illegal drugs would result in termination – applicant's service terminated under Defence (Personnel) Regulations on ground that Chief of Air Force was satisfied that his retention was not in the interests of Air Force – whether termination invalid – whether respondents should have complied with the provisions of the Illegal Drug Instructions before terminating employment – whether Regulations should be read down as subject to Instructions – whether breach of natural justice because applicant not given opportunity to meet adverse information WORDS AND PHRASES – " generalia specialibus non derogant"

Defence (Personnel) Regulations 2002 (Cth), reg 87(1)(g)(iii) Administrative Decisions (Judicial Review) Act 1977 (Cth), s 16(1)(a) Judiciary Act 1903 (Cth), s 39B Defence Act 1903 (Cth), s 9A Defence Instructions General (Air Force) Personnel 11-29 Acts Interpretation Act 1901 (Cth), s 34A

Goodwin v Phillips (1908) 7 CLR 1 at 14 cited Associated Minerals Consolidated Ltd v Wyong Shire Council (1974) 4 ALR 353 at 359 cited Chief of the General Staff v Stuart (1995) 58 FCR 299 at 323 cited Australian Heritage Commission v Mt Isa Mines Limited (1997) 187 CLR 297 at 303-4, 308 cited Kioa v West (1985) 159 CLR 550 at 629 applied Applicant M1015/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1309 applied Muin v Refugee Review Tribunal (2002) 190 ALR 601 at [123] cited

Pearce and Geddes, Statutory Interpretation in Australia, 5th ed. 2001 at 7.18 JAMES ANDREW GRAHAM V DEPUTY CHIEF OF AIR FORCE T 26 OF 2004 HEEREY J 28 OCTOBER 2004 MELBOURNE (HEARD IN HOBART)