Herbert v Chief of Air Force [2018] ADFDAT 1

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

Herbert v Chief of Air Force [2018] ADFDAT 1 Appeal from: Defence Force Magistrate

File number: DFDAT 3 of 2017

Members: TRACEY (PRESIDENT), HILEY AND GARDE (MEMBERS) JJ

Date of decision: 27 April 2018

Catchwords: DEFENCE – appeal from a decision of a Defence Force Magistrate ("DFM") – where the DFM found the appellant 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 Criminal Code (Cth) by way of an overpayment of rental allowance knowing or believing that he was not eligible to receive that advantage – where the appellant failed to advise Defence Housing Australia in accordance with cl 1.5.2(4) of the Defence Determination 2005/15 ("the Determination") that he was sharing a residence with his partner – whether the DFM misconstrued the status of the Determination – whether the Determination is a "law of the Commonwealth" for the purposes of s 4.3 of the Criminal Code (Cth) – whether the duty to notify of a change in circumstances is of a legislative or administrative character – whether the DFM erred by addressing the offence as if it were a strict liability offence – whether the DFM erred by misconstruing the evidence and rejecting the appellant's evidence

Legislation: Acts and Instruments (Framework Reform) Act 2015 (Cth) Sch 1 Pt 5 items 117 and 119, Sch 1 Pt 7 item 179 Acts Interpretation Act 1901 (Cth) Pt XII, s 46B Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (Cth) Sch 1 item 1 Criminal Code Act 1995 (Cth) Sch 1 ("Criminal Code") ss 4.1, 4.3(b), 4.3, 5.2, 5.2(1), 5.3, 5.6(1), 135, 135.2(1), 135.2(1)(a), 135.2(1A) Defence Act 1903 (Cth) ss 58B, 58B(1), 58B(1A), 58B(1B), 58B(3), 58B(4), 58B(5), 58B(8), 58C, 58E, Pt IIIA Div 1 Defence Force Discipline Act 1982 (Cth) s 61(3) Defence Force Discipline Appeals Act 1955 (Cth) s 20(1) Defence Force Regulations 1952 (Cth) reg 72A Defence Legislation Amendment Act (No. 1) 2010 (Cth) s 2(1), Sch 3 Pt 1 item 2, Sch 3 Pt 2 item 5 Financial Management and Accountability Act 1997 (Cth) s 44 Legislation Act 2003 (Cth) ss 8(2), 42 Legislative Instruments (Transitional Provisions and Consequential Amendments) Act 2003 (Cth) s 4(4), Sch 1 item 7 Legislative Instruments Act 2003 (Cth) ss 3, 7, 7(1), 7(1)(a) Public Governance, Accountability and Performance Act 2013 (Cth) s 5(c)(iii)