Rawson v Minister for Defence

Factual and Procedural Background

The Appellant, an airman recruit in the Defence Forces, was subjected to a compulsory random urine test on 27 November 2006 under the “Compulsory Random Drug Testing Administrative Instruction A7 Chapter 3” (“the Regulations”). Both the A-sample and B-sample returned cannabis readings in excess of the 15 ng/ml threshold.

Following the positive result, the Appellant’s Commanding Officer (“Lieutenant Colonel [Last Name]”) recommended discharge. The Appellant submitted written representations asserting that any ingestion was the result of passive inhalation while confined in a car with friends who smoked cannabis. He requested an opportunity to adduce further evidence.

On 29 January 2007, the General Officer Commanding (“G.O.C.”) upheld the recommendation and ordered immediate discharge. The High Court (Judge Hedigan) refused to quash the decision on 2 December 2008. An injunction preventing discharge remained in force pending appeal. The present Supreme Court judgment addresses the Appellant’s challenge to the High Court decision.

Legal Issues Presented

1. Whether the Commanding Officer and the G.O.C. lawfully addressed the representation that the positive test resulted from innocent or inadvertent ingestion, as required by paragraph 318 of the Regulations.
2. Whether the absence of recorded reasoning rendered the discharge decision susceptible to judicial review.
3. Whether the High Court erred by inferring the decision-makers’ reasoning instead of examining whether the correct question was actually addressed.

Arguments of the Parties

Appellant's Arguments

• No evidence that the Commanding Officer considered the possibility of passive inhalation; paragraph 318 mandated such consideration when raised.
• The Appellant was denied a fair opportunity to present supporting evidence before a competent forum.
• The Commanding Officer’s recommendation was not provided to the Appellant prior to its transmission to the G.O.C., contrary to the Regulations, causing prejudice.
• The level of certainty needed to decline retention under paragraph 318 (“reasonable doubt”) is high and was not met on the facts.

Respondent's Arguments

• The drug-testing threshold of 15 ng/ml is scientifically set to exclude passive smoking; therefore, no reasonable doubt arose.
• It is not for the courts to “second-guess” the factual assessments of military superiors.
• The grounds of leave did not encompass a generic “failure to give reasons” challenge.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Clarke, delivering the judgment of the Court, set out four principal grounds on which administrative decisions may be unlawful, focusing on the third—whether the decision-maker addressed the correct question and applied the proper considerations.

The Court held that, once the Appellant raised passive inhalation, paragraph 318 required the Commanding Officer and the G.O.C. to determine whether a reasonable doubt existed as to innocent or inadvertent ingestion. Discharge was permissible only if that doubt was resolved against the Appellant.

However, the written record consisted merely of a one-sentence recommendation and a terse rejection on appeal. No affidavit or contemporaneous note elucidated the factors considered or the standard applied. Consequently:

• The Court could not ascertain whether the superiors addressed the “reasonable doubt” question at all.
• It could not determine whether they applied the correct evidential standard.
• The High Court’s attempt to infer reasoning, based on competing scientific opinions and military expectations, amounted to impermissible speculation.

Applying the principle in Clare v. Kenny, the Supreme Court concluded that where multiple plausible rationales exist, a court cannot uphold a decision absent objective evidence of the route actually taken. The lack of demonstrable reasoning therefore rendered the discharge decision unlawful.

Holding and Implications

Decision: The appeal was allowed and the discharge order was quashed.

Immediate Effect: The Appellant remains a member of the Defence Forces unless and until a fresh, lawful decision is taken in accordance with paragraph 318 of the Regulations.

Broader Implications: Although no new doctrine was created, the judgment reinforces existing principles that:

• Decision-makers must record sufficient reasoning to show they addressed mandatory considerations, especially where a statutory or regulatory provision dictates a specific test.
• Courts will not “fill in the gaps” by hypothesising a rationale; absence of an ascertainable basis will lead to quashing the decision.