The High Court has refused an Army recruit’s application to quash his discharge after two laboratory tests detected cannabis metabolites above the Defence Forces’ 15ng/ml threshold.
David Rawson sought judicial review of the decision to discharge him, arguing that the Army authorities had not properly considered whether he had inhaled cannabis innocently or inadvertently. He also challenged the fairness of the regulations and said his Commanding Officer’s recommendation was not sent to him before it went to the General Officer Commanding (GOC).
Rawson’s sample was taken during random testing on 27 November 2006. After an unclear on-site result, the sample was divided and sent for laboratory analysis. The first result was reported as greater than 35ng/ml. At Rawson’s request, an independent laboratory tested the second sample and detected cannabis at 37ng/ml. Both results exceeded the 15ng/ml confirmation threshold set by the regulations.
Rawson said he had been in a car with friends who were smoking cannabis. In written submissions to the GOC, he also referred to what he described as conflicting scientific evidence and sought an opportunity to provide independent evidence supporting innocent or inadvertent exposure.
His Commanding Officer recommended discharge on 17 January 2007. The GOC considered Rawson’s submissions and the recommendation, then ordered his immediate discharge on 26 January. Rawson was notified on 29 January and sought judicial review.
The court said it was not deciding which side’s scientific evidence should be preferred and was not hearing an appeal from the GOC. It considered whether there was a reasonable or rational basis for the decision. The judgment said the regulations set the 15ng/ml threshold to allow for possible passive exposure, and that both of Rawson’s results were more than twice that level.
The judge concluded that, given Rawson’s account of being in a car with people smoking cannabis, the GOC could rationally decide that there was no reasonable doubt of innocent or inadvertent inhalation. The court also noted that the alleged failure to send Rawson the Commanding Officer’s recommendation before it was forwarded was disputed. Even if a failure had occurred, the judge found Rawson had made submissions to the GOC and had not been prejudiced.
The court refused all the reliefs sought. It did not order Rawson’s reinstatement or make a separate declaration on the regulations’ fairness.