Anthony Maggs v Comptroller General of Customs
[1995] IRCA 31
•15 February 1995
INDUSTRIAL LAW - Unlawful termination of employment - Application for relief by dismissed Australian government employee - Whether Division 3 of Part VIA of Industrial Relations Act applies to Australian government employees - Whether public service legislation constitutes "special legislation" unaffected by the industrial legislation - No inconsistency between two sets of legislation - Whether appeal to a Disciplinary Appeal Committee constitutes an "adequate alternative remedy" to a proceeding in the Court - Appeal not available after termination.
Industrial Relations Act 1988, Division 3, Part VIA especially s.170 EB
Public Service Act 1922, ss.61 and 62.
ANTHONY MAGGS v. COMPTROLLER GENERAL OF CUSTOMS
No. NI. 510 OF 1994
CORAM: WILCOX CJ, von DOUSSA & MOORE JJ
PLACE: SYDNEY
DATE: 15 FEBRUARY 1995
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA ) No. NI. 510 of 1994
NEW SOUTH WALES DISTRICT REGISTRY )
BETWEEN:ANTHONY MAGGS
Applicant
AND:COMPTROLLER GENERAL OF CUSTOMS
Respondent
CORAM:WILCOX CJ, von DOUSSA & MOORE JJ
PLACE: SYDNEY
DATE: 15 FEBRUARY 1995
MINUTES OF ORDER
THE COURT ORDERS THAT:
The questions raised by the case stated by Moore J be resolved in the following way:
(a)Do the Public Service Act 1922, the Public Service Regulations, the Merit Protection (Australian Government Employees) Act 1984, the Merit Protection (Australian Government Employees) Regulations, or any one or more of those Acts/Regulations, constitute a code with respect to the termination of employment of members of the Australian Public Service?
- Not answered.
(b)Has Division 3 of Part VIA of the Industrial Relations Act 1988 any scope to operate with respect to the termination of Mr Maggs' employment?
- Yes.
(c)If 2 is answered yes, what scope does Division 3 of Part VIA of the Industrial Relations Act have to operate with respect to the termination of Mr Maggs' employment?
- Division 3 of Part VIA applies in respect of the termination of Mr Maggs' employment.
(d)Whether, under section 170EB of the Industrial Relations Act 1988, the Industrial Relations Court must, upon the above facts, decline to consider or determine the applicant's application.
- No.
(e)Whether the scheme provided by the Public Service Act 1922 (particularly subdivision C of Division 6 of Part 111 of that Act), alone or in conjunction with one or more of:
a.the regulations under that Act,
b.the Merit Protection (Australian Government Employees) Act 1984 ("the MPRA Act"),
c.the regulations under MPRA Act,
d.the Administrative Decisions (Judicial Review) Act 1977, or
e.section 39B of the Judiciary Act 1903,
provides an "adequate alternative remedy" that "is available to the applicant" and that "satisfies the requirements Termination of Employment Convention" within the meaning of section 170EB of the Industrial Relations Act 1988.
- No.
The matter be listed at an early date before Moore J for the making of directions concerning a hearing of the merits of the application.
Note:Settlement and entry of orders is dealt with in Order 36 of the Industrial Court Rules.
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA ) No. NI. 510 of 1994
NEW SOUTH WALES DISTRICT REGISTRY )
BETWEEN:ANTHONY MAGGS
Applicant
AND:COMPTROLLER GENERAL OF CUSTOMS
Respondent
CORAM:WILCOX CJ, von DOUSSA & MOORE JJ
PLACE: SYDNEY
DATE: 15 FEBRUARY 1995
REASONS FOR JUDGMENT
THE COURT: The critical issue raised by this proceeding is whether the provisions of Division 3 of Part VIA of the Industrial Relations Act 1988, conferring a right of action in this Court in respect of unlawful termination of employment, apply to the dismissal of a Commonwealth public servant pursuant to the Public Service Act 1922. We have reached the conclusion that they do.
The facts
The issue comes before a Full Court by reason of a case stated by Moore J in an action brought by Anthony Maggs against his former employer, the Comptroller General of Customs. Mr Maggs seeks a declaration that the termination of his employment as a Customs officer contravened Division 3, reinstatement in his employment and compensation.
The stated case sets out facts agreed between the parties. For the purpose of explaining our reasoning we need not state them all; an outline will suffice.
Mr Maggs joined the Australian Public Service on 21 January 1990. In July 1990, after undergoing a program of training, he was appointed as a Customs officer Band 1. On 17 November 1991 he was on duty at Sydney Kingsford-Smith airport. As a result of certain events that day, on 4 December, a supervising officer who was authorised for the purpose formed an opinion, pursuant to s.61(2) of the Public Service Act, that Mr Maggs may have failed to fulfil his duty as an officer. Section 61(2) provides:
"(2)Where an officer authorized by the relevant Secretary for the purposes of this subsection is of the opinion that an officer may have failed to fulfil his duty as an officer, the authorized officer shall, as soon as practicable, decide whether he should be charged and:
(a)if he decides that the officer should not be charged - may counsel the officer or cause a supervisor of the officer to counsel the officer; or
(b)if he decides that the officer should be charged - shall, by writing under his hand delivered to the officer, charge the officer with the failure."
No immediate decision was made whether or not to charge Mr Maggs with failure to fulfil his duty. The immediate action was to transfer him to other duties. It was not until 29 October 1992, after other events which it is not necessary to specify, that Mr Maggs was charged under s.61(2), by a different authorised officer. The charge contained five allegations of failure to fulfil duty.
Section 62(1) of the Act provides that, where an officer is charged with "misconduct" under s.61, an inquiry be held "without undue delay". There was delay in this case. It was not until 21 June 1993 that an inquiry officer was appointed. Thereafter the matter proceeded expeditiously. The inquiry officer held an inquiry and, on 15 September 1993, announced a finding that all five allegations were proved. He directed Mr Maggs' dismissal from the Public Service pursuant to s.62(6)(b) of the Public Service Act.
Section 62(9) of the Act requires an officer making such a direction to furnish reasons to the charged officer. Subsection (10) provides:
"(10)A direction under this section in respect of an officer takes effect:
(a)if the officer has no right of appeal against the direction - on the day on which the officer is furnished with particulars of the reasons for the giving of the direction; or
(b)if the officer has a right of appeal against the direction and appeals - on the lapsing or withdrawal of the appeal or on a Disciplinary Appeal Committee confirming the direction, whichever happens first; or
(c)in any other case - at the end of the period within which the officer may appeal against the direction to a Disciplinary Appeal Committee."
The Disciplinary Appeal Committee referred to in s.62(10) is a committee established under the Merit Protection (Australian Government Employees) Act 1984: see s.55 of the Public Service Act. It consists of a Convenor nominated by the Merit Protection Review Agency who must be a lawyer, a nominee of the Secretary of the employing agency and a union nominee. The Committee's procedures are similar to those adopted by courts. It sits in public and takes evidence on oath or affirmation. The Committee must give reasons for its decision.
Mr Maggs elected to appeal to a Disciplinary Appeal Committee. He was successful in relation to some of the allegations made against him but the Committee upheld the inquiry officer's findings in respect of three allegations and affirmed the inquiry officer's direction for dismissal. The Committee's decision was announced on 24 June 1994. On 6 July 1994 Mr Maggs filed his Application in this Court.
The issues
As ultimately framed, after amendments by Moore J on the day of the hearing in this Court, the stated case contained five questions:
"1.Do the Public Service Act 1922, the Public Service Regulations, the Merit Protection (Australian Government Employees) Act 1984, the Merit Protection (Australian Government Employees) Regulations, or any one or more of those Acts/Regulations, constitute a code with respect to the termination of employment of members of the Australian Public Service?
2.Has Division 3 of Part VIA of the Industrial Relations Act 1988 any scope to operate with respect to the termination of Mr Maggs' employment?
3.If 2 is answered yes, what scope does Division 3 of Part VIA of the Industrial Relations Act have to operate with respect to the termination of Mr Maggs' employment?
4.Whether, under section 170EB of the Industrial Relations Act 1988, the Industrial Relations Court must, upon the above facts, decline to consider or determine the applicant's application."
5.Whether the scheme provided by the Public Service Act 1922 (particularly subdivision C of Division 6 of Part 111 of that Act), alone or in conjunction with one or more of:
a.the regulations under that Act,
b.the Merit Protection (Australian Government Employees) Act 1984 ('the MPRA Act'),
c.the regulations under MPRA Act,
d.the Administrative Decisions (Judicial Review) Act 1977, or
e.section 39B of the Judiciary Act 1903,
provides an 'adequate alternative remedy' that 'is available to the applicant' and that 'satisfies the requirements [of the] Termination of Employment Convention' within the meaning of section 170EB of the Industrial Relations Act 1988."
Although there are five questions, they raise only two topics of practical significance. The first is whether the Public Service Act, the Merit Protection (Australian Government Employees) Act and their associated regulations (which it is convenient collectively to call "the public service legislation") exclude the application to former members of the Australian Public Service of Division 3 of Part VIA of the Industrial Relations Act ("the industrial legislation"). The second is whether, supposing the industrial legislation has some application, the review procedure provided by the public service legislation constitutes an "adequate alternative remedy", within the meaning of s.170EB of the Industrial Relations Act, requiring the Court to decline to consider or determine Mr Maggs' application.
The application of the industrial legislation
In relation to the first topic, it will be noted that our description does not include a reference to the question whether the public service legislation constitutes a "code". It is immaterial whether or not the public service legislation is properly described as a "code", whatever that may mean in this context. The relevant question is whether, notwithstanding that legislation, the industrial legislation applies to Australian Government employees. On its face, the industrial legislation applies to employees of all employers. So it is necessary to consider whether there is anything in any of the relevant legislation that excludes that application.
It is common ground that neither the public service legislation nor the industrial legislation expressly excludes the application of the industrial legislation to Australian government employees. But counsel for the Comptroller General argue that the public service legislation is "special" legislation unaffected by the general provisions of the Industrial Relations Act. The relevant principle is well-established. It is often stated in the Latin maxim "generalia specialibus non derogant" (the general do not derogate from the special). In Goodwin v Phillips (1908) 7 CLR 1 at 14 O'Connor J expressed the principle in this way:
"Where there is a general provision which, if applied in its entirety, would neutralize a special provision dealing with the same subject matter, the special provision must be read as a proviso to the general provision, and the general provision, in so far as it is inconsistent with the special provision, must be deemed not to apply."
The rationale was pointed out by Barton ACJ in Maybury v Plowman (1913) 16 CLR 468 at 474, quoting a passage from an old English case, Fitzgerald v Champneys (1861) 70 ER
958:
"In passing the special Act, the legislature had their attention directed to the special case which the Act was meant to meet, and considered and provided for all the circumstance of that special case; and, having so done, they are not to be considered by a general enactment passed subsequently, and making no mention of any such intention, to have intended to derogate from that which, by their own special Act, they had thus carefully supervised and regulated."
However, care must be taken in the application of the principle. It is not enough that, on their face, two statutes affect a particular subject matter. This was pointed out by the Judicial Committee of the Privy Council in Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538. In that case the appellant argued that an ordinance made under Part XIIA of the Local Government Act 1919 (NSW) did not apply to mining operations, these being governed exclusively and comprehensively by the Mining Act 1906 (NSW) and the regulations made thereunder. At 553 Lord Wilberforce, speaking for the Committee, referred to Barker v Edger [1898] AC 748 where the Committee referred to the presumption "that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly". He observed that:
"... cases are rarely so simple as this, for even where the earlier statute deals with a particular and limited subject matter which is included within the general subject matter with which the later statute is concerned, it is still a matter of legislative intention, which the courts endeavour to extract from all available indications, whether the former is left intact, or is superseded, and the cases in which the latter has been held are almost as numerous as the former."
Lord Wilberforce went on to note that the case was not one of "a private legislative bargain for the benefit of individuals, which, it could be said, should not be disturbed by later general legislation", nor of "a special class or area of subject, as to which the question might be whether it falls within a general, or wider, class or area or subject". Rather, he said, the Local Government Act is:
"one of two public general Acts as to which the question is, first, whether there is any inconsistency between their provisions, and secondly, if there is, whether the earlier (the Mining Act) is pro tanto repealed by the later (the Local Government Act Part XIIA)."
The Committee held that there was no inconsistency between the two statutes. They could, and did, co-exist.
In the present case counsel for the Comptroller General relied heavily on North West County Council v Dunn (1971) 126 CLR 247. The question there was whether provisions of the Industrial Arbitration Act 1940 (NSW), providing for the reinstatement of wrongly dismissed employees, applied to an employee of a county council whose services were terminated under s.99 of the Local Government Act. The High Court held they did not; the exercise of the reinstatement power in relation to such an employee would be, in the words of Walsh J at 266:
"so incompatible with the operation of the relevant provisions of the Local Government Act and with the execution and performance by these statutory bodies of their statutory powers and duties that it should be held that it was not intended that the power should be applicable to those employees."
Dunn was a case where the general legislation (the Industrial Arbitration Act) predated the special legislation (s.99(11A) of the Local Government Act). So was Saraswati v The Queen (1991) 172 CLR 1, in which Gaudron J said at 17:
"It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other: ..."
In the present case the special legislation (the public service legislation) came first. But that makes no difference. The rule of construction stated by Gaudron J is equally applicable.
Central to the question of inconsistency between the public service legislation and the industrial legislation is the date when, under the public service legislation, a termination takes effect. Although they initially suggested otherwise, counsel for the Comptroller General ultimately accepted their opponents' contention that the date of termination was the date when the dismissal direction took effect, in accordance with the relevant paragraph in s.62(10). It seems to us that this is clearly correct. If an officer appeals to a Disciplinary Appeal Committee, the direction takes effect when the appeal is withdrawn, if it is, or the direction confirmed, if it is. The officer remains an Australian government employee during the whole of the time the case is before the Disciplinary Appeal Committee. Contrary to a submission made by counsel for the Comptroller General, this does not mean that the act of termination is not the act of the employer. It obviously is. The decision to terminate is made by an authorised officer on behalf of the employing agency. It is true that the relevant employee has a right to challenge the direction before a Disciplinary Appeal Committee. If the challenge is successful, the decision to terminate will never take effect. If it is unsuccessful, the dismissal direction is confirmed and takes effect. The confirmation decision triggers the operation of the act of termination; it is not the act itself.
Having regard to this analysis, we see no reason to impute to Parliament an intention that the industrial legislation not apply to persons employed under the public service legislation. If that had been Parliament's intention, it would have been easy for it to say so. Not only did Parliament not say so; without any relevant modification it introduced Part VIA into a statute that already bound the Crown in right of the Commonwealth. See s.6. More fundamentally, there is no contradiction between the two sets of legislation. The public service legislation is concerned to establish principles of behaviour of the Australian government as an employer and to stipulate the rights of Australian government employees during their period of employment, including in respect of any allegation of failure to fulfil duty. As counsel for the applicant submitted, the public service legislation "has the object of providing for a pre-termination procedure" whereas the industrial legislation "seeks to remedy termination of employment after the event of termination where there has been a violation of rights". In other words until the termination takes effect the public service legislation governs the situation. It is only after that time that the Industrial Relations Act comes into play. There is no point of time during which both sets of legislation apply. The position is different from that in Dunn, where the Local Government Act and Industrial Arbitration Act each applied at the same time - after dismissal and whilst there was a possibility of reinstatement - and contained conflicting provisions concerning that possibility.
Counsel for the Comptroller General argued that there were such areas of "obvious conflict" between the two sets of legislation that it should be inferred that the legislature did not intend them to operate side by side. They compared the requirements of s.170DB of the Industrial Relations Act as to minimum periods of notice with the detailed provisions of s.62 of the Public Service Act. They also contrasted the general prohibition of termination of employment without a valid reason connected with the employee's capacity or conduct or the operational requirements of the employer's activity (s.170DE), and the requirement that an employee have an opportunity to respond to allegations (s.170DC), with the detailed protective provisions in the Public Service Act. They also pointed out that an inquiry officer may impose a penalty other than dismissal (an admonition, fine, reduction of salary or transfer), but this Court has no such power.
The observations made by counsel are correct. But they do not mean that there is an inconsistency between the two sets of legislation. The purpose of Division 3 of Part VIA of the Industrial Relations Act is to impose on Australian employers a set of minimum standards in relation to the employment of their employees, other than employees excluded by regulations made under s.170CC. When the Part was enacted there were possibly many employers, especially larger employers, who had already adopted termination standards designed to ensure that their employees were treated no less favourably than under the new statutory standards. Provided that the adopted standards were observed in the particular case, such an employer would have little to fear from the new provisions; by definition the termination would not be unlawful. But that would not mean that there was an inconsistency between the new provisions and the employer's standards; it would mean only that the new provisions would not become important except on those occasions, hopefully rare, when the adopted standards were not observed. It makes no difference if an employer's standards are stipulated by legislation, as has long been thought appropriate in relation to public servants, unless there is a direct conflict between that legislation and the provisions of the Industrial Relations Act.
Counsel's argument of inconsistency is put at its highest when comparison is made between the notice requirements of s.170DB(1)(a) of the Industrial Relations Act and s.62(10) of the Public Service Act, providing for a dismissal direction to take automatic effect on the occurrence of one of three specified events. The public service legislation does not require notice of termination, as contemplated by s.170DB(1)(a). If para. (a) of s.170DB (1) stood alone, its terms would provide an inconsistency with the scheme of the public service legislation supporting an inference that Parliament did not intend the Industrial Relations Act to apply to persons employed under the public service legislation. But it does not stand alone. Section 170DB(1) includes para. (b) permitting termination without notice if the employee is guilty of "misconduct of a kind such that it would be unreasonable to require the employer to continue the employment during the notice period". Section 56 of the Public Service Act identifies conduct that might lead to dismissal and which is described as a failure of the public servant to fulfil his or her duty. It is expressed in language of wide import. However, it is reasonable to attribute to Parliament an assumption that a failure to fulfil duty by a public servant of sufficient seriousness as to warrant a dismissal direction would amount to the kind of misconduct referred to in para. (b) of s.170DB(1), so there would be no inconsistency between the public servant legislation and the Industrial Relations Act.
Adequate alternative remedy
The second issue raised by the stated case may be disposed of briefly. The meaning of "adequate alternative remedy" in s.170EB of the Industrial Relations Act, and the significance of that concept in relation to the operation of Division 3 of Part VIA, were discussed by a recent Full Court (Wilcox CJ, Keely and Gray JJ) in Liddell v Lembke (15 December 1994, not yet reported). It is unnecessary to repeat that discussion. The only point that needs to be made is that any remedy that constitutes an "adequate alternative remedy" must be available when the Court comes to consider the application. Review by a Disciplinary Appeal Committee of an inquiry officer's direction is not available after the date of termination of the employee's employment; the termination will not have taken effect until after the exercise or lapsing of the right to seek a review. It follows that, if - as in this case, and as will usually be the situation - an application comes before the Court after the termination has taken effect, review by a Disciplinary Appeal Committee will not be available. We need not consider whether, if it was then available, it would be an adequate alternative to an action in this Court. Without availability it obviously cannot satisfy s.170EB.
Counsel for the Comptroller General pointed out that a decision of a Disciplinary Appeal Committee is susceptible of review by the Federal Court under the Administrative Decisions (Judicial Review) Act 1977. However, such a review is limited to the grounds stipulated in the Act. The Act does not enable the Court to act upon its own view of the facts, as this Court must do in an unlawful termination case.
Orders
We do not think it necessary to answer question 1 in the stated case. It has no practical significance. Question 2 should be answered "yes". Question 3 should be answered "Division 3 of Part VIA of the Industrial Relations Act applies in respect of the termination of Mr Maggs' employment". Questions 4 and 5 should each be answered "no".
The effect of these answers is that Mr Maggs is entitled to a determination of the merits of his application. We direct that the matter be listed at an early date before Moore J for the making of directions concerning a hearing on the merits.
I certify that this and the preceding fifteen (15) pages
are a true copy of the Reasons for Judgment
of the Court.
Associate:
Dated: 15 February 1995
APPEARANCES
Counsel for the Applicant: W R Haylen QC and R Reitano
Solicitors for the Applicant: Geoffrey Edwards & Co
Counsel for the Respondent: F L Wright QC and G Johnson
Solicitors for the Respondent: Australian Government Solicitor
Dates of hearing: 20 December 1994
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