Barton, Thomas v Minister for Foreign Affairs

CATCHWORDS

Administrative Law - Judicial Review

- Australian Federal

Police - Member of Federal Bureau of Narcotics

- Abolition of

position - transfer to corresponding position in the Office

of the Austraiian Federal Police - discretion of Commissioner

to exercise power to appoint to membership of Australian

Federal Police - considerations to be regarded in exercise of

the discretion.

Administrative Decisions (Judicial Review) Act

1977 - ss . 5,

Australian Federal Police Act

1979 - s s . 13, 16, 17, 25 (l),

26(1),

26A, 72, 73

Ansett Transport

Industria (Operations) Pty. Ltd.

v. The

Commonwealth (1977) 139 C.L.R. 54

The Queen v.

The Australian Broadcasting Tribunal; ex parte

2HD Pty. Ltd. (1979)

144 C.L.R. 45

Water Conservation and Irrigation Commission	v.	Browning
(1947) 77 C.L.R. 492

Swan Hill Corporation

v. Bradbury (1937) 56

C.L.R. 746

Bread Manufacturers	of New South Wales	v. mans (1981) 38
A.L.R. 93

Padfield v. Minister of Aqriculture Fisheries and Food

C19681

A.C. 997

Cole v. Cunningham (1983) 49 A.L.R. 123

MICHELLE ATOUR KHOURY

V. R. A. GREY (Commissioner

Of Police)

No. VG 268 of 1983

Jenkinson J.

Melbourne

5 October, 1984

IN THE FEDERAL COURT

OF AUSTRALIA )

VICTORIA DISTRICT REGISTRY

) No. VG 268 of 1983

DIVISION

GENERAL

)

BETWEEN:

MICHELLE ATOUR KHOURY

Applicant

AND: R. A.

GREY (Commissioner of

Police)

Respondent

CORAM:	Mr. Justice Jenkinson
PLACE :	Melbourne
-	DATE :	5 October, 1984

ORDERS

1. That the decision of the respondent Commissioner,

communicated to the applicant by letter dated

April 1983, of which a copy is exhibit

J to the

affidavit of the applicant sworn the 2nd day

December 1983, that the applicant be not appointed a member of the Australian Federal Police by exercise of power conferred on him by s.26A of the

I	Australian Federal Police Act 1979, be quashed.

2. That the request of the applicant made in February

1983 by her solicitors on her behalf that she be

appointed by exercise of that power be further

considered by the respondent Commissioner after the

expiration of four weeks from the date

of this

order.

3. That the respondent Commissioner give consideration in relation to the said request to such written matter in support of her request as may be submitted to him by or on behalf of the applicant

within four weeks from the date

of this order.

I I I

i :

IN THE FEDERAL COURT

OF AUSTRALIA )

VICTORIA DISTRICT REGISTRY

) No. VG 268

of 1983

DIVISION

GENERAL

)

BETWEEN: MICHELLE ATOUR KHOURY

Applicant

-	AND: R. A. GREY (Commissioner of

Police)

Respondent

CORAM:

Mr.

Justice

Jenkinson

PLACE :

Melbourne

DATE :

October,

1984

REASONS FOR JUDGMENT

Application for an order

of review in respect of

decision not

to exercise a special power to appoint the

applicant to be a non-commissioned officer in the component

of	the Australian Federal Police performing general police

functions.

The applicant has been employed in the Commonwealth Public Service since 1973. On

7 November 1979 she had been

for three years employed as an investigator in the Narcotics

Enforcement Branch of the Operations Division in the

Department of Business and Consumer Affairs. On that day

most of the positions in that Branch were abolished and

Corresponding positions were created in the Office of the

I	Australian Federal Police, Department of Administrative

Services. The occupants of the Third and Fourth Division

positions which were abolished,

of whom the applicant

was

one, were transferred to the newly created corresponding positions. The Australian Federal Police Act 1979 provided

by s.16 that the staff, other than members of the Australian

Federal Police, required for the purposes

of that Act should

be persons appointed or employed under the Public Service Act

1922; that in relation to such staff the Commissioner

Police might give such directions with respect to the

performance of those persons' duties as he thought fit and

should have all the powers

of *

Chief Officer under the

Public Service Act 1922 in respect

of the granting of leave

of absence and such

of the. other powers of a Chief Officer as

were prescribed. In the Office

of the Australian Federal

Police were, and are, employed both members of the Australian

Federal Police and persons, such as the applicant, appointed

or employed under the Public Service Act and required for the

purposes of the Australian Federal Police Act 1979.

About 120 persons who had been thus transferred

from investigative duties in the Narcotics Enforcement Branch

to similar duties in the Office

the Australian Federal

Police were informed during the next few months by the

Commissioner, or by persons who would reasonably be

understood to speak - and, as I find, did speak - for the

Commissioner, that some

of them would be offered appointment,

at ranks appropriate to their experience and current

3 .

salaries, as members

the Australian Federal Police: and

that the others would

be able

to continue, as public servants

in the Office of the Australian Federal Police, .to utilise

the skills and experience they had gained in doing much the

same sort of work as they had been doing before the transfers occurred: and that there would

be satisfactory opportunities

for such public servants	to win promotions in that Office:
and that the "declining	of an offer of appointment to the

Australian Federal Police in the Commissioner's view in no

way will prejudice an officer from developing

a career with

the Office of the Australian Federal Police". (See Exhibit

m e applicant believed those prophetic statements.

And she believed that by declining appointment as a member of the Australian Federal Police she would avoid the risk she thought would attend membership of that body, of transfer to

work then unfamiliar

to her, and would be able to continue in

the drug intelligence and surveillance work she

knew and

liked. Accordingly, she was one of- about eight

of he eighty

four transferred officers and employees notified

in December

1979 that they would be offered appointment as members

of the

Australian

Federal

Police

who declined

the

offer.

For

reasons which will appear, the appointment

of transferred

officers and employees as members of the Australian Federal

Police at ranks appropriate to their experience and their

Public Service salaries could not be

made until the

Australian Federal Police Act 1979 was -amended by the

Australian Federal Police Amendment Act 1980, which came into

operation on 28 May, 1980. The applicant had more than six months in which to consider her response to the Commissioner's offer of appointment.

There has been no suggestion that the prophecies which the applicant relied were not made in good faith. But

they have not all been fulfilled. The work required of the

applicant has not been as varied as the duties she performed

before 7 November 1979: and the opportunities to gain

promotion within the fields of drug surveillance,

intelligence and investigation for a Commonwealth public

servant

of her

experience and education have been very

restricted.

In March 1981 the applicant made

written

application to the Commissioner that she

be appointed by him

a member

of the Australian Federal Police. She falsely

attributed her declination

of the offer of appointment which

the Commissioner had previously made to circumstances

of her

personal life, because she thought

it imprudent to state the

real reason : to say that her refusal of that offer had been

induced

by her

reliance

on prophecies which had not been

fulfilled would imply criticism

of the Commissioner, by whom

and on whose behalf the prophecies had been declared, and

whom responsibility for their fulfilment might

be thought to

lie.

The application

was refused. The Commissioner’s

decision was communicated by a minute dated

20 May, 1981,

signed by a senior officer	of the Australian Federal Police,
in these terms:

“The applications submitted by the above former

members of the Federal Bureau

Narcotics

for

appointment to the

A.F.P. have been considered.

Recommendations made have also been considered. The directed that their applications be refused. This, of course, does not prevent any of the applicants

from seeking normal entry

to the A.F.P.

It would

appreciated if you would advise each

person of the Commissioner‘s decision. Each of the applicants was offered an opportunity previously to laterally enter the A.F.P. but each chose of their

own volition to reject the offer.

It is not

proposed to repeat such offers

at this late stage

.”

What in the minute is called “normal entry

to the

A.F.P .‘I is appointment, under the general provisions	of the
Australian Federal Police Act 1979 and regulations made

thereunder, to the lowest grade

of the rank of constable, in

contrast with appointment, in exercise of the power specially

conferred by the amending Act of 1980, to a rank and grade

appropriate to the experience and salary of an officer or

employee who was transferred on 7 November 1979 from an

office in the Narcotics Enforcement Branch to an office in

the Department of Administrative Services. Initial

appointment as a member

of the Australian Federal Police

above the lowest grade of the rank

of constable is commonly

described, in the oral evidence and in the documents

tendered, as "lateral entry".

BY a letter dated 12 February, 1982 the applicant

made a further attempt

to attract the exercise

of the

Commissioner's special power, in these terms:

I am writing in an effort to obtain entry

the ranks of the Australian Federal Police, commensurate with the offer made	to me by yourself,
in June 1980.

2 .

I stress that after ,the disbandment

the

former Federal Bureau of Narcotics, I was naturally

concerned with my future and recognised my great

desire to continue thg fight against narcotics. For

that and other reasons, which

I have outlined in

previous correspondence, I chose to refuse that

offer and thus remain

as a Public Service

Investigator in the Intelligence Component.

3. With respect, you

made undertakings. both

verbally and in writing, inter alia,

"a Drug

Intelligence Unit of the highest standard would be created and developed".

It is now some twenty seven

(27) months since

that and other undertakings by your administration

were made and

yet I still remain with:

No duty

statement

ii. No career structure, and

iii. No other benefits which afforded to those

have been

my former

colleagues who chose to accept	your
offer.

5. I therefore ask that you consider my effort

once more, in the light

of what I consider to be

important undertakings which have not

yet been

implemented.

\ &

Although she was informed by a senior officer of the Australian Federal Police in about November 1983 that

response to her letter would be made shortly, the applicant

has never received any reply

to that letter. In February

1983 her solicitors made application on her behalf to the Commissioner for appointment to the Australian Federal Police. The application was refused in April 1983. It is

the Commissioner's decision

of April 1983 which

is the

subject of the application now before me.

By a letter dated 23 September 1983 the Commissioner responded to .a request by the applicant's

solicitors that he furnish, pursuant to s.13 of the Administrative Decisions (Judicial Review) Act 1977, "a statement in writing, setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the

reasons for the decision".

That letter reads:

"I refer to your letter

of 30 August 1983, and

furnish you with the following statement in writing

setting out findings on material questions

of fact.

Mr R.J. Peers and Miss M.A. Khoury are members of the Australian Public Service employed in the Office

of the Australian Federal Police.

On 6 November

1979 they were employed in the Federal Narcotics

Bureau within the Department of Business and

Consumer Affairs.

On 7 November 1979 the Australian Government

I I .

disbanded the Federal Narcotics Bureau. All staff,

and positions held by

them, were transferred

to the

Department of Administrative Services and later

the Office of the Australian Federal Police where,

as members

the Australian Public Service, they

performed duties. With the transfer also

of the

function of federal drug enforcement to the Australian Federal Police (AFP) the Government directed that those former Federal Narcotics Bureau

members deemed, by the Commissioner of the AFP, as

suitable for appointment as police officers, should

be so appointed to the AFP. The persons had	no
legal right to appointment nor was there any

mandatory requirement that they be

appointed.

The Commissioner of the AFP had the discretion to offer appointment to those persons whom he considered suitable.

The Commissioner assessed the qualities of the 123 former members of the Federal Narcotics Bureau and, in May 1980 offered appointment as police officers to 84 such persons including your clients, Mr Peers

and Miss Khoury. They,.however, declined the offer

of appointment. Thos-e

who accepted the offer of

appointment were sworn in as members of the AFP	on
24.6.1980.

The AFP Act 1979 provided that all persons should

appointed at the rank

of Constable and that no entry

above the base level

of Constable was permitted.

This provision was designed

to prevent the practice

commonly termed "lateral entry" which had applied in the former Commonwealth Police whereby persons could be appointed at any rank to that organisation. The

provision was vigorously sought by the then two

police associations and agreed	to by the Government
of the day.

These appointments in June 1980 of the former Federal Narcotics Bureau members as police officers

was made possible by an amendment (Section 26A)

the AFP Act 1979. Such appointments were made at ranks ranging from Chief Superintendent and intermediate rank levels down to Constable and at

this latter rank, appointments were at the grades	of
First Constable and Senior Constable.

This action by the then Commissioner. in the exercise of his discretion, to appoint such former

Federal Narcotics Bureau staff as

he saw fit was the

subject of adverse comment and opposition by the two police associations who claimed a breach of the "no lateral entry" agreement given by the Government and

provided for in the principal Act.

However the

action proceeded despite this Opposition in view	of
the special circumstances namely the abolition	of
the Federal Narcotics Bureau, the transfer of its
functions to the AFP and the need for staff	to
perform this function.

In 1981, when Mr Peers

and Miss Khoury

requested

that they be appointed as police officers,

the then

Commissioner refused to accede to their requests. vigorously opposed the requests and since the formation of the single industrial body in 1982, the Australian Federal Police Association (AFPA), through its National Council has adopted a policy of

opposition to entry

to the Australian Federal Police

at other than at the base level

of Constable.

By virtue

Section 13 of the AFP Act

I am

empowered with the general administration

of, .and

control of the operations

of, the Australian Federal

Police. In considering the question

of entry to the

AFP in 1983 of Mr Peers and Miss Khoury

I took into

account the effect on the career prospects

of those

AFP members placed at.-a dlsadvantage if Mr Peers and

Miss Khoury were now appointed at

a higher rank than

members who have joined since June 1980 and the

possible industrial reaction of the AFPA whose

executive has reaffirmed its strong opposition to

the entry of persons into the AFP	at other than	base
rank of Constable.

There is a further factor.

In the case of Miss

Khoury, had she accepted

her offer in 1980, her

appointment would have been as First Constable. As former Narcotic Bureau officers and those other AFP members holding First Constable grade appointments

such she would have been required to pass an

examination for advancement to the grade of Senior

at that time. Her requested appointment to AFP

1983, in accord with

the agreed translation

conditions would be as a Senior Constable and she

would thus attain this grade without the requirement

to pass the examination,

a statutory requirement

imposed on the aforementioned groups who would be disadvantaged by Miss Khoury's grade appointment.

Had M r Peers accepted his offer in 1980, his appointment would have been at the rank of Sergeant and this would again apply in accord with the

previously agreed translation conditions if his request were to be granted. Such appointment would

advantage him over those members

of Senior Constable

grade and qualified for Sergeant,

who are seeking

. .

10.

promotion to that. rank and

who have gained that

qualifjcation since June 1980.

I have therefore decided that the application

of Mr

Peers and Miss Khoury for appointment	at a rank
above the base rank of Constable should not be

granted. In exercising my discretion

in this matter

I am maintaining the decision of my predecessor and

the undertaking given by him to the AFPA.

I have

also taken into consideration the overall effect on

morale and career prospects

of other members of the

Force. The two persons may apply

to join the AFP

Constables in which case

I would consider their

applications in the light of the normal entry requirements for appointment. If applicable, I will

consider a waiver

of the entry requirements relating

to maximum age for appointment if all other criteria.

are met.

“

The Australian Federal ,Police Act 1979

(to which I

shall refer

to as “the .-principal

Act“) established the

Australian Federal Police, to be constituted by the

Commissioner of Police, one or more Deputy Commissioners,

commissioned and non-commissioned police officers and

commissioned and non-commissioned protective service

officers. Each of the last two groups of members is called,

in the principal Act, “a component“. The principal Act

specifies, or makes provision for the specification, of the

functions, powers and duties of the several classes of

members of the body thus constituted. Section 13 provides:

“(1)	Subject to this Act, the Commissioner

has the general administration

of, and

the control

of the operations

of, the

Australian Federal Police.

( 2 )

The Minister may, after obtaining and

considering the

advice

of the

Commissioner and of the Secretary, give

written directions

to the Commissioner

11.

with respect to the general policy

to be

pursued in relation to the performance

of the functions of the Australian

Federal Police.

( 3 ) In addition to his power to give directions under sub-section ( 2 ) , the Minister may give written directions (either specific or general) to the Commissioner in relation to the use of common services in accordance with an

arrangement made under sub-section

(5).

( 4 )

The Commissioner shall comply with all

directions given under this section.

( 5 )

The Minister may, after obtaining and

considering the

advice

the

Commissioner and of the Secretary, make an arrangement with the appropriate Minister of the Crown of a State for the provision or development of common

services and for the use

of such common

services ..by the Australian Federal

Police and the Police Force of the

State.

(6)

The Commissioner shall furnish to the

Minister such reports as the Minister

requests relating to the administration

and the performance of the functions of

the Australian Federal Police.

(7) In this section -

' common services' includes services

consisting of, or provided by means

of -

(a)

computer

systems;

(b) forensic science laboratories;

(F)	research and planning systems;

(d) training institutions; or

(e) anything of a like nature:

'Secretary' means the Secretary

to the

Department administered by {he

Minister. "

J.L.

A power of delegation is conferred on the Commissioner, in the terms commonly employed in Commonwealth legislation :

s.15.

The Commissioner and

a Deputy Commissioner shall be

appointed by the Governor-General by commission	: s.17(1).
Section 26(1) provides:

"Subject

this Act, the Commissioner may, by

instrument in writing

appoint a person to be a non-commissioned officer in a component, being an appointment to a rank that the person is, in accordance

with the regulations, competent and qualified

to hold:

promote a person who is a non-commissioned officer in a component to a higher non-commissioned' rank in either component, being a rank that the person is, in accordance

with the regulations, competent and qualified

to hold:

transfer a person who is a non-commissioned

officer in a component to an equivalent rank

in the other component, being a rank that the

person is, in accordance with the regulations,

competent and qualified to hold:

direct a person holding non-commissioned rank

in a component to act for a specified period

higher non-commissioned rank in either

component.

Section 25(1) makes similar provision for appointment, promotion and transfer to commissioned rank, by commission.

Although the regulations were not produced,

I was assured by

counsel that they preclude appointment

of persons who are not

members of the Australian Federal Police at

rank other than

that of constable or

to a grade within that rank other than

the base grade. But sections 25 and 26 and the regulations

13.

are to be read subject

to certain transitional provisions

contained in the principal Act. Section

commanded that

persons who immediately before the date

on which most of the

provisions of the principal Act came into operation were

members of the Commonwealth Police Force

or of the Police

Force of the Australian Capital Territory should be appointed

under s.25 or s . 2 6 , as the case required, members

of the

newly constituted Australian Federal Police, and that the

appointments should take effect on that date. In respect of

none of those appointments was any regulation a bar to

lateral entry.

Section-73 of the principal Act provides:

“(1) Where

an appointment, other

than

appointment in pursuance of section 72, is to be made to a rank in the Australian Federal

Police, an applicant who	-
(a) is a member:

(b) was, immediately before the commencing

date, a member of an existing Police

Force;

(c)	is qualified to hold that rank: and

(d) is,

in the opinion of the Commissioner,

suitable for the appointment,

is entitled to be appointed in preference	to
any other applicant.

(2 )

Sub-section (1) does not apply in relation

an appointment made after the expiration of 5 years, or such longer period as is prescribed, after the commencing date.”

The amendment of the principal Act, by which the

Commissioner was empowered

appoint former officers and

14.

employees of the Narcotics Enforcement Branch to be members of the Australian Federal Police at ranks and grades appropriate to their Public Service experience and salaries,

I	was effected by inserting s.26A, which reads:

Where an officer

of the Australian Public

Service who was transferred on 7 November 1979 to an office in the Department of Administrative Services held, immediately before his transfer, an office in the

Narcotics Enforcement Branch	of the Operations
Division in the Department	of Business and

Consumer Affairs, this section applies to the officer .

Notwithstanding anything in sections

and

73,	an officer to whom this section applies

may be appointed,.by Commission under section

2 5 . to be a eomrnissioned

officer in the

component

of the Australian Federal Police

referred to in sub-section 7(1) and to hold such rank as he is, in the opinion of the

Commissioner. qualified to hold having

regard

to his duties immediately before his appointment and to his qualifications and aptitude for the discharge of duties of a kind

performed by members engaged in investigating

narcotics offences and of other duties of a

kind performed by members of the component	so
referred to.

Notwithstanding anything in sections

and

73.

an officer

to whom this section applies

may be appointed,

by instrument in writing

under sectjon

26,

to be a non-commissioned

officer in the component

of the Australian

Federal Police referred to in sub-section

7(1)

and to hold such rank as he is, in the opinion

of the Commissioner, qualified to hold having

regard to his duties immediately before his

appointment and to his qualifications and

aptitude for the discharge of duties of a kind

performed by members engaged in investigating

narcotics offences and

of other duties of a

kind performed by members of the component so

referred to.

Where an officer to whom this section applies

is appointed to be

a member -

15.

(a) it shall be

presumed,

unless

the

contrary is established, that, in making

the appointment, the Commissioner has

had regard to all matters to which he

is, under sub-section (2) or ( 3 ) . as the

case requires, required to have regard;

and

(b)

the

officer

shall

deemed,

for

all

purposes of this Act and the regulations, to be competent and qualified to hold the rank to which he is appointed.

(5)

Where an officer to whom this section applies

is appointed to be a member, the terms and

conditions

his service in the Australian

Federal Poli.ce shall, until a determination

under section

30 or an agreement having effect

under section

31 otherwise provides,

be deemed

to be the terms and conditions

of service that

were, immediately before his appointment, applicable to him as an officer of the Australian Public Service."

The reference in the last paragraph of the

Commissioner's statement of the reasons for his decision to

"the decision of my predecessor" is to the decision of

Commissioner Sir Colin Woods in May

1981 that the applicant

and Mr. R. J. Peers be not appointed members of the Australian Federal Police by an exercise of the power

conferred by s.26A. The reference

in the s m e sentence to

"the undertaking given by him

to the AFPA" is toe an

undertaking given in

or about May 1981

by Sir Colin Woods

(to

officers, not, it would seem,

of an association of members of

the Australian Federal Police called the Australian Federal

Police Association, for that association had not then been

formed, but

to officers of two other police associations then

16.

in existence) that the power conferred by s.26A would no

longer be exercised, but that all appointments to membership

of the Australian Federal Police (save for Commissjoner and

Deputy Commissioner) would be made in exercise of the powers

conferred by s s . 25(1) and 26(1),

and subject to the

regulations to which those sub-sections refer.

The uncontradicted evidence of John Daniel Reilly, Assistant Commissioner of Police (Personnel and Services),

the hearing of the appli.cation was, first, that the opinion

of the Commissioner at the time

he made the impugned decision

was that there should be no lateral entry to the Australian Federal Police and that therefore the power conferred by s.26A should not be exercised to grant lateral entry and,

second, that "the overriding reason" for the Commissioner's

decision was that it gave effect

to that opinion.

It was the submission

of .Mr. N. J. Young, of

counsel for the applicant, that the making of the decision

was an improper exercise

of the discretionary power conferred

by s.26A because the power had been exercised in accordance

with a rule or policy without regard

to the merits of the

particular case,

or because there had been, as Mr. Young

submitted, no exercise

of discretion at all, but rather a

refusal to have regard to the considerations relevant to the exercise of the power, in consequence of the Commissioner's

opinion that there should in no circumstance

be any exercise

17.

of the

power.

Accepting, as I do, the evidence of Mr. Reilly that the Commissioner's opinion at the time of his decision was that the power conferred by s.26A should not be exercised in

favour of any person, and that the opinion the Commissioner

held was the determinant consideration in the making

of the

decision, I am not compelled

by necessary inference from

those findings to the conclusion that the Commissioner did

not have regard to the merits of the applicant's particular

case, or that there had been

a failure to exercise the

discretion conferred by s.26A.. It is, I think, an hypothesis

consistent with the evidence that the Commissioner had regard

to all relevant considerations in the exercise

of the power

and found the opinion undisturbed by his evaluation of what he considered to be the merits of the applicant' S particular

case.

I am not persuaded to a finding contradictory of that

hypothesis.

In support Of the generally stated ground which

s.5(l)(e) and s.5(2)(f) of the Administrative Decisions

(Judicial Review) Act 1977 express, it

was subnitted that an

opinion such as the Commissioner

held, or an undertaking such

as Sir Colin Woods gave, was inconsistent with s.26A. Until Parliament repealed that provision, the repository of the power which it conferred could not lawfully abnegate, whether

by mental resolution or by undertaking to others, the

I	.
18.

exercise of the power, it was submitted.

It may be - I need express no concluded opinion that an unqualified determination in no circumstances

exercise the power,

or an unqualified undertaking not

exercise the power, would be erroneous in point of law. (See, as to an undertaking, Ansett Transport Industries (Operations) Pty. Ltd. v. The Commonwealth (1977) 139 C.L.R.

54 at 74-76.)

But I am not persuaded that the Commissioner'

state of mind was of that character. Nor

am I persuaded that

the Commissioner's reference in his statement of the reasons for his decision to his maintaining the undertaking given by Sir Colin Woods justifies-a conclusion that the Commissioner

thought himself bound

to honour the undertaking.

Counsel for both parties recognised the necessity,

and the difficulty, of identifying and defining the considerations extraneous to the exercise of the discretionary power of appointment conferred by s.26A by reference to the subject matter and the scope and purpose of

that section and of the legislative context into which

it was

introduced. (See

The Queen v. The Australian Broadcasting

Tribunal; ex parte 2HD Pty.

Ltd. (1979) 144 C.L.R. 45; Water

Conservation and Irrigation Commission

v. Browning (1947) 77

C.L.R. 492; Swan Hill Corporation V. Bradbury (1937) 56 C.L.R. 746; Bread Manufacturers of New South Wales v. Evans

(1981) 38 A.L.R. 93; Padfield v. Minister of Agriculture

19.

Fisheries and Food C19681 A.C. 997.)

Mr. Young conceded that

the efficiency

of the Australian Federal Police

was an object

the attainment of which the exercise of the discretion was Federal Police to lateral entry was not a consideration extraneous to the exercise of the discretion, since efficiency may be affected by morale and morale was likely to

legislatively intended to serve, and that regard by the

influenced by

an appointment offending such attitudes.

But Mr. Young submitted that, if the exercise of the discretion were controlled, as he submitted that I should

conclude it was, by the Commissioner's unwillingness

resist the opposition to lateral entry which the Australian

Federal Police Association maintained, that was an abnegation

of the discretionary power, or alternatively an exercise of

the power upon a Consideration extraneous to	tlne purposes for
w3i.ch it had been conferred.

The evidence did not,

however,

show the

Commissioner to have been

constrained against his own

inclination to the decision under review

: there was credible

evidence which I have accepted that

his own opinion was that

lateral entry should not be permitted and that the opinion

was of decisive significance in the	&missioner' S	reasoning
to his decision.

The Commissioner's opinion, considered as a policy

2 0 .

in accordance with which the discretionary power conferred

S .26A is to be exercised against appointment

by way

lateral entry, may in my opinion without error

b entertained

by the Commissioner, provided that in each case

he takes into

account all other considerations relevant to the exercise of the power and reasonably weighs those which favour appointment under s.26A against that opinion or policy and

against the considerations which contributed to the formation

of the opinion or policy. At least after the offers of

appointment under s.26A-had been made- to those considered

suitable for such appointment, the formation of such an

opinion or policy does

not in my opinion contravene any

purpose or policy of the legislation in which s.26A finds a

place.

It is in my opinion a not unreasonable understanding

of s.26A that it was enacted as an exception to the legislative policy which ss. 25, 26 and 72 and 7 3 express,

namely that a transitional preferential system

of entry into,

and promotion within, the Australian Federal Police

of former

members of the Commonwealth Police Force and the Police Force

of the Australian Capital Territory should

be succeeded by a

system of entry and promotion, the mechanisms and policy

which would be determined from time to time by the exercise

by the Executive Government of a power to make regulations.

Although, as Mr. Young pointed out, s.26A

is not expressed,

as s.73 is, to continue in force only for a limited time, the subjects to which S .26A applies and the circumstances which attracted the attention of the Legislature to them are such

as strongly to suggest that

the considerations by reference

to which the power conferred

by the section may reasonably e

exercised might change rapidly after the passing

initial period, when the personal interests

of those subjects

might have been of

major importance, and that those

considerations would thereafter be greatly affected by the general policies to which the regulations and the

Commissioner were from time

to time giving effect.

In my opinion the-Commissioner did not fall into an

error of the kind specified in paragraph (a), (e), (f)

or (j)

of S - 5 (1) of the Administrative Decisions (Judicial Review)

Act 1977 if he attributed substantial weight in the exercise appointment by way of lateral entry should not be made of

persons to whom s.26A applied and who had previously declined

appointment under that section,

or if he attributed weight to

the circumstance that Sir Colin

Woods had given to

representatives of members of the Australian Federal Police

an undertaking that the power conferred by S .26A would not

again be exercised. And I am not persuaded that he went

further than

to give weight to that opinion and

to that

circumstance.

It may be conceded that, as Mr -

Young submitted,

the enactment

of S .26A had for one of its objects the

advancement of the personal interests of the persons to whom

'	I	._
22.

it applied. Consideration of the personal interests of the

applicant was therefore required

in the exercise of the

discretion. But, once an exercise

of the power in her favour

had been offered and refused, degradation of those personal

interests

of hers in comparison with other considerations

could hardly be characterised as unreasonable, if her

interests were not disregarded in reaching a decision. If

they were not disregarded, the relative weight to be accorded

those interests

on the one hand and the Commissioner's

opinion concerning lateral entry

on the other was for

him to

determine. Concerning the undertaking

of Sir Colin Woods, I

shall

assume, but without deciding, that

law the

undertaking

was ineffective to impose any fetter on the

exercise, either by Sir Colin Woods or by any successor of

his in the office

of Commissioner, of the power conferred by

S .26A. It

is, I think, certain that the undertaking did not

even purport to bind a successor. But the giving

of the

undertaking may have had an effect

on the attitudes

members of the

Australian

Federal

Police.

The

evidence

before me does not show that the Commissioner would

have been

unreasonable if

he believed that appointment

of the applicant

under S .26A would be thought by some members of the Australian Federal Police to be a breach of an undertaking they had expected him to honour. If he thought that, it would not be a consideration irrelevant to the exercise of the power : the morale, and thus the efficiency, of the Australian Federal Police may undoubtedly be influenced by

23.

the attitudes

of its members to the Commissioner.

The other principal ground

on which an order

review of the Commissioner'

S decision was sought was that a

breach

the rules of natural justice had occurred

connection with the making

of the decision. It was submitted

that s.26A was to be distinguished from a general provision

authorising appointment to a public service, such as

was said

in Cole v. Cunningham (1983) 49 A.L.R.

123 at 128 not to

import an obligation,	on	the person deciding whether	to
exercise the power, to	disclose to an applicant for

appointment the circumstances under consideration

the

repository

the power and to afford the applicant

opportunity to be heard in respect

of those circumstances.

The terms of S .26A, the subjects to whom it applies and the

circumstances giving rise

to its enactment lead

to the

conclusion, in

Mr.

Young's submission, that a refusal

appoint a person

to whom the section applies could not

without breach

the rules of natural justice be decided

upon unless the Cornmissioner had first notifjed i3aL person

of	the matters which weighed against appointment and had

afforded that person the opportunity to place before the

Commissioner matter in refutation of

the conclusion that he

should not

be . appointed.

Mr. Young submitted that the

section itself, in all the circumstances, gives

ri.se in each

of those to whom

it is expressed to apply a "legitimate

expectation" that the discretionary power

it confers will not

24.

be exercised against his appointment until he has been heard.

I cannot accept the submission. Section

26A does

no more, in my opinion, than remove obstacles which, if the

section had not been enacted, would have fettered the

exerci se, in favour of those to whom it is expressed to

apply, of the powers of appointment conferred by

s.25 (1) (a)

and s.26 (1) (a)

Section 26A expressly provides that it is

- those general powers of which it authorises exercise by the

Commissioner. Those general powers are in like case with the

powers under consideration in Cole	v . Cunningham, supra, in
my opinion.

In any event, the evidence justified the inference,

which I draw, that the applicant was aware, when the third application for appointment was made on her behalf by her

solicitors, of all

but one of the considerations which would

or might be taken into account in reaching the impugned

decision. And there

was no evidence to suggest that the

Commissioner would not have taken into consideration anythjng

she had placed before him in favour	of a decision to accede
to her application.

mere was one circumstance, taken into account by the Commissioner in reaching his decision,

I	of which the

applicant was

not

aware until after the decision had been

made

: that Sir Colin Woods had given an undertaking

25.

police associations that no further exercise

of the power

conferred by s.26A would be made

to effect lateral entry.

It was not submitted that a Commissioner mjght

not

take into account, as a consideration relevant to the exercise of such a power as S .26A confers, the opinion of an association of members of the Australian Federal Police concerning the policy which should guide the exercise of the

power. And

I think he might, without error, do so.

If he

did, that circwnstance would probably not

of itself result in

his incurring an obligation to disclose to one

who was

seeking appointment under s.26A, before deciding whether	to
exercise the power, that the opinion was being taken into

account, or to tell the applicant what the opinion was, or

offer the applixant the opportunity to be heard in relation

to the opinion. But when the respository of such a

discretionary power

has undertaken that its exercise shall

foregone, and a successor considers, as

infer from the

fourth last sentence of the Commissioner'

S statement of the

reasons for his decision that he did consider, that he should take into account, as a consideration relevant to the exercise of the power, the fact that the undertaking had been

given, justice in my opinion demands that the applj cant be apprised of those circumstances and offered lihe opportunity

to be heard concerning them.

It may be thought a paradox that, while an

I .

applicant for public employment under an enactment conferring

a discretionary power

to engage staff may lawfully

be left

ignorance of many<

of -the considerations

- including weighty

considerations of policy - taken into account in deciding

whether to

grant

the application, one particular

consideration

possibly scant weight must be disclosed.

There may be different ways of regarding the paradox. One

may concentrate attention

on the singularity

of what Sir

Colin Woods communicated

to the associations - a promise not

to perform a function committed

to him - and on the injustice

Of leaving an applicant for appointment under s.26A ignorant that a promise so unusual and so prejudicial to the

applicant's aspiration had been given.

So regarded, the case

may be seen as one of "very special facts" giving rise to a "legitimate expectation" of the applicant which has been

disappointed : see Cole v. Cunningharn 49 A . L . R . at 133.	Or
one may consider, more generally, that if an official	or

authority empowered

engage staff for public purposes

chooses to commune, not only with the Executive Government, but also with voluntary associations oE persons interested in

the exercise

that power, concerning the policies which

shall guide its exercise,

he and his successors in office lie

under an obligation to ensure that what he discloses about

those policies to such an association shall be disclosed also

to the single citizen

who seeks engagement, so that each

applicant for engagement may frame

his application with

knowledge of what the official or authority has chosen thus

to reveal.

It is sufficient to rest, as I do rest, the

decision of the application

on the former basis.

This applicant was

not made aware by the

Commissioner, and did not know, before he made his decision not to accede to her application, that Sir Colin Woods had

given

the undertaking and that he might

take

that

circumstance into account in making the decision. Thereby a breach.of the rules of natural justice occurred in connection with the making of the decision, in my opinion.

I should observe, in fairness to the Commissioner

and other members of the Australian Federal Police who were

concerned in the consideration of the application for

appointment, that the evidence is qvite consistent, in

opinion, with their having supposed

- and reasonably supposed

- that the applicant was at all material times aware of Sir

Colin Woods' undertaking, and that she would realise that the

fact that the undertaking had been given might

be taken into

consideration by the Commissioner in making

his decision.

The order disposing of this application will be

that

decision

of the

respondent

Commissioner,

communicated to the applicant by letter dated

11 April 1983,

of which a copy is exhibit J to the affidavit of the

applicant sworn the 2nd day

December 1983,

that the

applicant be not appointed

a member of the Australian Federal

28.

Police by exercise

of power conferred on him by s.26A

of the

Australian Federal Police Act 1979, be quashed: and that the

request

of the applicant made in February 1983 by her

solicitors on her behalf that she be so appointed by exercise

of that power be further considered by the respondent

Commissioner after the expiracion

of four weeks from the date

of	this order; and that the respondent Commissioner give

consideration in relation to the said request to such written

matter in support of her request as may be submitted to him

by or on behalf of the applicant within four weeks from the

date of this order.

The order places no restriction the material to be submitted to the Conunjssioner by reference to subject matter. The decision of April 1983 having been quashed and the applicant's request standing now for considerat? on, neither the Commissioner nor the applicant should be prevented by curial order from acting in relation to the

request in any way in which

i.t would have been open

to h i m or

to her, respectively, to act if the decision of April 1983

had not been taken.

L-

[1984] FCA 73

30 Mar 1984