Boswell, S. v Secretary, Department of Foreign Affairs and Trade

[1992] FCA 225

Re: SUSIE BOSWELL
And: SECRETARY, DEPARTMENT OF FOREIGN AFFAIRS AND TRADE
No. G592 of 1991
FED No. 225
Administrative Law - Public Service
(1992) 27 ALD 486 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.(1)

CATCHWORDS

Administrative Law - s.13 Administrative Decisions (Judicial Review) Act 1977 - s.47 Public Service Act 1922 - application for reasons for termination of probationary appointment to Australian Public Service - whether within exemption to s.13 in para(t)(i) of Schedule 2 of ADJR Act as a decision "relating to the making of appointments in the Australian Public Service".

Public Service - appointment under Public Service Act 1922 - tenure of office.

Words and Phrases - "relating to"

HEARING

SYDNEY

#DATE 1:5:1992

Counsel and Solicitors Applicant appeared in person
for Applicant:

Counsel and Solicitors Australian Government Solicitor for Respondent:

Counsel and Solicitors Mr W.R. Haylen QC instructed by
for the Australian Public Geoffrey Edward and Co.
Sector and Broadcasting Union as Amicus Curiae:

ORDER

The Court Orders:

Declare that the decision made in the instrument headed "PUBLIC SERVICE ACT 1922 TERMINATION OF APPOINTMENT", being Exhibit A, is not a decision within para(t) of Schedule 2 of the Administrative Decisions (Judicial Review) Act 1977.

Reserve liberty to the applicant to apply.

Stand principal proceedings over to a date to be fixed for a final hearing.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

(On application for reasons under s.13 of the Administrative Decisions (Judicial Review) Act 1977)

The applicant has made an application for an order of review of a decision by the respondent to terminate her appointment to the Australian Public Service. In the course of these proceedings, the applicant has sought a statement of reasons for this decision. This particular application is made pursuant to s.13 of the Administrative Decisions (Judicial Review) Act 1977 ("the Act"). In this connection, a preliminary point has been taken on behalf of the respondent. By s.13(1) of the Act, where a person makes "a decision to which (s.13) applies", reasons may be requested. By s.13(11), a "decision to which (s.13) applies" does not include, inter alia, "(c) a decision included in any of the classes of decision set out in Schedule 2." By the provisions of Schedule 2, reference is made to:

"(t) decisions relating to -

(i) the making of appointments in the Australian Public Service..."

1. On behalf of the respondent, it is submitted that this exemption applies here.
   The background facts

2. By letter dated 4 May 1989, Mr A.J. Tyler, Staff Selection and EEO Programs Section, Department of Foreign Affairs and Trade, wrote to the applicant as follows:
   

"I refer to your application for the vacancies of Journalist Grade A1 advertised in the Gazette on 24 November 1988 and The Canberra Times and The Weekend Australian on 26 November 1988.

I am pleased to advise that you have been selected to fill one of these positions. However, before your appointment can be processed, it will be necessary for you to obtain the appropriate clearances. As a security clearance is a prerequisite for employment with this Department, I would be grateful if you could complete the enclosed package of forms and return them to the Diplomatic Security Section as quickly as possible.

You will also be required to complete successfully a medical examination to enable you to be appointed as a permanent officer of the Australian Public Service. I am therefore enclosing a letter of introduction to the Commonwealth Medical Officer and a Medical Report form which should be completed as fully as possible prior to the examination. I would be grateful if you would advise (Mr Nash) when an appointment has been made."

1. By letter dated 12 May 1989, Mr R.J. Nash, Recruitment Officer of the Department, wrote further to the applicant as follows:
   

"Attached is a letter of introduction to the Commonwealth Medical Officer which was inadvertently excluded from Mr Tyler's letter of 4 May 1989. Please present this letter to the CMO on the day of your medical examination."

1. On 27 July 1989 an Instrument of Appointment under s.42 of the Public Service Act 1922 was made in respect of the applicant as follows:
   

"I Francis Conynghame Murray, the officer for the time being occupying an office to which the Secretary of the Department of Foreign Affairs and Trade, has, by instrument in writing pursuant to Section 16 of the Act sub-delegated the powersand Functions delegated to him pursuant to Section 42 of the Act in respect of the appointment of an officer, hereby appoint subject to normal probation, Sue BOSWELL to the office of Journalist, Grade A1, $38908 - 40193, position number 2337, Overseas Information Branch, International Organisations, Information and Cultural Division, Central Office, Department of Foreign Affairs and Trade, Canberra with a salary of $38908 (plus VDT allowance, if applicable) with effect from the date of commencement of duty."

1. By letter dated 31 July 1989, apparently not received by the applicant, Mr Andrew Walls, for the Secretary of the Department, wrote to the applicant as follows:
   

"I am pleased to inform you that you will be appointed to the Australian Public Service as Journalist Grade A1 with this Department. As agreed previously, you should commence duty on 28 August 1989. The appointment will take effect from the date on which you commence duty. Would you please advise immediately should you be unable to commence duty on the date specified above or if you decide not to take up the appointment. ...

Your appointment is on six months probation, during which time your conduct and work performance will be assessed to determine whether you meet the standard required for confirmation of your appointment to take place. If there are doubts on any of these matters the probationary period may be extended up to a total of twelve months. If your conduct or work performance are considered unsatisfactory your appointment will be annulled. You should plan your arrival at the Administrative Building, Parkes at 0900 hours on 28 August. An information package is normally given to new starts upon arrival is attached for your perusal. We look forward to meeting you."

1. By letter dated 7 August 1989, Mr A. Walls, Recruitment Officer, Staff Selection Sub-section of the Department, wrote to the applicant as follows:
   

"I refer to your letter of 2 August 1989. The normal salary range for Journalist Grade A1 is $38908- $40193 and with VDT allowance if applicable, is $41096- $42454.

...

Travel and accommodation allowance can be organised upon commencement of duty on 28 August 1989. If you wish to write to Andrew Tyler in relation to the position his title is Acting Director, Staff Selection and Policy Section."

1. By letter dated 16 August 1989, Mr A.J. Tyler, wrote to the applicant as follows:
   

"I refer to our telephone conversation of 15 August and confirm that your salary on commencement will be $38908 (+$2088 VDT allowance, if applicable) within the range $38908-40193.

As explained to you during our conversation, although provisions exist for the approval of an above-minimum salary on appointment, the circumstances surrounding this particular selection process preclude their use. Under normal circumstances, the Department would need to consider any difficulties experienced in recruiting appropriately qualified people before approving requests forabove-minimum salaries. However, in this case there are no such difficulties because there are many more applicants who are suitable than there are positions to be filled. I therefore regret to advise that the Department is unable to accede to your request."

1. By letter dated 14 August 1991, G.J. Forrester, First Assistant Secretary, Corporate Management Division of the Department, wrote to the applicant as follows:
   

"I refer to your probationary appointment to the Australian Public Service as a journalist A1. You will be aware that confirmation of your appointment is dependent upon satisfactory conduct and work performance during the probationary period. I have received a recommendation from your supervisor that your appointment should be terminated because aspects of your conduct and work performance have been unsatisfactory. I have attached copies of the recommendation and supporting information. Before a decision is taken, you have the opportunity of providing written comments on the recommendation. Your comments should reach this office within 2 weeks of the date of this letter; otherwise a decision will be taken on the information currently available. You should note that the Public Service Act does not provide a right of appeal against a decision to terminate a probationary appointment."

1. By letter dated 30 August 1991, there was delivered to the applicant a document headed "Termination of Appointment" as follows:
   

"Pursuant to Section 47 of the Public Service Act, the appointment of Ms Susie Boswell, Journalist Grade A1, Department of Foreign Affairs and Trade is hereby terminated with effect from close of business on 30 August 1991."

The relevant provisions of the Public Service Act

1. It is necessary to refer, by way of further background, to the relevant provisions of the Public Service Act.

2. By s.42(1) of that Act, which deals with appointment of officers, the Board may appoint a person to a particular office in the Service or as an attached officer.

3. Section 47, which deals with appointments on probation, relevantly provides as follows:
   

"47 (1) Subject to subsection (2), the appointment of a person to the Service as an officer (other than a Secretary) shall, in the first instance, be an appointment on probation.

(2) The Board may appoint a person to the Service without probation, but:

(a) ...

(b) shall not so appoint a person unless the Board is satisfied:

(i) after the person has undergone a medical examination approved by the Board, as to the officer's health and physical fitness; or

(ii) ...

(3) The Board may, at any time within the period of 6 months after an officer is appointed to the Service on probation, confirm the appointment.

(4) The relevant Secretary may, at any time after an officer is appointed to the Service on probation and before the appointment is confirmed, terminate the appointment.

(5) The relevant Secretary may, at any time after the end of the period of 6 months after an officer is appointed to the Service on probation, confirm the appointment.

(6) Where, at the end of the period of 12 months after an officer is appointed to the Service on probation, the appointment has been neither confirmed nor terminated, the relevant Secretary shall, as soon as practicable, confirm or terminate the appointment.

(7) Where, at the end of the period of 2 years after an officer is appointed to the Service on probation, the appointment has been neither confirmed nor terminated, the appointment shall (unless the officer is not an Australian citizen) be deemed to have been confirmed.

(8) ...

(9) The Board shall not, under subsection (3), and the Secretary shall not, under subsection (5) or (6), confirm the appointment to the Service of an officer unless the Board or Secretary, as the case may be, is satisfied, after the officer has underegone a medical examination approved by the Board, as to the officer's health and physical fitness.

(10) ...

(11) A Secretary may, under subsection (4) or (6), terminate an officer's appointment to the Service on any of the following grounds:

(a) that the Secretary is not satisfied, after receiving a report from an authorised medical practitioner, as to the officer's health and physical fitness;

(b) that the Secretary considers, after receiving a report from the officer's supervisor or another appropriate officer, that the manner of the officer's performance of duties has not been satisfactory.

(c) that the Secretary considers that the officer is not a fit and proper person to remain an officer of the Service;

(d) ...

(e) ..."

1. Reference should also be made to s.76W of that Act, which deals with the retirement of officers and the powers of the Secretary and the Board relevantly in this connection as follows:
   

"76W. (1) Where the relevant Secretary is satisfied of a relevant matter in relation to an officer, the relevant Secretary may, having considered whether it would be in the interests of the efficient administration of the Secretary's Department to (inter alia) ... retire the officer from the Service.

(2) ...

(3) ...

(4) ...

(5) ...

(6) In this section, 'relevant matter', in relation to an officer, means any of the following matters:

(a) that an officer is unable to perform his or her duties, or other duties appropriate to the officer's classification, because of physical or mental incapacity;

(b) that an officer is inefficient;

(c) that an officer is not qualified to perform his or her duties;

(d) ..."

Is the exemption in para (t) of Schedule 2 of the Act applicable here?

1. On behalf of the respondent, it is submitted that s.47 of the Public Service Act, taken as a whole, and each of its relevant provisions, are concerned with appointments. Actions taken under the authority of this provision, it is said, are actions "relating to" appointment under the Public Service Act. The words "relating to" are an expression of the widest import. It is contended, for the respondent, that the applicant was appointed on probation and that a probationer does not finally hold the office concerned until the appointment is confirmed and thus a decision, either to confirm a probationary appointment, or not to confirm it (and thus to terminate it) is a decision "relating to" the appointment.

2. I have difficulty in accepting this analysis.

3. On any view of the matter, the applicant was appointed, in the first instance, "on probation". Section 47(1) required this and the Instrument of Appointment was so expressed. Even if done "on probation", this was nonetheless an appointment (cf. R v Gorman; Ex Parte Australian Broadcasting Commission (1979) 24 ALR 609 per Mason J. at 613-4). It is true that, by s.47(3) or (5), the Board or the Secretary may confirm a probationary appointment and a request for reasons for a decision to confirm a probationary appointment may be exempt under Schedule 2 of the Act. But this is not the present case. The instrument headed "Termination of Appointment" purported not to confirm the probationary appointment, but to terminate it. (Its efficacy is a matter for the final hearing.) In its terms, the instrument purported to terminate the appointment. It is impossible, in my view, even if "relating to" is to be widely construed (in its proper context - see Tooheys Limited v Commissioner of Stamp Duties (N.S.W.) (1961) 105 CLR 602) to regard this act of termination as an appointment, or as relating to an appointment.

4. I propose to declare that the decision made in the instrument headed "PUBLIC SERVICE ACT 1922 TERMINATION OF APPOINTMENT", being Exhibit "A", is not a decision within para(t) of Schedule 2 of the Act.