Brown v Administration of Norfolk Island

[2013] NFSC 1

SUPREME COURT OF NORFOLK ISLAND

Brown v Administration of Norfolk Island [2013] NFSC 1

Citation:		Brown v Administration of Norfolk Island [2013] NFSC 1
Parties:		JOHN TERENCE BROWN v THE ADMINISTRATION OF NORFOLK ISLAND and BRUCE TAYLOR
File number:		SC 4 of 2012
Judge:		JACOBSON CJ
Date of judgment:		12 April 2013
Catchwords:		ADMINISTRATIVE LAW – procedural fairness – whether prospective job applicant entitled to be heard on whether he was an “eligible applicant”
Legislation:		Court Procedure Rules 2006 (ACT), rr 3553, 3554, 3556 Public Sector Management Act 2000 (NI), ss 5, 28, 36, 54 55, 56 57, 58 Supreme Court Act 1960 (NI), ss 5, 19
Cases cited:		Ainswsorth v Criminal Justice Commission  (1992) 175 CLR 564 Annetts v McCann (1990) 170 CLR 596 Check v Administration of Norfolk Island [2005] NFSC 1 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Elias v Federal Commissioner of Taxation (2002) 123 FCR 499 Johns v Australian Securities Commission (1993) 178 CLR 408 Kioa v West (1985) 159 CLR 550 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986)  162 CLR 24 Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 SCAS v Minister for Multicultural & Indigenous Affairs [2002] FCAFC 397 Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Date of hearing:	Heard on the papers
Place:	Sydney (via telephone to Norfolk Island)
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	99
Counsel for the Plaintiff:	Self-represented
Solicitor for the Defendants:	Mr W Richards of Crown Counsel

IN THE SUPREME COURT OF NORFOLK ISLAND
NORFOLK ISLAND REGISTRY
GENERAL DIVISION	SC 4 of 2012

BETWEEN:

JOHN TERENCE BROWN
Plaintiff

AND:

THE ADMINISTRATION OF NORFOLK ISLAND
First Defendant

BRUCE TAYLOR
Second Defendant

JUDGE:	JACOBSON CJ
DATE OF ORDER:	12 APRIL 2013
WHERE MADE:	SYDNEY (via telephone to Norfolk Island)

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The plaintiff pay the defendants’ costs.

IN THE SUPREME COURT OF NORFOLK ISLAND
NORFOLK ISLAND REGISTRY
GENERAL DIVISION	SC 4 of 2012

BETWEEN:

JOHN TERENCE BROWN
Plaintiff

AND:

THE ADMINISTRATION OF NORFOLK ISLAND
First Defendant

BRUCE TAYLOR
Second Defendant

JUDGE:	JACOBSON CJ
DATE:	12 APRIL 2013
PLACE:	SYDNEY (via telephone to Norfolk Island)

REASONS FOR JUDGMENT

Introduction

1. The plaintiff, Mr John Terence Brown, seeks judicial review of a decision said to have been made by the second defendant, Mr Bruce Taylor in his capacity as Acting Chief Executive Officer of the Administration of Norfolk Island, that Mr Brown was not eligible for appointment to the position of Senior Government Advisor of Norfolk Island.

2. Mr Brown seeks review of the decision upon the basis of a number of heads of judicial review of an administrative action including denial of an opportunity to be heard on his application for the position and failure to provide reasons.  He seeks prerogative relief quashing the decision and certain other orders stated in his originating application.

3. The issues raised by Mr Brown turn largely upon the proper construction and application of the relevant provisions of the Public Sector Management Act 2000 (NI) (the Act).

4. The Act regulates the administration of the public sector of the Territory and contains, in Part 4, a number of provisions defining the public service of the Territory and the recruitment of persons for appointment to employment in the public service.

5. I will describe the relevant provisions of the Act in more detail later but it is sufficient to say by way of introduction that the central provision in the present application includes

   
   

   s 36 under which appointments to employment in the public service may be made only on the basis of a competitive selection process undertaken in accordance with the “merit principle”.

6. The merit principle is defined in s 5(1) of the Act by reference to a number of recruitment principles which include the concept of eligibility for appointment.

7. The concept of eligibility is defined in s 5(2) of the Act.  In order to be eligible for appointment to employment a person must have the abilities, experience and other qualities related to the requirements for employment stated in the advertisement for the position or the “employment standards”.

8. In his letter to Mr Brown dated 13 June 2012, Mr Taylor stated that applications for the position of Senior Government Advisor had been assessed by a panel and:

   (a)s you were not considered eligible to apply for the position in accordance with statutory requirements fro [sic] eligibility under Section 5(2) ... you were not short listed for the position.

9. It is that decision which Mr Brown seeks to quash.

   The relevant provisions of the Act

10. As I have said, s 36 of the Act provides that a person must only be appointed to employment in the public service on the basis of a competitive selection process undertaken in accordance with the merit principle.

11. The recruitment principle stated in s 36 is expressed to be subject to “the human resources policy”.  That concept is defined in s 4 of the Act to mean the policy determined in accordance with s 28.

12. The human resources policy for the purposes of the Act is contained in the Human Resources Policies and Procedures Manual (the Manual) determined by the Legislative Assembly on 21 February 2001, as subsequently amended.  I will describe the relevant provisions of the Manual later.

13. It is unnecessary to set out in full the statutory definition of the merit principle stated in s 5(1) of the Act.  It is sufficient to say that it includes the recruitment principles of, inter alia, a competitive selection process and the concept of eligibility for the appointment.  It also provides that a person cannot be appointed unless the person is eligible for appointment, and if there are two or more applicants, the most eligible applicant will be appointed.

14. Section 5(2)(a) provides that:

    (a)       a person is eligible for an appointment to employment in the public service if the person has the abilities, aptitude, skills, qualifications, knowledge, experience (including community experience) and personal qualities related to the requirements applying to the employment under —

    (i)        an advertisement published in good faith in relation to the appointment; or

    (ii)       this Act; or

    (iii)      the employment standards or Regulations under this Act; or

    (iv)any other Act…

15. Section 5(2)(b)(i) goes on to state that the eligibility of applicants to be appointed to employment in the public service will be determined by:

    (i)        the extent to which each of the applicants has abilities, aptitude, skills, qualifications, knowledge, experience (including community experience) and personal qualities related to the requirements applying to the employment under —

    (A)      an advertisement published in good faith in relation to the appointment; or
    (B)      this Act; or
    (C)      the employment standards or Regulations under this Act; or
    (D)      any other Act; and

16. The “employment standards” referred to in ss 5(2)(a) and 5(2)(b)(i) are defined in s 4 of the Act.  The effect of the definition in the present case is that the employment standards comprise the human resources policies stated in the Manual.

17. Part 5 of the Act confers limited rights of review of the decision of the Chief Executive Officer in respect of the selection of a person to employment in the public service.  In particular, Division 2 of Part 5 provides for merits review of decisions regarding “selection” for employment (as defined in s 54) to be conducted by the Public Service Board constituted in accordance with s 56 of the Act.  See also ss 9 and 10 of the Act.

18. Importantly, the limitations on the right to review a decision are spelled out in clear terms in s 55, 57 and 58 of the Act.

19. Section 55 provides as follows:

    Except as expressly provided in this Act, a person has no right —
    (a)       to be heard in respect of the making of a decision under this Act; or
    (b)       to appeal against the making of a decision under this Act; or
    (c)       to be given reasons for the making of a decision under this Act.

20. Section 57 requires the CEO to notify certain, but not all, applicants for appointment of the selection of the preferred candidate and of the unsuccessful applicant’s right of appeal under s 58.

21. The limitation on the CEO’s obligation to notify unsuccessful applicants which is relevant in the present case is contained in s 57(1)(b).  Paragraph (ii) of that sub-section provides that the CEO is not required to notify, under subsection 57(2) or 57(3), a person who is not eligible for appointment.

22. Section 58 confers a right of appeal on certain applicants.  The only ground of appeal is that the appellant is more eligible to be selected for appointment than the person who was selected: see s 58(2).

23. The effect of s 58(1) and (3) is that the only unsuccessful candidates who are entitled to invoke the right of appeal conferred by s 58 are those who are eligible for appointment.  This is expressed most clearly in s 58(3) which provides that a person cannot appeal against a selection if the person (that is to say the disappointed applicant) is not eligible for that appointment.

    The Manual

24. Section 7 of the Manual deals with recruitment process for employment in the public service.  Relevantly, section 7.3, commencing on page 51, sets out the procedures and principles that apply to the recruitment process for permanent staff positions such as that of Senior Government Adviser. 

25. The procedures include the requirement that the position be advertised in good faith in the manner set out under the sub-heading “Advertising a Vacant Position”.

26. The Manual contains the following under the sub-heading “Assessing Applications” on page 54.

    All applications must be assessed according to the essential and desirable selection criteria for that job.  It is important to assess a person for interview based on the written application only (even if you do know what they are like).

    All applications must be read and assessed by the Recruitment Officer.  They will be responsible for providing a short list of preferred candidates for interview to the selection panel…

    The shortlist report will provide the panel with the final list of interviewees.  Any unsuccessful applicant has the right to know why they were not selected for interview, and the shortlist report contains that information.

    This report sheet records:

    ·     how many of the essential and desirable criteria applicants meet

    ·     Questions regarding the application itself

    ·     whether interview is recommended.

    Applicants short-listed for interview must be on the basis of the essential and desirable selection criteria.  Even if you know them, or are impressed by some other aspect of their application, they must meet the essential and desirable selection criteria before they are eligible for interview.   

    The Advertisement

27. On 4 May 2012, Mr Taylor caused the following advertisement to be placed in the Norfolk Island Government Gazette No 20:

    THE ADMINISTRATION OF NORFOLK ISLAND
    POSITION VACANT -  SENIOR GOVERNMENT ADVISOR
    (Contract - 1 + 1 + 1 Performance based) (Remuneration package – Negotiated based on Skills and Experience)

    The Administration is seeking a competent and highly skilled candidate who has a  successful history of achievement in Government and/or Public Sector development and reform.

    To be a considered candidate for interview for this position you will have to demonstrate your knowledge, skills and experience in your ability to meet the performance deliverables in the following Key Result Areas:

    ·     Ability to provide complete overview of the Norfolk Island Government status with respect of the reform process, including advice, recommendation and analytical evidence in support of advice.

    ·     Project manage the reform agenda to maintain progress and continuity of the reform process including meeting of deadlines and timeframes

    ·     Ensure the financial/economic advice and intergovernmental data meet the requirement of the reform process and the information/data reflects consistently in documentation and timelines.

    ·     Demonstrate a high quality level of research and analytical ability to ensure information provided to Chief Minister and Cabinet is sound and informative and guarantees stakeholder understanding

    ·     Illustrate professional integrity, initiative, setting of priorities and the ability to work under pressure with accuracy and commitment

    Qualifications:

    ·     Minimum Bachelor degree in Political Science, Economics, Business Development or equivalent. E.g. a minimum of 10 years international experience in development and economic reform issues.  Post graduate degree in any of the above is highly desirable.

    A Position Description for this contract position is available from our website or by contacting Human Resources on [email protected] or by phone 22001 (Ext 1).  Further inquiries can be directed to the Acting Chief Executive Officer – Bruce Taylor 22001.

    Selection will be on merit according to skills and experience and in accordance with the Public Sector Management Act 2000.   If you are interested you will need to send a written application describing your suitability against the essential criteria in the Position Description with at least two nominated referees.  Applications must be received by the Human Resources Office no later than 4.00 pm on Wednesday 16 May 2012.

    The Facts

28. In about the latter half of April 2012, Mr Taylor discussed with the Chief Minister of Norfolk Island the creation of, and recruitment for, a public service position to be entitled as “Senior Government Adviser”.  The functions proposed to be carried out by the successful candidate were, at that time, being performed by a consultant.

29. Mr Taylor then arranged for a job description and an advertisement to be prepared for the proposed position.

30. An advertisement in the form set out in [27] above was placed in the Norfolk Island Government Gazette on 4 May 2012 and 11 May 2012.  An advertisement in the same form was placed on the internet recruitment website, seek.com.au.

31. The Position Description referred to in the advertisement contained a detailed description of the purpose and objective of the position and the key result areas and responsibilities which the job entailed.

32. The Administration website also contained information as to how to apply for a public service position.  In a document available by way of hyperlink entitled “Applicant Information – The Administration of Norfolk Island”, potential applicants were informed that, to be considered for a position, they must address, and meet, all essential selection criteria.

33. The Administration’s Human Resources Office received six applications, including that of Mr Brown, for the position.

34. Mr Brown’s application was submitted by email shortly before the closing time for applications on 16 May 2012.

35. The email attached Mr Brown’s curriculum vitae and went on to refer to his 40 years experience as a solicitor, 37 years of which is in Norfolk Island and his 22 years of experience as a Member of the Legislative Assembly of Norfolk Island, including his experience as the President of that body.

36. Mr Brown said in the email that he had extensive experience in dealing with the Australian and State Governments and Departments and with the Committees of the Australian Parliament, as well as extensive knowledge of the public sector history of Norfolk Island.

37. The email continued as follows:

    I have studied the present reform process and the community attitudes to it.

    As a solicitor of almost 40 years standing (in July this year it will be 40 years since my admission as a solicitor in New South Wales) and as a person with many years of commercial experience across a range of industries, I am ideally placed to provide balanced advice.

    The Norfolk Island reform agenda has not run smoothly, if one is to take account of the local press and Hansards.  There is little doubt that the present Norfolk Island Government is struggling to maintain community confidence in relation to the Roadmap.  The reform agenda is not complex, but achieving it appears to be a complex task.
    …

    Management of the reform agenda requires convincing the staff of the Administration of Norfolk Island and convincing the community of its worth and its credibility.  I am capable of presenting the Norfolk Island Government’s case in that regard in the best possible light.

    I am uncertain as to whether the successful applicant will be required to prepare financial and economic advice or ensure that it is prepared.  It appears that the administration has staff who routinely prepare financial and economic data.  Perhaps its preparation needs to be supervised and encouraged.  I can do that.  Economic advice should normally be provided by economic experts, such as Econtech (by whatever name that firm is now known.)  As Econtech has previously developed an economic model of Norfolk island [sic], there must be merit in their continued involvement.  I have had significant experience in preparing Management Information Systems (eg for the Norfolk Island Hospital when I held office as the executive member responsible for the hospital).  I understand the need for appropriate experts to review areas such as the Healthcare Fund and Workers Compensation from time to time, to ensure that they are still operating within their original actuarial designs.

38. The balance of the email emphasised Mr Brown’s experience as a lawyer and former Parliamentarian, as well as his extensive business experience which he said gave him the necessary experience and skills to meet the requirements of the reform process and to carry out necessary research and analysis, planning and administration.

39. Mr Brown’s CV also referred to his experience as a solicitor and Parliamentarian, including details of the portfolios held, and some description of the range of his business experience.  The names and details of four referees were provided with the CV.

40. At or about the time when the recruitment process commenced, a selection panel was convened to undertake the process of assessing the applications.  The selection panel comprised the Chief Minister, a member of the Legislative Assembly and a Human Resources Systems Manager.

41. The Selection Panel prepared a document entitled “Application Assessment and Recommendation for Interview” in which the members recorded their comments on their assessment of each of the six applicants.   The comments were based solely upon the selection panel’s assessment of the written applications.

42. The comments made about Mr Brown’s application were as follows:-

    “Whilst Mr John Brown has long associations in various fields and functions through his legal services to Norfolk Island, and as a former Norfolk Island Assembly Member and Minister we find it perplexing that a person with his experience did not address the position criteria.  John failed to demonstrate his experience, to show how he would deal with the objective of the KRA’s 1, 2, 3, 4.  From John’s resume he has identified his talent as a legal advocate; however, this example does not provide or demonstrate how he would (utilising supportive examples) he can [sic] address the position’s objective.

43. Detailed comments were also recorded with respect to the five other applicants.  Two were recommended to be invited to an interview.  Two others were said, as with Mr Brown, to have failed to address the position criteria and objectives stated in the key responsibility areas (KRA’s).  The remaining applicant was assessed as not meeting Norfolk Island immigration criteria.

1. On 13 June 2012 letters in the same terms were sent by Mr Taylor to Mr Brown and each of the three other unsuccessful applicants. The letters stated that all applications for the position had been addressed by the panel and short-listed applicants had been interviewed. Each of the letters contained the statement set out at [8] above, namely that “you were not considered eligible to apply for the position” by reason of the statutory requirements for eligibility under s 5(2) of the Act.

2. The letters went on to state that as the applicant (relevantly, Mr Brown) was assessed as not being eligible for the position, there was no right of appeal or any right to reasons. Reference was made to ss 55(c), 57(1)(b)(ii) and 58(3)(a) of the Act.

   The procedural fairness ground

3. The procedural fairness ground was at the heart of Mr Brown’s application.  The essence of his submission was that he was entitled to an opportunity to be heard on the question of whether he was an eligible applicant.  This was said to follow from the proper construction of the Act and in particular from s 5(1), s 5(2) and s 58. 

4. However, Crown Counsel for the Defendants submits that s 55(a) of the Act expresses a clear statement of legislative intent to displace any presumption that procedural fairness, specifically the hearing rule, is to be observed in relation to decisions made under the Act.

5. The starting point for consideration of these submissions is the well-established principle, recently reiterated by the High Court that the implication of the principles of natural justice in a statute is a process of statutory construction:  Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [11] – [14].

6. In Saeed, the plurality referred to Annetts v McCann (1990) 170 CLR 596 as authority for the proposition that it is well established that when a statute confers power to destroy or prejudice a person’s rights or interests, principles of natural justice regulate the exercise of the power. These principles can only be excluded by “plain words of necessary intendment”: see Saeed at [11] and [14].

7. The observations of Kiefel J in Check v Administration of Norfolk Island [2005] NFSC 1 at [35], although made in relation to the operation of a privative clause, point to a similar approach.

8. In the present case, it may be thought that the statutory power, that is to say, the power of appointment to the public service, is not one which destroys or prejudices a person’s rights or interests.   It may be contrasted with well established categories of common law cases, including dismissal from public office for cause, where the requirements of natural justice have been held to be applicable:  see Aronson, Dyer & Groves, Judicial Review of Administrative Action (4^th ed Lawbook Co, 2009) at [7.40], p 415.

9. Nevertheless, here, the statutory scheme for appointments to the public service seems to me to confer a limited entitlement to a hearing.  This is to be found in the provisions for merit review in ss 57 and 58 but of course those provisions must be considered in light of the statutory scheme as a whole.

10. The scheme is expressed in the provisions of the Act to which I referred above.  It provides that appointments to the public service must be made on the basis of a competitive selection process undertaken in accordance with the merit principle:  see ss 5 and 36.

11. The merit principle is spelled out in s 5(1) and includes the concept of eligibility for appointment which is then informed by the terms of ss 5(2)(a) and 5(2)(b).

12. Section 5(2)(a) contains a statutory definition of the circumstances in which a person is eligible for appointment.  In order to be eligible for appointment, a person is required to have the abilities and other qualifying factors stated in that sub-section.

13. Section 5(2)(b) then provides for eligibility to be determined by the extent to which each applicant has those abilities and other qualifying factors.

14. It is important to bear in mind that s 5 assumes that there may be more than one eligible applicant.  This may be seen in s 5(1)(c) which provides that if there are two or more applicants, “the most eligible applicant will be appointed.”   

15. The importance of this for present purposes is that the right to a hearing is limited to a disappointed eligible applicant.  This may be seen from the provisions of Part 5 of the Act which form part of the statutory scheme for appointment to the public service.  The relevant provisions are, as I have said, ss 55, 57 and 58.

16. Section 55 does not provide for a total exclusion of the right to a hearing.  Instead, it limits the right to a hearing to those persons who have a claim to merits review under ss 57 and 58.  This can be seen from the “chapeau” to s 55 when read with the balance of that section.  The words “(e)xcept as expressly provided in this Act” are critical.

17. The provisions of the Act which expressly provide for a right to be heard are ss 57 and 58.  Those sections contain a limited right of merits review which is confined to persons who are entitled to notice of appointment of another person in accordance with s 57 of the Act.

18. Section 57 is a notice provision which is intended to ensure that a person is not to be appointed until other eligible applicants have had an opportunity for merits review.

19. Relevantly, s 57(1)(b)(ii) provides that the CEO is not required to notify a person “who is not eligible for the appointment” of the proposed appointment of the successful candidate.

20. Importantly, for present purposes, it is only those persons who are notified of a selection by the CEO who may appeal against the selection and the only ground of appeal is that the appellant is more eligible than the selected candidate.  This can be seen in the express provisions of ss 58(1) and (2).

21. The effect of this is that a person who is “not eligible for the appointment” has no right to a hearing.  This is made absolutely clear in s 58(3)(a) which states that a person cannot appeal against a selection if the person is not eligible for the appointment.

22. Mr Brown sought to overcome this difficulty by asserting that his application for appointment addressed the requirements of the advertisement.  If that were so, he was an eligible applicant and entitled to notice of the selection and a right of appeal.  He submitted that even if he did not address any of the essential criteria, this did not entitle the selection panel to refuse to interview him because to do so deprived the decision maker of the ability to assess his abilities and other criteria stated in ss 5(2(a) and 5(2)(b).

23. Mr Brown also referred to the Manual.  He submitted that the statement in the Manual at page 54 that persons would be selected for interview based on the written application must be read down so as not to conflict with the Act.  He submitted that the Act contains no such restriction and that there is no power in the Act to impose that restriction in the absence of a right to be heard.

24. In my opinion, Mr Brown’s submissions are not supported by the terms of the statutory scheme of the Act.  As I have said, the only right to a hearing is the limited right of appeal which is restricted to persons who are eligible applicants.  There is nothing in the Act which confers upon an applicant for appointment any right to be heard on the question of whether he or she has the abilities and other criteria, or the extent to which the person meets the criteria, stated in s 5(2)(a) and s 5(2)(b).

25. It seems to me that there is no room for the implication of any wider obligation of procedural fairness, at least in relation to the hearing rule, than is to be found in the express provisions of the Act.  It is true, as Mason CJ, Deane and McHugh JJ said in Annetts at 598, that an intention to exclude the rules of natural justice is not to be inferred from indirect references. It is also true, as their Honours went on to say, that such an intention is not to be inferred from the presence in the statute of rights which are commensurate with some of those rules.

26. But what is decisive is the nature of the power.  It must be one which destroys, defeats or prejudices a person’s rights or interests: Ainswsorth v Criminal Justice Commission  (1992) 175 CLR 564 at 576 (Mason CJ, Dawson, Toohey and Gaudron JJ). In my view, the exercise of the power to determine whether an applicant for appointment is an eligible applicant is not one that meets this threshold test.

27. The concept of “interests” which fall within the threshold test is a broad one:  see Kioa v West (1985) 159 CLR 550 at 582 (Mason J) and 618-619 (Brennan J). However, the test as explained by their Honours in that case, and as applied in later cases such as Annetts and Ainsworth focus upon powers, the exercise of which on existing rights are apt to affect rights or interests of personal liberty, status, preservation of livelihood, reputation, confidentiality and of course proprietary rights and interests: see also Johns v Australian Securities Commission (1993) 178 CLR 408.

28. There is nothing in the text of the Act in question in the present case, or within its scope or purpose, to suggest that an applicant for a position in the public service possesses any right or interest which might be thought to be analogous to those which have attracted the attention of the High Court in Kioa, Annetts, Ainsworth or Johns.  It follows, as I have said, that the only right to be heard is that of an eligible applicant to merits review under s 58.

29. The question of whether a person satisfies the criteria of eligibility in s 5(2) is a question of fact.  In any event, no error has been shown in the determination that Mr Brown was not an eligible applicant.

30. The merit principle is subject to the human resources policy stated in the Manual: see s 36 of the Act.  The focus in the Manual upon the written application is not inconsistent with the Act.  Nor, for reasons set out below, does it amount to an inflexible application of policy.

    Failure to give reasons

31. Section 55(c) of the Act states that except as expressly provided, a person has no right to be given reasons for the making of a decision.

32. There is nothing in the Act which provides for reasons to be given by the decision-maker in relation to whether a person is an eligible applicant or in respect of the selection of a person for appointment.

33. This is sufficient to dispose of the ground of failure to give reasons stated in para 1(b) of the originating application.

    No lack of good faith

34. An allegation of lack of good faith is a very serious one.  It implies lack of an honest or genuine attempt to undertake the task and it involves a personal attack on the honesty of the decision maker:  SCAS v Minister for Multicultural & Indigenous Affairs [2002] FCAFC 397 at [19].

35. There was no evidence at all to suggest that Mr Taylor, or the Administration, failed to carry out the recruitment genuinely or honestly.  Nor was there any evidence that the decision that Mr Brown was not eligible for appointment was made dishonestly.

36. The same observations apply to the bias ground.  Actual bias is an allegation of prejudgment.  It is an allegation that the decision-maker is so committed to a conclusion formed prior to the exercise of the decision-making power as to be incapable of alteration, whatever evidence or arguments may be presented.  The allegation must be clearly and distinctly proved and is not made out by establishing factual or legal error:  Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69], [127]; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [36] – [38].

37. An allegation of a reasonable apprehension of bias is also a serious one which must be clearly proved by admissible evidence.  It is sufficient to establish a real possibility of bias but an essential element is the identification of what might be said to have led the decision-maker to make the decision other than on its factual or legal merits:  Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8] – [10].

38. Here, no such element was identified or demonstrated. 

    Failure to make enquiries

39. Mr Brown expressed the ground of failure to make enquiries in various different ways in the originating application (see 1(d), (1)(g) and (1(h)).

40. The source of this ground of review may be traced to the decision of Wilcox J in Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155. His Honour observed at 169-170 that the circumstances in which a decision will be invalid for failure to inquire are strictly limited. He went on to say that it is no part of the duty of a decision maker to make the applicant’s case for him but where it is obvious that material is readily available and central to the decision, failure to make enquiry may amount to unreasonableness.

41. The plurality of the High Court in Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429 at [20] – [25] considered Prasad and other authorities on the question of failure to inquire.

42. The effect of their Honours’ consideration is that a failure to make an obvious enquiry about a critical fact, the existence of which can be easily ascertained may, in some circumstances, give rise to a ground of judicial review.

43. The present case falls well short of the limited circumstances in which failure to inquire may possibly give rise to jurisdictional error or a  ground of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”).  There was no critical fact in the present case.  Rather, the effect of Mr Brown’s contention is that the panel should have asked him certain unspecified questions to ascertain whether he was an eligible applicant.  As Wilcox J said in Prasad, it is not part of a decision-maker’s duty to make an applicant’s case.  This is a well-established principle of administrative law.

    Relevant Considerations

44. The originating application raised as grounds of review a failure to take into account relevant considerations and taking into account irrelevant considerations.  However, Mr Brown did not specify what constituted the relevant or irrelevant considerations.

45. In any event, it is only those considerations which the decision-maker is bound to take into account which constitute relevant considerations.  Where, as here, the statute confers a discretion in terms which are unconfined, the factors that may be taken into  account are similarly unconfined, except insofar as they may be found in the subject matter, scope and purpose of the statute:  Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 (Mason J).

    Inflexible application of policy

46. A decision-maker is entitled to adopt a policy to provide guidance as to the exercise of a discretion conferred by a statute provided that the policy is consistent with the statute and provided further that the decision-maker does not apply the policy without regard to the merits of the case:  see Elias v Federal Commissioner of Taxation (2002) 123 FCR 499 at [34] per Hely J, citing the decision of Brennan J in Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640-641.

47. In the present case, the policy expressed in the Manual is consistent with the statute.    It is not concerned with the merits of the decision, which is the selection of a successful candidate from those candidates who are considered to be eligible for appointment.

48. The statement in the Manual that persons would be assessed for interview based solely upon the written application was no more than an administrative procedure or filter which was designed to permit the selection panel to make its ultimate selection in accordance with the merits principle.

49. Candidates were informed in the advertisement of the need to submit a written application describing their suitability against the essential criteria in the description of the position.

50. The selection panel’s written assessment comments in their “Application Assessment” document shows that the panel directed its attention to the merits of each application.

51. This is not a case in which it can be said that there was an inflexible application of policy within the principles stated in the authorities.

    Other grounds

52. Mr Brown raised a number of other grounds including Wednesbury unreasonableness.  All of those grounds are sufficiently covered by what I have said above.

    Prerogative writs

53. Since I have come to the view that application must fail, it is unnecessary for me to determine the status of prerogative writs in Norfolk Island or whether such writs ought to be issued.  However, I will refer briefly to the status of the writs which was an issue that was addressed in the submissions.

54. It seems to me that the effect of ss 5(1) and 19(4) of the Supreme Court Act 1960 (NI) and Part 3.10 of the Court Procedure Rules 2006 (ACT) (in particular Rules 3553 and 3554), which apply in Norfolk Island, is that the Supreme Court has jurisdiction to make orders in the nature of certiorari, mandamus and prohibition.

55. However, as was pointed out by Crown Counsel, Rule 3556(4) has the effect that the preferred candidate ought to have been joined as a party to these proceedings.

    Orders

56. The originating application must be dismissed with costs.

I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Jacobson.

Associate:

Dated:        12 April 2013