Busby, B. v The Chief Manager

Re: BRET BUSBY
And: THE CHIEF MANAGER, HUMAN RESOURCES DEPARTMENT; AUSTRALIAN
TELECOMMUNICATIONS COMMISSION; KEVAN WILLIAM ROSS; PATRICK JOSEPH RILEY;
LEONARD PETER ANDERSON; WILLIAM MICHAEL STRONG and THE STATE MANAGER,
AUSTRALIAN TELECOMMUNICATIONS COMMISSION
No. WAG 103 of 1986
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)

CATCHWORDS

Administrative Law - judicial review - termination of extended probationary appointment - decision under sub-s.40(5) of Telecommunications Act 1975 - whether Review Tribunal has authority to review such decision - untenable submissions put by Commission on jurisdiction of Review Tribunal for industrial reasons - undesirability of such a course - alleged breach of rules of natural justice - failure to take into account relevant considerations - error of law and other grounds.

Telecommunications Act 1975 (Cth) ss. 4, 21, 39, 40

Administrative Decisions (Judicial Review) Act 1977

Salemi v. MacKellar (No. 2) (1977) 137 CLR 396

R. v. MacKellar; Ex parte Ratu (1977) 137 CLR 461

Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 CLR 487

R. v. Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546

National Companies and Securities Commission v. The News Corporation Ltd (1984) 156 CLR 296

Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 66 ALR 299

Colpitts v. Australian Telecommunications Commission (1986) 70 ALR 554

HEARING

PERTH

#DATE 16:12:1987

Mr B. Busby appeared on his own behalf

Counsel for the Respondents: Ms. C. Francas

Solicitors for the Respondents: Australian Government Solicitor

ORDER

The application is dismissed.

There will be liberty to apply on the question of costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

On 24 June 1985 Bret Busby was engaged as a Clerk, Class 1, by the Australian Telecommunications Commission. The appointment, which was probationary, was terminated on 29 May 1986. Busby now seeks review of that termination and three associated decisions.

The evidence discloses Kafkaesque confusion and complexity in the decision-making process. Before turning to the facts however it is useful to set out the statutory framework which regulates appointments to the staff of the Commission.

Statutory Framework
The Australian Telecommunications Commission is established as a statutory corporation by ss.4 and 21 of the Telecommunications Act 1975 (Cth). It is given by the Act various powers, any of which may be delegated to its Chief General Manager or to any officer or employee (s.33).
Section 39 confers upon the Commission a power "to appoint as officers such number of persons as it thinks necessary for the purposes of this Act".
By sub-s.39(2) a person shall not be appointed as an officer unless the Commission is satisfied, inter alia, that he is a fit and proper person to be an officer.
Initially appointment is probationary for a minimum period of 6 months and may be terminated by the Commission at the expiry of that time or during any extension of it.
Probationary appointments and terminations are regulated by s.40 which provides:-

"40(1) Unless the Commission, in a particular case, otherwise directs, the appointment of every officer shall be on probation for a period of 6 months commencing on the day on which the officer commences duties in pursuance of his appointment.

(2) A person appointed as an officer on probation remains a probationer until his appointment is confirmed or terminated in accordance with this section.

(3) The Commission may, at any time during the period of 6 months, terminate the appointment.

(4) As soon as practicable after the expiration of the period of 6 months, the Commission shall -

(a) confirm the appointment;

(b) terminate the appointment; or

(c) direct that the probationer continue on probation for such further period (not being a period exceeding 6 months) as the Commission determines.

(5) Where the Commission directs that a probationer continue on probation for a further period, the Commission may confirm or terminate the appointment of the probationer at any time during that further period and, if it does not confirm or terminate the appointment before the expiration of that period, shall do so as soon as practicable after the expiration of that period.

(6) Where the appointment of a probationer is to be terminated, the Commission shall notify the probationer in writing of the reasons for the termination of the probation.

(7) The regulations shall make provision for and in relation to the review of a decision of the Commission under paragraph (4)(b)."

Sub-section (7) was inserted by amendment in Act No. 165 of 1984. For reasons which are not apparent, it only provides for review of that class of decision referred to in paragraph 40(4)(b), namely termination of appointment after the expiry of the initial 6 month probationary period.
It does not empower the making of regulations which would enable review of a decision under sub-s.40(5) terminating a probationary appointment where the probationary period has been extended beyond 6 months.
By Part V of the Telecommunications Regulations, a mechanism involving the establishment of review tribunals is set up for the review of certain classes of what might loosely be terminated "non-disciplinary" decisions. Termination decisions under sub-s.40(4)(b) are covered. So too, are decisions relating to the relocation or forced retirement of officers who are surplus to requirements (s.55). Forced retirement by reason of inefficiency, incompetence or incapacity, is similarly subject to the review process.
But the Regulations cannot cover, and Review Tribunals do not have power to review, termination of an extended probationary appointment under sub-s.40(5).
The decision under challenge in this case was made pursuant to sub-s.40(5).
Nevertheless in this case a Review Tribunal was established and did purport to review and ultimately to recommend the affirmation of the decision now under challenge.
For a proper understanding of the factual history leading up to the present application, it is necessary to briefly consider relevant aspects of the organisation of the Australian Telecommunications Commission in Western Australia.

Relevant Aspects of Telecom Organisation
For ease of reference a diagrammatic outline of the relevant parts of the Commission's organisation is annexed to these reasons.
The principal executive of the Commission in Western Australia is its State Manager. Reporting to him are a number of Chief Managers one of whom is the Chief Manager, Human Resources. That position is occupied by Athol John Westcott. Within the Human Resources Department is a Staffing Service Section. The Acting Manager of that section at the relevant time was Kevan William Ross, whose substantive position was that of Senior Recruitment Officer. One of his subordinates was a Recruitment Officer named Veronica Lillywhite.
Under the Chief Operations Manager, who reports to the State Manager, are a number of geographically based groups, one of which covers what is called the Perth South District.
This unit includes a Customer Services Section which is controlled by a Manager. The section is divided into sub-sections, one of which is Customer Accounts and Service. That sub-section is controlled by a manager. Managers in charge of the sub-section during Mr Busby's time with Telecom were Messrs. Joyce, Pinker, Mercer and Sharpe.
The Customer Accounts and Service sub-section is divided into groups, one of which is designated "East Group". This group is controlled by an Officer in Charge, a position successively held during Busby's appointment by Messrs. Pinker, Eden and Smiley.
The East Group is in turn divided into smaller sub-groups. The sub-groups in which Busby was employed were designated "Credit Group 31" and "Customer Billing 1" respectively. Credit Group 31 had as its successive supervisors Messrs. Martindale, Walker and Massara. In Customer Billing the supervisors responsible for the applicant during his time in that sub-group were Messrs. Sandler and Rogan.
Busby also spent time in Credit Group 21 which is a sub-group of the South Group of the Customer Accounts and Service sub-section. The South Group Officer in Charge during that time was K. Smiley and the supervisors directly involved with the applicant were Messrs. Bruni, Adams and Hemerik.
He also spent a short time working under the supervision of Ms. J. Perkov. between 23 June 1986 and 16 July 1986.
The Personnel Manager for the Perth South District was Mr P. Glendinning.

Fact Situation
Busby, who is 36 years of age, was interviewed for appointment to Telecom on 13 May 1985. At the time he was a first year science student at the Western Australian Institute of Technology. He was assessed as suitable for "any clerical position" and appointed on 24 June 1985 as a Clerk, Class 1, at the Perth South District Telecom Business Office.
The appointment was on probation for a period of 6 months.
Initially he worked in Customer Billing. However on 2 September 1985 he was allocated the duties of an Assistant Credit Officer, with a group designated Credit Group 31. His first supervisor in Credit Group 31 was Chris Martindale.
He had difficulty in mastering the duties associated with the new position and in keeping his work up to date. He requested some days off under the flexi-time system in order to catch up on his studies but this request was refused by Martindale. On 16 October 1985 he wrote to the Manager, Customer Services, seeking a transfer to another area.
His express reasons were that he appeared to be unsuitable for the position he then occupied and that there were no vacancies in the area in which he was then employed.
The officer in charge of Customer Billing, who was then Mr Ken Pinker, asked Martindale "for a written report on Mr Busby".
Martindale reported that Busby understood his duties and that the quality of his work was of a satisfactory standard. He went on to say, however, that he was having difficulty keeping up with the volume required to be performed and was trying to overcome that problem.
Every consideration had been given to his situation and Martindale had personally brought his work up to date on a number of occasions. He had advised Busby that the situation usually improved with experience. Busby was shown the report and endorsed on it that he agreed with its contents.
In the event, he was not transferred immediately. However, in November 1985, he had 6 days leave without pay to sit for examinations.
On his return he was told that he would no longer be working in the credit group. From 25 November he was relocated in Customer Billing.
On 17 December his former supervisor, Martindale, wrote a report to the Manager, Customer Billing, dealing with the period of his appointment as an Assistant Credit Officer.
The report indicated that his sometimes defensive and sulking manner and attitude to co-workers "resulted in him not being readily accepted as part of the team".
Although he tried to be cheerful and helpful in his dealings with customers over the phone, there were occasions when his tone and manner left a lot to be desired. Lack of organisational ability meant that he experienced "great difficulty in coping with the workload and meeting deadlines as required". Although there had been some improvement in this area, there was room for much more.
He had, according to Martindale, been counselled on a number of occasions.
Busby was shown this report and noted on it his disagreement with its contents and his belief that it was unfair and unjustified.
In a later submission to the Chief Manager of the Human Resources Division, he said he had been counselled twice during the relevant period, once upon his request for a transfer and once by the Manager of Accounts, Lorna Joyce, to try to settle differences between himself and Martindale.
On or about 3 January 1986 he was the subject of a staff appraisal report prepared by his then supervisor, Mr G. Massara.
The appraisal contained a number of unfavourable comments indicating consistent slowness in the performance of duties, half-hearted application to work and friction in working relationships. It said that the job he occupied was taxing his abilities and that he was somewhat indecisive, lacked sound judgment and was only moderately effective in planning work to be done.
A Probationer Report, apparently prepared on the same day by Chris Eden, his Officer in Charge, ended with a recommendation that the probationary period be extended. By an endorsement dated 8 January 1986 the then Customer Services Manager also recommended extension of the probationary term and specified three months as an appropriate period after which the position would be reviewed.
On 15 January 1986 Busby received a memorandum from the Personnel Officer, Mr Peter Glendinning, which, it seems, was by way of a written warning about his work performance. Although the memorandum was not in the papers before the court his written response dated 17 January 1986 discloses that Glendinning had listed a number of criticisms including the following:-

1. That he frequently became involved in matters which did not concern him.

2. That he often misinterpreted comments from others.

3. That his manner in dealing with customers caused problems with customer relations.

4. That his response to instructions was frequently unfavourable.

5. That he required constant supervision to organise his workload.

6. That his inflexible attitude affected judgment in relation to customer complaints.

7. That he became involved with distractions to the detriment of his work.

In his response Busby sought particulars of the allegations made by Glendinning and referred to incidents between himself and Martindale, which it is not necessary to set out for present purposes. He concluded by accepting the extension of his probationary period and undertaking to endeavour to improve his work performance but disagreed with the majority of the assertions in Glendinning's minute and the report of 17 December 1985 from Martindale.
He continued to work in Customer Billing until 26 January 1986. On 24 January he was the subject of a "employee merit rating" by the Officer in Charge, Customer Services.
While he scored well on quality and job knowledge, he did not receive good scores in areas related to attitude and application. His own comment on the report was that he regarded it as inappropriate and unfair.
On 21 January 1986 the letter of 17 January was referred by Glendinning to the Customer Services Manager for "formal counselling" of Busby and for discussion of the matters raised in it.
Formal counselling was conducted on 22 January by a panel comprising Mr C. Eden, his Officer-in-Charge, Mr G. Massara, the supervisor, and Mr Chris Martindale, his former supervisor.
The various criticisms raised in Glendinning's minute of 15 January were put to him. The panel then reported back to Glendinning that each criticism had been dealt with separately and that where discussion on certain topics reached an impasse it was "agreed to disagree". The counselling session occupied 1 1/2 hours altogether. The report prepared by the panel was sighted by Busby and endorsed accordingly on 31 January 1986.
On 30 January Glendinning sent a memo to Busby advising him that a copy of the panel's report had been placed on his file. He said in that minute:-

"I am completely satisfied that the matters you raised in the above letter have been clarified and that you are aware of the reasons for your unsatisfactory conduct, diligence and efficiency report and subsequently, extension of your probationery (sic) period."

In the meantime on 28 January, Busby was given the job of Assistant Credit Officer in Credit Group 21 under the supervision of Mr L. Bruni.
He received formal notification of the extension of his probation period to 24 June 1986 by a letter from the Chief Manager, Human Resources Department.
On 18 February, Glendinning requested an assessment from Mr N. Mercer, then the Manager, Customer Accounts and Service. Mercer's response, initially dated 26 February 1986, was re-dated 11 March 1986.
In that report he said that Bruni had on numerous occasions sat in with Busby to provide training and procedural suggestions. He said that although Busby's job knowledge appeared to be satisfactory, his ability to apply it to his daily tasks was well below the required standard. He was allowed one day on a trial basis away from the telephone environment to catch up on outstanding work, but the time was not utilised to the fullest and according to Mercer the outstanding work was not cleared. He concluded in the following terms:-

"Mr Bruni provided comments without reference to previous reports and yet the comments were of the same nature. As a result there does not appear to be an improvement in Mr Busby's work performance and as such his conduct, diligence and efficiency are still considered unsatisfactory."

Mercer wrote a further report on 26 March 1986, which in substance repeated the earlier text of 11 March elaborated by the inclusion of comments from Busby's supervisor, Bruni, on his conduct, diligence and efficiency. The conclusion was the same, namely, that there did not appear to be an improvement in his work performance and that his conduct, diligence and efficiency were considered unsatisfactory. Busby saw the report and signed it, although it does not appear that this was done until 15 May.
His comment written on the report was:-

"I have read this report and believe that the report is not fair or objective, and that my treatment by this supervisor was not fair or objective, and that his attitude to me was not appropriate for a supervisor."

On 8 April 1986, Mr P. Richardson, the Customer Services Manager, Perth South, wrote to Busby referring to Mercer's report of 26 March and paraphrasing the comments on conduct, diligence and efficiency attributed to Bruni. The minute concluded:-

"You are advised that a further report will be prepared on your performance in approximately one month and if that report is unsatisfactory your probation and employment will be terminated."

Busby subsequently had a counselling session with his new supervisor, David Adams.
Adams warned him that he was required to write a report on his work and would be observing him closely from then on.
According to Busby, Adams also said that he would defer his report until after the establishment of a proposed additional Credit Group No. 24. Further, according to Busby, Adams told him that he found his conduct and diligence to be generally satisfactory.
Adams' report, which issued on or about 22 May 1986, was incorporated in a minute which included short additional comments by Mercer and was directed to the Personnel Manager, Glendinning. Adams acknowledged Busby's intelligence and his understanding of the job he had to do. Nevertheless his assessment of conduct, diligence and efficiency was unfavourable.
Mercer added the comment that it appeared little improvement had been demonstrated and that conduct, diligence and efficiency could not be regarded as satisfactory.
The typed date of 22 May 1986 appearing on the report had been altered by hand to 27 May, on the copies which were before the Court. Busby acknowledged sighting the report by a handwritten endorsement dated 27 May.

By a letter dated 23 May 1986, the Personnel Manager wrote to Busby, referred to the Adams-Mercer report and advised that a recommendation had been forwarded to the Human Resources Department that his services be terminated.
This memo was also signed by the Customer Services Manager and dated in handwriting 23/5/86. The "23" however had been altered to a "27" on the copy before the Court.
The foreshadowed recommendation to the Chief Manager of the Human Resources Department was also redated from 23 to 27 May.
The Acting Manager of the Staffing Services Section, Mr Kevan Ross, received the recommendation on 29 May and decided to terminate the appointment.
He prepared a note of instruction to the Recruitment Officer, one Veronica Lillywhite, in which he advised her that he had approved the recommendation from the Perth South office and requested that she "please proceed with annulment action".
She was directed to advise Busby of the decision and the reasons for it and also of his review rights. The note concluded "PS are anxious for early attention on this one".
Rather confusingly, Miss Lillywhite then wrote a letter to Busby dated 30 May in which she said:-

"In view of your continued unsatisfactory conduct, diligence and efficiency, I propose to annul your appointment and terminate your services."

The confusion was compounded when she signed the letter "V. Lillywhite for Chief Manager-Human Resources".
According to Ross' affidavit evidence, the Chief Manager had in fact not considered the question of the appointment. "It is" he said "the usual practice of the Commission to send out formal letters in this way".
If that be so the "usual practice" is decidedly obscurantist.
It was on the reasonable basis that Miss Lillywhite appeared to be the relevant primary decision-maker that she was joined as a respondent in this case. At the hearing and in the light of Ross' affidavit, his name was substituted for hers.
The waters were muddied a little further by the affidavit of the Chief Manager, Mr Athol Westcott, sworn on 25 November 1986 in which he said that the primary decision to terminate Busby's appointment had been taken by the Senior Recruitment Officer, who is the Officer-in-Charge, Appointments, Human Resources Department.
Ross said that although his nominal position was that of Senior Recruitment Officer, the termination decision was made in his capacity as Acting Manager, Staffing Service Section, Human Resources Department.
He did not invite any submission from Busby prior to making the decision.
Lillywhite's letter of 30 May advised Busby that he could, within 7 days, request that the Chief Manager review the decision. He was also informed that "There may be a further opportunity for you to have this termination decision reviewed by a Review Tribunal...".
On 10 June, Busby forwarded to the Chief Manager a 12 page typed document entitled "Appeal Against Dismissal". Westcott asked for a report from the Personnel Manager, Glendinning, before taking any action. Glendinning was supplied with a copy of the appeal submission and interviewed each of Pinker, Eden, Martindale, Massara, Adams and Bruni, in relation to the matters raised in it. His report, dated 18 June 1986, set out a "Summary of Findings", a number of which contradicted Busby's contentions about flexi-time, training and counselling he had received, the component of his workload involved with receiving customer telephone enquiries and his relationships with co-workers. It referred to the areas of unsatisfactory conduct, diligence and efficiency which had been set out in earlier memoranda.
These criticisms, it was said, were not based on isolated or a few instances, but on performance over a period of time.
In conclusion Glendinning quoted comments from Eden and Pinker to the effect that Busby might be better suited to computer-related areas.
It does not appear that the report was sighted by Busby. The usual sighting acknowledgement was not endorsed on it.
Westcott decided that the termination should stand. In his Statement of Reasons for doing so, dated 4 July 1986, he concluded that Busby did not accept the alleged deficiencies in his performance and that there would be no useful purpose served by interviewing him:-

"He has documented his appeal very thoroughly and it is doubtful that an interview would produce any other than a reiteration of his written statement."

He also said in the minute that as part of the examination of the appeal there had been a discussion between the Acting Chief Manager, Human Resources, Mr Sullivan; the Perth South Administration Manager, Mr McFall; and the Personnel Manager, Mr Glendinning.
The latter two had "endorsed the assessment of the ...Supervisory Officers of Mr Busby's conduct, diligence and efficiency".
On 7 July Busby was notified by letter of Westcott's decision.
He then requested that it be reviewed by a Review Tribunal.
Review Tribunals are administered through the office of the Promotions Appeal Board and its Office Manager requested that the Commission provide a statement setting out various matters relevant to the dismissal.
This was done by way of a minute from Glendinning dated 25 July. In that minute he erroneously stated that Busby's services were terminated under para.40(4)(b) of the Act. He attached papers relating to the termination and a summary of events leading up to it.
The Tribunal comprised the Chairman of the Promotions Appeal Board for Telecom and Australia Post, Mr Patrick Joseph Riley, together with a Telecom nominee, Leonard Peter Anderson, and a Union nominee, William Michael Strong.
The Tribunal focussed its attention on the period of Busby's employment between September 1985 and May 1986. It conducted what the Chairman in his affidavit described as "our own independent inquiry and examination" into the grounds for termination. The members interviewed Busby on 11 August for 3 to 4 hours at which time he presented them with a 19 page hand-written submission in support of his case. They then spent a day at the Perth South office separately interviewing the supervisors and other officers who had been involved with Busby. Busby was further interviewed for another 2 to 3 hours on 27 August.
The detail of what the Tribunal had heard from interviews with other officers was not communicated to him. In explanation of this the Chairman in his affidavit said:-

"We did not specifically tell the applicant what was said during the interviews at Perth South. We did not feel we had unearthed anything about the applicant that he did not already know. The Tribunal was conscious of the need to tell the applicant if we had found out something significantly adverse to him. We did not unearth anything major. We heard many good things about the applicant and took these into account in reaching our decision."

In summary, the Tribunal, as set out in its written reasons of 11 September 1986, came to the following conclusions:-

1. There is no basis to support Busby's claim that Martindale's probationary reports on him were not fair reports based on his overall performance.

2. Busby had problems over a number of months coping with the workload of an Assistant Credit Officer. The Tribunal rejected the contention that he was taking an undue overload of telephone work.

3. His work output in the Pre-Transcription area under Supervisor Massara was not always up to the level expected by the Supervisor.

4. The reports on his work from Martindale and Massara were based on a reasonable period of supervision and were a fair reflection of the views formed by those officers of his performance.

5. Further reports on Busby's work performance from Bruni and Adams were likewise based on a reasonable period of supervision and were a fair reflection of the views formed by those officers, which the Tribunal were satisfied were quite objective and not influenced by the reports prepared by previous supervisors.

The Tribunal formally recommended to the Commission that the decision taken to annul Busby's appointment was justified on the substance of the reports by four supervisors over a reasonable period of time concerning his unsatisfactory conduct, diligence and efficiency and that the decision should stand. Both the Chief Manager, Human Resources, Mr Westcott, and the State Manager, endorsed their acceptance of the Review Tribunal's recommendation on 12 September 1986 and advised Busby accordingly on 18 September.
The present proceedings were instituted on 20 October 1986.

The Decisions Under Review
The application as it stood at the commencement of the hearing sought review of four decisions:-

1. The decision of Veronica Ann Lillywhite to dismiss the applicant as advised in the letter to the applicant dated 30 May 1986.

2. The decision of Athol John Westcott, to disallow the appeal by the applicant against the dismissal of the applicant advised in the letter to the applicant dated 7 July 1986.

3. The decision of the Review Tribunal, consisting of P.J. Riley, L.P. Anderson and W.M. Strong, to recommend that the decision to dismiss the applicant stand, as advised in the letter to the State Manager of Telecom Australia dated 11 September 1986.

4. The decision of the State Manager of the Australian Telecommunications Commission to accept the recommendation of the Review Tribunal and to confirm the dismissal of the applicant as advised in the letter to the applicant dated 18 September 1986.

As is apparent from the evidence of Kevan William Ross, it was he who was the primary decision-maker, not Ms Lillywhite.
There are no practical difficulties arising out of the substitution of his name for hers as respondent, and the Court will treat as the relevant primary decision that taken by him on or about 13 May.
Ross' legal authority to make the decision derives from a delegation by the Commission pursuant to s.33 of the Act.
The primary instrument relied upon by the respondents is dated 19 August 1976 and delegates various powers to persons named in schedules. The instrument provides for delegates' "controlling officers" to receive the same delegated power as their subordinates. The expression "controlling officers" is defined as including:-

"all officers within the Service of the Australian Telecommunications Commission who are responsible, whether directly or indirectly, for the supervision and control of the persons occupying the said positions."

The schedules have been amended from time to time, but as they stood at 30 May 1986, delegated the authority to terminate probationary appointments to "personnel officer or equivalent". Given the generic nature of that term and Ross' position as Acting Manager, Staffing Service Section, I accept that the delegation properly extended to him.
The Chief Manager of the Human Resources Section is a "controlling officer" with respect to Ross and thereby enjoys the same delegation. So too does the State Manager.
No point was taken that the delegated power to terminate an appointment does not extend, in the case of controlling officers, to a power to revoke a termination decision.
In any event the revocation of a termination can, for all practical purposes, be effected by a fresh appointment with or without a probation period. The power of the Commission to appoint officers is included in the delegation to which reference has already been made.
The position of the Review Tribunal is clear. It had no authority to review Ross' decision. For that was a decision taken under sub-s.40(5) in respect of which the Tribunal has no jurisdiction.
That lacuna may well be the result of a legislative drafting error. There is no policy consideration which explains it. Nevertheless the Court cannot ignore the plain words of the statute and conjure an authority when none has been given.
This has the consequence that the Tribunal's recommendation is not a decision made "under an enactment" and is therefore not susceptible to review.
In the end, this has little practical impact on the outcome of the case for in my opinion, the State Manager was entitled to take into account and act upon the Tribunal's recommendation in deciding how to exercise his own delegation in relation to the termination decision.
The direct consequence of the Tribunal's lack of authority, is that Mr Busby had no right to invoke its procedures. In the event, he had the benefit of an exhaustive, albeit informal, review of his termination.

The Grounds of the Application
The grounds of the application as particularised are voluminous, being some 150 in number. Although several were abandoned and some covered common territory, the Court heard extensive submissions from Mr Busby, who represented himself. He cited something in excess of 40 authorities beginning with a quotation from the play "Medea" written by Seneca in 60AD.
The Court in its judicial review function is not required and is not in a position to make any finding as to the allegations of unsatisfactory conduct, diligence and efficiency in connection with the discharge of his duties as an officer of Telecom. It may be that his undoubtedly active intelligence was a factor which prevented him from concentrating on what he may have regarded as pedestrian duties.
Whatever may be said of his abilities as an Assistant Credit Officer, the conduct of his case has demonstrated considerable application.
I will deal with the grounds in the sequence in which they appear in the application considering in some detail those relating to the primary decision as they raise issues which tend to be repeated in respect of the subsequent decisions for which review is sought.

Decision 1

Decision of Kevan William Ross
The primary decision is challenged upon some 11 grounds. Particulars of each are included in the amended application. It is convenient to deal with them in the order in which they are there set out.

Ground 1 - That a Breach of the Rules of Natural Justice Occurred in Connection with the Making of the Decision

Particular 1 - "A written request from the applicant for a transfer had been previously disallowed."
The applicant contended that as he had himself decided that he was unsuited for the position in which he had been put and had requested a transfer, fairness required that he be tried in another area of work before being dismissed.
No question of fairness or natural justice arises under this head. The Commission is not obliged to act as an employment service.

Particular 2 - "The decision was made on the unsubstantiated allegations of 4 supervisors and that verification of the allegations was not made."
Ross referred in his affidavit evidence to various documents which he had taken into account in making the primary decision. These included adverse reports or observations by the applicant's supervisors, Martindale (report 17/12/85), Massara (appraisal 6/1/86), Bruni (as set out in Mercer's report 26/3/86) and Adams (22/5/86).
In substance this submission was that Ross should not have accepted the supervisors' reports without some corroboration. There is plainly no rule of natural justice or otherwise that the power to terminate the applicant's appointment was conditioned upon evidence corroborating the adverse views of those who were responsible for his supervision.

Particular 3 - "No reports were written by, or refer to, 4 other supervisors that the applicant had worked with."
The other supervisors under whom the applicant had worked were Sandler, from 24 to 30 June 1985 and from 22 July to 1 September 1985, Rogan from 1 July to 21 July 1985, Walker from 11 November to 24 November 1985, Hemerik from 2 June to 22 June 1986 and Perkov from 23 June 1986 to 16 July 1986.
Sandler and Rogan covered the initial period of his employment in respect of which there were no reported work problems. Walker was supervisor for 13 days only and therefore unlikely to render a useful contribution. Hemerik and Perkov supervised the applicant after the primary decision had been taken and each for about only 3 weeks.
There is nothing to suggest that the other supervisors would have altered the outcome of Ross' deliberations. In any event the point is in substance subsumed in the preceding particular. It is not a natural justice point.

Particular 4 - "Before the final report, upon which the decision relied, was sighted by the applicant, action resulting from the report, leading to the decision, was made on the basis of the report and the resultant actions."
This referred to the rather curious incident whereby the date of 22 May 1986 initially typed on the Adams-Mercer report was altered by hand to 27 May. Busby did not sight the document until 27 May as appears from his endorsement, but it seems quite likely that it was forwarded to the Human Resources Department on or about 23 May. The primary decision was not taken until 29 May when Ross hand-wrote a note to Lillywhite directing her to implement it. Thus, even assuming that Ross received the report before Busby had seen it, he did not take the decision until two days after it was sighted. The factual basis for particular 4 is not made out. No natural justice point is shown. There can be no suggestion of any deception as the alterations to the dates are quite obvious.

Particular 5 - "The person who signed the letter indicating the decision, and who therein purports to have made the decision:

1. had previously had dealings with the applicant relating to the rejection of the request for the transfer.

2. had previously worked in a position subordinate to the person who had recommended the decision."

This particular was based on the assumption that Veronica Lillywhite was the primary decision-maker. It is clear from the evidence that she was not. There is nothing in the point.

Particular 6 - "The applicant was not offered the opportunity to be heard in order to state his case prior to the decision being made."
In cross-examination by Busby, Ross agreed that in taking his decision to terminate the appointment he had not offered Busby any opportunity to show cause why the decision should not be made.
The application of the rules of natural justice to the exercise of a statutory power will depend upon the proper construction of the statute - Salemi v. MacKellar (No. 2) (1977) 137 CLR 396, 401 (Barwick C.J.), 419 (Gibbs J.), 460 (Aickin J.); R. v. MacKellar; Ex parte Ratu (1977) 137 CLR 461, 463 (Barwick C.J.), 470 (Gibbs J.), 475 (Mason J); Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 CLR 487, 491 (Barwick C.J.), 498 (Aickin J., Stephen and Mason JJ. agreeing).
Assuming that the rules of natural justice apply, as I think they do, to the decisions under review in this case, their content is variable and will depend upon the circumstances of the case, the nature of the enquiry, the rules under which the decision maker is acting and the subject matter that is being dealt with - R. v. Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546, 552-553; Salemi v. MacKellar (No. 2) (1977) 137 CLR 396, 444 and National Companies and Securities Commission v. The News Corporation Ltd (1984) 156 CLR 296 at 314-316 (Gibbs C.J.), 319-320 (Mason, Wilson, Dawson JJ.), 326 (Brennan J.).
In determining whether or not, as a matter of fairness, Ross should have heard from the applicant before making his decision, the following circumstances are relevant:-

1. That none of the material before Ross contained any important allegations adverse to the applicant of which he was unaware and upon which he had not had an opportunity to comment.

2. That the applicant was advised on or about 27 May by written memorandum, that a recommendation for termination had been forwarded to the Human Resources Department.

3. That there was nothing to prevent him from making submissions to the Human Resources Department in relation to the proposed recommendation.

4. That upon being notified of the termination in the letter of 30 May 1986 from Veronica Lillywhite he was also advised that he could request a review of the decision by furnishing any explanation or comment in writing to the Chief Manager, Human Resources Department.

5. Pending any review by the Chief Manager, he would be permitted to remain on duty.

In my opinion, the process of decision making up to and including any review by the Chief Manager and the State Manager as controlling officers should be regarded as a whole. There is some artificiality in dividing up a decision-making process of this kind with a requirement for a hearing at the primary stage given that the matter could be reviewed by the Chief Manager who was a "controlling officer" for the purposes of the relevant delegation. Having regard to this and the opportunities that the applicant had to comment on adverse reports along the way, the requirements of fairness did not demand a separate hearing before the primary decision.

Particular 7 - "The applicant was not offered the opportunity to be heard in order to state his case prior to the making of the decision to make the recommendation for this decision."
This particular fails for the same reason as the preceding particular.

Particular 8 - "The custom of providing an unsuitable probationer with another chance by transfer to another area was not practised in the case of the applicant."
Even assuming such a custom to exist, the failure to apply it in relation to this applicant cannot constitute a failure of natural justice. As already observed, the Commission is not required to operate as an employment service.

Particular 9 - "Discrimination against the applicant occurred in connection with the making of the decision."
The submissions did not clarify the rationale for this particular. In his argument Busby said that by discrimination he meant that there was a departure from usual practice in the way that his case was handled. I am not satisfied that there is any evidence of unfair discrimination and in any event there is no natural justice point in the particular.

Ground 2 - That a Relevant Consideration Was Not Taken into Account in the Making of the Decision
The principles governing review for failure to take into account a relevant consideration were stated by Mason J. in Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 66 ALR 299 at 308:-

(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision.

(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors are not expressly stated they must be determined by implication from the subject matter, scope and purpose of the Act. If a ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the Court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act.

(c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the Court setting aside the impugned decision and ordering that the discretion be re-exercised according to law.

(d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion and a decision made within those boundaries cannot be impugned. It follows that in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power.

(e) The principles stated above apply to an administrative decision made by a Minister of the Crown.

Particular 1 - "A previously rejected request for a transfer was not taken into account in the making of the decision."

The principal issue to be determined by Ross related to the applicant's suitability for continued employment with Telecom. While the fact that he had requested a transfer from the position he was then holding may be of some marginal relevance, it could not be characterised as something which Ross was bound to take into account having regard to the subject matter, scope and purpose of the Act. Even if it were the case that he were bound to take that consideration into account, it is so peripheral to the major issues of his conduct, diligence and efficiency that the Court would not be justified in setting aside the decision on that basis.

Particular 2 - "The decision maker did not consider any evidence from the first 2 supervisors that the applicant worked with."
The first two supervisors were Messrs. Sandler and Rogan who between them covered the period from 24 June 1985 to 1 September 1985 when Busby was working in the sub-group designated "Customer Billing 1".
During that time there were no reported work problems. Ross was not bound in the exercise of his statutory discretion to seek out and take evidence from all officers under whom the applicant had worked. Four successive supervisors had reported deficiencies in his performance. Ross was entitled to take into account and rely upon their observations.

Particular 3 - "The decision maker did not consider any evidence from the last 2 supervisors that the applicant worked with."
The short answer to this point is that the applicant's work with these supervisors post-dated the decision in question.

Particular 4 - "The decision maker did not verify unsubstantiated allegations of reports relating to 4 supervisors, upon which the decision was based."
This is not a relevancy point. It is really just the corroboration issue previously raised in Ground 1, Particular 2 and fails for the same reasons.

Particular 5 - "The decision maker failed to consider that the applicant had previously formally questioned the conduct of the first of the report related supervisors and that the questions raised were not responded to."
This particular referred to Busby's complaints about the alleged partiality and bias of his former supervisor, Martindale. These were allegations which he had raised in his minute of 17 January 1986 and which he contended were never responded to. The failure of officers to whom Busby's complaint was directed to respond to it, is not a relevant consideration in the decision-making process undertaken by Ross.

Particular 6 - "The decision maker failed to consider that the only unfavourable report which was significant which was written by the same supervisor was written over 1 month after the applicant had ceased to be working under the supervision of that person and that the applicant had been under that person's supervision for only 2 months."
This is really a complaint about the weight which Ross may have attributed to Martindale's report. It invites an examination of the merits of the decision and is beyond the scope of judicial review.

Particular 7 - "The decision maker had failed to consider that the second of the report related supervisors had, prior to the writing of the 2 unfavourable reports by that supervisor, failed to advise the applicant that he was regarded by the supervisor as unsatisfactory, thereby allowing the applicant to falsely believe that this supervisor had regarded him as satisfactory."
The supervisor here referred to is Massara. Massara was his supervisor from 25 November 1985 to 26 January 1986. The applicant was well aware that his performance was not regarded as satisfactory at that time. Following an adverse staff appraisal report, prepared by Massara on 3 January 1986, he received a warning memorandum from the Personnel Manager, Glendinning, on 15 January 1986. His own written response to that memorandum dated 17 January 1986 discloses his awareness of the criticisms of him.
In any event, no question of failure to take into account a relevant consideration arises under this point.

Particular 8 - "The decision maker had failed to consider that the only report which related to the third report related supervisor, that was sighted by the applicant, was disputed by the applicant relative to its content, and that the applicant had expressed doubt relating to the propriety of the conduct of the supervisor, and that both the dispute relating to the report content and the doubt relating to the propriety of the supervisor's conduct were unheeded."
The supervisor here referred to is Bruni. The point was not elaborated by the applicant in argument. His comments on supervisor Bruni were endorsed on the report from Mercer dated 26 March 1986 which incorporated Bruni's observations. There is nothing to suggest that Ross failed to have proper regard to those comments.

Particulars 9 and 10
Particular 9 referred to the report written by Adams and incorporated in Mercer's minute, originally dated 22 May 1986 and redated 27 May. After advancing some untenable propositions to the effect that there was no separate document which could be described as a report by Adams, the applicant abandoned both Particulars 9 and 10.

Particular 11 - "The decision maker failed to consider that most of the documents relating to the recommendation for the decision had been fraudulently altered, and the decision maker had accepted them as valid."
It is plain that the date on the minutes of 22 May 1986 had been altered but the alteration was obvious and there is no evidence of fraud.

Particular 12 - "The decision maker failed to consider that other staff who occupied equivalent positions on other credit groups were also not fulfilling the duties of the position."
In support of this ground the applicant referred to his own affidavit evidence that, while working with the last two of his supervisors, he was the only Assistant Credit Officer in the relevant accounts area to have his work up to date and to be fulfilling all the duties of the position.
This is in substance a complaint about the weight attributed by the decision-maker to the deficiencies in the applicant's performance and does not raise any ground for review.

Particular 13 - "The decision maker failed to consider that other staff members who had also been unable to fulfil the duties of equivalent positions, who had been employed in the office for shorter periods than the applicant, and who had less experience in the position than the applicant, had been promoted to the next higher position after having been trained for the higher position, and that the applicant had received neither training nor promotion."
This particular depends upon the applicant's own assessment on affidavit of the adequacy of other officers. It does not disclose any ground relating to failure on the part of the decision-maker to take into account a relevant consideration.

Particular 14 - "The decision maker failed to consider that staff other than the 4 report related supervisors had not experienced significant difficulty in dealing with the applicant."
There is no evidence that Ross failed to take into account that Busby had had some trouble-free time in his employment with Telecom. He was, in any event, entitled to give little weight to that having regard to the matters raised by Martindale, Massara, Bruni and Adams, supervisors with whom Busby had had most to do.

Particular 15 - "The decision maker failed to consider that staff other than the report related supervisors had not received complaints from customers about the applicant."
This is a similar point to Particular 14, and fails for the same reason.

Particular 16 - "The decision maker failed to consider that 2 supervisors after the final supervisory report that the applicant had worked with had found the applicant, and the applicant's work, to be satisfactory."
This particular also fails for the same reasons as Particulars 14 and 15.

Particular 17 - "The decision maker failed to consider the favourable nature of 2 reports relating to applications for advertised vacancies within the Australian Telecommunications Commission by the applicant."
This particular refers to reports on unsuccessful applications by Busby for appointment to computer related positions in Telecom. They were plainly not matters which Ross was obliged to take into account. In any event the reports in question appear to have post-dated his decision.

Particular 18 - "The decision maker failed to consider abilities of the applicant which may have been of use in transferring the applicant to another work area."
As I have already indicated, the Commission is not in the business of providing an employment service and Ross was not obliged to have regard to the applicant's suitability for other areas of employment within the Commission.

Particular 19 - "The decision maker failed to consider that the person who made the recommendation for the decision had previously demonstrated his hostility to the applicant, and therefore could not be relied upon to make an impartial judgment."
This is evidently a reference to Mr Glendinning. It seems to be, at best, an argument about the weight to be given to his report and does not raise any reviewable issue.

Ground 3 - That the Decision was Made as an Exercise of a Discretionary Power Without Regard to the Merits of the Case
This did not reflect any ground of review to be found in the Administrative Decisions (Judicial Review) Act.

Ground 4 - That the Decision Involved an Error of Law

Particular 1 - "The decision involved an element of discrimination against the applicant."
The particular refers to the difference between the treatment meted out to the applicant on the one hand, and to other officers who, in the applicant's view, had failed to fulfil their duties. It discloses no question of law and none was advanced in argument.

Particular 2 - "A report referred to in correspondence prior to the decision does not exist."
Whatever this point was meant to address it does not disclose any question of law. It appears to have had something to do with the date change in the Adams-Mercer report and the corresponding change in the letter in which Glendinning advised Busby of the recommendation that his services would be terminated.

Particular 3 - "An occurrence referred to in the letter advising the applicant of the decision did not in fact occur."
This seems to be the same as a similar point to that raised in Particular 2. It discloses no error of law.

Particular 4 - "The letter advising the applicant of the decision states that the applicant was given a warning that he would be dismissed, and that the warning as stated did not occur."
No error of law is disclosed.

Particular 5 - "That events referred to in correspondence leading to the decision do not appear to have occurred."
No error of law is disclosed.

Particular 6 - "The decision resulted from unsubstantiated allegations by supervisors which were not verified."
This point has already been dealt with under Particular 2 of Ground 1. No error of law is disclosed.

Particular 7 - "The applicant was not offered the opportunity to defend the allegations."
This is, in essence, the natural justice point already raised under Particular 6 of Ground 1 and fails for the same reasons.

Particular 8 - "The decision was based on a recommendation which was invalid."
This point harks back to the altered dates in the Adams-Mercer report. No question of its "validity" arises.

Particular 9 - "The evidence that was accepted in the making of the decision was inadmissible due to its fraudulent nature."
This also appears to relate to the Adams-Mercer report. There is, as I have already found, no evidence of fraud.

Particular 10 - "The decision maker was aware of the impropriety of the evidence on which the decision was based."
There is no evidence of impropriety.

Ground 5 - That the Decision was not Authorised by the Enactment under which it was Purported to be Made.

Particular 1 - "The decision was purported to have been made under section 40(4)(b) of the Telecommunications Act of 1975, which does not authorise the making of the decision."
There is no mention in Ross' instructions to Lillywhite or in her advice to the applicant of the particular provision under which the termination decision was taken. Nor did Glendinning in his minute dated 27 May refer to any such provision.
However, in a minute dated 25 July 1987, apparently prepared by Glendinning and addressed to the Chairman, Promotions Appeal Board, the decision was described as having been taken under para.40(4)(b) of the Act.
Para.40(4)(b), as already pointed out, deals with termination of appointments after the expiry of a six month probationary period which has not been extended. The termination decision was only authorised under sub-s.40(5). In my opinion, however, the applicant must fail on this particular. Ross did not purport to make the decision under para.40(4)(b) and if he had, it would not matter, as he possessed the relevant power in any event.

Particular 2 - "That any decision made under section 40, subsections (3) to (5) of the Telecommunications Act of 1975 other than to confirm the appointment of a probationer is unlawful, due to the invalidity of the section of the Act."
The applicant contended for the invalidity of the section, first, because of its inconsistency with the International Covenant on Civil and Political Rights and second, because it effectively provides for the infliction of punishment without trial.
The latter point was based upon a characterisation of the section as a "bill of attainder".
There is nothing in either of these points. The Covenant of itself has no domestic legislative effect and the propounded characterisation of the provision has no effect upon the constitutional authority of the Commonwealth Parliament to enact it.

Ground 6 - That the Decision was Induced by Fraud.
This involved a repetition of earlier propositions relating to alleged fraud. There is no evidence of fraud and the ground fails.

Ground 7 - That the Decision was Affected by Fraud.
This ground fails for the same reason as its predecessor.

Ground 8 - That the Person who Made the Decision Based the Decision on the Existence of a Particular Fact and that Fact did not Exist.
This ground again relied upon the untenable proposition that the Adams-Mercer report was "invalid". The ground fails.

Ground 9 - The Decision Involved the Exercise of a Power that is so Unreasonable that no Reasonable Person could have so Exercised the Power.

This ground, as explained in the particulars and in argument, was directed to what the applicant regarded as the unreasonably wide powers conferred on the Commission by the legislature.
The "unreasonableness" ground available under the Administrative Decisions (Judicial Review) Act is concerned with the reasonableness of the decision impugned, not that of the legislation under which it is taken. The ground as argued disclosed no basis for review. Nor, in my opinion, could it be said on any view, that Ross' decision was "unreasonable" in the sense necessary to ground review.

Ground 10 - That the Decision was not Authorised by Law.
This ground involved another attack on the validity of the legislation. It raised no new point in that respect and fails for the same reasons as the earlier attack.

Ground 11 - That the Making of the Decision Involved an Exercise of a Personal Discretionary Power at the Direction or Behest of Another Person.
This ground was based upon the erroneous although understandable assumption, that the primary decision was made by Veronica Lillywhite at the direction of Kevan Ross. That was not the case.

Decision 2

The Decision of Athol John Westcott to Disallow the Applicant's Appeal.

Ground 1 - That a Breach of the Rules of Natural Justice Occurred in Connection with the Making of the Decision.
As particularised this ground complains that the applicant was not given the opportunity of discussing his case with Westcott, that Westcott was prejudiced against him, that he took into account evidence adverse to the applicant without affording him any opportunity to comment on it and that he did not consider the appeal documents submitted by the applicant.
The evidence discloses that the applicant sent a 12 page submission to Westcott seeking review of the termination decision. It is also plain that Westcott saw and considered that document, and he elicited a report on it from Glendinning. While the applicant complains that he did not sight Glendinning's report, it does not disclose any vital material adverse to him of which he was not already aware.
The principal new material comprised comments favourable to him by Eden and Pinker in relation to his possible aptitude for computer related work.
There is no evidence of any relevant prejudice on the part of Westcott. The natural justice ground fails.

Ground 2 - That the Decision Involved an Error of Law.
This ground as particularised complained that Westcott:-

1. failed to consider the applicant's case;

2. indicated prejudice against him;

3. failed to consider circumstances applicable to him at the time of review;

4. failed to review the relevant decision;

5. did not consider significant matters raised in the written submission.

The sixth particular alleges broadly that the reasons afforded for the decision were bad.
The first and second particulars were the natural justice points under another heading. The third was a complaint about the inadequacy of enquiries undertaken by Westcott. Reference was made in argument to the fact that Westcott did not consult the applicant's last two supervisors, Hemerik and Perkov. Those propositions reflected like submissions advanced in relation to Ross' decision and fail for the same reasons.
No argument was offered on the fourth point.
The fifth point was, in substance, a complaint that Westcott's written reasons for decision were inadequate as they did not address significant matters raised in the applicant's written submission.
There was no requirement of law that the decision-maker's reasons expressly address matters raised in the applicant's written submission.
The sixth point was supported by the contention that Westcott should have had regard to Busby's situation at the time of making his decision on the "appeal".
None of these particulars discloses any error of law and the ground fails.

Ground 3 - That the Decision-Maker Failed to Take a Relevant Consideration into Account in the Making of the Decision.
It is unnecessary to canvass the particulars raised under this heading beyond saying that they were repetitious of matters already covered and would not support any review of Westcott's decision.

Ground 4 - That the Decision was Made Without Regard to the Merits of the Case.
This ground was abandoned.

Ground 5 - That the Decision Involved Exercise of a Power in a Way that Constituted Abuse of the Power.
Only limited argument was addressed to this point and that was concerned with the allegedly inadequate reference to the applicant's appeal submission and the failure to deal specifically with the contentions contained in it. It did not give rise to an error of law and could not constitute an abuse of power.

Grounds 6 to 9 were not proceeded with.

Decision 3

The Decision of the Review Tribunal
For reasons already outlined in the analysis of the statutory framework, the Review Tribunal had no power to review termination of an extended probationary appointment under sub-s.40(5).
In the circumstances, the review that did take place can at most be regarded as an informal administrative procedure of no statutory significance other than as a source of advice to the State Manager of Telecom in the exercise of his delegated power as a "controlling officer".
The Commission, for industrial reasons,to do with relations between it and the relevant union, maintained in the face of the plain words of the statute that the decision in question was reviewable by the Tribunal. However, beyond the bald assertion of her instructions, counsel for the Commission was unable to put any substantial legal argument in support of that submission. I should say that it is both surprising and disturbing that a public authority should in proceedings in the Court, advance an untenable argument for purely cosmetic reasons. Counsel would have been justified in declining to act upon such instructions. The integrity of the judicial process is paramount.
The Tribunal's decision was beyond its authority under the statute. It was not made pursuant to an enactment and is therefore not a decision to which the Administrative Decisions (Judicial Review) Act applies.
The applicant did put submissions on a number of grounds in relation to the Tribunal's recommendation. In the event that I am wrong on the question of the Tribunal's authority and having regard to the State Manager's reliance upon its recommendation, I will endeavour to deal shortly with them.

Ground 1 - That a Breach of the Rules of Natural Justice Occurred in Connection with the Making of the Decision.
As set out in the particulars, the applicant complained that the Tribunal:-

1. Did not contact any of the referees named in his submission to it.

2. Did not consider the substance of the case as put to the Tribunal by him.

3. Failed to advise the applicant of further evidence it had received.

4. Failed to give the applicant the right of reply to the further evidence it had received.

5. Dismissed the applicant's doubt about the impartiality of one of its members.

6. Declared invalid a claim put by the applicnat in his case without good reason for doing so.

Of the specific referees named by the applicant in his submission the Tribunal contacted Eden and Pinker. The Chairman, Mr Riley, said in his affidavit evidence that the Tribunal had considered the need to contact other referees mentioned by the applicant. It was decided that their evidence would not be critical to the review. The Tribunal proceeded on the basis that it accepted all that the applicant contended they could have said in his favour.
The rules of natural justice did not require that it do more.
No argument was advanced on the second particular.
As to the third particular the "further evidence" mentioned, is a reference to interviews that the Tribunal conducted at the Perth South District Office in the absence of the applicant.
The uncontradicted evidence of the Chairman of the Tribunal is that as a result of the interviews it did not hear anything new adverse to the applicant of which he was not already aware. The Tribunal, he said, was conscious of the need to tell the applicant if it found out anything significantly adverse to him.
In relation to the second interview with the applicant held on 27 August 1986 following its interviews at the Perth South District Office, Riley's affidavit said:-

"13. We interviewed the applicant again at the Perth office on 27 August 1986 for approximately 2 to 3 hours. We reminded him our main objective was to review the basis of the decision to annul his appointment. We told him we did not see our task as auditing or reviewing what the Human Resources Department at the Commission had done. We explained that ours was an independent review. We reminded him that we were looking at the substance of the material leading to the Commission's decision and the substance of his own material that he put forward as to why the decision should not be implemented.

14. The rest of the interview was spent raising points with the applicant of which we were now more aware than at the previous interview. We endeavoured to clear the air as much as we could. The Tribunal went through the applicant's submission especially where we needed clarification. We took the opportunity to tell the applicant where we thought his items were irrelevent. (sic) We took up with him aspects of his case which we had picked up at South Perth. We were still fact finding and the questions we posed were designed to help us get as much information as possible. The Tribunal was making sure it had made full inquiries so that we could deliberate and than (sic) make a decision.

15. The Tribunal was satisfied that the applicant had had every opportunity to put his case."

As appears from the Tribunal's reasons with recommendation in its letter of 11 September 1986 to the State Manager, it had before it the supervisors' reports on the applicant together with all relevant correspondence from him in response to those reports. It also had his appeal submission to the Chief Manager, Human Resources and a further detailed submission to the Tribunal itself which totalled 19 pages plus attachments.
There is nothing in the reasons for decision of the Tribunal to suggest that it took into account any material adverse to the applicant which had not already been canvassed in supervisors' reports and other documentation of which he was aware.
I am not satisfied that there was in the conduct of the inquiry, such procedural unfairness as would constitute a breach of the rules of natural justice. There are nevertheless obvious dangers in the course that it took which might in different circumstances, vitiate the entire process.
The case is distinguishable from Colpitts v. Australian Telecommunications Commission (1986) 70 ALR 554. There the Tribunal, reviewing a compulsory retirement decision under s.56 of the Telecommunications Act 1975, received further material which was not disclosed to the applicant which bore directly upon an issue he had raised, which was decisive in the review and put forward a new contention adverse to him upon that issue (see at 572). There is no evidence of that happening in this case.
It was accepted by the applicant that particular 4 covered the same ground as particular 3 and it fails for the same reason.
No argument was advanced in respect of particulars 5 and 6.

Ground 2 - The Procedures that were Required by Law to Be Observed in Connection with the Making of the Decision Were Not Observed.
The applicant addressed brief argument to the first two particulars under this ground, they being:-

1. The Tribunal failed to consider the appeal of the applicant in its entirety, concentrating on only one aspect.

2. The Tribunal failed to consider any evidence favourable to the applicant, and considered only evidence adverse to the applicant.

The other particulars, 3, 4, 5 and 6, raised in substance the same points as were raised under Ground 1.
Particular 1 is evidently a reference to para.16 of Riley's affidavit in which he said:-

"In summary, we were aware that the applicant had felt he had been unfairly treated. We were very conscience

(sic) of this and had probed his supervisors at great length. We looked for any significant aspects of unfairness or discrimination."

The applicant's point seemed to be that this indicated an unduly narrow focus for the Tribunal's deliberations. That is a summary of what the Tribunal treated as a salient feature of the case. It must be read against the rest of the affidavit where it is said that "The Tribunal concluded that the grounds upon which the Commission had based its decision were justified on the substance of the reports prepared by the four supervisors".
The point has nothing to do with procedural error and in any event has no merit.
There is no evidence to support particular 2.

Ground 3 - That the Making of the Decision Involved Failing to Take Relevant Considerations Into Account In the Making of the Decision.
As particularised, the applicant complained under this ground that:-

1. The Tribunal failed to consider the substance of the appeal of the applicant apart from one aspect.

2. The Tribunal failed to consider the circumstances of the case which were applicable after the making of the decision that the Tribunal was to review.

3. The Tribunal failed to consider the evidence of the referees for the applicant.

4. The Tribunal disregarded the unlawfulness of the decision that it was to review.

5. The Tribunal failed to consider the rejected transfer request of the applicant.

The first particular has already been dealt with in relation to Ground 2. No argument was advanced in relation to particulars 2 and 3. As to the alleged failure to consider circumstances postdating the decision under review, there was no requirement that the Tribunal should do so and the failure to do so could not affect the propriety of its recommendation.
Particular 3 has already been dealt with.
There is no basis for saying that the decision under review was unlawful. As to particular 5 the failure to consider a rejected transfer request could not vitiate the Tribunal's recommendation.

Ground 4 - That the Decision Involved an Error of Law
The particulars of this Ground repeated particulars of the preceding Grounds. No submissions were made in relation to it and no errors of law disclosed on the particulars.

Ground 5 - That the Decision Was Made Without Regard to the Merits of the Case.
The particulars raised under this Ground have all been dealt with in relation to earlier grounds. No submissions were made in support of it by the applicant. No basis for review is shown.

Ground 6 - That the Decision Involved Exercise of a Power In a Way that Constituted Abuse of Power.
No new matter was raised under this Ground and no separate submissions addressed in relation to it. Assuming that the Tribunal had the power to undertake the review, there is no basis for the contention that it had abused that power.

Grounds 7 and 8 were abandoned.

Decision 4

The Decision of the State Manager
There were some 10 grounds upon which the amended application sought review of this decision. There were 23 particulars in relation to those grounds.
The applicant did not deal with the particulars or the grounds in his submission beyond a broad statement to the effect that the State Manager had accepted the recommendation of the Tribunal without further inquiry.
In my opinion, the State Manager was entitled to act upon the recommendation of the Tribunal in deciding not to intervene in relation to the termination.
The Tribunal had carried out its inquiry. He had the benefit of their report. To require further inquiry would be the height of absurdity. No ground for review of his decision was shown.

CONCLUSION
The decision-making process exposed by this application has been characterised by some degree of confusion and unnecessary complexity.
The principal error was the exercise of review jurisdiction by the Tribunal. That was an error in favour of the applicant. He had the benefit of a more thorough going hearing and inquiry than he was entitled to.
The process whereby his appointment was terminated and the termination reviewed has been protracted and cumbersome. Nevertheless there has been afforded to the applicant ample opportunity to meet and comment upon the criticisms of his performance. As to his efficiency and competence as an employee of the Commission, I make no finding. Suffice it to say that no basis for review of any of the decisions has been disclosed and the application must be dismissed.

[1987] FCA 707

16 DECEMBER 1987