Clarke, W.S. v Howard, J.T

Re: WILLIAM SEVERN CLARKE
And: JAMES THOMAS HOWARD
No. VG413 of 1991
FED No. 268
Number of pages - 40
Statutory Interpretation - Administrative Law

(1993) 42 FCR 369

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Spender J(1)

CATCHWORDS

Statutory Interpretation - issuance of 'administrative instructions' authorised by Statute - whether valid - whether the instruction that an 'excess officers' applying for promotion be considered in isolation, is inconsistent with the statutory scheme of promotion on merit - whether the instruction binds the Registrar of the Federal Court.

Administrative Law - decision of Registrar to promote a more qualified applicant in lieu of an 'excess officer' - whether the Registrar is bound by the 'administrative instructions' - whether the instructions are valid - whether the Registrar took into account an irrelevant consideration.

Administrative Law - decision of the Registrar to abolish the original position and create a new position - whether the decision was for the purpose of preventing the transfer of the 'excess officer' to the original position - whether that was an ulterior or improper purpose that vitiated the decision.

Administrative Arrangements Act 1987 s. 11

Administrative Decisions (Judicial Review) Act 1977; ss. 5(1)(e) and 5(2)(c)

Federal Court of Australia Act 1976; ss. 5(3), 18A, 18B, 18C, 18D, 18N and 18Q

Public Service Act 1922; ss. 7, 10, 27, 29A, 33, 50, 50A, 50G(1), 76T, 76W and 76X

Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-1986) 162 CLR 24

Re R.J.D. Hunt; Ex parte Sean Investments Pty Limited (1979) 53 ALJR 552

Samrein Pty Limited v Metropolitan Water Sewerage and Drainage Board (1982) 41 ALR 467

Thompson v The Council of the Municipality of Randwick (1950) 81 CLR 87

Re Toohey (Aboriginal Land Commissioner); Ex parte Meneling Station Pty Limited (1982) 57 ALJR 59

HEARING

BRISBANE (heard in Melbourne), 24-27 August 1992

#DATE 30:4:1993

Counsel for the applicant: Mr M. Heaton

Instructed by: Aitken Walker and Strachan

Counsel for the respondent: Mr J. Burnside QC Mr C. with Mr C.

Sexton

Instructed by: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

1. The application for an order of review in respect of the decision of the Registrar of 13 November 1991 to appoint Ms Jo-ann Currie and not Mr William Severn Clarke to the position of Senior Officer Grade B, Court Services, Melbourne, being Position Number 1354, is dismissed.

2. The decision of the Registrar of 19 December 1991 to abolish the position of Senior Officer Grade B, Court Services, Melbourne, being Position Number 1354, and his decision of 14 December 1991 to create a new position, Senior Officer Grade A, Number 14574, are set aside.

3. There be no order as to costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

SPENDER J This is an application by William Severn Clarke for an order of review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (the 'ADJR Act') of decisions of James Thomas Howard in his capacity as the Registrar of the Federal Court of Australia.

The first decision of which review is sought is a decision of 13 November 1991 published in the Government Gazette of 12 December 1991 to appoint Jo-ann Currie and not Mr Clarke to the position of Senior Officer Grade B, Court Services Section, Melbourne, being Position No. 1354. The second decision is of 19 December 1991, a decision to abolish that position of Senior Officer Grade B, Court Services Section, Melbourne. Thirdly, review is sought of the decision of 24 December 1991, a decision to create a new position Senior Officer Grade A and appointing Ms Currie to temporarily fill that position.
Mr Clarke at the time of each of these matters was an excess officer of the level A.S.O.8 in the Department of Defence in Melbourne. He claims the three decisions are related. The gravamen of his complaint concerning the first is his claim that he ought to have been appointed in priority to Ms Currie by virtue of the application of the administrative instructions concerning 'excess officers' to the filling of vacant positions. He asserts that the second and third decisions of which review is sought were made by Mr Howard to thwart the possibility that he might be appointed to Position 1354 by the Public Service Commission seeking to give effect to the 'excess officer' instructions by transferring him to that position from the Department of Defence pursuant to the Public Service Act 1922 ('the P.S. Act').
These proceedings raise questions as to the operation of administrative instructions concerning officers who are 'excess officers' under the P.S. Act and the circumstances in which they require departure from the principle of filling positions on merit.
Before turning to the statutory framework within which these matters are to be resolved, I set out the facts of the matter.
The original position of Senior Officer Grade B, Court Services Section, Melbourne, was advertised, inter alia, in the Commonwealth of Australia Gazette on 29 August 1991. Mr Clarke applied for that position in a letter dated 16 September 1991 and wrote:

"I wish to apply for this position which was advertised in the Gazette of 29.8.91. Enclosed is my current resume with references.

It should be noted that I am a Melbourne based A.P.S. officer at the equivalent A.S.O. 8 level in the Department of Defence. I have considerable experience in directing corporate services, human resources and information service operations, including registries. Owing to Defence restructuring I am technically a surplus officer though am currently being employed as a Management Consultant by the Department. "

A further statement in support of his application, which was sent by facsimile to an officer in the Federal Court on 18 September 1991, contained no reference to his status as an excess officer.
Neither this statement nor his application of 16 September 1991 contained a copy of his 'excess officer' notice. In fact, on 13 December 1989, a delegate of the Secretary of the Department of Defence had sent a notice under s. 7(3) of the P.S. Act advising Mr Clarke that he was within the meaning of that sub-section an 'excess officer' at the level of Administrative Service Officer Class 8, as a result of the reduction in the workload and establishment at the Maribyrnong explosives factory . The notice stated:

"As an excess officer you are entitled, under the Australian Public Service Redeployment and Retirement

(Redundancy) Award 1987, to be retained in employment for a period of 7 months whilst efforts are made to find you another position in the Department or elsewhere in the Australian Public Service. This retention period starts from the date of this letter. "

The letter urged him to seek other positions in the service, his first priority being to obtain a position at his level so that he would no longer be an excess officer. The letter said that the Department of Defence would consider him for suitable vacancies at his level which occurred within the Department. The letter stated that, if he applied for a position in another department, he should send a copy of his application to the Redeployment Cell. The letter also stated:

"If I conclude that you are unlikely to be redeployed by the end of the retention period I can, with the approval of the Public Service Commission, take action to retire you from the Service. If this action is taken without your consent you would have a right of appeal. "

Seven of the applicants for the position were interviewed, Mr Clarke among them. Mr Clarke was interviewed on 15 October 1991 by Mr Peter Seccombe (the Victorian District Registrar), Mr J. Nolan (the Victorian Deputy Registrar) and Ms Maureen Crowe (the Manager, Corporate Services, Principal Registry).
At the interview, Mr Clarke was asked to clarify his status, and he responded with a long and disjointed explanation. I am satisfied that none of the interviewers at the interview, subsequent to his explanation, then believed that he was in fact an excess officer.
Following this interview Mr Clarke contacted Mr Seccombe on a number of occasions. Mr Seccombe says:

"Mr Clarke rang me several times after the interview to ask about the progress. On the second occasion (which I believe was on 4 November 1991) he asked me whether a decision had been made on the position, and said that he had to make a decision about another job by Friday, 8 November 1991. I told him that no decision had been made but that I may be able to give him an indication by 8 November, 1991. "

On 8 November 1991 Mr Seccombe told Mr Clarke that:

"No decision has been made but that he was not the committee's first recommendation. "

Mr Seccombe says:

"I believe I told him that he had ranked second. "

There are different accounts of a telephone conversation on 5 November 1991. Mr Clarke says that that day he had a telephone conversation with Ms Crowe:

"In that conversation I asked her if she could find out for me what were the exceptional circumstances that led Mr Howard to appoint Ms Currie over the next rated candidate assessed as suitable by the selection panel and who was an excess officer, namely, myself. She said she knew nothing about exceptional circumstances. She said the reason was that it was not in the best interests of the Court. Ms Crowe also stated that the selection panel knew at the interview that I was excess. She also said that the selection panel thought I had an offer of another position and that they now regret having been so open in not excluding me at the interview stage. "

Ms Crowe's recollection of that conversation is somewhat different. She says:

"I do not recall a conversation to the effect suggested on 5 November, 1991. I recall a conversation with Mr Clarke in which he questioned me about the Registrar's decision to appoint Ms Currie and I told him that I believed that Mr Clarke's transfer to the position was not consistent with the best interests and efficient management of the Court. I believe I did not say that the selection committee knew at the interview that Mr Clarke was excess. I believe that I did learn of his being excess on 8 November. I believe that I did not say that the committee regretted having been so open in not excluding Mr Clarke at the interview stage. "

The Registrar had not decided to appoint Ms Currie by or on 5 November 1991.

On 7 November 1991, Mr Seccombe forwarded a selection report to Ms Crowe, and requested preparation of an instrument of promotion for Ms Currie.
On 8 November 1991, Mr Clarke rang Mr Seccombe again. Mr Seccombe says:

"Later on 8th November, Mr Clarke rang me and said that the delegate would be making a mistake if he accepted the committee's recommendation. He said that he was an excess officer and was entitled to be appointed to the position if found suitable. I asked him why, if that was so, he had not previously made his position as excess officer clear. He said that he had a copy of his section 7(3) notice and offered to forward it to me. I asked him to do that as quickly as possible and he then faxed it to me. "

Mr Clarke says:

"As a consequence of my concerns I telephoned Mr P. Seccombe on 8 November 1991. In that telephone conversation I told him as I reflected on an earlier conversation with him the way he had phrased his part suggested the delegate might just be about to make an error. I told him now he had told me I was assessed as being second choice out of seven, which indicated I was suitable if not quite the most preferred choice. Mr Seccombe said that is so. I said to Mr Seccombe:

' I understand that not all the seven short listed candidates were excess officers. '

Mr Seccombe murmured assent. I said that under the Regulations excess officers must be assessed separately and if one is regarded as suitable, even although there may be a more efficient non-excess officer then the excess officer must be chosen unless the Public Service Commission has previously agreed to waive the Regulations in that case. I suggested that unless the candidate preferred first was an excess officer and not just one who may become surplus, then the committee should add to its recommendation this fact, which would change the outcome of the recommendation. Mr Seccombe said:

' Did not your application say you were potentially excess? ' I said:

' No, I'm actually excess' and asked if I should fax to him the notice. Mr Seccombe said 'Yes, please. ' I asked him for his facsimile number which he said was 670 4965. I said I would have the notice to him within ten minutes. I then faxed Mr Seccombe a copy of the Minute. "

Mr Clarke had prepared a script of his part of this conversation in advance, and filled in Mr Seccombe's answers during or immediately after the call. It is Exhibit 4. I am satisfied that Mr Clarke did this in an attempt to document an admission that a non-excess officer had been recommended, and that the interviewing committee had found him suitable for the position. It was Mr Clarke's belief that these two circumstances entitled him to be appointed.

Mr Clarke then sent by facsimile the notice under s. 7(3) of the P.S. Act.
On 8 November 1991 Mr Seccombe and Ms Crowe discussed the draft selection report and made some changes to it. Mr Seccombe says:

"By 4 November I had received from the scribe a copy of the draft selection report. On 8 November, I spoke to Ms Crowe about the draft selection report. I also told her that Mr Clarke had rung telling me that he was an excess officer. Ms Crowe and I discussed the draft report. She expressed firmly the view that the draft report did not accurately reflect the gap which separated Ms Currie and the other applicants. I agreed with her that the gap between Ms Currie and the rest of the applicants was a much greater than the gap between Mr Clarke and the remaining applicants. I subsequently made handwritten alterations to the draft after having discussed it with Mr Nolan. "

Ms Crowe says:

"On 8 November 1991, Peter Seccombe told me that Mr Clarke had contacted him that day and had told him that he was an excess officer. Until that time, I did not believe Mr Clarke was an excess officer. Mr Seccombe sent me a copy of the excess officer notification which Mr Clarke had provided to him that day.

Although I had learned that Mr Clarke was an excess officer, I remained of the view that Ms Currie was by far the best applicant. I considered that, in the interests of the Court, the committee should still recommend Ms Currie. However, the assessment report was still in a form with which I disagreed. I discussed the matter with Peter Seccombe, and suggested some changes to its form. Mr Seccombe sent me the altered document on Monday 11 November....I approved of the final form of the selection report and provided it to the Registrar together with the short list of applications and references provided by each of the applicants. I told the Registrar that Mr Clarke had notified us on the 8th November of the fact that he was excess. I also told him that I thought Ms Currie was the outstanding applicant and should be appointed to the position. "

I accept that it was not until 8 November 1991 that any of the interviewing persons were aware of the status claimed by Mr Clarke. The assessment of Mr Clarke in the body of the selection report to Mr Howard on 11 November 1991 describes him as "potentially surplus". The Committee recommended the promotion of Ms Currie to Position 1354. On 13 November, Mr Howard endorsed on the minute accompanying the report: "Ms Crowe - pls proceed with Ms Currie's promotion."

On 18 November 1991 Ms Crowe sent by facsimile to Mr Clarke his individual assessment, which assessed Mr Clarke as overall being suitable and gave him an applicant's rating of 2 for Position 1354. That assessment again referred to Mr Clarke as a "potentially surplus officer". Ms Crowe also sent on that date to Mr Clarke a notice headed "Comparative Assessment" which said:

"The committee, after considering the ability, experience and attributes of Ms J Currie, has decided to recommend her for the advertised position. There were five applicants assessed as suitable. "

On 25 November 1991 Mr Clarke was notified officially that his application had been unsuccessful and a copy of his individual assessment was enclosed.
On 12 December 1991 Ms Currie's promotion to Senior Officer Grade B was notified in the Commonwealth of Australia Gazette No. PS49.
Mr Howard says that on 17 December 1991 Ms Crowe showed him a letter of 9 December 1991 addressed to the Registrar, "attention Ms. M. Crowe" she had received from Mr Richard Harding, Assistant Commissioner, People Management and Deployment Branch of the Public Service Commission.

" TRANSFER OF MR W S CLARKE The Department of Defence wrote to the Public Service Commission on 6 December 1991 requesting that the Commission transfer Mr Clarke, an excess Senior Officer Grade B, to a vacancy in the Federal Court of Australia (Position Number 1354). Mr Clarke was an applicant for this vacant position and I understand he was found suitable.

2. Subsection 51(3) of the Public Service Act 1922 provides the Commission with the power to effect the interdepartmental transfer of an officer (including in a case to which section 76W applies).

3. On the basis of the information provided by the Department of Defence, the Commission is considering whether it would be appropriate to use this power to place Mr Clarke with the Federal Court. However, the legislation requires that prior to transfer action being taken the Secretary of each department must be consulted. Consequently, could you please advise by 13 December 1991 of your views in relation to the possible transfer of Mr Clarke to this vacancy.

4. I understand that two other excess Senior Officer Grade B's from the Department of Industrial Relations were also applicants for this vacancy. Could you please advise as a matter of similar urgency whether either of those officers was found suitable.

5. It is also my understanding that the Federal Court is proceeding to notify the promotion of another officer to this vacancy. In these circumstances, it may be necessary, in accordance with subsection 50G(1) of the Act, to cancel such a promotion before it takes effect. "

Ms Crowe's reply, also dated 17 December 1991, to Mr Harding says:

" MR W S CLARKE: EXCESS OFFICER I refer to your letter of 9 December 1991 concerning the decision not to transfer Mr Clarke to a Senior Officer Grade B vacancy in the Federal Court (Position Number 1354, Director, Court Services, Victoria District Registry). In particular, in your letter you sought the Court's views on the possible transfer of Mr Clarke to this vacancy. The decision to promote Ms Currie to the abovementioned position was made on the basis that it would not have been in the best interests of the efficient administration of the Court to transfer Mr Clarke to the position. I believe that it is essential that the position in question be filled by the most efficient applicant for the following reasons: . The Director, Court Services, is the key management position, under the District Registrar, in Victoria. The District Registrar, while having overall management responsibility for the Court's operations in Victoria, spends approximately 50% of his time carrying out judge directed functions in Court and a large percentage of the remainder of his time on legal matters. The Director, Court Services position, has the key management role in the State under the guidance of the District Registrar and is responsible for the operations of the Registry, including human resource management and development, accommodation and security, financial management, and administration of the Courts.

. The effective management of the legal functions of the registry staff requires an extensive understanding of court rules and procedure and of legal process generally. All of the registry work units with the exception of Registrar report directly to the position and the acquisition of the technical knowledge required is a lengthy and unpredictable process. . Some history of the position may be of assistance. In late 1990, a review was conducted by representatives of the Court, the Department of Finance and the Attorney-General's Department. The review was to identify the resources necessary to allow the Court to move to separate administration. The Court has been administered by the Attorney-General's Department and over the past two years has been gradually attaining self-administration with all the additional responsibilities and need for expertise which separate administration entails. The positions of Director, Court Services in each of the state Registries were upgraded to reflect the key role the positions were now expected to play. It was as a result of the upgrading that the position in Melbourne was advertised. Again, I must stress that it is a key position in a small agency and one which we believe is not in the best interest of the Court to fill other than on merit.

. The Federal Court is a small agency with approximately 220 staff nationally. There is only one Senior Officer Grade B position in Victoria. Its role and importance to the successful operations of the Court cannot be underestimated. Since the recommendations of the above review, a new Chief Justice has been appointed and relocated from Sydney to Melbourne. The presence of the Chief Justice and his staff in the Melbourne Registry has significantly added to the demands and responsibilities of the position. Because there is but one position at this level and a position which the Court regards as essential to its effectiveness, the Court is not in a position to consider filling the position on any other basis than that of merit. The Registrar is contemplating whether the position is appropriately classified at the SOGB level. Perhaps more appropriately the position should be a SOGA. It may be that if the Court were larger and more able to 'spread' the skills and abilities of its staff at this level, a decision to accept a 'suitable applicant' versus an applicant selected on merit may be more acceptable. In the circumstances, it is not in the best interests of the efficiency of the Court to accept someone rated as suitable compared to an outstanding applicant.

. Mr Clarke was one of a number of persons rated suitable for the position. Mr Clarke presented no special claims whatsoever. Ms Currie, the first ranked applicant, was considered to be an outstanding applicant. Ms Currie has worked for the Court in the subject position, prior to its reclassification, for some more than two years. She left the Court to work with the Attorney-General's portfolio with the Australian Securities Commission. She is an outstanding applicant against the advertised selection criteria with the added advantage of being immediately effective from her experience with the Court and the Australian Securities Commission.

In addition to the matters addressed above, I would also like to note some concerns in relation to Mr Clarke's excess officer status and the implications of this for other agencies. Mr Clarke indicated in his application that he is 'technically a surplus officer though (is) currently being employed as a management consultant by the Department (of Defence)'. A copy of Mr Clarke's excess notice was not provided until a significant time following interview. My primary concern, however, arises from the fact that Mr Clarke was declared excess to the Department of Defence's requirements in December 1989. He was advised at that time that he would be retained in employment for a period of seven months whilst efforts were made to find him another position in the Department or elsewhere in the Australian Public Service. Mr Clarke's application suggests, however, that he has been employed by the Department continuously, by the Department of Defence since he was declared excess, a period of some two years now. Mr Clarke's excess officer status is, to my mind, contradicted by his on-going employment by the Department of Defence. I would conclude by noting that, whatever the validity of Mr Clarke's status as an excess officer and the advantages in selection which that might confer in normal circumstances, I believe that the nature of the Director, Court Services position and the key role it plays in the administration of the Federal Court in Victoria, represents an exceptional circumstance, and justifies the filling of the position by the most meritorious applicant the Court can attract. In relation to your query about two other excess officers from the Department of Industrial Relations who applied for the position, both applicants were rated unsuitable against the advertised selection criteria. "

Mr Howard telephoned Mr Harding on 18 December 1991. He says:

"During the course of that conversation, I informed Mr Harding that I would not have Mr Clarke foisted on the Federal Court. I said that Mr Clarke had been found unsuitable for transfer within his own department and that the Public Service Commission should make appropriate enquiries of the Department of Defence. I drew Mr Harding's attention to an earlier case when an officer had been placed in a position in the Federal Court at the instigation of the Public Service Board. That person had proven totally unsatisfactory. Mr Harding said he was not interested in that case. He said that he intended to cancel Ms Currie's promotion that day and that the Federal Court could now discuss Mr Clarke's transfer to the vacancy. I told Mr Harding that the position was underclassified and that I would abolish the position and then provide another position at a higher level. "

A typed file note of Mr Harding of that conversation records in part:

"He said that if we cancelled the promotion he would immediately take steps to abolish the position and reclassify it to a Senior Officer Grade A. He asked me for my views on that course of action. I said that it was a course of action open to him under the PS Act as a person with Secretary powers. "

His note concluded:

"I said that the instructions we have made under section 76X are binding on the Secretaries and Heads of Agencies and that they contain certain obligations in relation to excess officers who have been found suitable for positions. "

That same day Mr Harding telephoned Mr Howard and informed him that Ms Currie's promotion had been cancelled. The recommendation to the Public Service Commissioner, which was "supported strongly" by Mr Harding states, under the heading "Issues":

"The Excess Staff instructions at paragraph 3.22 require a department to consider an excess officer, in isolation from and not in competition with other applicants for a vacancy to which the officer seeks transfer. This did not occur in Mr Clarke's case.

Further, paragraph 3.23 of the Excess Staff instructions states that the PSC would expect an excess officer to be transferred to a position, at or below the officer's level, in another department where the officer is able to perform the duties of the position efficiently, either immediately or within a reasonable period, unless, in exceptional circumstances, the department is able to demonstrate to the PSC that it is essential for the position in question be filled by the most efficient applicant. Mr Clarke was assessed as suitable for the position, but in promoting Ms Currie the Registrar of the Federal Court has argued that she was the outstanding applicant and the Federal Court is too small to have anyone other than the most efficient person in this position.

The Federal Court and the Department of Defence have been consulted on the proposal to transfer Mr Clarke under subsection 51(3) to this position. The Federal Court and Ms Currie have also, in accordance with the PSC guidelines, been consulted on the proposal to cancel her promotion. The Federal Court's submission on both matters and Ms Currie's reply were received on 17 December 1991, too late for a full submission to be put to you on all the issues to be finalised by today. The matters raised by the Federal Court, particularly in respect of the proposal to transfer Mr Clarke, in my view cannot be given proper consideration within the time available. There is, however, a prima facie case that, on considering all of the matters raised by the Federal Court, the PSC will proceed to transfer Mr Clarke under subsection 51(3) of the Act to the Federal Court position. On this basis the promotion of Ms Currie should be cancelled to allow for this possibility. If, after considering the outstanding matters, Mr Clarke is not transferred under subsection 51(3) the Federal Court will be free to proceed to re-notify the promotion of Ms Currie to the position. Accordingly, subject to any other action taken under subsection 51(3), the Federal Court will not be prohibited from promoting Ms Currie. "

In my opinion, for the reasons later given, these statements misstate the effect of the instructions, and reflect a misunderstanding of their lawful operation.
The recommendation said:

"I recommend that you cancel the promotion of Ms Jo-ann Currie made on 13 November 1991 to the office of Senior Officer Grade B, Position Number 1354, Court Services Section, Federal Court of Australia, Melbourne, by signing the attached instrument. "

A facsimile of that cancellation under s. 50G(1) of the P.S. Act was sent to Mr Howard on 18 December 1991. The cancellation of Ms Currie's promotion to the position of Senior Officer Grade B was notified in the Commonwealth of Australia Gazette No. PS1 of 9 January 1992. On 23 December 1991 Mr Clarke commenced these proceedings in the Federal Court.

Meanwhile, on 19 December, the Registrar drafted and approved an organisational proposal to abolish Position S.O.G.B. 1354 and, pursuant to ss. 27 and 29A of the P.S. Act, on that day abolished that position. On the same day, an officer of the Federal Court directed a memorandum to the Registrar containing extracts and guidelines relating to promotion and redeployment. On 20 December, Mr Seccombe wrote to the Australian Securities Commission seeking agreement to a temporary transfer of Ms Currie to the position of Director, Court Services, Melbourne for six months, with a suggested starting date of 2 January 1992.
Ms Crowe, through the Registrar, sent a memorandum on 20 December 1991 to the Chief Justice indicating a chronology of events relating to the filling of the position and including an outline of the major issues involved. What was said to be the broader issues were:

"There is an apparent inconsistency between the concept of promotion on merit and the residual discretionary power held by the Public Service Commission to transfer excess staff from one Department agency to another. The transfer of excess staff from one Department or agency to another against the concept of merit selection also diminishes the concept of 'accountability' for the head of agency who can not ensure good results are obtained if unable to select on merit.

The Public Service Commission appears to have been unaware of or chose to ignore the special status of the Court and its establishment under the Federal Court Act, 1976. There is an issue as to whether Mr Clarke does in fact have excess officer status. He was declared excess on 13 December, 1989, under the provisions of the Australian Public Service Redeployment and Retirement (Redundancy) Award, 1987. The Award provides at S. 8 that an officer of Mr Clarke's length of service shall be retained for a period of 7 months. "

In addition to these broader issues, other issues referred to were that Mr Clarke presented as an ordinary applicant, without notifying formally his excess status; that there was advice both from Mr Clarke and from the Department of Defence that he had been considered for a number of positions within the Department and found unsuitable; and it was alleged that Mr Harding, unlike other officers of the Public Service Commission, had adopted an "arrogant" attitude.
It is apparent that the communications, both oral and written, between Mr Howard and the Public Service Commission, particularly Mr Harding, were attended by more than a degree of acrimony. On 20 December 1991 Mr Howard wrote to the Commissioner seeking a response to his earlier letter of 18 December which made complaint of Mr Harding's conduct. The letter of 20 December also said:

"During a conversation with Mr Harding on 18 December 1991 when Mr Harding informed me what he intended doing about Ms Currie's promotion, I informed Mr Harding that, for sound management reasons, I contemplated abolishing the subject position. Mr Harding acknowledged that, to use his words, 'this was an option open to me'. I assured him that it was not an option; it was a plain statement of my intention. The subject position has now been abolished. I would appreciate an early response to my letter of 18 December 1991. I am led to the belief that the Commission's officers did not give appropriate weight to the efficient management of the Federal Court of Australia or to the principles of merit advancement. The Federal Court of Australia is not a department of the Executive Government and I believe your officers have failed to appreciate the significance that they were dealing with a court which has its own management structure, clearly identified in the Act setting it up. "

In a letter dated 24 December 1991, the Commissioner declined to indicate the inquiries made of the Commissioner of the Department of Defence concerning Mr Clarke or his suitabilities. In the light of Mr Harding's evidence as to the absence of such inquiries, that reticence is perhaps understandable. The letter concluded:

"In regard to your last paragraph, positions in the Federal Court are staffed under the Public Service Act and this is the basis of the action taken to date. "

It seems to have been the case that no consideration was given to the provisions of the Federal Court of Australia Act 1976, and to the effect, if any, those provisions might possibly have.
On 24 December the Registrar adopted the proposal to create the position of Senior Officer Grade A Number 14574 and created that position. Early in 1992 Ms Currie was appointed to fill temporarily Position S.O.G.A 14574.
Part IIA of the Federal Court of Australia Act 1976 was inserted in 1989 and deals with management of the Court. By section 18A of Division 1 of that Part:

"The Chief Judge is responsible for managing the administrative affairs of the Court. "

By s. 5(3) of that Act the Chief Judge "shall be called Chief Justice of the Court".
Section 18B provides:

" In the management of the administrative affairs of the Court, the Chief Judge is assisted by the Registrar of the Court. "

Division 2 of Part IIA provides for the appoint- ment and powers of the Registrar. By s. 18C:

"The Registrar is appointed by the Governor-General on the nomination of the Chief Judge. "

and by s. 18D:

" The Registrar has power to do all things necessary or convenient to be done for the purpose of assisting the Chief Judge under section 18B. "

Section 18D(2) provides:

"In particular, the Registrar may act on behalf of the Chief Judge in relation to the administrative affairs of the Court. "

and by s. 18D(3):

" The Chief Judge may give the Registrar directions regarding the exercise of his or her powers under this Part. "

Division 3 of Part IIA deals with other officers and staff of registries.
Section 18N provides:

"(1) In addition to the Registrar, there are the following officers of the Court:

(a) a District Registrar of the Court for each District Registry;

(b) such Deputy Registrars and Deputy District Registrars as are necessary;

(c) the Sheriff of the Court;

(d) such Deputy Sheriffs as are necessary.

(2) The officers of the Court, other than the Registrar, have such duties, powers and functions as are given to them by this Act or by the Chief Judge.

(3) The officers of the Court are appointed by the Registrar.

(4) The officers of the Court, other than the Registrar and the Deputy Sheriffs, are to be persons appointed or employed under the Public Service Act 1922.

(5) The Deputy Sheriffs may be persons appointed or employed under the Public Service Act 1922.

(6) The Registrar may, on behalf of the Chief Judge, arrange with the Secretary of a Department of the Australian Public Service, or with an authority of the Commonwealth, for the services of officers or employees of the Department or authority to be made available for the purposes of the Court.

(7) There are to be such staff of the Registries as are necessary.

(8) The staff of the Registries is to consist of persons appointed or employed under the Public Service Act 1922. "

Section 18Q provides:

" In relation to the branch of the Australian Public Service consisting of the officers of the Court (other than the Registrar and any Deputy Sheriffs who are not persons appointed or employed under the Public Service Act 1922) and the staff of the Registries, the Registrar has the same powers as if that Branch were a Department of the Australian Public Service and the Registrar were the Secretary of that Department. "

It is to be noted that s. 18Q speaks of the Registrar having the same powers as if the Registrar were the Secretary of that Department.
Section 18N(2) speaks of duties, powers and functions of other officers. Section 18Q does not speak of the Registrar having either the duties or functions as if he were a Secretary.
The relevant provisions of the P.S. Act are as follows. By s. 7, "Department" relevantly means:

" (b) a branch or part of the Service in relation to which a person has, under this Act or another Act, the powers of, or exercisable by, a Secretary as if that branch or part of the Service were a separate Department; "

and "Office of Secretary" relevantly means:

" (b) an office the holder of which has, under this Act or another Act, in relation to a branch or part of the Service, the powers of, or exercisable by, a Secretary; "

"Secretary" means "a person for the time being holding, or performing the duties of, an office of Secretary".
The effect of these definitions is that for the purposes of the P.S. Act the office of Registrar of the Federal Court is an office of Secretary and the term "Secretary" includes the Registrar.
Section 7(3) provides:

" An officer of a Department is an excess officer for the purposes of a provision of this Act if:

(a) the officer is included in a class of officers employed in the Department, which class comprises a greater number of officers than is necessary for the efficient and economical working of the Department;

(b) the services of the officer cannot be effectively used because of technological or other changes in the work methods of the Department or changes in the nature, extent or organisation of the functions of the Department; or... "

Section 27(1) provides:

"The Secretary of a Department, for the purpose of enabling the Department to perform its functions, may, in writing:

(a) create an office in the Department; or

(b) abolish an office in the Department. "

By s. 29A(1):

" The Secretary of a Department may, in writing, alter the classification of an office in the Department to the classification specified in the instrument, being a classification that is an approved classification under subsection 28(1). "

Division 4 of the P.S. Act deals with appointments, transfers and promotions. In that Division, "promotion" relevantly means a movement of an officer within the Service for the purpose of holding an office of a higher classification than that of the office held by the officer immediately before the movement took place.
The term "Service" is a reference to the Australian Public Service constituted by s. 10 of the P.S. Act.
Section 33 provides that powers under the P.S. Act in respect of appointment are to be exercised on merit and without patronage or favouritism.
Section 33(6) provides:

" A reference in this section to the exercise of a power under this Act includes a reference to the making of a report or recommendation in relation to the exercise of such a power."

The Division draws a distinction between "appointment", "transfer" and "promotion" or "advancement".
Subdivision D of Division 4 deals with the promotion and transfers of officers other than Secretaries and Senior Executive Service officers ('SES officers'). Section 50 relevantly provides:

" (1) The Secretary of a Department shall not, except in prescribed circumstances, fill, by promotion, a vacant office in the Department (other than an office of Secretary or a Senior Executive Service office) unless the Secretary has caused notification of the vacancy to be given in the Gazette.

(3) The Secretary of the Department in which a vacant office to which subsection (1) applies exists may, subject to this Act, transfer or promote an officer to fill the vacant office.... "

Section 50A relevantly, and importantly, provides:

" (1) For the purpose of exercising the power under subsection 50(3)...to promote an officer to fill a vacant office, a Secretary shall select the officer who is, in the opinion of the Secretary, the most efficient of the officers who have applied for promotion to the vacant office. ... "

Section 50G(1) provides:

" Before the promotion or transfer of an officer to a vacant office in a Department takes effect, the Board, or the Secretary of the Department, may cancel the promotion or transfer. "

Section 51(3) provides:

" Where, in the opinion of the Board, it is necessary in the interests of the efficient administration of the Service to do so (including in a case to which section 76W applies), the Board may, after consulting with the Secretary of each of the Departments concerned:

(a) transfer an officer who holds an office, or is included, in a Department:

(i) to a specified office in another Department; or

(ii) to another Department as an unattached officer; or

(b) direct that an employee who is employed in a particular capacity in a Department be employed in an equivalent capacity in another Department. "

Division 8C of the P.S. Act provides for the redeployment and retirement of officers other than Secretaries and S.E.S. officers. Division 8C is part of the statutory framework for handling excess staff which came into operation on 20 July 1987. One of the objects of the scheme was to permit fast voluntary retrenchment. In Division 8C, "excess officer" includes a person as defined in subsection 7(3).
Section 76T deals with the power conferred by Division 8C on a Secretary to reduce an officer's classification.
Section 76W is important for present purposes, and relevantly provides:

" (1) Where the relevant Secretary is satisfied of a relevant matter in relation to an officer, the relevant Secretary may, having considered whether it would be in the interests of the efficient administration of the Secretary's Department to transfer the officer under section 50, subject to subsection (2), by notice in writing given to the officer, reduce the officer's classification or retire the officer from the Service.

(2) Where:

(a) a Secretary:

(i) has been unable to find alternative suitable employment for an excess officer in the Secretary's Department; and

(ii) proposes to exercise the power under subsection

(1) in relation to the officer; and

(b) the officer has not consented to the exercise of that power;

the Board shall take such action as is reasonable to find alternative suitable employment for the officer in the Service, and the Secretary shall not exercise the power under subsection (1) in relation to the officer unless the Board is satisfied that it would not be in the interests of the efficient administration of the Service to transfer the officer under section 51 to another Department.

(3) Where the Board is:

(a) satisfied of a relevant matter in relation to an officer; and

(b) satisfied that it would be in the interests of the efficient administration of the Service to do so; the Board may, having considered whether it would be in the of the efficient administration of the Service to transfer the officer under section 51, by notice in writing given to the officer, reduce the officer's classification. ...

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

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

(b) that an officer is inefficient;

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

(d) that an officer is an excess officer. "

In the circumstances of the present case, the relevant Secretary in 76W(1) is the Secretary of the Department of Defence, and 76W(1) gives to that Secretary the power to give notice in writing to Mr Clarke, an officer in that Department, to reduce his classification or retire him from the service after the Secretary has considered whether it would be in the interests of the efficient administration of the Department of Defence to transfer Mr Clarke to a vacant office in the Department of Defence.
Section 76W(2) is predicated on the Secretary of the Department of Defence being unable to find alternative suitable employment for an excess officer in the Department of Defence and on the Secretary proposing to exercise the power in s. 76W(1). It is only then that it is competent for the Board to take such action as is reasonable to find alternative, suitable employment for the officer in the service. The exercise of the power given to the Board by s. 76W(3) is a power, if the circumstances are made out, to reduce the officer's classification.
Section 76X provides:

" (1) The Board may cause to be published in the Gazette written administrative instructions, not inconsistent with this Act, in relation to the exercise of powers conferred on Secretaries by this Division. (emphasis added)

(2) The Board may, by notice in writing, give to a Secretary directions in relation to the exercise of powers conferred on Secretaries by this Division.

(3) A Secretary exercising, or proposing to exercise, a power conferred by this Division:

(a) shall comply with any administrative instructions expressed to be binding on Secretaries and with any directions given to the Secretary under subsection (2) that are expressed to be binding; and

(b) shall have regard to any other administrative instructions, and to any other directions given to the Secretary under subsection (2). "

It is significant that cl. 3.41 of the administrative instructions commenced:

" When the Secretary concludes that an excess officer is unlikely to be redeployed by the end of the retention period, the Secretary should, subject to this Part, give the officer notice of retirement under subsection 76W(1) of the Act. "

It is to be noted that the administrative instructions have to be "in relation to the exercise of powers conferred on Secretaries by this Division". Each of the subsections speaks of the exercise of powers or the proposed exercise of powers conferred on Secretaries by this Division. The powers so conferred are those referred to in ss. 76T and 76W. The powers of Secretaries to transfer or promote an officer under s. 50 and the statutory requirement on Secretaries when exercising that power to promote an officer to select the most efficient, are not the powers conferred on Secretaries by Division 8C, but are the powers contained in Division 4.
Further, in my opinion, if the administrative instructions purport to require a Secretary to act in a way contrary to s. 50A, they would be invalid as being inconsistent with the Act.
Pursuant to s. 76X, in a Special Government Gazette S186 of 20 July 1987, administrative instructions relating to the exercise of powers conferred on Secretaries under Division 8C of the Act in relation to excess officers were given by the then Public Service Board. In those administrative instructions 'excess officer' has the same meaning as under s. 7(3) of the P.S. Act and as under cl. 5 of the Australian Public Service Redeployment and Retirement (Redundancy) Award 1987. Where an officer is not voluntarily retrenched, and is then identified as 'excess', cl. 3.2 of those instructions provides that such officers "are guaranteed retention in employment for 7 or 13 months (depending on age and length of service) starting from the day one month after elections for voluntary retrenchment were invited". Clause 3.11 provides for the length of the retention period of excess officers.
Mr Clarke was in the "7 months" category.
Then under the heading "Redeployment of Excess Staff" the following is provided:

" 3.19 During the retention period the Secretary must continue to take all reasonable steps, consistent with the interests of the efficient administration of the department, to transfer excess officers to suitable vacancies of equal classification within the department.

3.20 The Board is empowered under section 51 of the Act to transfer officers from one department to another at their level where the Board is satisfied that this is necessary in the interests of the efficient administration of the Service. This power is available to redeploy excess officers in appropriate cases.

3.21 Excess officers should apply for suitable advertised vacancies. They should let the Board's Regional Office know of any applications for transfer to vacancies at or below their level.

3.22 Departments should consider an excess officer in isolation from and not in competition with other applicants for a vacancy to which the excess officer seeks transfer. The Board may participate in the selection process. 3.23 Subject to the provisions of section 51, the Board would expect to transfer an excess officer to a position at or below the officer's level in another department where the officer is expected to be able to perform the duties of the position efficiently, either immediately or within a reasonable period, unless, in exceptional circumstances, the department is able to demonstrate to the Board that it is essential the position in question be filled by the most efficient applicant. "

The Administrative Arrangements Act 1987 established the Public Service Commissioner, and s. 11(5) of that Act provides:

" An instrument (other than a delegation) that was made by the Board and was in force immediately before commencement continues in force, on and after commencement, as if it were made by the Commissioner. "

And s. 11(7) provides:

" A reference in any Act, in any instrument under an Act or in any award or other industrial determination or order to the Board shall, except in relation to matters that occurred before commencement, be construed as a reference to the Commissioner. "

I turn now to consider the application of the ADJR Act to the decisions of which review is sought. The primary submission of the applicant is that s. 76X(1), (3)(a) and (3)(b) bind the Registrar in his decision to appoint Ms Currie to Position 1354, and that in consequence of the applicability of the administrative instructions there referred to, the Registrar was in error in appointing Ms Currie to that position and in not appointing Mr Clarke.
There is a clear tension between the legislative intention in Part IIA of the Federal Court of Australia Act that the Chief Justice have ultimate administrative power in the Federal Court and the provision of s. 18N(8) that the staff of the registries is to consist of persons appointed or employed under the P.S. Act. The Chief Justice is not a Secretary of the Department and clearly is not bound by any guidelines that may be applicable to Secretaries. He is assisted in performing his administrative functions by the Registrar and the Registrar must comply with any lawful directions of the Chief Justice.
There is scope for conflict between the directions of the Chief Justice to the Registrar and instructions that may be applicable to Secretaries of Departments. By reason of the statutory provisions earlier referred to, in my opinion, the Registrar has the power referred to in s. 50(3) and the concomitant duty referred to in s. 50A. In my opinion also, he has the powers contained in ss. 27 and 29A of the P.S. Act.
It is unnecessary to resolve every aspect of the tension referred to, even if that were possible, because, in my opinion, in this case any directives under s. 76X of the P.S. Act do not apply to the Registrar in his conduct in respect of the appointment of Ms Currie to Position 1354.
The first reason is the construction of s. 76X. In its terms it means that any administrative instructions published pursuant to s. 76X are instructions to Secretaries "in relation to the exercise of powers conferred on Secretaries by this Division" and the power the Registrar was exercising was not a power conferred on Secretaries by Division 8C.
There are further reasons why those administrative instructions do not apply to the Registrar.
Paragraphs 3.20 and 3.23 in their terms apply to the exercise of powers by the Commission, not by Secretaries. The last sentence of Mr Harding's file note of 18 December 1991 in my view involves a serious misunderstanding of the purposes for which the instructions can properly be applied and to whom the instructions are directed.
As to paragraph 3.22, in my opinion, the better view is that it should be read as relating only to internal departmental transfers. It is not in terms directed to Secretaries. If I be wrong in that interpretation, it seems to me that it is nevertheless advisory only. It is not couched in mandatory language and does not preclude merit selection. If it purported to require a Secretary, in filling a vacancy by promotion under s. 50, to prefer a less efficient officer, it would, having regard to s. 50A, be inconsistent with the Act.
In any event, none of the administrative instructions could apply in this case by virtue of s. 76X(3)(a), because none of the relevant administrative instructions is "expressed to be binding on Secretaries".
As to the words in s. 76X(3)(b) "shall have regard to any other administrative instructions", the words require the decision maker to take account and give weight to them as a fundamental element in making his determination: Re R.J.D. Hunt; Ex parte Sean Investments Pty Ltd (1979) 53 ALJR 552 at 554; Re Toohey (Aboriginal Land Commissioner); Ex parte Meneling Station Pty Ltd (1982) 57 ALJR 59 at 61. However, there were in this case no "other administrative arrangements".
For the several reasons I have given, none of the administrative instructions referred to has any application in the decision by the Registrar concerning the appointment to Position 1354.
If contrary to all that has gone before, the administrative instructions are binding on the Registrar, I am satisfied on the evidence of Mr Howard that he was not only not of the view that Mr Clarke was suitable for appointment, but was firmly of the view that he was unsuitable. The evidence is not only that the Registrar wanted the best applicant appointed to the position but that, in the opinion of the Registrar, Mr Clarke was unsuitable for that position. By "suitable" I mean "able to perform the duties of the position efficiently". It is unnecessary in the light of these findings to consider the question of whether, having regard to the period from the giving of the s. 7(3) notice, Mr Clarke is properly to be regarded as 'an excess officer' so that his employment circumstances would attract the operation of any provisions relating to excess officers.
It was submitted on Mr Clarke's behalf that, even if the Registrar found him unsuitable, the decision not to appoint him was tainted by irrelevant considerations, namely, that the Registrar considered and took into account that Mr Clarke was less than frank with the recommending committee and that the Department of Defence had not accepted Mr Clarke for transfer to other positions within the Department. I can understand the frustration of an officer after unsuccessful attempts to obtain appointment to a position, but I think that the evidence here, including Exhibit 4, leads inexorably to the conclusion that, on learning that the recommending committee had considered him suitable for the appointment, he sought to use his status as an excess officer (about which he had been not completely forthcoming in his application and in his statements to them) to his advantage.
The principles concerning relevant considerations and irrelevant considerations were summarised by Mason J, as he then was, in Minister for Aboriginal Affairs v. Peko-Wallsend Limited (1985-1986) 162 CLR 24 in the well known passage at 39-42. It is unnecessary to repeat those observations. Consistent with those principles, in my opinion, neither of the matters said to exist and to taint the decision of the Registrar that Mr Clarke was unsuitable was an irrelevant consideration.
For all the reasons expressed above, in my opinion, the application for an order of review in respect of the decision by the Registrar to appoint Ms Currie and not Mr Clarke to the position of Senior Office Grade B, Court Services Section, Melbourne, being Position Number 1354 should be dismissed.
It was not argued by counsel on behalf of the Registrar that if the application in respect of the decision to appoint Ms Currie were to be set aside, it would not be competent for the court to consider the second and third decisions or sets of decisions. It was submitted that the court in the exercise of its discretion to grant relief should decline to do so, but it was said on behalf of the Registrar:

" the decision should be dealt with together since they are all related and all directed to the same objective, namely, securing the best person for a key management position in the Federal Court of Australia. "

In my opinion, the decision of 19 December 1991 to abolish the Position 1354 and the decision to create a new position, Senior Officer Grade A were decisions the making of which was an improper exercise of the power conferred by the enactment in pursuance of which the decisions were purported to be made: s. 5(1)(e) of the ADJR Act. By s. 5(2)(c), the reference in paragraph 1(e) to an improper exercise of a power is to be construed as including a reference to "an exercise of a power for a purpose other than a purpose for which the power to conferred;".

The Registrar conceded that his decision to abolish Position 1354 and create the new position was precipitated by the intervention of the Public Service Commission. He said that he "did not want the Public Service Commission to foist someone on to the Federal Court".
The evidence of the Registrar was that on 18 December he had been given to understand (by Mr Harding) quite clearly that it was his intention to transfer Mr Clarke to the Federal Court. It was put to the Registrar that by carrying out the exercise (the abolition of the S.O.G.B position and the creation of the new S.O.G.A. position), he hoped that it would assist in respect of preventing the possible transfer of Mr Clarke. He replied:

" It indicated quite clearly to the Public Service Commission what my intentions were, and that was to abolish the position and provide another position in lieu thereof, but at the same time to reinforce the message to the Public Service Commission that Mr Clarke was unsuitable for employment of Director of Court Services in Melbourne. "

He later said:

" I wanted to make sure that the needs of the Federal Court were adequately met and certainly that was my paramount aim, in preventing Mr Clarke or doing whatever I could to let the Public Service Commission know that Mr Clarke was unsuitable...in no circumstances did I want Mr Clarke as Director of Court Services in the Federal Court in Victoria. "

I accept what the Registrar says in the final paragraph of his affidavit sworn 18 August 1992:

" My primary concern throughout has been to ensure that the position of Director, Court Services be filled by the best possible applicant. It was for that reason that I appointed Ms. Currie. It was for that reason that I resisted the attempt of the Public Service Commission to impose on the Court an applicant whom I considered unsuitable. "

In my opinion, the substantial purpose of the abolition and creation of positions was to thwart the Public Service Commission and to prevent the transfer of Mr Clarke to the Federal Court and pave the way for Ms Currie to be the Director of Court Services in Victoria. I think that but for the intervention of the Public Service Commission, misconceived though that intervention was, the decisions concerning the abolition and creation of positions would not have been made, and that Ms Currie would have been appointed to the S.O.G.B position. In my view, the possibility or the likelihood that similar decisions might have been made at a later time, in this case at least not before May 1992, does not affect the position.
In the circumstances, the making of those decisions was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made, in that they were the exercises of a power for a purpose other than a purpose for which the power is conferred.
The decisions were made bona fide in the belief that the best interests of the Federal Court of Australia called for them. They were nonetheless decisions for an ulterior or improper purpose: Thompson v. The Council of the Municipality of Randwick (1950) 81 CLR 87 per Williams, Webb and Kitto JJ at 105-7; Samrein Pty Ltd v. Metropolitan Water Sewerage and Drainage Board (1982) 41 ALR 467 (Gibbs CJ, Mason, Murphy, Wilson and Brennan JJ) at 468-9 and 470. It is sufficient, as those authorities establish, if the ulterior purpose is a substantial purpose, in the sense that, absent that purpose, the decisions would not have then been made.
For these reasons, the application for an order of review in respect of the decision of the Registrar of 13 November 1991 to appoint Ms Jo-ann Currie and not Mr William S. Clarke to the position of Senior Officer Grade B, Court Services, Melbourne, being Position Number 1354, is dismissed.
I set aside the decision of the Registrar of 19 December 1991 to abolish that position and his decision of 14 December 1991 to create a new position, Senior Officer Grade A Number 14574. In my view no other orders are necessary or appropriate.
In the light of the reasons leading to these orders I make no order as to costs of the application.

[1993] FCA 268

30 APRIL 1993