Community & Public Sector Union v Woodward, Lionel, Cheif Executive Officer, Australian Customs Service & Anor Community & Public Sector Union v Minister for Industrial Relations
[1997] FCA 688
•30 JULY 1997
FEDERAL COURT OF AUSTRALIA
ADMINISTRATIVE LAW - judicial review - Administrative Decisions (Judicial Review) Act 1977 (Cth) - objections to competency - whether a determination is a decision under an enactment - extension of time - whether fair and equitable in the circumstances.
DISCRIMINATION LAW - Human Rights and Equal Opportunity Commission Act 1986 (Cth) - international covenants - declarations sought thereunder refused.
Constitution, ss 61, 64
Audit Act 1901 (Cth), ss 2AB(1), 70AH, 71, 72, 73
Public Service Act 1922 (Cth), ss 10, 82D, Pt III Div 1, Pt III Div 4
Federal Court of Australia Act 1976 (Cth), s 21
Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 3, 5(1), 11(1)
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
Finance Regulations, regs 4, 127A
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
General Newspapers Pty Ltd v Telstra Corporation (1993) 45 FCR 164
Dixon v Attorney-General (1987) 15 FCR 338
New South Wales v Bardolph (1934) 52 CLR 455
Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
COMMUNITY AND PUBLIC SECTOR UNION v
LIONEL WOODWARD, CHIEF EXECUTIVE OFFICER, AUSTRALIAN CUSTOMS SERVICE & ANOR
NG 327 of 1997
COMMUNITY AND PUBLIC SECTOR UNION v
THE MINISTER FOR INDUSTRIAL RELATIONS & ANOR
NG 377 of 1997
CORAM: BRANSON J
PLACE: SYDNEY
DATED: 30 JULY 1997
IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 327 of 1997 ) GENERAL DIVISION ) BETWEEN: COMMUNITY AND PUBLIC SECTOR UNION
ApplicantAND: LIONEL WOODWARD, CHIEF EXECUTIVE OFFICER, AUSTRALIAN CUSTOMS SERVICE
First Respondent
THE MINISTER FOR INDUSTRIAL RELATIONS
Second Respondent
IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 377 of 1997 ) GENERAL DIVISION ) BETWEEN: COMMUNITY AND PUBLIC SECTOR UNION
ApplicantAND: THE MINISTER FOR INDUSTRIAL RELATIONS
First Respondent
THE COMMONWEALTH OF AUSTRALIA
Second Respondent
JUDGE: BRANSON J PLACE: SYDNEY DATED: 30 JULY 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
The application is dismissed.
The applicant is to pay the costs of the respondents to be taxed if not agreed.
Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 327 of 1997 ) GENERAL DIVISION ) BETWEEN: COMMUNITY AND PUBLIC SECTOR UNION
ApplicantAND: LIONEL WOODWARD, CHIEF EXECUTIVE OFFICER, AUSTRALIAN CUSTOMS SERVICE
First RespondentTHE MINISTER FOR INDUSTRIAL RELATIONS
Second Respondent
IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 377 of 1997 ) GENERAL DIVISION ) BETWEEN: COMMUNITY AND PUBLIC SECTOR UNION
ApplicantAND: THE MINISTER FOR INDUSTRIAL RELATIONS
First Respondent
THE COMMONWEALTH OF AUSTRALIA
Second Respondent
JUDGE: BRANSON J PLACE: SYDNEY DATED: 30 JULY 1997
REASONS FOR JUDGMENT
These two matters were heard together. Each of them involves a challenge pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) to a determination or determinations giving rise to directions being issued to members of the applicant employed within the Australian Public Service (“the APS”). The directions required members of the applicant, who had signed authorities for their union dues to be deducted from their respective salaries, to confirm in writing the authority for such deductions to continue.
BACKGROUND FACTS
On 5 March 1997 the Minister for Industrial Relations (“the Minister”) attended a meeting at which were present officers of the applicant and officers of the Australian Council of Trade Unions. At this meeting officers of the applicant learnt of a policy determination made by the Minister concerning the continuation of payroll deductions for union dues pursuant to authorities signed by union members employed in the APS. It is not clear on the evidence, but it may be assumed, that the policy determination of which officers of the applicant learnt at this time was the policy determination subsequently set out in a letter dated 18 March 1997 from the Assistant Secretary, Workplace Relations Branch of the Department of Industrial Relations to the Joint National Secretary of the applicant which is referred to below.
By letter dated 11 March 1997, the Joint National Secretary of the applicant wrote to an officer of the Department of Industrial Relations expressing opposition to the policy determination and expressing the belief that, if the policy was to be proceeded with, it should be implemented on a different basis from that proposed by the Minister.
By letter dated 18 March 1997, the Assistant Secretary, Workplace Relations Branch of the Department of Industrial Relations wrote to the Joint National Secretary of the applicant in the following terms:
“FREEDOM OF ASSOCIATION AND PAYROLL DEDUCTION OF UNION DUES
In light of the changes introduced by the Workplace Relations Act 1996, the Government has settled the approach that is to apply in its own area of employment relating to freedom of association, compliance and the facility for payroll deduction of union dues.
The Government’s workplace relations policy emphasises freedom of association. All APS employees are free to choose whether or not to join a union. If employees wish to join a union, they are free to join any union whose eligibility rules cover them. This has been communicated to APS agencies generally. The Act prohibits compulsory unionism or preference.
The Government is concerned that its employees be aware of the move to a neutral position compared to the previous Government’s longstanding policy which encouraged union membership. To ensure that the Government’s policy is properly understood and APS staff appreciate that they are free to make individual decisions on union membership, information about the Government’s policy is being provided to employees generally.
Those staff who pay their union dues through payroll deduction, will be invited to confirm (in writing) if they wish to continue to do so; a copy of the Advice that has been sent to agencies to initiate this process is attached. Union members will, of course, remain free to consider alternative means of arranging periodic payments if they opt not to pay their dues through payroll deductions.
The Government recognises that responsible unions can contribute positively to workplace relations. This involves a preparedness to meet the responsibilities which the Workplace Relations Act 1996 places on parties. Accordingly, the Government has decided, so long as unions act responsibly in the workplace, that access by individual unions to payroll deduction of union dues will be continued.
I have written in similar terms to all other public sector unions.”
By an advice also bearing the date 18 March 1997, all agencies staffed under the Public Service Act 1922 (Cth) (“the Public Service Act”) were advised of the approach that the Government had determined to apply in the Australian Public Service in relation to “freedom of association, compliance and the facility for payroll deduction of union dues”. Each agency was required to provide a form of advice regarding the Government’s determination to its staff as soon as possible and to advise such staff at the same time of details of the administrative arrangements which the agency would follow to implement such determination.
On or about 3 April 1997 members of the applicant employed within the Australian Customs Service received written, or electronic mail, advice of the approach that the Government had determined to apply in the APS in relation to “freedom of association, compliance and the facility for payroll deduction of union dues”. The advice continued:
“There is currently a facility for APS staff who are union members to have their union dues automatically deducted from their fortnightly salary. To ensure that the payroll deduction facility is operating consistently with the Government’s freedom of association policy, staff who presently have their union dues deducted from their salary are requested to confirm in writing the authority for this to continue.
This written confirmation must be provided to Regional Personnel Officers by 1 May 1997, using the confirmation authority attached. If confirmation is not received by the due date, payroll deductions for union dues will cease after Pay 23 (payday 15 May 1997). Union members are free to consider alternative means of arranging periodic payments if they decide not to continue with the payroll deduction facility.
The Government recognises that responsible unions can constructively contribute to workplace relations. This includes a preparedness to meet the responsibilities which the Workplace Relations Act 1996 places on all parties. Accordingly, the Government has decided, so long as unions act responsibly in the workplace, that access by individual unions to payroll deduction of union dues will be continued.”
Correspondence between an officer of the applicant and officers of the Australian Customs Service not relevant to any issue before me ensued.
It appears that between 21 March 1997 and about 16 April 1997 members of the applicant employed in Government departments other than the Australian Customs Service received advice in similar terms to that received on or about 3 April 1997 by employees of the Australian Customs Service.
It was not in dispute before me that certain members of the applicant employed within the APS have not confirmed in writing their authority for the deduction of their union dues from their salaries and that, as a consequence, such dues have ceased to be deducted from their salaries.
STATUTORY BACKGROUND
ADJR Act
These applications have been brought under s 5 of the ADJR Act, subs (1) of which states that:
“A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Court for an order of review in respect of the decision ...”.
A “decision to which this Act applies” is defined in s 3(1) of the ADJR Act as:
“a decision of an administrative character made, proposed to be made, or required to be made, on the case may be (whether in the exercise of a discretion or not) under an enactment ...”.
An “enactment” is further defined in s 3(1) as:
“(a) an Act ...; [or]
(b) ...
(c)an instrument (including rules, regulations or by-laws) made under an Act ...”.
Constitution
Chapter II of the Constitution provides for the executive government of the Commonwealth. By s 61 the executive power of the Commonwealth is vested in the Queen and made exercisable by the Governor-General as the Queen’s representative. Section 64 authorises the Governor-General to establish departments of State of the Commonwealth and to appoint Ministers of State to administer such departments.
Public Service Act
The Public Service Act governs the employment of officers and employees employed within the departments of State of the Commonwealth. Part III Div 1 of the Public Service Act provides for the creation and abolition of offices in the various departments of State or departments of the Parliament, while Div 4 of Part III provides for the appointment, transfer or promotion of persons to such offices as officers in the APS. Section 82D of the Public Service Act gives the Australian Public Service Management Advisory Board (“the Board”) general authority to determine the terms and conditions of employment of officers and employees of the APS. It is not suggested that any determination has been made by the Board touching on the rights of officers and employees to authorise deductions from salary for the payment of union dues or for any other purpose.
Audit Act
The Audit Act 1901 (Cth) (“the Audit Act”) is accurately described by its long title as “An Act to make provision for the Collection and Payment of the Public Moneys the Audit of the Public Accounts and the Protection and Recovery of Public Property and for other purposes”. The Audit Act is concerned principally with the establishment of procedures for regular and efficient dealings with public moneys and securities, and for the audit of public accounts.
Section 2AB(1) of the Audit Act provides as follows:
“The Secretary of a Department is responsible for making appropriate arrangements for implementing the provisions of this Act, the regulations and any directions given under this Act or under the regulations in relation to the Department.”
Section 70AH of the Audit Act provides that officers and employees of the APS are, except where the Minister of Finance otherwise determines, to be paid “otherwise than in cash”. The Audit Act contains no other express provisions concerning the method of payment of salaries to members of the APS.
Section 71 of the Audit Act authorises the Governor-General to make regulations not inconsistent with the Act for carrying out the provisions of the Act. Section 72(1), so far as is here relevant, provides as follows:
“The regulations ... may:
(a)authorize the Minister, or the Secretary to the Department of Finance, to give to officers, or to any other persons who are subject to the provisions of this Act, directions for or in relation to any of the matters for and in relation to which regulations may be made under this Act;
(b)authorize a prescribed officer of a Department to give to officers of, or persons employed in, that Department directions for or in relation to any of the matters referred to in paragraph (a);
(c)...
(d)...
(e)provide that a contravention of, or failure to comply with, a direction referred to in paragraph (a), (b), (c) or (d) shall be deemed to be a contravention of the regulations.”
The Finance Regulations have been made pursuant to ss 71 and 72 of the Audit Act. Finance Regulation 127A, so far as is here relevant, reads as follows:
“(1)The Minister or the Secretary of the Department of Finance may give to officers, or to any other persons who are subject to the provisions of the Act, directions for or in relation to any of the matters referred to in paragraphs 71(1) (a) to (j) (inclusive) of the Act.
...
(5)A contravention of, or a failure to comply with, a direction given under this Regulation shall be deemed to be a contravention of these Regulations.”
In the above regulation “the Minister” means the Minister of Finance (Acts Interpretation Act 1901 (Cth) s 19A) and “the Act” means the Audit Act 1901 (Cth) (Finance Regulation 4).
Finance Directions have been promulgated pursuant to Finance Regulation 127A. Such directions are contained in a document entitled “Finance Directions” (“the document”). The document is divided into a number of sections. Each section has a heading and various sub-headings. Under the sub-headings appear numbered paragraphs which an examination of the document as a whole indicates are not intended to constitute directions. They are generally explanatory in nature. For example, par 1.6, under the sub-heading “Internal Control - The Principle That Underpins The System” reads as follows:
“The principle that underpins a sound financial management and accounting system in any organisation is internal control. Sound internal control procedures will ensure the reliability and integrity of financial and other operating information, and will minimise the possibility of theft, fraud, inefficiency and waste. Since good internal controls serve to protect an organisation and help to support the ethical framework for its officers to function in, it is important that staff at all levels support the internal control systems and concepts that are put in place. Departmental Secretaries are responsible for ensuring that adequate internal control procedures are employed within their organisations.”
Paragraph 1.7 is shown to be withdrawn and par 1.8 under the same sub-heading as 1.6 reads as follows:
“The principle of good internal control is so important and fundamental that it deserves the status of the first Direction.”
Immediately thereafter appears the following:
“DIRECTION 1A - THE SECRETARY OF A DEPARTMENT MUST ENSURE THAT THE ORGANISATION’S ACCOUNTING SYSTEMS PROVIDE EFFICIENT AND EFFECTIVE CONTROL.”
I conclude from a reading of the document as a whole that only those portions of it introduced by the word “DIRECTION” and a number and letter constitute the directions made pursuant to Finance Regulation 127A.
Under Section 18 of the document, which is headed “PAYROLL PAYMENTS”, appears the sub-heading “DEDUCTIONS FROM EMPLOYEES’ PAY”. Paragraph 18.10 reads as follows:
“The extent of any voluntary payroll deductions available to employees should be decided by the Department managing the particular payroll system. Given that the aim of any payroll operation is to pay employees rather than to provide them with a deduction service, Departments should approach the issue with care. Administering voluntary payroll deductions is costly, particularly where potentially short-term arrangements are involved, and these costs at least would have to be recovered from the commissions charged. There are also sensitive questions of equity as to which voluntary deductions should be allowed and which should be refused. Moreover, there will be the overriding absolute consideration of the payroll system’s capacity to handle such deductions. Conversely, there are strong traditional links for certain types of long-term voluntary deductions such as health fund contributions and life insurance premiums. Departments would, presumably, not wish to abandon those links. Moreover, it should be noted that the practice of permitting payroll deductions for union subscriptions to organisations registered under the Conciliation and Arbitration Act is a sensitive issue and one that would require the sanction of the Minister for Industrial Relations.”
As I construe the document, par 18.10 is not itself to be regarded as a direction pursuant to Finance Regulation 127A. The only direction pursuant to Finance Regulation 127A of apparent relevance in the circumstances of this case is Direction 18E which reads as follows:
“DIRECTION 18E - THE DEPARTMENTAL SECRETARY IS TO GIVE DIRECTIONS ENSURING THE INTEGRITY OF ARRANGEMENTS COVERING PAYMENT OF AN EMPLOYEE’S PAY TO ANY PERSON OTHER THAN THE EMPLOYEE.”
Section 73 of the Audit Act, so far as is here relevant, provides as follows:
“(1) The regulations ... may authorise a Minister to issue guidelines to officers or any other persons performing duties in relation to matters for which that Minister is responsible, being guidelines about any of the matters about which regulations may be made under this Act.
(2)Guidelines shall not be inconsistent:
(a)with this or any other Act;
(b)with regulations in force under this Act or any other Act; or
(c)with directions given under section 72.
(3)A guideline is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.”
No reliance has been placed in these matters on any regulation made pursuant to s 73 of the Audit Act, or on any guideline issued under any such regulation.
OBJECTIONS TO COMPETENCY
In each matter the respondents have filed a notice of objection to competency. Objections were pressed on the following grounds:
“1. The decisions sought to be reviewed are not ‘decisions’ within the meaning of Section 3 ADJR Act in that they are not final or operative and determinative.
2.Neither of the decisions sought to be reviewed are decisions which were made under an enactment within the meaning of Section 3 of the ADJR Act.”
TIME
In matter No NG 327 of 1997 the applicant has sought an extension of time for the bringing of the application “to the extent necessary”. The respondents do not contend that the application is out of time so far as the first respondent is concerned but they do contend that it is out of time so far as the second respondent, the Minister, is concerned. The extension of time sought for the bringing of the application against the Minister is opposed.
In matter No NG 377 of 1997 the applicant also seeks an extension of time for the bringing of the application “to the extent necessary”. The respondents challenge the appropriateness of the parties named as respondents and oppose the granting of an extension of time for the applicant to bring the application against either the named respondents or the persons whom the respondents contend ought appropriately be named as respondents to the application.
For the purpose of considering the applications for extensions of time, I shall assume that the applications are otherwise properly brought under the ADJR Act.
The question of whether the applicant requires an extension of time to bring the applications in matter No NG 327 of 1997 against the second respondent to that application, and to bring the application in matter No NG 377 of 1997, is to be determined by reference to s 11 of the ADJR Act. So far as is here relevant, s 11 of the ADJR Act provides as follows:
“11 (1) An application to the Court for an order of review:
(a) ...
(b) ...
(c)shall be lodged with the Registry of the Court and, in the case of an application in relation to a decision that has been made and the terms of which were recorded in writing and set out in a document that was furnished to the applicant ... shall be so lodged within the prescribed period or within such further time as the Court (whether before or after the expiration of the prescribed period) allows.
(2) ...
(3)The prescribed period for the purposes of paragraph (1) (c) is the period commencing on which the decision is made and ending on the twenty-eighth day after:
(a)if the decision sets out the findings on material questions of fact, refers to the evidence or other material on which those findings were based and gives the reasons for the decision - the day on which a document setting out the terms of the decision is furnished to the applicant; or
(b)in a case to which paragraph (a) does not apply:
(i)if a statement in writing setting out those findings, referring to that evidence or other material and giving those reasons is furnished to the applicant otherwise than in pursuance of a request under subsection 13(1) not later than the twenty-eighth day after the day on which a document setting out the terms of the decision is furnished to the applicant - the day on which the statement is so furnished;
(ii)if the applicant, in accordance with subsection 13(1), requests the person who made the decision to furnish a statement as mentioned in that subsection - the day on which the statement is furnished, the applicant is notified in accordance with subsection 13(3) of the opinion that the applicant was not entitled to make the request, the Court makes an order under subsection 13(4A) declaring that the applicant was not entitled to make the request or the applicant is notified in accordance with subsection 13A(3) or 14(3) that the statement will not be furnished; or
(iii)in any other case - the day on which a document setting out the terms of the decision is furnished to the applicant.
(4) Where:
(a)no period is prescribed for the making of applications for orders of review in relation to a particular decision; or
(b)no period is prescribed for the making of an application by a particular person for an order of review in relation to a particular decision;
the Court may:
(c)in a case to which paragraph (a) applies - refuse to entertain an application for an order of review in relation to the decision referred to in that paragraph; or
(d)in a case to which paragraph (b) applies - refuse to entertain an application by the person referred to in that paragraph for an order of review in relation to the decision so referred to;
if the Court is of the opinion that the application was not made within a reasonable time after the decision was made.”
The primary submission of the applicant on the issue of time was that each of the applications is governed by s 11(4) of the ADJR Act so that no period is prescribed for the making of the application. If that submission is accepted, the applicant does not require an extension of time in either of the two matters before me. The Court would, however, be empowered to refuse to entertain one or both of the applications if it were of the opinion that it was not, or they were not, made within a reasonable time after the relevant decision was made.
I am unable to accept the submission that each of the applications is governed by s 11(4) of the ADJR Act. So far as the decision of the Minister is concerned, in my view, the letter dated 18 March 1997 from the Assistant Secretary, Workplace Relations Branch of the Department of Industrial Relations to the Joint National Secretary of the applicant (the full terms of which are set out above) constitutes a written record which sets out the terms of the Minister’s decision. It is a written record which was furnished to the applicant.
The applications, so far as they seek to challenge the Minister’s determination, were thus required to be lodged within the prescribed period or such further time as the Court allows (ADJR Act s 11(1)(c)). Section 11(3)(a) does not have operation in the circumstances of these applications; the decision does not set out the findings on material questions of fact or refer to the evidence or other material on which those findings were based. Nor do pars 11(3)(b)(i) or (ii) have operation in the circumstances of these applications, as a statement in writing setting out those findings, referring to the evidence or other material and giving those reasons has not been furnished to the applicant whether pursuant to s 13(1) of the ADJR Act or otherwise. The prescribed period within which the applications were required to be lodged, so far as they seek to challenge the Minister’s decision, thus ended on the twenty-eighth day after the letter dated 18 March 1997 was furnished to the applicant. The prescribed period had thus expired by the time each of the applications was lodged.
The principles which guide this Court’s exercise of its discretion under s 11 of the ADJR Act are well known (see, for example, Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; Maric v Comcare (1993) 40 FCR 244; Corlette v MacKenzie (1995) 62 FCR 584 and Kim Hyun Tai v Bolkus (1996) 42 ALD 249). Ordinarily the applicant must give an acceptable explanation for the delay and show that it is fair and equitable in the circumstances to extend time. The justice of the case may, however, in a particular case require an extension of time even where no acceptable explanation for the delay is offered.
The application in matter No NG 327 of 1997 was lodged approximately two weeks outside the prescribed period. The explanation for the delay offered on behalf of the applicant focuses attention on the date upon which individual members of the applicant received advice of the decision of the Minister and of the administrative steps to be taken within the Australian Customs Service to implement the decision. The individual members of the applicant received such advice on or about 3 April 1997. Only then did the time frame for the implementation of the Minister’s decision within the Australian Customs Service, and the precise form of confirmation of authority which union members who worked within the Australian Customs Service were to use, become known.
The delay in the lodging of the application has not been suggested to have caused any prejudice to the respondents or any of them.
Although it may be thought to be a borderline case, I find that the explanation for the delay in lodging the application in matter No NG 327 of 1997 is, in the circumstances, acceptable. On the assumption that the determination of the Minister is a decision in respect of which an application for review under the ADJR Act may be made, I am satisfied that it is fair and equitable in the circumstances to extend the time within which the application in matter No NG 327 of 1997 was required to be lodged to the date upon which the application was in fact lodged, namely 30 April 1997.
As to matter No NG 377 of 1997, it is concerned with the same determination of the Minister. In my view, the justice of the case suggests that if matter No NG 327 of 1997 were to be allowed to proceed, the more general challenge to the Minister’s decision sought to be made in matter No NG 377 of 1997 ought also to be allowed to proceed. Were the Court to set aside the decision of the Minister, which was a decision of general application, so far as it relates to members of the APS employed within the Australian Customs Service, on the basis that it was a decision contrary to law, I am confident that the Minister would not wish to continue to rely on the determination so far as other members of the APS are concerned. Moreover, the decision is one which fairness suggests ought to apply uniformly to all APS members or to none of them.
Again, on the assumption that the determination of the Minister is a decision in respect of which an application for review under the ADJR Act may be made, I am satisfied that the justice of the case requires that the applicant be granted an extension of the time within which the application in matter No NG 377 of 1997 was required to be lodged to the date upon which the application was in fact lodged, namely 20 May 1997.
I do not understand the applicant to have pressed the contention implicit in the application filed in matter No NG 327 of 1997 that the Chief Executive Officer of the Australian Customs Service made a relevant decision under an enactment within the meaning of the ADJR Act. Nor do I understand the applicant to suggest that the decision challenged in matter No NG 377 of 1997 was a decision made by all or by any of the Secretaries to the Government departments identified in Schedule A to the application in that matter. As the case was conducted by the applicant, the decision of which review was sought was a determination of the Minister. It is therefore strictly unnecessary for me to consider whether the applicant should be granted an extension of time within which to lodge the application in matter No NG 377 of 1997 so far as it might be thought to seek review of a determination of any Secretary identified in Schedule A to the application. However, lest I have misunderstood the position of the applicants in this regard, I record that were I satisfied that the Chief Executive Officer of the Australian Customs Service and the Secretaries to the Government departments identified in Schedule A to the application in matter No NG 377 of 1997 had respectively made decisions to which the ADJR Act applies, which decisions were the subject of challenge in these proceedings, I would grant the necessary extension of time to allow the challenges to proceed. The close relationship between the determination of the Minister and the decision, if any, of such officers means that the justice of the case requires that if the determination of the Minister is to be subject to review under the ADJR Act, the decisions, if any, of such officers should be also.
IS THERE A DECISION UNDER AN ENACTMENT?
In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337, Mason CJ stated that “a reviewable decision [under the ADJR Act] is one for which provision is made by or under a statute”. In General Newspapers Pty Ltd v Telstra Corporation (1993) 45 FCR 164 at 170, Davies and Einfeld JJ observed that “to be subject to review under the ADJR Act, an action or refusal to act must amount to an ultimate or operative determination which an enactment authorises or requires, and thereby gives it statutory effect”.
It was contended by Mr Haylen QC, who appeared with Mr Reitano and Ms Rudland for the applicant, that the decision of the Minister was one purportedly made under the Finance Directions promulgated pursuant to Finance Regulation 127A. This contention is based on the proposition that no lawful decision concerning the making of pay-roll deductions from the salaries of members of the APS could be made other than in accordance with the “scheme” envisaged by the Audit Act and the Finance Regulations made thereunder, and implemented by the Finance Directions.
I am unable to accept the above contention.
The Commonwealth derives its executive power from the Constitution. The executive power of the Commonwealth plainly extends to the maintenance of a Commonwealth public service (s 64 of the Constitution).
Where the prerogative or governmental powers to be implied from ss 61 and 64 of the Constitution are regulated by statute, such statute must be complied with (New South Wales v Bardolph (1934) 52 CLR 455 per Rich J at 496). However, the Public Service Act, the Finance Regulations and, to the extent relevant, the Finance Directions, do not purport to, and do not, constitute a code concerning the employment of members of the APS, or concerning the manner of payment of their salaries. None of them contains provisions concerning when, if at all, and on what conditions, the Government may agree that deduction from the salaries of members of the APS may be made pursuant to authorities given by individual members of the APS. Such matters, in my view, remain within the discretion of the executive government acting through the responsible Minister of State. To put the matter another way, neither the Audit Act, the Finance Regulations, nor the Finance Directions authorises or requires a determination of the kind here under challenge.
I note that Mr Robertson SC, who with Ms Henderson appeared for the respondents, contended that the Finance Directions do not constitute an instrument made under an Act within the meaning of s 3(1) of the ADJR Act. Since, as I construe the document entitled “Finance Directions”, no direction promulgated pursuant to Finance Regulation 127A authorises or requires a determination of the kind here challenged, it is not necessary for me to reach a concluded view on this contention.
Nor is it not necessary for consideration to be given to the question of whether the Minister’s determination is to be regarded as a decision made under the Constitution, as the Constitution itself is not an enactment within the meaning of s 3(1) of the ADJR Act (Dixon v Attorney-General (1987) 15 FCR 338 at 343 - 344).
If it be the case that the applicant did press challenges to decisions of the Chief Executive Officer of the Australian Customs Service and the Secretaries to the Government departments identified in Schedule A to the application in matter No NG 377 of 1997, I similarly find that no such decision was required or authorised by the Audit Act, the Finance Regulations or the Finance Directions. Such decisions, if any, simply provided for the administrative implementation of the determination of the Minister.
CONCLUSION AS TO COMPETENCY OF THE ADJR ACT APPLICATIONS
For the reason given above I uphold the objection to competency taken by the respondents in each application that the decision or decisions sought to be reviewed is or are not a decision or decisions to which the ADJR Act applies within the meaning of s 5 of the ADJR Act. It is not necessary in the circumstances for me to reach a concluded view on whether such decision is “final or operative and determinative” so as to constitute a “decision” within the meaning of s 3 of the ADJR Act.
Having upheld the objection to competency, it is appropriate for the applications for extensions of time also to be refused.
CLAIMS FOR DECLARATIONS
In each of these matters the applicant has sought declarations, first, that the decisions of the respondents constitute discrimination against the applicant and its members within the meaning of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”) and secondly, that the decisions of the respondents are in breach of Australia’s obligations arising under:
“(i)the Covenant Covering Discrimination in Respect of Employment and Occupation; and/or
(ii)the International Covenant on Civil and Political Rights.”
Section 21 of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court of Australia Act”) provides as follows:
“(1)The Court may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.
(2)A suit is not open to objection on the ground that a declaratory order only is sought.”
The above claims for declarations must, in my view, fail on both legal and discretionary grounds.
As to both classes of declarations sought, my decision to uphold the objection to competency to the ADJR Act applications means that there is no matter in which the Court has original jurisdiction in relation to which such declarations may be made.
As to the claim said to arise under the HREOC Act, even if it be assumed that the decisions complained of constitute “discrimination” within the meaning of the HREOC Act, a declaration to that effect would not be determinative of any right in the applicant or its members. The HREOC Act does not make discrimination per se unlawful. Section 31 of the HREOC Act confers on the Human Rights and Equal Opportunity Commission (“the Commission”) a number of functions relating to equal opportunity in employment including the power to inquire into any act or practice that may constitute discrimination. Having conducted such an inquiry, the Commission’s powers are limited to endeavouring by conciliation to effect a settlement of the matter that gave rise to the inquiry, and, where the Commission is of the opinion that the act or practice constitutes discrimination and conciliation is not attempted or achieved, reporting to the Minister. Further, the Commission has a considerable discretion as to the circumstances in which it will inquire into any act or practice that may constitute discrimination. In the circumstances I doubt that s 21 of the Federal Court of Australia Act confers jurisdiction on the Court to make declarations that the decisions complained of constitute discrimination against the applicant and its members within the meaning of the HREOC Act. If it does, having regard to the structure and purpose of the HREOC Act, it would, in the exercise of the Court’s discretion, be appropriate for the Court to refuse to make such declarations.
As to the claim for declarations that the decisions of the respondents are in breach of Australia’s obligations under certain important international covenants, it is well established that the provisions of international treaties to which Australia is a party do not form part of Australian law unless those provisions have been incorporated into our municipal law by statute (Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273). For this reason I doubt that s 21 of the Federal Court of Australia Act confers jurisdiction on the Court to make declarations that the decisions complained of are in breach of Australia’s obligations arising under the Covenant Covering Discrimination in Respect of Employment and Occupation and the International Covenant on Civil and Political Rights. If it does, I am satisfied that no legal utility would flow from such declarations and that, in the exercise of the Court’s discretion, they should be refused.
RESULT
Each of the applications is dismissed with costs.
I certify that this and the preceding fourteen
(14) pages are a true copy of the Reasons for
Judgment of the Honourable Justice Branson.
Associate:
Date:
Counsel for the applicant: Mr W. Haylen QC with
Mr Reitano and Ms Rudland
Solicitor for the applicant: Geoffrey Edwards & Co.
Counsel for the respondents: Mr A. Robertson SC with
Ms Henderson
Solicitors for the respondents: Australian Government Solicitor
Date of hearing: 10 June 1997.
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