Cookson v Beveridge
[2003] TASSC 28
•19 May 2003
[2003] TASSC 28
CITATION: Cookson v Beveridge [2003] TASSC 28
PARTIES: COOKSON, David
v
BEVERIDGE, Wendy
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M386/2002
DELIVERED ON: 19 May 2003
DELIVERED AT: Hobart
HEARING DATES: 9 May 2003
JUDGMENT OF: Underwood J
CATCHWORDS:
Public Service - Boards commissioners and appeals - Other cases - Tasmania - State Service Commissioner - Power to determine whether there has been a breach of the Code of Conduct.
State Service Act2000 (Tas), s10(3).
Marshall v Watson (1972) 124 CLR 640, discussed.
Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292, followed.
Aust Dig Public Service [52]
Statutes - Acts of parliament - Rules of construction - Supplying, omitting and substituting words - Intention of Parliament plain from purpose of Act - Words to be implied or the provision to be construed in accordance with purpose.
State Service Act2000 (Tas), s10(3).
Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292, followed.
Aust Dig Statutes [29]
REPRESENTATION:
Counsel:
Appellant: P W Tree
Respondent: S N Allston
Solicitors:
Appellant: Dobson Mitchell & Allport
Respondent: Solicitor-General
Judgment Number: [2003] TASSC 28
Number of Paragraphs: 20
Serial No 28/2003
File No M386/2002
DAVID COOKSON v WENDY BEVERIDGE
REASONS FOR JUDGMENT UNDERWOOD J
19 May 2003
The issue
This application is brought pursuant to the provisions of the Judicial Review Act 2000, s17. It concerns the provisions of the State Service Act, 2000 ("the Act") and a decision made in purported exercise of a power conferred by the Act. The issue is whether the respondent has jurisdiction to determine whether the applicant has breached the Code of Conduct enacted by the Act, s9.
The background
On 26 February 2002, the Department of Health Services referred an allegation that the applicant had breached the Code of Conduct to the State Service Commissioner ("the Commissioner"), together with a copy of its investigation into the allegation. On 26 March 2002, the Commissioner executed an instrument which purported to appoint the respondent to determine the issue of whether the applicant had breached the Code of Conduct. By the same instrument, he purported to delegate to her certain powers for the purpose of making the determination. During discussions at a pre-hearing conference, it was agreed that the respondent should determine, as a preliminary point, the question of whether she had jurisdiction to make the determination that she had been asked to make. The respondent decided that she did have jurisdiction and published written reasons for that decision. Before the matter proceeded any further, this application was filed.
A brief description of the relevant parts of the Act
The Act, s6, creates the State Service comprising Heads of Agencies, holders of prescribed offices, senior executives and employees. Government departments are established by s11. Section 25 provides for the appointment of the Commissioner, and s18 sets out the Commissioner's functions. The following section prescribes his or her powers, and s20 gives him or her authority to make what are called "Commissioner's Directions" relating to any of the Commissioner's functions under the Act. Section 7 sets out "State Service Principles" which are expressed in somewhat lofty terms rather like a mission statement. By virtue of s8, these principles are to be upheld and complied with by Heads of Agencies. The Act, s9, prescribes a Code of Conduct with which all employees must comply. Section 14 gives the Minister a power to issue "Ministerial Directions". A number of sections in the Act confer specific powers on the Minister and specific authority to delegate the exercise of those powers. There is no general power for the Minister to delegate all his functions and powers. However, the Commissioner has a general power of delegation by virtue of s21, which provides:
"The Commissioner may delegate any of his or her functions or powers (other than this power of delegation and the power to issue Commissioner's Directions)."
Key provisions
The Act, s10, is a key provision for present purposes. It deals with breaches of the Code of Conduct in the following terms:
"(1) The Minister may impose one or more of the following sanctions on an employee who is found, under procedures established under subsection (3), to have breached the Code of Conduct:
(a)counselling;
(b)a reprimand;
(c)deductions from salary by way of fine not exceeding 20 penalty units;
(d)reduction in salary within the range of salary applicable to the employee;
(e)reassignment of duties;
(f)reduction in classification;
(g)termination of employment in accordance with section 44 or 45.
(2) The Minister may delegate the power to impose any of the sanctions specified in subsection (1)(a) to (f).
(3) The Commissioner is to establish procedures for the investigation and determination of whether an employee has breached the Code of Conduct.
(4) The procedures referred to in subsection (3) ¾
(a)are to afford procedural fairness in the determination of whether an employee has breached the Code of Conduct; and
(b)may be different for different categories of employees; and
(c)may vary according to the circumstances of the alleged breach of the Code of Conduct.
(5) An officer or an employee must not victimise, or discriminate against, another officer or employee because that officer or employee has reported breaches (or alleged breaches) of the Code of Conduct to the Commissioner or a Head of Agency."
The specific power of delegation in subs(2) may be noted. It does not extend to termination in accordance with ss44 or 45. It is unnecessary to set out either of those sections. I have emphasised s10(3) because both Mr Tree, counsel for the applicant, and Mr Allston, counsel for the respondent, agreed that that subsection either gave the Commissioner power to authorise the respondent to make the determination whether there has been an alleged breach of the Code of Conduct, or she had no jurisdiction to do so. The inexplicable aspect of the legislation is that, subject to one exception, it does not expressly confer upon the Commissioner a power to investigate and determine alleged breaches of conduct. It only confers a power to "establish procedures for the investigation and determination" of such matters. The one exception appears in s18(1)(f) , which provides that one of the Commissioner's functions is:
"to investigate alleged breaches of the Code of Conduct by Heads of Agencies and to report to the Premier on the results of such investigations."
It may be noted that not only is this express power confined to Heads of Agencies, but it is also confined to investigating such allegations. It does not extend to determining such allegations.
The instrument of appointment
The operative part of the Commissioner's instrument appointing the respondent reads as follows:
"I, gregory joseph vines … hereby:
Appoint Wendy Beveridge in accordance with clause 27 of the Commissioner's Direction No 5.1 to determine the matter, and
Delegate to Wendy Beveridge, my powers under section 19(2)(a)-(d) of the State Service Act 2000 in relation to making this determination."
The Act, s19, confers express powers on the Commissioner, by subs(1) in general terms, and by subs(2), without limiting the generality of subs(1), to:
"(a)conduct such investigations as the Commissioner considers necessary for the purposes of this Act; and
(b)summon any person whose evidence appears to be material to any determination of the Commissioner; and
(c)take evidence on oath or affirmation and, for that purpose, administer oaths and affirmations; and
(d)subject to subsection (3), require any person to produce documents or records in the person's possession or subject to the person's control that relate to matters of administration for the purposes of this Act."
Mr Allston conceded that the trouble with relying upon s19 as a source of the respondent's power, delegated to her by the Commissioner, is that it does not confer on the Commissioner any power to "determine" a matter, merely to investigate it.
At this stage it is appropriate to refer to the Commissioner's directions, but before doing so it must be noted that the Act, s3(3), defines the expression "this Act", except when enacted in ss14 and 20, to include Ministerial directions and Commissioner's directions. Accordingly, s19(2)(a) gives a power to conduct such investigations as the Commissioner considers necessary for the purposes of the Act and any Ministerial or Commissioner's direction issued by virtue of the authority conferred by ss14 and 20 respectively.
The Commissioner's directions
The Commissioner promulgated Direction No 5.1-2001. It is entitled "Procedures for Investigation and Determination of Alleged Breaches of the Code of Conduct". Curiously, it bears the issue date 3 December 2001 but the "operation date" is stated to be 1 May 2001. It sets out the "basic procedural requirements for the investigation and determination of whether an employee had breached the code of conduct." Upon the face of it, the authority for the Direction is the Act, s10(3). Clause 27 of the Direction, relied upon in the instrument of appointment, provides:
"As soon as practicable after receiving the request from the Head of Agency, the Commissioner may appointment, in writing, an independent and appropriately qualified person(s) to determine the matter. If more than one person is appointed, the Commissioner so to nominate one of those persons as Chair of the panel."
Mr Tree submitted that insofar as cl 27 purports to confer a power to appoint a person to determine whether there has been a breach of the Code of Conduct, it is ultra vires the Act, as s10(3) does not empower the Commissioner to determine whether there has been a breach of the Code of Conduct. Mr Tree's submission was that s10(3) only authorises the establishment of procedures, being such matters as whether the determination of an allegation is to be heard in public or in private, whether submissions are to be in writing, and so on. Mr Tree submitted that accordingly, as the Commissioner is given no power to determine whether there has been a breach of the Code of Conduct, the Commissioner cannot delegate that power to another. Mr Allston submitted that the power in s10(3) should not be construed so narrowly, and that the power to establish procedures includes a power to determine an allegation, ie, "the established procedure will be for the Commissioner to determine whether there has been a breach of the Code of Conduct". If this submission is correct, the Commissioner is, of course, entitled to delegate that power pursuant to the Act, s 21.
A question of statutory construction
Mr Tree correctly submits that it is not for the applicant to demonstrate who has the authority to determine whether there has been a breach of the Code of Conduct. It is sufficient for the applicant to show that the Commissioner has no such authority, and therefore no power to delegate the authority to make a determination. It seems to me unlikely that Parliament intended to create a Code of Conduct, empower the Commissioner to establish procedures for the investigation and determination of whether there has been a breach of that Code, but not give any person authority to determine whether such a breach has occurred. Accepting this, Mr Tree submitted that by implication, s10(1), which empowers the Minister to impose sanctions upon those who are in breach of the Code of Conduct, and s10(2), which gives the Minister express authority to delegate the power to impose sanctions (except in two respects), implies an intention by Parliament to empower the Minister to determine whether there has been a breach of the Code of Conduct. There are two difficulties with this proposition. First, it involves quite a stretch of language and second, s10(2) expressly excludes the power to delegate the imposition of sanction in the case of termination of employment in accordance with ss44 or 45. In such cases, there could be no delegation of the "implied power" to determine an allegation of breach of the Code of Conduct. This means that whether any delegation of the "implied power" was intra or ultra vires would not be known until after the power had been exercised.
The Act clearly contemplates that in the case of suspected breaches of the Code of Conduct, there will be three distinct stages: investigation, determination and imposition of penalty. Commissioner's Direction 5.1-2001 proceeds on this basis. Clauses 9 - 18 prescribe the procedure for the investigation phase. Clauses 19 - 36 prescribe the procedure for the determination phase. The imposition of penalty provisions appear in various clauses of the determination phase. In essence, the Direction provides that if, after investigation, the Head of Agency is of the view there has been no breach, the matter will end there. But if he or she thinks that there may have been a breach, the Head of Agency will determine the allegation and impose penalty unless the matter appears to be "significant". In such a case, the Commissioner's Direction requires the allegation to be referred to him for determination by him or his delegate. The validity of the Direction insofar as it purports to confer a power to impose sanction is not in issue in this application and was not addressed in argument.
Sections 50 and 51 were relied upon as giving support to the applicant's submission that the power to establish procedures conferred by s10(3), does not include a power to determine whether there has been a breach of the Code of Conduct. Sections 50 and 51 concern a review of an action, defined as a refusal or failure to act. Section 50 gives an employee a right to review (inter alia) the selection of a person to perform specified duties. Section 51(1) provides that "the procedure for a review is to be determined by the Commissioner". The argument is that in those two sections, Parliament drew a clear distinction between the power to prescribe "procedure" and the power to determine a matter. The latter, it was contended, was clearly implied by the conferring of a right to apply for a review by s50. If the respondent's contention that the power to prescribe procedures in s10(3) includes a power to determine an allegation, s51(1) is otiose. Whilst the argument is apparent, I do not think it has much weight. Section 51(1) was necessary because Parliament had to identify the persons who are entitled to apply for a review, but no such identification is required with respect to determinations of whether there has been a breach of the Code of Conduct. Indeed, it might be said that the point is adverse to the applicant's submission, as neither ss50 nor 51 expressly enact that the Commissioner has power to determine anything upon an application being made to him or her for a review. That power has to be implied from s50.
I was referred to the second reading speech, but there is little in it to shed light on the provisions that are presently under consideration. Had s10(3) read:
"(3) The Commissioner is to establish procedures for the investigation and determination by him of whether an employee has breached the Code of Conduct,"
Mr Tree accepted that the appellant could not succeed upon this application. Such words would have put the issue beyond question, although I might observe that such words would create another, albeit lesser, difficulty arising from s18(1)(f) which confers a power to investigate a possible breach by a Head of Agency. However, there is clear authority for the proposition that the courts cannot add words to a piece of legislation, except perhaps to correct an obvious typographical or similar error. In Thompson v Goold & Co [1910] AC 409, Lord Mersey said, at 420:
"It is a strong thing to read into an Act of Parliament words which are not there, and the absence of clear necessity it is a wrong thing to do."
Stephen J expressed the same view when he said in Marshall v Watson (1972) 124 CLR 640 at 649:
"Granted that there may seem to be lacking in the legislation powers which it might be thought the Legislature would have done well to include, it is no power of the judicial function to fill gaps disclosed in legislation; as Lord Simonds said in Magor and St Mellons RDC v Newport Corporation (1952) AC 189, at p 191, 'If a gap is disclosed, the remedy lies in an amending Act' and not in a "usurpation of the legislative function under the thin disguise of interpretation".
However, there is another approach to this problem. The Act is described as "an Act to provide for the establishment and management of the State Service and for other purposes". The Commissioner is central to the proper management of the State Service and the maintenance of the Code of Conduct. Although the Act does not expressly confer a power on the Commissioner to determine whether there has been a breach of the Code of Conduct, I think that having regard to its purpose, such a power is either implicit in the words of s10(3), or upon their proper construction, the words of the subsection include that power. With respect to the former proposition, McHugh JA (as he then was) said in Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 at 302:
"The Interpretation Act 1987, s 33, directs the Court to give legislation the construction which promotes its purpose or object. In Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404, I set out in some detail (at 421-424) the principles applicable in giving legislation a purposive construction. The passage is too long to set out at length. But in the course of that judgment I pointed out that the grammatical meaning of a provision is not to be taken to represent Parliament's intention as to its meaning when the context or the purpose of the provision raises a real doubt about the applicability of the grammatical meaning. If purpose or context do raise a real doubt as to whether Parliament intended the grammatical meaning to apply, a court is entitled to depart from that meaning. Moreover, if the grammatical meaning gives rise to injustice or anomaly, it may strengthen the conclusion that the Parliament did not intend the grammatical or literal meaning to apply.
Once the court concludes that the grammatical meaning does not accord with the purpose of the legislation, '… it is often legitimate, because it is necessary, to put a strained interpretation upon some words which have been inadvertently used': Sutherland Publishing Co Ltd v Caxton Publishing Co Ltd [1938] Ch 174 at 201. But as the cases to which I referred (at 422-423) in Kingston v Keprose Pty Ltd show, it is not only when Parliament has used words inadvertently that a court is entitled to give legislation a strained construction. To give effect to the purpose of the legislation, a court may read words into a legislative provision if by inadvertence Parliament has failed to deal with an eventuality required to be dealt with if the purpose of the Act is to be achieved."
See the Acts Interpretation Act 1931, s8A. The Act makes it clear that the principal officer in the State Service is the Commissioner. This is reflected in the breadth and scope of his functions set out in s18(1) and (2):
"(a) to take such steps as the Commissioner considers necessary to uphold, promote and ensure adherence to the State Service Principles;
(b) to determine practices, procedures and standards in relation to management of, and employment in, the State Service and to evaluate their application within Agencies;
(c) to provide advice to the Minister on any matter relating to the State Service;
(d) to consult with, and provide assistance to, Heads of Agencies in relation to the implementation of the State Service Principles and the Code of Conduct;
(e) to evaluate the adequacy of systems and procedures in Agencies for ensuring compliance with the Code of Conduct;
(f) to investigate alleged breaches of the Code of Conduct by Heads of Agencies and to report to the Premier on the results of such investigations;
(g) to undertake reviews applied for under section 50;
(h) to develop principles and standards to assist Heads of Agencies in evaluating the performance of employees and provide assistance to Heads of Agencies in the application of those principles and standards;
(i) to develop and coordinate training, education and development programs for the State Service;
(j) to develop and implement recruitment programs for the State Service;
(k) to develop classification standards and, where appropriate, procedures to enable Heads of Agencies to classify duties to be performed within the State Service and, where no classification standards have been developed, to approve the assignment of classifications to duties;
(l) to determine requirements, including qualifications, for the employment of employees or groups of employees in the State Service;
(m) to determine duties to be of a senior executive nature or equivalent specialist nature;
(n) to determine the period within which action arising under this Act may be taken by the Commissioner, an officer or an employee;
(o) such other functions as are imposed by or under this Act.
(2) If the Commissioner is requested by the Minister under section 15 to conduct an investigation, the Commissioner is to conduct such an investigation and provide a report of the outcome of that investigation to the Minister."
Many sections of the Act confer on the Commissioner discrete but extensive powers and discretions concerning employees (defined to exclude Heads of Agency), the conditions of their employment and their advancement in the State Service. See, eg, ss37, 39, 40, 46 and 47. A central plank in the apparent policy of the legislation is the principles of State Service, enacted in s7, and the Code of Conduct enacted in s9. It seems to me inconceivable that the Parliament intended to:
· give the Commissioner a pivotal role in the administration of the State Service; and
· confer on him or her the power to establish procedures for the determination of whether there has been a breach of that Code of Conduct; but
· exclude him from any role in the determination of such a question; and
· either make no provision for such determination, or vest it in the Minister in the most oblique manner.
I am confident that Parliament intended, by the enactment of s10(3), to confer upon the Commissioner, as part of the establishment of procedures for investigation and determination of whether there had been a breach of the Code of Conduct, a power to determine such matters himself. The obvious intention was to provide that nomination of the person or persons empowered to investigate and determine whether there has been a breach of the Code is part and parcel of the establishment of procedures authorised by s10(3). The legislation should be construed accordingly.
The respondent, as a delegate of the State Service Commissioner, has jurisdiction to determine whether the applicant breached the Code of Conduct enacted by the Act, s9, and, for the purpose of making that determination has the powers enacted in the Act, s10(2)(a) - (d). The respondent's decision to that effect is correct. The application for a review of that decision is dismissed.
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