Cox, Edmund John v Lightly, Edward Stanley

[1983] FCA 126

Re: EDMUND JOHN COX
And: EDWARD STANLEY LIGHTLY; ROBERT IVAN PIGHT; LIONEL JOHN CLAYDON; JOHN
CHARLES JOHNSON, the Acting Commissioner of the AUSTRALIAN FEDERAL POLICE
No. G80 of 1982
Administrative law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.

CATCHWORDS

Administrative law - Judicial review of administrative decisions - Promotion Appeals Board of the Australian Federal Police - Member selected for promotion to a commissioned rank following publication of notice of vacancies in that rank and applications by the member - Withdrawal of one application - Publication of names of members selected for promotion - Appeals by other members-Failure of Promotion Appeals Board to hear and determine appeals on ground that by reason of withdrawal of application no matter before the Board for determination - Review of promotion procedures under Australian Federal Police Act 1979 and Australian Federal Police Regulations.

Australian Federal Police Act 1979, sections 23, 24, 25, 36, 40

Australian Federal Police Regulations, Part III

Administrative Decisions (Judicial Review) Act 1977, section 6

Sellars v. Woods (1982) 45 A.L.R. 113

Director-General of Social Services v. Chaney (1980) 31 A.L.R. 571

Riordan v. Parole Board of the Australian Capital Territory (1981) 34 A.L.R. 322

Gourgaud v. Lawton (1982) 42 A.L.R. 117

HEARING

CANBERRA

#DATE 1:7:1983

ORDER

1. A Promotion Appeals Board constituted in accordance with sub-section 20(4) of the Australian Federal Police Regulations hear and determine according to law the appeals lodged against the selection for promotion to the rank of Inspector of the applicant, Station Sergeant Edmund John Cox, as notified in the Australian Federal Police Gazette of 28 January 1982.

2. The second respondent pay the costs of the applicant of and incidental to this application.

JUDGE1

This application under the Administrative Decisions (Judicial Review) Act 1977 requires a consideration of the Australian Federal Police Act 1979 and the Australian Federal Police Regulations made thereunder in so far as they provide for the advancement to higher rank of an officer of the Australian Federal Police and confer upon other officers a right of appeal against such advancement.

Before proceeding to an examination of the facts it will be convenient to refer to the relevant statutory provisions. The Australian Federal Police Act 1979 (which I shall call "the Act") established the Australian Federal Police constituted by the Commissioner of Police, a Deputy Commissioner or Deputy Commissioners of Police and two components, one comprising commissioned and non-commissioned police officers and the other commissioned and non-commissioned protective service officers (sections 6 and 7). For the purposes of this case it is only necessary to refer to the component comprising police officers. Subject to the Act, the Commissioner has the general administration of, and control of the operations of, the Australian Federal Police (section 13) and may issue General Orders and General Instructions (section 14).

By virtue of section 23 there are to be such commissioned and non-commissioned ranks of the Australian Federal Police as are prescribed. The prescription is contained in regulations 3 and 4 of the Australian Federal Police Regulations (to which I shall refer as "the regulations"). In so far as the component of the Australian Federal Police comprising police officers is concerned, the commissioned ranks are, Inspector, Chief Inspector, Superintendent, Chief Superintendent and Assistant Commissioner; the non-commissioned ranks are Constable, Sergeant, Senior Sergeant and Station Sergeant. The Minister may, after obtaining and considering the advice of the Commissioner and of the Public Service Board, determine the number of persons that may be appointed to each rank (section 24). At the time of the events to which it will be necessary to refer there was in force such a determination of the Minister. Under that determination, which was made on 30 December 1980, the number of persons that might be appointed to each of the commissioned ranks mentioned were -

Assistant Commissioner 4
Chief Superintendent 16
Superintendent 10
Chief Inspector 35
Inspector 70.

Sub-section 25(1) of the Act should be set out in full. It provides:-

"Subject to this Act, the Governor-General may, by Commission, on the recommendation of the Commissioner, or, if the Commissioner is authorised by the Governor-General in writing to make appointments under this section, the Commissioner may, by Commission -

(a) appoint a person to be a commissioned officer in a component, being an appointment to a rank that the person is, in accordance with the regulations, competent and qualified to hold;

(b) promote a person who is a commissioned officer in a component to a higher commissioned rank in either component, being a rank that the person is, in accordance with the regulations, competent and qualified to hold; or

(c) transfer a person who is a commissioned officer in a component to an equivalent rank in the other component, being a rank that the person is, in accordance with the regulations, competent and qualified to hold."

The regulations prescribing the competency and qualifications for holding a particular rank are contained in Division 2 of Part II of the regulations. In the case of commissioned rank the relevant matters include the satisfactory discharge of his duties while serving in the rank the person is holding at the time, the display while so serving of such ability as would enable him to perform the duties of the relevant rank, physical and mental health, the satisfactory completion of prescribed training courses and, where a qualifying examination in relation to the relevant rank is prescribed, the passing of that examination. The regulations provide exceptions and exemptions from the prescribed qualifications but it is unnecessary to refer to them.

By virtue of section 70 of the Act the Governor-General is empowered to make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed, for securing the discipline and good government of the Australian Federal Police, or for otherwise carrying out or giving effect to the Act. The regulations may make provision for and in relation to, inter alia, "the promotion of members, including the right of members to appeal against promotion of other members, and the establishment of a Promotion Appeals Board to hear and determine such appeals" (section 40). Section 36 of the Act relates to the selection of members of the Australian Federal Police for promotion. It should also be set out in full. It provides:-

"(1) In the selection of a member for promotion to a rank, consideration shall be given to the relative efficiency of the members available for promotion and, in the event of equality of efficiency of 2 or more of those members, then to the relative seniority of those members.

(2) For the purposes of this section -

(a) "efficiency", in relation to a member, in relation to a rank, means the possession by the member of special qualifications and aptitude for the discharge of duties of the kind to be performed by members holding that rank, together with merit, diligence and good conduct; and

(b) the seniority of members shall be determined as prescribed."

Part III of the Australian Federal Police Regulations is headed "Promotions" and consists of three Divisions. Division 1 deals with "Selection for Promotion", Division 2 provides for the establishment, constitution, functions and powers of the Promotion Appeals Board and Division 3 prescribes the method by which the seniority of members is to be determined for the purposes of section 36 of the Act. Regulations 15, 16 and 17 should be set out in full. They provide:-

"15. (1) Where a vacancy occurs, or is expected to occur, in a commissioned rank other than the rank of Inspector or Protective Service Inspector, the Commissioner shall cause to be published in the Police Gazette a notice inviting commissioned officers who are competent and qualified to hold the commissioned rank to apply for promotion to the vacancy.

(2) Where a vacancy occurs, or is expected to occur, in -

(a) a non-commissioned rank other than the rank of Constable or Protective Service Constable; or

(b) the rank of Inspector or Protective Service Inspector, the Commissioner shall cause to be published in the Police Gazette a notice inviting non-commissioned officers who are competent and qualified to hold that rank to apply for promotion to the vacancy.

(3) An application for promotion to a vacancy to which a notice under sub-regulation (1) or (2) refers -

(a) shall be in writing;

(b) shall be addressed to the person specified in the notice; and

(c) shall be delivered by hand or sent by pre-paid post so as to reach that person within 21 days after the date on which the notice was published in the Police Gazette.

16. After the period provided by sub-regulation 15(3) for submitting applications for promotion to a vacancy in a rank has expired, the Commissioner may -

(a) if only one application has been submitted - select the applicant for promotion to the vacancy; or

(b) if two or more applications have been submitted - select one of the applicants for promotion to the vacancy.

17. (1) Where the Commissioner has selected a member for promotion to a vacancy in a rank under regulation 16, the Commissioner shall cause a notice of his decision to be published in the Police Gazette.

(2) A notice under sub-regulation (1) shall state -

(a) the name and rank of the member; and

(b) the rank for promotion to which the member has been selected."

A member who submitted an application for promotion to a vacancy under sub-regulation 15(1) or (2) and is aggrieved by the decision of the Commissioner to select another member for promotion to the vacancy may, by giving notice of appeal, appeal to the Promotion Appeals Board from the decision of the Commissioner (sub-regulation 26(1)). A notice of appeal is to be in writing signed by the appellant and is to be lodged with the Secretary to the Board within a specified period. It is to state the name and rank of the appellant, the name and rank of the member selected for promotion to the vacancy and the grounds on which the appellant contends that he should have been selected for promotion to the vacancy (sub-regulation 26(2)). Provision is made for the Commissioner, the appellant and the member selected for promotion to submit material to the Board including, in the case of the Commissioner, a statement in support of his decision (regulation 27). For the purposes of the hearing of an appeal, the parties to the appeal are the appellant, the member selected for promotion and the Commissioner (regulation 28). The Board is to hear and determine the appeal and for the purpose of doing so is required to have regard to the competence and qualifications of the appellant and the member selected for promotion to hold the relevant rank, to take into consideration all written statements and documents submitted by the parties and the answers given, and any oral statements made, by each party at the hearing and to make full enquiries into the claims of each party to the appeal; it may obtain the views of any referee nominated by the appellant or the member selected for promotion (regulations 19, 29 and 31). Regulation 32 provides:-

"(1) Where, on an appeal to the Board in relation to a proposed promotion to a rank, the Board is satisfied that full inquiries have been made into the claims of each party to the appeal, then,

(a) if the Board, having regard to the provisions of section 36 of the Act, is satisfied that the appellant has a better claim to promotion to that rank than the member who has been selected for promotion, the Board shall, subject to sub-regulation (2), allow the appeal and recommend to the Commissioner that the appellant be promoted to that rank; and

(b) in any other case - the Board shall dismiss the appeal and recommend to the Commissioner that the member selected by the Commissioner for promotion to that rank be so promoted.

(2) Where -

(a) there are 2 or more appellants from a decision of the Commissioner to select a member for promotion to a rank; and

(b) the Board is satisfied that 2 or more of those appellants have a better claim to promotion to that rank than the member selected for promotion, the Board shall -

(c) allow the appeal of only one of the appellants referred to in paragraph (b), being the appellant whom, having regard to the provisions of section 36 of the Act, it considers to have the better or best claim to promotion to that rank, and recommend to the Commissioner that that appellant be promoted to that rank; and

(d) dismiss the appeal of the other appellant or each of the other appellants, as the case may be."

The promotion of any member in accordance with section 25 of the Act is to be notified in the Police Gazette (regulation 33).

Neither the Act nor the regulations makes specific reference to the organisational structure of the Australian Federal Police, that being a matter falling within the general administrative responsibilities cast upon the Commissioner by section 13 of the Act. The Commissioner has established a divisional structure, some divisions being geographical and others functional, though there are some officers who are not embraced within a division. An example of the former is Southern Division with its headquarters in Melbourne. An example of the latter is 'C' Division which has its headquarters, and all its commissioned officers stationed, at Canberra but with components operating within the geographical boundaries of other divisions. The deployment of the members of the Australian Federal Police throughout Australia and at certain overseas posts is a matter determined by the Commissioner from time to time.

At the time of the events giving rise to these proceedings the applicant, Edmund John Cox, was a non-commissioned officer of the Australian Federal Police with the rank of Station Sergeant. He had passed the qualifying examination for commissioned ranks (see regulation 7 and Schedule 2). He was at all relevant times stationed at Canberra attached to the Australian Capital Territory Division but between February and May 1982 he attended a training course conducted by the Victorian Police Force at its training college "Airlie" in Victoria.

In the Australian Federal Police Gazette No. 23 of 5 November 1981 a notice was published in purported pursuance of sub-regulation 15(2) of the regulations inviting non-commissioned officers competent and qualified to hold the rank of Inspector to apply for promotion to the rank of Inspector, to one or more of a number of vacancies. Members holding the substantive rank of Inspector or Protective Service Inspector were invited to apply for transfer to any of the vacancies. The notice should be set out in full. It was in the following terms:-

VACANCY-INSPECTOR

In accordance with sub-regulation 15(2) of the Australian Federal Police Regulations, non-commissioned officers, competent and qualified to hold the rank of Inspector, are invited to apply for promotion to the rank of Inspector, to one or more of the following vacancies or consequential vacancies.
Southern Division(2)-Vacancy Reference 162/81
'C' Division(1)-Vacancy Reference 163/81
*Consequential vacancies - Vacancy Reference 164/81
**Overseas Posts (3) - Vacancy Reference 165A/81 (Indonesia)
165B/81 (Malaysia)
165C/81 (Thailand)

*Applicants should note that both the number and locations of the consequential vacancies may vary subject to the suitability of members holding the substantive rank or equivalent rank to fill them. Members applying for these consequential positions must be prepared to serve wherever the vacancy occurs. Members should however, advise, in order of preference, the Divisions in which they would prefer to serve.
Members holding the substantive rank of Inspector or Protective Service Inspector, desirous of transfer at or to the rank of Inspector, are also invited to apply for transfer to any of the above vacancies.
Applicants should include comprehensive details of all matters they wish considered in the assessment of their application, and in accordance with sub-regulation 15(3), applications shall:

(i) be in writing;

(ii) be addressed to Chief Superintendent P.G. DAWSON, Personnel Division, P.O. Box 401, Canberra City, A.C.T. 2601;

(iii) be delivered to reach Chief Superintendent P.G. DAWSON, Personnel Division, within twenty-one days of the publication of this Gazette, quoting the abovementioned vacancy reference numbers.

** The three overseas positions are for, Inspector, Drug Operations, Drug Liaison Officers. Further information on the duties and allowances involved can be obtained from the Deployment Branch, Personnel Division, Canberra."

Within the time allowed the applicant delivered to the Chief Superintendent, Personnel Division in Canberra three applications, one quoting vacancy reference 162/81, one vacancy reference 163/81 and the third, vacancy reference 164/81. Each of the applications was in substantially identical terms and each made clear that the applicant's order of preference for the vacancies was, in descending order, the vacancies identified by the reference numbers 163/81, 164/81 and 162/81. In the application quoting vacancy reference 164/81 the applicant specified in order of preference six divisions in which he would prefer to serve should a consequential vacancy occur and one branch and one division in which he was not prepared to accept a position.

In due course a body known as the Central Promotion Selection Committee made an assessment of the applicant's suitability to hold the rank of Inspector and a copy of that assessment was made available to the applicant. The Committee's conclusion is summarised in the final paragraph of a document dated 18 December 1981 signed by the members of the Committee in the following terms:-

"The Committee unanimously regards Station Sergeant E.J. Cox (122) suitable for promotion to the rank of Inspector and recommends he be so appointed."

In that document the Committee did not discuss or, indeed, make any comment in relation to the duties of the vacancies referred to in the notice published in the Australian Federal Police Gazette of 5 November 1981. It would seem clear that what the Committee was concerned to do was to assess the applicant against the general criteria appropriate for the satisfactory discharge of whatever duties the holder of the rank of Inspector might be called upon to perform. In doing so the Committee appears to have reflected the provisions of section 36 of the Act.

On the same date, 18 December 1981, the members of the Central Promotion Selection Committee signed a report to the Acting Assistant Commissioner, Personnel. The report records that the committee had unanimously agreed that four named applicants listed in the report in order of merit were suitable and were recommended to be appointed to the commissioned officer rank of Inspector. Thereafter appeared the names of four officers, the applicant in these proceedings being listed third in order of preference. Those preferred to him were Station Sergeant A.J. Dau and Senior Sergeant H.W. Bryant. The fourth officer in order of preference was Station Sergeant J.L. Barr. The committee also reported that Station Sergeant C.H. Pearson was not suitable for appointment to the commissioned rank of Inspector. The report then states that the committee had considered all recommended applicants for transfer to Inspector vacancies and consequential vacancies and made recommendations on an order of merit basis in respect of each vacancy. For the 'C' Division vacancy the committee recommended, in order of merit, two officers who already held the substantive rank of Inspector and noted that in its view, the remaining applicants, including the applicant in the present proceedings, were regarded as not being suitable for reasons outlined in an attachment which is not in evidence before me. In relation to Southern Division, the committee recommended the applicant in these proceedings, noting that there were no other applicants for a Southern Division vacancy. As the advertisement of 5 November 1981 listed two vacancies in Southern Division, the recommendation of the committee, if accepted, would have left one vacancy unfilled. The recommendation did not identify for which of the two vacancies the applicant in these proceedings was being recommended. A recommendation was also made for the overseas post in Malaysia but no recommendation was made for the posts in Indonesia or Thailand on the basis that no officers had been recommended to the committee as being suitable for those posts. The committee then proceeded to make recommendations in respect of the consequential vacancies in the rank of Inspector which would arise if their recommendations for the transfer of officers already holding the substantive rank of Inspector were accepted. The applicant in the present proceedings was not considered to be as suitable for those consequential vacancies as other applicants and he was not recommended for them.

The committee's report was received by Acting Assistant Commissioner Antill on 6 January 1982 and he, as a delegate of the Commissioner, approved the selection for promotion to the rank of Inspector of the four officers named by the Committee, including the applicant in the present proceedings. He made other notations on the report including a notation to the effect that the applicant in the present proceedings "could, on promotion to the rank of Inspector, be posted to Southern Division". In an affidavit filed in these proceedings Mr. Antill deposed that whether Station Sergeant Cox was posted to Southern Division was a matter for the Officer-in-Charge, Personnel Division, Chief Superintendent Bird. On 11 January 1982 Mr. Antill formally approved the selection for promotion to the rank of Inspector of the four officers named in the committee's report. The applicant was informed of his selection.

In the Australian Federal Police Gazette of 28 January 1982 a notification in the following terms appeared:-
------------------------------------------------------------------------------ -- "PROMOTIONS-INSPECTOR

In accordance with the provisions of Division I of Part III of the Australian Federal Police Regulations, the following members have been selected for promotion to the rank of Inspector as advertised in the Australian Federal Police Gazette No. 23/81 dated 5 November 1981.
------------------------------------------------------------------------------ -- Rank for promotion
Name and rank of member selected to which member has been selected
------------------------------------------------------------------------------ -- BARR,J.L., Station Sergeant, No. 144 . . . . . . . . . . . . Inspector
BRYANT,H.W., Senior Sergeant, No. 155 . . . . . . . . . . . Inspector
COX,E.J., Station Sergeant, No. 122 . . . . . . . . . . . . Inspector
DAU,A.J., Station Sergeant, No. 167 . . . . . . . . . . . . Inspector
------------------------------------------------------------------------------ --
INFORMATION-APPEALS AGAINST PROVISIONAL PROMOTIONS

In accordance with Regulation 26 of the Australian Federal Police Regulations a member, who submitted an application for promotion to a vacancy and is aggrieved by the decision of the Commissioner to select another member for promotion to that vacancy, may appeal to the Australian Federal Police Promotion Appeals Board against the decision of the Commissioner.
A notice of appeal shall:

(i) be in writing signed by the appellant

(ii) state-
the name and rank of the appellant
the official address and contact number of the appellant,
the name and rank of the member who was selected for promotion,
the grounds on which the appellant contends that he/she should have been selected for promotion to the vacancy, that is efficiency and/or seniority (Section 36 of the Australian Federal Police Act 1979 refers).

(iii) state whether the appellant is a member of an association and if so the name of that association or where the appellant is not a member of an association, nominating the association a nominee of which is to sit on the Board which will hear the appeal;
All appeals should be lodged with the Secretary to the Board at the following address within 21 days of the date of notification in the Police Gazette of the decision of the Commissioner:
The Secretary
Australian Federal Police Promotion Appeals Board
Room 105, First Floor,
South Tower, Caga Centre
CANBERRA, A.C.T. 2600
(P.O. Box 1920,
CANBERRA CITY, A.C.T. 2601)"
------------------------------------------------------------------------------ --

On or about 2 February 1982, that is within the time mentioned in the notification above referred to, Station Sergeant Pearson lodged an appeal against the four members selected for promotion to the rank of Inspector whose names appeared in the Australian Federal Police Gazette of 28 January 1982. An appeal against the selection of those four members was also lodged by Senior Sergeant Westwood but there is no evidence before me that the applicant in the present proceedings was formally notified of that appeal. Each of the appellants submitted to the Promotion Appeals Board a written statement setting out matters he wished the Promotion Appeals Board to take into consideration in deciding the appeal. The applicant also submitted to the Board such a statement and the Commissioner furnished to it a written statement in support of his decision, though this latter statement was not submitted until 1 November 1982. The applicant's statement refers to the applications he submitted for the vacancies notified in the Australian Federal Police Gazette of 5 November 1981. It sets out his history of service in the Australian Capital Territory Police force and the Australian Federal Police and outlines what he perceived to be the basic attributes and qualities required for an Inspector to perform his duties in a competent and capable manner.

It is desirable, I think, to refer in some detail to the Commissioner's statement dated 1 November 1982. It is concerned not only with the appeals lodged by Station Sergeant Pearson and Senior Sergeant Westwood against the selection for promotion to the rank of Inspector of the applicant in these proceedings. It deals also with the selection of the three other members mentioned in the Australian Federal Police Gazette dated 28 January 1982 and with the appeals against their selection by Station Sergeant Pearson and Senior Sergeant Westwood.

After setting out the text of the notification that appeared in the Australian Federal Police Gazette of 5 November 1981 the statement identifies the members who applied for the vacancies identified in that notification as vacancies 162/81, 164/81 and 165B/81. The statement discloses that three members applied for "Vacancy 162/81" (that is, the vacancies in Southern Division), namely Detective Senior Sergeant Phelan, Station Sergeant Cox and Senior Sergeant Westwood. For "Vacancy 164/81" (that is, the possible consequential vacancies) four members are shown as applicants, Station Sergeant Barr, Senior Sergeant Bryant, Station Sergeant Cox and Station Sergeant Pearson. For "Vacancy 165B/81" (Malaysia), the only applicant shown is Station Sergeant Barr. The statement records that Station Sergeant Cox was selected for promotion to vacancy 162/81, Senior Sergeant Bryant to vacancy 164/81 and Station Sergeant Barr to vacancy 165B/81. It further states that Station Sergeant Dau was also selected for vacancy 164/81 "in the mistaken belief that he had been an applicant". No reference is made in the Commissioner's statement to the applicants for promotion to vacancy 163/81, that is the vacancy in 'C' Division.

The statement then refers to the selection procedures that were followed though what is said in the statement is not entirely consistent with the evidence before me. In particular, according to the statement Acting Assistant Commissioner Antill authorised the final selection of Station Sergeant Cox for vacancy 162/81, Station Sergeant Dau and Senior Sergeant Bryant for vacancy 164/81 and Station Sergeant Barr for vacancy 165B/81. The evidence before me establishes that, while Acting Assistant Commissioner Antill approved the selection of the four officers for promotion to the rank of Inspector, their deployment was a matter for Chief Superintendent Bird, the Officer-in-Charge of Personnel Division.

The statement then contains the following paragraph:-

"Before proceeding to a detailed submission with respect to each selectee and appellant I submit that as there have been a number of irregularities discovered in the processing of these applications particularly the selection of Station Sergeant A.J. DAU and the incorrect advice to a potential applicant (Station Sergeant W.T. KIRK) that he was not qualified by examination for promotion to the rank of Inspector it would be in the interests of natural justice to all concerned for the promotions to lapse. Each vacancy at the rank of Inspector has in fact been re-advertised."

There follows in the statement comments upon those selected for promotion and the appellants. The comments are in each case preceded by a sub-heading showing the name and rank of the officer selected and the relevant vacancy reference. In relation to Station Sergeant Cox the following statement appears:-

"COX was an applicant for vacancy 162/81. He has passed the pre-requisite examination. He was appointed to the Australian Federal Police pursuant to Section 72 of the Australian Federal Police Act 1979 at the rank of Station Sergeant having been promoted to the rank of Sergeant First Class in the former ACT Police on 25.4.79. COX has since his selection withdrawn his application for this vacancy and his promotion whether recommended or not following the hearings of the appeals will not therefore take place."

The reference to Station Sergeant Cox having withdrawn his application for the vacancy is a reference to a minute dated 13 May 1982 which Station Sergeant Cox forwarded to the Chief Superintendent of the A.C.T. Division of the Australian Federal Police. The minute, under the heading "Withdrawal of Application for Vacancy Reference Number 162/81", read:-

"In November, 1981 I submitted an application for a vacancy to the rank of Inspector, Southern Division. Vacancy reference 162/81 refers. I hereby withdraw that application. "Forwarded for information of the Chief Superintendent, Personnel Division."

The minute was forwarded to the Chief Superintendent, Personnel Division. The withdrawal was the subject of discussion between Station Sergeant Cox and senior officers including Chief Superintendent Bird. The effect of those discussions was to clarify that Station Sergeant Cox was still an applicant for promotion to the rank of Inspector at other locations but did not wish to take up a position in Southern Division.

Reference should also be made to the re-advertisement of the vacancies in the rank of Inspector referred to in the Commissioner's statement dated 1 November 1982 to the Promotion Appeals Board. The Australian Federal Police Gazette of 3 June 1982 included nine separate advertisements each being for promotion or transfer to the rank of Inspector. Each advertisement referred to a particular position identified by a number within a specified Division or, in the case of an overseas post, a specified country, as being the position for which applications for promotion or transfer were canvassed. In each case the advertisement contained a sentence as follows:-

"Applicants should note that the location of the vacancy may vary subject to the suitability of members holding the substantive rank to fill the vacancy."

This somewhat inappropriate language appears to have been intended to direct an applicant's attention to the fact that, should an officer holding the substantive rank of Inspector be transferred to the advertised position, the Commissioner might proceed, without further advertisement, to select one of the applicants for the consequential vacancy wherever the location of that vacancy might be. This approach seems to me to be at variance with the apparent intention of those authorising the advertisements that in considering promotion or transfer to the rank of Inspector consideration should be given to the requirements for the efficient carrying out of the duties of a particular position rather than to general criteria appropriate to the rank of Inspector.

The matter came before the Promotion Appeals Board on 15 November 1982. The members of the Board are the first respondents herein. The Board, in the absence of any of the parties, had a short discussion concerning the effect of the withdrawal by Station Sergeant Cox of his application for a vacancy in Southern Division and the fact that he had not lodged an appeal against any of the other officers selected for promotion to the rank of Inspector. The Board decided to hear Station Sergeant Cox on these matters and he, while agreeing that he had withdrawn his application for a vacancy in Southern Division and had not himself lodged any appeal, relied upon the fact that he was an applicant for other vacancies for which, he said, he was not considered by the Central Promotion Selection Committee. Station Sergeant Cox then left the room and shortly thereafter was again summoned before the Board. The Chairman of the Board informed Station Sergeant Cox that, the Board having considered the matter, was of the view that "it is not in a position to consider your evidence for promotion". There ensued some discussion whether Station Sergeant Cox had been informed of his selection for a vacancy in Southern Division and Station Sergeant Cox then left the room. The Board then decided, after some further short discussion, not to make any recommendation to the Acting Commissioner of Police in respect of the selection for promotion of Station Sergeant Cox.

The applicant then applied to this Court under the Administrative Decisions (Judicial Review) Act 1977 to review the conduct of the members of the Promotion Appeals Board. The application was amended in consequence of an order made on a directions hearing and was again amended during the course of the hearing before me.

As neither Station Sergeant Pearson nor Senior Sergeant Westwood were named as parties to the application, I directed during the course of the hearing that they be given notice of the proceedings and the matter was adjourned so that they might have an opportunity to consider whether they wished to take any part therein. In the result neither of them appeared and the matter proceeded accordingly.

The applicant seeks an order directing the Promotion Appeals Board to hear and determine the appeals lodged against the applicant's selection for promotion to the rank of Inspector. Counsel for the applicant submitted that the Board had failed to carry out its duty to make full inquiries into the claims of the applicant and to determine the appeals and make appropriate recommendations to the Commissioner. It was submitted that the Board had breached the rules of natural justice and had failed to comply with regulation 30 and sub-regulation 31(d) of the Australian Federal Police Regulations. Regulation 30 entitles a party to an appeal to appear in person before the Board, to address the Board and to submit any document that the party considers relevant to the appeal. Sub-regulation 31(d) obliges the Board, for the purpose of determining an appeal in relation to a proposed promotion to a rank, to make full enquiries into the claims of each party to the appeal.

In essence the argument for the applicant is that the matter for determination by the Promotion Appeals Board is whether the applicant or one of the appellants is, in terms of section 36 of the Australian Federal Police Act 1979, the member to be preferred in terms of relative efficiency or, if it should become relevant, relative seniority for selection for promotion to the rank of Inspector and that that question is to be approached independently of the location at which the member preferred may be required to serve. In particular it was submitted that the circumstance that the applicant had withdrawn his application for a vacancy in Southern Division was of no significance in relation to the proceedings before the Board.

The primary submission put by counsel for the Commissioner was simple - perhaps disarmingly so. He argued that what the applicant had done - and done in compliance with the notification of 5 November 1981 when properly construed - was to submit three separate applications for identifiable positions as Inspector; that he was unsuccessful in obtaining selection for promotion on two of the applications and had not lodged any appeal against the successful candidates; and that the application in relation to which he had been successful in obtaining selection had been subsequently withdrawn by him. The consequence was, so it was submitted, that the Promotion Appeals Board had no relevant matter before it for hearing and that in those circumstances the applicant has not established that he is entitled to relief.

In determining what was the duty of the Promotion Appeals Board in relation to this matter it is necessary to recall that its function, so far as relevant, was in terms of regulation 19 of the Australian Federal Police Regulations to hear and determine appeals instituted under regulation 26 and to make recommendations to the Commissioner in respect of those appeals. By virtue of regulation 26 a member who submitted an application for promotion to a vacancy under sub-regulation 15(1) or (2) and is aggrieved by the decision of the Commissioner "to select another member for promotion to the vacancy" may appeal to the Board from the decision of the Commissioner. Sub-regulations 15(1) and (2) postulate a vacancy occurring, or being expected to occur, in a commissioned rank and regulation 17 requires the Commissioner, having selected a member for promotion to a vacancy in a rank under regulation 16, to cause a notice of his decision to be published in the Australian Federal Police Gazette, that notice to state the name and rank of the member selected and the rank for promotion to which he has been selected. The requirement for notification of such decisions by the Commissioner is, no doubt, to enable members of the Australian Federal Police to know what selections for promotion have been made so that they may consider whether they wish to exercise the right of appeal which the regulations provide.

The appeals lodged by Station Sergeant Pearson and Senior Sergeant Westwood were against the decisions of the Commissioner notified in the Australian Federal Police Gazette of 28 January 1982. The text of that notification leaves me in no doubt that a member of the Australian Federal Police reading it would glean only that decisions had been taken that the four named officers had been selected for promotion to the rank of Inspector; he would not glean that decisions had been taken to select each of the four named officers for promotion to an identifiable position of Inspector within a particular Division located at a particular place. This would be so, so it seems to me, notwithstanding that the notification of 28 January 1982 refers to the officers as having been selected for promotion to the rank of Inspector "as advertised in the Australian Federal Police Gazette No. 23/81 dated 5 November 1981". One reason why this is so is that that advertisement mentioned six vacancies whereas only four officers were selected. Further, the notification provided no means by which one could identify the particular vacancy for which the named members had been selected.

The Act, it may be observed, does not use the word "vacancy" except in relation to the offices of Commissioner and Deputy Commissioner (see sub-section 18(1)) and then only in relation to the appointment of a person to act for a limited period in such an office. The appointment, promotion or transfer of a commissioned officer in a component of the Australian Federal Police is not expressed to depend upon the existence or expectation of a vacancy (see sub-section 25(1)). The power to appoint, promote or transfer is not limited otherwise than by the requirement, to be implied from section 24, that the number of persons appointed to each rank should not exceed the number determined by the Minister under that section. Even that limitation may not be absolute - see section 35. The references in the regulations to vacancies are consistent with this approach for those references are to vacancies occurring in a rank and not in an identifiable position. Had the contrary been intended, one would have expected to find in the legislation provisions for the creation and abolition of positions, for the specification of qualifications for, and the duties of, such positions and for the selection and promotion of officers to be by reference to criteria appropriate to the duties of the position to be filled. In this regard I would contrast the criteria which are specified in section 36 to which I have already referred.

The crucial question, so it seems to me, is to identify the issue which was committed to the consideration of the Promotion Appeals Board by virtue of the events which have occurred. In my view only one answer to that question is open on the material before me. I have already expressed the view that the notification appearing in the Australian Federal Police Gazette of 28 January 1982 was of a decision selecting Station Sergeant Cox and three other named members of the Australian Federal Police for promotion to the rank of Inspector. This is consistent with the approach taken by the Central Promotion Selection Committee. That Committee approached its task by first considering which of the members who had indicated by responding to the invitation to apply that they were "available for promotion" within the meaning of section 36 of the Act were suitable for appointment to the rank of Inspector and only after deciding that the four named members, listed in order of merit, were so suitable did it approach the task of considering to what Divisions or at what locations those members should serve. The view I have taken is also consistent with what was done by Acting Assisstant Commissioner Antill. To this may be added the circumstances that final decisions concerning deployment could only be taken after the appeal process, if invoked, had been satisfied and promotions to the rank of Inspector made under section 25 of the Act. Taking all these matters into account I am satisfied that the issue which was committed to the Promotion Appeals Board was the issue whether either of the appellants, in terms of section 36 and regulation 32, had a better claim to promotion to the rank of Inspector than Station Sergeant Cox and, if both appellants had a better claim to promotion, which of them was to be preferred.

It was submitted by counselk for the Commissioner that to reach such a conclusion would have the effect of relieving the applicant of the consequences of his having withdrawn his application for vacancy in Southern Division. The position would seem to be that, assuming the Promotion Appeals Board concludes that Station Sergeant Cox is to be preferred to the appellants for promotion to the rank of Inspector and so recommends and on the further assumption that that recommendation is acted upon and Station Sergeant Cox is promoted to the rank, the question would remain what duties he would be required to perform and at what location. Those are matters within the province of the Commissioner and his decisions thereon are not reviewable by the Promotion Appeals Board nor, as was held in Sellars v. Woods (1982) 45 A.L.R. 113, by this Court under the Administrative Decisions (Judicial Review) Act 1977. The consequence may be that Station Sergeant Cox will, if promoted, be directed to take up duty in the Southern Division and, if so directed, he will be bound to do so. If this turns out to be the position it may be said that the applicant is being treated as though he had not withdrawn his application for a vacancy in Southern Division. But even if that be correct it provides, in my view, no reason to reach a different conclusion from the one expressed above.

The circumstances that have given rise to these proceedings seem to me to have stemmed from a desire to operate a system for the promotion of members of the Australian Federal Police varying in some respects from that which the Act and regulations, on their proper construction, require. By virtue of section 36 of the Act the process of selecting a member for promotion to a rank is to embrace the members "available for promotion". The view may be taken that this requirement is satisfied only if consideration is given to the relative merits of all those members who are competent and qualified to hold the rank for which the selection is to be made. The regulations, however, are based on a different view - a view that the only members "available for promotion" are those who apply for promotion in response to a notice published in the Australian Federal Police Gazette under regulation 15. But, as previously mentioned, the regulations speak of a vacancy in a rank and not to a specified vacancy in a Division or at a particular location. It is unnecessary for present purposes to express a view on the question whether the regulations are inconsistent with the Act and, as the matter was not argued before me, it is undesirable to do so. But it would seem to me that, if what is desired is a system of promotion whereby applications are canvassed for promotion to a particular identified position in a Division or at a location and the selection process is carried out by reference to criteria referable to the duties of that position and only those members are considered who apply for that position, some amendment of the legislative provisions is necessary. It seems to me that it is only in relation to such a system that one can conlude that the withdrawal of an application - as was done by Station Sergeant Cox - can result in there being no relevant matter for the Promotion Appeals Board to consider.

I should add that some other aspects of the Act and regulations were debated during the hearing but I have not found it necessary to consider those matters or form a definitive opinion upon them.

In my opinion the matter that was before the Promotion Appeals Board was the consideration of appeals lodged against the decision of the Commissioner as notified on 28 January 1982 that Station Sergeant Cox had been selected for promotion to the rank of Inspector. It was, therefore, the duty of the Board to make full enquiries into the claims of each party, to satisfy itself which of the members concerned has the better claim to promotion to the rank of Inspector and to make a recommendation to the Commissioner pursuant to regulation 32 of the regulations. It is clear that the Promotion Appeals Board has not addressed that issue.

It was also submitted that the Court, in the exercise of its discretion, should refuse to grant the applicant the relief to which the above findings would otherwise entitle him. It was said that the matter had proceeded on the basis that the notice of 5 November 1981 called for applications for identifiable positions of Inspector, that the applicant applied for some of those positions and that, in relation to those applications, one position had been filled by the transfer of a member already holding the substantive rank giving the applicant no right of appeal, the consequential position could not be filled because, in the result, there was no vacancy and, as to the third position, the applicant had withdrawn his application. I have also considered whether relief should be denied having regard to the circumstance that the vacancies in the rank of Inspector were re-advertised on 3 June 1982 and that the applicant's claim for selection for promotion to that rank can be considered in consequence of that re-advertisement. In the result I have concluded that these matters do not provide a sufficient basis for the Court declining to grant the applicant the relief to which he would otherwise be entitled.

Before parting with the matter I should advert to the Court's jurisdiction to entertain the application to review the conduct of the Promotion Appeals Board in failing to proceed with the hearing of the appeals lodged against the applicant's selection for promotion. No objection was raised as to the Court's jurisdiction but, after reserving judgment, I requested the parties to consider whether certain provisions in the Act and regulations warranted the conclusion that the Court lacked jurisdiction. The first of these is the provision in regulation 19 that the function of the Promotion Appeals Board, having heard and determined an appeal instituted under regulation 26, is to make a recommendation to the Commissioner in respect of the appeal. The second is the provision in sub-section 25(1) of the Act that the power of making appointments and promotions to commissioned rank in the Australian Federal Police is vested in the Governor-General, on the recommendation of the Commissioner, or in the Commissioner if he is so authorised in writing by the Governor-General.

I have had the benefit of considering written submissions from the parties on these questions and I am satisfied that the Court has jurisdiction. Section 6 of the Administrative Decisions (Judicial Review) Act 1977 enables the Court to review conduct engaged in "for the purpose of making a decision to which this Act applies". The expression "decision to which this Act applies" is defined in sub-section 3(1) to mean a decision of an administrative character made, proposed to be made, or required to be made, under an enactment, other than a decision by the Governor-General or a decision included in any of the classes of decisions set out in Schedule 1 to the Act. "Enactment" as defined clearly includes the Australian Federal Police Act 1979 and the Australian Federal Police Regulations.

Although the Promotion Appeals Board can make no decision to promote any member and can only recommend that a member be promoted, it is bound before making any such recommendation to hear and determine the appeal and either allow or dismiss it (see regulations 19, 28, 29, 30, 31 and 32). A determination to allow or dismiss an appeal is an ultimate or operative determination (Director-General of Social Services v. Chaney (1980) 31 A.L.R. 571 at p. 590; Riordan v. Parole Board of the Australian Capital Territory (1981) 34 A.L.R. 322) and, therefore, a "decision" within the meaning of that expression in the Administrative Decisions (Judicial Review) Act 1977. Such a decision is clearly one of an administrative character made under an enactment. On this view of the matter it is unnecessary to rely on sub-section 3(3) of the Administrative Decisions (Judicial Review) Act 1977 which provides:-

"Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall itself be deemed, for the purposes of this Act, to be the making of a decision."

But it should be noticed that the decision in Gourgaud v. Lawton (1982) 42 A.L.R. 117 is clearly distinguishable as the Australian Federal Police Regulations contain a provision for the making of the recommendation, a provision that was absent from the legislation then under consideration.

For these reasons I am of the opinion that a Promotion Appeals Board constituted in accordance with sub-section 20(4) of the Australian Federal Police Regulations should hear and determine according to law the appeals lodged against the selection for promotion to the rank of Inspector of Station Sergeant Cox as notified in the Australian Federal Police Gazette of 28 January 1982 and I so order. The second respondent must pay the applicant's costs.