Excell, Valma Irene v Harris, Lyell James
[1983] FCA 279
•18 OCTOBER 1983
Re: VALMA IRENE EXCELL
And: LYALL JAMES HARRIS, RONALD ALLAN PAGE AND SUSAN MARY HUDSON
And: JOHN FRANCIS MORROW, SUSAN RUSSELL AND JAMES AIKMAN STODDARD
And: GREGORY ARTHUR HANCOCK
And: AUSTRALIAN CAPITAL TERRITORY SCHOOLS AUTHORITY
And: MAX JOHN WOODWARD
And: ROSEMARY WALSH
No. ACT G28 of 1983
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.
CATCHWORDS
Administrative Law - Judicial Review - Commonwealth Teaching Service - Australian Capital Territory Schools component - Extension of time to institute proceedings - Recommendation by Advisory Selection Panel that officer perform temporarily duties of an office of higher classification - Whether a decision subject of review - Instrument (including rules, regulation or by-laws) under an Act - Whether Personnel Policy and Procedures Manual such an instrument - Decision that officer perform temporarily duties of an office of higher classification - Whether officer had power to make that decision - Relevant matters to be taken into consideration in selecting officer for temporary transfer - Whether a promotion or transfer within s. 27 of the Commonwealth Teaching Service Act 1972 - Whether appeal to Promotions Appeal Board open - Whether Promotions Appeal Board observed rules of natural justice - Dicretion whether to grant relief.
Administrative Decisions (Judicial Review) Act 1977
Commonwealth Teaching Service Act 1972
Schools Authority Ordinance 1976
Commonwealth Functions (Statutes Review) Act 1981 Part VIII
HEARING
CANBERRA
#DATE 18:10:1983
ORDER
1. The time within which to institute these proceedings be extended up to and including 22 June 1983.
2. The application be dismissed.
3. The fourth respondent pay the costs of the applicant and of the sixth respondent of and incidental to this application.
JUDGE1
The applicant, Mrs. Valma Irene Excell, seeks orders of review under the Administrative Decisions (Judicial Review) Act 1977 in relation to the selection of the sixth respondent, Mrs. Rosemary Walsh, to perform temporarily the duties of a position of Senior Teacher (Counselling) in the Guidance and Counselling Section of the Schools Branch of the Australian Capital Territory Schools Authority and the decision of a Promotions Appeal Board not to uphold the appeal lodged by Mrs. Excell against such selection.
The first respondents, Lyell James Harris, Ronald Allan Page and Susan Mary Hudson, are the members of the Advisory Selection Panel which recommended that Mrs. Walsh temporarily perform the duties of the position. The second respondents, John Francis Morrow, Susan Russell and James Aikman Stoddard, are the members of the Promotions Appeal Board. The third respondent, Gregory Arthur Hancock is the Chief Education Officer of the Australian Capital Territory Schools Authority which is the fourth respondent. The fifth respondent, Max John Woodward, is the officer of the Australian Capital Territory Schools Authority who signed the instrument directing Mrs. Walsh to perform the duties of the position.
The relevant legislative provisions.
The subject position is one within the Commonwealth Teaching Service. Section 19 of the Commonwealth Teaching Service Act 1972, a section which in its present form was enacted by the Commonwealth Functions (Statutes Review) Act 1981 (see Part VIII), provides that the Commonwealth Teaching Service ("the Service") established and in force immediately before the commencement of that section is continued in existence for all purposes. The date of commencement of the section was 10 August 1981 (see Commonwealth of Australia Gazette 1981, No. S 161. The service is divided into four components (sub-section 19(3)). For present purposes it is only necessary to refer to one of those components, namely the Australian Capital Territory Schools component. That component consists of officers holding positions in the Service established in that component and temporary employees engaged for the purpose of performing services in relation to that component (sub-section 19(4)). For the purposes of the Act, the relevant authority in relation to that component is the person for the time being holding, or performing the duties of, the office of Chief Education Officer of the Australian Capital Territory Schools Authority (sub-section 19(5)).
The Australian Capital Territory Schools Authority ("the Authority") is established by the Schools Authority Ordinance 1976 of the Australian Capital Territory. Its functions are to establish and conduct in the Territory, on behalf of the Commonwealth, pre-schools, primary schools, high schools, secondary colleges, such other educational services as the Minister approves and such educational or related services as the Minister directs (sub-section 6(1)). Section 19 of the Ordinance provides that there shall be a Chief Education Officer who is to be appointed by the Governor-General. Subject to the general direction of the Authority, the Chief Education Officer's function is to manage the Authority's affairs (section 21).
The object of the Commonwealth Teaching Service Act 1972, as expressed in section 6, is to provide for the employment of persons who are to be made available for the performance of teaching duties in Commonwealth schools and certain other schools. A "Commonwealth school" means a school conducted by the Commonwealth or by the Administrator of a Territory of the Commonwealth or by a prescribed authority (sub-section 4(1)).
Provision is made for the creation of positions in a component of the Service and for the abolition of such positions, the Public Service Board being authorised to determine the salary, or the range of salary, to be applicable to each position (section 25).
Sections 20 and 23 authorise the relevant authority in relation to a component of the Service, on behalf of the Commonwealth, to appoint officers and to engage persons as temporary employees in that component. Officers appointed, and persons engaged as temporary employees, by a relevant authority are to perform duties as directed by that relevant authority (sub-sections 20(7) and 23(7)). Officers hold office and temporary employees are employed on such terms and conditions as the Public Service Board determines (sub-sections 20(4) and 23(4)). Prior to the amendments effected by the Commonwealth Functions (Statutes Review) Act 1981, the terms and conditions of officers and temporary employees of the Service were those determined by the Commonwealth Teaching Service Commissioner (a position abolished by the amendments then made) with the approval of the Public Service Board. Section 176 of the Commonwealth Functions (Statutes Review) Act 1981, a section which also commenced on 10 August 1981, provides that, notwithstanding the amendments made by that Act, any determination made by the Commonwealth Teaching Service Commissioner and in force immediately before the commencement of the section continues in force as if it were a determination made by the person or authority having power to make such a determination under the Commonwealth Teaching Service Act 1972 as amended.
Sections 27, 28, 29 and 30 of the Commonwealth Teaching Service Act 1972 provide:-
"27. (1) The relevant authority may appoint a person as an officer, or transfer or promote an officer, to fill a vacant position in the Service.
(2) Where the relevant authority has determined that a position, or every position included in a class of positions, in the Service is to be filled only by an officer who possesses qualifications specified in the determination, a person shall not be appointed as an officer, or an officer shall not be transferred or promoted, to fill that position, or a position included in that class of positions, as the case may be, unless he possesses those qualifications.
"28. (1) In the selection of an officer for promotion to a vacant position, consideration shall be given first to the relative efficiency of the officers available for promotion and, in the event of equality of efficiency of two or more officers, then to the relative seniority of those officers.
(2) For the purposes of this section -
(a) 'efficiency' means special qualifications and aptitude for the discharge of duties of the kinds required to be performed by the officer filling the position concerned, together with merit, diligence and good conduct, and, in the case of an officer who has at any time been engaged on war service, includes such efficiency as, in the opinion of the relevant authority, the officer would have attained but for his absence on war service;
(b) 'war service' includes 'Defence service' as defined by sub-section (1) of section 6 of the Defence (Re-establishment) Act 1965-1968; and
(c) the seniority of officers shall be determined as prescribed.
"29. (1) The promotion of an officer to a vacant position -
(a) is provisional and without increased salary pending confirmation of the promotion;
(b) shall be made known to the officers as prescribed; and
(c) is subject to appeal as provided by this section.
(2) An officer who considers that he should have been promoted to a vacant position in preference to the officer provisionally promoted may appeal, as prescribed, against the provisional promotion on the ground of superior efficiency or of equal efficiency and seniority.
(3) Upon an appeal or appeals being made against a provisional promotion, a Promotions Appeal Board specified by the relevant authority shall make full inquiry into the claims of the appellant or appellants and the claims of the officer provisionally promoted and determine the appeal or appeals.
(4) Where an appeal is allowed, the relevant authority shall cancel the provisional promotion and promote the appellant to the vacant position.
(5) Where, in respect of a provisional promotion, no appeal is duly made or an appeal has, or appeals have, been duly made but the appeal, or each of the appeals, has been disallowed or has become inoperative, the relevant authority shall confirm the provisional promotion.
(6) If, after notification has been made of a provisional promotion to a vacant position but before the promotion has been confirmed, the relevant authority is satisfied that the position is unnecessary or can be filled by the transfer of an excess officer, or that the notification or further notification of the vacancy in the position is desirable, the relevant authority may cancel the provisional promotion.
(7) The relevant authority may cancel a provisional promotion in accordance with the last preceding sub-section whether or not there has been an appeal against the provisional promotion, and, where the relevant authority so cancels a provisional promotion, any appeal proceedings in respect of the promotion shall be discontinued.
(8) For the purpose of this section, an appeal shall be taken to become inoperative if -
(a) the appeal is withdrawn;
(b) the appellant ceases to be an officer; or
(c) the appellant ceases, by reason of the confirmation of his promotion to another position or for any other reason, to be eligible for promotion to the position concerned.
"30. (1) For the purposes of this Division, the relevant authority shall, from time to time, arrange for the constitution of such Promotions Appeal Boards as are required.
(2) A Promotions Appeal Board shall consist of -
(a) a Chairman appointed by the Minister;
(b) an officer appointed by the relevant authority; and
(c) an officer elected, as prescribed, by the officers of the Service.
(3) The Chairman of a Promotions Appeal Board shall be paid such remuneration as is determined by the Remuneration Tribunal.
(3A) The Chairman of a Promotions Appeal Board shall be paid such allowances as are prescribed.
(3B) Sub-sections (3) and (3A) have effect subject to the Remuneration Tribunals Act 1973-1975.
(3C) The Chairman of a Promotions Appeal Board holds office on such terms and conditions, other than terms and conditions relating to remuneration and allowances, as the Minister determines.
(4) The officers' representative on a Promotions Appeal Board holds office for such period as is prescribed, but is eligible for re-election.
(5) The officers of the Service may, as prescribed, elect an officer of the Service as a deputy of the officers' representative on a Promotions Appeal Board and the deputy so elected holds office for such period as is prescribed, but is eligible for re-election.
(6) A deputy so elected may, in the event of there being a vacancy in the office of officers' representative or of the officers' representative being absent (whether through illness or otherwise), attend and vote at meetings of the Promotions Appeal Board and, when so attending and voting at a meeting, shall, for the purposes of sub-section (9), be deemed to be a member of the Promotions Appeal Board in lieu of the officers' representative.
(7) A member of a Promotions Appeal Board shall, before commencing to perform his duties as a member of that Board, make and subscribe an oath or affirmation in accordance with the form of oath or affirmation in the Third Schedule.
(8) An oath or affirmation under the last preceding sub-section shall be made and subscribed -
(a) in the case of an oath or affirmation by the Chairman - before the relevant authority, a person appointed by the relevant authority or a justice of the peace; and
(b) in any other case - before the Chairman.
(9) Where, at a meeting of a Promotions Appeal Board, the members are divided in opinion on a question, that question shall be decided according to the decision of the majority.
(10) In this section, 'officers' representative' means the elected officer referred to in paragraph (c) of sub-section (2)."
The text of section 30 set out above does not incorporate the amendments made to it by section 166 of the Commonwealth Functions (Statutes Review) Act 1981 as those amendments did not come into force until 1 July 1983 (see Commonwealth of Australia Gazette 1983, No. S 129) and this application is concerned with events occurring before that date.
There is in evidence before me a composite document comprising such of the determinations of terms and conditions made by the Commonwealth Teaching Service Commissioner as were continued in force by section 176 of the Commonwealth Functions (Statutes Review) Act 1981 as amended by determinations of the Public Service Board under sub-sections 20(4) and 23(4) of the Commonwealth Teaching Service Act 1972. Although not an accurate description I shall, for convenience, refer to this composite document as "Determination No. 44 of 1976". The document is divided into sections, the subject matters dealt with being sufficiently indicated by the section headings which are:-
Section 1 - Appointment and engagement, salary and status, recognition of prior service, probation
Section 2 - Leave
Section 3 - Transfer and removal costs
Section 4 - Allowances
Section 5 - Transfers
Section 6 - Part-time and casual relief teachers
Section 7 - Separation from the Service
Section 8 - Reliqua
Section 9 - Salaries and rates of pay.
Within section 4, Division I deals with higher duties allowance. Sub-clauses 4.I.1.1 and 4.I.1.2 provide:-
"4.I.1.1 When it is necessary to make provision for the temporary performance of the whole or part of the duties of an office (whether vacant or not) within a Territory or State, by an officer who occupies another office of lower classification, selection shall be made on the following basis:
(a) in the case of selection for a period exceeding six continuous calendar months, the most efficient available officer or, where the Chief Officer is unable to distinguish between two or more available officers on the grounds of efficiency, the most senior officer;
(b) in the case of selection for a period of less than a continuous period of six calendar months:
(i) the most efficient officer in the school or unit in which the office is located; or
(ii) if no officer is available within the school or unit the most efficient available officer.
"4.I.1.2 For the purposes of sub-section 4.I.1.1 'efficiency' means special qualifications and aptitude for the discharge of duties of the kinds required to be performed by the officer filling the position concerned, together with merit, diligence and good conduct, and, in the case of an officer who has at any time been engaged on war service, includes such efficiency as, in the opinion of the Commissioner, the officer would have attained but for his absence on war service."
The expression "Chief Officer" is defined to mean:-
"the Chief Education Officer of the A.C.T. Schools Authority, the Director of the Office of A.C.T. Further Education, the Chief Officer of another Australian Government organisation to whom members have been made available, or an officer or a person to whom a delegation has been given in accordance with Section 17 of the Commonwealth Teaching Service Act."
Clauses 4.I.3, 4.I.4 and 4.I.5 should be set out in full. They provide:-
"4.I.3 Approval
4.I.3.1 Approval for the payment of higher duties allowance will be decided by the Chief Officer concerned.
"4.I.4 Rates
4.I.4.1 The basis for the payment of higher duties allowance is that where the officer is required to perform the whole of the duties of a higher position, he shall be granted an allowance to raise his salary to the level payable in respect of the minimum of the scale of rates of salary for the higher position.
"4.I.5 Appeals Against Higher Duties
4.I.5.1 Where an officer is selected in accordance with 4.I.1.1(a) above, the selection of the officer is subject to appeal, by officers who are available and occupy an office of lower classification than the office to which an officer has been directed to perform higher duties. The provisions of Sections 28-30 inclusive of the Act apply to the appeal as if the appeal were an appeal made under Section 29(2).
4.I.5.2 The transfer of an officer from a prescribed date to a position which attracts a higher duties allowance shall be made known to officers by publication of a notification of the transfer in the Gazette.
4.I.5.3 An appeal against the transfer of an officer to a position which attracts a higher duties allowance shall be made by letter or telegram delivered to an office of the Commissioner within the period that commences on the date on which notification of the transfer is published in the Gazette and ends at the close of business of that office on the twenty-first day after that date. Such a letter or telegram shall state whether the appeal is on the ground of superior efficiency or on the ground of equal efficiency and seniority."
Section 176 of the Commonwealth Functions (Statutes Review) Act 1981 appears to require that the references in subclauses 4.I.1.2 and 4.I.5.3 to the Commissioner be read as references to the Public Service Board unless a contrary intention appears. Nothing, however, turns on this in the present case.
It also appears from Determination No. 44 of 1976 that the classifications of positions within the Service include the classifications Band 1, Band 2, Band 3 and Band 4, the Band 1 positions being the lowest and the Band 4 positions the highest in status and salary. Members of the Service are also, for status purposes, considered as belonging to one of three categories, known as Category A, Category B and Category C depending on such matters as the courses of study or training successfully undertaken and the number of years of full-time teaching service completed. Those categories have no relevance in the present application. Within Band 1 the salary payable to a member included in the Australian Capital Territory Schools component depends upon the category into which the member falls and the length of his or her service. Within Band 2 the salary payable to such a member depends upon whether the position is at the primary or the secondary school level, the latter attracting a higher rate of salary.
The facts.
At the time of the events with which this appeal is concerned the applicant was an officer of the Service holding substantively a position at Band 1 level and was in all respects qualified to hold a position at Band 2 level. Indeed, she was at the time of making the application to which I shall refer temporarily performing the duties of a position at Band 2 (Primary) level, a situation which was then expected to continue only until 31 December 1982.
The Authority periodically publishes a Schools Bulletin. In the issue dated 18 November 1982, under the heading "Staff Notices - Commonwealth Teaching Service" and the sub-heading "Temporary Vacancies", positions were advertised as being available "on temporary transfer or temporary transfer on higher duties allowance for the period specified". The relevant part of the advertisement was as follows:-
"GUIDANCE AND COUNSELLING
PN2765 Senior Teacher (Counselling), Band 2 Secondary, Guidance and Counselling. - 1.2.83 to 16.12.83
Duties: Accept responsibilities for professional support services to field counsellors working in the region. Co-ordinate the implementation of projects and strategies which will meet the assessed needs."
For administrative purposes positions within the Australian Capital Territory Schools component of the Commonwealth Teaching Service are given an identifying number. In the case of the position now in question the identifying number is 2765. That position had become vacant when the previous occupant of it retired. The duties of the position were then significantly different from those that were approved for the position by Mr. Woodward, the fifth respondent, on 10 November 1982. The revised duties arose from a review of the Guidance and Counselling Section of the Authority. Under the new arrangements the Guidance and Counselling Section has at its head a Principal Guidance Officer classified at the Band 4 level. Below that position are positions of Assistant Principal Guidance Officer (Band 3), only one of which is relevant for present purposes. Under the relevant Assistant Principal Guidance Officer are a number of positions classified respectively at Band 2 and Band 1 levels. Officers carrying out the duties of the Band 2 positions are generally referred to as senior teachers or senior counsellors, those carrying out the duties of the Band 1 positions as field or school based counsellors. The position identified as Position No. 2765 is one of the Band 2 senior counsellor positions.
The function of each of the Band 1 counsellors is to provide a counselling service within the school in the Australian Capital Territory to which that Counsellor is assigned. The counsellor's task is to deal with individual cases of children experiencing difficulty, consulting with parents and teachers as necessary, and, in relation to problems identified as of a recurring nature, to devise programmes that might be applied generally within the school to deal with that problem. The function of the senior teachers or senior counsellors (Band 2) is to provide supervision of a number of Band 1 counsellors, consulting with them concerning their work and the procedures being followed and suggesting courses of action they might follow in dealing with particular problems. The position identified as Position No. 2765 has the additional role, extending over the school system in a region within the Australian Capital Territory, of identifying and assessing needs within the schools in the region and co-ordinating and implementing projects and strategies to meet those assessed needs. An important aspect of that role is to seek to implement into other schools, where appropriate, projects and strategies that had been successfully established within a particular school.
There was much discussion during the hearing of the duty statement for that position, a copy of which came into the applicant's possession shortly after the advertisement appeared in the Schools Bulletin. It is, therefore, desirable to set out in full the duties of the position as specified in that document. They are as follows:-
"1. Responsible to an APGO (Specialist and Clinics) for professional support to field counsellors working in the region.
2. Assess specific educational and psychological needs in Schools in a region.
3. Co-ordinate the implementation of projects and strategies which will meet with the assessed needs; interventions will usually be of a preventive nature.
4. Work with teams of field counsellors in implementing those projects.
5. Assist in procuring and developing appropriate resources necessary for meeting guidance needs in the region.
6. Assist in the preventive function of the Education Clinic Services.
7. Provide a field counselling service to schools in the region as determined by the APGO (Regions).
8. Other appropriate duties as required."
The abbreviation "APGO" refers to an Assistant Principal Guidance Officer in the Authority.
The applicant on 9 December 1982 lodged an application for transfer on higher duties allowance to the above position. She completed a printed application form which contained the following:-
"A written statement may be provided in support of your application. Such statements should be written to the statement of duties. Duties are listed in order of importance, with emphasis on the first few duties. Claims made should be verified."
Attached to the printed application form completed by the applicant were a lengthy statement in support and copies of supporting documents.
The application set out her personal particulars, details of teaching and counselling experience and her academic and other qualifications. It then discussed, by reference to the duties as set out in the duty statement, the applicant's appreciation of the requirements of the position, relating her qualifications and experience to those requirements. She thus sought to demonstrate that she was well fitted for the position. A list of referees was attached as were referee reports.
An Advisory Selection Panel to consider the applications for temporary transfer to the subject position was convened by Lyell James Harris, an officer of the Service whose duties at the time included acting as chairman of Advisory Selection Panels for positions in the Service. The panel comprised Mr. Harris, Ronald Allan Page who was at the time the Principal Guidance Officer in charge of the Guidance and Counselling Section of the Authority and Susan Mary Hudson, the nominee of the A.C.T. Teachers' Federation. It met on 13 December 1982. Its role was to consider the written applications for the position, to speak with referees if that were considered appropriate and, after making such enquiries as it thought fit, to place the applicants in an order of priority in relation to their competence to perform the duties of the position. The role of the panel was purely advisory, its duty being fulfilled when it forwarded its recommendation to the Chief Education Officer of the Authority.
Each of the members of the Advisory Selection Panel gave evidence on affidavit and Ronald Allan Page also gave oral evidence.
The panel first considered the duty statement for the position and discussed the qualities which a person performing those duties should have. In this discussion the panel was guided by the nature of the position as described by Mr. Page, he being the head of the section within which the successful applicant would be required to work. I shall refer to this evidence in more detail later in these reasons.
The panel summarised the skills and personal qualities that would be required of the person carrying out the duties of the position in the advice which it tendered to the Chief Education Officer in the following terms:-
"The position calls for skills in needs analysis, forward planning, liaison, initiation and development of projects, evaluation and research. Personal qualities required would include self-confidence, communication ability, ability to lead and function in a team."
The panel had before it four applications, those of the applicant (Mrs. Excell) and the sixth respondent (Mrs. Walsh) and those of a Mrs. Ludovici and a Mr. Bogan.
The members of the panel then considered the applications submitted and prepared notes on each. The panel agreed on a tentative rating of the applicants. At that stage Mrs. Walsh and Mrs. Ludovici were considered more suitable than the other applicants. The panel then interviewed as a referee a person who had been named as such by those two applicants. Following that interview the panel agreed that Mrs. Walsh seemed to be the most suitable applicant. However, it was then decided that, before a decision was reached, each of the applicants should be interviewed and interviews were arranged for 16 December 1982.
Each interview lasted approximately 30 minutes and a summary of the interview was prepared. Mrs. Excell's account of what took place at her interview is set out in her affidavit. Her account, which I accept, is substantially in accord with that given by the members of the selection panel, any divergence being due to differences in recollection and emphasis. After being introduced to the other members of the panel by Mr. Page she was asked why she had applied for the position and what there was in her background that fitted her for it. Mrs. Excell was also asked what she saw as being the nature of the position, how she would go about assessing educational or psychological needs in schools and what types of projects she saw as important. She was asked about the area of the schools system in which she would prefer to work and the qualities she considered the successful applicant should have. She was also asked about the leadership role or leadership qualities required in the position. In relation to this Mrs. Excell says:-
"To this question I asked if I was accurate in my understanding that the Band 3 (Clinics and Projects Team) would be taking the leadership role. The panel said that my understanding was correct but that the Band 2 would have responsibilities for coordinating the field counsellors working on projects and for working side by side with the Band 3 and assuming many of the responsibilities. I said that I thought I was very capable of filling this role since I had previously very successfully held a Band 2 Higher Duties Acting position in counselling and was also currently in a Band 2 position. "Mr. Ronald Allan Page also said that he was anticipating a fair amount of conflict arising within counselling in 1983, particularly with the Band 3 officers and then he asked me how I would handle a conflict situation. I replied that during my employment history I had not had any previous incident of not having been able to work with colleagues."
After further questions relating to the opportunities which she saw for doing research in the subject position and how she saw the position developing in the future, the interview concluded with Mrs. Excell responding to an invitation to add anything that she wished to put before the panel.
Following the interview the panel resumed discussion on the suitability of the applicants. This discussion resulted in Mrs. Excell being moved up in the ranking and Mrs. Ludovici being moved down. The panel was unanimous in concluding that Mrs. Walsh was the most competent of the applicants for the position. The panel's recommendation, after setting out the skills and personal qualities required for the position in terms which I have already quoted, went on:-
"Ms Walsh's highly evaluated experience and the quality of her perception and communication and the confidence displayed at interview convinced the panel of her high suitability for the position. Ms Excell was also highly suitable for the position but lacks length of experience in leadership in a team position compared with Ms Walsh. The other two applicants have considerable relevant successful experience, but compared with the more favoured applicants have a less clear appreciation of the project concept and less developed research and evaluation skills. Ms. Walsh is recommended for the position."
The panel also prepared a summary of each of the interviews. That prepared in relation to the interview with Mrs. Excell reads:-
"Mrs Val Excell has had a broad experience in a number of teaching counselling and professional development roles. Her present position has provided her with a number of skills essential for project work particularly in the research and evaluation areas. She has a clear understanding of the demands of the position and may not have had sufficient experience working in such a leadership role. Mrs Excell is clearly committed to a preventive orientation with teachers and parents and has been involved in a variety of such projects. There was a little tentativeness in her responses to some panel questions."
The selection panel also prepared in respect of each of the four applicants for the position a document entitled "Attachment to Panel Advice". That in relation to Mrs. Excell reads -
"1. Mrs Excell demonstrates a breadth of experience as a classroom teacher, counsellor and consultant (profession development) 1971-3 Teacher 1975-6 School Counsellor 1977-8 Teacher 1979-80 Counsellor part 1981, 1982 Relief counselling, teaching 1982 Senior teacher HDA Prof. Development.
2. B.A., Dip Ed., NSW T.C., M.Ed. (incomplete, field study).
3. Variety of valuable experiences in assessing educational needs of teachers and students.
4. Involved in coordination of various courses, projects.
5. Valued as a supportive, cooperative team member.
6. Nearly a year as H.D.A. Band 2 experience - counselling and professional development experiences.
7. Capable of providing appropriate resources.
8. Involved in preventive programs - initiating, and implementing.
9. Demonstrated initiatives, and leadership qualities necessary for position as team leader - supported by referees. Mrs Excell has not had the length of experience in a leadership role as other applicants. While possessing a clairty of the demands of the position, presented less confidently than other applicants."
That document bears date 13 December 1982 but the evidence establishes that, although its preparation was commenced on that date, being the date when the selection panel first met, it was not completed until after the interviews had taken place on 16 December 1982.
The recommendation of the selection panel was sent to the Chief Education Officer of the Authority. It was accompanied by the summaries of interviews and "Attachment to Panel Advice" prepared in respect of each of the applicants.
The selection panel's recommendation and the documents accompanying it were received by the fifth respondent, Mr. Woodward, on 16 December 1982 and on the same day he, describing himself as the delegate of the Chief Education Officer of the Authority, approved the recommendation. That recommendation was for the temporary transfer on higher duties allowance of the sixth respondent, Mrs. Walsh, to the position No. 2765 for the period from 1 February 1983 to 16 December 1983.
The instrument of delegation upon which Mr. Woodward relied in approving the recommendation is not in evidence but I was informed, and it was not disputed by any party, that the instrument was, so far as material, in similar terms to an instrument of delegation dated 2 February 1983 signed by the third respondent, Gregory Arthur Hancock, the Chief Education Officer of the Authority. That instrument is in the following terms:-
"ACT SCHOOLS AUTHORITY
REVOCATION OF DELEGATIONS AND DELEGATION OF POWERS UNDER THE COMMONWEALTH TEACHING SERVICE ACT 1972, (as amended).
I, GREGORY ARTHUR HANCOCK, Chief Education Officer of the Australian Capital Territory Schools Authority, the relevant Authority within the meaning of Section 19(5)(a) of the Commonwealth Teaching Service Act 1972 (as amended), pursuant to my powers under Section 8(1) of the Commonwealth Teaching Service Act 1972 (as amended);
1. revoke the delegation of powers and functions made on the first day of March 1982.
2. Do HEREBY DELEGATE to those officers occupying or for the time being exercising and performing the duties of the offices listed on the attached schedules, my powers and functions under the Commonwealth Teaching Service Act 1972 (as amended).
3. Do HEREBY AUTHORISE those officers to exercise my powers under relevant sections of the Commonwealth Teaching Service Act 1972, (as amended) in relation to each of those powers shown in each of the items in the attached schedule.
DATED THIS SECOND DAY OF FEBRUARY 1983
(Signed) Greg Hancock.
G A HANCOCK CHIEF EDUCATION OFFICER ACT SCHOOLS AUTHORITY"
The relevant schedule to the instrument refers to the Office of Director Level 1 (the position occupied by Mr. Woodward) and specifies in relation to that position under the heading "Reference" section 27 of the Commonwealth Teaching Service Act 1972 and under the heading "Subject" the words "Appoint, promote or transfer an officer to fill a vacant position".
The power of delegation is contained in sub-section 8(1) of the Commonwealth Teaching Service Act 1972 and it provides:-
"A relevant authority may, either generally or as otherwise provided by the instrument of delegation, by instrument in writing, delegate to a person any of the powers of that relevant authority under this Act other than this power of delegation."
On 16 December 1982 Mr. Page telephoned Mrs. Excell and informed her that her application had been unsuccessful and that Mrs. Walsh had been selected. Mr. Page said that all candidates could have been selected, that the contest had been a close one and that the panel had spent a long time in its deliberations. Mr. Page arranged to see Mrs. Excell on the following day.
At that interview Mr. Page informed Mrs. Excell that the panel had had difficulty in making a choice between Mrs. Walsh and herself but that Mrs. Walsh had been able to show greater leadership skills. Mrs. Excell was also informed that she had presented at the interview with the selection panel in a nervous manner.
On 20 December 1982 Mrs. Excell wrote to Mr. Page seeking confirmation that the reasons why the selection panel decided that she was not the most suitable applicant were:-
"(i) a failure to show sufficient leadership skills when compared with the successful applicant.
(ii) I presented in a nervous manner in the interview situation (although you consider me to be a calm and confident person).
(iii) I was not working within the Guidance and Counselling Section at the time of my application."
Mr. Page replied by letter dated 22 December 1982 as follows:-
"Thank you for your letter re the position of Senior Counsellor. I regret that you were not informed of the Panel decision by Staffing as they had promised. "As I had discussed with you on Friday, the Panel considered that you were a suitable applicant. However, in comparison with the nominee, we felt that you had insufficient opportunities to demonstrate leadership skills rather than 'a failure to show sufficient leadership skills'.
"The third point you raised had to do with the depth rather than the breadth of your experience.
"We were impressed with your range of experiences and feel that they stand you in good stead should similar positions arise in the future."
Mrs. Excell had by letter dated 10 January 1983 addressed to the chairman of the selection panel, Mr. Harris, sought a statement under sub-section 13(1) of the Administrative Decisions (Judicial Review) Act 1977. A reply dated 3 February 1983, signed by Mr. W.P. Foster on behalf of the Director (Staffing and Planning) of the Authority, contained the following:-
"The position calls for skills in needs analysis, forward planning, liaison, initiation and development of projects, evaluation and research. Personal qualities looked for by the selection committee included self confidence, communication abilities and ability to lead and function in a team situation.
"The interviewing panel commented that you had demonstrated breadth of experiences since 1971 which made you a highly suitable candidate for the position. It was considered that your work as a classroom teacher, counsellor and consultant (professional development) were relevant to the position.
"According to the panels records your professional history can be briefly summarised as follows:-
1971 - 1973 Teacher 1975 - 1976 School counsellor 1977 - 1978 Teacher 1979 - 1980 Counsellor part 1981, 1982 Relief counselling, teaching senior teacher (HDA) professional development.
"Supervisor reports indicated that you were valued as a supportive, co-operative team member, capable of providing appropriate resources for the position. You have also had nearly 12 months current Band 2 experience which was a consideration in this case. "Most of the other applicants, including the successful candidate were also able to show equally as well their relevant experience in this area. The successful candidate at interview was able to demonstrate to the committee superior experience in a leadership role and in a team position compared with yourself and other applicants.
"The committee also felt that at interview whilst you possessed a clarity of the demands of the position you presented less confidently than other applicants.
"At the conclusion of the interviews it was felt that the successful candidate and yourself were the two most suitable officers for the position, this conclusion was reached by the committee based on the information made available at interview and by referees and supervisors reports.
"Because of the qualifications required in the duty statement, the selection criteria adopted by the committee and the personal qualities sought of each candidate the committee was required to exercise a judgement based on a cumulative evaluation of how both suitable officers matched up against the criteria adopted.
"The committee felt that when weighing up an overall appreciation of relative strengths and weaknesses it was necessary to consider you as the second ranked candidate for the position based on those deliberations.
"Attached for your information is a copy of the panel's notes on your interview for this position."
Attached to the letter was a copy of the interview summary prepared by the selection panel following the panel's interview of Mrs. Excell and a copy of the Attachment to Panel Advice relating to Mrs. Excell also prepared by the selection panel. I have already referred to the contents of those documents.
Further correspondence passed between Mrs. Excell and officers of the Authority, Mrs. Excell canvassing the issue whether the selection of Mrs. Walsh had been made on criteria not contained in the duty statement and questioning the reasons advanced in the earlier correspondence. I do not find it necessary to refer to this correspondence in any detail.
Notification of Mrs. Walsh's temporary transfer to the position was notified in Commonwealth of Australia Gazette No. PS 12 of 24 March 1983. The reason for the delay in making known the decision which had been made on 16 December 1982 has not been explained. The notification reads as follows:-
-------------------------------
"Commonwealth Teaching Service
-------------------------------
B.PROVISIONAL PROMOTIONS AND LONG TERM TRANSFERS
THE following transfers are provisional and are subject to appeal by qualified officers to the Chairman of the Commonwealth Teaching Service Promotions Appeal Board. Where an officer desires to appeal against two or more provisional promotions, a separate appeal must be lodged for each one.
WHERE TO LODGE APPEALS
Appeals must be lodged, either by letter or telegram, so as to be received on or before the close of business on the 21st day after the date of this notification. They are to be addressed to
The Chief Education Officer.
A.C.T. Schools Authority.
P.O. Box 20.
Civic Square, A.C.T. 2608
Attention Chairman, Promotions Appeal Board.
GROUNDS OF APPEAL
The grounds of appeal are:
(a) Superior efficiency; or
(b) Equal efficiency combined with seniority.
FORM OF APPEAL.
There is no standard form of appeal; however, the appeal,
which should be typewritten, must show:
Date of Gazette
Name of provisional promotee
Position to which promotion made
Ground of Appeal.
The following particulars of the appellant should appear at the foot of the appeal:
Full Name (Block Letters)........ ........ ........ ........ ...
C.T.S. Reference Number........ ........ ........ ........ ....
Promotional Status e.g. Substantive Band 2 Primary or Band 3 Secondary Eligibility........ ........ ........ ........
Present School........ ........ ........ ........ ........ .....
An appeal is acknowledged.
The officer is invited to submit a supporting statement with
the appeal. This statement must be in triplicate and contain:
Full name........ ........ ........ ........ ........ ........ ..
C.T.S. Reference Number........ ........ ........ ........ ....
Educational Qualifications (in detail), including courses
which have not resulted in a formal qualification........ ..
........ ........ ........ ........ ........ ........ ........ ...
Details of Teaching Experience, including levels of classes
taught........ ........ ........ ........ ........ ........ .....
........ ........ ........ ........ ........ ........ ........ ...
Summary of Claims, which should be prepared with the detailed duty statement for the position to which a provisional promotion has been made very much in mind........ .
........ ........ ........ ........ ........ ........ ........ ...
If at all possible, supporting statements should be typewritten.
The supporting statement, whether sent separately or with the appeal, must be received at the office of the A.C.T. Schools Authority within the 21 days after the date of this notification.
PROVISIONAL PROMOTION
LONG TERM TRANSFER FOR THE PERIOD 1.2.83 TO 16.12.83
------------------------------------------------------------------------------ -
Name Transferred from Transferred to ------------------------------------------------------------------------------ -
R.Walsh No. 4556 Teacher, Band 1, Guidance No 2765 Senior Teacher (Counselling) and Counselling Section. Schools Band 2 Secondary, Guidance and Branch Counselling Section, Schools Branch" ------------------------------------------------------------------------------ -
By letter dated 7 April 1983 addressed to the Chief Education Officer of the Authority the applicant lodged an appeal against the transfer of Mrs. Walsh to the subject position on the ground of her superior efficiency for the position. Attached were the original application for the position and a supporting statement outlining her qualifications, experience and summary of claims. The summary of claims was in the following terms:-
"E) SUMMARY OF CLAIMS:
In writing this appeal, I wish to point out that I have, on three separate occasions (see attached letters dated 10 January, 1983, 11 February, 1983 and 24 March, 1983), requested information regarding the bases on which the Selection Panel for position number 2765 came to its decision, as is my right under Section 13(1) of the Administrative Decisions (Judicial Review) Act. To date I have not received any satisfactory reply this notwithstanding the decision made by Mr Justice Ellicott concerning an officer of the Department of Foreign Affairs: that appellants must be provided with the grounds for selecting an officer for promotion so that other officers may intelligently appeal. I refer you to the attached copies of all the correspondence relating to this matter.
"The only reason supplied to me as justifying the contention of superior efficiency in Mrs Walsh for this position was:
'The successful candidate at interview was able to demonstrate to the committee superior experience in a leadership role and in a team position compared with yourself and other applicants.' (See letter from Mr W.P. Foster dated 3 February, 1983.)
"This is worded on the attached Interview Summary as:
'She has a clear understanding of the demands of the position and may not have had sufficient experience working in such a leadership role.'
"Further the attached Aattachment to Panel Advice (dated 13-12-82 - three days prior to my interview for this position) states: '9. Demonstrated initiatives, and leadership qualities necessary for position as team leader - supported by referees.
Mrs Excell has not had the length of experience in a leadership role as other applicants.'
"With regard to this reason, I wish the Board to consider the following:
1. It is not accurate that I have not had the length of experience in a leadership role as Mrs. Walsh. (Note wording on Interview Summary, '. . . may not have had. . . ')
2. It is not possible for Mrs. Walsh, at interview to '. . . demonstrate to the committee superior experience in a leadership role and in a team position. . . '
3. I do not believe that leadership skills and experience in a leadership role are proper grounds for the selection of Mrs Walsh for this position. The official Duty Statement for this position no where mentions leadership skills which are very different from provide 'professional support' (Duty 1), 'Co-ordinate' (Duty 3), 'work with' (Duty 4), 'Assist in' (Duties 5 and 6). In addition, this does not correspond with the criteria of Section 28 of the C.T.S. Act specifying what shall be considered in selecting an officer for promotion to a vacant position"
By letter dated 12 April 1983 the applicant forwarded to the Chief Education Officer of the Authority a copy of correspondence between the applicant and the Authority requesting that it be considered by the Promotions Appeal Board along with the other correspondence referred to in the summary of claims.
The Promotions Appeal Board comprised John Francis Morrow (Chairman), Susan Russell and James Aikman Stoddart, the third respondents in these proceedings. The Board convened on 21 April 1983 to determine the appeals lodged by Mrs. Excell and one Jeffrey Bogan against the temporary transfer of Mrs. Walsh to the subject position.
Each of the members of the Promotions Appeal Board gave evidence on affidavit and Mr. Morrow also gave oral evidence. Mr. Morrow has sat as Chairman of the Promotions Appeal Board in some 30 appeals and spoke generally of the practice followed by the Board in dealing with such matters. The Board's practice is first to consider the written material submitted by the appellant or appellants and the person selected for promotion or transfer, the applications submitted by those persons for the position, the statements prepared by the selection panel and any submission from the Chief Executive Officer of the Authority or his delegate. In the case of some appeals the written material enables the Board to determine the matter before it. More usually, however, the Board seeks clarification of the written material by personal or telephone interviews with referees. The Board may seek further evidence through personal interviews with the parties. Mr. Morrow said that the Board "continues to seek additional evidence until it is confident that a fair determination of any appeal can be made". If there is more than one appellant, the Board first considers each appellant's suitability for the position and then establishes a ranking of appellants, the appellant considered most suitable for the position then being compared with the officer provisionally promoted or transferred.
In considering the appeals by Mrs. Excell and Mr. Bogan against the temporary transfer of Mrs. Walsh, the Board considered the following documents:-
(a) Original applications by Mrs. Walsh, Mrs. Excell and Mr. Bogan;
(b) Supplementary statements by each of those persons;
(c) The Authority's file in respect of the subject position which included -
(i) the duty statement for the position;
(ii) a copy of the notice advertising the vacancy;
(iii) documents each described as "Attachment to Panel Advice" prepared by the selection panel and relating to the three persons concerned;
(iv) documents each described as "Interview Summary" prepared by the selection panel in respect of Mrs. Walsh, Mrs. Excell and Mr. Bogan;
(v) document prepared by the selection panel recording referee's comments in respect of Mrs. Walsh; and
(vi) document headed "Panel Advice" prepared by the selection panel.
The Board, in order to seek additional evidence, conducted a personal interview with Mr. Page, the fifth respondent in these proceedings, and telephone interviews with four persons. It did not interview Mrs. Walsh, Mrs. Excell or Mr. Bogan.
The Board compared the suitability of Mrs. Excell and Mr. Bogan for the position and unanimously determined that Mr. Bogan was more suitable. The Board then considered his suitability against that of Mrs. Walsh and unanimously determined that Mrs. Walsh was more suitable. The Board prepared summaries of the interviews it had conducted and reasons for its decision. In support of its conclusion that the appeal by Mrs. Excell should not be upheld, the Board wrote-
"Mrs. Excell was not able to demonstrate the same level of experience in counselling duties, in both variety and depth, as Mrs. Walsh.
"In the interview with the selection panel Mrs. Walsh was more confident and articulate - important attributes in duties which involve contact with various schools and agencies.
"Mrs. Walsh has demonstrated a greater commitment to preventive intervention."
The Board by separate memoranda dated 21 April 1983 informed the Chief Education Officer of the Authority that the Board had determined that the appeals by Mrs. Excell and Mr. Bogan against Mrs. Walsh be not upheld. Mrs. Excell was informed that her appeal was not upheld by telegram on 22 April 1983.
By letter dated 2 May 1983 the applicant sought a statement under sub-section 13(1) of the Administrative Decisions (Judicial Review) Act 1977 in relation to the decision of the Promotions Appeal Board not to uphold her appeal against Mrs. Walsh. The response dated 24 May 1983, signed by Mr. W.P. Foster on behalf of the Director (Staffing and Planning) of the Authority, contained the following:-
"Factual material considered by the appeal panel was contained in the appeal documents submitted by the provisional transferee and yourself as well as the other appellant. These documents contained personal statements by the officers involved and were supported by references and eligibility reports. Statements made by the selection panel in recommending the provisional transferee were also taken into account by the appeal panel when making its decision, you have been advised of the reasons for this in an earlier statement.
"When considering your case the appeal panel needed to compare your abilities with those of the provisional transferee. When this was done it was felt that the provisional transferee had a superior academic background and was seen to be more perceptive and articulate than you. The appeal panel also formed the opinion from the papers available to them as well as referee reports that you would not be able to supply the same level of professional support to your colleagues as the successful applicant.
"The appeal panel after consideration of all papers available to them considered that you were not able to demonstrate the same level of experience in counselling duties in both variety and depth as the provisional transferee. The appeal panel also took into account the statement of the initial selection panel that you were not as confident or articulate as the provisional transferee - This was considered to be an important attribute in duties which involve contact with various schools and agencies."
On 22 June 1983 the applicant filed in this Court an application for orders of review under the Administrative Decisions (Judicial Review) Act 1977. The application has since been amended. The decisions which have been identified as those which the applicant seeks to have reviewed are:-
(i) the decision of the selection panel made on 16 December 1982 selecting Mrs. Walsh to perform temporarily the duties of the position;
(ii) the decision of Mr. Woodward made on 16 December 1982 temporarily transferring Mrs. Walsh to the position; and
(iii) the decision of the Promotions Appeal Board made on 22 April 1983 not to uphold the applicant's appeal against Mrs. Walsh.
The applicant also seeks to have reviewed the conduct of those concerned in arriving at the decisions so identified.
Extension of time to institute proceedings.
As the application to this Court was not filed until 22 June 1983 the question immediately arises whether the application, in so far as it seeks an order of review in relation to what was done by the selection panel on 13 and 16 December 1982 and in relation to the decision made by Mr. Woodward on 16 December 1982 that Mrs. Walsh be temporarily transferred to the position, was brought within the time prescribed by the statute and, if not, whether an extension of the time prescribed should be granted. In relation to what was done by the selection panel a further question arises whether the Administrative Decisions (Judicial Review) Act 1977 gives to the applicant a right to seek an order of review in respect thereof.
The time within which an application for an order of review is to be made is to be ascertained by the application to the circumstances of the particular case of the provisions of section 11 of the Act. The circumstances in which an extension of time should be granted to permit the bringing of an application under the Act have been referred to in Doyle v. Chief of the General Staff(1982) 42 A.L.R. 283, Duff & Ors. v. Freijah & Ors. (1982) 43 A.L.R. 479, Ralkon Agricultural Co. Pty. Ltd. v. Aboriginal Development Commission (1982) 43 A.L.R. 535, Lucic v. Nolan & Ors. (1982) 45 A.L.R. 411, Becerra v. Fowell & Anor. (18 February 1983 - unreported), Hickey & Ors. v. Australian Telecommunications Commission (1983) 47 A.L.R. 517 and Wedesweiller & Ors. v. Cole & Ors. (1983) 47 A.L.R. 528.
Logically the question whether what was done by the selection panel may properly be the subject of an order of review under the Act should be determined before considering the question whether an extension of time to apply for such an order should be granted. Again, it can be said that the question whether an extension of time is necessary having regard to the request that were made in purported pursuance of sub-section 13(1) of the Act by the applicant to be furnished with a statement in accordance with that sub-section and the sufficiency or otherwise of the responses should be resolved before the need arises to consider whether an extension of time should be granted. But in the present case the question whether the applicant was entitled to a statement in accordance with sub-section 13(1) of the Act itself raises the question whether what was done by the selection panel is reviewable under the Act.
In all the circumstances and particularly having regard to the fact that no prejudice is said to have arisen from any delay in applying to the Court, to the fact that the substantive questions have been fully argued and the circumstance that this is the first application to the Court under the Administrative Decision (Judicial Review) Act 1977 involving a review of actions taken under the Commonwealth Teaching Service Act 1972, I think the appropriate course is to grant to the applicant an extension of time to bring these proceedings up to and including 22 June 1983. I think it is preferable that the substantive questions, in so far as they need to be addressed in order to determine the applicant's claim to relief, be determined on the substantive application and not on the application to extend the time within which to bring the proceedings.
Action taken by the Advisory Selection Panel and Mr. Woodward.
To support a right in the applicant to seek an order of review in respect of what was done by the selection panel, counsel for the applicant submitted that the selection panel had made a decision to which the Administrative Decisions (Judicial Review) Act 1977 applies or, alternatively, that sub-section 3(3) of that Act operates to deem what it did to be such a decision. In the light of the uncontradicted evidence that the only role of the selection panel was an advisory one, the first of these submissions was but faintly argued. To support the submission based on sub-section 3(3) of the Act, it is necessary for the applicant to show that the recommendation that the selection panel made was one for which provision was made by an enactment within the meaning of that expression in sub-section 3(1) of the Act. As the Commonwealth Teaching Service Act 1972 makes no provision for selection panels or their functions the applicant sought to rely on that part of the definition of "enactment" as brings within its purview an instrument (including rules, regulations or by-laws) made under an Act of the Commonwealth Parliament other than the Commonwealth Places (Application of Laws) Act 1970 or the Northern Territory (Self-Government) Act 1978.
What was relied upon as being the relevant instrument was a document headed "A Personnel Policy and Procedures Manual for A.C.T. Government Schools". That document bears on its face a notation that it is printed and published by the Authority and that it was first published in 1982. Part of the foreword to the manual, signed by the Chief Education Officer, Mr. G. Hancock, the third respondent in these proceedings reads:-
"A Personnel Policies and Procedures Manual has been in preparation for some time now for the benefit of all Schools Authority officers and employees.
"The sections of the Manual issued here - in working draft form - represent the first step in codification of principles and practices which are of vital importance to the proper running of schools and of the two career services (CTS and APS) which staff the ACT government school system. This is clearly in the general interest of justice and equity for all.
"The Manual will be enlarged progressively to encompass all policies and procedures: as indicated in the proposed coverage of the Manual, additional sections are already planned. The style of the document allows for the easy incorporation of additions and amendments which are part and parcel of 'live' administration. For example, the current Review of Promotional Eligibility could well have implications for some of our staffing practices."It appears that the manual will in due course consist of 16 sections each dealing with a different subject matter, only 9 of those sections being as yet available. The available sections deal with such subjects as terms and definitions, filling vacancies in schools, transfers, selection of applicants for transfer or promotion and appeals. The foreword indicates that the procedures outlined in the manual were to operate from 1 August 1982.
Counsel relied on clause 1.10 which states that each year Advisory Selection Panels are formed to provide recommendations on the filling of "vacant promotions positions", an expression which appears to encompass both substantive and temporary vacancies (see clauses 1.2 and 2.1).
The manual reproduces, somtimes by way of paraphrase, provisions contained in the Commonwealth Teaching Service Act 1972, in the regulations made hereunder and in Determination No 44 of 1976. It is designed to give staff an understanding of the rights conferred on them by those provisions and to assist them in exercising those rights. It collates and reproduces in readily accessible form decisions in the personnel management field which have been taken by the Authority in carrying out its function of making officers and temporary employees available for the performance of teaching duties in schools under its control. It does not, in my view, itself create rights in any individual against the Authority. Further, it is expressed to be a working draft only. In my opinion the manual does not answer the description of an instrument within the meaning of the phrase "instrument (including rules, regulations or by-laws)" in the definition of "enactment" in sub-section 3(1) of the Administrative Decisions (Judicial Review) Act 1977. It follows, in my opinion, that what was done by the selection panel is not directly reviewable under that Act.
The decision by Mr Woodward temporarily transferring Mrs. Walsh to the position clearly answers the description of a decision under an enactment in respect of which the applicant is entitled to seek an order of review. Mr. Woodward made no independent inquiries into the claims of the respective applicants. His decision was based upon the recommendation made to him by the selection panel which he accepted. By reason of this circumstance, if what the selection panel did was contrary to the legal principles applicable, the decision made by Mr. Woodward will be equally tainted.
Counsel for the applicant submitted that what had been done by the selection panel had miscarried in three respects. First, it was said that the selction panel, in considering the respective claims of Mrs. Walsh and Mrs. Excell, had fallen into error in taking into account what was referred to in argument as "the concept of leadership", that being, so it was argued, a consideration irrelevant to the matter on which the panel was deliberating.
The evidence clearly establishes that leadership is a characteristic that the person performing the duties of position No. 2765 would need to exhibit in order to be able to carry out effectively and efficiently the duties of that position as set out in the relevant duty statement. It may be a question to what degree those characteristics are necessary. Mr. Page, who was perhaps the person best able to express an opinion on this aspect, said in his affidavit that the position "would be demanding, and require exceptional leadership qualities and a tenacity to see projects through to their conclusion". He had been responsible for writing the duty statement for the position and in his oral evidence he identified duties 2 to 6 inclusive as each demanding a range of leadership skills. He saw leadership skills as an essential requirement as the person performing the duties of the position "would have to relate to administrators and teachers at all levels in the Schools Authority and the community in general, including outside agencies such as Health and Welfare". He expanded upon this in his oral evidence as follows:- ". . . . . the position was a new one and I considered that it would be a very difficult position to establish because there was - I think there were some difficulties within the service in accepting that it was a viable role. Certainly it was breaking new ground and therefore was going to be a very demanding task for the person who took it on. So it was a matter of providing leadership to a group of counsellors who were going to establish the projects in schools. It was also a matter of being able to relate to administrators within the counselling service, within the schools office, generally speaking, with other sections in the schools office, and with administrators in the schools. It was not only a matter of assessing the needs within the system that could be met by such a role, but also there was an element of public relations in the sense that the job had to be sold to the system to make it a viable programme."
The other members of the selection panel clearly accepted that the person performing the duties of the subject position, while under the direction of a Band 3 officer, would be expected to take a lead in team operations in the field and would have to relate to officers at all levels and with people outside the Commonwealth Teaching Service. The panel concluded that a successful co-ordinator of a team, as described in duty number 2 in the duty statement, would require a high level of leadership qualities.
Mr. Morrow and Mr. Woodward both agreed that leadership qualities were essential for the person performing those duties though they did not put as great an emphasis on this aspect as Mr. Page had done.
Mrs. Excell also agreed in cross examination that leadership was a relevant consideration to be taken into account in selecting a person for the position though she tended to discount its importance. She did not see leadership as "a major component of the position". She referred to the absence of the word "leadership" from the duty statement for the position but in the light of the evidence given by Mr. Page and Mr. Morrow this seems to me to be of no significance.
On the evidence I am left in no doubt that leadership was a characteristic to which the selection panel (and the Promotions Appeal Board) might properly have regard in selecting the person most suitable to perform the duties of the position. It must also be borne in mind that the selection panel only adverted to the respective leadership qualities of Mrs. Walsh and Mrs. Excell and to the experience they had had in positions where they had an opportunity to exhibit those qualities in seeking to differentiate in point of efficiency between two candidates whom they regarded as having almost equal claims to the position.
The submission that the selection panel fell into error in taking leadership qualities into account is rejected.
Secondly, it was submitted that, if the concept of leadership was a matter proper to be taken into account by the selection panel and to be given the weight which the panel attributed to it, the panel failed to make that circumstance known to the applicant so that she might place before the panel material additional to that contained in her application for temporary transfer to the position.
In considering this submission it is important to note that Mrs. Excell in her application for the position dealt in some detail with her own leadership qualities and quoted extracts from referee reports, the full text of which was annexed to her application, commenting favourably upon her leadership qualities. For example, in relation to the duty identified in the duty statement by the figure 4 Mrs. Excell said in her application:-
"In order to be successful in this duty, the applicant should be sympathetic to a team-work approach, and must be able to demonstrate an appreciable ability to work in harmony with a wide range of people; contributing, co-ordinating and leading."
In support Mrs. Excell set out extracts from referee reports given by a Mrs. Barker and a Mr. Cope praising the leadership she had provided in carrying out the duties of other positions. Again, in relation to duty numbered 8 she said:-
"I believe that these duties require the ability to show leadership and intiative, as well as the ability to follow directions from a senior officer."
An extract from a referee report given by a Mrs. Schussig also set out in Mrs. Excell's application stated that Mrs. Excell had "demonstrated excellent leadership qualities".
The matter was adverted to specifically during the course of Mrs. Excell's interview by the selection panel. She was asked about the leadership role and leadership qualities required in the position and apart from the other specific questions she was asked about her background and experience she was afforded an opportunity to add anything that she wished to put before the panel.
In my opinion there is no substance in the submission that the selection panel fell into error in this regard.
The third aspect of the attack on what the selection panel did concerns the nervousness that Mrs. Excell displayed during the course of the interview. It was submitted that the selection panel's deliberations miscarried because Mrs. Excell was not asked to give an explanation of her nervousness and because Mr. Page had failed to inform the other members of the selection panel that he had had an opportunity to observe Mrs. Excell in a social environment and she had not in the contex displayed nervousness. In my opinion there is no substance whatever in this submission.
Had I been of the contrary view and concluded that there was some impropriety in the proceedings of the selection panel, it would have become relevant to consider whether the Court should intervene. Mrs. Excell chose to lodge an appeal to the Promotions Appeal Board in order to have reviewed on the merits the correctness of the decision reached by Mr. Woodward based on the recommendation of the selection panel. The Promotions Appeal Board heard that appeal and determined that it should not succeed, affirming Mr. Woodward's decision to temporarily transfer Mrs. Walsh. I strongly incline to the view that, the appeal to the Promotions Appeal Board having failed, the Court should not assist the applicant in a challenge to the propriety of the proceedings leading to the making of Mr. Woodward's decision. However, on the view I take, I need say no more on this aspect of the matter.
Proceedings of the Promotions Appeal Board.
I turn now to the proceedings of the Promotions Appeal Board. One may first ask what was the legal foundation for those proceedings.
Section 30 of the Commonwealth Teaching Service Act 1972 provides for the constitution of Promotions Appeal Boards "(f)or the purposes of this Division", that is for the purposes of Division 3 of Part III of the Act. That Division comprises section 25 to 30 inclusive, the relevant parts of which are set out earlier in these reasons. The reference to the purposes of Division 3 of Part III of the Act can only refer to the provisions of section 29 of the Act which confers a right of appeal where an officer considers that he should have been promoted to a vacant position in preference to an officer provisionally promoted. The promotion of an officer to fill a vacant position in the Service is provided for by section 27 which also refers to the appointment of a person as an officer and to the transfer of an officer to fill such a vacant position. The Act confers no right of appeal in the case of an appointment or a transfer - only in the case of a promotion.
Counsel for the applicant submitted that what Mr. Woodward had done amounted to the "promotion" of Mrs. Walsh within the meaning of that expression in section 27 of the Commonwealth Teaching Service Act 1972 so that an appeal lay under section 29. Counsel for the respondents other than Mrs. Walsh submitted that what Mr. Woodward had done did not amount to the promotion of Mrs. Walsh but was a "transfer" in accordance with section 27 of the Act. Counsel for Mrs. Walsh submitted that what Mr. Woodward had done was neither a "promotion" nor a "transfer" within the meaning of section 27 of the Act but that his decision was properly characterised as a direction that Mrs. Walsh temporarily perform the duties of the relevant position, the source of power to give such a direction being sub-section 20(7) of the Commonwealth Teaching Service Act 1972 and sub-clause 4.I.1.1 of Determination No. 44 of 1976.
The document signed by Mr. Woodward on 16 December 1982 required him to indicate whether the action he was taking amounted to a provisional promotion, a substantive transfer, a temporary transfer or a temporary transfer on higher duties allowance. There can be no doubt that he regarded his decision as amounting not to a provisional promotion or a substantive transfer but as the temporary transfer of Mrs. Walsh on higher duties allowance for a specified period.
In my opinion the action taken by Mr. Woodward did not amount to the promotion or transfer of Mrs. Walsh to fill a vacant position in the Service within the meaning of section 27 of the Act. A promotion to fill a vacant position occurs when an officer is substantively raised from the position he holds to a position of higher classification. A transfer to fill a vacant position occurs when an officer is substantively moved from the position he occupies to another position of equal classification. It is because there is no change of classification that a right of appeal is not conferred in the case of such a transfer. The effect of such a transfer or promotion is that the officer ceases to occupy substantively the position he previously held and thereafter substantively occupies the position to which he is promoted or transferred subject, in the case of promotion, to appeal. The officer so transferred or promoted will continue to fill the new position until he is transferred or promoted to fill another position or until he resigns or otherwise leaves the Service.
The concept of an officer who substantively occupies one position temporarily performing the duties of another position of higher classification which he does not substantively occupy is a concept falling outside the terms of section 27. It is a concept to which section 4.I. of Determination No. 44 of 1976 is directed. That section, as already appears, provides for the temporary performance of the duties of an office and for the payment, in the cases prescribed, of higher duties allowance. The provisions in that section expressly encompass situations in which the position the duties of which are to be temporarily performed is vacant and situations in which that position has a substantive occupant who is unable, perhaps because of illness or absence on leave or because he is himself performing the duties of another position on a temporary basis, to carry out the duties of the position which he substantively occupies. In my opinion the source of power to support Mr. Woodward's decision is to be found in section 4.I of Determination No. 44 of 1976. Whether it also has a source of power in sub-section 20(7) of the Act I do not need to consider.
On that view, did Mr. Woodward have power to make the decision he did? Sub-clause 4.I.1.1 of the determination provides for the selection of an officer to perform temporarily the duties of an office (whether vacant or not) to be made by the Chief Officer. That expression is relevantly defined as including "an officer or a person to whom a delegation has been given in accordance with Section 17 of the Commonwealth Teaching Service Act." That section, which empowered the Commonwealth Teaching Service Commissioner to delegate all or any of his powers under the Commonwealth Teaching Service Act 1972, was repealed on 10 August 1981 by the Commonwealth Functions (Statutes Review) Act 1981 and replaced by what is now section 8 of the Commonwealth Teaching Service Act 1972 empowering the relevant authority (that is, the Chief Education Officer of the Authority) to delegate any of the powers of that relevant authority under the Act. It may be a question whether the reference in the determination to section 17 can be read as a reference to section 8 (see Acts Interpretation Act 1901, sections 10 and 46) but, even assuming it can be so read, the only delegation adduced in evidence before me is that delegating to Mr. Woodward the powers of the Chief Education Officer of the Authority under section 27 of the Act. This aspect of the matter was not taken as a ground for relief in the application to the Court and was not the subject of full argument before me. I, therefore, do not propose to make a definitive finding that Mr. Woodward had no authority to make the decision which he purported to make on 16 December 1982. The matter, however, requires the attention of the Authority and the Publc Service Board and possibly of the Parliament.
Clause 4.I.5 of Determination No. 44 of 1976 is headed "Appeals Against Higher Duties". Sub-clause 4.I.5.1 provides that the selection of an officer in accordance with sub-clause 4.I.1.1(a) is subject to appeal by officers who are available and occupy an office of lower classification than the office in relation to which the officer has been directed to perform higher duties. The sub-clause then goes on to provide:-
"The provisions of Sections 28-30 inclusive of the Act apply to the appeal as if the appeal were an appeal under Section 29(2)."
Counsel for the sixth respondent, Mrs. Walsh, submitted that the provisions of Determination No. 44 of 1976 purporting to confer a right of appeal to a Promotions Appeal Board from a direction to an officer to perform the duties of a position of higher classification are invalid. It was said that the source of the power to make Determination No. 44 of 1976 is to be found in the provisions of the Commonwealth Teaching Service Act 1972 authorising the Commissioner, and since 10 August 1981 the Public Service Board, to determine the terms and conditions on which officers hold office and temporary employees are employed (sub-sections 20(4) and 23(4)). This power does not extend, so it was argued, to enable the Commissioner or the Public Service Board to confer rights of appeal.
In my opinion this argument should not be accepted. The power conferred by sub-sections 20(4) and 23(4) of the Act should not be construed in any narrow sense. To my mind a provision giving to an officer a right to appeal against a direction to another officer to perform temporarily the duties of a position of higher classification with a consequent payment of higher duties allowance is properly described as a provision determining in that respect the terms and conditions upon which the officer holds office and, therefore, within the ambit of the power.
What is somewhat more difficult is to determine what operative effect should be given to the provision in sub-clause 4.I.5.1 that the provisions of sections 28-30 inclusive of the Act apply "to the appeal" as if it were an appeal made under sub-section 29(2). The provisions cannot apply according to their express language. Section 28 is limited to the selection of officers for promotion and, in any event, a similar though not identical provision is made in sub-clauses 4.I.1.1 and 4.I.1.2 of Determination No. 44 of 1976. Sub-section 29(1) relates to a decision to promote any would seem to have no application to the appeal provided for in sub-clause 4.I.5.1 of the determination. Again a provision similar to paragraph 29(1)(b) of the Act is made in sub-clause 4.I.5.2 of the determination. Sub-clauses 29(3), (4), (5) and (8) can only be applied to an appeal under sub-clause 4.I.5.1 of the determination by varying their language in a number of respects. For example, the references to "the relevant authority" must be read as references to "the Chief Officer" and the reference to "the vacant position" must be read as a reference to the position (whether vacant or not) to which the temporary transfer under the determination has been made. Sub-sections 29(6) and (7) would appear to have no application to an appeal. Section 30 can apply at least in so far as it deals with the composition of the Promotions Appeal Board.
Counsel for Mrs. Walsh argued that by reason of such considerations as are mentioned above the provision in the determination seeking to apply sections 28-30 inclusive of the Act were meaningless and ineffective to create a right of appeal to a Promotions Appeal Board constituted in accordance with section 30 of the Act. While there is much to be said for this view the Court should, I think, be slow to find that the provision cannot be carried into effect in accordance with what was obviously the intention of the draftsman. In these circumstances I am not prepared to hold the provision ineffective. It does in my view, albeit elliptically and in many respects in an unsatisfactory way, provide the necessary machinery provisions to enable the right of appeal given by sub-clause 4.I.5.1 to be made effective.
Although the provisions concerning Promotions Appeal Boards and their procedures contained in the Commonwealth Teaching Service Act 1972 and the regulations thereunder are somewhat less elaborate than those which have been the subject of consideration in this Court, particularly those contained in the Public Service Act 1922 and the regulations thereunder, the essential characteristics of such Boards are the same under both sets of legislative provisions. The function of a Promotions Appeal Board under the Commonwealth Teaching Service Act 1972 is to make full inquiry into the claims of the appellant or appellants and the claims of the officer provisionally promoted or, in a case arising under sub-clause 4.I.5.1 of Determination No. 44 of 1976, the claims of the officer temporarily transferred to the position and determine the appeal or appeals on the basis of the comparative efficiency of the offiers concerned, or where efficiency is equal, on the basis of seniority. In carrying out that full inquiry the Board must act fairly. But what is fair in a given situation will depend upon the circumstances of the particular case.
The applicant submits that the proceedings of the Promotions Appeal Board were unfair to her in a number of respects. First it is said that the Board failed to accord to the applicant an opportunity to appear before the Board to put her case. Alternatively it was said that the Board should have given the applicant an opportunity to put further written material to the Board before it reached a decision on her appeal. Next it was said that she was not told of the case against her. This submission had a number of aspects. It was said that Mrs. Excell should have been informed of what Mr. Page said at the interview the Board had with him, that the Board should have informed her whether it proposed to take leadership skills into account in reaching its decision and that Mrs. Excell should have been supplied with copies of the documents concerning Mrs. Walsh that were before the Board.
There are features of the proceedings before the Promotions Appeal Board that I find unsatisfactory. The Board did not interview either of the appellants or Mrs. Walsh. The reason advanced for taking this course is said to have been that the material contained in the interview summaries prepared by the selection panel "was consistent with the other evidence available to the Board". While it may be correct to say that any factual material recorded on the interview summaries was consistent with what was contained in other documentary material before the Board, much of what is set out in the interview summaries records the general impressions and conclusions reached by the selection panel as a result of observing the persons interviewed and evaluating the answers they gave to questions put to them and the other material the interviewees put forward when interviewed. The interview summaries are not records of the interviews in the sense of recording what was said at the interviews. Had they been, there might have been substance in the claim that the Promotions Appeal Board could itself evaluate that written record without necessarily seeing the persons concerned. As it is, the approach taken by the Promotions Appeal Board seems to come close to saying that it was prepared to accept the evaluations made by the selection panel. It seems clearly to have given considerable weight to the selection panel's assessment that Mrs. Excell was nervous at her interview with that panel for in its reasons for not upholding Mrs. Excell's appeal express reference is made to the fact that in the interview with the panel Mrs. Walsh was "more confident and articulate" than Mrs. Excell. In this connection reference might also be made to the letter dated 24 May 1983 to Mrs. Excell signed by Mr. W.P. Foster, an extract from which is set out earlier in these reasons. As it was, in effect, the selection panel's views which the Promotions Appeal Board was charged with reviewing, I would have expected the Board to have made its own enquiries on such personal characteristics particularly when one appreciates how difficult it can be to gain a correct assessment of a person at an interview of some half hour's duration.
There is a marked contrast between the manner in which the Board approached the assessment of Mrs. Excell's efficiency for the position and that which it adopted in relation to the other appellants, Mr. Bogan, and Mrs. Walsh.
The Board addressed questions concerning Mr. Bogan to Mr. Page and to two of the four persons with whom it conducted telephone interviews. In the result it rated Mr. Bogan ahead of Mrs. Excell, contrary to the conclusion reached by the selection panel. So far as the evidence goes the only person interviewed who was asked to speak of Mrs. Excell was Mr. Page but he was only asked as to the reasons why the selection panel rated her ahead of Mr. Bogan. One of the other persons interviewed had been nominated by Mrs. Excell as a referee but that person and the other person interviewed were asked questions only in relation to Mrs. Walsh.
Another unsatisfactory feature of the proceedings of the Promotions Appeal Board is its failure to deal in any way with the matters referred to by Mrs. Excell in her appeal document under the sub-heading "Summary of Claims". I have already expressed the view that leadership skills and experience in a leadership role were not irrelevant matters for the Promotions Appeal Board to take into account. The question, however, is not whether the Board was correct in giving weight to those matters but whether it acted fairly in treating the matters raised by Mrs. Excell as irrelevant, as Mr. Morrow said in evidence the Board did. It seems to me that the Board should, in fairness, have given Mrs. Excell an opportunity to put forward her reasons in support of the matters she raised and for the Board to have reached a conclusion whether they agreed or disagreed with what she was asserting.
In relation to the other matters raised, I consider that the Board was, in the circumstances of this case, under no obligation to supply to Mrs. Excell copies of the documents which it had before it or to inform her of the substance of them. Mrs. Excell had received a great deal of information concerning the reasons for the selection of Mrs. Walsh by the selection panel both from Mr. Page personally and in the correspondence to which reference has already been made. I am satisfied that there was nothing adverse to Mrs. Excell in the other material the Board had before it which, in fairness, it was bound to convey to Mrs. Excell. I am further satisfied that she was fully aware of the case she had to meet.
In the result I have concluded that the Promotions Appeal Board failed to conduct its proceedings in accordance with the dictates of fairness which the applicable principles of law require. In ordinary circumstances such a conclusion would lead to an order setting aside the decision reached by the Promotions Appeal Board and directing that the appeal be re-heard by a differently constituted Board. However, this case presents an unusual feature. The temporary transfer of Mrs. Walsh is for a period which expires on 16 December 1983. By reason of the delay in bringing the proceedings and the further delay that will occur in constituting a Promotions Appeal Board and having the appeal re-heard, the consequence will be that, even assuming that Mrs. Excell were to succeed on the appeal (a matter as to which I express no opinion), the period during which she could perform the duties of the position would be reduced to a matter of a few weeks. Mrs. Walsh has been performing the duties of the position for substantially the whole of the school year and it seems to me to be inappropriate at this stage to take any step which might result in that situation being disturbed for the remainder of the school year. There is the further circumstance that the position has been advertised as one to be filled on a permanent basis so that the question who is the most efficient officer to be promoted or transferred to it will come before an Advisory Selection Panel in the near future. If the position is filled by promotion the rights of appeal given by section 29 of the Act will be available.
In the circumstances I think the appropriate order is to dismiss the application. However, as Mrs. Excell succeeded in establishing that the Promotions Appeal Board had failed to conduct its proceedings in accordance with the relevant legal principles, she should have an order that the Authority pay her costs of the application. It would also be appropriate that the Authority be ordered to pay Mrs. Walsh's costs. I make orders accordingly.
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