Hamblin v Duffy

[1981] FCA 38

Re: RITA HAMBLIN
And: PETER DUFFY, WILLIAM WHITE, MARK AARONS, PROMOTIONS APPEAL BOARD and
AUSTRALIAN BROADCASTING COMMISSION (1981) 50 FLR 308
No. G5 of 1981
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.(1)

CATCHWORDS

Administrative Law - Officer of A.B.C. provisionally promoted to vacant position - more senior officer applied for same position - appeal by more senior officer to Promotions Appeal Board alleging equal efficiency and seniority disallowed - whether such a decision of Promotions Appeal Board is a decision to which the Administrative Decisions (Judicial Review) Act applies.

Administrative Decisions (Judicial Review) Act, 1977 (Cth.) ss. 3, 5

Broadcasting and Television Act,1942 (Cth.)s. 49.

Administrative Law - Officer of A.B.C. applied for appointment to vacant position - Officer junior to applicant provisionally promoted to position - Appeal by applicant to Promotions Appeal Board - Appeal dismissed - Whether dismissal of appeal by Board is "decision of an administrative character" under Administrative Decisions (Judicial Review) Act - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss. 3 (1), 5 - Broadcasting and Television Act 1942 (Cth), s. 49.

HEADNOTE

The applicant was employed by the fifth respondent, the Australian Broadcasting Commission (the A.B.C.). A vacancy arose in a more senior position to that held by the applicant and accordingly she applied for appointment to the vacant position. An officer junior to the applicant was provisionally promoted to the position. The applicant appealed against the other officer's promotion pursuant to s. 49 (2) of the Broadcasting and Television Act 1942 to the fourth respondent, the Promotions Appeal Board (the Board) which comprised the first, second and third respondents who heard the appeal and disallowed it. The applicant then applied for an order of review to the court under the Administrative Decisions (Judicial Review) Act 1977 (the Act).

The A.B.C. contended that the court had no jurisdiction to hear the application as the decision of the Board was not a "decision of an administrative character" within the meaning of s. 3 (1) of the Act. Accordingly before proceeding with the main application the court considered it appropriate to determine the question of jurisdiction.

Held: (1) The Act must not be interpreted or applied so as to adopt or reflect the very problems and deficiencies it was designed to overcome.
(2) The expression "decision of an administrative character" in s. 3 (1) of the Act refers more to the nature or character of the decision itself rather than to the person or body making the decision.
(3) The expression "decision of an administrative character" is incapable of precise definition but includes at least the making of individual decisions in the application of a general policy or rule to particular cases whether in the exercise of a discretion or not.
(4) The decision of the Promotions Appeal Board is a "decision of an administrative character".
(5) The decision of the Promotions Appeal Board is made "under an enactment" for the purposes of s. 3 (1) of the Act in that it is made in direct pursuance of s. 49 of the Broadcasting and Television Act 1942.
(6) The decision of the Promotions Appeal Board would otherwise be susceptible of review by prerogative writs and therefore it would be anomalous if prerogative writs extended to the decision whilst the Act did not.

Re Gorman; Ex parte Australian Broadcasting Commission (1979), 53 ALJR 514, referred to.

HEARING

Sydney, 1981, March 17-18; April 15. #DATE 15:4:1981

OBJECTION TO COMPETENCY.

J. W. Shaw, for the applicant.

M. B. Smith, for the respondent.

Cur. adv. vult.

Solicitors for the applicant: Turner Freeman.

Solicitor for the respondent: J. McD. Harris.

J. J. ISLES

ORDER

1. The objection to competency be overruled.

2. The application be adjourned to a date to be fixed for directions and to determine the question of costs of the objection to competency.

JUDGE1

This case raises interesting and important questions under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") upon which there is as yet no authority.

The case arises this way. Rita Hamblin ("the applicant") is employed by the fifth respondent, Australian Broadcasting Commission ("the A.B.C."). A vacancy arose for a more senior position than the position which she held. She applied for appointment to the vacant position. Another officer of the A.B.C. was provisionally promoted to the vacancy pursuant to s. 49 (1) of the Broadcasting and Television Act 1942 ("the Broadcasting and Television Act"). The applicant was a more senior officer of the A.B.C. than the other officer. The applicant appealed to the fourth respondent, Promotions Appeal Board, pursuant to s. 49 (2) of the Broadcasting and Television Act against the provisional promotion of the other officer, alleging "equal efficiency" and "seniority" to the provisional appointee. The Promotions Appeal Board, comprising the first respondent, the second respondent and the third respondent heard her appeal and disallowed it.

The applicant applied to this Court under the Judicial Review Act for an order of review of the decision disallowing her appeal. The applicant joined as respondents the Promotions Appeal Board, its three members and the A.B.C.

The A.B.C. objects to the jurisdiction of this Court to hear the application for an order of review on the ground that the decision of the Promotions Appeal Board was not a decision "of an administrative character" within the meaning of the Judicial Review Act. This is the question for determination.

Before turning directly to this question it is helpful to look at the Judicial Review Act in the context of other Commonwealth legislation in the field of administrative law.

Three Acts of the Commonwealth Parliament comprise the principal machinery for scrutinizing administrative decisions and actions of Commonwealth ministers, officials and statutory bodies. They are:

. the Administrative Appeals Tribunal Act 1975;
. the Ombudsman Act 1976; and
. the Judicial Review Act.

The first of the three acts, the Administrative Appeals Tribunal Act 1975 established the Administrative Appeals Tribunal and empowered it to review on the merits any decision of a minister, official or statutory body acting under a statutory power; but only if the relevant legislation provides for an appeal to the Tribunal. No general right of appeal against such decisions is conferred; but where an appeal lies to the Tribunal it may review on the merits the decision appealed from and, if necessary, substitute its own decision. Appeals on questions of law lie to this Court. It also established the Administrative Review Council to keep under review the new structure of administrative law.

The Commonwealth Ombudsman was established by the Ombudsman Act 1976. The Ombudsman is not restricted to the review of decisions taken in the exercise of statutory powers. He is empowered to investigate complaints against decisions of Commonwealth officials and statutory bodies, whether made under statutory power or in the ordinary course of administration. He is excluded from reviewing actions by Ministers, but he may investigate a recommendation made by a Department to a Minister. He is not empowered to substitute his own decision for that under review. His power is one of recommendation for corrective action where he thinks that there has been maladministration.

The Judicial Review Act confers jurisdiction on this Court to hear and determine applications by persons aggrieved for "an order of review" in respect of a decision of an administrative character made, proposed to be made, or required to be made under Commonwealth Acts or Ordinances, Rules, Regulations or By-laws.

Judicial review by this Court under the Judicial Review Act does not enable the Court to substitute its own decision for that of the person or body whose action is challenged. The question for the Court generally is whether the action is lawful in the sense that it is within the power conferred on the relevant minister, official or statutory body; or that the prescribed procedures have been followed; or that the general rules of law, including adherence to the principles of natural justice, have been observed. The Court is empowered to enjoin action or to quash a decision it finds unlawful and to direct action to be taken in accordance with law. It may also compel action by a person or body who has not acted, but who ought to have done so.

These three avenues of review - appeal on the merits to the Administrative Appeals Tribunal, investigation by the Commonwealth Ombudsman and judicial review by this Court - represent the principal provisions made by the Parliament of the Commonwealth for remedying grievances about Commonwealth decisions and administrative action.

Section 5 (1) of the Judicial Review Act entitles "a person who is aggrieved by a decision to which this Act applies", which includes any person whose interests are adversely affected by the decision, failure to decide, or action in question, to apply to this Court for an order of review in respect of the decision on any one or more of the grounds enumerated in s. 5. The applicant claims to be such a person.

The expression "decision to which this Act applies" is defined by s. 3 (1) as:
". . . means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment, other than a decision by the Governor-General or a decision included in any of the classes of decisions set out in Schedule 1;"

The Judicial Review Act does not define the expression "decision of an administrative character"; nor does it define any of its components.

The making of a "decision" encompasses such diverse activities as making or revoking an order; giving or revoking a certificate; issuing or revoking a licence; imposing a condition; making a declaration, demand or requirement; retaining or refusing to deliver up an article; and doing or refusing to do any other act or thing (s. 3 (2) ). Section 3 (3) provides:
"Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall itself be deemed, for the purposes of this Act, to be the making of a decision."

The Judicial Review Act specifies the grounds of review upon which an aggrieved person may challenge a "decision". They include a breach of the rules of natural justice occurring in connection with the making of a decision; the failure to observe procedures required by law to be observed in connection with the making of a decision; absence of jurisdiction to make the decision on the part of the decision-maker; improper exercise of a power conferred by the relevant enactment; an error of law involved in the decision; fraud which induced or affected the decision; the absence of any evidence or other material to justify the making of the decision: s. 5 (1). An improper exercise of a power includes a reference to taking irrelevant considerations into account; failing to take relevant considerations into account; exercising the power for a purpose other than the purpose for which it is conferred; exercising a discretionary power in bad faith; or exercising a personal discretionary power at the direction or behest of another person: s. 5 (2).

The rights of an aggrieved person to make an application for an order of review are additional to and not in derogation of any other rights of review or appeal available to him: s. 10 (1).

The powers which the Court may exercise on an application for an order of review include power to quash or set aside the decision, refer the matter back to the decisionmaker subject to any directions the Court thinks appropriate; to make an order declaring the rights of the parties; or to do justice between the parties by ordering the doing or refraining from doing of any act or thing: s. 16 (1). If there has been a failure to make a decision, the Court may order that the decision be made: s. 16 (3).

Section 13 of the Act is important. It entitles persons, who may apply to the Court under s. 5 for review of a decision to request and obtain within twenty-eight days a statement in writing from the person who made the decision of the reasons for the decision, including findings on material questions of fact and the evidence or other material supporting those findings. But there are qualifications to the rights under s. 13. The section does not apply to decisions in relation to which s. 28 of the Administrative Appeals Tribunal Act 1975 applies. Nor does it apply to decisions falling within the classes of decisions enumerated in Schedule 2 to the Judicial Review Act. A request for reasons must be made within twenty-eight days of the date on which the applicant was furnished with the terms of the decision in writing or otherwise within a "reasonable time" after the decision was made: s. 13 (5). The person who made the decision is not required to include in the statement any information in respect of which the Attorney-General has certified that its disclosure would be contrary to the public interest on any of the three grounds specified in s. 14 (1): s. 14 (2). Nor is he required to include in the statement information as to personal or business affairs of a person, other than a person making the request; information supplied in confidence; information which, if published, would reveal a trade secret; information furnished in compliance with a duty imposed by an enactment; and information, the furnishing of which would be in contravention of an enactment: s. 13A.

The Judicial Review Act itself specifies that it applies only to decisions made pursuant to an "enactment"; a word which is defined by s. 3 (1) as meaning, subject to certain exceptions, an Act of Parliament, an Ordinance of a Territory other than the Northern Territory; and rules, regulations or bylaws made under such Acts or Ordinances. The Act expressly excludes from its operation decisions of the Governor-General and decisions included in any of the classes of decisions set out in schedule 1. These classes include decisions relating to industrial conciliation and arbitration, national security, military law, assessments or calculations of taxes or duties, decisions under the Foreign Takeovers Act 1975; certain decisions under the Banking (Foreign Exchange) Regulations; decisions of the Ministerial Council for Companies and Securities; decisions of the National Companies and Securities Commission when made in performance of a function conferred by a State Act or a law of the Northern Territory.

This Court will be called upon to decide from time to time what is meant by the expression "decision of an administrative character". This question has already excited comment by academic writers; and useful discussion may be found in various publications including the article by Mr. John Griffiths "Legislative Reform of Judicial Review of Commonwealth Administrative Action" 1978 9 Fed. L. Rev. 42; and in the paper presented to the 20th Australian Legal Convention by Mr. L.J. Curtis "Judicial Review of Administrative Acts" (1979) 53 A.L.J. 530.

I was referred during argument to the Kerr Committee report (14 October 1971) and the Ellicott Committee report (29 May 1973). I have also read the Bland Committee reports (19 January 1973 and 25 October 1973). The use which I made of them was to ascertain the state of the law as it was understood to be at the time of the various reports and the mischief for which it was thought the law did not provide; and not for the purpose of interpreting any particular expressions in the Judicial Review Act itself: see Wacal Developments Pty. Limited v. Realty Developments Pty. Limited (1978) 140 C.L.R. 503 especially per Gibbs J. at p.509 and Mason J. at pp.520 and 521.

Problems as to the classification of powers conferred by Acts of Parliament are rarely solved at the one time. In the continuing solution of such problems usually there is a history of development and sometimes of change. Bearing this in mind, in my opinion, this is not the time to seek to expound definitively the meaning and ambit of the expression "decision of an administrative character". This will be determined progressively in each case as particular questions arise.

Counsel for the A.B.C, in support of the objection to competency, contended that a "decision of an administrative character" is a decision which concerns the exercise "of a function of government"; a decision which concerns the relation between government and the citizen rather than the internal management of government itself. He contended that to determine whether the decision is one of an administrative character one asks:
"Does the relevant provision in the enactment give powers, rights, duties, obligations etc. which are exceptional, not normal in private affairs, essentially of a public nature, directed to a public objective, within the province of executive government?"

By use of the expression "decision of an administrative character" doubtless the Judicial Review Act is excluding decisions of a different character such as those answering the description of legislative or judicial, and perhaps ministerial.

Important legal consequences flow from the characterization of a particular decision or action as legislative, judicial, ministerial or administrative. The meaning of these expressions has been adverted to in many of the reported cases. They establish the difficulty, if not the impossibility, of expounding definitive meanings of these various expressions. The difficulty is compounded by the fact that a particular category of decision tends to overlap or merge into another.

Legislative acts usually involve the formulation of new rules of law having general application. Judical acts generally entail determinations of questions of law and fact in relation to disputes susceptible of determination by reference to established rules or principles. There is a well-known distinction in the field of administrative law between the requirement that certain bodies must act judicially for example, in accordance with the rules of natural justice; and the decisions of courts which exercise judicial power and represent the judicial arm of government. Ministerial acts usually involve the performance of a public duty, but in circumstances where little or no discretion is legally permissible. Whether decisions with a predominant policy content fall within the description "decision of an administrative character" is open to some question; but nothing turns on this in the present case.

It is legitimate and helpful to seek guidance from the general body of administrative law developed by the courts, especially in the United Kingdom and Australia, relating to the circumstances in which the prerogative writs - in particular prohibition, certiorari and mandamus - issue and to the persons or bodies against whom they lie. But care must be exercised, because the very purpose of the Judicial Review Act is to remove technicalities and complexities surrounding the law relating to judicial review and to improve procedures for judicial review of administrative decisions. The Judicial Review Act must not be interpreted or applied so as to adopt or reflect the very problems and deficiencies it was designed to overcome.

The phrase "decision of an administrative character" suggests to me that the Judicial Review Act looks more to the nature or character of the decision itself than to the person or body making the decision. But the identity of the particular person or body must be relevant.

An exhaustive statement of the persons and bodies whose decisions are susceptible of review under the Judicial Review Act would be undesirable, prolix and repetitive. It is sufficient for present purposes to say that they include inferior statutory tribunals, and persons or bodies required to act judicially, though not, of course, courts exercising the judicial power of the Commonwealth. See generally de Smith's Judicial Review of Administrative Action, 4th ed. at pp. 12-21; Halsbury's Laws of England 4th ed. Vol 1, paras. 146, 148 and 149.

The expression "decision of an administrative character" is incapable of precise definition; but in my opinion it includes at least the application of a general policy or rule to particular cases; the making of individual decisions. A decision which is required to be made, whether in the exercise of a discretion or not, is expressly included by s. 3 (1).

I turn to the Promotions Appeal Board and to its decision in the present case. The Broadcasting and Television Act incorporates the A.B.C.: s. 30.

The Commissioners are appointed by the Governor-General (s. 31). The A.B.C. is directed in its activities in certain respects. It is directed to broadcast or televise "adequate and comprehensive programs" and to:
"take in the interests of the community all such measures as, in the opinion of the Commission, are conducive to the full development of suitable broadcasting and television programs.", (s. 59 (1) ).

It is subject to ministerial control over its expenditure (ss. 61 and 62). The A.B.C. is required to:
"broadcast daily from all national broadcasting stations regular sessions of news and information relating to current events within the Commonwealth and in other parts of the world."
s. 66 (1).

The whole of Division 4 is concerned with the finances of the A.B.C., and it includes s. 68 which provides that there are payable to the A.B.C:
"such moneys as are appropriated by the Parliament for the purposes of" (the A.B.C.).

The accounts of the A.B.C. are subject to scrutiny by the Auditor-General under s. 71B. As to the A.B.C. generally see: A. B. C. v. Industrial Court (S.A.) (1977) 138 C.L.R. 399 Per Mason J. at pp. 414 to 416 and per Murphy J. at pp. 421 and 422.

Division 2 of Part III is headed "The Service of the Commission". Section 43 (3) provides that the officers of the A.B.C. shall constitute "the service of the Commission". Division 2 contains detailed provisions relating to the creation, abolition and reclassification of positions in the service of the A.B.C. (ss. 45 and 46) and the transfer, promotion, retirement, and reduction in status or dismissal of officers (ss. 47, 48, 48A, 51, 52, 54, 55 and 56). The Promotions Appeal Board (ss. 49 and 50) and the Disciplinary Appeal Board (ss. 57 and 58) are established; the former to deal with an important aspect of the A.B.C.'s activities namely, questions relating to the promotion of staff.

The Promotions Appeal Board consists of a chairman, appointed by the Governor-General and, in respect of each provisional promotion against which an appeal has been made to the Promotions Appeal Board, an officer appointed by the A.B.C., and an officer nominated by "the organization of which it is appropriate for a person occupying the vacant position concerned to be a member": s. 50 (1) and (2). "Organization" means an organization registered under the Conciliation and Arbitration Act 1904-1973: s. 50 (5).

Section 49 provides:-
"49 (1) The promotion of an officer to a vacant position shall be provisional and without increased salary pending confirmation of the promotion, and shall be notified in the prescribed manner, and shall be subject to appeal as provided by this section.

(2) Any officer who considers that he should have been promoted to a vacant position in preference to the officer provisionally promoted, may appeal to the Promotions Appeal Board on the ground of superior efficiency or equal efficiency and seniority.

(3) The regulations may prescribe the manner in which, and the time within which, appeals may be made under this section.

(4) Upon any such appeal being made, the Promotions Appeal Board shall make full inquiry into the claims of the appellant and those of the officer provisionally promoted and shall determine the appeal.

(5) Where the appeal is upheld the appellant shall be promoted to the vacant position and the provisional promotion shall be cancelled.

(6) Where the appeal is disallowed, or where no appeal is lodged within the prescribed time, the provisional promotion shall be confirmed.

(7) Notwithstanding anything contained in this section, the Commission may, at any time after notification has been made of a provisional promotion to a vacant position, and before the promotion has been confirmed, cancel the provisional promotion if the Commission is satisfied that the position is unnecessary or can be filled by the transfer of another officer, or that in the circumstances notification or further notification of the vacant position is desirable."

In my opinion, the decision of the Promotions Appeal Board in this case is of an administrative character. Its decisions are made after full inquiry and are concerned essentially to re-assess the provisional promotion of the officer by the A.B.C. as employer. The Board must assess the relative efficiency of competing officers of the A.B.C. and, in so doing, it applies the criteria laid down by the Broadcasting and Television Act (namely, superior efficiency or equal efficiency and seniority) to the particular case. It makes a decision in respect of particular individuals. It creates or modifies rights. It does not merely pronounce upon existing rights.

Officers of the A.B.C. comprise its "service". The Promotions Appeal Board performs a necessary role in the statutory machinery established by the Broadcasting and Television Act to govern the relations between the A.B.C. and its officers and between the officers inter se.

The Judicial Review Act applies to a decision made "under an enactment". The working out of this requirement will no doubt attract much attention in the future; but, I need not examine this matter in depth in the present case because decisions of the Promotions Appeal Board are made under an "enactment" in that they are made in direct pursuance of the powers and duties conferred and imposed by s. 49 of the Broadcasting and Television Act.

If one puts the Judicial Review Act aside for a moment and looks to the position at common law, I am satisfied that this decision of the Promotions Appeal Board would otherwise be susceptible of review by prerogative writs. In Re Gorman; ex parte Australian Broadcasting Commission (1979) 53 A.L.J.R. 514 the High Court made an order absolute for prohibition against the Disciplinary Appeal Board established under the Broadcasting and Television Act. Although there are certain differences between the two Boards - they exercise different powers, the Disciplinary Appeal Board may take evidence on oath, and its chairman must be a person who is or has been a Magistrate - none are material so far as concerns this case. It would be anomalous if prerogative writs extended to the decision in question but the Judicial Review Act did not.

No authorities were cited by counsel for the A.B.C. in direct support of his contention that for a decision to be "of an administrative character" it must have "inherent governmental character". I do not accept the contention.

Alternatively, it was contended on behalf of the A.B.C. that the Promotions Appeal Board is not a "government authority", and that in the result the Judicial Review Act does not apply to its decisions.

I reject the argument that the Judicial Review Act has such a limited operation. I have said sufficient about the Promotions Appeal Board to support my conclusion that its decision in the present case is one of an administrative character under an enactment.

In the result, the objection to competency fails.

I order that the objection to competency be overruled. The application is adjourned to a date to be fixed for directions as to the future course of the application and to determine the question of costs of the objection to competency.