Inglis v Bateson
[1990] FCA 692
•6 Dec 1990
692 190
JUDGMENT NO. ........ ........ . ..-
CATCHWORDS
ALMINISTRATIVE LAW - Judicial review - Decision that officer of Australian Public Service be compulsorily retired on ground of inefficiency - Appeal to Redeployment and Retirement Appeal Committee - Retirement not effective unless confirmed by review tribunal - Appeal lies only on ground that retirement would be unreasonable - Whether Court should refuse relief by way of judicial review for reason that legislation makes adequate provision for review of primary decision by review tribunal.
Public Service Act 1922 (Cth), ss.76W, 76X, 762
Nerit Protection (Australian Government Em~lovees) ~ c t 1984
(Cth), 66.23, 24, 36, 37
Merit Protection (Australian Government Employees)
Regulations, regs 27, 31, 32, 36
WILLIAM STUART INGLIS V. NORMAN CHARLES BATESON
No. ACT G 49 of 1990
WILLIAM STUART INGLIS V. G.A. CAMERON AND ORS
No. ACT G 56 of 1990
Neaves J.
Canberra
6 December 1990
JN THE FEDERAL COURT OF AUSTRALIA ) AUSTRALIAN CAPITAL TERRITORY )
1 No. ACT G 49 of 1990
DISTRICT REGISTRY 1 1
GENERAL DIVISION )
BETWEEN: WILLIAM STUART INGLIS
Applicant
AND: NORMAN CHARLES BATESON
Respondent
,MINUTE OF ORDER
JUDGE MAKING ORDER : Neaves J. DATE OF ORDER 6 December 1990 HIERE MADE : Canberra
THE COURT ORDERS THAT:
1. The motion notice of which is dated 11 October 1990
be dismissed. 2. The respondent pay the applicant's costs of the motion.
Note: Settlement and entry of orders is dealt with in Order
36 of the Federal Court Rules.
JN THE FEDERAL COURT OF AUSTRALIA ) AUSTRALIAN CAPITAL TERRITORY 1
1 No. ACT G 56 of 1990 DISTRICT REGISTRY 1
BETWEEN: WILLIAM STUART INGLG
Applicant
AND: G.A. CAMERON
First Respondent
PETER FORSTER
Second Respondent
W.S. MAGEE
Third Respondent
MARK BUT2
Fourth Respondent
CLAIRE BARAM
Fifth Respondent
MINUTE OF ORDER
JUDGE MAKING ORDEe : Neaves J.
M E OF ORDEq 6 December 1990
=RE MADE : Canberra
THE COURT ORDERS THAT:
1. The motion notice of which is dated 11 October 1990 be dismissed.
2 . The first and second respondents pay the applicant's costs of the motion.
Note: Settlement and entry of orders is dealt with in Order
36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) \ AUSTRALIAN CAPITAL TERRITORY
i NO. ACT G 49 of 1990 PISTRICT REGISTRY 1 GENERAL DIVISION
BETWEEN: WILLIAM STUART INGLIS
Applicant
AND: NORMAN CHARLES BATESON
Respondent
IN THE FEDERAL COURT OF AUSTRALIA ) AUSTRALIAN CAPITAL TERRITORY
No. ACT G 56 of 1990
DISTRICT REGISTRY 1 ) GENERAL DIVISION )
BETWEEN: WILLIAM STUART INGLIS
Applicant
AND: G.A. CAMERON
First Respondent
PETER FORSTER
Second Respondent
W.S. MAGEE Third Respondent
MARK BUTZ
Fourth Respondent
CLAIRE BARAM
Fifth Respondent
m: Neaves J.
DATE: 6 December 1990
L
REASONS FOR JUDGMENT
William Stuart Inglis is the applicant in two proceedings under the Administrative Decisions (Judicial peviewl Act 1977 (Cth) (the "Judicial Review Act") pending in this Court.
In the first proceeding (No. ACT G 49 of 1990), in which the respondent is Norman Charles Bateson, the applicant seeks an order of review in respect of a decision made by Mr Bateson on 6 August 1990 and notified to the solicitors for the applicant on 9 August 1990 that, pursuant to s.76W of the Public Service Act 1922 (Cth), the applicant be retired from the Australian Public Service. The applicant alleges that breaches of the rules of natural justice occurred in connection with the making of the decision, that Mr Bateson did not have jurisdiction to make the decision, that the decision was not authorised by the enactment under which it purported to be made, that there was a failure to take into account relevant considerations and that the decision was so
the power. One of the matters relied upon under the first of unreasonable that no reasonable person could have so exercised those grounds is that it was unfair and prejudicial to the applicant for Mr Bateson to make his decision at a time when the applicant had, to Mr Bateson's knowledge, outstanding and unresolved challenges alleging bias in the Assessment Committee upon whose findings and recommendations Mr Bateson based his decision.
The respondents to the second proceeding (NO. ACT G 56 of 1990) are G.A. Cameron, Peter Forster, W.S. Magee, Mark Butz and Claire Baram, being respectively referred to as the first to fifth respondent. Mr Cameron and Mr Forster are respectively described as the Assistant Director and the Senior Assistant Director of the Merit Protection and Review Agency established by the Merit Protection (Australian Bvernment E ~ D ~ o v ~ ~ s I Act 1984 (Cth) ("the Merit Protection Act"). Messrs Magee and Butz and MS Baram are the members of a Redeployment and Retirement Appeal Committee established in accordance with s.23 of the Merit Protection Act for the purpose of hearing and determining an appeal lodged by the applicant under Division 8C of Part I11 of the Public Service Act against the giving of the notice under s.76W of that Act retiring him from the Australian Public Service. In this proceeding, the applicant seeks an order of review in respect of each of the following decisions:
(a)
A decision made by Mr Cameron on 20 September 1990 not to investigate, or permit to be investigated by
the Merit Protection and Review Agency, a grievance
lodged by the applicant relating, inter alia, to a claim of bias in a member of an Assessment Committee set up under the inefficiency provisions of the Public Service Act, which Committee later recommended that the applicant be retired from the Australian Public Service on inefficiency grounds;
(b)
A decision made by Mr Forster conveyed to the applicant on 20 September 1990 not to defer the hearing by the members of the Redeployment and Retirement Appeal Committee of the applicant's appeal against the decision to retire him from the Australian Public Service until after the determination by the Merit Protection and Review Agency of the applicant's grievance referred to in (a) above.
The applicant alleges that a breach of the rules of natural justice occurred in connection with the making of the decisions, that irrelevant considerations where taken into account, that there was a failure to take relevant considerations into account and that there was an error of law as to the meaning and effect of sub-s.49(2) of the Merit Protection Act.
The proceeding numbered ACT G 49 of 1990 was commenced on 6 September 1990, that numbered ACT G 56 of 1990 on 26 September 1990. On 28 September 1990 this Court granted an injunction to the applicant restraining the members of the Redeployment and Retirement Appeal Committee from proceeding to hear and determine the applicant's appeal until the hearing and determination by this Court of the applications numbered ACT G 49 of 1990 and ACT G 56 of 1990 or until further order. Directions were given on that date for the filing of affidavits by the respective parties to the two proceedings. The two proceedings were directed be heard together, the
hearing being fixed for 31 October 1990.
On 10 October 1990, a notice of motion was filed on behalf of the respondents in proceeding No. ACT G 56 of 1990 seeking an order pursuant to sub-s.l0(2)(b)(ii) of the Judicial Review Act that the application for an order of review be dismissed on the ground that adequate provision is made by s.762 of the Public Service Act under which the applicant is entitled to seek a review by a Redeployment and
Retirement Appeal Committee of the decision made by Mr Cameron on 20 September 1990.
On 16 October 1990, a notice of motion to like effect but referring to the decision made by Mr Bateson on 6 August 1990 was filed on behalf of the respondent in proceeding No. ACT G 49 of 1990.
Section 10 of the Judicial Review Act, so far as
material, provides
"10. (1) The rights conferred by sections 5, 6 and 7 on a person to make an application to the Court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision or in respect of a failure to make a decision:
(a)
are in addition to, and not in derogation of, any other rights that the person has to seek a review, whether by the Court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure; and
(b) . . . (2) Notwithstanding sub-section (1):
(a) ... ; and (b) the Court may, in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the Court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason: (i) ... ; or
(ii) that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the Court, by another court, or by another
tribunal, authority or person, of
that decision, conduct or failure.
(3) In this section, 'review' includes a review by way of reconsideration, re-hearing, appeal, the grant of an injunction or of a prerogative or statutory writ or the making of a declaratory or other order."
When the matter came before the Court on 31 October 1990 it was agreed that the hearing of the substantive applications should be deferred pending the hearing and determination of the motions. The members of the Redeployment and Retirement Appeal Committee presented no argument and submitted to any order the Court might make. The other respondents accepted that the burden lay upon them to persuade the Court that it should not exercise the jurisdiction conferred upon it by the Judicial Review Act in respect of the decisions in question: v. coats (1981) 35 A.L.R. 93 per Toohey J. at p.94; Beck v. Thornett (1984) 6 A.L.N. N209 per Everett J.; flercantile Credits Ltd v. Commissioner of Taxation (1985) 8 F.C.R. 510 per Morling J. at pp.517-8; &.E. Bisho~
and Associates Ptv Ltd v. Trade Practices Commission (1989) 11
A.T.P.R. 40-985 per Morling J. at p.50, 744.
Although affidavits had been filed in the substantive proceedings on behalf of the applicant and the respondents, being the respondent Bateson in proceeding No. ACT G 49 of 1990 and the respondents Cameron and Forster in proceeding No. ACT G 56 of 1990, none of those affidavits was read on the hearing of the motions. It is, however, necessary to consider the issues which arise on the motions against a factual background. Consequently, without making any findings of fact at this stage, I shall refer to what seem to be uncontroverted facts appearing from the various affidavits that have been filed. It is also necessary to refer in some detail to the relevant legislative provisions.
On 1 February 1989 the applicant, an officer in the Australian Public Service, was transferred from a position of Administrative Service Officer Class 1 with the National Capital Development Commission to a position of like classification within the Office of City Management, A.C.T. Administration. Upon transfer, the applicant took up duty in the Traffic Engineering Section of the Office of City Management. He continues to be employed in that Office but since 2 March 1990 has performed duty in a different section.
Consequent upon the coming into operation on 11 May
1989 of the relevant provisions of the Australian Ca~ital
3 Terr ' to
(Self-Government) Act 1988 (Cth) ("the Self provisionsI Act 1988 (Cth) ("the Consequential Provisions
Government Act") and the A.C.T. Self-Government (Conseuuential
Act") the persons required for the conduct of the public administration of the Government of the Territory other than members of the service referred to in s.54 of the Self- Government Act formed part of what was referred to as the "transitional staff". By sub-s.21(1) of the Consequential Provisions Act, the transitional staff were to be persons
appointed or employed under the Public Service Act. Sub-
section 21(2) of that Act provided:
"(2) The Head of Administration has all the powers of a Secretary under the [Public Service] Act, so far as they relate to the branch of the Australian Public Service comprising the transitional staff as if that branch were a separate Department.''
Provision for the appointment of a Head of Administration was made by sub-s.49(1) of the Self-Government Act. Section 25 of the Consequential Provisions Act provided that the Merit Protection Act was to apply in relation to transitional staff subject to the modifications in Schedule 4. The modifications in Schedule 4 do not appear to be relevant for present purposes.
It may, thus, be accepted that, for the purpose of
considering the issues raised by the motions, the applicant is
a person to whom Division 8C of Part I11 of the Public Service
Act applies. That Division, comprising ss.76S to 762
inclusive, has the heading "Redeployment and retirement of officers other than Secretaries of Departments and Senior Executive Service officers". Sections 76W, 76X and 762, so far as material for present purposes, provide:
"76W. (1) Where the relevant Secretary is satisfied of a relevant matter in relation to an officer, the relevant Secretary may, having considered whether it would be in the interests of the efficient administration of the Secretary's Department to transfer the officer under section 50, subject to sub-section (2), by notice
in writing given to the officer, reduce the officer's
classification or retire the officer from the Service.( 5 ) A notice given to an officer under this section takes effect as provided by the regulations.
(6) In this section, 'relevant matter', in relation to an officer, means any of the following matters:
(a)
that an officer is unable to perform his or her duties, or other duties appropriate to the officer's classification, because of physical or mental incapacity;
(b) that an officer is inefficient;
(C) that an officer is not qualified to perform his or her duties;
(d) that an officer is an excess officer."
(1) The Board may cause to be published in the Gazette written administrative instructions, not inconsistent with this Act, in relation to the exercise of powers conferred on Secretaries by this Division.
"76X.
(2) The Board may, by notice in writing, give to a Secretary directions in relation to the exercise of powers conferred on Secretaries by this Division.
(3) A Secretary exercising, or proposing to exercise, a power conferred by this Division -
(a) shall comply with any administrative instructions expressed to be binding on
the Secretary under sub-section (2) that are Secretaries and with any directions given to expressed to be binding; and
(b) shall have regard to any other administrative instructions, and to any other directions given to the Secretary under sub-section ( 2 ) . "
"762. (1) An officer to whom a notice under section 76W has been given (not being an officer who, before receiving the notice, consented in writing to the giving of the notice) may, within the prescribed period after receiving the notice, appeal to an Appeal Committee against the giving of the notice, on the ground that the reduction in the officer's classification, or the retirement of the officer, as the case requires, would be unreasonable.
(2) Where an officer appeals to an Appeal Committee against the giving of a notice, an Appeal Committee shall hear and determine the appeal and may -
(a) confirm the notice; or
(b) revoke the notice."
Sub-section 76S(2) provides that, for the purposes of Division EC, an officer is inefficient if and only if the officer fails, in the performance of the duties that he or she is required to perform, to attain or sustain a standard of efficiency that a person may reasonably be expected to attain or sustain in the performance of those duties. Sub-section 768(3) sets out various matters to which regard is to be, and other matters to which regard may be, had for the purpose of determining whether an officer has failed, in the performance of the duties that he or she is required to perform, to attain or sustain the standard of efficiency referred to in sub- s.765(2).
The reference to "the Board" in s.76X is a reference Gazette No.Sl85 dated 20 July 1987, the Public Service Board,
to the Public Service Board. In Commonwealth of Australia
pursuant to s.4 of the Acts Inter~retation Act 1901 (Cth) and s.76X of the Public Service Act, notified administrative instructions relating to the exercise of powers conferred on Secretaries under Division 8C of the Public Service Act in relation to inefficient officers. The instructions provide (par. 2.5) that, where a Secretary is not satisfied with an officer's work performance, the Secretary may give the officer
written warning that the officer must, over the next three months, sustain (or, where appropriate, both attain and sustain) an acceptable standard of work performance and thereby satisfy the Secretary that the officer is efficient, the instructions setting out matters which the warning must include. Unless an officer is given a warning in accordance with par. 2.5, no further action may be taken in relation to that officer (par. 2.6). One of the matters which must be included in the warning is advice that an assessment committee
will be appointed. The function of such a committee is to advise the Secretary, at the completion of an assessment period of three months, on whether the officer has sustained (or, where appropriate, attained and sustained) an acceptable standard of work performance and is efficient, and to recommend the action, if any, the Secretary should take (par. 2.8). The assessment period commences on the day the officer receives the warning notice under par. 2.5 (par. 2.8). The period may be extended beyond three months if there are good reasons for doing so (par. 2.13). The assessment committee is
to consist of at least two officers, one of whom is not to be from that part of the department in which the officer being assessed normally performs his or her duties (par. 2.9). The assessment committee should report to the Secretary in writing within seven days of the completion of the assessment period unless the Secretary specifies a longer period (par. 2.14).
It may be noted that, by the Administrative Arranaements Act 1987 (Cth), the relevant provisions of which came into operation on 18 September 1987, the Public Service Act was amended by repealing the provisions providing for the appointment of the Public Service Board and inserting provisions for the appointment of a Public Service Commissioner. Sub-section 18B(7) of the Public Service Act as so amended provides:
" (7) A reference in any Act, in any instrument under an Act or in any award or other industrial determination or order to the Board shall, except in relation to matters that occurred before commencement [of this section], be construed as a reference to the Commissioner."
Sub-section lBB(5) should also be noted. It provides:
"(5) An instrument (other than a delegation) that was made by the Board and was in force immediately before commencement [of this section] continues in force, on and after commencement, as if it were made by the Commissioner."
The expression "Appeal Committee" in sub-s.76Z(l) is
defined in S. 76S(1) to mean a Redeployment and Retirement
Appeal Committee constituted under Subdivision D of Division 2 of Part I1 of the Merit Protection Act. That sub-division comprises ss.22-26A inclusive. The prescribed period within which an officer may appeal under sub-s.76Z(l) is 14 days (Public Service Regulations, reg.120D).
By virtue of sub-regs 120C(5) and (6) of the Public Service Regulations, a notice given to an officer under s.76W in a case where an appeal is taken to a Redeployment and Retirement Appeal Committee does not take effect unless the Committee confirms the notice, in which event it takes effect on the day on which the notice is confirmed.
Section 22 of the Merit Protection Act requires that the Merit Protection and Review Agency, from time to time, arrange for the establishment, in accordance with 8.23, of such Redeployment and Retirement Appeal Committees as appear to be required for the purpose of appeals under, inter alia, Division 8C of Part I11 of the Public Service Act. Sections 23 and 24 of the Merit Protection Act provide:
"23. (1) A Redeployment and Retirement Appeal Committee shall be constituted by -
(a) a Convenor nominated by the Agency;
(b) a person nominated by -
(i)where the Committee is constituted for the purpose of an appeal under Division 8B of Part I11 of the Public Service Act 1922 or an appeal under Division 8C of Part I11 of that Act against the giving of a notice by the Public Service Board - the Public
Service Board; or (ii)where the Committee is constituted for the purpose of any other appeal by an officer under Division 8C of Part I11 of the Public Service Act 1922 - the relevant Secretary; and
(c)
a person nominated by the organisation that is, under the regulations, the appropriate organisation or, in the absence of such a nomination, a person nominated as provided by the regulations.
(2) In this section, 'officer' has the same meaning
as in Division 8C of Part I11 of the Public Service Act
24. For the purpose of hearing and determining an
appeal of the kind referred to in section 22, a
Redeployment and Retirement Appeal Committee may take
evidence on oath or affirmation and, for those purposes,
a member of the Committee may administer an oath oraffirmation."
Sections 36 and 37 forming part of Sub-division G -
Miscellaneous provide:
"36. A member of a Review Committee, while acting as such, is not subject to direction by any other person or by any body or authority other than a court.
37. (1) In proceedings before a Review Committee -
(a)
the Committee shall make such inquiries as it considers necessary into the matter before the Committee;
(b)
the procedure of the Committee is, subject to this Act and the relevant Act and to the regulations made under those Acts, within the discretion of the Committee;
(c)
the proceedings shall be conducted with as little formality and technicality, and as quickly, as a proper consideration of the matter before the Committee permits; and
(d)
the Committee is not bound by rules of evidence.
(2) In sub-section (l), 'relevant Act' means - (a) in relation to a . . . Redeployment and Retirement Appeal Committee ... - the public
Service Act 1922; and
(C) . . . "
The Merit Protection (Australian Government Employees) Regulations provide, in reg.31, that, except where a Redeployment and Retirement Appeal Committee is satisfied that it is desirable to do otherwise by reason of the
confidential nature of any evidence or matter or for any other reason, a proceeding before the Committee is to be in public. Regulation 27 provides:
"27
(1) Subject to subregulation (3), an appellant may, within 28 days after the end of the period within which he or she was entitled to appeal or within such further period as the Agency may allow for special reasons during that 28 day period, submit to the Agency a statement setting out information relating to the appeal which was not specified in any document by which that appeal was instituted.
(2) Subject to subregulation (3), where an appropriate authority is notified by the Agency of an appeal against the giving of a notice by that authority, it may, within 28 days after the day on which that authority is so notified or within such further period as the Agency may allow for special reasons during that 28 day period, submit to the Agency a statement setting out information relating to the appeal which was not specified in that notice.
(3) Subject to regulation 28, where a party to an appeal submits a statement under subregulation (1) or (2), that party shall, as soon as practicable, furnish a copy of that statement to the other party."
Regulation 32 provides that a party to an appeal may be represented by an official of an organisation within the
meaning of the Conciliation and Arbitration Act or, with the approval of the Committee, by some other person. Where a Committee determines an appeal, it is required, as soon as practicable, to cause all parties to the appeal and the Agency to be notified in writing of its decision on the appeal and of the reasons for that decision (reg.36).
To return to the factual background - on 15 November 1989
Mr Bateson signed a document bearing that date and addressed
to the applicant, the document being in the following terms:
"As a person authorised by the Head of Administration to issue warnings to officers of the Office of City Management under the inefficiency procedures notified by the Public Service Board, I hereby warn you that you must, over the next three months, attain and sustain an acceptable standard of work performance and satisfy the Head of Administration that you are efficient.
I am giving you this warning because I am not satisfied
that you have, in the course of performing the duties required of you, attained a standard of work performance that can reasonably be expected of a person performing those duties.
I have formed this opinion about your work performance
for the following reasons:You have not applied yourself diligently to the completion of a work task in accordance with your supervisor's instructions without being sidetracked from your duties;
You have demonstrated that you cannot work without close supervision or undertake privileged work tasks. You will be confined to office duties and you will not be entitled to undertake privileged work tasks such as field work and vehicle responsibilities until you have demonstrated an acceptable standard of work performance;
You have been counselled on a number of occasions by senior staff in the Traffic Engineering Section concerning your unacceptable work attendance and standard of work performance, however, during the course of counselling you have displayed an attitude of resistance. I remind you that, as a public servant, you are required, by the Public Service Regulations to accept and comply with all reasonable directions given to you by your supervisors concerning times of work attendance and completion of allocated work duties; and Your attitude towards staff members, visitors and telephone callers is considered to be unsatisfactory.
If during the next three months you do not attain and sustain an acceptable standard of work performance and
the Head of Administration is satisfied at the end of that period that you are inefficient, the Head of Administration may, by notice in writing, reduce you in classification or retire you from the Service.
If you are given notice of reduction or retirement without your consent, you will have the right to appeal to a Redeployment and Retirement Appeal Committee. If you were to appeal against the giving of that notice, it would then not take effect unless and until the Head of Administration's decision was confirmed by the appeal Committee.
As an officer authorised by the Head of Administration I have appointed an assessment committee to assess your work performance during the next three months and to recommend the action, if any, the Head of Administration should take at the end of that period. The members of the assessment committee are:
Graeme Shoobridge, Engineer Class 4
Traffic Engineering Section
Trudi Ainsmith, AS06
Staff Development Unit
I attach for your information an extract from the Public Service Board's inefficiency procedures which outlines the functions and procedures of the assessment committee. The members of the committee will explain to you at an early stage how they propose to go about their task. You will have the opportunity to make submissions, orally and/or in writing, to the committee."
The original of the document was delivered to the applicant on
the date it bears.
On 16 March 1990 the Assessment Committee furnished its report to Bateson, the report stating that it was based on the committee's findings "from the period 15 November
1989 to 15 February 1990". The findings of the committee
and its recommendation are recorded as follows:
"The considered findings of the Committee are that:
Mt Inglis has not applied himself diligently to the
completion of his work tasks in accordance with his supervisor's instructions without being sidetracked from his duties;
Mx Inglis has failed to demonstrate that he can
maintain an acceptable standard of work performance or satisfactory attendance during standard working hours ;
Mt Inglis has not accepted and complied with all
reasonable directions given to him by his supervisors concerning times of work attendance, completion of allocated work duties and intra-office behaviour.
The conclusion which has been reached by the Committee is that, despite the high level of guidance and instruction by his supervisors over the period of assessment, Mr Inglis has failed to attain and sustain an acceptable standard of work performance that could reasonably be expected of a person performing the duties of Administrative Service Officer Class 1 in Position Number 10329 in Traffic Engineering Section.
RECOMMENDATION
The Committee recommends that Mr Inglis be retired from the ACT Administration and that consideration be given to referring him for medical examination to determine his eligibility for invalidity retirement."
A copy of the report was delivered to the applicant's solicitors on 22 March 1990.
By letter dated 6 July 1990 addressed to the Director, Merit Protection and Review Agency, the solicitors for the applicant, pursuant to reg.84(1) of the Public Service Regulations, applied on behalf of the applicant for investigation by that Agency of the actions of Mr J. Turner,
Secretary, A.C.T. Department of Urban Services on 25 June 1990 in dismissing the following grievances of the applicant:
"(i) Grievance alleging bias in a member of an assessment committee charged with investigating and reporting on Mr Inglis' efficiency;
(ii) Grievance against deferment of Mr Inglis' salary increment;
(iii) Grievance alleging failure to provide all folios on Mr Inglis personal file;
( iv) Grievance alleging unfair treatment by MS Carol
Hibberson and Mr Tom Brimson;(V) Grievance alleging coercive and threatening assessment committee towards Mr Inglis;
behaviour by a member of the abovementioned
(vi
Grievance alleging failure by the assessment committee to provide relevant documentation to
Mr Inglis." On 6 August 1990 Mr Bateson signed a document in the
following terms:
"PUBLIC SERVICE ACT 1922 - SECTION 76W
NOTICE OF RETIREMENT - INEFFICIENCY
petirement
I, Norman Charles Bateson, Delegate of the Head of
Administration
(1) being satisfied that you are, within the meaning of section 76s of the Public Service
Act, an inefficient officer; and
(2) having considered whether it would be in the interests of the efficient administration of the Department to transfer you under section 50 of that Act;
GIVE NOTICE TO YOU, WILLIAM STUART INGLIS, that you are retired from the Australian Public Service.
Riuht of &meal
Under section 762 of the Public Service Act you have a right to appeal to a Redeployment and Retirement Appeal Committee against the giving of this notice. The sole ground of appeal is that the action to retire you would be unreasonable. If you decide to appeal, you must lodge your appeal within 14 days after you receive this notice. The appeal must be in writing and be lodged with: The Director, Merit Protection and Review Agency, PO Box E440, Canberra, ACT, 2600.
Date of Effect
This retirement will take effect, subject to any appeal you may make, one month after the day you are given this notice.
If you appeal against the giving of this notice, the notice cannot take effect until the appeal is decided against you or you have withdrawn your appeal. If the appeal committee decides in your favour, this notice will not take effect.
Reasons for Decision
I have attached a statement of my reasons for giving this
notice. "
The attached "Statement of Reason for Decision" reads as follows :
"On 31 January 1989, you were appointed to the (then) Office of City Management, ACT Administration as an Administrative Service Officer Class 1 as a consequence of the abolition of the National Capital Development Commission.
You were allocated the Traffic Engineering Section and were required to perform the duties of an Administrative
Service Officer Class 1 with that Section. On 27 October 1989 I notified you that because of unsatisfactory diligence and efficiency, payment of your increment, which was due on 25 October 1989, was deferred for 12 months.
On 15 November 1989 I issued a formal warning to you, in accordance with the inefficiency instructions notified in the Special Gazette No 185 of 20 July 1987. The formal warning included my reasons for issuing the warning.
An assessment committee comprising:
Graeme Shoobridge, Engineer Class 4 Traffic
Engineering Section; andTrudi Ainsmith, Administrative Service Officer Class
6 Staff Development Unit,
was appointed to assess your performance over a three
month period.The assessment committee recommended that consideration be given to referring you for medical examination to determine your eligibility for invalidity retirement. I have not accepted this recommendation as your sick leave history does not support such a course of action. Nor have you produced any medical evidence to support such an action.
The position you occupied in Traffic Engineering Section has since been transferred to the Transport/Policy - - Branch. You still occupy that position. Some five months have elapsed since the assessment period ended. The delay in making a decision has been contributed to by:
- a request from the assessment committee for more time to complete their report; and
- resolution of your grievance about the process followed by the department in conducting the assessment.
I note that you have requested the Merit Protection &
Review Agency to review your grievance.The assessment committee reported that you had failed to attain and sustain an acceptable level of work performance that could reasonably be expected of a person performing the duties of an Administrative Service Officer Class 1 in position number 10329 in Traffic Engineering Section. I accept the assessment committee's
finding . Before accepting the assessment committee's recommendation that you be retired, I considered transferring you to another position. I rejected this option because I believe that your standard of work performance, as reported by the assessment committee, makes this option impractical.
Reduction is not a possibility because the Department has no offices below the level of Administrative Service Officer Class 1."
On 13 August 1990 a notice of appeal against the giving of the notice of retirement dated 6 August 1990 was lodged on behalf of the applicant with the Director of the Merit Protection and Review Agency. The ground of appeal was expressed as being that the action to retire the applicant would be unreasonable.
By letter dated 20 September 1990 Mr Cameron informed the applicant's solicitors as follows:
"I refer to the grievance lodged by you on behalf of Mr Inglis under the provisions of Public Service Regulation
84 concerning the actions taken by the Department of
Urban Services leading to the establishment of and during the conduct of an Assessment Committee set up under the inefficiency provisions of the Public Service Act.
The Agency has noted that Mr Inglis was subsequently issued with a Notice of Retirement on inefficiency grounds and has appealed against the Notice to the Redeployment and Retirement Appeal Committee (RRAC).
Sub-section 49(2) of the Merit Protection (Australian
Government Employees) Act provides:'Where a Commonwealth employee has exercised, or exercises, a right to cause action to which his application relates to be reviewed by a court or by a tribunal constituted by or under an enactment, the Agency shall not investigate, or continue to investigate, as the case may be, the action unless the Agency is of the opinion that there are special
or the investigation of the action further.' reasons justifying the investigation of the action
The Agency has noted that the grievance relates to a number of issues including access to papers and bias and unfair treatment on the part of a member of the Assessment Committee and other officers . The Agency believes that these are matters which may be argued before the RRAC which is a tribunal constituted under an enactment. In accordance with sub-section 49(2) the Agency shall not investigate the action unless there are special reasons justifying the investigation. The Agency does not believe that such special reasons exist in this case.
The Agency will not therefore be investigating those matters which may be dealt with by the RRAC. It notes, however, that some aspects of the grievance are
peripheral to %he inefficiency process and the RRAC's
consideration and will therefore inquire into those
matters when resources are available.It is likely that the Agency's case officer will need to discuss these matters with Mr Inglis and I would appreciate your advice as to whether such contact should be made through you in the first instance.
I would also confirm oral advice given to you on Monday of this week by Mr Peter Forster of this Office that, in these circumstances, the Agency sees no basis on which to agree to your request for a deferral of the hearing of the appeal by the RRAC. In the Agency's view it would be desirable to commence the hearing as planned; if during the hearing the need for an adjournment arises, you would of course be free to raise the matter with the Committee."
!4r Coppel, who appeared on behalf of Messrs Cameron
and Forster, submitted that the applicant's appeal to a Redeployment and Retirement Appeal Committee against the giving of the notice under s.76W of the Public Service Act would involve the Committee undertaking a full review on the merits of the question whether the applicant should be retired from the Australian Public Service. It was said that the Committee would not be confined to a consideration of the question whether or not his retirement would be
retirement of the officer ... would be unreasonable" appearing "unreasonablew, the words "on the ground that . . . the in sub-s.762(1) merely prescribing the manner in which an officer is to make his appeal. It was argued that, where legislation provides that an individual may appeal to a tribunal (however described) which may confirm or revoke a decision, the tribunal is empowered, absent clear words limiting its powers or functions, to consider the whole matter afresh. Counsel referred to Ste~nev Borouah Council v. Joffe
[l9491 1 K.B. 599; Saanata Investments Ltd v. Norwich
cor~oration [l9711 2 Q.B. 614; Ex Darte Australian S~ortinqclub Ltd v. .Q&& (1947) 47 S.R. 283. The following considerations were said to be significant:
(a)
That the appeal is "against the giving of the notice" under s.76W of the Public Service Act and that the duty of the Committee is to "hear and determine the appeal" with power to confirm or revoke the notice, this being, so it was submitted, a more extensive task than determining whether the retirement of the officer would be unreasonable;
(b)
That the powers conferred on a Redeployment and Retirement Appeal Committee for the purpose of hearing and determining an appeal under 8.762 of the Public Service Act are apposite to an appeal on the merits against the giving of a notice under s.76W;
(c)
That sub-s.762(1) contains a provision in addition to that relating to the ground of appeal which deals with the manner in which an appeal is to be made, this provision being identified as the requirement that an appeal be made "within the prescribed period after receiving the notice" under s.76W;
(d) That the Parliament has, in the Public Service Act and in other statutes, used a different form of words where it has intended to confine the determination of an appeal to certain grounds, reference being made to the Public Service Act, sub-
P
s.50B(2), the- Debit Tax Administration ~ c t - 1982 (Cth), s.25D1 the Estate Dutv Assessment Act 1914 (Cth), sub-s.27(3), and the Gift Dutv Assessment Act
1941 (Cth), sub-s.34(3); and
(e) That to hold that the appeal did not involve a full review on the merits would be to restrict an officer's right of appeal against a decision that he be retired from the Australian Public Service.
In the alternative it was submitted that, even if the Redeployment and Retirement Appeal Committee was limited to determining whether the retirement of the applicant would be unreasonable, such an appeal would afford him adequate
provision for the review of the decision to issue the notice under s.76W of the Public Service Act. Reference was made to B l ~ i t t s v. Australian Telecommunications Commission (1986) 9 F.C.R. 52 and Reid v. Australian Telecommunications Commission (1988) 14 A.L.D. 554. It was said to be significant that the
question for the Committee was whether the retirement of the applicant would be unreasonable, not whether the decision of
Mr Bateson to issue the notice under s.76W was unreasonable.
It was further submitted that, on either analysis of the nature of the appeal, any defects in the primary decision- making process would no longer be of consequence as the review by the Redeployment and Retirement Appeal Committee would afford the applicant full opportunity to present material additional to that which was before Mr Bateson, to controvert any material placed before the Committee in support of the decision that he be retired and to make submissions. The Committee's task would be to reach a decision solely on the material presented to it, independently of the decision
primary decision-making process would be cured by a proper reached by Mr Bateson. Thus, it was said, any defects in the hearing and determination of the appeal. It also followed, so it was said, that a decision by the Merit Protection and
Review Agency concerning the investigation of the grievance lodged by the applicant in relation to the primary decision- making process would no longer be of consequence.
The grounds upon which it was submitted that the Court should exercise its discretion under sub-s.l0(2)(b)(ii) of the Judicial Review Act and refuse to entertain the applications were summarised as follows:
(a)
The Parliament has made special and adequate provision under which the applicant is able to have
Mr Bateson's decision reviewed by a Redeployment and
Retirement Appeal Committee;
(b)
Any review by a Redeployment and Retirement Appeal Committee will necessarily be more extensive than a review by the Court under the Judicial Review Act;
(c)
A decision by the Court would not necessarily be a final determination of the matter as, even if the notice under s.76W of the Public Semice Act were set aside, a fresh notice could issue;
(d) There would be a saving of expense to the parties;
(e) No real prejudice would be suffered by the applicant as the notice under s.76W does not take effect
unless and until the Redeployment and Retirement
Appeal Committee confirms the notice; and(f) The applications do not involve any point of law upon which it is desirable to have an authoritative decision by the Court.
In the further alternative it was submitted that, even if the Court were not prepared to exercise its discretion
under sub-s.lO(Z)(b)(ii) of the Judicial Review Act and refuse
to entertain the proceeding No. ACT G 49 of 1990, it should exercise its discretion and refuse to hear the proceeding No. ACT G 56 of 1990.
Mr Meagher, who appeared for Mr Bateson, put
submissions to the Court substantially to the same effect as those advanced by Mr Coppel. The burden of Mr Meagher's submissions was that the appeal to a Redeployment and
Retirement Appeal Committee for which 8.762 of the Public Service Act provides involves a full review of the question whether the applicant should be retired so that, provided the Committee acts fairly and does not depart from the requirements of natural justice in the conduct of the appeal, any defect in natural justice or in fairness in the primary decision-making process of which the applicant complains would be "cured". He referred to calvin v. [l9801 A.C. 574; Twist v. Randwick Munici~al Councia (1936) 136 C.L.R. 106; Col~itta v. Australian Telecommunications Commission (supra);
v. Australian Telecommunications Commissioq (supra); Beck
v. Thornett (supra); Brell v. Willmot (1988) 17 A.L.D. 462;
Secretarv. DeDartment of Social Security v. Willie (6 July
1990 - Federal Court of Australia - unreported).
Mr Nash for the applicant opposed the motions, submitting that the Court should proceed to hear and determine the substantive applications prior to the applicant's appeal
again coming before the Redeployment and Retirement Appeal
Committee.
The initial question for consideration is the role of the Redeployment and Retirement Appeal Committee in a case where an appeal is lodged under s.762(1) of the Public Service Act against the giving of a notice under s.76W. Consideration of this question must begin with an examination of the role
under s.76W of the primary decision-maker, called in that
section "the relevant Secretary".
The exercise of the power which sub-S. 76W(1) confers on the relevant Secretary is conditioned upon his state of satisfaction as to "a relevant matter", an expression which has the meaning ascribed to it by sub-s.76W(6). In the circumstances of the present case the prescribed "relevant matter" is that the officer is inefficient, the sole test of inefficiency for this purpose being the objective test set out in sub-s.76S(2) read, of course, with sub-s.76S(3). Action cannot be taken under s.76W1 however, unless the Secretary, in accordance with the instructions published under s.76X1 has given the officer a warning notice and has subsequently received, from an Assessment Committee appointed by him, a report as to the officer's efficiency over a period of three months. Upon being satisfied that the officer is inefficient, the Secretary is required to consider whether it would be in the interests of the efficient administration of the
Secretary's Department to transfer the officer, under s.50 of the Public Service Act, to a vacant office in that department, which vacancy has been notified in the Commonwealth of Australia Gazette. Following consideration of that matter, the Secretary may, in the exercise of his discretion, reduce the officer's classification or retire the officer from the Australian Public Service. There are no words expressly limiting the ambit of the discretion, any limitation to be
2 9
placed upon it having to be found in a consideration of the
scope and purpose of the relevant legislative provisions.
In the event that the Secretary decides to reduce the officer's classification or retire him from the Australian Public Service and gives him a notice to that effect, the officer has conferred upon him the right of appeal for which 8.762 provides. The appeal, however, is limited to the ground that the reduction in the officer's classification, or the retirement of the officer, as the case may be, "would be unreasonable". There was some discussion during the hearing as to the use by the draftsman of the subjunctive rather than the present tense in identifying the ground of appeal. Its use seems to me to be explicable on the basis that, where an appeal is lodged, the reduction in classification, or the retirement, does not take effect unless and until the Redeployment and Retirement Appeal Committee confirms the Secretary's notice. It is, therefore, quite apt to identify the ground of appeal as being whether the reduction or
retirement, which has not yet occurred, would be unreasonable if it were to be effected. I am unable to accept the submission advanced by Mr Coppel that sub-s.762(1), in so far as it identifies the ground of appeal, is to be characterised as a provision concerning the manner and form of the notice of appeal with no operative effect upon the role of the appeal tribunal. In my opinion, the legislature has, by delineating the ground of
3 0
appeal in that way, also marked out the limit of the appeal tribunal's function. The appeal is not at large. It is more restricted than that: it is confined to the stated ground: see Bewley v. Cruickshanks (1984) 1 F.C.R. 534 at pp.539-541; parkex v. Australian National Railwavs Commission (17 October
1990 - Federal Court of Australia - unreported). That is not
to say, however, that the Redeployment and Retirement Appeal Committee is, in determining that ground of appeal, limited to the material that was before the primary decision-maker. Clearly that was not the Parliament's intention. The Committee is to have before it such material as the parties furnish to it pursuant to reg.27 of the Merit Protection (Australian Government Employees) Regulations but, in addition, it is required to make such enquiries as it considers necessary into the matter before it (Merit Protection Act, sub-s.37(l)(a)) and for this purpose it may take evidence on oath or affirmation (ibid., 8.24) while not being bound by the rules of evidence (ibid., sub-s.37(l)(d)). The legislation, however, does not confer on a Redeployment
whether or not, in all the circumstances, the officer should and Retirement Appeal Committee a general power to consider be reduced in classification or retired. It is not sufficient to warrant the Committee revoking a notice given under s.76W that it has reached a different conclusion from that reached by the Secretary. It may revoke such a notice if, and only if, it reaches the conclusion, on the material before it, that the reduction in classification or retirement, as the case may be, "would be unreasonable". Further, the Committee's power
is limited to confirming or revoking the notice given by the Secretary. The Committee may not, for example, in a case where the appeal is from the giving of a notice that the officer be retired from the Australian Public Service, direct that, in lieu of such retirement, the officer be reduced in classification. There may be other limitations upon the role of a Redeployment and Retirement Appeal Committee but that aspect of the matter need not now be considered.
In the light of these considerations, it cannot, in my opinion, properly be said that the appeal for which 6.762 of the Public Service Act provides is a full and comprehensive appeal. Nor, in my view, having regard to the grounds upon which the applicant seeks to challenge the legal effectiveness of the notice given to him by Mr Bateson, can it properly be said that, in the circumstances of this case, 6.762 makes adequate provision within the meaning of sub-s.l0(2)(b)(ii) of the Judicial Review Act, for the review of the decision embodied in that notice.
col~itts v. Australian Telecommunications Commissiorl
(supra) and v. Australian Telecommunications Commission (supra) concerned legislation providing for the review, administratively, of decisions taken to retire officers of the Commission. In my opinion, however, nothing that was said in those cases supports the proposition that the Court should decline to entertain the present applications under the Judicial Review Act. On the contrary, what was said by
3 2
Burchett J. in the former (and concurred in by Wilcox J. in the latter) when dealing with the issues which would have arisen on the assumption, contrary to his Honour's view, that the regulations there relevant were validly made, requires that the present motions be dismissed. His Honour concluded that the limited review which the regulations provided made it impossible to say that an attempt by Mr Colpitts to pursue that avenue of review could "cure" a deficiency in the procedures adopted in the primary decision-making process. The limitation upon the review in that case resulted not from a prescription of the grounds of appeal or the scope of the inquiry that the review tribunal was required to make, but from the circumstance that the review tribunal could only make a recommendation and not a definitive decision. Under the legislation here in question, the Redeployment and Retirement Appeal Committee has power to confirm or revoke the notice against which the appeal is brought but the review process is subject to the other limitations to which I have adverted.
I should add that, even if the Redeployment and Retirement Appeal Committee, in the conduct of the appeal, were to conclude that it should not take into account the report dated 16 March 1990 of the Assessment Committee appointed by Mr Bateson because of its view that there was bias, or the perception of bias, in one of the members of the Assessment Committee, it would not automatically follow that the applicant would be entitled to have the notice given by Mr Bateson revoked. A finding to that effect by the Court would,
3 3
however, almost inevitably lead to the notice being set aside, tendering unnecessary the hearing and determination of the appeal under 8.762.
For the reasons set out above, I am of opinion that the fact that the applicant has exercised the right conferred upon him by 8.76'2 of the Public Service Act to appeal to a Redeployment and Retirement Appeal Committee against the notice given to him by Mr Bateson does not operate to preclude him from challenging the efficacy in law of Mr Bateson's
decision and is not a matter which should lead this Court to decline to exercise its jurisdiction under the Judicial Review Act, in proceeding No. ACT G 49 of 1990, to review that decision. Having reached the conclusion that the Court should entertain that proceeding, I can see no merit in declining to entertain the related proceeding No. ACT G 56 of 1990.
. .
Accordingly, I make the following orders - in proceeding No. ACT G 49 of 1990, the motion is dismissed, the
G 56 of 1990, the motion is dismissed, the first and second respondent to pay the applicant's costs; in proceeding No. ACT respondents to pay the applicant's costs.
I certify that this and the
preceding 32 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves .
Associa
Dated: 6 December 1990
Counsel for the applicant : Mr I.W. Nash
in both matters
Solicitor for the applicant : Snedden Hall & Gallop
in both matters
Counsel for the respondent in : Mr B. Meagher
matter No. ACT G 49 of 1990
Solicitor for the respondent : ACT Government Solicitor
in matter No. ACT G 49 of 1990
Counsel for the respondents in : Mr P.A. Coppel
matter No. ACT G 56 of 1990
Solicitor for the respondents in : Australian Government
matter No. ACT G 56 of 1990 Solicitor
Date of hearing : 31 October 1990 Date of judgment : 6 December 1990
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