Kelly v Commissioner of the Department of Corrective Services - [2001] NSWCA 148

No judgment structure available for this case.

Reported Decision:
(2001) 106 IR 181
52 NSWLR 533

New South Wales

Court of Appeal

CITATION: Kelly v Commissioner of the Department of Corrective Services & Anor [2001] NSWCA 148

FILE NUMBER(S): CA 40270/00

HEARING DATE(S): 3 May 2001

JUDGMENT DATE:
25 May 2001

PARTIES :

Leslie Kelly (Appellant)
Commissioner of the Department of Corrective Services (1st Respondent)
Government and Related Employees Appeal Tribunal (2nd Respondent)

JUDGMENT OF: Giles JA at 1; Heydon JA at 7; Rolfe AJA at 97

LOWER COURT JURISDICTION : GREAT

LOWER COURT
FILE NUMBER(S) : GREAT 623/99

LOWER COURT
JUDICIAL OFFICER :

COUNSEL: Mr M L D Einfeld QC/Mr A A Hatcher (Appellant)
Ms T J Anderson (1st Respondent)
Submitting appearance (2nd Respondent)

SOLICITORS: Jones Staff & Co (Appellant)
I V Knight (1st Respondent)
GREAT (2nd Respondent)

CATCHWORDS: Administrative Law - Jurisdiction of Government and Related Employees Appeals Tribunal - Whether Tribunal lacked jurisdiction to review decision to recommend dismissal of officer to Governor - Whether Tribunal lacked jurisdiction to review decision to withhold salary from suspended officer - Existence of jurisdictional fact - Whether relevant decisions were "disciplinary" in nature so as to invoke Tribunal’s jurisdiction - Government and Related Employees Appeals Tribunal Act 1980 (NSW), ss 23(1)(e) and 23(1)(f). - Employment Law - Whether Crown’s prerogative right to dismiss public employees at pleasure can be fettered by an appeal to the Government and Related Employees Appeals Tribunal - Where appeal to Tribunal was against decision to recommend dismissal to Governor rather than against dismissal decision itself - Government and Related Employees Appeals Tribunal Act 1980 (NSW), ss 23(1)(e), 23(1)(f) and 37. - Statutory Construction - Whether sections of Government and Related Employees Appeal Tribunal Act should be read down so as to detract from the Crown’s prerogative right to dismiss at pleasure - Whether Parliament intended Tribunal to hear appeals against decisions to recommend to the Governor that an officer be dismissed subject to the Crown’s right to dismiss at pleasure - Government and Related Employees Appeal Tribunal Act 1980 (NSW), ss 23(1), 24(1) and 37 - and Public Sector Management Act 1988 (NSW), s 54. D

LEGISLATION CITED: Civil Service Act 1884
Crown Employees Appeal Board Act 1944
Crown Proceedings Act 1988
Government and Related Employees Appeal Tribunal Act 1980
Public Sector Management Act 1988
Public Service Act 1895
Public Service Act 1902
Public Service Act 1979
Supreme Court Act 1970

CASES CITED:
Australian Communist Party v The Commonwealth (1951) 83 CLR 1
Baker v Campbell (1983) 153 CLR 52
Bropho v State of Western Australia (1990) 171 CLR 1
Council of Civil Service Trade Unions v Minister for the Civil Service [1985] AC 374
Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648
Dunn v R [1896] 1 QB 116
Ex parte Wurth; re Craig (1954) 55 SR (NSW) 47
FAI Insurances Ltd v Winneke (1982) 151 CLR 342
Gould v Stuart [1896] AC 575
John v Rees [1970] Ch 345
Kaye v Attorney-General for Tasmania (1956) 94 CLR 193
Malloch v Aberdeen Corporation [1971] 2 All ER 1278
Managing Director, New South Wales Technical and Further Education Commission v Fines (1993) 32 NSWLR 385
Minister for Arts Heritage and Environment v Peko-Wallsend Ltd (1987) 75 ALR 218
Morrison v Abernethy School Board (1876) 3 R 945
Power v R (1873) 4 AJR 141
R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170
Ridge v Baldwin [1964] AC 40
Ryder v Foley (1906) 4 CLR 422
Shenton v Smith [1895] AC 229
Smith v Allan, Secretary, Treasury of New South Wales (1993) 31 NSWLR 52
Sorby v The Commonwealth (1983) 152 CLR 281
In re Tufnell (1876) 3 Ch D 164
Yates Property Corporation Pty Ltd v Boland (1997) 145 ALR 169

DECISION: See para 96

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40270/00
GREAT 623/99

GILES JA
HEYDON JA
ROLFE AJA

Friday, 25 May 2001

Leslie KELLY v COMMISSIONER OF THE DEPARTMENT

OF CORRECTIVE SERVICES and GOVERNMENT AND

RELATED EMPLOYEES APPEAL TRIBUNAL

Administrative Law - Jurisdiction of Government and Related Employees Appeals Tribunal - Whether Tribunal lacked jurisdiction to review decision to recommend dismissal of officer to Governor - Whether Tribunal lacked jurisdiction to review decision to withhold salary from suspended officer - Existence of jurisdictional fact - Whether relevant decisions were “disciplinary” in nature so as to invoke Tribunal’s jurisdiction - Government and Related Employees Appeals Tribunal Act 1980 (NSW), ss 23(1)(e) and 23(1)(f).

Employment Law - Whether Crown’s prerogative right to dismiss public employees at pleasure can be fettered by an appeal to the Government and Related Employees Appeals Tribunal - Where appeal to Tribunal was against decision to recommend dismissal to Governor rather than against dismissal decision itself - Government and Related Employees Appeals Tribunal Act 1980 (NSW), ss 23(1)(e), 23(1)(f) and 37.

Statutory Construction - Whether sections of Government and Related Employees Appeal Tribunal Act should be read down so as to detract from the Crown’s prerogative right to dismiss at pleasure - Whether Parliament intended Tribunal to hear appeals against decisions to recommend to the Governor that an officer be dismissed subject to the Crown’s right to dismiss at pleasure - Government and Related Employees Appeal Tribunal Act 1980 (NSW), ss 23(1), 24(1) and 37 - and Public Sector Management Act 1988 (NSW), s 54.

The appellant commenced his appointment as a Prison Officer within the Department of Corrective Services on 21 March 1998. In or about 1994 he was made a Senior Prison Officer. The appellant gave evidence to the Independent Commission Against Corruption (ICAC) on 31 March, 20 April and 29 April 1999.

On 12 May 1999 he was sent a letter from the Senior Assistant Commissioner, Inmate and Custodial Services, which informed the appellant that he had been suspended from duty for alleged breaches of discipline under the Public Sector Management Act 1988 (NSW). On 11 October the Commissioner of the Department of Corrective Services sent the appellant a letter which listed a series of admissions made by the appellant to the ICAC, and stated that the Commissioner was considering recommending dismissal of the appellant pursuant to the Crown’s right to dismiss at pleasure.

On 3 November 1999 the appellant was sent a letter by the Acting Commissioner which stated that the Acting Commissioner had decided to recommend to the Governor that the appellant be dismissed from the Public Service pursuant to the Crown’s right to dismiss at pleasure and that the appellant was to remain suspended without pay in the interim.

The appellant lodged a Notice of Appeal to the Government and Related Employees Appeal Tribunal (the Tribunal) on 17 November 1999, against the Acting Commissioner’s decisions of 3 November 1999 in relation to the recommendation of dismissal and the withholding of pay during suspension.

The Executive Council approved the recommendation to dismiss the appellant on 25 November 1999. On 10 February 2000 the Tribunal disallowed the appeal for want of jurisdiction. The Tribunal held that it lacked the jurisdiction to hear the appeal.

This is an appeal by the appellant against the orders of the Tribunal, and a challenge (by Amended Summons) to the Executive Council’s approval of the recommendation to dismiss the appellant.

The most relevant statutory provisions are as follows:

“Where, in relation to an employee, an employer makes a decision, or a decision to make a recommendation:
…(e) to suspend the employee as a punishment where the employee is held to be guilty of misconduct or contravention of any law or any rule or direction of the employer,

(f) to dismiss the employee, or…

The employer shall, except as may be otherwise provided by an order made under subsection (3), give the employee notice, in writing, of the decision as soon as practicable after the decision is made”

“Notwithstanding anything contained in any other Act, an employee may, subject to and in accordance with this Part, appeal to the Tribunal against a decision of his or her employer, being a decision of a kind referred to in section 23(1)”

Public Sector Management Act 1988 (NSW), s 54:

“The right or power of the Crown to dispense with the services of any

person employed in the Public Service, as it existed immediately before the commencement of this section, is not abrogated or restricted by any of the provisions of this Act.”

Held by Heydon JA (Giles JA and Rolfe AJA concurring), allowing the appeal in part:

Acting Commissioner’s decision to recommend the appellant’s dismissal to the Governor.

a. The Tribunal misapprehended the issue before it and considered

b. The decision to recommend dismissal had the requisite

Director-General of Department of Corrective Services v Mitchelson

Director-General of Dept of Corrective Services v Mitchelson

d. There is no reason to read down s 23(1) by reference to s 54

Public Service Management Act

e. The Crown’s right of dismissal at pleasure does not necessarily

make an appeal to the Tribunal futile, since the airing of issues during the appeal might affect the Crown’s exercise of this right. The Crown is unlikely intentionally to render such an appeal nugatory through its silence. Also, s 37(1) of the GREAT Act empowers the Tribunal to compel the production of documents, the preparation of a written case and the giving of evidence.

legislation is required. In this case the legislation is sufficiently clear to demonstrate that the Parliament has granted a right of appeal to the Tribunal against a decision to recommend an officer’s dismissal to the Governor.

(as a re-enactment of a provision in the PSM Act) that the GREAT Act does not apply to a case of dismissal at pleasure.

h. It is common practice in Australia for the Executive Council to

arrive at administrative decisions. This suggests that s 23(1) and s 24(1) anticipate appeals from recommendations to the Executive Council that an officer be dismissed.

i. There is practical content in “a decision to make a

the decision to withhold the appellant’s salary during his suspension.

Managing Director, NSW Technical and Further Education Commission v Fines

3. The appellant is entitled to a statutory stay of his dismissal by the
Executive Council, under s 26 of the GREAT Act.

a. The appellant’s appeal against the Acting Commissioner’s

decision to recommend the appellant’s dismissal to the Governor was competent, and he had complied with the time requirements of s 29.

Smith v Allan, Secretary, Treasury of NSW

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40270/00
GREAT 623/99

GILES JA
HEYDON JA
ROLFE AJA

Friday, 25 May 2001

Leslie KELLY v COMMISSIONER OF THE DEPARTMENT
OF CORRECTIVE SERVICES and GOVERNMENT AND
RELATED EMPLOYEES APPEAL TRIBUNAL

JUDGMENT

1 GILES JA: I have had the advantage of reading in draft the reasons of Heydon JA. I gratefully adopt his Honour’s recounting of the facts and statutory provisions. With the following additional remarks, I agree with his Honour’s reasons.

2 The appellant’s appeal to the Tribunal was as a matter of language an appeal against a decision of a kind referred to in s 23(1) of the GREAT Act, being an appeal against a decision by his employer to make a recommendation to dismiss him.

3 The question, to my mind, is one of construction of s 23(1). A recommendation by the employer is not required, as a matter of law, for the exercise of the Crown’s right to dismiss at pleasure. The Crown’s exercise of that right, by the Governor, would by convention be on the advice of the responsible Minister. But that is not the same as exercise of the right on the recommendation of the relevant Departmental Head, who is the employer for the purposes of the GREAT Act. If the employee can be dismissed, in the exercise of the Crown’s right to dismiss at pleasure, without an antecedent recommendation, what is the point of an entitlement to appeal against a recommendation by the employer that the employee be dismissed? Does s 23(1) really encompass a decision to make a recommendation to do what para (f) states, dismiss an employee, or is it properly to be construed so that the decision to make a recommendation to which it refers is addressed only to those paragraphs for which a recommendation by the employer is required?

4 On one view Handley JA so construed s 23(1) in Director-General of the Department of Corrective Service v Mitchelson (1992) 26 NSWLR 648, although for the reasons given by Heydon JA I do not think the question arose. The analysis of the legislation undertaken by Heydon JA demonstrates, to my mind, that it is not the correct construction. There has been and is such incomplete correspondence between an employee’s entitlement to appeal and the provisions for recommendation to the Governor that I do not think it can be concluded that the decision to make a recommendation in s 23(1) is confined in the way I have postulated. Intentionally or otherwise, the legislature has given an entitlement to appeal against any decision to make a recommendation to do what any one of the paragraphs states.

5 Here the employer did make a recommendation to the Governor, whether or not it was necessary for that to be done. The recommendation was put before the Governor with the “recommendation” of the responsible Minister that it be “approved”. There followed the appellant’s dismissal. The exercise was disciplinary. The Tribunal had jurisdiction to entertain the appeal from the decision to make the recommendation.

6 I agree with the orders proposed by Heydon JA.

7 HEYDON JA:

Background

Government and Related Employees Appeal Tribunal Act

Supreme Court Act

8 The appellant was appointed to the office of Prison Officer within the Department of Corrective Services with effect from 21 March 1988. In or about 1994 the appellant became a Senior Prison Officer.

9 On 31 March, 20 April and 29 April 1999 the appellant gave evidence before the Independent Commission Against Corruption.

10 On 12 May 1999 the Senior Assistant Commissioner, Inmate and Custodial Services, of the Department of Corrective Services sent a letter bearing that date to the appellant. It read:

“You are hereby notified that you are charged with having committed two breaches of discipline within the meaning of section 66(1)(b) of the Public Sector Management Act 1988, namely, that you did engage in misconduct.

The particulars of the first breach are that in or about April and May 1998 you did provide Dapto Police with information which you knew, or ought reasonably to have known, was false or misleading in a material particular in relation to damage caused to Departmental property at Wollongong Periodic Detention Centre by detainee Aaron Ison on 4 April 1998.

The particulars of the second breach are that on or about 26 July 1998 you did erase an entry in an official document, to wit, the final paragraph of an internal memorandum by First Class Correctional Officer McIlvaney dated 26 July 1998, in contravention of clause 33(1)(b) of the Prisons (Administration) Regulation 1995.

A preliminary inquiry will be instituted into these matters in due course.

You are also informed that you are hereby suspended from duty pursuant to section 77(2)(a) of the Public Sector Management Act 1988.

I call upon you to show cause to me in writing within 14 days of your receipt of this letter as to why salary payable to you during the period you are suspended from duty should not be withheld pursuant to section 77(3) of the Act.”

Public Sector Management Act

“An officer is guilty of a breach of discipline if the officer: …

(b) engages in any misconduct …”

“If an officer:

(a) is, in accordance with the regulations, charged with a breach of discipline …

either the appropriate Department Head or the senior officer may suspend the officer from duty, until the charge has been dealt with.”

the senior officer

“Any salary payable to a person as an officer while the person is suspended from duty under this section shall (if the appropriate Department Head so directs) be withheld.”

11 The request to show cause in the letter of 12 May 1999 was answered by a letter of 20 May 1999 from an officer of the Public Service Association of New South Wales drawing attention to various aspects of the appellant’s personal circumstances.

12 By letter dated 11 October 1999 the Commissioner of the Department of Corrective Services informed the appellant:

“It has come to my attention that on 31 March 1999, 20 April 1999 and 29 April 1999 respectively you gave evidence before the Independent Commission Against Corruption and that in the course of that evidence you made admissions to the effect that:

1. In about April/May 1998 you knowingly gave Dapto Police misleading information regarding the cost of repairs for damage to Departmental property caused by a periodic detainee.

2. On or about 26 July 1998 you erased the last paragraph in a report dated 26/7/98 and authored by an officer regarding a periodic detainee being late for muster.

3. In or about April 1998 you failed to report to management the complaint of a periodic detainee dated 5/4/98 that two officers stationed at Wollongong Periodic Detention Centre spoke to him in an inappropriate manner and you failed to property investigate the complaint.

4. In or about April 1998 you failed to properly investigate the complaint by a periodic detainee dated 5/4/98 against the same two officers referred to in paragraph [3] above.

5. In or about December 1997 you forged the signature of a person on an application dated 21 December 1997 seeking approval that Moruya Jockey Club be approved as a work-site to receive Periodic Detainees.

6. In or about November 1997 you failed to properly investigate information which came to your attention indicating that work scheduled to be performed by detainees at Unanderra Velodrome had not in fact been done.

7. You failed to properly investigate information which came to your attention that work was performed by detainees at an unauthorised location, namely a nature reserve near the residence of an officer stationed at Wollongong Periodic Detention Centre.

In view of your evidence I am giving consideration to recommending to the Governor that you should be dismissed from your employment as a correctional officer pursuant to the Crown’s right to dismiss at pleasure.

Consequently, I hereby invite you, if you wish, to show cause as to why such a recommendation should not be made to the Governor.

Further, you are informed that I have decided that your suspension from duty which was decided upon by the Senior Assistant Commissioner on 12 May 1999 will continue until further notice.

In deciding whether salary payable to you during the period you continue to be suspended from duty should be withheld pursuant to section 77(3) of the Public Sector Management Act 1988 I intend to take into account the submission made on your behalf by Mr John Scullion, PSA, on 20 May 1999 and any other material which you wish to submit on the matter. If you wish to submit any such additional material you should direct it to me in writing so as to arrive within 10 days of your receipt of this letter.”

13 By letter dated 28 October 1999, an officer of the Public Service Association of New South Wales informed the Commissioner as follows:

“The Association asks you to reconsider your decision to reject Officer Kelly’s resignation from the department. Officer Kelly advises the Association that the uncertainty about his future has had a disastrous effect on his wife’s health who is no longer able to function without the aid of medication. She is also contemplating giving up work.

Additionally, the Association submits that Officer Kelly should remain on pay, while on suspension, until a final decision has been made concerning his service with the department.”

14 By letter dated 1 November 1999, which was written in ignorance of the 28 October 1999 letter, the Acting Commissioner of the Department of Corrective Services informed the appellant as follows (Blue 10):

“I refer to the Notice to Show Cause and Continuation of Suspension dated 11 October 1999.

I note that you were served the aforementioned document on 18 October 1999 and had 10 days from that date to make submissions showing cause as to why the recommendation to dismiss you should not be made nor why salary payable to you should not be withheld during your suspension period. The 10 days have now expired and I have not received any submissions from you.

You are hereby informed that I, R G Woodham, Acting Commissioner of Corrective Service, have decided to recommend to the Governor of New South Wales that you be dismissed from the Public Service pursuant to the Crown’s right to dismiss at pleasure.

You remain suspended from duty. You are further informed that I have decided to withhold salary payable to you during your suspension from duty pursuant to section 77(3) of the Public Sector Management Act 1988.”

15 By letter of 3 November 1999 the Acting Commissioner informed the appellant as follows:

“I refer to the Notice of Decision to recommend Dismissal and withholding of salary during period of Suspension dated 1 November 1999.

It has now been suggested by your industrial representatives that representations were made on your behalf. I have this date received a copy of those representations. I have therefore decided to withdraw my decision of 1 November 1999.

Having considered the representations made on your behalf my decision with respect to the matter is as follows:

You are hereby informed that I, R G Woodham, Acting Commissioner of Corrective Services, have decided to recommend to the Governor of New South Wales that you be dismissed from the Public Service pursuant to the Crown’s right to dismiss at pleasure.

You remain suspended from duty. You are further informed that I have decided to withhold salary payable to you during your suspension from duty pursuant to section 77(3) of the Public Sector Management Act 1988.”

16 On 17 November 1999 the appellant lodged a Notice of Appeal to the Tribunal dated 5 November 1999 against the decision communicated on 3 November 1999. The Notice of Appeal described the “Disciplinary decision appealed against” as being “Notice of decision to recommend dismissal and withholding of salary during suspension”.

17 On 25 November 1999 the Executive Council approved the recommendation to dismiss the appellant, and this decision was published in the Gazette on 10 December 1999. The Minute Paper for the Executive Council had the following on the right hand side of the page:

“I, Leo Keliher, Commissioner of Corrective Services, hereby recommend, based on inquiry and report, that the services of Leslie Kelly be dispensed with on and from the date of approval pursuant to s 54 of the Public Sector Management Act 1988.”

“I recommend that this recommendation by the Acting Commissioner of Corrective Services of New South Wales be approved by His Excellency the Governor and the Executive Council.”

18 On 10 February 2000 oral and written argument was presented to the Tribunal in relation to its jurisdiction, but not in relation to the merits of the appeal. The first respondent took two points before the Tribunal.

19 First, the first respondent contended that the Tribunal lacked jurisdiction to hear the appellant’s appeal against the Acting Commissioner’s decision to recommend to the Governor that he be dismissed. The Tribunal upheld this objection (Red 17P-18V):

“The Tribunal is satisfied by the material presented that there is copious and consistent legal authority which establishes that the prerogative of the Crown to dismiss the appellant at pleasure was available in this case despite the disciplinary scheme established by the PSM Act and the right of appeal conferred by the GREAT Act against certain disciplinary decisions. S.54 of the PSM Act makes plain that the right of the Crown to dispense with the appellant’s services is not affected by those other provisions of the Act which deal with disciplinary procedures.

Mr Scullion understandably expressed concern on behalf of the appellant and other officers of the New South Wales Public Service that endorsement by this Tribunal of the respondent’s actions in this case could render the provisions of the GREAT Act nugatory so far as the dismissal of public servants is concerned.

The Tribunal is satisfied, however, from a review of the authorities relied upon by Mr Yetzotis, that this has been the state of the law for many years, certainly since long before the enactment of the GREAT Act in 1980. In 1988, Parliament, by enacting s.54 of the PSM Act, expressly preserved the status quo thereby ensuring that the Crown’s right to dispense with an officer’s services remained unfettered.

The facts of the case establish that the appellant’s services were dispensed with pursuant to the right of the Crown to do so. The appellant was not dismissed by reason of a decision, or a decision to make a recommendation of a kind referred to in s.23(1)(f) of the GREAT Act. The statutory right of appeal to this Tribunal only becomes available when a decision, or a decision to make a recommendation, of a kind set forth in s.23(1) of the GREAT Act is taken.

The Tribunal finds that the decision to dispense with the appellant’s services does not give rise to a right of appeal pursuant to the provisions of the GREAT Act. The Tribunal holds, therefore, that it has no jurisdiction to hear and determine this appeal so far as it relates to a claimed ‘dismissal’.”

20 Secondly, the first respondent contended before the Tribunal that the appeal against the withholding of the appellant’s salary during his suspension was beyond jurisdiction on the ground that the suspension did not operate as a punishment. The Tribunal upheld that objection also (Red 18Y-20J):

“The Tribunal is well satisfied that the decision of suspension of the appellant was not a decision of a kind specified in s.23(1)(e) of the GREAT Act. The suspension was not imposed as a punishment in circumstances where the appellant had been held to be guilty of misconduct or contravention of any law or any rule or direction of the respondent.

The Tribunal has consistently held that suspensions imposed on employees while disciplinary action is pending do not fall within the ambit of suspensions imposed as a punishment which give rise to a right of appeal to this Tribunal pursuant to s.23(1)(e) of the GREAT Act. Previous decisions of the Tribunal referred to by Mr Yetzotis in argument are some examples.

Managing Director, New South Wales Technical and Further Education Commission v Fines and Anor

‘The Tribunal has jurisdiction to review a decision to suspend an employee where the suspension is imposed as a punishment following a finding that the employee was guilty of misconduct (section 23(1)(e) of the GREAT Act). A decision to suspend until a charge of breach of discipline has been dealt with cannot be reviewed by the Tribunal. However, where on appeal the Tribunal acquits the appellant of the charge then remuneration withheld during the suspension is not forfeited under s87(2) of the 1980 Act. If on the other hand any finding of breach of discipline is upheld, such remuneration is forfeited unless, in the case of the Commission staff, the Managing Director otherwise directs.’

Mitchelson

‘The express restriction in s.23(1)(e) to suspensions by way of punishment is then explained by Parliament’s wish to prevent immediate appeals to the Tribunal from interim suspensions while disciplinary action is pending. Such suspensions are imposed for disciplinary reasons, but were not intended to be appealable at that stage. If in the result no punishment is later imposed the interim suspension would be terminated, and no appeal would be necessary. So understood the express restriction in s23(1)(e) does not support the respondent’s construction of s23(1)(d). If Parliament did intend s23(1)(e) to be limited in this way the draftsman could not rely upon the Division heading and context to achieve the desired limitation and some express provision was necessary. Hence the words ‘as a punishment’ were added.’

The Tribunal considers it clear that the suspension which the appellant seeks to challenge here is one of an interim kind imposed pending the outcome of proposed disciplinary action. The Tribunal holds that it [has] no jurisdiction to hear and determine an appeal against such a decision of suspension.”

21 Apart from the challenge to the Tribunal’s decision made in the Notice of Appeal, there is also listed before this Court an Amended Summons challenging the approval by the Executive Council on 25 November 1999 of the recommendation to dismiss the appellant. Though the Notice of Appeal named the Commissioner of the Department of Corrective Services and the Tribunal as parties, the Amended Summons named the Commissioner as second opponent. It also named the State of New South Wales as first opponent: see Crown Proceedings Act 1988 s5. The Governor, who had been named as a party to the Summons, was correctly removed: FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 351, 372, 388, 405 and 419-20. The Minister for Corrective Services, who had also been named as a party to the Summons, was correctly removed as well: FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 351, 372, 388 and 419; cf 405. The Summons claims a declaration “that the Order of the Governor in Council dispensing with the service of the Claimant published in the Government Gazette on 10 December, 1999 was contrary to s.26(1) of the GREAT Act and consequently invalid”. Arguably that is the only relief which the Summons need have claimed, since declaratory relief is the form of relief traditionally granted against the Crown: FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 372. However, the Summons also claims an order in the nature of mandamus requiring the Commissioner to treat the Claimant as an employee in the Department of Corrective Services holding the position of Senior Correctional Officer until his appeal against the decision to recommend his dismissal is heard on its merits by the Tribunal. In some circumstances an order of that kind would not be necessary, but in view of the substantive opposition of the Opponents to the Amended Summons, coupled with their lack of objection to the specific order in the event that the grounds of their substantive opposition were rejected, there is no reason why the order should not be made if the Claimant’s arguments justify it.

Statutory Provisions Relevant To Decision To Recommend Dismissal

22 The following provisions of the GREAT Act are relevant. In Part 3 Division 2, headed “Disciplinary appeals”, s 23(1) provides:

“Where, in relation to an employee, an employer makes a decision, or a decision to make a recommendation:

(a) to defer, for a period in excess of 6 months, the payment of an increment to the employee,

(b) to reduce the rank, classification, position, grade or pay of the employee,

(c) to impose a fine or forfeit pay in respect of any offence of which the employee is held to be guilty,

(d) to annul the appointment of an employee appointed on probation,

(e) to suspend the employee as a punishment where the employee is held to be guilty of misconduct or contravention of any law or any rule or direction of the employer,

(f) to dismiss the employee, or

(g) to direct or to require the employee to resign,

the employer shall, except as may be otherwise provided by an order made under subsection (3), give the employee notice, in writing, of the decision as soon as practicable after the decision is made.”

“Notwithstanding anything contained in any other Act, an employee may, subject to and in accordance with this Part, appeal to the Tribunal against a decision of his or her employer, being a decision of a kind referred to in section 23 (1).”

“A decision of a kind referred to in section 23 (1) shall not be carried into effect:

(a) where no notice of appeal is lodged with respect to the decision within the time limited by section 29 - until the expiration of that time, or

(b) where a notice of appeal is lodged with respect to the decision within the time limited by section 29 - until the appeal is determined.”

“Notice of an appeal under section 24 shall be lodged within 28 days after the employee is notified of the decision against which the appeal is to be made.”

23 Section 54 of the PSM Act provides:

“The right or power of the Crown to dispense with the services of any person employed in the Public Service, as it existed immediately before the commencement of this section, is not abrogated or restricted by any of the provisions of this Act.”

“An officer or temporary employee is not, except as provided by this or any other Act, entitled to any compensation as a result of the officer’s services being dispensed with or the officer’s salary being reduced.”

“An officer is guilty of a breach of discipline if the officer:

(a) contravenes this Act or the regulations, or

(b) engages in any misconduct, or

(c) consumes or uses alcohol or drugs to excess, or

(d) intentionally disobeys, or intentionally disregards, any lawful order made or given by a person having authority to make or give the order, or

(e) is negligent, careless, inefficient or incompetent in the discharge of his or her duties, or

(f) engages in any disgraceful or improper conduct, or

Protected Disclosures Act 1994

(h) takes any disciplinary proceedings or disciplinary action against another officer that is substantially in reprisal for an internal disclosure made by that officer.”

“(1) A breach of discipline alleged to have been committed by an officer shall be dealt with by the appropriate Department Head.

(2) Subject to this Division, the regulations may:

(a) make provision for or with respect to the manner of

dealing with alleged breaches of discipline, and

(b) prescribe all matters that are necessary or convenient
to be prescribed for carrying out or giving effect to this
Division.”

“If:

(a) an alleged breach of discipline is dealt with in accordance with the regulations, and

(b) the officer concerned is found to have committed the breach or admits to the person or persons dealing with the breach that the officer committed the breach,

the appropriate Department Head may decide to:

(c) impose on the officer one or more of the punishments specified in subsection (2), or

(d) dismiss the officer from the Public Service or direct that the officer resign, or be allowed to resign, from the Public Service within such period as the direction specifies, or

(e) in the case of an officer on probation - annul the officer’s appointment.”

“(3) If:

(a) the appropriate Department Head, in the exercise of powers conferred by this section, decides to direct an officer to resign, or be allowed to resign, from the Public Service within a period specified in the direction, and

(b) the officer does not resign within that period,

the Department Head may decide to dismiss the officer from the Public Service.

(4) A decision of a Department Head under subsection (1) or (3) may be implemented at any time, but a decision of a Department Head under subsection (1)(d) or (e) or subsection (3) to dismiss an officer form the Public Service or to annul an officer’s appointment must not be implemented without the approval of the Governor.

Government and Related Employees Appeal Tribunal Act 1980

Submissions On Decision to Recommend Dismissal: The Appellant’s Arguments

24 The appellant’s arguments on the first part of the appeal fell into six groups. He put them substantially, though not precisely, in accordance with the following structure.

25 First, he submitted that the Tribunal addressed the wrong question. The decision against which the appeal to the Tribunal was brought was not a decision to dismiss the appellant. Rather it was the Acting Commissioner’s decision, communicated by the letter of 3 November 1999.

26 Secondly, the appellant pointed out that the 3 November 1999 letter said: “I … have decided to recommend to the Governor … that you be dismissed”. Section 24(1) permits an employee to “appeal to the Tribunal against a decision of his or her employer, being a decision of a kind referred to in section 23(1)”. One of the decisions referred to in s 23(1) is a “decision to make a recommendation … to dismiss the employee”. The decision to make the recommendation communicated in the 3 November 1999 letter, the appellant submitted, was plainly within that language.

27 Thirdly, the appellant submitted that so far as it is necessary that the decision appealed from be of a disciplinary nature, as is suggested by Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648, especially at 656A-C, 663A and 664D-665A, it was. On 12 May 1999 the appellant was notified that he was charged with two breaches of discipline, and that he was suspended. The letter of 11 October 1999 informed the appellant that he had made seven admissions to the Independent Commission Against Corruption and invited him to show cause why the Commissioner should not recommend dismissal to the Governor. The first admission appeared to have the same subject-matter as the first charge, and the second admission appeared to have the same subject-matter as the second charge. The 11 October 1999 letter also informed the appellant that the suspension from duty notified on 12 May 1999 would continue. After representations made on the appellant’s behalf had been considered, the decision complained of was made. The appellant submitted that: “The inevitable conclusion is that the decision to recommend dismissal was a direct disciplinary response to the admissions of misconduct said to have been made by the Appellant to the ICAC” (written submissions paragraph 9.4).

28 Fourthly, the appellant submitted that no issue arose as to whether there was any collision between, on the one hand, the existence of an appeal under s 24(1) against a s 23(1) decision to recommend a dismissal and, on the other hand, the Crown’s common law prerogative right to dismiss at pleasure. This was because the appeal to the Tribunal was not brought from the Governor’s decision to dismiss on 25 November 1999, but from the Acting Commissioner’s decision to recommend dismissal communicated on 3 November 1999.

29 Fifthly, the appellant submitted that if his appeal against the Acting Commissioner’s decision to recommend dismissal involved an interference with the Crown’s common law prerogative right to dismiss at pleasure, the interference was lawful as being authorised by ss23(1) and 24(1). In writing he submitted:

Gould v Stewart

Director-General of Education v Suttling

Bennett v Commonwealth

Coutts v The Commonwealth

Barratt v Howard

10.2 Not every statutory right of appeal from a dismissal of a public sector employee will interfere with the exercise of the Crown prerogative. However, an appeal from a decision to recommend dismissal, as here - if it involves an interference with the Crown prerogative - is to that extent expressly authorised by the statute. The prerogative is modified accordingly.

Fletcher v Nott

Kaye v Attorney General for Tasmania

30 Sixthly, the appellant submitted that the provisions in the PSM Act relied on by the Tribunal and by the first respondent did not have the effect contended for. In particular, s 54 of the PSM Act did not prevent s 24(1) of the GREAT Act from modifying the common law Crown prerogative right, for three reasons. First, the opening words of s 24(1) of the GREAT Act, enacted in 1980, were “Notwithstanding anything contained in any other Act”; those words applied to other Acts enacted after 1980 as well as before; and they meant that s 24(1) had whatever effect it had notwithstanding s 54. Secondly, s 54 in terms did not apply to the GREAT Act; it provided that the Crown’s common law right as it existed immediately before the PSM Act was enacted in 1988 was not restricted or abrogated “by any of the provisions of this Act”, i.e. the PSM Act as distinct from the GREAT Act. Thirdly, the preservation of the prerogative effected by s 54 effected only a preservation of the right “as it existed immediately before the commencement of” s 54 in 1988, and by that date the GREAT Act had been in force for eight years.

Submissions On Decision To Recommend Dismissal: The First Respondent’s Arguments

31 The first respondent’s primary submission was that no appeal lay because the Act “has no application with respect to the dismissal of a public servant pursuant to the common law right to dismiss at pleasure” (first respondent’s written submissions paragraph 8). The first respondent submitted (written submissions paragraph 1-7):

Gould v Stuart

Public Service Act 1902

Public Service Act 1979

Public Sector Management Act 1988

Government and Related Employees Appeal Tribunal Act 1980

Public Service Act 1979

Public Sector Management Act 1988

Coutts v The Commonwealth

Barrett v Howard

Coutts v The Commonwealth

Butler v Attorney-General for the State of Victoria

Re Government Cleaning Services (Privatisation) Award

Public Employment Industrial Relations Authority v Health and Research Employees’ Association (NSW)

7. The suggestion that the Appellant’s appeal to the Tribunal should be construed as an appeal against the Acting Commissioner’s recommendation (paragraph 7.1 of the Appellant’s submissions) should be rejected. In the first place, it seeks to deal with a procedural step leading up to the dismissal at pleasure. Secondly, it is inconsistent with the legislative purpose disclosed by a reading of the PSM Act as a whole. Thirdly, it is an approach by which the Appellant seeks to do indirectly that which he cannot do directly.”

32 The first respondent also took issue with the appellant’s contention that the decision to recommend dismissal had a disciplinary character. It was submitted that it lacked that character, and for that reason fell outside s 23(1) and s 24(1). It was conceded in writing that a disciplinary reason “prompted the Acting Commissioner’s recommendation”. It was said orally that there was no intention to dispute the view that a perception that the appellant had misconducted himself “may have motivated the Acting Commissioner”. It was also said that initially the Commissioner had approached the problem as a disciplinary matter. But it was submitted that this approach was not taken to finality. The Commissioner had not dealt with the alleged breach of discipline “in accordance with the regulations” as required by s 75(1)(a) of the PSM Act, and had not, pursuant to that process, found a breach as required by s 75(1)(b). For the disciplinary requirement identified by the Court of Appeal in Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648 to be satisfied, the Acting Commissioner’s decision to recommend dismissal had to be based on a conclusion that the appellant had misconducted himself, as distinct from resting on a mere allegation that he had: the Acting Commissioner had abandoned his journey down the disciplinary path at a point before Director-General of the Department of Corrective Services v Mitchelson was satisfied.

Submissions On Industrial Relations Legislation

33 There was one set of submissions by the parties which may be put on one side. The appellant submitted (written submissions paragraph 10.5):

Industrial Relations Act 1996

Industrial Relations Act 1991

Industrial Arbitration Act 1940

Industrial Arbitration Act 1940;

Industrial Relations Act 1991;

Industrial Relations Act 1996

Public Service Association of NSW v Public Service Board of NSW and Anor (Re Ferguson)

The first respondent in oral submissions pointed out in detail the differences between dispute resolution under the industrial relations legislation and the operation of the Tribunal. In my opinion the industrial relations legislation does exemplify how the common law prerogative can be modified by statute. On the other hand, the fact that the provisions of that legislation modified the common law prerogative appears to be entirely neutral on the question whether s 23(1) and s 24(1) of the GREAT Act have done so.

The Tribunal’s Misapprehension Of The Issue Before It

34 The appellant’s first submission, that the Tribunal approached its task as though it was considering an appeal against dismissal, when in truth the appeal was against a decision to recommend dismissal, is correct. While the structure of both parties’ arguments as recorded by the Tribunal suggests that they misled the Tribunal into going down that path, the Tribunal’s characterisation of the appellant’s arguments to it was not correct, and the same is true of its characterisation of the first respondent’s arguments. In truth no appeal lies against dismissal effected by the Governor in Council under s 24(1). This is not for the reasons given by the Tribunal, but because the Governor in Council is not an “employer” as defined in s 4(1) of the GREAT Act. For the appellant the significance of success in his first submission was said to be that it avoided a collision between s 24(1) and the Crown’s common law prerogative right to dismiss. That argument is not sound. If s 24(1) has the effect for which the appellant contended, it is capable of radically altering the practical operation of the common law prerogative. On one view of the common law prerogative, it permits the Crown to dismiss an employee without prior notice to the employee, without identifying any cause for the dismissal, without there being in fact any cause for the dismissal, without hearing any representations which the employee might wish to make opposing dismissal, and without there being any right of appeal against the dismissal. If s 24(1) confers a right of appeal against a decision to recommend dismissal, so long as the employee learns of that decision to recommend dismissal before the dismissal has been effected, the employee can hold up the dismissal by appealing in such a fashion as to bring into play the statutory stay effected by s 26 (putting on one side for the moment an argument against that construction of s 26 advanced by the first respondent). In considering whether general statutory words have the effect of altering pre-existing common law rights, the extent of the impact on those rights effected by the supposed statutory change can be relevant. The wider the impact, arguably the clearer the statutory words must be: Sorby v The Commonwealth (1983) 152 CLR 281 at 309-310; Baker v Campbell (1983) 153 CLR 52 at 96-97; Bropho v State of Western Australia (1990) 171 CLR 1 at 17-18; Yates Property Corporation Pty Ltd v Boland (1997) 145 ALR 169 at 215-216. And if it is contended that the Crown is bound by an enactment, it must be shown distinctly that it is, even if it is not necessary to point to express words or a necessary implication: Bropho v State of Western Australia (1990) 171 CLR 1 at 14-24; cf Kaye v Attorney-General for Tasmania (1956) 94 CLR 193 at 204. The relevant impact to be considered here is not merely the direct impact (for example, a statute providing that no employee could be dismissed except for just cause). The relevant impact could include the impact which appellate processes in relation to a decision anterior to dismissal, such as a decision to recommend dismissal, have on the practical operation of the contemplated decision to dismiss, including the speed with which it can take place.

What Was the Relevant Recommendation?

35 There is one potential difficulty in the appellant’s position. His position was that he had appealed against a decision to make a recommendation to dismiss, and that that decision was notified on 3 November 1999. The form of dismissal contemplated was a dismissal by the Crown acting through the Governor in Council pursuant to the Crown’s right to dismiss at pleasure. The Notice of 3 November 1999 said that the Acting Commissioner had “decided to recommend to the Governor” that the appellant be dismissed. That form of words was used also in the 11 October 1999 and 1 November 1999 documents. As the appellant argued the case, this fell within s 23(1)(f), because the Acting Commissioner was the employer, and he had made a decision to recommend the dismissal of the employee. Yet the Governor had no obligation to act on a recommendation from the Acting Commissioner. His only relevant constitutional obligation was to act on Ministerial advice, not departmental advice.

36 One solution to the problem would be to treat the material decision to make a recommendation not being recorded in the 3 November 1999 Notice, but rather as being that recorded in the Minute Paper for the Executive Council as having been made. The Minister’s recommendation in the Minute Paper that the Commissioner’s recommendation be accepted could thus be regarded as the necessary Ministerial advice. The difficulty with this solution is that the decision to make a recommendation recorded in the Minute Paper (dated 25 November 1999) may have postdated the Notice of Appeal to the Tribunal, and, if so, that decision was not the decision against which the appellant had appealed to the Tribunal.

37 The better approach is to treat the 3 November 1999 Notice as a notice to make a recommendation, not to the Governor directly, but to the Minister with a view to the Minister advising the Governor, that the appellant be dismissed. The form of words used in the 3 November 1999 Notice and the other Departmental documents corresponds with that used in various sections of the PSM Act. The formula of recommendation by a Department Head to the Governor is used in relation to recommendations that the appointment of an officer be confirmed or annulled (s 29(1)(a) and (b)), that the officer be retired (s 36), that the officer’s services be dispensed with on grounds of excess staff (s 51(3)) and that the officer be dismissed for refusing a transfer (s 53(1)). The formula in the legislation is simply shorthand for a recommendation by a Department Head which the Governor will only act on after receiving appropriate Ministerial advice. Similar shorthand was used in the 3 November 1999 Notice.

Did the Decision to Recommend Dismissal Have a Disciplinary Character?

38 It is convenient next to consider the first respondent’s argument that the decision to recommend dismissal lacked the disciplinary character called for by Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648. If the argument were sound, the whole of the first part of the appeal would fail in limine. However, the argument is not sound. The argument asserted that it was necessary that the Acting Commissioner should have decided to recommend dismissal after reaching a conclusion that the appellant had misconducted himself. Even if it is accepted that that is the test, the correspondence supports an inference that that conclusion had been reached. On 12 May 1999 the appellant was notified of two charges. On 11 October 1999 he was accused of having made seven admissions on the basis of which the Commissioner said he was considering a decision to recommend to the Governor that the appellant be dismissed. These were allegations, but they were also more than allegations in that they pointed to strong evidence supporting them. The appellant was invited to show cause why that recommendation should not be made. In terms that request was never responded to; the 28 October 1999 letter written on behalf of the appellant was silent about the seven admissions and dealt only with the appellant’s personal circumstances. The 3 November 1999 letter said that the Acting Commissioner had considered the representations made by the appellant and that he had decided to recommend to the Governor that the appellant be dismissed. The inference which is available and should be drawn is that the Acting Commissioner, having considered the seven admissions and the appellant’s failure to deny, qualify or explain them, had arrived at the conclusion that the appellant had misconducted himself and that in order to discipline him for that misconduct it was appropriate to recommend to the Governor that he be dismissed.

Construction of s 23(1) and s 24(1)

39 The meaning of s 23(1), and hence of s 24(1), for which the appellant contended is as a matter of language correct, unless there is some reason to read down the breadth of the language used. The first respondent’s case, as applied to the Tribunal’s jurisdiction to consider the specific appeal brought to it by the appellant, is that s 23(1)(f) does not extend to decisions of a disciplinary character to make recommendations to the Governor in Council that officers be dismissed pursuant to the common law prerogative. Though the first respondent did not put it in this way, it would seem that that outcome could be justified by one or other of only two forms of reading down - one or other of only two constructional bases. The first constructional basis is that all the powers described in s 23(1) (including the power to make a decision to recommend to the Governor in Council that an officer be dismissed pursuant to the common law prerogative) must rest on some statutory source, and there is no statutory source for that particular power. The second constructional basis is that even though s 23(1) does not require that there be a statutory source for all the powers described in s 23(1) (including the power to make a decision to recommend to the Governor in Council that an officer be dismissed pursuant to paragraph (f) in s 23(1)) nonetheless paragraph (f) is to be read as if the power of dismissal referred to therein is limited to powers resting on a statutory basis.

40 On the face of the language, there is nothing to support either of these constructional bases. That is, there is nothing to support the view that s 23(1) and s 24(1) rest on a distinction between, on the one hand, statutory powers to make the decisions listed in s 23(1), including statutory powers to decide to recommend dismissal (against which s 24(1) appeals lie) and, on the other hand, decisions not based on statutory powers to recommend the exercise of the common law Crown right of dismissal (against which the first respondent says s 24(1) appeals do not lie). Nor is there on the face of the language anything to support the view that s 23(1) and s 24(1) rest on a distinction between, on the one hand, powers to decide to recommend dismissal on some statutory ground, and, on the other hand, powers to decide to recommend dismissal based on the Crown’s common law prerogative. In particular, s 23(1)(f) speaks of “a decision … to dismiss the employee”, and of “a decision to make a recommendation … to dismiss the employee”. Neither decision is qualified by any reference to statutory powers of decision as distinct from common law powers. Nor is either decision qualified by any reference to statutory powers of dismissal as distinct from common law powers of dismissal. The absence of any such qualification affords a significant foothold for the appellant’s argument. The first respondent’s argument would have been unanswerable if s 23(1) contained the words “, pursuant to statutory power,” or “, pursuant to Part 5 of the Public Sector Management Act 1988”, after “employer” and before “makes”. The first respondent’s argument would also have been unanswerable if one or other of those expressions appeared after “employer” in s 23(1)(f). The lack of those words in either place makes it necessary to read down the general words which have been used if the first respondent’s contention that neither “a dismissal at pleasure nor the procedural steps leading up to it are open to review” before the Tribunal. Before turning to the grounds on which the general words might be read down, it is convenient to consider one additional argument favourable to the appellant’s construction.

41 That argument is an argument against the first (though not the second) constructional basis propounded by the first respondent. The argument is that the first constructional basis would create an anomaly. The anomaly is that on the first respondent’s approach there is a right of appeal under s 24(1) from decisions made under statutory powers to recommend that, for disciplinary reasons, officers be dismissed or otherwise dealt with as described in paragraphs (a)-(g) of s 23(1), but no right of appeal from decisions, made under common law powers to recommend that, for disciplinary reasons, officers be dismissed or otherwise dealt with as described in paragraphs (a)-(g) of s 23(1).

42 The anomaly is significant. In Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648 the Court of Appeal saw the capacity to appeal against disciplinary decisions as important. Disciplinary decisions involved “punishment” (per Kirby P at 665) or were “punitive” (per Handley JA at 661). They were made in response to “misconduct” (per Kirby P at 658). They were distinct from decisions not to make a permanent appointment after observing the work of a probationer (per Kirby P at 658). They were also distinct from other decisions arrived at purely for management reasons involving no opprobrium (per Handley JA at 663). Handley JA said at 663:

“one can discern why Parliament might rationally conclude that a right of appeal should exist for probationary employees whose appointments are annulled on disciplinary grounds, and who would otherwise have become permanent employees. Such persons might suffer a serious and permanent injustice if an erroneous decision on disciplinary grounds could not be reviewed by the Tribunal. At the same time Parliament did not intend that management decisions, other than those dealing with promotions within Div 1, should be open to appellate review.”

Underlying the court’s reasoning is an apparent distinction between decisions adverse to the interests of officers, but based only on management issues not involving culpable misbehaviour and not calling for a disciplinary response, and decisions adverse to the interests of officers resting on the need for a disciplinary response to culpable misbehaviour. It would be strange if a Parliamentary perception that officers against whom disciplinary sanctions were sought should have a right of appeal, but only if the disciplinary sanctions had a statutory basis and not a common law basis. It would also be strange if there were a Parliamentary perception that officers in relation to whom a decision had been made that a recommendation should be put to the Governor for dismissal on disciplinary grounds should have a right of appeal against the decision to make that recommendation, but not if the dismissal recommended was to be sourced in a common law power and not a statutory power. These considerations point against the correctness of the first constructional basis on which the first respondent’s case must rest.

The First Respondent’s Arguments For Reading s 23(1) and s 24(1) Down

43 The appellant reminded the court that in evaluating the first respondent’s submissions on a construction, the following observations of Kirby P in Smith v Allan, Secretary, Treasury of New South Wales (1993) 31 NSWLR 52 at 63 were relevant:

Cole v Director-General of Department of Youth and Community Services

Director-General of the Department of Corrective Services v Mitchelson

Cole v Director-General of Department of Youth and Community Services

44 The first reason why the first respondent submitted that s 23(1) and s 24(1) should be read down rests on the fact that, after the GREAT Act was enacted in 1980, s 54 of the PSM Act re-enacted s 118 of the Public Service Act 1979. Section 118 itself had re-enacted s 65 of the Public Service Act 1902. Section 65 had been enacted, it was submitted, to reverse the decision of the Privy Council in Gould v Stuart [1896] AC 575, holding that various provisions of the Civil Service Act 1884 had abolished the common law Crown prerogative to dismiss at pleasure. The effect of these provisions was to preserve the Crown’s common law right to dismiss at pleasure so far as it existed just before each was introduced. The first respondent’s argument in effect was that nothing had happened to disturb the position achieved by s 65 of the Public Service Act 1902, which provided:

“Nothing in this Act, or in the Civil Service Act of 1884, shall be construed or held to abrogate or restrict the right or power of the Crown, as it existed before the passing of the said Civil Service Act, to dispense with the services of any person employed in the Public Service.”

Gould v Stuart

45 The argument did not explain its conclusion that the “re-enactment of [s 54] in the PSM Act preserving the common law right is a clear indication of a legislative purpose that the provisions of the GREAT Act have no application in the case of a dismissal at pleasure.” If the “legislative purpose” contended for is to be achieved, it must be achieved by reading s 23(1) down. There is no reason to read the subsection down by reference to s 54 of the PSM Act and its predecessors for the following reasons advanced by the appellant. First, s 24(1) operates “Notwithstanding anything contained in any other Act”, an expression applicable to legislation enacted after 1980, such as s 54 of the PSM Act, as much as it is to legislation enacted before 1980. Secondly, s 54 does not purport to preserve the common law prerogative from abrogation by any legislative provisions save those in the PSM Act - it did not purport to preserve it from abrogation by legislative provisions in other Acts such as those in the GREAT Act. And, thirdly, even if s 54 did preserve the common law prerogative from abrogation by other legislative provisions, it preserved it only as it existed “immediately before the commencement of” s 54: by that point in time the GREAT Act had been in force for eight years and s 54 could have no impact on it.

46 The second reason why the first respondent contended that s 23(1) should be read down turned on s 75 of the PSM Act, and in particular s 75(4) and (5). It does not follow from the fact that those provisions make it clear that a decision to dismiss an officer by a Department Head is subject to Part 3 of the GREAT Act that there is no appeal under s 24(1) in the case of dismissals by employers pursuant to common law powers or decisions to recommend dismissals pursuant to common law powers. Even on the first respondent’s argument, a decision to dismiss using the statutory powers in s 75 would be subject to appeal under s 24(1) even if s 75(5) had not been enacted. This points to the conclusion that s 75(5) was enacted from an abundance of caution. The first respondent’s submission that there is a “lack of any corresponding provision in relation to the exercise of the common law right” begs the question: it assumes that the correct construction of s 24(1) is that for which the first respondent is contending.

47 The third reason why the first respondent contended that s 23(1) should be read down turned on s 95 of the PSM Act. It provides:

Superannuation Act 1916

Industrial Relations Act 1996

State Public Service Superannuation Act 1985

State Authorities Superannuation Act 1987

Public Sector Executives Superannuation Act 1989

(2) Subsection (1) does not limit section 27 or 42J.”

Section 27 is a privative provision limiting access to industrial and other courts, but not affecting the GREAT Act, for persons complaining of the appointment or failure to appoint persons to vacant positions. Section 42J is a privative provision limiting access to industrial and other courts, and to the Tribunal, in relation to the employment of executive officers. The fact that s 95 provides that certain named Acts are not affected by the PSM Act does not support a conclusion that in some way the GREAT Act is affected by the PSM Act unless some language creating that effect can be identified. This the first respondent’s submission did not do.

Is the Right of Appeal For Which the Appellant Contends Futile?

48 There is one difficulty created by the appellant’s contentions. The difficulty was raised in oral argument, and though not relied on by the first respondent, calls for examination. In the present case, the Commissioner initially decided to charge the appellant under s 66(1)(b) of the PSM Act. By 11 October 1999 he had decided to proceed down the different path of recommending dismissal at pleasure, but he explained why he wished to do so. The Acting Commissioner also gave notice in writing on 3 November 1999 of his decision to make a recommendation that the Governor dismiss the appellant (a step which, if the appellant’s submissions are correct, was necessitated by s 23(1), and if the first respondent’s submissions are correct, was not necessitated under s 23(1)). In those ways the appellant was made aware of why the Acting Commissioner had reached the decision communicated by the Notice of 3 November 1999. However, if the appellant is correct, all that need be extended to persons in the appellant’s position is whatever rights the relevant officer would have had under the common law in 1884 (as modified by changes in the perception of the common law in the light of later cases), together with the s 23(1) right to be given notice in writing of the decision as soon as practicable after it has been made.

49 On one view of the common law Crown prerogative to dismiss at pleasure, it has the following characteristics:

(a) no prior notice of dismissal need be given ( In re Tufnell (1876) 3 Ch D 164 at 173; Kaye v Attorney-General for Tasmania (1956) 94 CLR 193 at 203);

(b) no cause for dismissal need exist or be assigned ( In re Tufnell (1876) 3 Ch D 164 at 173) or established ( Shenton v Smith [1895] AC 229 at 235; Ryder v Foley (1906) 4 CLR 422 at 452);

Ryder v Foley

Ridge v Baldwin

50 If that is the legal position, and a Department Head, for example, decides to recommend that an officer be dismissed under the common law Crown prerogative, the officer has no right to prior notice of that decision and no right to be heard before it is made. Yet on the appellant’s arguments the officer has a right to be notified after it is made (s 23(1)) and the officer has a full right of appeal to the Tribunal. It is unusual for the permissible and practicable bounds of controversy in an appeal to be wider than the permissible and practicable bounds of controversy in the process leading to the decision against which the appeal is brought. Normally the ambit of an appeal is either the same as the decision appealed against or narrower, depending on the nature of the appeal in question. In turn this suggests that the appellant’s contentions are compatible with the unsatisfactory outcome that the right of appeal can be rendered almost nugatory by the Crown. In contrast, the first respondent’s position has at least the merit of internal consistency: the relevant officers have no rights of appeal, but they also have no rights before the taking of a decision to recommend dismissal either. The Crown might seek to render the right of appeal nugatory by choosing not to reveal whether it has any particular reason for the recommendation for the dismissal, and, if it has one, what it is. If the Crown adopts that course, it might be thought that there is little that the officer can say during the appeal. Section 42(1) of the GREAT Act provides that “the employer’s case shall be presented first”. And the employer is entitled to say no more than that the power to dismiss at pleasure is relied on. The point is that if an appeal is futile, and there are competing possible constructions of the legislation said to grant the right of appeal, the futility of the appeal will point against the construction that is relied on to give the right of appeal. As Kirby P said in Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648 at 658: “it will generally be imputed to Parliament that it did not intend … consequences … which are … apparently irrational …”.

72 The Public Service Act 1902 repealed the Public Service Act 1895. Section 65 provided:

“Nothing in this Act or in the Civil Service Act of 1884, shall be construed or held to abrogate or restrict the right or power of the Crown, as it existed before the passing of the said Civil Service Act, to dispense with the services of any person employed in the Public Service.”

73 General rights of appeal against the Board’s decisions (as distinct from those existing under particular statutes) were first introduced in the Crown Employees Appeal Board Act 1944. Section 10(1)(b)-(e) provided:

“Notwithstanding anything contained in any other Act, an officer, deeming himself to be adversely affected by any decision or determination of the nature referred to in this subsection made after the commencement of this Part by the employer or other the person in whose service he is employed, may appeal to the Board against such decision or determination.

The decisions and determinations in respect of which an appeal to the Board shall lie under this Act shall be any decision or determination -

(b) for the reduction in rank, position, grade or pay of the officer;

(c) for the dismissal of the officer;

(d) for the imposition of a fine or forfeiture of pay in respect of any offence of which the officer is held to be guilty;

(e) requiring the officer to resign ….”

“Notice in writing of any decision or determination of the nature referred to in subsection (1) shall be served on the officer or each of the officers affected thereby as soon as practicable after the decision or determination is made ….”

74 In 1944 the Board’s powers of punishment were, pursuant to s 56(2)(d) of the Public Service Act 1902, to:

“reduce [the] officer to a lower grade in the Public Service, or to a lower salary, or fine him, or deprive him of his leave of absence during such time as the Board thinks fit, or with the approval of the Governor may dismiss such officer from the Public Service or require him to resign ….”

Public Service Act

75 The Public Service Act 1902 was repealed by the Public Service Act 1979. Section 118 of the 1979 Act provided:

“Nothing in this Act shall be construed or held to abrogate or restrict the right or power of the Crown, as it existed immediately before the commencement of this section, to dispense with the services of any person employed in the Public Service.”

“An officer who -

(a) commits any breach of this Act or the regulations;

(b) engages in any misconduct;

(c) uses intoxicating beverages or drugs to excess;

(d) wilfully disobeys, or wilfully disregards, any lawful order made or given by a person having authority to make or give the order;

(e) is negligent, careless, inefficient or incompetent in the discharge of his duties; or

(f) engages in any disgraceful or improper conduct,

is guilty of a breach of discipline.”

Public Service Act

“(1) Where an alleged breach of discipline is dealt with by a special inquiry referred to in section 101 and the officer concerned is found to have committed the breach or admits to the person or persons dealing with the breach that he committed the breach, the Governor, on the recommendation of the Board, may -

(a) approve of the imposition of any one or more of the following punishments, that is to say, that the officer be -

(i) cautioned;

(ii) reprimanded;

(iii) fined;

(iv) except in the case of a term officer - reduced to a lower

classification or position in the Public Service, whether or
not in the Special Division; or

(2) Where the Governor, in the exercise of his powers under this section, directs that an officer resign, or be allowed to resign, from the Public Service within a period specified in the direction, and the officer does not resign within that period, the Governor, on the recommendation of the Board, may dismiss the officer from the Public Service.

(3) Without limiting the operation of section 10 of the Crown
Employees Appeal Board Act, 1944, where the Board decides -

(a) to recommend that -

(i) approval be given to the fining of an officer, as referred to
in subsection (1)(a)(iii) - that decision shall be deemed to
be a decision of the nature referred to in section 10(1)(d)
of that Act;

(ii) he be reduced to a lower classification or position, as
referred to in subsection (1)(a)(iv) - that decision shall be
deemed to be a decision of the nature referred to in
section 10(1)(b) of that Act; or

(iii) he be dismissed from the Public Service, as referred to
in subsection (1)(b) or (2) - that decision shall be deemed
to be a decision of the nature referred to in section
10(1)(c) of that Act,

notwithstanding that the recommendation has not been acted
on; or

(b) to recommend that an officer be directed to resign from
the Public Service, as referred to in subsection (1)(b) -
that decision shall be deemed to be a decision of the nature
referred to in section 10(1)(e) of that Act.

(4) An appointment pursuant to subsection (1)(a)(iv) shall be
made by the Governor on the recommendation of the Board,
and any other punishment pursuant to subsection (1)(a) shall
be imposed by the Board.”

Crown Employees Appeal Board Act

76 The Crown Employees Appeal Board Act 1944 was repealed when the GREAT Act came into force. Section 23(1) was then enacted in its present form; s 24 as then enacted took the same form as s 24(1) now takes. At the same time s 87(3) of the Public Service Act 1979 was repealed and provisions were substituted providing (inter alia) as follows:

“Without limiting the operation of Division 2 of Part III of the Government and Related Employees Appeal Tribunal Act 1980, where the Board decides -

(i) approval be given to the fining of an officer, as referred
to in subsection (1)(a)(iii) - that decision shall be deemed
to be a decision of the nature referred to in section 23(1)
(c) of that Act;

(ii) he be reduced to a lower classification or position, as
referred to in subsection (1)(a)(iv) - that decision shall
be deemed to be a decision of the nature referred to in
section 23(1)(b) of that Act; or

(iii) he be dismissed from the Public Service, as referred to in
subsection (1)(b) or (2) - that decision shall be deemed to
be a decision of the nature referred to in section 23(1)(f)
of that Act,

77 It is noteworthy that the words “the decision to make a recommendation” at the start of s 23(1) of the GREAT Act have no counterpart in its predecessor, s 10 of the Crown Employees Appeal Board Act. Hence the precise issue in this case could not have arisen until 1980. The reason why these words were introduced appears to have stemmed from s 87 of the Public Service Act 1979, which provided for the Board to make recommendations to the Governor for various punishments or sanctions to be inflicted. Yet it seems unlikely that s 23(1) and s 24 were intended to be limited, in the field of appeals against recommendations, to appeals against s 87 recommendations only. Decisions to recommend that the Governor approve fines (s87(1)(a)(iii)) correspond, but not precisely, with s 23(1)(c). Decisions to recommend that officers be reduced to a lower classification or position (s87(1)(a)(iv)) correspond, but not precisely, with s 23(1)(b). Decisions to recommend that officers be dismissed or to recommend that they be directed to resign, or to recommend that they be allowed to resign (s 871)(b)) correspond, but not precisely, with s 23(1)(f) and (g). Nothing in s 87 appears to correspond at all with s 23(1)(a), (b) or (e). This suggests that s 23(1) was intended to catch not only punishments and sanctions approved by the Governor (but inflicted by someone else) falling within s 87(1) but other punishments and sanctions described in s 23(1). It also suggests that s 23(1) was intended to catch not only decisions to recommend to the Governor the approval of punishments and sanctions falling under s 87(1), but also decisions to recommend other punishments and sanctions falling under s 23(1). Among those sanctions is dismissal by the Governor. A similar disharmony to that which existed between s 23(1) and s 87 existed between s 10 of the Crown Employees Appeal Board Act 1944 and (for the short period of their co-existence) s 87 of the Public Service Act 1979. A like disharmony continues to exist between s 23(1) and s 75 of the PSM Act.

78 The legislative history points against any close linkage between s 23(1) and the successor to s 87 of the Public Service Act 1979, namely s 75 of the PSM Act. It also points against the validity of the first respondent’s submission that the “re-enactment of a provision in the PSM Act preserving the common law right [s 54] is a clear indication of a legislative purpose that the provisions of the GREAT Act have no application in the case of a dismissal at pleasure.”

79 The lack of harmony, since 1979, between the language of the appeal provisions and the language of the disciplinary provisions in the Public Service Act 1979 and the PSM Act suggests that the appeal provisions were intended to operate in fields wider than those disciplinary provisions, including the field illustrated by this case.

The Role Of the Executive Council

80 A further background factor favourable to the appellant’s construction in the circumstances of this case is that the technique of arriving at administrative decisions by using the Executive Council appears to be common in Australia. That makes it unsurprising that dismissals may be effected in that way, and affords a substantial area of activity on which the words in s 23(1) “a decision to make a recommendation … to dismiss the employee” can operate.

81 In FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 382 Aickin J said that the Governor in Council:

“is the body which gives the force of law to, and thus makes effective, decisions of the executive government, i.e. the Cabinet and individual Ministers. That is the body in which executive power is vested by the constitutional system although the mode of the carrying into effect of the decisions of executive government differs according to the circumstances. Some executive acts may be wholly performed by Ministers or delegated to heads of government departments or to statutory authorities and some may be a formal order of the Governor in Council”.

82 In the same case at 352 Stephen J said: “Decisions of the Governor in Council are no more than ‘the formal legal act which gives effect to the advice tendered to the Crown by the Ministers of the Crown’”, citing Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 179 per Dixon J. In modern Australian conditions, and indeed ever since the advent of responsible government, the Governor in Council makes “a host of routine administrative decisions, involving neither matters of high government policy nor any nice exercises of policy-oriented discretion” (at 353). To the Governor in Council has been entrusted a great “range of routine administrative decisions of a quite formal character”. Orders in Council have “long been accepted as an appropriate medium for the formal making and recording of executive decisions, regardless of their routine nature and lack of policy content” (at 355).

83 These circumstances reveal a background suggesting, in the absence of specific evidence of government practice, that when the Crown’s common law power to dismiss at pleasure is exercised, the dismissal may often be effected by an order of the Governor in Council. It is certainly capable of being so effected. This suggests that s 23(1) and s 24(1) contemplate appeals from recommendations to the Governor in Council that an officer be dismissed by the Governor in Council.

Is There Practical Content In “A Decision To Make A Recommendation” To the Governor To Dismiss?

84 It might be objected that since no appeal to the Tribunal would lie against a dismissal by the Governor pursuant to the Crown’s prerogative right (because the Governor was not the “employer”) and since it was not legally necessary that there be any anterior decision to recommend to the Governor that there be a dismissal by the Governor, it was improbable that Parliament intended to grant a right of appeal against that anterior decision. It would be easy for the Crown to sidestep that right of appeal by not arriving at a decision to make a recommendation. As a practical matter, however, it is unlikely that the Governor would act without some decision being arrived at to make a recommendation that he or she should so act. The decision to make the recommendation would almost always be arrived at before the Governor was asked to act and did act. The word “recommendation” encompasses whatever falls, as a matter of substance and reality, within it, however it is styled - for example as “requesting”, “advising”, “urging”, “counselling”, “proposing”, “commanding” or “suggesting”. Accordingly there is practical content in the right to appeal against the decision to recommend dismissal in the sense that commonly dismissals by the Governor will be preceded by a decision by the employer to recommend, in the sense of that expression just indicated, that the officer be dismissed.

Dismissal: Conclusion

85 For the above reasons, the appellant’s arguments in support of the appeal against the Tribunal’s finding that it lacked jurisdiction to hear the appellant’s appeal against the Acting Commissioner’s recommendation to the Governor that he be dismissed succeeds. To that extent this appeal should be allowed.

Suspension

86 The second part of the Tribunal’s decision under appeal is its holding that it had no jurisdiction to hear the appellant’s appeal against the withholding of his salary during his suspension. As has been seen above, the Tribunal applied the observations of Handley JA in Managing Director, New South Wales Technical and Further Education Commission v Fines (1993) 32 NSWLR 385 and 393-4 and in Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648 at 663.

87 The appellant submitted (written submissions paragraph 11):

“The decision to suspend without salary was part of the Acting Commissioner’s decision of 3 November 1999. That decision fell within s 23(1)(e) of the GREAT Act - that, is it was punitive in nature - having regard to the facts outlined in paragraphs 2.3-2.7 above.”

88 The first respondent submitted (written submissions paragraphs 10-11):

“In relation to paragraph 11 of the Appellant’s submissions, section 77(3) of the PSM Act provides for an officer’s salary to be withheld if an officer is suspended from duty pursuant to section 77(2) pending the determination of a charge. It is only if such a charge is proven that the salary withheld during a suspension may be forfeited to the Crown (section 77(4)). If forfeiture occurs, an appeal to the Tribunal is available under section 77(5). No such forfeiture could have taken place in the case of the Appellant because there was never a finding that he had committed a breach of discipline.

Cole v Director-General of Youth and Community Services and Another

89 While the decision to recommend dismissal was part of a disciplinary process, the decision to suspend was only an interim suspension while that disciplinary process was being completed. It thus falls within Handley JA’s reasoning. In Fines’ case, Mahoney JA and Sheller JA agreed with Handley JA. No application for leave to reargue the correctness of that case has been made. Accordingly this Court must follow it, and the Tribunal was correct for the reasons it gave.

The Amended Summons

90 The appellant accepted that if his arguments on the appeal failed, the Amended Summons had to be dismissed, but submitted that if his arguments on the appeal succeeded, he was entitled to relief by reason of s 26 of the GREAT Act. Since his appeal against the decision to recommend to the Governor that he be dismissed was competent and since he had complied with the time requirements of s 29, he submitted that s 26 operated to effect a statutory stay of the dismissal.

91 The first respondent submitted that that conclusion did not follow because of s 27 of the GREAT Act. It provides:

“Where an employee has appealed under section 24 against a decision of his or her employer to dismiss him or her, the employee shall not, except to such extent, if any, as the Tribunal otherwise determines on the appeal, be entitled to any salary, wages or allowances in respect of any period occurring after the date of the decision.”

92 The first respondent’s argument was that s 26 did not apply to dismissals, because if it did the employee would be obliged to continue working, would hence be entitled to salary or wages, and hence there would be no room for a s 27 order in the employee’s favour. The first respondent relied on the way the argument had been put on behalf of the respondent in Smith v Allan, Secretary, Treasury of New South Wales (1993) 31 NSWLR 52 at 59:

“Finally, the respondent suggested that a further clue as to the Tribunal’s limited powers was given by the very provisions of s 27 of the Act which authorise it to ‘determine on the appeal’ that an employee is entitled to salary, wages or allowances. Logically, if a ‘decision’ to dismiss an employee was unlawful, and the Tribunal authorised in law to so decide, the dismissal would, in the eye of the law, be a nullity. The employee would thus be entitled to his or her salary, wages or allowances. The provisions of s 27 would, on this view, be redundant.”

“So far as the argument based on s 27 of the Act is concerned, it is without merit. The section clearly has utility as setting out the general rule to be followed where an employee has been dismissed and has appealed. Many dismissals will involve no attack on the lawfulness or validity of the original decision but will be concerned solely with the merits. Section 27 thus has important work to do. The express provision to the Tribunal of a statutory discretion to make a specific determination in respect of salary, wages and allowances, far from casting doubt on the broad powers of the Tribunal, gives emphasis to their breadth. I see no reason why, where an employee has succeeded on a challenge to the lawfulness of a decision, the premises being established, the Tribunal could not make a determination as s 27 of the Act contemplates.”

93 The first respondent did not offer any other opposition to the making of the orders sought in the Amended Summons.

Orders

94 The appeal has succeeded in part only, but scarcely any time was directed to the part on which the appellant failed. There is thus no reason why the first respondent should not be ordered to pay the whole of the appellant’s costs of the appeal.

95 The claimant has succeeded on the Amended Summons. Had the opponents wished to contend that some special order permitting this Court to entertain the Amended Summons under Part 1 rule 12 of the Supreme Court Rules was necessary, one could have been made, but since the first respondent took no such point, no such order is necessary.

96 I propose that the following orders be made.

1. An order that the appeal be allowed.

2. An order setting aside the decision of the Government and Related Employees Appeal Tribunal given on 24 March 2000 that it lacked jurisdiction to hear the appellant’s appeal against the first respondent’s decision to recommend to the Governor that the appellant be dismissed.

3. A declaration that the order of the Governor in Council dispensing with the services of the claimant published in the Government Gazette on 10 December 1999 was contrary to s 26(1) of the Government and Related Employees Appeal Tribunal Act 1980 (NSW) and consequently invalid.

4. An order in the nature of mandamus requiring the Commissioner of the Department of Corrective Services, in accordance with s 26(1) of the Government and Related Employees Appeal Tribunal Act 1980 (NSW), to treat the claimant as an employee in the Department of Corrective Services holding the position of Senior Correctional Officer until the claimant’s appeal against the decision to recommend his dismissal is heard on its merits by the Government and Related Employees Appeal Tribunal.

5. An order that the appellant’s appeal to the Government and Related Employees Appeal Tribunal against the first respondent’s decision to recommend to the Governor that the appellant be dismissed be remitted to the Government and Related Employees Appeal Tribunal for hearing.

6. An order that the first respondent pay the appellant’s costs of the appeal.

97 ROLFE AJA:

Introduction

Heydon JA has set out in his comprehensive judgment, a draft of which I have had the benefit of reading, the relevant facts and statutory provisions (in respect of which I shall adopt his abbreviations), and the essential submissions. Accordingly, I shall only refer to them to the extent necessary to explain my reasons.

Matters Not In Issue

98 It was not in issue that:-

99 There may have been an issue as to whether the action against the appellant was disciplinary such as to attract the provisions of s 23. If there was, I am satisfied it was such an action for the reasons given by Heydon JA.

The Tribunal’s Jurisdiction

100 The GREAT Act sets up a Tribunal so that public servants, dissatisfied with a decision taken to terminate their employment, may, relevantly for present purposes in disciplinary matters, appeal to it. Section 23(1)(f) in terms covers the present situation, the employer having made a decision to make a recommendation to dismiss the appellant. That was a decision of which he had to be given, and was given, notice in writing.

101 The words of the section clearly provide that the employer rather than dismiss an employee may recommend that that be done, as happened here.

102 Those steps having been taken, the appellant was given a right of appeal by s 24(1) which he exercised within the time prescribed by s 29(2). The result of his doing so was that the decision to make the recommendation to dismiss could not be carried into effect, if it was to be carried into effect at all, until the appeal was determined. The Governor acted before that occurred with the consequences to which Heydon JA has referred.

The First Respondent’s Primary Submission

103 The first respondent’s primary submission was that the provisions of the GREAT Act, and particularly those to which I have referred, did not have the effect of restricting the exercise of the Crown’s common law right to dismiss at pleasure. As a general proposition that is correct. However, when the method of dismissal fell within an express provision of the GREAT Act I do not agree that its provisions did not apply to over-ride the Crown’s right.

104 My principal reasons for coming to that conclusion are, first, that there is nothing in the GREAT Act, as there is in a number of other pieces of legislation to which reference was made, which expressly reserves the right of the Crown to dismiss at pleasure notwithstanding that legislation. This is not difficult to understand as the Act is concerned with the right of a person, in the position of this appellant, to challenge through the Tribunal the actions of his employer. There is no provision for the Governor to consider any such matter. It would be contrary to the rights thus provided to the employee if the employer, having gone through the steps contemplated by s 23, could destroy the appellant’s rights by having a recommendation made to the Governor in a disciplinary matter where the steps envisaged by the Act had been followed.

105 Secondly, if the legislation had contemplated that that may happen, it would have been simple to insert after the word “recommendation”, in the opening words of s 23(1), words such as “other than to the Governor”. Obviously, when the legislation was drafted the Governor was a person to whom a recommendation could be made. Not to exclude such a recommendation reinforces that a recommendation to him or her was intended to be encompassed. In my opinion, there is absolutely no reason for reading the words as meaning a “recommendation other than to the Governor”.

106 Thirdly, what I have concluded does not cut across the common law right to dismiss at pleasure, save pursuant to the express provisions put in place for the benefit of public servants if the circumstances contemplated in the GREAT Act are met.

107 I agree with Heydon JA’s reasons on the second point.

Conclusions

108 In the result I agree with the orders and declaration proposed by Heydon JA.

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Citations

Kelly v Commissioner of the Department of Corrective Services [2001] NSWCA 148

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CITATION:	Kelly v Commissioner of the Department of Corrective Services & Anor [2001] NSWCA 148
FILE NUMBER(S):	CA 40270/00
HEARING DATE(S):	3 May 2001
JUDGMENT DATE:	25 May 2001
PARTIES :	Leslie Kelly (Appellant) Commissioner of the Department of Corrective Services (1st Respondent) Government and Related Employees Appeal Tribunal (2nd Respondent)
JUDGMENT OF:	Giles JA at 1; Heydon JA at 7; Rolfe AJA at 97

LOWER COURT JURISDICTION :	GREAT
LOWER COURT FILE NUMBER(S) :	GREAT 623/99
LOWER COURT JUDICIAL OFFICER :

COUNSEL:	Mr M L D Einfeld QC/Mr A A Hatcher (Appellant) Ms T J Anderson (1st Respondent) Submitting appearance (2nd Respondent)
SOLICITORS:	Jones Staff & Co (Appellant) I V Knight (1st Respondent) GREAT (2nd Respondent)
CATCHWORDS:	Administrative Law - Jurisdiction of Government and Related Employees Appeals Tribunal - Whether Tribunal lacked jurisdiction to review decision to recommend dismissal of officer to Governor - Whether Tribunal lacked jurisdiction to review decision to withhold salary from suspended officer - Existence of jurisdictional fact - Whether relevant decisions were "disciplinary" in nature so as to invoke Tribunal’s jurisdiction - Government and Related Employees Appeals Tribunal Act 1980 (NSW), ss 23(1)(e) and 23(1)(f). - Employment Law - Whether Crown’s prerogative right to dismiss public employees at pleasure can be fettered by an appeal to the Government and Related Employees Appeals Tribunal - Where appeal to Tribunal was against decision to recommend dismissal to Governor rather than against dismissal decision itself - Government and Related Employees Appeals Tribunal Act 1980 (NSW), ss 23(1)(e), 23(1)(f) and 37. - Statutory Construction - Whether sections of Government and Related Employees Appeal Tribunal Act should be read down so as to detract from the Crown’s prerogative right to dismiss at pleasure - Whether Parliament intended Tribunal to hear appeals against decisions to recommend to the Governor that an officer be dismissed subject to the Crown’s right to dismiss at pleasure - Government and Related Employees Appeal Tribunal Act 1980 (NSW), ss 23(1), 24(1) and 37 - and Public Sector Management Act 1988 (NSW), s 54. D
LEGISLATION CITED:	Civil Service Act 1884 Crown Employees Appeal Board Act 1944 Crown Proceedings Act 1988 Government and Related Employees Appeal Tribunal Act 1980 Public Sector Management Act 1988 Public Service Act 1895 Public Service Act 1902 Public Service Act 1979 Supreme Court Act 1970
CASES CITED:	Australian Communist Party v The Commonwealth (1951) 83 CLR 1 Baker v Campbell (1983) 153 CLR 52 Bropho v State of Western Australia (1990) 171 CLR 1 Council of Civil Service Trade Unions v Minister for the Civil Service [1985] AC 374 Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648 Dunn v R [1896] 1 QB 116 Ex parte Wurth; re Craig (1954) 55 SR (NSW) 47 FAI Insurances Ltd v Winneke (1982) 151 CLR 342 Gould v Stuart [1896] AC 575 John v Rees [1970] Ch 345 Kaye v Attorney-General for Tasmania (1956) 94 CLR 193 Malloch v Aberdeen Corporation [1971] 2 All ER 1278 Managing Director, New South Wales Technical and Further Education Commission v Fines (1993) 32 NSWLR 385 Minister for Arts Heritage and Environment v Peko-Wallsend Ltd (1987) 75 ALR 218 Morrison v Abernethy School Board (1876) 3 R 945 Power v R (1873) 4 AJR 141 R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170 Ridge v Baldwin [1964] AC 40 Ryder v Foley (1906) 4 CLR 422 Shenton v Smith [1895] AC 229 Smith v Allan, Secretary, Treasury of New South Wales (1993) 31 NSWLR 52 Sorby v The Commonwealth (1983) 152 CLR 281 In re Tufnell (1876) 3 Ch D 164 Yates Property Corporation Pty Ltd v Boland (1997) 145 ALR 169
DECISION:	See para 96