Kelly v Watson

[1985] FCA 352

Re: TERENCE JOSEPH KELLY
And: ARTHUR ROY MANSFIELD WATSON; JEFFREY REGAN RAE; ALICK THOMSON and RONALD
KEITH STOW
No. ACT G 7 of 1985
Administrative Law
13 IR 313

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.

CATCHWORDS

Administrative Law - judicial review - Jurisdiction of Disciplinary Appeal Board to hear appeal against recommendation for dismissal from Australian Public Service - Whether jurisdiction depends on recommendation having been made by officer with lawful authority to do so - Scope of Board's function on hearing appeal - Whether authority of person making recommendation open to challenge before Board - Whether decision of Board that it lacked jurisdiction a decision of an administrative character.

Administrative Law - Judicial review - Decision of Disciplinary Appeal Board that it lacked jurisdiction to hear appeal against recommendation for dismissal - Whether unreasonable delay in hearing appeal on the merits so as to bring case within sub-s.7(1) of the Administrative Decisions (Judicial Review) Act 1977.

Administrative Law - Judicial review - Application to extend time within which to bring proceedings - Lengthy delay not satisfactorily explained - Considerations of public interest justifying extension.

Public Service - Delegation of powers by Permanent Head - Subsequent vacancy in office of Permanent Head - Whether delegate may exercise powers at time when delegator has ceased to hold office of Permanent Head.

Administrative Decisions (Judicial Review) Act 1977, ss.5, 7(1)

Public Service Act 1922, ss.25, 26, 63, 63D, 63E

HEARING

CANBERRA
#DATE 26:7:1985

ORDER

The time within which the application under the Administrative Decisions (Judicial Review) Act 1977 for an order of review in respect of the decision of the Disciplinary Appeal Board made on 9 May 1984 be extended up to and including 6 February 1985.

The decision of the Disciplinary Appeal Board given on 9 May 1984 be set aside.

It be declared that a Disciplinary Appeal Board constituted under section 63E of the Public Service Act 1922 has jurisdiction which it is under a duty to exercise to hear the appeal of the fourth respondent, Ronald Keith Stow, lodged on 19 October 1983 against the recommendation made in respect of him by the applicant, Terence Joseph Kelly, under paragraph 63(1)(d) of that Act on 10 October 1983.

The parties have liberty to apply as they may be advised.

JUDGE1

This is an application under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") by Terence Joseph Kelly ("the applicant"). He seeks an order of review in respect of a decision of a Disciplinary Appeal Board ("the Board") made on 9 May 1984 that it had no jurisdiction to entertain an appeal lodged by Ronald Keith Stow ("the fourth respondent") pursuant to section 63D of the Public Service Act 1922 ("the Act"). Alternatively, he seeks an order of review in respect of the failure of the Board to hear and determine that appeal on its merits. The Board was constituted by the first, second and third respondents, Arthur Roy Mansfield Watson, Jeffrey Regan Rae and Alick Thomson.

1. Section 63D of the Act provides in sub-section (2) that an officer of the Australian Public Service may appeal to a Disciplinary Appeal Board constituted under section 63E against a decision made in respect of him -
   
   

(a) if the decision relates to a charge of misconduct - on either or both of the following grounds:

(i) that the charge should have been dismissed; or

(ii) that the action directed or recommended to be taken in relation to the charge is unduly severe; or

(b) in any other case - on the ground that the action directed or recommended to be taken in respect of him is unduly severe.

The reference to a charge of misconduct is a reference to a charge against an officer under section 61 alleging a failure of the officer to fulfil his duty as an officer.

1. The fourth respondent, an officer of the Australian Public Service employed in the Department of Primary Industry, lodged his appeal on 19 October 1983. It was an appeal against a recommendation made by the applicant under paragraph 63(1)(d) of the Act that action be taken to dismiss him from the Australian Public Service. The ground of the appeal was that the action recommended was unduly severe, that being the only ground of appeal open to the fourth respondent as the recommendation had been made under section 63 and not under section 61 of the Act. The applicant was referred to in the appeal document as "my Chief Officer".

2. When the appeal came on for hearing the Board entertained a submission by way of preliminary objection that the Board lacked jurisdiction to entertain the appeal for the reason that the recommendation against which the appeal was brought had been made by the applicant without authority. The Board received certain documentary material relevant to that issue and, after hearing argument, upheld the submission.

3. The relevant facts are in a short compass. On 25 May 1983 the fourth respondent was convicted in the Supreme Court of the Northern Territory of Australia on six counts under sub-section 4(1) of the Secret Commissions Act 1905 of accepting secret commissions. On 13 July 1983 the applicant, purporting to act under paragraph 63(1)(b) of the Act gave the fourth respondent an opportunity to furnish to him, in writing, any statement that he desired to furnish in relation to the offences. Having received such a statement and having regard to the nature and seriousness of the offences, the circumstances in which they were committed and the nature of the fourth respondent's duties, the applicant, being of opinion that he was justified in so doing in the interests of the Australian Public Service, recommended to the Public Service Board, in writing, that action be taken to dismiss the fourth respondent from the Service. That recommendation, which was made on 10 October 1983, was signed by the applicant who described himself as "Chief Officer". As required by sub-section 63(4) of the Act, the applicant furnished to the fourth respondent and to the Public Service Board particulars of his reasons for making that recommendation. He also furnished to the Public Service Board a copy of the statement furnished to him by the fourth respondent in pursuance of paragraph 63(1)(b) of the Act (see sub-section 63(3)).

4. The power conferred by paragraph 63(1)(d) of the Act is vested in the "Chief Officer". That expression was, at the relevant time, defined in sub-section 7(1) of the Act to mean, in relation to an officer or employee, a Chief Officer who, by virtue of sub-section 26(2), might exercise and perform powers, authorities and duties in relation to that officer or employee.

5. Sub-section 26(1) of the Act at the relevant time provided who were to be Chief Officers of a Department. That description was to apply to "the officer for the time being occupying an office in that Department which the (Public Service) Board has determined constitutes the occupant a Chief Officer". Sub-section 26(2) then provided -
   
   

"(2) A Chief Officer of a Department shall have and may exercise and perform, in relation to such officers or class of officers of, or performing duties in, the Department, and such employees or class of employees employed in the Department, as the Board determines, such powers, authorities and duties as are prescribed or are specified in determinations in force under sub-section 9 (7A) or section 82D and such other powers, authorities and duties as the Permanent Head of the Department determines."

1. On 2 April 1982 the Public Service Board determined, pursuant to section 26 of the Act -
   
   

"that each office specified in column 1 of the Schedule constitutes the occupant a Chief Officer in relation to such officers of, or performing duties in, and such employees employed in, the Department of Primary Industry as are specified in column 2 of that Schedule opposite to the office in column 1."

Column 1 of the Schedule specified, inter alia, the office of First Assistant Secretary, Level 3, Position No.2843, Operations Division, Central Office, Department of Primary Industry. Opposite to that office, column 2 specified "Officers of, or performing duties in, and employees employed in, the Department of Primary Industry".

1. The applicant relies upon that determination of the Public Service Board as having authorised him to make the recommendation here in question, the applicant asserting that at the relevant time he was the occupant of the office above described. The fourth respondent contends that the applicant was not the occupant of that office as he had not been validly promoted or transferred to it pursuant to the only relevant power which was to be found in sub-section 50(1) of the Act in the form which it took at the relevant time. By that sub-section the power to promote or transfer an officer to a vacant office was vested in the Permanent Head of the Department in which the vacancy existed. The Permanent Head might, however, delegate that power under sub-section 25(5) of the Act. The applicant asserts that he was validly transferred to that office with effect from 16 March 1982 by an instrument of transfer dated 12 March 1982 signed by Mr G.L. Miller, the Deputy Secretary of the Department of Primary Industry.

2. It is not in dispute that at the relevant time Mr G.L. Miller held the office of Deputy Secretary of the Department of Primary Industry, he having been promoted to that office with effect from 17 August 1981 (see Commonwealth of Australia Gazette PS27 dated 9 July 1981). What is in dispute is his authority to transfer the applicant to the relevant office. This, in turn, depends upon whether at the relevant date he was entitled, as delegate, to exercise the powers of the Permanent Head of the Department under sub-section 50(1) of the Act.

3. The instrument of delegation upon which the applicant relies is one signed by Mr D.H. McKay on 18 May 1978. Mr McKay was at that date the Secretary to, and Permanent Head of, the Department of Primary Industry, having been appointed to that office the previous day, 17 May 1978. The instrument so far as material reads -
   
   

"In pursuance of the powers conferred on me by section 25(5) of the Public Service Act 1922 and Public Service Regulation 4C, I, DOUGLAS HENRY McKAY, Permanent Head of the Department of Primary Industry, delegate, to the officer for the time being holding or performing the duties of the office of DEPUTY SECRETARY all my powers and functions under the said Act and Regulations to be exercised in respect of officers and employees of the Department of Primary Industry with the exception of the following:-

(1) Power of delegation; and

(2) Consideration of and action in regard to suggestions on proposals made by the Public Service Board under section 17."

The exceptions are not relevant for present purposes.

1. It is common ground that the office of Secretary to the Department of Primary Industry became vacant on and from 11 March 1980 by virtue of the operation of sub-section 20(1) of the Commonwealth Employees (Redeployment and Retirement) Act 1979 upon a declaration made by the Governor-General under that sub-section on that day that Mr McKay become an unattached officer. So far as appears, the office remained vacant until 23 April 1980 when Mr L.P. Duthie was appointed Secretary to the Department. Mr Duthie continued to occupy that office up to the time of the events with which this proceeding is concerned. Prior to 10 October 1983 when the applicant made the relevant recommendation, Mr Duthie had taken no steps to revoke the instrument of delegation made by Mr McKay on 18 May 1978 and had himself made no similar delegation to the Deputy Secretary of the Department either by name or by office.

2. The Disciplinary Appeal Board took the view that the delegation made by Mr McKay ceased to have any operative effect upon Mr McKay vacating the office of Permanent Head of the Department of Primary Industry, that the transfer of the applicant to the office of First Assistant Secretary in that Department was ineffective to constitute him the occupant of that office and that he, therefore, had no authority to make the recommendation that the fourth respondent be dismissed from the Service. The Board also took the view that its jurisdiction depended upon there having been a valid recommendation for dismissal and, absent that pre-requisite to its jurisdiction, it declined to entertain the appeal.

3. The application as filed in this Court on 6 February 1985 was based on section 5 of the Judicial Review Act, the ground of the application being expressed in terms of paragraph 5(1)(f), namely that the decision, that is the decision of the Board that it had no jurisdiction to entertain the appeal, involved an error of law. However, when the application came on for hearing, counsel for the applicant sought leave to amend the application to rely also on sub-section 7(1) of that Act. That sub-section provides -
   
   

"7. (1) Where -

(a) a person has a duty to make a decision to which this Act applies;

(b) there is no law that prescribes a period within which the person is required to make that decision; and

(c) the person has failed to make that decision,

a person who is aggrieved by the failure of the first-mentioned person to make the decision may apply to the Court for an order of review in respect of the failure to make the decision on the ground that there has been unreasonable delay in making the decision."

1. Counsel referred to sub-section 63D(3) of the Public Service Act 1922 which provides -
   
   

"63D. (3) A Disciplinary Appeal Board shall hear each appeal submitted to it under sub-section (2) and may confirm, vary or set aside the decision against which the appeal is made."

It was submitted that, by virtue of that sub-section, the Board had a duty to make a decision upon the appeal by confirming, varying or setting aside the recommendation made by the applicant and that such a decision would be a decision to which the Judicial Review Act applied. It was also said, correctly, that there was in force at the relevant time no law that prescribed a period within which the Board was required to make a decision upon an appeal made to it under section 63D. The Board had, it was submitted, failed to make a decision upon the appeal and the applicant was entitled to an order of review on the ground that there had been unreasonable delay in making the decision which sub-section 63D(3) required the Board to make. Counsel also referred to the provision in sub-section 2(1) of the Judicial Review Act that "failure", in relation to the making of a decision, includes a refusal to make the decision.

1. Counsel for the applicant accepted that, if the application were to proceed as an application under section 5, it would be necessary for the applicant to seek an extension of time within which to bring the proceeding. He frankly stated that the application for leave to amend was, at least in part, prompted by the view, which he asserted (but upon which I need express no opinion), that the Judicial Review Act, and in particular section 11 thereof, does not prescribe time limits in respect of applications made under section 7. Counsel conceded, however, that the practical result would be little different under section 7 as it would be appropriate for the Court to apply, by analogy, the considerations relevant to cases where an application is made for the prerogative writ of mandamus (see The King v. Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. (1949) 78 CLR 389 at p 400) so that the question would still arise whether the applicant had been guilty of unwarrantable delay in bringing the matter before the Court.

2. The application to amend was formally opposed. However, as the argument advanced was, in substance, an argument that section 7 had no application in the circumstances of the present case, I gave the applicant leave to amend the application, reserving the substantive question whether section 7 afforded to the applicant any ground for relief. It will be convenient to turn at once to that question.

3. Counsel for the fourth respondent submitted that, even if it were held that the Board was in error in deciding that it had no jurisdiction in the matter and was, therefore, under a duty to hear and determine the appeal and even if it be correct to regard the Board as having failed or refused to make a decision on that appeal, it could not be said that there had been unreasonable delay on the part of the Board. Counsel referred to Thornton v. Repatriation Commission (1981) 3 ALD 281 at p 286 where Fisher J. said, in relation to the provision in question -
   
   

"The use by the legislature in s.7(1) of the Act of the words 'unreasonable delay' indicates that some delay, delay which is in the circumstances reasonable, is permissible. It is only when the delay is unreasonable, i.e. when the power to delay is abused, that the aggrieved person is entitled to relief in the nature of an order to review."

Adopting what was said by Fisher J. in that case counsel submitted that unreasonable delay in sub-section 7(1) means delay on the part of the Board which, viewed objectively, may not properly be regarded as appropriate or justified in the circumstances but capricious or irrational. The provision, it was submitted, applied where there had been a capricious exercise of jurisdiction but had no application where, as here, the Board had reached a decision that it had no jurisdiction to entertain the proceeding. Where, as here, the Board had considered the question with due expedition and in good faith and given reasons for its decision, it could not properly be said that there had been unreasonable delay.

1. For the applicant it was submitted that, in a case where a decision-maker has declined jurisdiction, any subsequent delay in doing what the decision-maker was obliged to do must, of necessity, be unreasonable delay. So that, it was submitted, if one calls on a decision-maker to do his duty and he refuses to do so, an application may, at the next instant, be made to the Court under sub-section 7(1) of the Judicial Review Act on the basis of unreasonable delay on his part.

2. In my opinion, the submission of the fourth respondent on this aspect of the matter is correct. The applicant has not, in my view, established the only ground upon which an application under sub-section 7(1) may be made. I am unable to conclude that, in terms of that sub-section, there has been unreasonable delay in making the decision which the Board, on the assumption which I have made for the purpose of considering this submission, was under a duty to make. The delay in having the appeal heard on the merits cannot be properly characterised as being due to any capricious or irrational conduct on the part of the Board. In so far as it is due to the conduct of the Board it is because, on the assumption made, the Board erred in law in holding that it lacked jurisdiction to hear the appeal. In any event, by far the greater part of the delay which has occurred has been caused by the indecision and inaction of those concerned to have the appeal heard and determined. The matter may be tested by asking whether, if the application had been made to the Court immediately following the making by the Board of its decision, it could have been said with any justification that there had been unreasonable delay on the part of the Board. In my view it could not.

1. For the fourth respondent it was also submitted that the applicant was not entitled to an order of review under section 5 of the Judicial Review Act for the reason that the decision sought to be reviewed, namely the decision that the Board had no jurisdiction to entertain the appeal, was not a decision of an administrative character within the meaning of that expression in the definition of "decision to which this Act applies" in sub-section 3(1) of the Act. Counsel referred to what was said by Ellicott J. in Tooheys Ltd. v. Minister for Business and Consumer Affairs (1981) 36 ALR 64 at p73:
   
   

"The meaning of the phrase 'decision of an administrative character' in the definition of 'decision' in s.3 of the Review Act has already been the subject of comment in this court: see Hamblin v. Duffy (1981) 34 ALR 333; Evans v. Friemann (1981) 35 ALR 428 (Fox J.).

It is unnecessary to repeat the analysis and discussion contained in the judgments in those cases. It is sufficient to make the following observations. The phrase 'decision of an administrative character' is one of wide import. The Review Act confers on citizens important procedural rights against executive action under Commonwealth enactments and I agree with Fox J. that the phrase should be given a wide construction and application. It is undesirable to attempt to define in advance its full scope and operation. Some assistance as to the broad character of the decisions included in the phrase is to be gained from a consideration of those types of decisions expressly excluded from the operation of the Review Act or of s.13 thereof by Schs 1 and 2 thereof. Assistance is also to be gained from those cases which discuss the distinction between legislative executive and judicial power embedded in the Constitution."

Accepting that the expression is one of wide import, counsel submitted that there were limits to what is encompassed within it. He sought to draw a distinction between a decision which is calculated to advance the process of administration and one which cannot properly be so described. The decision of the Board that it lacked jurisdiction was to be characterised, so the argument ran, as a decision that the Board was "not going to be involved in the administrative process", with the consequence that the decision was outside the class of decisions properly described as decisions of an administrative character. The argument was illustrated by reference to the facts in Tooheys Ltd. v. Minister for Business and Consumer Affairs (supra). It was submitted that the decision of the Minister under review in that case was a decision of an administrative character because the Minister was participating in the process of administration. He was doing so by reason of the circumstance that, recognising that he had power to accede to the request to make a by-law, he declined to exercise that power for reasons which to him were compelling. By contrast, it was said that, if the Minister had declined to make the by-law because he took the view that he had no power to do so, the decision would have involved the Minister withdrawing or "opting out" of the process of administration and his decision could not properly be said to be of an administrative character.

1. I am unable to accept this submission. No authority was cited to support the discrimen upon which counsel sought to rely. In my opinion, the character of a decision is not to be determined by reference to the grounds which the decision-maker may advance for arriving at it. I have no doubt, having regard to the nature of the appeal considered in the context of the relevant statutory provisions, that the Board's decision that it lacked jurisdiction was a decision of an administrative character.

2. In the light of what has been said it becomes necessary to consider whether an extension of the time within which to bring the proceeding should be granted. As has already been mentioned, the decision of the Board that it lacked jurisdiction to entertain the appeal was made on 9 May 1984 yet the application to this Court was not filed until 6 February 1985.

3. The respondent opposed the application for an extension of time within which to bring the present proceedings on the grounds that the applicant had not provided to the Court an adequate and acceptable explanation for the delay which had occurred, that there had been a deliberate decision not to approach the Court at an early stage, that the applicant had not demonstrated that he would be prejudiced by the refusal of the extension and that the extension of time would prejudice the fourth respondent. As to the latter ground I must say that I found some difficulty, having regard to the unsatisfactory position which prevails as to the fourth respondent's status in the Australian Public Service, in appreciating the nature of the prejudice which he will suffer if an extension is granted.

4. By the affidavit of the applicant sworn 5 March 1985 material was put before the Court directed to providing an explanation of the delay in commencing the proceeding. It appears from that affidavit that, shortly after the Board gave its decision, a meeting was held attended by officers of the Public Service Board, the Department of Primary Industry and the Attorney-General's Department following which the Department of Primary Industry sought formal legal advice. A response was received by memorandum dated 3 July 1984. On or about 19 July 1984 the Public Service Board informed the Department of Primary Industry that it would not accede to its request that the Public Service Board act upon the recommendation that the fourth respondent be dismissed, a recommendation that the Public Service Board must be taken to have regarded as having been validly made notwithstanding the Disciplinary Appeal Board's decision. The Public Service Board also took the view that the fourth respondent's appeal had not lapsed for the purposes of section 63A of the Act.

5. On 16 August 1984 officers of the Public Service Board, the Department of Primary Industry and the Attorney-General's Department again met to discuss the matter. On 3 October 1984 the Public Service Board requested the first respondent, as Chairman of the Disciplinary Appeal Board, to reconvene the Board for the purpose of giving further consideration to the matter. The first respondent declined to do so and informed the Public Service Board to that effect by letter dated 18 October 1984. The Department of Primary Industry was informed of the first respondent's decision by letter dated 16 November 1984.

6. There followed further discussion and correspondence between the Public Service Board and the Department of Primary Industry concerning the action that might be taken, including the question whether the Disciplinary Appeal Board could be directed to hear the fourth respondent's appeal on the merits. In the result, on 9 January 1985, instructions were given by the Department of Primary Industry to its solicitors to commence a proceeding under the Judicial Review Act.

7. Counsel for the applicant submitted that the period of delay in bringing the proceeding might conveniently be considered in three parts. The first was the period from 9 May 1984 to 19 July 1984 during which time the Department of Primary Industry obtained legal advice and sought to persuade the Public Service Board to act on the recommendation made by the applicant. On 19 July 1984 the Public Service Board, as has already been mentioned, informed the Department of Primary Industry that it was not prepared to do so.

8. The second period extends to 16 November 1984. During that period the Department of Primary Industry sought to have the Public Service Board persuade the Disciplinary Appeal Board to reconvene and further consider the matter. The Public Service Board made such a request but, as has been said, the first respondent declined to reconvene the Board.

9. During the third period, from 16 November 1984 to January 1985, the Department of Primary Industry sought to persuade the Public Service Board to direct the Disciplinary Appeal Board to reconvene, a direction which the Public Service Board was not prepared to give.

10. Counsel for the applicant urged that, in considering the question of delay, a monolithic view of the Australian Public Service should not be taken and that the differing interests of the various actors should be recognised. In particular it was said that any delay on the part of the applicant's legal advisers should not be attributed to him: nor should delay on the part of the Public Service Board.

11. Counsel for the fourth respondent referred to correspondence passing between the fourth respondent's solicitors and the Department of Primary Industry and the Public Service Board. From that correspondence it is clear that a number of requests was made by the solicitors to be informed what was to happen in relation to the recommendation that the fourth respondent be dismissed. The only response was that no decision had been made as to the course which was to be pursued and that the matter was under consideration, or under urgent consideration, on the footing that the recommendation had been validly made. Information to that effect was conveyed in letters from the Department of Primary Industry dated 19 June 1984, 18 July 1984, 31 July 1984, 22 August 1984 and 20 September 1984 and in a letter from the Public Service Board dated 17 August 1984.

12. The conduct of the matter has been marked by hesitation, indecision and inaction and, were it not for the matters to which I will hereafter refer, I would regard the evidence as insufficient to establish an acceptable explanation for the delay in instituting the proceeding in this Court such as to made it fair and equitable to grant an extension of time.

13. However, the public interest requires, in my view, that an appropriate extension of time be granted. The considerations which have led me to this conclusion include the circumstance that it is undesirable that the fourth respondent's future in the Australian Public Service, of which he remains a member but one suspended without pay, should continue to remain unresolved. Unless the Public Service Board was prepared to accept that the applicant had no authority to make the recommendation, there was no discernible alternative to resolve the matter than to institute curial proceedings of one kind or another. Also of significance is the circumstance that proceedings involving other members of the Australian Public Service have for some time been pending before Disciplinary Appeal Boards and those proceedings stand adjourned pending clarification of the jurisdictional point. Further, and of overriding significance, is that the questions that arise in this proceeding have ramifications extending beyond the disciplinary proceedings against the fourth respondent and other similar proceedings and affect the administration of the public service as a whole. In particular, I refer to the question whether a delegate may validly exercise powers under an instrument of delegation at a time when the person who signed that instrument has ceased to hold the office whence his power to delegate arose.

14. In the light of those considerations, I am of opinion that the time within which to bring the present proceedings should be extended to and including 6 February 1985 and I so order.

15. I turn now to the substantive questions that arise upon the present application.

16. The primary submission of counsel for the applicant was that the Board was in error in entertaining the question whether the recommendation that the fourth respondent be dismissed from the Australian Public Service was made by an officer having authority to do so. That question, he submitted, was not one for the Board, the legislative intention clearly apparent upon the face of the provisions being that the sole function of the Board in a case such as the present is to determine, in terms of sub-section 63D(2) of the Act, whether the action recommended was unduly severe.

17. The fourth respondent contended to the contrary, asserting not only that the question whether the applicant had authority to make the recommendation in question was one for the Board but that a finding that he lacked the necessary authority deprived the Board of jurisdiction to entertain the appeal on the merits. It is somewhat curious that the fourth respondent, having invoked the jurisdiction of the Board by appealing to it, should then argue that the Board had no jurisdiction to adjudicate on the question whether the penalty was unduly severe. It is even more curious when one contemplates the situation arising from the circumstance that the Board's decision as to the validity of the applicant's transfer to the relevant office is not a binding and authoritative decision on the question. The result has been that the Public Service Board has been unable, or unwilling, to take action pursuant to section 63A of the Act consequent upon the recommendation made by the applicant because of the pending appeal and that appeal cannot be heard because of the Board's view as to its jurisdiction. Nevertheless that is what has occurred.

18. There is, of course, an intermediate position to those contended for by the applicant and the fourth respondent. It is that the question whether the applicant lacked the requisite authority is not one going to the Board's jurisdiction but is a matter that may be raised before the Board on the hearing of the appeal.

19. In my opinion, the jurisdiction of the Board to hear and determine an appeal made to it by an officer under sub-section 63D(2) of the Act does not depend in any sense upon it being established that the officer who made the recommendation from which the appeal is brought had authority to do so. The correct view is, I think, that the right to appeal arises when an officer, purporting to act pursuant to paragraph 63(1)(d), in fact makes a recommendation for the dismissal of the officer. On the proper construction of the provision, the reference therein to a recommendation made in respect of an officer under paragraph 63(1)(d) is a reference to a decision in fact made whether or not the decision is a legally effective decision. Support for this approach is, I think, to be found in the reasoning of a Full Court of this Court in Collector of Customs v. Brian Lawlor Automotive Pty. Ltd. (1979) 24 ALR 307 at pp 314-5, 331-9.

20. It is true that in that case the Court had regard to the circumstance that to adopt the view that an appeal would lie to the Administrative Appeals Tribunal only where it could be shown that the decision was made in pursuance of a legally effective exercise of the powers conferred by the relevant enactment would remove a significant area from the jurisdiction of the Tribunal. That was because the question whether the decision was a legally effective one was itself a matter for the Tribunal. If, therefore, a Disciplinary Appeal Board may on the hearing of an appeal in a case such as this consider the question whether the recommendation was made by a person having authority to do so, the reasoning in Collector of Customs v. Brian Lawlor Automotive Pty. Ltd. (supra) would lead directly to the result that the Board does not lose jurisdiction in the event that such authority does not exist. But if the correct position be that the Board's function is limited to considering only the question whether the action recommended is unduly severe, that circumstance would, so it seems to me, strengthen rather than detract from the view that the jurisdiction of the Board does not depend upon it being shown that the recommendation was validly made. It follows that, on either view as to the Board's function on the hearing of the appeal, the question is not one that affects the Board's jurisdiction.

21. I am also of opinion that the function of the Board in this case was limited to considering the question whether the action recommended was unduly severe and that, having regard to the limited nature of its function, it would not have been open to it on the hearing of the appeal to canvass the question whether the officer making the recommendation had authority to do so. It seems to me that, where a person is aggrieved by the making of a recommendation under paragraph 63(1)(d) and he wishes to contest the authority of the officer making the recommendation, an appeal under sub-section 63D(2) is not an appropriate vehicle by which to put that question in issue. If that issue is to be raised it must be done by the institution of collateral curial proceedings.

22. Alternative arguments were advanced by counsel on behalf of the applicant on the assumption, contrary to his primary submission, that the Board had jurisdiction to decide the question whether the recommendation was made by an officer having authority to do so. On that assumption it was submitted that the Board had reached an erroneous conclusion because, in truth, the recommendation was validly made, the applicant having at the relevant time full authority to exercise the power conferred by paragraph 63(1)(d) of the Act.

23. The submission that the applicant had the requisite authority was put in two ways, one of which itself had two branches. It was submitted that on 10 October 1983 when the recommendation was made the applicant was the occupant of the office of First Assistant Secretary referred to in the determination made by the Public Service Board on 2 April 1982 and, as such, was a Chief Officer within the meaning of that expression in sub-section 63(1) of the Act. The applicant sought to make that proposition good by submitting -
    
    

(a) that the Public Service Act 1922 in describing a person as the occupant of an office, does not require that the person has been lawfully appointed to that office - the question is simply one of fact to be decided after taking into account all relevant circumstances;

(b) alternatively, that the applicant had been lawfully appointed to the office by virtue of the instrument of transfer signed by Mr G.L. Miller on 12 March 1982 pursuant to sub-section 50(1) of the Act, Mr Miller's power to do so deriving from the instrument of delegation signed by Mr D.H. McKay on 18 May 1978.

1. In the further alternative, counsel for the applicant relied upon an instrument of delegation signed by Mr L.P. Duthie as Permanent Head of the Department of Primary Industry on 7 April 1982. By that instrument Mr Duthie, pursuant to sub-section 25(5) of the Public Service Act 1922, delegated "to the officer for the time being holding or performing the duties of the office of First Assistant Secretary, Operations Division" of the Department of Primary Industry all his powers and functions under the Act. This approach can be supported only if the applicant was at the relevant time "the holder" of the designated office or "performing the duties" thereof - a question similar to that raised by the alternative submission that he was "the occupant" of that office. The submission also requires an affirmative answer to be given to the question whether the reference in sub-section 25(5) to the powers conferred upon a Permanent Head by the Act is to be construed so as to include the powers of a Chief Officer which a Permanent Head may exercise by virtue of the provisions of sub-section 25(3).

2. For the fourth respondent it was submitted that the references in the Act to the occupant of an office are references to a person lawfully appointed to occupy that office. It was also submitted that, although the instrument of delegation signed by Mr McKay on 18 May 1978 operated according to its tenor to confer on Mr Miller the power which the Permanent Head had by sub-section 50(1) of the Act to promote and transfer officers to vacancies within the Department of Primary Industry, that instrument ceased to have any operative effect at the instant Mr McKay ceased to hold the office of Permanent Head of that Department on 11 March 1980.

1. It was further submitted that the further alternative submission which was put by counsel for the applicant in reliance upon the instrument of delegation signed by Mr Duthie on 7 April 1982 was not only not supportable but was not available to the applicant as it had not been relied upon before the Board.

2. Having reached the conclusion, for reasons which I set out below, that the applicant was lawfully appointed to the office of First Assistant Secretary, Operations Division of the Department of Primary Industry by the instrument of transfer signed by Mr G.L. Miller on 12 March 1982 pursuant to sub-section 50(1) of the Act, it is unnecessary for me to express a concluded opinion upon the alternative submissions presented on behalf of the applicant. It may not be inappropriate to say, however, that I am inclined to think that those submissions should not be accepted.

3. The question whether the delegation continued to have operative effect notwithstanding Mr McKay's vacation of the office of Permanent Head is, in the final analysis, a question of the proper construction of sub-section 25(5) of the Act and an appreciation of the true nature of the power that that sub-section confers.

4. As to the latter, the recipient of a delegation of powers under the sub-section is not in any real sense the agent of the person who exercises the power to delegate. The effect of the delegation is to confer upon the delegate an authority which he must exercise in accordance with the requirement of the statute but independently of any direction which might be given to him whether by the person delegating the power or any other person. He must exercise the powers delegated in accordance with his own independent discretion having regard only to those considerations which the statute, expressly or by implication, obliges him to take into account. There is, therefore, nothing in the relationship between the person delegating the power and the delegate, as there would be if the relationship was one of principal and agent, which would require that the delegation should cease to have any valid operation upon the delegator ceasing to hold office.

5. Further, there is nothing in the language of the statute which requires the conclusion that a delegation should cease to operate in such an event. And convenience of administration suggests that a statutory power to delegate should not be construed so as to produce such an inconvenient result unless that construction is compelled by clear and unambiguous language, language which is nowhere to be found in the provisions now under consideration.

6. I find support for the views I have expressed in the decision of the Divisional Court of the Ontario High Court in Re Putnoki and Public Service Grievance Board (1975) 56 DLR (3d) 197. That case concerned a statutory provision permitting a Deputy Minister in the civil service of the Province of Ontario, an office corresponding to that of Permanent Head in the Australian Public Service, to delegate his powers under the statute. The power was, however, only to be exercised with the consent in writing of the Minister of Community and Social Services. By memorandum dated 5 November 1971 the Honourable Thomas L. Wells, who was then the responsible Minister, consented to a delegation of powers by the Deputy Minister and such a delegation was made on 30 May 1972. At that date Mr Wells remained the responsible Minister but, at the time of the suspension of Mr Putnoki from his office in the civil service which was relevant to the issues before the Court, Mr Wells had ceased to be such and had been replaced by a new Minister. Dealing with a submission that the power to suspend had not been validly exercised as the consent given by Mr Wells had ceased to be effective and the new Minister had not given a similar consent, Henry J., delivering the judgment of the Court said at pp.208-9 -
   
   

"We have considered this point carefully and have come to the conclusion that it is not sound. The consent given by the previous Minister continued to be valid until revoked or varied by the incoming Minister. While it is undoubtedly good practice that a new Minister should, immediately upon assuming office, ensure that he exercises his authority in respect of all necessary consents and delegations under the statues which he administers, previously existing authorities granted or conferred by his predecessor continue until such time as he is able to put his mind to endorsing or otherwise disposing of them. To hold otherwise would be to cause great difficulties in the administration of statutes during the period of transition in the normal transfer of portfolios from one Minister to another. Such acts represent the authority of the office, not of the individual, and they do not cease to have effect because the incumbent changes, unless the statute otherwise declares. We therefore hold that the consent given by the Honourable Thomas L. Wells on November 5, 1971, continued to be effective at the time of suspension of Mr Putnoki."

1. Support for this approach is also to be found in Benwell v. Gottwald (1978) VR 253 notwithstanding that the question that arose for decision in that case concerned not a power of delegation but a statutory provision under which a breath analysing instrument might be "operated by a person authorized in that behalf by the Chief Commissioner of Police". It was held by a Full Court of the Supreme Court of Victoria that an authority given by the person who was at that date the Chief Commissioner of Police did not cease to be effective when the incumbent of that office changed. As Crockett J. said at p.255 -
   
   

"... there is no need for a temporal co-existence between the occupancy of the office of Chief Commissioner of Police by the grantor of the relevant authority and the period of due authorization to the grantee of that authority. The relevant question is whether the grantor of the authority was at the time of its exercise empowered so to act and not whether at the time of the exercise of the authority by the grantee the grantor is still in office."

1. There is a further consideration which, in my view, militates strongly against the view that a delegation under a provision such as sub-section 25(5) ceases to have any valid operation at the moment the delegator ceases to hold office. It is now well settled that a statutory provision of that kind permits a delegation to be made in such a way as to identify the delegate either by name or by office and, in the latter class of case, authorises a delegation expressed in ambulatory language operating to confer power on each person who from time to time holds, occupies, or performs the duties of, the designated office: Owendale Pty. Ltd. v. Anthony (1967) 117 CLR 539; Esmonds Motors Pty. Ltd. v. The Commonwealth (1970) 120 CLR 463 at p 485. Once this is accepted it is very difficult to sustain the argument that the delegate must be the personal choice of the delegator, a proposition which seems to be at the heart of the submission that the vacation of office by the delegator has the effect for which the fourth respondent contends.

2. In my opinion the decision of the Disciplinary Appeal Board should be set aside. I declare that a Disciplinary Appeal Board constituted under section 63E of the Public Service Act 1922 has jurisdiction which it is under a duty to exercise to hear the appeal lodged by the fourth respondent against the recommendation made in respect of him by the applicant. In case any further orders should be thought necessary, I shall reserve to the parties liberty to apply. As the applicant did not seek costs, I make no order in that regard.