Kenneth Tomkinson v the State of South Australia No. SCGRG 93/138 Judgment No. 3827 Number of Pages 7 Environment Protection Planning Appeal Legislation

[1993] SASC 3827

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Environment protection - planning appeal legislation - Commissioners of the Planning Appeal Tribunal - the plaintiff, a full-time commisioner of the Planning Appeal Tribunal established pursuant to the Planning Act 1982, sought a declaration that he was not subject to any mandatory retirement age, and that he continue to hold office unless and until the Governor, pursuant to s.20(4), made a determination providing for his retirement - the State of South Australia contended that provisions of the since repealed Planning and Development Act and Public Service Act, which were in force at the time of his appointment and which obliged the plaintiff to retire no later than at the age of 65 years were still of application to him - held that on a proper construction of the relevant transitional provisions of the Planning Act, the plaintiff was not presently subject to any mandatory retirement age. Public Service Act s106; Planning and Development Act 1966-1967 s2laa; Government Management and Employee Act 1985 and Planning Act 1982 s20.

HRNG ADELAIDE, 18 February, 1993 #DATE 23:2:1993
Counsel for plaintiff:         Mr S Apps
Solicitors for plaintiff:     Moloney and Partners
Counsel for defendant:         Mr M Walter
Solicitors for defendant:     Crown Solicitor for the State of
   South Australia

ORDER
Declarations made.

JUDGE1 PERRY J The plaintiff is a full-time Commissioner of the Planning Appeal Tribunal. He seeks a declaration that there is no mandatory retirement age applicable to him. 2. The defendant, the State of South Australia contends that by reference to various statutory provisions, which I will come to in due course, the plaintiff must retire no later than upon his attainment of the age of 65 years. 3. The plaintiff was born on 5 March 1928. He will, therefore, turn 65 on 5 March this year. When the matter came before me on 12 February I ordered that it be dealt with pursuant to Rule 50, and that it be listed for early trial. I further directed that in lieu of pleadings there be filed a statement of agreed facts, together with a statement of the questions upon which the Court would be asked to rule. In the result, the matter was able to be argued on the statement of agreed facts, without the calling of any oral evidence. 4. The questions upon which the Court has been asked to rule are:
    "1. Is there a legal obligation upon the plaintiff to retire
    on or before attaining the age of 65?
    2. If the answer to the question hereinabove is "no", what if
    any retirement age is imposed upon the Commissioner by statute
regulation or other instrument?" 5. The plaintiff's first relevant appointment was as a member of the Planning Appeal Board, to which he was appointed for a term of four years from 1 July 1967. The Planning Appeal Board was established by the Planning and Development Act 1966-1967. By Act No 73 of 1972 (which came into operation on 5 October 1972), the Planning and Development Act was amended to provide for the appointment of commissioners. The amending Act inserted into the Planning and Development Act a new s.21aa in the following terms:
    "(1) In the exercise of the powers conferred on him by
    subsection (1) of section 21 of this Act the Governor may
    appoint not more than six full-time commissioners.
    (2) Each full-time commissioner shall be paid such remuneration
    and allowances as the Governor from time to time determines.
    (3) A full-time commissioner appointed under this Act shall,
    except as is provided in this section, hold office under and
subject to the Public Service Act, 1967, as amended.
    (4) The Minister may, from time to time, by notice published in
    the Gazette determine that the provisions of the Public Service
    Act, 1967, as amended, and the provisions of the regulations
    made thereunder specified in the Gazette shall not apply to or
    in relation to the office of full-time commissioner and
    determine what provisions, if any, shall apply to or in relation
    to that office in lieu of those provisions and that notice shall
    apply and have effect as if it were enacted in this Act.
    (5) The Office of a full-time commissioner shall not be
    allocated to any Department of the Public Service to which any
Office, as defined in the Public Service Act, 1967, as amended -
    (a) of a person holding judicial office; or
    (b) of a person having the administration of or duties under
    this Act other than the administration of, or duties connected
    with, the affairs of the board, is for the time being allocated.
(6) Where pursuant to the Public Service Act, 1967, as amended,
    a full-time commissioner is entitled to retire and desires to
    retire that full-time commissioner may, with the approval of the
    Chairman, complete the hearing and determination of any appeal
    or matter part-heard by him before reaching that age and for
    that purpose he shall be deemed to continue as a full-time
    commissioner.
    (7) A person may be appointed a full-time commissioner under
    this Act notwithstanding that immediately before that
    appointment he was a part-time commissioner.
    (8) A full-time commissioner shall be an "employee" within the
meaning of the Superannuation Act, 1969, as amended." 6. It will be seen from the terms of s.21aa, and in particular ss.(3), that except as provided in the section, a commissioner held office "under and subject to the Public Service Act 1967, as amended". 7. Pursuant to the power conferred upon him in s.21aa(4), the Minister by notice in the South Australian Government Gazette dated 12 October 1972, determined that certain provisions of the Public Service Act not apply to the office of full-time commissioner. The relevant part of the notice as published in the Government Gazette of that date is as follows:
    "PLANNING AND DEVELOPMENT ACT, 1966-72 Notice of Determination
    by Minister WHEREAS by section 21aa(4) of the Planning and
Development Act, 1966-1972, the Minister is empowered to
    determine and specify by notice in the Gazette which provisions
of the Public Service Act, 1967, as amended, shall not apply to
    or in relation to the office of full-time Commissioner of the
    Planning Appeal Board: I, Glen Raymond Broomhill, Minister
    Assisting the Premier, the Minister to whom the administration
of the said Planning and Development Act has been committed,
    hereby determine that none of the provisions of the Public
    Service Act, 1967, as amended, nor of the regulations made
    thereunder shall apply to such office of full-time Commissioner
    except the following:- Of the Act Division VIII of part III
    (Leave of Absence). Division X of Part III (Retirement of
Officers)........" 8. It will be seen that, notwithstanding that Notice, Division X of Part III (Retirement of Officers), being a Division within the Public Service Act, remained of application to full-time commissioners, which, upon his appointment as such, included the plaintiff. 9. In the same Government Gazette, that is, the Gazette of 12 October 1972, the appointment was announced of the plaintiff as a full-time commissioner of the Planning Appeal Board. 10. At the time of the plaintiff's appointment as a full-time commissioner, Division X of the Public Service Act 1967 included the following section: "106. Every Officer- (a) in the case of a male Officer, having attained the age of sixty years shall be entitled to retire from the Public Service but may, subject to this Act, continue in the Public Service until he attains the age of sixty-five years;" 11. Although that section was subsequently amended (see Act No 38 of 1974), and later again the Public Service Act was repealed and replaced by the Government Management and Employee Act 1985 (being Act No 117 of 1985), a provision similar in effect, although slightly differently worded, remains applicable to officers or employees of the Public Service. 12. Having regard to the matters to which I have referred so far, there is no doubt, and indeed it was conceded on both sides during the hearing before me, that at the time of his appointment as a full-time commissioner, the plaintiff was, by virtue of s.106 of the Public Service Act, obliged to retire before he attained the age of 65 years. In 1982, by s.5 of the Planning Act 1982 (Act No 3 of 1982), the Planning and Development Act was repealed. 13. S.17 of the Planning Act provided: "The body formerly known as the Planning Appeal Board shall continue in existence, but, as from the commencement of this Act, shall be known as the 'Planning Appeal Tribunal'." 14. Notwithstanding the change from the Planning Appeal Board to the Planning Appeal Tribunal, the office of commissioner was retained. Provisions relating to commissioners appear in s.20 of the Planning Act 1982. S.20 provided, at the time of the enactment of the Planning Act 1982 and before later amendments, in part, as follows:
    "(1) There shall be such commissioners of the Tribunal as the
    Governor thinks fit to appoint.
    (2) A commissioner may be appointed on a full-time or part-time
    basis, but not more than six shall be appointed on a full-time
    basis.
    (3) A commissioner must be a person with practical knowledge of,
    and experience in-
    (a) local government;
    (b) urban and regional planning; or
    (c) administration, commerce or industry.
    (4) Subject to subsection (5) a full-time commissioner shall
    hold office upon terms and conditions determined by the
    Governor.
    (5) The following provisions shall apply in respect of full-time
     commissioners:
    (a) a full-time commissioner shall not be subject to the Public
    Service Act, 1967-1981, but the rights of a full-time
    commissioner to long service leave, recreation leave, sick leave
    and other forms of leave shall be determined in accordance with
    the provisions of that Act and the regulations under that Act;
    (b) a full-time commissioner may, notwithstanding that he has
    reached the age of retirement, complete the hearing and
    determination of any appeal or matter part-heard by him before
    reaching that age and shall, for that purpose, be deemed to
    continue as a full-time commissioner;
    (c) a full-time commissioner shall be an "employee" within the
meaning of the Superannuation Act, 1969, as amended;
    (d) a person who was immediately before the commencement of this
    Act a full-time commissioner under the repealed Act shall,
    subject to this Act, continue in office on terms and conditions
    no less favourable than those on which he held office under the
    repealed Act.
(6) " 15. Pursuant to s.20(5)(d), the plaintiff, being a "full-time commissioner under the repealed Act", continued in office, subject to the 1982 Act, "on terms and conditions no less favourable than those on which he held office under the repealed Act". At the same time, s.20(5)(a) of the Planning Act1982 removed full-time commissioners (which clearly included the plaintiff) from the purview of the Public Service Act, except for rights to "long service leave, recreation leave, sick leave and other forms of leave". 16. Reading ss.(4) and (5) of s.20 together, it fell to the Governor to determine the terms and conditions upon which full-time commissioners held office, except for the questions of long service leave and the other matters, which, by virtue of ss.5(a), remained to be determined in accordance with the provisions of the Public Service Act. 17. By Act No 59 of 1985, operative from 13 June 1985, s.20 of the PlanningAct was amended by the insertion of a new section (5a) which provides: "The salary and allowances of a full-time commissioner will be as determined from time to time by the Remuneration Tribunal." 18. By Act No 38 of 1986, operative from 28 August 1986, s.20(5)(d) of the Planning Act was repealed, but the same amending Act inserted a schedule into the Act, headed "Schedule of Repealing and Transitional Provisions". Clause 4 of that Schedule is in identical terms to the former s.20(5)(d). 19. The argument of the appellant is that from the time when the Planning Act1982 came into operation, he held office "upon terms and conditions determined by the Governor" (s.20(4)). At the same time, the plaintiff contends that he was, and is, entitled to the benefit of the transitional provisions which originally found expression in s.5(b), but now, as I have explained, are to be found in the Schedule to the Act. On the plaintiff's argument, pursuant to those provisions, any terms and conditions which might be determined by the Governor cannot be less favourable than those upon which he held office under the Planning and Development Act. It follows that whether by determination by the Governor or otherwise, the plaintiff cannot be obliged to retire before attaining the age of 65. However, given the repeal of the Planning and Development Act, and with it, s.21aa(3) which in turn applied to the office of commissioner, with some exceptions, the Public Service Act, including the provisions of that Act as to retirement, there is, on the plaintiff's argument, now no mandatory retiring age applicable to him, but retirement is a matter which falls to be determined by the Governor pursuant to s.20(4). Mr Walter of counsel for the Crown conceded that the plaintiff was liable to have the terms and conditions of his office determined by the Governor, and conceded also that ss.(5) of s.20 applied to him. However, Mr Walter argued that on a proper construction of the transitional provisions, and in particular s.20(5)(d) (now clause 4 of the Schedule), from the time of the coming into effect of the Planning Act 1982, and unless and until the Governor sees fit to make a determination applicable to him, the previous terms and conditions of his appointment continue to apply to him, including the mandatory retiring age of 65 years. 20. In my opinion, the construction contended for by Mr Walter is erroneous. S.5(d) does not take effect so as to cause the previous terms and conditions upon which the plaintiff held office to continue to apply, unless and until there is a determination by the Governor. It is not a section which purports to define the terms and conditions applicable to a full-time commissioner under the repealed Act. It is only a section which provides that his continuation in office must be "on terms and conditions no less favourable than those on which he held office under the repealed Act". It is a safety net, which ensures that, whatever the plaintiff's terms and conditions of office are, they must be no less favourable than those which previously applied to him. 21. Mr Walter's argument does not give full effect to the repeal of the Planning and Development Act, and attempts to give a greater scope of operation to s.5(d) than it is capable of bearing. In my opinion, there is at this stage no mandatory retiring age applicable to the plaintiff. 22. It is not without interest to note the situation of the two commissioners whom I understand have been appointed by the Governor since the coming into operation of the Planning Act 1982. As to one of them, there was an appointment under s.20(1), but no determination under ss.(4), either as to a retiring age, or as to any other terms and conditions of office. As to the other, in the same instrument as the instrument of appointment there is a determination that the appointment enures to a date upon which the appointee reaches the age of 71 years. 23. Of course, in the case of an appointment under s.20(1), the instrument of appointment does not need to embody a determination by the Governor of the terms and conditions upon which the appointee holds office. That is a separate matter covered by s.20(4). It follows that the Governor may at any time determine the terms and conditions of full-time commissioners under s.20(4). I see no reason why a determination under that sub-section could not be made of general application to all commissioners, or of particular application to a named commissioner. 24. Furthermore, I see no reason why a commissioner's terms and conditions of office should be determined for all time, once a particular determination has been made. On the contrary, I see no reason why the Governor could not make successive determinations varying terms and conditions of office, either generally, or with respect to a particular commissioner. It follows that, although as I have indicated the plaintiff is not at present subject to any mandatory retiring age, he remains liable to be made the subject of a determination by the Governor, determining a retiring age applicable to him, or any other terms and conditions relating to his office, except as to those matters dealt with in s.20(5). However, in the case of the plaintiff, and any other person holding office as a full-time commissioner under the repealed Act, a determination by the Governor could not provide for terms and conditions less favourable than those upon which the plaintiff or such other commissioner held office under the Planning and Development Act. 25. It follows that the questions upon which the Court has been asked to rule should be answered as follows:
    1. Is there a legal obligation upon the plaintiff to retire on
    or before attaining the age of 65? Answer: No.
    2. If the answer to the question hereinabove is "no", what if
    any retirement age is imposed upon the Commissioner by statute
    regulation or other instrument?
    Answer: No retirement age is imposed upon the Commissioner by
    statute regulation or other instrument.