Murray, C. v Taylor, G. (Secretary of the Dept of Employment, Education & Training)

[1992] FCA 151

Re: CALITA MURRAY
And: GREG TAYLOR, SECRETARY OF THE DEPARTMENT OF EMPLOYMENT, EDUCATION and
TRAINING
No.G 650 of 1991
FED No.151
Administrative Law
(1992) 26 ALD 699 (extracts)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

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

CATCHWORDS

Administrative Law - statement of reasons sought - public service promotions - recommendee of selection panel not appointed - position readvertised and subsequently abolished - whether readvertisement was a "decision" reviewable under the ADJR Act - whether abolition of position exempt from the requirement to give reasons by virtue of falling within Schedule 2 to the ADJR Act.

Administrative Decisions (Judicial Review) Act 1977 (Cth), Schedule 2, paras.(q), (r).

HEARING

SYDNEY

#DATE 26:3:1992

Counsel for the Applicant: Mr R. Beech-Jones

Solicitor for the Applicant: Craddock Murray and Neumann

Counsel for the Respondent: Mrs J. Bonsey

Solicitor for the Respondent: Australian Government Solicitor

ORDER

The application be dismissed.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an application under s.13(4A) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") seeking a declaration that the applicant, Calita Murray, is entitled to request reasons with respect to certain alleged decisions under the Public Service Act 1922 (Cth).

1. The ADJR Act provides inter alia:-
   

"13 (1) Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.

...

(3) Where a person to whom a request is made under subsection (1) is of the opinion that the person who made the request was not entitled to make the request, the first-mentioned person may, within 28 days after receiving the request:

(a) give to the second-mentioned person notice in writing of his opinion; or

(b) apply to the Court under subsection (4A) for an order declaring that the person who made the request was not entitled to make the request.

...

(4A) The Court may, on the application of:

(a) a person to whom a request is made under subsection (1); or

(b) a person who has received a notice under subsection (3);

make an order declaring that the person who made the request concerned was, or was not, entitled to make the request."

1. The application is opposed on the ground that the alleged decisions for which the reasons are sought do not constitute decisions for the purposes of the ADJR Act or are exempt from the requirement to give reasons by reason of s.13(11)(c) and the provisions of the Second Schedule of the ADJR Act which exempts, inter alia:-
   

"(q) decisions in connection with personnel management (including recruitment, training, promotion and organization) with respect to the Australian Public Service or any other Service established by an enactment or the staff of a Commonwealth authority, other than a decision relating to, and having regard to the particular characteristics of, or other circumstances relating to, a particular person;

(r) decisions relating to promotions, transfers, temporary performance of duties, or appeals against promotions or selections for temporary performance of duties of or by individual officers of the Australian Public Service;"

1. The applicant, Ms Calita Murray, is seeking reasons in order to determine whether or not proceedings can be brought under the ADJR Act to challenge the course of events that has occurred.

2. As Ms Murray does not challenge the decisions in a substantive way, but only seeks to obtain reasons for the decisions, neither party has turned attention to all the evidence which might cast light upon the decisions and the circumstances in which they were made. Thus, although in the course of the proceedings, reference was made to the Public Service Act, no reference was made to the Public Service Regulations or to the Public Service Handbook and to the extensive provisions which I am sure that that Handbook contains governing the steps to be taken in relation to promotions. I have not found it a conceptually satisfying task to attempt to draw conclusions about decisions taken when the background against which they were taken, provisions in the Public Service Regulations and Handbook, have not been tendered in evidence.

3. Ms Murray is employed as an officer of the Australian Public Service in the Department of Employment, Education and Training. She applied for Position No. 15303 (Administrative Services Officer Class 3) in the Aboriginal Employment Development Branch of the Department. The vacancy had been advertised in accordance with s.50 of the Public Service Act. There were several applicants, of whom Ms Murray was one. The selection panel recommended to the Secretary that Ms Murray be appointed.

4. What effect the recommendation of a selection panel should have had I am unable to say for I have not been referred to any relevant regulation or to the provisions in the Public Service Handbook. I would be surprised if they did not set out complex provisions for the appointment of selection panels, for the steps which a selection panel must take and for the effect which a decision or recommendation of the selection panel has. But they are not before the Court.

5. In any event, the decision of the selection panel was not well received. A minute written by Mr M. Gallagher, First Assistant Secretary, dated 24 May 1990, read:-
   

"I am not convinced on the basis of the evidence provided that Ms Murray is the most outstanding applicant ahead of either Ms Crossland or Mr Cooper.

All three are assessed as suitable against all criteria, including criterion 1. The criteria that separates these candidates are 2, 3 and 5. I find it difficult to accept, on the basis of my knowledge of the candidates and on the evidence provided, the Committee's conclusion that Ms Murray is superior to Ms Crossland on criterion 2. Ms Crossland is an independent worker whereas Ms Murray is a highly dependent one who needs direct supervision. I also find it hard to accept the Committee's assessment that Ms Murray satisfies criterion 3. I understand her literacy skills are less than adequate. I would like to see this addressed specifically in a review by the panel of its recommendations, should you wish to pursue the selection process."

1. The next event that occurred was that the Secretary instructed that the vacancy be readvertised. It was submitted on behalf of Ms Murray that the Secretary had no authority to readvertise or improperly did so.

2. It was put on behalf of the Secretary that the decision to readvertise, and the action of readvertising were not decisions under an enactment for the purposes of review under the ADJR Act. I accept this submission. The advertisement of a vacancy is merely a procedural step to be taken towards filling the vacancy. It is not an ultimate and operative decision as referred to in Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321; Riordan v. Parole Board of the Australian Capital Territory (1981) 34 ALR 322; Edelsten v. Health Insurance Commission (1990) 96 ALR 673.

3. It was submitted on behalf of Ms Murray that the readvertising brought to an end her application for promotion; but there is no material before the Court to show that this was so. A vacancy was advertised, Ms Murray and two others applied for promotion and their respective applications were considered by a selection panel. It seems to me unlikely that the mere step of readvertising operated to determine those applications. In the absence of reference to any regulations or to the provisions of the Handbook which might show the contrary, I assume that the applications continued to be on foot notwithstanding the readvertising of the vacancy. In this event, the action of readvertising the vacancy and the decision to readvertise did not constitute decisions reviewable under the ADJR Act.

4. As a result of the readvertisement of the vacancy, Ms Murray lodged a grievance complaint. This was considered by Mr A.J. Kaspura, also a First Assistant Secretary of the Department. On 11 March 1991, Mr Kaspura forwarded a minute to Mr Gallagher which stated, inter alia:-
   

"I have advised Ms Murray that I will be requesting you to proceed with recruitment action on PN 15303 as a result of the readvertisement. All original applicants for the position should be given an opportunity to be re-interviewed. In view of the previous delays and difficulties with the selection for this position I request that a recommendation for the position be completed by 29 March 1991. This recommendation should then be forwarded through you to the Director, Personnel Operations who will arrange for an independent delegate to make a decision on the selection."

1. On 15 March 1991, there was a minute from Mr J.R. McCarthy, an Acting First Assistant Secretary, sent to Mr Kaspura. This minute stated, inter alia:-
   

"Clearly this is a very awkward situation. I would welcome your views on an option now being considered by the Division to abolish the position in question. Obviously this would mean not proceeding with further recruitment action." (the emphasis is mine)

1. On 16 May 1991, Mr Gallagher wrote to Ms Murray to say that "as a result of the April 1991 Divisional reorganisation, the abovementioned position has been abolished".
   

2. It was submitted on behalf of the Secretary that the decision to abolish Position No. 15303, taken under s.27 of the Public Service Act, was a decision which was exempted from the requirement to provide reasons by para.(q) of the Second Schedule, being a decision taken "in connection with personnel management (including recruitment, training, promotion and organisation) with respect to the Australian Public Service ...". Clearly, the decision falls within those words. However, it was submitted on behalf of Ms Murray that the decision related to and had regard to the particular characteristics or other circumstances relating to a particular person, Ms Murray, and therefore did not fall within the exemption.

3. Therefore, Ms Murray is in the strange position of having to establish that a decision, which on its face is exempt under para.(q), is not so exempt because it was made with the improper motive of preventing Ms Murray from obtaining promotion to a post for which she was the best qualified applicant and yet she seeks to prove this merely to obtain a statement of reasons which will disclose whether or not that was so.

4. I am not prepared to make a finding of fact as to whether or not the decision to abolish was taken so as to prevent the promotion of Ms Murray. The minutes tendered in evidence show that there is an arguable case that that may be so. But the material is not sufficient to justify a finding. It was submitted on behalf of Ms Murray that the reference in Mr McCarthy's minute of 15 March 1991 to "an option" was a reference to options being considered for dealing with Ms Murray's case. However, the words "an option" do not necessarily convey that. The Court has not been informed as to what was the extent of the divisional reorganisation or as to how the abolished position fitted in with the structure of the Department. I would not draw any inference against the respondent from his failure to adduce evidence with respect to this point. It would not have been appropriate for the respondent to go into evidence when the application was, after all, simply an application seeking reasons for the decision.

5. In any event, it appears to me that, if the submissions put on behalf of Ms Murray were to be accepted in relation to para.(q), then the decision would necessarily be one which fell within the terms of para.(r), for it would be a decision relating to the promotion of an individual officer of the Australian Public Service. The words "relating to" have a broad meaning. See e.g., Hatfield v. Health Insurance Commission (1987) 77 ALR 103 at 106-7.

6. Paragraph (r) was not always in its present form, that form being introduced by Act No. 153 of 1986. However, previously the paragraph had a slightly different wording and had within it a limitation or sunset period with the intent that the exemption would end leaving para.(q) as the operative exemption. Subsequently, the limitation or sunset period was extended and in 1986 the new form of the paragraph was enacted.

7. In my opinion, if it were established that the decision to abolish Position No. 15303 was undertaken not for the purpose of restructuring the Department but with a view to putting an end to the promotion process in respect of which Ms Murray had been recommended by the selection panel, then the decision would be a decision relating to the promotion of Ms Murray. A decision relates to a promotion whether it relates to the person who is appointed or to a person who has not been appointed.

8. It was submitted that para.(r) relates only to decisions which are the subject of appeal under the Public Service Act or regulations. Reference was made to the words "promotions, transfers (being transfers that are subject to appeal) or appeals against promotions or transfers" which appeared in para.(r) in its original form. However, it will be seen that the words "subject to appeal" were used only in relation to transfers. I would not read any such limitation into the terms of the present para.(r). It is not stated and it is not necessary.

9. It follows that Ms Murray's application must fail. The readvertising of the vacancy was not a reviewable decision and the decision to abolish Position No. 15303, which thereby terminated the promotion process of which Ms Murray was the recommended appointee, fell either within para.(q) or para.(r) of the Second Schedule. On the face of the decision, it fell within the words of para.(q) and I am not persuaded that it was not exempt under that provision. However, Ms Murray's attempt to take it out of that provision, if successful, would bring it within the terms of para.(r).

10. It was submitted on behalf of the Secretary that, even if Ms Murray was entitled to reasons for decision, a declaration should be refused on discretionary grounds. The only discretionary ground offered was that the Court could not order that Ms Murray be appointed to Position No. 15303, which in any event was abolished in 1990. However, this is not a case where past events have ceased to have any significance so far as the participants are concerned. Such a circumstance may arise, for example, when one decision has been overtaken by another. It is not for me to decide that any reasons for decision would not be of assistance to Ms Murray. I would not hold against the application on discretionary grounds.

11. However, for the reasons I have given, the application fails and must be dismissed.