O'Connell v Nixon
[2006] VSC 456
•29 November 2006
f
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 8703 of 2005
IN THE MATTER OF THE POLICE REGULATION ACT 1958 (Vic)
| SHANE O'CONNELL and RYAN IRWIN | Plaintiffs |
| v | |
| CHRISTINE NIXON (in her capacity as Chief Commissioner of Police) and POLICE APPEALS BOARD | Defendants |
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JUDGE: | WILLIAMS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11, 12 July 2006 | |
DATE OF JUDGMENT: | 29 November 2006 | |
CASE MAY BE CITED AS: | O’Connell & Anor v Nixon & Anor | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 456 | |
ADMINISTRATIVE LAW – Judicial Review – Relief in nature of certiorari and mandamus sought Decision of Police Appeals Board under reg 28(2)(b) of Police Regulations 2003 refusing permission to appeal under s 8AA Police Regulation Act 1958 against transfer of member of Victoria Police force -–– Whether transfer made under s 8 of Police Regulation Act 1958 – Application for declaration that reg 28(2)(b) Police Regulations 2003 invalid as inconsistent with s 8AA Police Regulation Act 1958 – Whether Police Appeals Board erred in exercise of discretion under reg 28(2)(b) of Police Regulations 2003 – Whether irrelevant considerations taken into account – Whether failure to have regard to relevant considerations.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr O.P. Holdenson QC and Mr R.M. Niall | Tony Hargreaves & Partners |
| For the Defendants | Ms D.S. Mortimer SC and Ms Rowena Orr | Freehills |
HER HONOUR:
The plaintiffs are members of the Victoria Police force (“the force”), each holding the rank of sergeant. By an originating motion filed on 10 October 2005, they seek relief in the nature of certiorari quashing a decision of the Police Appeals Board (“the Board”) made on 12 August 2005 (“the decision”). By the decision, the Board had determined that the plaintiffs were not entitled, under s 8AA of the Police Regulation Act 1958 (“the Act”), to appeal against the decision of Acting Chief Commissioner Nancarrow to transfer another member of the Force, Sgt W. Patten, to the position of Officer-in-Charge, Gisborne Crime Investigation Unit (“the position”).
The plaintiffs also seek the quashing of the Board’s consequential order dismissing their applications for leave to appeal, as well as an order in the nature of mandamus compelling the Board to hear and determine their appeals under s 8AA of the Act. Further, they challenge the validity of reg 28(2) of the Police Regulations 2003 (“the Regulations”) and request a relevant declaration.
The statutory scheme
It is convenient to refer to and set out relevant sections of the Act and some of the Regulations at this point. I note that I have not always followed the order in which the provisions appear in the legislation.
The Act
Part 1 of the Act deals with “ Appointments and Retirements”. In that Part, the Chief Commissioner is given broad general powers under s 5. Under the provisions of s 8, she has specific powers to appoint, promote and transfer members of the force.
The Commissioner’s powers
The relevant parts of s 5 and s 8 are expressed as follows :
5. Authority of Chief Commissioner and officers
(1)The Chief Commissioner shall have, subject to the directions of the Governor in Council, the superintendence and control of the force, and all officers of police shall have the superintendence and control of that portion of the force which is placed under their charge subject to the authority herein conferred upon the Chief Commissioner and to the regulations made or to be made by the Governor in Council as is hereinafter provided. …
8.Appointments to and promotions and transfers within the force
(1)The Chief Commissioner may, in accordance with the regulations, appoint, promote and transfer— …
(b)so many senior sergeants, sergeants, senior constables and constables—
as the Governor in Council thinks necessary. …
Entitlement to appeal
Section 8AA of the Act gives a member of the force the right of appeal to the Board if the member thinks that he or she has a better claim to promotion or transfer than the member selected for promotion or transfer. s 8AB sets out the matters to which regard shall be had in relation to promotions or transfers under s 8 and appeals under s 8AA. Those sections are in the following terms:
8AA. Appeals against non-selection for promotion
(1)Subject to the regulations, a member of the force who considers that he or she has a better claim to promotion or transfer under section 8 than the member selected for promotion or transfer may appeal to the Appeals Board. …
(2A)No appeal may be had in relation to a position of constable (general duties) or senior constable (general duties).
(2B)No appeal may be had in relation to the promotion of a constable who holds a position to the rank of senior constable in the same position.
(3) The only grounds for appeal are –
(a)in relation to the rank of senior sergeant, sergeant or senior constable –
(i) superior efficiency; or
(ii) equal efficiency and greater seniority; …
(4)An appeal must be lodged within 10 days after the day on which the member is notified of the member selected for promotion or transfer.
(5)If the regulations provide for the notification of members selected for promotion or transfer, a member is to be taken, for the purposes of sub-section (4), to have been notified of a member selected for promotion or transfer on the day on which the selection is notified in accordance with the regulations.
8AB. Grounds for promotion or transfer
(1)In a promotion or transfer under section 8 and in an appeal under section 8AA –
(a)regard shall be had to the efficiency of the candidates; and
(b)regard shall not be had to their relative seniority unless, in relation only to the rank of senior sergeant, sergeant or senior constable, they are considered to be equally efficient. …
(1A)This section does not apply to a promotion or transfer to a position of constable (general duties) or senior constable (general duties).
(1B)This section does not apply to a promotion of a constable who holds a position to the rank of senior constable in the same position.
(2)For the purposes of this section and sections 8 and 8AA –
‘efficiency’ means –
(a)the aptitude and special qualifications necessary for the discharge of the duties of the position in question, together with merit, diligence, good conduct, quality of service, mental capacity and physical fitness; and …
‘transfer’ means the transfer of a member of the force from one position in the force to another at the same rank.
Entitlement to review
Section 91F of the Act gives a member the right to seek review of certain decisions by the Chief Commissioner of which he or she is the subject :
91F. Application for a review by the Appeals Board
(1) Subject to this section, a member of the force may apply to the Appeals Board for a review of a decision by the Chief Commissioner or a person authorised by the Chief Commissioner—
(a) not to confirm the member's promotion; or
(b) to disallow the member's promotion; or
(c) to terminate the member's appointment; or
(d) to compulsorily transfer the member; or
(e) to make a determination under section 76(1)(c) or 80(1)(c) to impose a fine exceeding 5 penalty units or to make a determination under section 76(1)(ca), (d), (e), (f) or (g) section 80(1)(a)(ii) or (iii), (ca), (d) or (e) or section 85(a)(b) or (c); or
(f) that the member is unsuitable for promotion to a position of senior constable (general duties); or
(g) not to promote a constable who holds a position to the rank of senior constable in the same position.
The Board
The Board is established under s 87 of the Act. It is given functions under s 88 which relevantly provides :
88. Functions of Appeals Board
The functions of the Appeals Board are—
(a) to hear and determine appeals under section 8AA …;
(b) to conduct reviews of decisions on application under section 91F; …
Section 91E of the Act provides that an appeal under s 8AA is to be by way of a re-hearing. Section 91J provides that the Board is bound by the rules of natural justice in all proceedings before it. Section 91L(1) provides that all proceedings are to be conducted “with as little formality and technicality, and as much speed, as the requirements of [the Act ]and the proper consideration of the subject matter permit”. Otherwise, the Board has the power to regulate its own procedure, under s 91L(2). Section 91O(1) provides that the Board is not bound by the rules of evidence and may for all relevant purposes, inform itself as it sees fit.
Regulation making powers
The relevant powers to make regulations relating to appeals are found in s 130(f) and s 130(j) of the Act which provide :
130. Regulations
(1) The Governor in Council may make regulations for or with respect to – …
(f) appeals and reviews by the Appeals Board; …
(j)generally any matter or thing required or permitted to be prescribed or which is necessary or convenient to be prescribed for carrying of this Act into effect.
The Regulations
Appointments and advertisement of positions
The regulations relating to “Transfers and Promotions” are found in Part 4 of the Regulations. The transfer of Sgt Patten was made under reg 21 which is in the following terms:
21. Filling positions
(1)A member of the force is liable to immediate transfer to any part of the State.
(2)If a position is (or is expected to become) vacant, the Chief Commissioner may—
(a) fill the position by way of transfer of a member; or
(b)advertise the position and promote or transfer an applicant to the position; or
(c)in the case of a position of a constable (general duties) or senior constable (general duties), promote a member to the position without advertising the position.
(3)The Chief Commissioner may promote a constable who holds a position to the rank of senior constable in the same position without advertising the position if the constable is qualified and otherwise able to satisfy the eligibility criteria for promotion to the rank of senior constable.
The Chief Commissioner has a general obligation to advertise vacant positions in the Police Gazette under reg 23(1). However, she is not required to advertise a position if:
(a) she intends to fill it by transferring a member to it (reg 23(1)(a)); or
(b)the position is one of a constable (general duties) or a senior constable (general duties) (reg 21(2)(c) and reg 23(1)(c)); or
(c)she promotes a constable to the rank of senior constable in the same position and the constable is suitably qualified and meets the necessary eligibility criteria (reg 21(3)).
Appeals
The Regulations provide for the “Procedures For Hearings Before The Police Appeals Board” in Part 5. Regulation 28 is the first regulation to appear under the heading “Division 2- Appeals against Promotion or Transfer under sections 8AA and 118B of the Act”. Section 118B is not relevant to this application. Regulation 28 is relevantly in the following terms :
28. Requirements for an appeal
(1) An appeal under section 8AA … of the Act must—
(a) be in writing; and
(b) state the grounds of appeal.
(2)Unless the Appeals Board otherwise determines, a person is not entitled to appeal against any promotion or transfer if the person—
(a)did not satisfy the qualifications, eligibility criteria or time-in-position requirements for the position; or
(b)did not apply to be promoted or transferred to the position; or
(c)is a person whose application for a transfer or promotion to the position has lapsed under regulation 26.
Regulation 28 is followed by regulations which prescribe the procedures relating to appeals under s 8AA and s 118 of the Act. They relate to the lodgement and provision of copy documents to the parties (reg 29 and reg 30), representation at the hearing of an appeal (reg 31), evidence which may be relied upon in an appeal (reg 32) and the notification of the Board’s decision (reg 33).
The decision
On 12 August 2005, the Board concluded that the provisions of reg 28(2)(b) had the effect that the plaintiffs were not entitled to appeal under s 8AA of the Act against the transfer of Sgt Patten, because they had not applied to be promoted or transferred to the position. It went on to refuse to exercise its discretion under reg 28(2)(b) to allow the plaintiffs to appeal.
In its written reasons for decision the Board identified a threshold question as to whether the plaintiffs were entitled to appeal in all the circumstances. The Board went on to record that it recognised the importance of principles of merit and equity in relation to selection for Victoria Police positions and the desirability of a fair, competitive and transparent process. It also recognised the need for redeployment of personnel for personnel and management reasons. It noted that Sgt Patten’s transfer had been made in accordance with the Chief Commissioner’s decision, approving transfers, under reg 21, of “CEJA TaskForce” personnel to facilitate their return to the force. (The “CEJA TaskForce” was a unit established within the force’s Ethical Standards Department to investigate alleged corruption in the former Drug Squad.)
The Board went on to refer to the material considered by Acting Chief Commissioner Nancarrow in relation to Sgt Patten’s suitability for the position. It noted the dissatisfaction and frustration of members of the force as a result of the mismanagement of the process by the Victoria Police Human Resources Department and the anger and frustration generated as a result of the secrecy surrounding the process.
The Board then identified its task to be to consider whether to exercise its discretion under reg 28, to allow the plaintiffs to appeal against the decision, notwithstanding that they had failed to apply for transfer to the position.
The Board identified, as a relevant consideration, the question whether the Chief Commissioner’s discretion under reg 21, to fill the position without advertising it, had miscarried.
The Board noted that Acting Chief Commissioner Nancarrow had taken into account in the exercise of his discretion :
(a)the force’s commitment to support the reintegration of CEJA TaskForce personnel; and
(b)the material relating to Sgt Patten’s suitability for the position, including reports and recommendations from senior and other officers.
The Board noted that Acting Chief Commissioner Nancarrow had adopted “a corporate view” in relation to the transfer, taking into account “the critical importance of corruption investigation to the organisation, the difficulty and complexity of circumstances at CEJA TaskForce, the pressure involved and isolation of the members working at CEJA.” On the other hand, the Board viewed the plaintiffs’ submissions and supporting material as being related only to the effect of the decision upon them and upon the Gisborne Crimes Investigation Unit.
The Board emphasised that Acting Chief Commissioner Nancarrow had considered Sgt Patten’s suitability in isolation, rather than in the context of an enquiry as to whether he would be “the most suitable person for the position”. The Board expressed the view that, if the position had been advertised, it was very likely that there would have been a number of applicants and it may have been the case that Sgt Patten would not have been the most suitable of them.
The Board commented on the adverse effect on Victoria Police morale of an “apparently large number of Regulation 21 transfers”. Reiterating its view that selection for positions should be based solely on merit, it expressed the opinion that such transfers should be kept to a minimum. It recommended that consideration be given as to whether some public explanation of the reasons for the decision should be given.
The Board concluded that “[a]fter careful consideration of all the issues”, the Acting Chief Commissioner’s decision was not unreasonable in the circumstances. It determined not to exercise its reg 28(2)(b) discretion and denied the plaintiffs’ entitlement to appeal in respect of the transfer.
The application
The plaintiffs’ submissions
The plaintiffs argue that s 8AA gives them a right of appeal, as members of the force who consider that they have better claims to transfer to the position than the member transferred.
The plaintiffs contend that the Board erred in law in concluding that reg 28(2)(b) operated to limit their right of appeal under s 8AA. They submit that reg 28(2)(b) is invalid, because it is inconsistent with or repugnant to the rights of appeal given by s 8AA. As a consequence, the Board failed to comply with what the plaintiffs argue is the Board’s obligation under s 88(a) to hear and determine their appeals under s 8AA.
Alternatively, the plaintiffs argue that, even if reg 28(2)(b) is valid, then the Board failed to exercise, in accordance with law, the discretion to permit an appeal given to it by the regulation’s opening words. They contend that the Board erred by asking itself the wrong question, failing to have regard to relevant considerations and taking irrelevant considerations into account.
The plaintiffs submit that the Board asked itself the wrong question when it addressed the issue of the reasonableness of Acting Chief Commissioner’s decision to transfer Sgt Patten. They state the irrelevant considerations which they allege were taken into account by the Board in the originating motion as :
(1)the reasonableness or otherwise of the decision of Acting Chief Commissioner Nancarrow;
(2)whether the exercise of the discretion to transfer under regulation 21 had miscarried;
(3)that it is the responsibility of the Chief Commissioner to ‘manage the force’.
The plaintiffs also give the following particulars of the relevant considerations which they contend the Board failed to take into account :
(1)whether Sgt O’Connell and Sgt Irwin were of superior efficiency to Sgt Patten;
(2)the prospect of success in an appeal brought by Sgt O’Connell and/or Sgt Irwin;
(3)whether it was in the interests of the proper administration of the Act and Regulations that permission be given to appeal under Regulation 28;
(4)whether in the event that the Plaintiffs were denied an entitlement to appeal they would suffer an injustice.
The first defendant’s submissions
The first defendant submits that the transfer, made under reg 21, was not made under s 8 at all, with the result that the plaintiffs had no right to appeal against it under s 8AA.
Counsel for the first defendant support this argument by pointing to other sources of the Chief Commissioner’s power to transfer under reg 21(2)(a), such as her power of general governance under s 5(1) and sections in the Act giving power of transfer in the context of disciplinary offences[1]. They rely upon both a textual and an historical analysis of the Act and the Regulations to confine the ambit of the power in s 8.
[1] In s 76(1)(f), s 80(1)(d) and s 85(a).
Alternatively, the first defendant contends that the entitlement to appeal under s 8AA is circumscribed by the Regulations and, in particular by reg 28(2). They reject the plaintiffs’ argument that reg 28(2)(b) is invalid.
The first defendant further argues that the Board’s decision is not susceptible to challenge on the bases that it took into account irrelevant considerations or failed to have regard to relevant matters.
It is convenient to deal at the outset with the first defendant’s arguments in favour of the proposition that s 8AA does not apply to the transfer of Sgt Patten, in any event, because it should not be regarded as one made under s 8 of the Act.
The textual argument for restricting s 8 and, as a result, s 8AA
Counsel for the first defendant rely upon the language of s 8AA and s 8AB, citing:
(a)the introductory words of s 8AA which refer to a member who thinks that he or she has “a better claim to promotion or transfer”;
(b)the use of various forms of the word “select” in s 8AA(1), (4) and (5) and in the heading to the section;
(c)the requirement in s 8AB that regard be had to the “efficiency” of “the candidates” and “their relative seniority” in relation to a transfer under s 8; and
(d)what they describe as the limited nature of the definition of “transfer” in s 8AB(2).
Counsel for the first defendant argue that “efficiency”, as defined in s 8AB(2), should not be a mandatory consideration for the Chief Commissioner in relation to transfers in cases in which she might utilise the reg 21 procedure. Counsel refer to transfers of members of the force returning to work after suffering a compensable work-related injury and those transfers necessary to remove members from situations of harassment. They contend that “efficiency”, as defined in s 8AB(2), would be an extraneous consideration in such cases. Further, they submit that an appeal process restricted to comparison of the relative efficiency of an appellant and the transferee would, in the case of those transfers, undermine the Chief Commissioner’s discretionary powers.
Counsel for the first defendant also contend that, if a reg 21 transfer fell under s 8, s 8AB(1)(a) would oblige the Chief Commissioner to compare the efficiency of the potential appointee with that of all other members of the force. They characterise this outcome as absurd. They submit that it demonstrates a fundamental flaw in the plaintiffs’ argument for the construction of s 8.
Counsel for the plaintiffs respond that the textual argument is weak: there being no express limitation of the applicability of s 8 or s 8AA to transfers made upon application. They argue that s 8AA is a remedial provision, not to be read down on any such insubstantial basis.
They argue that the use of the verb “select” is neutral. The word is equally applicable to the transfer of a member selected from the group at large, outside a competitive process. As for the use of the plural noun “candidates”: they contend that it too applies, in the context, to any potential transferee.
In relation to the argument that s 8AB would require the Chief Commissioner to compare the efficiency of a sole candidate with that of every other member of the force, counsel for the plaintiffs respond that the same consequence would flow from the first defendant’s construction, in any event, in the case of a single applicant for an advertised vacant position.
Conclusions - textual argument
I am not persuaded by the first defendant’s argument for the suggested limited meaning of the word “transfer” in s 8. I am not persuaded by the argument that the language of s 8AA and s 8AB indicates that such a transfer is limited to one made after selection between applicants competing for that position.
In my opinion, the reference to the possession of a “better claim” in the opening words of s 8AA describes the basis upon which either a disappointed applicant or an aggrieved non-applicant might wish to contest another’s appointment.
The first defendant argues that the use of the verb “select” in various forms in the relevant sections indicates a competitive process involving applications for positions. I do not agree. The second edition of The Oxford English Dictionary provides the following definition which assumes only the existence of a class from which a choice, indicative of preference, can be made:
select … trans. To choose or pick out in preference to another or others.[2]
[2]The Oxford English Dictionary Second edition, Clarendon Press, Oxford 1989 p 901.
I am not persuaded by the first defendant’s submission to the effect that the “ordinary meaning” of the word “candidate” is limited to one who puts him or herself forward or applies for a position. The Oxford Dictionary definition of the noun encompasses both one who seeks or aspires to office and one who is selected by others as an aspirant:
candidate … one who seeks or aspires to be elected or appointed to an office, privilege or honour or who is put forward or selected by others as an aspirant ….[3]
[3]Ibid p 825.
The use of the plural form of “candidate” in s 8AB(1), in the description of the applicable criteria in relation to an appointment, promotion or transfer under s 8, does not resolve the issue. In my view, the plural may be read as including the singular.
The “efficiency” of a single candidate could also be measured by reference to the matters listed in the definition of “efficiency” in s 8AB(2), without the need to make the impracticable suggested comparison with the “efficiency” of every other member of the force possibly eligible for transfer to the position. The listed factors relate to the demands of the position itself and to the personal characteristics and history of service of the potential appointee, transferee or person under consideration for promotion. (I note that, in any event, as the plaintiffs point out, the first defendant’s argument would seem to require such a comparison in the case of a sole applicant to an advertised position.) The fact that a comparison of the relative seniority of equally efficient candidates would only occur if there were more than one does not, in my view, necessitate the conclusion for which the first defendant contends.
Further, I am not persuaded by the first defendant’s argument that the interpretation of s 8 urged by the plaintiffs would undermine the Chief Commissioner’s powers to place members of the force who have been involved in the CEJA TaskForce (or other such difficult positions), members who have been subjected to harassment or those who have suffered work related injury. The assessment of a member’s “efficiency”, as defined in s 8AB(2), refers not only to the ability to meet the demands of the position and general mental capacity and physical fitness but also to “merit, diligence, good conduct… [and] quality of service”. Service in demanding or difficult positions or the suffering of work-related harm seem, in my view, to be factors properly able to be taken into account in making an assessment of “efficiency” within the meaning of the definition.
As far as the restricted definition of “transfer” in s 8AB(2) is concerned, I note that the transfer of Sgt Patten fell within its parameters. Even if the word has been given a particular meaning for the purposes of s 8 and s 8AA, I see no warrant in the definition for restricting the operation of s 8 to transfers following a competitive application process.
The historical context argument for restricting s 8 and s 8AA
Counsel for the first defendant also call in aid the historical context of the Act. They contend that the history of the Act strongly supports a construction of s 8AA restricted to appeals by members who have applied unsuccessfully for a transfer or promotion under s 8. They point to the continuing co-existence of two separate “streams” of entitlements, to appeal and to seek review, under different versions of the Act and the regulations made from time to time. One, they characterise as the “non-selection appeal process” and another they describe as the “non-application process”.
Counsel for the first defendant submit that the legislative scheme has historically been one in which only those who were, themselves, the subject of a decision relating to promotion or transfer had the right to reconsideration of the decision. They argue that it remains such a scheme.
The “non-application” process
Regulation 251 of the Police Regulations 1957 provided that police were liable to immediate transfer to any part of the State of Victoria “in order to maintain the discipline and efficiency of the Police force”. Such a liability has been the subject of regulation right up to the present [4]. It remains, under reg 21(1) of the Regulations.
[4]Although the reference to the maintenance of discipline and efficiency has been absent from 1991; see: reg 801 of the Police (Amendment) Regulations 1991.
Various versions of the Act and the regulations from time to time, have provided a right of appeal, and, subsequently, review, to members of the force subjected to direct or compulsory transfer without application on their part.
An aggrieved member was initially given a right of appeal in relation to a transfer for which he had not applied, by s 91(1)(b) of the Act. Appeals were originally to a judge of the County Court and, subsequently, to the Police Service Board[5]. When the Act was amended in 1993[6], the right to appeal became an entitlement to apply for a review of the decision, under the substituted s 91F(d). The Police Review Commission was established and given the function of hearing appeals and reviews[7].
[5]Established under s 4 of the Police Regulation Act 1962.
[6]By s 12 of the Police Regulation (Discipline) Act 1993.
[7]Under s 12 of the Police Regulation (Discipline) Act 1993.
As a result of amendments by the Police Regulation (Amendment) Act 1999, a member aggrieved by his or her compulsory transfer may apply for review by the Board under s 91F(1)(d) of the Act. Members affected by disciplinary decisions to transfer them to other duties may also seek review of those decisions under s 91F(1)(e).
The “non-selection” process
Counsel for the first defendant now contend, in effect, that the right of appeal in s 8AA should be limited in the way in which the entitlement under the former s 69(2)(b)(i) of the Act[8] was restricted.
[8]Inserted by s 9(b) of the Police Regulation (Further Amendment) Act 1985.
Section 69(2) had relevantly provided:
69(2)Subject to this Act and the regulations under this Act the functions of the [statutory predecessor to the Board] shall be : …
(b)to hear and determine appeals from any member of the force :
(i)against their non-selection for promotion or transfer to any vacant position advertised in the Police Gazette for which the member had applied; …
Counsel for the first defendant argue that it is not possible to discern an historical legislative intent to give members of the force a right to call for reconsideration of a transfer of which they were not the subject. Accordingly, as the process under s 8AA effectively replaced that under the former s 69(2)(b)(i), they contend that the ambit of s 8AA should be restricted to appeals against non-selection for promotion or transfer to an advertised position for which the member has applied, notwithstanding the absence of the relevant limiting words.
Counsel for the plaintiffs respond that little assistance is to be gained from the legislative history which was a “patchwork” of provisions, contained in various versions of the Act and in assorted regulations. They cite the opening words of Mason, J’s judgment in Beckwith v R[9] where his Honour observed that: “[r]esort to the history of a statute all too rarely illuminates the meaning of its current provisions”[10].
[9](1976) 135 CLR 569.
[10](1976) 135 CLR 569 at 578.
The plaintiffs submit that the introduction of the group of provisions which included s 8, s 8AA and s 8AB constituted a significant departure from the existing statutory regime. The Chief Commissioner was for the first time given an express power to transfer members. “Efficiency” was made a criterion for the exercise of the power which had previously been unconstrained. The permissible considerations in relation to an appeal against a decision to appoint another applicant to an advertised position under the former s 69(2)(b)(i), which included the applicants’ “respective suitability and qualifications” as well as seniority, health and “pressing necessity”, were replaced by the sole consideration of “efficiency”, under s 8AB. The significant changes, they argue, make the earlier forms of the Act of no value in the construction of its new provisions. They submit that it is not possible to divine clearly the provisions or policy from which s 8AA derived.
Significantly, counsel for the plaintiffs also point out, the legislature did not include in s 8AA the relevant words limiting the right of appeal which were found in s 69(2)(b)(i). In those circumstances, they submit, it would be unlikely that such limitations on the operation of the new provision would have been intended.
In any event, they argue that the continued existence of the right of a person transferred to appeal or obtain a review of the decision affecting him or her under s 91 is irrelevant. They submit that the provisions of s 91 and those of s 69(2)(b)(i) operated in two different spheres, with no overlap. Accordingly, it would be wrong to read down s 8AA with reference to the form of appeal to which reference was made in s 69(2)(b)(i).
Conclusions - historical context argument
It is common ground that consideration of the history of a statutory provision may assist in its interpretation[11]. In this case, however, in my view, the statutory context does not assist the first defendant.
[11]See: Beckwith v R (1976) 135 CLR 569 at 578 per Mason J.
I am persuaded by the plaintiffs’ argument that there was a departure from the former scheme of the Act brought about by the introduction of s 8, s 8AA and s 8AB, as well as the amendments to s 69 and s 91.
In my opinion it is significant that, although the legislature had the opportunity to include relevant limiting words within s 8 and s 8AA, both initially, in the 1990 amending legislation[12], and, later, when making the 1992 amendments[13], it did not do so. The limits to the right to appeal under s 8AA were left to be imposed by regulation.
[12]Police Regulation (Amendment) Act 1990.
[13]By the Police Regulation (Amendment) Act 1992.
I note that examination of the history of the Act and the predecessors to the Regulations reveals a legislative scheme in which the existence and regulation of a right to appeal against decisions to transfer has historically been found, variously, in statute and regulation.
The continuing existence of a member’s right to challenge his or her transfer to a position for which the member has not applied is not, in my opinion, decisive in relation to the question in issue as to the right of another member to challenge a transfer.
Further, s 8AA is and was always expressed to be “[s]ubject to the regulations”.
Reg 909 of the Police (Amendment) Regulations 1991 initially made the entitlement to appeal under the newly introduced s 8AA unavailable to a member who had not applied to be promoted to a vacancy (consistently with s 8AA as it then stood). There was a discretion in the Police Service Board to determine otherwise.
When s 8AA of the Act was amended by the Police Regulations (Amendment) Act 1992, to allow an appeal by unsuccessful applicants for transfer, as well, the Police (Discipline) Regulations 1993 substituted a new reg 602 which made the entitlement to appeal unavailable to a member who had not applied to be promoted or transferred to a position for promotion or transfer to which another had been selected. Regulation 602 was in the following terms, similar to those of reg 28 :
602. Requirements for an appeal
(1) An appeal under s 8AA or s 18B of the Act must:-
(a) be in writing:
(b) be lodged with the Police Review Commission not later than …
(c) state the grounds of appeal.
(2)Unless the Commission otherwise determines, a person is not entitled to appeal against any promotion or transfer if that person-
(a) did not satisfy the eligibility criteria for that vacancy;
(b) did not apply to be promoted or transferred to that vacancy.
In my view, the transfer of Sgt Patten was made under s 8, notwithstanding that it did not result from a process involving competing applications. I am not persuaded by the first defendant’s argument that the Chief Commissioner’s powers to appoint, promote and transfer under s 8 are limited to the making of appointments, promotions and transfers in the context of such a process.
It follows that I reject the argument that s 8AA does not apply because the appointment was not made under s 8. Nor am I persuaded that s 8AA itself only entitles an applicant for transfer to appeal against a transfer made under s 8. I consider that s 8AA gives a right of appeal to a non-applicant member of the force in relation to a transfer under s 8, subject to the Regulations.
If reg 28(2)(b) is valid, and the right to appeal a transfer decision made under s 8 limited as a result, the plaintiffs have no right to appeal under s 8AA, unless the Board exercises its discretion in their favour.
I will now turn to the plaintiffs’ challenge to the validity of reg 28(2)(b).
Is reg 28(2)(b) valid ?
The plaintiffs argue that reg 28(2)(b) is invalid, because it purports to impermissibly qualify or restrict the statutory right to appeal under s 8AA, creating two streams of appeal: one allowing appeal as of right and another making the entitlement dependant upon an exercise of the Board’s discretion. The plaintiffs contend that the regulation-making power operates on appeals, as they are conceived by the Act, and that neither s 130(1)(f) nor s 130(j) confers a power to remove the right of appeal or to make its exercise subject to licence or consent.
The first defendant responds that reg 28(2)(b) has been validly made in the exercise of the regulation-making power under s 130. The first defendant relies, in particular, upon the power to make regulations “for or with respect to … appeals” under s130(1)(f).
Whilst it is common ground that the introductory phrase “subject to the regulations” in s 8AA is not a source of regulation making power, in the sense that it does not expand or alter that power, the first defendant attaches significance to it.
Counsel for the first defendant contend that the opening words of s 8AA indicate that the legislature has contemplated the executive, by regulation, qualifying the entitlement to appeal. They argue that it should not be surprising to find a concentration of power in the executive under legislation relating to the control of an entity charged with preserving the safety and security of the Victorian people and enforcing the laws of the state. They cite the subjection of the Chief Commissioner’s general powers of governance under s 5 to executive direction.
Counsel for the first defendant also point to the use of the introductory words “subject to this section” in s 91F(1), arguing that the scheme of the Act is further indicated by the restriction of the right to apply to the Board for review under that section.
The plaintiffs respond that the opening phrase in s 8AA cannot be relied upon to diminish the effect of the proposition that regulations cannot be inconsistent with or repugnant to rights created under the Act. The plaintiffs submit that the words do not confer a power to re-define appeals by regulation, as they assume regulations made within power under the Act.
Counsel for the plaintiffs refer to and rely upon Shanahan v Scott[14], Vanstone v Clark[15], Ira, L & LC Berk Ltd v the Commonwealth[16], Morton v Union Steamship Company of New Zealand Limited[17] and, in particular, Swan Hill Corporation v Bradbury[18] in support of their arguments. They contend that, in conformity with the authorities, the regulation-making power in s 130(1)(f) can only be read as a power to make machinery provisions to facilitate the making and hearing of appeals.
[14](1957) 96 CLR 245.
[15](2005) 147 FCR 299.
[16](1930) 30 SR (NSW) 199.
[17](1951) 83 CLR 402.
[18](1937) 56 CLR 746.
The plaintiffs also argue that Swan Hill Corporation v Bradbury is authority for the proposition that reg 28(2)(b), which removes the entitlement to appeal under s 8AA, is not saved by the discretion given to the Board to reinstate it. They cite Herald & Weekly Times Ltd v VCAT[19] as a further example of the application of the same principle.
[19][2005] VSC 44.
The first defendant seeks to distinguish the authorities to which the plaintiffs refer. Counsel for the first defendant argue that the regulation-making powers in Ira and the similarly worded powers to make “necessary or convenient” by-laws, considered by the High Court in Morton, are general in their terms and bear no resemblance to the specific power to make regulations in relation to appeals under s 130(1)(f). They also submit that neither s 130(1)(f) nor s 130(1)(j) is restricted to the power to “regulate” the relevant subject matter, similar to that which was analysed by Dixon J in Swan Hill Corporation. They characterise the power in the Herald & Weekly Times case as a much narrower power to regulate practice and procedure. Section 130(1)(f), according to the first defendant, has given the executive the broadest of powers to regulate appeals and reviews. The first defendant argues that the authorities relied upon by the plaintiffs have no application in this case.
Counsel for the first defendant add that the relevant statutory provisions in the cases relied upon by the plaintiffs did not include the words “subject to the regulations” found in s 8AA. They submit that the Court should decide that reg 28(2)(b) should prevail, to the extent of any inconsistency between it and s 8AA, in accordance with the relevant statement of principle by Megarry J in C & J Clark Ltd v Inland Revenue Commissioners[20].
[20][1973] 1 WLR 905 at 911.
The plaintiffs reply that C & J Clark should be distinguished as a decision relating to the meaning of the words “subject to” only in the context of a clashing provisions in the one act, as opposed to a conflict between a statutory provision and a regulation.
Conclusion - validity of reg 28(2)(b)
The validity of a regulation is to be determined by the Court construing the statutory provision conferring the power to make it, proceeding to consider the meaning and scope of the regulation and deciding whether the regulation falls within the ambit of the statutory power; see: Pearce D and Argument S, Delegated Legislation in Australia (3rd ed 2005) [21].
[21]At [[12.4], citing Diplock L J’s description of the court’s task in McEldowney v Forde ([1971] AC 632 at 658); Vanstone v Clark ((2005) 147 FCR 299 at [103] per Weinberg, J).
Sections 130(1)(f) and (j) are the sources of the relevant regulation-making power. Section 130(1)(f) gives specific power to make regulations “for or with respect to” appeals and reviews by the Board. S 130(1)(j) provides the executive with a typical broad general power to make regulations for or in respect to matters required or permitted to be prescribed or “necessary or convenient” to be prescribed in order to give effect to the Act.
Section 8AA gives the right to appeal which is the subject of reg 28(2)(b). The limitations to the entitlement to appeal previously found in the former s 69(2)(b)(i) do not appear in s 8AA. The prefatory words “subject to the regulations” in s 8AA are not a source of regulation-making power themselves. Those words, however, have the effect of limiting the right to appeal, to the extent provided for by validly made regulations.
Neither s 130(1)(f) nor s 130(1)(j) expressly authorises the prohibition of any appeal under s 8AA or the making of the entitlement to appeal under that section dependent upon the exercise of a discretion by the Board.
In Swan Hill Corporation v Bradbury[22], Dixon J stated the relevant principle when construing a statutory power to make by-laws “regulating and constraining the erection and construction of buildings”. His Honour said :
Prima facie a power to make by-laws regulating a subject matter does not extend to prohibiting it altogether or subject to a discretionary licence or consent. By-laws made under such a power may prescribe time, place, manner and circumstance and they may impose conditions, but under the prima facie meaning of the word they must stop short of suppressing or preventing the thing or course of conduct to be regulated.[23]
[22](1937) 56 CLR 746.
[23](1937) 56 CLR 746 at 762.
The absence of the word “regulating” from the provisions of s 130(1)(f) and s 130(1)(j) does not render the principle inapplicable, in my view.
However, the relevant appeals about which regulations may be made under s 130(1)(f) are those under s 8AA. The entitlement to appeal under s 8AA is restricted : it is given only to those who are not deprived of that right under the Regulations; the Regulations are to prevail[24]. The effect of reg 28(2)(b) is to deprive a non-applicant of the right to appeal, unless the Board’s discretion is exercised so as to give that entitlement. As, in my view, s 8AA contemplates that the right to appeal under the section may be so restricted by regulation, reg 28(2)(b) should not be regarded as invalid under the principles expounded by Dixon J in Swan Hill Corporation.
[24]See: C & J Clark Ltd v Inland revenue Commissioners [1973] 1 WLR 905 at 911 per Megarry J.
I agree with counsel for the first defendant that such an interpretation is consistent with the recognition of the significant role given to the executive in relation to the control and management of the force elsewhere in the Act[25]. I also note my view that such a construction of the effect of the opening phrase in s 8AA does not involve its interpretation as a source of regulation making power. Rather, as I have said, it operates to limit the entitlement under the section.
[25]See, in particular, s 5.
The alternative submissions premised upon the validity of reg 28(2)(b)
The plaintiffs also argue, in the alternative (on the premise that reg 28(2)(b) is valid) that the Board asked itself the wrong question, failed to take into account relevant matters and had regard to irrelevant considerations in the exercise of its discretion under that regulation.
The plaintiffs accept that, on its face, the discretion conferred by reg 28(2)(b) is broad. Nevertheless, they contend that it relates to the function which the Board would exercise on an appeal, arguing that it could not possibly be intended that “the discretion be divorced completely from the task required in an appeal”. Such a construction, in their submission, would undermine the legislative intent that transfer decisions be made and appealed only on the ground of relative efficiency. Even if reg 28(2)(b) allowed the Board to have regard to the need for the Chief Commissioner to manage the force, it would not allow the Board to ignore “efficiency” and any submissions on that topic. Relative efficiency should have been taken into account, as should the plaintiffs’ prospects of success in an appeal, as well as the issue as to whether allowing the appeal was in the interest of the proper administration of the Act and the Regulations and the question as to whether the plaintiffs would suffer injustice by an unfavourable exercise of the discretion.
The plaintiffs also argue that the Board took a “perfunctory approach” to their submission to it. The Board’s approach reveals a misunderstanding and failure by the Board to address the plaintiffs’ submissions with respect to their superior efficiency. The plaintiffs rely upon the High Court’s decision in Dranichnikov v Minister for Immigration and Multicultural Affairs[26]
[26](2003) 197 ALR 389 at 394-5, [27].
The first defendant responds that reg 28(2)(b) does not prescribe any matters which the Board was required to take into account in exercising its discretion. Referring to a passage from the judgment of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd[27], counsel for the first defendant submit that the plaintiffs must establish, by implication from the subject matter, scope and purpose of the Regulations, that the Board was bound to take into account the considerations to which they refer. They argue that there is nothing in the scope and purpose of the Regulations or the Act which supports the plaintiffs’ assertions. In summary they base their submission on the following propositions :
(a)The position of reg 28 in the Regulations indicates that it is a provision dealing with a preliminary topic, distinct from the substantive issues relevant to an appeal.
(b)If the Board were bound to consider any matters, those matters should have been informed by the content of the three sub-paras of reg 28(2). Apart from the consideration as to the reasons for non-application, the considerations which were relevant and should have been taken into account are unrelated to the matters referred to in those sub-paragraphs.
(c)Whilst s 8AB prescribes efficiency as a mandatory consideration for the Board in relation to an appeal under s 8AA, the subsection does not make any such prescription in relation to reg 28(2).
[27](1986) 162 CLR 24 at 39-40.
The first defendant contends that, in any event, even if the Board was obliged to have taken into account the reasons for the plaintiffs’ failure to apply for the transfer, it did so by noting their inability to apply and the fact that the decision was made in accordance with the decision to approve reg 21 transfers of former CEJA Taskforce members.
The plaintiffs argue that the Board also took into account the irrelevant considerations of the reasonableness of the decision, the question as to whether the exercise of the Chief Commissioner’s discretion by the Acting Chief Commissioner had miscarried and that it was the Chief Commissioner’s responsibility to manage the force. They support this argument by submitting that none of those considerations would be relevant to an appeal under s 8AA.
The first defendant responds that nothing in the terms of the Regulations, in general, and reg 28(2)(b), in particular, prevented those considerations from being taken into account in the exercise of the discretion. Counsel for the first defendant make the point that it would be hard to imagine that the fact of the Chief Commissioner’s responsibility for the management of the force could be irrelevant to the assessment of any decision relating to promotions or transfers within that body: her responsibility being a matter central to the statutory framework.
Counsel for the first defendant also maintain that the plaintiffs themselves raised the issue of the reasonableness of the decision before the Board. As far as the decision in Dranichnikov is concerned, they argue that it should be distinguished, as it dealt with a tribunal impermissibly addressing a question different from that which it was required to consider. In this case, in their submission, the Board was not required to address the relative efficiency of the candidates in the exercise of its preliminary discretion under reg 28(2)(b).
The authorities
Regulation 28(2)(b) does not contain any express limitation on the discretion to recognise an entitlement to appeal in the case of a non-applicant for promotion or transfer to a position. In Swan Hill Corporation, Dixon J described such a discretion as being “unlimited by anything but the scope and object of the instrument creating it” and went on to state that:
This means that only a negative definition of the grounds governing the discretion may be given. It may be possible to say that this or that consideration was extraneous to the power, but it must always be impracticable in such cases to make more than the most general positive statements of the permissible limits within which the discretion is exercisable and is beyond legal control.[28]
[28](1937) 56 CLR 746 at 758.
The discretion under reg 28(2)(b) is of the broadest kind and limited only by “the scope and object” of the Act under which it is made. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd[29] Mason J said :
(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision: …
(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors -- and in this context I use this expression to refer to the factors which the decision-maker is bound to consider -- are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: see Reg v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at pp 49-50), adopting the earlier formulations of Dixon J in Swan Hill Corporation v Bradbury (1937) 56 CLR 746, at pp 757-8), and Water Conservation and Irrigation Commission (NSW) v Browning((1947)74 CLR 492 at p 505). By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.[30]
[29](1986) 162 CLR 24.
[30](1986) 162 CLR 24 at 39-40.
Conclusions – argument that the Board took into account irrelevant considerations
I am not persuaded that the Board took into account any matter properly described as being outside the scope and objects of the Act.
As its title indicates, the Act concerns the regulation of the Police force in Victoria. I agree with counsel for the first defendant that the Chief Commissioner’s role in managing the force is a matter of significance in the statutory scheme in the Act and the regulations. It was not an irrelevant consideration in the context of the scope and purpose of the Regulations.
I also agree with their contention to the effect that it was appropriate for the Board to take into account the circumstances in which the transfer was made, when exercising its discretion to permit an appeal by members otherwise precluded from appealing. I consider those circumstances and the reasonableness of the Acting Chief Commissioner’s decision assessed in the light of those circumstances to be relevant considerations for the Board. (I note in this regard that the Board mentions that the plaintiffs’ submissions to it raised the issue of the reasonableness of the manner in which the decision was made and contained the assertion that the decision was not in the interests of the efficiency of the force[31].)
[31]Police Appeals Board, written reasons for decision dated 12 August 2005, pp 2 and 6.
I am not persuaded to take a contrary view by the plaintiffs’ reliance on the decision of Ashley J (as his Honour then was) in Stewart v Shuey[32] and, in particular, to a passage[33] in which his Honour considered the nature of an administrative review of an administrative decision under the Act. Ashley J held that the determination which ought to be the end point of the review would not be made if the reviewing body either began by assuming the correctness of the decision, the subject of the review, or restricted itself to the issue of the reasonableness of the decision or the question whether the decision was “open”[34]. In my view, Shuey is not on point. The issue here relates to the exercise of a preliminary discretion, not the appeal itself. The Board did not ask itself the wrong question in addressing the reasonableness of the decision to transfer Sgt Patten.
[32][1999] VSC 114.
[33]At [1999] VSC 114 [114].
[34][1999] VSC 114, [115].
Conclusions –argument that the Board failed to consider relevant considerations
I am not persuaded by the plaintiffs’ argument that the Board failed to take relevant considerations into account.
For a start, I agree with the first defendant that the Board appears to have had regard to the reasons why the plaintiffs failed to apply for the position : because it noted that the transfer was made under reg 21, without advertisement. Further, in my opinion, the Board also took account of considerations relating to the proper administration of the Act and the Regulations in relation to the making of transfers under reg 21[35]. It did so in the context of the plaintiffs’ applications for permission to appeal.
[35]See Police Appeals Board reasons dated 12 August 2005 at pp 9-11.
I am also persuaded by counsel for the first defendant’s submission to the effect that this is not a case of an administrative body failing to comply with a statutory requirement to address a particular question, of the type under consideration in Dranichnikov. Although the consideration of the relative efficiency of the candidates for a position is mandatory in an appeal under s 8AA, there is no such requirement in relation to the discretion under reg 28(2). Nor, in my opinion, was the Board obliged to have regard to the issues of the plaintiffs’ respective prospects of success in an appeal or to the related issue as to whether they would suffer injustice if denied the right to appeal.
Overall conclusions
I am not persuaded that reg 28(2)(b) is invalid. It operates to circumscribe the entitlement to appeal under s 8AA of the Act. The Board did not err in so concluding. Nor did the Board err in the exercise of its discretion under reg 28(2)(b).
The plaintiffs’ applications for judicial review of the decision, orders in the nature of mandamus and declaratory relief should be dismissed.
Orders
I will hear the parties as to the form of orders and on the question of costs.
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