Patole v Child & Adolescent Health Service - [2022] WASC 401

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   PATOLE -v- CHILD & ADOLESCENT HEALTH SERVICE [2022] WASC 401
CORAM:   ARCHER J
HEARD:   4 AND 5 APRIL 2022
DELIVERED          :   1 DECEMBER 2022
FILE NO/S:   CIV 1331 of 2021
BETWEEN:   SANJAY PATOLE
Applicant
AND
CHILD & ADOLESCENT HEALTH SERVICE
First Respondent
MARY SHARP
Second Respondent

Catchwords:

Judicial review - Health services provider appointed a candidate other than the applicant to a position - Whether the decision was amenable to judicial review - Whether a failure to comply with Public Sector Management Act principles and standards would invalidate a decision - Apprehension of bias - Provision of referee report by member of the decision-making body - Public or private power - Applicant for employment - Sufficient interest or mere hope

Legislation:

Public Sector Management Act 1994 (WA), s 7, s 8, s 9

Result:

Application dismissed

Category: A

Representation:

Counsel:

Applicant	:	M N Blandford
First Respondent	:	D J Anderson & S R Pack
Second Respondent	:	No appearance

Solicitors:

Applicant	:	Hoe Lawyers
First Respondent	:	State Solicitor's Office
Second Respondent	:	Kemp & Associates

Case(s) referred to in decision(s):

A v Corruption and Crime Commissioner [2013] WASCA 288
ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439
Acquista Investments Pty Ltd v Urban Renewal Authority [2015] SASCFC 91; (2015) 123 SASR 147
Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596
Attorney-General for the State of New South Wales v Quin [1990] HCA 21; (1990) 170 CLR 1
Australian Broadcasting Corporation v Redmore Pty Ltd [1989] HCA 15; (1989) 166 CLR 454
Australian Medical Association (WA) Incorporated v The Minister for Health (2016) WAIRC 00699
Australian National Imams Council Limited v Australian Communications and Media Authority [2022] FCA 913
Australian Unity Property Ltd v City of Busselton [2018] WASCA 38
Bodycorp Repairers Pty Ltd v Holding Redlich [2018] VSCA 17
Brewer v John Francis O'Sullivan, Warden at Kalgoorlie [No 2] [2017] WASC 269
Director General, Department of Justice v Civil Service Association of Western Australia Incorporated [2005] WASCA 244
Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; (2010) 272 ALR 705
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438
Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Kirk v Industrial Court of NSW [2010] HCA 1; (2010) 239 CLR 531
McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504
Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Minister for Immigration v SZMTA [2019] HCA 3; (2019) 264 CLR 421
Mohammadi v Bethune [2018] WASCA 98
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319
Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc [2005] WASCA 109; (2005) 30 WAR 138
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
Sanders v City of South Perth [2019] WASC 226
Tarrant v The Queen [2018] NSWCCA 21
Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41

ARCHER J:

Background
The facts
The application for judicial review
Legal framework

Judicial review

Natural justice
Apprehension of bias
The test
The content of the test in respect of non‑judicial decision‑makers
Prejudgment
The fair-minded lay observer
Where the decision is made by multiple people
Legal unreasonableness

Approach to statutory construction
Regulatory framework

The Public Sector Management Act 1994
The requirements
Statutory 'Principles'
The Employment Standard
Chief executive officers
Complaints, supervision and discipline
Breach of standard claims
The Public Sector Commissioner
Discipline where breach
The Health Services Act 2016
Health service providers
Employees of health service providers
Policy frameworks
Policy Document

The issues
Issue 1 - the Alleged Validity Conditions

Would failing to have regard to the Alleged Validity Conditions be a jurisdictional error?

Cases
Civil Service Association
Acquista
Gnych v Polish Club Ltd
Australian Broadcasting Corporation v Redmore Pty Ltd
The value of these cases
The PSM Act

Did the CAHS fail to have regard to them?

The essential criteria E3 and E6 – ground 1.2
The Equity Principle - ground 1.3

Conclusion on Issue 1

Issue 2 - Would a reasonable apprehension of bias mean that there was a jurisdictional error?

Was the power to make the Decision a public power? (Question 1)
Was it a power that was apt to affect a sufficient interest? (Question 2)

Did applicants have a sufficient interest?
Did Professor Patole have a sufficient interest?
Conclusion on question 2

Did the legislation exclude the obligation to afford natural justice or procedural fairness? (Question 3)
What was the content of the obligation to afford natural justice or procedural fairness? (Question 4)
Conclusion on Issue 2

Issue 3 - Was the Decision made in circumstances giving rise to a reasonable apprehension of bias?

Dr Wood
The selection panel

Other bias allegation
Conclusion on Issue 3

Issue 4 - If the Decision involved jurisdictional error, what, if any, remedy should be granted?

Certiorari
Mandamus
Declaration

Conclusion

Background

The applicant seeks judicial review of a decision made by the first respondent, the Child and Adolescent Health Service (CAHS), to appoint the second respondent (Dr Sharp) to a 5-year position as the Co-Medical Director of Neonatology (Position).

The facts

The relevant facts were not in issue. The parties helpfully filed a statement of agreed facts:[1]
[1] Substituted Statement of Agreed Facts filed 15 March 2022 (Agreed Facts).
The selection process for the 5-year fixed term contract
1.[CAHS] advertised for a 5-year 0.5 full time contract for the position of Medical Co-Director of Neonatology [Position] in early October 2020.
2.There were 6 essential criteria for the [Position] (which are found on page 187 of the applicant's affidavit sworn on 23 April 2021):
(a)Essential criteria E1 required the successful candidate to be eligible for registration by the Medical Board of Australia.
(b)Essential criteria E2 required the successful candidate to be a fellow of the Royal Australasian College of Physicians, or equivalent.
(c)Essential criteria E3 required the successful candidate to be an eminent consultant neonatologist with extensive clinical experience in tertiary neonatology and have demonstrated a commitment to teaching and research.
(d)Essential criteria E4 required the successful candidate to have a proven record of professional clinical leadership.
(e)Essential criteria E5 required the successful candidate to be able to evidence business acumen with a strong track record in certain listed areas.
(f)Essential criteria E6 required the successful candidate to have current knowledge of legislative obligations for equal opportunity, disability services and occupational safety and health, and how these impact on employment and service delivery.
3.The applicant submitted his application for the [Position] on 14 October 2020.
4.There were two candidates for the [Position]: the applicant and [Dr Sharp].
5.The selection panel for the [Position] consisted of the following 4 people:
(a)        Dr Simon Wood;
(b)        Ms Debbie Chiffings;
(c)        Dr David Owen; and
(d)        Dr Tim Jones.
6.No member of the selection panel is a neonatologist.
7.Dr Wood provided a referee report in support of [Dr Sharp's] application for the [Position] prior to the applicant and [Dr Sharp] being interviewed for the [Position].
8.On 3 November 2020 Dr Wood provided a Declaration of Conflict of Interest form stating that [Dr Sharp] reports to his position, and that he had completed and provided the referee [report] prior to reviewing the short-listing of any applications for the [Position].
9.Dr Wood was:
(a)the chair of the selection panel who completed the paperwork confirming the outcome of the selection process; and
(b)the delegated officer who authorised the award of the [Position] to [Dr Sharp].
10.The selection panel considered the two applications, and decided to place both on the shortlist and thereafter interview both.
11.In assessing criteria E3 at the short-listing stage, the selection panel:
(a)assessed Dr Sharp as 'Strong response outlining extensive clinical experience and demonstration of teaching and research'; and
(b)assessed the applicant as 'Extensive clinical experience outlined. Heavy involvement in teaching & research evident.'
12.[Dr Sharp] was interviewed for the [Position] on 9 November 2020.
13.The applicant was interviewed for the [Position] on 12 November 2020.
14.On 3 December 2020 Dr Wood telephoned the applicant and told the applicant that the applicant was not successful in obtaining the [Position]. Later that day Dr Wood confirmed this in an email to the applicant. The successful applicant for the [Position] was [Dr Sharp].
15.The Form R12 Selection Report and Recommendation 9586 in respect of the appointment of [Dr Sharp] to the [Position] was completed by Dr Wood.
16.The declaration in Part (C) of the Form R12 Selection Report and Recommendation 9586 provided in respect of the selection panel:
(a)'we declare that no conflict of interest exists that could reasonably create a perception of bias in the process [namely the selection process]'; and
(b)'at all stages of the process the Recruitment, Selection and Appointment Public Sector Standard [sic the Employment Standard] was adhered to'.
17.The comments in Part (J) of the Form R12 Selection Report and Recommendation 9586 provided in respect of the interviews of each of the applicant and [Dr Sharp] that 'Criteria E1, E2, E3 and E6 not assessed as part of interview as minimum requirements met as per shortlisting.'
Breach of Standard Claim
18.On 9 December 2020 the applicant lodged a Breach of Standard Claim.
19.On 11 February 2021 the Public Sector Commission sent a letter to the applicant's then solicitors stating that the Public Sector Commission would not deal further with the applicant's claim because it related primarily to competitive merit and lacked substance.
Formal award of the [Position] to [Dr Sharp]
20.On 22 March 2021 Dr Wood sent a global email to the staff of [CAHS] advising that [Dr Sharp] was awarded the [Position].
Although not included in the statement of agreed facts, it was agreed that Dr Wood provided the referee report (referred to in paragraph 7 of the agreed facts) by 21 October 2020. The referee report was given to the other members of the selection panel on 16 November 2020.[2]
[2] Email to the Court from the CAHS' legal representatives on 7 April 2022, sent with leave.

The application for judicial review

The applicant seeks a writ of certiorari, a writ of mandamus and a declaration in respect of the decision of the CAHS to award Dr Sharp the Position (Decision).
The grounds for judicial review are as follows:
1.1the decision to award the Position to Dr Sharp was attended with a reasonable apprehension of bias because of prejudgment by the CAHS, which meant that the CAHS fell into jurisdictional error, in that:
(a)The Selection Report and Recommendation in respect of the Position prepared by Dr Simon Wood, provides that essential criteria E1, E2, E3 and E6 were not assessed as part of the interview as minimum requirements were said to be met as per shortlisting.
(b)There were 6 essential criteria identified in the advertisement for the Position, being E1 to E6. Essential criteria E1 and E2 related to the relevant medical qualifications and so were binary. Essential criteria E3 and E6 were qualitative rather than binary.
(c)Essential criteria E3 required that the successful candidate be an eminent consultant neonatologist with extensive clinical experience in tertiary neonatology and have demonstrated a commitment to teaching and research.
(d)Dr Wood was the chairperson of the selection panel and was responsible for completing the paperwork to confirm the selection panel's views, and was the delegated officer for the purpose of approving the recommendation of the selection panel and authorising the appointment of the successful applicant to the Position.
(e)Dr Wood provided a confidential referee report in support of Dr Sharp's application for the position.
(f)The recruitment panel for the Position comprised Dr Wood, Ms Debbie Chiffings, Dr David Owen [and] Dr Tim Jones. No member of the recruitment panel was a neonatologist.
(g)On 9 November 2020 Dr Sharp attended an interview for the Position. On 12 November 2020 Professor Patole attended an interview [f]or the Position. Professor Patole and Dr Sharp were the only applicants for the Position.
(h)On 3 December 2020 Professor Patole was advised that he was unsuccessful in applying for the Position. The successful applicant for the Position was Dr Sharp.
(i)A fair-minded lay observer might reasonably apprehend that the CAHS might not have brought an impartial mind to the decision to award the Position to Dr Sharp because it had already prejudged the award of the position in favour of Dr Sharp, because:
a.Dr Wood was a member of the recruitment panel, its chairman and authorised delegate, and also provided a confidential referee report in support of Dr Sharp's application for the position; and or
b.the recruitment panel did not assess essential criteria E3 as part of the interviews for the Position.
1.2the decision to award the Position to Dr Sharp was legally unreasonable because the CAHS failed to have regard to the mandatory considerations under the Public Sector Management Act 1994 in sections 8(1)(a) and or 8(1)(c) and or 9(a)(i), and or the Merit Principle and or the Transparency Principle under the Employment Standard under section 9(a)(ii), and or advertised essential criteria E3 and E6 for the Position, which meant that the CAHS fell into jurisdictional error in that:
(a)The matters in subparagraphs (a) to (h) of ground 1.1 above are repeated for this ground.
(b)Essential criteria E6 required the successful applicant to have current knowledge of legislative obligations for equal opportunity, disability services and occupational safety and health, and how these impact on employment and service delivery.
(c)By the selection panel failing to assess essential criteria E3 and E6 as a part of the interview, the CAHS failed to have regard to mandatory considerations, namely:
a.the principles of human resource management set out in section 8(1)(a) of the Public Sector Management Act 1994, which required that all selection processes are to be directed towards, and based upon, a proper assessment of merit and equity; and or
b.the principles of human resource management set out in section 8(1)(c) of the Public Sector Management Act 1994, which relevantly required that employees are to be treated fairly and are not to be subjected to arbitrary administrative acts; and or
c.the Merit Principle and or the Transparency Principle under the Employment Standard; and or
d.the advertised essential criteria for the Position.
1.3by Dr Wood being involved in the recruitment process for the Position, the CAHS failed to have regard to a mandatory consideration in the Employment Standard, namely the Equity Principle, which relevantly required that employment decisions are to be impartial and free from bias, in that:
(a)The matters in subparagraphs (a) to (h) of ground 1.1 above are repeated for this ground.
(b)Having provided the confidential referee report in support of Dr Sharp's appointment to the Position, Dr Wood should not have had any involvement in the recruitment process.
In short, the applicant alleges that the CAHS fell into jurisdictional error in two ways.
1.First, he alleges that the Decision was attended by a reasonable apprehension of bias.
2.Second, he alleges the CAHS failed to have regard to various 'mandatory considerations'.
By 'mandatory considerations', the applicant means considerations which would render unlawful a decision made without regard to them. The applicant contends that the following were conditions of that nature:
1.the requirements set out in s 8(1)(a), s 8(1)(c) and s 9(a)(i) of the Public Sector Management Act 1994 (WA) (PSM Act) and in the Merit Principle, the Transparency Principle, and the Equity Principle under the 'Employment Standard'.[3] In these reasons, I will refer to those requirements collectively as the 'Challenged Requirements'; and
2.two of the essential criteria of the Position, E3 and E6.
[3] The Employment Standard was a 'public sector standard' within the meaning of the PSM Act. A 'public sector standard' means a public sector standard referred to in s 21(1) of the PSM Act and established under the commissioner's instructions - see the definitions of 'public sector standard' in s 3 of the PSM Act. By s 9(a)(ii) of the PSM Act, the 'principles of conduct that are to be observed by all public sector bodies and employees' are that they comply with, among other things, public sector standards.
In these reasons, I will refer to both of these (the Challenged Requirements and the two essential criteria E3 and E6) collectively as the 'Alleged Validity Conditions'. In adopting this descriptor, I am using 'validity' in the sense of 'lawful' or jurisdictional. That is, I am using it in the sense that a decision made without regard to such a condition would have been made outside of jurisdiction.

The applicant seeks a writ of certiorari to quash the Decision. The applicant also seeks a writ of mandamus to compel the CAHS to conduct the recruitment process for the Position afresh. Finally, the applicant seeks a declaration that, in awarding the Position to Dr Sharp, the CAHS acted unlawfully by acting as alleged in one or more of the grounds.

Legal framework

Judicial review[4]

[4] This section and the next draws upon and reproduces what I have written in earlier judgments.

In dealing with the application for judicial review, the court's jurisdiction does not extend to engaging in a review of the merits of the decision. The court's jurisdiction is confined to determining whether the decision-maker made a jurisdictional error in making the challenged decision.[5]
[5] The applicant did not allege errors of law on the face of the record.
In Re Refugee Review Tribunal; Ex parte Aala,[6] Hayne J explained:
There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.
[6] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163]. This statement was applied in Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425 [86] ‑ [88].

As was explained by the High Court in Hossain v Minister for Immigration and Border Protection,[7] determining the limits of a decision‑maker's functions and powers is a question of statutory construction.
[7] Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123.
First, it is necessary to identify 'the preconditions which the statute requires to exist for the decision‑maker to embark on the decision‑making process'.[8] It is also necessary to identify the conditions which the statute requires to be observed in order for the decision‑maker to make a decision of that kind. Identifying the preconditions and conditions is a question of statutory construction.[9]
[8] Hossain [23] (Kiefel CJ, Gageler & Keane JJ).
[9] Hossain [23], [27] (Kiefel CJ, Gageler & Keane JJ).

It is ordinarily an implied condition that the decision‑maker proceed by reference to 'correct legal principles, correctly applied'.[10] It is also ordinarily an implied condition that the decision‑maker comply with the standard of legal reasonableness.[11]
[10] Hossain [29] (Kiefel CJ, Gageler & Keane JJ) quoting Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319 [78].
[11] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 [4] (Kiefel CJ), [53] (Gageler J), [89] (Nettle & Gordon JJ), and [134] (Edelman J). See also ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439 [19] (Kiefel CJ, Bell, Gageler & Keane JJ).
Second, if the decision‑maker has failed to comply with a precondition or a condition, it is necessary to determine whether the extent of the non‑compliance resulted in the purported decision 'lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision‑maker purported to make it'.[12] If so, the purported decision will involve 'jurisdictional error'; that is, the purported decision will have been made outside jurisdiction. Determining the extent of non‑compliance which will have this result is also a question of statutory construction.[13]
[12] Hossain [24] (Kiefel CJ, Gageler & Keane JJ).
[13] Hossain [24], [27] (Kiefel CJ, Gageler & Keane JJ).
Ordinarily, statutes conferring decision-making authority are interpreted as incorporating a threshold of materiality in the event of non-compliance.[14] To succeed in such a case, therefore, an applicant needs to prove that an error was material. That is, an applicant needs to prove that there is a realistic possibility that, if the decision-maker had not erred, a different decision could have been made.[15]
[14]Hossain [29] - [30] (Kiefel CJ, Gageler & Keane JJ). See also Minister for Immigration v SZMTA [2019] HCA 3; (2019) 264 CLR 421 [44] and MZAPC v Minister for Immigration and BorderProtection [2021] HCA 17 [31] - [33] (Kiefel CJ, Gageler, Keane & Gleeson JJ).
[15] MZAPC [39] (Kiefel CJ, Gageler, Keane & Gleeson JJ).
This is the position 'ordinarily'. Some conditions themselves incorporate an element of materiality. In such cases, an applicant need not prove that the breach was material. An example relevant to this case is the condition that a decision-maker be free from actual or apprehended bias. Another example is the condition that a decision not be legally unreasonable.[16]

Natural justice

[16] MZAPC [33] (Kiefel CJ, Gageler, Keane & Gleeson JJ).

The jurisdictional error alleged in ground 1.1 is that the Decision was attended by a reasonable apprehension of bias. The principle respecting apprehension of bias is an aspect of wider principles of natural justice.[17]
[17] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 [23] (Kiefel, Bell, Keane & Nettle JJ).
Ordinarily, a decision made in the exercise of a public power will be subject to a requirement to afford natural justice if it is apt to adversely affect a 'sufficient interest' of a person.[18] Such an obligation may be excluded by 'plain words of necessary intendment'.[19]
[18] Brewer v John Francis O'Sullivan, Warden at Kalgoorlie [No 2] [2017] WASC 269 [90]; Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636 [66] and [97] (Gummow, Hayne, Crennan & Bell JJ). See also Australian National Imams Council Limited v Australian Communications and Media Authority [2022] FCA 913 [104] - [106] (Jagot J).
[19] Australian National Imams Council Limited [107] (Jagot J), citing Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, 598 (Mason CJ, Deane & McHugh JJ).
In Saeed v Minister for Immigration and Citizenship,[20] the plurality said:[21]
[20] Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252.
[21] [11] - [15] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ).
In Annetts v McCann it was said that it could now be taken as settled that when a statute confers power to destroy or prejudice a person's rights or interests, principles of natural justice regulate the exercise of that power. Brennan J in Kioa v West explained that all statutes are construed against a background of common law notions of justice and fairness. His Honour said:
'[W]hen the statute does not expressly require that the principles of natural justice be observed, the court construes the statute on the footing that 'the justice of the common law will supply the omission of the legislature'. The true intention of the legislation is thus ascertained.'
The implication of the principles of natural justice in a statute is therefore arrived at by a process of construction. It proceeds upon the assumption that the legislature, being aware of the common law principles, would have intended that they apply to the exercise of a power of the kind referred to in Annetts v McCann.
Observance of the principles of natural justice is a condition attached to such a statutory power and governs its exercise, as Brennan J further explained in Kioa v West. A failure to fulfil that condition means that the exercise of the power is inefficacious. A decision arrived at without fulfilling the condition cannot be said to be authorised by the statute and for that reason is invalid.
In Annetts v McCann Mason CJ, Deane and McHugh JJ said that the principles of natural justice could be excluded only by 'plain words of necessary intendment'. And in The Commissioner of Police v Tanos Dixon CJ and Webb J said that an intention to exclude was not to be assumed or spelled out from 'indirect references, uncertain inferences or equivocal considerations.' Their Honours in Annetts v McCann added that such an intention was not to be inferred from the mere presence in the statute of rights consistent with some natural justice principles.
The presumption that it is highly improbable that Parliament would overthrow fundamental principles or depart from the general system of law, without expressing its intention with irresistible clearness, derives from the principle of legality which, as Gleeson CJ observed in Electrolux Home Products Pty Ltd v Australian Workers' Union, 'governs the relations between Parliament, the executive and the courts.' His Honour said:
'The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law.'

Apprehension of bias[22]

The test

[22] This section reproduces or draws upon what I have written in earlier judgments.

Bias may be caused by an interest in the outcome, affection or enmity, or prejudgment. Whatever its cause, the result that is feared is a deviation from the true course of decision‑making.[23]
[23] Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 [183] (Hayne J).
The governing principle for apprehended bias is whether a fair‑minded lay observer might reasonably apprehend that the decision‑maker might not bring an impartial mind to the decision.[24] The question is largely a factual one, but must be considered in the legal, statutory and factual contexts in which the decision is made.[25] It is an objective test of 'possibility (real and not remote), not probability'.[26] The 'court need not be satisfied that the fair‑minded lay observer "would" have such an apprehension; nor need any apprehension in the mind of the observer itself involve a state of satisfaction on the probabilities'.[27]
[24] Ebner v Official Trustee in Bankruptcy[2000] HCA 63; (2000) 205 CLR 337 [6] (Gleeson CJ, McHugh, Gummow & Hayne JJ). See also Isbester [12], [20] - [21] (Kiefel, Bell, Keane & Nettle JJ).
[25] Isbester [12], [20] - [21] (Kiefel, Bell, Keane & Nettle JJ).
[26] Ebner [7] (Gleeson CJ, McHugh, Gummow & Hayne JJ). See also Isbester [59] (Gageler J).
[27] Tarrant v The Queen [2018] NSWCCA 21 [9].
The proper approach, set out in Ebner v Official Trustee in Bankruptcy,[28] involves two steps (Ebner test):[29]
1.First, the identification of what is said might lead a decision‑maker to decide a case other than on its legal and factual merits.
2.Second, the articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
[28] Ebner [8] (Gleeson CJ, McHugh, Gummow & Hayne JJ).
[29] Isbester [12], [21], [50] (Kiefel, Bell, Keane & Nettle JJ), [59] (Gageler J); Ebner [8] (Gleeson CJ, McHugh, Gummow & Hayne JJ).
As is apparent from the description, the first step is not an identification of those things that will cause the decision‑maker to decide a case other than on its legal and factual merits. It is an identification of the factor(s) that might lead the decision‑maker to decide a case other than on its legal and factual merits. I will refer to these factors as 'Step 1 factors'.
Similarly, the second step is directed to the capability to affect a decision, not actual affectation.[30]
[30] Ebner [7] (Gleeson CJ, McHugh, Gummow & Hayne JJ); McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504 [82] (Basten JA).
Once the two steps have been taken, the reasonableness of the asserted apprehension of bias can be assessed.[31] Gageler J in Isbester v Knox City Council[32] described this assessment by reference to the two steps identified in Ebner. His Honour described it as the assessment of the reasonableness of the apprehension of the deviation identified in the second step being caused by the factor identified in the first step. Gageler J characterised this assessment as the third step. While the plurality did not describe the ultimate assessment as a third step, Gageler J's characterisation of it as a third step, and articulation of the assessment in the terms of the two steps identified in Ebner, is consistent with Ebner and a practical approach to adopt.[33]
[31] Ebner [8] (Gleeson CJ, McHugh, Gummow & Hayne JJ).
[32] Isbester [59].
[33] See also Bodycorp Repairers Pty Ltd v Holding Redlich [2018] VSCA 17 [79] and CNY17 [2019] HCA 50; (2019) 268 CLR 76 [21] (the minority judgment of Kiefel CJ & Gageler J).
Where a number of different matters are relied upon to ground an allegation of apprehended bias, the court should generally consider each separately and then cumulatively.[34]

The content of the test in respect of non‑judicial decision‑makers

[34] Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; (2010) 272 ALR 705 [176] (Basten JA, with whom Allsop P & Macfarlan JA agreed).

Although the test for a reasonable apprehension of bias is the same for administrative and judicial decision‑makers, its content may be different.[35] In Isbester,[36] Kiefel, Bell, Keane and Nettle JJ said (citations omitted):
How the principle respecting apprehension of bias is applied may be said generally to depend upon the nature of the decision and its statutory context, what is involved in making the decision and the identity of the decision-maker. The principle is an aspect of wider principles of natural justice, which have been regarded as having a flexible quality, differing according to the circumstances in which a power is exercised. The hypothetical fair‑minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision.
[35] Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438 [70] (McHugh J); Isbester [22] (and [50]) (Kiefel, Bell, Keane & Nettle JJ). See also Jia Legeng [102] (Gleeson CJ & Gummow J, with whom Hayne J agreed at [176]), [181] ‑ [183], [187] (Hayne J, with whose observations on this subject Gleeson CJ & Gummow J agreed at [99] ‑ [100]); McGovern [2] ‑ [4], [7] ‑ [8], [23] (Spigelman CJ), [236] (Campbell JA agreed with Spigelman CJ that the trial judge stated the wrong test), [71], [75] ‑ [77], [108] ‑ [115] (Basten JA); Sanders v City of South Perth [2019] WASC 226 [195] ‑ [198], [209].
[36] Isbester [23].
The plurality said that the two cases that had been referred to in the Courts below, Minister for Immigration and Multicultural Affairs v Jia Legeng and McGovern v Ku-ring-gai Council, furnished examples of how those factors assume relevance to the question of what a fair‑minded observer may reasonably expect as to the level, or standard, of impartiality which should be brought to decision‑making by certain non‑judicial decision‑makers. The plurality said, however, that this did not mean that those factors would be of particular relevance where an incompatibility of roles, or a conflict of interest, was alleged, rather than prejudgment.[37]
[37] Isbester [24].
Where prejudgment is alleged, there will be a difference in the content of the test depending on whether the decision‑maker is a judicial or administrative decision‑maker. The standard of impartiality required of non‑judicial decision‑makers is less than for judicial decision‑makers.[38]
[38] McGovern [11], [13], [32], [37] (Spigelman CJ), [77], [80] (Basten JA); Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc [2005] WASCA 109; (2005) 30 WAR 138 [79] (McLure JA, as her Honour then was, with whom Wheeler & Pullin JJA agreed). On the other hand, judges are presumed more able than others to disregard irrelevant and prejudicial material.
In Isbester, the plurality said:[39]
It was considered by Spigelman CJ in McGovern [(2008) 72 NSWLR 504 at 508 [13]] to be of particular significance that the relevant statutory power was vested in a democratically elected council exercising a discretionary power expressed in broad terms to which multiple considerations applied and in respect of which there might be a range of permissible opinion. At a practical level, it is also to be expected that a person in the position of a councillor will form opinions before voting and may express them. As was observed [Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 539 [102]] in Jia Legeng, it would be unrealistic to expect a political decision‑maker to modify his or her behaviour in order to conform to higher standards inappropriate to his or her office. It could not be suggested that a councillor who has expressed views to constituents with respect to a development application should disqualify himself or herself. It was in this context that Basten JA said [in McGovern] that a fair‑minded observer would expect little more of a councillor than an absence of personal interest and a willingness to give genuine and appropriate consideration to the application.
[39] Isbester [27].
The plurality said, in effect, that the standard of neutrality referred to in McGovern, that of merely 'genuine and appropriate consideration', was relevant to an allegation of prejudgment by a non‑judicial decision‑maker, but not to an allegation of a conflict of interest.[40] Where a conflict of interest is alleged, the question is not whether the decision‑maker could be expected to give genuine consideration to the application. Rather, it is whether it might reasonably be apprehended that a person in the decision‑maker's position would have an interest in the decision which could affect his or her proper decision‑making.[41]

Prejudgment

[40] Isbester [24], [32] - [33]. See also [46] ‑ [50].

[41] Isbester [32] - [33].

Prejudgment in this context means that the decision‑maker is not 'open to persuasion'.[42] As shown by the extract above, this is not to say that the members of the CAHS' selection panel were not entitled to have formed a view before voting or were not entitled to express those views. Indeed, it was open to a panel member to form an opinion early in the process, provided the panel member was willing to consider new materials and arguments. It was open to a panel member to maintain a previously reached opinion even after new materials and arguments were presented, provided the panel member gave genuine consideration to the new materials and arguments. What is in issue is whether a panel member was incapable of being persuaded by contrary representations or additional material. In other words, that, whatever facts or arguments were presented, the panel member would maintain his or her opinion without giving the matter fresh consideration.[43]
[42] Jia Legeng [71], [105] (Gleeson CJ & Gummow J); McGovern [15] ‑ [23] (Spigelman CJ).
[43] McGovern [15] ‑ [23] (Spigelman CJ). See also Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc [83] (McLure JA, as her Honour then was).
Applying the test of apprehended bias to an allegation of prejudgment, the question is whether a fair‑minded lay observer might reasonably apprehend that the decision‑maker might not be open to persuasion.[44] Given the nature of the decision‑maker here (a selection panel), the question is not whether it might be feared that the panel member had formed a view, even a strong view. It is whether a fair‑minded lay observer might reasonably apprehend that the panel member might not be open to persuasion in that he or she might not be willing to give genuine and appropriate consideration to new materials and submissions.
[44] McGovern [23] (Spigelman CJ).
In Re MacTiernan; Ex parte Coogee Action Coalition Inc,[45] McLure JA, with whom Wheeler and Pullin JJA agreed, said, in the context of a planning decision made by the Western Australian Planning Commission:
In the case of prejudgment, the question is whether there is a reasonable apprehension that the Commission is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. An alternative formulation is whether a reasonable and informed member of the public would conclude there was a possibility that the Commission was not open to persuasion, bearing in mind it could properly form a preliminary view (even a strong preliminary view) as to the planning merits of the proposed development.
[45] Re MacTiernan; Ex parte Coogee Action Coalition Inc [83] (McLure JA, as her Honour then was).
I would not read these remarks as setting a higher hurdle than the 'double‑might' test confirmed in Isbester. Having regard to McLure JA's reasons as a whole, her Honour was not saying that the test to be applied was different for judges as distinct from policy bodies such as planning authorities. Rather, the variable was the applicable level or standard of impartiality.[46] The hurdle remains one of possibility, not probability. Of course, it remains necessary to articulate how the Step 1 factor(s) may give rise to a reasonable apprehension that the decision‑maker might not decide the case on the merits.

The fair-minded lay observer

[46] Re MacTiernan; Ex parte Coogee Action Coalition Inc [67] ‑ [71], [79] (McLure JA, as her Honour then was). See also Sanders [195] ‑ [198], [209].

In applying the test, the hypothetical fair‑minded lay observer is to be taken to be 'aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision'.[47] In my view, the hypothetical observer's knowledge would include the internal documents of the panel,[48] including the referee reports.
[47] Isbester [23] (Kiefel, Bell, Keane & Nettle JJ) and [57] (Gageler J). See also McGovern [78] ‑ [83] (Basten JA).
[48] See McGovern [81] (Basten JA). See also Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 73 in which Deane J held that the observer would be attributed with knowledge of all of the material objective facts ascertained by the (appellate) court.

The fair‑minded lay observer is reasonable. He or she is 'neither complacent nor unduly sensitive or suspicious'.[49]

Where the decision is made by multiple people

[49] Bodycorp Repairers v Holding Redlich [84], quoting Kirby J in Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [53].

If, as here, it is alleged that the actuality or the appearance of disqualifying bias resulted from the conduct or circumstances of a person in a multi-member decision‑making body, step 2 of the Ebner test may be seen to divide 'into two elements: articulation of how the identified factor might affect that person individually, and articulation of how that effect on that person individually might in turn affect the ultimate resolution of the question within the overall process of decision-making'.[50] In evaluating the second element, the part played by that other person in relation to the decision will obviously be important.[51]
[50] Isbester [60] (Gageler J).
[51] See Hot Holdings v Creasy [22] (Gleeson CJ); Isbester [60] (Gageler J).
How an affected individual might affect the ultimate decision is to be 'determined by reference to the objective possibilities which arise from the externally manifested facts'.[52]

Legal unreasonableness

[52] Isbester [61] (Gageler J).

Ground 1.2 of the Application alleges a jurisdictional error of legal unreasonableness.
In Minister for Immigration and Border Protection v Eden,[53] the Full Court of the Federal Court summarised the relevant principles (citations omitted):
First, the concept of legal unreasonableness concerns the lawful exercise of power. Legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision‑making.
Second, the Court's task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory. It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision's reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker. Nor does it involve the Court remaking the decision according to its own view of reasonableness.
Third, there are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an 'outcome focused' conclusion without any specific jurisdictional error being identified.
…
Fourth, in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an area of 'decisional freedom' within which a decision‑maker has a genuinely free discretion. Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness. Such a decision falls within the range of possible lawful outcomes of the exercise of the power.
Fifth, in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute. The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision‑making. The evaluation is also likely to be fact dependant and to require careful attention to the evidence.
Sixth, where reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes.
Seventh, and perhaps most importantly, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary. That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. … The expressions that have been utilised include decisions which are 'plainly unjust', 'arbitrary', 'capricious', 'irrational', 'lacking in evident or intelligible justification', and 'obviously disproportionate'. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a 'checklist' exercise. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.
[53] Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 [58] ‑ [60], [62] ‑ [65].
It has been observed that 'the requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision‑maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision maker'.[54]

Approach to statutory construction

[54] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 [30] (French CJ), cited in A v Corruption and Crime Commissioner [2013] WASCA 288 [123] (Martin CJ & Murphy JA).

In construing legislation, primacy must be given to the legislative text. The meaning of the legislation must emerge from the statutory text, understood in its context and having regard to the statutory purpose being pursued.[55]

Regulatory framework

[55] Australian Unity Property Ltd v City of Busselton [2018] WASCA 38 [77] ‑ [85]. See also Mohammadi v Bethune [2018] WASCA 98 [31]. See also [32] ‑ [36].

It will be recalled that the Challenged Requirements were the requirements set out in s 8(1)(a), s 8(1)(c) and s 9(a)(i) of the PSM Act and in the Merit Principle, the Transparency Principle, and the Equity Principle under the Employment Standard.

The Public Sector Management Act 1994

The requirements

Statutory 'Principles'

The PSM Act relevantly provides:
7.Public administration and management principles
The principles of public administration and management to be observed in and in relation to the Public Sector are that -
(a)the Public Sector is to be administered in a manner which emphasises the importance of service to the community; and
(b) the Public Sector is to be so structured and organised as to achieve and maintain operational responsiveness and flexibility, thus enabling it to adapt quickly and effectively to changes in government policies and priorities; and
(c) public sector bodies are to be so structured and administered as to enable decisions to be made, and action taken, without excessive formality and with a minimum of delay; and
(d) administrative responsibilities are to be clearly defined and authority is to be delegated sufficiently to ensure that those to whom responsibilities are assigned have adequate authority to deal expeditiously with questions that arise in the course of discharging those responsibilities; and
(e)public sector bodies should have as their goal a continued improvement in the efficiency and effectiveness of their performance and should be administered with that goal always in view; and
(f)resources are to be deployed so as to ensure their most efficient and effective use; and
(g) proper standards of financial management and accounting are to be maintained at all times; and
(h) proper standards are to be maintained at all times in the creation, management, maintenance and retention of records.
8.Human resource management principles
(1)The principles of human resource management that are to be observed in and in relation to the Public Sector are that -
(a)all selection processes are to be directed towards, and based on, a proper assessment of merit and equity; and
(b)no power with regard to human resource management is to be exercised on the basis of nepotism or patronage; and
(c)employees are to be treated fairly and consistently and are not to be subjected to arbitrary or capricious administrative acts; and
(d)there is to be no unlawful discrimination against employees or persons seeking employment in the Public Sector on a ground referred to in the Equal Opportunity Act 1984 or any other ground; and
(e)employees are to be provided with safe and healthy working conditions in accordance with the Work Health and Safety Act 2020.
(2)In matters relating to -
(a)the selection, appointment, transfer, secondment, classification, remuneration, redeployment, redundancy or termination of employment of an individual employee; or
(b) the classification of a particular office, post or position,
in its department or organisation, an employing authority is not subject to any direction given, whether under any written law or otherwise, by the Minister responsible for the department or organisation, but shall, subject to this Act, act independently.
(3)For the purposes of this Act a proper assessment of merit in a selection process must be carried out in accordance with the relevant Commissioner's instructions and does not always require a competitive assessment of merit.
9.Principles of conduct by public sector bodies etc.
The principles of conduct that are to be observed by all public sector bodies and employees are that they -
(a) are to comply with the provisions of -
(i)this Act and any other Act governing their conduct; and
(ii)the Commissioner's instructions, public sector standards and codes of ethics; and
(iii)any code of conduct applicable to the public sector body or employee concerned;
and
(b)are to act with integrity in the performance of official duties and are to be scrupulous in the use of official information, equipment and facilities; and
(c)are to exercise proper courtesy, consideration and sensitivity in their dealings with members of the public and employees.

The Employment Standard

Included in the applicant's Challenged Requirements were the Merit Principle, the Transparency Principle, and the Equity Principle under the Employment Standard 'under' s 9(a)(ii) of the PSM Act. It was common ground that the Employment Standard was a 'public sector standard' within the meaning of the PSM Act.[56] By s 9(a)(ii) of the PSM Act, the 'principles of conduct that are to be observed by all public sector bodies and employees' include that they comply with, among other things, public sector standards.
[56] A 'public sector standard' means a public sector standard referred to in s 21(1) of the PSM Act and established under the commissioner's instructions - see the definitions of 'public sector standard' in s 3 of the PSM Act.
The Employment Standard relevantly states:
The Employment Standard
The Employment Standard applies when filling a vacancy (by way of recruitment, selection, appointment, secondment, transfer and temporary deployment (acting)) in the Western Australian Public Sector.
The Employment Standard requires four principles to be complied with when filling a vacancy:
Merit principle
The Western Australia public sector makes employment decisions based on merit. Merit usually involves the establishment of a competitive field.
In applying the merit principle a proper assessment must take into account:
a.the extent to which the person has the skills, knowledge and abilities relevant to the work related requirements and outcomes sought by the public sector body; and
b.if relevant, the way in which the person carried out any previous employment or occupational duties.
Equity principle
Employment decisions are to be impartial and free from bias, nepotism and patronage.
For secondment the employee consents.
For transfer employment conditions are comparable.
Interest principle (applies to secondments, transfers and acting)
Decisions about an employee's secondment, transfer or acting take account of the employee's interests and the work related requirements of the relevant public sector body.
Transparency principle
Decisions are to be transparent and capable of review.

Chief executive officers

Section 29 of the PSM Act sets out the functions of a chief executive officer or chief employee of a department or organisation. The functions include 'to manage and direct employees employed in that department or organisation and, without limiting the generality of this paragraph, to be responsible for the recruitment, selection, appointment, deployment and termination of employment of those employees'.[57]
[57] Section 29(1)(g) of the PSM Act.
Section 30 of the PSM Act provides that, in performing the functions of a chief executive officer or chief employee of a department or organisation, that chief executive officer or chief employee shall:
(a)endeavour to attain performance objectives agreed with the responsible authority of the department or organisation; and
(b)comply with the Commissioner's instructions, public sector standards, codes of ethics and any relevant code of conduct; and
(c)comply with the principles set out in sections 7, 8 and 9; and
(d)comply with any binding award, order or industrial agreement under the Industrial Relations Act 1979 or employer‑employee agreement under Part VID of the Industrial Relations Act 1979.

Complaints, supervision and discipline

Breach of standard claims

The PSM Act and the Public Sector Management (Breaches of Public Sector Standards) Regulations 2005 (WA) (Regulations) provide a process under which a person claiming to be affected by an alleged breach of a public sector standard may get relief. Subject to certain conditions, such a person may make a claim for relief to the public sector body (Breach of Standard Claim). One such condition is that the person was adversely affected by the breach.[58]
[58] See reg 6(1)(b) of the Regulations.
Under the Regulations, a 'public sector standard' does not include a public sector standard established in respect of substandard performance or disciplinary matters, but will otherwise bear the same meaning as under the PSM Act.[59] Therefore, a claim for relief can be made in relation to an alleged breach of the Employment Standard.
[59] See s 44 of the Interpretation Act 1984 (WA) and the definitions of 'public sector standard' in s 3 of the PSM Act, and reg 3 of the Regulations.
If a Breach of Standard Claim is not resolved by the public sector body, the Public Sector Commissioner may become involved.

The Public Sector Commissioner

Part 3A of the PSM Act establishes the office of the Public Sector Commissioner.
Section 21 of the PSM Act states that '[t]he functions of the Commissioner are, having regard to the principles set out in sections 7, 8 and 9' and then lists various functions.
The functions include establishing, and monitoring compliance with, public sector standards[60] (which include the Employment Standard). The Commissioner also has a function of monitoring compliance with the principles set out in s 8(1)(a), (b) and (c) and s 9.[61]
[60] Section 21(1)(a) of the PSM Act.
[61] Section 21(e) of the PSM Act.
The Commissioner also has powers to direct that relief be given to a person making a Breach of Standard Claim, if the claim was not resolved by the public sector body.[62]
[62] Sections 97 - 98 of the PSM Act and reg 20 of the Regulations.
Where a decision is made in relation to the appointment of a person to fill a vacancy in circumstances where a public sector employment standard applies, and a Breach of Standard Claim is lodged in respect of that decision, the employing authority cannot make the appointment unless certain conditions are met. The conditions include where the claim is settled or withdrawn or where the Commissioner gives permission or where, after the claim has been resolved, the Commissioner determines, in effect, that the appointment can be made.[63]
[63] See regs 5, 8 and 21 of the Regulations.
In addition, the Commissioner may issue instructions.[64]
[64] Section 22A of the PSM Act.
The Commissioner also has reporting functions. These functions are not limited to reporting on compliance with public sector standards, and extend to reporting on compliance with the principles set out in s 8(1)(a), (b) and (c) and s 9 of the PSM Act. The Commissioner may report to the Minister responsible for a public sector body on the compliance or non‑compliance by that public sector body with the principles set out in s 8(1)(a), (b) and (c) and s 9 and public sector standards.[65] The Commissioner must also report annually on, among other things, the compliance or non‑compliance by public sector bodies and employees, either generally or in particular, with the principles set out in s 8(1)(a), (b) and (c) and public sector standards.[66]

Discipline where breach

[65] Section 22C of the PSM Act.

[66] Section 22D of the PSM Act.

Division 3 of part 5 of the PSM Act deals with discipline of public sector employees. A person who breaches a provision of the PSM Act or any public sector standard or code of ethics can be subjected to disciplinary proceedings.[67]

The Health Services Act 2016

Health service providers

[67] By s 80(b) of the PSM Act, an employee will commit a 'breach of discipline' if he or she contravenes any provision of the Act applicable to them or any public sector standard or code of ethics.

The Health Services Act gives the Minister the power to establish a 'health service provider' for a declared 'health service area'.[68] Under the Act, a 'health service provider' is a body corporate with perpetual succession.[69] It is 'an agent of the State and has the status, immunities and privileges of the State'.[70]
[68] See s 32(1) of the Health Services Act.
[69] Section 32(2) of the Health Services Act.
[70] Section 33 of the Health Services Act.
A health service provider's main function is to provide[71]
(a)health services stated in the service agreements for the health service provider; and
(b)teaching, training and research that supports the provision of health services as agreed with the Department CEO; and
(c)any other services agreed with the Department CEO.
[71] Section 34(1) of the Health Services Act.
Other functions include 'to comply with the policy frameworks and Department CEO directions that apply or relate to the health service provider'.[72]

Employees of health service providers

[72] Section 34(2) of the Health Services Act.

Section 104 of the Health Services Act provides:
104.Application of PSM Act
(1)Unless otherwise specified in this Act or by the regulations, the PSM Act applies to administration and management, human resource management and conduct of health service providers and employees under this Act.
(2)For the purposes of subsection (1) the PSM Act applies as if -
(a)a reference in that Act to an employee were a reference to an employee as defined in section 6[73];
(b)a reference in that Act to an employing authority were a reference to an employing authority as defined in section 103.
(3)The PSM Act Part 3[74] does not apply to employees.
[73] Section 6 defines 'employee' as meaning a person employed in a health service provider, including the chief executive and health executives.
[74] Part 3 contains s 34 to s 67.

Section 140 of the Health Services Act provides:[75]
140. Employees of health service provider
(1)A health service provider may employ and manage employees for and on behalf of the State.
(2)Employees employed under subsection (1) are in addition to employees employed as health executives in the Health Executive Service.
(3)Subject to any relevant award, order or industrial agreement under the Industrial Relations Act 1979, the terms and conditions of employment of employees employed under subsection (1) are the terms and conditions the health service provider determines.

Policy frameworks

[75] By s 139 of the Health Services Act, s 140 does not apply to employees employed in the 'Health Executive Service', but the Position was not in that Service - see ts 96.

The Health Services Act relevantly provides:
26.Department CEO may issue policy frameworks
(1)In this section -
provision, of health services, includes the following -
(a)matters that support the provision of health services, including -
(i)the engagement of contracted health professionals; and
(ii)private practice arrangements for health professionals;
(b)the provision of health services by contracted health entities.
(2)The Department CEO may issue policy frameworks to ensure consistent approaches to the following -
(a)service coordination and integration, and efficiency and effectiveness, in the provision of health services -
(i)between health service providers; and
(ii)between health service providers, the Department and other service providers;
(b)the making of service agreements, other than Commission service agreements made under section 45;
(c)the provision of health services;
(d)the performance and exercise of functions by health service providers;
(e)financial management of health service providers;
(f)employment, and termination of employment, in health service providers;
(g)the movement of employees between health service providers or between a health service provider and another employer -
(i)by transfer for temporary or permanent employment; or
(ii)on secondment or temporary redeployment; or
(iii)for training;
(h)the management and administration of the Health Executive Service;
(i)the engagement of health professionals by health service providers and the conditions of engagement;
(j)investigations, inspections and audits under section 175;
(k)the management of information, including the way in which information is collected, used and disclosed;
(l)any other matter in connection with the functions of the Department CEO under this Act in respect of which the Department CEO considers it necessary or desirable to issue a policy framework.
(3)A policy framework may apply to any of the following -
(a)the health service providers specified in the policy framework;
(b)all health service providers;
(c)a type of public health service facility specified in the policy framework;
(d)a type of public health service specified in the policy framework;
(e)a type of staff member of a health service provider.
(4)The Department CEO may revoke or amend a policy framework.
(5)The Department CEO must ensure that each policy framework is publicly available.
27.Policy framework is binding
(1)A policy framework is binding on each health service provider to which it applies or relates.
(2)A policy framework that applies to a staff member of a health service provider is binding on the staff member and the health service provider.

Policy Document

The applicant tendered into evidence a document titled 'Recruitment, Selection and Appointment Policy'.[76] The document said that it was 'a mandatory requirement' for health service providers under s 26(2)(f) and (g) of the Health Services Act and s 29 of the PSM Act. It provided, among other things, that employment decisions, powers and functions must be made and exercised in accordance with the Employment Standard.
[76] Exhibit E.
The applicant submitted that the policy document was, like s 104 of the Health Services Act, confirmation that the power of a health service provider to employ was subject to the Employment Standard.[77]
[77] ts 165 - 166.
The CAHS noted that the CEO's power to create policy frameworks was not limited to employment matters.[78]
[78] ts 170.

The issues

The parties filed an agreed statement of issues, listing 17 issues.[79]
[79] Substituted Agreed Statement of Issues filed 15 March 2022.
One of those issues was whether the Decision to appoint Dr Sharp to the Position is amenable to judicial review. If it is not, the application must be dismissed. The CAHS contends that the Decision was not amenable to judicial review as it was not an exercise of public power. Further, the CAHS contends that, in any event, the applicant did not have a sufficient interest in the Decision as he had only a 'hope' that he would be appointed.
Although the parties described this issue as a preliminary issue, the CAHS acknowledged that it blends into the other issues. That is, the CAHS recognised, in effect, that the resolution of the other issues will influence this issue.[80] In my view, the issue is more easily addressed within the context of the other issues.
[80] See ts 118.
I consider that the primary issues can be described as follows:
1.Did the CAHS fall into jurisdictional error by failing to have regard to the Alleged Validity Conditions? This issue emerges from grounds 1.2 and 1.3 of the application. It raises the following questions:
1.1Would failing to have regard to the Alleged Validity Conditions be a jurisdictional error?
1.2If so, did the CAHS fail to have regard to them?
2.If the Decision was made in circumstances giving rise to a reasonable apprehension of bias, would this have been a jurisdictional error? This issue emerges from ground 1.1 of the application. It raises the following questions:
2.1Was the power to make the Decision a public power?
2.2If so, was it a power that was apt to affect a 'sufficient interest'?
2.3If so, did the legislation exclude the obligation to afford natural justice or procedural fairness?
2.4If not, what was the content of the obligation to afford natural justice or procedural fairness? Did it include an obligation that decisions be free from a reasonable apprehension of bias?
3.If the answer to Issue 2 is yes, was the Decision made in circumstances giving rise to a reasonable apprehension of bias?
4.If the answer to Issue 1 or 3 is yes (meaning the Decision involved jurisdictional error), what, if any, remedy should be granted?

Issue 1 - the Alleged Validity Conditions

The first issue is whether the CAHS fell into jurisdictional error by failing to have regard to the Alleged Validity Conditions.

Would failing to have regard to the Alleged Validity Conditions be a jurisdictional error?

The first of the two questions that arise in relation to Issue 1 is whether failing to have regard to the Alleged Validity Conditions would be a jurisdictional error.
Where a decision-maker falls into jurisdictional error, the decision is sometimes referred to as 'unlawful' or 'void' or 'invalid'. In this context, each word means simply that the decision was made outside of the jurisdiction of the decision-maker. In the following discussion, I will use the word 'invalid' and cognate terms to describe a decision made outside of jurisdiction.
Determining whether having regard to the Alleged Validity Conditions is a condition of validity is a question of statutory construction.[81] The question is whether Parliament intended to invalidate any decision made without regard to them. Whether Parliament had that intention is to be 'ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition'.[82]

Cases

Civil Service Association

[81] See Hossain [23], [27] (Kiefel CJ, Gageler & Keane JJ).

[82] Project Blue Sky Inc v Australian Broadcasting Authority[1998] HCA 28; (1998) 194 CLR 355 [91] (McHugh, Gummow, Kirby & Hayne JJ).

The parties drew my attention to one case in which s 7 to 9 of the PSM Act had been considered, namely Director General, Department of Justice v Civil Service Association of Western Australia Incorporated ('Civil Service Association').[83]
[83] Director General, Department of Justice v Civil Service Association of Western Australia Incorporated [2005] WASCA 244 (Civil Service Association).
In Civil Service Association, the Western Australian Industrial Appeal Court was considering an appeal from findings that had been made by the Western Australian Industrial Relations Commission (WAIRC). The WAIRC had found that an arbitrator had had the jurisdiction to consider decisions made by the appellant in a Department of Justice hiring process. It found, among other things, that the appellant had breached various provisions of the PSM Act. The appeal to the Western Australian Industrial Appeal Court raised, among other things, the question of whether the principles in s 7, s 8 and s 9 of the PSM Act were 'mandatory considerations'.
In a joint judgment, Wheeler and Le Miere JJ made observations as to the legislative intention in relation to s 7, s 8 and s 9. Their Honours noted that there were some indications that they were intended to have some binding force and effect. Their Honours gave as an example s 30, which provides that the Chief Executive Officer of a department or organisation 'shall comply' with the principles set out in those sections.[84] Their Honours were, however, critical of the drafting of s 7, s 8 and s 9. They said:[85]
Legislation is, of course, generally understood in the community as providing binding and enforceable rules of conduct, usually with some form of sanction or relief available where there has been a failure to comply. A reading of ss 7 - 9 suggests that those instructing Parliamentary Counsel had something else in mind.
[84] Civil Service Association [38].
[85] Civil Service Association [39].
Their Honours observed that several aspects of the provisions were 'startling'.[86]
[86] Civil Service Association [39].
Their Honours said that, whatever force s 7, s 8 and s 9 might otherwise have, they were of considerable importance in relation to the functions of the Commissioner for Public Sector Standards[87] (now called the Public Sector Commissioner). Their Honours noted that the functions of the Commissioner were set out in s 21.
[87] Civil Service Association [40].
Ultimately, their Honours did not reach a concluded view as to the force of the sections. They said, however:[88]
Whatever else ss 7 - 9 may require, they at least appear to prescribe considerations to which the Commissioner must have regard when establishing public sector standards.
[88] Civil Service Association [42].
One of the issues in Civil Service Association was whether a decision could be unlawful or void under s 64 or s 65 of the PSM Act. Those sections deal with the appointment and transfer of 'public service officers'. Those sections are in part 3 of the PSM Act, and are therefore not applicable to employees of health service providers.[89] Nevertheless, their Honours' observations are of some interest here.
[89] Section 104(3) of the HSA.
Their Honours said:[90]
It is not easy to see how a decision could be unlawful or void pursuant to either s 64 or s 65 of the PSM Act. Each of those sections confers power, in broad terms, to appoint or to transfer officers as the case may be. Section 64 does refer to appointment 'in accordance with approved procedures', so that it may be arguable that a failure to comply with approved procedures would render the decision either unlawful, or 'void'. Further, it may well be that read in its statutory context, sections such as s 64 and s 65 permit appointment and transfer only in accordance with, for example, either the principles set out in ss 7 - 9, or at least in conformity with standards, codes of conduct and codes of ethics which are prescribed relating to those matters.
It does not seem to us that it is necessary to give detailed consideration to questions of this kind, however.
[90] Civil Service Association [58] - [59].
Although Wheeler and Le Miere JJ considered it unnecessary to decide the force of s 7, s 8 and s 9 of the PSM Act, the overall effect of their Honours' comments suggest that they doubted that a breach of those requirements would mean that the decision was invalid.
Hasluck J agreed generally with Wheeler and Le Miere JJ, but wrote a separate judgment. His Honour concluded that a breach of the requirements in s 7, s 8 or s 9 would not result in invalidity.
His Honour noted that the regulations[91] allowed claims to be lodged in respect of alleged breaches of public sector standards.[92] He said that, in the circumstances of the case:[93]
… where an examination and review process has been constituted as a special regime to resolve complaints made by disappointed applicants, it is difficult to accept that the consequence of non-compliance with a step in the recruitment process should result in an invalidity of the kind previously attached to provisions of the kind characterised as mandatory.
If the jurisdiction of the Public Service Arbitrator is excluded [by s 80E(7) of the Industrial Relations Act 1979 (WA)] by the presence of a special regime of examination and review, as in the circumstances of the present case, irregularities concerning the decision complained of may ultimately lead to a reversal or modification of the decision pursuant to the process of examination and review. But that is not the same as the decision being treated as void or voidable.
… the Full Bench erred in law in finding that s 8 and s 9 of the Public Sector Management Act and related requirements were mandatory in nature … The context and the language of the provisions suggests that the principles being referred to are in the nature of guidelines.

Acquista

[91] At that time, the operative regulations were the Public Sector Management (Examination and Review Procedures) Regulations 2001. These regulations were repealed as of 1 September 2005 and the current regulations became operative the same day. His Honour's comments as to the regulations then operative are equally applicable to the current regulations.

[92] Civil Service Association [88].

[93] Civil Service Association [142] - [145].

In Acquista Investments Pty Ltd v Urban Renewal Authority,[94] the appellants had sought judicial review of a decision by a public corporation (Authority) to enter into a contract. Under the contract, the Authority granted options to purchase some land to the third respondent. The Authority was given the power to enter into such contracts by the Housing and Urban Development (Administrative Arrangements) Act 1995 (SA) (HUD Act).
[94] Acquista Investments Pty Ltd v Urban Renewal Authority [2015] SASCFC 91; (2015) 123 SASR 147. Special leave was granted in relation to this decision, but the appeal did not proceed. From the transcript of the special leave application ([2015] HCATrans 295), it appears that the High Court placed considerable weight on the fact that Acquista involved the disposition of Crown land allegedly contrary to the statutory regime that governed its disposition.
The appellants asserted that the decision was unlawful because the Authority had failed to comply with s 11 of the Public Corporations Act 1993 (SA). Section 11 provided:
11General performance principles
(1)A public corporation must perform its commercial operations in accordance with prudent commercial principles and use its best endeavours to achieve a level of profit consistent with its functions.
(2)A public corporation must perform its non‑commercial operations (if any) in an efficient and effective manner consistent with the requirements of its charter.
(3)Where a public corporation's charter identifies any operations of the corporation as non‑commercial operations, the operations are to be regarded as such for the purposes of this section.
The majority, Vanstone and Lovell JJ,[95] found that the decision was not amenable to judicial review. Their Honours concluded that:[96]
[Section] 11 is essentially aimed at the internal operations of statutory corporations and is not such as to restrict the powers of the Authority. Accordingly, we do not consider that, even if there were non-compliance with s 11 (as to which we express no opinion) it could lead to a finding that the contract was unlawful and liable to be set aside or declared unenforceable.
[95] Debelle AJ dissented.
[96] Acquista [11].
Their Honours noted that a distinction had been drawn between 'rules going to internal governance as against rules designed to regulate dealings with the "outside world"'.[97]
[97] Acquista [45].
The majority also discussed two cases in which the High Court had considered whether 'must not' or 'shall not' meant that a decision made in breach of such a requirement would be unenforceable: Gnych v Polish Club Ltd[98] and Australian Broadcasting Corporation v Redmore Pty Ltd.[99] I will discuss those two cases later.
[98] Gnych v Polish Club Ltd [2015] HCA 23; (2015) 255 CLR 414.
[99] Australian Broadcasting Corporation v Redmore Pty Ltd [1989] HCA 15; (1989) 166 CLR 454.

After discussing those two High Court cases, the majority in Acquista returned to s 11 of the Public Corporations Act. Their Honours said:[100]
We consider that there is nothing in the Public Corporations Act to indicate that s 11 is intended to confine the powers of public corporations in general or the Authority in particular. The Act does not provide that the validity of any individual decision is dependent on compliance with s 11. The thrust of s 11 is towards the conduct of the operations of public corporations rather than to the legality of individual decisions taken by a corporation. There is the obvious point that if s 11 is intended to confine the content of powers given to the Authority in the HUD Act, it is odd that the restriction appears in a very general provision in the Public Corporations Act.
… The expressions used in the section appear as guiding principles or, as Mr Roder SC for the third respondent put it, 'exhortations'. There is difficulty and uncertainty in applying such standards to any particular decision. …The nature of the requirements of s 11 are in contrast to those in the Australian Broadcasting Corporation Act and the Liquor Act discussed in Redmore and Gnych, compliance with which was a question of fact and readily ascertainable.
We would add that it does not follow from our construction that non-compliance with s 11 will have no consequences. The Public Corporations Act contains provisions which, where applicable, deal with supervision and contain sanctions for misconduct. The HUD Act provides for the overseeing of the performance of the Authority by means of a scheme of auditing, reporting and supervision: sections 27 to 30.
For these reasons we find that the asserted non-compliance with s 11 does not have any impact on the lawfulness of the decision of the Cabinet to enter the contract, or the contract itself.

Gnych v Polish Club Ltd

[100] Acquista [52].

The first of the High Court cases cited by the majority in Acquista was Gnych v Polish Club Ltd. In Gnych, a licensee had agreed to lease part of its licensed premises to the appellants without first obtaining the approval of the Independent Liquor and Gaming Authority, contrary to s 92(1)(d) of the Liquor Act 2007 (NSW). That subsection provided that a licensee 'must not' lease or sublease such premises without that approval. The High Court unanimously found that the lease was not unenforceable.

Issue 2 - Would a reasonable apprehension of bias mean that there was a jurisdictional error?

The second issue is whether, if the Decision was made in circumstances giving rise to a reasonable apprehension of bias, would this have been a jurisdictional error?
As noted earlier, this raises a number of questions:
1.Was the power to make the Decision a public power?
2.If so, was it a power that was apt to affect a 'sufficient interest'?
3.If so, did the legislation exclude the obligation to afford natural justice or procedural fairness?
4.If not, what was the content of the obligation to afford natural justice or procedural fairness?
The applicant's submissions were not entirely clear and were at times expressions of conclusions without reasoning. Doing the best that I can, the applicant's submissions appeared to be as follows.
In relation to the first question, the applicant submitted that the power to make the Decision was a public power because the power to employ was contained in s 140 of the Health Services Act.[126] Further, he submitted that s 140 is not a bare power to employ as the exercise of the power is expressly subject to the PSM Act by s 104 of the Health Services Act.He submitted that therefore the CAHS was not simply exercising a private right to employ.[127]
[126] Applicant's Submissions [2] - [3].
[127] Applicant's Submissions in Reply filed 31 March 2022 (Applicant's Reply Submissions) [3].
In relation to the second question, the applicant submitted that there was a 'special circumstance' that meant procedural fairness had to be given. The applicant submitted that the special circumstance was 'the need for the first respondent to avoid a reasonable apprehension of basis [sic], … in the context of public sector employment, in which procedural fairness needs to be given'.[128] The applicant submitted:[129]
It is the failure of the first respondent to conduct the selection process according to law as alleged by the applicant in his second substituted grounds of review, that gives rise to a sufficient interest protected by judicial review because of jurisdictional error.
[128] Applicant's Reply Submissions [6].
[129] Applicant's Reply Submissions [8].
In relation to the third question, the applicant submitted that the legislation did not exclude the obligation to afford procedural fairness because if it did 'it would "create islands of power immune from supervision and restraint'''.[130]
[130] Applicant's Submissions [4].
As will be seen, I consider that the answer to question 1 is that it was not a public power. It follows that I do not accept that the CAHS fell into jurisdictional error if it failed to afford procedural fairness. It is therefore strictly unnecessary to deal with the other questions. However, I will do so briefly. Further, for ease of comprehension, I will do so in the order of the questions listed.

Was the power to make the Decision a public power? (Question 1)

In King v Ombudsman,[131] Doyle J, with whom Parker J and Tilmouth AJ agreed, said (citations omitted):[132]
In considering the amenability to review of an exercise of power, it is relevant to have regard to its source, nature and effect.
… the fact that a power takes a statutory form, whilst a relevant consideration, does not necessarily mean that it is impliedly constrained by the administrative law principles that commonly condition the exercise of statutory powers. It is relevant to have regard to the nature of the power, and not simply its statutory form, when considering whether any jurisdictional pre-requisites to its exercise should be implied. For example, where the power is, or is closely analogous to, a power possessed in common with natural persons (such as the power to contract, to undertake non-coercive investigations or to hold and transfer property and information), this may be an indicator that it is not subject to implied statutory constraints.
[131] King v Ombudsman [2020] SASCFC 90; (2020) 137 SASR 18.
[132] King [92] - [93].
The CAHS asserts that the Decision is not amenable to judicial review because it was not made in the exercise of a public power. It submits that 'the right to contract is a quintessentially private right enjoyed by all persons which in other contexts has been held not to be susceptible to judicial review despite its statutory expression in general terms'.[133]
[133] First Respondent's Outline of Submissions filed 28 March 2022 (CAHS' Submissions) [3] - [10].
A decision by the State as to with whom it enters into a contract is not a decision that is ordinarily amenable to judicial review.[134] Further, s 140 of the Health Services Act simply allocates to the State's agents (health service providers) the State's existing ability or right to employ (and manage employees). It does not give a new power. If the State's decision would not be amenable to judicial review, neither would the same decision by an agent be amenable.
[134] See Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability (7^th ed, 2022) [4.150] and, cited in that paragraph of the textbook, Acquista [89] - [103] (in particular [94]). See also AMAWA, [132] - [153] (Smith AP (as her Honour then was), Kenner ASC & Emmanuel C agreeing), and King [92] - [93]. See also (albeit in the context of the Judicial Review Act 1991 (Qld) and the requirement that the decision be made 'under an enactment') Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 [81] - [82], [92] and [96] (Gummow, Callinan & Heydon JJ).
The applicant does not dispute this. However, the applicant contends that any decision made to employ a person in the public service which is subject to the Challenged Requirements is amenable to judicial review.
The applicant contends that, because of the Challenged Requirements, the power cannot be described as a bare power to employ. He submits, in effect, that the imposition of the Challenged Requirements means that employment decisions are not an exercise of a private power to employ, but are an exercise of statutory power and, for this reason, are amenable to judicial review.[135]
[135] ts 103 - 105.
If this submission is correct, the vast majority of employment and management[136] decisions in the public service would be amenable to judicial review. The Challenged Requirements apply to most public servant positions.[137]
[136] Section 140 of the Health Services Act provides that a health service provider may 'employ and manage employees' for and on behalf of the State. The applicant did not seek to contend that these were two separate powers, being a power to employ and a power to manage.
[137] See the definition of 'Public Sector', 'public sector body', 'agency', 'department', 'non SES organisation' and 'SES organisation' in s 3 of the PSM Act. See also s 34, s 35 and schedules 1, 2 and 3 of the PSM Act. The requirements also apply to other bodies by virtue of other Acts – the Health Services Act is one such example.
The parties were unable to identify any decision in which this issue had arisen.[138]
[138] I drew the parties' attention to the decision of Rowland J in Re Piper; Ex parte Maloney (1996) 63 IR 473, but that case dealt with a statutory power to suspend without pay.
I do not accept the applicant's submission.
In dealing with Issue 1, I explained why I consider that a breach of the Challenged Requirements would not render a decision invalid, but may lead to other consequences.[139] In my view, simply because the Challenged Requirements set out a process to be followed did not transform the nature of the power into a public power. It remained, at its core, a power to employ and manage employees.

Was it a power that was apt to affect a sufficient interest? (Question 2)

[139] See the discussion under the heading 'Issue 1 - the Alleged Validity Conditions'.

If, contrary to my conclusion, the power was a public power, the second question is whether an exercise of the power was apt to affect a 'sufficient interest', so as to attract an obligation of natural justice or procedural fairness.[140] In this context, the second question is whether applicants for the Position, or Professor Patole particularly, had an interest sufficient to attract an obligation of natural justice or procedural fairness.

Did applicants have a sufficient interest?

[140] As to which, see Australian National Imams Council Limited [104] - [106] (Jagot J). While her Honour's comments were in the context of a judicial review application under the Administrative Decisions (Judicial Review) Act 1977 (Cth), they apply equally to an application to the Supreme Court for judicial review on general law grounds.

The CAHS submitted that the 'starting point' is that a decision to employ does not attract an obligation to afford procedural fairness and that the statutory scheme does not displace that presumption.[141] The CAHS clarified during the hearing that, by this, the CAHS was not submitting that decisions to employ people in the public service did not need to be made fairly. The CAHS simply submitted that a failure to act fairly would not invalidate the Decision. That is, while it would be a breach of the regulatory framework, and could attract sanctions and relief, it would not mean that the Decision involved jurisdictional error.[142]
[141] See Respondent's Submissions [13] and ts 129 - 131.
[142] See ts 129.
The applicant did not appear to dispute that this was the 'starting point'. However, the applicant submitted that the general rule did not apply here, because the power to employ in this case had been qualified by making it subject to the requirements of the PSM Act.[143]
[143] See, for example, the Applicant's Reply Submissions [3] and ts 165.
In Australian Medical Association (WA) Incorporated v The Minister for Health (AMAWA),[144] the AMA appealed against a decision of the Public Service Arbitrator in relation to a decision by the Minister for Health (the employer) to not renew a doctor's contract of employment at Royal Perth Hospital. The central issue in the appeal was whether the doctor was entitled to procedural fairness during the process of the making of the decision.
[144] Australian Medical Association (WA) Incorporated v The Minister for Health (2016) WAIRC 00699 (AMAWA). See also Civil Service Association [117], citing Attorney-General for the State of New South Wales v Quin [1990] HCA 21; (1990) 170 CLR 1.
Smith AP,[145] with whom Kenner ASC and Emmanuel C agreed, said (emphasis added):
160. In Quin, Dawson J explained [58] - [59]:
It is one thing to expect to continue in a position; it is another to expect to be appointed to it. That distinction was drawn in F.A.I. Insurances Ltd. v. Winneke ((1982) 151 C.L.R. 342, at p. 377), between the initial application for a licence and an application for its renewal. No doubt even with an application for appointment to a position there may be special circumstances which make it only fair to accord some sort of a hearing. Cole v. Cunningham ((1983) 81 F.L.R. 158; 49 A.L.R.123) is an example. There an applicant for re-appointment to the public service had resigned under threat of prosecution and had unsuccessfully attempted to withdraw his resignation. However, in the absence of special circumstances, the situation is as described by Lord Denning M.R. in Breen v. Amalgamated Engineering Union ([1971] 2 Q.B. 175, at p. 191):
'If a man seeks a privilege to which he has no particular claim - such as an appointment to some post or other - then he can be turned away without a word. He need not be heard. No explanation need be given ...'
…
161. Reflected in this passage is the fundamental concept of employment law that an applicant for a new appointment is not entitled to procedural fairness.
[145] As her Honour then was.
At the time of the Minister's decision in AMAWA, the Health Services Act had not been enacted. During the hearing of Professor Patole's Judicial Review Application, the respondent said that the public sector management framework did not apply to the Minister's decision.[146] The respondent did not explain why that would be so, however I will assume that it is. On that assumption, the extracted passage from AMAWA nevertheless shows that interests of the type typically held by applicants for new appointments are, ordinarily, insufficient to attract procedural fairness.
[146] ts 126.
The applicant described the position in terms of a 'starting point' and a presumption. I would prefer to express the position as being that, ordinarily, applicants for a position do not possess an interest in the exercise of a power to employ sufficient to give rise to an entitlement to procedural fairness.
The issue is whether the legislative framework alters that position.
The identified legislative provisions do not elevate the interest of persons in being appointed beyond a mere hope of being appointed. They continue to have no more than a mere hope.
On the other hand, the requirements could, of themselves, be said to have given rise to an interest in the CAHS complying with the legislative requirements. I consider this to be arguable even though, if an applicant considers that the legislative requirements have been breached, he or she is entitled to seek review under the processes established by the regulatory framework. This contention is supported, to an extent, by the discussion in the following section.
However, in view of my conclusion on the first question, it is unnecessary to resolve this issue.

Did Professor Patole have a sufficient interest?

If applicants for the Position did not have a sufficient interest, did this applicant, Professor Patole, have a sufficient interest?
It has been recognised that a particular applicant for employment may have an interest sufficient to entitle him or her to procedural fairness. This was noted in AMAWA:[147]
The employer, however, concedes that the rules of natural justice can be attracted where an employer makes a representation sufficient to displace the ordinary rule referred to in Quin or confer upon an applicant for employment an entitlement to procedural fairness based upon a legitimate expectation that he would be heard: Jones. In support of this contention, the employer also referred to the factual circumstances in Cole v Cunningham (1983) 81 FLR 158. In that matter Cunningham had applied for reappointment to the Public Service which was refused on the ground of prior misconduct. The Full Court of the Federal Court held that there were special facts or circumstances giving rise to a legitimate or reasonable expectation by Cunningham that an application for reappointment would not be refused on the ground of prior misconduct unless he was given an opportunity to answer the allegations made against him. The special circumstances were that Cunningham had been induced to resign on the basis that he would leave his employment with a clear record and criminal proceedings would not be instituted in relation to the alleged misconduct. Some weeks after resigning Cunningham sought to revoke his resignation which would have allowed him a hearing in relation to the alleged misconduct which his resignation had denied him. In those circumstances, the Full Court found that these were special facts that Cunningham had a legitimate expectation that the question of his future employment in the Public Service would not be decided on the basis that his past record in the department was blemished. If contrary to that expectation, his past record was to be treated by the department as blemished, the law required that he be afforded a proper opportunity to be heard.
[147] AMAWA [123].
AMAWA involved an employer refusing to renew an employment contract, rather than an application for a new position. The Full Bench rejected a submission that the applicant's status as an existing employee constituted a special circumstance.
In this case, Professor Patole said that the passage quoted from Quin 'provides that even with an application for appointment to a position there may be special circumstances which require procedural fairness to be given to the applicant and cites Cole'.[148] Professor Patole then submitted[149]
… that the need for the first respondent to avoid a reasonable apprehension of basis, [sic] is also a special circumstance, in the context of public sector employment, in which procedural fairness needs to be given.
[148] Applicant's Reply Submissions [5].
[149] Applicant's Reply Submissions [6].
Self-evidently, this submission did not advance any special circumstances that elevated the applicant's interests above all those who might apply for the Position.
In the absence of any suggested circumstance that could have had this effect, it is difficult to conclude that Professor Patole had a greater interest than other applicants.
Professor Patole did not have a right to be interviewed for the Position or a right to be appointed to it. The Decision did not involve stripping him of an existing right such as, for example, terminating his existing employment. At most, he had a right to apply for the Position and a right to pursue the statutory complaint mechanisms available to him, including by seeking review by the Commissioner. These rights were no different to any other applicant for the Position. Accordingly, I do not consider that there is anything about Professor Patole's circumstances that elevated his interests above others applying for the Position.

Conclusion on question 2

I am not satisfied that Professor Patole had a greater interest than other applicants. I do consider, however, that it is arguable that applicants generally had an interest in the exercise of the power to employ sufficient to attract an obligation to afford procedural fairness. However, in view of my conclusion on question 1, it is unnecessary to resolve this issue.

Did the legislation exclude the obligation to afford natural justice or procedural fairness? (Question 3)

The third question is whether the legislation excluded the obligation to afford natural justice or procedural fairness. It did not do so expressly. The issue is whether it does by necessary implication.[150]
[150] As to which, see Australian National Imams Council [106(1)] and [107] (Jagot J). While her Honour's comments were in the context of a judicial review application under the Administrative Decisions (Judicial Review) Act 1977 (Cth), they apply equally to an application to the Supreme Court for judicial review on general law grounds.
The applicant submitted[151] that the legislation did not exclude the obligation to afford procedural fairness because if it did 'it would "create islands of power immune from supervision and restraint"', citing Kirk v Industrial Court of NSW.[152]
[151] Applicant's Submissions [4].
[152] Kirk v Industrial Court of NSW [2010] HCA 1; (2010) 239 CLR 531. The applicant cited paragraph 100 of the reasons, but the quoted statement appears in paragraph 99.
This is a circular argument. Parliament is entitled to legislate so as to exclude a right to procedural fairness. The question is whether it has done so in this case. This requires a close analysis of the legislative framework which regulates the selection processes.

The legislative framework requires compliance with a number of public sector standards and principles that would be subsumed within an obligation to afford procedural fairness. These were those aspects of the Employment Standard that required impartial, non-biased decisions based on merit (the Merit Principle and the Equity Principle) and the principle in s 8(1)(a) of the PSM Act that, similarly, required selection processes to be based on merit and equity.
When dealing with Issue 1, I referred to the powers of the Public Sector Commissioner. Included in those powers is that, following a finding that a public sector standard has been breached, the Commissioner 'may' direct that a specified person is not to be appointed.[153] The permissive term 'may' implies that the Commissioner has discretion as to whether to make such a direction.[154] It follows that an appointment made in breach of the requirements to make impartial, non-biased decisions based on merit may stand at the discretion of the Commissioner, notwithstanding that it may attract consequences for the decision-maker or relief for the applicant. On its face, this is inconsistent with a parliamentary intention that an appointment made in breach of the requirements to make impartial, non-biased decisions based on merit would be invalid.
[153] Regulations 20 and 21(3) of the Regulations.
[154] Sections 3 and s 56(1) of the Interpretation Act. The intent and object of the PSM Act is not inconsistent with that section applying.

I further noted in my earlier discussion the Commissioner's power to report on the compliance or non‑compliance by a public sector body of the principles set out in s 8(1)(a), (b) and (c) and s 9 and public sector standards.
These matters suggest that Parliament intended that a failure to afford procedural fairness in making an appointment decision would not be outside of jurisdiction. They do not, however, compel that conclusion.[155]
[155] See Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability (7^th ed, 2022) ch 8, sections 8.8 and 8.9.
In my view, the intention is not necessarily implied, particularly in relation to the component relating to bias.
Accordingly, if (contrary to my view) the exercise of the appointment power was amenable to judicial review, I would not construe the PSM Act as excluding the obligation to afford natural justice or procedural fairness as a condition of validity.

What was the content of the obligation to afford natural justice or procedural fairness? (Question 4)

The fourth question is what did the obligation to afford natural justice or procedural fairness require.
The CAHS' submissions can be summarised as follows:[156]
1.The content of an obligation to afford procedural fairness is coloured by the context and circumstances.
2.The decision in this case was a decision by an employer as to which of two employees was more suited to a particular role.
3.It is not improper or unusual for a manager involved in a decision of that kind to have professional experience with one or more of the candidates, nor to take that experience into account in making the decision, nor to share that experience with other members of a selection panel.
4.If a requirement to avoid any apprehension of bias for prejudgment due to previous experience with employees was taken to apply to all decisions to 'employ or manage employees' under s 140 of the Health Services Act, it would disable a health service provider's ability to practically achieve anything with its workforce.
[156] CAHS' Submissions [15] - [17] and [19].
I accept the first three propositions. However, what occurred here was much more than a panel member taking into account and sharing his or her experience with the other panel members. Dr Wood authored the referee report.
The fourth proposition attacks a straw man. The applicant does not contend that a panel member cannot have experience of an applicant for a position. He contends that a panel member cannot author a glowing referee report.
Question 4 is premised on assuming that there was an obligation to afford natural justice or procedural fairness (such that a failure to do so would mean that the Decision was made outside of jurisdiction). If there was such an obligation, I consider that it would have included the requirement that the Decision be made in circumstances that did not give rise to a reasonable apprehension of bias by prejudgment. Whether the circumstances in this case did give rise to such an apprehension is Issue 3.

Conclusion on Issue 2

Nevertheless, due to my answer to question 1, I conclude that, even if the Decision was made in circumstances giving rise to a reasonable apprehension of bias, this would not have been a jurisdictional error.

Issue 3 - Was the Decision made in circumstances giving rise to a reasonable apprehension of bias?

If my conclusion on Issue 2 is wrong, Issue 3 is whether the Decision was made in circumstances giving rise to a reasonable apprehension of bias.
In my view, the answer is 'yes'.

Dr Wood

Dr Wood was one of the members of the selection panel. He provided a referee report[157] in support of Dr Sharp's application for the Position prior to the applicant and Dr Sharp being interviewed for the Position.
[157] Annexure JR1 to the Riegler Affidavit.
The referee report was provided on a standard form. It asked the referee to rate the candidate on various matters as 'above average', 'average' or 'below average'. Dr Wood assessed Dr Sharp as 'above average' on each matter.
The form allowed for comments to be added. Dr Wood wrote:[158]
Mary has been acting Medical Co-Director of Neonatal Services at CAHS for the past 6 months. I have been her direct line manager for a proportion of this time, but prior to this, as EDMS CAHS, I have had professional oversight of her practice in this role and her role as a neonatal consultant. Mary fulfils all of the essential criteria for the position. I can conform [sic] that Mary is an eminent consultant neonatologist with extensive clinical experience in tertiary neonatology with a demonstrated commitment to teaching and research. Mary has shown evidence of strong strategic leadership, ability to achieve results, ability to build and maintain constructive relationships, and excellent management of the neonatal clinical services across CAHS, including services at KEMH, PCH, and NETSWA. Examples of her performance in all of these domains include the leadership she has provided in engaging with, and managing the relationship with neonatal services in other HSPs (notably SMHS). She has also engaged both with the CAHS Executive committee and the CAHS Board Safety and Quality Committee on safety and quality within her directorate and has been able to communicate effectively to allay the concerns of the executive and board. Mary has been a strong advocate of her service to the leadership of CAHS and has been able to articulate a clear vision for the service. In my opinion, Mary appears to have the confidence of the CAHS Neonatal Services as a leader and maintains an excellent working relationship with CAHS clinicians, the Nursing Co-Director Neonatal Services, other members of the CAHS senior leadership, the CAHS executive and board.
I would support Mary Sharp as a highly suitable applicant for the role…
[158] Riegler Affidavit annexure JR4 at pages 5 - 6.
The first step of the Ebner test requires the identification of what is said might lead a decision‑maker to decide a case other than on its legal and factual merits. In this case, it is Dr Wood's referee's report - both its provision and the fact that it represented his views.
The second step is the articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
The CAHS submits that Dr Wood did not say that Dr Sharp was the most suitable candidate, and he did not say that she should be selected for the Position.[159] This is certainly true. Nevertheless, I consider that Dr Wood's view that Dr Sharp was above average in every respect and would be a highly suitable candidate might have caused the fair‑minded lay observer to fear that Dr Wood might not be open to persuasion, such that he might not be willing to give genuine and appropriate consideration to the merits of another candidate.
[159] CAHS' Submissions [23] and ts 137.
The third step is the reasonableness of an apprehension that Dr Wood might not be open to persuasion, in that he might not be willing to give genuine and appropriate consideration to the merits of another candidate, because of the views that he held.
Had Dr Wood not provided a referee report, I do not consider that a reasonable apprehension of bias would have arisen. In my view, had he not provided the report, there would be no reasonable basis to fear he might not be willing to give genuine and appropriate consideration to the merits of another candidate. Simply by being a panel member, holding views about Dr Sharp's suitability, and expressing those views to the other members of the panel would not provide a reasonable basis for such a fear. Indeed, I consider that a fair-minded lay observer would recognise the benefit of having people with knowledge of one or more of the candidates, and would not fear prejudgment on that basis alone. However, the position is less clear-cut where, as here, a referee report has been provided by a member of the selection panel.
The CAHS submitted that the fear would only reasonably arise if a referee report could be characterised as advocacy rather than simply confirming a person meets the criteria.[160] There is merit in this. However, Dr Wood's referee report went well beyond simply confirming Dr Sharp met the criteria. On each measure, he said she was above average.
[160] ts 134.
In my view, having regard to the content of the referee report, I consider that a fair‑minded lay observer might have reasonably apprehended that Dr Wood might not be open to persuasion, in that he might not be willing to give genuine and appropriate consideration to the merits of another candidate.
I emphasise that this is not to say that Dr Wood was actually biased and was not willing to give genuine and appropriate consideration to the merits of another candidate. There is no evidence whatsoever of this. It is simply that, on the facts, a lay observer might fear this.

The selection panel

Dr Wood was one of four members on the selection panel. Revisiting the second Ebner step in this context, I have already set out how Dr Wood's referee's report might be feared to have affected him. The question here is, how might that have affected the ultimate decision?
Dr Wood was the chairman. As the executive director of medical services, he was a very senior officer within the CAHS.[161] Two of the other panel members were part of the CAHS and were junior to him. The fourth was not part of the CAHS.[162]
[161] See exhibit D.
[162] ts 115.
In view of those facts, I consider that there is a logical connection between Dr Wood's provision of the referee report and a fear that the ultimate decision might not be made on the merits. Objective possibilities include that another panel member may have felt inhibited in expressing, or acting upon, views that were inconsistent with Dr Wood's report, particular those two who were junior to him.
Further, I consider that those same facts would make the fear a reasonable one.
For these reasons, I consider that the Decision was made in circumstances which gave rise to a reasonable apprehension of bias.
For completeness, I note that the applicant also relied on the fact that Dr Wood was the 'delegated officer' who completed the Selection Report and Recommendation form.[163] The only evidence as to any significance of this role came from Mr Riegler. He was asked '[a]re they simply giving it a rubber stamp or do they sometimes not approve it?' He replied '[i]f they see something wrong, then they might not approve it.[164] In my view, this is of no weight in the assessment.

Other bias allegation

[163] See annexure JR4 to the Riegler Affidavit.

[164] ts 113.

Further, by ground 1.1(i)(b), the applicant submitted that the selection panel's decision to not assess essential criterion E3 as part of the interviews for the Position meant that the selection panel's decision to award the Position to the second respondent was attended with a reasonable apprehension of bias because of prejudgment.[165]
[165] Applicant's Submissions [39] - [42].
In relation to the first Ebner step, the applicant's written submissions asserted that 'the applicant set out matters relating to criteria [sic] E3 in his application for the Position'. In relation to the second Ebner step, the applicant submitted '[t]he feared deviation is that by the selection panel treating criteria [sic] E3 as binary, this cannot have worked favourably for the applicant given his strength on criteria [sic] E3 as appears from his application, therefore eliminating the effect of E3 on the selection process.'[166]
[166] Applicant's Submissions [41].
These submissions appeared to misunderstand the content of the Ebner steps.
In oral submissions, the applicant contended that what might have led the panel to decide the case other than on its legal and factual merits was 'the fact that [Dr Sharp] couldn't compete with Professor Patole in terms of eminence'.[167] This too appeared to reflect a misunderstanding. The applicant said he was unable to further explain why there would be a logical connection between that and the feared deviation from the course of deciding the case on its merits.[168] In addition, the applicant conceded that there was no evidence that the material before the panel showed that the applicant was better.[169]
[167] ts 107.
[168] ts 108.
[169] ts 107.
Further, it appears that the panel assessed E3 qualitatively in the short-listing phase, making comments on this criterion for each candidate. They concluded, in the short-listing phase, that each exceeded the E3 criterion, and gave them each a 'B' to reflect that.[170] The applicant's complaint appears to be to the effect that the panel should have considered E3 again at the interview stage, because, while both exceeded the criterion, the applicant asserts that he exceeded it more.
[170] See annexure JR3 to the Riegler Affidavit.
I put to one side that there is no evidence that the material before the panel showed that the applicant should have been rated higher than Dr Sharp on E3. Even if there was such material, there is no basis upon which it could be concluded that a fair‑minded lay observer might reasonably apprehend that the panel might not bring an impartial mind to the decision because the panel did not again assess E3 qualitatively in the interview stage.
For these reasons, I would dismiss ground 1.1(i)(b).

Conclusion on Issue 3

If (contary to my conclusion) the Decision would be invalid if it was made in circumstances which gave rise to a reasonable apprehension of bias, I would find that it was invalid. The fact that the author of the very favourable referee report was a member of the panel gave rise to a reasonable apprehension of bias.

Issue 4 - If the Decision involved jurisdictional error, what, if any, remedy should be granted?

If I was wrong to conclude that the Decision did not involve jurisdictional error, the question of relief would arise. The applicant sought a writ of certiorari, a writ of mandamus, and a declaration. I would have granted certiorari, but refused to issue a writ of mandamus or make a declaration. Briefly expressed, my reasons are as follows.

Certiorari

The applicant exercised his right to make a Breach of Standard Claim. At that time, he did not know that Dr Wood had provided a referee report for Dr Sharp.[171] The Public Sector Commission advised that it would not deal further with the applicant's claim because 'it related primarily to competitive merit and lacked substance'.[172]
[171] This was not disputed by the CAHS - see ts 100.
[172] See Agreed Facts [19].
The CAHS offered three reasons why certiori should not be issued, even if I found jurisdictional error.
First, the CAHS submitted 'it would adversely affect the interests of the Second Respondent, an innocent party, by depriving her of the remaining years of her appointment to the Position'.[173]
[173] CAHS' Submissions [35.1].
I appreciate that quashing the decision would impact Dr Sharp. However, Dr Sharp is aware of the application and has not sought to make submissions as to significant prejudice. I further note that quashing the Decision would not necessarily mean Dr Sharp would be unemployed. Prior to her appointment, Dr Sharp was already an employee of the CAHS. The CAHS did not suggest that Dr Sharp would cease to be employed if the Decision was quashed. Further, if the CAHS choose to repeat the process, Dr Sharp would be entitled to reapply.
Second, the CAHS submitted that 'certiorari would have the effect of removing a senior medical practitioner from her important managerial role in the midst of the current COVID-19 outbreak (of which the Court can take judicial notice)'.[174]
[174] CAHS' Submissions [35.2].
I do not accept that this would be a reason not to quash the Decision. The CAHS has been on notice of this application for a long time and has had the opportunity to plan for the possibility that the Decision would be quashed.
Third, the CAHS submitted that 'the Applicant's interests, and the broader interest relied on by the Applicant regarding the rule of law and the proper management of employment processes within the public health system, would be sufficiently served by issuing a declaration'.[175]
[175] CAHS' Submissions [35.3].
I do not accept that a declaration would sufficiently serve the applicant's interests if the Decision was made in circumstances giving rise to an apprehension of bias such that it was invalid.

Mandamus

The applicant sought a writ of mandamus to compel the CAHS to conduct the recruitment process for the Position afresh. If the Decision were quashed, the CAHS would not be under any duty to conduct another recruitment process for the Position. For example, circumstances may be such that the CAHS no longer wishes to fill the Position.
For this reason, even if, contrary to my conclusions, the Decision would be invalid if it was made in circumstances which gave rise to a reasonable apprehension of bias, I would not issue a writ of mandamus.

Declaration

The applicant sought a declaration that, in awarding the Position to Dr Sharp, the CAHS acted unlawfully in that the CAHS acted as alleged in one or more of the grounds.
As I would have granted certiorari if the Decision would have been invalid if it was made in circumstances which gave rise to a reasonable apprehension of bias, it would have been unnecessary and pointless to also make a declaration.
Given that, I would not have made a declaration.

Conclusion

For these reasons, I dismiss the application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AG
Associate to the Honourable Justice Archer
29 NOVEMBER 2022