Re Murrell; Ex parte Official Trustee in Bankruptcy

[1984] FCA 314

Re: MICHAEL JOHN BELLERBY
And: RONALD ALWYN GREY
No. W.A.G77 of 1984
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIAN DISTRICT REGISTRY
GENERAL DIVISION
Sheppard J.

CATCHWORDS

Administrative law - judicial review - Australian Federal Police - member seeking transfer from Protective Service Component to General Policing Component - member's claim to preference because of prior service in Commonwealth Police Force - condition of entitlement to preference that member be, in the opinion of the Commissioner, suitable for appointment - whether Commissioner may delegate that function - whether Commissioner or his delegate bound by rules of natural justice - whether improper exercise of power - review of facts of case.

Australian Federal Police Act 1979, ss. 6, 7, 13, 14, 26 and 73

HEARING

SYDNEY

#DATE 8:10:1984

ORDER

The application be dismissed.

The applicant pay the respondent's costs of the application.

JUDGE1

This is an application for the judicial review of a decision of the respondent who is the Commissioner of the Australian Federal Police. The application says that the decision, review of which is sought, is a decision dated 20 June 1984, that the application by the applicant to transfer from the Protective Service Component of the Australian Federal Police to the General Police Component be refused.

Before I come to the facts of the matter I first refer to relevant sections of the Australian Federal Police Act 1979 which is the Act in question. The Act came into force on 19 October 1979. Section 6 of the Act provided that there was thereby established the Australian Federal Police which was to be constituted by a Commissioner, a Deputy Commissioner or Deputy Commissioners and commissioned and non-commissioned police officers and commissioned and non-commissioned protective service officers. The members of the Police Force who were commissioned or non-commissioned police officers were, by s. 7, to comprise a component of the Force performing such of the functions thereof as were determined, by general orders under s. 14, to be general police functions. The commissioned and non-commissioned protective service officers, referred to in s. 6, were by s. 7, to comprise a component of the Force performing such of the functions thereof as were determined by general orders to be police protective service functions. The two components of the Police Force thus established are known as the General Policing or General Duties Component and the Protective Service Component.

The division of the Force into these components has its origin in the history of the establishment of the Force which was made up of the Australian Capital Territory Police Force and the Commonwealth Police Force. It was thought that some members of the Commonwealth Police Force were not experienced in the carrying out of general police duties and should, therefore, be employed, at least in the first instance, in a component which would have duties more akin to those to which they were used to performing.

By s. 13 of the Act, the Commissioner has, subject to the direction of the Minister, the general administration of and control of the operations of the Force. Section 14 provides that in the exercise of his powers under s. 13, the Commissioner may issue general orders and general instructions. The general orders may determine the respective functions of the components of the Force referred to in s. 7. By s. 15 the Commissioner may, either generally or as otherwise provided by the instrument of delegation, by writing signed by him, delegate to a member any of his powers under the Act other than the power of delegation. A power so delegated, when exercised by the delegate, shall, for the purposes of the Act, be deemed to have been exercised by the Commissioner.

Section 26 provides for appointment, promotion and transfer from one component to another. Para. 26(1) (c) provides as follows:-

"26. (1) Subject to this Act, the Commissioner may, by instrument in writing -

. . . . . . . . . . . . . . . . . . . .< . . . .

(c) transfer a person who is a non-commissioned officer in a component to a position within an equivalent rank in the other component, being a rank that the person is, in accordance with the regulations, competent and qualified to hold;

. . . . . . . . . . . . . . . . . . . .< . . . .

Part VII of the Act is headed, "Transitional". Its principal purpose was to provide protection in relation to terms and conditions of employment of those members of the new Force who had come from either the Australian Capital Territory Police Force or the Commonwealth Police Force. Section 73 of the Act which is in Part VII is as follows:-

"73. (1) Where an appointment, other than an appointment in pursuance of section 26A or 72, is to be made to a rank in the Australian Federal Police, an applicant who -

(a) is a member;

(b) was -

(i) a member of an existing Police Force immediately before the commencement date; or

(ii) an officer of the Australian Public Service to whom section 26A applied;

(c) is qualified to hold that rank; and

(d) is, in the opinion of the Commissioner, suitable for the appointment,

is entitled to be appointed in preference to any other applicant.

(2) Sub-section (1) does not apply in relation to an appointment made after the expiration of 5 years, or such longer period as is prescribed, after the commencing date."

Section 26A is not relevant to any question to be decided.

It is to be observed that the period of five years mentioned in sub-sec. 73(2) will expire on 19 October 1984. I understand that no longer period will be prescribed. I should also mention that I understand that fundamental changes to the make-up of the Force either have been, or are about to be, effected. No reference to any amending legislation was given me in argument but it is common ground between the parties that a restructuring will take place. This will involve the Protective Service Component no longer being part of the Force but being administered by the Department of Administrative Services. I have been informed by counsel that that change will come about on the fifth anniversary of the establishment of the Force, namely, 19 October next.

The applicant became a member of the Commonwealth Police Force on 30 June 1975. In 1975 and 1976 he was engaged in general uniform duties in Canberra. In 1976 and 1977 he was engaged in general district duties in the Canberra area. In 1976 and 1977 he underwent certain training courses and passed certain examinations. Between 1977 and 1978 he was engaged in general police duties at the Canberra Airport. On 19 January 1978 he was gazetted as a first constable and was transferred to Perth. Between 1978 and 1980 he was engaged in general uniform duties and airport work in Perth. Early in 1979 he underwent a further training course which he passed. When the Australian Federal Police Force was established on 19 October 1979 the applicant was placed in the Protective Service Component of the Force, not the General Duties Component which he would have preferred.

In June 1979 he decided that he would undertake Protective Service Component work overseas and applied for a transfer for this purpose. This work involves protective duties in relation to the safe-guarding of Australian Embassies, High Commissions and Consulates, and the personnel employed therein, in countries where Australia has diplomatic establishments. Between October 1979 and the early part of 1982 the applicant was engaged in this type of work in Port Moresby.

In March 1981, while the applicant was in Port Moresby, he applied to be transferred back to Perth. He applied for a general duties position in Perth which he had seen advertised in the Police Gazette. His application was successful and he received confirmation from Chief Superintendent Bird in Canberra that he was eligible and had been appointed to the general duties position in Perth. He expected then to return to Perth in the General Duties Component of the Force without the need to undertake any further course or pass any further examination. Amongst the documents on the applicant's file is a document headed, "Transfer". The document is dated 12 February 1982 and is signed by Superintendent Bird as the delegate of the Commissioner. It says that in pursuance of para. 26(1)(c) of the Act the applicant is transferred from the component referred to in sub-sec. 7(2) of the Act, that is, the Protective Service Component, to the component referred to in sub-sec. 7(1) thereof, that is, the General Duties Component with effect on 12 February 1982.

There was a certain amount of cross-examination of the applicant on whether he nevertheless appreciated that his transfer to the General Duties Component on 12 February 1982 was provisional. The applicant's evidence is that he did not realise it was provisional until he was informed that he had to undertake, successfully, a general policing course before he would be confirmed in his new position. The evidence on this matter is left in an inconclusive state but I do not need to attempt to reach a conclusion on the question of the applicant's knowledge because it seems to me to be irrelevant to do so. His transfer from the Protective Service Component to the General Duties Component, whether it was provisional or not, is not in question.

The applicant agreed to undertake the general policing course and was scheduled to attend a course commencing on 26 April 1982 and ending on 2 July 1982. The course was to take place in Canberra. The applicant applied for a deferment of the course on personal grounds. I do not need to refer to these grounds. They are referred to in the evidence. There is no reason to think they were not genuine. The applicant was then scheduled to commence a course starting on 3 May 1982. This is what he himself had requested. Approval for the applicant to attend the course commencing on 3 May 1982 was granted. However, he requested a further postponement, presumably also on personal grounds. This request was approved and the applicant was scheduled to attend a course commencing on 2 August 1982 and concluding on 8 October 1982.

The applicant entered upon this course but on 24 August 1982, some three weeks after it had commenced, he disclosed to Acting Chief Inspector Vincent that he was experiencing difficulty with remembering what he had been taught and felt that he did not, at that time, have the academic capacity to pass the course. The applicant informed Inspector Vincent that he wished to withdraw from the course and requested that he be allowed to do so and return to Perth. In his report Inspector Vincent said that during the interview it became apparent that the applicant would not have completed the course successfully and that his withdrawal was the only possible solution. Inspector Vincent said that he explained to the applicant that his withdrawal would be counted as a failure and that he would be obliged to return to the Protective Service Component. Inspector Vincent added, "The member is in agreement that his future is in the Protective Service Component yet his main desire is to continue with his current duties as the Firearms Testing Officer. This is impossible as the position is designated a General Policing function". Inspector Vincent recommended that the applicant be returned to the Protective Services Component.

On 25 August 1982 the applicant was interviewed by Mr. R.G. Leffers who was the Officer-in-Charge, Recruit Training Branch. He said that the applicant stated that owing to his absence of 25 years from any academic enviroment, the course was "above him" and he could not communicate effectively in examinations. Mr. Leffers also said that the applicant stated that prior to coming on the course he was quite happy performing the functions of a firearms testing officer and that he would have been content to remain in that position. However, as it was a general police function, he had to undertake the course and if it had not been for that requirement, he would not have applied to undertake the course. Mr. Leffers concluded:-

"Having regard to his request to withdraw and his poor performance in the assessable examinations so far conducted, I recommend that he be stood down from the course and be reverted back to performing Protective Service duties, Western Division. Further that he not be considered for any General Policing training until such time as he can clearly demonstrate that he has the necessary academic abililty and commitment to successfully complete the course."

On 24 August 1982 the applicant signed a request to withdraw from the course which was in the following terms:-

"I wish to report that I would like to withdraw from this General Policing Course.

The following are my reasons for this request:

(a) Because of my age and the number of years since completing my formal education, I have found it difficult to express myself in examinations.

(b) I have found it difficult to maintain a study pattern and at times found it hard to concentrate on studying.

I therefore wish to withdraw from the course and hope that it will not prejudice my aspirations in the Australian Federal Police Force."

On 30 August 1982 Superintendent Bird signed a transfer pursuant to para. 26(1)(c) of the Act. Effectively this operated to transfer the applicant from the component referred to in sub-sec. 7(1) of the Act, that is, the General Duties Component, to the component referred to in sub-sec. 7(2) of the Act, that is, the Protective Service Component with effect from 30 August 1982.

Superintendent Bird advised the officer-in-charge, Western Division, of the transfer of the applicant from General Duties to Protective Service on 30 August 1982. Amongst other things he said:-

"As a consequence of the member's withdrawal and taking into account recommendations from A/Chief Inspector VINCENT I have this day transferred BELLERBY to the Protective Service Component of the Australian Federal Police. He should be deployed on Protective Service duties in your Division. He should be also informed that his future is restricted to the Protective Service Component and any future application for a transfer to the General Policing Component would be deemed successful."

On 6 April 1983 and 16 November 1983, the applicant applied for a transfer back to the General Police Component of the Force. These applications were for positions advertised in the Australian Federal Police Gazette. Apparently the applications made by the applicant were not dealt with until this year, perhaps because of the impending change in the structure of the Force which is to come about on 19 October 1984.

On 27 May 1984 the applicant was interviewed by Inspector Haynes and Station Sergeant Sweeny, both of whom were said to be experienced police officers with extensive experience in training and recruiting. A copy of the interview report prepared by these officers is in evidence. The report sets out the history of the applicant both before and after he joined the Force in 1975. The essential paragraphs of the report are as follows:-

"This member was selected for General Policing and selected to attend GPC 8/82 but requested to withdraw for family and domestic reasons. He attended GPC 16/82 and requested to be withdrawn after failing two examinations. He was interviewed by Insp. VINCENT and admitted that he did not have the academic ability to successfully complete and pass a GPC. The member has done nothing in the way of remedial training since that time to overcome his lack of academic ability.

The member has been recommended at this time by his Regional Commander BUT has in the past NOT been recommended. It appears that the Regional O.I.C. now feels that he should recommend the member in the interests of 'fairness'. The panel disagree with the Regional Commander in relation to this matter and agree with his previous assessments of the member. The member has not in the past shown the correct motivation or enthusiasm that would indicate that he could successfully complete and pass a GPC.

Although the member indicated to the panel that he would like plain clothes duties anywhere in Australia he later in the interview expressed a view to working in uniform at Perth Airport which supported the panels view that he is not prepared to serve away from Perth.

The panel have rated this applicant as UNSUITABLE after considering the following: his age; his level of education and the long period that he has been away from serious and continual study; his poor result in his Recruit Course; his poor result on his GPC course and his lack of attempting remedial training since that time. The difficulties in passing his promotion examinations and his failure to impress the panel at interview."

After the interview the applicant's file was forwarded to the Training Division in Canberra where it was seen by a number of officers including Chief Superintendent Fletcher. He is responsible for matters relating to the promotion, transfer (including component transfer), assessment, development and resignation and retirement of members of the Force and he maintains the personnel records of all members. Chief Superintendent Fletcher holds a delegation of powers from the respondent Commissioner dated 11 April 1983. Amongst the powers which are delegated are, "the power under sub-sec. 73(1)(d) of the said Act to determine the suitability for appointment of an applicant". One of the submissions made by the applicant concerns the ability of the Commissioner to delegate his function under sub-para. 73(1)(d).

Chief Superintendent Fletcher said that in the course of his duties he was required to consider applications for appointment to the position of Constable, General Policing Component, as advertised in the Gazette. One of the applicants was the applicant who had made the applications of 6 April 1983 and 16 November 1983 earlier referred to. The applications came to Chief Superintendent Fletcher for a decision in respect of whether or not the applicant was suitable for appointment pursuant to para. 73(1)(d) of the Act. Chief Superintendent Fletcher said that he had known the applicant since 1976 but as I understand his evidence he has had no recent contact with him. Chief Superintendent Fletcher said that in making his decision he had regard to the contents of the applicant's personal file. He referred to the documents in the file including those to which I have made reference above. He referred lastly to the interview conducted by Inspector Haynes and Sergeant Sweeny and said that after the interview the applicant's file was forwarded to the Training Division in Canberra where it was read by Chief Superintendent Broomby who was of the view that the applicant was not suitable for General Police Training. The two Chief Superintendents discussed the applicant's history. Chief Superintendent Fletcher continued,

". . . based on his recommendation (that is, the recommendation of Superintendent Broomby) and the information in his file, I decided the applicant was not a suitable applicant for the purposes of s. 73(1)(d) of the Act. This decision was subsequently reviewed and agreed in by the Assistant Commissioner, Personnel and Services."

Chief Superintendent Fletcher said that the effect of his decision was that the applicant would remain a member of the Protective Service Component and would be transferred to the Department of Administrative Services on the formation of the Australian Protective Service. His salary and conditions of employment would remain the same, but he would not have a uniform nor have the powers of a member of the Australian Federal Police Force.

The applicant called in his case two members of the Australian Federal Police who are in the General Duties Component and who were not required to undertake any police course before being appointed. The two witnesses were Constable P.L. Middelhuis and Senior Constable J.H. Russell. Their cases are explained in the evidence of Chief Superintendent Fletcher and I do not consider that their evidence has any relevance for present purposes. No submission based on their evidence was put to me by counsel for the applicant.

On 2 August 1984 Chief Superintendent Broomby, pursuant to s. 13 of the Administrative Decisions (Judicial Review) Act 1977, provided reasons for the decision which had been made. The reasons were provided in a letter addressed to the applicant. The letter made reference to s. 73 of the Act and said that as the applicant was not considered suitable for the appointment (see para. (1)(d)) he was not considered entitled to preference. Chief Superintendent Broomby's letter continued:-

"The reasons why you were considered unsuitable for component transfer to the General Policing Component were:

(a) your failure to attend GPC 8/82 and withdrawal from GPC 16/82.

(b) your academic ability.

The panel, in reaching its conclusion, took into account:

(i) your age;

(ii) your level of education - Junior Secondary Certificate 1954;

(iii) the long period you have been away from serious and continual study;

(iv) your poor results in your recruit training;

(v) the difficulties you had in passing your Senior Constables Examination;

(vi) your poor result in your general policing course when you withdrew from the course stating by way of report (24 August 1984):

"Because of my age and the number of years since completing my formal education, I have found it difficult to express myself at examinations." and "I have found it difficult to maintain a study pattern and at times found it hard to concentrate on studying."

(c) your lack of remedial training or study.

as stated to the interview panel (Inspector Haynes and Station Sergeant Sweeny) when you were interviewed on 27 May 1984."

It should be mentioned at this point that the letter does not do the applicant's level of education justice. It is true that the Scottish Leaving Certificate which he obtained in 1954 is regarded by the Western Australian educational authorities as equivalent to the examination done by school pupils at the end of Year 10 - not Year 12. But the applicant holds a further qualification which in the eyes of the Western Australian Department is equivalent to a Year 12 qualification, albeit that it has an "agricultural emphasis". To this extent the letter of 2 August 1954 is written under a misapprehension. But the matter is not of substantial importance and I do not think that anything turns on it. Certainly no submission based on the omission of reference to the further qualification obtained by the applicant was made by his counsel.

Both the applicant and Chief Superintendent Fletcher were cross-examined on the affidavits which they had sworn. The cross-examinations led to the canvassing of a good deal of the merits and demerits of the matter. This was done without objection from either counsel but the relevance of much of the cross-examination escaped me. At one stage I became concerned that the impression was being given that in some way the applicant had a general appeal against the decision not to transfer him. For that reason I made it clear that that was not the case and that his expectations of what he might obtain as a result of the proceedings ought not to be aroused by the course that was being taken. In the result I think most of the cross-examination can be put aside. But the applicant's oral evidence does establish, although in a negative way, that he did sign the document dated 24 August 1982 above set out at the end of the course and did have interviews along the lines of those reported by Inspector Vincent, Mr. Leffers, Inspector Haynes and Station Sergeant Sweeny. Nothing, he said to his own counsel or in cross-examination suggested otherwise.

The submissions made by counsel for the applicant were:-
(a) the rules of natural justice applied to the formation by the Commissioner of an opinion under para. 73(1)(d) of the Act;

(b) the Commissioner was in breach of the rules of natural justice, not because he had not provided a hearing - the interview overcame that problem - but because the matter was prejudged or foreclosed for the applicant before the interview occurred;

(c) the Commissioner had no power to delegate his function under para. 73(1)(d) of the Act.

I propose to dispose of the last submission first of all. In my opinion it should be rejected. It was said that the provisions of para. 73(1)(d) did not involve the exercise of any power by the Commissioner but the formation of an opinion and thus the holding of a state of mind by him. It may have been something which he had a duty to do in the circumstances of the case, but it was not a matter which he had power to do. In my opinion para. 73(1)(d) confers upon the Commissioner a power to form the opinion which is referred to therein. Thus it is a function in respect of which he may delegate his powers pursuant to s. 15 of the Act. Such a delegation did exist at all material times. The fact that he may be under a duty to form an opinion or that forming an opinion involves having a state of mind does not, in my view, mean that the Commissioner is not at the same time empowered to form the opinion.

I pass to the more substantial matters relied upon. The gravamen of the applicant's complaint is that the outcome of the interview which was ostensibly designed to determine whether he should be transferred or, if he could not be transferred on considerations then applying, whether he should be given an opportunity to attend a further training course, was predetermined or prejudged. Although the applicant had every opportunity of saying what he wished during the interview, it was, in his counsel's submission, an empty exercise devoid of meaning. Counsel for the applicant relied strongly on the paragraph which I have quoted from the memorandum of 30 August 1982 from Chief Superintendent Bird to the Officer-in-Charge, Western Division. That memorandum stated in part, "He (the applicant) should be also informed that his future is restricted to the Protective Service Component and any future application for a transfer to the General Policing Component would be deemed unsuccessful". That, according to counsel, foreclosed the position against the applicant with the result that he may as well have not bothered making his applications in 1983 which led to the interview in May 1984.

The trouble with that approach is the evidence given by Chief Superintendent Fletcher. He said that because of the impending change in the structure of the Force it had been decided to give a large number of people opportunities to make applications for the purpose of seeing whether, after all, they should not be transferred to the General Policing Component and thus retained in the Force. I accept that evidence. Chief Superintendent Fletcher was cross-examined in an endeavour to show that the Force was already overstaffed with the result that interviews afforded to substantial numbers of men in similar positions to the applicant were not intended to result in any change in their situation. Chief Superintendent Fletcher rejected the suggestions put to him. More importantly for the purposes of the present case, he made it clear that the opportunity afforded the applicant by the interview in May 1984 was given him, along with a number of others, in order to allow him, if he could, to establish that he was capable of fitting himself for duty in the General Policing Component. The view expressed by Chief Superintendent Bird in his memorandum of 30 August 1982 was not conclusive or binding on officers including Chief Superintendent Fletcher himself who looked at the position in 1983 and 1984. It was not their view that the position could not be reviewed. That is indeed what happened. I am satisfied that I should accept Chief Superintendent Fletcher's evidence in this respect and in all other respects and I do.

I emphasise that the question is not whether I think that the applicant should be transferred or be given another opportunity to undergo some course which might lead to his being transferred. It is a question of whether the Commissioner, by his delegate, in acting as he has, has acted according to law. In other words, was he legally justified in reaching the opinion that the applicant was not suitable. The applicant's counsel based his case on a breach of the rules of natural justice. I think that there is a serious question as to whether those rules apply at all in the circumstances of this case. But I do not need to decide that matter. In my opinion it would have been open to the applicant to rely on provisions of s. 5 of the Judicial Review Act other than para. (1)(a) if his case had been soundly based. It seems to me that, in that event, his case could have been more easily rested on there having been an improper exercise of the power afforded by the relevant enactment: see para. (1)(e) and sub-sec. (2).

Be that as it may, I am satisfied that there has not been any breach of the rules of natural justice nor improper exercise of the Commissioner's power to form the opinion provided for in para. 73(1)(d) of the Act nor any other conduct by the Commissioner or his delegate which is not in accordance with the law. The applicant has been given every opportunity to put his case. Those who have considered his position have considered it anxiously, fairly and to the best of their ability. Superintendent Bird's statements in his memorandum of 30 August 1982 did not foreclose the position. It follows that the Commissioner, by his delegate, was well entitled to reach the conclusion that the applicant was not suitable for the appointment he sought.

It is no doubt a sad thing for the applicant to realise that his days in the Police Force may be coming to an end. He impressed me as a good type of man who has no doubt performed loyal and satisfactory service in the past. I am sure that he impressed Chief Superintendent Fletcher and others in this way. But the fact is that in the eyes of his superiors he lacks a sufficient intellectual ability to discharge the duties which a modern police force requires. It is on this ground that he has been found wanting. It involves no criticism of him and certainly no disgrace. It is just that in the eyes of the Commissioner and his officers the applicant is not suitable for the task at hand. For that reason they have taken the view that he is not suitable and is therefore not entitled to the preference which s. 73 would otherwise confer upon him.

I should conclude this judgment by saying that I think that the applicant himself and, perhaps for a time his counsel too, were labouring under the misapprehension that the applicant was by the section entitled to preference. In the end no argument based on this matter was relied on. But it should be understood by the applicant and by others who may be in a like position that he is not entitled to preference under the section unless he qualifies for it by establishing that he falls within each of the four preconditions which s. 73 prescribes. He falls within the first three because he is a member of the Force, was a member of the Commonwealth Police Force immediately before the commencement of the Act and was qualified to hold the rank in question. He does not qualify for the fourth precondition because he is not, in the opinion of the Commissioner, suitable for the appointment. Unless he obtained a favourable opinion from the Commissioner or his delegate in that respect he could not qualify for the preference which the section confers.

In the result the application must be dismissed with costs.