Roberts, D.M. v Garrett, J.H

[1982] FCA 34

Re: DAVID McPHERSON ROBERTS
And: JOHN HUGH GARRETT, BRUCE GOODAY, JOHN HOOKEY and THE CHAIRMAN, INDUSTRIES
ASSISTANCE COMMISSION (1982) 59 FLR 435
No. G188 of 1981
Administrative Decisions - Administrative Law - Application

COURT

IN THE FEDERAL COURT OF AUSTRALIA

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

CATCHWORDS

Administrative Decisions (Judicial Review) Act 1977 - Application for order of review of alleged decision by Commonwealth Employees Redeployment and Retirement Appeals Tribunal - Commonwealth Employees (Redeployment and Retirement) Act 1979 - Redeployment declaration - administrative procedures - objection to competency of Application for order of review at this stage - interim ruling of Tribunal only - "decision".

Administrative Law - Public service - Commonwealth employee's redeployment - Redeployment declaration - Administrative procedures - Dominant purpose of Pt II of Act - Whether procedures frustrate Act - Whether redeployment declaration valid - Job vacancies - Equivalent qualifications - Whether entitled to fill vacancy - "Unable" to place employee - Whether "unable" or unwilling - Commonwealth Employees (Redeployment and Retirement) Act 1979 (Cth), ss. 3, 7, 8, 9, 15, 16, 25(5).

Application - Federal Court - Application for order of review - Competency - Commonwealth Employees Redeployment and Retirement Appeals Tribunal - Tribunal ruled on preliminary submission - Whether ruling was "decision" - "Administrative character" - "Conduct" - "Aggrieved" - Whether application competent - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss. 3, 5, 6, 16 - Commonwealth Employees (Redeployment and Retirement) Act 1979 (Cth), ss. 3, 7, 8, 9, 15.

HEADNOTE

The Chairman of the Industries Assistance Commission (the Commission) gave the applicant a document purporting to be a redeployment declaration in pursuance of the Commonwealth Employees (Redeployment and Retirement) Act 1979 (the Act). The applicant appealed to the Commonwealth Employees Redeployment and Retirement Appeals Tribunal (the Tribunal) and submitted to it, inter alia, that there were two vacant Class 10 positions in the office of the Commission and that he was entitled, on the basis of cl. 29 of the administrative procedures laid down by the Public Service Board by instrument dated 28th May, 1981, and he being a Class 10 officer, to be placed in such a vacant position irrespective of what the position was.

The Tribunal, by a majority, rejected that submission and indicated that it proposed to resume the hearing on a given date. Relying on ss. 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 the applicant applied to the Federal Court of Australia for an order of review of the Tribunal's "decision" seeking orders quashing the "decision" and restraining the Tribunal from proceeding to hear the appeal and declarations that the redeployment declaration was invalid and that the applicant was entitled to be employed as a Class 10 officer in either of the two vacant Class 10 positions.

The Chairman of the Commission, who had been joined with the respondents, filed a notice of objection to the competency of the application.

Held, upholding the objection as to the competency of this application: (1) The dominant purpose of Pt II of the Commonwealth Employees (Redeployment and Retirement) Act 1979 is expressed is sub-ss. (1)(a) and (1)(b) of s. 7 of the Act.

(2) Section 8(3) of the Act recognizes that administrative procedures are not to limit or frustrate the objects set out in s. 7(1) of the Act.

(3) The majority of the Commonwealth Employees Redeployment and Retirement Appeals Tribunal in the present case had done no more than given an interim ruling.

(4) The ruling was not a "decision" nor was it of an "administrative character" within the terms of s. 3(1) of the Administrative Decisions (Judicial Review) Act 1977.

(5) After having given a ruling the majority of the Tribunal merely recorded an intention to resume the hearing of the appeal. This was not a "decision" or anything that may be relevantly described as being of an "administrative character". Neither can it be so described as "conduct" which is susceptible of review (s. 3 of the Administrative Decisions (Judicial Review) Act).

(6) The applicant had not been shown to be a person presently "aggrieved" by the interim ruling or the present intention of the Tribunal to resume the hearing (s. 3(4) of the Administrative Decisions (Judicial Review) Act).

Director-General of Social Services v. Chaney (1980), 47 FLR 80, followed.

R. v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd. (1953), 88 CLR 100; Riordan v. Connor (1981), 53 FLR 112; Collector of Customs (New South Wales) v. Brian Lawlor Automotive Pty. Ltd. (1979), 41 FLR 338, referred to.

HEARING

Sydney, 1982, March 10-11, 24. #DATE 24:3:1982

APPLICATION.

Application pursuant to ss. 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) for an order of review of what is claimed to be a decision of the Commonwealth Employees Redeployment and Retirement Appeals Tribunal.

The following judgment deals primarily with the objection as to the competency of the application.

J.J. Garnsey, for the applicant.

B. Hungerford, for the respondents.

Cur. adv. vult.

Solicitors for the applicant: Geoffrey Edwards & Co.

Solicitor for the respondents: B.J. O'Donovan, Commonwealth Crown Solicitor.

E.F. FROHLICH

ORDER

1. The objection as to competency is upheld.

2. The Applicant is to pay the costs of and incidental thereto.

3. Either side is to have liberty to apply as to any further hearing of the Application for an order of review on 2 days' notice.

JUDGE1

On 17 December 1981 DAVID McPHERSON ROBERTS (Applicant), relying on ss.5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (AD(JR) Act) filed an Application for an order of review of what is said to be a decision of persons being those constituting a Commonwealth Employees Redeployment and Retirement Appeals Tribunal (Tribunal) established by s.16 of the Commonwealth Employees (Redeployment and Retirement) Act 1979 (the Act) given on 26 November 1981. The Chairman of the Industries Assistance Commission is William Allan McKinnon.

At a Directions Hearing on 3 February 1982, the said Chairman under that title was, by consent, added as a party to the proceedings and is one of the Respondents. He has filed an objection to the competency of the Application, to which more detailed reference is later made.

The Application reads -

"Application to review the decision of the Respondents constituting a Commonwealth Employees Redeployment and Retirement Appeals Tribunal established under Section 16 of the Commonwealth Employees (Redeployment and Retirement) Act, 1979 (the Act) given and made on 26 November, 1981 that:-

(1) the Redeployment Declaration purportedly given by the Chairman of the Industries Assistance Commission in respect of the Applicant pursuant to Section 9 of the Act was properly given and valid and effective;

(2) the Respondents sitting as the said Tribunal had jurisdiction to proceed with the Appeal of the Applicant pursuant to Section 15 of the Act;

(3) the Respondents sitting as the said Tribunal should proceed to hear the Appeal of the Applicant pursuant to Section 15 of the said Act in respect of the said Declaration.

Application to review the conduct of the Respondents constituting the said Tribunal whereby the Respondents made and gave each of the said decisions.

Application to review conduct in which each of the Respondents proposes to engage whereby the Respondents proposed to continue with the hearing of the said Appeal.

The applicant is aggrieved by the decision conduct and proposed conduct because:-

1. He is and was at all material times a Class 10 Second Division Officer in the Australian Public Service;

2. The Applicant was the subject of a purported Redeployment Declaration by the Chairman of the Industries Assistance Commission under Section 9 of the Act;

3. The said Redeployment Declaration is and was invalid on the grounds (inter alia) -

(a) that it did not comply with the provisions of the Act and in particular with the requirements of Clause 29 of the Administrative Procedures laid down by the Public Service Board by instrument dated 18th May, 1981 pursuant to Section 8 of the Act;

(b) that it was made and given upon a consideration of improper and irrelevant matters.

4. The Respondents constituting the said Tribunal did not and do not have jurisdiction to hear, proceed with, or determine the said Appeal if it is found that the said Redeployment Declaration is and was invalid.

5. The Applicant is and was at all material times entitled to be employed in either of two vacant Class 10 positions in the Industries Assistance Commission.

THE GROUNDS of the application are the grounds by which the Applicant is a person aggrieved.

THE APPLICANT CLAIMS:-

1. An order both pending the determination of this Application and permanently restraining the Respondents and each of them from, by themselves their servants and agents, proceeding to hear and determine the said Appeal of the Applicant.

2. A declaration that the notice purporting to be a Redeployment Declaration pursuant to Section 9 of the Act by the Chairman of the Industries Assistance Commission in respect of the Applicant is and was at all material times invalid by reason (inter alia) of the failure of the said Chairman to comply with the requirements of Clause 29 of the Administrative Procedures laid down by the Public Service Board by instrument dated 18th May, 1981 pursuant to Section 8 of the Act.

3. An order quashing and setting aside each of the said decisions of the Respondents constituting the said Tribunal.

4. A declaration that the Applicant is entitled to be employed as a Class 10 officer of the Australian Public Service in either of the two vacant Class 10 positions in the Industries Assistance Commission.

5. An order that the Respondents pay the costs of the Applicant of and incidental to this Application."

The meaning of "redeployment declaration" referred to in s.3 (unless a contrary intention appears) of the Act and ss.7(1), 8(1) to (4), 9(1),(2) and (3) and s.15 are as follows -
"3. . . . .
"redeployment declaration" means an instrument under section 9, or a declaration made by a Tribunal under sub-section 15(6), declaring an employee to be eligible for redeployment in accordance with Part 11;

. . . . .


7. (1) The objects of the Part are -
(a) first, to ensure, to the greatest extent that is practicable, that each Department and each prescribed Commonwealth authority operates in such a manner as to make efficient and economical use of the services of the persons employed in the Department or by the authority; and

(b) secondly, to ensure, to the greatest extent that is practicable, that each employee in a Department, and each employee of a prescribed Commonwealth authority, whose services cannot, consistently with the achievement of the first object of this Part, reasonably be used in the Department or by the authority, as the case may be -

(i) for the reason that he is included in a class of employees employed in the Department or by the authority which comprises a greater number of employees than is necessary for the efficient and economical working of the Department or authority;

(ii) for the reason that he is, in consequence of physical or mental incapacity, incapable of performing his duties; or

(iii) for any other prescribed reason,

is redeployed in the Australian Public Service or in the employment of a prescribed Commonwealth authority on duties which he can reasonably be required to perform.

(2) Regulations prescribing a reason for the purposes of paragraph (1)(b) shall not be made except after consideration by the Governor General of a report made to the Governor-General by the Public Service Board after consultation by the Public Service Board with the organisations, being organisations representing the interests of employees or a class of employees, prescribed for the purposes of this section.

8. (1) The Public Service Board may, from time to time, publish in the Gazette a notice setting out administrative procedures to be followed by Departments for the purpose of facilitating the achievement of the objects of this Part.

(2) A prescribed Commonwealth authority may, from time to time, but only after consultation with the Public Service Board, publish in the Gazette a notice setting out administrative procedures to be followed by the authority for the purpose of facilitating the achievement of the objects of this Part.

(3) Without limiting the generality of sub-section (1) or (2), the administrative procedures -

(a) may specify criteria by reference to which -

(i) an employee in a Department or a part of a Department; or

(ii) an employee of an authority, or an employee of an authority employed in a branch of the authority,

may be identified as an employee whose services cannot, for a reason referred to in sub-paragraph 7 (1)(b)(i), (ii) or (iii), reasonably be used in the Department, in that part of the Department, by the authority or by the authority in that branch, as the case may be, consistently with the achievement of the first object of this Part by the Department or authority, as the case may be;

(b) may make provision for defining the occasions on which, or circumstances in which, those procedures should be given effect to for the purpose of determining whether the services of any employee in the Department, or of the authority, cannot, consistently with the achievement of the first object of this Part, reasonably be used in the Department or by the authority; and

(c) may, in the case of procedures set out in a notice under sub-section (1), make provision for authorizing the Public Service Board, by notice in writing given to the Permanent Head of a Department, to direct that effect be given to the procedures in relation to a specified employee, or a specified class of employees, in the Department.

(4) The Public Service Board may revoke, or from time to time vary, a notice published by it under sub-section (1).

. . . . . .

9. (1) The Permanent Head of a Department -

(a) is responsible for ensuring that the Department operates in such a manner as to make as efficient and economical use of the services of the persons employed in the Department as is practicable; and

(b) without limiting the generality of paragraph (a) -

(i) shall give all such directions, and do all such things, as can be given or done by him for ensuring that the procedures set out in a notice in force under sub-section 8(1) (including any directions given by the Public Service Board under those procedures) are, so far as they are relevant to the operation of the Department, given effect to in the administration of the Department; and

(ii) shall cause each employee in the Department who, in accordance with the procedures set out in a notice in force under sub-section 8(1), is identified as an employee whose services cannot, for a reason referred to in sub-paragraph 7(1) (b) (i), (ii) or (iii), reasonably be used in the Department, or in a part of the Department, to be declared, by instrument in writing, to be, for that reason, eligible for redeployment in accordance with this Part.

(2) A prescribed Commonwealth authority -

(a) shall organise its operations in such a manner as to make as efficient and economical use of the services of the persons employed by it as is practicable; and

(b) without limiting the generality of paragraph (a) -

(i) shall give all such directions, and do all such things, as can be given or done by it for ensuring that the procedures set out by it in a notice in force under sub-section 8(2) are given effect to in the administration of the affairs of the authority; and

(ii) shall cause each employee of the authority who, in accordance with the procedures set out by it in a notice in force under sub-section 8(2), is identified as an employee whose services cannot, for a reason referred to in sub-paragraph 7(1) (b) (i), (ii) and (iii), reasonably be used by the authority, or be used by the authority in a branch of the authority, to be declared, by instrument in writing, to be, for that reason, eligible for redeployment in accordance with this Part.

(3) Nothing in sub-section (1) or (2) requires or authorizes the making of an instrument declaring an employee to be eligible for redeployment in accordance with this Part if the employee was identified, under a relevant notice under section 8, as an employee whose services cannot reasonably be used in a Department or a part of a Department, or by a prescribed Commonwealth authority or by such an authority in a branch of the authority, for the reason that he is inefficient or incompetent for causes within his own control.

. . . .

15. (1) An employee may appeal to a Tribunal against -

(a) the making of a redeployment declaration under section 9 in respect of the employee;

(b) the issue of a certificate under section 11 or 14 in respect of the employee; or

(c) action taken under this Act by way of the redeployment of the employee in the Australian Public Service or in the employment of a prescribed Commonwealth authority.

(2) Where an employee appeals to a Tribunal under sub-section (1), a Tribunal shall hear and determine the appeal and may -

(a) in the case of an appeal against the making of a redeployment declaration under section 9 -

(i) confirm the declaration;

(ii) revoke the declaration; or

(iii) revoke the declaration and make a redeployment declaration in respect of another employee under sub-section (6);

(b) in the case of an appeal against the issue of a certificate under section 11 or 14 - confirm or revoke the certificate; or

(c) in the case of an appeal against action taken by way of the redeployment of an employee -

(i) confirm the taking of the action; or

(ii) set aside the taking of the action and remit the matter to the Public Service Board for the Board to take such other action by way of the redeployment of the employee as the Board thinks fit.

(3) Where a Tribunal hears an appeal against the making of a redeployment declaration made under section 9 in respect of an employee, the Tribunal shall, in determining the appeal, apply the criteria set out in a notice under section 8 that were applicable to the decision by the Department or prescribed Commonwealth authority concerned to make the declaration.

(4) Where a Tribunal hears an appeal against the issue of a certificate under section 11 or 14 or against the taking of action by way of the redeployment of an employee, the Tribunal shall determine the appeal in accordance with the principles, if any, set out in a notice under sub-section 11(2) to which the Public Service Board was required by sub-section 11(3) to give effect and shall have regard to the matters to which the Public Service Board was required by sub-section 11(4) to have regard in relation to the issue of the certificate or the taking of the action, as the case may be.

(5) Where a declared employee, being an employee in respect of whom a redeployment declaration has been made by reason that he is included in a class of employees employed in a Department or by a prescribed Commonwealth authority which comprises a greater number of employees than is necessary for the efficient and economical working of the Department or authority, appeals to a Tribunal against the making, under section 9, of that declaration in relation to him, the Tribunal may -
(a) if the employee is employed in a Department - at the request of the employee or of the Public Service Board; or

(b) if the employee is employed by a prescribed Commonwealth authority - at the request of the employee or of that authority,
join all or any of the employees included in that class as parties to that appeal.

(6) Where a Tribunal hears an appeal by a declared employee against the making of a redeployment declaration under section 9 in respect of the employee, the Tribunal may, if it is satisfied that a redeployment declaration should have been made in respect of another employee (being an employee who has been joined as a party to the appeal under sub-section (5)) instead of in respect of that declared employee, determine the appeal by revoking the declaration made in respect of that declared employee and making a declaration declaring that other employee to be eligible for redeployment in accordance with this Part.

(7) A Tribunal may, upon hearing and determining an appeal under this Act, furnish to the Public Service Board, or to a prescribed Commonwealth authority, any comments the Tribunal deems it desirable to make with respect to the administrative procedures set out in a notice under section 8, or the principles set out in a notice under section 11, that were relevant to the appeal.

(8) Where a Tribunal revokes a certificate issued under section 11 or 14 in respect of an employee, section 11 applies to and in relation to the employee as if the certificate had not been issued.

(9) Where the Tribunal sets aside action taken by way of the redeployment of an employee - section 11 applies to and in relation to the employee as if that first-mentioned action had not been taken.

(10) The Tribunal shall give reasons, in writing, for its decision on an appeal under this section.

(11) Where a Tribunal sets aside the taking of action by way of the redeployment of an employee -
(a) if the employee was, prior to the taking of the action, employed in a Department - the Public Service Board; or

(b) if the employee was, prior to the taking of the action, employed by a prescribed Commonwealth authority - that authority,
shall take such action as is necessary to restore the situation, in relation to his employment, which existed immediately before he was redeployed."

In the AD(JR) Act s.3(1) provides, unless a contrary intention appears, inter alia,
"decision to which this Act applies" means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment . . . . . "
Section 3(4) provides -
"In this Act -

(a) a reference to a person aggrieved by a decision includes a reference -

(i) to a person whose interests are adversely affected by the decision; or

(ii) . . . . .

(b) a reference to a person aggrieved by conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision or by a failure to make a decision includes a reference to a person whose interests are or would be adversely affected by the conduct or failure."
Section 3(5) provides -
"A reference in this Act to conduct engaged in for the purpose of making a decision includes a reference to the doing of any act or thing preparatory to the making of the decision, including the taking of evidence or the holding of an inquiry or investigation."

The matter arose thus. In a letter dated 6 August 1981, Mr. W.A. McKinnon, wrote to the Applicant a letter stating, inter alia -
"I have reviewed your situation and concluded that your services can no longer be efficiently or economically used at your level in the I.A.C. Therefore, in accordance with Section 9(1) of the CE(RR) Act I have declared you as eligible for redeployment since you are excess to the Commission's requirements.

In making this decision, I have regard to the fact that you are included in a class of employees, namely those employees who remain unplaced following the re-organisation of the Commission in May 1979, which, in my judgment, is not necessary for the efficient and economic working of the Commission.

You are advised that:

1. The Commission cannot use your services economically and efficiently.

. . . . . . "
With that letter, the Applicant was given a (purported) Redeployment Declaration of the same date and worded as follows -
"I, WILLIAM ALLAN McKINNON, Chairman of the Industries Assistance Commission, in pursuance of sub-section 25(5) of the Commonwealth Employees (Redeployment and Retirement) Act 1979, declare Mr. David McPherson Roberts to be an employee whose services cannot, consistently with the achievements of the first objective of Part 11 of the Act, reasonably be used in the Commission for the reason that he is included in a class of employees which comprises a greater number of employees than is necessary for the efficient and economical working of the Commission."

Pursuant to s.15 of the Act, the Applicant appealed to a Commonwealth Employees Redeployment and Retirement Appeals Tribunal. The appeal proceedings commenced in Melbourne on 16 November 1981. What happened thereafter is set out in paragraph 3 of a document dated 26 November 1981 which appears to record a preliminary submission and ruling thereon by the Tribunal thus -
"3. At the proceedings on 16 November Mr. Doyle argued on Mr. Roberts' behalf that the declaration of Mr. Roberts under section 9 of the Act was invalid for the reason that the Permanent Head (i.e. the Chairman of the Industries Assistance Commission) had not acted in accordance with the requirements of Clause 29 of the administrative procedures laid down by the Public Service Board by instrument dated 18 May 1981. Mr. Doyle requested that the Tribunal give its decision on this point before any consideration was given to other grounds put forward by Mr. Roberts in support of his appeal in his letter to the Director, Grievance and Appeals Bureau, dated 9 September 1981. The Tribunal declined to give an immediate decision on the point raised by Mr. Doyle but agreed to adjourn the proceedings until it had reached a decision on one particular argument put forward by Mr. Doyle relating to that point.

4. Clause 29 of the abovementioned administrative procedures reads as follows:

"Permanent Head to identify

29(1) This part applies to the officers and employees referred to in sub-clause 29(2).

(2) Where, prior to 6 February 1981, the Permanent Head identified surplus staff and notified the Board of the identity of the officers or employees comprising the surplus, whether or not those officers or employees have been issued with Notices of Redundancy, the Permanent Head shall, having confirmed that the Board has taken such action as is necessary to advise relevant staff organisations:

(a) review the situation relating to those officers or employees; and

(b) where he is unable to place such an officer or employee in a vacant position elsewhere in his Department equal in classification to that formerly occupied by the officer or employee, take appropriate action in relation to the officer or employee pursuant to section 9 of the Act."

5. Mr. Roberts is an officer to whom clause 29 applies. Mr. Doyle argued that the requirements of clause 29 had not been followed because the Permanent Head was not unable to place Mr. Roberts in a vacant position elsewhere in the Department (i.e. the Industries Assistance Commission) equal in classification to that formerly occupied by Mr. Roberts (i.e. Class 10 in the Third Division). Mr. Doyle pointed out that there were two vacant Class 10 positions in the Office of the Industries Assistance Commission; he contended that clause 29 required that Mr. Roberts be placed in one of those positions.

6. Mr. Doyle's primary submission was that clause 29 required Mr. Roberts to be placed in such a vacant position irrespective of what the position was. By way of illustration he argued that if the vacant position happened to be a Class 10 position of plumber clause 29 required Mr. Roberts to be placed in it; the fact that Mr. Roberts had no plumbing qualifications would, he argued, be immaterial.

7. Mr. Doyle's secondary submission, in the event that his primary submission failed, was to the effect that the nature of the two abovementioned vacant positions (i.e. in relation to Mr. Roberts' experience and qualifications) was such that it could not be said that the Industries Assistance Commission was unable to place Mr. Roberts in one of them; the Commission might have been unwilling to do so, but it was not unable.

8. This decision by the Tribunal is a majority decision (with Dr. Hookey dissenting) and relates only to Mr. Doyle's primary submission (see paragraph 6 above). It is not to be construed as relating in any way to Mr. Doyle's secondary submission (see paragraph 7 above); the Tribunal has not at this stage considered that submission and would wish to hear further evidence concerning it.

9. After discussing with officers of Attorney-General's Department the issues involved in Mr. Doyle's primary submission, the Tribunal has, by majority, decided to reject that submission. Mr. Garrett and Mr. Gooday believe that the wording used in the administrative procedures promulgated by the Public Service Board must be read in the context of the provisions of the Commonwealth Employees (Redeployment and Retirement) Act and, in particular, in light of the objects relating to redeployment of employees as stated in section 7 of the Act. Those objects refer, inter alia, to the efficient and economical working of departments and authorities. Mr. Garrett and Mr. Gooday consider that it would be inconsistent with the Act for a Permanent Head to be required to place an unattached officer in a vacant position simply because it was vacant and irrespective of the nature of the position and the qualifications required for its effective performance.

10. It is emphasised that the majority decision of the Tribunal is simply a decision not to accept Mr. Doyle's primary submission (see paragraph 6 above). The decision is not a decision either to confirm or to revoke the declaration of Mr. Roberts under section 9 of the Act. The Tribunal's consideration of that issue will be the subject of further proceedings.

11. Dr. Hookey dissents from the present decision. Attached is a statement of his reasons for his dissenting opinion.

12. The Tribunal proposes to resume the hearing of Mr. Roberts appeal in Melbourne at 9.30 am on Monday 7 December 1981."

Dr. Hookey, dissenting, stated, inter alia -

". . . . .

9. Accordingly, having considered all the evidence before the Tribunal, I am of the opinion that it should decline jurisdiction in this case on the grounds that a valid notice pursuant to Section 9 of the Principal Act has not been issued to the appellant.

. . . . "
Following the action of the majority, the Application for an Order of Review was lodged. In respect of it the Chairman, Industries Assistance Commission, has filed a Notice of Objection to Competency which reads -
"The Chairman, Industries Assistance Commission objects to the jurisdiction of this Court to try this application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 on the grounds that -


1. The decision the subject of the application is not a decision within the meaning of section 15 of the Commonwealth Employees (Redeployment and Retirement) Act 1979 (CE(RR) Act) and is, therefore, not a decision to which the Administrative Decisions (Judicial Review) Act 1977 (AD(JR)Act) applies in that -

(a) the Commonwealth Employees Redeployment and Retirement Appeals Tribunal has not heard and determined the appeal and/or

(b) the said decision is not final and conclusive in effectively deciding the issues before the said Tribunal.

2. The conduct of the respondents in respect of the decision in (1) above is not conduct in respect of a decision which comes within the meaning of section 15 of the CE(RR) Act and, therefore, is not conduct for the purpose of making a decision to which the AD(JR) Act applies.

3. The Declarations sought in the application are not Declarations to which the AD(JR) Act applies in that they do not refer to the rights of the applicant in respect of any matter to which the decision the subject of the application relates."

The parties have agreed that this Objection to Competency should be heard and determined before the hearing of the Application to which the said objection refers. The proceedings before the Tribunal and this Appeal have been conducted on the basis that the Chairman is a "Permanent Head" within the meaning of s.9 of the Act and required to act in accordance with the said Clause 29. On this hearing, Counsel for the Applicant argued that there was no valid redeployment declaration issued in respect of him; that the Chairman did not, in making his redeployment declaration, and as required by s.8 of the Act, comply with Clause 29 quoted which itself is published in PSB Circular 1981/17 dated 25 May 1981. He referred to s.7 of the Act

He submitted that compliance with administrative procedures referred to in s.8 of the Act is "mandatory"; those procedures were not followed by the Chairman in that he was not "unable" in terms of clause 29(2) (b) to place the Applicant in a vacant position elsewhere as, admittedly, there were two such positions of classification equivalent to that of the Applicant; that the Chairman did not so place him because he was only unwilling to do so. Hence he said there was no valid redeployment declaration and so no valid appeal to the Tribunal available under the Act; thus the decision of the Tribunal that it had jurisdiction and the decision to proceed; the conduct of the Tribunal in proceeding and conduct in which it proposes to engage, i.e. to continue with the appeal for the purpose of making a decision, is ultra vires the Tribunal. Therefore, he submitted, since the appeal to the Tribunal only arises in respect of a valid redeployment declaration, the Tribunal was without jurisdiction. He likened relief available pursuant to AD(JR) Act to that under prerogative writs. He claimed applicant was "aggrieved" ". . . his grievance goes to the lack of jurisdiction. . . "(See s.6(c)) involving, it was said, that the Chairman's act was invalid.

He referred to the definition of "decision to which this Act applies" in s.3(1) of the AD(JR)Act and its use in ss.5 and 6. He said he relied "heavily" on the words "proposed decision" in that definition which he identified to be the final decision the Tribunal would make in due course and at the conclusion of the hearing. Counsel submitted this Court, pursuant to s.16 of the AD(JR)Act, could make a declaration as to the invalidity of the redeployment declaration, as to the absence of jurisdiction in the Tribunal, as to the entitlement of the Applicant to be employed in a vacant position, and directing the Tribunal to refrain from proceeding with the enquiry - s.16(2) (b). Further, he argued that it is beside the point whether the decision of the Tribunal is the final one the Tribunal could give under the Act.

He referred to The Queen v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd. (1953-54) 88 C.L.R. 100 at pp.112, 117, 122; Halsbury's Laws of England 4th ed. vol. 1, under the title "Administrative Law" paras. 135-136; Riordan v. The Parole Board of the Australian Capital Territory, 3 ALD 144; Director-General of Social Services v. Chaney 3 ALD 161 (Chaney); "Review of Administrative Action" (Whitmore and Aronson) pp.419.420.

Counsel for the Chairman, Industries Assistance Commission, supported the objection to competency. He submitted the application to this Court was wholly premature, one taken to circumvent the appeal to the Tribunal by Applicant and before it had completed its statutory duty. He argued that the terms of s.15 of the Act are fundamental to any application by the Applicant in the respect of the AD(JR) Act; that the decision complained of must be a decision not proposed, not required but made (i.e.completed) under an enactment i.e. the Act; that s.5(1) of the AD(JR) Act indicates a contrary intention to that part of the definition of "decision to which this Act applies" which includes a decision "proposed to be made", "required to be made".

He noted that s.15(1) of the Act gave an appeal to the Tribunal against the making (as he emphasised) of a purported redeployment declaration, valid or invalid; that the Tribunal may decide in its hearing whether the declaration is valid; that it has a duty to confirm, revoke or revoke and make a redeployment declaration in respect of another employee. See s.15(2). Further, he argued that the decision had to be one of "ultimate or operative" nature, that is a decision "final and conclusive" of the issues between the parties. He referred to the word "determining" in s.15(3) and to sub-ss.(5), (6) and (7) of s.15 as supporting that argument. He argued (and I paraphrase) the import of the word "unable" in Clause 29(2)(b) ought not be considered out of the context of e.g. s.7 and the words therein "efficient and economical use of . . . . services of . . . . persons employed . . . ." i.e. that a Permanent Head may, consistent with economic use of the services of persons employed, find himself unable to place a particular employee in a vacancy even if of equivalent classification; that the words of the majority expressed in para. 8 of the extract in evidence indicated that there had been no final ruling on the redeployment declaration; and a consideration of para. 9 indicates that their observations were in response only to what is referred to as the "primary submission" i.e. which was that Clause 29 required that the Applicant on redeployment was entitled to be placed in any vacant position of equivalent classification irrespective of what qualifications it demanded; that, anyway, the majority in para. 10 indicates that it was not either confirming or revoking the declaration at that stage; s.15 of the Act, he said, supported that once an appeal is lodged the Tribunal has a duty e.g. to confirm or revoke the redeployment declaration, but before so doing (or maybe in the process of so doing) it has a duty to hear and determine the appeal; not merely to hear part of and reach some interlocutory conclusion. Thus, he argued, the only decision against which there can be an appeal is one "final and conclusive" between the parties. He contended - referring to the account of events before the Tribunal - that, anyway, no decision of any nature had been made in relation to the redeployment declaration.

Part of the Tribunal's task was, or might be, to pronounce upon the validity of the redeployment declaration; this was within its jurisdiction. He referred to Brian Lawlor Automotive Pty. Ltd. and Collector of Customs (New South Wales) (1976-1978) 1 ALD 167 at pp.179, 180, and the appeal heard in that matter reported (1978-1980) 2 ALD 1 at pp. 4, 5. It followed, he said, that conduct (s.6(1)) for the purpose of making and giving a decision, not being a decision to which the AD(JR)Act applies, was not subject to review pursuant to that section. Further, he said, that s.6(1) could not allow a review of "proposed conduct" which was, as here, no more than a performance by the Tribunal of its statutory duty to hear etc. pursuant to s.15 of the Act. There was nothing, he submitted, to show that the Applicant was a person "aggrieved" or one whose interests were adversely affected by his proposed conduct. He referred to Melbourne Stevedoring case (earlier cited at p.18) at pp. 117, 119, 122 and 123. Further, he argued, that it was not correct to say, as had been alleged in Particulars, that the Tribunal had given effect to or upheld an invalid redeployment declaration; and that the relevant (reviewable) conduct could not, for the purpose of this appeal, be that of the Chairman of the Industries Assistance Commission. Any application for an order in respect of "conduct" should therefore be dismissed. A consideration of the Act Part 11 - Redeployment of Employees - suggests to me that the dominant purpose of that Part is expressed in s.7(1)(a), omitting reference to prescribed authorities, i.e.

to ensure that each Department so operates as to make efficient economic use of the services of the persons employed - so far as practicable
and then, as part of the attainment of that object - and perhaps subservient to it (s.7(1)(b)).
to ensure that each employee thereof whose services consistently with the achievement of the first object cannot reasonably be used in the Department because -

he is one of a surplusage; or in consequence of physical or mental incapacity incapable of performing his duties.

(I need not refer to s.7(1)(iii)).

is redeployed.

(emphasis is mine).
It would be an odd result that where the talents of a person employed could not reasonably be used consistent with economical use of his services in a department, such a person could then claim on redeployment to be placed in a position which demanded specialist ability - such as that of a plumber - when the redeployed one had no such skill. Presumably if he was so placed he would have again to be redeployed. It seems curious if, when the Act sets out to ensure that e.g. each prescribed Commonwealth authority, to the greatest extent possible, operates so as to make efficient use of employees' services, that object may be governed or reduced, even impeded, by administrative procedures set out in a notice. And when the word "unable" is given its meaning, not forgetting s.7(1) of the Act, I do not accept that on what has emerged, the Chairman has disregarded procedures. That the administrative procedures will not limit or frustrate the objects set out in s.7(1) is recognised in s.8(3).

These observations may not be determinative of the result in the hearing before me. They are in response to arguments offered.

I have been assisted by a consideration of authorities cited as to the meaning of "decision" and, in particular, with respect, by the observations of Deane J. in Chaney at p.180. Interestingly, the "Shorter Oxford English Dictionary" gives as one of the meanings -
". . . judgment: esp. one formally pronounced in a court of law . . . . "
See also "The Dictionary of English Law", Jowitt, where more succinctly the meaning is "a judgment"; "Ballentines Law Dictionary" 3rd Ed. and "Black's Law Dictionary" 5th Ed. are to the same effect, though not so terse. However, it is not my task to analyse the intrinsic quality of the word or proceed to mark the boundary where begins, e.g. a tentative inchoate view and where ends an ironclad irreversible determination; rather, I have to decide whether what the majority have said is within the meaning of the AD(JR)Act, correctly to be described as a decision and then could be one to which that Act applies.

I consider that the majority here have done no more than give a ruling, necessarily interim, on a view they have formed of an argument. This is not a "decision", still less one of an "administrative character". Nor do I read the majority's words as having expressed a concluded view about even "jurisdiction" or that it claimed "jurisdiction to proceed". That word does not appear in the summary of argument attributed to Applicant's Counsel, Mr. Doyle. The majority have, I consider, after giving a ruling, then merely recorded an intention to resume the hearing of the appeal which they undertook on the requirement of the Applicant. Again, there is there, no decision or anything to be relevantly described as of "administrative character".

Since there has been no more than an interim ruling, and there has arisen a statutory obligation, by s.15(2) of the Act which the Applicant has invoked, I do not agree that an intention to resume the hearing of the appeal initiated by Applicant, or that resumption, is relevantly to be described as "conduct" which is susceptible of review.

Despite the concession, with respect, I do not agree that the Applicant is a person presently "aggrieved" by the interim ruling or (if it be "conduct") the present intention to resume the hearing. The Applicant has not been shown to be a person whose interests are or would be adversely affected either by the interim ruling or by the taking of evidence by the Tribunal or it otherwise doing any act for the purpose of or preparatory to making an ultimate decision.

I refuse to make, at least at this stage, the Orders sought by the Applicant numbered 1 to 5.

The Orders I make are -
1. The objection as to competency is upheld.

2. The Applicant is to pay the costs of and incidental thereto.

3. Either side is to have liberty to apply as to any further hearing of the Application for an order of review on 2 days' notice.