Secretary, Department of Foreign Affairs and Trade v Boswell
[1992] FCA 467
•03 JULY 1992
Re: THE SECRETARY OF THE DEPARTMENT OF FOREIGN AFFAIRS AND TRADE
And: SUSIE BOSWELL
No. N G283 of 1992
FED No. 467
Administrative Law
(1992) 108 ALR 77
(1992) 28 ALD 151 (extract)
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Sheppard(1), Hill(2) and Cooper(3) JJ.
CATCHWORDS
Administrative Law - judicial review - decision of delegate of Secretary of Department of Foreign Affairs and Trade not to confirm probationary appointment of respondent to Australian Public Service - application by respondent for reasons of delegate for his decision - whether respondent entitled to reasons - whether decision a decision relating to the making of an appointment in the Australian Public Service.
Administrative Decisions (Judicial Review) Act 1977, ss. 3, 5, 13 and Schedule 2, subpara. (t)(i).
Public Service Act 1922, ss. 42, 47.
HEARING
SYDNEY
#DATE 3:7:1992
Counsel for the Appellant: Mr A.H. Slater
Solicitors for the Appellant: Australian Government Solicitor
The Respondent appeared in person.
ORDER
THE COURT ORDERS THAT:-
1. The appeal be dismissed.
2. The respondent have liberty to apply for an order that her costs of the appeal be paid by the appellant provided that any such application is made in writing delivered to the Associate to Sheppard J. on or before 17 July 1992.
3. The respondent's notice of motion filed on 19 May 1992 in matter No. G592 of 1991 be dismissed.
4. There be no order as to the costs of that notice of motion.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an appeal from a judgment of a judge of this Court (Beaumont J.) delivered on 1 May last. The judgment was delivered in relation to an application made by the respondent, who was an applicant for judicial review, for reasons for the decision of the appellant made on or about 30 August 1991 to terminate the respondent's employment pursuant to s.47 of the Public Service Act 1922. By an application dated 27 September 1991 the respondent has applied for the review, pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977, of the appellant's decision. In order to assist her in the prosecution of her claim the respondent applied, pursuant to s.13 of the Judicial Review Act, for the appellant's reasons for his decision. These were refused because, so the appellant contends, he is not obliged to provide them by reason of the provisions of subsec.13(11) and Schedule 2 of the Judicial Review Act. Pursuant to subsec.13(11) the expression "decision to which this section applies" used in subsec.13(1) means a decision to which the Act applies (see s.3) but does not include, inter alia, a decision included in any of the classes of decision set out in Schedule 2. Schedule 2 includes in subpara. (t)(i) decisions relating to the making of appointments in the Australian Public Service.
There was utility in his Honour deciding the matter notwithstanding a submission which will be relied upon by the respondent when the application for judicial review is heard that, by the time she received notice of the decision of which she complains, she had become a member of the permanent Commonwealth Public Service with the consequence that the decision in question and notice to her of it had no effect. That is only one of the submissions upon which the respondent proposes to rely. The others assume that she had not become a permanent member of the Public Service at the time of the decision. It is in respect of these submissions that reasons, if the respondent is entitled to them, will become relevant.
In his Honour's judgment are set out a number of letters written to the respondent by officers of the Department of Foreign Affairs and Trade. I have taken these into account but essentially only two communications are relevant. These are an instrument of appointment under s.42 of the Public Service Act dated 27 July 1989 and the notice of termination earlier mentioned which was dated on or about 30 August 1991. The instrument of appointment was in the following terms:-
" PUBLIC SERVICE ACT 1922 INSTRUMENT OF APPOINTMENT UNDER SECTION 42 I, Francis Conynghame Murray, the officer for the time being occupying an office to which the Secretary of the Department of Foreign Affairs and Trade, has, by instrument in writing pursuant to Section 16 of the Act sub-delegated the powers and Functions delegated to him pursuant to Section 42 of the Act in respect of the appointment of an officer, hereby appoint subject to normal probation, Sue BOSWELL to the office of Journalist, Grade A1, $38908 - 40193, position number 2337, Overseas Information Branch, International Organisations, Information and Cultural Division, Central Office, Department of Foreign Affairs and Trade, Canberra with a salary of $38908 (plus VDT allowance, if applicable) with effect from the date of commencement of duty."
The instrument was signed by Mr Murray and dated 27 July 1989.
The notice of termination was as follows:-
" PUBLIC SERVICE ACT 1922 TERMINATION OF APPOINTMENT Pursuant to Section 47 of the Public Service Act, the appointment of Ms Susie Boswell, Journalist Grade A1, Department of Foreign Affairs and Trade is hereby terminated with effect from close of business on 30 August 1991. (Signed)
(G.J. Forrester)
Delegate of the Secretary"
Section 42 of the Public Service Act provides for the appointment of officers to the public service other than Secretaries of Departments.
Subsection 42(1) provides that, subject to Part III of the Act, the Public Service Board may appoint a person to a particular office in the public service or as an unattached officer in the service.
The critical section in question here is s.47 which, so far as relevant, is as follows:-
"47.(1) Subject to subsection (2), the appointment of a person to the Service as an officer (other than a Secretary) shall, in the first instance, be an appointment on probation. ........ ........ ........ ........ ........ ........ ...
(3) The Board may, at any time within the period of 6 months after an officer is appointed to the Service on probation, confirm the appointment.
(4) The relevant Secretary may, at any time after an officer is appointed to the Service on probation and before the appointment is confirmed, terminate the appointment.
(5) The relevant Secretary may, at any time after the end of the period of 6 months after an officer is appointed to the Service on probation, confirm the appointment.
(6) Where, at the end of the period of 12 months after an officer is appointed to the Service on probation, the appointment has been neither confirmed nor terminated, the relevant Secretary shall, as soon as practicable, confirm or terminate the appointment.
(7) Where, at the end of the period of 2 years after an officer is appointed to the Service on probation, the appointment has been neither confirmed nor terminated, the appointment shall (unless the officer is not an Australian citizen) be deemed to have been confirmed. ........ ........ ........ ........ ........ ........ ......
(11) A Secretary may, under subsection (4) or (6), terminate an officer's appointment to the Service on any of the following grounds:
(a) that the Secretary is not satisfied, after receiving a report from an authorised medical practitioner, as to the officer's health and physical fitness;
(b) that the Secretary considers, after receiving a report from the officer's supervisor or another appropriate officer, that the manner of the officer's performance of duties has not been satisfactory;
(c) that the Secretary considers that the officer is not a fit and proper person to remain an officer of the Service;
(d) that the Secretary is satisfied that the officer is an excess officer;
(e) in the case of an officer who is not an Australian citizen, that the Secretary is satisfied:
(i) that the person has been refused Australian citizenship;
(ii) that the person is unlikely to be granted Australian citizenship within a reasonable time; or
(iii) that the person is not seeking a grant of Australian citizenship with appropriate diligence.
(12) An officer whose appointment has been terminated is not, unless the Board otherwise determines, eligible for appointment to the Service within the period of 12 months immediately after the termination. ........ ........ ........ ........ ........ ........ ..."
Of the subsections I have omitted to quote, it is only necessary to mention subsec. (2) which provides for the circumstances in which the Public Service Board may appoint a person to the Public Service without probation. The provisions of that subsection are not relevant to the circumstances of this case.
It is to be observed that the appointment of the respondent to the Public Service was terminated almost two years after the appointment was made. We were told, during the course of the argument, that the respondent had commenced duties on 4 September 1989. The termination took effect on 30 August 1991. Those are the facts which should be accepted for the purposes of determining the question now at issue but in adopting that course, I am not to be taken as shutting the respondent out of any argument she may wish to present, when the application for judicial review is heard, that a period of more than two years had elapsed after her appointment. The significance which such a situation would have for the respondent's position is to be seen in subsec.47(7). If, at the end of the period of two years after the respondent was appointed on probation, the appointment had been neither confirmed nor terminated, the appointment would be deemed to have been confirmed.
Upon the basis that this is not a case covered by subsec.47(7), it must be a case which is covered by subsec. 47(4) which empowers the Secretary, at any time after an officer has been appointed to the Public Service on probation and before the appointment is confirmed, to terminate the appointment. Subsection (4) has to be read in conjunction with subsec. (6) which requires the Secretary, where an appointment has been neither confirmed or terminated at the end of the period of 12 months after appointment on probation, to confirm or terminate the appointment.
The question of statutory construction which is involved is in short compass. Pursuant to the provisions of para. (t) of Schedule 2 to the Judicial Review Act, the respondent will not be entitled to reasons if the decision to terminate her employment is nevertheless a decision relating to the making of an appointment in the Public Service. The respondent's case is, of course, that the decision in question is not a decision relating to the making of an appointment but a decision relating to the termination of an appointment. But in the submission of counsel for the appellant that overlooks the framework provided for in s.47 for the appointment of persons to the Public Service. Usually any such appointment will be an appointment on probation. Accordingly, the appointment process is not complete until a person is confirmed in the appointment. A person may remain on probation for as long as two years as the provisions of subsec.47(7) show. Thus, so it was submitted, although the decision in question was a decision which operated to terminate the appointment, it was in reality a decision not to confirm it. In this sense the decision was properly described as one relating to the making of an appointment.
The point in question is not without its difficulties. No help is to be obtained from an examination of the surrounding paragraphs of Schedule 2 or by reference to the Explanatory Memorandum which was circulated at the time para. (t) of Schedule 2 was enacted. That occurred as a consequence of the Administrative Decisions (Judicial Review) Amendment Act 1980 which came into force on 1 September 1980. It made extensive amendments to s.13 which included the insertion of subsec. 13(11). Schedule 2 to the Judicial Review Act was then added.
At that time the Schedule stopped with para. (u) which excluded from the operation of s.13 decisions in connection with the prevention or settlement of industrial disputes or otherwise relating to industrial matters in respect of the Australian Public Service. Since the amending Act in 1980, further paragraphs have been added to Schedule 2. Paragraph (w) refers, inter alia, to decisions relating to the making or terminating of appointments of Secretaries (i.e. of Departments) under the Public Service Act. Paragraph (y) refers, inter alia, to decisions relating to employing, or terminating the employment of, staff under the Members of Parliament (Staff) Act 1984. These provisions were inserted into the Schedule as a consequence of the enactment of the Public Service Legislation (Streamlining) Act 1986; see s.133.
I do not think that it is appropriate to construe para. (t) of the Schedule by reference to the language of paras. (w) and (y). I think that to do so would overlook the fact that those paragraphs deal with different legislative provisions expressed differently from those in question here and inserted into the Schedule at a later time, by legislation which was perhaps prepared by a different draftsman and which came before a differently constituted Parliament.
Thus one comes back to the language in question. Is a decision made pursuant to subsec. 47(5) of the Public Service Act a decision relating to the making of an appointment in the Public Service? His Honour thought that it was not. Amongst other things his Honour said:-
"The instrument headed 'Termination of Appointment' purported not to confirm the probationary appointment, but to terminate it. (Its efficacy is a matter for the final hearing.) In its terms, the instrument purported to terminate the appointment. It is impossible, in my view, even if 'relating to' is to be widely construed (in its proper context - see Tooheys Limited v. Commissioner of Stamp Duties (N.S.W.) (1961) 105 CLR 602) to regard this act of termination as an appointment, or as relating to an appointment."
In my opinion, his Honour's conclusion was correct. Subsection 47(1) of the Public Service Act provides that the appointment of a person to the Public Service shall in the first instance be an appointment on probation. Thus all appointments made pursuant to s.42 are, subject to the operation of subsec.47(2), probationary appointments. But they are appointments nevertheless. Subsection 47(4) provides, not for the appointment or the confirmation of an appointment of a person, but for the termination at any time of a probationary appointment. That is the provision pursuant to which the Secretary acted in this case. Such a decision could only be lawfully made on one or more of the grounds specified in subsec.47(11). It was faintly suggested in argument that the Secretary retained an overriding power to terminate a probationary appointment, but in my opinion, the section should not be so construed. The presence of subsec. 47(11) is a plain indication that a probationary appointment may only be terminated on one or more of the grounds which it specifies. The very expression "on probation" reinforces that view.
It follows that, altlhough an initial appointment is probationary, it is not an appointment which may be brought to an end without cause. Thus a person whose appointment is probationary has an appointment which has a degree of security about it. It is not an appointment which may be terminated simply because the Secretary, in the exercise of some unspecified discretion, thinks it appropriate to take that course. Termination will adversely affect the expectation which an appointee may reasonably have that his probationary appointment will in due course of time be confirmed.
I conclude, therefore, that the decision in question ought not be viewed as one whereby a probationary or provisional appointment was not confirmed, but as one which terminated an existing appointment. It was thus a decision which related to the termination of an appointment and not a decision which related to the making of the appointment itself. The language of subsec.47(4) and the relevant parts of subsec. 47(6) constitute the language of termination, not appointment. Similarly, the language of the instrument of termination is not the language of appointment or confirmation of an appointment.
In the result I would dismiss the appeal.
The decision at which I have arrived avoids the necessity to consider a notice of motion relied upon by the respondent. It was heard before the appeal was embarked upon. We reserved our decision upon it. The motion sought an order that leave to appeal granted by his Honour on 15 May 1992 be rescinded or revoked. In the circumstances the matters relied upon by the respondent in support of the notice of motion do not require consideration. The notice of motion should be dismissed.
I would not at this stage make any order for costs because the respondent was unrepresented. If she desires to make application for costs, she should make any such application in writing delivered to my Associate within 14 days.
JUDGE2
The appellant, the Secretary of the Department of Foreign Affairs and Trade, appeals, pursuant to leave granted by Beaumont J on 15 May 1992, against a decision of his Honour holding that the respondent's decision terminating the appointment of the applicant, Ms Boswell, was not a decision within para (t) of Schedule 2 of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act").
In granting leave to appeal, his Honour reserved to Ms Boswell liberty to apply to the full court for the rescission of that leave. Pursuant to that reservation, Ms Boswell moved the court to rescind the grant to the appellant of leave to appeal. After hearing argument from both parties we announced that we would reserve our decision on that matter and proceed with a hearing of the main appeal on the basis that we would, at a later time, rule on the question of rescission and in the event that leave were not rescinded we could at the same time proceed to give reasons in respect of the appeal.
Ms Boswell was unrepresented before us. However, before Beaumont J leave was given to senior counsel for the Public Sector Union ("the Union") to make submissions as amicus curiae. Those submissions were in writing and we have had the advantage of considering them in addition to the oral submissions which Ms Boswell has advanced to us.
In my view the present is clearly a matter appropriate to the grant of leave to appeal. It involves a simple but important issue of statutory construction. It could potentially apply in a large number of cases. It is significant that the matter be decided at this stage of the proceedings between the parties. If a statement of reasons is to be provided to Ms Boswell and is then admitted in evidence it may be difficult thereafter for the appellant to exercise an effective right of appeal. At the least, a decision at that stage of the proceedings that the Court had no power to compel the production of a statement of reasons could have the consequence of requiring a new trial of the substantive issues, should there be an appeal which resulted in a ruling that no reasons should have been required to be supplied.
Ms Boswell advanced a number of reasons why the leave granted by Beaumont J should be rescinded. It was said that Schedule 2 to the ADJR Act was about to be repealed. A recommendation that it be repealed was made by the Administrative Review Council in its report to the Attorney-General Number 33 entitled "Review of the Administrative Decisions (Judicial Review) Act: Statements of Reasons for Decisions" presented to the Attorney-General, the Honourable Mr Duffy, on 14 February 1991. It may well be that that recommendation will in due course be implemented by Parliament. However, the situation is that there is presently no legislation pending before Parliament to amend the ADJR Act, nor indeed is there any announcement by the Attorney that that course will be adopted.
Ms Boswell submitted also that she had refrained from opposing the grant of leave to appeal on a false basis, namely that the arguments on her side would be put by counsel appointed as amicus curiae and that she was now aware that the Union no longer wished to be heard on the appeal. Reference was made also to an affidavit that had been read before Beaumont J on the application for leave and which related to the possibility that the information desired to be obtained by Ms Boswell could be obtained by her under the Freedom of Information Act.
I have carefully considered the submissions made by Ms Boswell but I am of the view that the matters she puts are outweighed by the general importance of the issue and the role which the supply of reasons may play in the litigation between the Secretary and her.
Accordingly I am of the view that the leave granted by Beaumont J should not be revoked.
The facts relevant to the application for reasonsThe facts relevant to Ms Boswell's application under s.13 of the ADJR Act may be shortly stated. On 27 July 1989 an appointment was made of Ms Boswell in the following terms:
"I, Francis Conynghame Murray, the officer for the time being occupying an office to which the Secretary of the Department of Foreign Affairs and Trade, has, by instrument in writing pursuant to Section 16 of the Act sub-delegated the powers and Functions delegated to him pursuant to Section 42 of the Act in respect of the appointment of an officer, hereby appoint subject to normal probation, Sue BOSWELL to the office of Journalist, Grade A1, $38908 - 40193, position number 2337, Overseas Information Branch, International Organisations, Information and Cultural Division, Central Office, Department of Foreign Affairs and Trade, Canberra with a salary of $38908 (plus VDT allowance, if applicable) with effect from the date of commencement of duty."
Ms Boswell commenced duty on 4 September 1989.
On 14 August 1991 a letter was written by Mr Forrester, the First Assistant Secretary, Corporate Management Division of the Department to Ms Boswell in the following terms:
"I refer to your probationary appointment to the Australian Public Service as a journalist A1. You will be aware that confirmation of your appointment is dependent upon satisfactory conduct and work performance during the probationary period. I have received a recommendation from your supervisor that your appointment should be terminated because aspects of your conduct and work performance have been unsatisfactory. I have attached copies of the recommendation and supporting information. Before a decision is taken, you have the opportunity of providing written comments on the recommendation.
Your comments should reach this office within 2 weeks of the date of this letter; otherwise a decision will be taken on the information currently available.
You should note that the Public Service Act does not provide a right of appeal against a decision to terminate a probationary appointment."
On 30 August 1991 Ms Boswell received a notice in the following terms:
"Pursuant to Section 47 of the Public Service Act, the appointment of Ms Susie Boswell, Journalist Grade A1, Department of Foreign Affairs and Trade is hereby terminated with effect from close of business on 30 August 1991."
It is the decision contained in the last mentioned notice which is the subject of Ms Boswell's application for judicial review to this court. She seeks the statement of reasons under s.13 of the Administrative Decisions (Judicial Review) Act in aid of those proceedings. If the relevant decision be a decision included in any of the classes of decision set out in Schedule 2 of that Act, the provisions of s.13 have no application to it: see s.13(11) and s.13(1).
Paragraph (t) of Schedule 2 is in the following terms:
"decisions relating to-
(i) the making of appointments in the Australian Public Service or any other Service established by an enactment or to the staff of a Commonwealth authority;
(ii) the engagement of persons as employees under the Public Service Act 1922 or under any other enactment that establishes a Service or by a Commonwealth authority; or
(iii) the making of appointments under an enactment or to an office established by, or under, an enactment;"
The short question, therefore, is whether the decision reflected in the Notice of 30 August 1991 to terminate Ms Boswell's appointment to the Australian Public Service was a decision relating to the making of an appointment in the Australian Public Service.
It must, at the outset, be conceded that the expression "relating to" can signify great width of association. Lord Macnaghten in Inland Revenue Commissioners v Maple (1907) AC 22 at 26 said of it:
"There is no expression more general or far-reaching than that."
Mason J referred, in Fountain v Alexander (1982) 150 CLR 615 at 629, to the expression as being "of wide and general import", remarking that it
"should not be read down in the absence of some compelling reason for so doing"
The width of the association which the expression requires will, however, be dependent upon the context in which it is used: Tooheys Limited v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602 at 620. That context presently requires consideration both of the Public Service Act (1922) and of the Judicial Review Act.
Appointment as an officer of the Australian Public Service (other than a Departmental Secretary) is dealt with in Subdivision C of Division 4 of the Public Service Act. Appointment, in the first instance, is required to be by way of "probation": s.47(1), although in certain cases an appointment may be made by the Public Service Board without that appointment being on probation: s.47(2). A probationary appointment may be confirmed at any time within six months after the appointment: s.47(3), or indeed thereafter: s.47(5) and (6), within a period of two years after the probationary appointment. Before the appointment has been confirmed, the relevant Secretary to the Department may act to terminate it: s.47(3). Sub-sections 6 and 7 then provide:
"(6) Where, at the end of the period of 12 months after an officer is appointed to the Service on probation, the appointment has been neither confirmed nor terminated, the relevant Secretary shall, as soon as practicable, confirm or terminate the appointment.
(7) Where, at the end of the period of 2 years after an officer is appointed to the Service on probation, the appointment has been neither confirmed or terminated, the appointment shall (unless the officer is not an Australian citizen) be deemed to have been confirmed."
Termination of an officer's appointment by the Secretary is limited to certain specified grounds, including matters going to health and physical fitness, unsatisfactory performance of duties and the formation of the view by the Secretary that the officer is not a fit and proper person to remain an officer: s.47(11). These provisions are in contrast to the detailed provisions for the dismissal of officers contained in Division 6 of the Public Service Act. A person who is appointed on probation to the service nevertheless is an "officer", so that the disciplinary provisions of Division 6 apply equally to that person in the period from appointment on probation: see definition of "officer" in s.7(1). Indeed, so far as I can discover, nowhere other than in s.47 does the Act differentiate between persons whose appointments are probationary and those where the appointment has been confirmed.
The argument of the appellant that the present decision is one relating to the making of an appointment, stresses that in the public service, having regard to the provisions of the Public Service Act, an appointment, in at least the generality of cases, involves a process which commences with the appointment on probation and concludes either with the termination of the appointment or its confirmation. So seen, a decision to terminate is, it is submitted, as much a decision relating to the appointment of an officer on probation as is the decision to confirm the probationary appointment.
The argument fails, in my opinion, to give sufficient weight to the language of paragraph (t) of Schedule 2. While in a loose way it can be said that the termination of an appointment to an office is an act which relates to the appointment to that office, it would more normally be characterised as an act which relates to the termination of that appointment. However, what paragraph (t) is concerned with is whether the decision in question relates to the making of the appointment. The fact that the appointment is one on probation does not mean that the appointment is made when the appointment is confirmed. The "making" of the appointment occurs at the outset.
Therein lies the fallacy in the appellant's argument. It was put in the written submissions that :
"A probationer does not finally hold the office concerned until the appointment is confirmed."
However, so put the submission conceals the real legal situation. A probationer holds the office to which he or she is appointed from the time the probationary appointment is made and it is not to the point that the appointment to the office is capable of termination prior to the appointment being confirmed either by specific act of the Board or the relevant Secretary, or by effluction of time. As Mason J, with whose judgment Barwick C.J. and Gibbs J agreed, said in R v Gorman, (1979) 24 ALR 609 at 613, albeit in the context of similar provisions in the Broadcasting and Television Act 1942 (Cth):
"In the absence of a contrary direction, every appointment of an officer to the service of the Commission is initially on probation (s.54). A person so appointed is not a temporary employee during the period of his probation; he is an officer, but his appointment does not become permanent unless and until his period of probation expires without termination of his appointment."
Some confirmation that paragraph (t) does not operate to exclude from the requirement to provide a s.13 Statement the case of a decision terminating a probationary appointment may be gleaned from a consideration of the history of Schedule 2 and the policy enshrined in that Schedule. It must, however, be said that the Schedule contains a somewhat heterogenous grouping of decisions from which it may be thought hard to derive a coherent indication of policy.
As originally framed, the Administrative Decisions (Judicial Review) Act contained neither specified exclusions of decisions from review, nor exclusions from the requirement that the decision maker, if required by a timely request, provide a statement of reasons. It did, however, contemplate that regulations might proclaim a class or classes of decisions which would be excluded from the class of decisions to which that Act applied. Thus the obligation to give reasons was coextensive with the ambit of judicial review.
Following upon a report of the Administrative Review Council as to which matters might appropriately be excluded from review, the Act was amended by the Administrative Decisions (Judicial Review) Amendment Act 1980 which inserted both Schedules 1 and 2 into the Act. In his Second Reading Speech to the amending Act, the then Attorney-General, Senator Durack, reported that an investigation conducted by the Administrative Review Council had identified circumstances where it would not be appropriate to require reasons to be provided, but where, nevertheless, the withdrawal from judicial review would not be "proper". He said (Hansard, Senate, 21 May 1980, at 2573):
"The inappropriateness of requiring written reasons to be given will generally arise by reason of the nature of the decision in question... It therefore became clear that the Act ought to be amended to allow some classes of decisions to be excluded from the obligation to give reasons without, at the same time, excluding those decisions from review by the Federal Court."
Having regard to the policy behind the ADJR Act, it is difficult to comprehend the lack of congruence between the ability of a person affected by an administrative decision to obtain reasons and the scope of judicial review. At common law there is no obligation imposed upon a decision maker to give reasons: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 660. The inability to obtain reasons, significantly confined the circumstances where judicial review through the prerogative writs could be successfully obtained to those cases where there was "a record", on the face of which error appeared. The power of the court to order discovery did not overcome the difficulty: Kioa v West (1985) 159 CLR 550, at 625 per Brennan J.
The ADJR Act was remedial legislation. Together with the Administrative Appeals Tribunal Act 1975, the Ommbudsman Act 1976 and the Freedom of Information Act 1982 it created a revolution in administrative law by opening up a wide field of administrative decision making to the scrutiny of judicial review and in so doing improved the quality, fairness and rationality of the process of decision making, thereby ensuring that administrative decisions are made in accordance with the law. As remedial legislation it should be given an interpretation which would effect its evident purpose: cf Re Australian Institute of Marine and Power Engineers (1986) 71 ALR 73 at 79 per Gummow J.
Critical to the scheme of the ADJR Act was s.13. In Burns v ANU (1982) 40 ALR 707, Ellicott J adopted as stating some of the rationale behind s.13, what was written by the Administrative Review Council in Statement of Reasons: An Explanatory Memorandum para 9. As paraphrased by his Honour, these included:
"(a) to overcome the real grievance persons experience when they are not told why something affecting them has been done;
(b) to enable persons affected by a decision to see what was taken into account and whether an error has been made so that they may determine whether to challenge the decision and what means to adopt for doing so."
In Minister for Immigration v Taveli (1990) 94 ALR 177 at 201, I summarised the significance of s13 to the ADJR Act in the following words:
"Without reasons which make intelligible the true basis of the decision (cf ARM Constructions Pty Ltd v DCT (1986) 65 ALR 343 at 349 (Burchett J)) a person affected by an administrative decision will not know the matters that the decision-maker has taken into account and often will not be able to determine whether an error has been made in the decision-making process. By requiring a decision-maker to set out his findings on material questions of fact by reference to the evidence or other material on which those findings were based and by requiring the decision-maker to give reasons for the decision, s.13 of the ADJR Act enables the person affected by the decision to understand the basis upon which the decision was made and, by exposing the process of reasoning, permits that person or his advisers to assess whether the decision should be accepted or challenged..."
The policy behind s.13 is discussed also in the judgments of Davies J (at 179) and French J (at 192-4) in that case.
The exclusions from the obligation to provide reasons set out in Schedule 2 run counter to this policy. While each of the paragraphs in the Schedule must be construed in accordance with its ordinary English meaning and so construed given effect to, this does not mean that the court should adopt an overly liberal interpretation or construe each exclusion broadly.
The Administrative Review Council's Report No.33 to the Attorney-General cited at p40 four arguments said to have been advanced by administrators against a general requirement to provide reasons for all decisions subject to judicial review under the ADJR Act. According to the Report these are:
"* the workload involved; * the need to protect confidential or otherwise sensitive information; * the use of section 13 requests in a frivolous or vexatious manner in an attempt to hinder the effective operations of an agency;
* the unfair position in which government bodies in competition with private enterprise organisations would be placed if the former were to be bound to reveal the basis for their commercial decisions."
Of these four arguments, only the second and fourth could throw light on the exclusion contained in paragraph (t). Information taken into account in the making of an appointment to any office or position would often be confidential and almost always sensitive. To some extent, protection against the disclosure of confidential information is afforded by s13A inserted into the ADJR Act in 1980 contemporaneous with the insertion of Schedule 2 containing, inter alia, paragraph (t). A decision-maker contemplating the making of an appointment might, for example, take into account references from previous employers, or others, as well as assessments which he or she made of competence, presentation and ability. It would be invidious if a disappointed applicant could have access to all such material through the mechanism of a s.13 Statement. Certainly it would place a public employer in a significantly worse position than a prospective private employer, which is a matter which might fall within the fourth argument.
Thus although the act of appointing an officer to the Public Service could still be the subject of judicial review under the ADJR Act the legislative policy of denying a prospective litigant the opportunity of perusing a statement of reasons is, if not admirable, at least understandable.
Decisions whereby an appointment is terminated stand in a different category. While there is no general statutory criterion against which appointments to the public service are to be implemented, the dismissal of an officer in contrast may only take place on relatively narrow and specified grounds. The same is true of the termination of the employment of an officer whose appointment is probationary.
Where an officer has been charged with misconduct, such as could lead to dismissal, an enquiry must be held unless the officer is given particulars of the misconduct and the misconduct is admitted. In the case of officers who are not Secretaries of Departments, there is an institutionalised process of appeal to the Disciplinary Appeal Committee culminating in written reasons for decision: s.63E(7), s.63G(5)(c), s.63Q.
No such appeal process is available for the termination of employment of an officer prior to the confirmation of his or her appointment (or for that matter for the termination of the services of officers who are also "employees", see eg s.82AH(1)). However, clearly, decisions in respect of both are subject to judicial review under the ADJR Act. Given that such terminations may be effected only on specified grounds, it can hardly be assumed that the legislature intended to render the right of judicial review of the termination of an employment practically nugatory, when the alternative construction is open, namely, that the legislature had no intention of restricting access to a Statement of Reasons in a case involving termination.
Resort to the surrounding paragraphs of the Second Schedule presents the difficulty that the only relevant paragraphs were inserted by legislation which postdated that inserting paragraph (t). But even if it be legitimate to take into account these paragraphs the result is far from conclusive. What they do show, however, is that when the legislature wished to exclude the supply of reasons for a decision involving the termination of employment, it did so specifically. Thus, paragraphs (w) and (y) of the Schedule read as follows:
"(w) decisions relating to the making or terminating of appointments of Secretaries under the Public Service Act 1922;
(y) decisions relating to-
(i) engaging, or terminating engagements of, consultants; or
(ii) employing, or terminating the employment of, staff, under the Members of Parliament (Staff) Act 1984;"
One may speculate that the reason for excluding the decisions specified in paragraph (y) from the classes of decision where a s.13 Statement will be required was the political nature of parliamentary staff appointments. The exclusion in paragraph (w) may have a similar motivation. Whatever the motivation, however, each of these paragraphs specifically deals with decisions relating to terminating employment, albeit that neither paragraph is concerned with the case of a probationary appointment.
The case of a decision confirming a probationary appointment may or may not fall within the category of a decision relating to the "making of appointment" of an officer. I do not find it necessary to decide the question for it is not likely to arise in practice. The person whose appointment is confirmed would hardly complain. Should the confirmation be challenged by someone else with standing, the provisions of s13A of the ADJR Act would ensure in most cases that confidential information relating to the office holder could not be supplied. Failure to confirm, without the further step of termination, would merely have the result that the appointment would be deemed to have been confirmed at the end of the two year probationary period.
It follows that I am of the view that Ms Boswell's motion must be dismissed and that the appeal must also be dismissed. I agree that at the present time no cost order should be made in respect of the appeal. In respect of Ms Boswell's motion, although it has been unsuccessful, it did not materially add to the costs of the appeal, and I am of the view that there should be no order as to costs made in respect of it.
JUDGE3
The appellant is the Secretary of the Department of Foreign Affairs and Trade. By letter dated 27 July, 1989 the respondent was appointed, subject to normal probation, to the office of Journalist, Grade A1, position number 2337, Overseas Information Branch, International Organisations, Information and Cultural Division, Central Office, Department of Foreign Affairs and Trade, Canberra. The appointment was made pursuant to section 42 of the Public Service Act 1922. The appointment was to take effect from the date of commencement of duty. The respondent commenced duty in the position 4 September, 1989.
On 30 August, 1991 by a document purporting to be given under Section 47 of the Public Service Act, the appointment of the respondent was terminated with effect from close of business on 30 August, 1991. The respondent has made an application for an order of review of that decision.
In the proceedings for an order of review the respondent sought a statement of reasons from the appellant pursuant to Section 13 of the Administrative Decisions (Judicial Review) Act 1977 ("the Act") for the decision to terminate her appointment. A preliminary objection was taken by the appellant at first instance that the decision was one to which Section 13 of the Act did not apply having regard to the terms of paragraph (t)(i) of Schedule 2 to the Act.
At first instance Beaumont J. ruled against the objection and made, inter alia, the following order :-
"Declare that the decision made in the instrument headed 'PUBLIC SERVICE ACT 1922 TERMINATION OF APPOINTMENT' being exhibit "A", is not a decision within paragraph (t) of Schedule 2 of the Administrative Decisions (Judicial Review) Act 1977".
The appellant appeals against the order made by His Honour and by the notice of appeal seeks that the whole of the judgment be set aside.
The appeal involves the construction of paragraph (t)(i) of the Schedule 2 to the Act. The schedule so far as is relevant provides:-
"CLASSES OF DECISIONS THAT ARE NOT DECISIONS TO WHICH SECTION 13 APPLIES.
.....
(q) decisions in connection with personnel management (including recruitment, training, promotion and organisation) with respect to the Australian Public Service or any other Service established by an enactment or the staff of a Commonwealth authority, other than a decision relating to, and having regard to the particular characteristics of, or other circumstances relating to, a particular person;
(r) decisions relating to promotions, transfer,s temporary performance of duties, or appeals against promotions or selections for temporary performance of duties of or by individual officers of the Australian Public Service;
(s) decisions relating to transfers or promotions under section 53A of the Public Service Act 1922;
(t) decisions relating to -
(i) the making of appointments in the Australian Public Service or any other Service established by an enactment or to the staff of a Commonwealth authority;
(ii) the engagement of persons as employees under the Public Service Act 1922 or under any other enactment that establishes a Service or by a Commonwealth authority; or
(iii) the making of appointments under an enactment or to an office established by, or under, an enactment; ......
(w) decisions relating to the making or terminating of appointments of Secretaries under the Public Service Act 1922;
(y) decisions relating to -
(i) engaging, or terminating engagements of, consultants; or
(ii) employing, or terminating the employment of, staff, under the Members of Parliament (Staff) Act 1984;"
Paragraphs (q), (r), (s) and (t) were inserted in the Schedule at the same time in 1980. Paragraphs (w) and (y) were inserted in the Schedule at a later date.
The Public Service Act 1922, so far as concerns this appeal, relevantly provides :-
"42.(1) Subject to this Part, the Board may appoint a person to a particular office in the Service (not being an office of Secretary) or as an unattached officer in the Service. .....
47(1) Subject to subsection (2), the appointment of a person to the Service as an officer (other than a Secretary) shall, in the first instance, be an appointment on probation. .....
(3) The Board may, at any time within the period of 6 months after an officer is appointed to the Service on probation, confirm the appointment.
(4) The relevant Secretary may, at any time after an officer is appointed to the Service on probation and before the appointment is confirmed, terminate the appointment.
(5) The relevant Secretary may, at any time after the end of the period of 6 months after an officer is appointed to the Service on probation, confirm the appointment.
(6) Where, at the end of the period of 12 months after an officer is appointed to the Service on probation, the appointment has been neither confirmed nor terminated, the relevant Secretary shall, as soon as practicable, confirm or terminate the appointment.
(7) Where, at the end of the period of 2 years after an officer is appointed to the Service on probation, the appointment has been neither confirmed nor terminated, the appointment shall (unless the officer is not an Australian citizen) be deemed to have been confirmed. .......
(11) A Secretary may, under subsection (4) or (6), terminate an officer's appointment to the Service on any of the following grounds:
(a) that the Secretary is not satisfied, after receiving a report from an authorised medical practitioner, as to the officer's health and physical fitness;
(b) that the Secretary considers, after receiving a report from the officer's supervisor or another appropriate officer, that the manner of the officer's performance of duties has not been satisfactory;
(c) that the Secretary considers that the officer is not a fit and proper person to remain an officer of the Service;
(d) that the Secretary is satisfied that the officer is an excess officer;
(e) in the case of an officer who is not an Australian citizen, that the Secretary is satisfied:
(i) that the person has been refused Australian citizenship;
(ii) that the person is unlikely to be granted Australian citizenship within a reasonable time; or
(iii) that the person is not seeking a grant of Australian citizenship with appropriate diligence.
(12) An officer whose appointment has been terminated is not, unless the Board otherwise determines, eligible for appointment to the Service within the period of 12 months immediately after the termination".
The appellant submits that section 47 of the Public Service Act provides for a statutory process which leads to appointment as a permanent member of the Australian Public Service. It was submitted that the statutory process involves as an integral part of it the making of a decision to either confirm or terminate the appointment. The appellant submitted that until that decision is made the process of appointment is not completed. In consequence, it was submitted, the decision to terminate was a decision "relating to ... the making of appointments in the Australian Public Service".
The power to appoint a person to a particular office, other than Secretary of a Department, in the Australian Public Service, subject to the other provisions of Part III of the Public Service Act, is provided for in section 42 of that Act. Although section 47(1) of that Act, generally speaking, operates to limit the power to appoint to an appointment on probation, the section was not designed to itself empower the board with the capacity to appoint. Section 47 was designed to ensure that :-
(a) every officer appointed to an office will serve a probationary period (section 47(1));
(b) the period of probation will be limited to a period of not more than two years (section 47(7);
(c) there is power in a relevant authority to confirm or terminate an appointment within the relevant probationary period.
The evident purposes for which the powers are to be exercised are discernible from section 47(11) of the Public Service Act which sets out the available grounds for termination of an officer's appointment to the Service during the probationary period, when read in conjunction with section 6 of that Act. Section 6 provides :-
"6. The chief object of this Act is to constitute a public service for the efficient, equitable and proper conduct, in accordance with sound management practices (including personnel management practices), of the public administration of the Australian Government and this Act shall be construed accordingly".
The probation period is provided to enable an assessment to be made of an officer's fitness to continue as an officer in the Service, having regard to the matters specified in paragraphs (a), (b) and (c) of section 47(11), being characteristics of, or other personal circumstances of the officer, the officer's status as an Australian citizen (section 47(11)(e)) or the personnel requirements of the Department (section 47(11)(d)).
The Public Service Act and the Broadcasting and Television Act 1942 (section 43, section 54) adopt a similar, although not identical, statutory scheme to achieve the same purposes. The observations of the High Court in R. v. Gorman, Ex parte Australian Broadcasting Commission (1979) 24 ALR 609 at 613 - 614 on the relevant provisions of the Broadcasting and Television Act support the analysis set out above.
An appointment under section 42 of the Public Service Act takes effect as an appointment on probation and remains so until :-
(a) the appointment is confirmed by the Board or the relevant Secretary as provided for by the section;
(b) the appointment is confirmed by the effluxion of 2 years (section 47(7)); or
(c) the appointment is terminated by the relevant Secretary in accordance with the section.
Immediately a person is appointed under section 42 of the Public Service Act the person becomes and remains an officer of the Service until that person's appointment is terminated under section 47 of that Act or the person resigns the appointment, either voluntarily or compulsorily, in accordance with that Act.
Properly characterised the exercise of the powers contained in sub-sections 47(3), (4), (5) and (6) of the Public Service Act involves a decision relating to the continued appointment of the relevant person as an officer of the Service. A decision to confirm, confirms the continued appointment thereafter in the Service. A decision to terminate brings to an end an existing appointment. The effect of either decision operates immediately and in futuro upon the appointment then held by the officer. This is illustrated by the language of sub-section 11 where the Secretary may "terminate an officer's appointment to the Service" and in paragraph (c) of the subsection where the words appear, "the officer is not a fit and proper person to remain an officer of the Service". (Emphasis added). The exercise of the power of confirmation under section 47 is not to make a fresh appointment. Nor is the power to terminate a decision not to re-appoint or confirm; it is the exercise of a power to dismiss.
The words "the making of appointments in the Australian Public Service" in paragraph (t)(i) of Schedule 2 to the Act, in their ordinary and usual sense in the context, mean, to make or effect an appointment in the Australian Public Service, ie. the doing of all acts and the taking of all decisions necessary to appoint a person to an office in that Service. Relevantly in the present appeal, the making of the appointment is lawfully accomplished by the exercise of the power of appointment contained in section 42 of the Public Service Act. In the context of paragraph (t)(i) of Schedule 2 to the Act and section 42 of the Public Service Act the making of an appointment is complete when the power of appointment is exercised and the appointee becomes the holder of the office.
The phrase "relating to" in the Schedule 2 of the Act requires that there be some connection between the two subjects to which the words refer. That is, that the "decision" must have some connection to the "making of appointments" in the sense of that phrase as stated above. The question is, "what degree of connection is required?". In Tooheys Ltd. v. Commissioner of Stamp Duties (NSW) (1960-61) 105 CLR 602, Taylor J. at 621 observed :-
"There can be no doubt that the expression "relating to" is extremely wide but it is also vague and indefinite. Clearly enough it predicates the existence of some kind of relationship but it leaves unspecified the plane upon which the relationship is to be sought and identified. That being so all that a court can do is to endeavour to seek some precision in the context in which the expression is used".
Importantly, the width of the term "relating to" must be determined by the context in which it appears and must be in accordance with the policy of the Act (Tooheys at 618, 620 - 621, 624, 629).
In my judgment, the term "making of appointments" limits the range of decisions falling within paragraph (t)(i) of Schedule 2 to the Act to those having a connection to the process which ends upon the making and implementing of a decision to appoint to an office. The policy reasons for the granting of an exception from the operation of section 13 of the Act to such decisions are clear. They are to enable the appropriate appointing authority to deal with a range of confidential information concerning a range of potential appointees in the sure knowledge that the information and determination process will remain confidential and to inhibit the disruption and disharmony likely to be caused if unsuccessful applicants were placed in a position to argue the validity of the considerations which moved the appointing authority to make the appointment. Additionally, it is to avoid, so far as is practicable, the appointment process being removed to the Court at the behest of a disappointed applicant for an office.
The personal consequences which attach to an unsuccessful applicant for appointment from a decision unfavourable to the applicant are limited to the disappointment of not being appointed. Ordinarily, a failure to be appointed would not reflect adversely on an unsuccessful applicant. The position is different where a question of termination arises. The grounds provided for under section 47(11) of the Public Service Act to terminate an appointment during the period of probation can involve a decision based upon the particular characteristics of, or other circumstances relating to, a particular person. Termination on the grounds in paragraphs (b) and (c) of subsection 47(11) carries with it an adverse inference as to the efficiency or character of the officer. Termination on the ground that the position is unnecessary having regard to the personnel needs of the department, is on the other hand perfectly innocent. Termination pursuant to section 47 precludes the officer from appointment to another office in the Service for a period of 12 months (section 47(12)). Having regard to the consequences to an officer whose appointment is terminated under section 47, there is every good reason as a matter of policy that an officer should be entitled to reasons as to the statutory ground and circumstances relied upon to terminate an appointment. It is hard to imagine, and none was advanced in argument, what policy objective would be advanced by denying an officer in those circumstances a right to reasons for the termination.
As I said earlier, the appellant submits that section 47 of the Public Service Act deals with appointments to the Service. As the decisions to confirm or terminate an appointment provided for under section 47 are part of a process leading to permanency in the Service, those decisions, it was submitted, materially touch upon or connect with the process by which appointments are made under the Public Service Act. In consequence such decisions fall within the scope of paragraph (t)(i) of Schedule 2 to the Act. The difficulty with these submissions is twofold: the first is that the subject matter of paragraph (t)(i) is "making appointments" and not appointments generally; the second is that a decision whether an appointment will mature into a permanent appointment or whether it will be terminated takes as its starting point an appointment which exists in fact and in law by the operation of section 42 of the Public Service Act. The termination of an existing appointment is the antithesis of making an appointment and the relevant connection in such a case is between the decision to terminate and the existing appointment and not otherwise.
In my judgment for reasons I have expressed above, an appointment is made when the power to appoint has been exercised under section 42 of the Public Service Act. Section 47 takes as its point of departure that the power under section 42 has been exercised. It is not relevant that the appointment is on probation because the Public Service Act does not contemplate that a further decision will be made to appoint a person to an office on a permanent basis as opposed to an office on probation. The only connection between the making of a decision under section 47 and the making of the original appointment is that section 47 assumes that the circumstances requiring the making of a decision exist viz. that the original appointment has been made. There is no policy reason why "relating to" should be given such a construction as would enable, for the purposes of paragraph (t)(i) a connection between acts or decisions underlying the assumption and the making of the decision to confirm or terminate, to be regarded as a sufficient connection. To the contrary, policy reasons would support a conclusion that the connection is too remote. Additionally, the ordinary meaning and grammatical sense of the phrase "decisions relating to the making of appointments" limits the range of decisions falling within paragraph (t)(i) to those which touch upon or connect with the process which ends when the power to appoint under section 42 of the Public Service Act is exercised.
A decision as to whether an appointment already made will continue and thus be permanent in the sense that that term is understood in relation to appointments to the Public Service, does not mean that a negative decision acquires the colour of part of a process of making an appointment. The substance of a negative decision is to end an appointment. Such a decision is the complete opposite of making an appointment. On this view, the decision to terminate has no connection with the making of the appointment, save, for a remote connection to the peripheral circumstance that before an appointment can be terminated, there must have been at some point in time the making of an appointment.
In my judgment the learned primary judge was correct in making the declaration in the terms of the order appealed against.
I would dismiss the appeal.
I agree with the order proposed by Sheppard J. in relation to costs.
The respondent by notice of motion returnable before this Court sought that the appellant's leave to appeal be rescinded. It was agreed on the return of the motion that in the event that the Court was of the opinion that the substantive appeal should be dismissed that no decision was necessary on the respondent's application. I record that, the notice of motion sought other relief which was not argued before the Court. In the circumstances there is no occasion to deal with the further relief claimed in the notice of motion. Having formed the opinion that the appeal should be dismissed, I would dismiss the notice of motion with no order as to costs.
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