Sellars v Woods

[1982] FCA 296

Re: ROLAND WARWICK SELLARS
And: SIR COLIN WOODS and ALEX ROBERT BUNT (1982) 69 FLR 105
No. G19 of 1982
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Fisher J.(1)

CATCHWORDS

Administrative Law - Judicial Review - objection to competency - review of decision of the Commissioner of Police to transfer an officer - whether decision of an administrative character - whether decision under an enactment - position of a police officer - engagement arising from oath and undertaking.

Administrative Decisions (Judicial Review) Act 1977 s.3(1)

Australian Federal Police Act 1979 s.7(1), s.13(1), s.14, s.15, s.72(1), s.26, s.28.

Commonwealth Police Act 1957 s.5

Burns v Australian National University (1981-82) 40 A.L.R. 707 and

Australian National University v Burns (Full Court) delivered 8.10.82 considered.

Administrative Law - Decision to transfer a police officer - Application for judicial review - Whether an administrative decision - Whether a decision under an enactment - Objection to competency of the court - Position of police officer analysed - Oath and undertaking given by police officer before commencement of duties - Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 3(1) - Australian Federal Police Act 1979 (Cth), ss 7(1), 13(1), 14, 15, 26, 28, 72(1) - Commonwealth Police Act 1957 (Cth), s. 5 - Australian National University Act 1946 (Cth), s. 23.

HEADNOTE

The applicant had been a member of the Australian Federal Police (or its predecessor) since 1972, having risen to the rank of Senior Sergeant. The oath which the applicant was obliged to swear in 1972 before entering upon his duties as a police officer was essentially in these terms, ". . . I will be faithful . . . to Her Majesty Queen Elizabeth the Second . . . and . . . I will well and truly serve Her . . . ". The applicant signed on the same day an undertaking which included the words, ". . . as a condition of my employment I may be directed to serve in any locality . . . ". On 25 March 1982 the respondent made a decision to transfer the applicant from the position of Detective Senior Sergeant Member of the Central Division Drug Unit to the position of a uniformed Senior Sergeant in charge of the process serving section.

The applicant sought a judicial review of that decision in reply to which the respondents objected to competency contending that the decision was not a decision to which the Administrative Decisions (Judicial Review) Act 1977 (Cth) applied since it was not a decision of an administrative character or alternatively it was not a decision under an enactment.

Held, that the objection to competency should be upheld because:

(1) The decision to transfer the applicant to alternative duties was clearly administrative in character.

Burns v. Australian National University (1982) 61 FLR 76, referred to.

(2) That decision was not a decision under s. 13 of the Australian Federal Police Act 1979 since the engagement of the applicant arises out of the oath and undertaking made by him and is unilateral. As a member of a disciplined force the applicant is obliged to obey the directions of his master, all these obligations flowing essentially from the oath the applicant made and the undertaking he entered immediately after his appointment.

Attorney-General for N.S.W. V. The Perpetual Trustee Co. (Ltd) (1952) 85 CLR 237; Australian National University v. Burns (1982) 64 FLR 166, applied.

Pense v. Hemy (1973) WAR 40; Power v. The Queen (1873) 4 AJR 144; Green v. The Queen (1891) 17 VLR 329; Bertrand v. The King (1949) VLR 49; Lewis v. Cattle (1938) 2 KB 454, considered.

HEARING

Adelaide, 1982, August 18; October 5, 13; December 23. #DATE 23:12:1982

APPLICATION.

Application for orders of review pursuant to the Administrative Decisions (Judicial Review) Act 1977 of a decision made by the respondents.

M. F. Blue, for the applicant.

D. J. Beeby, for the respondent.

Cur. adv. vult.

Solicitors for the applicant: Morecombe, Vickery & Co.

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

E.F.F.

ORDER

1. The objection to competency be upheld.

2. The application for review be dismissed with costs.

Orders accordingly.

JUDGE1

By notice dated 18 August 1982 the respondents Sir Colin Woods and Alex Robert Bunt objected to the competency of this Court to deal with an application by Roland Warwick Sellars ("the applicant") for an order of review of a decision made by the respondents on 25 March 1982. The review is sought pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977 ("the Act"). At the time of filing the application an order of an interlocutory nature was sought by the applicant suspending the operation of the decision and transferring the applicant to the position of Detective Senior Sergeant in the Crime Investigation Field until determination of the application. However a hearing of these interlocutory matters was postponed until the question of competency was decided. This latter issue is the only matter before me at this stage.

The decision of which the applicant seeks review was made on the above date by the respondent Sir Colin Woods as Commissioner of Police and his delegate the then officer in charge of Central Division to the effect that the applicant be transferred from the position and duties of Detective Senior Sergeant Member in charge of the Central Division Drug Unit to the position and duties of uniformed Senior Sergeant in charge of the process serving section. The respondent Alex Robert Bunt held on 16 July 1982, the date of filing of the application for review, the position of officer in charge of the Central Division as successor to Superintendent A.J. Mills who made as delegate the relevant decision.

It was not disputed that the applicant was a person aggrieved and he sought review of the decision on the following grounds:
1. That a breach of rules of natural justice occurred in connection with the making of the decision.
2. That the making of the decision was an improper exercise of the power conferred by Section 13 of the Australian Federal Police Act 1979 in pursuance of which it was purported to be made.
3. That there was no evidence or other material to justify the making of the decision.

The respondents founded their objection to competency on the contention that the decision is not a decision to which the Act applies in that it is not a decision of an administrative character or alternatively it is not a decision under an enactment. By s.3(1) of the Act "decision to which this Act applies" is defined to mean,
". . . 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, other than a decision by the Governor-General or a decision included in any of the classes of decisions set out in Schedule 1."

"Enactment" is also defined and means,

"(a) an Act other than the Commonwealth Places (Application of Laws) Act 1970 of the Northern Territory (Self-Government Act 1978;

(b) an Ordinance of a Territory, other than the Northern Territory;

(c) an instrument (including rules, regulations or by-laws) made under such an Act or under such an Ordinance; or

(d) a law, or part of a law, of the Northern Territory declared by the regulations, in accordance with section 19A, to be an enactment for the purposes of this Act,
and for the purposes of paragraph (a), (b) or (c), includes a part of an enactment."
Section 13 of the Australian Federal Police Act 1979, pursuant or under which the applicant contended the relevant decision was made is in the following terms:
"13(1) Subject to this Act, the Commissioner has the general administration of, and the control of the operations of, the Australian Federal Police,
(2) . . . "

The applicant holds the rank of Senior Sergeant in the Australian Federal Police, having been a member of that force (or its predecessor) since 1972. Prior to that time he had spent 9 years in the Police Force of the United Kingdom and twelve months as a member of the South Australian Police Force. The applicant was sworn in as a Commonwealth Police Officer on 8 May 1972 and commenced duty on that day. The Commonwealth Police Force was established by and conducted pursuant to the Commonwealth Police Act 1957. The oath which the applicant on 8 May 1972 swore, and was obliged to swear before entering upon his duties as a Commonwealth Police Officer, was prescribed by the Commonwealth Police Act 1957 in the following terms:
"Commonwealth of Australia

Commonwealth Police Act, 1957

Oath

I, Roland Warwick Sellars do swear that I will be faithful and bear true allegience to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law, and that I will well and truly serve Her in the office of Commonwealth Police Officer, without favour or affection, malice or ill-will, until I am lawfully discharged:

So Help Me God]

Sworn before me)
at Adelaide this 8th) R.W. Sellars
day of May 1972.) (Signature illegible)"
On the same day he signed an undertaking as follows:
"Commonwealth Police Force

Obligation to give three months notice in accordance with Section 8 of the Commonwealth Police Act 1957, and to serve at any locality in the Commonwealth of Australia or its Territories.

I Roland Warwick Sellars, a member of the Commonwealth Police Force in the State of South Australia, do hereby acknowledge that I am fully aware of the provisions of Section 8 of the Commonwealth Police Act 1957 which require that 3 months notice in writing of intention to resign or withdraw be given. Also that as a condition of my employment I may be directed to serve in any locality in the Commonwealth of Australia or its Territories.

Signed R.W. Sellars
Date 8 May 1972."

Section 5 of the Commonwealth Police Act 1957 empowered the Attorney General to appoint persons to be Commonwealth Police Officers. However a person was not eligible pursuant to s.5(3) to be appointed unless
"(a) . . .
(b) . . .
(c) he makes and subscribes, before a person authorized by the Attorney General, an oath or affirmation in accordance with the form in the Schedule to this Act."
The oath made by the applicant on 8 May 1972 was in accordance with the form in the Schedule.

The Australian Federal Police Act 1979 repealed the Commonwealth Police Act and established the Australian Federal Police. Pursuant to the transitional provisions in Part VII of the Australian Federal Police Act 1979 the applicant was by s.72(1) appointed a member of the Australian Federal Police. That section, to the extent relevant, provides,
"72(1). A person who, immediately before the commencing date, was a member of an existing Police Force, other than a person referred to in sub-section (2), shall be appointed under section 25 or 26 as the case requires, to be a member of the Australian Federal Police.
(2). . . .
(3). . . . "

Section 26 empowered the Commissioner of Police constituted under that Act (s.6) to appoint non-commissioned officers and s.28 obliged them to enter into undertakings and to make and subscribe oaths Section 28 to the extent relevant provided,
"28(1). A person appointed under this Part, other than the Commissioner, shall, immediately after his appointment, enter into an undertaking, in accordance with the prescribed form, relating to the performance of his duties.
(2). . . .
(3). A person appointed under Division 2 shall, in accordance with the regulations, make and subscribe, before a person authorized by the Commissioner, such oath or affirmation as prescribed in relation to the component whose functions he is to assist in performing."

It was common ground that the applicant was obliged to comply and did in fact comply with s.28(1) and (3). Regulations 12 and 13 prescribed, by reference to the Schedules thereto, the forms of undertaking, oaths and affirmations. The applicant being a member of the component of the Australian Federal Police performing general police functions (s.7(1)) entered into the following undertaking:
"Undertaking under sub-section 28(1)

I Roland Warwick Sellars hereby undertake that I shall, in the performance of my duties as a member of the Australian Federal Police, comply with the provisions of the Australian Federal Police Act 1979, the Regulations made under that Act and the General Orders and General Instructions issued by the Commissioner under section 14 of that Act.

Witnessed D.T. Taylor R.W. Sellars Date 19 October 1972 Signature"
He also made and subscribed the oath prescribed by the Regulations being Form 4 in relation to the component (general police functions) whose functions he was to assist in performing. The form of oath went beyond the requirements of Form 4 and was in the following terms:
"Oath
I Roland Warwick Sellars do swear that I will be faithful and bear true allegience to Her Majesty Queen Elizabeth the Second Her Heirs and Successors according to law, that I will faithfully and diligently exercise and perform all my powers and duties as a member of the Australian Federal Police without fear or favour, affection or ill will, from this date until I cease to be a member of the Australian Federal Police, that, whenever performing duty in the Australian Capital Territory, I will cause their Majesty's peace to be kept and preserved, and prevent, to the best of my power, offences against that peace, and that, while I continue to be a member of the Australian Federal Police, I will, to the best of my skill and knowledge, faithfully discharge all my duties according to law.

So Help me God]

R.W. Sellars

Made and Subscribed at Kalgoorlie in the State of Western Australia on the nineteenth day of October 1979 before me D.J. Taylor (sgd) a person authorized for the purposes of sub-section 28(3) of the Australian Federal Police Act 1979."

I have in some detail set out the undertakings entered into and oaths made by the applicant, because, in my opinion they (and particularly those of 1979) are essential to the obligations of the applicant and his engagement as an officer of the Australian Federal Police.

Throughout the period of his service until the making of the decision sought to be reviewed the applicant was a plain clothes member of the two Police Forces. In December 1979 he was promoted from the position of Detective Sergeant in Perth to that of Detective Senior Sergeant in Adelaide. On 23 March 1981 he was appointed to the position of Member in Charge of the Central Division Drug Unit in Adelaide which position he held until 25 March 1982 the date of the relevant decision. On that date he was informed that because it was considered he was unsuitable for drug work he was to be transferred to a uniformed Senior Sergeant's position. It was common ground that this decision was made by the Officer in Charge of Central Division, Superintendent Mills as delegate for the respondent Sir Colin Woods, Commissioner of Police. On 28 November 1982, despite the making of complaints and submissions he ceased to be Member in Charge of the Drug Unit and became a uniformed Senior Sergeant. Subsequently he commenced uniformed duty in charge of the process serving section. The Drug Unit is a unit of the Criminal Investigation Branch being one of the two branches in the Central Division of the general duties component (s.7(1)) of the Australian Federal Police, the other branch being the Uniformed General Duties Branch. The transfer of the applicant was thus a transfer from plain clothes duties in the Criminal Investigation Branch to the Uniformed General Duties Branch in the general duties component of the force. It was a transfer to a position of equal rank (there being no rank as such of Detective) from one Branch to another within the same component of the Force, although the applicant ceased to be designated as a Detective. This latter aspect is provided for by General Order 7 made under s.14 infra.

The applicant deposed to a number of grounds, which there is at this stage no need to relate, on which he was prejudiced by this decision, which he contended was made pursuant to or "under" s.13 of the Australian Federal Police Act. This section provides to the extent relevant as follows:
"13(1). Subject to this Act, the Commissioner has the general administration of, and the control of the operations of, the Australian Federal Police.

(2). The Minister may, after obtaining and considering the advice of the Commissioner and of the Secretary, give written directions to the Commissioner with respect to the general policy to be pursued in relation to the performance of the functions of the Australian Federal Police.
(3). . . .
(4). The Commissioner shall comply with all directions given under this section.
(5). . . .
(6). The Commissioner shall furnish to the Minister such reports as the Minister requests relating to the administration and the performance of the functions of the Australian Federal Police."

Other sections of the Australian Federal Police Act which have some relevance in the consideration of this matter are s.14.
"14. In the exercise of his powers under section 13, the Commissioner may issue -
(a) orders (to be known as General Orders) with respect to the general administration of the Australian Federal Police and determining the respective functions of the components referred to in sub-section 7(1) and (2); and

(b) instructions (to be known as General Instructions) for the effective and efficient conduct of the operations of the Federal Police, and may, at any time, amend or revoke any General Orders or General Instructions so made."

Section 15 provides,
"15(1) The Commissioner may, either generally or as otherwise provided by the instrument of delegation, by writing signed by him, delegate to a member any of his powers under this Act, other than this power of delegation.

(2) A power so delegated, when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the Commissioner.

(3) A delegation under this section does not prevent the exercise of a power by the Commissioner."

I was not referred to any specific exercise by the Commissioner of this power of delegation whereby Superintendent Mills was given power to direct a transfer such as that here under consideration. However General Instructions No. 24 paragraph 3c requires a Divisional Officer to allocate his resources to the best advantage. No point has been taken that the transfer on 25 March 1982 of the applicant by Superintendent Mills, if otherwise valid, was beyond his power, delegated or otherwise. This General Instruction No.24 paragraph 3 is to the extent relevant as follows:
"3. A Commissioned Officer in charge of a Division is responsible for the general efficiency of his Division, for the promulgation and execution of all Orders and Instructions on behalf of the Commissioner, and for the issue of any special instructions that may be necessary for particular localities and conditions in his Division. Each Divisional Officer in Charge shall:-
a. . . .
b. . . .
c. allocate resources to best advantage take steps to ensure that the available resources of manpower and material resources at his disposal are used to the best advantage according to the changing situation."

In addition to the delegations implicitly conferred on Divisioal Officers by this General Instruction No. 24, the Commissioner by Administrative Circular No. 94 dated 19 May 1981 over his signature as Commissioner gave certain powers of transfer to Divisional Officers. It provided,
"Officers in charge of geographical Divisions may transfer members within their Division, except where the transfer involves movement to a remote location or to a key position such as 'B', 'C' or 'I' Squads

19 May 1981 Colin Woods
Commissioner. "

In objecting to the competency of the application for review the respondents contended that this Court has no jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 because the decision to transfer was not a decision of an administrative character and was not a decision under an enactment i.e. under s.13 which I set out above.

I will consider each of these contentions in turn.

In contending that the decision was not of an administrative character, counsel for the respondents did not attempt to characterise the decision as being legislative or judicial in nature. He put his submission on the basis that although of an administrative character it was not of the class of decisions which Parliament intended to be canvassed by the review provisions. It was, he said, organisational in character and was not of the necessary degree of significance to constitute a reviewable decision. In my opinion the decision was administrative in character, and it is nothing to the point to contend that it was of the type necessarily made on a number of occasions each day in the course of performance of routine functions of the Police Force. Such an argument has more relevance on the question whether it was made "under an enactment". I refer to Burns v Australian National University (1981-82) 40 A.L.R. 707 at p.713 when Ellicott J. examined the phrase. He said:
"The word 'administrative' carries with it the notion of 'managing 'executing' or 'carrying into effect'. The administration of an enterprise or undertaking whether a business, a government department, a statutory authority or educational institution such as a University, inevitably involves decisions as to the appointment or dismissal of officers and other employees. Such decisions are, in my view, administrative in character. They are an essential part of managing, running or administering the enterprise or undertaking."

In my opinion the decision to transfer the applicant to alternative duties was clearly "administrative in character".

On the question whether the decision was made "under an enactment" the judgment of the Full Court of the Federal Court in Australian National University v Burns delivered on 8 October 1982 is clearly of relevance. Both counsel had the opportunity to address on the final day of hearing of this matter on the reasons of the Full Court. Section 23 of the Australian University Act 1946 in vesting the control and management of the University in the Council is in very similar terms to s.13 of the Australian Federal Police Act. It provides
"23. Subject to this Act and the Statutes, the Council may from time to time appoint deans, professors, lecturers, examiners and other officers and servants of the University, and shall have the entire control and management of the affairs and concerns of the University and may act in all matters concerning the University in such manner as appears to it best calculated to promote the interests of the University."

As Bowen C.J. and Lockhart J. said in their joint reasons
"The difficulty in the present case does not lie in the definition of the expression 'under an enactment'. We agree with Fox J. who said in Evans v Freimann (at p.436) that the word 'under' in the context of the Judicial Review Act connotes 'in pursuance of' or 'under the authority of'. See also R. v Clyne (1941) V.L.R. 200. The difficulty lies in the application of the expression to particular circumstances The present case poses the problem in an acute form."

The position is the same here in that s.13 of the Federal Police Act is the source of the Commissioner's power to administer the Police Force and direct its activities. In a sense every decision made by him or his subordinates can be said to have been made under the authority of s.13. However as these two members of the Full Court said:
"Notwithstanding that s.23 was the source of the Council's power to appoint and dismiss the respondent in 1966, it does not follow that the decision to dismiss him was made under the University Act. The answer to the question lies in the true characterization of the decision itself."

On the facts of that case the Full Court came to the conclusion that the Council's decision to dismiss the professor was made under the contract of employment and not under the powers conferred by s.23 of the University Act. They were of opinion that the rights and duties of the parties to the contract of employment were derived under the contract and not under the University Act.

The third member of the Full Court, Sheppard J. was also of opinion that the Council's decision to dismiss was a decision under the contract of employment and "only in the most indirect way could it be said that its decision was also under an enactment". On page 5 of the printed copy of his reasons he said:
"In the end the question will be determined, in a given case, by an evaluation or judgment of its own circumstances. Some cases will be clearly on one side of the line or the other. My assessment of the present case is that it plainly falls outside the purview of the Act."

The circumstances in which the applicant serves as a member of the Australian Federal Police are very different from the relationship of a professor to the University which employs him. A reference to authorities illustrates this difference.

In Pense v Henry (1973) W.A.R. 40 Burt J. (as he then was) said at p.42
"The Police Force is 'a regular service of the Crown; it is a disciplined force in the service of the Crown' and 'a member of the Police Force is under an obligation to perform duties of which some are statutory, some derived from the common law, and all are public in character. . . '
The police constable's duties derive from the nature of his office."

In Attorney General for N.S.W. v The Perpetual Trustee Co (Ltd) 85 C.L.R. 237 McTiernan J. said at p.255
"The Crown and the policeman were not master and servant in the legal sense: the members of the police force of New South Wales are engaged in public service; they are organized by the Executive Government of New South Wales as a civil force responsible for maintaining public order; the policeman was bound by an engagement having statutory force to serve the Crown in the public office of a constable and as a member of this force, and the relations of its members, as such, with the Crown are in no wise private or domestic."

At page 261 he said:
"In the present case the policeman was engaged in public service: he was not a servant in the legal sense of the Crown: his service was strictly and exclusively public service."

In the same case Kitto J. at p.303 said:
"A member of the police force is under an obligation to perform duties of which some are statutory, some derive from the common law, and all are of a public character; and although a member of the police force is bound to obey the lawful orders of his supervisors. . . "

It seems appropraite to define the position of the applicant as the holder of a public office who by virtue of his undertaking and oath has entered into an engagement to serve the Crown as a member of the Federal Police Force. The nature of the engagement has been considered by the Court on a number of occasions.

In Power v The Queen (1873) 4 A.J.R. 144 at p.145 Barry J., in dealing with the Crown's power to dismiss without notice, delivered the judgment of the Full Court and said:
"We are of opinion that the agreement created by the statute includes a concurrence between the parties. By it the petitioner promised to serve as long as it would please Her Majesty to employ. On this condition his promise was accepted. But this does not include mutuality or reciprocity of contract and liability. There is in fact but one contracting party, that is the petitioner. Nothing can be clearer than that the engagement entered into is unilateral only, not mutual. It binds him to serve, but does not oblige Her Majesty to retain him in her service beyond the period which circumstances may render necessary."

Higinbotham C.J. in Green v The Queen (1891) 17 V.L.R. 329 when delivering judgment of the Full Court said at p.332:
"The contract entered into by each member of the police force, both officers and constables, by virtue of taking and subscribing the oath, is a unilateral contract and implies no corresponding obligation on the part of the Crown to retain the member in the service: Power v The Queen. The contract is terminable at the pleasure of the Crown.

In Bertrand v The King 1949 V.L.R. 49 at p.53 Herring C.J. referred to the oath and the above authorities when he said:
". . . they make it clear that the contract that arises from the taking of the oath is entirely unilateral."

The position is much the same in the United Kingdom. In Lewis v Cattle (1938) 2 K.B. 454 at p.457 Lord Hewart C.J. said:
". . . every police officer in England and Wales . . . holds the office of constable, and within his constablewick he has all the duties and rights conferred by common law or statute on the holders of that office. He is required to take an oath of office and his primary duty is to preserve the King's peace."

The engagement to the extent that it arises out of the oath and undertaking is thus unilateral in character in that it imposes no obligation on the Crown, any such obligation being imposed by statute. Being as Burt J. said, a member of a disciplined force he is obliged to obey the lawful directions of his superiors, though not in the manner in which a servant is obliged to obey the directions of his master. All of these obligations flow essentially from the oath he made as set out above and the undertaking into which he entered, each of which he is by statute obliged to make or do and, in the case of the undertaking, immediately after his appointment. It is a "voluntary engagement into which he has entered and therefore in the nature of a contract with the Crown to perform the services" (per Williams J, in Attorney General for N.S.W. v Perpetual Trustee Co (Ltd) supra at p.269). Thus although very different, the engagement of the applicant can be equated, at least for the purpose of determining whether his transfer was the consequence of a decision under s.13, with the contract of employment of the respondent in Australian National University v Burns supra. It is my opinion that the decision to transfer the applicant to other duties was not a decision under s.13 and therefore under an enactment but was a decision under or pursuant to the engagement into which the applicant had entered as a member of the Police Force.

It follows that on this ground I uphold the objection to competency and I must dismiss the application with costs.