Sutherland, Struan Keith v Commonwealth Serum Laboratories Commission

IN THE FEDERAL COURT

OF AUSTRALIA )

VICTORIA DISTRICT REGISTRY

V.G.

No. 138 of 1981

GENERAL DIVISION	1
BETWEEN :

STRUAN KEITH SUTHERLAND

Applicant

and

NORTHROP J.

REASONS FOR JUDGMENT

5 AUGUST

1991.

The applicant is a medical officer employed

by che

Commonwealth Serum Laboratories Commission, "the Commission",

constituted under the Commonwealth Serum Laboratories

Bcc

1961 as amended, hereinafter called "the C.S.L. Act".

On 30

July 1981 the

applicant

filed

application

under

the

Administrative

Decisions

(Judicial

Review)

Act

1977,

hereinafter called "the Judicial Review Act",

review a

decision of the respondents being the Commission and five of

its commissioners. When the application

came

fcr

directions on

July 1981, counsel

for

the respondents

challenged the competency of the application and was granted

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leave

to take the objection to jurisdiction as though the

required notice under Order

54 Rule 4 had been given. At the

conclusion

submissions, the court announced that it

rejected the objection to competency but that it would give

its reasons for so doing at a later date. At the request of

the	parties, the court then heard the substantive issue

raised by the application. After hearing the submissions of

counsel, the court ordered that the application be dismissed

and announced that it would give its reasons for dismissing

the application at a later date. The court made no order as

to costs but has already given its reasons for doing

that.

The Commission is constituted a body corporate

and

under the

C.S.L.

Act as presently in operation consists of

not less than four nor more than eight commissioners and the

Director, s.7 and s.8.

The Director is appointed by the

Governor-General and

is the chief executive officer of the

Commission, s.23.

The functions, powers and duties of the

Commission are set

out in Division 2 of Part 11 of the C.S.L.

Act but, for present purposes, no further reference need be made to those functions.

Under s.24 of the C.S.L.

Act, the Commission has

power to appoint such officers as it thinks

fit

for the

purposes of the Act. Until

the

Commonwealth

Serum

- 3 -

Laboratories Amendment Act 1980, hereinafter called "the 1980

Act", came into operation on

1 July 1980, s.26 of the C.S.L.

Act as theretofore in operation provided:

"26.(1)

Subject

to this section, the terms

and	conditions of employment of officers

appointed by the Commission shall be such

are determined

by the Commission."

Similarly, s.27 of the C.S.L.

Act provided:

"27.	The Commission may employ such temporary

or casual employees as it thinks fit,

on such

terms and conditions a s the	Commission
determines ."

Section 28 provided that the Public Service Arbitration Act

1920 did not apply in relation to the employment of officers

or employees of the Commission.

In	the exercise of the powers conferred upon it,

the Commission, prior to

1 July 1980,

had determined the

terms

and

conditions

employment

of its officers

and

employees. These were contained in Staff Rules being

"Terms

and

Conditions

Employment Determined by the Commission

under the provisions of Sections

26(1) and

27 of

the

Cormonwealth Serum Laboratories Act, 1961".

The width of the

determination is,illustrated by the table of contents cf the

Staff Rules. This table is set out:

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"CONTENTS

Staff Rules.

Section 1 - Preliminary

Section

- Appointment of Officers

Section 3 - Duties of Officers

Section 4

- Hours of Duty, Attendance,

Leave

and

Section 5

- Salaries and Allowances 25

Section 6 - Penalty

Payments

Section 7

- Travelling and Transfer

Allowances,

and

Fares

Section 8 - Promotions

Section 9 - Discipline	57
Section 10 - Resignations and

Retirements

Section 11 - Miscellaneous Provisions

Section 12 - Temporary

Employment

Appendices.

Appendix A - Qualifications for

Particular

Offices

Appendix B - Salaries

Index.

76"

Section 9 of the Staff Rules

is headed "Discipline"

and

Section 9/1/1

lists a series of offences including the

following:

"9/1/1. Offences. An officer who -

...

(v)

is guilty of any disgraceful

improper conduct, either

his

official capacity or otherwise;

...

shall be guilty of an offence, and shall

liable to such punishment

determined

upon under the provisions of this Section."

- 5 -

The section then contains provisions relating to charges	and
punishments.

The 1980 Act amended the existing

s.26 and s.27

and repealed s.28.

Since 1 July 1980 s.26(1) has provided:

"26.(1) The

terms

and conditions

employment of officers appointed under section

24 are

such

are

determined by the

Commission with the approval of the Public

Service Board. "

and s.27 has provided:

"27. (1)

The Commission may

employ such

temporary	or	casual employees as it thinks
fit.

(2) The

terms

and conditions of

employment of persons employed under sub-section (1) are such as are determined by the Commission with the approval of the Public

Service Board ."

The 1980 Act contained transitional provisions, the relevant

one, for present purposes, being

s.30(2) which reads:

"30. (2)

The

terms and conditions of

employment of officers appointed under section

24, and persons employed under section 27, of

the Principal Act,

in effect immediately

before the date of commencement of this Act, have effect, on and after that date, as if

they	had been determined under sub-sections

26(1) and 27(2), respectively, of the Principal Act as amended by this Act."

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T h e

a p p l i c a n t

o f f i c e r

a p p o i n t e d

t h e

Commission

under

s.24

t he

C.S.L.

Act.

was

appointed

be fo re

1 July 1980.

J u n e 1981

t he

D i rec to r

o f

t he

Commission

charged

the

appl icant

with

disgraceful

and/or

improper

conduct

under

Staff

Rule

9/1/1.

I t

no t

necessa

t o refer

t o

t h e

p a r t i c u l a r s

t h e

c h a r g e .

The

applicant,

i n

acco rdance

t he

S t a f f

R u l e s ,

has

been

suspended

pending

the

de t e rmina t ion

o f

t he

cha rge

aga ins t

h im,

bu t

being

p a i d h i s n o r m a l s a l a r y .

The

f i v e

i n d i v i d u a l

r e s p o n d e n t s

c o n s t i t u t e d

t h e

Commission

fo r

t he

pu rpose

o f

hea r ing

and

determining

the

c h a r g e

a g a i n s t

t h e

a p p l i c a n t .

The

Commission

commenced

t h e

hear ing

the

charge

1 6 J u l y

1981.

The

Di rec to r

and

t he

a p p l i c a n t

were

each

represented

counsel .

A t t h e

c l o s e

t h e

D i r e c t o r ' s

c a s e ,

c o u n s e l

f o r

t h e

applicant

s u b m i t t e d

t h a t

t h e r e

was

n o c a s e t o a n s w e r s i n c e

had

no t been e s t ab l i shed

t h a t

t h e

P u b l i c

S e r v i c e

Board

had

approved

t h e

S t a f f

R u l e s

u n d e r

w h i c h

t h e

a p p l i c a n t

h a d

b e e n

c h a r g e d .

F u r t h e r

submissions by counse l were p u t t o

t h e

Commission on

J u l y

1981,

and

a f te r

sho r t

ad jou rnmen t

t he

Commission

h e l d

t h a t

t h e

S ta f f

Rules

were

v a l i d

and

i n o p e r a t i o n

and adjourned

the

f u r t h e r

h e a r i n g

u n t i l

August

1981.

J u l y 1 9 8 1 ,

t h e

a p p l i c a n t

made

t h e

a p p l i c a t i o n

u n d e r

t h e

J u d i c i a l

Review

Act

seek ing

t he

fo l lowing

o rde r s :

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"l.

An order quashing the decision of the

Commission that the said Staff Rules are

valid.

2. An order quashing the decision of the Commission that the said hearing should proceed.

3 . An order staying the further hearing of the said hearing.

4 . An interlocutory injunction staying the further hearing of the said hearing pending the hearing and determination of this application."

The ground of the application was that the decision of the

Commission involved an error of law, namely that to be valid

the Staff Rules

not require the approval of the Public

Service Board. Before the

court it was conceded that at all

relevant times the Public Service Board	had not	given its
approval to the Staff Rules.

The application is brought

under

s.5

the

Judicial Review

Act.

Counsel for the Commission submitted

that the decision attacked was not a decision within the

meaning of that Act, and further that if it was a decision it

was not a decision of an administrative character under s.3

of that Act but was of a judicial character

in that it merely

construed a section

of an Act of Parliament.

The meaning to be given to the word "decision" in

the Judicial Review Act has been considered in a number of

recent cases, see Riordan v. Parole Board of the A.C.T .

- 8 -

(1981) 34 A.L.R.

322, Lockhart J., Hamblin v. Duffy (1981) 34

A.L.R. 333, Lockhart

J., and Evans v. Friemann, Federal Court

of Australia, 26 June 1981, Fox A.C.J.,

unreported. See also

Director-General of Social Services v.	Chaney (1980) 31
A.L.R. 571.

In Evans v. Friemann, Fox A.C.J.

said:

"In ordinary usage, the special feature of a decision is its conclusiveness, or finality

for the time

being, and this is to be

contrasted with the thought

or consideration

which

precedes it.

the

other

hand

decision is not the same as a conclusion: the

former normally has an objective, while the

latter is more commonly associated with the

end	result of a process of thinking without

the formation of an intention concerning

future conduct.

It would not be p?ssible,

even if the attempt were

wise, to substitute a

judicial exegesis for the word the legislature

has used. For

present purposes at least, it

seems to me to amount to something of significance which is reasonably definite,

which is final

and conclusive for immediate

purposes at least, which is manifested

in some

way, which emanates from an authoritative

responsible source,

and which materially

affects another person or persons.

The list

in s.3(2) seems to

place

emphasis

the

manifestation, that

is,

on the conduct fron

which

the

making

'decision'

will

presumed.

In this sense the sub-section could

be said to be

largely evidentiary in effect."

opinion the course of action taken by the

Commission on 29 July 1981 in rejecting the submission that the applicant had no case to answer constitutes a decision

within

the meaning of the

Judicial

Review Act. The

Commission refused to make an order sought by the applicant.

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It was final and conclusive, at least for immediate purposes, and it affected directly the rights of the applicant. In my opinion, the fact that the applicant could decide not to give

evidence or that the Commission could change its mind before

making a final determination of guilty

or otherwise does not

affect the nature of the conduct which constitutes the

decision made.

The fact that an administrative body is required

construe a section in a statute and is required to comply

with the rules of natural justice

or can affect the rights of

persons does not mean that that body is exercising a judicial

function. The features

"administrative

character"

are

discussed

Fox A.C. J. in Evans v. Friemann.

In the

present case the Commision is exercising the powers conferred

upon

by the C.S.L. Act.

is an employer exercising

powers essentially administrative

character.

It is

difficult to see how the Commission, in determining whether

an officer appointed by it has committed an offence under

rules made

it and,

if found guilty, to be punished in

accordance with rules made

it, can

said to be

exercising a judicial power. In my opinion the decision made

by the Commission is a decision of administrative character

within the meaning of the Judicial Review Act.

The substantive issue raised by the application is

the construction of

s.30(2)

of the

1980 Act. Immediately

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prior to 1 July 1980 , the Staff Rules, as determined by the

Commission, were valid and in operation.

On and from 1 July

1980, the terms

and conditions of employment are such

"as are

determined by the Commission with the approval of the Public

Service Board". The words within the quote constitute a

composite

description

of a type of determination. A

determination by the Commission by itself has no effect.	A
determination by the Public Service Board by itself has no

effect.

What is

required is a determination "by the

Commission with the approval of the Public Service Board".

The

transitional provision

based on that concept.

provides that the terms

and conditions in effect immediately

before 1 July 1980, namely the Staff Rules, have effect on

and after

1 July 1980 "as if they had been determined under

the Act as amended by the

1980 Act".

In other words, the

pre-existing terms and conditions have effect after 1 July 1980 as if they had been determined "by the Commission with the approval of the Public Service Board".

This is the natural construction of

s.30

of the

1980 Act. On

that

construction,

all

the

terms

and

conditions of employment contained

the Staff Rules,

including the terms and conditions applicable to appointment,

duties, hours of duty and salaries continue to apply, as well

as those relating to discipline.

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During the course

of submissions, counsel

for the

applicant made reference to

a number of other sections in the

C.S.L. Act as well as to provisions in other Acts. Those references do not, in my opinion, assist in the determination

of the issue before the

court.

Accordingly, the application was dismissed.

Assoclate

[1981] FCA 125

5 Aug 1981