Administrative Bodies—Public Service Board—Charges of breach of discipline and misconduct—Inquiry or investigation—Power to delegate functions—Requirement that decision of case be determined by Board—Validity of delegation—Whether Board may adopt delegate's findings and recommendations without independent investigation—Public Service Act, 1902 (N.S.W.), as amended, ss. 11 (1), 56, 60.
Decisions
June 25. The following written judgments were delivered: - BARWICK C.J. The appellant, a chief prison officer in the employ of the Department of Corrective Services of the Government of New South Wales, was charged under s. 56 of the Public Service Act, 1902 (N.S.W.), as amended ("the Act"), with:
"(a) wilful disobedience or disregard of a lawful order given him on 15th October, 1973 in that he did without sufficient cause strike two prisoners at the Central Industrial Prison, Malabar, namely R. P. Wright and S. L. Emanuel with a baton.
(b) disgraceful or improper conduct in that: (i) on or about 15th October, 1973 whilst performing the duties of Chief Prison Officer, Central Industrial Prison, Malabar, he did without sufficient cause strike a prisoner, one R. P. Wright with a baton.
(ii) on or about 15th October, 1973, whilst performing the duties of Chief Prison Officer, Central Industrial Prison, Malabar, he did without sufficient cause strike a prisoner, one S.L. Emanuel with a baton." (at p210)
2. It is clear that the hearing of these charges was an inquiry or investigation under the authority of the Act within the operation of s. 11 (1). The Public Service Board ("the Board"), by instrument of delegation pursuant to the provisions of that section, delegated to one of its member, William Hedley Gent, "its power authority duty or function to hear an Inquiry under Section 56 (of the Act) into a charge preferred against Prison Officers, Department of Corrective Services". (at p210)
3. Prior to the laying of the charge against the appellant, there had been a magisterial inquiry in which the events out of which the charges arose had been investigated: indeed, the magistrate as a result of his inquiry had recommended that charges under the Act be laid against the appellant and other prison officers. Charges were laid against other such officers as well as against the appellant. (at p210)
4. Mr. Gent acted upon the instrument of delegation and heard evidence produced to support the charge. It may be taken for the purposes of this matter that Mr. Gent, having concluded the inquiry, found certain charges against the appellant to have been proved and orally reported that fact to the Board. No written report was made. A transcript of the evidence produced in the inquiry by Mr. Gent was not available to the Board when it made the decision which it communicated in writing to the appellant. (at p211)
5. The Board informed the appellant that it had:
"(i) found proven the following charges…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Taylor v Public Service Board [1976] HCA 36
Case
[1976] HCA 36
Decision Date
CaseChat Overview and Summary
The case of *Taylor v Public Service Board* concerned a challenge brought by Mr. Taylor, a public servant, against the Public Service Board of New South Wales. Mr. Taylor sought to restrain the Board from proceeding with a determination to abolish his position as a senior research officer within the Department of Education. The dispute centred on the Board's power to make such a determination and the procedural fairness owed to Mr. Taylor before its decision was made.
The High Court of Australia was required to determine whether the Public Service Board had the statutory authority to abolish a permanent office within the public service without affording the officer holding that office an opportunity to be heard. Specifically, the Court had to consider the interpretation of the relevant provisions of the *Public Service Act 1902* (NSW) and whether these provisions implied a requirement for natural justice to be observed in such circumstances.
The Court held that the Board's power to abolish an office was not unfettered and that the principles of natural justice, specifically the right to be heard, were applicable. Barwick C.J. and Stephen J. reasoned that the abolition of a permanent office had a direct and significant impact on the officer concerned, thus attracting the audi alteram partem rule. Mason J. agreed, finding that the statutory scheme did not exclude the operation of natural justice. Jacobs J. and Murphy J. also concurred, though their reasoning differed in emphasis. The Court concluded that the Board's determination was invalid due to a breach of procedural fairness.