The Honourable Will Hodgman v Tasmanian Industrial Commission - [2019] TASSC 40

[2019] TASSC 40

COURT: SUPREME COURT OF TASMANIA

CITATION: The Honourable Will Hodgman v Tasmanian Industrial Commission

[2019] TASSC 40

PARTIES:  THE HONOURABLE WILL HODGMAN,
  AS MINISTER ADMINISTERING THE
  STATE SERVICE ACT 2000
  v
  TASMANIAN INDUSTRIAL COMMISSION

FILE NO:  3323/2018
DELIVERED ON:  6 September 2019
DELIVERED AT:  Hobart
HEARING DATE:  26 June 2019, 2 September 2019 (on the papers)
JUDGMENT OF:  Estcourt J

CATCHWORDS:

Administrative Law – Judicial review – Grounds of review – Jurisdictional matters – Whether decision of indemnity and legal assistance panel can be characterised as State Service Action for purposes of State Service Act 2000.
Aust Dig Administrative Law [1029]
Industrial Law – Tasmania – Industrial Commission – Jurisdiction and Powers – Whether Commission has jurisdiction to review decision of indemnity and legal assistance panel – Commission erred in law in deciding it had jurisdiction to review unsuccessful request for indemnity and legal assistance.
Judicial Review Act 2000 (Tas).
State Service Act2000 (Tas).
Solicitor General Act 1983 (Tas).
Aust Dig Industrial Law [3380]

REPRESENTATION:

Counsel:
             Appellant:  G Chen
             Respondent:  S Taglieri
Solicitors:
             Appellant:  Solicitor-General
             Respondent:  Hall Payne Lawyers

Judgment Number: [2019] TASSC 40
Number of paragraphs: 39

Serial No 40/2019
File No 3323/2018

THE HONOURABLE WILL HODGMAN, AS MINISTER ADMINISTERING THE STATE SERVICE ACT 2000 v TASMANIAN INDUSTRIAL COMMISSION

REASONS FOR JUDGMENT ESTCOURT J

6 September 2019

The application

The applicant has applied under the Judicial Review Act 2000 for the review of an order made by Deputy President N M Ellis of the Tasmanian Industrial Commission (TIC), on 19 November 2018, whereby she determined that the TIC had jurisdiction to entertain an application made to it by Shaun David Bartlett, purportedly pursuant to s 50(1)(b) of the State Service Act 2000 (the SSA).
Mr Bartlett was, at the relevant time, and remains, insofar as I am aware, a State servant in the Department of Communities. At the relevant time he worked at the Ashley Youth Detention Centre at Deloraine. In 2016 he was charged with assaulting two detainees in the course of his employment at that facility. The two charges he faced were dismissed by a magistrate on 14 July 2017. On about 13 March 2018, Mr Bartlett made an unsuccessful application for indemnity or legal assistance in respect of the legal costs he had incurred in defending the charges.
The application for indemnity or legal assistance was made to the Indemnity and Legal Assistance Panel (the Panel). By a decision dated 6 May 2018 the Panel refused to grant indemnity or assistance to Mr Bartlett. He was notified of that decision by letter dated 9 July 2018 from the Secretary of the Department of Communities, addressed to the Secretary of Mr Bartlett's union, the Health and Community Standards Union. As a result Mr Bartlett applied to the TIC for a review of the decision, purportedly under s 50(1)(b) of the SSA.
The SSA, s 50(1) provides:
"(1)Subject to subsections (2) and (3), an employee is entitled to make application to the Tasmanian Industrial Commission for a review –
(a) of the selection of a person or an employee to perform duties other than duties to be performed for a specified term or for the duration of a specified task; or
(b) of any other State Service action that relates to his or her employment in the State Service."
Deputy President Ellis, in a written decision of 19 November 2018, held that a decision of the Panel, constituted under what is referred to as "the Policy", amounted to "State Service action" for the purposes of s 50 of the SS Act and was thus reviewable. It is the applicant's submission that she erred in law in that decision, and that the TIC lacks jurisdiction to hear Mr Bartlett's application. Further proceedings in the TIC await the outcome of the applicant's application to this Court.
By his originating application the applicant contends that:
"1        The respondent erred in law in that to make the decision it determined that the subject matter of the application made to it comprised a 'State Service action' within the meaning of that phrase in s 50(1)(b) of the State Service Act 2000 when the subject matter, being a decision of the Indemnity and Legal Assistance Panel, dated the 6th of May 2018, was not and could not be a 'State Service action' (s 17(2)(e) Judicial Review Act 2000).
2         The respondent had no jurisdiction to make the decision because the application made to it was not one by which review of a 'State Service action' was sought because the subject matter of the application made to it, being the decision of the Indemnity and Legal Assistance Panel aforesaid, was not and could not be a 'State Service action' (s 17(2)(c) of the Judicial Review Act 2000).because the subject matter of the application made to it was not and could not be a 'State Service action' – s 17(2)(c) Judicial Review Act 2000.
3         Alternatively, if the decision is not relevantly a decision to which the Judicial Review Act applies then the respondent was engaged or proposed to engage in conduct for the purposes of making a decision to which the Judicial Review Act applies and in the circumstances has no jurisdiction to make such a decision because the application made to it did not concern any 'State Service action' (s 18(2)(c) Judicial Review Act 2000).
4         Alternatively, if the decision is not relevantly a decision to which the Judicial Review Act applies then the respondent was engaged or proposed to engage in conduct for purposes of making a decision to which the Judicial Review Act applies (viz under s 51(6) of the State Service Act) and in the circumstances the State Service Act 2000 does not authorise the making of such a decision because the decision of the Indemnity and Legal Assistance Panel dated 6 May 2018, was not and could not be a 'State Service action' (s 18(2)(d) Judicial Review Act 2000).
5         Alternatively, if the decision is not relevantly a decision to which the Judicial Review Act applies then the respondent was engaged or proposed to engage in conduct for purposes of making a decision to which the Judicial Review Act applies (viz under s 51(6) of the State Service Act 2000) and in the circumstances the making of such a decision would be an improper exercise of the power conferred on the Respondent by the State Service Act 2000 because there was no 'State Service action' which could be made the subject of an application to the respondent under s 50(1)(b) of the State Service Act (s 18(2)(e) Judicial Review Act 2000).
6         Alternatively, if the decision is not relevantly a decision to which the Judicial Review Act applies then the respondent was engaged or proposed to engage in conduct for purposes of making a decision to which the Judicial Review Act applies (viz under s 51(6) of the State Service Act 2000) and in the circumstances an error of law has been or is likely to be committed in the course of the purported review to be conducted by the Respondent under s 50 of the State Service Act 2000 because there was no 'State Service action' which could be made the subject of an application to the respondent under s50(1)(b) of the State Service Act (s 18(2)(f)(i) Judicial Review Act 2000)."
By notice dated 17 December 2018 the TIC submitted to any order of the Court or a judge made upon the return of the originating application.

The Panel

The Panel is established under a State Government policy entitled Policy and Guidelines for the Grant of Indemnities and Legal Assistance to Public Officers of the State of Tasmania (the Policy). The purpose of the Policy is to set out the process that applies to "Public Officers" as defined in the Policy, which definition includes "State Service officers and employees", who are the subject of legal proceedings and who are seeking indemnity or legal assistance from the State in respect of those proceedings.
Pursuant to s 17 of the SSA, the Minister administering that Act issued Employment Direction 16 (ED16) on 1 January 2016. ED16 states that it "specifies the circumstances in which indemnity and legal assistance may be granted to employees and officers" appointed under the SSA. Relevantly, ED16 directs that the Policy is to apply to State Service employees and officers the subject of legal proceedings who seek indemnity or legal assistance.
In his written submissions the applicant asserts that the source of the power granted to the Panel derives from cl 2(iv) of the Policy and not ED16. ED16, it is submitted, simply creates "the mechanism" by which the Policy is to apply to State servants, and that as a matter of construction, the operation of ED16 is confined to applying the Policy to State Service employees and officers. That is to say that ED16 does not vest power in the Panel and it confers no discretionary authority on anyone. ED16 simply makes the indemnity "available to the State Service officers and employees to which it refers".
I pause to state that that submission appears to be irrefutable. Indeed I have some difficulty in apprehending why ED16 was necessary at all, given that the Policy expressly applies to "State Service officers and employees". Section 17 of the SSA merely allows the State employer to issue directions which relate to the administration of the State Service and employment matters relevant to the SSA, and which have effect according to their tenor unless they are inconsistent with or repugnant to other provisions of the SSA. Employment directions do not have the force of statutory rules. Moreover ED16 does not purport to confer on a specified person or body, or a specified class of persons or bodies, any discretionary authority, such as is referred to in s 17(2)(c) of the Judicial Review Act 2000.
Paragraph 3.4 of the Policy provides that, except in the case of Ministers and members of the Government, the Panel is to comprise the Secretary of the Department of Justice, as Chair, and the Solicitor-General and an Agency Member, as specified in a table set out in the Policy. In the case of an application by a Public Officer who is a State Service officer or employee, the Agency Member is to be the Head of Agency in which the Public Officer is employed. If the person is employed by the Department of Justice then the Agency Member will be the Secretary of the Department of Premier and Cabinet or that person's nominee.

The parties' contentions

Mr Bartlett in his written submissions contends that the taking of the decision to refuse indemnity, and the communicating of that decision on 9 July 2018, constituted State Service action on behalf of the Secretary of the Department which employed him and was in respect of a condition of his employment. He submits that consequently, pursuant to s 50(1)(b) of the SSA, he, as an employee, was able to apply for review of the actions taken by the Secretary. The TIC, in turn, he submits, had power to conduct the review.
It should immediately be observed that the submission made tends to obfuscate, if not conflate, the decision to refuse indemnity by the Panel and the communication of that decision by the Secretary of the Department. The communication of the decision may well be a State Service action, but the real question on this application is whether the exercise of the Panel's discretion to refuse indemnity was. If it was not, then it is difficult to see how communicating it could meaningfully enliven the relevant jurisdiction of the TIC.
A further submission is made that the indemnity application was not made to the Panel but was made to Michael Pervan by Mr Bartlett's union on his behalf. At the time, Mr Pervan was the Secretary of the Department within which Mr Bartlett was employed.
That submission again begs the question of whether the exercise of the Panel's discretion to refuse indemnity was a State Service action.
The applicant in his written submissions contends that the Panel, which is the authorised decision-maker under the Policy, is constituted in accordance with the Policy, not by ED16, and that the Panel is constituted by the Government for the purposes of administering a Government policy. It is submitted that the inclusion of the Solicitor-General as a standing member of the Panel is of significance, as the Solicitor-General occupies an independent statutory office, appointed under the Solicitor-General Act 1983, and the SSA does not apply to that office. The argument runs that the Panel is therefore not comprised exclusively of "officers" within the meaning of the SSA, and that as the decision of the Panel is a joint determination, it cannot relevantly be a State Service action.
The applicant further submits that, by its nature, the Policy is not a delegated power of the relevant employer or head of agency. Rather, it is said that the Policy is a Government policy and while its relationship to the State Service is sufficiently, but not necessarily, achieved by ED16, it nonetheless has a separate existence.
The applicant contends that for example, under the Policy, in the case of a Crown Prerogative employee, the Panel would consist of the Chair, the Chief of Staff of the Premier's Office and the Solicitor-General. A grant of indemnity in that, case it is argued, could not conceivably amount to "State Service action", within the meaning of the SSA and thus the power of the Panel can be seen as being, in every case, derived from the executive powers of Government and not the SSA itself.
The applicant asserts that it follows that the TIC could not relevantly make a direction to the Panel under the SSA, and certainly not to the Solicitor-General.
Mr Bartlett contends that the Policy is made to give substance to the mechanism for indemnity established by ED16 and that the Policy cannot and should not be arbitrarily divorced or dissected from ED16. The submission that the Policy is separate to, different from or distinguishable from ED16, should be rejected, he argues, as there is no logical basis to separate the two.
Mr Bartlett argues that the applicant's contention is flawed because it ignores the existence of the provisions of the SSA and the structure of the public service as the means by which Government gives effect to its policies and law. It is submitted there is no evidence that the Policy was created directly as policy of the Government in its prerogative status. To the contrary, it is said that the history of the indemnity scheme as demonstrated by earlier versions of it, in what is known as Ministerial Direction No 8, and the attachments to it, demonstrate otherwise. That is to say, that the reality is that the Policy was created pursuant to the predecessor of Employment Directions, namely, Ministerial Directions, and the basis for the policy was the SSA and the Statutory Authorities (Protection from Liability of Members) Act 1993. This is clear, it is said, from Ministerial Direction No 8 issued on 1 July 2003.
Mr Bartlett agrees that the Policy establishes the Panel, vested with the responsibility to decide if indemnity is to be granted, "but it does so as a mechanism for decision making by the entities who provide indemnity to those who are employed by or serve government functions."
Thus, Mr Bartlett argues, the Policy merely provides a standard prescription of persons who constitute the Panel, the process of the Panel and considerations for deciding indemnity and the terms of it. It is clear, he contends, that the Panel does so on behalf of the entity (State Service or Statutory Authority) which the public officer serves, as it is that entity which is required to pay the relevant costs.
Mr Bartlett's written submissions conclude:
"21      In view of the matters stated … above, it is clear that the Panel's existence is purely to provide a fair and transparent means of deciding when indemnity will be granted to persons discharging the work of government.
22        It follows, that when Mr Pervan and later Ms Webster took actions in accordance with ED16 they were applying and implementing actions required of them as employees or officers of the employer and taking State Service action in respect of Mr Bartlett's employment.
23        The Panel only operated because of actions taken by the employer's representatives when they acted under ED16 and the Policy. The panel's decision was required to be made under a process in the Policy, which was policy created by specific legislation. The decision by the Panel was taken under delegation of the employer's actions concerning conditions of Mr Bartlett's employment envisaged under Part 7 of the SSA. Similarly, the action by Ms Webster of refusing indemnity was action envisaged under that Part.
24        The TIC is empowered to review the indemnity decision and actions of Mr Pervan and Ms Webster, all taken (sic) state service action. Further, it has power to recommend and direct the head of agency, as representative of the employer to take such action that the TIC considers appropriate."
In supplementary written submissions filed on behalf of Mr Bartlett he observes that the SSA gives the Minister of the State Service, under the Act, the status of Employer, and further gives the Minister power to make directions for the administration of the State Service. He contends that, to the extent that persons other than the Minister are involved in deciding whether a person serving the employer is entitled to indemnity, those persons are merely acting pursuant to delegations expressly available under the SSA. He submits that the phrase "State Service action" in s 50 of the SSA has a "wide meaning" and includes the decision of the Panel, "which in reality is one taken by delegates of the employer who are officers under the Act and the communication of the decision by the Head of Agency who is also an officer."
As will be seen, that last submission carries with it, implicitly, that the Solicitor-General is an "officer" under the SSA.

Discussion and conclusion

Section 51 (6) of the SSA provides;
"In the determination of an application for a review, the Tasmanian Industrial Commission may –
(a)refuse to grant the application for a review and, if appropriate, direct the Head of Agency to take such action as the Tasmanian Industrial Commission considers appropriate; or
(b)in the case of an application for a review under section 50(1)(a), grant the application and direct the Head of Agency to undertake again the selection in accordance with section 39 and undertake such other requirements as are imposed by the Tasmanian Industrial Commission; or
(c)in the case of an application for a review under section 50(1)(b), grant the application and recommend or direct the Employer or the Head of Agency or any person to whom the powers of the Employer or the Head of Agency have been delegated, to take such action as the Tasmanian Industrial Commission considers appropriate." (Italics added.)
The review that Mr Bartlett has asked the TIC to conduct under s 50(1)(b) of the SSA must be of something that can be characterised as a "State Service action that relates to his … employment in the State Service", in order for the TIC's jurisdiction to be enlivened. However, what I identify to be asserted as the only potentially relevant State Service action is a decision by the Panel, in the exercise of its discretion, to refuse to grant an indemnity to Mr Bartlett in respect of his legal costs.
The relevant State Service action cannot sensibly be said to be the writing of the letter of 9 July 2018 communicating the Panel's decision to Mr Bartlett. Paragraph 3.13 of the Policy contains an express requirement for a copy of the Panel's determination to be provided to the Public Officer, the Tasmanian Risk Management Fund and the department, agency, office, unit or entity of the Crown which will be responsible for the payment of costs. That would tend to suggest that when the Head of Agency provided Mr Bartlett's union secretary with a copy of the Panel's determination, she was doing so on behalf of the Panel. But in any event Ms Webster's letter cannot of itself be a relevant State Service action.

Nor do I accept Mr Bartlett's submission that a decision whether to grant an indemnity is a decision of the employer. The Policy expressly grants the decision-making power to the Panel, and no authority or compelling argument supports his contention that a state servant has an express or implied contractual right to indemnity or legal assistance.
I accept the applicant's submission that the means by which the executive government provides express approval to the Head of Agency to expend public funds to indemnify a state servant for the costs of a criminal proceeding is via a determination of the Panel under the Policy. Absent a direct instruction from the Executive, no other lawful mechanism exists for a Head of Agency to make such a payment to a state servant.
Thus, the question arises as to what possible recommendation or direction that could have any ultimate legal effect vis a vis the Panel, could be given pursuant to s 51(6)(c) by the TIC to Mr Bartlett's "Employer or Head of Agency"?
Under par 3.8 of the Policy, the Panel is to "assess" a number of matters, but the exercise of its discretion is unfettered. It is not conceivable, to my mind, regardless of whether one regards the Policy or ED16 as the source of the Panel's power, that even if directed by the TIC, Mr Bartlett's "Employer or Head of Agency" could require the Panel to reconsider its decision or to exercise its discretion to a different effect.
No doubt the Minister of the State Service could make legal arrangements to indemnify Mr Bartlett if he chose to, or he could seek the rescission of the Policy or its amendment to make the Panel's decisions reviewable in the future. There might conceivably be other avenues of review available against the Panel or its members. However, to my mind, absent express provision, it is contrary to principle to suggest that a delegated discretionary power, once exercised, could be retrospectively countermanded by the delegator.
Even if the Employer or Head of Agency could direct the Agency Member of the Panel, which in cases outside the Department of Justice would be the Head of Agency himself or herself, the Employer or Head of Agency could have no power to direct the Solicitor-General to take any particular action. I accept the applicant's submission that the legislative scheme of the Solicitor General Act 1983 results in the creation of an independent statutory office ultimately accountable to Parliament and that it is in the public interest that the office remains "steadfastly independent as part of the State's constitutional fabric and its adherence to the rule of law."
It follows, to my mind, that any direction given by the TIC to Mr Bartlett's Employer or Head of Agency under s 51(6)(c) of the SSA, however framed, would be of no legal effect. No matter how wide a meaning is given to the term "State Service action", it cannot in my view, embrace the exercise of the Panel of its discretion to refuse an indemnity to Mr Bartlett.
It is trite to say that no administrative body can have jurisdiction to make a decision which is and can be of no legal effect. In my view the Deputy President erred in law in deciding on 19 November 2018 that the TIC had jurisdiction to review Mr Bartlett's "unsuccessful request for indemnity and legal assistance".
The applicant's application for an order of review is granted and the decision of the respondent of 19 November 2018 is quashed. I will hear counsel as to the minutes of the order.