Twining v Australian Public Service Commission

The applicants, Mr. Twining and others, sought judicial review of decisions made by the Australian Public Service Commission (APSC) concerning the interpretation and application of section 33(2) of the *Public Service Act 1999* (Cth). The dispute centred on whether the APSC's interpretation of this provision, which relates to the delegation of powers by the Secretary of the Department of Finance and Administration, was lawful. The matter came before the Full Federal Court of Australia.

The primary legal issue before the Court was whether the APSC's interpretation of section 33(2) of the *Public Service Act 1999* was correct. Specifically, the Court had to determine whether the Secretary of the Department of Finance and Administration could lawfully delegate the power to determine the remuneration of APS employees to a person who was not an APS employee. This involved an examination of the scope and limitations of the delegation powers conferred by the Act.

The Court considered the text and purpose of section 33(2) and related provisions of the *Public Service Act 1999*. Kirby and Callinan JJ, in their joint judgment, concluded that the language of section 33(2) did not permit the delegation of the power to determine remuneration to a non-APS employee. They reasoned that the Act contemplated that such determinations would be made by officers within the APS structure, thereby maintaining a degree of internal accountability and control over remuneration decisions. The Court found that the APSC's interpretation, which allowed for delegation to individuals outside the APS, was inconsistent with this legislative intent.

The Court allowed the application for judicial review and quashed the APSC's decisions.