Westwood, Paul Denison v Lightly, Edward Stanley

[1984] FCA 83

Re: PAUL DENISON WESTWOOD
And: EDWARD STANLEY LIGHTLY; DERECK JOHN BARRETT and LESLIE BURROWS, members
of the Australian Federal Police Promotion Appeals Board and THE COMMISSIONER
OF POLICE (1984) 2 FCR 41
No. G282 of 1983
Administrative Law
7 IR 104

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Sheppard(1), Neaves(1) and Kirby(1) JJ.

CATCHWORDS

Administrative Law - judicial review - Australian Federal Police - promotion therein - appellant formerly a member of the Commonwealth Police - appointed to Australian Federal Police - appellant formerly eligible for promotion in Commonwealth Police without any requirement that he pass qualifying examination - qualifying examination required as condition of promotion to higher rank in Australian Federal Police - construction of s. 74 of Australian Federal Police Act 1979 which provides that the terms and conditions of service of a member of the Australian Federal Police be deemed to be terms and conditions of service that were formerly applicable to him as a member of another force - whether appellant's entitlement to be considered for promotion without further qualifying examination a term or condition of employment for the purpose of s. 74 - resort to explanatory memorandum and second reading speech for purpose of ascertaining mischief to which statutory provision directed.

Australian Federal Police Act 1979, ss. 25, 26, 30, 31, 36, 40, 46, 72 - 78.

Australian Federal Police Regulations 5, 6, 7 and 9

Commonwealth Police Act 1957

Statutes - Construction - "terms and conditions of service" - Whether include existing entitlement of a person to be considered for promotion without further qualifying examination - Australian Federal Police Act 1979 (Cth), ss 25, 26, 30, 31, 36, 40, 46, 72-78.

Words and Phrases - "terms and conditions of service" - Whether include existing entitlement of a person to be considered for promotion without further qualifying examination.

HEADNOTE

By s. 74 of the Australian Federal Police Act 1974 (Cth) it was provided, until otherwise determined that "the terms and conditions of service of a member . . . shall be deemed to be the terms and conditions of service that were . . . applicable to him "as a member of the Force" in which he had previously served.

Held: that the applicant's former right to be considered for promotion without qualifying examination did not form part of the "terms and conditions of service " of his former position within the meaning of s. 74.

HEARING

Sydney, 1984, February 17; April 6. #DATE 6:4:1984

APPEAL.

Appeal from judgment and orders of Beaumont J.

A. J. Leslie Q.C.,J. W. Shaw and S. C. Rothman, for the appellant.

B. C. Hungerford and J. W. Fernan, for the respondent.

Cur. adv. vult.

Solicitors for the appellant: Steve Masselos & Co.

Solicitor for the respondent: Acting Commonwealth Crown Solicitor.

G.F.V.

ORDER

The appeal be dismissed

The appellant pay the costs of the second respondent of the appeal.

Appeal dismissed with costs.

JUDGE1

In this appeal from a single judge of this Court (Beaumont J.) I have had the advantage of reading the judgments to be delivered by the other members of the Court. I am in agreement with their conclusion that the appeal should be dismissed. I can state my own reasons for that conclusion shortly.

The question is whether the expression, "terms and conditions of service," in s. 74 of the Australian Federal Police Act 1979 ("the Act") is wide enough to include the existing entitlement of a member of one of the component forces to be considered for promotion without the need to pass any further qualifying examination. As a matter of the ordinary use of language the expression in question is capable of that meaning; cf. The Queen v. Booth; Ex parte The Administrative and Clerical Officers' Association (1978) 141 C.L.R. 257 especially at pp. 262 - 263. Furthermore, there is nothing in s. 74 itself to suggest that the expression is to be read down. Especially is that so when one takes into account, as one should, that the section is one designed to protect the existing rights and entitlements of members of the component police forces who were to make up the bulk of the new Force. The section should thus receive a beneficial construction. There is no reason for confining it or reading it down unless considerations arising from the construction of the Act as a whole lead one to conclude that this should be done.

Having considered the Act as a whole, I have reached the conclusion that the expression in question must be read down so as to exclude the matter relied upon by the appellant. It is my opinion that existing qualifications for promotion were not to be carried by members of the component forces with them into their new service.

My reasons for this conclusion stem from a consideration of ss. 26, 30 and 31. Relevantly, s. 26 provides in para. (1)(b) that, subject to the Act, the Commissioner may promote a person who is a noncommissioned officer to a higher non-commissioned rank, being a rank that the person is, in accordance with the regulations, competent and qualified to hold. Regulations have been made pursuant to s. 26 providing for the passing of an examination by persons seeking to be promoted to the rank sought by the appellant in this case. See generally regulations 5, 6 and 7.

Section 30 of the Act, which is found in Part V entitled, "Terms and Conditions of Service", says the Minister may determine the terms and conditions of service of members. Sub-section 31(1) provides that, subject to Part V, the Minister may, on behalf of the Commonwealth, make an agreement in writing with an association relating to terms or conditions of service of members of that association. "Association" is defined in s. 29 to mean, in effect, an association of members of the Force formed for the purpose of Part V of the Act.

Sections 30 and 31 are, as I have mentioned, in Part V. Section 26 earlier referred to is in Part IV of the Act which is entitled, "Appointment and Service of Members". In my opinion it follows that the expressions, "terms and conditions of service of members", in ss. 30 and 31 do not include any term or condition of service related to a member's qualification for promotion. That is a matter which is provided for comprehensively in s. 26 and the regulations made thereunder. If that were not the case, the Minister, by determination under s. 30, or the Minister and an association, by agreement pursuant to s. 31, could effectively overcome the provisions of s. 26 and the relevant regulations. This could lead, not only to uncertainty, but also to a most undesirable situation where, by reason of industrial pressure, the Minister was constrained to alter standards for promotion in the Force.

In reaching this conclusion I have taken into account the opening words of sub-sec. 26(1), "Subject to this Act", and the provisions of para. 40(c), which is in Part V. It provides that the regulations may make provision for and in relation to the promotion of members, including the right of members to appeal against promotion of other members, and the establishment of a Promotions Appeals Board to hear and determine such appeals. In my opinion neither the opening words of sub-sec. 26(1) nor the provisions of para. 40(c) were intended to enable the Minister, by determination or agreement, to bypass the qualifications for promotion which regulations made pursuant to s. 26 were to prescribe.

It follows from the above analysis that the expression, "terms and conditions of service", does not include any condition related to qualification for promotion. That is true in relation to the expression where used in s. 30 and the similar expression used in s. 31. It follows, in my opinion, that the same expression, where used in s. 74, should be given the same meaning. That is particularly so when one takes into account that express reference to ss. 30 and 31 is made in s. 74. What the section is dealing with is terms and conditions of service which fall within ss. 30 and 31. Consequently it is not purporting to preserve to a former member of one of the component forces qualifications for promotion held by him in that force at the time of his appointment to the new Force.

I am strengthened in the conclusion which I have reached by a consideration of the provisions of s. 78 which makes very specific provisions in relation to promotions appeals which members of the component forces were entitled to bring when they were transferred to the new Force. In my opinion this is an indication of the limits to which the legislature intended to protect existing qualifications for promotion.

It remains to say that in reaching my conclusion I have considered the terms of the Minister's second reading speech when the bill was introduced into Parliament and the terms of an explanatory memorandum which was attached thereto. I have taken these generally into account, but I do not find in them, one way or another, any assistance in the task of construction which is involved.

Before concluding I should mention a formal matter. The respondents to the proceedings and to the appeal originally included the Australian Federal Police Promotion Appeals Board. During the hearing we raised with counsel the question of whether the Board was correctly joined by that name. We were informed that it was not a body able to be sued in any corporate name or style. We suggested that there should be an amendment substituting the names of the persons constituting the Board which sat to determine the appellant's appeals. I understand that that amendment has been made, but, in case it has not, I indicate that no order should be taken out until it has.

In the result I am of the opinion that the appeal should be dismissed with costs.

JUDGE2

Paul Denison Westwood ("the appellant"), a member of the Australian Federal Police, appealed to the Promotion Appeals Board ("the Board") established by regulation 18 of the Australian Federal Police Regulations ("the regulations") made under the Australian Federal Police Act 1979 from decisions of the Commissioner of Police ("the Commissioner") selecting certain members of the Australian Federal Police for promotion to vacancies in the rank of station sergeant. The Board dismissed the appeals on the ground that the appellant was not qualified by examination to hold the rank of station sergeant. Thereupon the appellant commenced proceedings in this Court under the Administrative Decisions (Judicial Review) Act 1977 to review the Board's decision. That application having been dismissed, the appellant instituted the present appeal.

The Australian Federal Police came into being on 19 October 1979. Immediately prior to that date there were in existence the Commonwealth Police Force established by the Commonwealth Police Act 1957 and the Police Force of the Australian Capital Territory established by the Police Ordinance 1927. The existing members of those police forces were, by virtue of section 72 of the Australian Federal Police Act 1979, to be appointed under section 25 or section 26 of that Act as members of the Australian Federal Police, such appointments to take effect on 19 October 1979.

The appellant was, immediately prior to 19 October 1979, a member of the Commonwealth Police Force with the rank of senior sergeant, having been promoted to that rank on 4 February 1975. He was appointed under section 26 of the Australian Federal Police Act 1979 a member of the Australian Federal Police with the rank of senior sergeant, that being the rank in the Australian Federal Police declared by the regulations to be equivalent to the rank of senior sergeant in the Commonwealth Police Force (see regulation 5 and Schedule 1, Table 1).

The appellant contends that he is qualified to hold the rank of station sergeant in the Australian Federal Police by virtue of the operation of section 74 of the Australian Federal Police Act 1979. That section has, since its enactment, provided -

"(1) Until a determination under section 30 or an agreement in effect under section 31 otherwise provides, the terms and conditions of service of a member of the Australian Federal Police who was, immediately before the commencing date, a member of an existing Police Force shall be deemed to be the terms and conditions of service that were, immediately before that date, applicable to him as a member of that Force.

(2) A reference in sub-section (1) to terms and conditions of service that were, immediately before the commencing date, applicable to a person shall be read as including a reference to -

(a) a determination made by the Public Service Arbitrator;

(b) a determination of the Public Service Board in force under the Public Service Act 1922;

(c) a determination of the Minister in force under sub-section 5(4) of the Commonwealth Police Act 1957;

(d) a determination of the Police Arbitral Tribunal in force under the Police Ordinance 1927 of the Australian Capital Territory as amended; or

(e) an agreement made, or purporting to be made, under section 5B of that Ordinance as amended."

It is common ground between the parties that the appellant has not passed the qualifying examination for the rank of station sergeant prescribed by regulation 7 of the regulations and is not expressly exempted from taking that examination by regulation 9. In those circumstances it is submitted for the Commissioner that the Board's decision was correct and the appellant is not qualified to hold the rank of station sergeant in the Australian Federal Police, section 74 not having the operation for which the appellant contends.

Before examining the respective submissions it is necessary to refer to some of the legislative provisions relating to the Commonwealth Police Force and the Australian Federal Police and to what was done under those provisions.

The Commonwealth Police Act 1957 provided that the Commonwealth Police Force was to consist, inter alios, of Commonwealth police officers of such number, ranks and grades as the Attorney-General, with the concurrence of the Public Service Board, should determine (sub-section 4(1)). Commonwealth police officers were to be appointed by the Attorney-General (sub-section 5(2)). They were not subject to the Public Service Act 1922 and their terms and conditions of service were to be such as the Attorney-General, with the concurrence of the Public Service Board, should determine (sub-section 5(4)). In 1976 the references to the Attorney-General were amended to refer to the Minister administering the Commonwealth Police Act 1957 (see Act No. 91 of 1976).

Immediately prior to 19 October 1979 the ranks and grades in the Commonwealth Police Force below the rank of inspector were constable, first constable, senior constable, sergeant and senior sergeant. The terms and conditions applicable to members of the Commonwealth Police Force immediately prior to that date were set out in consolidated form in a document entitled "Commonwealth Police Force Terms and Conditions of Service". That document dealt with a great variety of subject matters, their general scope being sufficiently demonstrated by reference to the headings of the various parts and divisions into which it was divided. They included such matters as appointments and retirements, classification and increments, travelling and other allowances, fares and mode of travel, hours of duty and overtime, removal expenses, leave of absence and holidays, uniforms and insignia of rank and assistance with studies. Part VI (clauses 51 to 66 inclusive), which is of particular relevance to the present appeal, dealt with promotions and transfers.

Clause 52 provided for a vacancy to be filled by the Commissioner of the Commonwealth Police Force promoting or transferring a member to the vacancy. In the selection of a member for promotion consideration was to be given first to the relative efficiency (as defined) and, in the event of an equality of efficiency of two or more members, to the relative seniority (as defined), of members available for promotion. Promotion was to be provisional and subject to a right of appeal. Promotions Appeal Committees were established by clause 53. In some cases a Committee was empowered to determine the appeal: in others it could only make a report on the claims of the parties, the decision being made by the permanent head of the Department of State responsible for the administration of the Commonwealth Police Act 1957 (clause 55).

Clause 51 provided that, on the recommendation of the Commissioner, the permanent head might, by instrument in writing, determine that a member was not to be promoted to a specified rank in the Commonwealth Police Force unless the member possessed such qualifications or complied with such conditions as he should think fit. The permanent head was empowered to hold, or authorise the holding of, examinations and to determine conditions of entry for any examination and the conditions under which examinations were to be conducted.

Immediately prior to 19 October 1979 a determination under clause 51 was in force the effect of which was that a member of the Commonwealth Police Force was not to be promoted to the rank of first constable, senior constable or sergeant unless he had first passed satisfactorily the relevant examination for promotion to those respective ranks. There was no requirement to pass a qualifying examination in the case of promotion to the rank of inspector or to any higher rank.

I turn now to the provisions of the Australian Federal Police Act 1979 and the regulations made thereunder. It will be sufficient, for the purposes of this appeal, to refer to the provisions of the Act as they stood at the date of their enactment in June 1979.

By virtue of section 6, the Australian Federal Police was to be constituted by the Commissioner, a Deputy Commissioner or Deputy Commissioners, commissioned and non-commissioned police officers (comprising a component performing general police functions) and commissioned and non-commissioned protective service officers (comprising a component performing police protective service functions). For the purposes of this appeal it is not necessary to refer to the protective service officers or the component which they comprise.

There were to be such commissioned and noncommissioned ranks as were prescribed by regulation (section 23). The non-commissioned ranks prescribed included the rank of station sergeant (regulation 4(a)). Sub-section 26(1) of the Act provided, so far as material -

"Subject to this Act, the Commissioner may, by instrument in writing -

(a) appoint a person to be a non-commissioned officer in a component, being an appointment to a rank that the person is, in accordance with the regulations, competent and qualified to hold;

(b) promote a person who is a non-commissioned officer in a component to a higher noncommissioned rank in either component, being a rank that the person is, in accordance with the regulations, competent and qualified to hold;

(c) . . . .

(d) . . . ."

Sub-section 25(1) made similar provision in relation to appointments and promotions to commissioned ranks.

Part V of the Act, headed "Terms and Conditions of Service", comprised sections 29 to 59 inclusive. Reference should be made to sections 30, 31, 36, 40, 42 and 46.

Section 30 provided -

"Subject to this Part, the Minister may determine the terms and conditions of service of members."

Sub-section 31(1) provided -

"Subject to this Part, the Minister may, on behalf of the Commonwealth, make an agreement in writing with an association relating to terms or conditions of service of members of that association." "Association" was defined in sub-section 29(1) to mean an association of members formed in accordance with regulations made by virtue of section 40.

No relevant agreement under sub-section 31(1) was placed before the Court but a determination under section 30 was made by the Minister on 11 July 1980. The operative clause of that determination provided that the terms and conditions of service for members of the Australian Federal Police were to be in accordance with the attachment to the determination. The determination was to apply, inter alios, to each member of the Australian Federal Police who was, immediately before 19 October 1979, a member of the Commonwealth Police Force.

Section 36 was in the following terms -

"(1) In the selection of a member for promotion to a rank, consideration shall be given to the relative efficiency of the members available for promotion and, in the event of equality of efficiency of 2 or more of those members, then to the relative seniority of those members.

(2) For the purposes of this section -

(a) "efficiency", in relation to a member, in relation to a rank, means the possession by the member of special qualifications and aptitude for the discharge of duties of the kind to be performed by members holding that rank, together with merit, diligence and good conduct; and (b) the seniority of members shall be determined as prescribed."

By virtue of section 40, regulations made under the general regulation-making power conferred by section 70 might make provision for and in relation to a number of specific matters including the promotion of members, the right of members to appeal against the promotion of other members, and the establishment of a Promotion Appeals Board to hear and determine such appeals (paragraph (c)).

By section 42 there was established a tribunal to be known as the Federal Police Arbitral Tribunal to which the Minister might submit matters relating to the terms and conditions of service of members and an association might submit matters relating to the terms and conditions of service of members of that association. The Tribunal, however, was given no power to determine, inter alia, matters relating to appointments or promotions or matters relating to terms and conditions expressly provided for by the Act or the regulations or by any other law of the Commonwealth applicable to members (section 46).

Part VII of the Act, comprising sections 71 to 80 inclusive, enacted transitional provisions. By virtue of section 72, a person who, immediately before 19 October 1979, was a member of an existing police force (i.e. the Commonwealth Police Force or the Police Force of the Australian Capital Territory) was to be appointed under sections 25 or 26, as the case required, to be a member of the Australian Federal Police, such appointment to take effect on 19 October 1979. Section 73 provided that, where an appointment, other than an appointment in pursuance of section 72, was to be made to a rank in the Australian Federal Police within 5 years, or such longer period as might be prescribed, after 19 October 1979, preference over any other applicant was to be accorded to a member of the Australian Federal Police who was a member of an existing police force immediately before that date, who was qualified to hold that rank and who was, in the opinion of the Commissioner, suitable for the appointment.

The text of section 74 has already been set out.

Other transitional provisions provided for the recognition of service as a member of an existing police force for superannuation, long service leave and maternity leave purposes (section 75), for the recognition of a grant of leave for a period commencing on or before 19 October 1979 and ending on or after that date (section 76) and for the retention of accrued rights in respect of recreation leave and leave on the ground of illness (section 77). Section 78 empowered the making of regulations enabling a person who, immediately before 19 October 1979, had a right of appeal against a prescribed promotion to appeal against the appointment made in pursuance of section 72 of the person so promoted as if that appointment were a promotion made under the Australian Federal Police Act 1979. "Prescribed promotion" was defined to mean the promotion of a member of an existing police force made before 19 October 1979, being a promotion that was subject to appeal and, immediately before that date, had not been confirmed or cancelled. Section 79 enacted transitional provisions in relation to the determination of disciplinary charges in respect of offences alleged to have been committed before 19 October 1979 by a person appointed in pursuance of section 72.

The regulations provided that, for the purposes of an appointment under section 72, a person who, immediately before 19 October 1979, was a member of an existing police force was competent and qualified to hold a rank in the Australian Federal Police that was equivalent to the rank that he held in that existing police force immediately before that date. As previously mentioned, the rank in the Australian Federal Police that was equivalent to the rank of senior sergeant which the appellant held in the Commonwealth Police Force was the rank of senior sergeant (regulation 5).

Sub-regulation 6(3) provided -

"Except where regulation 5 applies, a person is, for the purposes of sections 25 and 26 of the Act, competent and qualified to hold a rank (in this sub-regulation referred to as the "relevant rank") other than the rank of Constable or Protective Service Constable if the person -

(a) has, while serving in the rank that he is holding, discharged his duties to the satisfaction of his superior officers and displayed such ability as would enable him to perform the duties of the relevant rank;

(b) where the relevant rank is the rank of Sergeant, Protective Service Sergeant, Inspector, Protective Service Inspector or a rank above the rank of Superintendent - has been certified by a medical practitioner approved by the Commissioner to be in good health, of sound constitution and fit both physically and mentally to perform the duties of that rank;

(c) has undertaken, to the satisfaction of the Commissioner, such training course or courses as the Commissioner determines in relation to the relevant rank; and

(d) where a qualifying examination is prescribed in relation to the relevant rank - has, unless he is exempted by virtue of regulation 9 from taking the qualifying examination, passed that qualifying examination."

By virtue of regulation 7 and the provisions contained in Schedule 2, a qualifying examination was prescribed in relation to the rank of station sergeant. A member might not sit for that examination unless he held one of the ranks specified in column 4 of Schedule 2. One of the ranks so specified was that of senior sergeant.

By virtue of sub-regulation 9(1), a person who, immediately before 19 October 1979, was a member of the Commonwealth Police Force and who was appointed to be a member of the Australian Federal Police in pursuance of section 72 was exempted from taking a qualifying examination in the circumstances there set out. That sub-regulation did not exempt such a person from taking the qualifying examination for the rank of station sergeant. Subregulation 9(3) provided -

"A person appointed to the rank of Senior Sergeant or Protective Service Senior Sergeant in pursuance of section 72 of the Act is exempted from taking the Qualifying Examination for the Rank of Station Sergeant if the person has passed the Qualifying Examination for Commissioned Ranks."

It was common ground on the hearing before the learned primary judge and on the hearing of this appeal that, if the regulations, on their proper construction, applied to the appellant, he was not at the time of the Board's decision qualified for promotion to the rank of station sergeant.

For the appellant it was submitted that, immediately prior to 19 October 1979, he was qualified to hold, and therefore eligible to be promoted to, any rank in the Commonwealth Police Force above the rank of senior sergeant which he then held. In particular, it was said that he was so qualified and eligible in respect of the rank of inspector, there being no qualifying examination prescribed in relation to promotion to that rank. Section 74 of the Australian Federal Police Act 1979 was said to preserve that qualification and eligibility as one of the terms and conditions of service that were applicable to him as a member of the Commonwealth Police Force. The consequence was, so the argument ran, that he was qualified to hold, and eligible to be promoted to, the rank of station sergeant and, indeed, all higher ranks in the Australian Federal Police. Section 74 was said to have this result notwithstanding any other provisions of the Australian Federal Police Act 1979 or the regulations made thereunder specifying the qualifications necessary for the promotion of members of the Australian Federal Police to higher rank.

This argument was rejected by the learned primary judge who referred to a number of difficulties primary judge who referred to a number of difficulties in accepting the broad, unrestricted interpretation of section 74 urged by the appellant. His Honour was of opinion that section 74 should be construed in the light of the whole of the transitional provisions contained in Part VII of the Australian Federal Police Act 1979 and concluded that, if section 74 was intended to have the sweeping operation contended for by the appellant, the enactment of some at least of the other specific transitional provisions would have been unecessary. His Honour also referred to other difficulties in giving section 74 the operation for which the appellant contended. He drew attention to the scheme of the Australian Federal Police Act 1979 which did not simply transfer the members of the Commonwealth Police Force and the Police Force of the Australian Capital Territory (which had different rank structures) to the newly created body but provided for the appointment of such members to the new body at an equivalent rank. His Honour said -

"In my view, the absence of exactly identical equivalent ranks in the two existing forces is a strong indication that the legislature did not, by the use of the general expression 'terms and conditions of service', intend to pick up, as within it, the eligibility and qualifications of the applicant, if any, to promotion to superior rank within Compol (the Commonwealth Police Force). Given the coalescence of the two existing forces under the Act, I think the more likely interpretation intended to be given to the 'saving' provision of s. 74(1) is to read it as preserving the rights and obligations of members of existing police forces in terms of remuneration, discipline, retirement, dismissal and the like."

His Honour concluded that section 74 should be construed so as not to comprehend qualifications and eligibility for promotion.

I am in agreement with the conclusion reached by the learned primary judge and with his reasons. The obvious intent of the legislature was to create a single cohesive police force the initial membership of which was to include the then serving members of the Commonwealth Police Force and the Police Force of the Australian Capital Territory. Those forces had a different rank structure and both differed from the rank structure adopted for the new body. Elaborate provision was made for the appointment of each member of the existing forces to the new body at a rank equivalent to that which he held immediately before the date on which the new body came into existence. Specific attention was given in section 78 and in the regulations carrying that provision into effect to questions concerning promotions made within the existing forces prior to the new body coming into existence and steps were taken to preserve rights of appeal.

I am satisfied that it would not be consistent with the legislative intention to be ascertained from a consideration of the object which the legislature was clearly seeking to achieve and the detailed provisions which the Australian Federal Police Act 1979 contains to hold that section 74 preserved to the appellant an eligibility to be promoted to higher rank in the Australian Federal Police otherwise than in accordance with the provisions contained in sections 25 and 26 of that Act namely that promotion be to a rank which he was, in accordance with the regulations, competent and qualified to hold.

I should add that, even if the interpretation of section 74 contended for by the appellant were to be adopted, further obstacles would stand in his way. The only relevant term and condition of the appellant's service as a member of the Commonwealth Police Force was a right to be considered for promotion to the rank of inspector or higher rank in that force without the necessity to pass any qualifying examination. The appellant's argument did not provide any satisfactory basis upon which section 74 could be read as transmuting that right into a right to be considered for promotion to the rank of station sergeant in the Australian Federal Police. Should this difficulty be overcome a further difficulty would arise from the circumstance that the Minister has exercised the power conferred upon him by section 30 to determine the terms and conditions of service of members of the Australian Federal Police who were, immediately before 19 October 1979, members of the Commonwealth Police Force. That determination was made on 11 July 1980 and accordingly section 74 then ceased to have any relevant operation in relation to such members.

For these reasons the appeal should be dismissed with costs.

JUDGE3

Mr Westwood (the appellant) claims that he was qualified to be promoted or to be considered for promotion to the rank of station sergeant or higher rank in the Australian Federal Police without the necessity to pass a qualifying examination. Several factors led him to his conclusion.

He was a member of the Commonwealth Police Force with the rank of senior sergeant immediately prior to the incorporation of that Force in the Australian Federal Police on 19 October 1979. Immediately before that date no such qualifying examination was required before consideration for promotion to the next rank in the Commonwealth Police Force, namely inspector. As the evidence discloses, the appellant, in fact, pursued a course in law and qualified in law by the time the appeal was argued before the Court. A reluctance to undertake a further qualifying examination before claiming consideration for promotion might have seemed reasonable to him.

The entitlement to consideration for promotion without a qualifying examination would, in ordinary speech, have been regarded as one of the 'terms and conditions' of his service as a member of the Commonwealth Police Force. The expression 'terms and conditions of service' is a wide one and would clearly include rights to promotion within the service. Cf R v Booth; ex parte Administrative & Clerical Officers' Association (1978) 141 CLR 257.

Section 74 of the amalgamating statute, Australian Federal Police Act 1979 ('the Act'), specifically set out to preserve terms and conditions of service of continuing police officers such as the appellant upon their appointment to the Australian Federal Police. It is convenient to repeat subsection 74(1) for it is of critical importance:

(1) Until a determination under section 30 or an agreement in effect under section 31 otherwise provides, the terms and conditions of service of a member of the Australian Federal Police who was, immediately before the commencing date, a member of an existing Police Force, shall be deemed to be the terms and conditions of service that were, immediately before that date, applicable to him as a member of that Force.

The respondent conceded that, looked at by themselves and 'out of context' the words in the subsection would support the preservation of the entitlement to consideration for promotion without further qualifying examination contended for by the appellant.

No agreement had been made under subsection 31(1) between the Minister (on behalf of the Commonwealth) and an industrial association (on behalf of members) relating to terms and conditions of service so as to dislodge the operation of subsection 74(1). Accordingly, no agreement operated to modify the promise of the preservation of terms and conditions contained in subsection 74(1). Although a determination under s30 was made by the Minister on 11 July 1980, that determination did not deal, in its terms, with the necessity or otherwise for a continuing officer from one of the pre-existing Forces to submit to examination in order to qualify for consideration for promotion to the next rank in the new Force. It is not entirely clear whether the making of a determination under s 30 or an agreement under s 31 is an event which, of itself, terminates the preservation of the terms and conditions referred to in subsection 74(1). Another possible interpretation of the subsection is that the detailed provisions of the determination or agreement would simply be read with the continuing terms and conditions of service, modifying the latter only to the extent of any inconsistency. This is the more likely interpretation. It is more compatible with the beneficial objective of the subsection. As the determination did not specifically deal with qualifications for promotion it did not 'otherwise provide'. Accordingly, on the better view, the 'continuing' terms and conditions of service referred to in subsection 74(1) would remain applicable to a transferred member of the new Force, such as the appellant.

Although the appellant's primary contention was that he was qualified to be promoted to the rank of station sergeant in the amalgamated force, the only relevant term and condition of his service as a member of the Commonwealth Police Force was the right to be considered for promotion to the rank of inspector or higher rank without the necessity to pass a qualifying examination. Nonetheless, that entitlement to consideration for promotion to the next rank in the new Force was denied to him because of the view taken of the Act by the Promotion Appeals Board. That Board dismissed the appellant's appeal on the ground that he was not qualified by examination to hold the rank of station sergeant. By inference the Board took a view of s 74 of the Australian Federal Police Act 1979 which was contrary to that contended for by the appellant. A question of law thus arises which is amenable to the jurisdiction of the Court reviewing the Board's decision under the Administrative Decisions (Judicial Review) Act 1977. Even if it would not have been open to Beaumont J, at first instance, to determine that the appellant held the rank of station sergeant, it would have been open to his Honour, if the view contended for by the appellant was correct, to require the Board to reconsider the matter in the light of the correct interpretation of subsection 74(1). This was the effect of one of the orders claimed by the appellant before Beaumont J.

The central question in the case thus involves the meaning of subsection 74(1). It is normal to express the function of the Court in a case such as this as being that of ascertaining the intention of the Parliament in enacting the provision. This is often a fiction. Parliament will normally have given little if any attention to the myriad of factual possibilities that can arise and to which its legislation will apply. It is inconceivable that the Parliament collectively or individual Members considering the Australian Federal Police Bill 1979 would have reflected upon the preservation of promotion rights of continuing police officers such as the appellant, as they were transferred from one of the pre-existing forces into the new amalgamated force.

Until recently, the search for the presumed intention of the Parliament was confined to the language of the legislation and the context, aided occasionally by reference to such matters as the legislative history or the public policy that could be inferred from the language of the legislation. In the present case, in the hope of throwing further light upon the problem or mischief to which subsection 74(1) of the Act was addressed, the appellant drew attention to the Second Reading Speech made by the then Minister for Administrative Services (Mr McLeay) when introducing the Australian Federal Police Bill 1979 into the House of Representatives on 10 May 1979. This course was not contested. There is now a well-established line of authority in the High Court and in this and other courts that suggests that judges may have regard to Ministerial Second Reading Speeches at least for this limited purpose. See Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583, 600 (Stephen J); Federal Commissioner for Taxation v Whitfords Beach Pty Ltd (1982) 39 ALR 521 (Mason J); TCN Channel 9 Pty Ltd v AMP Society (1982) 42 ALR 496 (Full Federal Court); R v Murray (1982) 1 NSWLR 760 (Cross J). Cf Hadmor Productions Limited v Hamilton (1982) AC 191, 227 (HL).

As disclosed in the Commonwealth Parliamentary Debates (House of Representatives) 10 May 1979, Mr McLeay outlined the purposes for the creation of 'the new single police force'. These included to:

Overcome the problems that are associated with distinctions of jurisdictional boundaries for the functions of police organisations not only throughout Australia but also in the Australian Capital Territory; provide a firm basis for effective co-operative between the Commonwealth and the State in the law enforcement area; and more effectively and economically co-ordinate police resources in the Commonwealth area (p 2092).

According to the Minister, the Act would come into operation on a date to be proclaimed, which date 'will identify an incorporation date for the appointment of all present members of both present forces into the new Australian Federal Police'.

In recognition of the consequent changes in the terms and conditions of employment of continuing police officers coming from the two existing Forces, and doubtless mindful of the lack of exact equivalence in the rank structures of the two Forces, the Minister then gave certain further assurances:

The legislation meets the assurances that have been given by Ministers that jobs, career prospects and terms and conditions of employment of members of both police forces will not be at risk. Provisions of the Bill expressly provide for the application of existing terms and conditions to individual members of the two present forces being incorporated into the Australian Federal Police, until a new agreement or determination is made after the incorporation date. As with any organisation, new terms and conditions will evolve with the process of negotiation and arbitration before a Federal Police Arbitral Tribunal, following the incorporation date . . . (T) he Government has been concerned to ensure the opportunity, and for the present members of the existing forces a preferential opportunity, for transfer and general mobility subject to the usual principles of competence and qualifications between the two components. Training opportunities are to be provided to enable members to achieve the competence and qualifications that will be needed for promotion and transfer between components. The allocation of the detailed functions and personnel to the components is provided for the Commissioner to determine (p 2092).

On the basis of these assurances, and others referred to by Mr McLeay which had apparently been given by other Ministers relating to 'jobs, career prospects and terms and conditions of employment', it is not surprising that the appellant considered that when the amalgamation occurred, he would not be disadvantaged in consideration for promotion. Specifically it is not surprising that he assumed that, as a continuing police officer, he would be qualified for promotion without the necessity of examination, as had been the case in the Force to which he had belonged.

It is in these circumstances that it is necessary to turn to the provisions of the Act and the Australian Federal Police Regulations ('the regulations') to ascertain whether the apparent effect of subsection 74(1), as reinforced by the Ministerial statements, must be read down as the Commissioner contends, effectively to exclude the preservation amongst the 'terms and conditions' which continuing police officers carried with them, of the right of consideration for promotion without examination. For several reasons, I believe that a proper construction of the Act and regulations requires the apparently general language of subsection 74(1) to be so read down.

The provisions of subsection 74(1) are found in Part VII of the Act comprising transitional provisions. They must be interpreted so that they can operate as compatibly as possible with the language and scheme of the general provisions of the Act. As may be expected, those general provisions constitute the Australian Federal Police as a disciplined service, reposing in the Commissioner large powers in respect of the promotion of members. Even continuing police officers such as the appellant are, by the transitional provision of subsection 72(1), to be appointed 'under s 25 or 26, as the case requires, to be a member of the Australian Federal Police'. Subject to the Act, in the appellant's case under s 26 (as a non-commissioned officer) the Commissioner was empowered (so far as is relevant) in accordance with subsection 26(1) by instrument in writing, to:

(a) appoint a person to be a non-commissioned officer in a component, being an appointment to a rank that the person is, in accordance with the regulations, competent and qualified to hold;

(b) promote a person who is a non-commissioned officer in a component to a higher non-commissioned rank in either component, being a rank that the person is, in accordance with the regulations, competent and qualified to hold.

The transitional provision in subsection 72(1) entitled the appellant to be appointed a member of the Australian Federal Police. But the entitlement to appointment was limited to appointment 'under s 26'. Paragraph 26(1)(a) of the Act controls the rank of appointment. It is expressed to be at a level not that the appointee was competent and qualified to hold in the pre-existing Force, nor that he was competent and qualified to hold in abstract but to a rank which 'in accordance with the regulations' he is competent and qualified to hold.

Accordingly it is the Act itself, by the vehicles of paragraphs 26(1)(a) and 26(1)(b) that imports the regulations. These regulations, in turn, import in the case of promotion the obligation to perform a qualifying examination prescribed by Regulation 7 of the regulations unless the person is expressly exempted by Regulation 9. True it is, the provisions of s 26 are expressed to be 'subject to the Act'. But that phrase cannot preserve the operation of continuing terms and conditions under subsection 74(1) in such a way as to override the specific reference to the incorporation of the regulations. If it were otherwise there would be no provision in the statute to authorise the appointment of a continuing police officer such as the appellant to the new Force. That cannot have been the intention of the legislation.

Clearly it is necessary to read subsection 72(1) with its importation of the provisions in s 26 (and thereby of the requirements of the regulation) compatibly with the guarantee in subsection 74(1). But in order to make the two provisions in the transitional arrangements work together, it is inevitable that the general promise of the preservation of 'the terms and conditions of service of a member' made in subsection 74(1) must be read down to exclude at least those 'terms and conditions' which previously governed competence and qualification for consideration for appointment or promotion to a particular rank. By force of s 26, imported into the transitional provision by subsection 72(1), such appointment or promotion can only be in accordance with the regulations. To the extent that the general language of s 74, in isolation, might be thought to introduce a saving provision for continuing members of their terms and conditions relating to consideration for appointment and promotion, that general provision must be read down so that it can operate compatibly with subsection 72(1), s 26 and the regulations imported by force of these provisions. It is important to point out that this is not a case where the regulations, alone, are in competition with the statute. In this case, the statute has, in specific language, imported the regulation governing competence and qualification for appointment and promotion. Unfortunately for the appellant, the regulation requires that the qualifying examination should be passed before consideration for promotion to a higher rank or that he should be exempted. He has neither passed the examination nor has he been exempted.

The Board's decision was therefore correct. The appellant is not entitled, under the legislation, to be appointed or promoted to the rank of station sergeant in the Australian Federal Police. Nor is he entitled to have his claim to promotion reconsidered on the basis that subsection 74(1) of the Act has preserved his right to consideration for promotion without the necessary examination as prescribed by the regulations.

I reach this view with some regret. The result will be that a person who has qualified in law and who before amalgamation would not have been required to undergo a specific examination for consideration for promotion will now have his terms and conditions relating to promotion effectively changed so that such an examination is required. This will be so notwithstanding general statements in the Act, by Ministers in the Parliament and elsewhere, that the terms and conditions of continuing members would be preserved. Those terms and conditions might reasonably have been expected to include qualifications for consideration for promotion. Whether the appellant should, by reason of his other qualifications, be exempted or otherwise recognised in the Force, is a matter that will doubtless have the attention of his superiors. But his application for relief under the Administrative Decisions (Judicial Review) Act 1977 must be denied.

The appeal should be dismissed with costs.