CATCHWORDS Administrative Law - Judicial review - Employment in a temporary capacity under an enactment terminated, dispensed - with, not renewed or extended ~ whether a decision subject to judicial review. lLecal Releationshin - terms and conditions of temporary employment under an enactment. Administrative Decisions (Judicial Review) Act 1977 ss.3,5.6. Broadcasting and Television Act 1942 ss.79B-7927 Commonwealth Employees (Redeployment and Retirement) Act 1979 ss.5,26. Public Service Act 1922 ss. 7,10,82,82A,82B Statute Law Revision Act 1981 s.79 ROWALD FOWELL, R.W. COLE, R.J. YOUNG, J.V. MONAGHAN and THE SPECIAL BROADCASTING SERVICE v. SIMON IOANNOU N.S.W. G No. 158 of 1982 CORAM: Bowen C.J., Woodward and Northrop JJ. Sydney 17 December 1982 IN THE FEDERAL COURT OF AUSTRALIA ) ) NOW SOUTH WALES DISTRICT REGISTRY ) No. Gi58 of 1982 ) GENERAL DIVISION ) ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: RONALD FOWELL, R.W. COLE, R.J. YOUNG, J.V. MONAGHAN and THE SPECIAL BROADCASTING SERVICE Appellants (Respondents) AND: SIMON IOANNOU Respondent (Applicant) ORDER JUDGES MAKING ORDER: Bowen C.J3., Woodward and Northrop JJ. WHERE MADE: Sydney DATE: 17 December 1982 THE COURT ORDERS THAT: — 1. The appeal be allowed. 2. The order of the Court made on 23 August 1982 be set aside and in lieu thereof order that the application be dismissed. 3. The respondent pay the appellants' costs of the appeal and costs of the application. a IN THE FEDERAL COUKT GF AUSTRALIA } ) NCW SOUTH KALES DISTRICT REGISTRY ) N. MO. G-156 of 198z ) ) GLNERAL DIVISION ON APPLAL FROM THLE FEDERAL COURT OF AUSTRALIA - RONALD FOWELL, R. hk. COLL, R. Jd- YOUNG, J. V- bCl/.GHAN and THL SPECIAL BkOADCASTING SERVICE Appellants (Respondents) and SISCN IOANNOU Responcent (Applicant) CORA: Bowen, C.J., hoodward and horthrop JJ. BCV.EN C.J. and NOKRIHKOP J. REASONS FOR JUDGMENT 17 DECLEBLR 1982 This appeal concerns the construction of s.62(4) Public Scrvice Act 1922, as amended, and its application to Simon Ioannou, "the hespondent" being a member of the staff of the Special Broadcasting Service, "the Service". Act ho. 160 of 1677 ainsertcd Part 111A into the broadcasting and Tclevision Act 1942, as amended. Part 111A is headed, "The Special Broadcasting Service" and comprises s.79B —- 79%J inclusive of the broadcasting and Television Act. hinor amendments have been made to that Part since it came into Ofcration on 1 January 1976, and references to that Part wall be to the provisions currently in operation. Section 79C of the broadcasting ana Televisicn Act? establishes the Service which, under s.79G is a boay corporate. Its functions are set out in s.79D while ats powers are set out in s.7Sk. The chief executive officer of the Service is the Executive [Lirector, s.79G, and s.79X authorizes the Service to delegate any of its powers to the Lxccutive Director or to an officer of the staif. Section 79Y makes provision for the staff of the Service and the relevant parts of that section are set out: "79Y. (1) The staff of the Service shall be Eersons appointed or employed under the Public Service Act 192z. <4 (4) The Lxecutive Director has all the povers ot, or exercisable by, a Permanent head under the Puklic Service Act 1922 so far as those powers relate to the branch of the Australian Public Service comprising the staff referred to in sub-section (1) as if that branch were a separate Department of the Kustral1zan Public Service. (5) For the purposes or sub-sections 25(5) and (G) of the Public Service Act 1922, the Laccutive Lirector shall be deemed to be & Permanent Head." Sections 792 - 79%G contain provisicns relating to the finances of the Service, an@ under s.79%8 the monies of the Service may be applied in payment of remuneration to persons referred to in s.79Y. The Public Service Act, by s.10, constitutes the Australian Public Service as the "persons who occupy the offices in the several Lepartments speciiied in Schedule 2 an@ the persons who are unattached officers". In that Act, unless a contrary intention appears, the word "cfficer" weans a persen appointed to the Australien Public Service "but does net ancluae an cemployce", s.7, while "employee" means a person cmployed under Division 10 of Part 111 of that Act. 'hat Livision is headed "'emporary Lmployment" and comprises sections 62, 82h and 62E. 'thus, in the Public Servace Act @ dichotomy 1s adopted to distinguish an "officer" trom an "employee". Generally speaking, an officer 1S appointed tc an oifice while an employec 1s employed under s.&2. This dichotomy 1s recognized by the wording of s.79¥(1) of the breaccesting and Television Act 1942. The distinction between the two classes of persons 1s often referred to as those béing in permanent employment and those being in temporary employment, but the use of those phrases can be misleading ana often confuses the nature of the legal rights ana privileges and duties and obligations with respect to ofticers and employces when appointed cr emplcycad under the provisions of the Public Service Act. In bharch 1980, the Service advertised positicns to be filled in the Service. #& number of positions were aavcertised ancluding that of Programne assessor (Overseas). the relevant part of one such advertisement is set out: o a sat 'APPOILTELLNTS Sydney and helbourne The Special broadcasting Service 1s seeking applications from qualifiec men and women for the following positicns. eae TELEVISICN BRANCH Sydney Program Assessor (Cverseas) $19,124 - $15,696 p.a. In liaison with Producers select, examine and review programs available from overscas sources and develop procran schedules. Arrange assessments in regara to language and content, political, religious and sccial - sensitivity through contact with translators, ethnic community grcups and ethnic organisations. The successful applicants will be offered temporary employment under the Australiun Public Service Act for up to 12 months with the Special Broadcasting Service pending transfer to the Independent and Multicultural broadcasting Corporation when established. Ly way of parenthesis, at that tine the Government antended to establish the Independent ana Muliirculturel Broadcasting Corporation as a statulory body te take over the functaicns ot the Service. In fact, the Coverrment has not established that corporation and on 26 June 1981 the Minister announced that the Government was not proceeding with the flan to. establish it. The reference in the advertisement to "temporary employment under the Australian Public Service Act" must be a reference to employment under s.6&2 of that Act. At that tame, March 198G, the relevant provisions of s.&2Z were as follows: "6zZ.(14) Subject to this section, a Chief Officer of a Department may enploy persons in a temporary capacity in the Lepartment. (1) Vhenever the Chaef Officer is cf opinicn that temporary assistance 1s necessary, he shell advise the Board accordingly. (Z) If the board is satisfied that such assistance is required, the board shall select, in such manncr as 1s prescribed, from the register of applicants ior temporary employment, such persons who are available as appear to be best qualified for the work: Provided that where no suitable person is available from the register of applicants for temporary employment the bLoara mey authorize the employment of any person suitable for the work to be performed. (3) Any such person shall be paid at such rate as 1s Geticrmined by the LEoard as being applicable to the work to be performed (not being less than a rate within the limits ot payment prescribed for permanent employees for similar work), and shall be entitled to the same public holidays as permanent employees. (4) Subject to sub-section (7), the continuous employment of a person i1n a temporéery Capacity, whether in one Department or in more than one Lepartment, shall not extena beyond the end of the first or any succeeding year oil that employment unless the 4 Loard certifies in writing that the continued employmcnt of that person beyond the end of that first or succeeding year 1s necessary. (6) The services of any person temporarily employed may be dispensed with at any time by the Chief Cfficer." er present purposes sub-section 7 has no relevance. it 2s noted that in sub-section (1A) the word "erploy" must have the meaning of engaging 4a person to pericrm services in @ temporary capacity. Gn no view can it be said that the Chief Officer becomes the employer. in all probability the Service becomes the employer of a person engeged by the Executive Lirector in the exercise of powers conferrea upon ham by s.78¥ of the Lroaccasting anc Televisicn Act to perform services as a member of staft ot the Service. 1t should be noted also that in the phrase "permanent employees" where twice appearing in s.82(3), the word "employees" is not to be given the meaning prescribea for that word by s.7. In their context, the phrases must be construea as meaning "officers". The Respondent applied to the Service tor the Position of brogramme Assessor (Overseas) in sydney. he was intervieved but it 1s not neccessary to make reference to what occurred at that interview. Thereafter, in the exercise ot delegated powers, an officer of the Service, in compliance with s.82(1) and the proviso to s.62(2) of the Public Service © Act, Ey letter dated 24 July 1980 cofteread temporary employment to the kesponcent. The relevant parts of that letter are set out: "I am pleased to confirm the offer of temporary employment to you with the Special Broadcasting Yervice as Censorship Liaison Officer, Clerk Class &, at an annual salary of $20,732 pa from 18 august 1980 to 36 June 1961. Employment will be under the Public Scrvicce act 1922 (as amended) and may be extended beyond this date pending the establishment of the Independent ana Multicultural bBrceadcasting Corporation at Which time your employment may continue under the Lroadeasting and lelevision Act 1942 (as amended) . You should seek payment an lieu of any recreation leave due to you from the Filr Censorship Board at resignation, as this may not be carried across to SBS. Provided that you remain with the board until 15 August, and commence with S65 on 16 August, you ill be able to carry across any sich leave credits. In adcition, you will be able to continuc contributions 'to the Commonwealth Superannuation Fund 1f you are at present a4 contributor. Plezse report to the Personnel Cfficer, hr S. Daley, on 18 August at the ltth floor, 5 Blizabeth Street Sydney." The change in the neme of the position is noted, but nothing turns on that. the Respendent acccpted the oiter and reported for service on 1€& August 1980. POOR Oe IN FE ON EEE I A Rt CR a Aye re SI ae ee NY oe Oe ee At this stage, 1t 1s necessary to digress. bkoth at the hearing before the trial Judge and before the Full Court,. much ciscussion took place concerning the provisions oi the Comnonm.calth Employees (kedeployment and Retirement) Act 1879, Bet ho. 52 cf 1979. That Let came into Operation on 6 lebruary 1961. that ket applieé tc and in reletion to persons coming within classes aescribed in s.5. Dirficulties arise in construing the frovisions of that section, but it became apparent that, subject to what is said later, that Act has no application to the resolution of the issues arising in this casc. Thus it is not neccessary, nor 1s it desirable, that these reascns should express an opinicn on the proper construction of that secticn. Under s.z6 cf that Act,, the Schedule to that Act effected amendments to s.&2 Public Service Act. Cneé of the amendments so efiected was the insertion of sub-section (tb) ante s.82. On 15 March 1981, however, that sub-section was replaced by a new sub-section (tL) by s.79 of Act bo. G1 of 1981, see s.2(8). Sub-section 82(CL) és in operation since 15 March 1981 1s that containea an the Public Service Act reprint as at 31 July 1961. Each of sub-sections 82(6A), which had been inserted by s.25 of Act ho. 170 of 1978 ana which came into operation on 15 March 1961, and (68) flaces restrictions on the exercise oft the pot.er conferred by sub-section (0). in the present case no Oflicer of the Service has purported to exercise the power conferred by s.62(6) PubLlic Service Act an@ thus it 1S not " . ' - - - Yeu necessary nor 1S it desirable that these reasons contain expressions of opinion on the effect of sub-sections (GA) and. (Gb). The Commonwealth Employees (Kkedeployment ana ketirement) Act, however, did substitute a new sub-section (4) an place of the existing s.&2(4) Public Service Act. Thus, as from 6 February 1981, being within the pericd of employment mentioned in the letter dated 24 July 1960, suL~scection (4) of s.82 has provided as follows: "(4) Where a person 1s selected for employment, or the employment of a person 1S authorized, cn the cona@ition that his employment shall not continue aiter the expiration of a specitiea period or on the conditicn that his employment shall not continue aiter the completion of specified work, the Chief Cfticer shall, if the services of that person have not been dispensed with pefore the expiration of that period or the completion of that work, as the case may be, dispense with the services of that person upon the expiration or that period, cr upon the completion of that wock, as the case may be." At the same time the opening words of sub-section (6) were amended to reag "Subject to sub-sections (6A) and (6b)". bna@er the carlier sub-sectzon (4) the continuous employment of a person in a temporary capacity was not to extena beyond the cna of the farsi or any succeeding year of ~ 10 - that employment unless the Public Service Loard "certifies ain writing that the continucad enployrent of that person beyond, the end cf that first or succeeding year is necessary". By letter dateG 23 July 1981, an officer of the Service, in the exercise of delegated powers, wrote to the Respondent as follows: "This letter 1s te advise you that your temporary employment under the Public Service Act has been extended until 30 June 1982. Lmployment wlll continue to be at the level ot Clerk Class 8. Extension of your employmcnt beyond 30 June 1982 will receive further consideration prior to that date." In purported compliance with s.&2 Public sexvice Act, by letter dated 2 July 1981, being after the expiration of the expressed period of temporary employment of the Respondent, the bxecutive Lirector of the Service had written to an officer of the Public Service Board concerning renewal of temporary employment wath the Service. The letter referred to the fact that the previcus approval "expires" on 30 June 1981 and sought approval "for renewal of temporary employment to 30 June 1942" oi specified members of the stai1 of the Service, including the hespondent "to whon it 1s Proposed to send advice" an the form of a notice attached to the letter. By letter dated 2U vuly 1981, a delegate of the Roard had given approval "for the extension of temporary employment of" specified persons, including the Respondent, "for the period 1 July 1981 to 30 June 1982". the form of notice to be given was agreed. In addition,. fhe letter to the Respondent dated 23 July 1961, being an the agreed terms, was then wratten. By letter dated 24 May 1982, the Lxecutive Director or the Service, exercising Chief Cfficer pover, wrote to the kespondaent as tollcows: "You will be aware that the approved fixed term of your temporary employment with the Special Erozacasting Service expires on 36 June 1962. Under Section &2(4) of the Public Service fct 1 am reou1red to dispense with the services of a temporary employee upon the expiration of such f1xea@ period. The purpose of this letter is to advise you that 1 do not propose to seek Public Service Board approval to offer you a further period of employment beyond 30 June 1982. I have come to this aecision having carefully considered reports on your work performance with SBS which have indicated that you are uneble to work with a minimum of supervision and direction as would be expected at your level cf responsibility. Repeated attempts to provide remedial supervision have met with resentment, unco-operativeness or intolerably slow action. In addition, you have demonstrated an unadegquate ébility to administer the functions and deal wath the workload assigned to you on a day to day basis. heither have you been able to suggest and develop overall strategies, or to undertake forwara planning to anticipate Ppreblems occurring in your area ct responsibility. You have been unwilling to recognize lamitations in your work performance which has made any remecial development by your three successive supervisors prictically impossible. NO 6substantial or sustained imprevcment in your performance therefore scems lakely. 7 Purthermore, for the reasons set out above ana . because Ok your acmonstrated inflexibility ana unwillingness te aevelop acministrative skills, I am unable te reacploy you elsenere an the orgenisation as there are no suitekic vacient positions. it shculd be pointed out that as & temporary emplcyee engaged under Section 62(4) oO1 the Public Service ket, you are not subject to the provisions cf the Commonwcalth Employees (Redeployment and Retirement) Act by virtue ci Section 5(2)(e) of that Act. Payment of final moneys including payment 1n lieu of accrued recreation leave will be made to you by the normal method on 30 June 1982." For the purposes of the appeal, the first two parégrephs of that letter are ot importance. the third ana fourth paragraphs appecr to be directed to matters that might have been relevent unéeer s.62(6u) Public Service Ket if a Chu f ulficer pursuanl to sub-section (6) proposed to CQyepenss woe ce survices st 6 perses ta re L-L or tig eee ke ea Ta WL. Te enkhavl Dae shlor marportcg u> ziccclee those powers with respect to the Respondent, but the contents of the third an@ fourth paragraphs or the letter may be of importance in another respect. Likewise the ft1ith paragraph is not relevant. it purports to give advice which dccs not arise for consideration on this appeal. Cn 22 June 19&z, the hespondent made application for an order of review under the administrative Lccisions (Judicial Rkevicw) Act 1977, as amended, "the Judicial Review x Act". the decisions sought to be reviewed were: l. ihe aecision of the kxecitave Director of the Service, the first appellant, made on 24 May 1962 that the employment of the Respondent with the Service "be terminated or dispensed with and not renewed or extended beyona 30 June 1982". ae the decision of the Lxecutive Director of the Service waGe on 24 kay 1982 not to seek the approval of the secona, third and rcurth Appellants who constitute the Public service Eoard, to the continuation or renewal or extension of the employment of the hespondent beyond 3¢ June 1962. le The conduct of the Caccutive Lirector of the Service in ihe manner of arriving at the decisions referred to in 1 and 2. ds the conduct ot the Lxeculave Lirector of the Seurvice and/jor the members of the Public Service board in refusing or failing to continue or extend or renew the cmployment of the kespondent. On 23 August 1982, the Court made orders including the following: oxy 1. 4 declaration that the Kespondent's employment 'ath the-- Service did not terminate on 3C June 1982 but will continue up to ana including 30 June 1943, but subject to the provisions of the Public Service Act. 2. That the decision of the Execttave Lirector maae on 24 May 1962 that the Respondent's employment with the Service "was Gispensed with or woulc expire on 30 June 1962" be set aside. A stay of the ocperation of the orders was granted until 25 August 198Z end on that date, the Service was gudeda aS a party to the proceedings and the cther orders made en 23 August were stayed until the determination of an appeal from that judgment. The Court then noted certain agreements that had been entered into between the Appellants ana the Respondent. 4 preliminary matter arises for consideration. The Appellants hada objecteu to the competency of the application for an order of review on the ground that there was no dceision to which the Jucicial heview act applied. under $.5, @ person, in this case the Respondent, who is aggrieved by a decision to vhich the Act applies, may apply to the Court for an crder oi review in respect of the aecision on any one or more of the grourds specified in that section. Under s.o, where a person, in this case one or more of the Appellants, has engaged in conduct for the purpose of making-. a decision to which the Act applies, a person, in this case the hespondent, who 1s aggrieved by the concuct may apply to the Court for an order of review in respect of the ccnétct on one cr more of the grounds specified in that section. Under each section, for present purposes, the critical woras are "a@eciasion to which this Act applies". Under s.3, unless a4 contrery intenticn appears those worus are defined to mean: "J ..a decision of an administrative character made, proposed io be meade, or required io be made, as the case may be (whether in the exercise of a discretion or not) uncer an enactment ..." . lt 1s necessary to set oui sub-sections (2), (3) and (5) of s.3: "(2) In thas Act, a reference to the making of a decasion includes a reference to - (a) making, suspending, revohing or refusing to make an order, award or detcrmination; (b) givang, suspending, revoking or refusing to give a certificate, @irection, approval, consent or pernission; {c) assuing, suspending, revoking or refusing to issue a4 licence, authority or other instrument; (a4) amposing a conaition or restriction; (e€) making a declaration, demand or requirement; (f) retaining, or refusing to celiver up, an article; or {¢) deinyg or refusing to do any other act or thing, ana a reierence to a tailure to meke a jecision shall be construed accordingly." "(3) Where provision 1s made by an enactment for the making of a report or recommendaticn before a decision 1s made in the exercise of a power under that enactment or under another law, the méking of such a report or recommendation shall itself be Geemed, for the Furposes of this Act, to be the making ot a decision." "(5) A&A xveferenve in this het to condict engaged in for the purpose of making a dccision includes a reterence to the doing otf-: tiny act cr thing preparatory to the making ox the decision, twncluding the taking of eviaence or the holding or an anguiry or investigation." in the present case the relevent enactment is @izther the Public Service Act or Broadcasting and Televisicn Act or both. The question of whether the kespondent is a person aggrieved under the Juaiciral Review Act 1S put to one sidc. The Responcent contends that the relevant decision is eitter the ""uecasion" by the Executive Carectcr of the Service made on 24 Nay 1962 not to sceh the approval of the Public Service Board to the continuation cr renewal or eatensicn of the lhespondent's employment beyond 3C June 1982 or the "decision™ of the Lxecutive Lirector of the Service medeé on 24 tay 1962 that the employment of the hespondent be terminated or dispensed with and beyond 30 June 1982. In order to cetermine this preliminary matter, it 1s necessary to consider the terms and conditions under which the hespondent was emplcyed. There can be no doubt that the fundamental legal relationship between the Service and is Respondent contractual in character, generally see Kcelcy v. State ot Vacteri1a L1964] V.R. 344 per Gillard J., esp. at pp.366-7. There 1s no suggestion that the Service has power to conscript persons to become members of its staff. the letter frcem the Service to the Kesrondent Gated 24 July 19&6 adopis the classical form of contract. The letter confirms "the cirer of temporary employnent". the offer was accepted by the hespondent reporting for service on 1& August 129680 pursuant to the last paragraph o1 that letter. The more diifiacult question 1s to determine the terms and conditions of the employment which were brought into existence by the contract between the Service and the hESspondent. As has been said alreaay, in all probability the Service became the employer cf the Respondent, but this does not cssist in determining the questicn raised. the letter or 24 July 1966 states that the "employment will be under the not renewed or extended. - 18 - Public Scrvice Act 1922 (as amended)". Yhe words "and may be extended ... do not affect the terms and conditions ol, employment. 'lhey merely express what was Leing contenplatea by the parties, namely that which had been set out in the earlier advertisemcnt. It as noted that the terms and conditions of the employment of the Respondent were in fact far more extensive than those contained in the Publac Service Act. They include the mass of terms and ccenditaons imposed and conferred by a multitude of Commonwealth acts and hegulations which constitute the code regulating employment by the Commcnvealth and Commontealth statutory autheritics. To give one example, the Conpenséetion (Commonvecith GCovernnent Employees) Act 1971 appliea to the Respondent during his pericd of temporary employment as a member of statf of the Service. The views expressed ere consistent with the opinion of Gillard J. in keeley's case esp. at pp.370-37Z and the opinicn of horthrop dg. in Australian JYeleccmmunicetions Ccnmaission v. Hart, Federal Court of Australia, Full Court, unreported, 27 Septcmber 1982. 'hey are consistent with the opinion of Regers J. in Bennett v.- The Commonwealth L1¢SOCj] 1 N.S.-W.L.R. 561. they are consistent with the opinions expressed by the High Court 1n Australian Broadcastirg Commission Vv. industrial Court of Sovth Australia (1977) 126 C.L.k. 39% esp. per Mason J. who, after reterring toe the relevant statutory provisions, sald at bs 15: p- . "In their totality these provisions constitute a comprehensive and exclusive code regulating the appointment, terminaticn of appointment, - promotion, transfer, retirement and dismissal of officers in the service of the Commission. It 1s for the Commission to make appointments, to determine the terms and conditions of appointment (wath the approval of the Public Service Hoard), transfer and promcte cfficers, and retire and dismiss officers, subject to awards made by the Conciliation and Arbitration Commission and determinations madeé by the Public Service Arbitrator and subject also to such decisions as may be made by the Promotions Appeal board and the Disciplinary Appeal Eoard on appeals instituted under the Act." For present purposes it 18 necessary to concentrate on those terms and conditions relating to the perioa of the employment of the Respondent. The letter dated 24 July 1980 offered temporary employment "from 18 August 1980 to 30 June 198i". Employment was under the Public Service Act. The relevant provisions of that Act vere contained in s.6&2 as then in operation. Under, sub-section (1A) the Fxecutive Larector of the Service, in the cxercise of powers of Chief Officer, was empowered to emplcy, in the sense of engage, persons in a temporary capacity as members of staff of the Service. That power oi employment, in the sense of engagement, was subject to compliance with conditions precedent, namely the Lxecutive Lirector forming the opinion specitied@ in sub-section (1) and the Public service Loard exercising its power to "authorize the employment oi" the Respondent under the proviso to sub-section (2). If it became necessary for decisicn, there is much to be saia for the view that the word "employment" when used in s.&2Z 1s used an the sense of "engagement". A Chief Officer 1s empcwered. to engege persons in a temporary capacity. in so doing the Chief Cifacer does not become the employer of the person so engaged. The person so engaged becomes an "employee" within the defined meaning of that word. lie also becomes an "employee" in the normal sense of that word, namely as a servant in @ master and servant relationship. The terms ana conditions of that employment are to be iound in the code contained in the relevant Acts and Regulations. Section 82 Gces not refer 10 & contract of employment. Under suk-scction (6) the services of a person engaged under Sub-section (14) may be dispensed with at any time, but since Vebruary 1981 restrictions have been imposcd on the exercise of that power. Sub-seclion (4) in operation in July and August 1980 imposed restrictions on the power conferred by sub-section (1h). of mecessity any indeterminate or open-ended engagement under sub-section (1A) was restricted by sub-section (4). It could only be extended or continued when the Board certified in writing that the continued employment (cngagement) of that person beyond the farst or any succeeding year was necessary. Presumably, in the absence of such a certification, the employment of the person would cease autcmaticelly at the end of the relevant year. In the present case, even if sub-section (4) had remained in its earlier form, 1t would not have been brought, into cperation, the hespondent had been engaged under sub-section (1h) for a specified period of less than one year, namely from 15 August 1980 to 30 June 1951. It is true that further employment was being contcmplated but on any vie. the original employment was for a specified pericd for seme ten and a half months expiring on 30 June 1981. The new sub-section (4) came anto operation on 6 February 1961. Thereafter that sub-section operated as @ restriction on the powers conferred by sub-section (1A). The relevant parts of the new. sub-section (4) are set out: "Where ... the employment cf a person is authorized, on the conditicr that his employment shall not continue after the expiration of a specified periodg ... the Chiet Officer shall, 1f the services of that person have not been aispensed with beicre the explration of that period ... dispense with the services of that person upon the expiration of that period ..." Before thc expiration of one year from the date ot the cermencemcent of the temporary employment of the Respondent, the Letter of 244 July 1961 had been written. That Jetter advised the Respondent that his "temporary employment under the Public Service Act has been extended until 36 June 1982" enc ""Lxtensicn ci yo.r employment beyond 30 June 1962 wall receive further consideration prioc to that date". - ern MY Date en ee - a -- In July 1961 the Executive Birector of the Servicc-. had no power under the Public Service Act to extend 'ic temporary employment of the Respondent. At the most, he haa Fover to form an opinion that temporary assistance was necessary and to advise the Board accordingly. 'the Loard, if satisfied that such assistance was required, hada power to authorize the employment of a person. The applacaticn ot the olG sub-section (4) prevented the temporary employment continuing indefinitely without annual certificates from the Board that the continued employment was necessary. Section 82 contained, ana silli cecntains, no Specific power conferring cn the board a power to specify, at the .time authority 1s given under sub-section (2), the period ot temporary employment. The power to authorize tempcrary employment, of necessity, must include a pover to authorize employment for a specified pericd provided that perioa is not in conflict with a statutory provision. That amplied power 1s reccgnizead by the new sub-section (4). The phrasing of the new sub-section (4) in this respect, namely, "on the condition that his position shall not continue after a specified pericd" is ainelegant but its meaning 1S clear, nemely that the perioa of cnployment shall be for a specified period. there this is done, the nes. sub-section (4) ainposes a duty on the Chief Officer to dispense with the services of that person upon the expiration of that perica. 'That duty is self-executing in the sense that the Chief Uffacer no longer ° has authority to authorize that person to perform services. lhere is no requirement that a notice be given that the* employment be terminated. The Chief Cfficer has no power to continue the employment but there is nothing to prevent the Chief Offacer from commencing the precedures set out in sub-sections (1) and (2) seeking approval to emplcy an cmployee as defined. On this construction of s.&2, the werding of the letter of 25 duly 1961 is misicading. In law, the temporary eniploymcnt was not extended but rather temporary employment was authorized for a specified period, namely until 30 June 1982. The same confusion is apparent from the words otf the letter to the Public Service Eoard seeking authority to employ the Respondent for a period of twelve months as well as in the letter from the Board authorizing that teniporary employment. Nevertheless, the authority trom the Bowrd and the notification of the employment given to the Respondent each make reference to the fact that the employment 1s to be until 30 June 19852. The questicn that now arises 1s whether the authority and the notification were on the condition that the employment "shall not continue after the expiration oi a specified period", in the present case, after 30 June 1982. in cur opinion the cmployment was authorized by the Board on thet condition. Unless this was so, the reference to 30 dune 196Z would be redundant and méaningless. hoe effect could be Given to that date. 'The temporary cmployment would be for an, unccterminate period and, subject to any other supervening event, could be terminated by the Service only py the Executive Director exercising the power conferrca by sub-section (6) and then subject to compliance with the restrictions contained in sub-section (6B). This woula result in the employee obtaining many of the attributes of tenure normally limited to officers. 1t follows, therefore, that in the absence of a further authorization uncer sub-secticn (2) and further cnployment being offered to the Respondent, the services of the hespondent were dispensed with automatically as trom 1 July 1°82. Neither the Service nor its Laecutive Director had power to continue those services. in this respect, the first paragraph of the letter of 24 may 1582 expresses the correct legal position. Grounds for concern, however, arise from the views expressed in the second, third and fourth paragraphs of that letter. The second paragraph comprises a statement of present intention. In the third paragraph 1t is referrea to as a "decision". In that faragraph and in the iourth peregraph the Lxecutive Director reiers to matters which are completely irrelevant to the exercise of forming an cpinion uncer sub-section (1). They refer to matters that may be relevant under sub-section (6B) if the Executive Birector had been attempting to exercise the power conferred by. sub-section (6). Under sub-section (1) the matter for censideration by the Executive Lirector is whether temporary assistance is necessary. The eaistence of that opinicn is a condition precedent to the exercise of powers under suk-sections (2) and (1A). The qualities of a person performing services seem to be irrelevant to the question of whethcr temporary assistancé 1s necessary. Nevertheless, the Lxccutive Director sets out much detail concerning the manner in tshaich the Respondent had keen performing his services. On this construction of the relevant statutory provisions neither the statement by the Executive Larector or the Service that the employment ot the kespondent with the Service "be terminated cr dispensed with and not renewed. or extended beyond 30 June 1982", nor his action in refusing or fa1ling to continue cr extend or renew the cmployment cf the lLespondent constitutes a decision to which the Juaicral Revicw Act applies. The temporary employment of the Respondent ceased on 30 June 1982 by operation of law. That Gia not dcpend upon any action or decision to be taken or madc by the kxecutive [Lirector. In the absence of an authcrization under the proviso to sub-secticn (2), the L>ccutive Larector haa no power to employ the Respondent ina temporary capacity aiter 30 June 1962. the Responuent's application based upon that decisicn must fail. Likewise, ve his application based on the conduct of the L[xecutive Director 1n the manner cf arriving at that "decision" musty fail. On this construction of the relevant statutory provisions, there has been no @ecision made by the members of the Public Service Board in refusing or faizling to continue or extend or renew the employment or the kespondent to which the Judicrél Revicw Act applies. They had not been eavisea by the Lxecutive Director or the Service that he was of Opinion that temporary assistance was necessary, sub-section (1). They were not required to be satisfied that such assistance vas required, sub-section (2). in any cvent, their power 1s to authorize the employment of a person Suitable for the work to be performed, the proviso to suk-section (2), not to continue or extend or rene. ,the employment of any particular person. 'lhe Respondent's application based upon that "decision" must fail. The seccnd decision alleged by the kesponuent is described by him as the decision of the kLxecutive Directo1 not to seek the approval of the Public Service Board to the continuation or renewal or extension of the employment of the Respondent beyond 30 June 1962. in reality, the alleged aceision 1s constituted by the fact that the Lxecutive Director was not of the oginion that temporary assistance was necessary. Because of the cbsence cf that opinion he coulda not advise the Public Service Eoard, sub-section (1), ana thus there was nothing for the Board to authorize. The* Lirector-General was under no obligation to notify the Public Scrvice koard of the absence Of Opinion. Apart from any guesticn of courtesy, he was under no obligetion to notify the hespondent. the forming of an opinion that temporary - assistance was not necessary or rather the failure to form an opinion on the matter, may be decisive in that 1t prevents the giving of a notification under sub-section (1) ana thus prevents the Board giving its authority uncer suk-section (2). 'has, however, daoces not make either of those courses a decision uncer the Judicial Review Act. The giving of a notification under sub-section (1) may constitute 'a a "decision", but that has not occurred in this case. In any event, if the torming of the 'opinion referred to un sub-section (1) ius a decision under the Judic2rél Review Act, in our opinion the Respondent is not a "person who is aggrieved" by that decision, s.5, Judciciel heview Act or by concuct leading to thet decision, s.6 Judicial Review Act. in this regard we adopt the opinion expressea by Lllicctt J. in 'Tochey's Ltd. v. tanister for Business and Consumer Affairs (191) 3G A.L.R. 64 at pp.79-0. That Opinion was acceptea by a Full Court in kicegrovers Co-operative Pills Ltd. v. Bannerman (1981) 38 A-L-h. 535, at pp.539-4G and p.544. A challenge to that opinion was abandoned in the appeal in Toohey's cese, (19682) 42 A.L.R. 260, at p.263. 'the formation of an opinion under sub-section qy? affects all persons. if an authcrization had been given by the Leard under sub-section (2) and the Lxecutive Director employed a person, other than the Kkespondent, to perform Services previously performed by the Respondent, it is possible that the hespondent vould be a person aggrieved by the decision to employ that perscn and could bring an application under the dJvd@icial Review Act. in those Circumstances that decasion may well be reviewable on the applacation of the hespondent. Baving determined that there 1s no decision under the Judicial Review Act to support the Respondent's application, 1t is unnecessary to consider the other matters raisea during the hearing of the appeal. in the result, 'the appeal should be allowed and the order made below set aside. the application under the Judicial Review Act should be dismissed. I certify that this and the Annty-seven (27) preceding peges are a true copy of the Reasons for Julemznt }c. ern of his Honour the Chief Judge, Sir Nigel Bowen awd bis \dunour Me Juunce Neustewep fa a Associate ; ur Dated: /7 Pecenrey /7F.2. | ee eS - ee ee . ae i vee ae ST nee ee penn pee tenn ne ne a Se ET wee eee Sot - ri IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G.158 of 1982 we ww GENERAL DIVISION ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: ROMALD FOWELL First Appellant R.W. COLE, R.J. YOUNG and J.V. MONAGHAN Second Appellants and TUE SPECIAL BROADCASTING SERVICE Third Appellant and SIMON IOANNOU Respondent CORAM: Bowen C.d., Woodward and Northrop JJ. DATE: 17 December 1982 WOODWARD J. REASONS FOR JUDGMENT I have had the advantage of reading the reasons for judgment of Bowen C.J. and Northrop J., in which the facts of this case and the relevant legislative provisions are fully stated. I shall confine myself to what I see as the central issues to be determined. The respondent in this appeal was engaged in July 1980 as a temporary employee of the government authority "known as the Special Broadcasting Service. The letter of appointment received by the respondent, which was signed by the Acting Director (Administration) of the Service, contained the following passage, "T am pieased to confirm the offer of temporary employment to you with the Special Broadcasting Service as Censorsnip Liaison Officer, Clerk Class 8, at an annual salary of $20,732 pa from 18 August 1980 to 30 June 1981. Empioyment will be under the Pubiic Service Act 1922 (as amended) and may be extended beyond this date pending the establishment of the Tndependent and Multicultural Broadcasting Corporation at 1 which time your employment may continue under the Broadcasting and Television Act 1942 (as amended)." The provisions of the Public Service Act 192? which govern temporary employment in the Public Service, and which apply to such employees in the Special Broadcasting Service, are contained in section 82 of the Act. At the time the respondent was engaged the relevant parts of the section were in the following terms, "(1A) Subject to this section, a Chief Officer of a Department may employ persons in a temporary capacity in the Department. (1) Whenever the Chief Officer is of opinion that temporary assistance is necessary, he shall advise the Board accordingly. (2) If the Board is satisfied that such assistance is required, the Board shall select, in such manner as is prescribed, from the register of applicants for temporary employment, such persons who are available as appear to be best qualified for the work: Provided that where no suitable person is available from the register of applicants for temporary employment the Board may authorize the employment of any person suitable for the work to be performed. (4) ... the continuous employment of a person in a temporary capacity, whether in one Department or in more than one Devartment, shall not extend beyond the end of the first or any succeeding year of that employment unless the Board certifies in writing that the continued employment of that person beyond the end of that first or succeeding year is necessary. (6)... the services of a person who is temporarily employed may be dispensed with at any time by a Chief Officer. It is clear that the Executive Director of the Special Broadcasting Service has the powers of a 'Chief Officer of a Department' referred to 1n this section. As the first period of the respondent's employment came to an end, the Executive Director wrote to the Public Service Board seeking approval for the renewal until 30 June 1982 of the temporary employment of the respondent and a number of others - representing most of the staff of the Special Broadcasting Service. On 20 July 1981 the Regional] Director for NSW of the Public Service Board wrote to the Executive Director 'giving the approval sought in the following terms, "Approval is given for the extension of temporary employment of che following persons for the period 1 July, 1981, to 30 June, 1982". Following receipt of this communication the Executive Officer (Personnel) of the Special Broadcasting Service wrote to the respondent saying "This letter 1s to advise you that your temporary employment under the Public Service Act has been extended until 30 June 1982. Employment will continue to be at the level of Clerk Class 8. Extension of your employment beyond 30 June 1982 will receive further consideration prior to that date." The language used in these communications 18s significant - "approval is therefore sought for renewal of temporary employment"; "Approval 15 given for the extension of temporary employment"; "J... your temporary employment under the Public Service Act has been extended until 30 June 198? .... Extension of your employment beyond 30 June 1982 will receive further consideration ...." Such language would have been entirely consistent with the wording of s.82 of the a ae Public Service Act 1922 had that section not been amended by the Commonveaith Emplovees (Redeployment and Retirement) Act 1979 ('the CERR Act') whach, for most purposes, took effect on 6 February 1981. It replaced sub-section 4 of s.82 with the following, "(4) Where a person 1s selected for employment, or the employment of a person is authorized, on the condition that his employment shall not continue after the expiration of a specified period or on the condition that his employment shall not continue after the completion of specified work, the Chief Officer shall, if the services of that person have not been dispensed with before the expiration of that period or the completion of that work, as the case may be, dispense with the services of that person upon the expiration of that period, or upon the completion of that work, as the case may be." This sub-section is 'difficult to construe. The phrase "on the condition that his employment shall not continue", twice occurring, is ill-expressed and confusing. It can hardly be read as if that were to be a binding term of the contract of employment. It would be most remarkable 1f£ the Public Service were to employ officers on the condition that their emptoyment could not under any circumstances continue beyond a specified date or the completion of a particular task. In my view, either the phrase must he read as v meaning "on the condition that his employment may not - continue", or else the reference must be to a condition imposed by the Public Service Board on the Chief Officer, requiring the Chief Officer to engage temporary employees oniy for fixed periods. I believe the latter is the correct reading. The 'condition' relates naturally and conveniently to the processes of selection or authorization, both of which involve communications between the Board and the Chief Officer without the temporary emoloyee necessarily becoming involved until a later stage of the proceedings. This is particularly clear in the case of authorization, which appears to have been the course almost invariably adopted. Read thus, the sub-paragraph places a positive obligation on the Chief Officer to see to 1t that, in every instance of temporary employment in his Department which the Board authorises for a fixed term, the employment does not continue after the expiration of that term. This however would not prevent the Chief Officer from seeking further authorization for another fixed term. 2 . ee SS tI 0 SS SO rere an a Malet LAR LOIN EA LU UY ene ee It should be noted that the CERR Act gave persons covered by it certain rights by way of security of tenure, redeployment and compensation for involuntary retirement. Parts of s.5(2) of the CERR Act are relevant for present purposes. They provide, . m ++. this Act does not apply to or in relation to (d) a person who is employed under a contract of employment for a term of less than 1 year or for a term of years; or (e) a person who is employed in a temporary capacity in a Department under section 82 of the Public Service Act 1922 on a condition specified in sub-section (4) of that section." These provisions are also difficult to construe. It 1s highly unlikely that the draftsman responsible for, sub-paragraph (d) antended to leave a gap in the case of contracts of employment for periods from 12 to 23 months. 1 believe that he and the Parliament must have assumed that, in the context, "a term of years" would include a term of one year or any longer period. This is consistent with the meaning of the phrase in the law of property, and I would so interpret the sub-paragraph. Sub-paragraph (e) would then cover the similar case of persons who are not engaged under a formal contract of employment, but who are authorized by the Board to be temporarily employed for a fixed term (or for a specified task) prescribed by the Board. It 1s against the background of this legislation that the Court 1s called upon to consider the events leading to the purported termination of the employment of the respondent. The first appellant, signing himself "Executive Director LUxercising Chief Officer Power", wrote to the respondent on 24 May 1982 in the following terms You will be aware that the approved fixed term of your temporary employment with the Speciai Broadcasting .Service expires on 30 June 1982. Under Section 82(4) of the Public Service Act Tf am required to dispense with the services of a temporary employee upon the expiration of such fixed period. The purpose of this letter is to advise you that I do not propose to seek Public Service Board approval to offer you a further period of employment beyond 30 June 1982. I have come to this decision having carefully considered reports on your work performance with SBS which have indicated that you are unable to work with a minimum of supervision and direction as would he expected at your level of responsibility. Repeated attempts to provide remedial supervision have met with resentment, unco-operativeness or untolerably slow action. In addition, you have demonstrated an inadequate abililty to administer the functions and deal with the > workload assigned to you on a day to day basis. Neither have you been able to suggest and develop overall strategies, or to undertake forward planning to anticipate problems occurring in your area of responsibility. You have been unwilling to recognize limitations in your work performance which has made any remedial development by your three successive supervisors practically impossible. No substantial or sustained improvement in your performance therefore seems likely. Furthermore, for the reasons set out above and because of your demonstrated inflexibility and unwillingness to develop administrative skills, I am unable to redeploy you elsewhere in the organisation as there are no suitabie vacant positions. It should be pointed out that as a temporary employee engaged under Section 82(4) of the Public Service Act, you are not subject to the provisions of the Commonwealth Employees (Redeployment and Retirement) Act by virtue of Section 5(2)(e) of that Act. Payment of final moneys including payment in i1eu of accrued recreation leave wili be made to you by the normal method on 30 June 1982." Had this letter omitted the two middie paragraphs,' I have no doubt that it would have effectively marked the termination of the respondent's employment on the date specified. The letter would have been in accordance with the obligation imposed on the Chief Officer by s.82(4) of the Act, since the Public Service Board had imposed the condition on its authorization that the respondent's second period of temporary employment was to be for a fixed term expiring on the date indicated. rg - 10 - There would have been no departure from the intention expressed in the second paragraph of the letter of July 1981 re-engaging the respondent. The letter of termination indicated that an extension of employment had been considered but had been decided against. However the letter of termination did in fact go on to state reasons for the Chief Officer's 'decision' not to seek Public Service Board approval of a further period of employment. The question therefore arises whether this was a decision to which the Administrative Decisions (Judicial Review) Act 1977 applies. For present purposes it may be said that such a decision 1s defined in s.3 of the Act as "a decision of an administrative character made ...... (whether in the exercise of a discretion or not) under an enactment". This is, I believe, the crux of the present case. Sheppard J., who tried this matter at first instance, took the view that this "was plainly a decision of an administrative character made in the course of his duties as Executive Director of the Special Broadcasting Service. It was therefore made under an enactment, namely the Broadcasting and Television Act. It was not a decision specifically or expressly provided for therein, but it was made in the execution of the [Executive Director's] statutory duties as the chief executive of the Service". wa La RE, Fhe as SL EF EE Re ee RT Fe et FY EO OOS ETE FS se ae meres ant; OEE re ee I would, with respect, prefer the view that if this was a decision made under any enactment, it was made under the Public Service Act. In the first place I would be reluctant to accept the proposition that all administrative decisions on staif matters, made by the chief officer of a government authority, are open to challenge under the Judicial Review Act by an aggrieved officer of the authority simpiy because the authority was established by an enactment. On the other hand I would expect issues as important as appointment, promotion and termination of employment of officers in government employment to be specifically provided for by legislation and to be subject to review in appropriate cases. But the relevant enactment in such cases would be that which provided for such matters - which might be the act establishing the authority or might (as in this case) be the Public Service Act. In his letter the Executive Director purported to be acting in accordance with the requirements of that Act, the ''decision' was one which related soiely to the termination of the respondent's employment and in my view it is clear that he was employed pursuant to a contract of employment the hasic terms of which were constituted by a . —-12- code, made up of a body of legislative, regulatory and arbitrated provisions, having the Public Service Act at its heart (see Keeley v State of Victoria 1964 VR 344 and Australian Broadcasting Commission v Industrial Court of South Australia (1977) 138 CLR 399, per Mason J. at 415). In my opinion, when the 'decision' of the Executive Officer 1S properly analysed, it is seen to be a decision that, aithough the Service needed temporary assistance, the respondent was not a "person suitable for the work to be performed", within the meaning of s.82(2) of the Public Service \ct 1922. It would have been wrong for the Executive Director, while he held such a view, to have asked the Publi¢ Service Board to authorize the fresh temporary employment of the respondent. The Executive Officer reached his conclusion on this matter on the twin bases of the respondent's capacities and the vork required to be done. He made it clear in his letter that, in additzaon to being unsuitable for the work which he had been performing, there was no other work for which the respondent would have been suitable. Evidence, which Sheppard J. accepted, was also given to the effect that the respondent's existing job was shortly to disappear in the course of a reorganization of the Service. fr - ee, . ance With some hesitation, I have arrived at the view that this conclusion of the Executive Officer was a "decision of an administrative character made .... under an enactment" within the meaning of the Judicial Review Act. Io am strengthened in this opinion by Schedule 2 of the Act which includes, in its classes of decisions which are covered by the Act, but as to which there is no right to require the giving of reasons pursuant to s.13, "{t) decisions relating to .... the engagement of persons as employees under the Public Service Act 1922 ....". It is difficuit to see what decisions are here in contemplation other than decisions whether or not to engage particular individuals, particularly since such engagements are linked in the sub-paragraph with "the making of appointments in the Australian Public Service" and "the making of appointments under an enactment". I think also that the decision is "ultimate" and "operative" so far as the respondent is concerned, see Riordan v Parole Board 34 ALR 322 at 329. This brings me to the final question whether a breach of the rules of natural justice occurred 1n connection with the making of the decision which I have identified above. It 1s conceded by the appellants that the respondent was given no opportunity to reply to the criticisms of him contained in the Executive Director's letter of 24 May 1982. It 1s clear that, generaily speaking, an applicant for a position can be "turned away without a word. He need - not be heard" as Lord Denning M.R. said in Breen v A.E.U. 1971 2 QB 175 at 190-1. But as Lord Denning went on to say -- if he is a man .... who is being deprived of his livelihood, then reasons should be given why he is beizng turned down, and he should be given a chance of being heard. TI go further. If he 1s a man who has some right or interest, or some legitimate expectation, of which it would not be fair to deprive him without a hearing, or reasons given, then these should be afforded him, according as the case may demand. he giving of reasons is one of the fundamentais of good administration". Although this extract comes from a dissenting Judgment, it has been regularly referred to since, with approval, in both England and Australia. The so-called, "expectation cases", in which it has since been applied, have been cases in which "from what has gone before the applicant may legitimately expect that his application will not be refused out of hand, will be dealt with fairly, and that, if it 1s contemplated that it may be refused, he will be given the opportunity to be heard after knowing what he has to meet" (per Murphy J. in Wicol v A-G for Vactoria 1982 VR 353 at 357). iy cogent On the other hand it is well established that the requirements of natural justice will vary from case to case depending on "the particular statutory framework" overnin is g Pp y g g the situation (see, for examole, Reg. v MacKellar ex parte Ratu (1977) 137 CLR 461 at 476, per Mason J.) Applying this approach to the question of temporary employment in the public service, it 1s clear that, in the present case and others like it, the Chief Officer does not have to take any action at all to achieve the result that a person's temporary employment is terminated at the end of a period of engagement. If he does nothing, the employment comes to an end on the due date and the Chief Officer merely has an obligation to the Public Service Board to see to it that the employee is not inadvertently continued in . employment. Secondly, while it is understandable that, in common decency, some notification will be given to the employee about his or her situation, the Schedule to the Judicial Review Act, referred to above, makes it clear that the emptoyee concerned is not entitled to reasons for the failure to offer a fresh engagement. Met ay In such circumstances, where the Chief Officer has to take no action at all to bring about the termination of temporary employment, and where he is exempted by statute from any requirement to give reasons for any decision he may reach about who to recommend for engagement, I find it impossible to imply a requirement of natural justice that he should give a hearing to such a temporary employee about the reasons why he has decided to take no action to secure that empioyee's re-engagement. T have carefuily considered the decision of Ellicott J. in Cunningham v Cole & Ors (14 October 1982; unreported) which, at first sight, seems to arrive at a different result in a comparable case. I believe, however, that that decision can and should be distinguished. That case involved an officer of the Public Service who, after five years service, resigned under pressure. 18 days later he sought to withdraw his resignation or rejoin the Service. His application was rejected after two hearings at whach, as his Honour found, principles of natural Justice were not observed. Ellicott J. said that, generajily speaking, applicants for appointnent Lo the Public Service, including former officers, were not entitled to a hearing or the . -17 - observance of any other rule of natural justice, but in the special circumstances of the case the Public Service Board was bound to observe such rules. I think the circumstance of the resignation under pressure and the important rights attached to permanent appointment in the Public Service are sufficient to distinguish that case from the present one where, as I have undicated, the wnole thrust of the relevant legislation is against the acquisition of rights to continuing employment. To summarize my conclusions, I believe that (a) there was in this case a decision made pursuant to an enactment, within the meaning of the Judicial Review Act, (p) that decision was to the effect that the respondent was not a person suitable for the work to be performed by temporary employees of the Special Broadcasting Service, (c) there is no requirement of natural justice that applicants for temporary employment under the Public Service Act 1922 be given a hearing on matters relating to their possible employment, and (4d) thas applies both to persons applying for such temporary employment for the first time and persons seeking a fresh period of temporary employment. To hold otherwise would be, in effect, to alter the legislative scheme for temporary employment in the public service. The appeal should accordingly be allowed and the order made below set aside. The application under the Judicial Review Act should be dismissed. - oo Nodurcr oh . S St an ;