CATCHWORDS Administrative law - Judicial Review - Decision of Australian Federal Police Promotions Appeal Board that applacant not qualified for promotion - Qualifications for promotion altered- Whether new basis of promotion applicable to applicant - Whether terms and conditions of service prior to amendments still applicable - Construction of Federal Police Act - Operation of transitional provisions. Administrative Decisions {Judicial Review) Act 1977 Australian Federal Police Act, 1979 ss. 6, 24, 25, 26, 30, 31, 36, 40, 72, 73, 74 Australian Federal Police Amendment Act, 1980 Australian Federal Police Amendment Act, 1981 Australian Federal Police Regulations - reg. 5, Schedule 1 Commonwealth Police Act, 1957 Public Service Act, 1920 s.120 Acts Interpretation Act, 1901 s.47(b) PAUL DENISON WESTOOD V. AUSTRALIAN FEDERAL POLICE PROMOTIONS APPEAL BOARD; THE COMMISSIONER OF POLICE No. G.80 of 1983 Beaumont, J. Sydney 2 September, 1983. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION No. G.80 of 1983 BETWEEN PAUL DENISON WESTWOOD Applicant AND AUSTRALIAN FEDERAL POLICE PROMOTIONS APPEAL BOARD First Respondent THE COMMISSIONER OF POLICE Second Respondent ORDER Judge making order: Beaumont, J. Date order made: 2 September, 1983. Where made: Sydney. THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the costs of the respondents. IN THE FEDERAL CCURT GF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION No. G80 cf 1983 BETWEEN: PAUL DENISON WESTWCCD Applicant AND: AUSTRALIAN FEDERAL POLICE PROMOTIONS APPEAL BOARD First Respondent THE COMMISSIONER OF POLICE Second Respondent CORAM: Beaument, J. DATED: 2 September, 1983. REASONS FOR JUDGMENT This 1s an application made under the Administrative Decision (Judicial Review) Act, 1977 tc review the decision of the farst respondent, the Australian Federal Police Promotion Appeals Board ("the Board") made in or about February, 1963 that an appeal of the applicant to the Board be dismissed and that the applicant be not recommended for promotion to the rank of staticn sergeant within the Australian Federal Police. The question raised for determination is one of law and turns, in the main, upon the construction of the relevant provisions of the Federal Police Act, 1979 ("the Act"), and possibly, the regulations ("the regulations") made thereunder. The Act replaced its precursor, the Commonwealth Police Act, 1957 and the question which arises essentially turns on the construction and operation of the transitional provisionsof the Act. In these proceedings, the applicant challenges the decision of the Board that the applicant was not qualified for promotion to the rank of staticn sergeant in the Australian Federal Police. The applicant says that upon the true construction of the transitional provisions of the Act, has qualifications under the earlier statute were preserved in terms adequate to entitle him to claim sufficient qualifications for promotion to the rank of station sergeant in the new force. Immediately befcre the commencing date of the Act (19 October, 1979), the applicant held the rank of senior sergeant in the Commonwealth Police Ferce ("Ccompol""), being the force constituted under the Commonwealth Police Act, 1$57. Under s.4(1) cf that Act, the force consisted cf (inter alios) such number, ranks ana grédes as the Attorney-General, with the concurrence of the Public Service Board, determines. Subject to what appears below, qualifying examinations for promotion to ranks in Compol above the rank of senior sergeant were not prescribed and promotion was on the basis of merit or efficiency. In July, 1976, examinations were introduced within Compol for promotion to the ranks of constable first class, senior constable and sergeant in order to facilitate the prior system of promotion on merit for all ranks. Compol did not prescribe qualifying examinations for promotion to the rank of inspector and above, but after July, 1976, promotion to the rank of inspector would not have been considered, in practice, unless the sergeant's examination had been successfully completed or special qualifications of a relevant nature were held. Subject to the foregoing, immediately before the said commencing date of the Act, the applicant was eligible to be promoted to and qualified for promction to all ranks 1n Compol above the rank of senior sergeant, namely, inspector, senior inspector, chief inspector, superintendent, senior superintendent, chiei superintendent and assistant commissicner. By virtue of regulations 6 and 7 cf the regulations and Schedule 2 thereto, the following qualifications and conditions are prescribed by the regulaticns for an officer s of the Australian Federal Police to be promcted to the rank of station sergeant: (a) qualifying examination for the rank of station sergeant; or (b) qualifying examination for commissioned ranks (1.e. inspector and above) and (c) the holding of the rank of sergeant or senior sergeant. It 1s commen ground that, if these regulations are to be construed as applicable to him, the applicant does not meet those qualifications for promotion to the rank cf station sergeant in that he has not completed the qualifying examination for the rank of station sergeant nor the qualifying examination fcr commissicned ranks, they being examinations introduced and available only after the commencement of the Act. The regulations also require that for an cfficer to be promoted to the rank of inspector and ranks above inspector within the Australian Federal Pclice, that officer must have passed the qualifying examination 'for the commissioned ranks. Althougn its relevance 1s not conceded by the second respondent, this is also commen ground between the parties. Whilst the applicant has passed three of the four parts of the qualifying examination for commissioned ranks, he has not completsd the examination as a whole. Thus, the effect of heldinc that the relevant regulations, on their true construction, applied to the applicant, would be that he was not cqvia:fied for promotion to station sergeant, inspector nor any higher rénk. Thus, it 1s common ground that, if the relevant regulations, on their true construction, applied to the applicant, he was not qualified for promotion to staticn sergeant, inspector or any higher rank. The Australian Federal Police is established by s.6 of the Act. The appointment of officers =o the commissioned and non-commissioned ranks ci the Austraiian Federal Pclice 1s dealt with by Division II of Part IV of the Act. Under s.24, the Minister may, after obtaining énd considering the advice of the Commissioner and of the Pyplic Service Board, determine the number of persons that may be appointed to each rank. Appointments of commissioned and non-commissioned officers are made pursuant to ss.25 and 26 respectively. Part V of the Act 1s headed "Terms and Conditions of Service". By s.30, subject to this Part, the Minister may determine the terms and conditions of service of members. By S.31(1), subject to this Part, the Minister may, on behalf of the Commonwealth, make an agreement in vriting with an association relating to terms or conditions of service of members of that association. Section 36(1) provides that in the selection of a member for promotion to a rank, con- sideration shall be given to the relative efficiency of the members available for promotion and, in the event of equality of efficiency of two or more of those members, then to the relative seniority of those members. By s.40(c), regulations may make provision for the promotion of members, including the right of members to appeal against promotion of other members. The transitional provisions of the Act are con- tained in Part VII. Sections 72 and 73 provide: "72, (1) A person who, immediately before the commencing dgre, was a member of an existing Police Force, other than a person referred to m sub-section (2), shall be appointed under section 25 or 26, as the case requires, to be a member of the Australian Federal Police. 2) A Person who, immediately before the commencing date, was Serving in an existing Police Force on probation shall be appomted on probation under regulations made by virtue of paragraph 40 (b). (3) The appomtment of a person made in pursuance of this section takes effect on the commencing date. 73. (1) Where an appointment, other than an appointment in pursuance of section 72, is to be made to a rank in the Australian Federal Police, an applicant who— {a) is a member; (b) was, immediaiely before the commencing date, a member of an existing Police Force, (c) is qualified to hold that rank, and (d) is, tn the opinion of the Commussioner, suitable for the appemtment, 1s entitled to be appointed in preference io any other applicant (2) Sub-section (1) dees not aps ty in relation to an appointment made after the exprration of $ years, or such fonger period as is prescribed, after the commencing date " Primary reliance 1s placed by the applicant upon the provisions of s.74(1) of the Act which are as follows: "44, (i) Unts! a determination under section 30 or an agreement in . eflect under section 3! otherwise provides, the terms and conditions of service of a member of the Austrahan Federal Police who was, :mmediately before the commencing date, a member of an existing Police Force shall be deemed to be the terms and conditions of service that were, :mmediately 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 determmaticn of the Minister in force under sub-section 5 (4} ef the Conunonweaith Police Act 1957; (d) a determmation of the Police Arbitral Trmbunal 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 58 of that Ordinance as amended. ¥ It is common ground that there 1s no relevant agree- ment under s.3l in existence. On or about 11 July, 1980, the Minister made a determination under s.30. There is a dispute between the parties as to its operation and it is convenient to return to it later. Sections 75, 76 and 77 are transitional provisions dealing with recognition of previous service for certain statutory purposes such as superannuation and long service leave, recreation leave and sick leave. Section 78 provides: 8. 478, (1) In sub-section (2}, "prescribed promotion" means the promotion of a member of an existing Police Force made before the commencing date, being a promotion that was subject to appeal and, immediately before that date, had not been confirmed or cancelled. (2) The power to make regulations conferred by paragraph 40 (c) extends to the making of regulations— (a) for enabling a person who, immediately before the commencing date, had a right of appeal against a prescribed promotion (whether or not he had lodged or commenced such an appeal before that date) 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 this Act; and (b) providing for matters connected with, arising out of, or conse- quential upon the foregomg, including matters relating to the effect of the allowance or dismissal of an appeal so made on any other appointment made in pursuance of section 72 °' Regulation 5 deals with the competency and qualifications of members of existing police forces as follows: 115, (1) For the purposes of— (a) an appointment to a rank in a component in pursuance of section 72 of the Act; or (b) atransfer from that rank to an equivalent rank 1n the other com- ponent in accordance with paragraph 25 (1) (c) or 26 (1) (c) of the Act, a person who immediately before the commencing date was a member of an existing Police Force is competent and qualified to hold a rank in the Australian Federal Police that 1s equivalent ta the rank that he held ia that existing Police Force immediately before that date (2) For the purposes of sub-regulation (1)— (a) the rank, or each of the ranks, in the Australian Federal Police specified in column 3 of an 1tem in Table | of Schedule | 1s equivalent to the rank m the Commonwealth Police Force specified in column 2 of the item, and (b) the rank, or each of the ranks, in the Australian Federal Police specified in column 3 of an item in Table 2 of Schedule | is equivalent to the rank in the Police Force of the Australian Capi- tal Territory specified 1n column 2 of the item. "! Schedule 1 is as follows: SCHEDULE 1 Regulation 5 Table | EQUIVALENT RANKS FOR THE PURPOSES OF THE APPOINTMENT OF MEMBERS OF THE COMMONWEALTH POLICE FORCE TO RANKS IN THE AUSTRALIAN FEDERAL POLICE Column 1 Column 2 Column 3 Rank in the Commonwealth Ranks in the Australian Stem No Police Force Tederal Police H Constable Constable Protective Service Constable 2 Constable First Class Constable Protective Service Constable 3 Semor Constable Constable Protective Service Constable 4 Sergeant Sergeant Protective Service Sergeant 5 Senior Sergeant Semior Sergeant Protective Service Semor Sergeant 6 inspector Inspector Protective Service Inspector 7 Sentor Inspector Cluef Inspector Protective Service Chicf Inspector 8 Chief [nspector Chief Inspector Protective Service Chief Inspector 9 Supenntendent Supenntendent 10 Senior Superintendent Chref Superintendent int Chief Superintendent Chref Superintendent Assistant Commissioner 12 Assistant Commissioner Assistant Commissioner Table 2 EQUIVALENT RANKS FOR THE PURPOSES OF THE APPOINTMENT OF MEMBERS OF THE POLICE FORCE OF THE AUSTRALIAN CAPITAL TERRITORY TO RANKS IN THE AUSTRALIAN FEDERAL POLICE Column | Hem No BR wWwiN aD it Column 2 Column 3 Rank in the Police Force of the Ranks in the Australian Australian Capttat Terntory Federal Police Constable Constable Protective Service Constable Constable First Class Constable Protective Service Constable Senior Constable Constable Protective Service Constable Sergeant Third-Class Sergeant Protective Service Sergeant Sergeant Second-Class Semror Sergeant Protectuve Service Senior Sergeant Sergeant First-Class Station Sergeant Inspector Second-Class Inspector Protective Service Inspector Inspector First-Class Chief Inspector Semior Inspector Suvenntendent Deputy Commissioner Protective Service Chief Inspector Superintendent Chief Supenntendent Assistant Commissioner Assistant Commissioner 10. The applicant submits that s.74(1) operates so as to "save", in respect of those persons such as the applic- ant who were members of Compol immediately before 19 October, 1979, those terms and conditions of service relating to promotion in Compol notwithstanding the provisions of the Act and the regulations thereunder which specify a partic- ular qualification for the promotion of members of the Australian Federal Police. This result flows, the applic- ant says, from the proper construction of the words "terms and conditions of service" in s.74(1). He relies, in this connection, upon the reasoning of the High Court of Australia in The Queen v. Booth; Ex parte The Administrative and Clerical Officers' Association (1978) 141 C.L.R. 257. Under s.12D of the Public Service Act, 1920, the Public Service Arbitrator may "make such orders as he thinks necessary or desirable" for putting an end to an industrial dispute or to prevent its recurrence. The orders which may be made include "orders relating to conditions of em- ployment of officers or employees ... (concerned or affected) ...". It was held that the power to make orders relating to conditions of employment authorised the arbitrator in an appropriate case to make an order granting officers of the public service a right of appeal against the appointment to positions in the public service of persons who were not officers of the service at the time of their appointment. The Court (Gibbs, Stephen, Mason, Jacobs and Murphy, JJ. said (at p.262): ll. 'The expression "'conditione of employmen:' 12 defined in 3 3 (1) of the Act to mean "salaries, wages, rates of pay or other terms or cunditions of service or employment" The expression as so defined 1s obvionsly intendea to have a wide meaming in Austrahan Tramwa, Empioyes Assoctauon s Pruhren and Malvern Tramuay rust (13) +n a passage cited hy Dixon C Joan Reg v. Findlay, &x parte Commonwealth Steamsfrip Ou'ners' Association (14), Isaacs and Rich JJ said "The 'terms' of employment are the stipulations agreed to or otherwise existing on both sides upon which the service is performed The 'conditions' ot employment include all the elements that constitute the necessirs requisites, attributes. qualifications, environment or other circumstances atiectirg the employment " No doubt this extenstve meaning should be attributed tu the word "conditions' in the definition The "other terms or conditions cf service or emplnyment' cannot be hmited to thuse which are eyusdem genens with salanes, wages and rates of pay A condition relating to semerity would come within the definition cr Commissioner for Railways (NSW) vo Me Culluch (15) The fact that an employee has, or has not, a mght of appeal against the appointment %f an outsider to a position the filhng of which would affect his semrorsty is a circumstance affecting lus employment It 1s true of employment generally, incluging employment in the Public Service, that importance ts atiached by employees to the mamtenance of their positions of seniority, with its influence on their prospects of promotion, and a natural enough way of preserving the existing senionty of an employee 1s to give him a nght of appeal against the making ot an appointment whic! would in a practical sense affect his semuority or his prospects Under the Public Service Act 1922 (Cth) as amended ("the Public Service Act'), an officer ts given a mht of appeal against the promotion of another officer wn a vacant office and seniwrity is one matter which may be considered sees 50(6) A nght of appeal against the appomt ment of an outsider to a vacant office, whether granted by statute, award or agreement might be made a term of the employment of an employee who might be affected by the appointment, and if granted would at least be a condition of the employment of such employee ™ The applicant therefore submits that because he was qualified and eligible to be promoted to the rank of inspector in Compol it follows that, by virtue of the "saving" provision of s.74, he was eligible to be appointed to the rank of inspector in the Australian Federal Police. Therefore, he was qualified and eligible for the lower rank of station sergeant. To this extent, he argues, the regulations are inconsistent with s.74 and thus, pro tanto 12. invalid (see Pearce, Delegated Legislation (1977) at p.175; Acts Interpretation Act, 1901, s.46(b)). He further submits that because the determination made by the Minister under s.3l1, supra, does not in its terms deal with the question of qualifications for promotions to the various ranks, it has no relevant operation for present purposes. In a context such as that of the Administrative and Clerical Officers Association case, supra, namely the ambit of the jurisdiction to settle an industrial dispute, there is every reason to suppose that the legislature intended to give a wide meaning to the expression "terms and conditions of service": a restrictive interpretation could well frustrate the power sought to be conferred. However, I am not per- suaded that the present context is in any real sense similar. There are good reasons for restricting the meaning of the ex- pression "terms and conditions of service" where used in s.74(1) to the extent that it does not comprehend qualifications and eligibility for promotion to a superior rank. In my opinion, s.74(1) should be construed in the light of the whole of the transitional provisions contained in Part VII. An examination of those provisions indicates that the operation of the "saving" provision could not have been intended to be exhaustive. In the first place, the "saving" provision in s.74(1) does not itself operate to effect a transfer holus-bolus of members of existing forces to the new force, for s.72(1) provides for a fresh appoint- ment to be made in the case of each member under s.25 or 13. s.26. Secondly, s.73 confers a preference on members of existing forces over other applicants in an appointment other than one under s.72. Thirdly, ss.75, 76 and 77 operate to preserve certain accrued rights of members of existing forces. Finally, s.78 deals with promotions appeals in certain cases. If the "saving" provision of s.74(1) were intended to have the sweeping operation contended for by the applicant, 1t 1s not easy to see why it was thought necessary to enact some at least of the specific transitional provisions to which I have referred. There are further difficulties in accepting the broad, unrestricted interpretation of s.74(1} urged by the applicant. First, the Act did not simply transfer the members of Compol to the new force. Its operation was to provide for machinery under which members of any existing police force could be appointed under s.25 or s.26 to an equivalent rank. Thus, members of any existing police force, not only members of Compol were involved and members of the police force of the Australian Capital Territory were also caught. That force had its own hierarchy and as Schedule 1 to the regulations, supra, shows, 1t had ranks which were different from those of Compol. For example, Table 2 of that schedule shows that sergeant first-class in the Territory force is to be treated as equivalent in rank to station sergeant in the Australian Federal Police. There is no corresponding equivalent rank in Table 1 in the case of Compol. 14. The position then is that, in a real sense, the Act seeks to achieve a merger, in effect, of a number of exist- ing police forces. That merger takes place against a back- ground of different hierarchies in the ranks of members at least so far as Compol and the Australian Capital Territory force are concerned. Given that different background in the case of at least the two forces I have mentioned, it 1s difficult, to say the least, to imagine that the Parliament, in iuntroducing the "saving" provision into s.74(1) ina general way would thereby have intended to preserve, in its exact form, the qualifications and eligibility for promotion of each member of each force as they stood in their old force. In the context of the new regime, obvious practical prob- lens arise ingiving effect to such rights as they existed : " . : under the ancien regime since the respective hierarchies were not equivalent. 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 use of the general expression "terms and conditions of service" intend to pack up,as within it,the eligibility and qualifications of the applicant, 1f any, to promotion to superior rank within Compol. 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) 1s 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. 15. To freeze rights of that character, as s.74(1} purports to do, is an understandable and feasible objective. But to freeze qualifications and eligibility for promotion, as the applicant would seek to do, is a very different thing. Not only are there the practical problems of implementation which I have mentioned but there are also sound reasons of policy why standards in terms of qualifications and elig- ibility for promotion should not be frozen in the permanent way urged by the applicant. In my opinion, s.74(1) should be construed so as not to comprehend such matters. It follows, 1n my view, that'the wider 1nterpretation of s.74(1} contended for by the applicant should not be accepted. That being so, it 1s unnecessary to deal with a number of alternative arguments advanced by the respondents. The application is dismissed. The applicant must pay the costs of the respondents. i certty that this and the IE preceding Pages are a true copy of the reasons for judgment herein of Fhe Honourable Mr Justic ma e Beaumont. Du Chang . Associate