re een et RL te I ee i Tia oe lee Re ah mae EE Reh eT en ee ee " CATCHWORDS Administralive Law - judicial ceview - notice of objection to competency - whether decision to dismiss was "of an adminastratave character" - whether made "under" an enactment ~ whether power to "derermine" terms and conditions of employment must be exercised in writing ~ whether determination is an "instrument" ROBYN MARY ACKLAND v IAN BARTON CHITTICK (State Manager, Health Insurance Commission, Victor2za) and HEALTH INSURANCE COMMISSION Administrative Decisions (Judiczal Review) Act 1977, ss. 3(1), 5 Health Insurance Commission Act 1973, s. 28 Acts Interpretation Act 1901, s. 33(3) CORAM : KEELY J DATE oo 8 APRIL, 1983 PLACE MELBOURNE - os a cae ee od IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No. VG 95 of 1982 ee ee ee GENERAL DIVISION BETWEEN ROBYN MARY ACKLAND Applicant AND IAN BARTON CHITTICK (State : Manager, Health Insurance Commission, Victoria) and HEALTH INSURANCE COMMISSION « Respondent 8 APRIL, 1983 KEELY J. REASONS FOR JUDGMENT ON OBJECTION TO COMPETENCY On the material at present before the court, Robyn Mary Ackland (the applicant} was employed by the Health Insurance Commission (the Commission) as a claims officer grade 4 and worked in the claims processing centre at Medibank Private at Dandenong in Victoria. On 29 March, 1982 she was "charged with the commission of an offence under Condition 98 of the Health Insurance Commission Terms and Conditions of Employment", in that, contrary to s. 130(1) of the Health Insurance Act 1973, "she davulged confidential information with respect to the affairs of a member of Medibank Private acquired in the performance of her duties". The applicant by letter denied the truth of the charge. By notice dated 8 April, 1982 the respondent Chittick, the State Manager of the Commission, i) ee en ee 2. informed the applicant that the charge had been sustained and that she was dismissed from the staff of the Commission as from 8 April, 1982. An appeal was lodged by the applicant. On two occasions she was informed of a date for the hearing of her appeal but was later notified that the hearang had been cancelled. Her appeal was never heard but she received a notice from the Commission, dated 24 May, 1982, in the following terms :- "Health Insurance Commission Terms and Conditions of Employment Notice of Charge under Condition 98 Robyn Mary Ackland, 29 Matthew Flinders Avenue, Endeavour Hills. Vic. 3802. TAKE NOTICE that you have been charged with the commission of an offence under Condition 98 of the Health Insurance Commission Terms and Conditions of Employment, a copy of which charge is annexed hereto, AND TAKE FURTHER NOTICE that in accordance with the saad Condition, I hereby require you to forthwith state, in writing, whether you admit or deny the truth of the charge, and give any explanation in writing, you may think fit AND TAKE FURTHER NOTICE that, af a reply is not received within seven days of your receapt of the charge you will be deemed to deny the truth of the charge. Dated this 24th day of May 1982. I.B. CHITTICK, STATE MANAGER" . ' That notice was accompanied by the following document :- The decision in the last paragraph of that document, to suspend her retrospectavely from 8 April, "Health Insurance Commission Terms and Conditions of Employment Charge under Condition 98 As the duly authorised officer for the purposes of Condition 98 of the Health Insurance Commission Terms and Conditions of Employment, I, I1.B. Chittick, State Manager, Health Insurance Commission, Victoria, hereby withdraw the charge against Robyn Mary Ackland under Condition 98, formal notice of which was dated the twenty-ninth day of March 1982. I have further considered reports relating to the said offence and I hereby charge Robyn Mary Ackland with that on or about the twenty-third day of March 1982, she did commit a most serious breach of conduct amounting to ampropraety in that she did divulge confideniial information wath respect to the atfairs of a member of Medibank Pravate acquired in the performance of her official duties as an officer of the Health Insurance Commission. I consider that the charge 1s of such a serious nature that you should not continue in the performance of your duty and you are accordingly suspended as and from the eighth day of April 1982. Dated this 24th day of May 1982. I.B. CHITTICK, STATE MANAGER" » to in those proceedings as "the farst decasion". ' purpor.uing 1982, was referred en DS The applicant wrote to the respondent Chittick on 27 May, 1982 denying the truth of the charge. By letter dated 15 June, 1982 she was anformed that in Mr. Chattick's opinion the charge had been sustained and that she had been dismissed from the Commission ("the second decision"). By letter dated 21 June, 1982 the applicant gave notice of her intention to appeal against the second decision. The applacant has lcdged an application under s. 5 of the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act) seeking an order ef review of both the first and the second decisions. Section 5(1) provides that a person "who is aggrieved by a decision to which this Act applies +e. May apply to the Court for an order of review in respect of the decision" on a number of grounds. Section 3(1) defines "decision to which this Act applies" to mean "a decision of an administrative character made, ... or required to be made ... under an enactment ...". The application also sought interlocutory relief but that matter was not pursued. The present hearing is of an objection to competency, lodged by the respondents, contending, in essence, that the decisions were not decasions to which the Judicial Review Act applies, that the decisions were not decisions of an administrative character as required by s. 3(1) of that Act, and F that the decisions were not made or required to be made under an enactment within the meaning of s. 3(1) of that Act. Mr. H2ril, of counsel, on behalf of the applicant, submitted that the decisions to suspend and dismiss her were of an administrative character and were made under the Health Insurance Commission Act. In *the alternative he submitted that the decisions were made under Condation 98 of the Commission's determination of terms and conditions of employment of its employees and officers which was itself an "enactment" within the meaning of s. 3(1) of the Judicial Review Act. The definition of "enactment" will be set out later in these reasons when dealing with that alternative argument. Before dealing wath those submissions it is necessary to set out in considerable detail certain factual matters relating to the applicant's contract of employment, the content of the Commission's determination of terms and conditions and its method of making that determination. The applicant in her supporting affidavit said that she had been employed by the Commission since 5 January, 1976. The correspondence leading to ihe commencement of her employment by the Commission consisted of two letters. A letter dated 12 December, 1975 from the Commission to the applicant (whose surname at that time was Py Angliss) was 1n the following terms :~ "Dear Miss Angliss, I refer to your recent application and subsequent anterview for employment wath this Commission. ee ene ee ee 6. The Commission has pleasure in offering you employment as a Data Processing Operator in Training in the Commission's Dandenong office at a salary of $2900 per annum. The conditions of service of the Commission are as determined by the Commission and approved by the Public Service Board in accordance with section 28 (2) of the Health Insurance Commission Act, 1973. I should be pleased to receive your formal acceptance of this offer as soon as possible. I trust that our essociration will be a long and happy one. Yours sincerely, for D. F. Tierney, State Manager" By letter dated 17 December, 1975 the applicant replied as follows :- "Health Insurance Commission, Victoria Branch, * P.O. Box 22, Box Hill. 3128. Dear Sir, Thank you for your letter dated 12 December 1975, and I wish to accept your offer of employment as a Data Processing Operator, in Training at your Dandenong office. Yours sincerely, Robyn Angliss." Fy The applicant saad in her affidavit that by March 1982 she was a claams officer grade 4. ee ee we Ra ee ee eee ee As to whether the applicant had knowledge of the terms and conditions of her employment, she said in her affidavit "When I first applied for and was given employment by the said Commission, I was sixteen years of age. I was not shown a copy of any terms and conditions of employment and the same were not explazrned to me. The said Commission has not at any time supp]ied to me a complete copy of the said terms and conditions and, prior to the 29th day of March 1982, I had not seen the same.". It will be seen from a document set out later that the "Terms and Conditions of Employment" determined by the Commission deal separately with officers (section A) and employees (section B). J. J. Bentley, Assistant General Manager (Personnel), in an affidavit sworn 15 October, 1982 said :- "7, Prior to the 7th day of November 1980, the appplicant was a temporary employee of the Commission. On the 7th day of November 1980 the applicant's appointment became permanent and thereafter she was regarded as an officer of the Commission." There 2s no evadence at present before the court that the applicant was ever informed that her "appointment became £ permanent" or anformed that her terms and conditions of employment had been altered by reason of that change. Her counsel accepted (transcript pp. 145-146) that at the tame of her dismissal she was an officer employed under the terms and conditions determined by the Commission but did not concede that the applicant had ever agreed to those conditions. He contended that it was ammaterial whether she had ever agreed to them but that in so far as it was material the facts were set out in her own affidavit. Condition 98, under which the applicant was charged, appeared in "Section A -— Officers" of the "Terms and Conditions of Employment" but did not appear in "Section B - Employees" of that determination. Section B contained Condition 112 which read as follows :- "(1) Employees are engaged during the pleasure of the Commission only. (2) The services of an employee may be terminated at any time by the Commission. (3) When the employment of an employee has extended over a period of not less than four weeks, the employee shall be entatled to at least one week's notice of termination of engagement. When the notice is not given, payment shall be made for one week in lieu of the notice. Provided that the services of an t reer aa a employee may be terminated without notice at any time on the ground of misconduct or unsatisfactory service." Mr. Bentley, in an affidavit sworn 13 August, 1982, said "The Conditions of Employment in use by the Commission 2n the months of March, April, May and June 1982 were substantially the same as the original conditions of employment determined by the Commission on 25th September 1974 and 27th November 1974 and approved by the Public Service Board on 10th January 1974 (sic). In particular, there has been no change in conditions 14, 15 and 19 of the conditions of employment sance those conditions were first determined by the Commission and approved by the Public Service Board." A later affidavit by the respondent Chittick stated that Mr. Bentley had informed him that the reference, in the above paragraph, to condition 19 was an error and should have referred Lo condition 98. Mr. Bentley exhibited to his affidavit a copy of the terms and conditions of employment which were in force in the months of March, April, May and June 1982. That document c shows on its face that at has been amended on a substantial "~~ 10. number of occasions including amendments in August, September and November 1976, in March and September of 1977, in May of 1978, and an February, July and November of 1979. At the time when the applicant became a temporary employee s. 28 of the Health Insurance Commission Act 1973 was in the following terms :- "28.(1) Subject to thas section, the Commission may appoint such offacers and engage such employees as it thinks necessary for the purposes of this Act. (2) The terms and conditions of employment (other than in respect of matters provided for by this Act) of persons appointed or engaged under sub-section (1) shall be as determined by the Commission with the approval of the Public Servace Board. (3) ...." That section was amended by the Health Insurance Commission Amendment Act 1978 and in 1982, at the time of both the first decasion and the second decision, s. 28 was in the following terms :- "28(1)* Subject to this section, the Commission may engage such staff as it thanks necessary for the purposes of this Act. ; (2) The terms and conditions of employment (other than in respect of matters provided for by this Act) of persons engaged as staff under sub-section (1) shall be as determined by the, Commission." ll. The method by whach the Commission 1n 1974 exercised its powers under s. 28(2) was set out in the following passage from Mr. Bentley's affidavit sworn 13 August, 1982 :- ".,. The Commission on '25th September 1974 adopted terms and conditions of employment which corresponded as closely as possible with those applying in the Australian Public Service. Before approving those terms and conditions, the Public Service Board requested a number of amendments to the conditions of employment. The Commission determined to make the necessary amendments on 27th November 1974. The conditions of employment (as amended pursuant to the Commission's determination of 27th November 1974) were approved by the Public Service Board on 10th January 1975. Mr. Bentley exhzbated to his affadavit a copy of the terms and conditions of employment approved by the Public Service Board on 10th January 1975 and determined by the Commission on 25th September 1974 and 27th November 1974 - a determimation consisting of approximately 130 pages. The scope of that determination by the Commission appears from Mr. Bentley's later affadavit, sworn 15 October, 1982 which exhibited a "document recording the adoption on 25th September 1374, by the Heaith € 12. Insurance Commission of terms and conditions of employment" persons appointed or engaged under s. 28(1). The document in the following terms :- "Determination by Health Insurance Commission Terms and Conditions of Employment In accordance with the provisions of Section 28(2) of the Health Insurance Commission Act, 1973, the Commission determines as follows: (i) that, for the time being, the Terms and Conditions of Employment of persons appointed or engaged under Sub-section (1) of Section 28 of the Act' shall comprise Sections and Parts as follows:- Section A — Officers ; PART I - Preliminary PART II - Salaries of Officers PART III - Appointments PART IV - Special Provisions Relating to Female Officers PART V - Attendance and Duties of' Officers PART VI - Hours of Duty and £ Overtime of was A re - sn aene eee eee ee a ers meee wk EE PART VII - Leave of Absence and Holidays PART VIII -—- General Allowances PART IX - Promotions and Transfers PART X - Suspensions, Dismissals, Retarements PART XI - Fares on Appointment, Removal Expenses etc. XII - Mascellaneous f Section B — Employees PART I - General Conditions of Engagement (ii) that, for the time being, Parts V, VI, VII, VIII, XI and XII of Section A, and Part I of Section B, of the Terms and Conditions shall be as contained in the corresponding Parts and Sections of the Terms and Conditions of Employment determined for application to staff of the Catires Commission; and (aiajthat, for the time beang, Parts I, II, III, IV, IX and X of Section A of the Terms and Condations shall be as' contained in Appendices (a) to (£) to this Determination." 14. That copy document exhibited to the affidavit did not contain "Appendices (a) to (£) of this Determination". "Public Service Board by a letter, dated 26 September, 1974, That determination by the Commission was forwarded to the the following terms :- "Terms and Conditions of Employment Health Insurance Commission Ref: Board's File 73/8360 At 2ts meeting on 25 September 1974 the Commission determined, in accordance with Section 28(2) of the Health Insurance Commission Act 1973, that the terms and conditions of employment of persons appointed or engaged under Section 28(1) of the Act shall be as contained in the enclosed Manual. For rates of pay purposes, the Commission also issued a determination (copy enclosed) tying its particular position classifications to selected position classifications in the Australian Public Servace so as to provide for automatic adjustment of 1ts pay rates following adjustment to the corresponding pay rates in the Public Servace. 2. As the Board will be aware from earlier discussions, the terms and conditions as now determined are largely based on the terms and conditions approved for application to staff of the Caties Commission. As soon as resources become available, a revaew of the satuation will be undertaken with a view tc producing a set of terms and conditions designed specifically for the Commission's needs. In the meantime, however, it is believed the terms and conditions as now determined will provide a basis on = whach the Conmission can operate. The need to proceed with the appointment and engagement of staff is particularly urgent, having in mind that the date set for implementation of the Health Insurance Scheme 21s 1 July 1975. ' 3. In accordance with the provisions of Section 28(2) of the Health Insurance Commission Act 1973, the enclosed set of terms and conditions, as an The Public Service Board by letter to the Commission, 15. determined by the Commission on 25 September 1974, is submitted for the approval of the Public Service Board. (R. G. Williams) General Manager" October, 1974, replied as follows :- "Terms and Conditions of Employment The Manual of terms and conditions of employment for persons appointed or engaged by the Health Insurance Commission, which was forwarded to this Office under cover of your memorandum of 26 September 1974, has been examined. 26 Prror to receipt of the Manual you will be aware that there had been discussion between officers of the Commission and the Board on a draft set of conditions made available in August. These Giscussions ultimately led to mutually agreeable adjustments to the draft which have now been incorporated into the Manual. There are, however, further variations which are considered to be appropriate before submission of the Manual of terms and conditions of employment of the Commission to the Board for forma] approval under section 28(2) of the Health Insurance Commission Act 1973. These are listed in the Attachment to this memorandum. 3. Subject to your agreement to these further adjustments a formal approach will be made to the Board recommending approval of the terms and conditions of employment for the staff of the Commassion. ' (K.F. FAUL) Acting Secretary" , dated 30 16. The attachments to that letter were headed "Proposed Adjustments to Staff Rules of the Health Insurance Commission" and included proposed amendments to Condition 98 of the Commission's determination. The Commission Secretary's minute of a meeting of the Commission held on 27 November, 1974 recorded the following :~ "Subject: Terms and Conditions of Employment - Adjustments 1. The General Manager stated that it was the Commission's prerogative to lay down terms and conditions of service, subject to approval of the Public Service Board. 2. The Public Service Board has agreed to the Commission's terms and conditions subject to the minor amendments under discussion. The proposed adjustments were quate simple and of little significance. 3. The Commission approved the amendments." The determination by the Conmission, as amended by it in accordance with the suggestions made by the Public Servace Board, was formally approved by the Public Service Board in the following terms :- "Health Insurance Commission Terms and Conditions of Employment In pursuance of the provisions of sub-section (2) of section 28 of the Health Insvrance Commzssion Act 1974, I, Robert John Young, for and on behalf of the Public Service Board, Mereby ee et re 17. Approve the determination of the Health Insurance Commission in the matter of terms and conditions of employment of officers and employees appointed or engaged by the Health Insurance Commission. Notafacation of the determination of the Health Insurance Commission is contained ain the Commission's advices dated 26 September 1974 and 10 December 1974. Dated this tenth day of January 1975. (n.d. YOUNG) Deputy of a Commissioner" Condition 98 of the Terms and Conditions of Employment so determined by the Commission included the following provisions "Condition 98 {1) An officer who - ... (e) is guaity of any disgraceful or improper conduct, either in his official capacity or otherwise; or (£) commits any breach of the Health Insurance Commission Act 1973 or any Regulations made thereunder, or these Conditions; or (g) ee shall be gualty of an offence, and shall be liable to such punishment as is determined under the provasions of this Condation. (2) wee (3) Where there is reason to believe that an * officer has committed an offence, other than a minor offence punishable under the provisions of the preceding sub-condition - 18. (a) the officer may be charged by the General Manager, or any officer so authorised, and may, if it as considered that the charge is of such a serious nature that the charged officer should not continue in the performance of his duty, be suspended; (b) ee (c) eee (a) if the General Manager, or any officer so authorised, after consideration of reports relating to the offence and charge and the reply and explanation if any, of the offacer charged, and any further reports that may be considered necessary 1s of the opinion that the charge has been sustained, he may - ... (v) dismiss the officer from the staff of the Commission ..." Mr. Hill's first submission raised matters sim2lar to those dealt with in the decision of Ellicott J. 1n Burns v Australian National University 40 A.L.R. 707 and by the Full Court on appeal (Australian National University v Burns 43 A.L.R. 25) which reversed the decision of Ellicort J.. Mr. Neil Young of counsel, who appeared for the respondents, relied upon the Full Court decision in addition to submitting other arguments. Mr. Young submitted that, although it may be convenient to divide an examination of the relevant words of s. 3(1) into two issues, namely, whether the decision was of an administrative character and whether it was made under an £ enactment, the definition must be read as a whole because the legislation is only constitutionally valid in so far as ed eee aee ee -_- - ie ee we eee ce ce eee ee 13. it confers jurisdiction on the court to review decisions made under an enactment. In this connection he cited Ex parte Barrett (1945) 70 C.L.R. 141 at 154, Felton v Mulligan (1971) 124 C.L.R. 367 at 387~388 and Evans v Friemann (1981) 35 A.L.R. 428. I agree with Mr. Young's submission that it is necessary to read the provision as a whole but it is nonetheless necessary to consider the word "administrative". In Burns v Australian National University, (supra), Ellicott J. dealt with the question of whether the decision there at issue was of "an administrative character". He said :~ {at p. 714) "It is obviously unwise to attempt a comprehensive definition but, in my opinion, it is at least apt to describe all those decis2ons, neither judicial nor legaslative in character, which Minasters, public servants government agencies and others make in the exercise of statutory power conferred on them, whether by Act of the Parliament or by delegated legislation. In other words it at least covers the decisions made in executing or carrying into effect the laws of the Commonwealth. Such decisions, as the definition indicates, may or (may) not requ2re the exercise of a discretion. Usually they will. Quite often, they will, in the exercase of a dascretion, involve the application of the general to the particular, e.g. a general rule or broadly framed power to partacular carcumstances: Compare Commonwealth v Grunseit (1943) 67 C.L.R. 58;, Tooheys Lid. v Manister for Business and Consumer Affairs (1981) 36 A.L.R. 64 at 72-4. As to the meaning of ""adminastrative action" under the Ombudsman Act 1973 (Vic) see Booth v Dillon (No. 1) (1976) V.R. 291; Booth v Dillon (No. 2) (1976) V.R, 434 and Glenister v Dillon (1976) V.R. 550. A decision appointing a person to or removing a person from a particular office or employment made in the exercise of a, power conferred by legislation 20. is, in my opinion, clearly administrative in character. It is one made in the course of executing or carrying into effect the law from which the power springs.... In previous decisions of this court under the Act, at has been held or acknowledged that decisions relating to employment, e.g- promotion in the public service, are decisions "of an administrative character": see Hamblin v Duffy (1981) 34 A.L.R. 333; Fanch v Goldstein (1981) 36 A.L.R. 287. In my opinion a decision to remove or dismiss a person from a particular employment an the exercise of a power conferred by an enactment 1s likewise a decision of an administrative character." On the appeal before the Full Court (supra - at p. 29) the appellant Unaversity conceded that if the decision was made under the University Act it was a deciszon of an administrative character. In my opinion the two decisions made by the Commission in respect of the applicant were "of an administrative character". Mr. Young submitted that s. 3({1) required that the decision making power arise out of the legislation or be conferred by the legislation, and that without such a "nexus" the decision could not properly be said to be "made under an enactment". Ile said thai 1f the nexus does not exist "you have a decision under a contract of employment with a statute lurking an the background ". , He also submitted that the letter offering the applicant x employment incorporated by reference the terms and conditions determined by the Commission, that the determination did not oan Ss nee Cee ee ee 21. have any legal force and effect of and by atself and that the applicant's rights resided entirely in the contract. Relying on A.B.C. v Industrial Court of South Australia (1977) 138 C.L.R. 399 he submatted that the determination did not bind the Commission in respect of its employees and that the terms of the determination only applied if the contract included its terms. Mr. Hill contended that the terms and conditions of employment became applicable to the applicant only by virtue of the statute, that they were made under an enaciment (the Health Insurance Commission Act) and that decisions made under those terms and conditions are decisions made under an enactment. In Evans v Friemann (supra) Fox A.C.J. heid that the word "under" in s. 3(1) of the Judicial Review Act means "in pursuance of" or "under the authority of". In the present case at is possible to say in one sense that every decision made with respect to the engaging of staff under s. 28 of the Health Insurance Commission Act is made in pursuance of or under the authority of that Act. However, as Bowen C.J. and Lockhart J. said in Burns case (supra) :- (at p. 33) "Tf the making of a contract is' authorised by an enactment, and such a contract, when made, in fact provides for the making of certain decasions, it does not necessar2ly follow ihat those decisions, when made, are not made under the enactment. This must depend on the language and operation of the particular enactment and contract." statutory provisions under consideration in Burns case. 22. {at p. 34) "... we accept the correctness of the proposition that the same decision may be made both under a contract and 'under an enactment' for the purposes of the Judicial Review Act. The difficulty lies, not with the acceptance of that proposition, but in deciding whether it applies in a particular case. This must depend on the circumstances of each case." In this connection it may be desirable to refer to the 23 of the Australian National University Act 1946 provided Section 27(1) of that Act empowered the University Council to make, "Subject to this Act and the Statutes, the Council may from time to time appoint deans, professors, lecturers, examiners and other officers and servants of the University, and shall have the entire control and management of the affairs and concerns of the Unaversity, and may act in all matters concerning the University in such manner as appears to at best calculated to promote the interests of the University." alter and repeal statutes from time to time with respect to a number of matters includang :- No statute pursuant to s. 27(1)(g) had been made with respect to the Accordingly, the power of the Council to appoint a professor was "(g) The number, stipend, manner of appointment and dismissal of deans, professors, lecturers, examiners and other officers and servants of the University." manner of appointment and dasmissal of professors. £ that conferred by s. 23. Section 23. In thas connection Bowen C.d. and Lockhart J. said : (at p. 32) "Aithough s. 23 confers no power in express terms to remove or suspend professors and others, such power arises from the more general powers conferred by the section on the Council after the express reference to the powers of appointment. In our opinion the control and Management of the affairs of the appellant must include the suspension or removal of its deans, professors and others. Notwithstanding that s. 23 was the source of the Councal's power to appoint and dismiss the respondent an 1966, it does not follow that the decision to dismiss him was made under the University Act. The answer to the question lies in the true characterization of the decision itself. It was mot a decisizon to dismiss the respondent sampliciter. It was a decision to dismiss him on a particular ground namely, that he had become permanently ancapacitated from performing the duties of his office. This was one of the grounds expressly provided for un condition 2(b)(a1) of the conditions of appointment which formed part of the respondent's contract of engagement. The University Act prescribes no essential procedural requirements to be observed before a professor is dasmissed and lays down no incidents of a professor's employment. In our opinion the raghts and duties of the parties to the contract of engacement were derived under the contract and not under the University Act. Section 23 empowered the Council to enter into the contract on behalf of the appellant. Even if the Council, in considering the position of the appellant under the contract, might be said to be acting under s.23, the effective decision for dismissal taken and notified to the respondent was directly under the contract." , Although the question of whether a decision is madé under : & an enaciment will depend on the circumstances of each case, and "on the language and operation of the particular enactment and tte een a eee ee = meee woe ee eee oe -- -- 24. contract" (Burns case (supra) at p. 33), in my opinion the two decisions the subject of the present application were made under Condition 98 of the determination made by the Commission and were not made under s. 28 of the Health Insurance Commission Act. Accordingly, I reject Mr. Hill's first submission, that the decisions to suspend and dismiss the applicant were made under the Health Insurance Commission Act. Mr. Hill's alternative argument was that the Terms and Conditions of Employment, determined by the Commission under s. 28(2), constituted an "instrument" within the meaning of s. 3(1) of the Judicial Review Act. That section provides :- ""enactment" means - (a) an Act .... (b) an Ordinance .... (c) an instrument (including rules, requlations or by-laws) made under such an Act or under such an Ordinance. (a) sees and, foc the purpose of paragraphs (a), (b) or (c), includes a part of an enactment;"". Mr. H1r1l1 submitted that the definition of "enactment" in s. 3(1) * ",.. literally covers the position of these conditions of employment. They are rules or regulations that govern the employment; they are made under the statute, they could not possibly be made any other way, and they come into existence by virtue of the statute". Mr. Hill relied upon passages in arene nena nee 25.6 Halsbury and upon the definitions in The Shorter Oxford English Dictionary of ""anstrument" as including the following : "Ss. Law. A formal legal document whereby a right is created or confirmed, or a fact recorded; a formal writing of any kind, as an agreement, deed, charter, or record, drawh up and executed in technical form". The definition in The Oxford English Dictionary (1901) is the same except that it adds at the end the words "so as to be of legal validity". Mr. Young conceded that the word "anstrument" is a word of very wide import when looked at apart from its particular context but submitted that, in its particular context in s. 3(1), the word should be more narrowly construed. He submitted that the word "anstrument" must be construed ejusdem generis with the words "(including rules, regulations or by-laws)" appearang immediately after it, that the definition of the word "anstrument" was anserted for the purpose of establishing the constitutional foundation of the legaslation and that the word "anstrument" must be interpreted as being confined to instruments of a legislative character. The words "instrument (including rules, regulations or by-laws)" appear also in s. 33(3) of the Acts Interpretation Act 1901 as amended by s. 6 of the Acts Interpretation Act 1941. The meaning of the words in that Act and the effect of the 1941 £ amendment were considered by Brennan J., as President of the Administrative Appeals Tribunal, in Re Brian Lawlor Automotive I~ 26. Pty. Ltd. and Collector of Customs (New South Wales) (1978) 1 Administrative Law Decisions 167. In that case his Honour had to consider whether, under the Customs Act, the Collector was empowered to revoke a licence under s. 78 of the Customs Act. "That section provided that dutiable goods "may be warehoused in warehouses licensed by the Minister". In that conneciion Brennan J. said :- (at pp. 171-2) "The respondent submits that the power of revocation is to be found within s 78 atself, when it is construed ain the extended sense which s 33(3) of the Acts Interpretation Act 1901 is said to require. That sub-section reads as follows: - "Where an Act confers a power to make, grant or issue any instrument (including rules, regulations or by-laws) the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like condations (if any) to repeal, rescind, revoke, amend, or vary any such instrument." Section 33(3) is prayed an aid by the respondent because it is said that a licence is an "instrument", and that the power to grant or issue an instrument of that kind under s 78 of the Customs Act is therefore to be construed as including a power to revoke it. When s 33(3) was first enacted, it was expressed to apply only to a power "to make any rules, regulations or by-laws". A power to make rules, regulations or by-laws is a power to bring subordinate legislation into existence - it is not an administrative power. "Rules, regulations or by-laws" are terms used to describe, perhaps without precision, various kinds of subordinate legislation (see Pearce, Delegated Legislation, (1977) p2:; CK Allen, Law and Orders (3rd ed), pp 91-5), and ain the Rules Publacation Act 1903, the Parliament used the same terms in prescribing the statutory rules - prancrpally. 1f not exclusively, rules of a legislative character - which are to be 27. pranted and published. There 1s much to he said for the view that s 33(3), as it was first enacted, was limited in ats appiication to the power to create subordinace legislation. The applicant submits that it 1s now so limited. By s 6 of the Acts Interpretation Act 1941 (No 7 of 1941) s 33(3) was amended to its present form. The words "any rules, regulations or by-laws" were omztted and in their stead were inserted the words: "grant or issue any instruments (including rules, regulations or by~laws)". The instruments to which s 33(3) now relates are instruments which are not necessarily rules, regulations or by-laws, and they are instruments which might be "granted" or "assued" rather than "made". Where, pursuant to a statutory power, an authority grants or issues an anstrument other than a rule, regulation or by--iav, the exercise of the power may well be an executive or administrative act rather than a legislative act. At all events, the granting or issuing of an instrument other than a rule, regulation or by-law is not necessarily an act of a legislative kind, and the granting or making of an executive or administrative instrument falls within the natural ambit of s 33(3). An effect of the 1941 amendment is to extend the . power of repeal, rescission, revocation, amendment and variation to statutory powers for the creation of anstruments when the power is of an executive or administrative rather than a legislative character." An appeal from that decision was dasmassed by the Full Court ((1979) 24 A.L.R. 307). I adopt, with respect, that statement of Brennan J. which in my opinion 21s equally applicable to the words in paragraph (c) of the definition of "enactment" an s. 3(1) of the Judicial Review Act. Accordingly I am unable to accept Mr. Young's submission that the word "instrument" must be confined to instruments of a Legislative character. meet 28. In Lawlor's case Brennan J. held that the power under s. 78 of the Customs Act to grant a licence was not a power to grant or assue an instrument within the meaning of s. 33(3) of the Acts Interpretation Act. However, in my opinion, neither the reasons for decision of Brennan J. nor the reasons for judgment of the members of the Full Court support the proposition that the power of the Health Insurance Commission under s. 28(2) of the Health Insurance Commission Act, to determine the terms and conditions of employment of persons appointed or engaged under s. 28(1), is not "a power to make, grant or assue any instrument". In any event the words in s. 3(1) of the Judic2zal Review Act do not anclude the words "a power to make, grant or issue". Brennan J. placed considerable emphasis upon the fact that s. 33(3) of the Acts Interpretation Act applied to "a power" and not to "any instrument", saying :- (at p. 172-3) "Section 33(3) applies to "a power", not to "any instrument". It operates to add powers of repeal, etc, to the power to which it applies, that is, to a power to make, grant or issue an instrument: a power which may be exercised without making, granting or issuing an instrument is not a power to which s 33(3) applaes. Ts the power vested in the Minister under s 78 of, the Customs Act a power which may be exercised without creating an instrument? There are some features of the warehouse Licensing scheme which point to the desirability, indeed to the practical necessity, of a written warehouse licence. € ey 29. But s 78 does not in terms require that the licensing power be exercised in wrating and the practical need can be met either by a written certificate of the exercise of the Licensing power, or by the licence atself if the Minister or his delegate should choose to exercise the power in writing. There are other provisions relating to licences or permits granted under the Customs Act where the Parliament has been astute to requare writing: for example, ss 37(2A)(c), 40AA(1) and (2), 60(2)(b), 7iB(1), $7(1), 132B(3), 132c(1) and 183B(6). Had the power conferred by s 78 been a power which was intended by Parliament to be exercised only in writing, s 78 could have been framed in like manner to those sections, but it was not so framed. Thus, there as no legal necessity for the power to be exercised in writing, and the Minister may without writing lawfully license a warehouse." (See also the judgments of the Full Court (supra) - per Bowen C.J. (at p. 313) with whom Deane J. agreed on this aspect (at p. 344) and Smithers J. (at p. 323)). It will be noted that Brennan J. in the passage quoted, after referring to the way in which the practical need for a written licence could be met, said that "the Manister may without writing lawfully license a warehouse". Bowen C.J. (supra at p. 313) said :- "Indeed, it would seem that ... the power to grant a warehouse licence might be exercised either orally or in writing." . The Manister's power to lawfully license a warehouse "without writing" or "orally" may be contrasted with the power of the Commission to determine the "terms and conditions of employment ... of persons appointed or engaged under" s. 28(i} which, in my opinion, could only be exercised in writing. The ova 30. Commission 1S a body corporate established by statute and consists of seven Commissioners and the statute makes provision for such meetings of the Commission as the chairman "considers necessary for the efficient conduct of its business". The opinion that the power could only be exercised in writing is reinforced when regard is had to the fact that, at the time in 1975 when Condition 98 was determined, the Commission's power to make that determination was a power which could only be exercised "with the approval of the Public Service Board". Condition 98 was not amended at any time before the dismissal in June 1982. In my opinion the Commission's statutory power to determine, with the approval of the Public Service Board, the terms and conditions of employment of persons appointed or engaged by it could only be exercised by initially specifying, in a written instrument, the terms and conditions proposed by the Commission, then considering any written alterations to them suggested by the Public Service Board and lastly specifying, in a written instrument, 'the Commission's acceptance of any such alterations. In my view it was necessary for those steps to be taken by the Conmission ain exercising its statutory power to determine those "terms and conditions of employment ... with the approval of the Public Service Board". In other words the Commission could only exercise its statutory power 1n a manner substantially the same as that used by it in fa ft b - wee ee 31. 1974 and 1975 when determining the terms and conditions of employment, as set out in some devail earlier in these reasons, quoting from Mr. Bentley's affidavit, sworn 13 August, 1982. I agree with respect with the statement by Fox A.C.J. in Evans v Friemann (supra - at p. 435) that :- "The Act is a remediat one, and should so far as reasonably possible be given a wide construction and application." - a passage cited by Ellicott J. an Burns v A.N.U. (1982) 40 A.L.R. 707 at 716. In my opinion Condition 98 of the terms and conditions of employment determined by the Commission with the approval of the Public Service Board in 1975, under whach the applicant was dismissed, was a part of an instrument made under an Act and accordingly came within the definition of "enactment" in s. 3{1) of the Judici1al Review Act. I accept Mr. Young's submission that the contract between the Commission and the applicant incorporated by reference the terms and conditions of employment which had been previously determined by the Commission. It was submitted by Mr. Young that the applicant also contracted to be bound by any variation made to those terms and conditions from tame 10 time by the Commission - albeit made unilaterally and without ever' being communicated to her. I do not find it necessary to determine that matter. 32. Nor do I find 1t necessary to decide whether Condition 98 (under which the Commission purported to act) was one of the terms of the applicant's contract. The evidence on that point 1s not entirely clear and I referred earlier to certain "statements made by her counsel as to that aspect. She became a temporary employee of the Commission in 1976 and was treated by the Commission as being an officer from 7 November, 1980. In this connection the terms and conditions of employment determined by the Commission and approved by the Public Service Board an 1975 provided that :- officer" means a male or female person appointed in acordance with the provisions of Section 28(1) of the Act, but does not include an employee "employee" means a male or female person, other than an officer, engaged in accordance with Section 28(1) of the Act." Those definitions appeared an the same form in the terms and conditions of employment which were in force at the time of the decisions to suspend and dismiss in May and June 1982. However, even assuming - without decadang - that Condation 98 was incorporated into the applicant's contraét, in the Light of the circumstances of this case, which I have set out earlier in considerable detail, I have come to the " ta 33. conclusion that the two decisions were made under Condition 998 as an enactment and not made under it as a term of the contract. (cp. Burns case (supra - at p. 34)). The notice of objection to competency is dismissed with liberty to apply for costs. x MD te TE EE ee =< y [sty 2 this cod ty day feo , . ~ Hom cas eure? Copy eb te q x Te ont Perera of the f Laas Keely { se4 1 x Lowa Yd i | ATS ee ee De UE eos = ca en rt