. JUDGMENT No. 2647.3. CATCHWORDS administrative law - judicial review - bu ervyice - review oar decision that public servant céasea m6 ger yevyicus duties and temporarily perform ather duties - whet temporary manpower requirement must 2x15t For regulations 3 peemit making of dicections - whether ragulations permit ma q oor dicections hat officer péertorm temporarily certain duties for indefinite period. Administrative Decisions «Judicial Paview: Ach 1977 Public Service Act 1922 - ss. 5, 7, 27, 42, 43413, 43¢1,, 37A, 37 Public Service Regulations - Reg. lis Federal Court Rules - Order 29 Rule 2 BRIAN FRANCES HALE vy. 3S.B. BATLEY, REGIONAL OTRECTOR, DEPARTMENT OF PRIMARY INDUSTRY, SOUTH AUSTRALIS AND AOR. Jenkinson J. Melbourne L December, 1937 as ALQISTAY SPA COURT OB FeO STRALIA PRINCIPAL — Seen ead , aa Lee mn et ee ee IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) No. VG172 of 19987 GENERAL DIVISION ) BETWEEN: BRIAN FRANCIS HALE Applicant AND: 5.8. BAILEY, REGIONAL DIRECTOR, _ DEPARTMENT OF PRIMARY INDUSTRY, SOUTH AUSTRALIA and G.L. MILLER, SECRETARY, DEPARTMENT OF PRIMARY INDUSTRY, CANBERRA Respondents CORAM: Jenkinson J. DATE: l December, 1387 REASONS FOR JUDGMENT Hearing of questions, within the meaning of thak word in Order 29, 1n an application for an order of review in respect of an administrative aecision. On 25 March 1987 the first~named respondent decided to direct the applicant to perform the duties of a particular office in the Australian Public Service, of which they have at all material times been officers. That is the decision in respect of which an order of review is sought. The source of power to give such a direction suggested by the respondents is Regulation 116 of the Public Service Regulations, as in force at the time the direction was given. At that time Regulation 116(1) was in these terms: —— cer omer eo sree pee oy ee oe ei ee ees "The Chier Officer of a Department may, by writing, direct an officer of the Department to perform temporarily the whole, or a specified part, of the duties of an office in the Department other than an office of Secretary." One of the grounds of the application for an order of review 1s that Regulation 115(1), on its proper construction, author1ses the giving of 4 direction to perform the whole, or a specified part, of the duties of an office only when there exists a real need of such a performance and the direction is given by a Chief Officer with the intention of satisfying that need by giving the direction, whereas in this case neither the need nor the intention was present. Another ground of the application is that Regulation 116(1), on its proper construction, authorises the giving of a4 direction to perform duties only for a period which is indicated in the direction, or alternatively which 15 intended by the Chief Officer when he gives the direction, to terminate at a particular time or on the happening of a particular event, whereas in this case the period of performance was a period for which no particular end was indicated or contemplated by the Chief Officer. An order having been made in exercise of power conferred by 0.29 R.2(a) for the separate hearing of the questions raised by those grounds, which are numbered 4(a) and 4(D) respectively, those questions have been heard and stand for decision. pees 3. At material times each of the applicant and the first-named respondent held an office in the Australian Public Service in the Department of Primary Industry, and that respondent ("Mr. Bailey") was in relation to the applicant the Chief Officer of that Department for the purposes of Regulation 116(1). The Public Service Act 1322 authorises the creation and abolition by the Secretary of a Department of the Australian Public Service of offices in that Department, "for the purpose of enabling the Department to perform its functions" 5.27). The Public Service Board may appoint 4 person to a particular office in the Service or as an unattached officer in the Service (5.42). Each office and aach officer 15 accorded a "classification", which word 1s defined, in relation to an office, as "a dascription that identifies the class of offices to which that office helongs, being a class of offices that are of a similar kind, that have responsibilities of a similar level, the performance of the duties of which requires work of similar value and the salary, or range of salaries applicable to which are the same" (55. 7(1), 27(2), 42). An unattached officer has a classification corresponding ta the classification of the office he held immediately before he became an unattached officer or, upon his appointment as an unattached officer in the Service, such classification as the Public Service Board determines to be appropriate to his duties y (ss. 28(4) and 42(2)). Each other officer has the classification or the office which he holds (5.7({1)). Provision is made for promotion to an office of higher classification and for transfer to an office of equal - or, with the consent of the officer, a lower - classification, for dismissal from the Service or transfer 4. to an office of lower classification hy season of misconduct, and for forteiture of office by reason of unauthorised absence from duty (Divisions +, 6 and 6A of Part III}. Ther2 are other statutory provisions by the operation of which an officer might lose the tenure of an office without his consent, ctherwisea than ta another office of equal classification. But there can be discerned in the Public Service ct 1922 a legislative scheme designed broadly to ensure that each office be filled by the sélection, under conditions of faire competition, of the most efficient of those who seek appointment Eficer the tenur=s af his orfice T a] tu Ul ul Q Mm, Lit] cS Lt, and {lr by Go bo ac while he diligently performs the duties of the office. The Bublic Service Act 1922 and other statutes, such as the Commonwealth Employees (Redeployment and Retirement) Act 1979 contain provisions which are not wholly congruous with that scheme. But it is in the context of the scheme that Regulation 116 is ta be construed. Section 6 of the Publiz= Service Act 1922 provides: "The chief object of this Act is to constitute a public service for the afficient, equitable and proper conduct, in accordance with sound management practices tancluding personnel management practices), ar che public administration of the Australian Government and this Act shall be construed accordingly." Section 97 of tha Public Service Act 1922 confers on the Public Service Board a power to make, with the approval cf the Governor-General, "regulations, not inconsistent with this Act, prescribing all matters which are required or permitted to be pate weet me mee 'hee ae aes I Yt teint etree 5. prescribed or which are necessary or convenient to be prescribed, for carrying out or giving effect to" that Act, and in particular for a substantial number of purposes specified in that section. Section SiA of that Act provides: "({1) The regulations may make provision for or aun relation to the temporary performance of the whole or a part of the duties of an office (whether vacant or not) in a Department other than an office of Secretary by an officer performing duties in that Department or another Department, including provision for or in relation to - (a) the selection of an officer £ t perform temporarily the duties of an o a; fo) fic and (b) appeals by fFticaers in ralation to such a selection of a4 nm officer. ma (1A) Regulations under sub-section (1) may make different provision in respect of different periods of tamporary performance of the duties of an office or in respect of different circumstances in which the selection or an officer to perform temporarily the duties of an office may be made. (3) Sub-section (1) applies in relation toa the temporary performance of the whole or a part of the duties of a Senior Executive Service office as if paragraph (1)(b) were omitted." (Certain offices are classified by the name used in sub-saction S1A(3) and are the subject of particular provision in the Act. Neither the office held by the applicant nor the office the duties of which he was directed to perform 15 of that classification.) The applicant is and at all material times has been classified as a Meat Inspector Grade 1 in the Department of Primary Industry. It was said that the office he held was at mee R. ry ra Ie an } Hi ; t my ' I a > , wernt sep roe see rope 2 Noarlunga Meatworks. But if he were an unattached officer the legal consequences in relation to the questions under present consideration would be the same, in my opinion. He lived at = ny Material times at Hackam West neac Noarlunga ard worked as a feat i) Be tT Inspector at Noarlunga Meatworks for many years. In abour 198 was decided that he should not be employed in a place where meat was handled which was to be exported to the United States of America, because he had been judged guilty of misconduct of a kind which was considered iikely to make his involvement in the preparation of meat for export co that country unacceptable to certain governmental authorities in that country. At Noarlunga Meatworks meat For sxport to the United States was and stiil is handled. The abattoirs to which the applicant might be expected to travel daily to and from his home and in which meat for export to the United States of America was not handled ware so situated in relation to the applicant's home that an allowance was payable to him in vaspect of the cost of his travel to and from work at taken to direct € those abat Ss. In 19386 & decision wa a ci Pp ts ui applicant to perform the duties of a Meat Inspector Grade 1 in an office of the Department in Adelaide. Representations by the applicant and others to senior Departmental officers were made against that decision, in respect of which an order of raview was also sought by an application lodged in this Court on 9 February 1387 (No. VG23 of 1987), to which the applicant and the second-named respondent in this proceeding are the parties. Further consideration was given to the matter and by letter dated 25 March 1987 the decision which is the subject of this proceeding was communicated by Mr. Bailey to the applicant in these terms: eee 7. "T have decided, following consideration of all relevant matters and the verbal submissions made by you and on your behalf at our meeting on 23 March, 1987, to direct you to perform temporarily the duties of position number 2712 in the Adelaide Regional Office of the Department. This direction will be effective on and from 27 March, 1987, until Further netice. I have made this decision pursuant to Regulation 116 of the Public Service Regulations and this Letter shall serve as the written notice required by that Ragulation. Iam attaching hereto 2a statement of the factors I have takan into account in reaching my decision," Attached to the letter was a statement signed by Mr. Bailay, the following terms: "RECONSTDERATION OF DEPLOYMENT OF MR. 3B.F. HALE As directed by the Secretary, Mr. G.L. Miller, I have taken a fresh decision on the deployment of Mr. 3B. Hale effective from 27 March, 1987. In reaching this new decision, I have taken into account Mr. Hale's views as presented to me verbally during a meeting on 23 March, 15387, and other factors detarted below. It was submitted to me that consideration should first be given to returning Mr. Hale toa his headquarter location of Noarlunga and, Further, that his application for promotion at Noarlunga should be progressed. I have been advised that Mr. Hales continues to be ineligible for placement at US-listed plants. As Noarlunga is US-listed, I am therafore unable bo accept this submission. Tt was requested by Mr. Hale that if placement at Noarlunga was rejected that I next consider deploying him to Mt. Barker, MNairne or Lobethal on a temporary basis. Mr. Hale contended that there have been numerous transfers to the Adelaide Hills since my decision of July 1986 to diract him to the Adelaide Regional Office. In his opinion it was questionable whether significant cost savings had resulted from that decision. in ren rome The references to "cost" in the statement are references to cost of Figures provided to me indicate that by replacing Mr. Hale at Mt. Barker with another inspection resident closer to that location, there has in fact been a saving to the extent of some 50% per week. Further, [I have taken into consideration that with the proposed permanent placement of inspectors in tne newly created Hills zone (incorporating Mt. Barker, Nairne and Lobethal) there shouid be sufficient permanent inspectors to make the zone seli-sufficient for staffing purposes. This will further reduce the incidence of transfer (estimated to be no more than two transfers per week) and the costs presently being incurred by velieving Hills-based inspectors from the Adelaide area. Accordingly, I have concluded that because of the very high costs which would be incurred unnecessarily by slacing Mr. Hale at Mr. Barker, Nairne or Lobethal on a semi-permanent basis, this 15 not an option I can adopt. In considering the cost factor, I have taken ints account Mr. Hale's extensive experience in meat inspection but in the circumstances as they exist at this point in time, I must apportion greater weight to the cost factor. I do so because there are sufficient qualified inspectors available to meet present requirements without utilising Mr. Hale's services. Should Regional operational needs dictate or if he successfully applies for an above-base position at a non-US listed plant, Mr. Hale will be considered for transfer hack to the field. During the meeting cf 23 March 1987, Mr. Hale informed me that he had no interest in heing permanently relocated away from Noarlunga. As there are no options open to me to consider and as there are duties which are required toa be performed within the Regional Office which Mr. Hale 15 able to perform, I have decided that I should direct him pursuant to Public Service Regulation 116 to temporarily perform the duties of Position Number 2712, Meat Inspector Grade 1, Adelaide Regional Office effective from 27 March, 1987. This temporary transter will continue indefinitely." travelling allowances. The. evidence disclosed the that be Te CTU ene seapere awe errs tyres TIT tone ent ee ques: 9. "position number 2712" was of the classification "Meat Inspector Grade 1" and that at the time the direction was given the office was vacant. The first of the two grounds of the application foc an order of review rests on the contention that Regulation 116(1) affords a power of direction only when a real need exists that the duties of an office be performed by a person other than the holder of the office and the direction is given with the intention that thereby the need should be satisfied. As to the need, I should have thought it sufficient that the Chief Officer who purports to exercise the power should have honestly believed such a need existed and that his belief should not have been so unreasonable that no reasonable person could have held it. I find that in this case the need existed that the duties of the office designated position number 2712 in the Adelaide Regional Office should be performed by a person cther than the holder of that office. I find that Mr. Bailey gave the impugned direction to Mr. Hale with the intention that thereby the need should be satisfied. But, as the statement by Mr. Bailey which has been quoted makes clear, the Girection was given with another intention as well, and the decision to give the direction was caused by Mr. Bailey's desire to achieve that other intention, namely the intention that the applicant be engaged in che performance of the duties of an office ot the classification "Meat Inspector Grade 1" without the cost to the Department of a travelling allowance to the applicant. There were at material times other officers of that classification by whom the duties of the office designated position number 2712 might convenientiy have been performed. Against the risk that 16 a wrt sce a cerry 10. might be - as it has been - found, contrary to his primary submissions, that there was a real need and that the direction was given with the intention that thereby the need should be satisifed, Mr. Bell of counsel for the applicant submitted that even when those findings are made the power afforded by Regulation 116 is available only when the "true" or "real" object sought to be achieved by the giving of the direction is the satisfactzton of -he need for the performance of the duties of the office. Mr. Bell submitted chat the verbal formulation of the power in Regulation 116, and of the power ain 5s.81A, indicated satisfaction of the need for performance of the auties of the office to which the direction is to relate as the only, or alternatively the dominant purpose for which the power conferred by the Regulation might be exercised. It was further submitted that those indications in the language of those two provisions were consonant with the Ilsgislative scheme which accorded such fics which each officer Fh importance to the tenure of the o permanently neld. There was nothing in the Act or Regulations, Mr. Bell submitted, which suggested the existance of a power to direct temporary performance of the duties of an office for the purpose of acccmmodating some peculiarity of the person to be subjected to the direction. In my opinion the phrase "for any reason" in Regulation 116(1) telis strongly against the construction proposed by Mr. Bell. I donot find any indication in the language of the Regulation or of s.S1A Eo support that construction. When regard is had to the subject matter of the Public Service Act 1922, to In my opinion the word "temporarily" denotes temporal limitation in ordinary speech, but not necessarily a limitation ascertained or ascertainable in axtent at a particular time. Th a ae context which Regulation 116{1) supplies suggests a contras rh between the period of performance of the duties of an office in bra the Australian Public Service contemplated of the holder of the office and the period of performance of those dutias contemplated of an officer to whom a direction 15 given in pursuance of that Regulation. The one period 125 conceived as cerminable only by death or resignation or rekbirement or soromotion or crsmoval far g misconduct or under some svec bP al statutory provision, the other period as terminable at the discretion of the perscns in whom the Management of the Service is vested whenever the need of that performance ceases. In that latter sense the word "Camporary" has been used as a noun, in relation to employment and particularly in gelation to civil service employment, since the fifth decade oF the nineteenth century at least. (See O.E.D.) The original heading of Division 10 of the Putlic 3ervics Act 1922, in which applicable to officers, was "Tamporary Employment". And in 1ts original form sub-section 49(1) of the Act provided: "No married woman shali be e#ligibl employment, either permanently or tempo un the Commonwealth Service, unless the Board certifies that there are special circumstances which make her employment desirable." The word "permanent" was not I think, otherwise applied by the Act an description of the offices or the officers of the Public ll. its declared chief object, and to the absence of any iundacation in s.51A of in Ene Regulation of a limitation by reference to purpose, no reason is in my opinion to be seen for Limiting the power conferred by the Regulation in the manner suggestad. Considerations deriving from an officer's personal condition sr circumstances could not reasonably be excluded from a catalogue of factors to be weighed in deciding whether to make any, and 1f 50 what arrangement for the temporary performance of the duties of an office, in my opinion. The necessity to which the Regulation vefers ought in my opinion to be understood as having reference to the chief objact of the Act and to all other considerations reasonably relevant to the attainment of that object. The need of the performance of the duties cf an office is in my opinion but one of the relevant circumstances to be considered in making a decision whether and in what way the power conferred by Regulation L1l6(1) 15 to be axercised in a particular case. The weight to be accorded each of the relevant considerations 15 a matter for the judgment of the Chief Off2cer in whom the power 15 vested. The other ground of the application under present consideration rests on the submission that in Regulation 116(1) the word "temporarily" denotes a period of time of known duration or a period of time which will terminate on the occurrence of a future, specified event. Normal usage of the word and the context which the Regulation supplies indicated, according to Mr. Bell's submission, that a termination was contemplated. Without it, no temporal limitation 1s set upon the action of the verb "perform" by the adverb, the meaning of which would have to be taken to be "indefinitely", it was submitted. wht ta Se epee ene See wer epee nee en ene oe Tab i Po aes . ores par ee ee eget weer me woe a were ee ae - t eee pepe ee ove eee Service which it constituted, except in the now discarded expression "Permanent dead", but in common speech the words "permanent" and "temporary" were for decades cardinal antomyms in La m Spect of civil service employment. Examples of that usage are to be found in sSup-seaction 48(1) oF the Public Service Act 1222 a before 1ts amendment. I do not suggest that in the construction of the word "temporarily" in Regulation 116(1)considerations deriving from that usage need be called in aid. The ordinary meaning of the word does not in my opinion justify the requirement suggested by Mr. Bell, that some soecific temporal limit be set, 2on Gr in the mind of the Chief Offacer when rn cr whebher in the dire an office "until rurther notice", provided that the person giving the dicéction nas at the time he gives the direction the intention that the direction shatl nok continue in effect so long as to make cr he word "temporarily" inapplicable to the perforning undertaken. The notification that the dicaction is given in exercise of power conferred by that Regulation 15 in my opinion sutficienr he requirement of the Regulation that the written cr compliance with direction be of temporary perrtorcmance, because the indication of bo give the diraction communicaces the {Tt the source of the pow limitation imported by the word "tamporacily"". The words "until further novice" in Che direction do not contradict that limitation, in my opinion. Because I am of opinion that the Regulation does not, on 15 proper construction, require that any particular period be fixed by the Chief Officer at the time the een tee rnp eee wr eee ee ee - te J up for the ¢séspondents, supported cheir helpful submissions by ui ul yeference to other Regulations, relating to directions for ths temporary oerformance of duties, whith came into force Regulation 116 took the form in which 10 was when Mr. Barley gave the apelicant tha impuanec direction. T have not Found any guidance? on tle yuescions sf conscructhiscn I have haa cs an . I will hear counsei for the pacties as to whether any, and 1f 350 wnat, Grder should be mada in respect of the questicns I = ocertify that this and the 13 preceding pages are a true copy 37 the Reasons fsr Judgment nersin of the Horoucable Mr. Susbtics Jenkinzgon. Dated: 1 December, Mounsei for the Apoiicanc : Me. AH. Bali Soliczrtors for the Applicant : Holding Sadlica Counsel for the Respondents H Mr. KM. Hayne 9.C., De. OC.N. Jessup Solicitors for the Australian Government Solicitor Respondents eptember, 1987 a Date of Hearing 3