re OQ BS Jeol CATCHWORDS Administrative Law -— objection to competency ~ decision sought to be reviewed not a decision made "under an enactment" - proper source of power not in relevant Act or in guidelines drawn pursuant to that Act ~ application incompetent and therefore struck out. Administrative Decisions (Judicial Review) Act 1977 Commonwealth Employment Service Act 1978 No. G87 of 1987 TARANTO (1980) PTY LTD trading as ESQUIRE MOTOR INN v. KEVIN LEIGH MADIGAN and THE COMMONWEALTH OF AUSTRALIA FORSTER J. ADELAIDE 15 MARCH, 1988 were er sa ees wane ce eee ee + wore eect fee wee pee: IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY No. G87 of 1987 GENERAL DIVISION BETWEEN: TARANTO (1980) PTY LTD trading as ESQUIRE MOTOR INN Applicant - and - KEVIN LEIGH MADIGAN and THE COMMONWEALTH OF AUSTRALIA Respondent MINUTE OF ORDER JUDGE MAKING ORDER 3 FORSTER J. WHERE MADE ADELAIDE DATE OF ORDER 15 MARCH 1988 THE COURT ORDERS THAT: i. The application be struck out with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. mre a xb IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY ) No. G87 of 1987 ) ) GENERAL DIVISION BETWEEN: TARANTO (1980) PTY LTD trading as ESQUIRE MOTOR INN Applicant - and - KEVIN LEIGH MADIGAN and THE COMMONEALTH OF AUSTRALIA Respondent REASONS FOR JUDGMENT CORAM: FORSTER, J. The applicant company conducts a motel at Wallaroo. The second respondent amongst other things operates a scheme known as "jobstart" pursuant to which an employer may obtain a subsidy of up to $150 per week towards the wages of a person whom he or it employs who has been unemployed for more than six months. Pursuant to this scheme the applicant wished to employ one Kenneth Johnson as a chef. On 21 July 1987, Williams, the manager of the applicant, telephoned the Commonwealth Employment Service ("the CES") at Port Pirie controlled by the second respondent to make arrangements about the jobstart subsidy with respect to Johnson. Williams was told that the CES could not deal with the applicant as a complaint of sexual harassment had been made against Williams. On 26 July 1987 Williams wrote formally to the first respondent ("Madigan") the manager of the CES at Port Pirie saying that the applicant wished to employ 2. Johnson and asking for the appropriate jobstart forms to be sent. Madigan replied on 3 August 1987 reminding Williams that he had been informed on 21 July 1987 that "pending the investigation by the Equal Opportunity Commission all employment/training action would be suspended". He said that he was unable to be of any assistance concerning Johnson. It is now clear that whereas a jobstart application brought this matter to a head the CES has withdrawn all services to the applicant until the sexual harassment matter is cleared up. On 4 November 1987 the applicant commenced these proceedings seeking an order for review under the Administrative Decisions (Judicial Review) Act 1977 of the decision of the respondent "suspending all employment/training action and refusing to provide any assistance in relation to the applicant's employment of Kenneth Johnson and others". Affidavits were filed and on 12 January 1988 the respondents filed a notice of motion returnable on 12 February 1988 seeking an order that the applicant's application for an order of review be dismissed. On the same day the respondent lodged a notice of objection to competency on the stated ground "that the purported decision which is sought to be reviewed ... is not a decision ... made ... under an enactment" within the meaning of the Administrative Decisions (Judicial Review) Act. The decision was in fact made 1n accordance with CES policy pursuant to guidelines developed it is said in a letter of Madigan's to the applicant's solicitors "in conjunction with the oe 3. Attorney-General's Department, the Human Rights Commission and this Department's Central Office.* Those guidelines are in evidence and their purpose is expressed to be as follows "This section sets out the policy and procedures for dealing with employers against whom complaints of sexual harassment have been made by CES job-seeker clients". Paragraphs 1.1011 and 1.1013(i) of the guidelines are as follows : "1.1011 Tf the CES receives two or more complaints against the employer of sexual harassment, or one complaint which in the view of the EOM is so serious that it should be acted upon, the EOM should proceed as set out in item 1.1013. Should the EOM so consider, he/she may initially consult with the Zone Manager on the matter or where warranted formally refer to the question of withdrawal of service in the particular instance, to the Assistant Director, Network Operations for decision. 1.1013 The procedures to be followed in dealing with the employer are: (1) The EOM shall advise the employer, whether by phone, letter or personally, that the CES intends to withdraw its services to the employer unless it can be satisfied that satisfactory procedures to protect staff from acts of sexual harassment have been adopted." It is argued by the applicant that the decision complained of was either made under the Commonwealth Employment Service Act 1978 ("the CES Act")conceded to be an enactment for this purpose or it was made under the guidelines which fall within the definition of an enactment set out in s.3(1) of the Administrative Decisions (Judicial Review) Act which is relevantly as follows : | aaa Vee ere pee scone 4. "3.(1) In this Act unless the contrary intention appears an enactment means (a) ... (b) ... (c) an instrument (including rules, regulations or by-laws) made under ... an Act ... (d) ...". I have heard oral argument and have received written submissions with respect to the objection to competency and the application for dismissal only and have not otherwise heard argument on the application to review the decision. On the one hand it is argued that the decision was made under the CES Act or under the guidelines and on the other hand that it was made under neither. 'tn the first place it is conceded by counsel for the applicant that the mere fact that the body (in this case the CES) on whose behalf the individual respondent Madigan made the decision complained of was created by a statute, the CES Act, is not of itself enough to establish that any decision made by the CES is a decision made under an enactment that is to say the enactment which created it. I agree with this concession. In the second place it seems to me that there is only one question to be answered rather than two. The decision is plainly a carrying into effect of the guidelines and indeed the undated letter of Madigan to the applicant's solicitors in response to their request for reasons for the decision says that the decision was "consistent with CES policy" an apparent reference to the guidelines. If the decision was made under the CES Act then no doubt so also were the guidelines so made. rf > S ariadiieaata nematic etiaaiea weet spe 5. the decision was not made under the CES Act then no doubt neither were the guidelines. The question as to whether the guidelines are an enactment according to the definition appears to me to be unnecessary to decide. The question which requires answering is whether or not the decision was made under an enactment viz. the CES Act. It is necessary to examine some of the provisions of the CES Act. The functions of the CES are set out in s.6 of the Act which is as follows : "6. The functions of the Commonwealth Employment Service are - (a) to assist persons seeking employment or a change of employment to obtain suitable positions having regard to any experience, abilities, training or qualifications they possess and to the economic and other needs of the Australian community and, in particular, without limiting the generality of the foregoing - (i) to provide such persons with information relating to employment, including advice relating to the qualifications for, and other aspects of, particular occupations, and with vocational guidance; and (ii) to make special arrangements and provide special facilities wherever necessary so to assist such persons who are immigrants or Aboriginals, who are young-= or handicapped, who have recently completed their education, who have proessional or technical qualifications or who otherwise have special requiirements or disadvantages in relation to employment; (b) to assist employers and intended employers wishing to fill vacant positions of employment to fill them with available persons who are suitable for the performance of the duties of, and who meet the employer's or intended employer's requirements for, the positions; (c) to promote and implement approved manpower awereee ne —— ae ere ee re eee eee Nee te Sw rene eee v4 6. programs and other measures designed to ensure a high level of employment in the community; (d) to register persons who are unemployed and who wish to claim unemployment benefits under the Social Services Act 1947 and to _ provide assistance in seeking employment for persons claiming or receiving such benefits; (e) to publish information in respect of the labour-market or the services relating to employment provided by the Service, or otherwise by the Commonwealth, or, with the consent of the relevant State, by a State; (£) without derogating from the powers and functions of the Australian Bureau of Statistics, to collect statistics and other information relating to the labour-market, and (g) to do anything incidental or conducive to the performance of any of the foregoing functions." The powers of the CES are set out in s.7 of the Act : "7. The Service may do all things that are necessary or convenient to be done for or in connexion with the performance of its functions and, in particular, without limiting the generality of the foregoing, may train members of the staff of the Service in the performance of their duties." Many cases have been cited to me and I_ respectfully agree with the conclusions reached in most of them but with equal respect I do not find them very helpful. As in so many other matters each case must be looked at in the context of its own facts. It is necessary in my view to look first at the decision and then at the Act under which it is alleged to be made to see whether in truth it is made under that Act. t me eae 8 re ee, ae or ee ee a ee Mae a a I ee 7. The decision was, as TI have said, to "suspend all employment/training action" with the immediate consequence that CES was unable to provide any assistance in relation to the employment of Johnson. It as not disputed that this was a decision of an administrative character. Properly understood it was not a decision simply not to assist in the matter of Johnson but was a decision to suspend all services which had the necessary consequence of denying for the time being at least any assistance in the matter of Johnson. This was not a decision relating only to the jobstart programme although application under that programme led, to some extent, to the decision being made. Properly understood it was a decision to withdraw all services until the matter of the complaint of sexual harassment had been satisfactorily cleared up. It is now necessary to examine the CES Act to discover if possible the source of power to make this decision. Sections 6(g) and 7 set out above give very widely stated powers but depend upon there being some specific power to support then. It might be said for instance that the guidelines with respect to allegations of sexual harassment can be justified under s.6(c) as being "to promote and implement approved manpower programmes and other measures designed to ensure a high level of employment" coupled with s.6(g). It is hardly necessary to say that s.6(g) and s.7 each taken alone can be a source of power for no particular action. It is first said s.6(a) is the source of power to make the decision because action to deal with sexual harassment could be said to be assisting persons to obtain eae pane eer 39 eee - oy . t bee ce Seem re men ern o 8. "suitable positions". I do not accept this because of the words which follow "suitable positions". Section 6(a) seems to me to have no relevance to nor to be a source of power to deal with complaints of sexual harassment. Next it 1s said that s.6(b) might be the source of power because "sexual harassers" could hardly be "suitable for the performance of the duties". It is enough to say that I am unable to accept this argument. Next it is said that s.6(c) is the source of the power. It is certainly the source of the power to institute the "jJobstart" scheme but the sexual harassment guidelines and the decision go beyond the jobstart scheme. It is of course true as I have already said that the applicant's request under the jobstart scheme was involved in the decision to withdraw all assistance but it can hardly be said that the power to promote and implement approved manpower programmes created and approved no doubt by someone else even expanded by s.6(qg) or s.7 provides powers to make decisions concerning sexual harassment. No other function is suggested as a source of power. I am driven to the conclusion that the source of the power to produce the guidelines and make the decision complained of lies in the common law duty and power of the Commonwealth to protect itself and its employees from claims made by "clients" of the CES that they have been sexually harassed and, perhaps, its duty and power to take steps to protect unemployed persons ot rep on pee see prea 9. seeking employment. The decision may also be justified as an exercise of general administrative power by the Commonwealth to make arrangements for the proper carrying out of its functions. Whatever may be the proper source of power it seems to me not to be found in the CES Act or the guidelines. The decision complained of can thus not be said to be made "under an enactment". The notice of motion succeeds and the application is struck out with costs as the decision complained of was not made under an enactment and the application is therefore incompetent. I certify that this and the @ preceding pages are a true copy of the Reasons for Judgment of Mr Justice Forster. Associate: MabacN' Bride Dated: iS at Be , Miss M. Mitchell Counsel for the applicant Baker McEwin Solicitors for the applicant Mr J. O'Halloran Counsel for the respondents Australian Government Solicitor Solicitors for the respondents Date of hearing 12 February 1988 ie ieee der pitieieen al nn ee ge ye neers wae ae nen oer