JUDGMENT No. svse2 Sal ol Zoe CATCHWORDS ADMINISTRATIVE LAW - judicial review - decision directing temporary transfer of an officer of Australian Public Service - decision made under transfer provisions of Public Service Regulations - decision based on allegations of misconduct - whether decision maker could make direction without regard to procedural safeguards for disciplinary action - whether power provides for transfer where decision-maker forms view that there may have been misconduct ADMINISTRATIVE LAW - judicial review - procedural fairness - decision based on adverse reports of applicant's performance - insufficient opportunity to make representations. Public Service Act 1922 s.6, s.51A, s.56, s.61, s.63B Public Service Regulations reg.116A Ansell _v Wells (1982) 43 ALR 41 Bennett v Commonwealth [1980] 1 NSWLR 581 DR T JAMES v_ BRIAN MacDONALD No. NG 633 OF 1994 RECEIVED 25 OCT 1994 FEDERAL COURT OF Sackville J. pAb 21 October 1994 Sydney. FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No.NG 631 of 1994 GENERAL DIVISION ) BETWEEN: DR BART JAMES Applicant AND: BRIAN MacDONALD Respondent CORAM: SACKVILLE J. PLACE : SYDNEY DATE : 21 October 1994 MINUTES OF ORDER THE RT ORDERS THAT: 1. The decision of the respondent be set aside. 2. The matter be remitted for further determination according to law. 3. The respondent pay the applicant's costs. Ne : Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 631 of 1994 GENERAL DIVISION ) BETWEEN: DR BART JAMES Applicant AND: BRIAN MacDONALD Respondent CORAM: SACKVILLE J. PLACE: SYDNEY DATE: 21 OCTOBER 1994 INS _ FOR NT Introduction The applicant is an officer in the Australian Public Service ("the Service") employed under the Public Service Act 1922 ("the Act") as a Veterinary Officer, Class 2. At alli relevant times he was employed within the Australian Quarantine and Inspection Service ("AQIS") as Veterinary Officer in Charge at the Casino Abattoir. AQIS is administered through the Department of Primary Industries and Energy. On 17 September 1994 the applicant received a direction, from Mr McDonald, the National Operations Manager of AQIS, requiring him temporarily to perform the duties of the office of Veterinary Officer, Class 2 within the Veterinary Pool at Brisbane. The direction was to take effect on 19 September 1994, although, as will be seen, the applicant had received earlier advice as to AQIS's intentions. The applicant seeks a review of the direction for a temporary transfer, pursuant to the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"). The principal relief sought by the applicant is an order setting aside the decision. I should record that on 16 September 1994 Lindgren J., exercising the power in s.15 of the ADJR Act, suspended the operation of the decision until the first day of the hearing, 30 September 1994, or until further order. At the conclusion of the first day of the hearing I extended that order until further order. The Decision The decision of 12 September 1994 was preceded by a letter from Mr McDonald dated 17 August 1994. The substance of the letter was in the following terms: "I am writing to you concerning your performance of your normal duties, including the proper discharge of your management responsibilities, as Veterinary Officer in Charge at the Casino Abattoir. Specifically, I have received a report and recommendation from Mr Phil Curry, Acting Assistance National Operations Manager, which includes advice regarding areas of alleged poor performance (copy attached). I understand that your performance has been monitored for some time by the Deputy Chief Veterinary Officer in New South Wales and areas of concern have been discussed with you during the last nine months. I also note that particular areas of concern have been drawn to your attention in writing during this period including in correspondence dated 30 May 1994, 29 July 1994 and, most recently, 9 August 1994. Copies of this correspondence are attached. After receiving advice and correspondence referred to, together with other associated papers, I am concerned as to whether you are currently able to perform the duties reasonably expected of an officer at your level and in your position in a proper, efficient and effective way. The main concerns I have are not limited to but includes - an apparent deterioration and subsequent breakdown in the working relationships and leadership of the Plant Management Team; - poor observance of AQIS management systems required to monitor plant activities; - your apparent inability to provide management and other reports to AQIS supervisors and managers in a timely manner and in sufficient detail; - adverse reports received from Company management regarding the delivery of AQIS services; and - your apparent inability to properly represent AQIS as evidenced by your extraordinary action in walking out of a meeting with Company management without explanation. On balance I have concluded that you would benefit for a time from closer supervision and that it therefore would be in your interests and that of AQIS and The Australian Public Service generally for you to be temporarily transferred to another position and locality. This temporary transfer will continue while further consideration is given to what other action, if any, is necessary. This would include consideration of any matters which you may also wish to raise. Accordingly, pursuant to Public Service regulation 116, I hereby direct you to perform the duties of another office at your current classification level. The position to which this direction relates is that of Veterinary Officer Level 2, Vet Pool, Brisbane, Position No. 8068. Normal travelling allowance provisions will apply to this temporary transfer so as to ensure that you are not financially disadvantaged. Subject to representations which you may wish to make to me regarding this matter I intend that this direction should take effect on and from Monday 22 August 1994. You should report to Ms Barbara Wilson, Assistance National Operations Manager, at 8.30 am on that day in the AQIS office located at 433 Boundary Street, Spring Hill, Brisbane. As I have indicated, you may make representations or otherwise express your views to me regarding the action proposed above. It is also open to you to lodge a grievance regarding the matter and I have attached pamphlets outlining the grievance process and a copy of the relevant section of the Public Service Regulations. You will note, however, that in the event that you lodge a grievance you will still be required to comply with the lawful direction which I have given to you. I will write to you again once I have given further consideration to the issues of concern which I have raised in this letter. I have copied this letter to the Community and the Public Sector Union for information." In was common ground that the reference in the letter to reg.116 was intended to be a reference to reg.116A of the Public Service Regulations ("the Regulations") made under the Act. Regulation 116A is within Part V, Division 5 of the Regulations and was introduced in substantially its present form in 1987: Public Service Regulations (Amendment) 1987. Part V of the Regulations is heec zd "Transfer, Promotion and Temporary Performance" and Division 5 is headed "Temporary performance of duties - offices other than Senior Executive Service offices". Regulation 116A(2), to which more detailed reference is made later, provides that the Secretary of a Department may give a direction in writing to an officer to perform temporarily the whole or a specified part of the duties of an office in that Department. Mr Johnson, who appeared for the respondent (subject to one argument to which I refer briefly later), accepted that reg.116A was the sole source of authority relied upon for the direction given to the applicant. On 18 August 1994 Mr McDonald wrote to the applicant stating that the transfer direction would have effect until 30 November 1994. This was said to be an appropriate period over which "we can jointly address in a productive way the concerns raised in my minute of 17 August". On 24 August 1994 the applicant purported to exercise a right "under Reg.52.1 (P.S. Act)" to decline the transfer. This appears to have been an erroneous reference to s.52(1) of the Act, which allows an officer to apply for permission to decline a transfer to another office in the same Department. However, it was again common ground between the parties that s.52(1) did not apply to the present circumstances, since the direction to the applicant did not involve a _ permanent transfer of the applicant to an office in Brisbane, In any event, the decision communicated to the applicant in the letter of 17 August 1994 was placed "in abeyance" pending certain proceedings in the Australian Industrial Relations Commission. On 12 September 1994 the applicant received a further letter from Mr McDonald, as follows: "I refer to my direction to you to temporarily transfer to a position of Veterinary Officer Level 2, Veterinary Pool, Brisbane, Position Number 8068. As you know, this direction was held in abeyance pending the outcome of consideration by the Australian Industrial Relations Commission (AIRC). The AIRC concluded its consideration of the issue on Friday, 9 September 1994. Deputy President Harrison determined that her earlier recommendation for AQIS not to proceed with the temporary transfer was no longer required. Accordingly, there is now no impediment to the temporary transfer proceeding. In accordance with my advice to you of 17 August 1994 my direction for your temporary transfer will now take effect on and from Monday, 19 September 1994, You should report to Mr Adrian Pearson, Area Manager, at 8.30am on that day in the AQIS office located at 433 Boundary Street, Spring Hill, Brisbane. Details of the work to be performed will be provided to you by Mr Pearson at that time. This temporary transfer will continue while further consideration is given to what other action, if any, is necessary. Consistent with my advice to you of 17 August 1994, it remains open to you to pursue the normal Australian Public Service grievance processes. Information on these processes was attached to my earlier advice and AQIS has since given undertakings to the AIRC that it will expedite the consideration of any grievance which you may lodge. In the meantime, however, you will still be required to comply with the lawful direction which I have given to you." h ings On 14 September 1994 the applicant instituted the present proceedings. Two grounds were relied upon in the application, as later amended. First, the applicant contended that the power conferred by reg.116A was intended for use in circumstances where it was necessary, in the interests of the efficiency of the Service, to ensure that the duties of an office were performed. On this argument, the regulation was not intended to authorise temporary transfers as a means of dealing with allegations of misconduct against the officer to be transferred. Any such allegations were to be dealt with under the procedure set out at length for disciplinary action in Part III Division 6 of the Act. In any event, where the grounds for transfer were in substance disciplinary in character, reg.116A was inapplicable. Accordingly, the decision to transfer the applicant temporarily should be set aside pursuant to s.5(1)(d) of the ADJR Act. Secondly, the applicant argued that a breach of the rules of natural justice occurred in that the applicant received no prior notice of the decision to be made and was not heard - or at least given a sufficient opportunity to be heard - prior to the decision being made. It was also argued that the decision-maker, Mr McDonald, did not inform the applicant of material adverse to him and took into account that material without giving the applicant an opportunity to be heard in relation to it. Thus, it was contended that the decision should be set aside on the ground of a failure to accord procedural fairness: ADJR Act, s.5(1)(a). I should make it clear that I have not been asked to determine, nor am I concerned with whether all or any of the allegations against the applicant are well-founded. The issues in the proceedings before me are whether Mr McDonald had power under the Act and Regulations to give the direction he did and, if so, whether the direction was given in breach of standards of procedural fairness owed to the applicant. The Act and Regulations Section 6 of the Act provides that the "chief object" of the Act is "to constitute a public service for the efficient, equitable and proper conduct, in accordance with sound management practices (including personnel management practices), of the public administration of the Australian Government and this Act shall be construed accordingly." Part III of the Act is headed "The Australian Public Service". This part deals with a variety of matters, including appointment, transfer and promotions (Division 4), discipline (Division 6) and retirement and redeployment (Divisions 8A, 8B, 8C). Division 4, Subdivision D of Part III of the Act contains provisions governing transfers and promotions of officers of the Service, other than Secretaries and Senior Executive Service officers. The Secretary of a Department has power, for example, to transfer or promote an officer to fill a vacant office, where the vacancy has been notified in the Gazette: s.50(3),(5). As already noted, where a decision is made to transfer an officer of a Department to another office in the same Department the officer may apply for permission to decline the transfer. The Secretary may permit the officer "to decline the transfer...without prejudice to the officer's right of future promotion or transfer": s.52(1). The Act provides specifically for regulations to be made governing the temporary performance of the duties of an office. Section 51A is as follows: "51A.(1) The regulations may make provision for or in 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 to perform temporarily the duties of an office; and (b) appeals by officers in relation to such a selection of an officer. (1A) Regulations under subsection (1) may make different provision in respect of different periods of temporary performance of the duties of an office or in respect of different circumstances in which the selection of an officer to perform temporarily the duties of an office may be made. There is also a general regulation making power in s.97(1)(aa) and (ab) of the Act. These subsections authorise regulations, not inconsistent with the Act, prescribing matters (a) required or permitted by the Act to be prescribed; (b) necessary or convenient to be prescribed for carrying out or giving effect to the Act. It seems clear enough that, although the Public Service Regulations (Amendment) 1987 does not expressly rely on a specific source of power, reg.116A was intended to be promulgated pursuant to the power in s.51A of the Act. Regulation 116A, insofar as relevant, provides as follows: "116A.(1) In this regulation: "efficiency", in relation to an officer being considered by a Secretary for selection for a direction to perform duties of an office, means: (a) the abilities, qualifications, experience, standard of work performance and _ personal qualities of the officer, to the extent that the Secretary considers that those matters are relevant to the performance of duties of the office; and (b) the potential of the officer for further career development in the Service, and the ability of the officer to perform the duties of other offices in the Department of the same or equal classification, to the extent (if any) that the Secretary considers that those matters are relevant to the selection of an officer for that direction. (2) The Secretary of a Department may give a direction in writing to an officer to perform temporarily the whole, or a specified part, of the duties of an office in that Department. (4) A direction shall be expressed to continue in force: (a) until the expiration of a specified day; or (b) until the occurrence of a specified event; and, subject to subregulation (9), shall cease to have effect accordingly... (6) In selecting an officer for a direction to perform duties of a higher office, the Secretary of a Department shall have regard to: (a) the efficiency of the officer; (b) the relative importance to the Department of performance of those duties and of performance of the other work of the Department; (e) the need for officers to gain experience in the performance of those duties." The regulations do not provide for a right of appeal in respect of a direction made under reg.116A(2). However, if a Secretary gives a direction to an officer to perform duties of a higher office for a period exceeding three months, another officer has a right of appeal on the ground that he or she could perform the duties with superior efficiency: reg.116B, reg.116C(2),(3). Division 6 of the Act is headed "Discipline*. Section 55(1) defines "misconduct", in relation to an officer, to mean "a failure of the officer to fulfil his duty as an officer". There was no dispute in this case that the applicant was an officer. Section 56 provides that for the purposes of Subdivisions A, B, C and E of Division 6: "an officer shall be taken to have failed to fulfil his duty as an officer if and only if (a) (b) (¢) (d) (£) he wilfully disobeys, or wilfully disregards, a direction given by a person having authority to give the direction, being a direction with which it 1s his duty as an officer to comply; he is inefficient or incompetent for reasons or causes within his own control; he is negligent or careless in the discharge of his duties; he engages in improper conduct as an officer; he contravenes or fails to comply with: (i) ... (ii) the terms and conditions upon which he is employed...." Subdivision C contains provisions relating to officers other than Secretaries of Departments. Section 61(2) provides as follows: "Where an officer authorized by the relevant Secretary for the purposes of this subsection is of the opinion that an officer may have failed to fulfil his duty as an officer, the authorized officer shall, as soon as practicable, decide whether he should be charged and: (a) if he decides that the officer should not be charged - may counsel the officer or cause a supervisor of the officer to counsel' the officer; or (b) if he decides that the officer should be charged - shall, by writing under his hand delivered to the officer, charge the officer with the failure." If the officer requests, copies of the charge are to be provided to the relevant trade union or to any person who is to assist the officer: s.61(3). Section 62(1) provides that, where an officer is charged with misconduct under s.61: "an inquiry shall, without undue delay, be held into the charge" by the relevant Secretary or an officer appointed for the purpose. An inquiry into a charge is not to be held by an officer who furnished a report into the alleged misconduct or by the officer who laid the charge: s.62(2). In an inquiry a formal hearing is not required, but the officer charged is to be notified of the inquiry and given the opportunity of making a statement concerning the matters alleged: s.62(3). The officer charged is also to be given an opportunity to make a further oral statement to the officer holding the inquiry: s.62(4). Where the officer conducting the inquiry is satisfied that the officer charged has failed to fulfil his or her duty as an officer, the officer charged may be required to undergo counselling. However, the officer holding the inquiry has other options available if he or she forms the opinion that other action is necessary. That action includes admonishing the officer; deducting a sum not exceeding $500 from the officer's salary; reducing the officer's salary for a period; or dismissing the officer: s.62(6). In addition the action directed may include: "transferring the officer to a specified office (whether at the same or a different locality), being an office for which he is qualified and which has the same classification as the classification of the office held by him": s.62(6)(a)(iv). Where directions of the kind to which I have referred are given, the decision-maker must furnish particulars of reasons: 8.62(9). Except for relatively minor directions, such as those requiring admonishment or transfer to an office at the same locality, a right of pp al is avail' ble to a Disciplinary Appeal Committee: s.63D. Section 63B deals with suspension of an officer pending the hearing of a charge. "63B(1) Where: (b) an officer authorized for the purposes of subsection 61(2) has informed the relevant Secretary that he is of the opinion that an officer may have failed to fulfil his duty as an officer; and the relevant Secretary 1s of the opinion that it would be prejudicial to the effective operation of the Service, to the interests of the public or to the interests of the officer or his fellow officers if the officer were to continue to perform the duties of his existing office pending...the taking of a decision not to charge the officer with misconduct or the hearing and determination of any charge of misconduct laid against the officer, as the case may be, the relevant Secretary may, by notice in writing delivered to the officer: (c) direct the officer to perform temporarily other duties that he is qualified to perform (whether at the same or a different locality); or (d) suspend the officer from duty. (1C) A Secretary is not authorised to suspend an officer under paragraph (1)(d)...unless: (a) the Secretary has first given the officer an opportunity to be heard; or (b) the Secretary is of the opinion that it would not be appropriate, in the particular circumstances, to give the officer such an opportunity." Section 63B(1C) was inserted by an amending Act, the Prime Minister and Cabinet (Miscellaneous Provisions) Act 1994, which came into force on 15 March 1994, However the Act, prior to its amendment in 1994, contained an equivalent provision, namely, s.63B(1A). Division 8C concerns redeployment and retirement of officers. Section 76W(1) of the Act gives the Secretary power, if satisfied of a "relevant matter" in relation to an officer to reduce the officer's classification or retire the officer. A "relevant matter" includes the officer's inability to perform the duties of an office because of physical or mental incapacity or the fact that the officer is "inefficient": s.76W(6). The power in s.76W(1) can be exercised only after the Secretary has considered whether it is in the interests of the efficient administration of the Department to transfer the officer under s.50(2) of the Act: s.76W(1). und to the isi Mr McDonald's letter of 17 August 1994 enclosed a copy of a report from the Acting Assistant Operations Manager, Mr Curry, dated 10 August 1994. That report referred to "areas of poor performance" that had been discussed with the applicant since November 1993. Mr Curry's report in terms specifically drew attention to comments made by the Deputy Chief Veterinary Officer ("DCVO"), 1n a minute of 8 August 1994. The DCVO's minute referred to a "disruptive trail of events" at the Casino abattoir that required speedy resolution. The key issue was said to be the accountability of the applicant as the officer in charge of the establishment. The DCVO set out thirteen matters that, in my opinion, can fairly be regarded as complaints about the applicant or concerning unsatisfactory circumstances or events at the Casino operation for which the DCVO regarded the applicant as responsible. The complaints included the following: e the AQIS management systems required to monitor the plant activities had been poorly observed; e the applicant had made himself unavailable during the DCVO's last review; e the applicant had been unable to provide reports in the detail required and in a timely manner; e company supervisors (that is, representatives of the company conducting the operations) had been harassed at the weekly AQIS - company meeting; e the kill had been stopped for 45 minutes on a day of industrial unrest; and e the Acting District Veterinary officer, who had been sent to help assess ancillary staff requirements, had been ignored. The DCVO considered that the applicant's competence to manage a large operation such as that at Casino had to be questioned and "consideration given to transferring him from this establishment". Mr Curry expressed the view that, having regard to the applicant's history at Casino and deteriorating relationships with other officers and company management and personnel, the point had been reached where the applicant's continued presence at Casino would have an adverse impact on AQIS' reputation. Mr Curry recommended that the applicant be "transferred temporarily away from Casino under the provisions of PS Regulation 116 [sic] pending consideration of further action being taken under either the Discipline Code or the Inefficiency Provisions". The other documents enclosed with Mr McDonald's letter of 17 August 1994 show that management had raised concerns with the applicant about his conduct and performance as the Veterinary Officer in Charge at Casino over a considerable period. The minute of 30 May 1994, from the DCVO to the applicant, for example, complained of a number of matters, including the following: e the failure to introduce satisfactorily the National Plant Management System at Casino; e the applicant's abrupt departure from an "exit interview" (involving a meeting between the District Veterinary Officer, plant management and a company representative), allegedly showing "poor self control"; and e an inadequate response to certain directions, leading the DCVO to conclude that the applicant was not prepared or not able to write a detailed report. The DCVO's minute of 29 July 1994 to the applicant complained that he had not responded to an earlier request to provide details of a stoppage of the slaughter floors that had occurred on 2 June 1994. The minute also observed that it was "remarkable" that the applicant had not been consulted before the decision to halt the kills was taken and that this did "not reflect well on AQIS plant management". The minute of 9 August 1994 from the DCVO to the applicant advised that there were serious deficiencies with AQIS' monitoring of the establishment, a number of which were detailed. The minute also alleged that there had been "a fundamental breakdown in the {Plant Management Team] relationship" at Casino. The minute concluded with the observation by the DCVO that: "I am dissatisfied with your level of performance as the OIC, and I have asked AQIS to take action to improve this situation." Mr McDonald's letter of 17 August 1994 also referred to "adverse reports from Company management". This was a reference to letters of 8 June 1994 and 22 July 1994 from the company that conducted slaughtering operations at Casino. The letters were admitted into evidence, although an order was made prohibiting publication of their contents on the basis that there was a public interest in preserving, at least to some extent, the confidentiality of complaints made to AQIS. For present purposes it is not necessary to recount the contents of the correspondence in detail. The letters did, however, make serious allegations against the applicant. These related to his competence to manage the operation at Casino and to his conduct on specific occasions. The specific complaints included allegations that he had abandoned the exit interview and that he delayed operations on animal welfare grounds not genuinely held by him. The correspondence also raised issues about the applicant's role as a union official and the alleged incompatibility of his relationship with the Public Service Union and his responsibilities as an officer of AQIS. The letters were before Mr McDonald as the decision- maker. He acknowledged in his evidence that the allegations were among the concerns to which he had referred in his letter of 17 August 1994. It was common ground that the applicant had not seen the letters until discovery in the proceedings. The Arguments on the Question of Power The parties did not differ substantially in their statement of the principles to be applied in determining whether the action taken by Mr McDonald was authorised by the Act and the Regulations. The difference was largely in the application of those principles to the circumstances of the case. Both Mr Pearce, for the applicant, and Mr Johnson, for the respondent, accepted that the Act constitutes a code, defining exclusively the power of the relevant authority to dismiss, suspend or otherwise discipline officers of the Australian Public Service. So much follows from Hunkin v Siebert (1934) 51 CLR 538; Bennett v Commonwealth [1980] 1 NSWLR 581, at 585, 587; and Dixon v Commonwealth (1981) 55 FLR 34. As Rogers J. said in Bennett v Commonwealth, at 585, it would be surprising if an officer could be suspended for failing to carry out an instruction, without the statutory procedures being followed, and thereby effectively be deprived of the safeguards built into the Act and the Regulations. Mr Pearce relied on this principle to support the proposition that the allegations against the applicant could be dealt with only under the disciplinary provisions of Part III, Division 6 of the Act. Since, in his submission, allegations had been made against the applicant of misconduct within the definition in s.55 of the Act, it was not open to the respondent to rely on the general power to direct a transfer in reg.116A as a means of dealing with those allegations. Mr Johnson pointed out that the code is the Act and Regulations as a whole. This was not a case where Mr McDonald, as the decision-maker, purported to rely on a common law power or a power derived from outside the Act. Rather, Mr McDonald had relied on a specific provision that was part of the code. The issue, in his submission, was whether reg.116A authorised the temporary transfer of the applicant. The disciplinary provisions in s.61(2) of the Act had not been brought into play because, even if M McDoneld had formed the opinion that the applicant may have failed to fulfil his duty as an officer, it had not been shown that Mr McDonald was an "authorised officer". Thus the statutory procedure of charge, inquiry, opportunity to be heard and determination did not apply. Further, reg.116A conferred a broad discretion on the decision-maker to direct a temporary transfer and it was essentially a matter for the decision-maker to determine what factors are relevant and to weigh them. Mr Pearce relied on three further principles. First, the law looks to the substance of an employer's acts, rather than their form, in order to determine whether there has been compliance with relevant legislation: Baldestowe v Brown (1990) 19 NSWLR 459, at 462; Cachia v State Authorities Superannuation Board (1993) 47 IR 254, at 275 (Full Industrial Court of New South Wales). Secondly, a statutory power expressed in general terms is not to be construed so as to avoid a condition or limitation imposed on the exercise or mode of exercise of a specific power: The King v Wallis: Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529, at 550, per Dixon J.; Saraswati _v The Queen (1990) 172 CLR 1, at 23-24, per McHugh J. Thirdly, he relied on the well established principle that what cannot be done directly cannot be done indirectly: Container Terminals Australia Ltd v Xeras (1991) 23 NSWLR 214, at 217, per Handley JA; Qxley unt istric ouncil v_ Maclea Rive ount District Council (1964) 65 SR(NSW) 13, at 28. Mr Pearce contended that these principles also supported the conclusion that reg.116A, on its proper construction, was not available to effect transfers directed to dealings with allegations of "misconduct" (as defined in s.55 and s.56 of the Act). Mr Pearce submitted that reg. 116A was intended only for use where duties of a higher office needed to be performed or, alternatively, where it was necessary to fill a vacant position in the interests of the efficiency of the Service. Once again I did not understand Mr Johnson to dispute the general propositions of law upon which Mr Pearce relied. However, he submitted that it was open to Mr McDonald to rely on reg.116A for the direction to the applicant, independently of the disciplinary provisions of Part III, Division 6 of the Act. In substance as well as form, no decision had been made to charge the applicant with any disciplinary offence. It was open to Mr McDonald to form the judgment that it was in the interests of the efficient conduct of AQIS's Casino office to decide that the applicant's technical skills could better be utilised elsewhere. Similarly, according to Mr Johnson, the principle stated in Saraswati v The Queen did not apply to the circumstances of the case. There was no prohibition in the Act on the decision-maker directing an officer temporarily to perform the duties of another office in circumstances which could, depending upon the view of an authorised person, ultimately lead to charges being laid. Findings of Fact In order to assess these arguments, it is necessary to say something more about the evidence. It was uncontested that Mr McDonald's assessment of the applicant's case was based on the documentation presented to him. I infer from the terms of the letter of 17 August 1994 that, by the date of the letter, Mr McDonald had concluded that the applicant was unable to discharge properly his management responsibilities as Veterinary Officer in Charge at Casino. This conclusion had been reached by Mr McDonald subject to considering any representations that the applicant cared to make. Nonetheless, the letter clearly went beyond a statement of concerns. This is evident from the following passage: "you would benefit for a time from closer supervision and that it therefore would be in your interests and that of AQIS and The Australian Public Service generally for you to be temporarily transferred to another position and locality. This temporary transfer will continue while further consideration is given to what other action, if any, is necessary. This would include consideration of any matters which you may also wish to raise." Mr McDonald in his affidavit confirmed that he was concerned, at the time of writing the letter, that the applicant did not appear to be able to perform his management duties and responsibilities. He also said in his affidavit that the performance of the applicant's management responsibilities, unlike his technical competence, was in issue. The Brisbane environment would allow the applicant to use his technical skills without having to meet management demands similar to those required at Casino, but with the benefit of closer supervision. In my view it is an inescapable inference from the documentation that Mr McDonald, at the very least, had formed the view that the applicant had conducted himself so that he may "have failed to fulfil his duty as an officer" within the meaning of that language as defined in s.56 of the Act. In particular, the allegations on which Mr Mcdonald acted included some that suggested that the applicant had wilfully disregarded directions, or had _ been inefficient and incompetent for reasons within his control. Allegations of this kind included what was said to be the applicant's failure to observe management systems and to provide timely and detailed reports. Some allegations suggested that he had been negligent or careless in the execution of his duties (if not worse), such as the complaint that working relationships within the plant management team had broken down. Yet others suggested improper conduct, such as the applicant's "extraordinary action" in walking out of a meeting with company management without explanation. In my opinion it is clear that the "further consideration", referred to in Mr McDonald's letter of 17 August 1994, was to include consideration of disciplinary action against the applicant or, alternatively, action under the inefficiency provisions of the Act. It was precisely this course that had been suggested by Mr Curry in his minute to Mr McDonald of 10 August 199, to which Mr McDonald refe: ed in his letter. The substance of that letter reflects his acceptance of the substance of Mr Curry's position, notwithstanding that Mr McDonald offered the applicant an opportunity to make submissions. That opportunity was expressly stated not to affect the applicant's obligation to comply with the "lawful direction" for the temporary transfer to Brisbane. In making the direction for a temporary transfer Mr McDonald's overwhelming concern was to remove the applicant from Casino. The decision to make the direction was based upon an assessment of the applicant's performance as Veterinary Officer in Charge of the abattoir. Mr McDonald in evidence specifically acknowledged that he was primarily concerned with whether he should transfer the applicant from Casino. He also accepted that if there had been no position in Brisbane available he would have found one for the applicant. The position itself had been created on 22 September 1993 in order to provide temporary cover for a veterinary officer to staff a second shift at a meat works in Oakey. That shift commenced on 4 October 1993, and ceased on 21 February 1994. Consequently, the post had been withdrawn from the Oakey mMeatworks back into a pool at headquarters. It remained vacant and would continue to remain vacant until the applicant's transfer took place. Clearly enough, Mr McDonald's principal concern was not to ensure that the duties of the Brisbane office were performed, whether for reasons of efficiency or otherwise. The Brisbane position was essentially a convenient post for the applicant to occupy following his temporary removal from Casino, although it no doubt provided an opportunity for the applicant to receive the supervision that Mr McDonald considered necessary. In short, Mr McDonald's principal concern was not to find an officer to perform the duties of the office in Brisbane; rather he wished to remove the applicant from the Casino operation. The Question of Construction I think that Mr Johnson is correct when he submits that the construction of reg.116A must be undertaken in the light of the legislative framework as a whole. This requires attention to be paid to the subject-matter, scope and purpose of the legislation: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, at 42, per Mason J. The question of construction cannot be resolved simply by applying the principles referred to by Mr Pearce, although they may provide some guidance in placing reg.116A within the statutory framework. Mr Johnson submitted that reg. 116A(2) conferred a broad discretion on the decision-maker, particularly having regard to the principal object of the legislation as specified in s.6 of the Act. That object was to constitute a public service for the "efficient, equitable and proper' conduct, in accordance with sound management practices...of the public administration of the Australian Government." According to Mr Johnson's argument, that object is best served by recognising the need for flexibility, as reflected in the broad discretion conferred by reg. 116A. It is essentially a matter for the decision-maker to weigh the relevant matters, including the advantages of transferring the applicant in the interests of the "efficient, equitable and proper conduct" of AQIS's Casino operation. The scheme of the Act is not, however, to allow decision- makers to pursue flexibility or efficiency in personnel matters at the expense of other values. The chief object of the Act includes the "equitable and proper conduct" of public administration. This is reflected in Part III Division 6 of the Act which, as has already been seen, contains a detailed set of provisions concerning disciplinary action in respect of alleged misconduct on the part of an officer. Having referred to the major provisions earlier, it is unnecessary to restate the main features of the disciplinary scheme. It seems to me that the legislative intent underlying Part III, Division 6 of the Act is that, where an officer in authority forms the opinion that a subordinate officer may have failed to fulfil his or her duty, the latter is not to be subjected to disciplinary action except in accordance with the statutory procedures and safeguards. For this purpose disciplinary action includes, in my opinion, the temporary transfer of an officer of whom the opinion has been formed that he or she may have failed to perform his or her duty, at least where a decision has been made to give consideration to charging the officer with misconduct. There would be little point in formulating such an elaborate disciplinary scheme if officers could be transferred temporarily as a disciplinary measure, or pending consideration of disciplinary charges, without regard to the criteria and procedural safeguards laid down in Part III, Division 6. Having regard to this background, it does not seem to me that reg. 116A is intended to authorise the temporary transfer of an officer, where the person directing the transfer does so principally because that person has formed the opinion that the officer has or may have failed to perform his or her duty and in circumstances in which consideration is to be given to disciplinary action. Rather, reg. 116A is intended to authorise a direction for a temporary transfer, where the decision-maker considers that it is necessary, in the interests of efficiency or sound management, to ensure that the duties of the office to which the officer is to be transferred are performed. I appreciate that, as Mr Johnson pointed out, the obligation to make a decision whether or not to charge an officer arises under s.61(2) of the Act only if an "authorised officer" forms the opinion that the first officer may have failed to perform his or her duty. I also appreciate that there was no evidence that Mr McDonald was an authorised officer under the Act. In my view, this does not affect the purpose of the legislation as I have identified it. To take the approach suggested by Mr Johnson would allow the temporary transfer provisions to be used as a means of circumventing some of the protections afforded by ensuring that the authorised person never forms the requisite opinion. These conclusions are suggested by several factors. First, the language of reg. 116A(2) refers to a direction "to perform temporarily...the duties of an office". The focus is upon the duties of the office to which the officer is to be transferred, not the officer's capacity (or lack of it) to perform the duties of the office from which he or she is to be transferred. Secondly, reg. 116A clearly contemplates that directions will be made for the temporary transfer of officers to a "higher office". Plainly such a transfer could not be made on disciplinary grounds or in contemplation of possible disciplinary action. Indeed, where a direction for transfer to a higher office is made for a period of three months, an officer not transferred to the higher office has a right of appeal on grounds of superior efficiency. On one view reg. 116A is to be read as confined to authorising a temporary transfer to a higher position. Mr Pearce argued that this is the correct construction, submitting that the observations of Wilcox J. in Styles v Secretar Department of Forei Affairs and Trade (1988) 84 ALR 408, at 17, support such 4 view. I am by no means sure that reg. 116A is as limited as this. But even if reg. 116A is not confined to temporary transfers to higher offices, it would be curious if a regulation, specifically directed to temporary transfers to higher offices, could be invoked to justify a temporary transfer on grounds quite unconnected with the need to ensure that the duties of the office to which the officer is to be transferred are performed. It would be even more curious if the regulation could be relied on to support a temporary transfer of an officer because it is thought the officer may have failed to perform his or her duty. Thirdly, although reg. 116B and reg. 116C provide for an appeal by a disappointed officer not transferred to a higher office, an officer who is the subject of a direction for temporary transfer has no right of appeal or even an express right to be heard before the direction is given. The absence of such rights, in the light of the detailed provision for appeals and the opportunity to be heard in the Act and Regulations, strongly suggests, in my opinion, that it was not contemplated that reg. 116A would be employed to transfer officers for disciplinary reasons or in contemplation of possible disciplinary action. Finally, the source (or at least the primary source) of authority supporting reg. 116A is s.51A of the Act. That section does not appear in Part III, Division 6, dealing with discipline, but is found in the subdivision which contains provisions relating to the transfer and promotion of officers. Once again, it is hardly likely that promotions would be made on disciplinary grounds. Similarly, it does not seem to have been contemplated that a transfer under this subdivision would be made because the decision-maker formed an opinion that the officer to be transferred has or might have failed to perform his or her duties. For example, where a decision is made to transfer permanently an officer to another office in the Department, the officer is entitled to apply for permission to decline the transfer. If the application is successful, the officer is permitted to decline the transfer "without prejudice to the officer's right of future promotion or transfer": s.52(1). The reference to a "right" of transfer does not suggest that the transfers contemplated by the subdivision are intended to be made for disciplinary reasons, or in contemplation of disciplinary action. Section 51A(1) itself authorises regulations which make provision for or in relation to the temporary performance of the duties of an office (whether vacant or not) in a Department. The subsection specifically contemplates that the legislation may include provisions for or in relation to "the selection of an officer to perform temporarily the duties of an office". It also contemplates regulations concerning appeals by officers in relation to such a selection. The reference to "selection of an officer" implies that what is contemplated is selection on grounds of suitability for the office to be filled, rather than lack of suitability for a previous position. Of course, regulations made pursuant to s.51A are not confined to providing for the selection of officers or appeals in relation to such selections, as s.51(1A) shows. But the language, in my opinion, supports the view that thé regulations authorised by s.51A are intended to focus upon the need to perform the duties of the office to be filled. Regulation 116A should be construed with this in mind. It follows from what I have said that, on the facts of this case, there are two distinct, but not wholly unrelated reasons why reg. 116A cannot be invoked to support the direction for temporary transfer given by Mr McDonald to the applicant on 12 September 1994. First, reg. 116A(2), on its proper construction, does not permit a direction for a temporary transfer to be given where the principal reason for the direction is that the decision-maker has formed the opinion that the officer may have failed to fulfil his or her duty as an officer, within the meaning of s.56 of the Act. On the findings I have already made, Mr McDonald directed the transfer principally because he had formed the opinion that the applicant may have acted in a manner that amounted to a failure to fulfil his duty as an officer. Moreover, Mr McDonald was contemplating disciplinary action against the applicant. I do not mean by this that Mr McDonald took the action he did as a deliberate tactic to evade the disciplinary provisions of Part III, Division 6. However, he did form an opinion about the applicant's conduc . That opinion, at the very least, was that the applicant might have acted in ways that, objectively viewed, would amount to misconduct as defined in s.55(1) and s.56 of the Act. Secondly, reg. 116A(2) is not available as a source of power where the decision-maker does not take into account, as the principal consideration, the requirements of the office the duties of which are to be performed by the officer subject to the directions. I have also found that Mr McDonald's overwhelming concern was to move the applicant from Casino and not to ensure that the duties of the office at Brisbane were adequately performed. I should add that I do not think it is necessary to explore the circumstances, if any, in which a direction for a temporary transfer can be given under reg.116A to a person who is regarded as performing less than satisfactorily in a particular position. Nothing I have said is intended to suggest that a direction can never be given in such circumstances. The present case involves a direction given by a decision-maker who had clearly formed the opinion that the applicant may have acted in a manner that' constituted misconduct for the purposes of the disciplinary provisions of the Act and who was contemplating disciplinary action against him. Alternative Source of Power There appeared to be a rather faint suggestion by Mr Johnson that if reg. 116A were not an available source of power for the direction to the applicant, s.63B of the Act might provide the authority for Mr McDonald's action. In my opinion, assuming it is open to the decision-maker to rely on an alternative source of power not specifically referred to (compare Australian Broadcasting Tribunal & Actors Equity of Australia Ltd v Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1, at 9-10; Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409, (at 424- 425, 435-437), this is not such a case. As Mr Johnson conceded, there was no evidence that the preconditions in s.63B(1) had been met. In particular, there was no evidence that Mr McDonald had been authorised as an officer entitled to form the requisite opinion. Nor was there evidence that Mr McDonald had directed his attention to the criteria specified in s.63B(1) governing the exercise of the power to direct an officer to perform temporarily the duties of another office. Procedural Fairness The conclusions I have reached on the lack of power to make the directions for temporary transfer means that it is unnecessary to deal with the applicant's alternative argument. This claim was based on the contention that the applicant had been denied natural justice, in that he had received no prior notice of the decision to direct him to transfer temporarily and no opportunity to be heard prior to the decision. As the matter was argued, it is appropriate for me to record briefly my conclusions on this aspect of the case. On the assumption that reg. 116A(2) provided a source of power for the decision, Mr Johnson accepted that the rules of Natural justice applied to the exercise of the power. However, he pointed out, correctly, that procedural fairness conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the case. These circumstances include the statutory requirements, the interests of the individual and the interests and purposes which the statute seeks to advance or protect: Kioa v West (1985) 159 CLR 550, at 585, per Mason J; Ansell _v Wells (1982) 43 ALR 41, at 58-59, per Lockhart J. In determining the content of procedural fairness appropriate to the present case (on the assumption already referred to) a number of factors referred to by Mr Johnson are to be taken into account. These include the broad nature of the power conferred by reg. 116A(2); the temporary nature of a direction (which must be limited to a particular period or the occurrence of a specified event); and the fact that the power might have to be exercised in urgent circumstances. It is, however, also appropriate to take into account the fact that the direction given to the applicant was one that was bound to have a substantial impact upon his career prospects and reputation within the organisation. The decision communicated in the letter of 17 August 1994, and confirmed on 12 September 1994, was based on express concerns that the applicant was unable to perform his duties in a proper, efficient and effective ay. As I have already noted, this was not a case of a temporary transfer to ensure the efficient performance of the duties of a position in Brisbane; it was in form and substance an involuntary transfer to overcome the perceived deficiencies in the applicant's management skills. In my opinion, the procedures followed did not give the applicant either sufficient notice of the proposal to direct his temporary transfer or a sufficient opportunity to be heard in relation to the proposal. It is true that the letter of 17 August 1994 offered the applicant the opportunity to make representations or to lodge a grievance. It is also true, as the applicant conceded in evidence, that he had taken no steps to avail himself of the opportunity. But the letter not only expressed a concern about the applicant's capacities, but concluded that he would benefit from a period of closer supervision while consideration was given to what further action, if any, should be taken against him. The direction was expressed to take effect on 22 Augusts 1994, only five days (and two clear working days) after the letter itself was received by the applicant. In this time the applicant was presumably required to address himself to the serious concerns enumerated in the letter that were, in any event, not an exhaustive list of the matters Mr McDonald had taken into account. I do not think that in the circumstances this provided the applicant with a reasonable opportunity to consider adequately and respond to the concerns that motivated the direction for temporary transfer. Those concerns were wide ranging and went beyond allegations of a limited number of acts and omissions on specific occasions. It was hardly feasible or reasonable to expect the applicant to formulate adequate responses in the two working days before the direction was to take effect (with the adverse consequences for the applicant's standing in the organisation). I do not think that the position was altered by the delay in implementation of the direction, caused by the institution of proceedings in the Australian Industrial Relations Commission. In reaching these conclusions, I have taken into consideration the apparent seriousness of the problems at Casino, at least from Mr McDonald's perspective. But those apparent difficulties had been the subject of correspondence and minutes for at least four months. It is not obvious why a decision had to be taken with almost immediate effect. There is nothing in the evidence to indicate why a decision could not have awaited a more reasonable opportunity being accorded to the applicant to put his case. I do not suggest that more than a short period would have been appropriate for this purpose, but that period should have been sufficient to provide the applicant with a genuine opportunity to respond to the concerns that were held as to his abilities and performance. The conclusion that the applicant was not afforded procedural fairness also follows, in my opinion, from the failure to provide him with full details of the concerns about his performance at Casino. As the applicant frankly acknowledged in cross-examination, he had been aware that certain concerns had been held by the DCVO for some time. However, not all the matters of concern to Mr McDonald were expressed in the letter of 17 August 1994 or the enclosures made available to the applicant. In particular, the "adverse reports from Company management" were alluded to in the letter but not disclosed to the applicant. It is true, as Mr Johnson pointed out, that procedural fairness does not necessarily require confidential information to be disclosed to the person affected by a decision or proposed decision. This is likely to be the case, for example, with confidential referee's reports: see Ansel] _v Wells, at 52-53, per Davies J. However, the requirements of procedural fairness depend on the circumstances, and a person is ordinarily entitled to know the substance of adverse comments so that he or she has an opportunity to rebut them: da_v ver nt of the Federation of Malaya [1962] AC 322, at 337. Here the decision-maker had specifically referred in his letter to the "adverse reports from Company management" and clearly they played an important part in his determination that the applicant required supervision at a location other than Casino. It is difficult to understand how the applicant could respond sensibly to the adverse reports without knowing at least their substance. While he no doubt had some idea of what the company was likely to say, by reason of previous dealings and correspondence, he did not know the details of the complaints actually made prior to those proceedings being instituted and the relevant documents being discovered. While the applicant was aware of some matters of concern prior to the letter of 17 August 1994 he was not informed of all information relevant to Mr McDonald's assessment even on that date. For example, a file note of 8 August 1994 from Mr Curry, which was before Mr McDonald, referred to an officer at Casino who had stood down, citing the applicant's "lack of support and leadership". The applicant was aware that the officer had stood down and knew from the DCVO''s minute of 9 August 1994 that the officer had sought to relinquish his position at Casino because of what were said to be pressures Placed upon him. However, the applicant did not learn until discovery in the proceedings, that the officer had expressed the views recorded in Mr Curry's file note. In my opinion, the applicant was not afforded procedural fairness in relation to the direction for temporary transfer. That provides an additional ground for setting aside the direction. Conclusion For the reasons I have given, the decision of the respondent directing the applicant to perform temporarily the duties of Veterinary Officer Level 2, Brisbane, is set aside. The matter is remitted for further determination according to law. The respondent should pay the applicant's costs. Since the decision is set aside, there is no need separately to suspend its operation and I therefore discharge the order made by Lindgren J. and extended by me. Although orders were made restricting the publication of certain evidence given in the course of the proceedings, I do not think publication of any portion of this judgment should be prohibited or restricted. However, I shall give the respondent an opportunity to make submissions on this question should he be so advised. I certify that this and the preceding 38 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville. Heard: Place: Decision: Appearances: associate: (Je? Dated: 21 October, 1994 21 October 1994 Sydney 21 October 1994 Mr J.H. Pearce instructed by Geoffrey Edward & Co, Solicitors, appeared for the applicant. Mr G.T. Johnson, instructed by the Australian Government Solicitor, appeared for the respondent.