Forge, J. v Commonwealth of Australia [1995] FCA 128

CATCHWORDS Public Service - Tenure of office - Dismissal and suspension generally - The Commonwealth - Decision to retire officer on ground of invalidity - Appeal by officer to Redeployment and Retirement Appeal Committee - Nature and scope of appeal - Considerations relevant to determination of appeal. Public Service Act 1922 - s.67Z Inglis v. Bateson (1990) 99 A.L.R. 149 appld. JOANNE FORGE v. COMMONWEALTH OF AUSTRALIA VG329 of 1994 Jenkinson J. Melbourne 17 March, 1995

IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) No. VG329 of 1994 GENERAL DIVISION ) BETWEEN: JOANNE FORGE Applicant AND: COMMONWEALTH OF AUSTRALIA Respondent CORAM: Jenkinson J. PLACE: Melbourne DATE: 17 March, 1995

REASONS FOR JUDGMENT Hearing of an application for an order of review in respect of a decision under s.76Z of the Public Service Act 1992 by a Redeployment and Retirement Appeal Committee constituted under Subdivision D of Division 2 of Part II of the Merit Protection (Australian Government Employees) Act 1984. Section 76W of the Public Service Act 1922 empowers the Secretary of a Commonwealth Department of State to retire an officer of the Australian Public Service when the Secretary is satisfied that the "officer is unable to perform ... her duties, or other duties appropriate to the officer's classification, because of physical or mental incapacity". The power is exercisable by the giving of a notice to the officer, on whom s.76Z confers the right to appeal to a committee of the description stated above ("the Appeal

Committee") "on the ground that .... the retirement of the officer .... would be unreasonable". Section 76WA provides that, "in spite of anything contained in section 76W", an officer who is an "eligible employee" for the purposes of the Superannuation Act 1976 and has not reached her maximum retiring age within the meaning of that Act is not capable of being retired on the ground of invalidity within the meaning of Part IVA of that Act unless the Commonwealth Superannuation Board of Trustees NO. 2 has given a certificate under section 54C of that Act. Section 54C of the Superannuation Act 1976 provides: "(1) In spite of anything contained in any Act, award, determination or contract of employment, an eligible employee who has not reached his or her maximum retiring age is not, after the commencement of this section, capable of being retired from the employment or office by virtue of which he or she is an eligible employee on the ground that, because of any mental or physical condition, the eligible employee is unable to perform his or her duties, unless the Board has certified in writing that, if the eligible employee is so retired, he or she will be entitled to receive benefits under Division 4 of Part V. (2) The Board must not give a certificate in respect of an eligible employee under subsection (1) unless the Board has approved the retirement of the eligible employee on the ground of invalidity in accordance with this Part. (3) In subsection (1), a reference to an eligible employee being retired from employment or office includes a reference to the services of the eligible employee being otherwise terminated."