Public Service Board of NSW v Osmond
(1986) 159 CLR 657(Judgment by: Wilson J)
Between: Public Service Board of NSW
And: Osmond
Judges:
Gibbs CJ
Wilson JBrennan J
Deane J
Dawson J
Subject References:
Administrative Law
Judgment date: 21 February 1986
Judgment by:
Wilson J
1. I have had the advantage of reading the reasons for judgment prepared by the Chief Justice. I agree entirely with those reasons and with his Honour's conclusion that the appeal should be allowed.
2. The common law as expounded by the Chief Justice applies with special force in the case of decisions touching the employment of persons in the service of the Crown. Under the common law, it is an implied term in the engagement of every person in the public service that the office is held during pleasure: Ryder v. Foley (1906) 4 CLR 422 . The consequence for one who holds an office at pleasure was stated by Lord Reid in Ridge v. Baldwin [1964] AC 40 , at pp 65-66:
"It has always been held, I think rightly, that such an officer has no right to be heard before he is dismissed, and the reason is clear. As the person having the power of dismissal need not have anything against the officer, he need not give any reason".
Of course, employment in the service of the Crown is no longer regulated solely by the common law. Lord Wilberforce recognized the need to have regard to any modifications introduced by statute when, in Malloch v. Aberdeen Corporation [1971] 1 WLR 1578 ; [1971] 2 All ER 1278 , after referring to a portion of the passage that I have cited from Lord Reid's speech in Ridge v. Baldwin, he said, at p 1597 of WLR; pp 1295-1296 of All ER:
"As a general principle, I respectfully agree: and I think it important not to weaken a principle which, for reasons of public policy, applies, at least as a starting point, to so wide a range of the public service. The difficulty arises when, as here, there are other incidents of the employment laid down by statute, or regulations, or code of employment, or agreement. The rigour of the principle is often, in modern practice, mitigated for it has come to be perceived that the very possibility of dismissal without reason being given - action which may vitally affect a man's career or his pension - makes it all the more important for him, in suitable circumstances, to be able to state his case and, if denied the right to do so, to be able to have his dismissal declared void. So, while the courts will necessarily respect the right, for good reasons of public policy, to dismiss without assigned reasons, this should not, in my opinion, prevent them from examining the framework and context of the employment to see whether elementary rights are conferred on him expressly or by necessary implication, and how far these extend ... ".
3. But Mr Osmond can derive no comfort from an examination of the statute which provides the framework and context of his employment, namely, the Public Service Act 1979 (N.S.W.) as amended ("the Public Service Act" or "the Act"). For the Act does not confer on him the right that he claims. On the contrary, in my opinion its proper construction plainly denies him that right. Despite the absence of express words, the Act reveals the intention of the legislature that the Public Service Board be under no obligation to give reasons for its decision on an appeal brought to it in accordance with s.116.
4. The material provisions of s.116 are the following:
- "(2)
- The Board shall consider the appeal and the grounds thereof, and any further evidence in relation thereto which the Board may deem necessary for the proper determination of the appeal, and may allow or disallow the appeal.
- (3)
- The decision of the Board on the appeal shall be final and, if the appeal relates to a decision or determination of a Department Head, shall be deemed to be the decision or determination of the Department Head ... ".
This avenue of appeal in promotion cases is reserved to applicants for those senior offices in the Public Service that are excluded from the jurisdiction of the Government and Related Employees Appeal Tribunal ("the Tribunal") constituted in accordance with the provisions of the Government and Related Employees Appeal Tribunal Act 1980 (N.S.W.) as amended ("the GREAT Act") by reason of s.21(1)(d) of that Act. The GREAT Act provides an avenue of appeal with respect to promotion decisions touching the great majority of offices in the Public Service, being substantially those that attract a maximum salary not exceeding the maximum salary applicable to a Grade 11 office in the Administrative and Clerical Division. The office for which Mr Osmond applied was a senior office with respect to which the Tribunal had no jurisdiction to entertain an appeal.
5. The GREAT Act provides that for the purpose of hearing an appeal the Tribunal is constituted by a Chairman, an employer's representative and an employee's representative (s.13(1)). Detailed provision is made for the hearing of the appeal at either an informal sitting (s.37) or a formal sitting (s.38); whether the sitting is to be informal or formal is determined in accordance with s.35. In every case the decision must be in writing and must include the reasons for the decision (s.48(4)). The decision is final save for an appeal to the Supreme Court on a question of law (s.48(3), s.54).
6. On the other hand, the statutory provisions governing an appeal to the Board under s.116 of the Public Service Act are markedly different. First, the Board may delegate its function under that section to a member of the Board, a Department Head or an officer employed in the Administrative Office of the Board (s.35(2)(a)). Secondly, the appeal is to be considered and either allowed or disallowed (s.116(2)). Thirdly, the decision is final (s.116(3)). Fourthly, there is no mention of reasons being given for the decision. The appellant also argues for a further point of distinction, based on s.65A(6) of the Public Service Act, which provides that, without affecting the GREAT Act, no proceedings, whether for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, shall lie in respect of the appointment or failure to appoint a person to a position in the Public Service or the entitlement of a person to be so appointed.
7. This description of the legislative scheme may be completed by reference to the officers in the Special Division of the Public Service. This Division includes the Department Heads whose offices are created by s.45 of the Public Service Act (s.40). Appointments, whether by way of transfer or promotion or otherwise, including temporary appointments, to Special Division positions are made by the Governor (s.50). There is no provision for an appeal of any kind with respect to a promotion to the Special Division.
8. In my opinion this consideration of the relevant legislation (leaving aside for the moment the question concerning s.65A(6)) makes it clear that the legislature deliberately refrained from imposing any obligation on the Board to give reasons for a decision on an appeal under s.116 of the Public Service Act. It is not a matter that could have escaped consideration. The GREAT Act expressly imposed such an obligation on the Tribunal, yet s.116 of the Public Service Act remains silent, notwithstanding that the section was itself amended during the legislative session in which the GREAT Act was enacted in order to take account of the enactment of the latter Act.
9. Furthermore, some significance must attach to the time when these statutes were enacted, coming at the end of a decade of extraordinary executive and legislative activity in Australia directed to the improvement of efficiency and procedural fairness in public administration: see, for example, the 1971 Report of the Commonwealth Administrative Review Committee (the Kerr Committee); Directions for Change, an Interim Report by Professor Peter Wilenski, Commissioner, Review of N.S.W. Government Administration, published in 1977; the Further Report of the same Commissioner, Unfinished Agenda, published in 1982; Administrative Appeals Tribunal Act 1975 (Cth); Ombudsman Act 1976 (Cth); Administrative Decisions (Judicial Review) Act 1977 (Cth); Ombudsman Act 1973 (Vict.); Administrative Law Act 1978 (Vict.); Ombudsman Act 1974 (N.S.W.). In his report, Unfinished Agenda, at p.68, Professor Wilenski refers to the fact that the Public Service Act emerged after five months of intensive work, including extensive consultations by him with departments, authorities, unions and other interested bodies. While views may differ as to the dictates of public policy touching appointments to senior government offices, the legislature has clearly taken the view that it is not in the public interest that senior officers should have their respective merits or demerits with respect to efficiency, including aptitude, diligence and good conduct, canvassed publicly in a reasoned decision. It must have concluded that efficiency and harmony in the higher echelons of the Public Service would be enhanced by having the Board or its delegate keep its reasons to itself and thereby protect the reputations of the protagonists in the sensitive areas of character that a dispute as to relative efficiency might well encompass; cf. Hurt v. Rossall (1982) 43 ALR 252 , at p 260. The scheme is plain. For the great majority of offices, the GREAT Act provides a representative tribunal for the determination of promotion appeals in a manner accepted as being conducive to good industrial relations. For the senior, more sensitive positions, a more limited provision is made for the review of promotional decisions with the overall control remaining firmly in the hands of the Board. For Special Division officers, there is no avenue of review at all.
10. It is unnecessary to consider at length the conflicting submissions of Counsel with respect to par.(c) of s.65A(6) of the Public Service Act but I should say, with the utmost respect for those who think differently, that in my opinion the subsection does include within its scope decisions which are made under s.116. Subsection (3) of s.116 effectively incorporates the decision of the Board into Division 2 of Part IV of the Act, in which division s.65A appears, by deeming that decision to be the decision of the Department Head. The effect of that subsection is to characterize the decision of the Board on the appeal as the recommendation of the successful officer for appointment by way of promotion to the vacant position. It is on that recommendation that the Governor makes the appointment in accordance with s.61 of the Act. This being so, the present proceedings are in respect of the appointment or the entitlement of a person to be appointed to a position in the Public Service. Furthermore, although of no relevance to the present case, it would seem that s.65A(6) is a most unusual privative clause which excludes judicial review even for jurisdictional error. I draw this latter conclusion from the fact that s.65A(6) refers not to a "decision", which might then be construed to mean only a decision made within jurisdiction, but to "proceedings". In effect, it provides that, without affecting the GREAT Act, no proceedings by way of judicial review shall lie in respect of the filling of a vacancy in the Public Service.
11. I would allow the appeal.