Barton, Thomas v Minister for Foreign Affairs & Anor [1984] FCA 73

Federal Court of Australia|1983-04-11|Before: Jenkinson J

decision not to exercise a special power to appoint the

applicant to be a non-commissioned officer in the component

of the Australian Federal Police performing general police

for three years employed as an investigator in the Narcotics

Enforcement Branch of the Operations Division in the

Department of Business and Consumer Affairs. On that day

most of the positions in that Branch were abolished and

corresponding positions were created in the Office of the

Services. The occupants of the Third and Fourth Division positions which were abolished, of whom the applicant was one, were transferred to the newly created corresponding positions. The Australian Federal Police Act 1979 provided by s.16 that the staff, other than members of the Australian Federal Police, required for the purposes of that Act should be persons appointed or employed under the Public Service Act 1922; that in relation to such staff the Commissioner of Police might give such directions with respect to the performance of those persons' duties as he thought fit and

a should have all the powers of #ttre Chief Officer under the

Public Service Act 1922 in respect of the granting of leave of absence and such of the other powers of a Chief Officer as were prescribed. In the Office of the Australian Federal Police were, and are, employed both members of the Australian Federal Police and persons, such as the applicant, appointed

or employed under the Public Service Act and required for the

purposes of the Australian Federal Police Act 1979.

About 120 persons who had been thus transferred from investigative duties in the Narcotics Enforcement Branch to similar duties in the Office of the Australian Federal Police were informed during the next few months by the Commissioner, or by persons who would reasonably be understood to speak ~- and, as I find, did speak ~ for the Commissioner, that some of them would be offered appointment,

at ranks appropriate to their experience and current

salaries, as members of the Australian Federal Police; and that the others would be able to continue, as public servants in the Office of the Australian Federal Police, 'to utilise the skills and experience they had gained in doing much the same sort of work as they had been doing before the transfers occurred; and that there would be satisfactory opportunities for such public servants to win promotions in that Office; and that the "declining of an offer of appointment to the Australian Federal Police in the Commissioner's view in no way will prejudice an officer from developing a careex with

the Office of the Australian Federal Police". (See Exhibit

The applicant believed those prophetic statements. And she believed that by declining appointment as a member of the Australian Federal Police she would avoid the risk she thought would attend membership of that body, of transfer to work then unfamiliar to her, and would be able to continue in the drug intelligence and surveillance work she knew and liked. Accordingly, she was one of. about eight of the eighty four transferred officers and employees notified in December 1979 that they would be offered appointment as members of the Australian Federal Police who declined the offer. For reasons which will appear, the appointment of transferred officers and employees as members of the Australian Federal

Police at ranks appropriate to their experience and their

Public Service salaries could not be made until the

Australian Federal Police Act 1979 was 'amended by the Australian Federal Police Amendment Act 1980, which came into operation on 28 May, 1980. The applicant had more than six months in which to consider her response to the

There has been no suggestion that the prophecies on which the applicant relied were not made in good faith. But they have not all been fulfilled. The work required of the applicant has not been as varied as the duties she performed

before 7 November 1979; and the opportunities to gain

promotion within the fields of drug' surveillance, intelligence and investigation for a Commonwealth public servant of her experience and education have been very

In March 1981 the applicant made written application to the Commissioner that she be appointed by him a member of the Australian Federal Police. She falsely attributed her declination of the offer of appointment which the Commissioner had previously made to circumstances of her personal life, because she thought it imprudent to state the real reason : to say that her refusal of that offer had been induced by her reliance on prophecies which had not been fulfilled would imply criticism of the Commissioner, by whom and on whose behalf the prophecies had been declared, and on

whom responsibility for their fulfilment might be thought to

The application was refused. The Commissioner's decision was communicated by a minute dated 20 May, 1981, signed by a senior officer of the Australian Federal Police,

"The applications submitted by the above former members of the Federal Bureau of Narcotics for appointment to the A.F.P. have been considered. Recommendations made have also been considered. The Commissioner after consideration of all issues has directed that their applications be refused. This, of course, does not prevent any of the applicants from seeking normal entry to the A.F.P.

It would be appreciated if you would advise each person of the Commissioner's decision. Each of the applicants was offered an opportunity previously to laterally enter the A.F.P. but each chose of their

own volition to reject the offer. It is not proposed to repeat such offers at this late stage."

What in the minute is called "normal entry to the A.F.P." is appointment, under the general provisions of the Australian Federal Police Act 1979 and regulations made thereunder, to the lowest grade of the rank of constable, in contrast with appointment, in exercise of the power specially conferred by the amending Act of 1980, to a rank and grade appropriate to the experience and salary of an officer or employee who was transferred on 7 November 1979 from an office in the Narcotics Enforcement Branch to an office in the Department of Administrative Services. Initial

appointment as a member of the Australian Federal Police

above the lowest grade of the rank of constable is commonly

described, in the oral evidence and in the documents

made a further attempt to attract the exercise of the

" I am writing in an effort to obtain entry to the ranks of the Australian Federal Police, commensurate with the offer made to me by yourself, in June 1980.

I stress that after the disbandment of the former Federal Bureau of Narcotics, I was naturally eoncerned with my future and recognised my great desire to continue the fight against narcotics. For that and other reasons, which I have outlined in previous correspondence, I chose to refuse that effer and thus remain as a Public Service Investigator in the Intelligence Component.

With respect, you made undertakings, both verbally and in writing, inter alia, "a Drug Intelligence Unit of the highest standard would be created and developed".

that and other undertakings by your administration were made and yet I still remain with:

i. No duty statement ii. No career structure, and iii. No other benefits which have been

I therefore ask that you consider my effort once more, in the light of what I consider to be important undertakings which have not yet been implemented."

Although she was informed by a senior officer of the Australian Federal Police in about November 1983 that a response to her letter would be made shortly, the applicant has never received any reply to that letter. In February 1983 her solicitors made application on her behalf to the Commissioner for appointment to the Australian Federal Police. The application was refused in April 1983. It is

the Commissioner's decision of April 1983 which is the

By a letter dated 23 September 1982 the Commissioner responded to a request by the applicant's solicitors that he furnish, pursuant to s.13 of the Administrative Decisions (Judicial Review) Act 1977, "a statement in writing, setting out the findings on material questions of fact, referring to the evidence or other

material on which those findings were based and giving the

"I refer to your letter of 30 August 1983, and furnish you with the following statement in writing

setting out findings on material questions of fact.

Mx R.J. Peers and Miss M.A. Khoury are members of the Australian Public Service employed in the Office

of the Australian Federal Police. On 6 November 1979 they were employed in the Federal Narcotics

Bureau within the Department of Business and Consumer Affairs.

@Gisbanded the Federal Narcotics Bureau. All staff, and positions held by them, were transferred to the Department of Administrative Services and later to the Office of the Australian Federal Police where, as members of the Australian Public Service, they performed duties. With the transfer also of the function of federal drug enforcement to the Bustralian Federal Police (AFP) the Government directed that those former Federal Narcotics Bureau

members deemed, by the Commissioner of the AFP, as suitable for appointment as police officers, should

legal right to appointment nor was there any Mandatory requirement that they be so appointed.

offer appointment to those persons whom he considered suitable.

The Commissioner assessed the qualities of the 123 formex members of the Federal Narcotics Bureau and, in May 1980 offered appointment as police officers to 84 such persons including your clients, Mr Peers and Miss Khoury. They,,however, declined the offer of appointment. Those who accepted the offer of

appointment were sworn in as members of the AFP on 24.6.1980.

The AFP Act 1979 provided that all persons should be appointed at the rank of Constable and that no entry above the base level of Constable was permitted. This provision was designed to prevent the practice commonly termed "lateral entry" which had applied in the former Commonwealth Police whereby persons could be appointed at any rank to that organisation. The provision was vigorously sought by the then two police associations and agreed to by the Government of the day.

These appointments in June 1980 of the former Federal Narcotics Bureau members as police officers was made possible by an amendment (Section 26A) to the AFP Act 1979. Such appointments were made at ranks ranging from Chief Superintendent and intermediate rank levels down to Constable and at this latter rank, appointments were at the grades of First Constable and Senior Constable.

This action by the then Commissioner, in the exercise of his discretion, to appoint such former Federal Narcotics Bureau staff as he saw fit was the subject of adverse comment and opposition by the two

police associations who claimed a breach of the "no lateral entry" agreement given by the Government and

action proceeded despite this Opposition in view of the special circumstances namely the abolition of the Federal Narcotics Bureau, the transfer of its functions to the AFP and the need for staff to perform this function.

In 1981, when Mr Peers and Miss Khoury requested that they be appointed as police officers, the then Commissioner refused to accede to their requests. The two police associations then still in existence vigorously opposed the requests and since the formation of the single industrial body in 1982, the Australian Federal Police Association (AFPA), through its National Council has adopted a policy of opposition to entry to the Australian Federal Police at other than at the base level of Constable.

By virtue of Section 13 of the AFP Act I am empowered with the general administration of, . and control of the operations of, the Australian Federal Police. In considering the question of entry to the

AFP in 1983 of Mr Peers and Miss Khoury I took into account the effect on the career prospects of those

AFP members placed at.-a disadvantage if Mr Peers and

Miss Khoury were now appointed at a higher rank than members who have joined since June 1980 and the

the entry of persons into the AFP at other than base rank of Constable.

There is a further factor. In the case of Miss Khoury, had she accepted her offer in 1980, her appointment would have been as First Constable. As such she would have been required to pass an examination for advancement to the grade of Senior Constable, a condition imposed on her peer group of former Narcotic Bureau officers and those other AFP members holding First Constable grade appointments at that time. Her requested appointment to AFP in 1983, in accord with the agreed translation conditions would be as a Senior Constable and she would thus attain this grade without the requirement to pass the examination, a statutory requirement imposed on the aforementioned groups who would be disadvantaged by Miss Khoury's grade appointment.

Had Mr Peers accepted his offer in 1980, his appointment would have been at the rank of Sergeant and this would again apply in accord with the previously agreed translation conditions if his request were to be granted. Such appointment would advantage him over those members of Senior Constable grade and qualified for Sergeant, who are seeking

promotion to that,rank and who have gained that qualification since June 1980.

I have therefore decided that the application of Mr Peers and Miss Khoury for appointment at a rank above the base rank of Constable should not be granted. In exercising my discretion in this matter I am maintaining the decision of my predecessor and

the undertaking given by him to the AFPA. I have also taken into consideration the overall effect on morale and career prospects of other members of the Force. The two persons may apply to join the AFP as Constables in which case I would consider their applications in the light of the normal entry requirements for appointment. If applicable, I will consider a waiver of the entry requirements relating to maximum age for appointment if all other criteria. are met."

The Australian Federal-Police Act 1979 (to which I shall refer to as "the .principal Act") established the Australian Federal Police, to be constituted by the Commissioner of Police, one or more Deputy Commissioners, commissioned and non-commissioned police officers and

commissioned and non-commissioned protective service

officers. Each of the last two groups of members is called, in the principal Act, "a component". The principal Act specifies, or makes provision for the specification, of the functions, powers and duties of the several classes of

members of the body thus constituted. Section 13 provides:

"(1) Subject to this Act, the Commissioner has the general administration of, and

the control of the operations of, the Australian Federal Police.

(2) The Minister may, after obtaining and considering the advice of the Commissioner and of the Secretary, give written directions to the Commissioner

with respect to the general policy to be pursued in relation to the performance of the functions of the Australian Federal Police.

In addition to his power to give directions under sub-section (2), the Minister may give written directions {either specific or general) to the Commissioner in relation to the use of common services in accordance with an arrangement made under sub-section (5).

The Commissioner shall comply with all directions given under this section.

The Minister may, after obtaining and considering the advice of the Commissioner and of the Secretary, make an arrangement with the appropriate Minister of the Crown of a State for the provision or development of common services and for the use of such common services by the Australian Federal Police and the Police Force of the State.

The Commissioner shall furnish to the Minister such reports as the Minister requests relating to the administration and the performance of the functions of the Australian Federal Police.

(b) forensic science laboratories; (¢) research and planning systems; (d) training institutions; or

A power of delegation is conferred on the Commissioner, in

the terms commonly employed in Commonwealth legislation : s.15. The Commissioner and a Deputy Commissioner shall be

appointed by the Governor-General by commission : s.17(1).

"Subject to this Act, the Commissioner may, by instrument in writing -

. officer in a component, being an appointment to a rank that the person is, in accordance with the regulations, competent and qualified to hold;

(b) promote a person who is a non-commissioned officer in a _ component to a higher non-commissioned rank in either component, being a rank that the person is, in accordance with the regulations, competent and qualified

(ec) transfer a person who is a non-commissioned officer in a component to an equivalent rank in the other component, being a rank that the person is, in accordance with the regulations, competent and qualified to hold; or

(da) direct a person holding non-commissioned rank in a component to act for a specified period

in a higher non-commissioned rank in either component."

Section 25(1) makes similar provision for appointment, promotion and transfer to commissioned rank, by commission. Although the regulations were not produced, I was assured by counsel that they preclude appointment of persons who are not members of the Australian Federal Police at a rank other than that of constable or to a grade within that rank other than

the base grade. But sections 25 and 26 and the regulations

are to be read subject to certain transitional provisions contained in the principal Act. Section 72 commanded that persons who immediately before the date on which most of the provisions of the principal Act came into operation were members of the Commonwealth Police Force or of the Police Force of the Australian Capital Territory should be appointed under s.25 or s.26, as the case required, members of the

newly constituted Australian Federal Police, and that the

appointments should take effect on that date. In respect of none of those appointments was any regulation a bar to

lateral entry. Section 73 of the principal Act provides:

"(1) Where an appointment, other than an appointment in pursuance of section 72, is to be made to a rank in the Australian Federal Police, an applicant who -

(a) is a member; {b) was, immediately before the commencing date, a member of an existing Police

(da) is, in the opinion of the Commissioner, suitable for the appointment,

is entitled to be appointed in preference to any other applicant.

years, or such longer period as is prescribed, after the commencing date."

Commissioner was empowered to appoint former officers and

employees of the Narcotics Enforcement Branch to be members

appropriate to their Public Service experience and salaries,

Where an officer of the Australian Public Service who was transferred on 7 November 1979

to an office in the Department of Administrative Services held, immediately before his transfer, an office in the Narcotics Enforcement Branch of the Operations Division in the Department of Business and

Consumer Affairs, this section applies to the officer.

Notwithstanding anything in sections 25 and 73, an officer to whom this section applies may be appointed, by Commission under section 25, to be a commissioned officer in the component of the Australian Federal Police referred to in sub-section 7(1) and to hold such rank as he is, in the opinion of the Commissioner, qualified to hold having regard to his duties immediately before his appointment and to his qualifications and aptitude for the discharge of duties of a kind performed by members engaged in investigating narcotics offences and of other duties of a kind performed by members of the component so referred to.

Notwithstanding anything in sections 26 and 73, an officer to whom this section applies may be appointed, by instrument in writing under section 26, to be a non-commissioned officer in the component of the Australian Federal Police referred to in sub-section 7(1) and to hold such rank as he is, in the opinion of the Commissioner, qualified to hoid having regard to his duties immediately before his appointment and to his qualifications and aptitude for the discharge of duties of a kind performed by members engaged in investigating narcotics offences and of other duties of a kind performed by members of the component so referred to.

Where an officer to whom this section applies is appointed to be a member -

(a) it shall be presumed, unless the contrary is established, that, in making the appointment, the Commissioner has had regard to all matters to which he is, under sub-section (2) or (3), as the case requires, required to have regard; and

(b) the officer shall be deemed, for ail purposes of this Act and the regulations, to be competent and qualified to hold the rank to which he is appointed.

(5) Where an officer to whom this section applies is appointed to be a member, the terms and

conditions of his service in the Australian Federai Police shall, until a determination under section 30 or an agreement having effect under section 31 otherwise provides, be deemed to be the terms and conditions of service that were, immediately before his appointment, applicable to him as an officer of the Australian Public Service."

The reference in the last paragraph of the Commissioner's statement of the reasons for his decision to "the decision of my predecessor" is to the decision of Commissioner Sir Colin Woods in May 1981 that the applicant and Mr. R. J. Peers be not appointed members of the Australian Federal Police by an exercise of the power conferred by s.26A. The reference in the same sentence to "the undertaking given by him to the AFPA" is to an undertaking given in or about May 1981 by Sir Colin Woods (to officers, not, it would seem, of an association of members of the Australian Federal Police called the Australian Federal Police Association, for that association had not then been

formed, but to officers of two other police associations then

in existence) that the power conferred by s.26A would no longer be exercised, but that all appointments to membership of the Australian Federal Police (save for Commissioner and Deputy Commissioner) would be made in exercise of the powers conferred by ss. 25(1) and 26(1), and subject to the

The uncontradicted evidence of John Daniel Reilly, Assistant Commissioner of Police (Personnel and Services), on the hearing of the application was, first, that the opinion of the Commissioner at the time he made the impugned decision was that there should be no lateral entry to the Australian Federal Police and that therefore the power conferred by

s-26A should not be exercised to grant lateral entry and,

second, that "the overriding reason" for the Commissioner's

It was the submission of .Mr. N. J. Young, of counsel for the applicant, that the making of the decision was an improper exercise of the discretionary power conferred by s.26A because the power had been exercised in accordance with a rule or policy without regard to the merits of the particular case, or because there had been, as Mr. Young submitted, no exercise of discretion at all, but rather a refusal to have regard to the considerations relevant to the exercise of the power, in consequence of the Commissioner's

opinion that there should in no circumstance be any exercise

Accepting, as I do, the evidence of Mr. Reilly that the Commissioner's opinion at the time of his decision was that the power conferred by s.26A should not be exercised in favour of any person, and that the opinion the Commissioner held was the determinant consideration in the making of the decision, I am not compelled by necessary inference from those findings to the conclusion that the Commissioner did not have regard to the merits of the applicant's particular case, or that there had been a failure to exercise the discretion conferred by s.26A.. It is, I think, an hypothesis consistent with the evidence that the Commissioner had regard to all relevant considerations in the exercise of the power and found the opinion undisturbed by his evaluation of what

he considered to be the merits of the applicant's particular

case. I am not persuaded to a finding contradictory of that

In support of the generally stated ground which s-5(1)(e) and s.5(2)(f) of the Administrative Decisions (Judicial Review) Act 1977 express, it was submitted that an opinion such as the Commissioner held, or an undertaking such as Sir Colin Woods gave, was inconsistent with s.26A. Until Parliament repealed that provision, the repository of the power which it conferred could not lawfully abnegate, whether

by mental resolution or by undertaking to others, the

It may be - I need express no concluded opinion - that an unqualified determination in no circumstances to

exercise the power, or an unqualified undertaking not to

exercise the power, would be erroneous in point of law. (See, as to an undertaking, Ansett Transport Industries (Operations) Pty. Ltd. v. The Commonwealth (1977) 139 C.L.R. 54 at 74-76.) But I am not persuaded that the Commissioner's state of mind was of that character. Nor am I persuaded that the Commissioner's reference in his statement of the reasons for his decision to his maintaining the undertaking given by Sir Colin Woods justifies-a conclusion that the Commissioner

Counsel for both parties recognised the necessity, and the difficulty, of identifying and defining the considerations extraneous to the exercise of the discretionary power of appointment conferred by s.26A by reference to the subject matter and the scope and purpose of

that section and of the legislative context into which it was

introduced. (See The Queen v. The Australian Broadcasting Tribunal; ex parte 2HD Pty. Ltd. (1979) 144 C.L.R. 45; Water

Conservation and Irrigation Commission v. Browning (1947) 77 C.L.R. 492; Swan Hill Corporation v. Bradbury (1937) 56

C.L-R. 746; Bread Manufacturers of New South Wales v. Evans

(1981) 38 A.L.R. 93; Padfield v. Minister of Agriculture

Fisheries and Food [1968] A.C. 997.) Mr. Young conceded that

the efficiency of the Australian Federal Police was an object the attainment of which the exercise of the discretion was legislatively intended to serve, and that regard by the Commissioner to the attitudes of members of the Australian Fedexal Police to lateral entry was not a consideration extraneous to the exercise of the discretion, since

efficiency may be affected by morale and morale was likely to be influenced by an appointment offending such attitudes. But Mr. Young submitted that, if the exercise of the discretion were controlled, as he submitted that I should conclude it was, by the Commissioner's unwillingness to resist the opposition to lateral entry which the Australian Federal Police Association maintained, that was an abnegation of the discretionary power, or alternatively an exercise of the power upon a consideration extraneous to the purposes for

The evidence did not, however, show the Commissioner to have been constrained against his own inclination to the decision under review : there was credible evidence which I have accepted that his own opinion was that lateral entry should not be permitted and that the opinion was of decisive significance in the €ommissioner's reasoning

in accordance with which the discretionary power conferred by s.26A is to be exercised against appointment by way of lateral entry, may in my opinion without error be entertained by the Commissioner, provided that in each case he takes into account all other considerations relevant to the exercise of the power and reasonably weighs those which favour appointment under s.26A against that opinion or policy and against the considerations which contributed to the formation of the opinion or policy. At least after the offers of appointment under s.26A°had been made- to those considered

suitable for such appointment, the formation of such an

epinion or policy does not in my opinion contravene any purpose or policy of the legislation in which s.26A finds a place. It is in my opinion a not unreasonable understanding of s.26A that it was enacted as an exception to the legislative policy which ss. 25, 26 and 72 and 73 express, namely that a transitional preferential system of entry into, and promotion within, the Australian Federal Police of former members of the Commonwealth Police Force and the Police Force of the Australian Capital Territory should be succeeded by a system of entry and promotion, the mechanisms and policy of which would be determined from time to time by the exercise by the Executive Government of a power to make regulations. Although, as Mr. Young pointed out, s.26A is not expressed, as s.73 is, to continue in force only for a limited time, the subjects to which s.26A applies and the circumstances which

attracted the attention of the Legislature to them are such

as strongly to suggest that the considerations by reference to which the power conferred by the section may reasonably be exercised might change rapidly after the passing of an initial period, when the personal interests of those subj ects might have been of major importance, and that those considerations would thereafter be greatly affected by the general policies to which the regulations and the

In my opinion the.Commissioner. did not fall into an error of the kind specified in paragraph (d), (e), (f) or (3) of s.5(1) of the Administrative Decisions (Judicial Review) Act 1977 if he attributed substantial weight in the exercise of the discretionary power to his own opinion that appointment by way of lateral entry should not be made of persons to whom s.26A applied and who had previously declined appointment under that section, or if he attributed weight to the circumstance that Sir Colin Woods had given to representatives of members of the Australian Federal Police an undertaking that the power conferred by s-26A would not again be exercised. And I am not persuaded that he went further than to give weight to that opinion and to that

It may be conceded that, as Mr. Young submitted, the enactment of s.26A had for one of its objects the

advancement of the personal interests of the persons to whom

it applied. Consideration of the personal interests of the applicant was therefore required in the exercise of the discretion. But, once an exercise of the power in her favour had been offered and refused, degradation of those personal interests of hers in comparison with other considerations could hardly be characterised as unreasonable, if her interests were not disregarded in reaching a decision. If they were not disregarded, the relative weight to be accorded those interests on the one hand and the Commissioner's opinion concerning lateral entry on the other was for him to determine. Concerning the undertaking of Sir Colin Woods, I shall assume, but without deciding, that in law the undertaking was ineffective to impose any fetter on the exercise, either by Sir Colin Woods or by any successor of his in the office of Commissioner, of the power conferred by s.26A. It is, I think, certain that the undertaking did not even purport to bind a successor. But the giving of the undertaking may have had an effect on the attitudes of members of the Australian Federal Police. The evidence before me does not show that the Commissioner would have been unreasonable if he believed that appointment of the applicant under s.26A would be thought by some members of the Australian Federal Police to be a breach of an undertaking they had expected him to honour. If he thought that, it would not be a consideration irrelevant to the exercise of the power : the morale, and thus the efficiency, of the

Australian Federal Police may undoubtedly be influenced by

The other principal ground on which an order of review of the Commissioner's decision was sought was that a breach of the rules of natural justice had occurred in connection with the making of the decision. It was submitted that s.26A was to be distinguished from a general provision authorising appointment to a public service, such as was said

in Cole v. Cunningham (1983) 49 A.L.R. 123 at 128 not to

import an obligation, on the person deciding whether to exercise the power, to disclose to an applicant for appointment the circumstances under consideration by the repository of the power and to afford the applicant an Opportunity to be heard in respect of those circumstances. The terms of s.26A, the subjects to whom it applies and the circumstances giving rise to its enactment lead to the conclusion, in Mr. Young's submission, that a refusal to appoint a person to whom the section applies could not without breach of the rules of natural justice be decided upon unless the Commissioner had first notified thac person of the matters which weighed against appointment and had afforded that person the opportunity to place before the Commissioner matter in refutation of the conclusion that he should not be. appointed. Mr. Young submitted that the section itself, in all the circumstances, gives rise in each of those to whom it is expressed to apply a "legitimate

expectation" that the discretionary power it confers will not

be exercised against his appointment until he has been heard.

I cannot accept the submission. Section 26A does no more, in my opinion, than remove obstacles which, if the section had not been enacted, would have fettered the exercise, in favour of those to whom it is expressed to

apply, of the powers of appointment conferred by s.25(1)(a)

and s.26(1)(a). Section 26A expressly provides that it is

-those general powers of which it authorises exercise by the

Commissioner. Those general powers are in like case with the

powers under consideration in Cole v. Cunningham, supra, in

In any event, the evidence justified the inference, which I draw, that the applicant was aware, when the third application for appointment was made on her behalf by her

solicitors, of all but one of the considerations which would ox might be taken into account in reaching the impugned decision. And there was no evidence to suggest that the Commissioner would not have taken into consideration anything

she had placed before him in favour of a decision to accede

There was one circumstance, taken into account by the Commissioner in reaching his decision, of which the applicant was not aware until after the decision had been

made : that Sir Colin Woods had given an undertaking to

police associations that no further exercise of the power

conferred by s.26A would be made to effect lateral entry.

It was not submitted that a Commissioner might not take into account, as a consideration relevant to the exercise of such a power as s.26A confers, the opinion of an association of members of the Australian Federal Police concerning the policy which should guide the exercise of the power. And I think he might, without error, do so. If he did, that circumstance would probably not of itself resuit in his incurring an obligation to disclose to one who was seeking appointment under s.26A, before deciding whether to exercise the power, that the opinion was being taken into account, or to tell the applicant what the opinion was, or to offer the applicant the opportunity to be heard in relation to the opinion. But when the respository of such a discretionary power has undertaken that its exercise shall be foregone, and a successor considers, as I infer from the fourth last sentence of the Commissioner's statement of the reasons for his decision that he did consider, that he should take into account, as a consideration relevant to the exercise of the power, the fact that the undertaking had been given, justice in my opinion demands that the applicant be apprised of those circumstances and offered the opportunity

applicant for public employment under an enactment conferring a discretionary power to engage staff may lawfully be left in ignorance of many: of -the considerations - including weighty considerations of policy - taken into account in deciding whether to grant the application, one particular consideration of possibly scant weight must be disclosed. There may be different ways of regarding the paradox. One

may concentrate attention on the singularity of what Sir Colin Woods communicated to the associations - a promise not to perform a function committed to him - and on the injustice of leaving an applicant for appointment under s.26A ignorant that a promise so unusual and so prejudicial to the applicant's aspiration had been given. So regarded, the case may be seen as one of "very special facts" giving rise to a "legitimate expectation" of the applicant which has been disappointed : see Cole v. Cunningham 49 A.L.R. at 133. Or one may consider, more generally, that if an official or authority empowered to engage staff for public purposes chooses to commune, not only with the Executive Government, but also with voluntary associations of persons interested in the exercise of that power, concerning the policies which shall guide its exercise, he and his successors in office lie under an obligation to ensure that what he discloses about those policies to such an association shall be disclosed also to the single citizen who seeks engagement, so that each applicant for engagement may frame his application with

knowledge of what the official or authority has chosen thus

to reveal. It is sufficient to rest, as I do rest, the

This applicant was not made aware by the Commissioner, and did not know, before he made his decision not to accede to her application, that Sir Colin Woods had given the undertaking and that he might take that circumstance into account in making the decision. Thereby a breach of the rules of natural justice occurred in connection

I should observe, in fairness to the Commissioner and other members of the Australian Federal Police who were concerned in the consideration of the application for appointment, that the evidence is quite consistent, in my opinion, with their having supposed - and reasonably supposed

that the applicant was at all material times aware of Sir Colin Woods' undertaking, and that she would realise that the fact that the undertaking had been given might be taken into

consideration by the Commissioner in making his decision.

The order disposing of this application will be that the decision of the respondent Commissioner, communicated to the applicant by letter dated 11 April 1983, of which a copy is exhibit J to the affidavit of the applicant sworn the 2nd day of December 1983, that the

applicant be not appointed a member of the Australian Federal

Police by exercise of power conferred on him by s.26A of the

Australian Federal Police Act 1979, be quashed; and that the request of the applicant made in February 1983 by her solicitors on her behalf that she be so appointed by exercise of that power be further considered by the respondent Commissioner after the expiration of four weeks from the date of this order; and that the respondent Commissioner give consideration in relation to the said request to such written matter in support of her request as may be submitted to hin by or on behalf of the applicant within four weeks from the

The order places no restriction on the material to be submitted to the Commissioner by reference to subject matter. The decision of April 1983 having been quashed and the applicant's request standing now for consideration, neither the Commissioner nor the applicant should be prevented by curial order from acting in relation to the request in any way in which it would have been open to him or to her, respectively, to act if the decision of April 1983

At a glance

Court

Decision date

Before

Source

Judgment (186 paragraphs)