Chan v Minister for Immigration and Ethnic Affairs

REASONS FOR JUDGMENT On 25 March 1996 an application was lodged under s 170EA of what was then entitled the Industrial Relations Act 1988 (Cth) ("the Act") by Mr John Ward. In terms, the application was said to constitute a claim of unlawful termination of employment and an application for a remedy. Mr Ward identified his occupation as police aide and his former employer as the Commissioner of Police. On 29 April 1996 a Commissioner of the Australian Industrial Relations Commission ("the Commission") issued a certificate under s 170ED certifying that he had been unable to settle the matter by conciliation and that the parties had not elected to have the matter dealt with by consent arbitration. It was thus a matter for the Industrial Relations Court of Australia to hear and determine: see s 170ED(2). For reasons which it is unnecessary to detail, the application did not come on for trial until November 1997. At that time the relevant jurisdiction of the Industrial Relations Court of Australia had vested in the Federal Court of Australia by operation of the Workplace Relations and Other Legislation Amendment Act 1996. The application was listed for hearing on 17, 18 and 19 November 1997. I conducted a directions hearing by phone on 30 October 1997 and it was agreed that certain steps would be taken to prepare the matter for hearing though no formal directions were made. On the Friday preceding the week of the hearing it became apparent that as a result of a change in counsel and the failure of the parties to settle a statement of agreed facts, the matter would not be ready for trial on Monday 17 November 1997. I ultimately raised with the parties whether some of the time set aside for the trial could be used to consider two legal issues which had become prominent in the proceedings. They agreed and submissions were made on 19 November 1997. With the concurrence of both parties I formalised the procedure on 1 December 1997 by ordering the following questions be decided separately from other questions: (i) Was the applicant, being an aboriginal aide appointed under s 38A(1)(b) of the Police Act 1892 (WA), a person whose employment had been terminated by the respondent within the meaning of s 170EA(1) of the Industrial Relations Act 1988 (Cth). (ii) If the applicant was such a person, were ss 170DC and 170DE(1) of the Industrial Relations Act 1988 (Cth) valid laws of the Commonwealth insofar as they purported to preclude the respondent from terminating the applicant's employment other than in conformity with those sections. At the time Mr Ward's application was filed s 170EA(1) of the Act provided: "170EA(1) A person (the employee) may lodge with the Commission an application for relief in respect of termination of his or her employment". Some limited and uncontentious evidence was led to enable these questions to be addressed. Mr Ward was an aboriginal aide and had been appointed to that office on 17 October 1991. His appointment was effected by an instrument signed by the Western Australian Commissioner of Police. It read: "Pursuant to the provisions of Section 38A of the Police Act 1892 - 1981, being an Aboriginal person, you are appointed an Aboriginal Aide with all the powers, privileges, duties and obligations of a Constable duly appointed under the Police Act 1892 - 1981; subject to the restriction that such powers may only be exercised in respect of persons of Aboriginal descent, except when you are aiding, assisting or acting at the direction of a member of the Western Australia Police Force appointed under Part 1 of the Police Act 1892 - 1981." On the same day Mr Ward signed a document headed "FORM OF ENGAGEMENT". It read: "I, John Frederick WARD, engage and promise that I will well and truly serve our Sovereign Lady the Queen in the office of Aboriginal Police Aide without favour or affection, malice, or ill-will, until I am legally discharged: that I will see and cause Her Majesty's peace to be kept and preserved, and that I will prevent, to the best of my power, all offences against the same; and that while I shall continue to hold the said office, I will, to the best of my skill and knowledge, discharge all the duties thereof faithfully according to law. I further agree to accept and abide by such rules and regulations as may from time to time be made by the Governor, under Section 9 of the Police Act, and that such rules and regulations shall be incorporated in and form part of the terms of my engagement, and that I shall at all times be liable to and bound by them." On 15 March 1996 the Commissioner of Police executed a document entitled "NOTICE OF A REVOKED APPOINTMENT" in which the Commissioner "approved of the revocation of Mr Ward's appointment with the Police Force of Western Australia". Mr Ward's appointment was made under s 38A of the Police Act 1892 (WA) which provides: "Aboriginal aides 38A(1) The Commissioner of Police and any commissioned officer of police authorized in that behalf by the Commissioner may, in writing - (a) appoint aboriginal persons to be aboriginal aides; and (b) revoke any appointment made under this subsection. (2) Any aboriginal aide appointed under subsection (1) - (a) shall, except as specified to the contrary in his instrument of appointment, have all of the powers, privileges, duties and obligations as has any constable duly appointed under this Act; and (b) shall receive such remuneration and allowances as are determined by the Minister. (3) A reference in any other law of the State (not being a law relating to condition [sic] of service of members of the Police Force) to a member of the Police Force shall be read as including an aboriginal aide appointed under this section." Section 38A is the only section in Part IIIA of the Police Act 1892. It was introduced into the Police Act 1892 by Act No 18 of 1975. Prior to this amendment, the Police Act 1892 contained provisions which fairly clearly identified what generally constituted the Police Force of Western Australia. Those provisions remain in the Act. Part I of that Act was entitled "AS TO THE APPOINTMENT OF OFFICERS AND CONSTABLES OF THE POLICE FORCE" and contained several sections enabling the appointment of people to various offices which, collectively, constituted the Police Force of Western Australia. Section 5 authorised the appointment of a Commissioner of Police by the Governor, s 6 authorised the appointment by the Governor of officers of Police who held commissions under the hand of the Governor, s 7 authorised the appointment of non-commissioned officers and constables by the Commissioner of Police. Section 8 dealt with the removal of commissioned and non-commissioned officers and constables. Commissioned officers could be removed by the Governor and non-commissioned officers and constables could be removed by the Commissioner of Police "as he shall think fit" but with the approval of the Minister. Part II, entitled "AS TO THE REGULATIONS, DUTIES AND DISCIPLINE OF THE POLICE FORCE", dealt with the mechanism for appointing a person to the Police Force and s 10 provided: "No person shall be capable of holding any office, or appointment in the Police Force, or of acting in any way therein, until he shall have subscribed the following engaged, namely - I, A.B., engage and promise that I will well and truly serve our Sovereign Lady the Queen, in the office of [Commissioner of Police, inspector, sub-inspector, or other officer, or constable, as the case may be], without favour or affection, malice or illwill, until I am legally discharged; that I will see and cause Her Majesty's peace to be kept and preserved, and that I will prevent, to the best of my power, all offences against the same; and that, while I shall continue to hold the said office, I will, to the best of my skill and knowledge discharge all the duties thereof faithfully according to law. And the said engagement shall be subscribed in the presence and attested by Justice or commissioned officer of the force." Section 11 went on to provide that any person, on subscribing to such an engagement, was bound to serve Her Majesty as a member of the Police Force. Section 12 dealt with the resignation of non-commissioned officers or constables and limited the circumstances and the method and in which they may resign. It is relatively clear that prior to the amendment in 1975, the Police Force was constituted by the Commissioner, all commissioned officers, all non-commissioned officers and all constables, though it has been unnecessary to consider the position of special constables appointed under Part III. In the context of developing their submissions as to whether Mr Ward had been in employment for the purposes of s 170EA, counsel focused on whether or not Mr Ward was a member of the Police Force. There are a number of telling arguments either way. They flow, in the main, from the engrafting of s 38A onto an Act which identified who generally was a member of the Police Force. However, in my opinion, whether Mr Ward was a member of the Police Force is not the critical question for present purposes. It can be seen that s 38A(2)(a), with one qualification, confers and imposes on an aboriginal aide all the powers, privileges, duties and obligations of a constable. The Police Act 1892 generally identifies the powers of a constable which include the power to apprehend offenders: (s 43), to enter ships or vessels (s 40), to seize stolen property on ships (s 41), and to exercise a range of other powers traditionally exercised by members of a police force. The qualification in s 38A(2)(a) is that the instrument of appointment may specify some limitation on the operation of para (a). It can be seen from the instrument of appointment of Mr Ward that he could only exercise the powers of a constable in respect of persons of Aboriginal descent, except when he was aiding, assisting or acting at the direction of a member of the Western Australian Police Force appointed under Part I of the Police Act 1892. Subject to this limitation Mr Ward had, as an aboriginal aide, all the powers of a constable and enjoyed the privileges and incurred the duties and obligations of a constable imposed by the Police Act 1892 and, I would assume, arising under any other enactment or the common law. The effect of s 38A(2)(a) was, at least as it applied to Mr Ward, to create an office of the type that has been considered on a number of occasions and is generically described as that of constable or peace officer: see Enever v R (1906) 3 CLR 969. As to the historical development of the office: see Sheikh v Chief Constable of Greater Manchester Police [1990] 1 QB 637 at 645 - 646 per Croom-Johnson LJ. The occupation of such an office by Mr Ward raises the question of whether he was in employment. That question arises because of the well developed line of authority that indicates, in a variety of ways that, at common law, a constable is not in the relationship of master and servant: see Enever v R (supra), Attorney-General (NSW) v Perpetual Trustee Company Limited (1952) 85 CLR 237 and (1955) 92 CLR 113, Sellars v Woods (1982) 69 FLR 105, Chapman v Commissioner, Australian Federal Police (1983) 50 ACTR 23, Griffiths v Haines [1984] 3 NSWLR 653, Sheikh v Chief Constable of Greater Manchester Police [1989] 2 All ER 684, R v Commissioner of Police; Ex Parte Ross [1992] 1 QdR 289, Ferguson v Commissioner of Police (1997) 72 IR 145, and R v Hyman and French [1990] 2 WAR 222. These cases, in one way or another, establish that a constable is not in an employment relationship for various purposes including, in Ferguson (supra), for the purposes of s 170EA. A contrary view as to whether a police officer was in employment for the purposes of s 170EA is found in the judgment of Judicial Registrar Farrell in Cook v Commissioner of Police (1996) 66 IR 361. The Judicial Registrar was influenced by the decision of Deputy President Williams in Re Australian Federal Police Association (No.2) (1993) 51 IR 122 in which the Deputy President concluded that members of police forces were employees for the purposes of considering alterations to rules of an organisation of employees under the Act. Section 170EA is the first section in subdivision C, Remedies in respect of unlawful termination, of Division 3, Termination of Employment, of Part VIA of the Act. While s 170EA(1) contains a reference to "the employee" it appears in parenthesis after the words "A person". Though it is not entirely clear why the subsection is structured this way, it is likely that the words "the employee" are intended, in substance, to provide a shorthand description of the person who has lodged the application under s 170EA(1) for the purposes of the remainder of subdivision C. Thus the defining characteristic of a person seeking relief is that there has been a "termination of his or her employment". Any application for relief would be founded on an alleged contravention of one or a number of the provisions in subdivision B which repeatedly speak of "an employer" and "an employee" and which restrict the circumstances in which an employee's employment can be lawfully terminated by the employer. While "employer" and "employee" are defined in s4, the definition does not cast any real light on the meaning of the expression "termination of his or her employment". It has, however, been said that the definition of "industrial matter" in s 4, involving the use of the words "employer" and "employee", "is, under another name, in substance the relation called at common law, master and servant": see R v Foster; Ex Parte the Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138 at 153 per Dixon, Fullager and Kitto JJ. These definitions, in a number of forms, have existed in the principal Commonwealth industrial law since 1904. However, they do not, for reasons I shortly explain, limit the scope of Division 3 nor circumscribe the type of person who may make application under s 170EA. Schedules 10 and 11 of the Act provide the starting point for considering whether an aboriginal aide is a person who was an employee whose employer was obliged to comply with the provisions of subdivision B and who has been in employment which had been terminated. Schedule 10 of the Act is the Convention Concerning Termination of Employment at the Initiative of the Employer ("the Convention") and Schedule 11 to the Act is the Recommendation Concerning Termination at the Initiative of the Employer ("the Recommendation"). Of some significance for present purposes is s 170CA which makes plain that Division 3 is to give effect to or further effect to both the Convention and Recommendation. The Act also declares that expressions in the Division have the same meaning as they have in the Convention: see s 170CB. Thus the touchstone for the meaning of words or expressions in Division 3 is not s 4 or the common law but rather the Convention. Accordingly it is necessary to ascertain the intended reach of the Convention and, in particular, what was comprehended by the expressions "employed person" and "employment" as they appear in Arts 2 and 3 of the Convention. Articles 2 and 3 provide: " Article 2 1 This Convention applies to all branches of economic activity and to all employed persons. 2 A Member may exclude the following categories of employed persons from all or some of the provisions of this Convention: (a) workers engaged under a contract of employment for a specified period of time or a specified task; (b) workers serving a period of probation or a qualifying period of employment, determined in advance and of reasonable duration; (c) workers engaged on a casual basis for a short period. 3 Adequate safeguards shall be provided against recourse to contracts of employment for a specified period of time the aim of which is to avoid the protection resulting from this Convention. 4 In so far as necessary, measures may be taken by the competent authority or through the appropriate machinery in a country, after consultation with the organisations of employers and workers concerned, where such exist, to exclude from the application of this Convention or certain provisions thereof categories of employed person whose terms and conditions or employment are governed by special arrangements which as a whole provide protection that is at least equivalent to the protection afforded under the Convention. 5 In so far as necessary, measures may be taken by the competent authority or through the appropriate machinery in a country, after consultation with the organisations of employers and workers concerned, where such exist, to exclude from the application of this Convention or certain provisions thereof other limited categories of employed persons in respect of which special problems of a substantial nature arise in the light of the particular conditions of employment of the workers concerned or the size or nature of the undertaking that employs them. 6. Each Member which ratifies this Convention shall list in the first report on the application of the Convention submitted under article 22 of the Constitution of the International Labour Organisation any categories which may have been excluded in pursuance of paragraphs 4 and 5 of this Article, giving the reasons for such exclusion, and shall state in subsequent reports the position of its law and practice regarding the categories excluded, and the extent to which effect has been given or is proposed to be given to the Convention in respect of such categories. Article 3 For the purpose of this Convention the terms "termination" and termination of employment" mean termination of employment at the initiative of the employer." The Convention does not, in terms, limit its application to classes of employees or employment. It is said to apply to all employed persons. In construing the Convention regard should be had to the Vienna Convention on the Law of Treaties: see Commonwealth v Tasmania (1983) 158 CLR 1 at 93, per Gibbs CJ and 222-223, per Brennan J. Article 32 of the Vienna Convention permits recourse to "supplementary means of interpretation" including "the preparatory work of the treaty and the circumstances of its conclusion" to confirm the meaning derived from a consideration of the terms of the treaty in light of its objects and purpose. As McHugh J observed in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 427, in adopting observations of Professor Lauterpacht, "it may now be regarded as a settled principle of interpretation of treaties that tribunals, international and national, will have recourse, in order to elucidate the intention of the parties, to the records of the negotiations preceding the conclusion of the treaty, the minutes of the conference which adopted the treaty, its successive drafts and so on": see also Applicant A v Minister for Immigration and Ethnic Affairs (1997) 71 ALJR 381. At its 211th Session in November 1979, the governing body of the International Labour Organisation ("ILO") decided to place on the agenda of the 67th session in 1981 of the International Labour Conference, an item on termination of employment at the initiative of the employer. Following that decision the Office of the ILO prepared a preliminary report (Report VIII (1)) which was circulated to member states of the ILO together with a questionnaire. A further report (Report VIII(2)) was prepared having regard to the answers provided to the questionnaire. The report contained a final chapter entitled "PROPOSED CONCLUSIONS" which, in substance, took the form a draft convention. In several of the replies from member states, an issue was raised about the applicability of any proposed convention to, inter alia, the police. This was dealt with in the body of Report VIII(2) in the following paragraphs at page 27: "A considerable number of governments, in their replies to this question or to questions 7 or 8, favoured provision for a possibility for excluding, or special rules for, one or more of the categories of undertakings or workers mentioned in this question (i.e. small undertakings, family undertakings, managerial employees and workers who have reached the normal age of retirement.) Some countries opposed provision for exclusion of one or more of these categories. Certain governments proposed provision for the possible exclusion of, or special provision for, one or more other categories of workers, such as the armed forces, the police, defined categories of workers in essential services, workers subject by their activities to considerable mobility (such as port or construction workers), agricultural workers, seafearers, home workers, apprentices, commercial travellers, domestic employees and part-time workers. While certain of these categories may be covered by the possibilities for exclusion already included in Point 6(2) and (3), it would appear that a number of countries may indeed have difficulties in extending to one or more of these categories of workers the protection to be afforded pursuant to the instruments. With the view to providing some flexibility to governments in this matter, without including an unduly extensive list of possible exclusions, the Office has included in the Proposed Conclusions provisions patterned after those found in the Holidays and Pay Convention (Revised), 1970 (Article 2(2) and (3)), authorising, after consultation with the organisations of employers and workers concerned, where such exist, the exclusion in so far as necessary, from the application of the instruments or certain provisions thereof of other limited categories of employed persons in the respect of whose employment special problems of a substantial nature arise. A provision has also been included to require indications regarding such exclusions in reports on the application of a ratified Convention if one is adopted (Point 6(4) and (5))." [emphasis added] In the Proposed Conclusions the following appears as Point 6(4): "(4) In so far as necessary, measures may be taking by the competent authority or through the appropriate machinery in a country, after consultation with the organisations of employers and workers concerned, where such exist, to exclude from the application of this Convention or certain provisions thereof other limited categories of employed persons in respect of whose employment special problems of substantial nature arise." It can be seen that this provision mirrors the terms of para 5 of Art 2 of the Convention though words have been added concerning the particular conditions of employment of the workers concerned or the size or nature of the undertaking that employs them. These words were added as a result of a consideration by the 68th session of the International Labour Conference in Geneva in 1982 of a further report prepared by the International Labour Office. The further report, Report V(2), discussed the attitudes of various member states to the proposals emerging from the 67th (1981) session of the International Labour Conference which had discussed Report VIII(2). In Report V(2) the following appears at page 18 in relation to the provision which became para 5 of Art 2 of the Convention: "The Government of Sweden has suggested, with a view to ensuring the widest possible coverage, that the exceptions made under this Article should be specified and defined. This observation appears to relate more particularly to this paragraph. It should be recalled in this connection that, in their replies to the questionnaire contained in the law and practice report on the subject, governments had proposed the possibility of excluding a number of different categories of workers, including workers employed in small undertakings or in family undertakings, managerial employees, workers who have reached the normal age of retirement, the armed forces, the police, defined categories of workers in essential services, workers whose activities may entail considerable mobility (such as port or construction workers), agricultural workers, seafarers, home workers, apprentices, commercial travellers, domestic employees and part-time workers. While the Office had felt that coverage of certain of these categories might indeed present in a significant number of countries sufficient difficulties to warrant provision for their possible exclusion, there was not enough information to determine whether such difficulties applied in a significant number of countries to all these categories. Instead of seeking to determine the categories whose coverage presented sufficient difficulties in a sufficient number of countries for exclusion to be authorised, the Office considered it preferable to include a provision patterned after that found in the Holidays with Pay Convention (Revised), 1970 (Article 2(2) and (3)), which would, in general terms, allow for the exclusion of limited categories of employed persons in respect of which special problems of a substantial nature arise. As indicated above, a country excluding a category of employed person under this provision would be required by paragraph 5 to justify such exclusion. Several governments propose amendments to this paragraph designed to specify the kind of problems which would warrant exclusion from the scope of the Convention. The Government of France proposes to specify that such exclusions may be made because of the particular conditions of employment of the workers concerned or the size or nature of the undertaking that employs them. The Office has not retained this proposal, since, unless qualified, it might permit extensive limitations to the scope of the instrument at the discretion of each member State; there is no indication that the matters referred to must be such as to cause special problems of a substantial nature. On the other hand, consideration might be given to reference to conditions of employment or the size or nature of the undertaking as factors to be examined in determining whether special problems of a substantial nature arise. The competent Conference Committee might wish to consider whether words such as "in the light of the particular conditions of employment of the workers concerned or the size or nature of the undertaking that employs them" should be added at the end of this paragraph." (emphasis added) It can be seen that the International Labour Office was proposing a form of words modifying the form of words which had been considered a year earlier. That form of words would allow for the exclusion of a limited number of categories of employees which included the police. This proposal was considered at the 68th session of the International Labour Conference and the following appears in the record of proceedings: "In reply to a request by the Employers' members for clarification, the representative of the Secretary-General indicated that a number of different categories of workers and undertakings had been referred to in Report V(2)(p. 18), with regard to which special problems of a substantial nature might arise; these included, for example, small undertakings, family undertakings, managerial employees, domestic employees, apprentices and part-time workers. It would be for each government that ratified the Convention to determine whether coverage of a particular category of workers presented special problems of a substantial kind under this paragraph." [emphasis added] The conference then adopted the amendments that had been proposed in the report. In the result the text that now appears in para 5 of Art 2 was adopted. It is clear that para 5 of Art 2 was intended to permit a member state to exclude from the application of the Convention, categories of workers which included the police. Section 170CC of the Act originally provided, when first enacted by the Industrial Relations Reform Act 1993: "The regulations may exclude specified employees from the operation of specified provisions of this division. An exclusion has effect only if: (a) it is permitted by paragraph 2 of Article 2 of the Termination of Employment Convention; and (b) it is limited in such a way as to provide adequate safeguards as mentioned in paragraph 3 of that Article." That section was amended by Act No 97 of 1994. The amendment commenced on 30 June 1994. In its amended form s 170CC provided: "The regulations may exclude specified employees from the operation of specified provisions of this Division. An exclusion has effect only if: (a) it is permitted by paragraph 2, 4 or 5 of Article 2 of the Termination of Employment Convention; and (b) in respect of an exclusion permitted by paragraph 2 of that Article - it is limited in such a way as to provide adequate safeguards as mentioned in paragraph 3 of that Article." Section 170CC in its original form did not contemplate the exclusion of employees, at least by means of a regulation, of the type referred to in para 5 of Art 2 of the Convention. However at the time Mr Ward lodged his application under s 170EA, s 170CC did provide a mechanism for excluding employees or workers of the class identified in para 5 of Art 2 of the Convention. In my opinion, at the time of its enactment in 1993, and certainly when the amendments were made to s 170CC in 1994, the legislative scheme adopted in Division 3 was intended to reflect the structure of the Convention. That is, Division 3 was intended to apply to all employees or workers in the broadest sense: see Victoria v The Commonwealth (1996) 187 CLR 416 at 520. The breadth of its application mirrored the breadth of the application of the Convention which related to all workers or employees but subject to the right to exclude some specified classes on the basis identified in the various paragraphs in Art 2. Both the Convention and Division 3 had the broadest of application subject to the operation of provisions permitting limits to be imposed on their application. Thus Division 3, in my opinion, was intended to apply, prima facie, to all employees or workers to whom the Convention would, prima facie, apply. This included members of police forces. It is to be noted that after the amendments were made to s 170CC in 1994, reg 30BB was made by Statutory Rule No 386 of 1994 which provided, at section 5: "(1) For the purposes of section 170CC of the Act, an employee who is appointed, employed or otherwise engaged under the Australian Federal Police Act 1979 is excluded from the operation of Subdivisions B, C, D, and E of Division 3 of Part VIA of the Act. (2) This regulation ceases to have effect on 1 January 1996." This regulation was amended in December 1995 to provide that it ceased to have effect on 1 January 1997. The use of the expression "appointed, employed or otherwise engaged" suggests the regulation was intended to apply, inter alia, to commissioned and non-commissioned officers appointed under Division 2 of the Australian Federal Police Act 1979. The regulation had the effect of excluding members of the Australian Federal Police from the operation of most of Division 3 but on the assumption that they were otherwise employees for the purposes of that Division. While it is generally not permissible to interpret a statute by reference to regulations made under it: see Hunter Resources Limited v Melville (1988) 164 CLR 234 at 244, per Mason CJ and Gaudron J, it is nonetheless permissible to look at regulations to ascertain what the statutory scheme is: see Brayson Motors Pty Ltd (in liq) v Commissioner of Taxation for the Commonwealth of Australia (1985) 156 CLR 651 at 652, per Mason J and Thorn EMI Pty Ltd v Federal Commissioner of Taxation (1987) 13 FCR 491 at 498, per Beaumont J. In Hanlon v The Law Society [1981] AC 124 at 193-194, Lord Lowry stated six propositions concerning the use that may be made of regulations in construing an Act. They are: