Supreme Court of Tasmania|1998-05-18|Before: Wright J, Hon J

The applicant has now applied to the Court to determine "the following questions" and to make "the following orders":

1 That upon a proper construction of the provisions of the Police Regulation Act 1898 the appointment of persons to the rank of inspector (whether or not a person is also appointed to a position) must only be carried out in accordance with section 49F of the Police Regulation Act 1898 and after the determination of, and in accordance with, any appeal lodged and determined pursuant to sections 49G and 49H of the Act;

2 A declaration that neither of the respondents has been lawfully appointed to the rank of inspector pursuant to the provisions of the Act;

2A An injunction, restraining each of the respondents from acting as inspectors of police pursuant to the provisions of the Act.;

3 That the respondent pay the costs of this application.

The applicant argues that notwithstanding far reaching amendments made to PtIVA of the Act in 1995, a valid appointment to the rank of inspector pursuant to the Act, s10, can only take place if the Minister's intention to make such an appointment is notified in the Gazette, thereby rendering such proposed appointment subject to the appeal processes specified in the Act, s49F and following. Mr McElwaine submitted that the right of his client to appeal would be enlivened by any appointment process whereby it was proposed to elevate any officer of lower rank to the rank of inspector. Mr McElwaine sought to rely on the second reading speech of the then Minister for Police, Dr Madill, when the bill for the 1995 amendments was introduced into the Tasmanian Parliament. Reliance upon such material is permitted by the Acts Interpretation Act 1931, s8B, but only in the limited circumstances provided for in s8B(1)(a)(b) or (c). These circumstances are much the same as those provided for in the Acts Interpretation Act 1901 (Cth), s15AB(1), in respect of which I made the following observations in Walker v FAI Insurance [1991] TASSC 86; [1991] Tas R 258 at 263:

"As I see it, s15AB(1) makes it plain that material such as the Law Reform Commission's Report can only be considered for the purpose of interpreting a provision of a Commonwealth Act in the sense of giving that provision a meaning which is not ambiguous, obscure, manifestly absurd or unreasonable."

I was there speaking about a Law Reform Commission Report. I am now dealing with a second reading speech. The principle however, is the same in each case. The Act, s8B, does not give carte blanche to the court to ferret about in extrinsic material to try and find out what Parliament intended.

In any event, never, in any case in which s8B has been relied upon, have I found the slightest help in resolving a question of construction of a statute from any Minister's second reading speech. This case is no exception. The Minister made two statements which were referred to by Mr McElwaine, they were:

"The provisions of the bill will ... provide for appeal only against promotions to a rank and clarify that appeals involving transfer within ranks are not appropriate"

"Some concerns have been expressed about the intended removal of the right of appeal against appointments to positions within ranks. However, the intention of the bill, and indeed the legislation as amended in 1950, is relevant only to the promotion from rank to rank. To allow appeal rights against the mere transfer of a police officer within rank is inappropriate and not in accordance with modern administrative practice."

It seems to me that the focus of the Minister's comments was upon the removal of the contentious right which had previously existed in the legislation, whereby proposed postings to particular stations or specific categories of employment within the service, could be challenged by officers of equal rank to that of the nominated candidate. The Minister was trying to make it clear that upon passage of the legislation a right of appeal in such cases would no longer exist. Insofar as the Minister's words may have suggested that the proposed legislation allowed unlimited rights of appeal in the event of any proposed promotion from one rank to another, those words can only help if they tend to resolve some ambiguity, obscurity, absurdity or unreasonableness in the legislation. For reasons which appear hereafter I do not think they have that effect.

Mr McElwaine submitted that the construction of the legislation, for which he was contending could also be supported by reliance upon the Acts Interpretation Act 1931, s8A, which provides:

"8A - (1) In the interpretation of a provision of an Act, an interpretation that promotes the purpose or object of the Act is to be preferred to an interpretation that does not promote the purpose or object.

(2) Subsection (1) applies whether or not the purpose or object is expressly stated in the Act."

There is no expressly stated "purpose or object" relevant to the issues presently before the Court which can be found either in the Act of 1898 or the amending Act, No 91 of 1995. In Mills v Meeking (1989 - [1990] HCA 6; 1990) 169 CLR 214, Dawson J, after dealing with the general principle that the will of Parliament is to be taken from the literal meaning of the words used, said at 235:

"However, the literal rule of construction, whatever the qualifications with which it is expressed, must give way to a statutory injunction to prefer a construction which would promote the purpose of an Act to one which would not, especially where that purpose is set out in the Act. Section 35 of the Interpretation of Legislation Act must, I think, mean that the purposes stated in Pt5 of the Road Safety Act are to be taken into account in construing the provisions of that Part, not only where those provisions on their face offer more than one construction, but also in determining whether more than one construction is open. The requirement that a court look to the purpose or object of the Act is thus more than an instruction to adopt the traditional mischief or purpose rule in preference to the literal rule of construction. The mischief or purpose rule required an ambiguity or inconsistency before a court could have regard to purpose: Miller v The Commonwealth (48); Wacal Developments Pty Ltd v Realty Developments Pty Ltd (49). The approach required by s35 needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done. However, if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman. Section 35 requires a court to construe an Act, not to rewrite it, in the light of its purposes."

His Honour was there dealing with the Interpretation of Legislation Act (Victoria), s35(a), which is broadly, in terms similar to the Acts Interpretation Act 1931, s8A(1). Applying this approach to both the principal and amending Acts now in question, I am quite unable to discern the purpose which Mr McElwaine advocates.

It is my opinion that to determine the present application it is necessary to consider the provisions of the Act, ss10, 49F, 49G, 49H, 49N, and 49O in particular. Those sections are in the following terms:

"10 - (1) The Governor may appoint such superintendents, inspectors, and other officers of police as he may think necessary.

(2) Subject to the regulations, an officer of police appointed under this section -

(a) shall be subject to the control of the Commissioner;

(b) shall be charged with the government and superintendence of such portion of the police force as the Commissioner directs, and may, if the Commissioner so determines, be assigned to a district.

49F - (1) If the Governor or Commissioner intends to appoint a police officer to a position of a prescribed rank, a notice of that intention is to be published in the Police Gazette.

(a) the Minister, if an intended appointment is to a rank referred to in section 10; or

49G - (1) A police officer who applies for a position of a prescribed rank may appeal to the Board against the intended appointment of another police officer to that position if the appointment would be a promotion for that other officer.

(b) lodged with the Board within 14 days of the publication of a notice under section 49F (1).

(3) The Board may require any document or record in support of the appeal to be lodged.

(4) Any document or record must be lodged with the Board within 7 days of lodging the notice of appeal.

(5) An appeal lapses if any document or record is not lodged within 7 days of lodging the notice of appeal.

(6) The Board is to notify the Minister or Commissioner if an appeal is not lodged or lapses.

49H - (1) An appeal in relation to an appointment to a position of a prescribed rank may be made on either or both of the following grounds: -

(a) that the appellant believes he or she is more entitled to appointment to the position than the person intended to be appointed on the basis of superior merit and good conduct;

(b) that there has been an irregularity in the selection process.

(2) For the purposes of an appeal, merit is the capacity of a person to perform the work associated with a particular position having regard to -

(a) the knowledge, skills, qualifications and experience of the person; and

(b) the person's potential for future development in that rank and position.

49N - (1) In determining an appeal under this Part, the Board may -

(b) in respect of an appeal under section 49H (1) (a), uphold the appeal and direct that the appellant be appointed to the position and, if applicable, the prescribed rank; or

(c) in respect of an appeal under section 49H (1) (b), uphold the appeal and direct that the Commissioner take any action, other than appointment of the appellant, the Board considers necessary.

(3) The Board is to notify its decision in writing to -

49O - If the Board upholds an appeal under section 49N, the appointment of the appellant to the position and, if applicable, the prescribed rank takes effect on the date of the notification of the Board's decision."

It should be noted that by Statutory Rule No 153 of 1995 a new reg4A was inserted after reg4 of the Police Regulations 1974 (SR 274 of 1974). Regulation 4A is as follows:

"4A For the purposes of PtIVA of the Act the following ranks are prescribed ranks:

My difficulty with s49F(1) is to interpret the phrase "appoint a police officer to a position of a prescribed rank". My initial very tentative view was that "a position of a prescribed rank" was simply an unnecessarily verbose way of saying "a prescribed rank", but it is apparent after examining the scheme which unfolds in the immediately following provisions of the Act, that such an interpretation is untenable.

Mr Ellis, counsel for the respondents, submitted that the phrase referred to any position in the Police Force which, as part of its description, included a reference to superintendent, inspector or sergeant. Thus an "Officer in Charge" at Burnie would not be such a position but a "Divisional Inspector" at Launceston would be. These simple illustrations immediately highlight the very limited and almost capricious effect of s49F, quite apart from the problem which remains of defining a "position". That term is not defined in the Act although there are several references to "position" in the sections from PtIVA of the Act which are reproduced above. Cox J, (as he then was) in Viney v Mazengarb [1991] TASSC 19; [1991] Tas R 180, had occasion to give meaning to the expression "higher position" as that term was used in the now repealed s49R of the Act. There, a right of appeal was conferred in circumstances where a police officer was to be appointed to a "higher rank or position". In dealing with the term "higher position" his Honour said:

"What was intended in my view was a right of appeal where the appointee could be readily seen to be moving to a position where, notwithstanding no promotion in rank, he was granted increased seniority and/or authority over his peers in rank."

Mr Ellis submitted that the right of appeal conferred by s49F is not one in respect of promotion as such, but is only given where it is intended to appoint an officer to a posting which would necessitate his promotion to a higher rank, if that new rank would be superintendent, inspector or sergeant. He agreed that this greatly circumscribed the scope for a legitimate appeal when compared with the previous legislation. He submitted that neither the Commissioner nor the Minister had acted improperly in the present case, as all they had done was to follow the provisions of the Act in its present form, which enable the appointment of (inter alia) inspectors under s10, without there being any right of appeal by other members of the Force to challenge such promotions. The only right of appeal which presently exists, it was submitted, is where the intended posting of an officer necessitates his promotion in order to qualify for that job.

The words "position" and "rank" are not used interchangeably in the statute. Although direct evidence is sparse it seems likely that every police officer in the Force fills a particular "position" designated according to the manning levels and requirements of particular regions or special functions within the Force. "Rank" refers to the hierarchical divisions of authority within the Force as a State institution. Cox J in Viney v Mazengarb (supra) said at 188:

"The police force is a hierarchical institution. Authority within in [sic] it is normally determined by rank and seniority within that rank. The Board is a promotions board. It is concerned with promotions, that is with movements upward in rank or position which give an increase in authority over others within that institution. Base pay under the Regulations is determined by rank and years of service within that rank. Allowances do not necessarily depend upon an increase in authority. Take home pay may increase by virtue of overtime worked or specialist qualifications or duties without any increase in authority. What is contemplated by a 'higher position' in such a force is, to my mind, an increase in authority within the force. Thus, where an officer is, without contemporaneous promotion, appointed to perform the duties normally performed by a member of higher rank than the rank held by him at the time of such appointment, he is appointed to a higher position. This could well be rare where the officer has the necessary qualifications for promotion, but no doubt there are some situations where a posting on establishment carries a rank for which the officer who is appointed, is not yet qualified."

As I see it, once it is appreciated that "rank" and "position" are different the only real problem with s49F arises from some inconsistency, which is to be found in the subsequent references to both "position" and "rank" within the Act, PtIVA.

The chief example of this is to be found in s49F(2)(a). Section 49F(2)(a), to be consistent with s49F(1), should speak not of "an intended appointment to a rank referred to in section 10", but of "an intended appointment to a position carrying a rank referred to in section 10". There is nothing in the Act or indeed the practice as it appears from the material before me which provides that an appointment to a "position" ipso facto elevates the designated officer to the appropriate "rank". Appointment to a "position" and promotion to a "rank" are two separate and mutually exclusive procedures.

Section 49G(1) reverts to the phrase used in s49F(1) - "a position of a prescribed rank", and follows that with a reference to "that position". This terminology is continued in s49H(1). The emphasis is again on "position" not rank per se and indeed s49H(2) provides probably the strongest support for the submissions advanced by the respondents by referring to "the work associated with a particular position".

Mr Ellis also drew attention to the terms of s49N where, in s49N(1)(b), it is clear that what is envisaged is not a promotion in rank as such but an appointment of an appellant to a particular position and "if applicable" the prescribed rank. This provision caters for the situation where a successful appellant already holds the relevant rank and therefore does not require a promotion. A similar phrase is used in s49O. Having regard to these provisions and the overall structure of PtIVA, I am left in little doubt that Mr Ellis' submissions should be accepted.

Mr McElwaine complained that the appeal provisions in the Act, PtIVA can be subverted or avoided by the Minister promoting an officer to one of the prescribed ranks and then, after a short and insignificant interval of time, appointing him to a particular position. In such circumstances s49G(1) would preclude any appeal by any aggrieved officer because the appointment to that position would not be "a promotion" for the other officer. I am forced to agree with this and I would also observe that such a situation seems less than fair. I would also acknowledge that such a situation could be seen as not fully in accord with what the Minister said in his second reading speech. However, as I have already said that speech does not assist me in the task at hand. I cannot substitute my own views for what has plainly been provided for in the statute. If the appeal scheme provided for in the Act, PtIVA, is to be expanded or modified, it can only be done by amending legislation.

Mr McElwaine submitted that I should infer that in the present case the Minister has attempted to subvert or outflank the appeal process by withdrawing the notices of intention which were published in May, and then proceeding to appoint both respondents a few months later in the manner described above. In my opinion that is not an appropriate or fair conclusion. I think the true position may well be that after the intended appointments had been advertised in May it was realised by the Minister's advisers that such a process was no longer called for having regard to the 1995 amendments. The terms of the Deputy Commissioner's letter of 1 July 1997 are a little puzzling, but advice to the Minister to proceed in the manner actually adopted thereafter, may well have been given after that date. It may have been helpful to all concerned if an explanatory letter had been sent to the appellant and other prospective appellants.

Police Regulation Act 1898(Tas)

Interpretation Act 1931

R J BESWICK, Minister Administering the Police Regulation Act 1898

Groves, Patrick John v Bonde, Steven Bruce & Frame, Glen Ronald [1998] TASSC 57 (18 May 1998)

Mills v Meeking (1989 - [1990] HCA 6; 1990) 169 CLR 214; Viney v Mazengarb [1991] TASSC 19; [1991] Tas R 180, considered.

Walker v FAI Insurance [1991] TASSC 86; [1991] Tas R 258, applied.

Groves, Patrick John v Bonde, Steven Bruce & Frame, Glen Ronald [1998] TASSC 57

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Groves, Patrick John v Bonde, Steven Bruce & Frame, Glen Ronald [1998] TASSC 57 (18 May 1998)