Kelly v Commissioner of the Department of Corrective Services & Anor [2001] NSWCA 148 | Case summary

Kelly v Commissioner of the Department of Corrective Services & Anor [2001] NSWCA 148 | Case summary | Zoe

Mr M L D Einfeld QC/Mr A A Hatcher (Appellant) COUNSEL : Ms T J Anderson (1st Respondent) Submitting appearance (2nd Respondent) Jones Staff & Co (Appellant) SOLICITORS : I V Knight (1st Respondent) GREAT (2nd Respondent) CATCHWORDS : Administrative Law - Jurisdiction of Government and Related Employees Appeals Tribunal - Whether Tribunal lacked jurisdiction to review decision to recommend dismissal of officer to Governor - Whether Tribunal lacked jurisdiction to review decision to withhold salary from suspended officer - Existence of jurisdictional fact - Whether relevant decisions were "disciplinary" in nature so as to invoke Tribunal's jurisdiction - Government and Related Employees Appeals Tribunal Act 1980 (NSW), ss 23(1)(e) and 23(1)(f). - Employment Law - Whether Crown's prerogative right to dismiss public employees at pleasure can be fettered by an appeal to the Government and Related Employees Appeals Tribunal - Where appeal to Tribunal was against decision to recommend dismissal to Governor rather than against dismissal decision itself - Government and Related Employees Appeals Tribunal Act 1980 (NSW), ss 23(1)(e), 23(1)(f) and 37. - Statutory Construction - Whether sections of Government and Related Employees Appeal Tribunal Act should be read down so as to detract from the Crown's prerogative right to dismiss at pleasure - Whether Parliament intended Tribunal to hear appeals against decisions to recommend to the Governor that an officer be dismissed subject to the Crown's right to dismiss at pleasure - Government and Related Employees Appeal Tribunal Act 1980 (NSW), ss 23(1), 24(1) and 37 - and Public Sector Management Act 1988 (NSW), s 54. D Civil Service Act 1884 Crown Employees Appeal Board Act 1944 Crown Proceedings Act 1988 Government and Related Employees Appeal Tribunal Act 1980 LEGISLATION CITED : Public Sector Management Act 1988 Public Service Act 1895 Public Service Act 1902 Public Service Act 1979 Supreme Court Act 1970 Australian Communist Party v The Commonwealth (1951) 83 CLR 1 Baker v Campbell (1983) 153 CLR 52 Bropho v State of Western Australia (1990) 171 CLR 1 Council of Civil Service Trade Unions v Minister for the Civil Service [1985] AC 374 Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648 Dunn v R [1896] 1 QB 116 Ex parte Wurth; re Craig (1954) 55 SR (NSW) 47 FAI Insurances Ltd v Winneke (1982) 151 CLR 342 Gould v Stuart [1896] AC 575 John v Rees [1970] Ch 345 Kaye v Attorney-General for Tasmania (1956) 94 CLR 193 CASES CITED: Malloch v Aberdeen Corporation [1971] 2 All ER 1278 Managing Director, New South Wales Technical and Further Education Commission v Fines (1993) 32 NSWLR 385 Minister for Arts Heritage and Environment v Peko-Wallsend Ltd (1987) 75 ALR 218 Morrison v Abernethy School Board (1876) 3 R 945 Power v R (1873) 4 AJR 141 R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170 Ridge v Baldwin [1964] AC 40 Ryder v Foley (1906) 4 CLR 422 Shenton v Smith [1895] AC 229 Smith v Allan, Secretary, Treasury of New South Wales (1993) 31 NSWLR 52 Sorby v The Commonwealth (1983) 152 CLR 281 In re Tufnell (1876) 3 Ch D 164 Yates Property Corporation Pty Ltd v Boland (1997) 145 ALR 169 DECISION : See para 96

1 GILES JA: I have had the advantage of reading in draft the reasons of Heydon JA. I gratefully adopt his Honour's recounting of the facts and statutory provisions. With the following additional remarks, I agree with his Honour's reasons. 2 The appellant's appeal to the Tribunal was as a matter of language an appeal against a decision of a kind referred to in s 23(1) of the GREAT Act, being an appeal against a decision by his employer to make a recommendation to dismiss him. 3 The question, to my mind, is one of construction of s 23(1). A recommendation by the employer is not required, as a matter of law, for the exercise of the Crown's right to dismiss at pleasure. The Crown's exercise of that right, by the Governor, would by convention be on the advice of the responsible Minister. But that is not the same as exercise of the right on the recommendation of the relevant Departmental Head, who is the employer for the purposes of the GREAT Act. If the employee can be dismissed, in the exercise of the Crown's right to dismiss at pleasure, without an antecedent recommendation, what is the point of an entitlement to appeal against a recommendation by the employer that the employee be dismissed? Does s 23(1) really encompass a decision to make a recommendation to do what para (f) states, dismiss an employee, or is it properly to be construed so that the decision to make a recommendation to which it refers is addressed only to those paragraphs for which a recommendation by the employer is required? 4 On one view Handley JA so construed s 23(1) in Director-General of the Department of Corrective Service v Mitchelson (1992) 26 NSWLR 648, although for the reasons given by Heydon JA I do not think the question arose. The analysis of the legislation undertaken by Heydon JA demonstrates, to my mind, that it is not the correct construction. There has been and is such incomplete correspondence between an employee's entitlement to appeal and the provisions for recommendation to the Governor that I do not think it can be concluded that the decision to make a recommendation in s 23(1) is confined in the way I have postulated. Intentionally or otherwise, the legislature has given an entitlement to appeal against any decision to make a recommendation to do what any one of the paragraphs states. 5 Here the employer did make a recommendation to the Governor, whether or not it was necessary for that to be done. The recommendation was put before the Governor with the "recommendation" of the responsible Minister that it be "approved". There followed the appellant's dismissal. The exercise was disciplinary. The Tribunal had jurisdiction to entertain the appeal from the decision to make the recommendation. 6 I agree with the orders proposed by Heydon JA. 7 HEYDON JA: Background This is an appeal against a decision of the Government and Related Employees Appeal Tribunal ("the Tribunal") dated 10 February 2000. The decision of the Tribunal was to disallow an appeal to it brought by the present appellant for want of jurisdiction. The appeal comes to this Court by reason of the combined operation of s 54(b) of the Government and Related Employees Appeal Tribunal Act 1980 ("the GREAT Act") and s 48(1)(a)(iii) and (2)(f) of the Supreme Court Act 1970. The appeal is limited to a question of law. The first respondent took no point that there was no question of law, and there plainly was. The Tribunal itself, though named as a party, filed an appearance submitting to any order except as to costs. 8 The appellant was appointed to the office of Prison Officer within the Department of Corrective Services with effect from 21 March 1988. In or about 1994 the appellant became a Senior Prison Officer. 9 On 31 March, 20 April and 29 April 1999 the appellant gave evidence before the Independent Commission Against Corruption. 10 On 12 May 1999 the Senior Assistant Commissioner, Inmate and Custodial Services, of the Department of Corrective Services sent a letter bearing that date to the appellant. It read: "You are hereby notified that you are charged with having committed two breaches of discipline within the meaning of section 66(1)(b) of the Public Sector Management Act 1988, namely, that you did engage in misconduct. The particulars of the first breach are that in or about April and May 1998 you did provide Dapto Police with information which you knew, or ought reasonably to have known, was false or misleading in a material particular in relation to damage caused to Departmental property at Wollongong Periodic Detention Centre by detainee Aaron Ison on 4 April 1998. The particulars of the second breach are that on or about 26 July 1998 you did erase an entry in an official document, to wit, the final paragraph of an internal memorandum by First Class Correctional Officer McIlvaney dated 26 July 1998, in contravention of clause 33(1)(b) of the Prisons (Administration) Regulation 1995. A preliminary inquiry will be instituted into these matters in due course. You are also informed that you are hereby suspended from duty pursuant to section 77(2)(a) of the Public Sector Management Act 1988. I call upon you to show cause to me in writing within 14 days of your receipt of this letter as to why salary payable to you during the period you are suspended from duty should not be withheld pursuant to section 77(3) of the Act."

The letter was presumably written on the assumption that the signatory was "the senior officer". Section 77(3) provides: "Any salary payable to a person as an officer while the person is suspended from duty under this section shall (if the appropriate Department Head so directs) be withheld." 11 The request to show cause in the letter of 12 May 1999 was answered by a letter of 20 May 1999 from an officer of the Public Service Association of New South Wales drawing attention to various aspects of the appellant's personal circumstances. 12 By letter dated 11 October 1999 the Commissioner of the Department of Corrective Services informed the appellant: "It has come to my attention that on 31 March 1999, 20 April 1999 and 29 April 1999 respectively you gave evidence before the Independent Commission Against Corruption and that in the course of that evidence you made admissions to the effect that: 1. In about April/May 1998 you knowingly gave Dapto Police misleading information regarding the cost of repairs for damage to Departmental property caused by a periodic detainee. 2. On or about 26 July 1998 you erased the last paragraph in a report dated 26/7/98 and authored by an officer regarding a periodic detainee being late for muster. 3. In or about April 1998 you failed to report to management the complaint of a periodic detainee dated 5/4/98 that two officers stationed at Wollongong Periodic Detention Centre spoke to him in an inappropriate manner and you failed to property investigate the complaint. 4. In or about April 1998 you failed to properly investigate the complaint by a periodic detainee dated 5/4/98 against the same two officers referred to in paragraph [3] above. 5. In or about December 1997 you forged the signature of a person on an application dated 21 December 1997 seeking approval that Moruya Jockey Club be approved as a work-site to receive Periodic Detainees. 6. In or about November 1997 you failed to properly investigate information which came to your attention indicating that work scheduled to be performed by detainees at Unanderra Velodrome had not in fact been done. 7. You failed to properly investigate information which came to your attention that work was performed by detainees at an unauthorised location, namely a nature reserve near the residence of an officer stationed at Wollongong Periodic Detention Centre. In view of your evidence I am giving consideration to recommending to the Governor that you should be dismissed from your employment as a correctional officer pursuant to the Crown's right to dismiss at pleasure. Consequently, I hereby invite you, if you wish, to show cause as to why such a recommendation should not be made to the Governor. Further, you are informed that I have decided that your suspension from duty which was decided upon by the Senior Assistant Commissioner on 12 May 1999 will continue until further notice. In deciding whether salary payable to you during the period you continue to be suspended from duty should be withheld pursuant to section 77(3) of the Public Sector Management Act 1988 I intend to take into account the submission made on your behalf by Mr John Scullion, PSA, on 20 May 1999 and any other material which you wish to submit on the matter. If you wish to submit any such additional material you should direct it to me in writing so as to arrive within 10 days of your receipt of this letter." 13 By letter dated 28 October 1999, an officer of the Public Service Association of New South Wales informed the Commissioner as follows: "The Association asks you to reconsider your decision to reject Officer Kelly's resignation from the department. Officer Kelly advises the Association that the uncertainty about his future has had a disastrous effect on his wife's health who is no longer able to function without the aid of medication. She is also contemplating giving up work. Additionally, the Association submits that Officer Kelly should remain on pay, while on suspension, until a final decision has been made concerning his service with the department."

As at 2 November 1999 there was no record of the receipt of this letter by the Commissioner, but the first respondent did not dispute that it had been sent. 14 By letter dated 1 November 1999, which was written in ignorance of the 28 October 1999 letter, the Acting Commissioner of the Department of Corrective Services informed the appellant as follows (Blue 10): "I refer to the Notice to Show Cause and Continuation of Suspension dated 11 October 1999. I note that you were served the aforementioned document on 18 October 1999 and had 10 days from that date to make submissions showing cause as to why the recommendation to dismiss you should not be made nor why salary payable to you should not be withheld during your suspension period. The 10 days have now expired and I have not received any submissions from you. You are hereby informed that I, R G Woodham, Acting Commissioner of Corrective Service, have decided to recommend to the Governor of New South Wales that you be dismissed from the Public Service pursuant to the Crown's right to dismiss at pleasure. You remain suspended from duty. You are further informed that I have decided to withhold salary payable to you during your suspension from duty pursuant to section 77(3) of the Public Sector Management Act 1988." 15 By letter of 3 November 1999 the Acting Commissioner informed the appellant as follows: "I refer to the Notice of Decision to recommend Dismissal and withholding of salary during period of Suspension dated 1 November 1999. It has now been suggested by your industrial representatives that representations were made on your behalf. I have this date received a copy of those representations. I have therefore decided to withdraw my decision of 1 November 1999. Having considered the representations made on your behalf my decision with respect to the matter is as follows: You are hereby informed that I, R G Woodham, Acting Commissioner of Corrective Services, have decided to recommend to the Governor of New South Wales that you be dismissed from the Public Service pursuant to the Crown's right to dismiss at pleasure. You remain suspended from duty. You are further informed that I have decided to withhold salary payable to you during your suspension from duty pursuant to section 77(3) of the Public Sector Management Act 1988." 16 On 17 November 1999 the appellant lodged a Notice of Appeal to the Tribunal dated 5 November 1999 against the decision communicated on 3 November 1999. The Notice of Appeal described the "Disciplinary decision appealed against" as being "Notice of decision to recommend dismissal and withholding of salary during suspension". 17 On 25 November 1999 the Executive Council approved the recommendation to dismiss the appellant, and this decision was published in the Gazette on 10 December 1999. The Minute Paper for the Executive Council had the following on the right hand side of the page: "I, Leo Keliher, Commissioner of Corrective Services, hereby recommend, based on inquiry and report, that the services of Leslie Kelly be dispensed with on and from the date of approval pursuant to s 54 of the Public Sector Management Act 1988."

There then appeared the signature of Mr Bob Debus, who, amongst other Ministries, held the office of Minister for Corrective Services. On the right hand side of the page appeared the signatures of the clerk of the Council and the Governor. 18 On 10 February 2000 oral and written argument was presented to the Tribunal in relation to its jurisdiction, but not in relation to the merits of the appeal. The first respondent took two points before the Tribunal. 19 First, the first respondent contended that the Tribunal lacked jurisdiction to hear the appellant's appeal against the Acting Commissioner's decision to recommend to the Governor that he be dismissed. The Tribunal upheld this objection (Red 17P-18V): "The Tribunal is satisfied by the material presented that there is copious and consistent legal authority which establishes that the prerogative of the Crown to dismiss the appellant at pleasure was available in this case despite the disciplinary scheme established by the PSM Act and the right of appeal conferred by the GREAT Act against certain disciplinary decisions. S.54 of the PSM Act makes plain that the right of the Crown to dispense with the appellant's services is not affected by those other provisions of the Act which deal with disciplinary procedures. Mr Scullion understandably expressed concern on behalf of the appellant and other officers of the New South Wales Public Service that endorsement by this Tribunal of the respondent's actions in this case could render the provisions of the GREAT Act nugatory so far as the dismissal of public servants is concerned. The Tribunal is satisfied, however, from a review of the authorities relied upon by Mr Yetzotis, that this has been the state of the law for many years, certainly since long before the enactment of the GREAT Act in 1980. In 1988, Parliament, by enacting s.54 of the PSM Act, expressly preserved the status quo thereby ensuring that the Crown's right to dispense with an officer's services remained unfettered. The facts of the case establish that the appellant's services were dispensed with pursuant to the right of the Crown to do so. The appellant was not dismissed by reason of a decision, or a decision to make a recommendation of a kind referred to in s.23(1)(f) of the GREAT Act. The statutory right of appeal to this Tribunal only becomes available when a decision, or a decision to make a recommendation, of a kind set forth in s.23(1) of the GREAT Act is taken. The Tribunal finds that the decision to dispense with the appellant's services does not give rise to a right of appeal pursuant to the provisions of the GREAT Act. The Tribunal holds, therefore, that it has no jurisdiction to hear and determine this appeal so far as it relates to a claimed 'dismissal'."

The appellant's complaints about this part of the Tribunal's reasoning constitute the first part of the appeal to this Court. 20 Secondly, the first respondent contended before the Tribunal that the appeal against the withholding of the appellant's salary during his suspension was beyond jurisdiction on the ground that the suspension did not operate as a punishment. The Tribunal upheld that objection also (Red 18Y-20J): "The Tribunal is well satisfied that the decision of suspension of the appellant was not a decision of a kind specified in s.23(1)(e) of the GREAT Act. The suspension was not imposed as a punishment in circumstances where the appellant had been held to be guilty of misconduct or contravention of any law or any rule or direction of the respondent. The Tribunal has consistently held that suspensions imposed on employees while disciplinary action is pending do not fall within the ambit of suspensions imposed as a punishment which give rise to a right of appeal to this Tribunal pursuant to s.23(1)(e) of the GREAT Act. Previous decisions of the Tribunal referred to by Mr Yetzotis in argument are some examples. The New South Wales Court of Appeal considered the provisions of s.23(1)(3) of the GREAT Act in Managing Director, New South Wales Technical and Further Education Commission v Fines and Anor (1993) 32 NSWLR 385. At 393 Handley JA said: 'The Tribunal has jurisdiction to review a decision to suspend an employee where the suspension is imposed as a punishment following a finding that the employee was guilty of misconduct (section 23(1)(e) of the GREAT Act). A decision to suspend until a charge of breach of discipline has been dealt with cannot be reviewed by the Tribunal. However, where on appeal the Tribunal acquits the appellant of the charge then remuneration withheld during the suspension is not forfeited under s87(2) of the 1980 Act. If on the other hand any finding of breach of discipline is upheld, such remuneration is forfeited unless, in the case of the Commission staff, the Managing Director otherwise directs.' His Honour also commented on the provisions of s.23(1)(e) in Mitchelson , supra, when he said at 663: 'The express restriction in s.23(1)(e) to suspensions by way of punishment is then explained by Parliament's wish to prevent immediate appeals to the Tribunal from interim suspensions while disciplinary action is pending. Such suspensions are imposed for disciplinary reasons, but were not intended to be appealable at that stage. If in the result no punishment is later imposed the interim suspension would be terminated, and no appeal would be necessary. So understood the express restriction in s23(1)(e) does not support the respondent's construction of s23(1)(d). If Parliament did intend s23(1)(e) to be limited in this way the draftsman could not rely upon the Division heading and context to achieve the desired limitation and some express provision was necessary. Hence the words 'as a punishment' were added.' The Tribunal considers it clear that the suspension which the appellant seeks to challenge here is one of an interim kind imposed pending the outcome of proposed disciplinary action. The Tribunal holds that it [has] no jurisdiction to hear and determine an appeal against such a decision of suspension."

The appellant's complaints about this part of the Tribunal's reasoning constitute the second part of his appeal to this Court. 21 Apart from the challenge to the Tribunal's decision made in the Notice of Appeal, there is also listed before this Court an Amended Summons challenging the approval by the Executive Council on 25 November 1999 of the recommendation to dismiss the appellant. Though the Notice of Appeal named the Commissioner of the Department of Corrective Services and the Tribunal as parties, the Amended Summons named the Commissioner as second opponent. It also named the State of New South Wales as first opponent: see Crown Proceedings Act 1988 s5. The Governor, who had been named as a party to the Summons, was correctly removed: FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 351, 372, 388, 405 and 419-20. The Minister for Corrective Services, who had also been named as a party to the Summons, was correctly removed as well: FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 351, 372, 388 and 419; cf 405. The Summons claims a declaration "that the Order of the Governor in Council dispensing with the service of the Claimant published in the Government Gazette on 10 December, 1999 was contrary to s.26(1) of the GREAT Act and consequently invalid". Arguably that is the only relief which the Summons need have claimed, since declaratory relief is the form of relief traditionally granted against the Crown: FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 372. However, the Summons also claims an order in the nature of mandamus requiring the Commissioner to treat the Claimant as an employee in the Department of Corrective Services holding the position of Senior Correctional Officer until his appeal against the decision to recommend his dismissal is heard on its merits by the Tribunal. In some circumstances an order of that kind would not be necessary, but in view of the substantive opposition of the Opponents to the Amended Summons, coupled with their lack of objection to the specific order in the event that the grounds of their substantive opposition were rejected, there is no reason why the order should not be made if the Claimant's arguments justify it.

Subsections (3)-(6) of s 75 provide: "(3) If: (a) the appropriate Department Head, in the exercise of powers conferred by this section, decides to direct an officer to resign, or be allowed to resign, from the Public Service within a period specified in the direction, and (b) the officer does not resign within that period, the Department Head may decide to dismiss the officer from the Public Service. (4) A decision of a Department Head under subsection (1) or (3) may be implemented at any time, but a decision of a Department Head under subsection (1)(d) or (e) or subsection (3) to dismiss an officer form the Public Service or to annul an officer's appointment must not be implemented without the approval of the Governor. (5) Subsection (4) is subject to Part 3 of the Government and Related Employees Appeal Tribunal Act 1980 . (6) If a Department Head decides to dismiss an officer from the Public Service in accordance with subsection (1)(d) or (3), the decision shall be treated as a decision of the kind referred to in section 23(1)(f) of the Government and Related Employees Appeal Tribunal Act 1980 even though the decision has not been approved by the Governor." Submissions On Decision to Recommend Dismissal: The Appellant's Arguments 24 The appellant's arguments on the first part of the appeal fell into six groups. He put them substantially, though not precisely, in accordance with the following structure. 25 First, he submitted that the Tribunal addressed the wrong question. The decision against which the appeal to the Tribunal was brought was not a decision to dismiss the appellant. Rather it was the Acting Commissioner's decision, communicated by the letter of 3 November 1999. 26 Secondly, the appellant pointed out that the 3 November 1999 letter said: "I … have decided to recommend to the Governor … that you be dismissed". Section 24(1) permits an employee to "appeal to the Tribunal against a decision of his or her employer, being a decision of a kind referred to in section 23(1)". One of the decisions referred to in s 23(1) is a "decision to make a recommendation … to dismiss the employee". The decision to make the recommendation communicated in the 3 November 1999 letter, the appellant submitted, was plainly within that language. 27 Thirdly, the appellant submitted that so far as it is necessary that the decision appealed from be of a disciplinary nature, as is suggested by Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648, especially at 656A-C, 663A and 664D-665A, it was. On 12 May 1999 the appellant was notified that he was charged with two breaches of discipline, and that he was suspended. The letter of 11 October 1999 informed the appellant that he had made seven admissions to the Independent Commission Against Corruption and invited him to show cause why the Commissioner should not recommend dismissal to the Governor. The first admission appeared to have the same subject-matter as the first charge, and the second admission appeared to have the same subject-matter as the second charge. The 11 October 1999 letter also informed the appellant that the suspension from duty notified on 12 May 1999 would continue. After representations made on the appellant's behalf had been considered, the decision complained of was made. The appellant submitted that: "The inevitable conclusion is that the decision to recommend dismissal was a direct disciplinary response to the admissions of misconduct said to have been made by the Appellant to the ICAC" (written submissions paragraph 9.4). 28 Fourthly, the appellant submitted that no issue arose as to whether there was any collision between, on the one hand, the existence of an appeal under s 24(1) against a s 23(1) decision to recommend a dismissal and, on the other hand, the Crown's common law prerogative right to dismiss at pleasure. This was because the appeal to the Tribunal was not brought from the Governor's decision to dismiss on 25 November 1999, but from the Acting Commissioner's decision to recommend dismissal communicated on 3 November 1999. 29 Fifthly, the appellant submitted that if his appeal against the Acting Commissioner's decision to recommend dismissal involved an interference with the Crown's common law prerogative right to dismiss at pleasure, the interference was lawful as being authorised by ss23(1) and 24(1). In writing he submitted: "10.1 It is well established that the Crown's prerogative to dismiss its employees at pleasure can be restricted or abolished by statute (see, for example, Gould v Stewart [1896] AC 575; Director-General of Education v Suttling (1987) 162 CLR 427 at 442 per Brennan J, Mason ACJ and Deane J assenting; Bennett v Commonwealth (1980) 44 FLR 446; Coutts v The Commonwealth (1985) 157 CLR 91 at 103 per Wilson J; Barratt v Howard (1999) 165 ALR 605 at 608-9. 10.2 Not every statutory right of appeal from a dismissal of a public sector employee will interfere with the exercise of the Crown prerogative. However, an appeal from a decision to recommend dismissal, as here - if it involves an interference with the Crown prerogative - is to that extent expressly authorised by the statute. The prerogative is modified accordingly. 10.3 The decisions upon which the Tribunal relied generally concerned whether, on their proper construction, specific statutory provisions had the effect of restricting or ousting the common law Crown prerogative. They are not authority that the provisions of the GREAT Act are incapable of ousting the prerogative. For example, in Fletcher v Nott (1938) 60 CLR 55 and Kaye v Attorney General for Tasmania (1956) 94 CLR 193, the statutory appeal provisions relied upon only allowed for appeals by police officers from decisions of the Commissioner of Police, not from the Governor in Council. Those decisions are distinguishable because the GREAT Act allows in terms for appeals from decisions recommending dismissal by 'employers', a term defined in s.4 to include the Commissioner." 30 Sixthly, the appellant submitted that the provisions in the PSM Act relied on by the Tribunal and by the first respondent did not have the effect contended for. In particular, s 54 of the PSM Act did not prevent s 24(1) of the GREAT Act from modifying the common law Crown prerogative right, for three reasons. First, the opening words of s 24(1) of the GREAT Act, enacted in 1980, were "Notwithstanding anything contained in any other Act"; those words applied to other Acts enacted after 1980 as well as before; and they meant that s 24(1) had whatever effect it had notwithstanding s 54. Secondly, s 54 in terms did not apply to the GREAT Act; it provided that the Crown's common law right as it existed immediately before the PSM Act was enacted in 1988 was not restricted or abrogated "by any of the provisions of this Act", i.e. the PSM Act as distinct from the GREAT Act. Thirdly, the preservation of the prerogative effected by s 54 effected only a preservation of the right "as it existed immediately before the commencement of" s 54 in 1988, and by that date the GREAT Act had been in force for eight years.

Submissions On Decision To Recommend Dismissal: The First Respondent's Arguments 31 The first respondent's primary submission was that no appeal lay because the Act "has no application with respect to the dismissal of a public servant pursuant to the common law right to dismiss at pleasure" (first respondent's written submissions paragraph 8). The first respondent submitted (written submissions paragraph 1-7): "1. Subsequent to the decision in Gould v Stuart (1896) AC 575 the common law right of the Crown to dismiss a public servant at pleasure was restored (section 65 of the Public Service Act 1902 ). Subsequent statutes have preserved the right (section 118 of the Public Service Act 1979 and section 54 of the Public Sector Management Act 1988 ). 2. The Government and Related Employees Appeal Tribunal Act 1980 ('the GREAT Act') was enacted shortly after the Public Service Act 1979 and well before the Public Sector Management Act 1988 ('the PSM Act'). The re-enactment of a provision in the PSM Act preserving the common law right is a clear indication of a legislative purpose that the provisions of the GREAT Act have no application in the case of a dismissal at pleasure. 3. Neither a dismissal at pleasure nor the procedural steps leading up to it are open to review by the courts: Coutts v The Commonwealth (1984-1985) 157 CLR 91 per Wilson J at 104.9. It is immaterial whether any cause is assigned to the exercise of the power, it may be exercised at any time for good or bad reason or for none: per Wilson J at 104.4. The common law right to dismiss at pleasure is clearly distinguishable from a statutory power to dismiss like that considered in Barrett v Howard (1999) 165 ALR 605. 4. It may be though that a power to dismiss public servants at pleasure is an exceptional, perhaps anachronistic, power, but the Legislature has seen fit to leave that power undiminished: compare Coutts v The Commonwealth (1984-1985) 157 CLR 91 per Brennan J (as he then was) at page 105.9 to 106.1. 5. The PSM Act draws a clear distinction between the Crown's right to dismiss at pleasure and the power of dismissal conferred upon Department Heads by subsections (1)(d) and (3) of section 75 of that Act. In this regard, section 75(5) makes it clear that an appeal to the Government and Related Employees Appeal Tribunal ('the Tribunal') is available in the case of a dismissal pursuant to subsections (1)(d) and (3) of that section. The lack of any corresponding provision in relation to the exercise of the common law right makes it equally clear that no such right of appeal is available in cases where the common law right is exercised. The provisions of sections 23(1) and 24 of the GREAT Act cannot be construed without regard to the provisions of the PSM Act: Butler v Attorney-General for the State of Victoria (1961) 106 CLR 269 per Fullagar J at 276.5. The words 'Notwithstanding anything contained in any other Act' in section 24 of the GREAT Act can have no application to an act passed some eight years later. The GREAT Act is not included in the Acts referred to in section 95 of the PSM Act: compare Re Government Cleaning Services (Privatisation) Award (1994) 54 IR 112 at 123.1 to 124.9 and Public Employment Industrial Relations Authority v Health and Research Employees' Association (NSW) (1994) 54 IR 162 at 182.2 to 183.2. … 7. The suggestion that the Appellant's appeal to the Tribunal should be construed as an appeal against the Acting Commissioner's recommendation (paragraph 7.1 of the Appellant's submissions) should be rejected. In the first place, it seeks to deal with a procedural step leading up to the dismissal at pleasure. Secondly, it is inconsistent with the legislative purpose disclosed by a reading of the PSM Act as a whole. Thirdly, it is an approach by which the Appellant seeks to do indirectly that which he cannot do directly." 32 The first respondent also took issue with the appellant's contention that the decision to recommend dismissal had a disciplinary character. It was submitted that it lacked that character, and for that reason fell outside s 23(1) and s 24(1). It was conceded in writing that a disciplinary reason "prompted the Acting Commissioner's recommendation". It was said orally that there was no intention to dispute the view that a perception that the appellant had misconducted himself "may have motivated the Acting Commissioner". It was also said that initially the Commissioner had approached the problem as a disciplinary matter. But it was submitted that this approach was not taken to finality. The Commissioner had not dealt with the alleged breach of discipline "in accordance with the regulations" as required by s 75(1)(a) of the PSM Act, and had not, pursuant to that process, found a breach as required by s 75(1)(b). For the disciplinary requirement identified by the Court of Appeal in Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648 to be satisfied, the Acting Commissioner's decision to recommend dismissal had to be based on a conclusion that the appellant had misconducted himself, as distinct from resting on a mere allegation that he had: the Acting Commissioner had abandoned his journey down the disciplinary path at a point before Director-General of the Department of Corrective Services v Mitchelson was satisfied.

The Tribunal's Misapprehension Of The Issue Before It 34 The appellant's first submission, that the Tribunal approached its task as though it was considering an appeal against dismissal, when in truth the appeal was against a decision to recommend dismissal, is correct. While the structure of both parties' arguments as recorded by the Tribunal suggests that they misled the Tribunal into going down that path, the Tribunal's characterisation of the appellant's arguments to it was not correct, and the same is true of its characterisation of the first respondent's arguments. In truth no appeal lies against dismissal effected by the Governor in Council under s 24(1). This is not for the reasons given by the Tribunal, but because the Governor in Council is not an "employer" as defined in s 4(1) of the GREAT Act. For the appellant the significance of success in his first submission was said to be that it avoided a collision between s 24(1) and the Crown's common law prerogative right to dismiss. That argument is not sound. If s 24(1) has the effect for which the appellant contended, it is capable of radically altering the practical operation of the common law prerogative. On one view of the common law prerogative, it permits the Crown to dismiss an employee without prior notice to the employee, without identifying any cause for the dismissal, without there being in fact any cause for the dismissal, without hearing any representations which the employee might wish to make opposing dismissal, and without there being any right of appeal against the dismissal. If s 24(1) confers a right of appeal against a decision to recommend dismissal, so long as the employee learns of that decision to recommend dismissal before the dismissal has been effected, the employee can hold up the dismissal by appealing in such a fashion as to bring into play the statutory stay effected by s 26 (putting on one side for the moment an argument against that construction of s 26 advanced by the first respondent). In considering whether general statutory words have the effect of altering pre-existing common law rights, the extent of the impact on those rights effected by the supposed statutory change can be relevant. The wider the impact, arguably the clearer the statutory words must be: Sorby v The Commonwealth (1983) 152 CLR 281 at 309-310; Baker v Campbell (1983) 153 CLR 52 at 96-97; Bropho v State of Western Australia (1990) 171 CLR 1 at 17-18; Yates Property Corporation Pty Ltd v Boland (1997) 145 ALR 169 at 215-216. And if it is contended that the Crown is bound by an enactment, it must be shown distinctly that it is, even if it is not necessary to point to express words or a necessary implication: Bropho v State of Western Australia (1990) 171 CLR 1 at 14-24; cf Kaye v Attorney-General for Tasmania (1956) 94 CLR 193 at 204. The relevant impact to be considered here is not merely the direct impact (for example, a statute providing that no employee could be dismissed except for just cause). The relevant impact could include the impact which appellate processes in relation to a decision anterior to dismissal, such as a decision to recommend dismissal, have on the practical operation of the contemplated decision to dismiss, including the speed with which it can take place.

What Was the Relevant Recommendation? 35 There is one potential difficulty in the appellant's position. His position was that he had appealed against a decision to make a recommendation to dismiss, and that that decision was notified on 3 November 1999. The form of dismissal contemplated was a dismissal by the Crown acting through the Governor in Council pursuant to the Crown's right to dismiss at pleasure. The Notice of 3 November 1999 said that the Acting Commissioner had "decided to recommend to the Governor" that the appellant be dismissed. That form of words was used also in the 11 October 1999 and 1 November 1999 documents. As the appellant argued the case, this fell within s 23(1)(f), because the Acting Commissioner was the employer, and he had made a decision to recommend the dismissal of the employee. Yet the Governor had no obligation to act on a recommendation from the Acting Commissioner. His only relevant constitutional obligation was to act on Ministerial advice, not departmental advice. 36 One solution to the problem would be to treat the material decision to make a recommendation not being recorded in the 3 November 1999 Notice, but rather as being that recorded in the Minute Paper for the Executive Council as having been made. The Minister's recommendation in the Minute Paper that the Commissioner's recommendation be accepted could thus be regarded as the necessary Ministerial advice. The difficulty with this solution is that the decision to make a recommendation recorded in the Minute Paper (dated 25 November 1999) may have postdated the Notice of Appeal to the Tribunal, and, if so, that decision was not the decision against which the appellant had appealed to the Tribunal. 37 The better approach is to treat the 3 November 1999 Notice as a notice to make a recommendation, not to the Governor directly, but to the Minister with a view to the Minister advising the Governor, that the appellant be dismissed. The form of words used in the 3 November 1999 Notice and the other Departmental documents corresponds with that used in various sections of the PSM Act. The formula of recommendation by a Department Head to the Governor is used in relation to recommendations that the appointment of an officer be confirmed or annulled (s 29(1)(a) and (b)), that the officer be retired (s 36), that the officer's services be dispensed with on grounds of excess staff (s 51(3)) and that the officer be dismissed for refusing a transfer (s 53(1)). The formula in the legislation is simply shorthand for a recommendation by a Department Head which the Governor will only act on after receiving appropriate Ministerial advice. Similar shorthand was used in the 3 November 1999 Notice.

Did the Decision to Recommend Dismissal Have a Disciplinary Character? 38 It is convenient next to consider the first respondent's argument that the decision to recommend dismissal lacked the disciplinary character called for by Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648. If the argument were sound, the whole of the first part of the appeal would fail in limine. However, the argument is not sound. The argument asserted that it was necessary that the Acting Commissioner should have decided to recommend dismissal after reaching a conclusion that the appellant had misconducted himself. Even if it is accepted that that is the test, the correspondence supports an inference that that conclusion had been reached. On 12 May 1999 the appellant was notified of two charges. On 11 October 1999 he was accused of having made seven admissions on the basis of which the Commissioner said he was considering a decision to recommend to the Governor that the appellant be dismissed. These were allegations, but they were also more than allegations in that they pointed to strong evidence supporting them. The appellant was invited to show cause why that recommendation should not be made. In terms that request was never responded to; the 28 October 1999 letter written on behalf of the appellant was silent about the seven admissions and dealt only with the appellant's personal circumstances. The 3 November 1999 letter said that the Acting Commissioner had considered the representations made by the appellant and that he had decided to recommend to the Governor that the appellant be dismissed. The inference which is available and should be drawn is that the Acting Commissioner, having considered the seven admissions and the appellant's failure to deny, qualify or explain them, had arrived at the conclusion that the appellant had misconducted himself and that in order to discipline him for that misconduct it was appropriate to recommend to the Governor that he be dismissed.

Construction of s 23(1) and s 24(1) 39 The meaning of s 23(1), and hence of s 24(1), for which the appellant contended is as a matter of language correct, unless there is some reason to read down the breadth of the language used. The first respondent's case, as applied to the Tribunal's jurisdiction to consider the specific appeal brought to it by the appellant, is that s 23(1)(f) does not extend to decisions of a disciplinary character to make recommendations to the Governor in Council that officers be dismissed pursuant to the common law prerogative. Though the first respondent did not put it in this way, it would seem that that outcome could be justified by one or other of only two forms of reading down - one or other of only two constructional bases. The first constructional basis is that all the powers described in s 23(1) (including the power to make a decision to recommend to the Governor in Council that an officer be dismissed pursuant to the common law prerogative) must rest on some statutory source, and there is no statutory source for that particular power. The second constructional basis is that even though s 23(1) does not require that there be a statutory source for all the powers described in s 23(1) (including the power to make a decision to recommend to the Governor in Council that an officer be dismissed pursuant to paragraph (f) in s 23(1)) nonetheless paragraph (f) is to be read as if the power of dismissal referred to therein is limited to powers resting on a statutory basis. 40 On the face of the language, there is nothing to support either of these constructional bases. That is, there is nothing to support the view that s 23(1) and s 24(1) rest on a distinction between, on the one hand, statutory powers to make the decisions listed in s 23(1), including statutory powers to decide to recommend dismissal (against which s 24(1) appeals lie) and, on the other hand, decisions not based on statutory powers to recommend the exercise of the common law Crown right of dismissal (against which the first respondent says s 24(1) appeals do not lie). Nor is there on the face of the language anything to support the view that s 23(1) and s 24(1) rest on a distinction between, on the one hand, powers to decide to recommend dismissal on some statutory ground, and, on the other hand, powers to decide to recommend dismissal based on the Crown's common law prerogative. In particular, s 23(1)(f) speaks of "a decision … to dismiss the employee", and of "a decision to make a recommendation … to dismiss the employee". Neither decision is qualified by any reference to statutory powers of decision as distinct from common law powers. Nor is either decision qualified by any reference to statutory powers of dismissal as distinct from common law powers of dismissal. The absence of any such qualification affords a significant foothold for the appellant's argument. The first respondent's argument would have been unanswerable if s 23(1) contained the words ", pursuant to statutory power," or ", pursuant to Part 5 of the Public Sector Management Act 1988", after "employer" and before "makes". The first respondent's argument would also have been unanswerable if one or other of those expressions appeared after "employer" in s 23(1)(f). The lack of those words in either place makes it necessary to read down the general words which have been used if the first respondent's contention that neither "a dismissal at pleasure nor the procedural steps leading up to it are open to review" before the Tribunal. Before turning to the grounds on which the general words might be read down, it is convenient to consider one additional argument favourable to the appellant's construction. 41 That argument is an argument against the first (though not the second) constructional basis propounded by the first respondent. The argument is that the first constructional basis would create an anomaly. The anomaly is that on the first respondent's approach there is a right of appeal under s 24(1) from decisions made under statutory powers to recommend that, for disciplinary reasons, officers be dismissed or otherwise dealt with as described in paragraphs (a)-(g) of s 23(1), but no right of appeal from decisions, made under common law powers to recommend that, for disciplinary reasons, officers be dismissed or otherwise dealt with as described in paragraphs (a)-(g) of s 23(1). 42 The anomaly is significant. In Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648 the Court of Appeal saw the capacity to appeal against disciplinary decisions as important. Disciplinary decisions involved "punishment" (per Kirby P at 665) or were "punitive" (per Handley JA at 661). They were made in response to "misconduct" (per Kirby P at 658). They were distinct from decisions not to make a permanent appointment after observing the work of a probationer (per Kirby P at 658). They were also distinct from other decisions arrived at purely for management reasons involving no opprobrium (per Handley JA at 663). Handley JA said at 663: "one can discern why Parliament might rationally conclude that a right of appeal should exist for probationary employees whose appointments are annulled on disciplinary grounds, and who would otherwise have become permanent employees. Such persons might suffer a serious and permanent injustice if an erroneous decision on disciplinary grounds could not be reviewed by the Tribunal. At the same time Parliament did not intend that management decisions, other than those dealing with promotions within Div 1, should be open to appellate review."

That is, while legislation since Gould v Stuart may have created new statutory methods of dismissal coupled with protections for employees, the common law prerogative survived. In particular, it survived the GREAT Act. 45 The argument did not explain its conclusion that the "re-enactment of [s 54] in the PSM Act preserving the common law right is a clear indication of a legislative purpose that the provisions of the GREAT Act have no application in the case of a dismissal at pleasure." If the "legislative purpose" contended for is to be achieved, it must be achieved by reading s 23(1) down. There is no reason to read the subsection down by reference to s 54 of the PSM Act and its predecessors for the following reasons advanced by the appellant. First, s 24(1) operates "Notwithstanding anything contained in any other Act", an expression applicable to legislation enacted after 1980, such as s 54 of the PSM Act, as much as it is to legislation enacted before 1980. Secondly, s 54 does not purport to preserve the common law prerogative from abrogation by any legislative provisions save those in the PSM Act - it did not purport to preserve it from abrogation by legislative provisions in other Acts such as those in the GREAT Act. And, thirdly, even if s 54 did preserve the common law prerogative from abrogation by other legislative provisions, it preserved it only as it existed "immediately before the commencement of" s 54: by that point in time the GREAT Act had been in force for eight years and s 54 could have no impact on it. 46 The second reason why the first respondent contended that s 23(1) should be read down turned on s 75 of the PSM Act, and in particular s 75(4) and (5). It does not follow from the fact that those provisions make it clear that a decision to dismiss an officer by a Department Head is subject to Part 3 of the GREAT Act that there is no appeal under s 24(1) in the case of dismissals by employers pursuant to common law powers or decisions to recommend dismissals pursuant to common law powers. Even on the first respondent's argument, a decision to dismiss using the statutory powers in s 75 would be subject to appeal under s 24(1) even if s 75(5) had not been enacted. This points to the conclusion that s 75(5) was enacted from an abundance of caution. The first respondent's submission that there is a "lack of any corresponding provision in relation to the exercise of the common law right" begs the question: it assumes that the correct construction of s 24(1) is that for which the first respondent is contending. 47 The third reason why the first respondent contended that s 23(1) should be read down turned on s 95 of the PSM Act. It provides: "(1) The Superannuation Act 1916 , the Industrial Relations Act 1996 , the State Public Service Superannuation Act 1985 , the State Authorities Superannuation Act 1987 and the Public Sector Executives Superannuation Act 1989 are not affected by anything in this Act. (2) Subsection (1) does not limit section 27 or 42J."

(c) no right to a hearing exists ( Ryder v Foley (1906) 4 CLR 422 at 433 and 452; Ridge v Baldwin [1964] AC 40 at 65-66). 50 If that is the legal position, and a Department Head, for example, decides to recommend that an officer be dismissed under the common law Crown prerogative, the officer has no right to prior notice of that decision and no right to be heard before it is made. Yet on the appellant's arguments the officer has a right to be notified after it is made (s 23(1)) and the officer has a full right of appeal to the Tribunal. It is unusual for the permissible and practicable bounds of controversy in an appeal to be wider than the permissible and practicable bounds of controversy in the process leading to the decision against which the appeal is brought. Normally the ambit of an appeal is either the same as the decision appealed against or narrower, depending on the nature of the appeal in question. In turn this suggests that the appellant's contentions are compatible with the unsatisfactory outcome that the right of appeal can be rendered almost nugatory by the Crown. In contrast, the first respondent's position has at least the merit of internal consistency: the relevant officers have no rights of appeal, but they also have no rights before the taking of a decision to recommend dismissal either. The Crown might seek to render the right of appeal nugatory by choosing not to reveal whether it has any particular reason for the recommendation for the dismissal, and, if it has one, what it is. If the Crown adopts that course, it might be thought that there is little that the officer can say during the appeal. Section 42(1) of the GREAT Act provides that "the employer's case shall be presented first". And the employer is entitled to say no more than that the power to dismiss at pleasure is relied on. The point is that if an appeal is futile, and there are competing possible constructions of the legislation said to grant the right of appeal, the futility of the appeal will point against the construction that is relied on to give the right of appeal. As Kirby P said in Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648 at 658: "it will generally be imputed to Parliament that it did not intend … consequences … which are … apparently irrational …". 51 The appellant attempted to meet this difficulty by contending that in truth the common law Crown prerogative as it stood in 1884 has been greatly modified by the course of decisions since then. The appellant pointed to the duty to give natural justice recognised where there is a legitimate expectation that a licence will continue or be renewed: FAI Insurances Ltd v Winneke (1982) 151 CLR 342. The appellant suggested that by analogy where a Department Head was in the course of deciding to recommend to the Governor that an officer be dismissed, that officer had a right to a hearing. The appellant pointed to Malloch v Aberdeen Corporation [1971] 2 All ER 1278 as recognising a right in a servant capable of being dismissed at pleasure to put a contrary case. The appellant submitted that executive action was not immune from judicial review merely because it was carried out in pursuance of a common law prerogative power: R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170; Council of Civil Service Trade Unions v Minister for the Civil Service [1985] AC 374; Minister for Arts Heritage and Environment v Peko-Wallsend Ltd (1987) 75 ALR 218 at 223-4, 226-7 and 248-9. The appellant might have relied on Morrison v Abernethy School Board (1876) 3 R 945 at 964, where Lord Moncrieff LJC said: "We are compelled to resort to the common law to ascertain what are the incidents of a tenure at pleasure. I think that a tenure at pleasure, while it implies the right of the employer to dismiss the employed at any time without reason assigned lays upon him an obligation either to give reasonable notice or compensation in lieu of notice."

In Malloch v Aberdeen Corporation no member of the House of Lords disagreed. Lord Guest specifically approved the observation at 1291, as did Lord Wilberforce at 1296 and Lord Simon of Glaisdale at 1298. 52 However, no authority binding on this Court has overruled authorities which are binding on this Court and which compel it to hold that an officer in respect of whom a decision to recommend that the Governor dismiss him is made is not owed a duty to receive natural justice, or prior notice. Morrison v Abernethy School Board and Malloch v Aberdeen Corporation are Scottish decisions, and each is based on implications from relevant statutes. It does not follow from the fact that some decisions based on common law prerogative powers have been held to import a duty to give natural justice that all decisions on common law prerogative powers attract that duty. It does not follow from the fact that some persons having a legitimate expectation that a state of affairs will continue must be given a hearing that Crown servants either can have that expectation or must be given a hearing. The public policy pointing to the contrary can produce harsh results, but the cases sanction both it and them. 53 However, the contention that the Crown can render an appeal nugatory is exaggerated. Despite the weak position officers are in if a decision to recommend dismissal by the Governor is to be or has been made and if it is decided to extend to those officers their rights and no more, usually the practical position of the officers will be superior to that. Neither before 1884 nor now are officers dismissed merely because they have "red hair", to use Brereton J's example in Ex p Wurth; re Craig (1954) 55 SR (NSW) 47 at 61. It is common to justify the Crown's prerogative by reference to factors requiring dismissal for reasons unconnected with the fitness of particular officers (such as the need to reduce staff or the loss of parliamentary supply in Power v R (1873) 4 AJR 141 at 145, approved by Barton J in Ryder v Foley (1906) 4 CLR 422 at 441). Similarly, particular officers are commonly given a reason for their dismissal. In the present case the appellant was given considerable detail about what was troubling the Commissioner, and was given an opportunity to deal with the concerns of the Commissioner. The practical likelihood of officers being told enough to enable them to make reasonable use of their rights of appeal is enhanced by one change which has taken place since 1884, namely the rise of unions, particularly white-collar unions. The adoption by the Crown of a practice of observing the greatest silence consistent with its strict rights in every case might be a difficult posture to maintain as a practical matter in modern industrial circumstances. Those circumstances are recognised by the GREAT Act, which in ss 13, 15 and 32, for example, provides for an employee's representative to be on the Tribunal and to be nominated from one of the many associations of employees listed in Schedule 3. 54 Further, the risk of the right to an appellate hearing being an empty one is reduced by s 37(1)(a) of the GREAT Act, which enables the Tribunal to compel the production from the employer of "any document or exhibit relevant to the appeal", and s 37(1)(b), which enables the Tribunal to order the employer to prepare a written case. There is also power to compel any person to attend to give evidence (s 37(1)(d)) and power to compel any person to produce relevant documents (s 37(1)(e)). 55 In instances where the Crown contends, as it did here, that the appeal did not lie because the relevant decision was not disciplinary in character, s 37 could be used to test that assertion with a view to establishing the jurisdictional fact, necessary for the officer's appeal, that the decision was disciplinary. Once the disciplinary issue had been identified, a question would have arisen to which the officer could direct evidence and argument. 56 Finally, it would remain true that even if the appeal were allowed under s 48(2), the employer could make a further decision to recommend dismissal by the Governor. But it could not be presumed that the presentation of arguments on the appeal by the officer might not have an effect on the Crown's decision-makers which was beneficial from the officer's point of view. Just as it is no answer to a failure to give a hearing which should have been given on the ground that it would be futile to do so, so the effect of the appeal might be to alter the view of the person who had decided to recommend dismissal. In John v Rees [1970] Ch 345 at 402 Megarry J said: "the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change."

Statutory Power To Decide To Make A Recommendation To Reach A S 23(1) Decision 59 In argument it was suggested that it might not be the case that the words at the start of s 23(1) "an employer makes … a decision to make a recommendation" applied to each of paragraphs (a)-(g). It was suggested, in relation to s 23(1)(g), for example, that unless a statutory power to make "a decision to make a recommendation … to direct or require [an] employee to resign" could be identified, the words "a decision to make a recommendation" could not be read as applying to s 23(1)(g). 60 An "employer", in one standard case to which s 23(1) applies, is a Department Head. Section 23(1) only applies to disciplinary measures. The principal ways in which disciplinary measures are taken are the ways described in s 75, and it is the Department Head who takes them. As Kirby P pointed out in Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648 at 652-3, a comparison of s 23(1) of the GREAT Act with s 75(1)(c)-(e) and (2)-(3) of the PSM Act reveals some correspondence, though no "perfect match", between the punishments or outcomes referred to in the latter and the types of decision described in s 23(1). Thus s 23(1)(a) may correspond with s 75(2)(d), s 23(1)(b) corresponds with s 75(2)(d), s 23(1)(c) corresponds with s 75(2)(c), s 23(1)(d) corresponds with s 75(1)(e), s 23(1)(e) corresponds with s 75(2), s 23(1)(f) corresponds with s 75(1)(d) and (iii) and s 23(1)(g) corresponds with s 75(1)(d). The punishments of a caution (s 75(2)(a)) and a reprimand (s 75(2)(b)), however, find no counterpart in s 23(1). Perhaps it was thought that those punishments were too slight in their impact to make it desirable that appeal rights be conferred under s 24(1). 61 But though each "decision" to do what is described in each of paragraphs (a)-(g) can be sourced in a statutory power, the question was raised whether a statutory power could be found in an employer to make "a decision to make a recommendation" to do what is described in each of paragraphs (a)-(g). No doubt often the Department Head inflicts the s 75 punishments picked up in s 23(1) on the recommendation of more junior officers: but the decision of a more junior officer to make a recommendation that a decision of a s 23(1)(a)-(g) type be made is not a decision by "an employer", because it is the Department Head, not the junior officer, who is the employer. 62 The point was also made that where the question of whether, as described in s 23(1)(g), a direction to require an employee to resign is under consideration, while the Department Head can give that direction (s 75(1)(d) of the PSM Act), it is not sensible to speak of a Department Head deciding to make a recommendation to himself to direct that the employee resign. If the Department Head were deciding to make a recommendation to someone else to direct that the employee resign, it would be necessary to identify a source of power in that someone else to direct the employee to resign. 63 It was suggested that similar reasoning might be applied to some of the other paragraphs. It was suggested that the outcome of that reasoning was that the words "a decision to make a recommendation" did not apply to all paragraphs in s 23(1), and the formal structure of the subsection, in suggesting that they did, reflected poor drafting. It was further suggested that one of the paragraphs to which the words "a decision to make a recommendation" did not apply was s 23(1)(f). That is, there were statutory powers for the employer (the Department Head) to decide to dismiss an employee (s 75(1)(d) and (3)), but there were no statutory powers for the Department Head to decide to make a recommendation that the employee be dismissed, with the result that the appellant's appeal to the Tribunal was incompetent. 64 A related suggestion was raised in argument by reference to the following passage in Handley JA's reasons for judgment in Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648 at 662: "Section 23(1) extends to decisions to make recommendations. In 1980 the only provision for the making of a recommendation to which the opening words of s 23(1) applied of their own force was s 69 of the Public Service Act 1979 authorising the department head to make recommendations to the Governor for the annulment of probationary appointments. Under the Public Sector Management Act the only provision authorising the making of a recommendation of the kind covered by s 23(1) is that contained in s 29(1) in relation to the annulment of a probationary appointment. Unless such recommendations fall within s 23(1)(d) there is no other provision in the Public Sector Management Act or in the legislation governing the Schedule 4 authorities authorising the making of a recommendation appealable as such."

It was suggested that Handley JA appeared to assume that the reference in s 23(1) to "recommendation" was a reference only to recommendations pursuant to statutory power. If he was making that assumption after having expressly considered the point, then there would obviously be considerable support for the first constructional basis underlying the first respondent's position - namely that s 23(1) only applies to "a decision to make a recommendation" under a statutory power to recommend. 65 The considerations just discussed do not weaken the construction contended for by the appellant. 66 First, Handley JA was not dealing with the Crown's common law prerogative power to dismiss, but with a statutory power to annul a probationary appointment pursuant to s 29(1) of the PSM Act and with the question whether s 23(1)(d) read with s 24(1) had the result of conferring a right of appeal against decisions to exercise that power. It does not follow that he was intending to exclude from the s 24(1) facility of appeal against s 23(1) decisions an appeal against a common law right to decide to make a recommendation to the Governor to dismiss pursuant to common law prerogative powers. His use in the second sentence quoted of the expression "the only provision" suggests that he was only intending to speak of statutory provisions and was not intending to exclude the possibility of common law powers to decide to make a recommendation falling within s 23(1). 67 Secondly, if Handley JA was intending to assert that there was no common law power to decide to make a recommendation, his observations were obiter dicta. What is more, they were dicta which do not appear to have been assisted by any argument advanced, for there is no suggestion in any of the three judgments that the interaction between s 23(1) and common law powers to dismiss or recommend dismissal formed part of counsel's contentions. 68 Thirdly, there does in fact appear to be a statutory power to recommend dismissal to the Governor. It must be accepted at the outset that while there are some provisions in the PSM Act pursuant to which an employer can make decisions to make a recommendation to the Governor that an officer be dismissed (in the loose sense of that officer's services being terminated) they are all outside s 23(1). Thus a Department Head may decide to recommend that the Governor cause the officer to be relieved on grounds of permanent unfitness or incapacity not arising from the actual misconduct of the officer or from causes within the officer's control: s 36. A Department Head may decide to recommend that the Governor dispense with the services of officers who are excess to the needs of the Department in which they are employed and who cannot be usefully employed in other Departments: s 51(3). A Department Head may decide to recommend to the Governor that officers refusing transfers under ss 50,51, 52 or 100A be dismissed: s 53(1). But none of these are of a disciplinary character, and hence they are outside s 23(1): Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648 at 664. There is also power to decide to recommend annulment of the appointment of an employee appointed on probation, which is conferred by s 29 of the PSM Act, but the same case held that only exercises of that power of a disciplinary character were within s 23(1)(d). However, a more general potential statutory source of power in employers, at least where they are Department Heads, is s 11(2) of the PSM Act. Subsections (1) and (2) provide: "(1) A Department Head is responsible to the appropriate Minister for the general conduct and the effective, efficient and economical management of the functions and activities of the Department. (2) For the purpose of exercising the responsibility imposed by subsection (1), a Department Head may take such action as the Department Head considers appropriate in the circumstances, but may not take action that is inconsistent with the functions of the Minister or the Public Employment Office specified in this Act."

notwithstanding that the recommendation has not been acted on …." 77 It is noteworthy that the words "the decision to make a recommendation" at the start of s 23(1) of the GREAT Act have no counterpart in its predecessor, s 10 of the Crown Employees Appeal Board Act. Hence the precise issue in this case could not have arisen until 1980. The reason why these words were introduced appears to have stemmed from s 87 of the Public Service Act 1979, which provided for the Board to make recommendations to the Governor for various punishments or sanctions to be inflicted. Yet it seems unlikely that s 23(1) and s 24 were intended to be limited, in the field of appeals against recommendations, to appeals against s 87 recommendations only. Decisions to recommend that the Governor approve fines (s87(1)(a)(iii)) correspond, but not precisely, with s 23(1)(c). Decisions to recommend that officers be reduced to a lower classification or position (s87(1)(a)(iv)) correspond, but not precisely, with s 23(1)(b). Decisions to recommend that officers be dismissed or to recommend that they be directed to resign, or to recommend that they be allowed to resign (s 871)(b)) correspond, but not precisely, with s 23(1)(f) and (g). Nothing in s 87 appears to correspond at all with s 23(1)(a), (b) or (e). This suggests that s 23(1) was intended to catch not only punishments and sanctions approved by the Governor (but inflicted by someone else) falling within s 87(1) but other punishments and sanctions described in s 23(1). It also suggests that s 23(1) was intended to catch not only decisions to recommend to the Governor the approval of punishments and sanctions falling under s 87(1), but also decisions to recommend other punishments and sanctions falling under s 23(1). Among those sanctions is dismissal by the Governor. A similar disharmony to that which existed between s 23(1) and s 87 existed between s 10 of the Crown Employees Appeal Board Act 1944 and (for the short period of their co-existence) s 87 of the Public Service Act 1979. A like disharmony continues to exist between s 23(1) and s 75 of the PSM Act. 78 The legislative history points against any close linkage between s 23(1) and the successor to s 87 of the Public Service Act 1979, namely s 75 of the PSM Act. It also points against the validity of the first respondent's submission that the "re-enactment of a provision in the PSM Act preserving the common law right [s 54] is a clear indication of a legislative purpose that the provisions of the GREAT Act have no application in the case of a dismissal at pleasure." 79 The lack of harmony, since 1979, between the language of the appeal provisions and the language of the disciplinary provisions in the Public Service Act 1979 and the PSM Act suggests that the appeal provisions were intended to operate in fields wider than those disciplinary provisions, including the field illustrated by this case.

The Role Of the Executive Council 80 A further background factor favourable to the appellant's construction in the circumstances of this case is that the technique of arriving at administrative decisions by using the Executive Council appears to be common in Australia. That makes it unsurprising that dismissals may be effected in that way, and affords a substantial area of activity on which the words in s 23(1) "a decision to make a recommendation … to dismiss the employee" can operate. 81 In FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 382 Aickin J said that the Governor in Council: "is the body which gives the force of law to, and thus makes effective, decisions of the executive government, i.e. the Cabinet and individual Ministers. That is the body in which executive power is vested by the constitutional system although the mode of the carrying into effect of the decisions of executive government differs according to the circumstances. Some executive acts may be wholly performed by Ministers or delegated to heads of government departments or to statutory authorities and some may be a formal order of the Governor in Council". 82 In the same case at 352 Stephen J said: "Decisions of the Governor in Council are no more than 'the formal legal act which gives effect to the advice tendered to the Crown by the Ministers of the Crown'", citing Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 179 per Dixon J. In modern Australian conditions, and indeed ever since the advent of responsible government, the Governor in Council makes "a host of routine administrative decisions, involving neither matters of high government policy nor any nice exercises of policy-oriented discretion" (at 353). To the Governor in Council has been entrusted a great "range of routine administrative decisions of a quite formal character". Orders in Council have "long been accepted as an appropriate medium for the formal making and recording of executive decisions, regardless of their routine nature and lack of policy content" (at 355). 83 These circumstances reveal a background suggesting, in the absence of specific evidence of government practice, that when the Crown's common law power to dismiss at pleasure is exercised, the dismissal may often be effected by an order of the Governor in Council. It is certainly capable of being so effected. This suggests that s 23(1) and s 24(1) contemplate appeals from recommendations to the Governor in Council that an officer be dismissed by the Governor in Council.

Suspension 86 The second part of the Tribunal's decision under appeal is its holding that it had no jurisdiction to hear the appellant's appeal against the withholding of his salary during his suspension. As has been seen above, the Tribunal applied the observations of Handley JA in Managing Director, New South Wales Technical and Further Education Commission v Fines (1993) 32 NSWLR 385 and 393-4 and in Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648 at 663. 87 The appellant submitted (written submissions paragraph 11): "The decision to suspend without salary was part of the Acting Commissioner's decision of 3 November 1999. That decision fell within s 23(1)(e) of the GREAT Act - that, is it was punitive in nature - having regard to the facts outlined in paragraphs 2.3-2.7 above." 88 The first respondent submitted (written submissions paragraphs 10-11): "In relation to paragraph 11 of the Appellant's submissions, section 77(3) of the PSM Act provides for an officer's salary to be withheld if an officer is suspended from duty pursuant to section 77(2) pending the determination of a charge. It is only if such a charge is proven that the salary withheld during a suspension may be forfeited to the Crown (section 77(4)). If forfeiture occurs, an appeal to the Tribunal is available under section 77(5). No such forfeiture could have taken place in the case of the Appellant because there was never a finding that he had committed a breach of discipline. The Appellant's contention that an appeal lies against a decision to withhold an officer's salary during a suspension should be rejected. It is proper to test this contention by its consequences: Cole v Director-General of Youth and Community Services and Another (1987) 7 NSWLR 541 at 546B. In this regard, the inappropriate consequences of any such appeal include the fact that it would almost certainly have some impact on the relevant disciplinary inquiry and any appeal to the Tribunal with respect to the outcome of that inquiry." 89 While the decision to recommend dismissal was part of a disciplinary process, the decision to suspend was only an interim suspension while that disciplinary process was being completed. It thus falls within Handley JA's reasoning. In Fines' case, Mahoney JA and Sheller JA agreed with Handley JA. No application for leave to reargue the correctness of that case has been made. Accordingly this Court must follow it, and the Tribunal was correct for the reasons it gave.

The First Respondent's Primary Submission 103 The first respondent's primary submission was that the provisions of the GREAT Act, and particularly those to which I have referred, did not have the effect of restricting the exercise of the Crown's common law right to dismiss at pleasure. As a general proposition that is correct. However, when the method of dismissal fell within an express provision of the GREAT Act I do not agree that its provisions did not apply to over-ride the Crown's right. 104 My principal reasons for coming to that conclusion are, first, that there is nothing in the GREAT Act, as there is in a number of other pieces of legislation to which reference was made, which expressly reserves the right of the Crown to dismiss at pleasure notwithstanding that legislation. This is not difficult to understand as the Act is concerned with the right of a person, in the position of this appellant, to challenge through the Tribunal the actions of his employer. There is no provision for the Governor to consider any such matter. It would be contrary to the rights thus provided to the employee if the employer, having gone through the steps contemplated by s 23, could destroy the appellant's rights by having a recommendation made to the Governor in a disciplinary matter where the steps envisaged by the Act had been followed. 105 Secondly, if the legislation had contemplated that that may happen, it would have been simple to insert after the word "recommendation", in the opening words of s 23(1), words such as "other than to the Governor". Obviously, when the legislation was drafted the Governor was a person to whom a recommendation could be made. Not to exclude such a recommendation reinforces that a recommendation to him or her was intended to be encompassed. In my opinion, there is absolutely no reason for reading the words as meaning a "recommendation other than to the Governor". 106 Thirdly, what I have concluded does not cut across the common law right to dismiss at pleasure, save pursuant to the express provisions put in place for the benefit of public servants if the circumstances contemplated in the GREAT Act are met. 107 I agree with Heydon JA's reasons on the second point.

Kelly v Commissioner of the Department of Corrective Services & Anor

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