Meehan & Ors v Commissioner of Police

Court of Appeal (NSW)|1999-08-06|Before: Mason P, Giles JA, Davies JA

New South Wales Court of Appeal CITATION : Meehan & Ors v Commissioner of Police [1999] NSWCA 292 FILE NUMBER(S) : CA 40586/99 HEARING DATE(S) : 6 August 1999 JUDGMENT DATE : 9 August 1999

PARTIES : Phillip John Meehan & Ors - Appellants Commissioner of Police - Respondent JUDGMENT OF : Mason P at 1; Giles JA at 16; Davies AJA at 50

LOWER COURT JURISDICTION : Government and Related Employees Appeal Tribunal LOWER COURT FILE NUMBER(S) : P126-127; P 129; P131-137; P143; P164-169; P178-179 & P193-199 of 1999 LOWER COURT JUDICIAL OFFICER :

COUNSEL : Dr G A Flick QC & R P L Lancaster - Appellants W R Haylen QC & G J Willis - Respondent SOLICITORS : Oates & Smith - Appellants Michael North Holmes, Legal Services of NSW Police Service - Respondent CATCHWORDS : GREAT - jurisdiction - s 81C Police Service Act - applicant must be "elligible for appointment" to position - appellants unsuccessful in assessment process - success a qualification determined for the position - whether appellants eligible for appointment - whether assessment by comparative merit or of achieving a standard - (by majority) the latter - appellants not eligible - no jurisdiction. Janson v Scanlon (1995) 63 IR 100 referred to. DECISION : (By majority) appeal dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40586/99 P126-127, P129, P131-137, P143, P164-169, P178-179 & P193-199 of 1999

MASON P GILES JA DAVIES AJA

1 MASON P: I have had the benefit of reading the judgments of Giles JA and Davies JA in draft form. Those judgments set out the facts and the legislative framework in detail. 2 In my view, the appeal should be dismissed with costs. 3 I agree with the reasons of Giles JA. 4 The onus lay upon the appellants to satisfy the Tribunal that they had invoked its jurisdiction (NEC Information Systems Australia Pty Ltd v Lockhart (1991) 22 NSWLR 518 at 521). In the particular context, s81C(1) of the Police Service Act 1990 required them to demonstrate (a) that they had been applicants for nine specific vacant positions of Inspector, and (b) that they were "eligible for appointment" to those positions. They failed because (b) was not satisfied. 5 The Tribunal found as a fact that the requirement of successful completion of the Assessment Centre program was a qualification which the Commissioner had determined in respect of the vacant positions the subject of the proceedings (Jurisdictional Decision, p18). 6 The appeal to this Court is confined to a question of law (Government and Related Employees Appeal Tribunal Act 1980, s54). The ground advanced in the appellants' written submissions was that the only eligibility criteria specified in the Act were that the person had "duly applied for appointment to the position" (Police Service Act 1990, s71(1)(a)) and that the person satisfied certain citizenship requirement (id, s94). 7 I agree with Giles JA and Davies AJA that this submission involves a misreading of the expression "eligible for appointment" in s81C. 8 The Police Service Act 1990 makes it plain that the Commissioner may determine the applications that must be possessed before a person is eligible for appointment to a particular position. This is implicit in the power to create, classify and grade positions (s10(2)). Indeed, it is expressly recognised in par (a) of the definition of "merit" in s3(1). It is also found in s71(1)(b) itself. (The appellants' construction of s71(1), confining eligibility to due application is tautologous when paragraphs (a) and (b) of the subsection are compared. The same can be said of the appellants' approach to s81C(1) itself.) Section 94 deals with a separate matter, as Giles JA demonstrates. 9 To deny the Commissioner the power to specify particular qualifications (eg rank, academic qualifications, length of service, particular language skills) if they seem appropriate to a particular position in the Police Service would also be an affront to common sense. It follows that, if the Commissioner can specify eligibility criteria, there is every reason why such specification should remain relevant both as to jurisdiction and merit assessed in the Tribunal. Section 81C(1) recognises the former and s81C(2) (when read with par (a) of the definition of "merit") recognises the latter. 10 Recognising that these arguments might have force with the Court, the appellants shifted ground in their oral submissions. They sought in effect to dispute that successful completion of the Assessment Centre program was a valid criterion of eligibility for appointment to a vacant position. It was suggested that the program was really part of a process by which applicants were assessed and judged by the Commissioner in their comparative merits. 11 It this proposition were correct and open, it would be a good answer to the jurisdictional point. In this area the law has regard to matters of substance. To take an extreme example, the Tribunal would not be precluded from entertaining an appeal by an applicant for a position in which the only criterion not satisfied was "selection by the Commissioner's selection panel as one of the four shortlisted candidates". 12 But this is not the present case. In the first place, no such proposition was advanced before the Tribunal, which (as indicated) found as a fact that the requirement of successful completion of the Assessment Centre program was a qualification determined by the Commissioner. On my reading of the material placed before us, all sides treated the Assessment Centre program as a genuine course in which candidates were assessed according to appropriate standards. It was not suggested that there was a maximum quota of successful candidates. The way the matter was fought below is fatal to the appellants' attempt to enlarge the grounds of appeal (cf Coulton v Holcombe (1986) 162 CLR 1 at 7-8) even if (which I doubt) the alternative argument relies on a question of law. 13 Furthermore, the material in evidence shows that various competency factors (decision making), individual leadership influencing, planning/ organising/work management, communication, teamwork/collaboration, maximising performance, technical/professional knowledge) were assessed according to five levels of effectiveness ( much need for development, need for development, minimum satisfactory standard, satisfactory, above satisfactory). The course lasted a whole day. Candidates were provided with detailed reasons based upon the examiner's assessment of their performance in a number of exercises. 14 Entry to the assessment stage depended upon assessment of the information provided in a pro forma application form in which candidates were invited to address various "competencies". The standard form refers to Selection Committees assessing applications on a comparative basis for the applications received. However, I am satisfied that this part of the standard form applied only to the method of determining who should be recommended for ultimate appointment. 15 The advertisements for the various positions sought by the appellants stipulated that progression to the assessment stage of the process was not automatic and that an application cull would be conducted. It is not indicated who would do that cull. It could have been the Section Committee and Committees involved. The evidence does not reveal this. What is clear is that an applicant may be admitted to assessment in connection with one position, meet the standards of assessment, be unsuccessful in obtaining the position, and may apply for another position without having to undergo Assessment Centre assessment a second time (see Police Service Weekly Vol 10 No 50, 14 December 1998, p12). 16 We know that one of the appellants, Mr Meehan was culled prior to attending the Assessment Centre. But there was no evidence as to the basis upon which the cull took place. In these circumstances, I am not prepared to find that the Tribunal erred in law in not addressing the possibility that the culling was based upon comparable merit in circumstances where failure to get to the Assessment Centre could be said not to involve failure to achieve a criterion of eligibility for the purpose of an appeal to the Tribunal. 17 GILES JA: This is an appeal from a decision of the Government and Related Employees Appeal Tribunal ("the Tribunal"). The Tribunal decided that it had no jurisdiction to hear and determine a number of related appeals by disappointed applicants for appointment to positions in the Police Service. By s 54 of the Government and Related Employees Appeal Tribunal Act 1980 the appeal to this Court is only on a question of law. 18 The positions were chief inspector and inspector positions within Crime Agencies. They were advertised in the Police Service Weekly on 14 December 1998. 19 The advertisements began - "Applicants who successfully completed the assessment centre for Crime Agencies (published in PSW Vol 10/18, dated 4 May) are now invited to apply for the following vacancies. Interested applicants should submit page 1 and 2 of the application form and forward to Placement Services by the closing date. Applicants who successfully completed the operational supervisor assessment centre, but did not submit an expression of interest for the Crime Agencies assessment centre, may also apply for these vacancies. Applicants in this category must submit a full application form addressing the relevant competencies. These applications will be subjected to a cull by the selection panel. All applicants are to nominate preferences if applying for more than one position."

20 The advertisements then set out brief descriptions of the positions. As one example, two of the descriptions were - "INSPECTOR JOB STREAM - SUPERVISOR - INVESTIGATIVE (JSR NO.05)

Investigations Coordinator, Drug & Organised Crime Location: Sydney (Ref No 98/114)

Investigations Coordinator, Homicide & Serial Violent Crime Location: Strawberry Hills (Ref No 98/115)" 21 The reference to applicants who "successfully completed the assessment centre for Crime Agencies" is grammatically challenging. As will appear, it meant undergoing an assessment process and being assessed as meeting a standard. In this appeal attention was focused on the assessment centre for Crime Agencies, but the advertisement offered an alternative of successful completion of the operational supervisor assessment centre where the applicant had not submitted an expression of interest for the Crime Agencies assessment centre. There was a difference in the extent of the requisite application form and in a cull of the applications, to which I will return. 22 The appellants had not successfully completed the assessment centre for Crime Agencies, nor it seems did they fall within the alternative class of applicants. They had applied for the assessment centre for Crime Agencies pursuant to the publication of 4 May 1998. The application of one of the appellants was not accepted. The applications of the other appellants were accepted, but each was in due course notified that he had not met the required standard. I will also return to this. 23 The Commissioner appointed other applicants to the positions. The appellants then appealed to the Tribunal pursuant to s 81C of the Police Service Act 1990 ("the Act"). That section reads: " 81C Appeal to GREAT against promotion to inspector (1) A police officer may appeal to GREAT against a decision of the Commissioner to appoint another police officer to a vacant position in any rank of inspector if the police officer who appeals was an applicant for the vacant position and is eligible for appointment to the vacant position. (2) The only ground on which an appeal may be made under this section is that the merit of the appellant is greater than that of the other police officer."

24 The Tribunal decided that it had no jurisdiction to hear and determine the appeals because, not having successfully completed the assessment centre for Crime Agencies, the appellants were not "eligible for appointment" to the positions. 25 The Act did not define eligibility for appointment. The Tribunal said that the appellants - " … are not eligible because they do not possess one of the qualifications determined in respect of the subject positions by the Commissioner in accordance with s 3(1)(a) of the Police Service Act. In common parlance they have not yet passed the 'exam'. The lack of such qualification means they are unable to demonstrate 'merit' as defined by the statute for appointment to the subject positions."

The reference to s 3(1)(a) of the Act was to the definition of "merit" in s 3(1), reading - " merit , in relation to a decision of the Commissioner to appoint or recommend for appointment a person to a position in the Police Service, means: (a) the possession by the person of qualifications determined in respect of the position by the Commissioner, and (b) the aptitude of the person for the discharge of the duties of the position, and (c) the integrity, diligence and good conduct of the person." 26 In my opinion, the decision of the Tribunal was correct in law. 27 The appellants' primary submission was that eligibility was to be found only in the Act. It was said that it was found in ss 71 and 94 of the Act, respectively providing (so far as relevant) that the Commissioner might only appoint a person who had duly applied for appointment to the position and that a person was eligible to be appointed as a member of the Police Service only if the person was an Australian citizen or a permanent Australian resident. 28 The submission can not be accepted. Application is a specific element in s 81C(1), and can not be part of the eligibility separately referred to. Australian citizenship or residency is required by s 94 for appointment to the Police Service, not for the appointment to a position of a person already in the Police Service, with which s 81C is concerned. 29 The appellants' subsidiary submission accepted that eligibility could be found otherwise than in the Act. The Act gave wide powers to the Commissioner, and the definition of "merit" demonstrated that his powers included determining the qualifications a person must possess in order to be appointed to a position. This was only to be expected, and the subsidiary submission took eligibility from the determining by the Commissioner of qualifications which applicants for positions had to possess. But, the applicants submitted, successful completion of the assessment centre for Crime Agencies could not be a qualification by which eligibility was determined, and could not be made a qualification by which eligibility was determined by the advertisement. 30 One of the questions in Janson v Scanlon (1995) 63 IR 100 was how eligibility for appointment or promotion was determined for the purposes of s 18(2) of the Technical and Further Eduction Commission Act 1990. That provision regulated how the merit of persons "eligible for appointment or promotion" to a vacant position was to be determined. As in the present case, there was no relevant definition. At issue was the significance to determining eligibility of guidelines promulgated by the Commission. 31 Kirby P said (at 106) that the guidelines could not control what was meant by the phrase "eligible for appointment or promotion" in s 18(2), but that they were nonetheless to be taken into account in addressing the eligibility of applicants. He said (at 109) that the guidelines were "not imported, as such, in the notion of 'eligibility' under s 18(2) of the Act" but that "prima facie they defined the pool from which those 'eligible' were to be selected."

32 Powell JA said (at 111-2) - "In the absence of any statutory or other like definition of the word 'eligible', or of the phrase 'persons eligible for appointment or promotion to a vacant position', one is thus cast back to the normal or usual meaning to be attributed to such words or to that meaning as coloured by the context in which they appear. … As a matter of ordinary English usage, the word 'eligible' conveys a notion of 'available', or 'qualified', for whatever it is - as, for example, to be picked for something, to be appointed to do a task - that is in contemplation. In the present case, it seems to me that the appropriate meaning to be given to the word 'eligible' is that of 'qualified' for appointment to the staff or for promotion from one position to another position on the staff of the TAFE Commission. Since the concept of 'qualified' must apply both to those seeking to join the staff and to those seeking to be promoted from one position to another on the staff of the TAFE Commission and since the range of positions to which appointment or promotion might be sought and the range of qualifications required in order that one might properly carry out those duties would inevitably be extensive, it seems to me that the only manner in which one might determine whether or not an applicant is 'qualified', and, thus, 'eligible', is by reference to the nature and statement of duties of the relevant position and the selection criteria set out in any advertisement of, or other form of invitation for applications for appointment or promotion to, the position in question." 33 Hodgson AJA said (at 115-6) - "It would be wholly impractical for an employer such as the TAFE Commission to assess for itself de novo every aspect of merit of every candidate for a position. If a position requires abilities normally acquired only by the completion of certain processes of learning and of experience, which is in turn normally demonstrated by acquisition of certain qualifications as being in general both pre-conditions of eligibility for the position and also important aspects of merit in relation to the position. Indeed, it may be unreasonable for the employer not to treat the qualifications as being both essential for eligibility and important aspects of merit. That is not to say that the qualifications may be treated as a substitute for the statutory test of merit; but rather that they are both an aspect of merit, and also an important part of the procedure by which an employer can fairly and efficiently address the question of merit. Turning to the interpretation of s 18, I note that the TAFE Commission Act contains no definition of 'eligible'; and in my opinion, the suggestion in s 18(2) that the candidates whose merit is to be considered are only those 'eligible' for the position cannot be used to introduce some further criterion for appointment beyond that of 'merit' as required by s 18(1). Accordingly, where as here the Commission has laid down criteria for eligibility for a position, a candidate's failure to fulfil those criteria cannot ipso facto disqualify that candidate from appointment: but, for the reasons set out in the previous paragraph, a reasonable approach to the question of merit may mean that the Commission should regard that candidate as ineligible or, if eligible, of less merit than candidates who fulfil the criteria." 34 These passages support that eligibility for appointment to a position may be determined by the determination of the qualifications a person must satisfy the guidelines to be appointed to the position. The qualifications may be determined by regard to the abilities required for proper performance of the duties of the position, and a person will be ineligible for appointment if that person does not possess the qualifications. 35 Kirby P and Hodgson AJA did not regard the guidelines as a definitive determination of eligibility, although both seem to have regarded failure to possess the qualifications as tending to ineligibility. Their Honours did not say what else could determine eligibility. Powell JA saw less significance in the guidelines, and considered that eligibility was to be judged by reference to the nature and statement of duties of the relevant position and the selection criteria set out in the advertisement of, or other form of invitation for applications for, the position. 36 In the present case there was no equivalent to the guidelines in Janson v Scanlon. The only indicator of the qualifications determined by the Commissioner in respect of the positions was the advertisement of 14 December 1998. The advertisement stated a selection criterion of successful completion of the assessment centre for Crime Agencies and an alternative selection criterion of successful completion of the operational supervisor assessment centre. There was nothing in the evidence to suggest that the criteria did not reflect the possession of a qualification required in order properly to carry out the duties of the positions. 37 The appellants' submission was that successful completion of the assessment centre for Crime Agencies could not be made a qualification by which eligibility was determined because the assessment was on a comparative merit basis. Assessment of merit was distinct from eligibility, it was said, and applicants could not be excluded from eligibility by the statement of a qualification which was really just a cut-off point in assessments of comparative merit. Further, it was said, by the definition of "merit" the possession of qualifications determined by the Commissioner was part of merit, and so applicants could not be excluded from eligibility by statement of a qualification which went to make up the applicant's merit. 38 It is necessary to see what was meant by successful completion of the assessment centre for Crime Agencies. This must be gleaned from less than complete evidence before the Tribunal. 39 The information accompanying the advertisement of 14 December 1998, agreed to be common form information at all relevant times, included - "ASSESSMENT CENTRE PROCESS Applicants for positions at the rank of inspector or above should note an assessment centre will be a component of the recruitment process for positions at that rank. Unless otherwise specified in the information package, the assessment centre will be the operational manager/supervisor centre currently conducted for duty officers/crime managers. Progression to the assessment stage of the process is not automatic as an application cull will be conducted. Those applicants progressing to assessment centre who do not meet the standard of assessment, will not progress to the interview stage. Applicants who have previously completed the assessment process, whose applications are progressed from the application will not need to complete the assessment centre as previous results will stand. Conversely, results of those previously unsuccessful at the assessment centre will stand for 12 months from the date of assessment. Details of the assessment centre process are included in the information package." 40 The evidence did not include the details of the assessment centre process. It will be noted, however, that according to the information applicants had to meet a "standard of assessment" in the assessment centre process, that if they did not they would not "progress to the interview stage", and that the results of prior completion of the assessment centre process would stand for the application for the position. If the applicant was successful in the process, it would not be necessary to undergo the process again. If the applicant was unsuccessful, and was unsuccessful within the preceding twelve months, the application would not progress to interview stage. The particular advertisement of 14 December 1998 was more stringent, in that those invited to apply had to have successfully completed one of the assessment centres - future successful completion of an assessment centre was not sufficient. The past assessment centre process was, or at least included, the assessment centre process pursuant to the publication of 4 May 1998 by which the appellants had applied for the assessment centre for Crime Agencies. 41 The publication of 4 May 1998 began - "Expressions of interest are now sought from officers interested in being assessed for the following chief inspector and inspector positions within Crime Agencies. The assessment centre used will be identical to that undertaken by duty officer and crime manager applicants … "

42 There was later reference to completion of an application form. The application form in evidence was not framed as an application for assessment for the positions, but as an application for advertised police positions. It included the statement that "Selection Committees will assess applicants on a comparative basis from the applications received". The applicant was required to provide information as to some "mandatory essential qualifications", and to describe "competencies" in other stipulated areas. 43 The appellants were told the results of their applications for the assessment centre for Crime Agencies by letters which began - "I refer to your recent completion of the Crime Agency Assessment Centre Process. I regret to advice that your results from that process were not of a standard to enable your inclusion in the eligibility pool for various Crime Agency positions".

The letters so informing them were accompanied by performance summaries, noting results "Did not meet standard". Each summary stated a "level of effectiveness" in a number of areas of competency, with a narrative explaining the performance per competency and overall. The applicants could attend a debriefing, and could "reapply to undertake this process following a period of 12 months". 44 Consistently with the completion of the application form in May 1998, according to the advertisement of 14 December 1998 applicants who had successfully completed the assessment centre for Crime Agencies did not have to submit a full application form. They had to complete only that part of the form which identified the applicant and the position applied for. The information as to mandatory essential qualifications and competencies did not have to be repeated. 45 On this material, I do not think it correct to regard the assessment as no more than on a comparative merit basis. The statement in the application form that "Selection Committees will assess applicants on a comparative basis from the applications received" was inapplicable, to be explained by inappropriate use of a form of application for advertised police positions, and the assessment was not by a selection committee or on a comparative basis. 46 It is evident, and was accepted in the appeal, that police officers could apply to be assessed, and could be assessed, otherwise than in connection with an application for a position, as in the reapplication to which the letters sent to the appellants referred. Successful completion of the assessment process would stand for any application for a position to which it was material. The assessment was according to a standard, and so unsuccessful applicants for assessment were told that they did not meet the standard and the information accompanying the advertisement of 14 December 1998 referred to applicants not meeting the standard of assessment. An applicant for assessment who met the standard of assessment achieved a qualification, and successful completion of the assessment centre for Crime Agencies was no different in principle from successful completion of a course for inspectors resulting in the award of a certificate or some other recognition. 47 In my opinion, therefore, when the advertisement of 14 December 1998 stated selection criteria of successful completion of one of the assessment centres, relevantly to the present case the assessment centre for Crime Agencies, it stated a true qualification. It was open to the Commissioner to determine that a person had to possess that qualification in order to be appointed an inspector. The possession of the qualification could go both to eligibility and to merit, as Janson v Scanlon shows. In the present case, whether or not it also went to merit it went to eligibility, because stated as a selection criterion, and I repeat that there was nothing in the evidence to suggest that the criteria did not reflect the possession of a qualification required in order properly to carry out the duties of the positions. The definition of "merit" did not preclude determination of eligibility by regard to a qualification determined by the Commissioner, because in deciding whether the merit of one police officer was greater than that of another there could be a qualification stated to be desirable rather than essential or there could be regard to the level at which the qualification was achieved. 48 The appellants took no point that there was no direct evidence that the Commissioner had determined qualifications in respect of positions, either generally or in relation to the advertisement of 14 December 1998. This does not seem to have been in issue before the Tribunal. It follows, in my view, that successful completion of the assessment centre for Crime Agencies was made a qualification by which eligibility for the positions was determined, and that for the purposes of s 81C of the Act the appellants were not eligible for appointment to the positions. 49 The appeal should be dismissed with costs. 50 DAVIES AJA: This is an appeal from a decision by the Government and Related Employees Appeal Tribunal constituted by Senior Chairman J L Lynn ("the Tribunal") in which it was held that the Tribunal did not have jurisdiction to hear and determine promotions appeals lodged by the present appellants under s 54 of the Government and Related Employees Appeal Tribunal Act 1980 (NSW). The appeal is limited to a question of law. In the appeal, Dr G Flick QC, with him Mr R Lancaster of counsel, appeared for the appellants. Mr W Haylen QC, with him Mr G Willis of counsel, appeared for the respondent. 51 Each of the appellants is a police officer and each alleges that he was an applicant for a vacant position in the Police Service, was eligible for appointment to the vacant position and was entitled by virtue of s 81C of the Police Service Act 1990 (NSW) ("the Act") to appeal to the Government and Related Employees Appeal Tribunal ("GREAT") against a decision of the Commissioner of Police to appoint another police officer to the position. Each of the subject positions carried the rank of inspector or chief inspector. 52 The view taken by the Tribunal was that the appellants were neither applicants for nor eligible for appointment to the vacant positions and that they were not entitled to appeal to GREAT. 53 The crux of the case turns upon the validity and effect of certain assessment procedures. 54 The Police Service is comprised of the Commissioner of Police and other police officers and administrative officers. Section 8(1) of the Act provides that the Commissioner is, subject to the direction of the Minister, responsible for the management and control of the Police Service. Section 10(2) provides that the Commissioner may create, abolish or otherwise deal with any position in the Police Service and must classify and grade each such position. Section 31 of the Act provides that the Commissioner may delegate to another member of the Police Service any of the functions conferred or imposed on the Commissioner. Section 64(1) provides that an appointment (whether by way of transfer or promotion or otherwise) to a non-executive position in the Police Service is to be made by the Commissioner. Section 64(4) provides that the duty of the Commissioner, before appointing a person to a vacant position, is to make inquiries as to the person's integrity. Section 69 provides that, if it is proposed to make an appointment to a vacant position of a non-executive commissioned police officer, the Commissioner is required to advertise the vacancy. Section 71 provides that appointments be made on merit. Section 71(1) reads, inter alia: (1) In deciding to appoint a person to a vacant position of a non-executive commissioned police officer: (a) the Commissioner may only appoint a person who has duly applied for appointment to the position, and

(b) the Commissioner must, from among the applicants eligible for appointment, appoint the applicant who has, in the opinion of the Commissioner, the greatest merit.

The term "merit" is defined in s 3(1) of the Act as follows: merit , in relation to a decision of the Commissioner to appoint or recommend for appointment a person to a position in the Police Service, means: (a) the possession by the person of qualifications determined in respect of the position by the Commissioner, and (b) the aptitude of the person for the discharge of the duties of the position, and (c) the integrity, diligence and good conduct of the person.

Provision is made for appeals. Section 81C of the Act provides: (1) A police officer may appeal to GREAT against a decision of the Commissioner to appoint another police officer to a vacant position in any rank of inspector if the police officer who appeals was an applicant for the vacant position and is eligible for appointment to the vacant position.

(2) The only ground on which an appeal may be made under this section is that the merit of the appellant is greater than that of the other police officer. 55 Thus appointments are to be made on merit among candidates who have been given an opportunity after advertisement to apply for appointment to the vacant position. Each appointment is made by the Commissioner or his delegate. It is hardly necessary to say that, in the exercise of this function, the Commissioner or his delegate must act personally. That is to say, he must decide, having regard to the material before him, that the person he chooses to appoint has the greatest merit. 56 However, not every step in the promotions process must be undertaken personally by the decision maker, the Commissioner or his delegate. Such a person is entitled to have other persons assist him in the performance of his duties. Lord Greene M R said in Carltona Ltd v Commissioners of Works and Others [1943] 2 All ER 560 at 563, "Public business could not be carried on if that were not the case." The Commissioner or his delegate may instruct other persons to make inquiries, to hold interviews, to report and to advise. It would be impracticable for the Commissioner or his delegate personally to do all those things which must be done to determine the merits of each applicant for appointment to a particular position. The Act recognises this and proceeds on the footing that the Commissioner will act not only by his delegates but with the support and through the assistance of others. 57 Nevertheless, the power to appoint rests with the Commissioner or his delegate alone, subject to appeal to GREAT. The power to appoint necessarily encompasses the power to refuse to appoint a person to a position for which that person has applied for appointment. That power, which is implied in and consequential upon the exercise of the power to appoint, is again personal to the Commissioner or his delegate, subject to appeal to GREAT. 58 It is submitted by Mr Haylen on behalf of the Commissioner that, as the Commissioner has power to appoint, he necessarily has power to determine qualifications for appointment. This submission finds much support in the sections to which I have referred which show that the Commissioner is responsible for the management and control of the Police Force and for the creation, the abolition, the classification and the grading of positions in the Police Service. It also finds support in the definition of "merit" which in paragraph (a) refers to "qualifications determined in respect of the position by the Commissioner". 59 Dr Flick submitted nevertheless that when s 81C uses the expression "eligible for appointment to the vacant position", it refers only to those provisions of the Act itself which impose a qualification on eligibility for appointment. One such requirement referred to by Dr Flick appears in s 94(1) of the Act which provides that a person is eligible to be appointed as a member of the Police Service only if the person is an Australian citizen or a permanent Australian resident. In my opinion, the words in s 81C are not so restricted. The Commissioner has the power to create positions and the power to determine qualifications for the holding of positions. 60 A publication entitled "Police Service Weekly", which was issued on 14 December 1998, described an assessment process which was then in operation in respect of applicants for positions of the rank of inspector or above. The counsel agreed that the process would have been applicable at the relevant time. The publication stated, inter alia: "ASSESSMENT CENTRE PROCESS Applicants for positions at the rank of inspector or above should note an assessment centre will be a component of the recruitment process for positions at that rank. Unless otherwise specified in the information package, the assessment centre will be the operational manager/supervisor centre currently conducted for duty officers/crime managers. Progression to the assessment stage of the process is not automatic as an application cull will be conducted. Those applicants progressing to assessment centre who do not meet the standard of assessment, will not progress to the interview stage. Applicants who have previously completed the assessment process, whose applications are progressed from the application will not need to complete the assessment centre as previous results will stand. Conversely, results of those previously unsuccessful at the assessment centre will stand for 12 months from date of assessment. Details of the assessment centre process are included in the information package." 61 Express evidence was not given to the Tribunal that the Commissioner had in fact determined any particular qualifications for the subject vacant positions. However, it was submitted by Mr Haylen that an inference should be drawn from that publication and from the documents which I shall shortly mention that a relevant qualification had been laid down by the Commissioner. I should emphasise that there is a difference between the establishment of qualifications for appointment on the one hand and the establishment of a promotions process on the other. 62 The matter commenced with the creation or coming into being of the vacancies for certain positions carrying the rank of inspector or chief inspector. A document which had the heading "expressions of interest" was issued. The document described the vacant positions and contained the following material, inter alia: "Expressions of interest are now sought from officers interested in being assessed for the following chief inspector and inspector positions within Crime Agencies. (emphasis added)

To apply to be assessed for one of these roles, officers must have a minimum of nine years' service and hold the rank of senior constable or above.

Persons seeking appointment to any of the above positions, who are currently at the same rank will need to formally apply. The process will be as follows:

submission of a competency linked application as described

lateral applicants will not be required to undergo assessment centre processes

applicants will be called for a structured interview in competition with those who successfully complete the assessment centre.

Applicants must adhere to all the parameters set out in the application form which means addressing competencies on pages 4 to 7 only, two additional pages for each position overview criteria, one commander comment and one referee comment. (emphasis added)

To apply for any of these roles, applicants must submit an application in two parts: …

Applicants must address designated criteria outlined in the position overview. This must be submitted for each role for which an applicant wishes to be considered and must not exceed two pages for each position applied for. These are obtainable from region human resource managers.

Applicants should list, in preference order, the vacancies they are interested in from the vacancy list."

It is to be noted that this document consistently referred to those who applied as "applicants" . It referred to the process to be undergone as an assessment for the chief inspector and inspector positions applied for. 63 The application form was headed "NSW POLICE SERVICE APPLICATION FOR ADVERTISED POLICE POSITIONS - MERIT BASED PROMOTION". The document contained the following information: "One application form is required for each Job Stream Responsibility (JSR). Applicants should express any preference they have for a particular location within the nominated JSR. Applicants will be interviewed once only in any one JSR."

The form was clearly an application for appointment to a designated position or positions. 64 On the second page of the application form, a heading "SELECTION CRITERIA" appeared. Underneath that heading was the information, "Selection Committees will assess applicants on a comparative basis from the applications received" (emphasis added). On the same page there were boxes for the insertion of relevant post secondary educational qualifications and relevant in-service courses. On subsequent pages there were headings with spaces left to be filled in for "Demonstrated possession of high integrity standards", "Demonstrated understanding of responsibility and personal accountability", "Understanding of the Principles for a Culturally Diverse Society and issues pertaining to Aboriginal communities", "PLANNING/ORGANISING AND WORK MANAGEMENT", "COMMUNICATION", "TEAMWORK/COLLABORATION", "MAXIMI-SING/PERFORMANCE", "INDIVIDUAL LEADERSHIP/INFLUEN-CING", "DECISION MAKING" and "TECHNICAL/PROFESSIONAL KNOWLEDGE". 65 The application form contained space for a report by the applicant's first level Commander/Manager rating the applicant's competency, commenting on the applicant's integrity and providing any further information considered relevant. The application form also contained a referee's comment form and the applicant was invited to nominate a referee and to have that form completed. 66 I should comment at this stage that the application form which each of the applicants filled in was on its face an application for appointment to a nominated vacant position or positions. The form contained all the necessary information which would be required of an applicant seeking appointment to those positions. As requested, the information provided by each applicant directed its attention to the applicant's capacity to fulfil the position or positions sought. The applicants were required to obtain a report by their first level Commander/Manager and were invited to attach a report from a referee. The referee was asked to comment on the applicant's "capacity to fill the position/s applied for". On its face, the exercise was not directed to establishing the applicant's general capacity to fill positions of rank of inspector or chief inspector. Even applicants who were not to be assessed were required to complete such a competency linked application. The exercise directed its attention to the particular positions applied for. Moreover, applicants were to be assessed "on a comparative basis from the applications received". Counsel are agreed that the task of assessment was to be undertaken on the basis of comparative merit. 67 Each of the applicants filled in and lodged one of these application forms. Apparently, the appellant Phillip John Meehan was culled at an early stage. He did not receive an invitation to attend the Assessment Centre. The other appellants received invitations and they each attended the Assessment Centre. Each assessment took a day. 68 The appellants who attended the Assessment Centre were weeded out after their assessment. They each received a letter which read, inter alia: "I regret to advise that your results from that process were not of a standard to enable your inclusion in the eligibility pool for various Crime Agency positions . (emphasis added) The standard for entry into the Team Leader eligibility pool (if you do not currently hold the appropriate rank) is yet to be determined. Advice will be forwarded to you in due course should you consequently be included in that eligibility pool. (emphasis added) … You are able to reapply to undertake this process following a period of 12 months. The 12 month period has been determined in order to provide you the opportunity to undertake development action. A component of this process is to provide you with an opportunity to attend a formal debrief session."

Attached to the letter was a document which gave details of the applicant's overall performance in the assessment process. 69 It will be noted that the appellants were assessed as not eligible for inclusion in "the eligibility pool" for the subject positions but were advised that they may be later included in "the Team Leader eligibility pool", the standard for entering into which had not then been determined. The document before the Tribunal did not include any expressed standard in respect of eligibility for appointment to the vacant Crime Agency positions. 70 An advertisement seeking applications for the vacant positions appeared in the Police Service Weekly of 14 December 1998. That advertisement, in addition to specifying the vacancies, stated, inter alia: "Applicants who successfully completed the assessment centre for Crime Agencies (published in PSW Vol 10/18, dated 4 May) are now invited to apply for the following vacancies. Interested applicants should submit page 1 and 2 of the application form and forward to Placement Services by the closing date. Applicants who successfully completed the operational supervisor assessment centre, but did not submit an expression of interest for the Crime Agencies assessment centre, may also apply for these vacancies. Applicants in this category must submit a full application form addressing the relevant competencies. These applications will be subjected to a cull by the selection panel. " 71 One can see that the persons who were invited to apply were those who had earlier applied and who had been successful in the assessment process. On this occasion, they were asked to fill in only pages 1 and 2 of the application form and not all the other material which one would have thought would ordinarily have been expected of an applicant for a particular position. There was an additional note that applicants who had not submitted an expression of interest for the Crime Agencies assessment centre but who had successfully completed the operational supervisor assessment centre could apply; but in this case, the applicants were required to submit a full application form addressing the relevant competencies. It was noted that those applications were subjected to a cull by the selection panel. 72 It has been put by Mr Haylen that an inference should be drawn from these documents that the Commissioner specified as a qualification for appointment to the vacant position that applicants should have satisfactorily completed assessment by the Assessment Centre. It was submitted that the applicants had been given an opportunity of expressing an interest in appointment to the positions, that they had done so but they had not obtained a favourable assessment and, accordingly, that they had not been qualified to apply for appointment to the advertised positions. 73 The Tribunal adopted that view and said, in the course of its reasons: "The Tribunal finds, however, that the provisions of s.81C(1) of the Police Service Act exclude a right of appeal for the appellants, because they are not 'eligible for appointment' to the subject positions. They are not eligible because they do not possess one of the qualifications determined in respect of the subject positions by the Commissioner in accordance with s.3(1)(a) of the Police Service Act. In common parlance they have not yet passed the 'exam'. The lack of such qualification means they are unable to demonstrate 'merit' as defined by the statute for appointment to the subject positions. … The Tribunal's conclusion appears consistent with the general scheme and intention of the Government and Related Employees Appeal Tribunal Act, 1980, (GREAT Act), which recognises that an appeal which would otherwise be available to the Tribunal should be excluded in certain circumstances. One of those circumstances is referred to in the provisions of s.21(1)(h) of the GREAT Act which provides:- ' An employee is not entitled to appeal under section 20 in respect of the decision of an employer relating to a vacant office: …. (h) unless he satisfies the minimum requirements, in relation to the vacant office, of any Act, statutory instrument, industrial award or agreement or advertisement referred to in section 20,' …. The Tribunal considers it clear that the appellants do not satisfy the minimum requirements of the advertisements published by the respondent in relation to the vacant offices the subject of these appeals."

For those reasons, the Tribunal held that it had no jurisdiction to hear and determine the appeals. 74 Dr Flick submitted, however, that the process of assessment which had been undertaken was not a process of establishing a qualification but a process of assessing each applicant on the basis of comparable merit for appointment to the advertised vacant positions. He submitted that the assessment process involved not the establishment of objective criteria but the assessment or weighing up of each applicant's individual merits and a comparison of those merits with the merits of other applicants. 75 The question is whether the obtaining of a favourable assessment was one of the qualifications laid down by the Commissioner for appointment to the vacant positions or whether it was merely part of a process by which applicants for the vacant positions were assessed and judged. 76 I agree with Mr Haylen that the Commissioner was entitled, if he chose to do so, to establish a system whereby potential applicants for appointment of the rank of inspector or above, would be required to obtain an assessment that they were fit to be appointed to that rank. But what I have in mind is not an assessment of fitness for appointment to a particular position, but fitness for appointment to a level of rank. There was no evidence before the Tribunal that such a system was established. The description of the Assessment Centre process which appeared in the Police Service Weekly commenced with the words, "Applicants for positions at the rank of inspector or above should note an assessment centre will be a component of the recruitment process for positions at that rank" (emphasis added). The assessment process was a part of the process of establishing the comparable merits of applicants for appointment to the particular positions. The assessment undertaken was an assessment of their competencies in relation to the positions applied for. The process certainly enabled applicants who were unsuccessful to reapply following a period of twelve months. But whether they could do so without applying for another vacant position was not stated. 77 In my opinion, the requirement that there be an assessment did not establish a qualification. The fact that the application forms directed attention to capacity to fulfil the positions applied for, that the applications were supported by the report of the senior officer under whom the applicant served and a report of a referee and that all these matters were directed to the applicant's capacity to undertake the task required of the holder of the vacant position shows that the assessment process involved an assessment of capacity to perform in the position to which appointment was sought. This conclusion is underlined by the fact that the persons who successfully passed the assessment process were not required to provide such details for the purposes of the further consideration of their applications, for they had already been assessed in respect of them. 78 I see nothing wrong in this procedure, save that it could not be determinative. No person other than the Commissioner or his delegate had the right to refuse an application for appointment. The refusal by the Commissioner or his delegate which was constituted by the appointment of another officer to each of the advertised positions was subject to appeal to GREAT. That right of appeal is laid down by the Act and cannot be excluded by any process established by or with the authority of the Commissioner. 79 Perhaps the question arises as to whether the forms filled in by each of the applicants constituted an application for appointment to the vacant positions or a mere expression of interest in those positions. I consider it clear, having regard to the form of the application which each of the applicants filled in and to the processes which was undergone, that each applicant applied for appointment to one or more of the positions in question. 80 In my opinion, it was not open to the Tribunal on the material before it to find otherwise than that each of the appellants was an applicant and each was eligible for appointment. It follows that the Tribunal was wrong in law in holding that each of the appellants was not entitled to appeal to GREAT from the relevant appointment made by the Commissioner. 81 I would allow the appeal. I would set aside the ruling of the Tribunal and would remit the matter to the Government and Related Employees Appeal Tribunal to hear and determine the appeals lodged with it. I would not make a declaration that the Tribunal had jurisdiction. Mr Haylen raised the possibility that, because of the way in which the matter proceeded before the Tribunal, all relevant evidence as to the nature of the assessment process may not have been put before the Tribunal. Whether the Tribunal will permit any further material to be adduced on the issue of jurisdiction is a matter for the Tribunal. I would order that the Commissioner of Police pay the costs of these proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Government and Related Employees Appeal Tribunal Act 1980(NSW)

Police Service Act 1990(NSW)

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