O'Connell & Anor v Nixon & Anor [2007] VSCA 131

1 I have had the advantage of reading the draft reasons for judgment in this matter of Nettle JA. In my view, this appeal should be dismissed. I consider that, for the reasons given by Nettle JA, the Police Regulation Act 1958 ("the Act") and the Police Regulations 2003, together, constitute the statutory scheme that governs the right of appeal against the decision of the Commissioner under s 8 of the Act. It also seems to me that, as his Honour explains, reg 28 is not invalid because, as contended by the appellants, it is outside the regulation-making power in s 130 inasmuch as it prohibits appeals against the Commissioner's decision, albeit subject to the discretion of the Appeals Board. Thus, consistently with the provision in s 8AA(1) of the Act that relevant rights of appeal are 'Subject to the regulations', appeals against promotion or transfer are governed by the regulations such that, where the member has not applied for the promotion or transfer, as was the case with the present appellants, he or she has no right of appeal unless the Board otherwise determines. If the matter were to be considered only in the context of s 8AA absent the Regulations, then, as Nettle JA observes, a right of appeal might not be excluded merely because the appellant did not apply for promotion or transfer.

2 I note for completeness that no attack has been made by the appellants on the merits of the Board's decision to refuse leave to appeal. Hence, as I have said, I would dismiss the appeal.

3 This is an appeal from a judgment given in the Common Law Division in favour of the respondents. The appellants' claim below was for relief in the nature of certiorari and mandamus in respect of a decision of the Police Appeals Board pursuant to reg 28(2)(b) of the Police Regulations 2003. The Board's decision was to refuse permission for the appellants to appeal under s 8AA of the Police Regulation Act 1958 ("the Act") against a decision of the Chief Commissioner of Police to

transfer a member of the Victoria Police force from one position to another.

4 The principal issue below was whether reg 28(2)(b) of the Police Regulations is invalid as repugnant to or inconsistent with s 8AA of the Act. The judge held that it was not and thus dismissed the application. The appellants contend that her Honour erred in a number of respects. The respondents contend that she was right for the reasons which she gave. They also contend[1] in the alternative that s 8AA of the Act is limited to appeals against non-selection for promotion or transfer to a position for which the member of the Force seeking to appeal has applied to be promoted or transferred, and hence does not have any application to the facts of this case.

The legislation

5 The powers of the Chief Commissioner to appoint, promote and transfer police officers are set out in s 8 of the Act, as follows:

"8. Appointments to and promotions and transfers within the force

(1) The Chief Commissioner may, in accordance with the regulations, appoint, promote and transfer-

(a) so many commanders, chief superintendents, superintendents, chief inspectors and inspectors; and

(b) so many senior sergeants, sergeants, senior constables and constables-

(2) A person appointed or promoted under sub-section (1)(a) shall on the certification of the Governor in Council, be an officer of the force.

* * * * * *

(4) Every appointment as a constable is subject to two years' probation, and every other appointment and every promotion to one year's probation.

(5) The Chief Commissioner may disallow a promotion or terminate an appointment at any time during an initial or further period of probation.

(6) Unless a promotion is earlier disallowed (under this section or on an appeal) or an appointment is earlier terminated-

(a) at the end of the initial period of probation, the Chief Commissioner must-

(i) confirm the promotion or appointment; or

(ii) disallow the promotion or terminate the appointment; or

(iii) extend the probation for a period not exceeding one year; and

(b) at the end of the further period of probation, the Chief Commissioner must-

(i) confirm the promotion or appointment; or

(ii) disallow the promotion or terminate the appointment.

(7) If a promotion is disallowed, from the time of disallowance the member's rank is the rank he or she held immediately before promotion.

(8) If the Chief Commissioner terminates the appointment of a person who was not a member of the force immediately before being appointed, the appointee must be dismissed from the force.

(9) In determining whether or not an initial or further period of probation has ended, any period of suspension, leave without pay, sick leave of one month or more continuously, maternity leave or long service leave must be disregarded.

6 Appeals against promotions and transfers effected pursuant to s 8 are provided for in s 8AA of the Act:

"8AA. Appeals against non-selection for promotion

(1) Subject to the regulations, a member of the force who considers that he or she has a better claim to promotion or transfer under section 8 than the member selected for promotion or transfer may appeal to the Appeals Board.

(2) No appeal may be had in relation to the rank of superintendent, chief superintendent or commander.

(2A) No appeal may be had in relation to a position of constable (general duties) or senior constable (general duties).

(2B) No appeal may be had in relation to the promotion of a constable who holds a position to the rank of senior constable in the same position.

(3) The only grounds for appeal are-

(a) in relation to the rank of senior sergeant, sergeant or senior constable-

(i) superior efficiency; or

(ii) equal efficiency and greater seniority;

(b) in relation to the rank of inspector or chief inspector-superior efficiency.

(4) An appeal must be lodged within 10 days after the day on which the member is notified of the member selected for promotion or transfer.

(5) If the regulations provide for the notification of members selected for promotion or transfer, a member is to be taken, for the purposes of sub-section (4), to have been notified of a member selected for promotion or transfer on the day on which the selection is notified in accordance with the regulations."

7 The grounds for promotion and transfer and the basis on which appeals against promotions and transfers are to be decided are provided for in s 8AB of the Act:

"8AB. Grounds for promotion or transfer

(1) In a promotion or transfer under section 8 and in an appeal under section 8AA-

(a) regard shall be had to the efficiency of the candidates; and

(b) regard shall not be had to their relative seniority unless, in relation only to the rank of senior sergeant, sergeant or senior constable, they are considered to be equally efficient.

(1A) This section does not apply to a promotion or transfer to a position of constable (general duties) or senior constable (general duties).

(1B) This section does not apply to a promotion of a constable who holds a position to the rank of senior constable in the same position.

(2) For the purposes of this section and sections 8 and 8AA-

"efficiency" means-

(a) the aptitude and special qualifications necessary for the discharge of the duties of the position in question, together with merit, diligence, good conduct, quality of service, mental capacity and physical fitness; and

(b) potential to develop the executive ability and leadership and management skills essential in senior executive positions-in relation to the rank of inspector; and

(c) the executive ability and leadership and management skills essential in senior executive positions-in relation to the rank of commander, chief superintendent, superintendent or chief inspector;

"general duties" means primary response and general patrol duties;

"transfer" means the transfer of a member of the force from one position in the force to another at the same rank."

8 Regulation 28 of the Police Regulations 2003 provides that:

"28. Requirements for an appeal

(1) An appeal under section 8AA or 118B of the Act must-

(a) be in writing; and

(b) state the grounds of appeal.

(2) Unless the Appeals Board otherwise determines, a person is not entitled to appeal against any promotion or transfer if the person-

(a) did not satisfy the qualifications, eligibility criteria or time-in-position requirements for the position; or

(b) did not apply to be promoted or transferred to the position; or

(c) is a person whose application for a transfer or promotion to the position has lapsed under regulation 26."

9 In this case neither of the appellants applied for the position which is the subject of the appeal and it was for that reason that their appeal to the Board was refused.

The meaning of s 8AA

10 The appellants argue that s 8AA is to be understood as conferring a statutory right of appeal which is limited only by the provisions of the Act itself and that the statutory scheme of appeal is thus relevantly defined by ss 8AA, 8AB, 91E(1) and 91Q, as follows:

11 Section 8AA(1), confers a right of appeal on any member who considers that he or she has a better claim to the position;

12 Section 8AA(3), confines the appeal to grounds of superior efficiency or equal efficiency and greater seniority;

13 Sections 8AA(2), (2A) and (2B), "carve out" or in other words specifically except from the right of appeal appeals in relation to the position of constable (general duties) or senior constable (general duties) or in relation to promotions of a constable to the rank of senior constable in the same position;

14 Section 91E(1) provides that the appeal is to by way of a rehearing de novo;

15 By implication, the Act imposes an obligation on the Board to hear and determine each such appeal;

16 Section 91Q, requires the Chief Commissioner to give effect to the Board's determination; and

17 Section 130(1)(f) confers a power to make regulations for or with respect to appeals limited to machinery provisions not inconsistent with the rights of appeal conferred by the Act.

18 On that basis the appellants contend that, notwithstanding that s 8AA in terms describes the right of appeal as one which is "subject to the regulations", the Act does not contemplate or authorise the promulgation of regulations which restrict or limit the right of appeal any further than it is directly limited by the provisions of the Act. Accordingly, the appellants say that, inasmuch as reg 28(2)(b) purports to limit or restrict the right of appeal given by s 8AA[2] in a fashion that is not directly provided for in any provision of the Act, it is invalid as departing from or varying the plan for appeal which the legislature has adopted.

19 I do not accept the argument. In my view the legislative scheme of appeal is not defined solely by the provisions of the Act. Rather, to adopt and adapt the words of Dixon J from another legislative context, it:

" ... depends in a remarkable degree upon the regulations made under the power which it confers on the Executive. Without the regulations, not only is it unworkable, but the expression of the legislative policy is so inadequate as almost to be unintelligible.[3]

20 So much emerges from the history of the legislation. Under s 5 the Police Regulation Act 1958 the Chief Commissioner has at all relevant times had the superintendence and control of the Force, subject to the regulations to be made by the Governor in Council. Additionally, until the recent past, virtually all matters relating to transfer, promotion and appeals against transfers and promotions were provided for in Police Regulations. For example, under reg 251 of the Police Regulations 1957 members were (as they still are) liable to immediate transfer to any part of the State. But in effect the generality of that part was extensively limited by further regulations requiring that all vacant positions be advertised, and restricting the right of the Chief Commissioner to fill a vacant position to members who had applied for the position.

21 In substance those arrangements were continued under the Police Regulations 1979. Regulation 901 gave the Chief Commissioner an over-riding authority immediately to transfer any member of the Force to any part of the State "in order to maintain the discipline and efficiency of the Force". But as under the previous regulations, that power was subject to the considerable restraint that reg 904 required every vacant position to be advertised in the Police Gazette, and that those officers who were interested were to apply for the transfer, and that the Chief Commissioner could only select a member for the position from among those who had applied; and if no one applied, that the position had to be re-advertised. Regulation 906 then provided that any member who had applied and was not selected for the transfer had a right of appeal to the Police Service Board.[4]

22 Similarly, in the case of promotions, Part XIII of the Regulations provided comprehensively for the conduct of examinations necessary to be passed before members could be considered as eligible for promotion to particular ranks, and required candidates to be graded "A", "B" or "C" according to their performance in the examinations. Those graded "A" were considered to be eligible for promotion to the relevant rank. Those graded "B" were considered to be not yet eligible for promotion. Those graded "C" were considered not to be eligible for promotion.[5] Regulation 1330 provided that the Chief Commissioner could only fill a position by promotion from among those who had applied for promotion and been graded "A". Regulation 1333, however, gave a right of appeal against the selection to anyone who had applied and was aggrieved by their non-selection, regardless of whether they had been graded "A", "B" or "C".[6]

23 Consequently, as at 1990 at the time of introduction of ss 8 and 8AA and 8AB,[7] there was in existence a detailed delegated legislative scheme providing extensively for transfers and promotions and for the circumstances and conditions of appeals against transfers and promotions, and it was against that background, and in terms "subject to" it, that the right of appeal created by s 8AA was enacted.

24 Curiously, as originally enacted s 8AA applied only to promotions, and so for some time appeals against transfers continued to be governed exclusively by the regulations.[8] But even while that remained the case, the Police Regulations were substantially amended by the Police (Amendment) Regulations 1991 which substituted a new Part VIII, including new regs 804 and 805. Regulation 804 maintained the previous requirement to advertise vacancies for promotion and transfers. But reg 805 provided for the first time that the Chief Commissioner could fill a vacancy by promotion or transfer of a member whether or not the member had applied for the position. The Amendment Regulations also substituted a new Part IX which provided comprehensively for appeals against promotions and transfers under s 8AA[9] and, in a new reg 909, that a member could not appeal against a transfer or promotion for which he had not applied unless the Police Service Board otherwise determined.

25 Consequently, when the Act was amended in 1992 to include in s 8AA the words "or transfer",[10] the statutory right of appeal against transfers so created took effect against a background of regulations which in terms regulated appeals against transfers under s 8AA and in terms restricted such appeals to members who had applied for the positions in question (unless the Police Service Board otherwise determined). Those limitations were later repeated in the reg 28 in the Police Regulation 2003 with which we are concerned.

26 In light of that legislative history, and particularly the express subjection of s 8AA to regulations which were promulgated in anticipation of its amendment, it appears to me improbable that Parliament intended by the amendment to create a right of appeal against transfers which was untrammelled by the regulations. Since the legislative scheme of transfers and appeals had until that point been more or less wholly comprised in regulations and, once introduced, s 8AA formed part of the Act under which those regulations continued to operate,[11] it is surely more likely that Parliament meant what it said: that s 8AA would operate "subject to the regulations".

27 Obviously, to the extent of any necessary inconsistency between the new s 8AA and the existing regulations, s 8AA operated as an implied repeal of the regulations.[12] But the degree of inconsistency was limited. Whereas reg 904(5) had up to that point provided that the criteria for selection for transfer included seniority, s 8AB made efficiency the sole criterion unless two candidates were judged to be of equal efficiency; and s 8AA(3) provided that the same should be the criteria in the event of appeal. Otherwise, however, the bare terms in which ss 8, 8AA and 8AB were expressed were indicative of a legislative scheme designed to leave the bulk of the detail to regulation. Hence, as it appears to me, the right of appeal enacted in s 8AA was from its inception limited by the regulations.

28 The appellants contend that to reason in that fashion is to construe the Act by reference to regulations, and I acknowledge that, generally speaking, the intention of Parliament in enacting legislation is not to be ascertained by reference to the terms in which a delegated power to legislate has been exercised.[13] But, as is pointed out in Pearce & Geddes,[14] there are exceptions to the general rule. As has been noticed, where a legislative scheme is comprised of both an Act and the regulations made under it, one may look to the regulations in order to understand the nature of the scheme. It has also been held in this country that it is permissible to refer to delegated legislation as a direct aid to construction of an ambiguous or obscure statutory provision, at least in cases where a contemporaneously prepared act and set of regulations may be seen to establish an interdependent regime. There are too the developments in this area of the law in England, which are encapsulated in Lord Lowry's eight part categorisation of the cases in Hanlon v The Law Society[15] (of which one is "where a statutory provision permits exceptions to be made to it by regulations"[16]). And I note that in John Ward v Commissioner of Police[17] Moore J of the Federal Court of Australia referred to the Hanlon analysis with apparent albeit qualified approval. I also agree with the judge below that, just as when a section of an Act of Parliament expresses itself as being subject to another section of the Act it may be taken as meaning that the latter is to some extent intended to prevail,[18] so too when a section of an Act of Parliament expresses itself as subject to regulations it may be taken as meaning that the latter is to some extent intended to prevail. Most importantly, however, the fundamental question is whether the regulations are within the scope of the section,[19] and as a matter of logic and common sense one can hardly come to a view about that without first looking to the regulations to which the section expresses itself to be subject.

29 The appellants argue that that is a false analogy. They contend that the regulation making power conferred by the Act is limited to regulating the subject matter of the Act and so does not permit of regulations which diminish rights conferred by the Act. It follows in the appellants' submission that the words "subject to the regulations" can mean no more than that the section is to operate in accordance with regulations which are not inconsistent with the section.

30 In my view that submission should be rejected for a number of reasons. First and foremost, it would have the effect that the words "subject to the regulations" are either otiose or else mean no more than "in accordance with the regulations". I do not accept that the words are otiose. As a general principle courts are not at liberty to consider any words as superfluous or insignificant. Prima facie they must be given some effect,[20] and while it is sometimes impossible to give a full and accurate meaning to every word of an enactment, the court is still required to give the words the construction "that produces the greatest harmony and least inconsistency" with the rest of the Act.[21]

31 I also reject the idea that the words mean no more than "in accordance with". It is apparent from s 8 that when Parliament intended something be done in accordance with the regulations, it provided that it should be done "in accordance with the regulations". It is apparent from s 8A that, when Parliament intended that a section operate subject to another section, it provided that the former should operate "subject to" the latter. It is also apparent from s 8A that when Parliament intended a section of the Act to operate subject to both the Act and the regulations, it provided that it should operate "subject to the Act and the regulations". Then, moving further afield to s 5, it will be seen that where Parliament intended to restrict the control conferred on certain officers of police in otherwise unlimited terms, it did so by providing that such control should be subject to the regulations (I note in passing that that is also a further manifestation of the fact that this legislative scheme depends in a "remarkable degree" upon the regulations made under the power which it confers on the Executive). Granted that interpretation of an Act of Parliament in accordance with the maxim expressio unius est exclusio alterius is rarely conclusive and often of little assistance,[22] in this case the consistency of the drafting suggests that it is an accurate reflexion of Parliamentary intention.

32 The appellants' argument also depends to a large degree on the notion that the regulation making power contained in s 130 is to be read as if it provided for no more than the making of regulations "not inconsistent with this Act, for or with respect to any matter ... required or permitted to be prescribed"[23] - and hence, by analogy with Shanahan v Scott[24] and Wood v Bate,[25] that it cannot be seen to authorise the making of a regulation which would change the right of appeal which the appellants submit is conferred in unqualified terms by the section. I see no reason to read down the section in that fashion. Unlike the regulation making power in Woods v Bate, s 130 is not limited in terms to regulations "not inconsistent with the Act" and, although it has been said in another context that such a distinction may not make a difference,[26] it is apparent from the content of s 130 and from the fact that provisions such as ss 5 and 8A are expressed as operating "subject to the regulations" that s 130 will support some modificantions and restrictions of what is prima facie provided for in unrestricted terms in the Act itself.

33 The appellants' approach assumes that the regulation making power conferred by the Act rises no higher than the power in s 130(1)(j) to make regulations "for or with respect to" "...any matter or thing required or permitted to be prescribed or which is necessary or convenient to be prescribed for carrying this Act into effect" and therefore does not:

" ... support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends."[27]

34 In my view, however, that is not so. For in addition to s 130(1)(j), there are some broader powers which appear to be calculated to enable regulations that add means of carrying out the purposes of the Act; and so to some extent to inform the legislative plan for achieving that objective. I have in mind in particular s 130(1)(df) which provides for regulations for or with respect to "the government of the members of the force" - a power that seems to me to be designed for the augmentation and to some extent modification of the provisions of s 5(1); s 130(1)(dg) which provides for regulations "for or with respect to" "any matter necessary or expedient to promote the eficiency of the force or to promote the efficient discharge of duties by any member or any class of members of the force" - a power which I view as being for the augmentation and to some extent modification of the provisions of ss 5(1), 8 and 8A; and s 130(1)(f), which provides for regulations "for or with respect to" "appeals and reviews by the Appeals Board" - which appears to have been drawn to allow for the augmentation of the provisions of s 8AA.

35 Furthermore, I agree with the judge below that there is much in the text of ss 8AA and 8AB which is consistent with a legislative intention, or at least a legislative assumption, that the regulations to which s 8AA refers do or could prescribe as a condition of appeal against promotion or transfer that the appellant have been an applicant for the postion in question. As the respondents submitted, the use of the words "selected" and "selection" throughout s 8AA is significant.[28] Those terms are redolent of a choice between applicants, or at least of a choice from a known and ascertainable field of applicants, and in turn that implies that the sort of appeal with which the section is primarily concerned is one against a promotion or transfer for which the Chief Commissioner has selected the successful candidate from an identifiable field of applicants.

36 That impression is reinforced by the fact that the only kind of appellant for whom s 8AA(1) provides is one who considers that he or she has "a better claim" to the promotion or transfer than the member selected. The comparative "better" is consistent with the Chief Commissioner having made her decision on the basis of a comparison between successful applicant and appellant; and the same is true of the fact that, under s 8AB, the only grounds of selection are superior efficiency or, in the case of equal efficiency, equal efficiency and greater seniority.

37 Another indication that appeals were seen as being limited to persons who have applied for the position in question is that s 91E of the Act provides that an appeal under s 8AA shall be an appeal "by way of rehearing" - it is unnecessary to say whether that means a rehearing de novo[29] or simply a rehearing[30] - and the idea of a "rehearing" implies an intention that the Board will do again what the Chief Commissioner has done before. Plainly, that would not be possible unless the appellant had been the subject of consideration by the Chief Commissioner. To that may be added that, where the Act has in mind a review of a decision which relates to only one member, as it does in providing for review of a decision by the Chief Commissioner compulsorily to transfer a member, it speaks in terms of "review" of the decision and not of appeal by way of rehearing.[31]

38 The appellants argue in the alternative that, even if the expression "subject to the regulations" means that the right of appeal is to some extent subjected to the regulations, the restriction of appeals to members who have applied for the position in question goes beyond what can reasonably be regarded as appropriate and adapted to achieve the purposes of the legislative plan or, as that idea is now sometimes expressed, as being disproportionate to the object to be achieved.[32] In the appellants' submission, the sorts of regulation that could properly be regarded as appropriate and adapted to achieve the purposes of the legislative plan would be limited to those which provide for machinery to facilitate the making and hearing of appeals and anything beyond that would be plainly invalid as a restriction on the right of appeal contemplated by the Act.

39 I do not accept that contention either. It appears to me to be based on authorities which were concerned with substantially different legislative provisions. As opposed to those provisions, I do not see anything in the text of s 8AA or elsewhere in the Act which so limits the object or purpose of s 8AA as to confine the reach of reasonable proportionality to machinery provisions. Bearing in mind that s 8AA was enacted to provide for rights of appeal against promotions and transfers of the kind to which ss 5 and 8 and 8AB are now directed, and that the latter sections in terms provide for the limitation by regulation of the members of the force who may apply for promotions and transfers, it presents as logically appropriate and reasonably adapted to achievement of the purpose of the section for there to be corresponding regulation of the rights of appeal.

40 The appellants seek to resist that conclusion on the basis that, whatever the width of the regulation making power in s 130, it can go no further than a power to make regulations regulating the subject matter of appeals against transfers and promotions, and that prima facie a power to make regulations regulating a subject matter does not extend to prohibiting it altogether or subject to a discretionary licence or consent. In the appellants' submission, reg 28(2)(b) is a prohibition on appeals by members who have not applied for a position, subject only to the discretionary licence or consent of the Police Service Board.

41 I reject that submission too. I accept that a power to regulate does not include a power totally to prohibit, and a prohibition subject to a discretionary licence or consent is for that purpose regarded as a prohibition.[33] Thus, in Swan Hill, a power to make by-laws regulating and restraining the erection and construction of buildings was held not to support a by-law which in terms prohibited the erection of any building within the municipality "unless with the approval of the council". Similarly, in Shanahan v Scott, a power to make regulations providing for all or any purposes (whether general or to meet particular cases) necessary or expedient for the administration of this Act or for carrying out the objects of this Act, and in particular, without affecting the generality of the foregoing - "(b) ... in relation to any board, for or with respect to - ... (iv) ... regulating the transport treatment manufacture grading processing branding labelling packing storage marketing selling exporting and delivery of the commodity (whether the same is produced within or outside Victoria) or the packages containing such commodity", was held not to support a regulation which provided that no person shall without the consent of the Egg Board place or cause to be placed any eggs in cold storage premises. The basis of the decision was that a prohibition on cold storage and preservation subject to a power of consent is not "regulating " storage. It is a form of prohibition which operates as a complete prohibition unless consent happens to be obtained.

42 But logically and as a matter of authority a power to regulate an activity may include a power to prohibit part of an activity subject to discretionary dispensation. Hence, in Ex parte Cottman; Re McKinnon[34] a power to regulate the Domain was held to support a by-law which prohibited distribution of printed material in the Domain unless authorised by the chief commissioner; and in this case the only appeals which are prohibited are those in which the appellant has not applied for the position in question, and that is subject to discretionary dispensation. Further, as Dixon J said in Swan Hill, a power to make by-laws of the kind which was there in question may allow the prescription of time, place manner and circumstance and the imposition of conditions;[35] and, in point of principle, a regulation which limits the classes of case in which a right of appeal may be exercised does no more than prescribe the manner and circumstances of the exercise of the right of appeal.

43 Similarly, it has been held that the restrictions imposed by s 35 of the Judiciary Act 1903 on the right of appeal conferred by s 73 of the Constitution are permissible regulation of that right of appeal.[36] Perhaps that is different in the sense that it is to do with a restriction imposed by an Act of Parliament on a right of appeal conferred by the Constitution (as opposed to a restriction imposed by delegated legislation on a right of appeal conferred by an Act of Parliament). But inasmuch as s 73 of the Constitution is expressed to be subject to "such ... regulations as the Parliament prescribes", and the cases hold that financial jurisdictional limits and the requirement for special leave imposed by the Judiciary Act go no further than the sort of regulations which s 73 has in view, parity of reasoning implies that the sort of restriction which reg 28(2)(b) places on the right of appeal conferred by s 8AA goes no further than the sort of regulation which is envisaged by s 8AA.

44 Finally, it was said in Shanahan that, if the regulation there in question had been limited to eggs vested in the Board, there could have been no objection to it. The purpose of the legislation was to give the Board control of such eggs in all respects so that they could be marketed when, how and where the Board might decide conformably with the provisions of the Acts, and that to provide by regulation against chilling or preserving the Board's eggs would be nothing but filling in a detail of the plan which the Acts described.[37] In my view similar reasoning applies here. Inasmuch as the only restriction in reg 28(2)(b) is upon appeals by members who have not applied for the position in question, it fills in the legislative plan comprised of the Act and regulations to provide for appeals in cases where a selection has been made between competing candidates.

The respondents' contention

45 The judge below rejected the respondents' contention that the right of appeal provided for in s 8AA is incapable of application to appeals by members who had not applied for the position in question. With respect, I consider that her Honour was correct to do so.

46 For the reasons already given, I take the view that there is a good deal in the text of s 8AA and in other sections of the Act which implies that Parliament foresaw that the right of appeal for which s 8AA provides could be restricted by regulation to members who had applied for the position in question. That includes that the statutory criterion for appeal is that an appellant consider that he or she have "a better claim to promotion or transfer" and that an appeal is to be by way of "rehearing" on the basis of relative efficiency. In my view, however, that falls short of a legislative intention that the right of appeal be incapable of application in all circumstances to an appeal by members who have not applied for the position in question.

47 Although s 8AB directs the Chief Commissioner to make all transfers and promotions on the basis of "the efficiency of the candidates," and prima facie that implies a comparative assessment among a pool of applicant candidates, "efficiency" may be viewed as an individual attribute as much as a comparator and, as a matter of statutory interpretation, the plural noun-form "candidates" may include the

singular noun-form "candidate" unless the contrary intention appears.[38] Given that the police force is a disciplined force, it is likely that there will be cases where the Chief Commissioner is able to say of a member that he or she has the efficiency necessary to fill a position (in the sense of having the individual attributes necessary to perform the role) without first having to make a comparison between the efficiency of that member and the efficiency of others.[39] Accordingly, I see no necessity to treat the language of s 8AA as evincing an intention to exclude appeals from non-comparative selections in all circumstances. Rather, it seems to me that it may be read as capable of applying more broadly as the need arises, subject to the regulations from time to time.

Conclusion

48 I would dismiss the appeal.

49 I have had the opportunity of reading in draft the comprehensive reasons of Nettle JA and for those reasons agree that reg 28(2)(b) is not repugnant to s 8AA of the Act. The section was intended to confer a right of appeal subject to the discretion of the Appeals Board to limit the circumstance in which that right may be exercised. In providing that, "subject to the regulations," a member may appeal to the Appeals Board, the legislature intended to permit the fettering of the entitlement to appeal. The impugned regulation implemented the qualification that the statute contemplated.

50 I also agree with Nettle JA that the language of s 8AA does not preclude the right of appeal by a member who has not applied for the position. To confine

appeals to those who apply would mean that external scrutiny could be avoided by not advertising the position. The language of s 8AA does not mandate such an approach.

51 I would dismiss the appeal.

[1] By Notice of Contention dated 2 March 2007.

[2] To members who have applied for the position in question.

[3] Deputy Federal Commissioner of Taxation for the State of South Australia v Ellis and Clark Ltd [1934] HCA 54; (1934) 52 CLR 85, 89; see also Brayson Motors Pty Ltd (in liquidation) v Federal Commissioner of Taxation [1985] HCA 20; (1985) 156 CLR 651, 652; Minister for Immigration and Multicultural Affairs v A [1999] FCA 1679; (1999) 91 FCR 435.

[4] The Neesham Report in criticising these provisions noted that the Victoria Police were unique among state police in requiring all positions available for transfer to be advertised and in affording a right of appeal to those who were not selected: see Committee of Inquiry - Victoria Police Force - Report, Vol 1, [7.14.4]

[5] Regulation 1329(1)(b).

[6] These provisions were also criticised in the Neesham Report, but the changes which that report proposed were not adopted: above n 4, [7.14.1] et seq.

[7] They were introduced into the Act by the Police Regulation (Further Amendment) Act 1990, s 4.

[8] One possible explanation is that the amendments were said in the second reading speech to be intended to give effect to changes suggested by the Fitzgerald Committee, and one of the recommendations of that committee was that there should be no right of appeal against transfers. See: Report of a Commission of Inquiry Pursuant to Orders in Council, 255 [8.5.3].

[9] In apparent anticipation of the later amendment of s 8AA to include "transfers".

[10] Police Regulation (Amendment) Act 1992, s 7.

[11] Ocean Road Motel Pty Ltd v Pacific Acceptance Corp Ltd [1963] HCA 22; (1963) 109 CLR 276, 280; Commissioner of Stamps v Telegraph [1995] HCA 44; (1995) 184 CLR 453, 463.

[12] Pearce & Geddes, Statutory Interpretation in Australia (6th ed), [7.16].

[13] Webster v McIntosh [1980] FCA 128; (1980) 32 ALR 603, 606 (Brennan J); Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 77 ALR 8, 14 (Mason C J and Gaudron J).

[14] Pearce & Geddes, above n 12, [3.37].

[15] [1981] AC 124, 193-4.

[16] Which his Lordship based on the decision of the English Court of Appeal in Britt v Buckinghamshire County Council) [1964] 1 QB 77.

[17] [1998] 9 FCA, 14 January 1998; BC 9800005, 14.

[18] C & J Clark Ltd v Inland Revenue Commissioners [1973] 1 WLR 905, 911; Davis v Grocon Ltd [1992] VicRp 92; [1992] 2 VR 661, 668; Hadgkiss v Aldin [2006] FCA 1638 [11].

[19] Minister for Resources v Dover Fisheries [1993] FCA 366; (1993) 43 FCR 565, 577.

[20] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 382 [71].

[21] Pearce & Geddes, above n 12, [2.22].

[22] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 575; Pearce & Geddes, above n 12,[4.28].

[23] Those are the exact words of the regulation making power considered in Woods v Bate (1987) 7 NSWLR 560.

[24] [1957] HCA 4; (1957) 96 CLR 245, 250.

[25] (1987) 7 NSWLR 560, 568.

[26] Vanstone v Clark (2005) 147 FCR 299, 334 [120] (Weinberg J).

[27] Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245, 250.

[28] In addition, ss 8AA(4) and (5) were inserted by s 4 of the Police Regulation (Miscellaneous Amendments) Act 2001, which is entitled "Time limit for appealing non-selection for promotion or transfer - members".

[29] Georgoussis v Medical Board of Victoria [1957] VicRp 98; [1957] VR 671, 678; Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616, 621; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194, 203-4; Galofaro v Melbourne Fire and Emergency Services Appeals Commission [2005] VSC 356.

[30] Traut v Faustmann Bros Pty Ltd [1983] FCA 137; (1983) 77 FLR 98.

[31] See s 91F.

[32] Minister of State for Resources v Dover Fisheries Pty Ltd [1993] FCA 366; (1993) 43 FCR 565, 576-8 (Gummow J), 584 (Cooper J); Vanstone v Clark (2003) 147 FCR 299, 337 [141].

[33] The Shire President Councillors and Ratepayers of the Shire of Swan Hill v Bradbury [1937] HCA 15; (1937) 56 CLR 746, 762 (Dixon J); Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245, 253; Paull v Munday (1976) 9 ALR 245, 252 (Gibbs J).

[34] (1934) 35 SR (NSW) 7, 12.

[35] [1937] HCA 15; (1937) 56 CLR 746, 762.

[36] Parkin v James (1905) 2 CLR 315, 317; Carson v John Fairfax & Son Ltd (Receivers and Managers Appointed) [1991] HCA 43; (1991) 173 CLR 194, 214.

[37] [1957] HCA 4; (1957) 96 CLR 245, 253.

[38] Interpretation of Legislation Act 1984, s 37.

[39] A contingency for which reg 21 expressly provides.