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.