Section 29(3)(a) Public Service Act
16 It is accepted by both parties that the applicant was employed in the public service and that the Chairman of ASIC was the 'Agency Head' for the purpose of the PSA.
17 One possible power of ASIC to terminate the employment of the applicant was that contained in the PSA s 29(3)(a). Section 29 provides, so far as is relevant:
'(1) An Agency Head may at any time, by notice in writing, terminate the employment of an APS employee in the Agency.
Note: The Workplace Relations Act 1996 has rules and entitlements that apply to termination of employment.
(2) For an ongoing APS employee, the notice must specify the ground or grounds that are relied on for the termination.
(3) For an ongoing APS employee, the following are the only grounds for termination:
(a) the employee is excess to the requirements of the Agency;
(b) the employee lacks, or has lost, an essential qualification for performing his or her duties;
(c) non-performance, or unsatisfactory performance, of duties;
(d) inability to perform duties because of physical or mental incapacity;
(e) failure to satisfactorily complete an entry-level training course;
(f) failure to meet a condition imposed under subsection 22(6);
(g) breach of the Code of Conduct;
(h) any other ground prescribed by the regulations.'
18 As discussed below, there is a question whether the power of termination was contained in the PSA or in the Certified Agreement, or both. However, assuming that it was contained in the PSA s 29(3)(a) the applicant says that the power of dismissal was used unlawfully in this case. He says that the decision was not authorised by the PSA: see ADJR Act s 5(1)(d). He says that he was not 'excess to the requirements of the agency'.
19 It is clear from the Amended Application that the applicant will seek to establish at trial that he was not excess in fact. ASIC says that this is not a fact to be proved in these proceedings. It says that the question of whether the applicant was excess is a matter for determination by the Agency Head and is not a matter of objective fact to be determined by the Court. To paraphrase a comment I made in South Australia v Slipper (2003) 203 ALR 473, 485 [30] ASIC argues 'in the public law jargon, [that] the relevant jurisdictional fact is whether or not the [Agency Head] is satisfied, not whether or not his satisfaction is correct'.
20 The applicant argues that PSA s 29(3)(a) should be read as meaning that the power of termination can only be exercised by the Agency Head if, as an objective fact, the relevant person is excess to the requirements of the agency. The legal difference and consequence between these two alternative meanings of the respondent and the applicant can be observed in the discussion by the High Court in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 149-150, [33]-[34].
21 The identification that a particular fact is a 'jurisdictional fact' involves a legal conclusion: see Spigelman CJ in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 ('Timbarra') at 64. It is a conclusion reached following an inquiry to identify the statutory pre-conditions to the exercise of the relevant power (or jurisdiction) where failure to comply with those pre-conditions will result in invalidity. That inquiry involves the interpretation of the relevant statutory provision(s) in light of the statutory purpose so as to identify the relevant Parliamentary intent: see Deputy Commissioner of Taxation v Woodhams (2000) 169 ALR 503 at 512-513.
22 Obviously enough the determination of the relevant parliamentary intent is often difficult, particularly where the issue is left largely to inference: see Black CJ in Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 at 465-466. It would not appear that there is any presumption, one way or the other, that the statutory reference to a fact as a pre-condition to the exercise of statutory powers is jurisdictional even for administrative bodies: see Craig v South Australia (1995) 184 CLR 163 at 179; Timbarra at 67. However, there are some factors that may give some indication of Parliament's intent. The extent to which the relevant factual determination is discretionary or otherwise involves 'subjective factors' may suggest that the fact is not jurisdictional: see Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 (Mt Isa Mines) at 301; Kuar v Minister for Immigration Local Government and Ethnic Affairs (1993) 44 FCR 380, 390; Timbarra at 72. The extent to which the relevant decision is subject to a detailed process of prior consultation (see Mt Isa Mines at 306; Timbarra at 69) or to administrative approval or to subsequent review or appeal (see Timbarra at 68), may also suggest that the relevant fact is not jurisdictional. The inconvenience of determining that a fact is jurisdictional may also suggest that it is not: Mt Isa Mines at 306; Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462, 476; Timbarra at 72. The extent to which the factual determination is made in the course of decision-making, rather than as a precondition for it, may suggest that the relevant fact is not jurisdictional: see Timbarra at 65. Plainly enough these are only factors to be taken into account - their significance in any particular case will depend upon the particular statutory regime.
23 I note also that there is a danger in this area of discourse that the use of the term 'jurisdictional fact' can distract from the inquiry to determine the intent of Parliament as expressed in the relevant statute. In particular, there is a danger that the distinction drawn by the courts between jurisdictional facts and other facts may limit the potential breadth of that inquiry. Constitutional limitations aside, the Parliament is not limited in its capacity to identify what factual findings are preconditions to jurisdiction and what are not. Nor is it limited so that a particular factual finding must always be one or the other. It may be, for example, that the Parliament intended that substantial compliance with the relevant factual pre-conditions would be sufficient for validity. Procedural provisions having this effect were once described as 'directory'. That description is no longer appropriate: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390-391. However, the rejection of that description does not deny the capacity of the Parliament to legislate to the same effect. In such a case the question of whether the factual pre-conditions have been 'substantially complied with' would be a question of fact and degree: see Debelle J in City of Port Adelaide Enfield v Minister for Transport & Urban Planning (1999) 73 SASR 22, 30; Schwart v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 169 [16] (apparently confirmed on appeal: [2003] FCAFC 229 at [16]). In such a case the legal question asked of me would not be capable of an either/or answer of the sort assumed in the question.
24 There is a long history in this country of statutory regulation of the public services. That history has long involved a contest between two principles: that of security of the tenure of those employed in the public service on the one hand and the principle that Crown employees were liable to dismissal at pleasure on the other: see Finn Law and Government in Colonial Australia (1987) at 65-67. The relevant statutory schemes invariably limited the power of the relevant government to dismiss its public servants to specified grounds. However, the statutory schemes also usually provided a relatively detailed regime for determining if those conditions had been met. This often included a detailed review process, although not always in relation to termination for redundancy: see Butterworths Halsbury's Laws of Australia Vol 21(2) at 345-495. Plainly enough the statutory conditions for termination had to be complied with if the statutory powers were to be used: see Lee v Jacka (1994) 125 ALR 459. However, it would not appear that those statutory conditions were understood as meaning that a correct factual determination was a precondition to the exercise of the powers of termination. Rather the courts would seem to have treated the determination of relevant facts as being matters for the decision maker, providing that there was a 'legal foundation' for the relevant decision: see, for example R v Teachers Appeal Board Ex parte Bilney (1984) 35 SASR 492 at 493; Preston v Carmody (1993) 44 FCR 1 at 11-12. The relevant decision was subject to judicial review, including under the ADJR Act, but not for making an error as to a jurisdictional fact. The grounds of review would include an error of law (see ADJR Act s 5(1)(f)), including an error of law as to the decision maker's jurisdiction. The grounds of review would also include that there was no evidence or other material to justify the making of the decision (see ADJR Act s 5(1)(h)). They did not include review under the ADJR Act s 5(1)(d) on the basis of failure to comply with a jurisdictional fact.
25 A recent example of this approach can be seen in the reasoning of the Full Court in Barratt v Howard (2000) 170 ALR 529. That case involved the dismissal of a Secretary of a Department (as Agency heads were then called) pursuant to the Public Service Act 1922 (Cth) s 37 (subsequently repealed). In that case the Full Court held that the relevant power of dismissal could only be exercised for the efficient, equitable and proper conduct of the public service (see at 544 [50]-[51], 548 [73]). The Full Court nevertheless held that it was a matter for the decision-maker to determine whether the dismissal was for that purpose (see at 550‑551 [82]-[83]) - the Court could interfere if the decision-maker did not do so, but otherwise the question of fact was ultimately a question for the decision maker, not for the Court.
26 A consideration of the factors referred to above would suggest that this traditional approach to public service legislation may also be applicable to the PSA s 29(1)(a). In particular, the issue of whether a person is 'excess to the requirements of the agency' would seem to involve issues of judgment and degree which are quite suitable for determination by an Agency head, but which are not at all suitable for determination by a Court.
27 On the other hand, the PSA contains some features which differ from the usual and traditional model of public service employment as understood in Australia. The Act seems to give greater emphasis to agency control, rather than central control. There are also less detailed provisions relating to procedure and review. It also introduces a new form of limited tenure.
28 It would seem to me that there the statutory scheme under the Public Service Act 1922 (now repealed) was such that it could be said with considerable confidence that it was for the decision maker, and not the Court, to determine whether the factual pre-conditions to termination under that Act had been met. However, the PSA has some distinguishing features. I am not prepared to say that it is not fairly arguable that the factual question of whether a person is excess is a jurisdictional fact. This is not to say that I think such an argument would ultimately succeed. In my view there are considerable difficulties in its way. However, I do not think that it is appropriate for that question to be determined as a preliminary question.