Taylor v Public Service Board

High Court of Australia|1976-07-01|Before: Murphy JJ

High Court of Australia Barwick C.J. Stephen, Mason, Jacobs and Murphy JJ. Taylor v Public Service Board (NSW) [1976] HCA 36

The appellant, a chief prison officer in the employ of the Department of Corrective Services of the Government of New South Wales, was charged under s. 56 of the Public Service Act, 1902 N.S.W., as amended ("the Act"), with:

(a) wilful disobedience or disregard of a lawful order given him on 15th October, 1973 in that he did without sufficient cause strike two prisoners at the Central Industrial Prison, Malabar, namely R. P. Wright and S. L. Emanuel with a baton.

(i) on or about 15th October, 1973 whilst performing the duties of Chief Prison Officer, Central Industrial Prison, Malabar, he did without sufficient cause strike a prisoner, one R. P. Wright with a baton.

(ii) on or about 15th October, 1973, whilst performing the duties of Chief Prison Officer, Central Industrial Prison, Malabar, he did without sufficient cause strike a prisoner, one S. L. Emanuel with a baton.

It is clear that the hearing of these charges was an inquiry or investigation under the authority of the Act within the operation of s. 11 (1). The Public Service Board ("the Board"), by instrument of delegation pursuant to the provisions of that section, delegated to one of its members, William Hedley Gent, "its power authority duty or function to hear an Inquiry under Section 56 (of the Act) into a charge preferred against Prison Officers, Department of Corrective Services".

Prior to the laying of the charge against the appellant, there had been a magisterial inquiry in which the events out of which the charges arose had been investigated: indeed, the magistrate as a result of his inquiry had recommended that charges under the Act be laid against the appellant and other prison officers. Charges were laid against other such officers as well as against the appellant.

Mr. Gent acted upon the instrument of delegation and heard evidence produced to support the charge. It may be taken for the purposes of this matter that Mr. Gent, having concluded the inquiry, found certain charges against the appellant to have been proved and orally reported that fact to the Board. No written report was made. A transcript of the evidence produced in the inquiry by Mr. Gent was not available to the Board when it made the decision which it communicated in writing to the appellant.

(i) found proven the following charges preferred against you within the meaning of paragraphs (d) and (f) of sub-section (2) of Section 56 (of the Act), namely: -

(1) Wilful disobedience or disregard of a lawful order given you on 15th October, 1973, in that you did without sufficient cause strike two prisoners at the Central Industrial Prison, Malabar, namely, R. P. Wright and S. L. Emanuel with a baton.

(a) On or about 15th October, 1973, whilst performing the duties of Chief Prison Officer, Central Industrial Prison, Malabar, you did without sufficient cause strike a prisoner, one R. P. Wright, with a baton.

(b) On or about 15th October, 1973, whilst performing the duties of Chief Prison Officer, Central Industrial Prison, Malabar, you did without sufficient cause strike a prisoner, one S. L. Emanuel, with a baton.

(ii) decided that, subject to the approval of the Governor-in-Council, you should be dismissed the Public Service immediately.

The appellant did not appeal to the Crown Employees Appeal Board which is empowered to hear an appeal such as the appellant might have made under s. 19 of the Act but he applied by summons to the Supreme Court for an order prohibiting the Board from acting upon the evidence produced before Mr. Gent upon stated grounds, none of which are now pressed before this Court. However, during the proceedings upon the summons, further grounds were added, on only two of which reliance is now placed, namely: (i) that the Board had no authority to delegate its authority to decide whether or not the charges had been made out and was bound itself to decide the truth or falsity of the charges; and (ii) that the instrument of delegation was void for uncertainty in that it did not specify any particular charge or charges into which inquiry was authorized to be made.

The learned primary judge, sitting as the Supreme Court, made an order declaring that the Board's decision to dismiss the appellant was invalid and of no effect; that the instrument of delegation was valid and effective and that the inquiry held by Mr. Gent in so far as it concerned the charges against the appellant was valid and effective. In consequence of these declarations, the judge ordered that the Board be restrained from acting on its said decision, and made other ancillary orders.

From these declarations and orders the Board appealed to the Court of Appeal Division of the Supreme Court which allowed the appeal, dismissed a cross-appeal seeking to reverse the second and third declarations, set aside the first declaration made by the primary judge and confirmed the other declarations made by him [1] . The appellant now seeks the restoration of the order of the primary judge and, as well, the setting aside of the second and third declarations.

The legislative history of the Act, so far as it might be relevant to the construction of s. 11 (1), is to be found in a careful and comprehensive exposition by Samuels J.A. in his reasons for judgment in this matter. Having, however, taken full advantage of that historical account, I find that the fate of the appellant's submissions turns ultimately, and I think exclusively, on the proper meaning and operation of s. 11 (1). No doubt prior to the last amendment of the Act, which occurred in 1973 (No. 28 of 1973), the Board had power to delegate its authority to hear and determine a charge under the former s. 56. It is true that no particular reason appears why, in point of policy, that power should be withdrawn. But, in the long run, what the legislature intends is to be found in the language it has used. In cases of ambiguity, the unlikelihood in historical perspective of one construction may be a consideration to be taken into account. I question whether the present is a case of ambiguity where the legislative history is of great assistance. Certainly, in my opinion, it is not decisive.

Under the Act as it stands amended there is no doubt, and no dispute by counsel for the parties, that the powers given by s. 11 (1) are available to the Board in relation to charges preferred under s. 56, as it now appears in the Act. Thus, it is beyond controversy that, for example, the Board might, by virtue of s. 11 (1), be constituted by two members for the purpose of conducting an inquiry or investigation into charges laid against an officer under s. 56. Conducting such an inquiry or investigation is, clearly enough, a power or function of the Board. Therefore, leaving apart for the moment the final words of the sub-section, authority is given to the Board to delegate any of its powers or functions. This, of necessity, means that the Board is authorized to delegate its function of inquiring into or investigating a charge laid pursuant to s. 56, and of dealing with the officer in consequence of the result of the inquiry or investigation. But for the final words of the sub-section, it would, in my opinion, be beyond question that the Board could have delegated the whole matter of deciding the truth or falsity of the charges laid under s. 56 and of deciding, pursuant to s. 56 (5), what within the scope of s. 56 (5) should in consequence be done.

But the final words of the sub-section clearly have an impact upon what the sub-section as a whole provides. Even so, these must be read, not as displacing or rendering nugatory the earlier words of the sub-section. Their meaning and operation must be read with and accommodated to the rest of the section. The introductory conjunction "but" carries with it a sense of subordination of what it introduces rather than a sense of negation or displacement of what has gone before. Just the same, it cannot be denied that a qualification is thereby introduced limiting the extent of the authorized delegation. The problem is compounded by the undefined use of the word "case", for which no incontestable meaning can be drawn from the immediate context or the Act as a whole or that part of the Act in which s. 11 (1) is found.

The Supreme Court accommodated the authority to delegate with the final words of the sub-section by concluding that those words related to the decision by the Board of the consequences which would follow a finding by the Board's delegate of the truth of the charge investigated by the delegate. Samuels J.A. in the leading judgment said that, "In my opinion "the decision of the case" means the decision as to the penalty to be imposed. The finding upon which the decision proceeds is to be made by the delegate, in this case Mr. Gent, and the Board has power to act upon it without independent examination of the material upon which it was based" [2] . His Honour found some support for this conclusion in the language of s. 56 (5) which says that the Board, upon a finding or admission of guilt, "may decide". It was thought that the use of these words and derivatives of the word "decide" in s. 56 constitutes "a deliberate means of applying the closing words of s. 11 (1) to the imposition of penalty and thus preserving this power as a non-delegable function of the Board".

In my opinion, the appellant's submission that these final words of the sub-section preclude the delegation of the function of deciding whether or not a charge has been made out cannot be accepted. The inquiry into or investigation of a charge of misconduct necessarily involves, in my opinion, a judgment whether the charge is made out upon the facts and circumstances accepted as representing the truth of the matter. To conclude that the final words of the sub-section preclude the delegation of so much of an inquiry into or investigation of such a charge, as involves the formation of a conclusion as to its truth or falsity, not only introduces practical inconvenience into the performance of the Board's functions, but it effects a complete frustration of the evident purpose of the sub-section of allowing the inquiry into or investigation of charges against officers being carried out by delegation. But, more importantly, such a conclusion would be to allow the final words of the sub-section to overturn the effect of the earlier words, rather than to acknowledge their subjunctive and merely limiting quality. In my opinion, the final words of the sub-section do not preclude the delegation of the Board's function of determining what in truth are the facts and circumstances relating to the charge and of forming a view as to whether or not those facts and circumstances support the actual charge laid. Thus, neither the delegation of the inquiry into and investigation of the charges against the appellant, nor the conclusions found by Mr. Gent upon his inquiry pursuant to the delegation, are invalid or ineffective because of any limitation upon the power or authority of the Board to delegate its function of inquiry or investigation: that is to say, the final words of the sub-section do not require the conclusion that the delegation to Mr. Gent or the conclusion to which he came are to be disregarded as ineffective because of those final words.

On the other hand, I am unable to accept the Supreme Court's view of their operation and the limited denotation of the word "case" which that view imports. I do not think that the final words relate only to the decision of the consequences of a finding not made or accepted by the Board as to the truth or falsity of the charge laid against the officer. In my opinion, the final words of the section require that the Board must itself take the responsibility of deciding the case, that is to say, the charge and the consequences of a positive finding upon it. But this does not mean, in my opinion, that the Board must itself hear the evidence and upon it found a conclusion of its own as to the truth or falsity of the charge. Clearly, in my opinion, the Board may delegate both the taking of the evidence and the making of a finding upon the evidence which is accepted as the relevant fact or circumstance. But, upon being apprised of the finding as to the proof of the charge, the Board may for itself adopt that finding as its own, without itself having made the finding upon a hearing of the evidence. It may adopt the report and recommendation of its delegate. Whether it is prepared so to adopt the finding of its delegate is a matter for itself to decide. No doubt, if it requires it, it may call for a detailed and reasoned report: but, in my opinion, it is not bound to do so. The Board is not in a situation where it is bound by the finding of its delegate: it must take upon itself the responsibility of adopting as its own its delegate's finding as a basis for further action. I see no reason why it should not receive from its delegate a recommendation as to the course the Board should pursue, amongst the courses made available by s. 56 (5). But it must itself decide whether or not to accept such a recommendation so making the decision of the case its own decision.

It follows, in my opinion, that the Board, having delegated the function of inquiry or investigation of a charge, is not thereafter limited to the choice of penalty based on a finding of its delegate by which it is bound. Its obligation itself to decide the case, imposed by the final words of the sub-section, imposes a duty upon the Board to consider for itself whether or not it will accept and adopt as its own its delegate's report and finding. It is empowered to do so: it is also empowered to reject that report and finding or, accepting certain parts of it, to found thereon a different conclusion to that at which its delegate had arrived. Doubtless the nature of the charge and the identity and experience of the delegate may have influence with the Board in deciding whether to accept the finding of the delegate or to require a report of the proceedings before the delegate and of the reasons for his findings. But, in any case, the Board must decide for itself whether it will make the delegate's finding its own, by mere adoption or after further information supplied to it by the delegate. In my opinion, this is the way in which the Board may decide the case consistently with the power of delegation given by the sub-section and the qualifying or limiting words in its final phrases.

I might add that I obtain no assistance in the decision of this appeal from the decision of the Privy Council in Jeffs v. New Zealand Dairy Production and Marketing Board [3] . In that case, there was no power of delegation. No comparable problem of construction there arose.

I might also add that wisdom in the exercise of the Board's obligation to decide the case may suggest the course of requiring of the delegate a report and recommendation, each appropriate to the nature of the charge in question in order to assist the Board in "deciding the case".

Here, the facts as far as they are known to the Court are quite consistent with the Board having decided to accept the findings of its delegate so as to make them its own. The notification of the Board's decision indicates that it was the Board's decision that the charges had been found proved. That the Board had neither a written report by Mr. Gent nor a transcript of evidence does not deny that the Board considered for itself whether it should accept Mr. Gent's findings so as to decide for itself that the charges were found proven.

For these reasons, I am in agreement with the conclusion of the Supreme Court that the Board's decision to dismiss the appellant was within its power.

The second submission of the appellant as to the insufficiency of the instrument of delegation, to my mind lacks substance. I would be content to dispose of it for reasons assigned by Samuels J.A. In any case, there would seem in relation to prohibition no point in the submission. The delegation need not be in writing. There could be no doubt that the Board intended Mr. Gent to hold the inquiry. He did so. Nothing he did depended, in my opinion, upon the precise form or terms of the delegation. It might, of course, have been otherwise if a challenge had been made during the currency of the inquiry to something he was doing as beyond the intent of the delegation. But nothing of that kind arises in this case. Again, wisdom in the administration of the Act would suggest that it would obviate possible difficulties if the terms of an instrument of delegation were full and precise.

Section 11 (1) of the Public Service Act, 1902 (as amended), in authorizing the Public Service Board, in the conduct of an inquiry or investigation, to "delegate any of its powers or functions to any one member of the Board" or to other specified persons, expressly confers upon the Board an ample power of delegation which is of sufficient breadth to extend to all aspects of the Board's function of dealing with alleged breaches of discipline pursuant to s. 56 of the Act.

The appellant contends that the concluding words of s. 11 (1) - "but the decision of the case shall be determined by the Board" - operate to restrict that power; and in a sense they do, but only in the sense that by an exercise of its power to delegate the Board cannot relieve itself of its task of determining the decision of the case. The making of that decision must be done by the Board, whatever powers or functions associated with the conduct of its inquiry or investigation it may see fit to delegate.

The Board's function of dealing with an alleged breach of discipline under s. 56 will involve it in the making of an inquiry; when that breach is denied, questions both of fact and of law may be involved, the former no doubt frequently involving the resolution of conflicting testimony, the latter requiring a decision whether the facts as found involve any breach. That the Board's power to delegate extends to the hearing of evidence and to the making of findings of fact is apparent not only from the terms of s. 11 (1) but also from those of s. 60 (2), which contemplate that the delegate is to concern himself with "the truth of any charge" of alleged breach of discipline.

The concluding words of s. 11 (1), in this setting, do no more than require the Board itself to decide the case, that is, to determine for itself whether the breach alleged took place and, if so, what should be the consequences for the officer who has been charged. So long as the Board itself performs these functions it determines "the decision of the case", as called for by the sub-section, but is otherwise free to avail itself as it sees fit of the services of a delegate. To the extent to which a delegate may concern himself with the ultimate conclusion whether a breach of duty has taken place his view will, for the Board, be inconclusive since that conclusion is for it to arrive at. But, so long as it does itself reach a conclusion upon the matter, what the delegate may have done will have no vitiating effect.

In the present case there is no evidence that the Board in any way departed from what I have described as a course open to it in the conduct of an inquiry. It seems that it had before it information as to what conclusions had been reached by its delegate; armed with this it then proceeded to arrive at its own conclusion as to the charges brought and as to the penalty to be imposed. It could, had it chosen to do so, have entered upon an examination for itself of the evidence given before its delegate; equally it might, if it saw fit, form its conclusion without doing so, acting simply upon the information placed before it by the delegate. The latter is the course which it adopted and is one permitted by the legislation.

It cannot, I think, be inferred from what here occurred, so far as is revealed by the evidence, that the Board did not itself give consideration to whether its own conclusion should accord with that of its delegate. It follows that the appellant fails to make out his ground that there was any unauthorized delegation of the Board's power to decide or any abdication by it of its own decision-making function.

The appellant also relied upon what were said to be defects in the instrument of delegation. I would, with respect, join in the Chief Justice's adoption of the reasons of Samuels J.A. rejecting this submission and otherwise agree with all else that the Chief Justice has said on this aspect.

Section 56 (3) of the Public Service Act, 1902 N.S.W., as amended ("the Act"), which provides that alleged breaches of discipline "shall be dealt with by the Board", does not exclude resort by the Board to the power of delegation which is conferred upon it by s. 11 (1). So much at least emerges from the statement in s. 56 (9) that "Nothing in this section affects the operation" of s. 11 (1). Indeed, the appellant's counsel acknowledged that there may be a delegation of part of the Board's powers and functions under s. 56, but asserted that the concluding words of s. 11 (1), "but the decision of the case shall be determined by the Board", limit the power of delegation to the mere collection of evidence and do not authorize a delegation of the Board's power to make a finding on the truth or falsity of the alleged breach of discipline or of its power to impose punishment.

So constricted a view of the power of delegation is quite unacceptable when attention is given to its practical consequences, to the nature and character of the Board, to the wide-ranging scope of its important responsibilities and, above all, to the indications of intention to be gathered from the Act itself. The practical consequence of the view presented by the appellant is that the power of delegation offers no satisfactory method by which questions involving credibility of witnesses and conflicting testimony may be resolved short of the Board receiving evidence itself. This shortcoming would not be insurmountable in other administrative cases, but in cases of breach of discipline which often turn on conflicting evidence the problem is not easily resolved.

The Board is the statutory authority whose responsibility it is to superintend the entire New South Wales Public Service, to inspect each department of government and to investigate the character of the work performed by every officer and the manner in which each officer performs his duties, all with a view to ensuring "the establishment and continuance of a proper standard of efficiency and economy in the Public Service" (s. 9 (1)). It would not conform to the character and functions of the Board, as I have outlined them, that its power to delegate investigations and inquiries, in particular inquiries into breaches of discipline under s. 56, should be narrowly construed. On the contrary, the power should be as liberally interpreted as the words of the sub-section will permit.

The power of delegation is expressed in the widest terms; it extends to any of the powers and functions of the Board, subject to the effect to be given to the final words of s. 11 (1). It comprehends the whole of the functions committed to the Board by s. 56. The concluding words of s. 11 (1) do not subtract from this power; they should be seen as a separate and additional requirement that, notwithstanding the existence of a delegation, the Board shall arrive at a decision in the case.

If further confirmation be needed of the width of the power of delegation it is to be found in s. 60 where it is provided by sub-s. (1) that persons appointed under s. 11 (1) "shall direct themselves by the best evidence they can procure " (emphasis supplied), an instruction which is at variance with the notion that a delegate may do no more than collect evidence. Furthermore, s. 60 (2) refers to a delegation by the Board of its powers or functions in respect of the conduct of an inquiry "as to the truth of any charge against an officer in respect of an alleged breach of discipline", thereby indicating that an inquiry into the truth or falsity of the charge may be delegated.

The appellant's interpretation cannot therefore be accepted. As I have already observed, the entire function of the Board under s. 56, including the question of imposing an appropriate punishment, can be delegated. But the question remains, what is the precise effect to be accorded to the concluding words of s. 11 (1)? The competing interpretations are: first, that favoured by the Court of Appeal, namely, that "the decision of the case" means the imposition of punishment, not the finding of guilt or innocence in respect of the breach alleged; or, secondly, that the expression includes not merely the decision in respect of the imposition of punishment but the actual finding of guilt or innocence of the offence charged.

The Court of Appeal found support for its interpretation in the history of the Act before its amendment in 1973 and in indications of intention gathered from the Act in its amended form. With respect to the members of the Court of Appeal, the shape of the Act as it existed before it was remoulded in 1973 seems but a fragile foundation upon which to base this interpretation. That the Act in its earlier form enabled the Board to leave the issue of guilt or innocence to its delegate emerged very plainly from s. 56 (2) (c) and (d) which disappeared in 1973, to be replaced by provisions of a different character. In these circumstances I am unable to see that the Act in its amended form should necessarily be approached on the footing that it was intended to have the same operation as it was given by the repealed provisions.

There are some indications in sub-ss. 56 (5) to (8) that "the decision of the case" refers to the imposition of punishment. Thus sub-s. (5) provides that the Board "(a) may decide to impose on the officer any one or more of the following punishments or (b) may decide to dismiss him from the Public Service ", and sub-ss. (6), (7) and (8) all speak of "decides" or "decision" in relation to a determination by the Board of the punishment to be imposed. These provisions do not of themselves establish that the word "decision" in s. 11 (1) is used exclusively in this limited sense, a sense which is certainly not the natural meaning of the word for, as it is ordinarily understood, the word suggests a determination of the case either way, whether by a finding that the charge has not been made out or by the imposition of a penalty in consequence of a finding that the offence charged has been committed. A finding that the charge has not been made out is as much a decision as the imposition of a penalty. It is said that this objection is overcome by the distinction drawn by s. 56 (5) between a finding that a breach of discipline has been committed and a decision to impose punishment. Certainly there is a difference in the language but to my mind it is hardly a matter of such significance as to wholly explain and justify the very limited meaning which is sought to be given to the words of s. 11 (1).

It seems preferable, then, to read the words "the decision of the case" in accordance with their ordinary meaning so as to give them an application to the finding of truth or falsity of the offence charged as well as to the imposition of any punishment. So understood the concluding words of s. 11 (1) require the Board itself to make a decision. It is true that when they are so read the words deny operative legal effect to any finding made by the delegate, whereas a delegation of a decision-making function normally invests the decision of the delegate with operative legal effect. This unique result is the consequence of combining a power of delegation of a decision-making function with a provision that the decision shall be determined by the delegator.

This conclusion does not entail as a consequence that a delegate of the Board cannot make a finding on the truth or falsity of the charge or that he cannot recommend the imposition of a particular penalty but it does mean that it is for the Board to make a decision on each of these issues. This it may do by adopting or rejecting the delegate's report.

The appellant submitted that, if all that the Board did was to accept the delegate's report, the resolution of the Board could not be considered a "decision" because no decision can be reached in accordance with the rules of natural justice by mere adoption of a report unless it appears that the report adequately and correctly reflects the evidence of witnesses and the submissions of the parties. Why s. 11 (1) imports this requirement the submission did not attempt to explain. The fact is that the sub-section is directed to the topic of delegation and in dealing with that topic it imposes on the Board the responsibility of making a decision, even when a delegation takes place. The procedure to be followed, first by the delegate and later by the Board when it receives the delegate's report, is not dealt with by s. 11. It is a topic which finds mention in s. 56 (4) - which provides that the procedure for dealing with a breach of discipline alleged to be committed shall be as prescribed by regulations made under s. 58 - and by s. 60. The rules of natural justice provide no reason for denying that the adoption of the delegate's report is a decision of the Board or that the delegate's report must adequately and correctly reflect the evidence and the arguments before adoption by the Board of a delegate's report can constitute a "decision" within the meaning of s. 11 (1).

The Privy Council decision in Jeffs v. New Zealand Dairy Production and Marketing Board [4] does not say otherwise. There the Board possessed no power of delegation. However, it was pointed out that this did not prevent the Board from regulating its own procedure or from appointing a person or persons to receive evidence and submissions and then acting on a report containing an accurate summary of the evidence and the submissions [5] . Unlike the Board in Jeffs' Case, in the present case the Board has a power to delegate its powers and functions. There is a very clear distinction, borne out by the observations in Jeffs' Case and Oswood v. Nelson [6] , between the delegation by a body of its power to inquire into or deal with a charge and the appointment by a body or a person or persons to receive evidence and submissions. The present case is one of delegation with the superadded requirement that the tribunal must make the decision. But it is apparent that this is a decision to be made in the light of the delegation that has taken place, that is, on the basis of the report made by the delegate, including the findings and recommendations which it contains.

[1967] 1 A.C. 551. 2. [1967] 1 A.C., at pp. 568-569. 3. (1872) L.R. 5 H.L. 636, at pp. 645, 653.

There is in my opinion no sound basis for attaching to the Board's power to make a decision following an inquiry by its delegate the qualifications which have been attached to a tribunal's power to make a determination based on its consideration of a summary of evidence and submissions by a person or persons appointed to collect or receive evidence. The two approaches are quite different and it would not conform to the character and wide-ranging functions of the Board that it should be compelled to inquire into evidence and submissions dealt with by its delegate pursuant to a delegation in an inquiry in which the person charged had the benefit of legal representation and which was conducted with due regard to his interests.

The evidence does not establish with clarity what the Board had before it when it arrived at its decision confirming the findings of the delegate and imposing the punishment complained of. But the appellant must put up with the consequences of this deficiency for he bore the onus of proof. In any event, sufficient emerges to justify the inference that the Board had before it, whether in the form of a written or oral report we do not know, information as to the findings made by the delegate and of his recommendation as to penalty. In these circumstances the resolution of the Board constituted a compliance with the concluding words of s. 11 (1).

As to the validity of the delegation, I agree with all that the Chief Justice has written on this question.

In the result, I am of opinion that the appeal should be dismissed.

Under the Public Service Act, 1902 N.S.W. the Public Service Board is given a variety of powers and duties. Many of these involve the hearing of appeals and the making of inquiries and investigations and the taking of appropriate action consequent thereon. The inquiries and investigations fall broadly into two classes - administrative and disciplinary. An example of an administrative inquiry is the type of inquiry authorized and directed under s. 9. Other examples are found in ss. 15 and 16 and 52. The main provision for disciplinary inquiry and punishment is found in s. 56.

Section 11 (1) provides for delegation of the Board's powers and functions for the purposes of conducting any inquiry or investigation under the authority of the Act. This sub-section is by s. 56 (9) specifically made applicable to inquiries and investigations under s. 56.

The concluding words of s. 11 (1) provide that "the decision of the case shall be determined by the Board". On the strength of these words it is submitted on behalf of the appellant that the Board is not entitled to act on the report of a delegate, that all that the delegate may do is take any necessary evidence, that the Board must consider all the evidence for itself and in the light thereof must reach its decision. Therefore, it is said, on a disciplinary inquiry it must decide the truth or falsity of the charge upon the basis of its own evaluation of the evidence and not of a report of a delegate. On the other hand it is submitted for the Board that in the application of s. 11 (1) to s. 56 the only decision which must be determined by the Board is the decision on penalty.

There is nothing in the Act as it now stands which limits the decision which must be determined by the Board on an inquiry or investigation under s. 56 to one on penalty only. I do not think that the previous history of the legislation can lead to a conclusion that it is so limited. Nor do I think that s. 56 (5) assists such a construction. Although s. 56 preserves the operation of s. 11 (1), so that within the limits prescribed by that sub-section the power of conducting the inquiry and investigation into an alleged offence may be delegated, it provides by sub-s. (3) that the alleged breach of discipline shall be dealt with by the Board. It is therefore for the Board to find that the officer charged has committed the breach unless he admits "to the person or persons dealing with the breach" that he committed the breach; if there is such an admission or if the officer is found to have committed the breach the Board pursuant to s. 56 (5) may decide either to punish him in a manner short of dismissal or it may decide to dismiss him or direct that he resign. It seems that what is meant in s. 56 (5) by the words "person or persons dealing with the breach" is the Board or its delegate or delegates so that a formal admission of actual breach of discipline may be made before a delegate. This is a sensible provision but in the light of the concluding words of s. 11 (1) I do not think that it can be inferred therefrom that the actual finding that the officer has committed the breach of discipline can be made by a delegate rather than by the Board itself.

It is made clear by s. 60 (2) that the Board may delegate under s. 11 (1) its powers and functions in respect of the conduct of an inquiry as to the truth of any charge against an officer in respect of an alleged breach of discipline. The delegation can thus extend to the making of a finding as to the truth of any charge. However it does not follow that the decision that the officer has committed the breach of discipline need not be determined by the Board as required by s. 11 (1). The words "truth of any charge" in s. 60 (2) do not import the concept of commission of the breach charged which appears in s. 56 (5). The difference may or may not be important, depending on the nature of the charge. The facts of a charge may be proved to be true, but those facts may not disclose a breach of discipline. For instance, under s. 56 (2) (b) an officer may be proved before a delegate to be guilty of certain conduct, but it is for the Board to determine whether that conduct is misconduct; under (d) he may be proved before a delegate to have wilfully disobeyed an order but the Board must determine whether the order was lawful or given by a person having authority to make or give the order; under (e) and (f) the conduct charged may be proved before a delegate but the decision under (e) whether that conduct shows negligence, carelessness, inefficiency or incompetence in the discharge of duties or, under (f), whether it is disgraceful or improper must be determined by the Board. In other words, the truth of the facts charged may be proved before a delegate and the Board may accept his findings thereon, but the decision whether the facts so proved show that the officer was guilty of a breach of discipline in one or another of the ways set out in s. 56 (2) must be determined by the Board as well as the question of penalty.

The material which the Board will need before it in order to determine its decision will depend on the nature of the charge; but it cannot be said that because the Board has not before it and has not studied all the evidence heard before its delegate on the inquiry as to the truth of the facts charged it is not in a position to determine its decision of the case. It may adopt and make its own the findings on truth by the delegate and then apply itself to its task of determining whether the officer charged should be found to have committed the breach of discipline, and, if so, what punishment it should decide to impose. The whole decision thus becomes that of the Board and the Crown Employees Appeal Board Act, 1944 N.S.W. applies accordingly.

In the present case the Board was entitled to take the view that, having adopted the findings of the delegate on the truth of the matters charged, as it was entitled to do, the conclusion therefrom that the order of which there had been wilful disobedience or disregard was lawful and that the conduct found to have been proved was disgraceful or improper did not require a study of all the evidence heard before the delegate. It is hard to conceive that it would.

The first of the grounds upon which prohibition was sought and which has been argued before this Court is that the Board had no authority to delegate its authority to decide whether or not the charges had been made out and was bound itself to decide the truth or falsity of the charges. The second part of this ground expresses the substance of the ground and is the matter which has been argued. In my opinion the Board was not bound itself to decide the truth or falsity of the charges and the ground stated did not establish any basis for a writ of prohibition.

The second ground upon which prohibition was sought is that the instrument of delegation was void for uncertainty. The delegation was to a member of the Board, Mr. Gent. It was in writing and was a delegation by the Board of "its power, authority, duty or function to hear an Inquiry under Section 56 of the Public Service Act, 1902, into a charge preferred against Prison Officers, Department of Corrective Services". It is not suggested that the inquiry in fact conducted by Mr. Gent in respect of the charges against the appellant was not intended by the Board to be one of the matters the subject of the delegation; but it is submitted that the instrument of delegation was void for uncertainty in that it did not specify any particular charge or charges into which the inquiry was authorized to be made. There are no formal requirements in respect of a delegation which are prescribed by the Act. The delegation may therefore be made in any way the Board thinks fit provided that the intention is certain. Certainty of intention cannot be determined by a writing, not required by law, which on the face of it requires elaboration from oral communication or surrounding circumstances in order to identify precisely the subject of the delegation. It is permissible to go to those communications or those circumstances in any case where it is pertinent to prove the intention of the Board. In proceedings for a writ of prohibition the applicant must show that there was no power in the delegate to conduct the inquiry. He does not do so by reference to a writing which on the face of it is incomplete. He would need to prove that it was not supplemented in one or another of the ways which I have indicated. This the appellant has not done.

In my opinion, s. 11 (1) of the Public Service Act, 1902, as amended ("the Act") allows, for the purpose of conducting an inquiry under s. 56, the authorization of a delegate to inquire into the truth of a charge of breach of discipline against an officer of the Public Service (see s. 56 (9)) and to make a report to the Board (cf. s. 5 of the Public Service (Amendment) Act 1973). Under s. 11 (1) the Board may delegate any of its power or functions in an inquiry or investigation. It may make a limited delegation, for example, to inquire and report on all the facts, or only some aspect of the facts. But if there is a general delegation to inquire into (and report upon) the truth of a charge, the delegate is not limited to reporting on the facts, but is to report whether or not there was a breach of discipline as charged. In making his inquiry he must observe the principles of natural justice.

Section 11 (1), however, stipulates that "the decision of the case shall be determined by the Board". The whole decision of the case is for the Board, not merely the penalty. If it is satisfied that the charge is true, it decides the penalty (if any). Although the Board is bound to decide the truth of the charge, in doing so it may act on the delegate's report. The Board is not bound by the report. It may adopt the report, reject it, or take a different view. The Board is not required to hear evidence or submissions by the officer, except that natural justice would require the Board to give the officer an opportunity to be heard before it differs from the report in any respect adverse to the officer. This view of the sections accords with the validation provisions of s. 5 of the Public Service (Amendment) Act, 1973 and with the provisions for appeal to the Crown Employees Appeal Board (Crown Employees Appeal Act, 1944, as amended).

Waddell J. found that "it was more probable than not that the Board did not perform its duty of making a decision pursuant to s. 56 of the Act as to the truth of the charges made against the plaintiff. The purported decision is, therefore, invalid". But his finding was based on what I consider to be the incorrect view that the Board did not discharge that duty if it simply adopted the report of its delegate. Therefore, it has not been established that the Board acted in breach of its duty.

Obviously all the material which affects the validity of the delegation was not in evidence. The presumption of regularity should be applied, and the delegation held to be valid. This is not a case where the Board should be held in disfavour and the presumption displaced because of withholding of material pertinent to the question (see Minister of National Revenue v. Wrights' Canadian Ropes Ltd. [7] ).

At a glance

Court

Decision date

Before

Source

Judgment (65 paragraphs)

Parties

Cited By (12)