Supreme Court of Tasmania|1991-09-03|Before: Cox J

Viney and Anor v Mazengarb and Ors [1991] TASSC 19; (1991) Tas R 180 (3 September 1991)

Police - appointment, tenure and conditions of service - promotion - Police Regulation Act 1898 ss 49R(1), (2), (3), (5), (6), (7), (9) and (11).

(1st, 2d, 3d defendants)

Zeeman, Kable and Page

(4th defendant)

COX J This is an action for a declaration that the first three defendants as members of the Police Promotions Appeal Board (the Board) do not have jurisdiction to decide upon an appeal made by the fourth named defendant Baldwin against the appointment of the second named plaintiff Shaw to the position of 1/C Constable at the police station, Carrick, notice of which appointment appeared in the Police Gazette dated 15 September 1988. The Board did rule that it had jurisdiction to determine the appeal but it was restrained by interim injunction from proceeding with a determination in accordance with the criteria laid down in the Police Regulation Act 1898 (the Act), pending the result of this action. The plaintiffs also seek a declaration that the Board's decision that it did have such jurisdiction is incorrect and a permanent injunction to restrain any further hearing of 1/C Constable Baldwin's appeal.

2. The Board's jurisdiction in respect of appeals against the appointment of police officers to certain ranks and/or positions is conferred by s.49R of the Act. Such jurisdiction was first conferred by Amending Act No. 6 of 1950 upon the Board's predecessor which was named the Police Classification and Appeal Board and constituted by Part lVA inserted by that Act. Section 49R when first enacted provided so far as is material:

"49R.- (1) In any case where the Governor or the

Commissioner, as the case may be, proposes to appoint any

police officer to a higher rank than that then held by

such police officer, notice of intention of the Governor

or, as the case may be, of the Commissioner, to appoint

that police officer to that higher rank shall be

published in the Police Gazette as provided by subsection

(2) of this section.

(2) A notice under subsection (1) of this section shall

be in the prescribed form and shall be published -

By the Minister, in the case of a proposed appointment

to any rank referred to in section ten: and

By the Commissioner, in any other case.

(3) Any police officer (in this section called 'the

appellant) who considers that he is more entitled to

appointment to the relevant rank than the police officer

proposed to be appointed thereto may, by notice in

writing, delivered or forwarded by post to the Secretary,

appeal against the proposed appointment.

(4) ...

(5) An appeal under this section may be made on the

ground of superior efficiency (as defined in this

section) but on no other ground.

(6) The Board shall, on the receipt of an appeal under

this section, make full enquiry into the claims of the

appellant and the officer proposed to be appointed, and

shall determine the appeal.

(7) If any appeal under this section is upheld by the

Board the appellant shall be entitled to be appointed to

the relevant rank, and shall be appointed thereto

accordingly.

(8) ...

(9) The decision of the Board on any appeal under this

section shall be final.

(10) ...

(11) In this section, 'efficiency' means special

qualifications and aptitude for the discharge of the

duties of the position to be filled, together with merit

and good conduct."

3. The ranks referred to in 5.10 are those of superintendent, inspector and other officers of police.

4. By Amending Act No. 16 of 1954, s.49R was amended:

"(a) by inserting in subsection (1), after the word

'rank' (twice occurring), the words 'or position';

(b) by inserting in subsection (3), after the word

'rank', the words 'or position';

(c) by inserting in subsection (7), after the word

'rank', the words 'or position'; and

(d) by omitting subsection (11) and substituting therefor

the following subsection:-

'(11) in this section, "efficiency" means special

qualifications and aptitude for the discharge of the

duties of the rank or position to be filled, having

regard to the branch or portion of the police force in

which the holder of that rank or position will be

discharging his duties and the nature of the duties to

be discharged, together with merit and good conduct'.'

5. After s.49R of the Act the following section was inserted:

'49RA-(1) Notwithstanding anything contained elsewhere in

this Act, the provisions of section forty-nine R, in

their application to the appointment of a police officer

to a special position, shall have effect subject to this

section.

(2) In appointing a police officer to a special position,

the Governor or the Commissioner, as the case may be, may

also promote that police officer to a higher rank, and in

that case the right of appeal against that promotion

conferred on police officers by section forty-nine R is

exercisable only in accordance with subsections (3) and

(4) of this section.

(3) Where notice is given as provided by section

forty-nine R of the intention of the Governor or of the

Commissioner, as the case may be, to appoint a police

officer to a special position -

I The notice shall state that the position is a special

position and that the officer proposed to be appointed

thereto has, in the opinion of the Governor or of the

Commissioner, as the case may be, special aptitude for

the performance of the duties of the position, and if

it is proposed that the officer be promoted to a higher

rank, shall also state that fact and specify the rank

to which it is proposed to promote him: and

II An appeal may be made under section forty-nine R

only on the ground that the appellant has special

aptitude for the performance of the duties of the

position and that his aptitude therefor is superior to

that of the police officer proposed to be appointed to

the position, and, if it is proposed also to promote to

a higher rank the officer appointed to the special

position, on the further ground that the appellant is

more entitled to promotion to that rank on the ground

of superior efficiency, as defined in subsection (11)

of section forty-nine R.

(4) An appeal against the proposed appointment of a

police officer to a special position or his promotion,

in consequence thereof, to a higher rank, shall be

upheld by the Board only if it is satisfied that the

aptitude of the appellant for the performance of the

duties of the position is superior to that of the police

officer proposed to be appointed to the position and that

he is more entitled to promotion to that higher rank (if

any) on the ground of superior efficiency, as defined in

subsection (11) of section forty-nine R.

(5) In this section 'special position' means any position

in the police force that is declared by the Commissioner,

by notice in the Police Gazette, to be a special position

for the purposes of this section."

6. The Board was renamed the Police Promotions Appeal Board in a consequential amendment effected by the Public Service Tribunal Act 1958.

7. The contenders for the present position, 1/C Constable Shaw, the Commissioner's nominee, and 1/C Constable Baldwin, the appellant before the Board, are of equal rank although by virtue of the fact that she has qualified by examination for promotion to the rank of Senior Constable and was for that reason appointed 1/C Constable she has seniority over 1/C Constable Baldwin who is not so qualified but holds his present rank by reason of length of service in the police force. The position advertised does not involve a promotion to a higher rank and the question is whether the appointment to it of 1/C Constable Shaw is an appointment to a higher position than that then held by her. The criterion by which one position may be said to be higher than another for the purposes of s.49R is a question of law. Whether or not that criterion is met in a given case is a question of fact. If therefore there was evidence that the position in relation to the appointee's previous position met that criterion it would be a matter of fact for the Board to determine whether the position was higher and if it did, to determine the appeal. Put another way, if there is no evidence that the relevant criterion is met, the Board would not have jurisdiction to embark upon the appeal proper.

8. The vacancy was advertised in the Police Gazette of 26 May 1988 and applications invited before 9 June 1988. On 15 September 1988 there was published a notice in the Police Gazette under the heading, 'Transfers and Assignments', '1423 Shaw J, First Class Constable, from Launceston Drug Bureau to Carrick, on 13 July 1988'. There is no evidence that the Commissioner, prior to making that appointment, gave notice of his intention to appoint her to a higher rank or position. I infer that he did not.

9. The first argument of counsel for the plaintiffs is that the words "higher position" in subss. (1), (3), (7) and (11) of s.49R are synonymous with "special position" used in s.49PA and that as it is common ground this was not a special position so declared by the Commissioner under subs.(S) thereof, the Board has no jurisdiction to hear 1/C Constable Baldwin's appeal. I think this argument is fallacious. Both expressions were inserted into the Act by the same Amending Act of 1954. Why, if "higher position" in s.49R means the same as "special position" as defined in s.49RA, Parliament did not see fit to use the latter expression in s.49R cannot be satisfactorily explained, but in any event there are different criteria set out for determining the efficiency and suitability of contenders in respect of appointment to a "higher position' not involving a promotion in rank (s.49R(1 1)) and "special position' not involving a promotion in rank (s.49RA(4)), qualification, merit and good conduct being required to be taken into account in the former but not in the latter.

10. The jurisdiction of the Board to hear an appeal is derived from s.49R which allows appeals in respect of appointments to a higher rank or position. The provisions of s.49R apply only to such appointments. They can only apply as provided in s.49RA(1) to the appointment of a police officer to a special position if the filling of that special position involves the appointment of the nominee to a higher rank or position than that already held by him. If it does not involve appointment to a higher rank the sole criterion by which the two contenders are judged is whether or not one has superior aptitude for the performance of the duties of the special position. This differs from the criteria laid down in s.49R for selecting the ultimate appointee, for the Board in a situation where the appointment is to a higher position, not being a "special position", has regard, in addition to aptitude, to special qualifications, merit and good conduct. Where however, the appointment to the special position carries with it a promotion in rank, the appeal will only succeed, and the appellant gain the appointment and increase in rank (s.49R(7)), if, in addition to demonstrating to the Board superior aptitude for the special position, he demonstrates as well a superior claim to promotion by virtue of superior efficiency determined by a balancing of not only his aptitude, but also his qualifications, merit and good conduct. If he cannot establish the latter, the appeal is dismissed and the original appointee is confirmed. This may seem an odd result at first sight for the ultimate appointee will not have, in the opinion of the Board, superior aptitude for the special position. Nevertheless as he clearly has the Governor's or Commissioner's confidence in his special aptitude for it (as appears from the notice required by s.49RA(3) (i)) and the Board's endorsement of his superiority when judged by all the criteria for promotion, appointment in those circumstances is unexceptionable.

11. What then are the criteria which (leaving promotion in rank aside) makes one position higher than another for the purposes of the Act? The defendants contend that matters relevant to determining this question include material improvement in benefit financially, work conditions, whether the experience will enhance the appointee's promotion prospects, whether there is greater power to be exercised from time to time and whether legislation recognises the particular status of the position rather than the rank of the person who may for the time being hold it. In respect of the last matter, counsel points out that under the Justices Act 1959,5.34, the officer who is in charge of a police office or police station has power to grant bail in respect of simple offences. likewise under the Criminal Process (Identification and Search Procedures) Act 1976, s.3, the making of records for the present or future identification of a person in lawful custody may not be made except as directed by (inter alios) the police officer who is, in the normal course of his duties, in charge of the station. In addition it might be argued that some positions have more prestigious status.

12. The police force is a hierarchical institution. Authority within in it is normally determined by rank and seniority within that rank. The Board is a promotions board. It is concerned with promotions, that is with movements upward in rank or position which give an increase in authority over others within that institution. Base pay under the Regulations is determined by rank and years of service within that rank. Allowances do not necessarily depend upon an increase in authority. Take home pay may increase by virtue of overtime worked or specialist qualifications or duties without any increase in authority. What is contemplated by a "higher position" in such a force is, to my mind, an increase in authority within the force. Thus, where an officer is, without contemporaneous promotion, appointed to perform the duties normally performed by a member of higher rank than the rank held by him at the time of such appointment, he is appointed to a higher position. This could well be rare where the officer has the necessary qualifications for promotion, but no doubt there are some situations where a posting on establishment carries a rank for which the officer who is appointed, is not yet qualified.

13. Another instance is one given in evidence by Mr. Viney, the first named plaintiff, who was made a party to the proceedings by virtue of his position as Acting Commissioner of Police at the relevant time. He said that from time to time there may be more than one inspector in a division, with one inspector being appointed in charge of the division and with up to "three other inspectors who perform duties around the clock and report to the officer in charge of the division". Clearly if the officer in charge is replaced by one of the three subordinate inspectors, the new appointee, without moving to a higher rank, has moved to a higher position because he now has authority which he did not hitherto have over persons of equal rank to his.

14. In my view such advantages as an increase in allowances, better or cheaper accommodation, superior working conditions and enhanced promotion prospects, are not among the criteria to determine whether one position is higher than another. In respect of many of these factors it would be a matter of considerable controversy, possibly beyond resolution even by a specially constituted board, as this Board is, as to whether they are truly advantages. Is a position in the criminal investigation branch more prestigious than one in the scientific branch? Are prospects of promotion likely to be enhanced by a stint in the fingerprint section than by remaining as a breathalyser operator? Is the position of officer in charge, Scottsdale more prestigious than that of some other centre? Can the working conditions of one station alone or in combination with other factors be so superior to those at another that they materially effect the superiority of the position itself? Even an increase in financial reward cannot of itself give a true indication of whether the more remunerative job is higher. Some positions may require tedious overtime duties, the extra allowances for which are regarded as poor recompense for the loss of an interesting and responsible job entailing standard hours. The above cited statutory recognition given to the position of officer in charge of a police station is not an indicator of superiority of position in my view. The respective statutes identify the persons charged with the responsibility for granting bail or directing the making of records while in each case the authority to do the act in question is derived by virtue of the officer's position. It does not thereby elevate the position to one higher than a position where the holder does not have that particular authority. Authority may be given by statute or by the Commissioner for an officer in a particular position to do a variety of acts from expending departmental monies in the acquisition of equipment, to the training of large numbers of personnel. In each case the powers and duties may be different, but the authority of the officer within the police force neither increases nor decreases.

15. I cannot imagine that it was the intention of Parliament in granting a right of appeal in respect of appointments to a higher position than that held by the appointee in addition to one in respect of appointments to a higher rank, that the Board would be called upon to determine quibbles about whether one position was higher than another because in the perception of an appellant, the new position had one or more advantages of the kind I have mentioned. Such an approach would invite a flood of appeals and a sea of discontent due to the subjective preferences of the members of the Board. What was intended in rnv view was a right of appeal where the appointee could be readily seen to be moving to a position where, notwithstanding no promotion in rank, he was granted increased seniority and/or authority over his peers in rank. There is a further pragmatic reason why Parliament should have intended that a higher position should be immediately identifiable as such by reference to simple criteria of that kind. If higher position is to be determined as a question of fact by reference to the multiplicity of factors urged by the defendants, it would be impossible for the Governor or Commissioner to anticipate what the Board's ultimate characterization of the position would be. In the present case it appears the Commissioner did not regard this position as a higher position on any basis. He did not accordingly give the notice contemplated by s.49R(1). That does not preclude the Board's jurisdiction if the Commissioner's characterization is wrong but it illustrates the point that as views about whether or not one position is higher than another if judged by those factors can honestly and reasonably differ, there would be a recurring problem about which appointments ought to be advertised as required by s.49R(1). An appointment to higher rank is immediately recognisable by all within the police force. An appointment to a higher position as I have defined it would, in my view, likewise be immediately identifiable, if not within the entire police force, at least by the person required to give notice which may result in the appeal process being set in motion, namely the Governor or the Commissioner.

16. In the present case the Board did not direct its mind to this criterion, nor was there any evidence that the position of officer in charge, Carrick Police Station, gave the appointee any increase in seniority and/or authority over her peers in rank than that enjoyed by her in her previous position. In my view as a matter of law, the Board could not have been satisfied that the position was a higher position than that hitherto held by 1/C Constable Shaw and a declaration that it has no jurisdiction to determine 1/C Constable Baldwin's appeal will be made. I shall hear counsel as to what further declarations or relief should be made in the circumstances.

Police Regulation Act 1898ss 49R(1), (2), (3), (5), (6), (7), (9)

Public Service Tribunal Act 1958

Criminal Process (Identification and Search Procedures) Act 1976

Viney and Anor v Mazengarb and Ors [1991] TASSC 19;

At a glance

Court

Decision date

Before

Source

Judgment (23 paragraphs)

Viney and Anor v Mazengarb and Ors [1991] TASSC 19; (1991) Tas R 180 (3 September 1991)

Parties

Legislation Cited (4)