Re Robyn Mary Ackland v Ian Barton Chittick (State Manager, Health Insurance Commission, Victoria) and Health Insurance Commission [1983] FCA 59 (8 April 1983)

FEDERAL COURT OF AUSTRALIA

Re: ROBYN MARY ACKLAND
And: IAN BARTON CHITTICK (STATE MANAGER, HEALTH INSURANCE COMMISSION,
VICTORIA) and HEALTH INSURANCE COMMISSION
No. VG 95 of 1982
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Keely J.

CATCHWORDS

Administrative Law - judicial review - notice of objection to competency - whether decision to dismiss was "of an administrative character" - whether made "under" an enactment - whether power to "determine" terms and conditions of employment must be exercised in writing - whether determination is an "instrument"

Administrative Decisions (Judicial Review) Act 1977, ss. 3(1), 5

Health Insurance Commission Act 1973, s. 28

Acts Interpretation Act 1901, s. 33(3)

HEARING

MELBOURNE
8:4:1983

DECISION

REASONS FOR JUDGMENT ON OBJECTION TO COMPETENCY

2. On the material at present before the court, Robyn Mary Ackland (the applicant) was employed by the Health Insurance Commission (the Commission) as a claims officer grade 4 and worked in the claims processing centre at Medibank Private at Dandenong in Victoria. On 29 March, 1982 she was "charged with the commission of an offence under Condition 98 of the Health Insurance Commission Terms and Conditions of Employment", in that, contrary to s. 130(1) of the Health Insurance Act 1973, "she divulged confidential information with respect to the affairs of a member of Medibank Private acquired in the performance of her duties". The applicant by letter denied the truth of the charge. By notice dated 8 April, 1982 the respondent Chittick, the State Manager of the Commission, informed the applicant that the charge had been sustained and that she was dismissed from the staff of the Commission as from 8 April, 1982.

3. An appeal was lodged by the applicant. On two occasions she was informed of a date for the hearing of her appeal but was later notified that the hearing had been cancelled. Her appeal was never heard but she received a notice from the Commission, dated 24 May, 1982, in the following terms :->
"Health Insurance Commission

Terms and Conditions of Employment
Notice of Charge under Condition 98

Robyn Mary Ackland,
29 Matthew Flinders Avenue,
Endeavour Hills. Vic. 3802.

TAKE NOTICE that you have been charged with the
commission of an offence under Condition 98 of
the Health Insurance Commission Terms and
Conditions of Employment, a copy of which charge is
annexed hereto, AND TAKE FURTHER NOTICE that in
accordance with the said Condition, I hereby
require you to forthwith state, in writing, whether
you admit or deny the truth of the charge, and give
any explanation in writing, you may think fit AND
TAKE FURTHER NOTICE that, if a reply is not
received within seven days of your receipt of the
charge you will be deemed to deny the truth
of the charge.

Dated this 24th day of May 1982.

I.B. CHITTICK,
STATE MANAGER"

That notice was accompanied by the following document :-

"Health Insurance Commission
Terms and Conditions of Employment

Charge under Condition 98

As the duly authorised officer for the purposes of
Condition 98 of the Health Insurance Commission
Terms and Conditions of Employment, I, I.B.
Chittick, State Manager, Health Insurance
Commission, Victoria, hereby withdraw the charge
against Robyn Mary Ackland under Condition 98,
formal notice of which was dated the twenty-ninth
day of March 1982.

I have further considered reports relating to the
said offence and I hereby charge Robyn Mary Ackland
with that on or about the twenty-third day of March
1982, she did commit a most serious breach of
conduct amounting to impropriety in that she did
divulge confidential information with respect to
the affairs of a member of Medibank Private
acquired in the performance of her official duties
as an officer of the Health Insurance Commission.

I consider that the charge is of such a serious
nature that you should not continue in the
performance of your duty and you are accordingly
suspended as and from the eighth day of April
1982.

Dated this 24th day of May 1982.

I.B. CHITTICK,
STATE MANAGER"

The decision in the last paragraph of that document, purporting to suspend her retrospectively from 8 April, 1982, was referred to in those proceedings as "the first decision".

4. The applicant wrote to the respondent Chittick on 27 May, 1982 denying the truth of the charge. By letter dated 15 June, 1982 she was informed that in Mr. Chittick's opinion the charge had been sustained and that she had been dismissed from the Commission ("the second decision"). By letter dated 21 June, 1982 the applicant gave notice of her intention to appeal against the second decision.

5. The applicant has lodged an application under s. 5 of the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act) seeking an order of review of both the first and the second decisions. Section 5(1) provides that a person "who is aggrieved by a decision to which this Act applies ... may apply to the Court for an order of review in respect of the decision" on a number of grounds. Section 3(1) defines "decision to which this Act applies" to mean "a decision of an administrative character made, ... or required to be made ... under an enactment ...". The application also sought interlocutory relief but that matter was not pursued.

6. The present hearing is of an objection to competency, lodged by the respondents, contending, in essence, that the decisions were not decisions to which the Judicial Review Act applies, that the decisions were not decisions of an administrative character as required by s. 3(1) of that Act, and that the decisions were not made or required to be made under an enactment within the meaning of s. 3(1) of that Act.

7. Mr. Hill, of counsel, on behalf of the applicant, submitted that the decisions to suspend and dismiss her were of an administrative character and were made under the Health Insurance Commission Act. In the alternative he submitted that the decisions were made under Condition 98 of the Commission's determination of terms and conditions of employment of its employees and officers which was itself an "enactment" within the meaning of s. 3(1) of the Judicial Review Act. The definition of "enactment" will be set out later in these reasons when dealing with that alternative argument.

8. Before dealing with those submissions it is necessary to set out in considerable detail certain factual matters relating to the applicant's contract of employment, the content of the Commission's determination of terms and conditions and its method of making that determination. The applicant in her supporting affidavit said that she had been employed by the Commission since 5 January, 1976. The correspondence leading to the commencement of her employment by the Commission consisted of two letters. A letter dated 12 December, 1975 from the Commission to the applicant (whose surname at that time was Angliss) was in the following terms :-

"Dear Miss Angliss,

I refer to your recent application and
subsequent interview for employment with this
Commission.

The Commission has pleasure in offering you
employment as a Data Processing Operator in
Training in the Commission's Dandenong office
at a salary of $2900 per annum.

The conditions of service of the Commission are
as determined by the Commission and approved by the
Public Service Board in accordance with section 28
(2) of the Health Insurance Commission Act, 1973.

I should be pleased to receive your formal
acceptance of this offer as soon as possible. I
trust that our association will be a long and
happy one.

Yours sincerely,

for D. F. Tierney,
State Manager"

By letter dated 17 December, 1975 the applicant replied as follows :-

"Health Insurance Commission,
Victoria Branch,
P.O. Box 22,
Box Hill. 3128.

Dear Sir,

Thank you for your letter dated 12 December
1975, and I wish to accept your offer of employment
as a Data Processing Operator, in Training
at your Dandenong office.

Yours sincerely,
Robyn Angliss."

The applicant said in her affidavit that by March 1982 she was a claims officer grade 4.

9. As to whether the applicant had knowledge of the terms and conditions of her employment, she said in her affidavit "When I first applied for and was given employment by the said Commission, I was sixteen years of age. I was not shown a copy of any terms and conditions of employment and the same were not explained to me. The said Commission has not at any time supplied to me a complete copy of the said terms and conditions and, prior to the 29th day of March 1982, I had not seen the same.".

10. It will be seen from a document set out later that the "Terms and Conditions of Employment" determined by the Commission deal separately with officers (section A) and employees (section B). J. J. Bentley, Assistant General Manager (Personnel), in an affidavit sworn 15 October, 1982 said :-

"7. Prior to the 7th day of November 1980, the
appplicant was a temporary employee of the
Commission. On the 7th day of November 1980
the applicant's appointment became permanent
and thereafter she was regarded as an officer
of the Commission."

There is no evidence at present before the court that the applicant was ever informed that her "appointment became permanent" or informed that her terms and conditions of employment had been altered by reason of that change. Her counsel accepted (transcript pp. 145-146) that at the time of her dismissal she was an officer employed under the terms and conditions determined by the Commission but did not concede that the applicant had ever agreed to those conditions. He contended that it was immaterial whether she had ever agreed to them but that in so far as it was material the facts were set out in her own affidavit.

11. Condition 98, under which the applicant was charged, appeared in "Section A - Officers" of the "Terms and Conditions of Employment" but did not appear in "Section B - Employees" of that determination. Section B contained Condition 112 which read as follows :-

"(1) Employees are engaged during the pleasure
of the Commission only.
(2) The services of an employee may be terminated
at any time by the Commission.
(3) When the employment of an employee has
extended over a period of not less than four
weeks, the employee shall be entitled to at
least one week's notice of termination of
engagement. When the notice is not given,
payment shall be made for one week in lieu of
the notice. Provided that the services of an
employee may be terminated without notice at
any time on the ground of misconduct or
unsatisfactory service."

12. Mr. Bentley, in an affidavit sworn 13 August, 1982, said that :-

"The Conditions of Employment in use by the
Commission in the months of March, April, May and
June 1982 were substantially the same as the
original conditions of employment determined by the
Commission on 25th September 1974 and 27th November
1974 and approved by the Public Service Board on
10th January 1974 (sic). In particular, there has
been no change in conditions 14, 15 and 19 of the
conditions of employment since those conditions
were first determined by the Commission and
approved by the Public Service Board."

A later affidavit by the respondent Chittick stated that Mr. Bentley had informed him that the reference, in the above paragraph, to condition 19 was an error and should have referred to condition 98. Mr. Bentley exhibited to his affidavit a copy of the terms and conditions of employment which were in force in the months of March, April, May and June 1982. That document shows on its face that it has been amended on a substantial number of occasions including amendments in August, September and November 1976, in March and September of 1977, in May of 1978, and in February, July and November of 1979.

13. At the time when the applicant became a temporary employee s. 28 of the Health Insurance Commission Act 1973 was in the following terms :-

"28.(1) Subject to this section, the Commission
may appoint such officers and engage such employees
as it thinks necessary for the purposes of
this Act.

(2) The terms and conditions of employment
(other than in respect of matters provided for
by this Act) of persons appointed or engaged under
sub-section (1) shall be as determined by the
Commission with the approval of the Public Service
Board.

(3) ...."

That section was amended by the Health Insurance Commission Amendment Act 1978 and in 1982, at the time of both the first decision and the second decision, s. 28 was in the following terms :-

"28(1) Subject to this section, the Commission
may engage such staff as it thinks necessary for
the purposes of this Act.

(2) The terms and conditions of employment
(other than in respect of matters provided for by
this Act) of persons engaged as staff under
sub-section (1) shall be as determined by the
Commission."

14. The method by which the Commission in 1974 exercised its powers under s. 28(2) was set out in the following passage from Mr. Bentley's affidavit sworn 13 August, 1982 :-

"... The Commission on 25th September 1974
adopted terms and conditions of employment which
corresponded as closely as possible with those
applying in the Australian Public Service. Before
approving those terms and conditions, the Public
Service Board requested a number of amendments to
the conditions of employment. The Commission
determined to make the necessary amendments on 27th
November 1974. The conditions of employment (as
amended pursuant to the Commission's determination
of 27th November 1974) were approved by the Public
Service Board on 10th January 1975. "

Mr. Bentley exhibited to his affidavit a copy of the terms and conditions of employment approved by the Public Service Board on 10th January 1975 and determined by the Commission on 25th September 1974 and 27th November 1974 - a determimation consisting of approximately 130 pages. The scope of that determination by the Commission appears from Mr. Bentley's later affidavit, sworn 15 October, 1982 which exhibited a "document recording the adoption on 25th September 1974, by the Health Insurance Commission of terms and conditions of employment" of persons appointed or engaged under s. 28(1). The document was in the following terms :-

"Determination by Health Insurance Commission
Terms and Conditions of Employment

In accordance with the provisions of Section
28(2) of the Health Insurance Commission Act, 1973,
the Commission determines as follows:

(i) that, for the time being, the Terms and
Conditions of Employment of persons
appointed or engaged under Sub-section
(1) of Section 28 of the Act shall
comprise Sections and Parts as follows:-

Section A - Officers

PART I - Preliminary
PART II - Salaries of Officers
PART III - Appointments
PART IV - Special Provisions
Relating to Female
Officers
PART V - Attendance and Duties
of Officers
PART VI - Hours of Duty and
Overtime
PART VII - Leave of Absence
and Holidays
PART VIII- General Allowances
PART IX - Promotions and Transfers
PART X - Suspensions, Dismissals,
Retirements
PART XI - Fares on Appointment,
Removal Expenses etc.
XII - Miscellaneous
Section B- Employees
PART I - General Conditions
of Engagement

(ii)that, for the time being, Parts V, VI
VII, VIII, XI and XII of Section A, and
Part I of Section B, of the Terms and
Conditions shall be as contained in the
corresponding Parts and Sections of the
Terms and Conditions of Employment
determined for application to staff of
the Cities Commission; and

(iii)that, for the time being, Parts I, II
III, IV, IX and X of Section A of the
Terms and Conditions shall be as
contained in Appendices (a) to (f) to
this Determination."

That copy document exhibited to the affidavit did not contain "Appendices (a) to (f) of this Determination".

15. That determination by the Commission was forwarded to the Public Service Board by a letter, dated 26 September, 1974, in the following terms :-

"Terms and Conditions of Employment
Health Insurance Commission

Ref: Board's File 73/8360

At its meeting on 25 September 1974 the
Commission determined, in accordance with Section
28(2) of the Health Insurance Commission Act 1973,
that the terms and conditions of employment of
persons appointed or engaged under Section 28(1) of
the Act shall be as contained in the enclosed
Manual. For rates of pay purposes, the Commission
also issued a determination (copy enclosed) tying
its particular position classifications to selected
position classifications in the Australian
Public Service so as to provide for automatic
adjustment of its pay rates following adjustment to
the corresponding pay rates in the Public Service.

2. As the Board will be aware from earlier
discussions, the terms and conditions as now
determined are largely based on the terms and
conditions approved for application to staff of the
Cities Commission. As soon as resources become
available, a review of the situation will be
undertaken with a view to producing a set of terms
and conditions designed specifically for the
Commission's needs. In the meantime, however, it
is believed the terms and conditions as now
determined will provide a basis on which
the Commission can operate. The need to proceed
with the appointment and engagement of staff is
particularly urgent, having in mind that the date
set for implementation of the Health Insurance
Scheme is 1 July 1975.

3. In accordance with the provisions of Section
28(2) of the Health Insurance Commission Act 1973,
the enclosed set of terms and conditions, as
determined by the Commission on 25 September 1974,
is submitted for the approval of the Public Service
Board.

(R. G. Williams)
General Manager"

The Public Service Board by letter to the Commission, dated 30 October, 1974, replied as follows :-

"Terms and Conditions of Employment

The Manual of terms and conditions of
employment for persons appointed or engaged by the
Health Insurance Commission, which was forwarded to
this Office under cover of your memorandum of 26
September 1974, has been examined.

2. Prior to receipt of the Manual you will be
aware that there had been discussion between
officers of the Commission and the Board on a draft
set of conditions made available in August. These
discussions ultimately led to mutually agreeable
adjustments to the draft which have now
been incorporated into the Manual. There are,
however, further variations which are considered to
be appropriate before submission of the Manual of
terms and conditions of employment of the
Commission to the Board for formal approval under
section 28(2) of the Health Insurance Commission
Act 1973. These are listed in the Attachment to
this memorandum.

3. Subject to your agreement to these further
adjustments a formal approach will be made to the
Board recommending approval of the terms and
conditions of employment for the staff of the
Commission.

(K.F. FAUL)
Acting Secretary"

The attachments to that letter were headed "Proposed Adjustments to Staff Rules of the Health Insurance Commission" and included proposed amendments to Condition 98 of the Commission's determination.

16. The Commission Secretary's minute of a meeting of the Commission held on 27 November, 1974 recorded the following :-

"Subject: Terms and Conditions of Employment -
Adjustments

1. The General Manager stated that it was the
Commission's prerogative to lay down terms and
conditions of service, subject to approval of the
Public Service Board.

2. The Public Service Board has agreed to the
Commission's terms and conditions subject to the
minor amendments under discussion. The proposed
adjustments were quite simple and of little
significance.

3. The Commission approved the amendments."

17. The determination by the Commission, as amended by it in accordance with the suggestions made by the Public Service Board, was formally approved by the Public Service Board in the following terms :-

"Health Insurance Commission
Terms and Conditions of Employment

In pursuance of the provisions of sub-section
(2) of section 28 of the Health Insurance
Commission Act 1974, I, Robert John Young, for and
on behalf of the Public Service Board, Hereby
Approve the determination of the Health Insurance
Commission in the matter of terms and conditions of
employment of officers and employees appointed or
engaged by the Health Insurance Commission.

Notification of the determination of the
Health Insurance Commission is contained in the
Commission's advices dated 26 September 1974 and 10
December 1974.

Dated this tenth day of January 1975.

(R.J. YOUNG)
Deputy of a Commissioner"

18. Condition 98 of the Terms and Conditions of Employment so determined by the Commission included the following provisions :-

"Condition 98

(1) An officer who - ...

(e) is guilty of any disgraceful or improper
conduct, either in his official capacity or
otherwise; or

(f) commits any breach of the Health Insurance
Commission Act 1973 or any Regulations made
thereunder, or these Conditions; or

(g) ...

shall be guilty of an offence, and shall be liable
to such punishment as is determined under the
provisions of this Condition.

(2) ...

(3) Where there is reason to believe that an
officer has committed an offence, other than a minor
offence punishable under the provisions of the
preceding sub-condition -

(a) the officer may be charged by the General
Manager, or any officer so authorised, and
may, if it is considered that the charge is
of such a serious nature that the charged
officer should not continue in the
performance of his duty, be suspended;

(b) ...

(c) ...

(d) if the General Manager, or any officer so
authorised, after consideration of reports
relating to the offence and charge and the
reply and explanation if any, of the officer
charged, and any further reports that may be
considered necessary is of the opinion that
the charge has been sustained, he may - ...

(v) dismiss the officer from the staff of
the Commission ..."

19. Mr. Hill's first submission raised matters similar to those dealt with in the decision of Ellicott J. in Burns v Australian National University 40 A.L.R. 707 and by the Full Court on appeal (Australian National University v Burns [1982] FCA 191; 43 A.L.R. 25) which reversed the decision of Ellicott J.. Mr. Neil Young of counsel, who appeared for the respondents, relied upon the Full Court decision in addition to submitting other arguments.

20. Mr. Young submitted that, although it may be convenient to divide an examination of the relevant words of s. 3(1) into two issues, namely, whether the decision was of an administrative character and whether it was made under an enactment, the definition must be read as a whole because the legislation is only constitutionally valid in so far as it confers jurisdiction on the court to review decisions made under an enactment. In this connection he cited Ex parte Barrett [1945] HCA 50; (1945) 70 C.L.R. 141 at 154, Felton v Mulligan [1971] HCA 39; (1971) 124 C.L.R. 367 at 387-388 and Evans v Friemann (1981) 35 A.L.R. 428. I agree with Mr. Young's submission that it is necessary to read the provision as a whole but it is nonetheless necessary to consider the word "administrative".

21. In Burns v Australian National University, (supra), Ellicott J. dealt with the question of whether the decision there at issue was of "an administrative character". He said :-

(at p. 714) "It is obviously unwise to attempt a
comprehensive definition but, in my opinion, it is
at least apt to describe all those decisions,
neither judicial nor legislative in character,
which Ministers, public servants government
agencies and others make in the exercise of
statutory power conferred on them, whether by Act
of the Parliament or by delegated legislation. In
other words it at least covers the decisions made
in executing or carrying into effect the laws of
the Commonwealth. Such decisions, as the
definition indicates, may or (may) not require the
exercise of a discretion. Usually they will.
Quite often, they will, in the exercise of a
discretion, involve the application of the general
to the particular, e.g. a general rule or broadly
framed power to particular circumstances: Compare
Commonwealth v Grunseit [1943] HCA 47; (1943) 67 C.L.R. 58;
Tooheys Ltd. v Minister for Business and Consumer
Affairs [1981] FCA 121; (1981) 36 A.L.R. 64 at 72-4. As to the
meaning of "administrative action" under the
Ombudsman Act 1973 (Vic) see Booth v Dillon (No. 1)
(1976) V.R. 291; Booth v Dillon (No. 2) (1976) V.R.
434 and Glenister v Dillon (1976) V.R. 550.

A decision appointing a person to or removing a
person from a particular office or employment made
in the exercise of a power conferred by legislation
is, in my opinion, clearly administrative in
character. It is one made in the course of
executing or carrying into effect the law from
which the power springs....

In previous decisions of this court under the Act,
it has been held or acknowledged that decisions
relating to employment, e.g. promotion in the
public service, are decisions "of an administrative
character": see Hamblin v Duffy (1981) 34 A.L.R.
333; Finch v Goldstein [1981] FCA 132; (1981) 36 A.L.R. 287. In my
opinion a decision to remove or dismiss a person
from a particular employment in the exercise of a
power conferred by an enactment is likewise a
decision of an administrative character."

On the appeal before the Full Court (supra - at p. 29) the appellant University conceded that if the decision was made under the University Act it was a decision of an administrative character. In my opinion the two decisions made by the Commission in respect of the applicant were "of an administrative character".

22. Mr. Young submitted that s. 3(1) required that the decision making power arise out of the legislation or be conferred by the legislation, and that without such a "nexus" the decision could not properly be said to be "made under an enactment". He said that if the nexus does not exist "you have a decision under a contract of employment with a statute lurking in the background ".

23. He also submitted that the letter offering the applicant employment incorporated by reference the terms and conditions determined by the Commission, that the determination did not have any legal force and effect of and by itself and that the applicant's rights resided entirely in the contract. Relying on A.B.C. v Industrial Court of South Australia [1977] HCA 51; (1977) 138 C.L.R. 399 he submitted that the determination did not bind the Commission in respect of its employees and that the terms of the determination only applied if the contract included its terms.

24. Mr. Hill contended that the terms and conditions of employment became applicable to the applicant only by virtue of the statute, that they were made under an enactment (the Health Insurance Commission Act) and that decisions made under those terms and conditions are decisions made under an enactment.

25. In Evans v Friemann (supra) Fox A.C.J. held that the word "under" in s. 3(1) of the Judicial Review Act means "in pursuance of" or "under the authority of". In the present case it is possible to say in one sense that every decision made with respect to the engaging of staff under s. 28 of the Health Insurance Commission Act is made in pursuance of or under the authority of that Act. However, as Bowen C.J. and Lockhart J. said in Burns case (supra) :-

(at p. 33) "If the making of a contract is
authorised by an enactment, and such a contract,
when made, in fact provides for the making of
certain decisions, it does not necessarily follow
that those decisions, when made, are not made under
the enactment. This must depend on the language
and operation of the particular enactment and
contract."

(at p. 34) "... we accept the correctness of the
proposition that the same decision may be made both
under a contract and 'under an enactment' for the
purposes of the Judicial Review Act. The
difficulty lies, not with the acceptance of that
proposition, but in deciding whether it applies in
a particular case. This must depend on the
circumstances of each case."

26. In this connection it may be desirable to refer to the statutory provisions under consideration in Burns case. Section 23 of the Australian National University Act 1946 provided :-

"Subject to this Act and the Statutes, the Council
may from time to time appoint deans, professors,
lecturers, examiners and other officers and
servants of the University, and shall have the
entire control and management of the affairs and
concerns of the University, and may act in all
matters concerning the University in such manner as
appears to it best calculated to promote the
interests of the University."

Section 27(1) of that Act empowered the University Council to make, alter and repeal statutes from time to time with respect to a number of matters including :-

"(g) The number, stipend, manner of appointment
and dismissal of deans, professors, lecturers,
examiners and other officers and servants of the
University."

No statute pursuant to s. 27(1)(g) had been made with respect to the manner of appointment and dismissal of professors. Accordingly, the power of the Council to appoint a professor was that conferred by s. 23.

27. In this connection Bowen C.J. and Lockhart J. said :-

(at p. 32) "Although s. 23 confers no power in
express terms to remove or suspend professors and
others, such power arises from the more general
powers conferred by the section on the Council
after the express reference to the powers of
appointment. In our opinion the control and
management of the affairs of the appellant must
include the suspension or removal of its deans,
professors and others.

Notwithstanding that s. 23 was the source of the
Council's power to appoint and dismiss the
respondent in 1966, it does not follow that the
decision to dismiss him was made under the
University Act. The answer to the question lies in
the true characterization of the decision itself.
It was not a decision to dismiss the respondent
simpliciter. It was a decision to dismiss him on a
particular ground namely, that he had become
permanently incapacitated from performing the
duties of his office. This was one of the grounds
expressly provided for in condition 2(b)(ii) of the
conditions of appointment which formed part of the
respondent's contract of engagement. The
University Act prescribes no essential procedural
requirements to be observed before a professor is
dismissed and lays down no incidents of a
professor's employment.

In our opinion the rights and duties of the parties
to the contract of engagement were derived under
the contract and not under the University Act.
Section 23 empowered the Council to enter into the
contract on behalf of the appellant. Even if the
Council, in considering the position of the
appellant under the contract, might be said to be
acting under s.23, the effective decision for
dismissal taken and notified to the respondent was
directly under the contract."

28. Although the question of whether a decision is made under an enactment will depend on the circumstances of each case, and "on the language and operation of the particular enactment and contract" (Burns case (supra) at p. 33), in my opinion the two decisions the subject of the present application were made under Condition 98 of the determination made by the Commission and were not made under s. 28 of the Health Insurance Commission Act. Accordingly, I reject Mr. Hill's first submission, that the decisions to suspend and dismiss the applicant were made under the Health Insurance Commission Act.

29. Mr. Hill's alternative argument was that the Terms and Conditions of Employment, determined by the Commission under s. 28(2), constituted an "instrument" within the meaning of s. 3(1) of the Judicial Review Act. That section provides :-

""enactment" means -

(a) an Act ....

(b) an Ordinance ....

(c) an instrument (including rules, regulations
or by-laws) made under such an Act or under
such an Ordinance.

(d) ....

and, for the purpose of paragraphs (a), (b) or (c),
includes a part of an enactment;".

Mr. Hill submitted that the definition of "enactment" in s. 3(1) "... literally covers the position of these conditions of employment. They are rules or regulations that govern the employment; they are made under the statute, they could not possibly be made any other way, and they come into existence by virtue of the statute". Mr. Hill relied upon passages in Halsbury and upon the definitions in The Shorter Oxford English Dictionary of "instrument" as including the following : "5. Law. A formal legal document whereby a right is created or confirmed, or a fact recorded; a formal writing of any kind, as an agreement, deed, charter, or record, drawn up and executed in technical form". The definition in The Oxford English Dictionary (1901) is the same except that it adds at the end the words "so as to be of legal validity".

30. Mr. Young conceded that the word "instrument" is a word of very wide import when looked at apart from its particular context but submitted that, in its particular context in s. 3(1), the word should be more narrowly construed. He submitted that the word "instrument" must be construed ejusdem generis with the words "(including rules, regulations or by-laws)" appearing immediately after it, that the definition of the word "instrument" was inserted for the purpose of establishing the constitutional foundation of the legislation and that the word "instrument" must be interpreted as being confined to instruments of a legislative character.

31. The words "instrument (including rules, regulations or by-laws)" appear also in s. 33(3) of the Acts Interpretation Act 1901 as amended by s. 6 of the Acts Interpretation Act 1941. The meaning of the words in that Act and the effect of the 1941 amendment were considered by Brennan J., as President of the Administrative Appeals Tribunal, in Re Brian Lawlor Automotive Pty. Ltd. and Collector of Customs (New South Wales) (1978) 1 Administrative Law Decisions 167. In that case his Honour had to consider whether, under the Customs Act, the Collector was empowered to revoke a licence under s. 78 of the Customs Act. That section provided that dutiable goods "may be warehoused in warehouses licensed by the Minister". In that connection Brennan J. said :-

(at pp. 171-2) "The respondent submits that the
power of revocation is to be found within s 78
itself, when it is construed in the extended sense
which s 33(3) of the Acts Interpretation Act 1901
is said to require. That sub-section reads as
follows:-

"Where an Act confers a power to make,
grant or issue any instrument (including
rules, regulations or by-laws) the power
shall, unless the contrary intention
appears, be construed as including a
power exercisable in the like manner and
subject to the like conditions (if any)
to repeal, rescind, revoke, amend, or
vary any such instrument."

Section 33(3) is prayed in aid by the respondent
because it is said that a licence is an
"instrument", and that the power to grant or issue
an instrument of that kind under s 78 of the
Customs Act is therefore to be construed as
including a power to revoke it.

When s 33(3) was first enacted, it was expressed to
apply only to a power "to make any rules,
regulations or by-laws". A power to make rules,
regulations or by-laws is a power to bring
subordinate legislation into existence - it is not
an administrative power. "Rules, regulations or
by-laws" are terms used to describe, perhaps
without precision, various kinds of subordinate
legislation (see Pearce, Delegated Legislation,
(1977) p2; CK Allen, Law and Orders (3rd ed), pp
91-5), and in the Rules Publication Act 1903, the
Parliament used the same terms in prescribing the
statutory rules - principally, if not exclusively,
rules of a legislative character - which are to be
printed and published. There is much to be said
for the view that s 33(3), as it was first enacted,
was limited in its application to the power to
create subordinate legislation. The applicant
submits that it is now so limited.

By s 6 of the Acts Interpretation Act 1941 (No 7 of
1941) s 33(3) was amended to its present form. The
words "any rules, regulations or by-laws" were
omitted and in their stead were inserted the words:
"grant or issue any instruments (including rules,
regulations or by-laws)". The instruments to which
s 33(3) now relates are instruments which are not
necessarily rules, regulations or by-laws, and they
are instruments which might be "granted" or
"issued" rather than "made". Where, pursuant to a
statutory power, an authority grants or issues an
instrument other than a rule, regulation or by-law,
the exercise of the power may well be an executive
or administrative act rather than a legislative
act. At all events, the granting or issuing of an
instrument other than a rule, regulation or by-law
is not necessarily an act of a legislative kind,
and the granting or making of an executive or
administrative instrument falls within the natural
ambit of s 33(3).

An effect of the 1941 amendment is to extend the
power of repeal, rescission, revocation, amendment
and variation to statutory powers for the creation
of instruments when the power is of an executive or
administrative rather than a legislative
character."

An appeal from that decision was dismissed by the Full Court ((1979) [1979] FCA 21; 24 A.L.R. 307). I adopt, with respect, that statement of Brennan J. which in my opinion is equally applicable to the words in paragraph (c) of the definition of "enactment" in s. 3(1) of the Judicial Review Act. Accordingly I am unable to accept Mr. Young's submission that the word "instrument" must be confined to instruments of a legislative character.

32. In Lawlor's case Brennan J. held that the power under s. 78 of the Customs Act to grant a licence was not a power to grant or issue an instrument within the meaning of s. 33(3) of the Acts Interpretation Act. However, in my opinion, neither the reasons for decision of Brennan J. nor the reasons for judgment of the members of the Full Court support the proposition that the power of the Health Insurance Commission under s. 28(2) of the Health Insurance Commission Act, to determine the terms and conditions of employment of persons appointed or engaged under s. 28(1), is not "a power to make, grant or issue any instrument".

33. In any event the words in s. 3(1) of the Judicial Review Act do not include the words "a power to make, grant or issue". Brennan J. placed considerable emphasis upon the fact that s. 33(3) of the Acts Interpretation Act applied to "a power" and not to "any instrument", saying :-

(at p. 172-3) "Section 33(3) applies to "a power",
not to "any instrument". It operates to add powers
of repeal, etc, to the power to which it applies,
that is, to a power to make, grant or issue an
instrument: a power which may be exercised without
making, granting or issuing an instrument is not a
power to which s 33(3) applies.

Is the power vested in the Minister under s 78 of
the Customs Act a power which may be exercised
without creating an instrument? There are some
features of the warehouse licensing scheme which
point to the desirability, indeed to the practical
necessity, of a written warehouse licence.

............

But s 78 does not in terms require that the
licensing power be exercised in writing and the
practical need can be met either by a written
certificate of the exercise of the licensing power,
or by the licence itself if the Minister or his
delegate should choose to exercise the power in
writing.

There are other provisions relating to licences or
permits granted under the Customs Act where the
Parliament has been astute to require writing: for
example, ss 37(2A)(c), 40AA(1) and (2), 60(2)(b),
71B(1), 97(1), 132B(3), 132C(1) and 183B(6). Had
the power conferred by s 78 been a power which was
intended by Parliament to be exercised only in
writing, s 78 could have been framed in like manner
to those sections, but it was not so framed. Thus,
there is no legal necessity for the power to be
exercised in writing, and the Minister may without
writing lawfully license a warehouse."

(See also the judgments of the Full Court (supra) - per Bowen C.J. (at p. 313) with whom Deane J. agreed on this aspect (at p. 344) and Smithers J. (at p. 323)). It will be noted that Brennan J. in the passage quoted, after referring to the way in which the practical need for a written licence could be met, said that "the Minister may without writing lawfully license a warehouse". Bowen C.J. (supra at p. 313) said :-

"Indeed, it would seem that ... the power to grant
a warehouse licence might be exercised either
orally or in writing."

34. The Minister's power to lawfully license a warehouse "without writing" or "orally" may be contrasted with the power of the Commission to determine the "terms and conditions of employment ... of persons appointed or engaged under" s. 28(1) which, in my opinion, could only be exercised in writing. The Commission is a body corporate established by statute and consists of seven Commissioners and the statute makes provision for such meetings of the Commission as the chairman "considers necessary for the efficient conduct of its business".

35. The opinion that the power could only be exercised in writing is reinforced when regard is had to the fact that, at the time in 1975 when Condition 98 was determined, the Commission's power to make that determination was a power which could only be exercised "with the approval of the Public Service Board". Condition 98 was not amended at any time before the dismissal in June 1982. In my opinion the Commission's statutory power to determine, with the approval of the Public Service Board, the terms and conditions of employment of persons appointed or engaged by it could only be exercised by initially specifying, in a written instrument, the terms and conditions proposed by the Commission, then considering any written alterations to them suggested by the Public Service Board and lastly specifying, in a written instrument, the Commission's acceptance of any such alterations. In my view it was necessary for those steps to be taken by the Commission in exercising its statutory power to determine those "terms and conditions of employment ... with the approval of the Public Service Board". In other words the Commission could only exercise its statutory power in a manner substantially the same as that used by it in 1974 and 1975 when determining the terms and conditions of employment, as set out in some detail earlier in these reasons, quoting from Mr. Bentley's affidavit, sworn 13 August, 1982.

36. I agree with respect with the statement by Fox A.C.J. in Evans v Friemann (supra - at p. 435) that :- "The Act is a remedial one, and should so far as reasonably possible be given a wide construction and application." - a passage cited by Ellicott J. in Burns v A.N.U. (1982) 40 A.L.R. 707 at 716. In my opinion Condition 98 of the terms and conditions of employment determined by the Commission with the approval of the Public Service Board in 1975, under which the applicant was dismissed, was a part of an instrument made under an Act and accordingly came within the definition of "enactment" in s. 3(1) of the Judicial Review Act.

37. I accept Mr. Young's submission that the contract between the Commission and the applicant incorporated by reference the terms and conditions of employment which had been previously determined by the Commission. It was submitted by Mr. Young that the applicant also contracted to be bound by any variation made to those terms and conditions from time to time by the Commission - albeit made unilaterally and without ever being communicated to her. I do not find it necessary to determine that matter.

38. Nor do I find it necessary to decide whether Condition 98 (under which the Commission purported to act) was one of the terms of the applicant's contract. The evidence on that point is not entirely clear and I referred earlier to certain statements made by her counsel as to that aspect.

39. She became a temporary employee of the Commission in 1976 and was treated by the Commission as being an officer from 7 November, 1980. In this connection the terms and conditions of employment determined by the Commission and approved by the Public Service Board in 1975 provided that :-

""officer" means a male or female person appointed
in acordance with the provisions of Section 28(1)
of the Act, but does not include an employee

"employee" means a male or female person, other
than an officer, engaged in accordance with Section
28(1) of the Act."

Those definitions appeared in the same form in the terms and conditions of employment which were in force at the time of the decisions to suspend and dismiss in May and June 1982.

40. However, even assuming - without deciding - that Condition 98 was incorporated into the applicant's contract, in the light of the circumstances of this case, which I have set out earlier in considerable detail, I have come to the conclusion that the two decisions were made under Condition 98 as an enactment and not made under it as a term of the contract. (cp. Burns case (supra - at p. 34)).

41. The notice of objection to competency is dismissed with liberty to apply for costs.