Re N Macdonald Pty Limited v Donald William Hamence [1984] FCA 11; 1 FCR 45 / 53 ALR 1361 (10 February 1984)

FEDERAL COURT OF AUSTRALIA

Re: N. MACDONALD PTY. LIMITED
And: DONALD WILLIAM HAMENCE
No. ACT G95 of 1983
Administrative Law
1 FCR 45 / 53 ALR 1361

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.(1)

CATCHWORDS

Administrative Law - Canberra Tourist Bureau - Powers and duties not legislatively defined - Name of motel removed from tourist publication - Decision-maker an "employee" within the meaning of the Public Service Act 1922 - Regulations imposing obligations on such employee - Whether decision "made under an enactment" within the meaning of the Administrative Decisions (Judicial Review) Act 1977.

Administrative Decisions (Judicial Review) Act 1977, s. 5

Public Service Act 1922, s. 82 Public Service Regulations, r. 32, 125

Hawker Pacific Pty. Ltd. v. Freeland & Ors. (unreported - 16 December 1983)

New South Wales v. Bardolph [1934] HCA 74; (1934) 52 C.L.R. 455

Administrative Law - Application for judicial review of decision made by Commonwealth public servant - Decision made in course of activities carried on by Government department - Absence of specific legislation authorising such activities - Whether decision made "under" Public Service Regulations - Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 3(1) - Public Service Act 1922 (Cth), s. 82 - Public Service Regulations, regs 32, 125. The respondent was in charge of the Canberra Tourist Bureau which was a section within the Community Relations and Facilities Branch of the Community Services Division of the Commonwealth Department of Territories and Local Government. The functions of the Bureau were to promote the Australian Capital Territory as a tourist destination and to provide information and services to tourists and visitors to the Territory. Although the respondent was described as the Tourist Commissioner, he was in fact employed in a temporary capacity under s. 82 of the Public Service Act 1922 (Cth), and neither his position nor the Bureau was created by legislation or delegated legislation.

One of the Bureau's tourist promotion activities was the periodical publication of Canberra Accommodation giving details of establishments providing accommodation in Canberra. The publication was without charge to the establishments included in it and to the public to whom it was distributed. The applicant's business, the Acacia Motor Lodge, had been included in the publication for some years but, following complaints made by some guests and brought to the attention of the Bureau, the respondent decided to delete it from the publication for the time being.

The applicant sought a review of that decision, claiming it was a decision made "under" regs 32 or 125 of the Public Service Regulations and therefore capable of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). Regs 32 and 125, which are fully set out in the judgment, described in a very general way the manner in which every public servant, whether an officer or an employee, should carry out his duties. Objection was taken to the competency of the application.

Held: (1) Regulations 32 and 125 of the Public Service Regulations do not provide the legislative foundation or source of power for the making of decisions of the kind with which this case is concerned. The decision in this case was not made "under" those regulations so as to bring the decision within the purview of the Judicial Review.

(2) The clear purpose of the two regulations is to cast upon an officer, on the one hand, and an employee on the other, obligations as to the manner in which he shall carry out the duties of his office or employment. They merely give guidance and direction to the officer or employee, and provide a basis for disciplinary proceedings which may be taken under the Public Service Act 1922 (Cth) in the event of failure to comply with the obligations so imposed.

(3) There are many activities in the ordinary course of administering the affairs of government that may be lawfully carried on independently of any statutory provision expressly or impliedly authorising the particular activity. The respondent's decision in this case was made in the course of such an activity and was not an unlawful decision.

Hawker Pacific Pty Ltd v. Freeland unreported (Federal Court of Australia, Fox J., 16 December 1983)

New South Wales v. Bardolph [1934] HCA 74; (1934) 52 CLR 455, referred to

HEARING

Canberra, 1983, December 21; 1984, February 10. 10:2:1984
OBJECTION TO COMPETENCY.

Objection to the competency of an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for review of a decision claimed to have been made under the Public Service Regulations (Cth).

F. J. Purnell, for the applicant.

D. Buchanan, for the respondent.
Cur. adv. vult.

Solicitors for the applicant: Wood, Fussell & Co.

Solicitor for the respondent: T. A. Sherman, Acting Crown Solicitor.
F. P. CARNOVALE.

ORDER

1. The application be dismissed.

2. The applicant pay the respondent's costs of the application.

Orders accordingly.

DECISION

This is an application by N. MacDonald Pty. Limited ("the applicant") under paragraph 5(1)(a) of the Administrative Decisions (Judicial Review) Act 1977. An objection has been taken to the competency of the application.

The applicant operates the business of a motel known as the Acacia Motor Lodge or Acacia Lodge situate at 65 Ainslie Avenue, Canberra City. The decision in respect of which an order of review is sought is a decision made on 24 October 1983 which had the effect of removing the name "Acacia Lodge" from a publication entitled "Canberra Accommodation". That publication is expressed to be "A guide to hotels, motels, guest houses, hostels and caravan parks" and to be "Compiled by the Canberra Tourist Bureau . . . Canberra City . . . . ". It is asserted that a breach of the rules of natural justice occurred in connection with the making of the decision.

The application as filed named McDonald B. Nichols as respondent. At the hearing the applicant sought, and was granted, leave to substitute Donald William Hamence as respondent. Mr. Hamence ("the respondent") is described as the Tourist Commissioner. His responsibilities include directing and controlling the operations of the Canberra Tourist Bureau, promoting the Australian Capital Territory as a tourist destination and providing policy advice on all aspects of tourism in the Australian Capital Territory.

The Canberra Tourist Bureau is not a body corporate and does not owe its existence to any statute, regulation or ordinance. Nor is there any legislative definition of its powers and duties. It is a section within the Community Relations and Facilities Branch of the Community Services Division of the Department of Territories and Local Government. The Bureau has offices in Canberra, Sydney and Melbourne. Its functions are to undertake the promotion of the Australian Capital Territory as a tourist destination and to provide tourist and visitor services. Its offices are staffed by members of the Australian Public Service.

One of the Bureau's tourist promotion undertakings is the periodical publication of a list of accommodation facilities in Canberra. The evidence is that such a list has been published at intervals since at least 1967. Editions of the list entitled "Canberra Accommodation" were published on 14 December 1982, 14 April 1983, 11 August 1983 and 2 December 1983. Those editions bore the dates January 1983, April 1983, August 1983 and October 1983 respectively. The publication shows the name, address and telephone and telex numbers for each establishment and gives details of the type of accommodation provided and of the tariff chargeable.

In 1983 20,000 copies of each edition of "Canberra Accommodation" were printed. The copies were distributed to the offices of the Bureau for display and for dissemination to the public. The publication is made without charge, cost or expense to the businesses the names of which appear in the list. The information published in the list is obtained by officers of the Bureau soliciting information from the known accommodation businesses operating in the Australian Capital Territory. No accreditation or standards of physical facilities are prescribed for accommodation businesses to be included in the list. Except where, as in the case of Acacia Motor Lodge, a decision is made to exclude a particular business, no such business is omitted from the list.

Mr. Norman MacDonald, a director of the applicant and manager of Acacia Motor Lodge, gave evidence, which was not disputed, that he had conducted random surveys as to the reasons why members of the public sought accommodation at Acacia Motor Lodge. From those surveys he concluded that the use by members of the public of the lists published by the Bureau was the single most important factor in attracting clients.

On 5 or 6 October 1983 Mr. MacDonald attended a meeting with Mr. Nichols, General Manager of the Bureau, and a Mr. Byfield also of the Bureau. Mr. Nichols informed Mr. MacDonald that the Bureau had received a number of complaints concerning the Acacia Motor Lodge which he summarised as being that Mr. MacDonald was too strict with some of the guests' children, that Mr. MacDonald had insisted on the cessation of noise at 11.00 p.m. by school student guests and that school student guests had been locked out of their rooms by Mr. MacDonald. Mr. MacDonald agreed with the thrust of the first two types of complaint but denied that school student guests had been locked out of their rooms. Mr. Nichols also informed Mr. MacDonald that Ansett Pioneer had informed him that they received complaints about Mr. MacDonald's conduct of the Acacia Motor Lodge and had decided not to make further bookings there. Mr. Nichols subsequently wrote to Mr. A.J. Potter, Manager of Ansett Pioneer, urging him to reconsider his decision not to deal further with the Acacia Motor Lodge.

Evidence was also given by Mr. Nichols, and not disputed, that between 6 and 20 October 1983 he had received further complaints about the Acacia Motor Lodge which led him to believe that the dissatisfaction experienced by patrons was more widespread than he had first thought. He also ascertained from the Manager of the Bureau's offices at Sydney and Melbourne that they had from time to time received complaints about the Acacia Motor Lodge.

Mr. MacDonald gave evidence, which I accept, that at the meeting which took place on 5 or 6 October 1983 he was not told of any proposal to delete the Acacia Motor Lodge from any publications of the Bureau.

On 20 October 1983 Mr. Nichols sought a decision from the respondent whether the Bureau should cease to publicise, and take bookings for, the Acacia Motor Lodge. On 24 October 1983 the respondent decided that the Bureau should not recommend the services of the Acacia Motor Lodge to visitors. The decision is recorded in a note in Mr. Hamence's handwriting as follows -
"I have read the attached file which does not make pleasant reading]
"I believe the Tourist Bureau has a right and obligation to the consumer to only use accommodation houses of a standard acceptable to the visitor generally.
"The complaints lodged against Acacia Motor Lodge are serious and until such time as they can prove that they have improved their standards of service I believe the Tourist Bureau should not recommend their services to visitors."
The material upon which the respondent made the decision is not in evidence.

In accordance with that decision Mr. Nichols took steps to have the name and details of Acacia Motor Lodge deleted from "Canberra Accommodation" and from any future displays and promotions undertaken by the Bureau. The first edition of "Canberra Accommodation" in which the name Acacia Motor Lodge or Acacia Lodge did not appear was the edition dated October 1983 which, as I have said, was published on 2 December 1983.

On 23 November 1983 Mr. MacDonald received from the Bureau a letter dated 18 November 1983 signed by Mr. Nichols reading as follows -
"In our recent discussion you made clear how high your standards are. However, the Bureau has a responsibility in marketing tourist facilities and services to be confident that all visitors using these facilities are satisfied.
"In view of the many comments we have received from groups who have used your establishment the Bureau is not confident of a sufficiently high level of satisfaction and therefore will delete Acacia Motor Lodge from Bureau publications and marketing activities for the time being.
"If you wish to discuss this matter further I would be happy to do so at your convenience."

A meeting lasting some 2 hours between Mr. MacDonald and Messrs. Nichols and Lamb of the Bureau took place on 23 or 24 November 1983. It is unnecessary to refer in detail to what was then discussed. For present purposes it is sufficient to note that Mr. Mac Donald's request to see the complaints which Mr. Nichols stated in his opinion warranted the removal from "Canberra Accommodation" of any reference to Acacia Motor Lodge was refused on the ground that the complaints were confidential.

It is clear on the evidence, and I so find, that the decision of which the applicant complains was made by the respondent. The evidence also establishes that the respondent is employed in a temporary capacity under the provisions of section 82 of the Public Service Act 1922 and is an "employee" within the meaning of that expression as used in that Act and in the Public Service Regulations made thereunder. He is not an "officer" within the meaning of that expression in that Act or those Regulations.

A threshold question arises whether the decision made by the respondent on 24 October 1983 is a decision to which the Administrative Decisions (Judicial Review) Act 1977 applies. It will answer that description if, and only if, it is a decision of an administrative character made under an enactment within the meaning of that expression in the definition of "decision to which this Act applies" in subsection 3(1) of the Act. The expression "enactment" is defined to mean -
(a) an Act other than the Commonwealth Places (Application of Laws) Act 1970 or the Northern Territory (Self-Government) Act 1978;
(b) an Ordinance of a Territory other than the Northern Territory;
(c) an instrument (including rules, regulations or by-laws) made under such an Act or under such an Ordinance; or
(d) a law, or a part of a law, of the Northern Territory declared by the regulations, in accordance with section 19A, to be an enactment for the purposes of this Act,
and, for the purposes of paragraph (a), (b) or (c), includes a part of an enactment".

To sustain the proposition that the decision was a decision under an enactment counsel for the applicant relied on the provisions of regulations 32 and 125 of the Public Service Regulations. Regulation 32 provides -
"32. Every officer shall -
(a) during the hours of official business devote himself exclusively and zealously to the discharge of his public duties;
(b) behave at all times with courtesy to the public, giving prompt attention to all reasonable requirements;
(c) obey promptly all instructions given to him by any officer under whose control or supervision he is placed;
(d) promptly and correctly carry out all duties appertaining to his office, or any other duty he is directed to perform; and
(e) in due course and at proper times comply with, and give effect to, all enactments, regulations, and authoritative instructions made or issued for his guidance in the performance of his duties."
As the respondent is not, as mentioned above, an officer within the meaning of that expression in regulation 32, that regulation can have no direct operation in relation to him. Consequently counsel relied on regulation 125 which provides "125. Subject to the Act and these Regulations, an employee has, in addition to the obligations expressly imposed on him by these Regulations, the obligations that are imposed by these Regulations on an officer."

Counsel for the applicant argued that the making of the decision by the respondent was done in carrying out the obligations which regulation 125 read with regulation 32 casts upon him and, there being no other statutory provision conferring upon him power to make the decision in question, the source of the power to do so is to be found in those regulations. It was said that the respondent could not act in a vacuum - there had to be some legislative provision to support his action and that provision was to be found in the regulations on which reliance was placed.

In my opinion the applicant's argument must be rejected. The clear purpose of regulations 32 and 125 is to cast upon an officer in the one case, and an employee in the other, obligations as to the manner in which he shall carry out the duties which appertain to his office, in the case of an officer, or which he is required to perform in the case of both an officer and an employee. They are designed not only to give guidance and direction to an officer or employee but also, in the case of a failure to comply with the obligations so imposed, to provide a basis for disciplinary proceedings which may be taken under the relevant provisions of the Public Service Act 1922. But in my opinion there is no basis for the assertion that the regulations provide the legislative foundation or are the source of power for the making of decisions of the kind with which this case is concerned. It is not correct, in my view, to describe the decision made by the respondent as having been made under those regulations so as to bring the decision within the purview of the Administrative Decisions (Judicial Review) Act 1977.

For the applicant it was said that, if the source of the decision making power is not to be found in regulation 125 read with regulation 32, there being no other relevant statutory provision, the respondent acted without authority and, therefore, illegally in making the decision. In my opinion this submission lacks substance.

There are many activities in the ordinary course of administering the affairs of government that may be carried on independently of any statutory provision expressly or impliedly authorising the particular activity. One may put to one side for present purposes the need for Parliamentary appropriation of funds to meet any necessary expenditure. I do not doubt that the activities of the Canberra Tourist Bureau in publishing periodically a list of accommodation facilities in Canberra and in making the necessary decisions as to what information such publications should contain are activities which do not require express or implied statutory authority. In this regard it is sufficient to refer to the decision of Fox J. in Hawker Pacific Pty. Limited v. Freeland and Ors. (unreported - 16 December 1983) referring to New South Wales v. Bardolph [1934] HCA 74; (1934) 52 CLR 455 at pp 474-5, 496 and 508.

For these reasons the application fails and must be dismissed. In the light of the conclusion to which I have come it would be inappropriate to express any view on the other matters argued before me. The applicant must pay the respondent's costs.