Re Ian Barton Chittick (State Manager, Health Insurance Commission, Victoria) and Health Insurance Commission v Robyn Mary Ackland [1984] FCA 29; (1984) 1 FCR 254 Vg; 53 ALR 143 / (1984) Admn Para 96 - 007 / 6 ALD 255 (27 February 1984)

FEDERAL COURT OF AUSTRALIA

Re: IAN BARTON CHITTICK (State Manager, Health Insurance Commission, Victoria)
and HEALTH INSURANCE COMMISSION
And: ROBYN MARY ACKLAND [1984] FCA 29; (1984) 1 FCR 254
VG No. 64 of 1983
Administrative Law
[1984] FCA 29; 53 ALR 143 / (1984) ADMN para 96 - 007 / 6 ALD 255

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Lockhart(1), Morling(1) and Jenkinson(2) JJ.

CATCHWORDS

Administrative law - judicial review - objection to competency - whether decisions made "under" an enactment - whether decisions made under the Act or "under an instrument made under" the Act - whether document an "instrument" - nature of determination made under an instrument

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

Health Insurance Commission Act 1973, s.28

Acts Interpretation Act 1901,s. 33(3)

Administrative Law - Judicial review - Objection to competency - Conditions of employment of respondent determined by Health Insurance Commission - Decisions to suspend and dismiss respondent - Whether decisions made under an Act or under an "instrument" made under the Act - Whether document an "instrument" - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 3(1), 5(1) - Health Insurance Commission Act 1973 (Cth), s. 28.

Words and Phrases - "Instrument", "under" Administrative Decisions (Judicial Review) Act 1977, s. 3(1). Section 28(1) of the Health Insurance Commission Act 1973 (the Health Insurance Act) allowed the Commission to engage such employees as it thought necessary for the purposes of the Act. Section 28(2) provided:

"(2) The terms and conditions of employment . . . of persons appointed or
engaged under subs. (1) shall be as determined by the Commission with the

approval of the Public Service Board."

In 1974 the Commission submitted to the Public Service Board a document

headed "Determination by Health Insurance Commission - Terms and Conditions of Employment" containing detailed provisions dealing with the terms and conditions of employment of persons engaged by it under s. 28(1). After some minor changes, the Public Service Board approved the document. In 1975 the respondent commenced employment with the Commission. She had been informed that the terms and conditions of her employment were as determined by the Commission and approved by the Board in accordance with s. 28(2) of the Act, but she was not furnished with a copy of them nor was she aware of their terms. In 1978, s. 28(2) was amended so that Public Service Board approval to the Commission's determination was no longer required, but the Commission did not alter the previously determined conditions of employment. In 1982, the Commission suspended and then dismissed the respondent for improper conduct in the performance of her official duties.

The respondent thereupon sought orders of review, under s. 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act) of the decisions to suspend and dismiss her. An objection to the competency of the application was taken by the Commission on the ground that the decisions were not made under an "enactment" as defined in s. 3(1) the Judicial Review Act. From a dismissal of its objection, the Commission appealed to the full bench of the Federal Court. The issue before the court was whether the decisions were made "under an Act" or "under an instrument made under such an Act" within the extended meaning of "enactment" in s. 3(1).

Held (Per Lockhart and Morling JJ.): (1) Paragraph (c) of the definition of "enactment" in s. 3(1) of the Judicial Review Act is not confined to instruments of a legislative kind. It is sufficient if the document is of such a kind that it has the capacity to affect legal rights and obligations and is a document under which decisions of an administrative character may be made.

Minister for Industry and Commerce v. Tooheys Ltd (1982) 42 ALR 260 at 265; Burns v. Australian National University (1982) 40 ALR 707 at 716-717, referred to.

(2) The document embodying the conditions of employment was such a document. Unlike the making of an ordinary commercial contract of employment, the exercise of the Commission's power under s. 28 (2) of the Health Insurance Act to determine the terms and conditions of employment unilaterally works a variation in the terms and conditions of employment of its existing staff, thus affecting or having the capacity to affect their existing legal rights and obligations.

(Per Jenkinson J.). The decisions to suspend and then dismiss the respondent were decisions made under s. 28(2) of the Health Insurance Act which was within par. (a) of the definition of "enactment" in s. 3(1) of the Judicial Review Act. This is because, once the Commission exercised its power under s. 28(2) of the Health Insurance Act, the terms and conditions of employment thereby determined by it existed, not by the common law of contract, but by force of s. 28(2) and could be altered, without the consent of the employee, by a further exercise of the power.

Australian National University v. Burns [1982] FCA 191; (1982) 43 ALR 25, distinguished.

HEARING

Sydney, 1983, November 23, 24; 1984, February 27. 27:2:1984

APPEAL.

Appeal from a decision of a single judge of the Federal Court dismissing an

objection to the competency of an application by the respondent under s. 5 of the Judicial Review Act.

N. J. Young, for the appellants.

E. F. Hill and D. J. Ashley, for the respondent.
Cur. adv. vult.

Solicitors for the appellants: Minter Simpson & Co.

Solicitors for the respondent: Slater & Gordon.
F. P. CARNOVALE

ORDER

The appeal be dismissed.

The appellant pay the respondent's costs of the appeal.

Appeal dismissed with costs.

DECISION

This is an appeal from a decision of a judge of this Court dismissing an objection to the competency of an application made under s. 5 of the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act"). Robyn Mary Ackland, the applicant in the application and the respondent to this appeal ("the respondent"), seeks an order of review of two decisions made by Ian Barton Chittick the first appellant, who is the manager for Victoria of the second appellant, the Health Insurance Commission ]"the Commission"). The decisions sought to be reviewed are, first, a decision made on 24 May 1982 that the applicant be suspended from her employment as from 8 April 1982 ("the first decision") and second, a decision made on 15 June 1982 that she be dismissed from the service of the Commission ("the second decision").

The learned primary Judge found that both decisions were of an administrative character and no challenge is made to this finding. His Honour also found that the decisions were not made under the Health Insurance Commission Act 1973 ("the Act"). However, he found that the decisions were made under a document styled "Health Commission. Terms and Conditions of Employment" (to which we shall refer as "the Conditions of Employment") which had been brought into existence pursuant to sub-s. 28(2) of that Act. He was of the opinion that this document was an instrument for the purposes of para. (c) of the definition of "enactment" in sub-s. 3(1) of the Judicial Review Act, that the decisions sought to be reviewed were made under that instrument and that therefore the application for review was competent. The Commission appealed against his Honour's judgement. On the hearing of the appeal, notwithstanding the failure of the respondent to file a notice of cross-contention in accordance with the provisions of Order 52 Sub-Rule 22(3), the Court permitted the respondent to challenge the finding that the decisions were not made under the Act itself.

To understand the questions which arise in this appeal it is necessary to say something about the more important provisions of the Act, the activities of the Commission, the Conditions of Employment and the circumstances relating to the respondent's engagement by the Commission.

Section 28 is a critical section for present purposes. It provides;-

"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."

Section 28A ousts the application of the Public Service Arbitration Act 1920 in relation to the employment of the staff of the Commission and industrial awards, order, determinations or agreements made under that Act in relation to the Commission's staff except in pursuance of claims or applications made before the commencement of s. 28A (1 November 1978).

The Commission is empowered to arrange with the Permanent Head of a Commonwealth Government Department for the services of officers or employees of that Department to be made available to the Commission for a maximum of twelve months (s. 29).

Existing and accruing rights of officers or employees of the Commission who immediately befre their employment under the Act were persons to whom the Officers' Rights Declaration Act 1928 applied, are retained by s. 30.

Activities of the Commission

There have been fundamental changes in the functions performed by the Commission and in its relationship with the Commonwealth Government and the Australian Public Service since the establishment of the Commission. Originally, the principal functions of the Commission were to plan, establish and administer the Australian health insurance program which came to be known as "Medibank". On its establishment the Commission recruited staff necessary to operate "Medibank" and a commencement date of 1 July 1975 was fixed for the program. By that date the Commission had recruited 3,450 employees drawn from both public and private sectors.

Legislation enacted by the Commonwealth Parliament in 1976 brought about major changes to the role of the Commission. Two Acts in particular were passed in 1976 amending the Act, namely the Health Insurance Commission Amendment Act 1976 (Act No. 61 of 1976) and the Health Insurance Commission Amendment Act (No 2) 1976 (Act No. 100 of 1976). As a result of those amendments the Commission commenced to carry on a private health insurance business in competition with private health insurance organisations registered under the National Health Act. This involved the Commission in the conduct of medical benefits funds and hospital benefits funds. In carrying out those new functions the Commission was subject to the provisions of the National Health Act and regulations thereunder. In the result the Commission performed a dual role. It provided universal health insurance cover financed by a health insurance levy. This aspect of the Commission's activities was described as "Medibank Standard". Additionally, the Commission entered the private health insurance field in competition with other registered health benefits organisations as "Medibank Private". By 30 June 1977 the Commission had increased its staff to 4,929 to hadle its general function (Medibank Standard) and its private function (Medibank Private).

The health insurance scheme known as Medibank Standard came to an end on 1 November 1978. From that date the Commission's role was confined to the operation of Medibank Private. The Health Insurance Commission Amendment Act 1978, which came into operation on 1 November 1978, amended the Act to establish the role of the Commission under the new arrangement. Thereafter Medibank Private operated in a competitive position with other health insurance organisations. The most important changes to the business of the Commission which occurred at that time were the removal of its Medibank Standard functions and the disassociation of the Commission from the Public Service Board and the Public Serice Arbitrator.

Between July 1978 and June 1979 staff of the Commission was reduced by 1985. Of that numer about 600 were transferred to the Commonwealth Department of Health. Amendments to the Act were made in 1983 preparatory to the Commission assuming the role of administering the new health scheme known as Medicare to come into effect in February 1984 known as Medicare. Doubtless this too will involve substantial changes to the numbers of staff employed by the Commission and its staffing policy.

Conditions of Employment

Prior to the enactment of the Health Insurance Commission Amendment Act 1978 s. 28 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-s. (1) shall be as determined by the Commission with the approval of the Public Service Board.

(3) . . . "

The form of s. 28 since the 1978 amendment is as we have mentioned earlier. Thus, until 1 November 1978 the approval of the Public Service Board was required to the terms and conditions of employment of the Commission staff.

On 25 September 1974 the Commission determined to adopt terms and conditions of employment of persons appointed or engaged by it under sub-s. 28 (1). Its determination 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.
PART 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."

Lengthy provisions of the most detailed and precise nature were made in respect of the matters referred to in Section A referable to officers of the Commission.

On 26 September 1974 this determination was forwarded to the Public Service Board by a letter 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"

On 30 October 1974 the Public Service Board replied in these terms:-

"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.P. FAUL)
Acting Secretary"

The attachments to the Board's 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.

At a meeting of the Commission held on 27 November 1974 the general manager reported that the Public Service Board had agreed to the Commission's terms and conditions subject to minor amendments. The Commission thereupon approved the amendments. The determination of the Commission, as altered in accordance with the amendments suggested 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"

The terms and conditions of employment in use by the Commission in 1982 were substantially the same as the original terms and conditions determined by the Commission and approved by the Public Service Board in 1974.

Condition 98 of the Conditions of Employment relevantly provides as follows:-

"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 . . . "

The Respondent's Employment

In 1975 the respondent applied for employment with the Commission. Her application was successful and on 12 December 1975 the State Manager of the Commission wrote to her in the following terms:

"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"

On 17 December 1975 the respondent wrote to the Commission accepting its offer of employment. She was not furnished with a copy of the Conditions of Service referred to in the Commission's letter of 12 December 1975 and she was unaware of their terms prior to 25 March 1982 when she was charged with the commission of an offence under condition 98.

On 29 March 1982 the respondent, who was then a claims officer working in the claims processing centre of Medibank Private at Dandenong in Victoria, was charged with the commission of an offence under Condition 98 in that, contrary to sub-s. 130(1) of the Act 1973 "she divulged confidential information with respect to the affairs of a member of Medibank Private acquired in the performance of her duties." She denied the truth of the charge. On 8 April 1982 the first appellant informed the respondent that the charge had been sustained and that she was dismissed from the staff of the Commission as from 8 April 1982. She appealed against this decision but her appeal was never brought on for hearing. Instead, on 24 May 1982 she received a notification from the Commission withdrawing the charge made against her on 29 March 1982 and charging her under Condition 98 with -

"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."

She was also notified that she had been suspended as and from 8 April 1982. She denied the truth of this charge but, on 15 June 1982, she was informed that the charge had been sustained and that she was dismissed from the Commission's service.

The respondent thereupon sought orders of review under the Judicial Review Act of the decisions to suspend and dismiss her.

The Judicial Review Act (s. 5(1)) entitles a person who is "aggrieved by a decision to which this Act applies" to apply to this Court for an order of review in respect of the decision on any one or more of the grounds enumerated in s. 5. The expression "decision to which this Act applies" is defined by sub-s. 3(1) as meaning "a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment, other than . . . " There then follow certain matters which are excluded from the definition which are not presently relevant.

"Enactment" is defined in sub-s. 3(1) as meaning:-

(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;"

The only issue before this Court on appeal is whether the two decisions answer the description of decisions "made under an enactment" within the meaning of that expression in sub-s. 3(1).

The case for the appellants was put in two ways. First, it was submitted that the two decisions were not made under the Act (para. (a) of the definition of "enactment" in sub-s. 3(1) of the Judicial Review Act). Second, it was submitted that the decisions were not made "under an instrument made under" the Act (para. (c) of the definition of "enactment" in sub-s. 3(1)). The decisions were, so it was said, made under the respondent's contract of employment with the Commission. It was argued that this case was indistinguishable from an earlier decision of a Full Court of this Court namely Australian National University v. Burns [1982] FCA 191; (1982) 43 A.L.R. 25.

We shall consider first the question whether the document embodying the Conditions of Employment is an instrument made under the Act. The word "instrument" is a word of wide import and its meaning in sub-s. 3(1) must be ascertained having regard to its context. Counsel for the appellants, in his careful and helpful argument, submitted that the context in which the word "instrument" appears in sub-s. 3(1) requires that its meaning he confined to instruments of a legislative character. Reliance was placed upon the fact that the instances of "enactments" appearing in paras. (a), (b) and (d) of the definition of "enactment" are essentially legislative in character: i.e. Commonwealth Acts, Ordinances of a Territory and laws of the Northern Territory declared by the Regulations in accordance with s. 19A of the Judicial Review Act to be enactments for the purposes of that Act. Counsel then argued that the words in para. (c) "(including rules, regulations or by-laws)" all referred to instruments of a legislative character. The use of the word "made" in para. (c) of the definition was also pointed to as supporting this conclusion. He argued that the word "made" was traditionally used with reference to legislative instruments. Counsel sought to gain support for this argument from sub-s. 33(3) of the Acts Interpretation Act 1901 which provides:-

"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."

The use in sub-s. 33(3) of the words "make, grant, or issue" any instrument was said to support the proposition contended for by the appellants in that "grant or issue" are words more typically associated with instruments in the broader sense, for example, agreements and licences.

We reject the proposition that only instruments of a legislative character are contemplated by para. (c) of the definition of "enactment". In Minister for Industry and Commerce v. Tooheys Limited (1982) 42 A.L.R. 260, a Full Court of this Court (Bowen C.J., Northrop and Lockhart JJ) said at p. 265:-

"The distinction between legislative and administrative acts is referred to in many cases. It is unnecessary to discuss them in detail. The distinction is essentially between the creation or formulation of new rules of law having general application and the application of those general rules to particular cases: Commonwealth v. Grunseit [1943] HCA 47; (1943) 67 CLR 58; Hamblin v. Duffy (1981) 34 ALR 333 and de Smith's Judicial Review of Administrative Action 4th Ed. p. 71. In Commonwealth v. Grunseit, Latham CJ expressed the distinction in these terms (at pp. 82-83):-

"The general distinction between legislation and the execution of legislation is that legislation determines the content of a law as a rule of conduct or a declaration as to power, right or duty, whereas executive authority applies the law in particular cases."

The proposition that by-laws are essentially legislative in character is unsound. The appropriate categorization of by-laws is determined by their context and subject matter. They are not clothed with a legislative character merely because they are called "by-laws". We agree with the primary Judge that the making of a by-law can constitute a legislative act, not an administrative act, and vice versa. The capacity of by-laws, like regulations, orders and rules, to assume either a legislative or an administrative character, is well recognised."

That statement applies in our view to the present question and is destructive of so much of the appellant's argument as asserts that the word "instrument" should be read eiusdem generis with the words "(rules, regulations or by-laws") in para. (c).

In Re Brian Lawlor Automotive Pty. Limited v. Collector of Customs (N.S.W.) (1978) 1 A.L.D. 167 Brennan J. considered what instruments were referred to in sub-s. 33(3) of the Acts Interpretation Act. His Honour held that the instruments there referred to are not necessarily instruments of a legislative kind. His decision was affirmed on appeal: Collector of Customs (N.S.W.) v. Brian Lawlor Automotive Pty. Limited [1979] FCA 21; (1979) 24 A.L.R. 307. That case concerned the meaning of the word "instrument" in a very different context and we do not think that it is of much assistance in the context of the Judicial Review Act. Nevertheless it does afford support for the proposition that there is no warrant for reading down the meaning of the word "instrument" because of the words which follow it in the definition of "enactment" in sub-s. 3(1).

In our opinion for a document to answer the description of an instrument made under an Act or an Ordinance it must first be a document made "under" an Act or an Ordinance. The word "under", in the context of the Judicial Review Act, means "in pursuance of" or "under the authority of": See Evans v. Freimann (1981) 34 A.L.R.428 per Fox J. (at p.436) and Australian National University v. Burns (supra) per Bowen C.J. and Lockhart J. (at p.31). But as their Honours pointed out in Burns Case at (p. 31) the difficulty lies in applying the word "under" to particular circumstances. Further, for a document to be an instrument for the purposes of sub-s. 3(1) it must be a document under which decisions of an administrative character may be made.

We think that some additional quality is required to give a document the status of an instrument for the purposes of sub-s. 3(1) of the Judicial Review Act. Before stating what that additional quality is we must, however, sound a cautionary note. Questions of construction of enabling statutes like the Judicial Review Act are rarely solved at the one time. In the continuing solution of such problems usually there is a history of development and sometimes of change. Bearing this in mind in our opinion this is not the time to seek to expound definitively the meaning and ambit of the expression "instrument. . . made under such an act . . ." This must be determined progressively in each case as particular questions arise.

We agree with the following passage from the judgment of Ellicott J. in Burns v. Australian National University (1982) 40 A.L.R. 707 (at pp. 716-7) with which Bowen C.J. and Lockhart J. agreed on appeal:-

"The clear object of the Act is to confer rights on aggrieved citizens as a result of the exercise of powers conferred by an enactment on Ministers, Public Servants, Statutory Authorities and others. In many cases the power to exercise will be precisely stated in the legislation. In other cases the power to do a particular thing will be found in a broadly stated power. The Act should not be confined to cases where a particular power is precisely stated. In each case the question to be asked is one of substance, whether, in effect, the decision is made 'under an enactment' or otherwise."

As at present advised we accept that to qualify as an instrument for the purposes of the Judicial Review Act the document must be of such a kind that it has the capacity to affect legal rights and obligations. It seems to us that if a document has such capacity it should be regarded as an instrument for the purposes of that Act.

The provisions of the document embodying the Conditions of Employment constitute a comprehensive code of the terms and conditions of employment of the Commission's staff. The effect of sub-s. 28(2) of the Act is to make the provisions of the document the terms and conditions governing the employment of those persons who agree to be employed by the Commission. The document is a statement of the conditions upon which the Commission is prepared to engage such persons. Persons who enter the Commission's service must be taken to accept employment on the terms set out in the document. The document therefore either forms part of, or at least evidences, the contracts of employment made by the Commission with the members of its staff.

But sub-s. 28(2) gives to the document a greater significance than that which attaches to an ordinary contractual document. The Commission's power to determine terms and conditions of employment is not limited to a power to determine such terms and conditions only as at the time of commencement of employment. There is nothing in sub-s. 28(2) to prevent the Commission from making determinations from time to time after persons have entered its employment. Indeed, in the ordinary course of events it might be expected that the terms and conditions of employment of individual employees or of groups of employees will require variation and hence call for fresh determinations. When such determinations are made they have the effect of unilaterally changing the relevant terms and conditions of employment. It is true that an employee who is dissatisfied with a determination of the terms and conditions of his employment may resign from the Commission's service and thus avoid the consequences of a determination unacceptable to him. But, until he does so, the Commission's determination unilaterally works a variation in the terms and conditions of his employment.

The employee's position is to be contrasted with that of an employee whose employer's decisions are not made pursuant to a power such as is found in sub-s. 28(2). Such an employer cannot unilaterally vary the terms of employment. If his employee is unwilling to accept altered employment conditions then the contract of employment will continue on the original conditions unless of course the contract of employment is terminated.

It will thus be seen that a document which is the formal expression of a determination made under sub-s. 28(2) is different in character from a document embodying other decisions of the Commission. For example, a decision taken under sub-s. 28(1) to engage staff may, and probably will, find expression in a document, being a letter offering employment. But such a document would not have the inherent capacity to affect rights or obligations. The document would have no effect in law unless and until the offer of employment contained in it was accepted.

In our opinion the Conditions of Employment determined by the Commission do have the capacity to affect the rights and obligations of the Commission's staff. By setting out in a document the terms and conditions of employment which it has determined, the Commission has, in our opinion, brought into existence a document that is an instrument made under the Act for the purposes of the Judicial Review Act. It is true that s. 28 does not refer to the making of an instrument. But we do not think that this is conclusive for the purposes of the Judicial Review Act. If the document brought into existence by the Commission in exercise of its powers under s. 28(2) is a document which affects the rights and obligations of its staff, we think it has the necessary characteristics to entitle it to answer the description of an instrument for the purposes of the Judicial Review Act.

Counsel for the appellants submitted that s. 28 does not give a regulation-making power. This may be conceded, but it does not follow that a determination under the section is not an instrument. Moreover, it may be observed that, from the point of view of the Commission's staff, it would appear to be immaterial whether terms and conditions of their employment are laid down in a regulation made under s. 44 of the Act or in a determination made under sub-s. 28(2).

It is plain that the Act contemplates that members of the Public Service may be seconded to the service of the Commission: see s. 29. No doubt the employment of public servants would be governed by the provisions of the Public Service Act 1922. It is not without interest that sub-s. 82D(1) of the Public Service Act provides that the Public Service Board "may, by instrument in writing, determine the terms and conditions of employment of officers and employees". It is true that a determination under sub-s. 86D(1) is deemed to be an order made by a Minister for the purposes of s. 5 of the Evidence Act 1905 (see s. 82G) and is, in effect, treated as a regulation for the purposes of the Acts Interpretation Act 1901 (see sub-s. 82F(1)). But the absence of such provisions in the Health Insurance Commission Act does not take away from a determination under sub-s. 28(2) of that Act the essential quality which in our opinion makes it an instrument for the purposes of the Judicial Review Act, namely, the quality of unilaterally affecting the rights and obligations of the Commission's staff. It is therefore not surprising that there should be jurisdiction, as we think there is, under the Judicial Review Act to review a decision to dismiss an employee of the Commission.

We are of the opinion that the decisions to suspend and dismiss the respondent were plainly made under condition 98 of the Conditions of Employment. That being so, they were decisions made "under an instrument" and, being of an administrative character, are reviewable under the Judicial Review Act. This conclusion makes it unnecessary for us to consider whether the decisions were in any event made under sub-s. 28(2) of the Act.

We would dismiss the appeal with costs.

Appeal against an order dismissing an objection to competency.

The facts, and the issues raised for determination, are set out in the reasons for judgment of Lockhart and Morling J.J. .

Section 28(2) of the Health Insurance Commission Act 1973 does not express a command that the Commission determine what shall be terms and conditions of employment (other than in respect of matters provided for by the Act) of persons engaged as staff under the section : it merely declares that the terms and conditions of such employment (other than in respect of matters provided for by the Act) shall be what the Commission may determine to be terms and conditions of that employment. It would no doubt be difficult for the Commission to procure the engagement of staff without having determined some terms and conditions, such as salary and hours of work, unless terms and conditions had been prescribed by means of mechanisms of the kind contemplated by s.28A(1). It may be that a duty, as well as the power, to determine terms and conditions of employment is imposed on the Commission by the Act. Whether that be so or not, terms and conditions determined in exercise of the power are in my opinion made, by force of s.28(2), the terms and conditions of employment of those persons, engaged as staff under s.28(1), to whose employment it is determined by the Commission that those terms and conditions shall apply. And in my opinion the power conferred by s.28(2) is exercisable in respect of the employment of a person, or of a class of persons, not only upon engagement, but also from time to time for so long as that person, or a member of that class of persons, continues in that employment. The language of s.28(2) is apt to confer a power exercisable at any time and in respect of any person at that time employed or to be employed as staff, rather than a power exercisable only once in respect of any such a person. And the Australian experience of employment and of change in terms and conditions of employment would indicate the improbability of a legislative grant of authority to determine those terms and conditions only as the Medes and the Persians might have done. If that be the operation of s.28(2) and the extent of the power it confers, there is less of the consensual about the employment of persons engaged as staff under s.28(1) than there was about the employment under consideration in Burns' Case [1982] FCA 191; (1982) 43 A.L.R. 25. Unlike Burns, persons in the Commission's employment are subject to the exercise by the Commission of a power, conferred by s.28(2), unilaterally to alter terms and conditions of their employment.

In Burns' Case both judgments discriminate between a decision with respect to a right, incident to employment, which finds explicit expression in an "enactment" and a decision with respect to such a right which finds explicit expression only in a contract of employment, albeit a contract of a class authorised by an "enactment" to be made. Authorisation by the "enactment" of the making of such a contract was in that case held insufficient to justify a conclusion that the decision was "made . . . under an enactment", within the meaning of that expression in the definition of "decision to whic this Act applies" in s.3(1) of the Administrative Decisions (Judicial Review) Act 1977. The authorising enactment in that case was s.23 of the Australian National University Act 1946, which provided (43 ALR at 30):

"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."

This provision, in its statutory context, was held to authorise the making of a contract for the employment by the Council of the respondent Burns as a professor upon terms which included a stipulation for his dismissal by the Council in the event that he should have become permanently incapacitated from performing the duties of his office. It was the decision of the Council to dismiss Burns on that ground which was held to be not a decision made under the Act, but a decision made "under the contract". In the reasons of Bowen C.J. and Lockhart J. for the decision the following observations are made (43 ALR at 32, 33, 36):

"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.

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

If the making of a contract is authorized 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. For example, special protection is extended to public servants and servants of statutory authorities in Australia who may be adversely affected in relation to promotion, disciplinary action or dismissal. The Public Service Act 1902 and the Broadcasting and Television Act 1942 are two Acts which contain detailed provisions for the creation, abolition and reclassification of positions in their respective services, for transfer, promotion, retirement and dismissal of officers, for the establishment of Appeal Boards and Boards of Inquiry to review disciplinary action, and for Promotion Appeal Boards or Committees to hear appeals by officers against particular promotions within the relevant service. Decisions made by those Boards or Committees under the authority conferred by sections of the Public Service Act or the Broadcasting and Television Act may be susceptible of review under the Judicial Review Act. Hamblin v. Duffy, supra, was a case where it was decided that a decision of the Promotions Appeal Board constituted by the Broadcasting and Television Act disallowing an appeal by an officer against the provisional promotion of another officer to a vacant position in the service of the Australian Broadcasting Commission could be reviewed under the Judicial Review Act.

If the Australian Broadcasting Commission entered into a contract of employment with a person which provided for the circumstances in which that person could be promoted simply by restating the relevant provisions of the Broadcasting and Television Act covering the promotion of officers in the service of the Commission, decisions in respect of the promotion of that person may be made not only under the contract but also under the Broadcasting and Television Act itself and therefore answer the description of decisions made under that Act.

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

. . . to decide in the present case that the Council's decision to dismiss the respondent was made "under" the University Act rests on too frail a branch - s.23 Parliament, if it wished, could have laid down essential procedural requirements to be observed before professors are removed from office or prescribed indidents of the employment of professors or otherwise specified particular rights or priveleges to be enjoyed by them. But Parliament did not do this. Nor has the Council made any statutes touching these matters.

In our opinion the Council's decision to dismiss the respondent was made under the contract between the parties and not otherwise."

Sheppard J., who agreed generally with the reasons of the other two members of the Court, observed (43 ALR at 37):

". . . the essential question is whether the decision was made under, that is pursuant to, an enactment or not. In a sense everything which a statutory body or authority does or decides to do is under or pursuant to its incorporating enactment. But for it the body has no existence and, but for statutory powers conferred on it or its governing body, it cannot act. But the question is one of the proper construction of Judicial Review Act (the Act). I do not consider that the legislature intended every decision of the governing body of a statutory authority to be within the purview of the Act.

On the other hand I have not found it easy to reach a conclusion on what the touchstone or guiding principle for determining which cases are within and which cases are outside it free from difficulty. For reasons shortly to be given I am of opinion that this case is clearly outside the purview of the Act. That being so, it seems to me to be undesirable to attempt to define with any precision the limits of the operation of the Act. The Act is still comparatively new. The field is a developing one. New factual situations are arising for consideration with increasing frequency. It is preferable to let the limits of the jurisdiction be worked out over a period with the aid of the experience of the great variety of cases which will require consideration.

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

I emphasize that in the present case the decision to dismiss was made pursuant to the express power in that regard contained in the contract itself and only in the most indirect way pursuant to powers contained in the appellant's Act. The contract itself was, of course, made pursuant to that Act.

Finally I wish to make it clear that my conclusion in this matter may have been different if there had been made a statute providing for dismissal or determination of employment. If there had been such a statute, depending upon its terms, there may have been a sound argument to the effect that the dismissal was under such statute and this under an enactment. That could have been so whether the decision, strictly speaking, was made under a contract which imported the provisions of the statute, or whether it was made pursuant to the statute alone. The position may then have been no different from that which exists in cases under Public Service employment legislation which usually contains express provisions dealing with the circumstances in which a variety of public servants may be appointed, promoted, disciplined and dismissed. Although such employees have contracts of service with the Commonwealth or with a particular statutory authority, which contracts may import the provisions of the relevant enactment, one would still conclude, as has been done in many cases, that challenged decisions were made under the enactment as well as under the contract and were thus open to review under the Act."

The circumstances that in the Australian National University Act the power of the Council to include in a contract of employment of a professor terms and conditions with respect to his dismissal is not expressly conferred and that in the Health Insurance Commission Act the power of the Commission to determine terms and conditions of employment of persons engaged as staff is expressly conferred might be thought inadequate as a ground of distinction between the decision under consideration in Burns' Case and that under present consideration. But there is a distinction between a statutorily conferred power to do in relation to the formation of a contract of employment what any person might at common law do in relation to any contract for his employment of another - that is, to agree upon terms for dismissal from that employment - and a statutorily conferred power to alter, without the agreement of the other party, any term or condition of such a contract, other than a term or a condition in respect of a matter provided for by the statute by which that power is conferred. It is true that the power conferred by s.28(2) of the Health Insurance Commission Act does not free the Commission of any restraint in the formation of a contract for employment of any person as staff : what the Commission determines to be terms and conditions of employment the person contemplating that employment is free to reject by declining the employment. For that reason s.28 may be said not to affect the formation of the contracts which it authorises the Commission to make. But, once such a contract has been made, s.28(2) operates to give that contract an unusual character : its terms and conditions (other than in respect of matters provided for by the Act) continue in existence only until the Commission determines otherwise. To that extent the terms of the contract are sustained in existence, not by the common law of contract, but by s.28. It is in those respects a contract quite unlike the contract under consideration in Burns' Case. Decisions for which terms and conditions determined under s.28(2) provide are in my opinion decisions "made . . . . under an enactment", namely the Health Insurance Commission Act, within the meaning of the definition of "decision to which this Act applies", for those terms and conditions, even when they originated consensually, are sustained in their contractual existence by the operation of that enactment. The appellant conceded that, if the decisions under consideration were "made . . . . under an enactment" in that sense, they were decisions of an administrative characte. The same concession was made by the appellant University in Burns' Case. I accept as correct the concession made in this appeal. Accordingly I would dismiss this appeal, but for a reason different from those upon which the order was grounded against which appeal is brought.

That order was grounded upon the conclusion that the terms and conditions of employment determined by the Commission in exercise of the power conferred by s.28(2) constituted "an instrument . . . . under such an Act", within the meaning of that phrase in paragraph (c) of the definition of "enactment" in s.3(1) of the Administrative Decisions (Judicial Review) Act 1977. Speaking of the power conferred on the Commission by s.28(2), before and after deletion therefrom (by amendment effected by the Health Insurance commission Act 1978) of the phrase "with the approval of the Public Service Board", and contrasting that power with the power which was under consideration in Re Brian Lawlor Automotive Pty. Ltd. and Collector of Customs (N.S.W.) (1978) 1 Admin. L.D. 167 and in Collector of Customs (N.S.W.) v. Brian Lawlor Automotive Pty. Ltd. [1979] FCA 21; (1979) 24 A.L.R. 307, the learned judge observed:

"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'.

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'."

In my opinion the words "an instrument" in the definition of "enactment" comprehend only the rules, regulations and by-laws expressly included and, perhaps, some other traditional modes of executive action (Order in Council, for example) and a document the making or issuing of which operates as an act in the law and the making or issuing of which is authorised, expressly or impliedly, by the relevant Act or Ordinance to have such an operation. In my opinion no such an authority is expressed or implied by s.28(2). What that sub-section authorises as an act in the law is a "determination" by a corporation aggregate : a decision reached in accordance with the rules governing the proceedings of the corporation. (For present purposes it is unnecessary to include reference to delegation of the Commission's power, except to observe that s.8H, which requires that delegation be "by writing under its common seal", provides an example of what I think would be "an instrument".) What is conferred is a power to make a decision, not a power to make a document, having an effect in law which s.28(2) specifies. The decision is made, conformably with the requirements of Part III of the Act (which is concerned with the constitution and meetings of the Commission) by resolution at a meeting of the Commission. When it has been made, a written record of its making will be made in the minutes which s.19(10) requires to be kept. No doubt other written records of what was likely to be, and later of what had been, determined by resolution would, for the practical reasons which the learned judge mentioned - and for other practical reasons - be made by officers of the Commission; and some of those written records would be published to persons at the time of the decision employed by the Commission whose terms and conditions of employment were altered by the making of the decision. But none of those documents would be instruments : they would all be records of the act in the law authorised by s.28(2) and done by resolution of the Commission, none of them an act in the law itself.

In the case of "rules, regulations or by-laws" made under statutory authority, different considerations are involved. Nothing turns, in relation to those instruments, on the distinction which I have made between the making of a decision which constitutes an act in the law and the making of a document which constitutes such an act. Not only are they instruments by virtue of their express inclusion in paragraph (c), but also by virtue of a usage careless of the distinction I have suggested.

It is, however, unnecessary that I express a concluded opinion whether any "instrument" within paragraph (c) of the definition, containing terms and conditions of the respondent's employment, came into existence; or whether, as was submitted by counsel for the Commission, no document containing those terms and conditions would be such an "instrument" because that word, in paragraph (c) of the definition, comprehends, according to the submission, only documents containing legislative provisions such as, it was submitted, rules, regulations and by-laws express.

I agree in the orders disposing of the appeal.