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Federal Court of Australia |
COURT
IN THE FEDERAL COURT OF AUSTRALIACATCHWORDS
Fire Brigades - Australian Capital Territory Fire Brigade - Promotion - Meaning of "seniority".Judicial Review - Role of tribunal - Tribunal should not normally present a substantive argument upon an application to a superior court for judicial review of its decision, but should submit to such order as the court might make.
Administrative Decisions (Judicial Review) Act 1977
Commonwealth Public Service Act 1902
Commonwealth Public Service Act 1922
Commonwealth Public Service Regulations 1935
Conciliation and Arbitration Act 1904
Federal Proceedings (Costs) Act 1981
Fire Brigade Employees (ACT) Award 1975
Fire Brigade (Administration) Ordinance 1974 (ACT)
Fire Brigade (Administration) Regulations
Industrial Relations (Consequential Provisions) Act 1988
Public Service Act 1890 (Victoria)
Public Service Act 1895 (NSW)
Public Service Act 1922
Public Service Act 1922-1974
Public Service Act (No. 2) 1951
Australian Conservation Foundation v. Forestry Commission (1988) 79 ALR 685
Baumgartner v. Baumgartner [1987] HCA 59; (1987) 164 CLR 137
Blackley v. Devondale Cream (Vic) Pty. Ltd. [1968] HCA 2; (1968) 117 CLR 253
Brayson Motors Pty. Ltd. (In liq) v. Federal Commissioner of Taxation [1985] HCA 20; (1985) 156 CLR 651
Crumblin v. Kerr (1987) 72 ALR 461; (1979) 79 ALR 74
Commissioner of Taxation v. ICI Australia [1972] HCA 75; (1972) 127 CLR 529
Deputy Federal Commissioner of Taxation (SA) v. Ellis & Clark Ltd. [1934] HCA 54; (1934) 52 CLR 85
Downey v. Pryor [1960] HCA 49; (1960) 103 CLR 353
Federal Firefighters' Union v. Minister of State for the Capital Territory [1982] FCA 125; (1982) 62 FLR 341
Rix v. Engleheart (1984) 8 IR 445
Shannon Realties Ltd. v. Ville de St. Michel (1924) AC 185
The Commissioner for Railways (NSW) v. McCulloch [1946] HCA 27; (1945) 72 CLR 141
The Queen v. The Australian Broadcasting Tribunal; Ex Parte Hardiman [1980] HCA 13; (1980) 144 CLR 13
Thorn EMI Pty. Ltd. v. Federal Commissioner of Taxation (1987) 13 FCR 491
Waterford v. The Commonwealth of Australia [1987] HCA 25; (1986-1987) 163 CLR 54
HEARING
CANBERRA Counsel for the Firstnamed Mr B. Hungerford QC and
and Secondnamed Appellants Ms L. Vardanega
Solicitors for the Firstnamed Australian Government
and Secondnamed Appellants SolicitorCounsel for the Firstnamed Mr B. Sully QC and
Respondent Mr G. StrettonSolicitors for the Firstnamed Messrs Snedden Hall &
Respondent GallopCounsel for the Secondnamed Mr R. Crowe
and Thirdnamed RespondentsSolicitors for the Secondnamed Messrs Pamela Coward and
and Thirdnamed Respondents Associates
ORDER
The appeal and the cross-appeal be allowed. The order of the Honourable Mr. Justice Neaves made 16 December 1988 be
varied -
(a) by deleting from the orders contained in paragraph 3Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
thereof the words "each of the second respondents and
of", and by substituting for the word "appeals" in
the said paragraph 3 the word "appeal";
(b) by deleting from the orders contained in paragraph 4
thereof the words "of each of the second respondents
and";
(c) by setting aside the orders contained in paragraphs 5
and 6 thereof and substituting in lieu thereof the
following declaratory orders:
"Until the contrary is provided by competent
authority the word 'seniority' in sub-section 33(1)
of the Fire Brigade (Administration) Ordinance 1974
of the Australian Capital Territory is to be taken to
mean the tenure of higher rank than, or the tenure
for a longer period of the same rank as, is held by
the person to whom reference is made in that sub-section
by the words 'the member provisionally promoted'.
Until the contrary is provided by competent authority
the words 'more or most senior' in Regulation 17 of
the Fire Brigade (Administration) Regulations of the
said Territory are to be taken to mean holding the
higher or highest rank or having the longer or
longest tenure of a rank held by several persons."
(d) by substituting in the order contained in paragraph 7
thereof for the words "the applicant's costs of the
application" the words "the costs of each other party
to the application";
(e) by adding thereto the following order:
"Each application for an order of review in respect
of the decision of the Promotions Appeal Tribunal
made on 28 October 1987 disallowing the appeal by the
applicant against the provisional promotion of each
of the second respondents be dismissed".Each party abide his own costs of the appeal and of the cross-appeal.
DECISION
I have had the benefit of reading the respective judgments of Jenkinson and Beaumont JJ. I am in general agreement with them that, in the absence of any exercise of the regulation making power conferred by s.81 to define the word "seniority" in s.33(1) of the Fire Brigade (Administration) Ordinance 1974, it is permissible to refer to the Fire Brigade Employees (ACT) Award 1975 and the variation of that award in 1977, for the limited purpose of ascertaining the scheme of seniority in place among members of the Fire Brigade. Particularly is that course legitimate in the circumstances where such Regulations as have been made pursuant to s.81 of the Ordinance do not define the meaning of "seniority" and how it is to be construed in the Regulations.2. The provisions of clause 29 of the Award and, in particular, paras (c), (l) and (m) thereof, provide a scheme for the purpose of ascertaining the relative seniority of members of the Brigade. There is nothing in that scheme which is inconsistent with the Ordinance or the Regulations. The legal effect of those provisions in the award is that the words "seniority" in s.33(1) of the Ordinance and "senior" in reg.17 are to be understood as referring to precedence deriving from tenure of higher rank or from longer tenure of the same rank.
3. I would not be prepared to go as far as Jenkinson J. and hold that, as the Minister has abstained from exercising the power conferred by s.81 to give the words "senior" and "seniority" defined meaning, that power is impliedly conferred on the Commissioner by s.13 of the Ordinance in terms that the Commissioner may issue such general orders and instructions as are necessary to secure the good government and efficient working of the Brigade.
4. There are two other aspects of this case to which I wish to refer. The first is the difficulty referred to by Beaumont J. in permitting the Commissioner or the Promotions Appeal Tribunal to pursue active roles in the conduct of the proceedings both at first instance and on appeal. For the reasons stated, Beaumont J. reached the conclusion that it would be appropriate to add the Commonwealth as an additional appellant, notwithstanding that it was not joined at first instance. To give effect to that conclusion, his Honour proposes that, in order to permit the Commonwealth to be heard if it wishes, the operation of the orders disposing of the appeal and cross-appeals be suspended for a period of 60 days from the date of the publication of the decision.
5. On the other hand, Jenkinson J., with the advantage of having read Beaumont J.'s reasons for judgment, has concluded that the Commonwealth has had sufficient opportunity to apply to be added as a party since the hearing of the appeal and cross-appeals and that no action should be taken by this court to invite such an application or to order the addition, with its consent, of the Commonwealth as a party.
6. Without deprecating the appropriateness of Beaumont J.'s proposal, I am of the opinion that the Commonwealth has been afforded full opportunity to be added as a party and, as it has not applied to be joined or otherwise intervened pursuant to s.18 of the Administrative Decisions (Judicial Review) Act 1977, no further action in this respect is necessary.
7. The other matter to which I need to refer is the relevance to this case of the decision of this court differently constituted in Crumblin v. Kerr (1987) 72 ALR 461. In the reasons for judgment of Morling J., with which I expressed my general agreement, he expressed the view that those officers of the Brigade concerned in the appeal were of equal seniority, because they were both appointed to the rank of District Officer on the same day. Both officers had also joined the Brigade on the same day. In his reasons for judgment, Pincus J. found it unnecessary to prescribe a general test of seniority for the purposes of deciding the appeal, but he observed that the learned primary judge in that matter was correct in holding that the two officers concerned held the same seniority.
8. It is important to note that it was unnecessary for the purposes of resolving that appeal to determine the basis upon which seniority within the Brigade is to be established. The appeal raised for decision the ambit of the matters to be taken into account by the Commissioner when deciding to appoint an officer of the Brigade to act temporarily in a higher rank and, in particular, whether reg.16 provided one of the qualifications for temporary appointment to a higher rank. Regulation 16 provides that, notwithstanding the provisions of regs.8-14 inclusive, the Commissioner is not to promote a member of the Brigade to a higher rank unless the conduct and service of the member are satisfactory. The Commissioner did not appoint the appellant in that case to act temporarily in a higher rank on the grounds that the appellant was ineligible for promotion to the rank due to the appellant's conduct and service being unsatisfactory.
9. The substantive point on the appeal was whether the conduct and service of a member is relevant in determining eligibility for temporary appointment to higher rank. Both Morling and Pincus JJ. came to the same conclusion that conduct and service were relevant considerations of eligibility. It was with that conclusion that I intended to express my general agreement. The appeal was determined accordingly.
Appeals and cross-appeals against orders of a single judge of the Court which disposed of several applications for orders of review in respect of administrative decisions.
2. The decisions were made under an Ordinance for the government of the Australian Capital Territory called the Fire Brigade (Administration) Ordinance 1974. Fire control services had until that year been provided in the Territory by the New South Wales Fire Brigade. By the Ordinance there was established an Australian Capital Territory Fire Brigade consisting of the Fire Commissioner, for whose appointment by the Minister of State for the Territory the Ordinance provided, and the members appointed by the Fire Commissioner. The members are the officers and firemen, each of which groups is by the Ordinance divided into ranks, officers holding the rank of Station Officer, District Officer or Superintendent, and members holding the rank of Fourth Class Fireman, Third Class Fireman, Second Class Fireman, First Class Fireman, Grade B, First Class Fireman, Grade A, or Senior Fireman. Except during a period which ended in 1976 the Fire Commissioner is prohibited by s.20(2) of the Ordinance from appointing a person as a fireman otherwise than to the rank of Fourth Class Fireman. He is empowered by s.29(1) of the Ordinance to promote an officer to a higher rank and to promote a fireman to a rank of officer or to a higher rank as fireman. The appellant William Moore Gould Kerr ("the Commissioner"), who is and at material times has been the Fire Commissioner, on 17 August 1987 promoted from the rank of Station Officer to the rank of District Officer a man named Rummery and each of the five persons designated the secondnamed respondents or the thirdnamed respondent. The Ordinance makes provision for appeal by a member of the Brigade, against a promotion by the Commissioner, to a Promotions Appeal Tribunal, for the constitution of which the Minister is authorised by the Ordinance to make arrangements. The firstnamed respondent Raymond Verran ("Mr. Verran"), a Station Officer, appealed against the promotions to such a Tribunal, which for the hearing and determination of those appeals was constituted by the three persons designated the secondnamed appellants ("the Tribunal"). The Tribunal disallowed Mr. Verran's appeal. In accordance with provisions of the Ordinance which treat a promotion as "provisional" until either the time for appeal has expired without an appeal having been made or any appeal has been determined or has become inoperative, the Commissioner gave effect to the disallowance of Mr. Verran's appeals by confirming the provisional promotions he had made. Mr. Verran made application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 in respect of each of the decisions by the Commissioner provisionally to promote each of the second and thirdnamed respondents and to confirm those provisional promotions, and in respect of each of the decisions by the Tribunal disallowing the appeals against the provisional promotions of those persons. No order of review was sought in respect of decisions concerning Mr. Rummery's promotion. All the applications were heard together and were determined by orders pronounced by Neaves J. on 16 December 1988. His Honour set aside all of the decisions. It is convenient to defer consideration of the other orders which his Honour made until the questions which arose in the proceeding, and which arise in these appeals, have been disclosed.
3. Section 32 and sub-sections (1) and (2) of s.33 of the Ordinance provide:
"32. The promotion of a member -The remaining sub-sections of s.33 give directions to the Commissioner for his giving effect to the result of the appeal, either by cancelling the provisional promotion and promoting the appellant or by confirming the provisional promotion. Neither the word "seniority" nor the word "senior" is found in the Ordinance except in sub-section 33(1) and, elsewhere, as part of the rank designation of "Senior Fireman". It was the contention of Mr. Verran, and a conclusion of Neaves J., that in sub-section 33(1) the word "seniority" signified priority of appointment as a member of the Brigade. All other parties contended that the word in that sub-section signified the precedence conferred at any time on one member over another either by tenure of a higher rank or by priority of appointment to the rank held by each of them.
(a) is provisional and without increased
salary pending confirmation of the
promotion; and
(b) is subject to appeal in accordance
with this Division.
33.(1) A member who considers that he should
have been promoted in preference to the member
provisionally promoted may appeal, within a
period of 2 weeks from the date on which the
promotion is notified in accordance with
sub-section 29(3), against the provisional
promotion on the ground of equal efficiency
and seniority.
(2) Upon an appeal or appeals being made
against a provisional promotion, a Promotions
Appeal Tribunal specified by the Minister
shall make full inquiry into the claims of the
appellant or appellants and the claims of the
member provisionally promoted and determine
the appeal or appeals."
4. Section 16(4) of the Ordinance provides that, subject to the Ordinance,
the members of the Brigade are to be employed on such
terms, and subject to
such conditions, as are prescribed. Section 81 provides:
"The Minister may make regulations, notThe Fire Brigade (Administration) Regulations (Regulations 1980, No. 12) now in force, which were made by the Minister in 1980 in exercise of power conferred by s.81, deal with the subjects specified in the lettered paragraphs of that section. Similar provisions had been made in 1974 by regulations which were founded on the same section of the Ordinance and which were repealed by the regulations made in 1980. Counsel for none of the parties suggested that there was any difference material to the questions which arise in these appeals between the earlier, repealed regulations and the Fire Brigade (Administration) Regulations made in 1980, and it is to the latter regulations that I will refer.
inconsistent with this Ordinance, prescribing
all matters which by this Ordinance are
required or permitted to be prescribed or
which are necessary or convenient to be
prescribed for carrying out or giving effect
to this Ordinance and, in particular,
prescribing matters for and in relation to -
(a) the appointment and promotion of members;
(b) the holding of examinations in connexion
with the appointment and promotion of members;
(c) the temporary appointment of an officer
to a higher rank."
5. Reference was made by counsel to the following regulations:
"8. Subject to sub-regulations 15(1), a6. The word "seniority" is not found in the regulations. Except in the rank designation "Senior Fireman" the word "senior" is found only in Regulations 17 and 19. The opposed contentions of the parties as to the meaning which the word "seniority" should bear in sub-section 33(1), and as to the meaning which the word "senior" should bear in Regulation 17, are not resolved by recourse to dictionaries. The second edition of the Oxford English Dictionary gives : "Priority or precedence in office or service; esp. Mil. Superiority in standing to another of equal rank by reason of earlier entrance into the service or an earlier date of appointment". For the word "senior" the same authority gives : "That ranks before others in virtue of longer service or tenure of a position". The Macquarie Dictionary gives for "senior" : "of higher standing, esp. by virtue of longer service"; for "seniority" : "priority or precedence in age or service".
person is eligible for promotion to the rank
of Third Class Fireman if the person has -
(a) held the rank of Fourth Class fireman for
a continuous period of not less than 1 year; and
(b) passed an examination conducted by the
Commissioner for the purposes of this regulation.
9. Subject to sub-regulation 15(1), a person
is eligible for promotion to the rank of
Second Class Fireman if the person has -
(a) held the rank of Third Class Fireman for
a continuous period of not less than 1 year; and
(b) passed an examination conducted by the
Commissioner for the purposes of this regulation.
10. Subject to sub-regulation 15(1), a person
is eligible for promotion to the rank of First
Class Fireman, Grade B if the person has -
(a) held the rank of Second Class Fireman for
a continuous period of not less than 1 year; and
(b) passed an examination conducted by the
Commissioner for the purposes of this regulation.
11. A person is eligible for promotion to the
rank of First Class Fireman, Grade A if the
person has held the rank of First Class
Fireman Grade B for a continuous period of not
less than 1 year.
12. Subject to sub-regulations 15(2), a
person is eligible for promotion to the rank
of Senior Fireman if the person has -
(a) held the rank of First Class Fireman,
Grade A for a continuous period of not
less than 2 years; and
(b) passed an examination conducted by the
Commissioner for the purposes of this regulation.
13. A person is eligible for promotion to the
rank of Station Officer if the person has -
(a) held the rank of Senior Fireman for a
continuous period of not less than 4 years; and
(b) passed an examination conducted by the
Commissioner for the purposes of this regulation.
14. A person is eligible for promotion to the
rank of District Officer if the person has
passed an examination conducted by the Commissioner
for the purposes of this regulation.
15.(1) Where a person fails to pass an
examination conducted for the purposes of
regulation 8, 9 or 10, the period during which
he is required by the regulation to hold his rank
in order to become eligible for promotion is
increased by 1 month in respect of each failure.
(2) A person who fails to pass an
examination conducted for the purposes of
regulation 12 is not eligible to sit for that
examination again before the expiration of a period
of 3 months after the date of the examination.
16. Notwithstanding the provisions of
regulations 8 to 14 (inclusive), the
Commissioner shall not promote a member to a
higher rank unless the conduct and service of
the member are satisfactory.
17. Where more than one person is eligible
for promotion to a rank, the Commissioner shall -
(a) where each eligible person passed the
examination conducted in relation to
promotion to that rank at the same time -
promote to that rank the more or most
senior of those persons; or
(b) in any other case - promote to that rank
the person who first passed the
examination conducted in relation to
promotion to that rank.
. . . . . . . . . . . . . . . . . . . . . . .
19. The Commissioner shall not appoint an
officer to act temporarily in a higher
rank unless the officer is -
(a) eligible for promotion to that rank; and
(b) the only officer, or the more or most
senior of the officers, so eligible."
7. Mr. Hungerford Q.C., who appeared with Ms. Vardanega for the Commissioner and the Tribunal, submitted that the meaning of the word "seniority" in sub-section 33(1) for which he contended was shown to be preferable by the application of the principle of construction propounded by the Judicial Committee of the Privy Council, in Shannon Realties Ltd. v. Ville de St. Michel (1924) AC 185 at 192-193, that "where alternative constructions are equally open, that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating; and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of the system".
8. Division 2 of Part III of the Ordinance is concerned with the appointment
of members of the Brigade. Section 23 provides that
a person shall not be
appointed under that Division unless he is qualified in accordance with the
regulations. And s.29(2) provides:
"The Commissioner shall not promote an officerHaving regard to those provisions, to s.81 and to the regulations which I have set out above, it would seem permissible to consider the regulations as well as the Ordinance in order to ascertain what "the system" is which the Ordinance is regulating : Deputy Federal Commissioner of Taxation (SA) v. Ellis & Clark Ltd. [1934] HCA 54; (1934) 52 CLR 85 at 89-95; Brayson Motors Pty. Ltd. (In liq) v. Federal Commissioner of Taxation [1985] HCA 20; (1985) 156 CLR 651 at 652; Thorn EMI Pty. Ltd. v. Federal Commissioner of Taxation (1987) 13 FCR 491 at 498.
or a fireman to a rank unless the officer or
fireman is eligible in accordance with the
regulations for promotion to that rank."
9. Mr. Hungerford submitted, and the conclusion is inescapable, that the Brigade is by the Ordinance and the regulations organised in hierarchical ranks through each of which a member must successively progress for a prescribed period of service until he attains the rank of Station Officer, unless at any time before he has completed the period of service as a Senior Fireman prescribed as a condition of eligibility for promotion to the rank of Station Officer he gains promotion to the rank of District Officer or of Superintendent. (Eligibility for promotion to the rank of District Officer may, under the Ordinance and the regulations, be achieved by a member merely by passing an examination. Every member is eligible for promotion to the rank of Superintendent.) To an organization so structured a conception of seniority which accords precedence to rank and, within a rank, to priority of appointment to that rank, can be seen in Mr. Hungerford's submission to be the appropriate, or at least the more appropriate, conception by which to regulate competition on an appeal against promotion.
10. The submission does not in my opinion command unhesitating acceptance. Where in respect of each rank except the two highest ranks in a career of public service a period of service in the immediately subordinate rank is a condition of eligibility for promotion, the application of the conception of seniority for which Mr. Hungerford contends, in competition on appeal, would tend to perpetuate throughout a member's career any check to the advancement of that career which occurred when the member was of low rank. If, for example, one of five Fourth Class Firemen, appointed to that rank before the other four but qualified for promotion by passing an examination on the same day as the other four, were to be passed over for promotion to the rank of Third Class Fireman (whether justly or not and, if justly, whether by reason of some fault of his or by reason of illness or other misfortune) when the other four were promoted to that rank, that one member would thereafter, if the meaning in sub-section 33(1) of the word "seniority" be that for which Mr. Hungerford contends, be at risk that he would never by achieving and maintaining a higher level of efficiency than the other four gain provisional promotion before any of them or succeed on appeal against a provisional promotion of any of them. If on the other hand the meaning of the word were that for which Mr. Sully Q.C., who appeared with Mr. Stretton for Mr. Verran, contended, the member passed over at one of the lower ranks who thereafter achieved an efficiency equal to that of the other four, notwithstanding experience of shorter duration in one or more of the ranks through which all five had successively progressed after he was passed over, could expect on an appeal against the provisional promotion of any of the four to establish what sub-section 33(1) would require of him : "equal efficiency and seniority". It is in my opinion at least arguable that the advantages which the conditions of eligibility for promotion would confer on the four if they were promoted at a time when he was passed over, coupled with the requirement imposed on him of showing, as an appellant, efficiency equal to that of any of them, are sufficient compensation for the disadvantage each of the four would suffer by reason of the circumstance that his earlier appointment as a member of the Brigade is given the recognition which in Mr. Sully's contention is prescribed by sub-section 33(1), and by Regulations 17(a) and 19(b).
11. The most demanding activities in which the members of the Brigade engage,
and to the efficient execution of which their training
is principally
directed, are activities in which prompt, unquestioning obedience to the
orders of a member of superior rank is essential.
Of that I think a court may
take judicial notice. In that their service may be thought similar to military
service : disciplined
and co-operative work, often performed under
circumstances of danger. For the purpose of ensuring efficiency in the
performance of
such work by the members of a Fire Brigade organized in ranks
as this Brigade is organized, direction would be required as to the
order of
precedence in authority of members holding the same rank, so that those
members might know which of them was to have authority
over the others when
they were working together. That was no doubt why s.19 of the Defence Act 1903
has provided, when the Ordinance was made and since that time:
"The seniority of officers of the MilitaryIn the Ordinance no express provision is made either defining the word "seniority" or authorising some person to define the word for the purposes of the legislation. Neither the Ordinance nor the Ordinance and the regulations considered together gives a clear indication of preference for the one or the other meaning of the word, in my opinion. In those circumstances the possibility should in my opinion be considered that the word is used in sub-section 33(1) in the sense which the Oxford English Dictionary gives, its ambiguity unresolved by the enacting legislator, which has left to another the choice between "earlier entrance into the service" and "an earlier date of appointment" to that "equal rank" which two or more members of the Fire Brigade share.
Forces and soldiers in their respective ranks
and in relation to other members shall be as
prescribed by, or determined in accordance
with, the regulations or, in any case for
which provision is not made by the regulations,
as determined by the Military Board."
12. At the time when the Ordinance was made the Public Service Act 1922
included the following provisions:
"50.(1) Where a vacancy exists in an officeNo express grant of power to define seniority in the Commonwealth Public Service by regulation or by other means had been included in the Public Service Act 1922 until 1951 : Public Service Act (No. 2) 1951, s.19(1). But seniority, for the purposes of s.50 of the Act, had been defined by regulation from the time when that Act was passed, no doubt in exercise of the generally expressed power conferred by the first clause of sub-section 97(1). The Commonwealth Public Service Regulations made in 1935 (S.R. 1935, No. 18), by which all preceding regulations were repealed, defined seniority in relation to each of a number of different classes of officer : Regulation 110. From the commencement of the Commonwealth Public Service Act 1922, as it was then cited, until after the making of the Ordinance and the regulations under the Ordinance, that Act provided that the Service should consist of four divisions. Regulation 110 provided in 1935 that, except in respect of officers appointed before 1st July 1924 and in respect of another, special class of officers, the relative seniority of officers of the lowest division, that is the Fourth Division, should be determined by the respective dates of their entry into the division. At that time Regulation 110(5) provided:
in any Division other than the First Division,
the Permanent Head of the Department in which
the vacancy exists may, subject to this Act,
transfer or promote an officer to fill the vacancy.
. . . . . . . . . . . . . . . . . . . . . . .
(3) In the selection of an officer for
promotion under the provisions of this
section, consideration shall, subject to the
next succeeding sub-section, be given first to
the relative efficiency, and, in the event of
an equality of efficiency of two or more
officers, then to the relative seniority, of
officers available for promotion to the vacancy.
(3A) The regulations may provide for the
selection of officers for promotion to
prescribed offices or to offices included in
any prescribed group or section of offices on
the basis of the selection of the senior
efficient officer available for promotion.
. . . . . . . . . . . . . . . . . . . . . . .
(5) Any promotion made in pursuance of
sub-section (1) shall be provisional and
without increased salary pending confirmation
of the promotion, and shall be notified in the
prescribed manner, and shall be subject to the
right of appeal as provided in this section.
(5A) For the purposes of this section, the
Board shall, from time to time, arrange for
the constitution of -
(a) such Promotions Appeal Committees for
each State as are required; and
(b) such Central Promotions Appeal
Committees as are required.
. . . . . . . . . . . . . . . . . . . . . . .
(6) An appeal under this section shall be
made in such manner and within such time as is
prescribed, and may, subject to the next
succeeding sub-section, be made by any
officer who considers that he is more entitled
to promotion to the vacant office than the
officer provisionally promoted, on the ground of -
(a) superior efficiency; or
(b) equal efficiency, and seniority.
(6A) Where the regulations prescribe that
the selection of officers for promotion to an
office or to an office included in a group or
section of offices shall be made on the basis
of the selection of the senior efficient
officer available for promotion, an appeal
under the last preceding sub-section in
respect of a provisional promotion to a
vacancy in any such office may be made by any
officer who considers that he is more entitled
to promotion to the vacant officer than the
officer provisionally promoted on the ground
that he is senior to the officer provisionally
promoted and is efficient.
. . . . . . . . . . . . . . . . . . . . . . .
(8F) Where there are two or more
appellants in respect of the one promotion,
the Promotions Appeal Committee determining
the appeals or the Board (if the appeals are
to be determined by the Board) shall, if it
considers that two or more appellants have
established the grounds of their appeals,
allow the appeal of one only of those
appellants, being the appellant whom it
considers to have the best claim to promotion
to the vacant office having regard to the
provisions of sub-section (3), or sub-section )3A),
whichever is applicable in relation to the office.
(9) Where an appeal is allowed in
pursuance of this section, the Board shall
cancel the provisional promotion and promote
the appellant to the vacant office.
(10) Where, in respect of a provisional
promotion, no appeal is duly made, the
Permanent Head shall confirm the provisional
promotion and where, in respect of a
provisional promotion, an appeal has, or
appeals have, been duly made, but the appeal,
or each of the appeals, has been disallowed or
has become inoperative, the Board shall
confirm the provisional promotion.
. . . . . . . . . . . . . . . . . . . . . . .
54.(1) Subject to the next succeeding
sub-section all appointments and promotions in
or to the First Division shall be made by the
Governor-General on the recommendation of the
Board, consideration being given first to the
relative efficiency, or in the event of an
equality of efficiency of two or more officers,
then to the relative seniority of those officers.
(2) Notwithstanding anything contained in
this Act, appointments to any office of
Permanent Head may be made by the Governor-General
without reference to the Board.
. . . . . . . . . . . . . . . . . . . . . . .
97.(1) The Board may, with the approval of
the Governor-General, make regulations, not
inconsistent with this Act, prescribing all
matters which are required or permitted to be
prescribed, or which are necessary or
convenient to be prescribed, for carrying out
or giving effect to this Act, and in
particular for the following, namely:-
(a) for defining the seniority of
officers of the Second, Third and
Fourth Divisions;
(b) for defining, in relation to the
officers included in a class of
officers, the seniority of those
officers for the purpose of transfer
or promotion within that class;"
"The relative seniority of officers of theSub-regulation 110(3) at that time proscribed variation of the relative seniority of officers of the Second and Third Divisions enjoyed immediately before 1st July 1924 so long as those officers should remain in either of those divisions. Although subsequent amendment of Regulation 110 made certain exceptions to the provisions of 1935 to which I have referred, and made other, merely verbal changes, the substantial effect of the 1935 provisions remained unchanged until long after the Ordinance was made.
Second and Third Divisions, whose entry into
either of those divisions is subsequent to
thirtieth day of June, 1924, shall be
determined by the respective dates of their
entry into the Second Division or into the
Third Division, whichever of those divisions
they enter the earlier:
Provided that nothing contained in this
sub-regulation shall vary the relative
seniority of officers as determined in
sub-regulation (3) of this regulation:
Provided further that if an officer enters the
Third Division by transfer from the Fourth
Division, service in the latter division up to
a maximum of two years shall be reckoned, for
the purpose of determining seniority, as
service in the Third Division."
13. Section 50 of the Public Service Act 1922 finds its origin in
Commonwealth legislation in s.42 of the Commonwealth Public Service
Act 1902,
where the expression "relative seniority" and the word "seniority" are found,
but are not defined by that Act. The side
note to s.42 in the Sessional Volume
of the Commonwealth Acts invites comparison of the section's provisions with
those of ss. 40
and 42 of the Public Service Act 1895 of New South Wales and
s.47 of the Public Service Act 1890 of Victoria. Section 40 of the New
South
Wales Act provided:
"All promotions in and appointments to theAmong the subjects with respect to which that Act empowered the New South Wales Public Service Board to make regulations was "the determination of the order and conditions of promotion". Section 42 provided:
Special Division shall, as far as practicable,
and subject to the provisions of this Act, be
from such Special Division, or from the higher
grades of the Professional or Clerical
Divisions, or from the Educational Division,
and shall be made with regard to special
qualifications and aptitude, as well as to
seniority in grade or duration of service,
seniority being subordinated to considerations
of special fitness."
"Whenever any vacancy occurs in any office orNeither the Victorian nor the New South Wales Act gave a definition of seniority, unless it be thought that s.40 of the New South Wales Act implied a rejection of the conception of seniority for which Mr Sully contended.
class of work within the higher and lower
grades, respectively, of the Professional or
Clerical, or in the Educational, or the
General Division, if it be expedient to fill
such vacancy, the Governor may, upon the
recommendation of the Board, subject to the
proviso hereto -
appoint thereto any officer of the
department in which such vacancy occurs
to fill such office, regard being had to
the relative seniority and fitness
respectively of the officers of such
department, if it appear that such
appointment would result in the duties of
such office being more efficiently
performed than by selecting an officer
from any other department; or
appoint thereto any officer from any
other department whom (on the ground of
seniority combined with fitness) it
appears desirable so to appoint;
'fitness' in this section shall mean
special qualifications and aptitude for
the discharge of the duties of the office
to be filled:
Provided that all promotions or appointments
under this section, shall as far as
practicable, and subject to the provisions of
this Act, be from the same grade as that in
which the vacancy occurs, or from the
immediately inferior grade in the same series
of grades or division, or from equivalent
grades in some other division, so that such
promotions or appointments shall be from a
junior to a senior position in the same grade,
or from an inferior to an immediately superior
grade, in the same or a corresponding series
of grades."
14. In my opinion usage of the word "seniority" in the Acts regulating the Commonwealth Public Service from its establishment until after the Ordinance and the regulations under the Ordinance were made left open a choice, exercisable by the Public Service Board, between the two criteria, duration of service and rank or grade or class or position coupled with duration of service in the rank or grade or class or position of those of equal rank or grade or class or position. I think that the provisions of those Commonwealth Acts in which the word is found and sub-section 33(1) of the Ordinance may fairly be regarded as in pari materia. The Acts and the Ordinance do not emanate from the same legislature, but their makers may be thought more closely related than State and Commonwealth Parliaments. (Cf. Commissioner of Taxation v. ICI Australia Ltd. [1972] HCA 75; (1972) 127 CLR 529 at 541-542, 572, 581; Pearce & Geddes : Statutory Interpretation in Australia (3rd ed) pp 53-4.) I am influenced by the usage of the word in the Public Service Act 1922-1974 to the conclusion that in the Ordinance the word is also used in an intentionally ambiguous sense, so that the Minister is left free to choose between the two conceptions of seniority in exercising the powers conferred on him by s.81 of the Ordinance. I do not intend to suggest that what is left to prescription by regulation is merely a choice between precedence regulated exclusively by reference to date of entry into the Fire Brigade and precedence regulated exclusively by reference to rank coupled with date of appointment to a rank held by several members in competition for promotion, but rather that both conceptions of seniority are available to the Minister.
15. The power which in my opinion has been conferred by s.81 on the Minister
to make regulations having the effect of defining the
sense in which the word
"seniority" is to be understood for the purposes of sub-section 33(1) has not
been exercised. Regulations
17 and 19 are concerned to regulate only the
performance of the functions, conferred on the Commissioner by sections 29 and
30 of
the Ordinance respectively, of promoting to, and appointing to act
temporarily in, a higher rank. And the provisions of Regulation
17 could not
be applied in relation to appeals under s.33, because the regulation impliedly
commands disregard of relative efficiency,
a conception involved in the
statement by sub-section 33(1) of the ground of appeal. Nor has the Minister
given, in exercise of the
power conferred by s.81 an indication in the
regulations of the sense in which the word "senior" is to be understood in
Regulation
17 or in Regulation 19. In those circumstances that word should in
my opinion be construed to have the same ambiguous meaning in
Regulation 17(1)
as its noun has in the Ordinance. If that be so, upon the making of the
regulations responsibility rested, in my
opinion, on the Commissioner, by
reason of the provisions of sections 12, 13 and 29 of the Ordinance, to adopt
and apply in carrying
out the command addressed to him in Regulation 17, a
meaning of the word "senior" which would resolve any question which the
ambiguity
created. Section 29, as has been stated, confers on the Commissioner
power to promote an officer to higher rank and to promote a
fireman to a rank
of officer or to a higher rank of fireman. Sections 12 and 13 provide:
"12. Subject to this Ordinance, the16. On 2 June 1986 the Commissioner published to all members of the Brigade a document entitled "Seniority List As At 1-5.86". The memorandum with which the document was published stated:
Commissioner shall, under the direction of the
Minister, be charged with the general control
and management of the Fire Brigade.
13. The Commissioner may, from time to time,
in writing, issue such general orders and
instructions as are necessary to secure the good
government and efficient working of the Brigade."
"There have been a number of changes which17. The Commissioner's evidence was that so far as he was aware there had been "no queries or objections . . . as to the accuracy of the seniority list" and that he had relied on the "respective seniority", of the candidates for the promotions he made on 17 August 1987, which that list disclosed. The relevant part of the list reads:
have affected the seniority list.
Attached is the current seniority list.
Should any member have any queries concerning
the list you should put them in writing to me."
"Acting District Officer(The asterisk signified that the Station Officer was "qualified as District Officer", according to a footnote to the list.) That was why the Commissioner promoted to the six positions of District Officer to be filled the first six persons on the list below that rank.
29 W Rummery
27 P Conway
43 K Comerford
Station Officer
68 P McLeod*
72 W Coombe*
40 G Fox*
97 W Parkhill*
104 R Verran*
105 R Plowman*"
18. The evidence did not explicitly disclose the principles in accordance with which the names had been ordered on the list. It was common ground that the date of first appointment as a member of the Brigade had not been taken into account in ordering those members who are named on the part of the list I have quoted. If the name "W. Parkhill", concerning whom there was no evidence, be ignored, the order of the names can be inferred from the evidence to have been determined by according precedence in conformity with the provisions of an award of the Australian Conciliation and Arbitration Commission, the Fire Brigade Employees (A.C.T.) Award 1975, as varied.
19. Mr. Hungerford submitted that the interpretation of the word "seniority"
in sub-section 33(1) for which he contended was supported
by a consideration
of certain provisions of that Award. By clause 3 of the Award it is provided
that the Award shall be binding upon
the Federal Firefighters Union and the
members thereof and the Minister of State for the Capital Territory as to the
employment of
the said members "in the A.C.T. Fire Brigade in any of the
classifications set out herein", and that no person shall be employed
or
engaged to perform work covered by the Award, except persons employed under
the terms of the Award. The Award has been varied,
but it was not suggested by
any party that any variation had altered the significance of the Award in
relation to a question arising
in this appeal. Clause 29 of the Award, as
inserted by a variation made in 1979 and as varied in August 1986, is in these
terms:-
"29 - PROMOTIONS AND EXAMINATIONSThe word "firefighter" is used in the Award as a synonym, so it seems, for the word "fireman" in the Ordinance and the regulations. Clause 5 of the Award provides:
(a) Promotion from class to class or grade to
grade within the ranks of the brigade shall be
subject to the provisions of the Fire Brigade
(Administration) Regulations.
(b) Subject to the provisions of sub-clause
(a) of this clause a first-class firefighter
grade B shall be eligible to sit for
examination for the rank of senior firefighter
immediately after reaching the rank of
first-class firefighter grade B.
(c) Where an employee's seniority is altered
he shall be informed in writing and his
precise position in the seniority list shall
be indicated.
(d) A first-class firefighter grade A who has
completed five years service in that rank
shall be promoted to the rank of senior
firefighter but will be ineligible to sit for
the examination for promotion to the rank of
station officer until he has passed the
prescribed examination for senior firefighter.
(e) An employee who had more than five years
service before being eligible by examination
to be promoted to senior firefighter and
having since passed the prescribed examination
for promotion to the rank of station officer
shall, after seven years service, be eligible
for promotion to the rank of station officer
or at a time after seven years service
comparable to his lost time in completing and
passing any prior examination. Lost time
other than is applicable in the Regulations
made pursuant to the Ordinance, being
calculated by the addition of the time between
the date upon which an employee is eligible to
achieve a rank, subject to examination, and
the date upon which the employee completes and
passes the prescribed examination after the
date of eligibility.
(f) Qualifying examinations shall be held for
promotion to the rank of senior firefighter,
station officer and district officer.
Provided that where a member has failed to
qualify at an examination but has passed in
one or more subjects at such examination, it
shall not be necessary for that member to
again pass that or those subjects.
(g) A firefighter having completed five years
service, including one year's service as a
first-class firefighter grade A and having
passed the prescribed qualifying examination
for promotion to the rank of senior
firefighter, shall be promoted to the rank of
senior firefighter.
(h) A senior firefighter having qualified by
examination for that rank shall be entitled to
sit for the prescribed qualifying examination
for promotion to the rank of station officer.
(i) A senior firefighter having completed one
year's service as that rank and having passed
the prescribed examination for the rank of
Station Officer shall receive an allowance of
$8.90 per week.
(j) A senior firefighter, qualified by
examination for the rank of station officer
and having completed eight years service shall
be entitled to sit for the prescribed
qualifying examination for promotion to the
rank of district officer.
(k) Any station officer having qualified by
examination for promotion to District Officer
shall be paid an allowance of $10.70 per week.
No one shall be promoted to the rank of
District Officer until he has completed two
years as a Station Officer.
(l) A senior firefighter having qualified for
the rank of station officer by examination and
having completed two years service as senior
firefighter shall be placed on the seniority
list immediately senior to the most senior
firefighter not so similarly qualified and
immediately junior to any senior firefighter
similarly qualified but more senior.
For the purposes of this sub-clause a senior
firefighter having become eligible for
promotion to station officer pursuant to
sub-clause (e) shall be deemed to have served
two years service as a senior firefighter.
(m) A station officer qualified by
examination for the rank of district officer
and having completed two years as a station
officer shall be promoted to the rank of
station officer grade A and placed on the
seniority list immediately senior to the most
senior station officer not so similarly
qualified and immediately junior to that station
officer similarly qualified but more senior."
"5 - INCONSISTENCY WITH THE AWARDIt was Mr. Hungerford's submission that the provisions of sub-clauses 29(c) and 29(l) and 29(m) are consistent only with a conception of seniority such as he propounded, and quite inconsistent with the conception of seniority advanced on Mr. Verran's behalf.
(a) The award shall be read in conjunction
with the Ordinance and Regulations made
pursuant thereto and to the General Orders and
Instructions made thereunder from time to time.
(b) Where any provision of the said General
Orders and Instructions is inconsistent with the
provisions of this award the latter shall prevail."
20. It is sufficient for present purposes to say that in sub-clause 29(m) the word "senior" indicates, in my opinion, priority in date of appointment as a Station Officer. At the time when Mr. Verran completed 2 years as a Station Officer, on 10 February 1985, he had already qualified by examination for the rank of District Officer. He had passed the examination more than a year before the thirdnamed respondent, to whom reference is made on the seniority list as "40 G. Fox", qualified by examination for that rank, but Mr. Fox had been appointed a Station Officer in 1976 and was, at the time when Mr. Verran completed 2 years as a Station Officer, "similarly qualified but more senior", in the sense in which in my opinion the word "senior" is used in sub-clause 29(m). Each of the four persons designated the secondnamed respondents and Mr. Rummery had been appointed Station Officers before Mr. Fox. Each of the secondnamed respondents and Mr. Rummery and Mr. Verran had qualified by examination for the rank of District Officer by passing the same examination at the same time, on 5 December 1983. Thus the ordering of the names (other than "W. Parkhill") in that part of the "Seniority List As At 1-5.86" which I have quoted accords with what sub-clause 29(m) prescribes.
21. The criteria of selection for promotion which Regulation 17 prescribes are not the criteria specified in sub-section 33(1) as the ground of an appeal against a promotion. No party submitted, nor do I think, that for that reason Regulation 17 is invalid for inconsistency with sub-section 33(1). Neaves J. proceeded on the basis that Regulation 17 is valid.
22. Neaves J. considered that, in a case where several positions of the same rank are to be filled from a group of members all of whom are eligible for promotion to that rank but only some of whom passed the examination conducted in relation to that rank at the same time, paragraph (b) of Regulation 17 should first be applied to fill a position, or several positions, by promotion of any of those members who, not having themselves passed the examination at the same time, had passed the examination before others who passed the examination at the same time, then paragraph (a) should be applied to promote successively and in order of seniority each of those others who passed the examination at the same time, then paragraph (b) should be applied to fill a position, or several positions, by promotion of any of those members who passed the examination after those already promoted and who did not themselves pass the examination at the same time, and so to continue until all the positions have been filled. I did not understand any party to attack his Honour's view, which I respectfully adopt, subject to the perhaps pedantic gloss that the last to be promoted of those who passed the examination at the same time could be said to have won his promotion by the application of paragraph (b) rather than paragraph (a).
23. If that course had been adopted by the Commissioner on 17 August 1987 the first promotion would have been of Mr. Rummery, who had passed the examination before any of the other eligible members. Then there would have remained five eligible members, all of whom had passed the examination at the same time, on 5 December 1983 : the four persons designated the secondnamed respondents and Mr. Verran. If the course indicated by Neaves J. had been followed, each of those five members would have been successively promoted in the order of their seniority. In that order Mr. Verran would have been last of the five, he having been promoted a Station Officer after the other four. Mr. Fox, having passed the examination after those five, would not have been promoted to any of the six positions. The order which was made by Neaves J., that the decision of the Commissioner made on 17 August 1987 provisionally to promote Mr. Fox to the rank of District Officer be set aside, was therefore in my opinion correct. Nor did any party suggest the contrary. They were at issue as to the correctness of the further order which his Honour made, giving direction to the Commissioner that in promoting a member to the rank of District Officer he "is bound to act on the basis that, where more than one person is eligible for promotion to that rank, the relative seniority of those persons is to be determined by reference to the dates of their respective appointments to the Australian Capital Territory Fire Brigade, a person whose date of appointment to the Brigade was earlier than the date of appointment of another person being senior to that other person".
24. For reasons which I have stated I am of the opinion that after the regulations under the Ordinance were made in 1974 the Commissioner had the power - "under the direction of the Minister", as s.12 of the Ordinance prescribes - and the responsibility to define the meaning to be given the word "senior" in Regulation 17. At that time the Fire Brigade Employees (ACT) Award had not been made. In my opinion the need to define the word has been obviated, if not by the making of the Fire Brigade Employees (ACT) Award 1975, at the latest by the variation of that Award in 1977 when a sub-clause in the same terms as the present sub-clause 29(m) was included in the Award. That sub-clause used the terms "seniority" and "senior" in the sense for which Mr. Hungerford contended and in his administration of the Brigade the Commissioner gave the latter term the same meaning where it appears in Regulations 17 and 19. On the hearing of the appeal conflicting submissions were advanced as to whether provisions of the Award inconsistent with a provision of the Ordinance or of the regulations would displace the legislative provision. Reference was made to ss. 41A and 60 of the Conciliation and Arbitration Act 1904. (Cf. Industrial Relations Act 1988, ss. 121 and 150.) It is unnecessary to express an opinion concerning those submissions because I have not found any inconsistency between a provision of the Award and a legislative provision which affects the resolution of a question arising in these appeals. Regulation 14 confers on a member eligibility for promotion to the rank of District Officer upon his passing the examination. Sub-clause 29(k) of the Award prohibits promotion of a member to the rank of District Officer "until he has completed two years as a Station Officer". But when the Commissioner made the promotions on 17 August 1987 all of the members involved in these appeals and Mr. Rummery had completed two years as Station Officers. It might be thought that the Court should determine whether there is inconsistency between a provision of the Award, in particular a provision of Clause 29 other than sub-clause (a) thereof, and a provision of the Ordinance or of the regulations, and whether, if there were, which provision would prevail, having regard to Clause 5 and sub-clause 29(a) of the Award and to the provisions of Commonwealth industrial arbitration legislation. But the Court had not the benefit of any substantial argument on those questions, which it is unnecessary for the determination of these appeals to resolve, and upon which I prefer to express no opinion. I would make no declaration concerning a provision of the Award. It is sufficient to reach the conclusion that the Award, which binds the Minister under whose direction the Commissioner exercises "the general control and management of the Fire Brigade", has the legal effect that the word "senior" in Regulation 17 is to be understood as referring to precedence deriving from tenure of higher rank or from longer tenure of the same rank. The scheme of the legislation - Ordinance and regulations considered together - is such that in my opinion the word "seniority" in sub-section 33(1) is to be understood in the same sense. Even if for some reason the Award, or clause 29 thereof, were wholly without legal effect, the same conclusion as to the meaning of the word "senior" in Regulation 17 and of the word "seniority" in sub-section 33(1) would in my opinion follow from the circumstance that the Commissioner, acting as he does under the direction of the Minister, has in the exercise of the functions conferred on him by the Ordinance and regulations accorded the words that meaning. The Minister having abstained from exercising the power conferred by s.81 to give the words a defined meaning, that power is in my opinion impliedly conferred on the Commissioner by the legislation, a power exercisable by the issuing of the general orders and instructions to which s.13 refers. The evidence suggested that the power had been exercised in an oblique, rather than an explicit and direct way. But the Commissioner had in my opinion expressed his instructions in such a way as to make clear the meaning to be attributed to the words.
25. The orders to give effect to the foregoing conclusions may now be considered. The appeals by the Commissioner and the Tribunal and the cross-appeals by the respondents other than Mr. Verran should be allowed. The orders which Neaves J. made to set aside the Commissioner's decisions provisionally to promote Mr. Fox and later to confirm that promotion should stand. The order of Neaves J. directing the Commissioner to determine seniority by reference to the date of appointment to the Fire Brigade should be set aside and in lieu thereof it should be declared, in my opinion, that until the contrary is provided by competent authority the words "more or most senior" in Regulation 17 of the Fire Brigade (Administration) Regulations are to be taken to mean holding the higher or highest rank or having the longer or longest tenure of a rank held by several persons.
26. Neaves J. ordered that the decisions of the Tribunal disallowing Mr. Verran's appeals be set aside and his Honour made a further order referring the appeals against the promotions of each of the respondents designated the secondnamed respondents to the Tribunal "for further consideration subject to a direction that the applicant has seniority within the meaning of that expression in section 33(1) of the Fire Brigade (Administration) Ordinance 1974 (ACT) over each of those respondents". I would set those orders aside and in lieu thereof order that the decision of the Tribunal disallowing Mr. Verran's appeal against the promotion of Mr. Fox be set aside and that each of Mr. Verran's applications for an order of review in respect of each of the decisions of the Tribunal disallowing his other appeals be dismissed. As Mr. Verran is not senior to any of the secondnamed respondents none of his appeals against their promotions can be allowed, in my opinion. I would think it appropriate that this Court declare that until the contrary is provided by competent authority the word "seniority" in sub-section 33(1) of the Ordinance is to be taken to mean the tenure of higher rank than, or the tenure for a longer period of the same rank as, is held by the person to whom reference is made in that sub-section by the words "the member provisionally promoted".
27. I see no sufficient reason to disturb the order made by Neaves J. that the Commissioner pay Mr. Verran's costs of the proceedings before him. I would order that the costs of each of the other parties to those proceedings also be paid by the Commissioner. I think each party should abide his own costs of the appeals and cross-appeals.
28. Beaumont J., whose reasons for judgment I have had the advantage of
reading, has proposed that the Commonwealth be afforded the
opportunity of
being added as a party, and has explained the circumstances which have given
rise to the proposal. Section 18 of the Administrative Decisions (Judicial
Review) Act 1977 provides:
"(1) The Attorney-General may, on behalf ofI would think these appeals, as well as the proceeding which has been the occasion to their institution, to be proceedings "under this Act". The difficulties to which Beaumont J has adverted were the subject of comment at the hearing of the appeal, which concluded more than two months ago. The Commissioner's general control and management of the Brigade is, as has been stated, subject to the direction of a Minister of State of the Commonwealth. No application by the Attorney-General on behalf of the Commonwealth to be added as a party has been made or notified to the Court. I would take no action to invite such an application or to order the addition, with its consent, of the Commonwealth as a party.
the Commonwealth, intervene in a proceeding
before the Court under this Act.
(2) Where the Attorney-General intervenes in
a proceeding in pursuance of this section, the
Court may, in the proceeding, make such order
as to costs against the Commonwealth as the
Court thinks fit.
(3) Where the Attorney-General intervenes in
a proceeding in pursuance of this section, he
shall be deemed to be a party to the proceeding."
This appeal is brought against some of the orders made in an application for judicial review pursuant to the Administrative Decisions (Judicial Review) Act 1977 in respect of (1) a decision of a Promotions Appeal Tribunal ("the Tribunal") established by the Fire Brigade (Administration) Ordinance 1974 (ACT) ("the Ordinance"); and (2) several related decisions made by the Fire Commissioner. The Ordinance establishes the Australian Capital Territory Fire Brigade ("the Brigade"). The application for judicial review raised a number of legal questions; in the main, the proceedings called for the proper construction of those provisions of the Ordinance, and the regulations made under the Ordinance, which deal with the promotion of officers. This involved the concept of "seniority" in the legislation, the context being the relative seniority of several officer members of the Brigade in the rank of Station Officer seeking promotion to the rank of District Officer.
2. The Brigade consists of the Fire Commissioner ("the Commissioner") and
Deputy Commissioner (both appointed by the Minister for
a period not to exceed
seven years), together with the members of the Brigade (s.16(2)). The
Commissioner, under the direction of
the Minister, is charged with the general
control and management of the Brigade (s.12). The members of the Brigade are
the officers
and firemen appointed by the Commissioner (s.16(3)). The ranks of
officers of the Brigade are Superintendent, District Officer, and
Station
Officer (s.17). The ranks of fireman are Senior Fireman, First Class Fireman,
Grade A, First Class Fireman, Grade B, Second
Class Fireman, Third Class
Fireman and Fourth Class Fireman (s.18). The Commissioner shall appoint such
officers and firemen as he
thinks necessary for the efficient operation of the
Brigade (s.20(1)). He shall not appoint a person as a fireman otherwise than
to the rank of Fourth Class Fireman (s.20(2)). A person shall not be appointed
under Division 2 unless he is qualified in accordance
with the regulations
(s.23). The Commissioner may promote an officer to a higher rank and promote a
fireman to a rank of officer
or to a higher rank as fireman (s.29(1)). The
Commissioner shall not promote an officer or a fireman to a rank unless the
officer
or fireman is eligible in accordance with the regulations for
promotions to that rank (s.29(2)).
(The Fire Brigade (Administration) Regulations ("the regulations") deal with
eligibility for promotion as follows. A person is qualified
for confirmation
of appointment as a Fourth Class Fireman if he has passed an examination
conducted by the Commissioner (reg. 7).
A person is eligible for promotion to
the rank of Third Class Fireman if the person has held the rank of Fourth
Class Fireman for
a continuous period of not less than one year and passed an
examination conducted by the Commissioner (reg. 8). A person is eligible
for
promotion to the rank of Second Class Fireman if the person has held the rank
of Third Class Fireman for a continuous period
of not less than one year and
passed an examination conducted by the Commissioner (reg. 9). A person is
eligible for promotion to
the rank of First Class Fireman, Grade B if the
person has held the rank of Second Class Fireman for a continuous period of
not less
than one year and passed an examination conducted by the Commissioner
(reg. 10). A person is eligible for promotion to the rank of
First Class
Fireman, Grade A if the person has held the rank of First Class Fireman Grade
B for a continuous period of not less than
one year (reg. 11). A person is
eligible for promotion to the rank of Senior Fireman if the person has held
the rank of First Class
Fireman, Grade A for a continuous period of two years
and passed an examination conducted by the Commissioner (reg. 12). A person
is
eligible for promotion to the rank of Station Officer if the person has held
the rank of Senior Fireman for a continuous period
of not less than four years
and passed an examination conducted by the Commissioner (reg. 13). A person is
eligible for promotion
to the rank of District Officer if the person has
passed an examination conducted by the Commissioner (reg. 14). Where a person
fails
to pass an examination conducted for the purposes of regs. 8, 9 or 10,
the period during which he is required by the regulation to
hold his rank in
order to become eligible for promotion is increased by one month in respect of
each failure (reg. 15(1)). A person
who fails to pass an examination conducted
for the purposes of reg. 12 is not eligible to sit for that examination again
before the
expiration of a period of three months after the date of the
examination (reg. 15(2)). Notwithstanding the provisions of regs. 8
to 14, the
Commissioner shall not promote a member to a higher rank unless the conduct
and service of the member are satisfactory
(reg. 16). Where more than one
person is eligible for promotion to a rank, the Commissioner shall, where each
eligible person passed
the examination conducted in relation to promotion to
that rank at the same time - promote to that rank the more or most senior of
those persons; or, in any other case - promote to that rank the person who
first passed the examination conducted in relation to
promotion to that rank
(reg. 17).)
3. Appeals against promotions are dealt with by Division 5 of Part III of the Ordinance. The promotion of a member is provisional and is subject to appeal in accordance with that Division (s.32). A member who considers that he should have been promoted in preference to the member provisionally promoted may appeal against the provisional promotion on the ground of "equal efficiency and seniority" (s.33(1)). A Promotions Appeal Tribunal shall make full inquiry into the claims of the appellant and the claims of the member provisionally promoted and determine the appeal (s.33(2)). A Tribunal shall consist of a Chairman appointed by the Minister, a member of the Brigade appointed by the Commissioner and a member of the Brigade elected by the members of the Brigade (s.34(2)). The second appellants were the members of the Tribunal which dealt with the present matter.
4. The question for determination at first instance depended upon the true meaning of the words "seniority" and "senior" in s.33(1) of the Ordinance and reg. 17 of the regulations respectively.
5. Raymond Verran, the first respondent, was appointed to the Brigade on 10
October 1975. Patrick Edward Conway, Kevin John Comerford,
Peter Archibald
McLeod and Warwick Stephen Coombe, the second respondents, and George Bramwell
Fox, the third respondent, were appointed
to the Brigade on 16 January 1976
when they were transferred from their employment with the New South Wales
Board of Fire Commissioners,
who had previously provided fire brigade services
in the Territory. Their appointments to the New South Wales fire brigade were
made
on the following dates:
Mr. Conway 5 February 19606. The parties were promoted to the rank of Station Officer and passed the examination for District Officer on the following dates:
Mr. Comerford 15 May 1964
Mr. McLeod 2 April 1971
Mr. Coombe 16 April 1971
Mr. Fox 27 September 1963
Passed examination Promoted to7. On 18 August 1987, William Moore Gould Kerr, the first appellant, acting as the Commissioner, purported provisionally to promote Messrs Conway, Comerford, McLeod, Coombe and Fox to the rank of District Officer. In so acting, the Commissioner relied upon a "seniority list", which purported to list the officers and members of the Brigade in order of "seniority", although the list did not indicate any seniority date or the basis upon which seniority was determined. The list showed Messrs. Conway and Comerford, in that order, under the heading "Acting District Officer"; Messrs. McLeod, Coombe, Fox and Verran were shown, in that order, under the heading "Station Officer". At the time, the Commissioner was not aware of the dates on which any of these officers passed the examination for District Officer.
for District Officer Station Officer
Mr. Verran 5 December 1983 10 February 1983
Mr. Conway 5 December 1983 10 June 1976
Mr. Comerford 5 December 1983 9 December 1976
Mr. McLeod 5 December 1983 10 May 1979
Mr. Coombe 5 December 1983 26 July 1979
Mr. Fox 10 December 1984 23 December 1976
8. Mr. Verran appealed to the Tribunal which, without embarking upon the question of efficiency, considered whether Mr. Verran was senior to the officers who had been provisionally promoted or any of them. The Tribunal concluded that Mr. Verran's "seniority (was) not greater than that of the (other) officers . . ." and disallowed the appeals. The Commissioner then purported to confirm the provisional promotions pursuant to s.33(5) of the Ordinance.
9. Mr. Verran sought, and obtained judicial review of these decisions. The
primary Judge ordered that the decisions to promote provisionally,
to disallow
the appeals and to confirm the promotions made by the Commissioner and by the
Tribunal, be set aside; he further ordered
that:
"5. The matter of the promotion of a member . . . to the10. Before the primary Judge, it was accepted by all parties that the Commissioner was bound to act in accordance with reg. 17, which is in the following terms:
rank of District Officer consequent upon the
setting aside of the decision . . . provisionally to
promote (Mr. Fox) to that rank be referred to the
(Commissioner) for further consideration subject
to a direction that, in promoting a member to
that rank, the (Commissioner) is bound to act on
the basis that, where more than one person is
eligible for promotion to that rank, the relative
seniority of those persons is to be determined by
reference to the dates of their respective
appointments to the Australian Capital Territory
Fire Brigade, a person whose date of appointment
to the Brigade was earlier than the date of
appointment of another person being senior to
that other person.
6. The appeals by (Mr. Verran) against the
provisional promotions of each of (Messrs.
Conway, Comerford, McLeod and Coombe) to the rank
of District Officer be referred to the Promotions
Appeal Tribunal for further consideration subject
to a direction that (Mr. Verran) has seniority
within the meaning of that expression in section
33(1) of the Fire Brigade (Administration)
Ordinance 1974 (A.C.T.) over each of (Messrs.
Conway, Comerford, McLeod and Coombe)."
"17. Where more than one person is eligible for11. The reasoning of the primary Judge in granting relief was as follows:
promotion to a rank, the Commissioner shall -
(a) where each eligible person passed the examination
conducted in relation to promotion to that rank
the more or most senior of those persons; or
(b) in any other case - promote to that rank the
person who first passed the examination conducted
in relation to promotion to that rank."
(1) Messrs. Conway, Comerford, McLeod and Coombe and Mr.(By s.29(3) of the Ordinance, the Commissioner shall notify members of the promotion of a member under s.29(1). By s.33(1), a member who considers that he should have been promoted in preference to the member provisionally promoted may appeal against the promotion within two weeks from the date on which the promotion is notified in accordance with s.29(3). By s.33(3), where an appeal is allowed, the Commissioner shall cancel the provisional promotion and promote the appellant to the rank concerned. By s.33(4), where the Commissioner promotes a member under s.33(3), the promotion shall be deemed to date from the date on which the promotion of the member against whom the appellant successfully appealed was notified in accordance with s.29(3)).
Verran had each passed the examination for District
Officer on 5 December 1983; Mr. Fox had passed on 10
December 1984; reg. 17 was to be read as requiring the
rule prescribed by para. (a) to be applied to any group
of eligible persons who passed the required examination
at the same time; five provisional promotions were to be
made and it was unnecessary for the Commissioner to
choose between Messrs Conway, Comerford, McLeod and
Coombe and Mr. Verran as all five could have been
provisionally promoted; what the Commissioner did,
however, was to promote each of Messrs Conway,
Comerford, McLeod and Coombe and to prefer Mr. Fox to
Mr. Verran for the fifth place; for this reg. 17
provided no warrant; it required that Mr. Verran, who
had passed the required examination at an earlier date
than Mr. Fox, be provisionally promoted; had the
Commissioner decided not to make five but only four
provisional promotions, he would have been required by
reg. 17 to promote the four most senior of the five
eligible persons who passed the examination on 5
December 1983; for this purpose, it would have been
necessary to determine Mr. Verran's seniority relative
to that of each of Messrs. Conway, Comerford, McLeod and
Coombe; were he senior to any one or more of those
officers, reg.17 would have required his provisional
promotion in preference to that of the officer or
officers to whom he was senior; for these reasons, the
decision of the Commissioner provisionally to promote
Mr. Fox should be set aside; further, as the
Commissioner did not take into account any information
as to the respective dates upon which the persons
concerned passed the District Officer examination, a
ground was established for setting aside of each of
those provisional promotions; the primary Judge
deferred consideration of that question until he had
considered the decision of the Tribunal.
(2) The Tribunal had dismissed Mr. Verran's appeals against
the provisional promotion of each of Messrs Conway,
Comerford, McLeod and Coombe and of Mr. Fox on the
ground that Mr. Verran had not established that he had
seniority over any of the provisional promotees,
seniority being one of the elements of the only ground
of appeal available (see s.33(1) of the Ordinance). In
their reasons, the Tribunal had given this description
of another "seniority list":
"In determining the question of seniority as
between (Mr. Verran) and (Messrs. Conway,
Comerford, McLeod and Coombe and Mr. Fox) the
Tribunal relied on the information disclosed in
a document being a list of the promotees and
(Mr. Verran) and indicating inter alia the dates
of their appointment to service in the New South
Wales Board of Fire Commissioners or to the ACT
Fire Brigade as applicable in each case, the
dates of their passing of exams to be eligible
for promotion to the rank of District Officer
and their position on the Station Officers
seniority list."
His Honour said that this document was prepared by an
officer charged with the responsibility of preparing
material for the Tribunal and that the Tribunal itself
had made no enquiries as to the accuracy of the
information contained in it.
(3) The Tribunal had accepted that the most senior of the
eligible persons were, in order, Messrs Conway,
Comerford, McLeod, Coombe, Fox and Verran. The Tribunal
had concluded that Mr. Verran was not senior to any of
the provisional promotees. In relation to each of
Messrs Conway, Comerford, McLeod and Coombe, the
Tribunal appears to have accepted that each had a
seniority date of 5 December 1983, being the date by
which each had passed the required examination for
promotion to the rank of District Officer and had had
two years' service in the rank of Station Officer. The
determining factor by which their seniority relative to
each other was determined appears to have been the
respective dates on which they were promoted to the rank
of Station Officer. The Tribunal accepted a seniority
date (1) for Mr. Fox of 10 December 1984, being the date
by which he had passed the examination for promotion to
the rank of District Officer and had had two years'
service as a Station Officer; and (2) for Mr. Verran of
10 February 1985, ascertained on a similar basis.
(4) In its reasons, the Tribunal had referred to "the
administrative practice in the Brigade since its
formation and the award conditions since that time
concerning promotions and examinations as established by
decisions under the Conciliation and Arbitration Court
jurisdiction". In his evidence before the primary
Judge, a member of the Tribunal, Mr. I'Anson, explained
that this was a reference to the provisions of clause
29(m) of the Fire Brigade Employees (A.C.T.) Award 1975,
an award made on 15 September 1975 and since varied.
Since 25 March 1979, clause 29(m) of the Award has provided:
"(m) A station officer qualified by examination
for the rank of district officer and having
completed two years as a station officer shall
be promoted to the rank of station officer grade
A and placed on the seniority list immediately
senior to the most senior station officer not so
similarly qualified and immediately junior to that
station officer similarly qualified but more senior."
Clause 5 of the Award, which has the heading
"Inconsistency with the Award", provides:
"(a) The award shall be read in conjunction with
the Ordinance and Regulations made pursuant
thereto and to the General Orders and
Instructions made thereunder from time to time.
(b) Where any provision of the said General
Orders and Instructions is inconsistent with
the provisions of this award the latter
shall prevail."
The primary Judge concluded that the Award was not
intended to have an operation which was inconsistent
with the Ordinance or the regulations.
(5) His Honour considered that the question whether Mr.
Verran did not have seniority over any of the
provisional promotees depended upon the meaning to be
ascribed to that expression in s.33(1) of the Ordinance.
Mr. Verran contended that the provision required the
seniority of a member to be determined by reference to
the date upon which the member was appointed to the
Brigade. The appellants, the second respondents and the
third respondent contended for the rank which the member
held at the time at which his seniority relative to
another member was to be determined so that the
circumstance that a member held a particular rank
operated to give him seniority. According to their
contention, to enable relative seniority to be
determined as between members holding the same rank at
the particular time, seniority within each rank depended
upon the date of appointment or promotion to that rank.
(6) In accepting the construction of s.33(1) suggested by
Mr. Verran, his Honour said:
"It provides a simple, certain, and readily
ascertainable test to determine relative
seniority between members. Had it been
intended that the relative seniority of members
be determined by reference to the criteria upon
which the alternative view depends, with the
consequence that a member's seniority vis-a-vis
another member may vary according to the date
at which the question is to be determined, one
may reasonably have expected that that
intention would have received greater
legislative recognition."
The primary Judge was of the view that the adoption of
the alternative view would tend to ensure that promotion
to a particular rank is restricted to those who held the
next lower rank to that to which promotion was to be
made. To the extent that it did so, it would be adding
a criterion for promotion for which the Ordinance did
not expressly provide and one which the regulations did
not prescribe in the case of promotion to the rank of
District Officer and promotion to the rank of Superintendent.
His Honour also referred to ss.46(1) and 48 of the
Ordinance dealing with discipline in the Brigade under
which a member may, in certain circumstances, be reduced
to a lower rank. On the alternative argument it would
be difficult, if not impossible, to determine the
relative seniority of a member so reduced in rank.
The primary Judge could find no justification in the
language of the Ordinance for determining a member's
seniority in the Brigade by reference to any prior
service he may have had in the New South Wales Fire
Brigade and gained no assistance, in determining the
meaning of the expression "seniority" in s.33(1), from
the provisions of clause 29(m) of the Award.
(7) Since Mr. Verran was appointed to the Brigade on 10
October 1975 and each of the provisional promotees was
so appointed on 16 January 1976, his Honour held that
the decision of the Tribunal that Mr. Verran did not
have seniority over any of the provisional promotees was
erroneous in law and should be set aside; the
consequential decision of the Commissioner confirming
the provisional promotion of Messrs Conway, Comerford,
McLeod and Coombe and Fox should also be set aside; and
the appeal by Mr. Verran against the provisional
promotion of Messrs Conway, Comerford, McLeod and Coombe
should be remitted for a fresh hearing by a Promotions
Appeal Tribunal in accordance with s.33 of the Ordinance.
(8) The necessary ground having been made out to justify the
setting aside of the provisional promotion of each of
Messrs Conway, Comerford, McLeod and Coombe, his Honour
then considered whether, in the exercise of its
discretion, the Court should refrain from making an
order to that effect.
The primary Judge concluded that, to make such an order
in relation to the provisional promotion of each of
Messrs Conway, Comerford, McLeod and Coombe, would
clearly be disadvantageous to them; the only basis for
making the order would be that it might be of some
advantage to Mr. Verran that he be considered for
promotion in a situation where there are five vacancies
rather than in the situation where there is only one
vacancy consequent upon the orders made in respect of
the promotion of Mr. Fox. On the other hand, to refrain
from making the order would allow Mr. Verran to proceed
with his appeals against the provisional promotion of
each of Messrs. Conway, Comerford, McLeod and Coombe
and, if he is successful in any one appeal, to have the
benefit of s.33(4) of the Fire Brigade (Administration)
Ordinance 1974 (ACT).
(9) His Honour, noting that Mr. Verran did not seek an order12. Before dealing with the arguments put on the appeal, it is convenient to restate the chronology of the relevant events as follows:
setting aside the decisions provisionally to promote
each of Messrs Conway, Comerford, McLeod and Coombe, set
aside the Commissioner's decision to promote Mr. Fox and
the Tribunal's decision to disallow the appeal; and made
orders 5 and 6, supra.
196013. By their single notice of appeal, the Commissioner and the members of the Tribunal purport to appeal from part of the judgment given at first instance; they contend, first, that his Honour erred in holding that seniority of a member is to be determined by reference to the date of his appointment to the Brigade; and secondly, that seniority should be ascertained in accordance with the rank held by a member relative to another member so that a member of a higher rank is more senior than another member of a lower rank; and that within a rank, the date of appointment to that rank determines the relative seniority of members. The notice of appeal seeks orders setting aside the orders contained in paras. 5 and 6, supra, and in lieu, the following:
5 February Mr. Conway is appointed to the N.S.W. fire
brigade.
1963
27 September Mr. Fox is appointed to the N.S.W. fire
brigade.
1964
15 May Mr. Comerford is appointed to the N.S.W. fire
brigade.
1971
2 April Mr. McLeod is appointed to the N.S.W. fire
brigade.
16 April Mr. Coombe is appointed to the N.S.W. fire
brigade.
1975
10 October Mr. Verran is appointed to the Brigade.
1976
16 January Messrs Conway, Comerford, McLeod, Coombe and
Fox are appointed to the Brigade upon transfer
from the N.S.W. fire brigade.
10 June Mr. Conway is promoted to Station Officer.
9 December Mr. Comerford is promoted to Station Officer.
23 December Mr. Fox is promoted to Station Officer.
1979
10 May Mr. McLeod is promoted to Station Officer.
26 July Mr. Coombe is promoted to Station Officer.
1983
10 February Mr. Verran is promoted to Station Officer.
5 December Messrs Conway, Comerford, Coombe, McLeod and
Verran pass District Officer examination.
1984
10 December Mr. Fox passes District Officer examination.
"5. The matter of the promotion of a member of the14. Messrs Conway, Comerford, McLeod and Coombe and Mr. Fox cross-appeal against part of the judgment. By their single notice of cross-appeal, they contend that seniority should be determined "in accordance with the rank held by a member relative to another member so that a member of a higher rank is more senior than another member of a lower rank; and that within a rank the date of appointment to that rank determines the relative seniority of members." They also seek to set aside orders 5 and 6 and sought, in lieu, the following:
Australian Capital Territory Fire Brigade to the
rank of District Officer consequent upon the
setting aside of the decision of the
(Commissioner) provisionally to promote (Mr. Fox)
to that rank be referred to the (Commissioner)
for further consideration subject to a direction
that, in promoting a member to that rank, the
(Commissioner) is bound to act on the basis that,
where more than one person is eligible for
promotion to that rank the (Commissioner) shall:
(a) where each eligible person passed the
examination conducted in relation to
promotion to that rank at the same time -
promote to that rank the more or most
senior of those persons, the relative
seniority being determined by reference to
the rank held by a member relative to
another member, so that a member of a
higher rank is more senior than another
member of a lower rank and within a rank
the member earlier appointed to that rank
shall be more senior than a member later
appointed to that rank, but provided that
where appointments to the rank took effect
on the same day then the members shall be
of equal seniority thereby authorising the
(Commissioner) to promote one of them at
his discretion; or
(b) in any other case - promote to that rank
the person who first passed the examination
conducted in relation to promotion to that rank.
6. The appeals by (Mr. Verran) against the
provisional promotions of each of (Messrs.
Conway, Comerford, McLeod and Coombe) to the rank
of District Officer be referred to the Promotions
Appeal Tribunal for further consideration subject
to a direction that each of (Messrs. Conway,
Comerford, McLeod and Coombe) has seniority over
(Mr. Verran)."
"5. The matter of the promotion of a member of the15. At the commencement of argument on the appeal, Mr. Hungerford, Q.C., appearing for the Commissioner and the Tribunal, handed up a written summary of his argument to the following effect: (1) The issue was the relative seniority of the member officers. (2) It was accepted that, in making the provisional promotions, the Commissioner was bound to act in accordance with reg.17(a). (3) The Tribunal was bound to consider Mr. Verran's appeals on the ground of "equal efficiency and seniority" in accordance with s.33(1). (4) Insofar as seniority of the eligible officers had to be determined, in the absence of any explicit prescriptions in the legislation, both the Commissioner and the Tribunal were required to apply cl.29(m) of the Award as part of the context to be taken into account in determining seniority. (5) "Seniority" in a rank structured force means seniority in terms of the rank hierarchy. (6) There was no logical support for the proposition that the criterion for determining seniority should be the member's length of service in the Brigade. (7) Mr. Verran was appointed to the rank of Station Officer on 10 February 1983, being a date later than the appointments to that rank of Messrs. Conway, Comerford, McLeod, Coombe and Fox; he is therefore junior to each of them.
Australian Capital Territory Fire Brigade to the
rank of District Officer consequent upon the
setting aside of the decision of the
(Commissioner) provisionally to promote (Mr. Fox)
to that rank be referred to the (Commissioner)
for further consideration subject to a direction
that, in promoting a member to that rank, the
(Commissioner) is bound to act on the basis that,
where more than one person is eligible for
promotion to that rank the (Commissioner) shall:
(a) Where each eligible person passed the
examination conducted in relation to
promotion to that rank at the same time -
promote to that rank the more or most
senior of those persons, the relative
seniority being determined by reference to
the rank held by a member relative to
another member, so that a member of a
higher rank is more senior than other
member of a lower rank and within a rank
the member earlier appointed to that rank
shall be more senior than a member later
appointed to that rank, and where
appointments to that rank took effect on
the same day then seniority shall be
determined in the basis of:
(i) relative seniority in the previous
rank or ranks, or, if this is the same,
(ii) the date of appointment to the ACT
Fire Brigade with relative seniority
being determined by the date of
appointment so that a member with an
earlier date of appointment to
another member is senior to that
member, or if that date is the same,
(iii) the position on the order of merit
established on graduation from the
Brigade's recruit training college so
that a member with a higher position
on the order of merit than other
member is senior to that member or
(b) in any other case - promote to that rank
the person who first passed the examination
conducted in relation to promotion to that rank."
16. Early in his submissions, Mr. Hungerford indicated that, shortly before the hearing of the appeal, he had received an instruction from Mr. Berry, one of the members of the Tribunal, that he wished to make a contention which was different in one respect from the notice of appeal. He wished to submit that the proper orders to be made on the appeal were those sought in the notice of cross-appeal. It will be recalled that there are differences between the orders sought by the appellants on the one hand, and by the cross-appellants, on the other, in lieu of orders 5 and 6 made by his Honour.
17. As this incident demonstrates, there are difficulties in permitting the
Commissioner or the Tribunal to pursue active roles in
the conduct of the
proceedings both at first instance and on an appeal. True, the Commissioner
and the Tribunal were necessary parties
at first instance; but, in cases of
this kind, it is usual for a body or a tribunal to submit to such order as the
Court may make.
A similar question arose in The Queen v. The Australian
Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13). Gibbs, Stephen,
Mason, Aickin and Wilson JJ. said (at pp 35-6):
"There is one final matter. Mr. Hughes was instructed18. In Australian Conservation Foundation v. Forestry Commission (1988) 79 ALR 685, in an application for judicial review of decisions of a Commission of Inquiry, the members of the Commission were initially made respondents to the proceedings. Burchett J. said (at p 688):
by the Tribunal to take the unusual course of
contesting the prosecutors' case for relief and this he
did by presenting a substantive argument. In cases of
this kind the usual course is for a tribunal to submit
to such order as the court may make. The course which
was adopted by the Tribunal in this Court is not one
which we would wish to encourage. If a tribunal
becomes a protagonist in this Court there is the risk
that by so doing it endangers the impartiality which it
is expected to maintain in subsequent proceedings which
take place if and when relief is granted. The
presentation of a case in this Court by a tribunal should
be regarded as exceptional and, where it occurs should,
in general, be limited to submissions going to the powers
and procedures of the Tribunal." (Emphasis added)
"Having regard to what was said in (Hardiman's Case,19. In my view, a similar course should be adopted here. The question was discussed in argument on the appeal, and, in the circumstances, subject to its consent (see 0.52 r.14(3)), it is appropriate to add the Commonwealth as an additional appellant notwithstanding that it was not joined at first instance (cf. Waterford v. The Commonwealth of Australia [1987] HCA 25; (1986-1987) 163 CLR 54 at p 55).
supra), the application was amended to add the
Commonwealth as a respondent and it has appeared at the
hearing to support the decision of the Commission."
20. (If the Commonwealth consents to be joined as a party at this stage, it may, of course, wish to be heard in the appeal itself. I would propose that the Commonwealth be given an opportunity to put submissions in writing in respect of any matter raised in the appeal. In the event that the Commonwealth indicates that it does not wish to put a submission, or fails to present a submission within 28 days of the publication of these reasons, whichever should first occur, the orders now proposed for the disposition of the appeal should then be made (cf. Baumgartner v. Baumgartner [1987] HCA 59; (1987) 164 CLR 137 per Mason C.J., Wilson and Deane JJ. at p 151). If the Commonwealth presents a written submission which differs in any substantial respect from the arguments put on behalf of the Commissioner and the Tribunal, the respondents should have the opportunity to respond by written submissions made within a further 28 days. If such further submissions call for a reply by the Commonwealth, this should be done within another 10 days. General liberty to apply should be reserved in the event that a party, or the Commonwealth, wishes to make an oral submission.)
21. Mr. Hungerford did not seek to argue at first instance, or on the appeal, that service with the New South Wales fire brigade could be taken into account for present purposes. In my view, the concession implicit in this approach was properly made.
22. Mr. Hungerford referred to Crumblin v. Kerr (1987) 72 ALR 461. There, an order of review was sought of a decision of the Commissioner appointing a District Officer to act temporarily in the rank of Superintendent. The regulations provide that a member of the Brigade was not to be appointed temporarily in a higher rank unless the conduct and service of the member was satisfactory (reg. 16) and the member was the most senior of the members eligible for promotion to that rank (reg. 19). The applicant for judicial review was a District Officer who had joined the Brigade on the same date as the promoted officer, but whose name preceded the other officer on the "seniority list", and was considered by the Commissioner to be ineligible for promotion on the ground of his unsatisfactory conduct and service. In refusing the application, it was held at first instance by the present primary Judge that the satisfactory conduct and service referred to in reg. 16 is a matter going to eligibility for promotion for the purposes of reg. 19; that, in the absence of any guidance in the Ordinance and regulations, the criterion for determining seniority should be length of service; and that where two or more members are equal in seniority, the Commissioner may, in the exercise of his power of general control and management of the Brigade under s.12 of the Ordinance, make such appointment as in his judgment is proper (at p 467).
23. An appeal was dismissed (see Crumblin v. Kerr, (1988) 79 ALR 74). Morling
J. (Gallop J. agreeing) construed reg. 19 as entitling the Commissioner to
take into account conduct and service (at p 74).
He added (at p 77):
"It is unnecessary to determine whether, even if the24. Pincus J. (Gallop J. agreeing) also rejected the argument that an officer is "eligible for promotion" within the meaning of reg. 19 although he does not fulfill the requirements of reg. 16 (at p 80). He added (at p 81):
respondent had been disentitled to consider the
appellant's conduct and service, the appellant was a
more senior officer than Bissett. However, as we heard
argument on that matter it is convenient that I should
express an opinion on it. I agree with the learned
trial judge that the appellant and Bissett were of
equal seniority. They were both appointed to the rank
of District Officer on the same day. In my view it is
the date of their appointment to that rank which determines
their seniority for the purposes of the regulations.
It is not to the point that the appellant is treated as
being more senior to Bissett on a list kept by the
Commissioner. Apparently the reason why the appellant
was regarded by the Commissioner as being more senior
than Bissett was that the appellant passed the
examination referred to in reg 14 earlier than Bissett
did. But the passing of that examination did not alter
the seniority of either man. The alteration in their
seniority occurred on the date when they were both
appointed District Officer, ie 6 July 1978. As their
appointments took effect on the same day, they are of
equal seniority.
If a case should arise where two or more officers are
of equal seniority and are all eligible for appointment
to act temporarily in a higher rank, s 30 of the
Ordinance would authorise the Commissioner to appoint
one of them under reg 19." (Emphasis added)
"Counsel for the appellant made the rather surprising25. Pincus J. also said that it was "necessarily implicit" in reg. 19, read against the background of s.30, that the Commissioner was not prevented from selecting either or any of the eligible officers of equal seniority (at p 81).
submission that, since the seniority list had attained
general acceptance, it must accurately reflect the
notion of seniority embodied in the regulations. That
is plainly not so; if the regulations expressly or
implicitly require seniority to be determined on a
particular basis, that cannot be varied by mere
agreement of the parties interested, or the more
influential of them.
The learned primary judge expressed the view that
seniority depends on length of service in the Brigade.
Although we were invited to agree or disagree with that
opinion, it would seem to me to be going too far to
prescribe a general test of seniority reaching beyond
the requirements of the decision in this particular
case. Both Bissett and the appellant transferred to
the Brigade (from New South Wales) on 16 January 1976
and both attained their substantive rank of District
Officer on 6 July 1978. Whether one adopts the test of
length of service in the Brigade or that of length of
service at the current rank, both have the same
seniority. It was suggested in argument that one could
differentiate between them on the basis that the
appellant passed his examination for promotion to
District Officer earlier than did Bissett; the former
passed in December 1977 and the latter in June 1978.
However, as the learned primary judge pointed out, the
date of passage of the examination cannot be the
criterion of seniority; that is made clear by reg 17,
quoted above. It is so drawn as to make it impossible
to hold that the date of passage of examinations
establishes seniority; if that were so, para (a) of
reg 17 would make no sense. (Emphasis added)
It therefore appears that the learned primary judge was
correct in holding that the appellant and Bissett held
the same seniority. In that respect, the respondent's
reasons for decision were incorrect, but the error was
one favourable to the appellant."
26. In the result, it seems that, although Pincus J. left the point open, Morling J., with the concurrence of Gallop J., has expressed the view, obiter, but after hearing argument, that ". . . it is the date of their appointment to the (relevant) rank . . . which determines . . . seniority for the purposes of the regulations."
27. Mr. Hungerford referred to dictionary definitions of "senior". The Shorter Oxford gives, relevantly, "that ranks before others in virtue of longer service or tenure of a position; superior to others in standing." The Macquarie speaks of "higher rank or standing, esp. by virtue of longer service".
28. The notion of "seniority" was discussed by Dixon J. in The Commissioner
for Railways (NSW) v. McCulloch [1946] HCA 27; (1945) 72 CLR 141 at p 159:
"The effect of the State legislation and the State award(See Rix v. Engleheart (1984) 8 IR 445 at p 452; see also R.N. Spann, "Government Administration in Australia", (1979) at pp 323-4; 326-7.)
is to make promotion within any branch of the railway
service a thing to which the officer next in rank,
position or grade has a presumptive claim. Seniority,
as it is often though imprecisely called, does not give
a right to promotion to fill a vacancy. But seniority
is protected from being unfairly passed over by certain
provisions designed to secure proper consideration of
its claims upon the vacancy, provisions giving to an
officer passed over the the Commissioner an appeal from
his decision to the Appeals Board. The Board is
evidently intended to form a judgment as an independent
body upon the question whether the interests of the
service and the merits outweigh the presumption in
favour of seniority."
29. As has been said, Mr. Hungerford relies upon cl.29(m) of the Award. The
application of the Award is dealt with by cl. 3 as follows:
"3 - APPLICATION OF AWARD30. Inconsistency with the Award is dealt with in cl.5, supra.
(a) The award shall be binding upon the Federal
Firefighters Union and the members thereof and the
Minister of State for the Capital Territory as to the
employment of the said members in the A.C.T. Fire
Brigade in any of the classifications set out herein.
(b) No person shall be employed or engaged to
perform work covered by this award, except persons
employed under the terms of the award."
31. Promotions and examinations are dealt with by cl.29 which, as varied in
1986, is in the following terms:
"(a) Promotion from class to class or grade to grade32. In argument, reference was made to s.41A(1) of the Conciliation and Arbitration Act 1904 which provided that, in relation to an industrial dispute referred to in para.(d) of the definition of "Industrial dispute" in s.4(1) of that Act (i.e., a dispute in relation to employment in an industry carried on by, or under the control of, the Commonwealth or an authority of the Commonwealth), the Commission may make an award that is not in accord with a law of the Commonwealth or of an internal Territory relating to conditions of service or employment of employees in prescribed service as defined in s.4(8) (which includes service or employment of the Commonwealth or of an authority, institution or body established for a public purpose by or under a law of the Commonwealth, other than service or employment in the Defence Force) with some exceptions not presently relevant. This Act was repealed by the Industrial Relations (Consequential Provisions) Act 1988, but by s.7(1) of the latter Act, an award in force under the previous Act continues in force, subject to the Industrial Relations Act 1988, as if it were an award made under that Act. By s.121(1) of the lastmentioned Act, in relation to an industrial dispute involving public sector employment, the Commission may make an award that is not consistent with a relevant law of the Commonwealth or of an internal Territory.
within the ranks of the brigade shall be subject to the
provisions of the Fire Brigade (Administration) Regulations.
(b) Subject to the provisions of sub-clause (a) of
this clause a first-class firefighter grade B shall be
eligible to sit for examination for the rank of senior
firefighter immediately after reaching the rank of
first-class firefighter grade B.
(c) Where an employee's seniority is altered he
shall be informed in writing and his precise position
in the seniority list shall be indicated.
(d) A first-class firefighter grade A who has
completed five years service in that rank shall be
promoted to the rank of senior firefighter but will be
ineligible to sit for the examination for promotion to
the rank of station officer until he has passed the
prescribed examination for senior firefighter.
(e) An employee who had more than five years service
before being eligible by examination to be promoted to
senior firefighter and having since passed the
prescribed examination for promotion to the rank of
station officer shall, after seven years service, be
eligible for promotion to the rank of station officer
or at a time after seven years service comparable to
his lost time in completing and passing any prior
examination. Lost time other than is applicable in the
Regulations made pursuant to the Ordinance, being
calculated by the addition of the time between the date
upon which an employee is eligible to achieve a rank,
subject to examination, and the date upon which the
employee completes and passes the prescribed
examination after the date of eligibility.
(f) Qualifying examinations shall be held for
promotion to the rank of senior firefighter, station
officer and district officer. Provided that where a
member has failed to qualify at an examination but has
passed in one or more subjects at such examination, it
shall not be necessary for that member to again pass
that or those subjects.
(g) A firefighter having completed five years
service, including one year's service as a first-class
firefighter grade A and having passed the prescribed
qualifying examination for promotion to the rank of
senior firefighter, shall be promoted to the rank of
senior firefighter.
(h) A senior firefighter having qualified by
examination for that rank shall be entitled to sit for
the prescribed qualifying examination for promotion to
the rank of station officer.
(i) A senior firefighter having completed one year's
service at that rank and having passed the prescribed
examination for the rank of station officer shall
receive an allowance of $5.00 per week.
(j) A senior firefighter, qualified by examination
for the rank of station officer and having completed
eight years service shall be entitled to sit for the
prescribed qualifying examination for promotion to the
rank of district officer.
(k) Any station officer having qualified by
examination for promotion to the rank of district
officer shall be paid an allowance of $6.00 per week.
No-one shall be promoted to the rank of district
officer until he has completed two year's service as a
station officer.
(l) A senior firefighter having qualified for the
rank of station officer by examination and having
completed two years service as senior firefighter shall
be placed on the seniority list immediately senior to
the most senior firefighter not so similarly qualified
and immediately junior to any senior firefighter
similarly qualified but more senior.
For the purposes of this sub-clause a senior firefighter
having become eligible for promotion to station officer
pursuant to sub-clause (e) shall be deemed to have
served two years service as a senior firefighter.
(m) A station officer qualified by examination for
the rank of district officer and having completed two
years as a station officer shall be promoted to the
rank of station officer grade A and placed on the
seniority list immediately senior to the most senior
station officer not so similarly qualified and
immediately junior to that station officer similarly
qualified but more senior."
33. It is convenient to deal first with the decisions of the Commissioner
provisionally to promote and then consider the position
of the Tribunal.
The Commissioner's position
34. It is necessary to distinguish between the source of the Commissioner's power provisionally to promote, on the one hand, and the relevant matters which he must take into account in so deciding, on the other. The former is s.29(1) of the Ordinance, read against the background of s.12 of the Ordinance. The latter is s.29(2) of the Ordinance, regs. 14, 16, 17 and, (possibly), cl. 29 of the Award.
35. It is common ground that, in his decision provisionally to promote Mr. Fox, the Commissioner acted contrary to reg. 17(b).
36. Although it is also common ground that the Commissioner's decision was properly set aside by his Honour, para.5 of the orders made by the primary Judge is now challenged. This raises the meaning of "senior" where used in reg.17(a).
37. As has been noted, there is no express definition of "seniority" in the Ordinance or regulations. The dictionary definitions indicate that seniority can mean a superior position achieved by longer service; but it can also mean a superior rank or standing achieved otherwise than by length of service. Since the Ordinance and the regulations are silent on the point and because the context of the legislation provides no clear guide as to the meaning intended to be given to the term, it is appropriate to refer to the Award as providing a context or background to the legislation which may assist in resolving any ambiguity in its language.
38. The Award is not, strictly speaking, legislative in character, although it is given legal force by the provisions of the Conciliation and Arbitration Act (see Blackley v. Devondale Cream (Vic.) Pty. Ltd. [1968] HCA 2; (1968) 117 CLR 253 per Kitto J. at p 262; Howard, Australian Federal Constitutional Law, 3rd ed, at pp 39-40). A federal industrial award may be described as both "quasi-legislative" and "quasi-judicial" (c.f. Lane's Commentary on the Australian Constitution, 1986, at p 236). As Professor Lane says (ibid.), although an award is not subordinate legislative function, for an award creates rights and duties to govern future conduct rather than merely declare rights and duties under existing law, as in the judicial function; at the same time an award is analogous to the judical function, embodying essentially a decision between parties upon matters in dispute between them. But, whatever the true constitutional character of the Award, there is no reason of principle or policy why regard cannot be had to its terms in order to resolve any ambiguity in the legislation.
39. It may be accepted that, s.41A of the Conciliation and Arbitration Act apart (see Federal Firefighters' Union v. Minister of State for the Capital Territory [1982] FCA 125; (1982) 62 FLR 341 at p 349), resort could not be had to the Award for the purpose of contradicting the provisions of the Ordinance or the regulations. But it is a different thing to look at the Award for the purpose of clarifying an ambiguity in the legislation. There is no element of contradiction here. Rather, it is a case of the Ordinance and the regulations picking up, as part of the legislative plan, a scheme of seniority already in place among members of the Brigade
40. In my opinion, it is permissible to refer to the Award for the limited purpose of ascertaining what that scheme is and what its effect is in the present circumstances. It is true that a merely private agreement between the Commonwealth and some of the members of the Brigade could not govern or control the operations of the Ordinance or the regulations on their true construction (see Crumblin v. Kerr, supra, at pp 77, 81). But this is not what is proposed here. In the present circumstances, the legislation is silent on the point. Resort is being had to the provisions of cl. 29 of the Award for the purpose of ascertaining the nature of the scheme of seniority in place pursuant to an industrial award to which legal effect is given by virtue of the Conciliation and Arbitration Act. There is nothing in the nature of merely private agreement here; no attempt is being made to contradict any provision of the Ordinance or regulations. Instead, the Award is being looked at in order to explain what would otherwise be obscure. In my view, it is appropriate that the Award be taken into account for this purpose.
41. When regard is had to the provisions of cl. 29 of the Award and, in
particular, to paras. (c), (l) and (m) thereof, we find a
scheme established
for the purpose of ascertaining the relative seniority of the officer members
in these proceedings. There is nothing
in this scheme which is inconsistent
with the Ordinance or the regulations. To the contrary, the operation of cl.
29 is appropriate
and necessary for the proper working of the Ordinance and
the regulations (cf. Downey v. Pryor [1960] HCA 49; (1960) 103 CLR 353 at p 362). It is both
legitimate and necessary therefore, for the Commissioner to have regard to the
relevant provisions of cl. 29
in deciding who is the "senior" officer.
The Tribunal's position
42. The source of the Tribunal's power to determine an appeal is found in s.33(2) of the Ordinance. The matters to be taken into account by the Tribunal are found in s.33(1) - "equal efficiency and seniority".
43. Again, for the reasons given, in the absence of any legislative
definition of the term, the Tribunal should have regard to the
concept of
"seniority" established by and under cl. 29 of the Award.
Conclusions
44. I am in general agreement with the orders proposed by Jenkinson J., whose reasons I have had the advantage of reading. In addition, I would propose that a declaration be made that, in dealing with promotions and any appeals in that connection, both the Commissioner and the Tribunal are bound, in considering any claim of seniority, to take into account the provisions of cl. 29 of the Award. I would further propose that, subject to its consent, the Commonwealth be added as an additional appellant. To permit the Commonwealth to be heard, if it wishes, I would propose that the operation of the orders disposing of the appeal and cross-appeals be suspended for a period of 60 days from the date of the publication of these reasons.
45. The attention of the parties is drawn to the provisions of the Federal Proceedings (Costs) Act 1981.
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