R v White; Ex parte Byrnes [1963] HCA 58; (1963) 109 CLR 665 (5 December 1963)

HIGH COURT OF AUSTRALIA

THE QUEEN v. WHITE; Ex parte BYRNES [1963] HCA 58; (1963) 109 CLR 665

Public Service (Cth)

High Court of Australia
Dixon C.J.(1), Kitto(1), Taylor(1), Menzies(1) and Windeyer(1) JJ.

CATCHWORDS

Public Service (Cth) - Offences - Disciplinary code - Breaches - Distinguished from criminal offences - Chief Officer - Appeal Board - Not exercising judicial power of the Commonwealth - The Constitution (63 & 64 Vict. c. 12), Chap. III - Public Service Act 1922-1960 (Cth), Pt III, Div. 6, s. 55.*

HEARING

Sydney, 1963, November 26, 27; December 5. 5:12:1963
CERTIORARI.

DECISION

December 5.
The COURT delivered the following written judgment:-
This is the return of an order nisi for a writ of certiorari directed to the the Appeal Board constituted pursuant to the provisions of s. 55 of the Public Service Act 1922-1960 (Cth). The tenor of the writ sought is to direct the respondents already mentioned to send to this Honourable Court (that is the High Court of Australia) his its and their proceedings upon certain decisions dated 21st May and 24th July 1963 respectively "with all things touching the same so that his Honourable Court may further cause to be done thereupon what of right shall seem to it to be done". (at p667)

2. The applicant, Mr. Keith Lawrence Byrnes, is an officer in the Third Division of the Commonwealth Public Service. He is employed as a lecturer in mathematics at the Royal Military College, Duntroon, Canberra, and is attached to the Department of the Army. The matter arises under s. 55 of the Public Service Act 1922-1960 and under reg. 58 of the Public Service Regulations. Regulation 58 provides that if the Chief Officer (see s. 26 of the Public Service Act 1922-1960) has reason to believe that an officer is in such a state of health as to render him a danger to his fellow officers or the public, he may require the officer to obtain and furnish a report as to his condition from a duly qualified medical practitioner, or may require him to submit himself for examination by a Commonwealth Medical Officer or medical practitioner named by the Chief Officer. Sub-regulation (2) relates to what may be the consequence. The applicant says that he attended two medical examinations at the instigation of the Chief Officer of the Department of the Army, namely, on 17th September 1962 and 11th April 1963. He says that he declined to attend a medical examination set by the Chief Officer for 9th May 1963 and for that, he says, the punishment consisting of a fine of 3 pounds for having disobeyed an order made under reg. 58 was inflicted upon him. He further says that he also declined to attend a medical examination set for 4th September 1963. He received a letter from the Secretary of the Department of the Army which said that following his medical examination of 11th April, the Department of Health has requested that arrangements be made for him to be further examined in order that a more detailed study can be made of the case. The letter said that in accordance with the powers conferred on him by reg. 58 the writer required the applicant to attend the rooms of the Commonwealth Medical Officer at an address given at 4.30 p.m. on Thursday, 9th May. The applicant says that he did not attend at the examination at the appointed place and time and that he was charged on 10th May by the Chief Officer of the Department of the Army with having wilfully disobeyed "a lawful order namely, 'that the said Keith Lawrence Byrnes attend the rooms of the Commonwealth Medical Officer, Administrative Building, Parkes at 4.30 p.m. on Thursday, 9th May 1963,' made by a person having authority to make the said order". (at p668)

3. On 21st May 1963 he was informed by the Chief Officer that in his opinion the charge had been sustained and that he had imposed on him a fine of 3 pounds in pursuance of his powers under s. 55 of the Public Service Act. The applicant deposed that he appealed to the Public Service Appeal Board. His appeal was heard at Canberra on 24th July 1963. He attended and was represented by counsel, as was the Chief Officer. On 7th August 1963 he was informed by letter from the Secretary of the Department of the Army that the Board had on 24th July 1963 confirmed the decision of the Chief Officer. The letter said: "The effect of this decision is that the Appeal Board has upheld the Chief Officer's action in (a) finding that you wilfully disobeyed a lawful order and (b) imposing a fine of 3 pounds. Action is being taken to deduct the amount of the fine from your salary." (at p668)

4. Although no doubt other grounds were assigned before the judge who granted the order nisi for the writ of certiorari, the grounds stated in the order nisi are simply that in imposing a fine of 3 pounds the Chief Officer was exercising without right functions that are judicial within the meaning of the Commonwealth of Australia Constitution and that in upholding the decision of the Chief Officer the members of the Appeal Board were exercising without right functions that are judicial within the meaning of the Commonwealth of Australia Constitution. (at p668)

5. Before us the order nisi was moved absolute on the ground that the Chief Officer, as invested with powers under s. 55, and the Appeal Board, as constituted under s. 55, were invalidly authorized to exercise part of the judicial power of the Commonwealth. Section 55(1) provides that an officer (other than an officer in the First or Second Division) who does or omits certain things stated in paragraphs lettered (a) to (h) shall be guilty of an offence and shall be liable to such punishment as is determined upon under the provisions of the section. Sub-section (2) provides that if the Chief Officer, or any officer prescribed as having power to deal with minor offences, has reason to believe that an officer has committed a minor offence, he may call upon the officer for an explanation, and if, on consideration of the explanation, he is of opinion that the offence has been committed he may take certain steps, one of which is to fine him a sum not exceeding ten shillings. Sub-section (3) provides that where there is reason to believe that an officer (not being an officer of the First or Second Division) has committed an offence, other than a minor offence punishable under the preceding sub-section, then certain steps as stated in paragraphs lettered (a), (b) and (c), to which reference must afterwards be made, may be taken. Paragraph (d) states what the Chief Officer may do after consideration of reports relating to the offence and charge and the reply and explanation, if any, of the officer charged, and any further reports he may consider necessary, if he is of opinion that the charge has been sustained. It is under this paragraph that the applicant was dealt with. He appealed to a Board of Appeal established under sub-s. (4) and it is in respect of the decision of the Chief Officer and the decision of the Board that he seeks a remedy by certiorari. Certiorari appears to be an odd remedy to seek but there may have been reasons why a writ of prohibition was not sought. Apparently one member of the Board was not an officer of the Commonwealth so a writ of prohibition could not have been justified solely under s. 75(v.) of the Constitution. (at p669)

6. After hearing the argument in support of the order nisi we decided that the order nisi should be discharged. We did not then give reasons for the conclusion which we had reached that the provisions under which the applicant had been dealt with were not an attempt to confer a part of the judicial power of the Commonwealth upon either the Chief Officer or the Appeal Board. (at p669)

7. Such difficulty as has been discovered in this case is apparent rather than real and arises from the choice of language in paragraphs lettered (a), (b) and (c) in s. 55(1) of the Act as part of the expression of an intention which on reading the whole Act is sufficiently evident. The language in pars. (d), (e), (f) and (g), if not (h), perhaps contributes to a too literal interpretation of sub-s. (1). The applicant was in fact dealt with under sub-par. (1) of par. (d) of sub-s. (3) of s. 55, but what has already been said about the paragraphs of sub-s. (1) has no doubt influenced the contention as to the character of sub-s. (1). Paragraph (a) of sub-s. (1) runs: "(1) An officer (other than an officer in the First or Second Division) who - (a) wilfully disobeys or disregards any lawful order made or given by any person having authority to make or give the order, shall be guilty of an offence" (it proceeds) "and shall be liable to such punishment as is determined upon under the provisions of this section". If as a result of s. 55(1) and s. 55(3)(d)(1) the section were construed as enabling the tribunal to impose a fine which was recoverable at law by any lawful means, that would explain the view insisted upon by the applicant that the section invades the realm of the judicial power of the Commonwealth but we do not think that the provisions of the Act should be so construed. We think that the so-called fine is nothing but a mulct to be deducted from salary or pay and we think that the provisions of s. 55, in spite of the heading of Div. 6, "Offences", should be interpreted as wholly concerned with breaches of discipline and disciplinary measures concerned only with the Service. Division 6 is, of course, limited to the Service and we are not here dealing with a law having general operation over all the members of the community. We are dealing with the regulation of what is, no doubt, a very large body of people with respect to their work for and their relations with the Commonwealth Crown. The expressions used in sub-s. (1) of s. 55 relate of course to conduct which is treated as open to considerable objection on what may be Service grounds but it should be kept steadily in mind that the so-called punishment must be determined by officers acting under the provisions of the subsequent sub-sections of s. 55. Again, when par. (d) of sub-s. (3) is examined, it is seen that no inconsiderable portion of the disciplinary measures which it authorizes relates to status, conditions or other relations in the Service. The Appeal Board is mentioned in the proviso to sub-s. (3) and further dealt with in sub-ss. (4), (5), (6), (6A), (7), (8), (9), (9A), (10) and (11). (at p670)

8. As has already appeared, we think that Div. 6 of Pt. III of the Act relating to offences is part of the law regulating the relationship between the Commonwealth and its servants; it is a law with very special application. Section 55, in creating so-called "offences" and providing for their "punishment", does no more than define what is misconduct on the part of a public servant warranting disciplinary action on behalf of the Commonwealth and the disciplinary penalties that may be imposed or recommended for such misconduct; it does not create offences punishable as crimes. The formalities prescribed in ss. 55, sub-ss. (3), (5) and (7), and 57, 58 and 60 (which counsel for the applicant described as "judicial trappings") are directed to safeguarding public servants from possible official injustice in the determinations whether there has been departure from the "code" established by s. 55(1) and, if so, what punishment should be imposed. The establishment of these safeguards does not indicate that an officer whose conduct is being investigated is being tried for a criminal offence; indeed in the Act a clear distinction is drawn between criminal offences committed by public servants (s. 62) and breaches of the disciplinary code established by s. 55(1). The foregoing considerations point clearly enough to the conclusion that neither a Chief Officer nor an Appeal Board, in performing the duties imposed by Div. 6, sits as a court of law exercising judicial power; each sits as an administrative tribunal maintaining the discipline of the Commonwealth Service in the manner prescribed by law. (at p671)

9. It is for the foregoing reasons that the order nisi was discharged. (at p671)

ORDER

Order nisi for certiorari discharged.