Commonwealth agencies faced with an application for
judicial review of an employment decision should consider arguing
that the court should decline to review it if review by the Merit
Protection Commissioner is also available.
Human resources practitioners within the APS live in fear of
judicial review of employment decisions. Decisions that an employee
has breached the APS Code of Conduct, to impose a sanction for
breach of the Code, or to suspend an employee, may all be subject
to judicial review. These proceedings are expensive and turn on
highly technical points of law. Moreover, even if the application
is successful, this usually just means the decision has to be
remade according to law.
A recent decision by the Federal Court of Australia should
prompt agencies to reconsider their strategies when defending
applications for judicial review of employment decisions.
As well as being able to commence administrative law judicial
review proceedings, APS employees are entitled to review of actions
or decisions that relate to their APS employment under section 33
of the Public Service Act 1999 including a review of a
The Merit Protection Commissioner (MPC) is a
statutory office holder who conducts independent reviews of
employment actions. The services provided by the MPC are delivered
by staff of the Australian Public Service Commission.
In Rahman v Commissioner of Taxation  FCA 988, the
applicant applied under section 39B of the Judiciary Act 1903 for
review of a decision to suspend his employment. Justice Flick
refused to judicially review this decision on the basis he
considered review by the MPC was a more convenient and beneficial
form of review than judicial review by the Federal Court. He noted
that there is a similar power to decline to review an application
brought under the Administrative Decisions (Judicial Review) Act
Agencies faced with an application for judicial review of a
breach, sanction or suspension decision should consider arguing the
court should not review the decision on the basis MPC review is
available. There are circumstances, however, where the court may
nonetheless consider it should review the decision. Agencies should
consider the following points in deciding whether to run this
If the employee ceases to be employed or is promoted to an SES
position, MPC review is not available (interestingly, this
consideration appeared relevant on the facts of Rahman, but was not
directly considered by Justice Flick when deciding not to review
The time limit for applying for review of a breach decision by
the MPC is 60 days after the agency determining the employee
breached the Code. For a sanction decision it is 60 days after the
imposition of a sanction. The MPC may review outside these time
limits if the person conducting the review considers there are
exceptional circumstances explaining the failure to make an
application within the period in the item. The court might consider
MPC does not offer an adequate alternative form of review if there
is a chance the MPC will not hear it because an application would
be out of time. So act quickly if you want to run this
"alternative forum" argument, as the court may only be
attracted to it if raised early in proceedings.
If the applicant's submissions focus on the merits of the
decision, rather than alleged legal errors, a court may consider
MPC review is more suitable.
The decision to terminate an employee's employment is not
reviewable by the MPC.
If the MPC reviews a decision and makes a recommendation to the
Agency Head, the Agency Head must then make a decision about the
MPC's recommendation. This decision may then be subject to
judicial review. It may be, however, that this decision is easier
to defend than the original decision or that the employee is not as
interested in judicial review after MPC review.
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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