Chapman v Cook Islands Public Service Board of Appeal [1981] CKHC 6; HC (1 October 1981)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)

BETWEEN

RICHARD CHARLES CHAPMAN
of Rarotonga, Public Service Commissioner
Plaintiff

AND

THE COOK ISLANDS PUBLIC SERVICE BOARD OF APPEAL
Defendant

JUDGMENT

This is an application for declaration and writ of Certiorari filed by the Solicitor General on behalf of Mr. Chapman, the Public Service Commissioner, consequent upon a decision of the Cook Islands Public Service Board of Appeal delivered on 8 July 1981. The Solicitor General appeared in support of the application; Mr. Arnold appeared for Mr. Etches who has been named the second defendant; the first defendant the Cook Islands Board of Appeal not being represented at the hearing.

The background to this application may be summarized as follows. The Public Service Commissioner, in the course of a reorganization of the Department of Education in 1978 and 1979 created three Inspectorate positions one of which was Senior Inspector Secondary Schools, which position in the subsequent appointments is now the subject matter of this application. In the course of preparing the notification of the position and the calling for the applications the Commissioner provided among other qualifications a requirement of fluency in both Maori and English languages and purported to decree that this was a mandatory qualification requirement. After the closing date for the receipt of applications, the Public Service Commissioner together with two Departmental Heads as is required by the Public Service Act 1975 appointed Mr Rangi Tuavera to the position. This appointment was made on the 17 July 1980.

In the same month one of the unsuccessful applicants a Mr. Peter George Etches lodged an appeal against the appointment of Mr. Tuavera which appeal came before the Cook Islands Public Service Board of Appeal on 6 July 1981. The decision of the Board of Appeal was reserved and delivered on 8^th July 1981, allowing the appeal and appointing Mr. Etches to the position of Senior Inspector-Secondary Schools. On 12 July 1981, the Public Service Commissioner formally notified Mr. Etches of his successful appeal and requiring him to take up his new appointment forthwith which appointment was backdated to 8 July 1981, and which appointment required Mr. Etches to relinquish his position as Principal of Taroora College.

The following day 13 July 1981, the Secretary of Education Mr. Tuingariki Short applied to the High Court for an interim injunction to restrain Mr. Etches from taking up this position of Senior Inspector-Secondary Schools and on 31 July 1981 the High Court granted the interim injunction sought. Since 31 July 1981, Mr. Etches claims to have been unable to undertake any formal duties as a teacher since he has vacated his position as Principal at Taroora College and consequent on the grant of the injunction has been restrained from taking up the duties of Senior Inspector. It is as a consequence of this situation that the Public Service Commissioner has taken the initiative to file the present application for a declaration that the Appeal Board exceeded its jurisdiction in disregarding the mandatory component in the job description relating to fluency in the Maori and English languages, and that consequentially, the decision of the Board is therefore a nullity. The Public Service Commissioner further sought an order that a Writ of Certiorari issued out of the High Court directing that the decision of the Appeal Board dated 8 July 1981 be quashed.

At the conclusion of the detailed and comprehensive submissions, oral and written, presented by both Counsel, it was conceded by them that the question for determination was whether the qualification condition as to Maori language, set by the Commissioner, was mandatory and so binding on the Appeal Board. Mr. Mitchell conceded that if it was held that requirement was not mandatory then his application must fail.

In support of his application Mr. Mitchell developed his arguments, as I understood them, along the following lines:-

1. The Commissioner has a constitutional responsibility "for the appointment, promotion, transfer, termination of any appointment, dismissal and disciplinary control of the Cook Islands Public Service".

2. The Commissioner also has the statutory function of administering the Public Service Act 1975 and "to provide for the administration and regulation of the Cook Islands Public Service".

3. The whole scheme of the Public Service Act reinforced the constitutional responsibility of the Commissioner in so far as it applies to employment matters viz. appointment, promotion, transfer, and discipline.

4. The Public Service Act in Clause 3 and 10 provides for staffing responsibilities and standards in order to maintain and develop an efficient educational system.

5. The determination of merit on the appointment of officers in the Public Service is based on the criteria contained in Section 15(5) of the Public Service Act 1975 viz.:

"(a) Work experience, dedication and competence shown in performance of duties previously carried out by him; and

(b) Personal qualities, characteristics, and attributes relevant to the position to be filled; and

(c) Relevant educational or other qualifications."

Based on those considerations, Mr. Mitchell submits that the Commissioner therefore has the necessary jurisdiction to fix, as a qualification for this appointment, the ability to speak the Maori language. In addition however, he also maintains:-

1. That if the Commissioner should set a job description i.e. fluency in Maori, which calls for qualifications not relevant to the position advertised than his actions are liable to review only at the instance of any public servant or the Public Service Association.

2. That once the job description is set at the time of advertising a vacancy then the Commissioner himself is bound by its terms in assessing the merit of any prospective applicants.

3. That likewise the Appeal Board must also be bound by the mandatory job requirements initially fixed by the Commissioner and certainly has no power to disregard or set aside as unnecessary in this case, the mandatory requirement of fluency in Maori, in deciding upon any Appeal. It is suggested that if this were not so then serious consequences would result, namely:-

(a) The Commissioner's primary responsibility for administering and regulating the Public Service would be usurped;

(b) Both the Constitutional and Statutory functions of the Commissioner in matters of employment in the Public Service would be overruled;

(c) Applicants equally or better qualified who have not applied for the position the subject of this proceedings (and there is the affidavit of Mr. Lewis which confirms he comes within this category) because they could not speak Maori, have been deprived of applying for the position. This situation would undoubtedly lead to public servants:-

(i) feeling justifiably aggrieved to learn of an appointment which does not comply with the job requirement and to which they therefore would have applied;

(ii) questioning the Commissioner with the consequential erosion of their confidence in his ability to fairly perform his statutory responsibilities;

(iii) going behind an advertised job description and applying for positions where the qualifications are not met.

Based on those submissions Mr. Mitchell concluded that -

(a) The job requirement of fluency in Maori was a mandatory condition within the power of the Commissioner to impose;

(b) The Appeal Board acted in excess of its jurisdiction in setting aside the mandatory requirement of fluency in Maori by appointing Mr. Etches who cannot speak Maori;

(c) The action of the Appeal Board in this case is a jurisdictional error which can be quashed by certiorari.

Mr. Arnold then proceeded to expand and develop the detailed submission which he also made available to this Court. As I understand his argument it may be summarised briefly:-

(a) That the Commissioner in reporting to set mandatory terms for the vacancy of Senior Inspector-Secondary Schools acted in excess of his jurisdiction;

(b) That the Appeal Board in determining the relevance of the requirement of fluency in Maori acted within its jurisdiction;

(c) That while a decision of the Appeal Board can be reviewed and be subject to certiorari nevertheless the Appeal Board in this instance having acted within its jurisdiction the application for certiorari should be dismissed.

I shall deal firstly with the jurisdiction of the Commissioner. Mr. Arnold submitted that -

1. The Commissioner had the necessary jurisdiction to publicly notify vacancies in the Public Service.

2. The Commissioner did not have the power in publicly notifying vacancies to fix mandatory qualifications which limited or restricted applications.

3. This power of imposing mandatory qualifications in a job requirement must be based on statutory authority and there is none.

4. A job requirement with mandatory qualifications must of necessity fetter the Commissioner's discretion which he is required to exercise when pursuant to the provisions of the Statute he with two others has to make a selection from the applicants for the position.

I am not prepared to go as far as I understood Mr. Arnold wanted, when he said that there is no statutory authority on which the Commissioner can rely for his advertising, other than notification simpliciter, for a vacancy in the Public Service. I believe the Commissioner is required and has the power to go further and given adequate details of requirements and qualifications sufficient to enable applicants with these general qualifications to apply and so enable the Commissioner and the two Heads of Department to make an assessment and an appointment.

In this case the qualification in question is set out firstly in the advertisement viz.,

"must be fluent in Maori and English"

I believe that in this country where both Maori and English are spoken, and more Maori than English, then it would naturally be desirable to have an applicant with the attributes of speaking both languages. But in this instance a desirability for such a qualification has been specified in the advertisement as a mandatory requirement. If the advertisement had read "knowledge of both Maori and English desirable" or "an added advantage" or "an added recommendation" or some such description then the Commissioner would not have fettered his subsequent discretion at the time of selection by his own self created rules of policy. There is no doubt and in fact this is acknowledged and relied on by Mr. Mitchell, that the Commissioner believed that he was bound by the mandatory terms of employment that he himself had set at the time of advertising when he came subsequently to make a selection from the applicants he had sought. Section 15(4) directs that where two or more Officers are available for a position then preference shall be given to the most meritorious. Section 15(5) requires that any decision is to be based on relevant qualifications and personal attributes etc. This Statutory provision is the basis of the Commissioner and the two heads of department making an assessment of the candidates in accordance with the provisions of section 10(2). But the Commissioner and the two heads of department constitute in my view a tribunal entrusted with a discretion. There is no discretion if the Commissioner, himself one of the tribunal, has previously fixed a mandatory requirement which precludes, both the Commissioner and the two heads of department from exercising that discretion. If the advertisement had been so worded, as suggested above, and had not been mandatory, then the Commissioner and the two Heads of Department could have exercised a discretion in their selection. And in exercising that discretion they could have decided that the merits of the applicants under section 15(5) were fairly equal; but one candidate had the added knowledge of Maori; that this was an attribute to be preferred in the particular circumstances; and accordingly that candidate should be appointed. Then as I see it there could have been no objection based on the question of jurisdiction. But when mandatory qualifications are imposed, the discretionary considerations so necessary in such circumstances are thwarted. Then we have the discretion of the Commissioner and the two heads of department fettered by the Commissioner created rules of policy laid down by him at the time of advertisement and acknowledged now as binding on him at the time of selection.

It is clear however that the same qualification requirements as we are here considering have in other similar type appointments been regarded as directory only and not mandatory e.g. the positions of Principal at both Araura and Mauke colleges, as advertised in the Cook Islands Gazette dated the 11^th September 1981.

In those advertisements one of the qualifications was - "The applicant must be fluent in both Maori and English." Now that job requirement is claimed by Mr. Mitchell to be mandatory. But the Commissioner in the New Zealand Gazette dated the 31^st August 1981 advertised the same two positions but without the job requirement as to fluency in Maori. This action by the Commissioner, if the job requirement was mandatory, could produce the following results:-

(a) If applicants from the Cook Islands who could speak Maori were found to be inferior to those applicants from New Zealand who could not speak Maori and were not required to, then the Commissioner could appoint the latter;

(b) The appointment of a New Zealand applicant who could not speak Maori could mean that a person living in the Cook Islands, more highly qualified than the New Zealand applicant and who had not applied for the position because he could not speak Maori would be seriously disadvantaged;

(c) This would mean that New Zealand applicants who could not speak Maori would be preferred to higher qualified teachers in the Cook Islands who also could not speak Maori and who were precluded from applying because the mandatory requirement imposed by the Commissioner and binding him to reject the higher qualified Cook Islands teacher in favour of the lower qualified New Zealand teacher both of whom could not speak Maori. Mr. Mitchell conceded that this would be the situation.

An affidavit by the Acting Deputy Secretary of Education explains the reason for the dual advertisement for the two College Principal positions just discussed. While the action may be reasonable, the requirements are seriously prejudicial to Cook Islands teachers better qualified for the position but lacking in knowledge of the Maori language. If independent confirmation of these quite unsatisfactory results were required then the affidavit of Mr. Lewis the Principal of the Mangaian College certainly provides it. Mr. Mitchell placed great reliance on Mr. Lewis's affidavit, as being independent, unsolicited, and showing the unfairness of "changing the rules half way through the game" as he suggested the Appeal Board had done in disregarding the mandatory job requirements. But the manner of advertising the position of Principal at Araura College and Mauke College indicates that the Commissioner sets different rules for the same positions which are prejudicial to Cook Islands teachers whose interests the Commissioner has a statutory duty to protect and promote.

I turn now to the second argument formulated by Mr. Arnold viz. that the Appeal Board in determining the relevance of the requirement of fluency in Maori acted within its jurisdiction.

Mr. Mitchell maintained that just as the Commissioner on selection was bound by the mandatory job requirements, the Commissioner had set at the time of advertisement, so the Appeal Board was also bound.

But Mr. Arnold submitted that the Appeal Board had:-

1. The jurisdiction to determine what power it has.

2. And the power to make a decision as to what is relevant.

As to the first submission Mr. Arnold referred to Wade on Administrative Law 4^th Edition pages 240-241:

"if a certain state of facts has to exist before an inferior tribunal have jurisdiction, they can inquire into the facts in order to decide whether or not they have jurisdiction, but cannot give themselves jurisdiction by a wrong decision upon them; and this court may, by means of proceedings for certiorari, inquire into the correctness of the decision. The decision as to these facts is regarded as collateral because, though the existence of jurisdiction depends on it, it is not the main question which the tribunal have to decide."

(per Lord Goddard CJ in the case of R v Fullman etc. (1951) 2 KB 1)

It is clear on that authority that the Appeal Board has the power to determine the jurisdictional question. In fact it has a duty to do so. In this case the Appeal Board enquired into the facts to consider and determine whether it had jurisdiction on this requirement of "fluency in Maori". Both Counsel confirmed that such argument was presented to the Appeal Board on this jurisdictional question. Having decided it was within its powers the Board then considered the "relevance" of the qualifications as it was required to do under both section 15(5) (b) and (c). I see no significance in qualifying "fluency in Maori" as either a "personal attribute" under section 15(5) or a "qualification" under section 15(5) (c). The Appeal Board is required to make an assessment of the relevancy of both "personal attributes" and "qualifications" and its judgment clearly confirms that this is what it did. Such an assessment is clearly within the jurisdiction of the Appeal Board in order to make a proper finding of merit within the terms of section 15(4) and (5).

I am satisfied therefore that the Commissioner cannot fix "fluency in Maori" as a mandatory job requirement when he advertises job vacancies. He can advertise this as a qualification or attribute desirable for the position which would then not fetter the discretion which he and the two heads of department must exercise in making the initial appointment. Likewise the Commissioner cannot, by purporting to impose his own mandatory standards of merit at the time of advertising, fetter the discretion reposed in an Appeal Board, when it comes to make its judgment.

I find that the job requirement fixed by the Commissioner viz., "must be fluent in Maori and English" was not mandatory; that the Appeal Board did have the power to consider this job requirement which was directory only; and that accordingly the Declaration and Order sought are refused.

I fix costs on this application at $400.00 payable to Mr. Etches.

DILLON J

Dated: 1 October 1981