Tiatia v Attorney General [2004] WSSC 25 (9 January 2004)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

ENELE TIATIA
of Taga, Savaii and Sinamoga, Chief Inspector
SAOLELE TAVAE
of Iva Faasaleleaga, Savaii, Superintendent and
FALAULA MANU
of Salelesi, Chief Fire Officer
Applicants

AND

THE ATTORNEY GENERAL
for and on behalf of the MINISTER OF POLICE
First Respondent

AND

THE COMMISSIONER OF POLICE
Second Respondent

AND

LORENESE NERU
of Motootua,
TAEU MASIPAU
of Tafaigata and
POE UALESI
of Vailele, all Assistant Commissioners.
Third Respondents

Counsel: PA Fepuleai for applicants
D Clarke and R White for first, second and third respondents

Hearing: 23 December 2003
Judgment: 9 January 2004

JUDGMENT OF SAPOLU CJ

Background

By the Police Service Amendment Act 2002 (the PSA Act 2002) the Police Service Act 1977 (the principal Act) was amended, inter alia, by disestablishing the position of deputy commissioner within the police, prison and fire services and establishing in its place the new positions of assistant commissioners. Whilst previously there was only one deputy commissioner, the PSA Act 2002 provides for the appointment of more than one assistant commissioner. When the PSA Act 2002 came into force, an advertisement was made for four assistant commissioners as part of the restructure of the police, prison and fire services. All those services are performed and administered by the police. A job description issued as part of that advertisement sets out the primary objectives for, the duties of and the selection criteria for the positions of assistant commissioners. For the purpose of this judgment, it is necessary to set out in full that job description as set out in the affidavit of the applicant Enele Tiatia.

Job Description

Position: Assistant Commissioner, Police, Prison and Fire Services

Salary Grading: $35,180/39,376p.m. max

Responsible: To the Commissioner of Police, Prison and Fire Services

Primary Objective

1. To ensure that the provision of police services to the Samoan Community is effectively managed, monitored and is continually improved.
   
2. To participate in the strategic development, implementation, and evaluation of appropriate public safety, emergency, and risk management activities which address the community’s requirements and expectations.
   

Duties:

1. Assuming primary responsibility and accountability for maintaining a safe community by strategically managing the human, physical and financial resources of the Police Department and coordinating the delivery of high quality, relevant, cost effective and innovative practices necessary for the provision of policing services to the Samoan community.
   
2. Provide high level and authoritative strategies to the Commissioner on policing service to the Samoan Community and as a member of the Executive Management Team, contribute to corporate decisions and the general superintendence of the Samoa Police and its corporate performance.
   
3. As a member of the Executive Management Team, provide sound and effective leadership to the Divisional Team and the Department.
   
4. Provide authoritative advice to Executive Management, government and interest groups on relevant matters and emergent issues within the Samoa Community.
   
5. Forecast and identify developments and trends in the policing environment, which may impact on local operating policing services and the police’s overall corporate activities.
   
6. Manage, develop and implement appropriate policies, plans and programmes to address policing relevant issues and to continually improve policing services to the community.
   
7. Manage, empower and develop effective leadership and communication with the community to pro-actively address and fulfil the Police’s expectations of its employee’s internal and external activities and interrelationships consistent with its social and cultural values, strategic direction, and key management area outcomes.
   

Selection Criteria

1. At least 10 years experience in a senior position within the Police Service.
   
2. Substantial experience, knowledge and a record of achievement in strategic planning and policy development in a policing organization, and proven ability to effectively commend and make sound decisions during emergency issues and trends relating to customer, work force and community needs.
   
3. A proven ability to translate corporate plans and objectives into relevant outputs and key outcomes and to appropriately respond to emergency issues and trends relating to customer, work force and community needs.
   
4. Highly developed analytical, conceptual and communication skills and a demonstrated ability to provide operational and policy advice to all levels of the Police Department as well as external stakeholders.
   
5. Outstanding interpersonal skills, especially in motivating staff and effectively communicating and negotiating with a range of internal and external audiences to achieve desired outcomes.
   
6. A demonstrated record in support of the principles and strategies necessary to attain a genuine commitment to ethical standards and behaviour, and a clear understanding of their value in achieving overall policing outcomes for the community.
   
7. Demonstrated ability to import and creative leadership and a sound understanding of the philosophy underpinning local priority policing in the Samoa Community.
   
8. Have undertaken specialist training and/or significant cases and operational during their services.”
   

All the police officers who applied for the four positions of assistant commissioner were commissioned officers and they included the present three applicants for judicial review and the three third respondents. At the time the applications were made the first-named applicant, Enele Tiatia, was holding the rank of police chief inspector, the second-named applicant, Saolele Tavae, was holding the rank of police superintendent and the third-named applicant, Falaula Manu, was holding the rank of chief fire officer. On the other hand, the first and second-named third respondents, Lorenese Neru and Taeu Masipau, were at the time holding the ranks of police superintendent whilst the third-named third respondent, Poe Ualesi, was holding the rank of police chief inspector.

An interviewing panel which included the then commissioner of police service was then convened and that panel interviewed each of the officers who applied for the advertised positions. The oral submissions made by counsel for the applicants to the Court suggest that the interviewing panel recommended for appointment to the four positions of assistant commissioner the three third respondents and another police officer who was at the time also holding the rank of police superintendent. The police officer who is last referred to is not cited in the applicants motion for judicial review and we are therefore not concerned with him in these proceedings. The evidence before the Court suggests that the recommendations made by the interviewing panel for appointments as assistant commissioners were made to the Minister for Police Service and the Minister advised the Head of State to appoint the third respondents as assistant commissioners. The Head of Sate acted on that advice and appointed the third respondents accordingly. The mistake here is that the advice to the Head of State should have been made by Cabinet as required by the PSA Act 2002 rather than by the Minister. The mistake was rectified by subsequent warrants of appointment which show that each of the third respondents was appointed by the Head of State acting on the advice of Cabinet. I would infer from the material that was placed by counsel on both sides before the Court, that the advice which was given by Cabinet to the Head of State was based on the same recommendations for appointment as assistant commissioners which were made by the interviewing panel to the Minister and upon which the Minister had advised the Head of State even though such advice should have come from Cabinet.

Motion for review by applicants

The applicants by an amended motion for judicial review dated 28 May 2003 have sought to challenge the validity of the appointments of the third respondents as assistant commissioners. As the amended motion is framed, declaratory orders appear to be sought against the recommendations made by the interviewing panel for the appointment of the third respondents as assistant commissioners and the actual appointments of the third respondents made by the Head of State on the advice of Cabinet. As respondents to their motion, the applicants, by amendments made to their motion at the commencement of the hearing of these proceedings, have cited the Attorney-General in place of the Head of State as first respondent and have withdrawn the commissioner of police service as second respondent. The third respondents as cited in the original motion have remained unchanged. Even though it was the Head of State who made the appointments of the third respondents as assistant commissioners, His Highness was simply acting on the advice of Cabinet. It is, therefore, sufficient and necessary that the Attorney-General be cited as a party. By analogy see F.A.I. Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342 where Mason J (as he then was) stated at p372 that in the circumstances of that case, it was sufficient and necessary to cite the Attorney-General as a party and not the Governor of Victoria. See also the judgments given in the same case by Gibbs CJ at p355, Aickin J at p388 and by Brennan J (as he then was) at pp 419-420. As for the commissioner of police service who was originally cited as second respondent, that was withdrawn as it became more apparent that the initial recommendations for the appointment of the third respondents as assistant commissioners were made by the interviewing panel of which the commissioner was only one of the members, but not by the commissioner alone.

In essence then, the only decision which is being challenged by the applicants in their motion seeking declaratory orders is the decision made by the Head of State, on the advice of Cabinet, to appoint the third respondents as assistant commissioners. In effect, this means, as it is set out in the motion, that the warrants of appointment of the third respondents as assistant commissioners should be declared invalid. From the material placed by the applicants before the Court and the submissions of their counsel, the applicants rely exclusively on one ground in support of their motion. They say that the first of the criteria for selection provided in the job description that was advertised is at least ten years experience in a senior position within the police service but none of the third respondents satisfies that criterion as all three of them had not served in a senior position within the police service for ten years at the time of the advertisement or at the time their appointments as assistant commissioners were made. As the motion is restricted to this one ground, I will restrict any consideration of the motion to whether that one ground is valid or sufficient to have the appointments of the third respondents declared invalid. In doing so, I should mention that since the original motion for judicial review was filed, the first-named third respondent, Lorenese Neru, has been appointed commissioner of police service.

Relevant statutory provisions

Section 5A of the principal Act as amended by the PSA Act 2002 provides for the appointment, powers, duties and functions of assistant commissioners. Insofar as relevant for present purposes s5A provides:

“Appointment and powers of Assistant Commissioners-(1) The Head of State, acting on the advice of Cabinet, may appoint fit and proper persons to be Assistant Commissioners of the Police Service who, subject to the control of the Commissioner, shall have and may exercise such powers, duties and functions of the Commissioner as the Commissioner may from time to time, either generally or particularly, delegate to such Assistant Commissioners.

(2) On the occurrence from any cause of a vacancy in the office of the Commissioner (whether by reason of death, resignation or otherwise) or in the case of an absence from duty of the Commissioner (from whatever cause arising) and so long as such vacancy or absence continues an Assistant Commissioner nominated in writing by the Minister shall have and may exercise all the powers, duties and functions of the Commissioner.

(3) The fact that an Assistant Commissioner exercises any power, duty or function of the Commissioner shall be conclusive evidence of the person’s authority to do so.

(4) Every delegation under this section shall be in writing and shall be revocable at will, and no such delegation shall prevent the exercise of any power by the Commissioner.”

Section 5 of the principal Act which provides for the appointment and powers of the commissioner of police service, provides in s5(1) that the commissioner shall have the general administration and control of the police service and cause all members of the police service to discharge their duties satisfactorily and efficiently. Section 5(4) then provides:

“The Head of State shall not appoint any person to be the Commissioner of the Police Service unless such person has:

(a) Served in the Police Service for a period of not less than 10 years; and

(b) Held a rank not below that of a Commissioned Officer at the time immediately prior to the recommendation for appointment.”

There was dispute as to the meaning of the words “senior position within the police service” which are used in the job description that was advertised. I am satisfied from reading the Act that those words were intended to refer to the ranks of commissioned officer and not to the ranks of non-commissioned or subordinate officer. Section 2 of the principal Act defines a “commissioned officer” to mean an officer holding the rank of commissioner, assistant commissioner, superintendent, chief inspector or inspector. A “subordinate officer” is defined to mean an officer holding the rank of senior sergeant, sergeant, corporal, senior constable, constable or cadet. This distinction between a “commissioned officer” and a “subordinate officer” is maintained throughout the principal Act. It would not be appropriate to refer to the rank of subordinate officer as a senior position within the police service for the purpose of the job description for the rank of assistant commissioner. If that is done, then how would one refer to the rank of commissioned officer which is more senior than the rank of subordinate officer.

Issues

The only issue which is raised and relied upon in the applicants motion for judicial review is that, the first requirement of the selection criteria in the job description which was advertised for the positions of assistant commissioners requires at least ten years experience in a senior position within the police service. None of the third respondents satisfies that requirement. It is implicit, though not expressly stated in the motion, that the appointments of the third respondents by the Head of State on the advice of Cabinet are therefore invalid.

From the affidavit of the first-named applicant, it is clear that he has been a commissioned officer for thirteen years at the time he applied for the positions as advertised. So he satisfies the first requirement of the selection criteria. However, it is not clear from the affidavits of the second and third-named applicants whether they satisfy the same requirement when they applied for the advertised positions. It is also clear from the affidavit of the first-named applicant that the second-named third respondent has held the rank of commissioned officer for about three years and the third-named third respondent for about eight years. It is, however, not clear how long the first-named third respondent has held the rank of commissioned officer. But it is asserted in unmistakable terms that all the third respondents do not satisfy the ten years requirement in a senior position within the police service as provided in the job description. The first named third respondent does not dispute that assertion.

It would be necessary to examine and consider whether the ten years requirement in the job description is a valid requirement for appointment as an assistant commissioner. As it was submitted by counsel for the respondents, the requirements for appointment to the rank of assistant commissioner should not be more onerous than the requirements for appointment to the more senior position of commissioner.

Section 5A(1) of the principal Act, as amended by the PSA Act 2002, provides that the Head of State, acting on the advice of Cabinet, may appoint fit and proper persons to be assistant commissioners of the police service. Section 5A(1) then further provides that the assistant commissioners are subject to the control of the commissioner, and they shall have and may exercise such powers, duties or functions of the commissioner as the commissioner may from time to time delegate to them. Two points need to be noted here in relation to s5A(1). The first is that it makes no express or specific provisions for the length or level of experience within the police service that a police officer should have in order to be eligible for appointment as an assistant commissioner. All that s5A(1) says is that the Head of State acting on the advice of Cabinet, may appoint fit and proper persons to be assistant commissioners. The second point to be noted is that the powers to be exercised and the duties and functions to be performed by an assistant commissioner are those of the commissioner as the commissioner may delegate to him from time to time. An assistant commissioner does not have separate or independent powers, duties or functions of his own under s5A(1). It is the powers, duties and functions of the commissioner which are delegated to him that he has to exercise and perform.

If one then refers to s5 of the principal Act which provides for the appointment and powers of the commissioner, s5(1) provides that subject to subsection (4) of this section, the Head of State may from time to time appoint a fit and proper person to be the commissioner of the police service. Even though s5(1) does not provide for the Head of State to act on advice in appointing a commissioner of the police service, it is expected that His Highness would have to act on advice, presumably that of the Minister for the Police Service, because of the requirements of Article 26(1) of the Constitution. Section 5(4) to which the power of appointment provided in s5(1) is made subject, then provides that no person shall be appointed as commissioner unless such person has: (a) served in the police service for not less than ten years, and (b) held a rank of commissioned officer immediately prior to his being recommended for appointment. Thus a person who does not satisfy the requirements of s5(4) would not qualify for appointment as commissioner.

The anomaly which has arisen is that while the length and level of service required to qualify for appointment as commissioner is not less than ten years within the police service as provided in s5(4), the length and level of service required in the job description to qualify for appointment to the positions of assistant commissioners under s5A(1), which are lower in rank, is not less than ten years in a senior position within the police service. In other words, whilst the s5(4) requirement for appointment as commissioner is service for not less than ten years within the police service, which is not restricted to a senior position within the police service, the non-statutory requirement in the job description for appointment as assistant commissioner, which is lower in rank, is service for not less than ten years in a senior position within the police service, which in effect would mean ten years of service in a rank of commissioned officer. Furthermore, whilst the additional s5(4) requirement for appointment as commissioner is that a person need only hold a rank of commissioned officer immediately prior to his being recommended for appointment as commissioner, the non-statutory requirement in the job description for appointment as assistant commissioner is in effect that a person shall not have served for not less than ten years as a commissioned officer within the police service in order to be eligible for appointment to the position of assistant commissioner. All of this means that if the requirement for length and level of service within the police service as provided in the job description is accepted as valid, then such a requirement for appointment as assistant commissioner would be much more onerous than the corresponding requirement for appointment to the position of commissioner which is more senior in rank. This would seem rather odd. In my view, the legislature in enacting s5 and s5A could not have intended such an outcome.

If one would also turn to the powers, duties and functions of the position of assistant commissioner, it is clear that the powers, duties and functions of an assistant commissioner are those of the commissioner as may be delegated to him by the commissioner from time to time. This is clear from s5A(1). Thus if the legislature has decided to provide that a person to be appointed as commissioner should have served for not less than ten years within the police service and should have held the rank of a commissioned officer at the time of his appointment as commissioner, then the legislature could not have intended that a corresponding requirement for a person to be appointed as assistant commissioner to exercise the powers and perform the duties and functions of the commissioner as may be delegated to him should be more onerous. It follows that the non-statutory requirement in the job description upon which the applicants rely in their motion for review is not a requirement which was intended or contemplated by the legislature. It is therefore not a legally valid requirement for the position of assistant commissioner.

In case I am wrong in that view, I have decided to consider the motion for review on the basis that the requirement in the job description that an applicant for the position of assistant commissioner should have had at least ten years experience in a senior position within the police service is legally valid. Effectively, this means at least ten years experience as a commissioned officer. All of the third respondents do not satisfy such requirement. Counsel for the respondents, however, referred to the case of William Keil v Land Board et al (2000) (unreported judgment of the Supreme Court delivered on 21 December 2000) where this Court accepted the classification of the common law grounds for review into illegality, procedural impropriety or procedural fairness, and irrationality as formulated by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410; [1984] 3All ER 935, 950. A fourth possible common law ground for review mentioned by Lord Diplock is proportionality. The applicants in their motion for review and in the submissions made on their behalf do not refer or rely on any of those grounds. Their case proceeded exclusively on the basis that the appointments of the third respondents as assistant commissioners must be declared invalid because none of them satisfies the requirement in the job description of not less than ten years experience in a senior position within the police service. Consequently, counsel for the respondents submitted that the applicants have not established any of the common law grounds for judicial review so as to invalidate the appointments of the third respondents. In my view, there is real substance in this submission.

The onus is on an applicant for review to satisfy the Court that an executive or administrative decision has been tainted by illegality, procedural impropriety or irrationality and that the Court should exercise its discretion in his favour. This would necessarily include proof of the facts upon which the applicant relies to establish his ground or grounds of review. In CREEDNZ Inc v Governor General [1981] 1 NZLR 172, the plaintiffs made an application for judicial review of an Order in Council made by the Governor-General of New Zealand on the advice of Cabinet under the National Development Act 1979. One of the grounds upon which the plaintiffs challenged the validity of the Order in Council was that the responsible Ministers who comprised the Executive Council and the Cabinet did not take into account certain relevant considerations when they advised the Governor-General to make the Order in Council under the National Development Act 1979. Under the grounds for review formulated by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410; [1983] UKHL 6; [1984] 3 All ER 935, 950, the ground upon which the plaintiffs in that case relied in their application for review would come under the umbrella of illegality. At p183, Cooke J (as he then was) stated that the burden of proving the ground for review upon which the plaintiffs relied was on the plaintiffs. It was held by all three Judges in that case, namely, Cooke J, Richardson J (at p202) and McMullin J (at p211) that the plaintiffs had not proved or satisfied the Court that the responsible Ministers who comprised the Executive Council and the Cabinet did not take into account the relevant considerations alleged when they advised the Governor-General to make the Order in Council. The plaintiffs' application for judicial review was therefore dismissed. The same result should follow in the present case before this Court.

It has also to be pointed out that the one requirement in the job description on which the applicants rely in this case is not the only criterion for selection provided in the job description. There are seven other criteria for selection and two primary objectives for the appointment of assistant commissioners which also had to be considered in making a recommendation for appointments to the positions of assistant commissioners as advertised.

There is one argument which was presented by counsel for the respondents that I want to refer to because it raises important issues of judicial review even though I need not resolve those issues in this case in view of what I have decided should be the outcome of the applicants motion. Essentially, the argument by counsel for the respondents is that the selection criteria provided in the job description are not provided in s5A of the principal Act and therefore the candidates for the positions of assistant commissioners were not required by law to meet any of those selection criteria which includes the one selection criterion that the applicants rely upon in their motion. It was also argued that the selection criteria provided in the job description are not statutory requirements; s5A(1) only requires the Head of State, acting on the advice of Cabinet, to appoint “fit and proper persons” to be assistant commissioners. It follows that the selection criteria provided in the job description should not be binding or allowed to fetter the discretion of the Head of State, acting on the advice of Cabinet, to appoint “fit and proper persons” to be assistant commissioners. Counsel for the respondents cited the Australian cases of Hughes & Vale v New South Wales (No 2) (1955) 95 CLR 127, 156 – 157; and Siquenza v Secretary to the Department of Infrastructure (2002) VSC 46 on the meaning of the expression “fit and proper persons” as used in the statutes which were in issue in those cases.

The argument by counsel for the respondents touches upon some complex issues. In the first place the job description which was advertised for the positions of assistant commissioners must have been prepared by some government official. The applicants and other police officers applied on the basis of that job description. An interviewing panel was convened, presumably by the Government, to interview those persons who applied for the positions of assistant commissioners as set out in the job description. Interviews were held. The question which arises is whether the selection criteria provided in the job description can be ignored because they are not statutory requirements and that the particular criterion on which the applicants rely is in conflict with the intention of the legislature, or whether those selection criteria are still binding on the Government given that the job description must have been prepared by a government official and the applicants and other police officers had applied and were interviewed on the basis of those selection criteria as advertised. This kind of question is discussed in Judicial Review of Administrative Action (1995) 5th ed by de Smith, Woolf and Jowell at pp566-569 and in Principles of Judicial Review (1999) by the same learned authors at pp 468-471. As it will be seen from the discussion in those two texts, there are two opposing lines of authority. One line of authority seems to support the position which has been argued by counsel for the respondents whilst the other line of authority seems to be against it. There is also the question of whether the government official who prepared and advertised the job description can be described as an agent of the Government and, if so, whether his actions as agent would be binding on the Government as principal under the law of agency, in the circumstances of this case. These are important issues. I have decided to leave them for further consideration in another case as, on the motion by the applicants, they do not arise for decision in this case.

There is one final issue that I have to deal with. Remedies for judicial review are discretionary. Even if an applicant for judicial review has established the grounds for the remedy he is seeking, the Court in the exercise of its discretion may still not grant that remedy. One reason where the Court may not grant a remedy is where to do so would be futile or serve no purpose. In Principles of Judicial Review (1999) by de Smith, Woolf and Jowell, the learned authors state at p602:

“One of the most important characteristics of judicial review is that it is a practical procedure which does not readily provide a remedy just because someone has technically succeeded on an application. It will not provide a remedy if it will serve no purpose. Events can overtake proceedings. For example, a licence, the validity of which is challenged in the proceedings, may have expired by the hearing. Similarly an activity under challenge may have ceased before a remedy has been granted. Even a declaration may serve no purpose in those circumstances.”

In the New Zealand text of Judicial Review (1991) by GDS Taylor, it is stated at p59:

“If a Court considers that granting a remedy would achieve no purpose, it is slow to do so..... It may be that since the commencement of a proceedings events have occurred which have rendered the outcome of the case irrelevant”.

I would also refer to the case of Leota Leuluaialii Ituau Ale v Afamasaga Fatu Vaili (1995) (unreported judgment of the Court of Appeal) where the appellant had sought a declaratory order that his disqualification under s10 of the Electoral Act 1963 from holding his parliamentary seat was invalid. A by-election followed the appellant’s disqualification. Before his appeal was heard by the Court of Appeal, the appellant had won that by-election and was re-elected to Parliament. The Court of Appeal held that the issue in the appeal had become academic for events had overtaken the appeal. The appeal was accordingly dismissed.

It has already been mentioned that since the applicants filed their original motion for review seeking declaratory orders, the first named third respondent, Lorenese Neru, has been appointed commissioner for police service. He is no longer an assistant commissioner. So even if the applicants had succeeded in establishing the grounds for a declaratory order, it would be futile and serve no purpose to grant such an order against the appointment as assistant commissioner of the first-named third respondent. Events have overtaken the proceedings brought by the applicants against the appointment of the first-named third respondents as an assistant commissioner. The issue raised against him in the motion has become academic. On that basis, I would also refuse a declaratory order against the first-named third respondent.

For all the foregoing reasons, the applicants' motion for judicial review is dismissed.

CHIEF JUSTICE

Solicitors:
Fepuleai & Schuster Law Firm for applicants
Attorney General’s Office for first, second and third respondents