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 promotion.
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 1977.
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 argument:
- 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 decision).
- 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.