PR935265 PR935265 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.45 appeal against decision PR922852 issued by Drake SDP on 25 September 2002 Department of Defence (C2002/2273) s.170CE application for relief in respect of termination of employment Arends and Department of Defence (U2002/2395) JUSTICE MUNRO SENION DEPUTY PRESIDENT O' CALLAGHAN COMMISSIONER DEEGAN SYDNEY, 28 JULY 2003 Appeal; termination of employment; section s 170CE , 170CK, 170CD; jurisdiction; applicant a civilian engaged by Department of Defence as a Contract Health Provider at Royal Navy establishment; whether applicant a "Commonwealth Public Sector employee" or an "employee"; finding at first instance that applicant was employee at common law, engaged as ongoing Australian Public Service employee; not disputed on appeal that indicia of a contract of service outweighed the indicia of a contract for services; more extensive evidential material presented for determination of question of jurisdictional fact on appeal; applicant engaged under form of contract for services annexed to Defence Instructions (General) made under section 9A of Defence Act ; whether relationship was with a "Commonwealth authority"; or authorised under the Public Service Act 1999 ; or under a law of the Commonwealth; whether Commonwealth Agency capable of entering into a contract of service not referable to a specific statutory head of power to employ; authority to employ "term" and "exempt" employees under Public Service Act 1922 available but not used; no "engagement" as APS employee; authority to employ available under Naval Defence Act 1910 but not invoked; common law employment arose from authorised action under Defence Act; delegation of authority under legislation a matter singularly within knowledge of Department; no inference adverse to applicant to be drawn from failure to establish all delegations held by officers approving contracts; systemic use of contract for services as an alternative option to employment; contract of service fell within authorisations under Defence Act ; applicant an employee for purposes of jurisdiction relating to section 170CK; applicant also a Commonwealth Public Sector employee; leave to appeal granted; appeal dismissed; finding of jurisdiction confirmed. CONTENTS 1. Background: 2 2 2. leave to appeal: jurisdictional question: 5 5 3. the first three agreements for service with the defence health service signed by Mr Arends: 6 6 4. the defence health service regime for hiring auxilliary health support staff and the vexing issues of 1999: 11 11 5. the three agreements signed after 1999 and defence health service delegations: 15 15 6. the defence health service procurement process instructions for steering away from deemed common law employments: 20 20 7. The reasoning of the decision subject to appeal: 25 25 8. submissions on appeal: 27 27 8.1 The Department's submissions: 27 27 8.2 Mr Arends' submissions: 31 31 8.3 The CPSU's submissions as intervener: 34 34 9. conclusions and matter for Determination on appeal: 36 36 10. Statutory framework - workplace relations act 1996: 38 38 11. EMPLOYMENT UNDER the public service act 1999: 46 46 12. EMPLOYMENT UNDER another act or law of the commonwealth: 50 50 13. the naval defence act 1910-2001: 58 58 14. The defence act 1910-2002, the financial management and accountability act 1997 and related provisions: 62 62 15. Determination: 63 63 DECISION 1. BACKGROUND: [1] Mr Malcolm Arends (the Respondent) is a radiographer. For about eight years between 1994 and March 2002 he worked as a civilian health practitioner providing radiography services to HMAS Albatross Naval Base at Nowra. On expiry of a 12 month term contract made in March 2001, Mr Arends was not offered a further contract. Mr Arends made application under paragraph s 170CE (1)(b) and (c) of Part VIA of the Workplace Relations Act 1996 , (the Act) for relief against an alleged unfair termination of employment. [2] The submissions put to us by Mr P. Brady, solicitor, who appears by leave for Mr Arends, seem likely to be a fair paraphrase of the substance of the case to be argued on the merits: "Mr Arends was a 63 year old radiographer and had worked diligently for eight years. There were no complaints about his work. As far as he was concerned he was an employee being paid a wage and superannuation just like any other employee. Just two years shy of his retirement entitlement to long service leave his employment was terminated. No reason was given. He even had to ask whether he was still employed. Had the Navy followed Department of Defence guidelines, Mr Arends' contract would have been terminated after one year and that would have been the end of the matter. However, due to the Navy's negligence or inadvertence he was allowed to carry on working for another seven years. Eventually someone on the Base realised that Mr Arends was an employee and his entitlements were accumulating under the Public Service Act. The termination of his employment was the Commonwealth's way of avoiding their responsibilities and obligations under the Public Service Act." [3] The Department of Defence (the Department), moved for the dismissal of the application for want of jurisdiction. It did so on the ground that Mr Arends was not an employee within the meaning of the Act; and, in the alternative, that any employment relationship had ceased by operation of the contract on expiry, not by termination at the initiative of an employer. Drake SDP on 25 September 2002 dismissed the jurisdictional objections 1 . Her Honour found that Mr Arends was for all purposes an employee, that he was engaged as ongoing employee under section 22 of the Public Service Act 1999 , (the PS Act 1999), and that the relevant employment was not for a specified period of time. [4] This matter is an appeal, lodged on 16 October 2002 under section 45 of the Act against Drake SDP's decision. The appeal is brought against the dismissal of the Department's jurisdictional objections to the application for relief. [5] The appeal is brought on the sole ground that Mr Arends is not an employee for purposes of Part VIA of the Act. The predicate of the appeal is that employment in the Department under the PS Act 1999 is limited to "engagements" made under that Act. Mr Arends had not been so engaged. No other power to employ him was available or had been validly exercised. The Department asserts that Drake SDP's conclusion that Mr Arends was engaged as an "ongoing" employee under the PS Act 1999 was made in error. The appeal does not contest Drake SDP's finding that the indicia of an employment relationship at common law point to the existence of such a relationship arising from the contract and the services provided under it. [6] On 4 November 2002, the decision of Drake SDP was stayed by Munro J, who directed the Department to lodge written submissions in support of the appeal, together with: "a careful, comprehensive and accurate indication of the statutory and other regulatory basis for the engagement by the Commonwealth of Australia of the respondent, Mr Malcolm Arends, as Allied Health Professional or as a Practitioner, in context with the relevant laws and administrative practices applied from time to time to the engagement of employees and/or contractors for services to the Commonwealth, including so far as is practicable: the practice in relation to superannuation fund membership; responsibility for workers' compensation liability or contributions; taxation of payments for services; and any other indicia of employment or of the existence of a contract for services relevant to the determination of the questions of jurisdiction raised by the appeal." The Respondent was likewise directed to lodge submissions in opposition to the appeal. [7] The appeal was listed for hearing before a Full Bench on 26 November 2002. That hearing was vacated upon the joint application of the parties; a directions hearing before Munro J on 29 November 2002 was substituted. Following that hearing, the matter was re-listed for hearing before a Full Bench on 30 January 2003. The timetable for submissions was adjusted accordingly 2 . [8] In response to the direction originally issued on 4 November 2002, the Commission was supplied on or about 13 December 2002 with a supplementary appeal book, referred to as Volume Two 3 . It transpired that Volume Two of the Appeal Book incorporated new evidential material and miscellaneous material inadvertently omitted when the Appeal Book was first compiled and lodged. No objection was made to the tender of the additional material in Volume Two. [9] The matter was re-listed before Munro J on 24 January 2003 to allow the Respondent to cross-examine on any of the evidentiary material provided by the Department. The hearing was adjourned to provide the parties with time to resolve a number of evidentiary issues. It was agreed between the parties that no further hearing was necessary prior to the hearing before the Full Bench. Exigencies beyond the Commission's control caused the hearing to be delayed until 17 February 2003. [10] On 7 February 2003, Ms Mary-Ann Cooper, of the Community and Public Sector Union, (the CPSU), Legal Unit, wrote to the Commission, indicating that the union would seek leave to intervene pursuant to subsection 43(1) of the Act. A copy of the written submissions intended to be relied upon, (contingent on leave to intervene), was forwarded by the union to the Commission, and served on the parties to the appeal, on 14 February 2003. [11] The appeal was heard by the Full Bench on 17 February 2003. At that hearing, Mr R. F. Crow, of counsel, appeared by leave with Mr J. Heard, Australian Government Solicitor, and Ms K. Henley, Assistant Director Workplace Relations, in the Department of Defence, on behalf of the Department of Defence; Mr Brady, solicitor, appeared by leave for Mr Arends; Mr A. Rich was granted leave to intervene on behalf of the CPSU. Supplementary written submissions were lodged under leave reserved for a period that expired on 28 February 2003. 2. LEAVE TO APPEAL: JURISDICTIONAL QUESTION: [12] The jurisdictional question about Mr Arends' application raises issues that are likely to be of concern to other contract health providers engaged by the Department. In the decision subject to appeal, Drake SDP found inter alia that the engagement of Mr Arends, under a form of a contract for services, gave rise in law to an employment relationship. The appeal does not challenge her Honour's finding about the weight of the indicia of a contract of service. That concession is made without resiling from a contention that the Department at no time considered Mr Arends to be an employee. On appeal, the Department contends that a bare characterisation of the relationship that resulted from the contracts as a common law employment, does not go far enough. It maintains that any employment relationship would be outside the jurisdictional scope of the Act for the purposes of Part VIA. To be employment within the jurisdiction established under Part VIA of the Act, any such contractual employment relationship would need to be within any of three categories of engagement by the Commonwealth that are expressed in the Act. It was contended that Mr Arends was not. [13] For the purposes of ruling upon that contention, it becomes necessary to set out the form and circumstances of the instruments by which Mr Arends was engaged. We have interpolated several findings in our narration of that detail. The outline indicates also the source of authority and nature of the contracts entered into with Mr Arends. Having regard to the submissions on the appeal, alternative sources of authority for the Department to enter into an employment relationship must be examined. [14] We are satisfied that the matter of the appeal is of such importance that it is in the public interest that we grant leave to appeal. Accordingly leave is granted. In conformity with principles and requirements now well established, the determination of the appeal requires us to rule upon the jurisdictional fact in issue 4 . 3. THE FIRST THREE AGREEMENTS FOR SERVICE WITH THE DEFENCE HEALTH SERVICE SIGNED BY MR ARENDS: [15] Mr Arends applied for a position of C ontract Radiographer advertised by the Department of Defence as a vacancy for a contract Radiographer at the Naval Air Station Medical Centre Nowra for an initial period of 12 months . The advertisement invited applications from individuals or commercial companies to be made to the Medical Administration Officer at Nowra, and concluded: The Department of Defence is an Equal Employment Opportunity Employer . Mr Arends was engaged to fill the vacant position. In his work as a radiographer, Mr Arends worked at a Medical Centre exclusively servicing approximately 1,500 service personnel attached to the HMAS Albatross Nowra, in the State of New South Wales, for a period of just under eight years. During that period he signed six forms of agreements, or agreements, which we shall refer to generically as contracts 5 . The last four contracts were lodged with the Commission after the last day of hearing before Drake SDP. Those contracts were part of a bundle of documents presented as evidence by the Department in support of its written submissions to Drake SDP 6 . [16] Each of the contracts was made between the Commonwealth of Australia as a nominal party and Mr Arends. We find that the Commonwealth was the party with whom Mr Arends had a contractual relationship. The Commonwealth entered into that relationship through the execution of a form of agreement and accepting performance of services under the agreement and subsequent agreements. The agreement was the outcome of a process acceptable to an "approving officer" under delegation from the Director-General, Defence Health Service, presumably an officer of the Department. Each contract was signed on behalf of the Commonwealth by the Senior Medical Officer at HMAS Albatross, and witnessed by the Medical Administration Officer (MAO). That finding is most particular to the first and last of the contracts. However, subject to nomenclatural differences, we find directly or by inference that it applies to each of the following contracts: CONTRACTS Date of Signing Term/Date of Commencement Appeal Book Reference 1. 11/7/94 6/7/94 - 5/7/95 Vol 1 page 47 2. 20/6/95 6/7/95 - 5/7/96 Vol 2 page 322 3. 12/1/98 6/1/98 - 5/3/99 Vol 1 page 41 4. 18/2/99 5/3/99 - 4/3/00 Vol 1 page 33 5. 16/2/00 5/3/00 - 4/3/01 Vol 1 page 24 6. 15/3/01 5/3/01 - 4/3/02 Vol 1 page 15 [17] Drake SDP found, and we accept, that the dates of the contracts do not necessarily coincide with the date on which the contract was signed. Except for a gap of about 18 months from July 1996 to January 1998, between contracts 2 and 3, the nominal terms of the contracts were contiguous. Mr Crow indicated that he could make no submission as to the reason for that gap, or draw any inference from it. [18] As noted, the first contract was made and dated 11 July 1994 7 . The upper left hand corner appears to be a form template notation: "Reference: Annex A to DI(G) ADMIN 24-1 (Navy Admin 40-1)". The agreement was expressed to operate for a term of 12 months from 6 July 1994 to 5 July 1995. However, under another clause the agreement was terminable at any time by either party giving two weeks notice. The Commonwealth could also terminate the agreement forthwith in the event that the Commanding Officer or the Senior Health Services Officer was satisfied about one of a number of grounds. Serious misconduct or disobedience of a reasonable direction were among such grounds for summary termination of the agreement 8 . [19] Under the contract, Mr Arends, designated "the Practitioner", undertook to provide radiographic services to members of the Defence Force and entitled civilians as requested, in accordance with his clinical judgment not subject to direction by the Commonwealth as to the manner in which treatment is provided . The contract covered 233 "salaried" days over the term, and designated a period of four weeks (20 days) unpaid leave. Part C of the Preamble to the agreement stated that: "at the request of the Commonwealth, the Practitioner has agreed to provide services to members of the Defence Force and entitled civilians upon the terms and conditions hereinafter provided; ..." [20] Clause 5 was titled Insurance and Indemnity; it read: "5.1 The parties agree and declare that during the term of this agreement the Practitioner will be an independent contractor for the Commonwealth and will not be regarded for any purposes as being in the Service or employ of the Commonwealth. 5.2 The practitioner agrees to effect and maintain, for the term of this agreement, a professional negligence policy in the case of medical and dental practitioners of a medical defence organisation and, in the case of nursing practitioners and allied health practitioners, an appropriate professional insurance cover, acceptable to the Commonwealth indemnifying the Practitioner against liability arising out of the performance of contract services. 5.3 (Production of evidence of compliance with subclause 5.2). ... 5.4 The Practitioner shall indemnify and keep indemnified the Commonwealth from and against any claim, demand, action, suit or proceeding that may be made or brought by any personal injury to or the death of any person or loss of or damage to any property or any other loss or damage arising out of or as a consequence of an unlawful or negligent act or omission of the Practitioner in the performance of services or arising out of or connected with that performance and also from any costs and expenses that may be incurred with any such claim, demand, action suit or proceeding." 9 "Contract services" was defined in clause 1.1 to mean a service which the Practitioner may be required to provide pursuant to the agreement, except where a contrary intention appears or the context otherwise requires. [21] Subclause 6.1 relevantly provided that the Commonwealth shall, so far as practicable, provide all ancillary medical, dental, nursing and clerical assistance, facilities, textbooks, instruments and equipment necessary for the proper performance of the contract services. [22] Clause 8, headed Place of Duty required the Practitioner to provide the contract services at HMAS ALBATROSS or at such other place as the Senior Health Services Officer or the Commanding Officer might reasonably request. Clause 9.1, Hours of Duty , required attendance during hours specified; 7.5 hours Monday to Thursday, four hours Friday, with further on call requirements. Clause 9.2 required that: "The Practitioner shall provide the contract services on days and during hours other than those specified in sub-clause 9.1 upon the reasonable request of the Commanding Officer or the Senior Health Services Officer." Clause 9.3 required the Practitioner to keep a record of attendance. [23] Clause 13, Governing Law , provided that the agreement " shall be governed by and construed in accordance with the laws in force in the place where the contract services are to be provided ". We note that should the construction of that clause or later versions of it become an issue, some nice questions may arise. We doubt that the determination of the jurisdictional point raised on the appeal is to be resolved by any particular term of the agreements signed by Mr Arends. However, the governing law provision might be variously construed. It could mean the laws in force in HMAS Albatross which presumably as a place, is Commonwealth territory; or possibly the laws in force in New South Wales. [24] Remuneration and travel allowance entitlements were provided for under clause 7.1 and Annex B specifying an hourly rate for services and stipulated on call periods. Finally, paragraph 2, Travelling Allowance , of Annex A provided that the Practitioner may be paid Travelling Allowance in accordance with normal Public Service conditions . No provision was made for paid leave. We draw the inference that the basic remuneration package was framed to cover about 233 working days with 20 days unpaid leave. [25] The second contract was produced by the Department in response to the Directions given on the appeal 10 . It was not part of the evidence before Drake SDP. It was dated 20 June 1995. It operated for a period commencing on 6 July 1995 and ending on 5 July 1996. Unlike the first contract, that term was subject to an option to review: it may, if both parties agree, be renewed at the end of that period . [26] Clause 5 of the second contract provided for insurance and indemnity in substantially the same terms as detailed at [20] in relation to the first contract. [27] Clause 7, Remuneration , provided that: "7.1 The Commonwealth shall pay to the Practitioner remuneration for contract services provided at the rate and in the manner provided in Annex B to this agreement. 7.2 The Commonwealth will not deduct income tax instalments from the practitioner's salary, nor issue a Group Certificate." The evidential material produced on the appeal includes a longhand note, apparently signed by Mr Arends, indicating that on 12 December 1995 he had decided to accept the Australian Retirement Fund for his proposed superannuation contributions. In fact, Mr Arends' superannuation contributions were paid to the Australian Government Employees Superannuation Trust Fund (AGEST). Another longhand note, dated 4 July 1996, addressed to the Commanding Officer, Albatross, requested that consideration be given to an increase in Mr Arends' contract hourly rates. It mentioned that the rate had not increased from the rate negotiated at commencement on 6 July 1994: $25. There is no evidence as to any response to that letter. [28] No form of contract was produced to cover the period of 18 months that followed before the third contract commenced. We draw the inference that the contract, if not expressly renewed, was treated as carried over, subject to the outcome from a negotiation about contract hourly rates. At July 1996, Mr Arends had completed two years service. He had completed at least 3.5 years service before the date of his next contract. If it were necessary for us to assess the indicia for an employment relationship, we would accept that the considerations eventually relied upon by Mr Arends grew to determinative weight over the third year of his employment. It is not necessary in the circumstances of this appeal to give particulars relevant to those indicia. The circumstances are sufficiently outlined at [64] and [99] - [103] below. It is sufficient for present purposes to note that Mr Arends' case was that in his service he was indistinguishable from an employed person placed in control of the Radiography Department of the base health service, subject to a duty statement and direction and treated as an acknowledged employee. [29] Eighteen months elapsed between the expiry of the second contract and the commencement of the third contract. The third contract, dated 12 January 1998, covered a period of 14 months from 6 January 1998 to 5 March 1999. It contains no reference to an option to review 11 . Among other departures from the earlier form of agreement was a revised clause 1 - Interpretation. It appears to have imported the whole of DI(G) ADMIN 24-1 as an integral part of the agreement, although the agreement was expressed to prevail in the event of any inconsistency. Under clause 3, termination of the contract was to be guided by Defence Purchasing Standard 24 and also paragraph 16 of DI(G) ADMIN 24-1: to be by convenience or default . " Default " seems to have meant much the same as summary termination for cause; and convenience allowed termination on three months notice by either party 12 . [30] The remuneration arrangement followed the earlier models: an Appendix set out a "base salary" calculation around an hourly rate of $32.50, a weekly salary of $1,202.00, and an unpaid (three-week) leave period. [31] Clause 6, Insurance and Indemnity , was not significantly different from the version that appeared in earlier agreements. The declaration of independent contractor relationship was again linked with indemnification of the Commonwealth and an obligation on the practitioner to take out professional insurance. So far as relevant it read: "6.1 The parties agree and declare that during the term of this agreement the Practitioner will be an independent contractor of the Commonwealth and will not be regarded for any purposes, other than superannuation provisions detailed in the Superannuation Guarantee (Administration) Act 1992, as being in the service or employ of the Commonwealth. 6.2 The Practitioner agrees to obtain appropriate professional indemnity cover, acceptable to the Commonwealth, indemnify the Practitioner against liability arising out of the performance of the contract services in accordance with the provisions of paragraph 12 of DI(G) ADMIN 24-1. ..." [32] Subclause 8.6 required the Commonwealth to make superannuation payments in accordance with the provisions of paragraphs 20 and 21 of DI(G) ADMIN 24-1. 4. THE DEFENCE HEALTH SERVICE REGIME FOR HIRING AUXILLIARY HEALTH SUPPORT STAFF AND THE VEXING ISSUES OF 1999: [33] References to "DI(G) ADMIN 24-1" appear in different contexts in each of the first three contracts. By the third contract, the reference may be taken to be intended as an actual incorporation, or tantamount to an incorporation by reference. However, so far as the evidence before us discloses, no such document was physically appended to the third contract. We accept that in all instances, the reference was to a document entitled Defence Instructions (General) Administration 24-1, as amended at the date of the contract 13 . [34] DI(G) ADMIN 24-1 is the source of the authority by which the Department says the contracts with Mr Arends were made. Each of the agreements made with Mr Arends corresponds broadly with a template form annexed to the version of the relevant DI(G) ADMIN 24-1 in force at the time 14 . It appears from the material now available to us that the DI(G) ADMIN 24-1 was amended on 28 April 1989 to incorporate a complete revision; and again on 20 September 1991. The version known as Amendment 8 issued on 3 August 1992 was in force at the time Mr Arends' first, second and third agreements were signed. Amendment 9 was issued on 29 January 1999, incorporating a complete revision; Amendment 10 was issued on 31 January 2000; and, Amendment 11 on 21 June 2001. Most of the changes made between versions of the DI(G) ADMIN 24-1 template agreement are reflected in corresponding changes to the terms of the agreements adopted by the parties. [35] The evidential material before the Full Bench on appeal included the full text of a memorandum not presented in entire form to Drake SDP. It concerned Amendment 9 and the January 1999 revision of the DI(G) form of agreement. The memorandum dated 11 May 1999 was from Lieutenant Commander Jeanette McCrow, the Manager, Medical Services at Balmoral Naval Hospital. It was addressed to senior naval health service commanders and copied to affected contract health practitioners, including it appears Mr Arends although his name is not listed. After referring to the amended DI(G) ADMIN 24-1 issued on 29 January 1999, 15 Lt. Cdr. McCrow noted: "... The revision states that CHPs can no longer be employed on contract if they have a high degree of `integration' with the organisation and therefore could be viewed as `common law employees'. All of our CHPs would fall into this category. We are to uphold current contracts but when these are to be renewed our options are as follows: 1. contract with partnerships or incorporated companies - the CHPs would need to organise such structures so that they could be employed 2. use third party or labour hire companies - locum groups and agency staffing 3. employ individuals under the temporary staffing provisions of the Public Service Act Any of these options will impact on you. Col Ramsey (DJHSA) asked us to provide him with an impact statement as to how this would affect the AHS and he wants this pronto. He is hoping to get these requirements changed. I am drafting a response and want feedback from you ASAP. ... To W.O. James Could you forward this to ... and any other CHPs who may be affected." 16 [36] A Minute attached to that memorandum was in relation to the same revision. The Commander of Balmoral Naval Hospital, and Medical Officer in Charge, Commander Loxton wrote to the Joint Health Services Agency on 27 April 1999: "1. The revision to defence contracting arrangements for CHPs will significantly impact on BNH and SCAHS in three main areas: quality of service provided; cost; and ability to attract and maintain CHPs. 2. With serious and long term manning shortages (vacant billets) BNH has been forced to increasingly utilise CHPs to maintain it's level of service provision. At present there is a 33% shortfall in Medical Officers, a 25% shortfall in Nursing Officers, a 75% shortfall in Medical Administration Officers and a 53% shortfall in Medics. Shortfalls in the first three categories are likely to remain fairly static however the shortfall in medics is expected to increase unremittently. ... As an interim measure we have been using agency staff but had planned to advertise and fill contract positions as we believe there are very tangible quality assurance issues involved with the use of significant numbers of casual staff. An overriding principle of any quality assurance program is that it must be owned by the employees who have a sense of commitment to the organisation and it's objectives. No manner nor volume of protocols can overcome the disconnectivity of staff and organisation. Despite a thorough revision of our protocols and orientation for agency staff there are constant communication errors and a lack of adherence to protocols on behalf on the agency staff since we introduced these changes. ... 4. It will be difficult to attract and retain CHPs under these revised arrangements. This is especially so for Medical Officers. In the SCAHS there are 7 full-time equivalent medical officer positions currently held by CHPs some having been in our employ for numerous years. These would be considered as common law employees according to Ref B and therefore could not be re-employed at the expiration of the current contracts. The only options for these medical officers is to incorporate or to agree to temporary staffing arrangements under the Public Service Act provisions. Both options incur a financial penalty on behalf of the CHP. Retention of current CHPs and attraction of future CHPs is seriously impeded by these constraints." 17 [37] The relevant DI(G) requirement, extracted from Amendment 9 of DI(G) ADMIN 24-1, reads: "2. The contractual arrangements described in this Instruction only apply to situations where the contract is to be a contract for services rendered. It would not be appropriate to use these arrangements where the practitioner will be subject to control by, or integration into, the Department to the extent that they could reasonably be deemed to be the Department's common law employee. The indicators of common law employment are outlined in Defence Reference Book (DRH) 3 - Policy and Guidance on Contracting for Consultancy and Professional Services . The occupations in which this level of control and integration is more likely to occur are civilian registered and enrolled nurses, medical assistants, dental assistants and administrative support staff. Where the need exists for a practitioner from one of these groups, contracts can be made with partnerships or incorporated companies. They can also be made with labour hire firms, but must be made in such a way that control of the individual contractor rests in the hands of the external agency. Another option, for periods of less than six months, may be the hiring of temporary staff under the Public Service Act 1922 provisions. Notwithstanding the above, existing contracts with individual contractors who may fall into this category are to be honoured ( see paragraph 32. for further detail) and in extreme circumstances may be extended for short periods until new arrangements can be put in place. ... 32. Transitional arrangements . Existing contracts are to be honoured until they expire. In circumstances where a contract is renewed, in accordance with subparagraph 10.g., a non-reduction provision is to apply. Existing on call and call out arrangements will continue to apply to the end of current contracts after which the provisions of this instruction will apply." 18 [38] From other correspondence included in the evidential material, it appears that a number of officers responsible for hiring auxiliary health support staff voiced concerns about the cost and practicality of the arrangement proposed in the revision of DI(G) ADMIN 24-1, and sought guidance on the "vexing issue" 19 . [39] In a letter to the Director of Policy, Defence Workplace Relations dated 12 December 2002, the Director General of Defence Health Service, Air Commodore Austin, referred to LC Dr McCrow's initiative in May 1999. He acknowledged that the employment status of CHPs had been the subject of some debate for some considerable time , and that a variety of views had been canvassed about the impact of possible use of labour hire firms or staffing under the Public Service Act . He concluded: "3. No consensus was achieved on changes to existing arrangements for the engagement of CHPS. In the event, amendments were made to Defence Instruction (General) ADMIN 24-1 Amendment No. 10 issued on 31 January 2000. Further amendments have since been incorporated into DI(G) ADMIN 24-1 Amendment No. 11 that was issued on 21 June 2001." 20 5. THE THREE AGREEMENTS SIGNED AFTER 1999 AND DEFENCE HEALTH SERVICE DELEGATIONS: [40] Mr Arends' third contract expired on 5 March 1999. We draw the inference from the content of Lt. Cdr. McCrow's email, and from the evidence of Mr Arends, that he was made aware of at least the content of Mr McCrow's email memorandum. A fourth contract, dated 18 February 1999, covered a term of 12 months from 5 March 1999 21 . It would appear that negotiation of it had not been distracted by the revised DI(G) stipulation about inappropriateness of using contracts for services in circumstances where the practitioners would be subject to control by, or integration into Defence, to the extent that they could reasonably be deemed to be the Department's common law employee. [41] However, the fourth contract contained several alterations from the preceding templates. All of the alterations reflect revisions incorporated in the template agreement at Annex B to Amendment 9 of DI(G) ADMIN 24-1: 22 DI(G) ADMIN 24-1 was no longer incorporated by reference; the antecedent undertaking for the Practitioner to provide such medical services to the Defence Force as requested no longer appeared. A substituted clause 3, Contract Services , was in the following terms: "3.1 The CHP agrees to provide Contract Services to the Defence Force within the range of CHP's professional qualifications. 3.2 During the term of the Agreement the CHP shall treat such patients as are placed in the CHP's care in accordance with the CHP's clinical judgment, consistent with accepted standards of practice and ADF policy. 3.3 The Contract Services to be provided under this Agreement shall also include, when so required by the Commanding Officer or Approving Officer, those services specified in Schedule 1." [42] Clause 4, headed Negation of Employment , was a separate stipulation, no longer linked with professional indemnity insurance. It read: "4.1 The CHP shall not by virtue of the Agreement be deemed for any purpose to be or become an employee or in the service of the Commonwealth." [43] In relation to indemnity insurance, clause 6 required the CHP at all times to indemnify the Commonwealth in respect of any losses, damages, compensation or expenses (including those incurred in any settlement), arising from any action, claim, demand or suit by Contract Health Professional (CHP). Clause 7.1 required the CHP to effect and maintain professional indemnity insurance, indemnifying the CHP against liability arising out of the performance of the Contract Services. [44] Other revisions or changed requirements of the fourth contract were that: the CHP "effect and maintain worker's compensation insurance for injury (including death, incapacity or impairment) arising out of the performance of the Contract Services" 23 ; no fee be payable to the CHP in respect of a period of absence; intellectual property in the CHP's services and records be owned by and vested in the Commonwealth 24 ; subcontracting be allowable, but only on the conditions: "21.1 The CHP shall not, without the Commonwealth's prior written approval, sub-contract the performance of any part of the Contract Services. In giving written approval, the Commonwealth may impose such terms and conditions as the Commonwealth thinks fit. 21.2 The CHP shall be fully responsible for the performance of the contract Services notwithstanding that the CHP has sub-contracted the performance of a part of the Contract Services." [45] Clause 22 introduced an entire agreement clause in the following terms: "22.1 This Agreement constitutes the entire agreement between the Parties and supersedes all communications, negotiations, arrangements and agreements, whether oral or written between the Parties with respect to the subject matter of the Agreement." [46] In an affidavit dated February 2003 lodged as part of the additional evidence made available on the appeal, Commander Neil Westphalen, Royal Australian Navy, stated that he had been at relevant times Senior Medical Officer at the Medical Centre HMAS Albatross. He had signed, on behalf of the Commonwealth, each of the first four contracts with Mr Malcolm Arends, respectively on or about: · 11 July 1994, entitled "Form of Agreement"; · 20 June 1995, entitled "Form of Agreement"; · 12 January 1998, entitled "Agreement for Engagement of Contract Health Practitioner"; and · 18 February 1999, entitled "Agreement for Engagement of Contract Health Practitioner". [47] Commander Westphalen further stated that during his tenure at HMAS Albatross, he did not at any time hold a delegation to engage employees of the Commonwealth pursuant to the Public Service Act 1999, the Public Service Act 1922 (PS Act 1922), or any other Act. Commander Westphalen stated that he did not believe that he was engaging Mr Arends as an employee of the Commonwealth, or that he was continuing any employment created at an earlier time. Commander Westphalen was not required for cross-examination. No elaboration upon what, if any, delegations he did hold was provided directly by him. We deal later with the available evidence about delegations held in 2001 by Commander Thomas. We draw the inference that Commander Westphalen held similar delegations. [48] The fifth contract, dated 16 February 2000, covered a period of 12 months from 5 March 2000 25 . It was alike in form and substance to its immediate predecessor apart from an increase in the hourly rate from $33.50 to $35. At that time, Amendment 10 of DI(G) ADMIN 24-1 was in operation. However, the fifth contract appears to have followed the template of the preceding Amendment. The sixth contract, dated 15 March 2001, expressed to operate for a period of 12 months from 5 March 2001, did not depart in any material respect from its two immediate predecessors, although it adopted minor template changes associated with Amendment 11 of DI(G) ADMIN 24-1 26 . [49] The fifth and the sixth contracts, entitled "Agreement for Engagement of Contract Health Practitioner" and "Agreement for Engagement of Allied Health Professional" respectively, were signed, on behalf of the Commonwealth, by Commander Dale Leonard Thomas, Royal Australian Navy, Senior Medical Officer, of Medical Centre, HMAS Albatross, Nowra. Evidence was given before Drake SDP about the sixth contract. Mr Robert Bryant was the Medical Administration Officer (MAO), having been appointed to that position early in 2000. He witnessed the signatures to that contract in March 2001. His duties gave him responsibility for civilian management, contract and finance management. He stated his functions included contracting of medical services. He "negotiated" the contract with Mr Arends who, indirectly, reported to him. Commander Thomas gave evidence that he held no delegation to engage employees of the Commonwealth pursuant to the PS Act 1999, and did not believe he was engaging Mr Arends as an employee, or that he was continuing any employment created at an earlier time 27 . [50] Some evidence was later presented to the Full Bench by Mr Crow, responding in part to a question from us 28 . From that material, it appears that, in the capacity of Medical Officer, Naval Program, Commander Thomas held job position numbered 21529. The holder of that position had actual authority under the Financial Management and Accountability Act 1997 , (the FMA Act), operating in conjunction with the Defence Act 1910 29 . The authority disclosed was to incur and sign liabilities and expenses (Liability Approver); to propose approval of certain expenditure; to approve a proposal to spend public monies (Proposal Approver); and to decide on the method of procurement of goods and services (Procurement Approver) 30 . No evidence was led to identify Mr Bryant's position within the list of delegates. We note that he, and one of his apparent predecessors as MAO, Lieutenant Zoe Read, may also have had corresponding delegations in respect of the MAO position 26045, listed as having the same delegations as position 21529. [51] We are further informed about the authority held by Commander Thomas from two sources. Amendment 10 of Defence Health Policy Direction No. 906 (DHPD 906) is one of them. A flawed photocopy of the Directions dated 10 January 2001 is included in the further evidence presented on the appeal 31 . It is an instruction issued by the Director General of the Defence Health Service about the Defence framework for procurement of goods and services. It states: "When undertaking any form of procurement there are three delegations that must be exercised, and only by duly delegated officials. These are: · Proposal Approver. The delegation that approves a proposal to spend public moneys and is usually the first step in the procurement process. · Procurement Approver. The delegation that approves the method of procurement. This approval may be performed well in advance through Standing Offers and pre-contracted procurement arrangements. · Liability Approver. The delegation that approves the procurement and binds the Commonwealth to making a payment of public money." 32 [52] The source of statutory authority of those delegated powers is referred to in both DHPD 906 and in the Manual of Finance Delegations in DRB 47, extracts of which were presented at Exhibits COM 6, 7, and 8. As noted, the delegations are given under sections 44 and 53 of the FMA Act. Those sections so far as relevant read: " 44 Promoting efficient, effective and ethical use of Commonwealth resources (1) A Chief Executive must manage the affairs of the Agency in a way that promotes proper use of the Commonwealth resources for which the Chief Executive is responsible. (2) If compliance with the requirements of the regulations, Finance Minister's Orders, Special Instructions or any other law would hinder or prevent the proper use of those resources, the Chief Executive must manage so as to promote proper use of those resources to the greatest extent practicable while complying with those requirements. (3) In this section: proper use means efficient, effective and ethical use. 53 Chief Executive may delegate powers (1) A Chief Executive may, by written instrument, delegate any of the following powers and functions to an official in any Agency: (a) the Chief Executive's powers or functions under this Act (including powers or functions that have been delegated to the Chief Executive under section 62) 33 ; (b) the Chief Executive's power to give instructions under regulations referred to in section 52 34 . (1A) If the Chief Executive delegates to a person (the second delegate ) a power or function that has been delegated to the Chief Executive under section 62, then that power or function, when exercised or performed by the second delegate, is taken for the purposes of this Act to have been exercised or performed by the Finance Minister. (2) In exercising powers or functions under the delegation, the official must comply with any directions of the Chief Executive." [53] We were not taken to those provisions by Mr Crow. We note that reference is made in DHPD 906 to FMA Regulations 7-10 and 13. The delegation held by Commander Thomas refers to Financial Management and Accountability Regulation 9. That provision reads: " Approval of spending proposals - principles (1) An approver must not approve a proposal to spend public money (including a notional payment within the meaning of section 6 of the Act) unless the approver is satisfied, after making such inquiries as are reasonable, that the proposed expenditure: (a) is in accordance with the policies of the Commonwealth; and (b) will make efficient and effective use of the public money; and (c) if the proposal is one to spend special public money, is consistent with the terms under which the money is held by the Commonwealth. (2) Subregulation (1) does not apply to a proposal by an intelligence or security agency to spend operational money within the meaning of section 5 of the Act as modified in accordance with Schedule 2." [54] The other Regulations mentioned cover procurement guidelines best practice, the principles for approving expenditure proposals, and entry into contracts. Effectively, the DI(G) ADMIN 24-1 and related directions reflect the substance. However, one point should not escape notice. The powers delegated are cast in general terms. The wording imports, especially in the case of section 44 of the FMA Act, reference to a set of values. The power might be thought to leave room for a width of discretion to be exercised in achieving balance between efficient, effective and ethical use. 6. THE DEFENCE HEALTH SERVICE PROCUREMENT PROCESS INSTRUCTIONS FOR STEERING AWAY FROM DEEMED COMMON LAW EMPLOYMENTS: [55] As at 21 June 2001, Amendment 11 of DI(G) Admin 24-1 relevantly provided that a CHP " is normally engaged to provide professional health services in a Defence establishment when a uniformed health practitioner is not available and a vacancy exists within the unit establishment. Such an arrangement normally involves a regular schedule " 35 . Paragraph 2 of the Introduction to that version of DI(G) ADMIN 24-1 is a truncation of the note that excited Lt. Cdr. McGrow's attention in 1999, and which was retained in Amendment 10 of the Instruction. The full text appears at [37] above. The substance is similar: "The contractual arrangements described in this instruction only apply to situations where the contract is to be a contract for services rendered. It would not be appropriate to use these arrangements where the practitioner will be subject to control by, or integration into, the Defence to the extent that they could reasonably be deemed to be the Department's common law employee. The indicators of common law employment are outlined in Defence Reference Book 3 (DRB3) Policy and Guidance on Contracting for Consultancy and Professional Services." [56] The DI(G) ADMIN 24-1 text under the heading Contract arrangements and conditions relevantly provides: "12. Professional Indemnity. The health practitioner must agree to effect and maintain appropriate professional indemnity cover for the term of the agreement. Evidence of professional indemnity cover must be provided to the SHO [Senior Health Officer]/approving officer before a contract is signed and must include the period of the contract reached as to its renewal. 13. Income Protection Insurance and Workers Compensation. At no time is the health practitioner an employee of the Commonwealth. If the health practitioner is an individual, they must take out appropriate insurance to provide protection against loss of income caused by injury, illness or death sustained whilst providing contract services. Where a company is the contracting party, the appropriate workers' compensation insurance as required by the relevant State or Territory law must be effected. If required by the Commonwealth evidence of insurance is to be provided. Hourly rates incorporate provision for such insurance. 14. Duration and renewal. Each contract will be for a specific duration as negotiated between the civilian health practitioner and the approving officer to meet ADF [Australian Defence Force] needs. Contracts are normally to be for a term of up to 12 months duration. Where circumstances are such that contractual arrangements may initially need to exceed 12 months in duration, the contract can be renewed to a total term of two years. Contracts of 12 months or less may be renewed once, if circumstances and the performance of the CHP/SCP [Sessional contract practitioner] permit, otherwise contracts should be re-tendered. Where exceptional circumstances warrant exceeding these provisions, written approval is to be obtained from the DJHSA [Director Joint Health Support Agency]. 15. Format of Contract. The format of a contract for a CHP is in Annex B. ... ... 17. Confidentiality of Medical Records. ... 18. Termination of Contract. The termination of any contract is guided by Defence Purchasing Standard 24. Grounds for termination of the contract are set out in the contract itself. 19. Invoice/tax invoice. While all Defence suppliers of health services are encouraged to submit tax invoices, contract health practitioners are required to submit, with each claim for payment, a valid invoice. A valid invoice is to contain the name of the contractor, the address to which the supplier wants the remittance to be sent, a unique invoice number, a description and price of the goods/services provided and the total amount owed. All invoices charging Goods and Service Tax (GST) must comply with the requirements of a valid tax invoice, as set out in the Defence Tax Manual (DTM), (to be issued) paragraph 1.6. ... 23. Pay as you go (PAYG) taxation. PAYG tax encapsulates a number of taxes other than GST and Fringe Benefits Tax. It includes both a `Voluntary Agreement' and `Withholding Tax'. a. Voluntary Agreement. Should a contractor be an individual, have an ABN and not be subject to any other PAYG arrangement, they may approach the Department for a Voluntary Agreement. The percentage rate of PAYG or withholding amount, known as the Commission's Instalment rate, will be calculated by the ATO. An ATO form, entitled `A Voluntary Agreement for PAYG Withholding' can be obtained from the ATO. b. Withholding Tax. This is an involuntary deduction. In circumstances where a contractor supplies no ABN, then 48.5 per cent of the net total of the invoice is to be remitted to the ATO on their behalf. ... 25. Superannuation Guarantee. The terms of the Superannuation Guarantee Administration Act 1992 and the Superannuation (Productivity Benefit) Act 1988 (S(PB) Act) apply to persons who work under a contract that is wholly or principally for the labour of the person. The legislation therefore applies to individual practitioners who enter into CHP or SCP standard form contracts whereas it will not apply to contracts entered with incorporated provider companies. Accordingly, all CHP and SCP contracted as individuals are to be paid Superannuation Guarantee payments under the S(PB) Act in accordance with details in Department of Finance Superannuation Circular No 32. These payments are additional to the scheduled rates (see paragraph 4.n. of this instruction). 26. Submission of contract proposal. When agreement has been reached with a suitable civilian health practitioner about place, nature and hours of duty, and length of engagement and remuneration, the requesting unit is to raise a purchase order - and attach a contract form (completed except for signatures) for forwarding to the Approving Officer for approval." 36 [57] The passages quoted do not speak contemporaneously with the execution of the sixth and last contract. The corresponding guidance in Amendment 10 is in much the same terms although it also contained a requirement for the CHP and an approving officer to maintain and certify a written attendance record. The substance of the policies set out is reflected in the covenants and practical requirements of the sixth contract and several of its antecedents. We draw the inference that Lieutenant Thomas, or Lieutenant Bryant, approved, and that Lieutenant Thomas executed the sixth contract on behalf of the Department and the Commonwealth. The approving officer intended that the agreement be made in conformity with the DI(G) directions. There is nothing to indicate in the contract or otherwise that the officer failed to give effect to that intention. [58] None the less, that finding does not illuminate each stage of the 3-stage approval process implicit in the delegations held by Lieutenant Thomas and presumably exercised by him, Lieutenant Bryant, or an officer senior to them. We have described at [46] to [54] above, the delegations known to be held by Commander Thomas and related them to that process and the statutory authorisations that underlie the procurement of goods and services for the Defence Health Service. [59] The versions of DI(G) ADMIN 24-1 in force in January 2000 and June 2001, make reference to a document known as DRB3, which stands for Defence Reference Book 3. In Mr Crow's submission, a document known as DEFPUR 301 is the current equivalent of DRB3. DEFPUR 301 provides a Guide to Contracting for Consultancy and Professional Services. The Guide, extant since 1996, is reproduced in the Appeal Book 37 . It is intended as the basic reference guide to assist purchasing officers involved in the procurement of consultancy and professional services . Among topics on which guidance is given are: · Commonwealth Purchasing Policies and Principles; · The difference between a Consultancy and a Professional Service; · The Employer/Employee relationship; · Hiring a Consultant or a Professional Service Provider (PSP) · Using DEFPUR 301 Consultancy/Professional Services Proforma; · Important Contractual Issues; and · Managing the Consultancy/Professional Services Contract. [60] The section of the Guide related to the employer/employee relationship seeks to emphasise the need for purchasing officers to be aware of the consequences that may ensue when an employer/employee relationship is created between the Commonwealth (Defence) and the service provider. The text repeats advisory instructions incorporated by reference in amendments 9 and 10 of DI(G) 24.1 from 1 January 1999. That advice is that a contract may create that relationship between the principal and a service provider inadvertently, by deliberate choice, or by operation of law 38 . The advice is detailed. It includes a step by step illustration of what are labelled the integration and control tests for an employment relationship 39 . A question and answer format is supplied for making a decision about the creation of one or other relationship 40 . [61] The explicit character of the advisory instruction should not be overlooked or under-emphasised. The following extracts suffice for that purpose: "Generally, the application of the control and integration tests can determine whether the contractor is an employee of the Commonwealth at common law. · The control test refers to the right of the employer (i.e. the Commonwealth) to control what, how, when, and where the work is done. The higher the level of control exercised by Defence, the greater the likelihood that the contractor may be considered an employee of the Commonwealth, · The integration test examines whether a person providing the services does so as an individual carrying on their own business OR as an integral part of the employer's business organisation (i.e. as an employee of a company, trust, partnership or another organisation). Where a person carries on their own business, this would indicate the person is not an employee. ... Annex A to this Guide provides information on how the employer/employee relationship can arise in contracting. Generally, it is likely that such a relationship will exist in Defence procurement contracts if the following conditions also exist: · the contractor is a natural person (as opposed to a company or partnership), · the contract is for the labour of the contractor ie contracting for a range of continuous duties (as opposed to specified results), · the contract specifies who is to perform the task while delegating or sub-contracting the task is not allowed, and · the terms and conditions of the contract are similar to those applying to regular employees of the Department, eg regular payments, significant levels of supervision, provision of Departmental facilities and resources." 41 [62] There is a truly Nelsonic correlation between the expressed guidance and instruction from those sources and the procurement process applied by the Navy Medical Services to the procurement of Mr Arends' services between 1999 and 2001. The Defence Health Service collectively read and understood the signals but carried on as before, if not regardless, not regardfully. However, for reasons we shall explain, the course taken appears to have been charted well enough from statutory authorisations. The relevant legislation was apparently designed to allow a relatively systemic use of contracts for services as an alternative to the direct engagement of an employee under available statutory authorities for such employment. [63] Lieutenant Bryant's accession to the MAO position in 2001, brought about what he saw as an appropriate assertion of the policy, first declared in January 1999, that the procurement process should be opened out to require contracts to be re-tendered after one renewal of a 12 month initial term 42 . Mr Arends' position as radiographer was advertised before the last of his contracts expired. He applied for the position with others but was unsuccessful. Mr Arends was offered a short period of further work to settle his replacement into the position. He refused to work until that date, but worked up until the date when his replacement commenced 43 . 7. THE REASONING OF THE DECISION SUBJECT TO APPEAL: [64] We note that the cases presented to Drake SDP differed from those presented on appeal in both the amount of available evidential detail and the refinement of points argued. In her reasons for decision, Drake SDP found that there was a contractual relationship between the parties and then addressed the issued of whether the form of contract gave rise to an employment relationship. For that purpose she considered the principles discussed by the High Court in Stevens and Brodribb Sawmilling Pty Ltd 44 . Her Honour concluded that Mr Arends was an employee of the Department. In reaching that conclusion, Drake SDP observed that: " The type of work, hours of work and method of work of the applicant were all in the control of the respondent. The method of payment of salary, payment of superannuation contributions and other financial arrangements indicate an employment relationship. I formed this view despite the applicant having acquired a ABN number and having completed tax invoices at the request of the respondent after the introduction of the GST. In conjunction with the completion of the various back dated contracts, the GST forms appear to me to be no more than window dressing to clothe the structural arrangements between the applicant and the respondent to ensure that the arrangements resembled those that the respondent wished to adopt even though the actual arrangements were something entirely different. I have examined the particular terms of the contract which characterise the arrangements as those of an independent contractor and the term in the later contracts which negated the characterisation of the relationship as one of employment. After taking into account the manner in which the parties conducted themselves at the work place, the performance of work and the arrangements for payment for that work, as well as the applicant's place in the structure at the base at Nowra, I am not persuaded that the contract terms are conclusive as to the arrangements between the parties. The applicant had an expectation of continuous employment which was reasonable and appears to have been confirmed by the conduct of all the other employees of the respondent and officers of the Defence Forces with whom the applicant came into contact, until the arrival of Lieutenant Bryant who wished to apply the respondent's employment policies for the first time in seven years. I considered these matters and others about which parties presented evidence. From an examination of the contractual arrangements, the method of work, the control of the respondent, the applicant's performance, the failure of the respondent to apply its employment policies and the organisational arrangements between the parties I have determined that the applicant was for all purposes an employee. He probably became an employee when his first contract with the employer expired and he was allowed to thereafter continue performing work. The backdating of contracts appears to me to have been merely paper compliance by the relevant officers with the requirements of their superiors for the application of the respondents policy. In every respect except for the payment of annual leave the applicant appeared to be an employee and to have employees entitlements." 45 [65] In relation to a further jurisdictional point raised by the Department, Drake SDP concluded that the applicant was engaged as an ongoing Australian Public Service employee within the meaning of section 22 of the PS Act 1999 . In support of that conclusion, Drake SDP stated that she had considered the relevant legislation, subordinate legislation and award, and set out the terms of section 22 of the PS Act 1999. Her Honour then concluded: "[39] In Director General Education -v -Suttling [1987 162 CLR 427] Brennan J stated "if the relationship is contractual, the contract must be consistent with any statutory provision which effects the relationship. No agent of the Crown has authority to engage a servant on terms at variance of the statute....". [40] In my opinion the applicant was engaged as an ongoing Australian Public Service employee within s.22 of the P.S. Act." 46 [66] Drake SDP rejected the Department's submission that, because of Mr Arends' refusal of the extra few days, any termination of employment was not at the initiative of the employer. Her Honour observed that: " Accepting a variation in the date of anticipated departure after the termination of a relationship cannot convert a termination of the relationship at the initiative of the respondent into a resignation by the applicant. The respondent did not contemplate by this offer to extend his date of departure that the termination itself was nullified. The termination of the relationship by the respondent continued despite the offer to vary the end date and that termination was the act of the respondent." 47 8. SUBMISSIONS ON APPEAL: 8.1 The Department's submissions: [67] Under the amended notice of appeal, the Department attacks the finding of jurisdiction on the ground that Mr Arends was not a Commonwealth public sector employee, as defined in subsection 170CD(1) of the Act, for the purposes of section 170CB. The Department maintains on the appeal a submission put to Drake SDP that Mr Arends was not engaged in the way prescribed by the PS Act 1999. In Mr Crow's submission, no evidence had been called to establish that Mr Arends' position fell within any of the three limbs of the definition of Commonwealth public sector employee . He had not been employed under the PS Act 1999; he was not employed in the service of a Commonwealth authority as defined; and he was not a person in employment by authority of a law of the Commonwealth. It was not open to infer from the evidence that Mr Arends fell, by default within the definition, or any limb of it. [68] In relation to the first of those propositions, Mr Crow's submissions may be summarised as follows: · Mr Arends was engaged at all material times by and in the service of the Department of Defence, a Commonwealth Department of State; · the Commonwealth cannot engage employees by simple contract for service in a Department or Executive Agency . The PS Act 1999, subsection 6(1) in particular, excludes the possibility of an employment relationship being created with the Commonwealth other than by the process of engagement stipulated for each category of employment under that Act; · since the commencement of the PS Act 1999 on 5 December 1999, employment under it can only occur in specific circumstances, none of which applied to Mr Arends; · the procedures in the PS Act 1999 are designed expressly to ensure regularity, fairness and method in the appointment of public service employees 48 ; · the PS Act 1999 establishes a different test of employment for APS employees 49 , requiring, on its proper construction, a positive act of engagement by an Agency Head; engagement cannot be inferred from the existence of a relationship that the common law regards as employment; and yet each contract between the parties expressly stipulated that Mr Arends was an independent contractor and not an employee 50 . [69] In the Department's submission, a contractual basis for public service employment arises only after there has been a valid engagement of a person pursuant to the terms of the PS Act 1999, or some other relevant Act 51 . The condition precedent to such employment is the exercise of valid authority under the relevant public sector statutory provision 52 . In that respect, Mr Crow relied upon Director-General of Education (NSW) v Suttling 53 where Brennan J observed that: "Members of the Service are appointed pursuant to the Act and their rights must be ascertained by reference to its provisions. The relationship between a civil servant of the Crown and the Crown has often been described as contractual, though the civil servant has been appointed pursuant to statute ... However, the contractual nature of the relationship has not been universally accepted ... And sometimes an espousal of one view rather than the other has been avoided ... If the relationship is contractual, the contract must be consistent with any statutory provision which affects the relationship. No agent of the Crown has authority to engage a servant on terms at variance with the statute. To the extent that the statute governs the relationship, it is idle to inquire whether there is a contract which embodies its provisions. The statute itself controls the terms of service." [70] Mr Crow submitted that section 6 of the PS Act 1999 clearly expresses an intention to alter common law doctrines of employment 54 . The section must be observed if a person is to be properly employed under the PS Act 1999, or under the authority of some other Act. Individuals recruited as independent contractors, albeit capable of being viewed in retrospect as employees at common law, would not have access to the termination of employment provisions of the Act . In any event, there could only be a very small category of people excluded in that way 55 . [71] In developing that submission, Mr Crow asserted that the Department of Defence is the relevant Agency. The Agency Head is the Secretary of the Department of Defence. Subsection 78(7) of the PS Act 1999 permits an Agency Head to delegate powers conferred by the PS Act 1999, including the power of engagement pursuant to section 22. Mr Crow submitted that the RAN officer who signed Mr Arends' contracts in 2000 and 2001 (the only contracts made during the period of operation of the PS Act 1999) did not hold such a delegation. He asserted also that the RAN officer/s who signed Mr Arends' contracts during the period of operation of the Public Service Act 1922 (which was in operation prior to 5 December 1999) did not hold any relevant delegation to engage officers or employees. [72] Subsection 22(1) of the PS Act 1999 permits only the engagement of persons as employees. It does not give power to engage a person as an independent contractor. The nature of the relationship intended by the Secretary of the Department when the engagement was made determines whether it was made under the PS Act 1999. On 15 March 2001, when Mr Arends' most recent written contract was entered into, he was engaged to provide services as an independent contractor. The Secretary did not then intend an employment relationship with Mr Arends, who was not engaged as an employee. It followed, in the submission of Mr Crow, that Mr Arends was not a Commonwealth public sector employee within the meaning of subsection 170CB(1) of the Act. The Commission had no jurisdiction to deal with the application under paragraph 170CE(1)(a). Her Honour erred in finding otherwise, and the appeal should be allowed on this point. [73] Mr Crow submitted that, when considering whether Mr Arends was "a person in employment under the Public Service Act 1999" , for the purposes of the definition of Commonwealth Public Sector employee in subsection 170CD(1) of the Act, it is not necessary to look beyond the PS Act 1999. Even if the relevant contract was found to have pre-dated the PS Act 1999, Mr Arends still would not have been "a person in employment under the Public Service Act 1999" for the purposes of that definition. [74] Mr Crow submitted that no jurisdiction to deal with that part of the application (if any) brought under paragraph 170CB(1)(c) or (d), existed because: · no evidence had been addressed to show the applicant was either a Federal award employee, or that he was employed by a constitutional corporation; and · no material existed from which the Commission could conclude that the Commonwealth was a constitutional corporation. [75] Finally, Mr Crow submitted that no jurisdiction existed to deal with that part of the application brought under Subdivision C (Unlawful termination of employment by employer), section 170CK. This submission relied on the effect of section 67 of the Constitution which provides as follows 56 : "Until the Parliament otherwise provides, the appointment of all other officers of the Executive Government of the Commonwealth [i.e., other than Federal Executive Councillors and Ministers: see sections 62 and 64 respectively] shall be vested in the Governor-General in Council, unless the appointment is delegated by the Governor-General in Council, or by a law of the Commonwealth to some other authority." [76] Mr Crow submitted that the Parliament had "otherwise provided" for the appointment of persons to perform the ordinary functions of government departments by passing the PS Act 1999. It provides exhaustively for the circumstances in which, and the means by which, the Commonwealth can engage employees to work in Commonwealth Departments of State. In Mr Crow's submission, the Commonwealth has no executive power to enter into employment relationships in relation to Departmental employees outside the scope of this legislation. Where persons performing the ordinary functions of government departments have not been appointed according to the provisions of the PS Act 1999, or under the authority of any other Act which permits the employment of APS employees, a contract of employment cannot be implied. Accordingly, the common law test for the existence of an employment relationship should have no application to justify the Commonwealth being deemed to be in employment relationship. The appeal should be allowed, the decision of her Honour quashed and Mr Arends' application under section 170CE dismissed for want of jurisdiction. 8.2 Mr Arends' submissions: [77] Mr Brady submitted that the finding of jurisdiction should stand. There was ample evidence before Drake SDP that the applicant was, at the time of termination of employment, an employee within the meaning of section 170CB(1)(a) or (c) of the WR Act. [78] In relation to paragraph (c) of section 170CB(1), Mr Brady submitted that it is for the Department to show that the body contracting with and paying Mr Arends was not a constitutional corporation by providing evidence of how that particular body was constituted. [79] In Mr Brady's submissions, Mr Arends was either: · a common law employee at the time of his dismissal; or · a Commonwealth public sector employee by virtue of the PS Act 1999, the PS Act 1922, and the Public Sector Employment (Consequential and Transitional) Amendment Act 1999 (PECTA Act); or · an employed civilian pursuant to the provisions of the Naval Defence Act 1910; or · an employee by virtue of the power vested in the Commission under section 121 of the Act. [80] Mr Brady disputed the Department's submission that the PS Act 1999 provides exhaustively for the circumstances in which, and the means by which, the Commonwealth can engage employees to work in the Departments of State. In support of that submission, Mr Brady relied upon section 6(1) of the PS Act 1999: All persons engaged on behalf of the Commonwealth as employees to perform functions in a Department or Executive Agency must be engaged under this Act or under the authority of another Act . He argued that Mr Arends was already employed (either as a common law employee or under the authority of the Public Service Act 1922 (the PS Act 1922), or of the Naval Defence Act 1910 , (the ND Act). [81] Mr Brady further submitted that whether or not a positive act of engagement is required under section 22 of the PS Act 1999 is irrelevant; the applicant was already engaged by the Department before the commencement of the Act in 1999, and had been in continuous employment since 1994. He strongly disputed that Mr Arends was appointed pursuant to a series of contracts. The contracts were shams to disguise what was in reality an employer/employee relationship. [82] In Mr Brady's submission, section 67 of the Constitution is no bar to the conclusion that Mr Arends was already a common law employee at the time that section 22 of the PS Act 1999 came into effect. Section 67 deals with the "appointment and removal of all other officers of the Executive Government of the Commonwealth". It does not apply to common law employees who are not appointed but rather become employees by operation of law. The PS Act 1999 is subject to the operation of the Workplace Relations Act 1996 . If the applicant was an employee for the purposes of the latter Act, he would be an employee for purposes of the PS Act 1999. [83] In Mr Brady's submission Mr Arends was a common law employee by the end of his second year with the Department, and no longer reliant on the subsequent contracts. It is not open to the Department to rely upon DI(G) ADMIN 24-1. The provisions of that document provide that contracts with independent contractors should only be for one year, two at the very most. If the relationship continues for a longer period, paragraph 2 to the pre-amble to the DI(G) ADMIN 24-1, indicates that a contractor is likely to become a common law employee. [84] In support of the contention that Mr Arends was, at the time of his "dismissal", a common law employee, Mr Brady pointed to "gaps" between contracts, amounting to a period of some years. [85] In the alternative, if the PS Act 1999 were held to apply to the circumstances of the case, there is sufficient evidence from which the Commission could have determined as a matter of fact that Mr Arends was, at the time of termination of employment, a Commonwealth public sector employee. The persons signing the contracts had delegated authority to sign the contracts. The Department had given the persons who signed the contracts ostensible authority to engage persons to undertake employed work. [86] Mr Brady submitted that section 22 of the PS Act 1999 does not require an action of positive engagement. Indeed, DI(G) ADMIN 24-1 appears to contemplate the possibility of engagement by default. In support of this construction, the words " engage persons as employees " should be read as a reference to persons intended to be employees. That is because the true nature of the relationship can only be ascertained after commencement of the relationship. The construction contended for by the Department, if accepted, would leave the characterisation of the relationship entirely dependent upon the intention of the Secretary of the Department at the time of engagement. [87] Any failure by the Commonwealth Agency Head to notify the appointment of Mr Arends in the Commonwealth Government Gazette could not be determinative of the characterisation of the relationship between the parties. The Department failed to adduce any evidence of a Gazettal notice of the relevant contract, as required by DRB3, paragraph 6.15, for a contract for services for over $2,000. [88] Mr Brady also submitted that Mr Arends was employed under either sections 83AC, AD or AE of the 1922 PS Act, and, as such, was an employee within the meaning of section 7 of that Act. In support of that submission, Mr Brady argued that the evidence establishes that the shortage of medical personal at the relevant time prompted the Secretary to approve employment of medical personnel - including Mr Arends - on short term contracts. Mr Arends' employment was extended by the Department from time to time, as contemplated by sections 82AC, AD and AE, until new arrangements could be put into place. However, new arrangements were not put into place until his employment was terminated. By that time, Mr Arends had become a public service employee under the 1999 PS Act by operation of sub-sections 5(6) and (7) of the PECTA Act. [89] In relation to the operation of section 67 of the Constitution , Mr Brady relied on his submission that Mr Arends was an employee under the 1999 PS Act at the time of his termination; in the alternative, he submitted that: · On its proper construction, section 67 of the Constitution deals with the appointment and removal of civil servants. It does not deal with the situation where a person is deemed to be a common law employee. Section 67 requires a positive act of appointment (rather than engagement by way of common law) or removal by the appropriate person. · The common law relevantly falls with the exception under section 67, "unless the appointment is delegated by the Governor-General in Council, or by a law of the Commonwealth or some other authority". [90] A contract with the Commonwealth should be interpreted in the same way as any other contract. No conflict with the Constitution could arise merely by Mr Arends being found to be a common law employee. 8.3 The CPSU's submissions as intervener: [91] The CPSU opposed leave to appeal. It argued that the case turned primarily upon the construction of section 22 of the PS Act 1999, and requirements for delegation of authority for the proper employment of staff under that Act. Mr Rich rejected the proposition that employment under subsection 22(1) of the Act depends upon the intention of the Agency Head at the time of engagement of the person. Section 67 of the Constitution and section 6 of the PS Act 1999 operate to deny power for the Commonwealth to employ persons who are employees at common law but not employees under the PS Act 1999. Mr Arends must have been engaged under the PS Act 1999, in accordance with the powers contained therein. [92] Developing that submission, Mr Rich argued that: · The PS Act 1999 is expressed to have effect subject to the Workplace Relations Act 1996 . · Section 22 of the PS Act 1999 indicates who may engage employees on behalf of the Commonwealth; no procedural requirement about formation of positive intention at the time of engagement is indicated. · Subsection 22(1) empowers the Agency Head to engage persons as employees. The question of whether a person is an employee depends upon established principles as identified by Drake SDP in the first instance decision. The categories of employment in which work in the public service can be performed are identified in subsection 22(2). The Commonwealth's submissions would have the Commission adopt and substitute a different test of employment for public servants to that which applies generally. · Regulation 3.12(1)(a) of the Public Service Regulations 1999 requires that ongoing Australian Public Service employees be notified in the Commonwealth Gazette. That requirement is cast upon the Commonwealth. In accordance with authorities, this provision should prima facie be assumed to be discretionary rather than obligatory 57 . A failure to comply with Regulation 3.12(1)(a) does not cause an engagement that should have been gazetted to be invalid. · An established principle of statutory interpretation is that legislation is presumed not to alter common law doctrines without expressing its intention clearly 58 . The Commonwealth's proposed interpretation would contradict the common law doctrines in relation to the existence of an employment relationship. There is no clear indication in the relevant legislation that the overthrow of traditional common law principles of employment was intended. [93] Supplementing that line of argument, the CPSU contended that the de facto officer doctrine should be applied to validate the exercise of power to engage staff by the officer/s who employed Mr Arends. The policy considerations underpinning the de facto doctrine 59 should be applied as relevant to the circumstances of Mr Arends' case. To decide otherwise would be to make uncertain the employment of each public servant currently employed by the Commonwealth. Public servants should be able to rely upon the representations made to them in employment by persons having apparent authority to make them. It is irrelevant that the officer who engaged Mr Arends did not have a written delegation under the PS Act 1999 to do so. It is sufficient that the power was assumed by the office, and reasonably believed and relied upon by Mr Arends. [94] In a written submission in reply, lodged with the Commission on 28 February 2003, the CPSU conceded that the de facto officer doctrine has not been applied in a case where the actor has purported to act as an agent or delegate of another. However, Mr Rich argued that there is no barrier to extending the doctrine to the actions of properly appointed officers, held out as having delegated authority, in circumstances where the public could not know of any defect in the delegation of the power, or be expected to look behind the power purportedly exercised 60 . He added that the policy underpinning the de facto officer doctrine also finds expression in the doctrine of ostensible authority. Although the doctrine of ostensible authority is based on principles of agency, it would be open to the Commission to find that the principles of it should operate in the circumstances of this case to validate the actions of Commander Thomas, despite any lack of delegated power. [95] Mr Rich concluded with the proposition that the engagement of Mr Arends as an employee was not ultra vires. The power of the Commonwealth to engage staff is a power delegated by the Constitution and the 1999 PS Act 1999, to the Head of the Department of Defence. In turn that power may be further delegated as prescribed. The Commonwealth should be held to be bound by the acts of Lieutenant Thomas in engaging Mr Arends as an employee. 9. CONCLUSIONS AND MATTER FOR DETERMINATION ON APPEAL: [96] The appeal as pressed is directed against Drake SDP's conclusion that Mr Arends was engaged as an ongoing employee under the PS Act 1999. Manifestly, the appeal goes to the Commission's jurisdiction. As we have already observed, on the hearing of such an appeal, the Full Bench will normally be required to determine for itself the jurisdictional point 61 . The Full Bench's direction for the appellant to elaborate upon the relevant statutory background to this matter was stimulated by our recognition of that requirement. [97] The determination of this matter has proved unusually arduous. The application for relief and the objection to it depend upon anomalies. Mr Arends makes application as an employee, although he was engaged under a contract that labeled him an independent contractor. Drake SDP was satisfied that in law, Mr Arends' contractual relationship was one of service and thus, that he was an employee of the Commonwealth. That finding is not challenged on the appeal. The Department relies, and presses on appeal, a point that appears to be an anomaly of the Act. It is said that although Mr Arends may be an employee of the Commonwealth, he is not a Commonwealth public sector employee: therefore any such "employment" of him is not caught within the definition of that phrase in the Act. [98] The appeal was conducted on the basis that Mr Arends' relationship with the Commonwealth was that of a common law employee. The status of that concession was left unclear. At least, the Department's position reflected an unwillingness to contest Drake SDP's characterization of the contract in its entirety. As we have noted, that characterization was a reasoned part of her Honour's decision. It was made in perspective with findings about the surrounding circumstances and the indicia of a contract of service set out in Stevens v Brodribb 62 . [99] In the circumstances, with some reservations, we have assumed that we need do no more than note the lack of dispute about that element of the requisite jurisdictional fact. We shall determine the appeal by reference to other elements that are disputed. Out of more abundant caution, we add reference to some circumstantial material relevant to the entire circumstances of the contract and working relationship between Mr Arends and the Department. The material was not available to Drake SDP, or not emphasised in her decision. [100] Mr Brady, in a written submission to Drake SDP, summarised nine circumstantial points and grounds and supplied some additional supporting evidence upon which he relied in asserting the existence of a common law employment 63 . It appears that that material included a duty statement for Mr Arends' work as Radiographer, and internal correspondence consistent with him being considered to be an employee. Other material is relevant to completing the circumstantial matrix within which the indicia for or against a contract of service are to be assessed. The Appeal Books contain a more complete documentary record of Mr Arends' contracts, and of the administrative guidance relating to the circumstances of CHPs generally. There is also an incomplete history available from public documents about the engagement of Radiographers and other health providers under exempt employee categories outside standard APS employment regimes. The Defence Health Service acknowledged in 1999 that CHPs, integrated to a high degree in the DHS, would fall into the category of common law employees. The history of "non-standard employment" of such health service providers in similar establishments serves to reinforce the likelihood that the acknowledgement reflected an already well established practical staffing need and policy exigency. [101] The latter material also manifests an acceptance in DI(G) ADMIN 24-1 that is of pervasive importance in the determination of this matter. It is the acceptance that the control and the integration tests for an employment relationship could be determinative of the creation of an employment by the Department 64 . The entirety of the material, especially that discussed at under Headings 4 and 5 above, opens the way to further findings of fact. We do not make them. It is sufficient for present purposes to indicate that, subject to appropriate findings, two inferences might properly be drawn. The first is that the Defence Health Service maintained the engagements of Mr Arends in serial form, although the Approving Officer knew, or ought to have known, that constructively, Mr Arends was an employee. The second is that an apparent dilemma about Mr Arends' employment or independent contractor status was left unresolved. That omission was influenced by an expectation that if he were to be acknowledged as an employee, the consequences for staffing the Defence Health Service would be awkward. [102] It is manifest that the Defence Health Service accepted that a Radiographer came within the class of occupations in which the level of control and integration required was commensurate with a need for, or a creation of, an employment. It being accepted that he was such an employee, the terms of employment are to be derived from the contract and the associated circumstances. Prima facie¸ the last sentence of the Introduction to Amendments 9 and 10 of DI(G) ADMIN 24-1, noted at [37], would appear to describe the Department's general conclusion about the employment status specifically attributable to Mr Arends. If so, by inference, the instruction may be taken to supply a relevant term of his subjacent common law contract of employment: existing contracts with individual contractors who may fall into this category are to be honoured and in extreme circumstances may be extended for short periods until new arrangements can be put in place . No arrangement, founded upon recognition of Mr Arends' employment status, was "put in place". [103] On this appeal it is accepted that an employment did exist. It is therefore necessary that we determine the question of whether or not any such employment came within the jurisdiction established by Part VI B of the Act. For that purpose, it is necessary to examine the statutory framework for the jurisdiction and its application to employment by the Department. 10. STATUTORY FRAMEWORK - WORKPLACE RELATIONS ACT 1996: [104] The application lodged on Mr Arends' behalf relied upon two grounds for relief. Application was made under section 170CE in Subdivision B of Division 3 of Part VIA of the Act; and, under section 170CK in Subdivision C of the same Division and Part. The ground relied upon under Subdivision B alleges that the termination of employment was harsh, unjust and unreasonable. [105] Under Subdivision C, the allegation is that the termination was in a contravention of the duty in section 170CK of the Act, to not terminate employment for a prohibited reason. Perhaps Mr Arends may contend that discrimination on grounds of age was a factor in the decision to not renew his engagement. His reliance upon section 170CK and Subdivision C may be an important consideration in determining whether there is any jurisdiction accessible by him. Subdivision C applies to a wider class of employment than Subdivision B. That is a consequence of subsections 170CB(2), (3), (5) and (6). Moreover, for the purposes of subsections 170CB(5) and (6), it seems the expression " termination of employment of an employee " may be construed to align its use in section 170CK with the Termination of Employment Convention . If so, the meaning may be wider than is commonly adopted by courts when not under an obligation to give expressions a meaning corresponding to that in the Termination of Employment Convention, or to advance the object of giving effect to the Convention concerning Discrimination in respect of Employment and Occupation 65 . [106] So far as immediately relevant to the application made, section 170CB of the Act provides that: "(1) Subdivision B applies, in so far as it relates to an application to the Commission for relief in relation to the termination of employment of an employee on the ground that that termination was harsh, unjust or unreasonable, if the employee concerned was , before the termination: (a) a Commonwealth public sector employee ; or ... (2) Subdivision B applies, in so far as it relates to an application to the Commission for relief in relation to the termination of employment of an employee on the ground of a contravention of all or any of section s 170CK , 170CL, 170CM and 170CN, if the employee concerned is an employee in relation to whose termination of employment Subdivision C applies in accordance with this section. (3) Subdivisions C , D and E apply in relation to the termination of employment of an employee . (4) Without prejudice to their effect apart from this subsection, Subdivisions C , D and E also apply in relation to the termination of employment of : (a) a Commonwealth public sector employee ; or ... (5) Without prejudice to their effect apart from this subsection, Subdivisions C , D and E also apply in relation to the termination of employment of an employee for the purpose of assisting in giving effect to the Termination of Employment Convention. (6) Without prejudice to its effect apart from this subsection, section 170CK also applies in relation to the termination of employment of an employee for the purpose of giving effect to the conventions referred to in that section. ..." (Emphasis supplied). [107] For the purposes of Division 3, section 170CD in subsection (1) provides the definition: " Commonwealth public sector employee means a person in employment: "(a) under the Public Service Act 1999 or the Parliamentary Service Act 1999 ; or (b) by or in the service of a Commonwealth authority; or (c) by authority of a law of the Commonwealth . Note: Commonwealth authority is defined in subsection 4(1)." (Emphasis supplied). [108] Definitions in subsection 4(1) of the Act directly relevant to the definitions in subsection 170CD(1) include: "(1) In this Act, unless the contrary intention appears: ... Commonwealth authority means: (a) a body corporate established for a public purpose by or under a law of the Commonwealth or the Australian Capital Territory; or (b) a body corporate: (i) incorporated under a law of the Commonwealth or a State or Territory; and (ii) in which the Commonwealth has a controlling interest; ... constitutional corporation means: ... (e) a Commonwealth authority;" [109] The statutory basis for a wider construction to be given to expressions used in Subdivision C is subsection 170CD(2), which provides: "(2) An expression used in Subdivision C, D or E of this Division has the same meaning as in the Termination of Employment Convention." [110] Section 170CE, in Subdivision B, of the Act so far as relevant provides: " 170CE Application to Commission to deal with termination under this Subdivision (1) Subject to subsections (5) and (5A), an employee whose employment has been terminated by the employer may apply to the Commission for relief in respect of the termination of that employment: (a) on the ground that the termination was harsh, unjust or unreasonable; or (b) on the ground of an alleged contravention of section 170CK, 170CL, 170CM or 170CN; or (c) on any combination of grounds in paragraph (b) or on a ground or grounds in paragraph (b) and the ground in paragraph (a). ... (5) An application under subsection (1) may not be made: (a) on the ground referred to in paragraph (1)(a) or on grounds that include that ground-unless, under subsection 170CB(1), Subdivision B applies to that application; or (b) on a ground referred to in paragraph (1)(b)-unless Subdivision C applies to that application. ..." [111] Section 170CK, so far as it appears to be relevant, provides: "170CK Employment not to be terminated on certain grounds (1) In addition to the principal object of this Division set out in section 170CA, the additional object of this section is to make provisions that are intended to assist in giving effect to: (a) the Convention concerning Discrimination in respect of Employment and Occupation, a copy of the English text of which is set out in Schedule 1 to the Human Rights and Equal Opportunity Commission Act 1986 ; and (b) the Family Responsibilities Convention. (2) Except as provided by subsection (3) or (4), an employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons: ... (f) race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin; ..." (Emphasis supplied). [112] In summary of those provisions, so far as they might relevantly be applied to Mr Arends, jurisdiction exists if, at the material time: (1) in relation to the section 170CE application generally, he was a Commonwealth public sector employee, that is to say, a person in employment: (a) under the PS Act 1999; or (b) by authority of a law of the Commonwealth; (2) in relation to the section 170CE application, so far as it relates to an application for relief on a ground that section 170CK has been contravened, he was: (a) a Commonwealth public sector employee of that kind; or (b) an employee. [113] For the purposes of construing the expression an employee in subsections 170CB(2), (3), (5) and (6) , it would appear that the use of that expression in relation to Subdivision C, or in Subdivision C, respectively, may be given the same meaning as the expression used in the Termination of Employment Convention . Should it be necessary, any difference of meaning that might be derived from, or dependent upon, subsection 170CD(2) can be explored in due course. For present purposes we note the point which appears not to have attracted much attention in the submissions of the parties. [114] We note also that we have discarded the proposition that Mr Arends attracted jurisdiction as an engagee in the service of a Commonwealth authority . It is clear that Mr Arends was engaged by or in service for the Commonwealth. He was so engaged, most directly, for the Department of Defence of which the Defence Health Service appears to be a constituent 66 . The Department of Defence is a Department of State established under section 64 of the Constitution. A Department of State is not within the definition of a Commonwealth authority in the Act. Nor is the Commonwealth itself. Nor is any agency that is not itself a body corporate. [115] However, as we have noted, jurisdiction may arise if it be established that Mr. Arends was either a person in employment by the Department by authority of a law of the Commonwealth, or for purposes of section 170CK, was an employee of it. Our attention was not drawn by either party to the definitions of public sector employment and employing authority in subsection 4(1) of the Act, or to the associated prescriptions in Regulations 3 and 4 of the Workplace Relations Regulations for the purposes of that definition. Those provisions are part of the statutory context in which the provisions directly relied upon are to be construed. It is convenient to set out here the relevant extracts: " public sector employment means employment of, or service by, a person in any capacity (whether permanently or temporarily and whether full-time or part-time): (a) under the Public Service Act 1999 or the Parliamentary Service Act 1999; (b) by or in the service of a Commonwealth authority; ... (e) by or in the service of a prescribed person or under a prescribed law; but, other than in section 121, does not include: (f) employment of, or service by, a person included in a prescribed class of persons; or (g) employment or service under a prescribed law; ... employing authority , in relation to a class of employees, means the person or body, or each of the persons or bodies, prescribed as the employing authority in relation to the class of employees; " [116] The main work of the first of those definitions is to define an expression that is used in paragraph 5(3) (d) of the Act. That paragraph gives the Act effect and additional operation to matters pertaining to the relationship between employers and employees in public sector employment . Effectively, those and some related provisions are the source of a jurisdiction. The Commission may exercise jurisdiction in relation to industrial matters about public sector employment . That term is defined to be applicable to the Commonwealth in most of its manifestations as employer, and to the Australian Capital Territory and the Northern Territory, likewise. [117] The Workplace Regulations contain several prescriptions that elaborate upon the definitions: "Regulation 4 (1) For the purposes of paragraph (e) of the definition of "public sector employment" in subsection 4(1) of the Act, each of the following laws is prescribed: (a) Naval Defence Act 1910; (b) Supply and Development Act 1939. (c) Australian Federal Police Act 1979. (d) Governor-General Act 1974. (2) For the purposes of paragraph (f) of the definition of "public sector employment" in subsection 4(1) of the Act, each of the following classes of persons is prescribed: (a) members of the Defence Force; (b) members of the Police Force of the Northern Territory; (c) persons employed by, or in the service of: (i) a Commonwealth authority referred to in Schedule 3; or (ii) a body that is a subsidiary of a Commonwealth authority referred to in Schedule 3 in which body the Commonwealth authority has a controlling interest; (d) persons who hold an office established under a law of the Commonwealth or of a Territory, other than persons who, otherwise than in their capacity as the holder of such an office, are employed or serve in a capacity described in paragraphs (a) to (e) of that definition of public sector employment. Example An example of a person who would fall within the exception to paragraph (d) is an APS employee who also holds a part-time statutory office, or who is granted leave without pay from his or her APS employment in order to take up a full-time statutory office." [118] So far as we can establish, with one exception, the Schedules to the Regulations have no bearing upon the employment at issue in this matter. Schedule 2 lists the persons who are the prescribed employing authority in relation to employees under section 42 of the Naval Defence Act 1910 or section 10 of the Supply and Development Act 1939. Those listed are the Minister administering the enactment, and the persons empowered under the enactment to employ persons. That prescription is to be read with Regulation 3. It declares that a person so listed is prescribed as the employing authority in relation to the class of employees specified. The main work of that definition may be to identify who may represent the employer of the class of employees in Commission proceedings under section 42(5). However, it also establishes that the Minister for Defence, and delegates empowered to employ under the Naval Defence Act are effectively prescribed persons and employing authorities for the purposes of paragraph 5(3)(d) of the Act. [119] From those provisions generally we note several points. The definition of public sector employment has a width of expression not repeated in the corresponding definition of Commonwealth public sector employee in subsection 170CD(1). Thus, the words employment of, or service by, a person in any capacity ... under the PS Act 1999 , in the former, may be wider than in employment under the PS Act 1999 , in the latter. A narrower construction of the latter expression derives more force from the wording of the PS Act 1999 than from the language of subsection 170CD(1). If the two definitions in the Act are read in juxtaposition, there appears to be no compelling reason to construe the words in employment under the PS Act 1999 as intended to be other than co-extensive with the words employment of, or service by, a person in any capacity ... under the PS Act 1999 . However, support for a narrower construction can be found in the contrast between paragraphs 170CD(1)(a) and (b). The latter uses employment by or in the service of, not merely, employment under. On a balance of considerations, we conclude that distinction must be intended to connote a difference . Accordingly, employment under the PS Act should be construed as meaning employment as an APS employee and other direct employment that may be allowed for under that Act. [120] Be that as it may, a direct list of alternative sources for public employment is imported to the Workplace Relations Act 1996 by the definition of public sector employment . Service in, or employment by or under, the entities or laws prescribed is the foundation for the additional operation of the Act. The Naval Defence Act 1910 is among the prescribed laws for that purpose. That legislation may be taken to be intended to be within the scope of the reference in paragraph 170CD(1)(c) to employment by authority of a law of the Commonwealth. [121] Finally, in this context is a consideration may be of some relevance to determining whether Mr Arends qualifies as an employee for purposes of the jurisdiction in respect of section 170CK. Mr Arends, it seems to be accepted, was an employee of the Department. The extended application of the provisions to which we have referred would cause that employment to be a relationship to which jurisdiction could have been attached for purposes of Part VI (dispute settlement and prevention); or, of Division 2 of Part VI B (certified agreements); or, of Part VI D (Australian Workplace Agreements). The two latter Parts may operate upon an employment with the Commonwealth simpliciter 67 . For Part VI, it would be necessary that Mr Arends be in public sector employment , and that other jurisdictional pre-requisites be satisfied. Hence, it does not appear to be necessary to draw upon references to exogenous ILO instruments, or to the cogent analysis of Finkelstein J in Konrad v State of Victoria to conclude that a common law employee of a Department, and thereby of the Commonwealth, is an employee simpliciter within the meaning of subsections 170CB(2), (3) and (6). 11. EMPLOYMENT UNDER THE PUBLIC SERVICE ACT 1999 : [122] It is necessary to refer here to the key provisions of the PS Act 1999. The scheme of the PS Act 1999 constitutes the Australian Public Service (the APS) from Agency Heads and APS employees and provides for the engagement of APS employees for purposes of a Department or an Agency. Such engagement must be in one or other of three broad, flexible categories: ongoing APS employees; APS employees employed for a specified term or task; or APS employees engaged for duties that are irregular or intermittent. Persons become APS employees on "engagement ", or less directly, on determination by the Public Service Commissioner, in association with machinery of government changes. In such circumstances, non-APS employees may become APS employees, or APS employees may be determined to cease being such employees. Subject to declared exceptions 68 , other paths for engagement of employees to perform functions in a Department or Executive Agency are precluded. Among such exceptions is engagement by "conversion" on translation from employment under the PS Act 1922 under transitional provisions 69 . [123] The engagement of persons as APS employees for the purpose of an Agency is subject to the regulatory regime of the PS Act. Section 6 of the PS Act 1999 reads: "6 Engagement of employees in Department or Executive Agency (1) All persons engaged on behalf of the Commonwealth as employees to perform functions in a Department or Executive Agency must be engaged under this Act, or under the authority of another Act . (2) Subsection (1) does not apply to: (a) persons engaged on an honorary basis; or (b) persons engaged to perform services in the Australian Secret Intelligence Service. (3) This section does not, by implication, affect any power that an Agency Head might otherwise have to engage persons as independent contractors. " (Emphasis supplied). [124] Section 22 provides: " 22 Engagement of APS employees (1) An Agency Head, on behalf of the Commonwealth, may engage persons as employees for the purposes of the Agency. (2) The engagement of an APS employee (including an engagement under section 72) must be: (a) as an ongoing APS employee; or (b) for a specified term or for the duration of a specified task; or (c) for duties that are irregular or intermittent. (3) The usual basis for engagement is as an ongoing APS employee. (4) The regulations may limit the circumstances in which persons may be engaged as mentioned in paragraph (2)(b) or (c). (5) An engagement for a specified term may be extended, subject to any limitations prescribed by the regulations. (6) The engagement of an APS employee (including an engagement under section 72) may be made subject to conditions notified to the employee, including conditions dealing with any of the following matters: (a) probation; (b) citizenship; (c) formal qualifications; (d) security and character clearances; (e) health clearances." [125] Engagement under section 72 refers to the movement into APS employment of persons on machinery of government changes on formal determination in writing made by the Public Service Commissioner. It is not necessary to set out the provision here. We note that the terms of it imply a prior or subsequent employment of non-APS employees by the Commonwealth or by a Commonwealth authority, broadly defined. It was not suggested that the provision has any direct bearing on this case. We note however that it enables the Public Service Commissioner, if satisfied it is necessary to give effect to an administrative rearrangement , to determine in writing that non-APS employees cease to be employed as such and become engaged as APS employees in a specified Agency. Non-APS employee means a person employed by the Commonwealth or by a Commonwealth Authority other than an APS employee. [126] The most relevant of the definitions contained in section 7 of the PS Act 1999 read: " 7 Interpretation In this Act, unless the contrary intention appears: Agency means: (a) a Department; or (b) an Executive Agency; or (c) a Statutory Agency. APS employee means: (a) a person engaged under section 22; or (b) a person who is engaged as an APS employee under section 72. APS employment means employment as an APS employee. Department means a Department of State, excluding any part that is itself an Executive Agency or Statutory Agency." [127] Unlike its predecessor, the PS Act 1999 makes no direct provision about recruitment, appointment or mode of engagement as an APS employee. However, a duty to apply merit based selection is implicit in paragraph 10(1)(b) of the APS values. That duty is reinforced by a power in the Public Service Commissioner to issue Directions in writing in relation to APS values, and by an obligation on Agency Heads to uphold APS values and apply the code of conduct 70 . The Public Service Regulations 1999 set out the circumstances in which a person may be engaged for a specified term or specified task 71 . Extensions are allowed within prescribed limits, subject to a requirement that the total term not exceed three years, subject to exceptions related to term employees who became APS employees consequential to the PECTA Act. The Public Service Commissioner's Directions 1999, Chapters 3 and 4, contain requirements that apply to the engagement of employees. Those Chapters set guidelines about diversity in APS employment and engagement of APS employees. [128] The reference in the Act to a person in employment under the PS Act 1999 encompasses persons engaged as APS employees in any of the three categories. Persons employed under the authority of another Act are not caught by that limb of the definition of Commonwealth public sector employee. However, such persons would be within another limb, employment by authority of a law of the Commonwealth . The scheme of the PS Act 1999 acknowledges that employment of non-APS employees is generated through the exercise of powers external to the PS Act 1999, but referred to in section 6(1). [129] We have considered whether it is consistent with the PS Act 1999 for there to be employment under it, of employees who are not employed as APS employees. The headings and wording of sections 6 and 22 raise the possibility of "employment" being distinguishable from "APS employment". Any such construction does not survive a scrutiny of the context. In our view, only one class of employment is provided for under the PS Act 1999: APS employment. Under the PS Act 1999 an Agency Head has no power to engage employees other than under sections 22, 73 and indirectly 72. The power in section 22 must be exercised to engage only APS employees. [130] The meaning and connotations of the expressions engage and engagement are among the keys to the determination of this case. In the context of legislation about the constitution of a public service "engagement" appears to have been selected as a less formal substitute for "appointment" . Appointment describes the outcome of a process that was associated with public service officers under the PS Act 1922. The most recent version of that statute applied the term "engagement" to four categories of "employees" who did not hold an " office " 72 . Earlier versions generally made a similar distinction between a power to appoint to an office, and a power to "employ" a person in a temporary capacity 73 . In Fowell v Ioannou, Bowen CJ and Northrop J noted that dichotomy between classes of employment in an earlier version of the PS Act 1992; before observing: "... That power of employment, in the sense of engagement, was subject to compliance with conditions precedent, namely the executive director forming the opinion specified in sub-s. (1) and the Public Service Board exercising its power to "authorize the employment of" the respondent under the proviso to sub-s. (2). If it became necessary for decision, there is much to be said for the view that the word "employment" when used in s. 82 is used in the sense of "engagement". A chief officer is empowered to engage persons in a temporary capacity. In so doing the chief officer does not become the employer of the person so engaged. The person so engaged becomes an "employee" within the defined meaning of that word. He also becomes an "employee" in the normal sense of that word, namely as a servant in a master and servant relationship. The terms and conditions of that employment are to be found in the code contained in the relevant Acts and regulations. Section 82 does not refer to a contract of employment." 74 [131] We see no basis upon which it would be appropriate to do other than construe the term "engagement" in the PS Act 1999 in a manner consistent with that reasoning 75 . We take it to mean action by a person with appropriate authority, to engage by a formal notice or binding legal obligation, a person as an APS employee. No specific mode of expressing a decision to engage is prescribed 76 . However, the power may be subject to procedural obligations or conditions that bind the decision-maker to apply a prescribed process. Where an engagement is in issue it is a question of fact whether the power has been exercised. A relatively informal act may suffice, provided it is made clear that the power is exercised 77 . Although engagement in that sense is not merely or simply contractual, the requirement for it does not preclude the resultant relationship being contractual in character 78 . 12. EMPLOYMENT UNDER ANOTHER ACT OR LAW OF THE COMMONWEALTH: [132] Paragraph 170CD(1)(c) of the Act, subsection 6(1) of the PS Act 1999, and the more general reference in subsections 170CB(5) and (6) of the Act to employment of an employee , leave open the possibility that a relevant employment relationship may be created other than by an engagement as an APS employee. The first provision contemplates employment of a person by authority of a law of the Commonwealth . The second leaves scope, outside the PS Act 1999, for engagement as an employee to perform functions in a Department under the authority of another Act . [133] In the context of paragraph 170CD(1)(c), a law of the Commonwealth should be taken to be a term of art. The phrase has been construed to encompass legislation, regulations, ministerial orders and industrial awards made by or under the authority of the Commonwealth Parliament 79 . That expression does not denote the common law of Australia. However, subject to an act by, or on behalf of, the Commonwealth being done under authority of a law of the Commonwealth, it would appear that the common law would generally operate upon it in the same way as it would upon the act of a subject. Thus, Dixon J, as he then was, in AG(NSW) v Perpetual Trustee Co Ltd 80 , in a passage quoted with approval by McGarry 81 , pointed out: "... There have always been employments under the Crown where the command and direction of the Crown given mediately or immediately is the sole measure of the duty of the servant. Where the right of control exists in the Crown and extends to the manner in which the employment is carried out, that is, to the doing of the work, the test of the relation of master and servant is satisfied. Why should it be supposed that where a relation exists that is typically that of master and servant the fact that the Crown is the employer places it in a different category? The Crown in right of New South Wales and in right of the Commonwealth may be sued in tort. No one has yet denied that the Crown is liable for the tort of an officer committed within the scope of his duty, except in situations where the duty which he is attempting to fulfil is one cast upon him by law to be executed as an independent responsibility, so that the Crown is not acting through him. ..." [134] More recently, Branson J, in a single instance decision, expressed views along similar lines when she stated: "The Commonwealth derives its executive power from the Constitution. The executive power of the Commonwealth plainly extends to the maintenance of a Commonwealth public service (s.64 of the Constitution). Where the prerogative or governmental powers to be implied from ss.61 and 64 of the Constitution are regulated by statute, such statute must be complied with (New South Wales v Bardolph (1934) 52 CLR 455 per Rich J at 496). However, the Public Service Act, the Finance Regulations and, to the extent relevant, the Finance Directions, do not purport to, and do not, constitute a code concerning the employment of members of the APS, or concerning the manner of payment of their salaries. None of them contains provisions concerning when, if at all, and on what conditions, the Government may agree that deduction from the salaries of members of the APS may be made pursuant to authority given by individual members of the APS. Such matters, in my view, remain within the discretion of the executive government acting through the responsible Minister of State. To put the matter another way, neither the Audit Act, the Finance Regulations, nor the Finance Direction authorises or requires a determination of the kind here under challenge. 82 [135] We will return to aspects of the possible scope for operation of the common law of contract on employment with the Commonwealth. For present purposes, it is sufficient to note two points. The definition in the Act, Commonwealth public sector employee , and the regime for engagement of APS employees strictly so called, each contemplate such employment or engagement respectively being made by, or under, authority of statutes of the Australian Parliament, other than the PS Act 1999. Second, it should not be overlooked that the duty in subsection 6(1) of the PS Act 1999 about engagement of APS employees is specific to engagement as employees to perform functions in a Department or Executive Agency. With the emphasis we have added, that expression may be linked with the criterion: performance of functions in a Department. A criterion expressed in similar terms has been held to be the element in the position of "officer" which, in whatever varying degrees, distinguishes it from that of mere "employee" 83 . As Brennan J has observed, performance of functions derived from a source other than the orders of the employer characterises an "officer-employee" 84 . Although the notion of office in the Australian Public Service appears to be almost extinct, a criterion once used to distinguish it appears to have been carried over to the engagement of APS employees generally 85 . [136] In relation to the first of those points, for the purposes of this matter, a statutory basis for any employment would appear to be dependent upon the precursor of the PS Act 1999: the "old Act", the PS Act 1922; upon the Defence Act 1903-2002; upon the Naval Defence Act 1910-2001 , or upon the recently repealed Supply and Development Act 1939-1999. [137] That much may be inferred from the statutory provisions, prescriptions and sources to which we have already referred. An opinion of Professor Enid Campbell, although given in 1975, explains the need to examine the statutory field but lends weight to confining it: "... Legislation may affect crown contracting in a variety of ways. It may restrict the class of persons authorised to contract on behalf of the Commonwealth. It may regulate the manner in which contracts may be negotiated and concluded and it may prescribe conditions precedent to the incurring of a contractual obligation, e.g. the appropriation of funds by Parliament or the giving of approval of a Minister. Legislation may cover a particular field of government activity so completely that it either excludes the operation of ordinary contract law over that field of activity, or else establishes a largely statutory body of contract law. ... In New South Wales v. Bardolph [(1934) 52 C.L.R. 455], Rich J. stated the general principle to be that "When the administration of particular functions of Government is regulated by statute and the regulation expressly or impliedly touches the power of contracting, all statutory conditions must be observed and the power no doubt is no wider than the statute contemplates [Id. at 496. See also Commercial Cable Co. v. Government of Newfoundland (1916) 2 A.C. 610; Mackay v. Attorney-General (British Columbia) (1922) 1 A.C. 457; Commonwealth v. Colonial Ammunition Co. Ltd. (1924) 34 C.L.R. 198 at 219-20]. Legislation restrictions and conditions cannot be waived [ Attorney-General for Ceylon v. A.D. Silva (1953) A.C. 461 at 480-1. See also Minister of Agriculture and Fisheries v. Matthews (1950) 1 K.B. 149] and contravention of them will normally deprive agreements subject to them of legal effect. ... ... The operation of the common law in relation to contracts of service with the Crown in right of the Commonwealth has been largely superseded by the statutory law contained in the Public Service Act 1922-1975, the Supply and Development Act 1939-1948 and the Naval Defence Act 1910-1973. Treasury Regulations made under the Audit Act 1901-1969 deal generally with procurement." 86 [138] The PS Act 1922 was in force for a period extending from before the commencement and over most of the period of operation of the first four of Mr Arends' contracts. It was repealed on 11 November 1999 upon the coming into operation of the PS Act 1999. Essentially, the scheme of that Act was to constitute the Australian Public Service by officers and employees; to provide for the creation and classification of offices in it, for appointment of persons to particular offices, for recruitment procedures, and for the employment of employees in circumstances where an ongoing office was not required . Exceptions from application of the Act were allowed for classes of officers or employees exempted by order of the Governor General on recommendation from the Public Service Board. The Act also provided in Division 10 for four categories of employees 87 . The most relevant of those provisions would appear to be sections 82AD. It provided for engagement of short term employees: "Employment of short-term employees (1) Subject to this section, the Secretary of a Department may engage persons as short-term employees in the Department. ... (4) Subject to subsection (7), the period of engagement of a short-term employee shall not exceed: (a) if a period (being less than 12 months) is approved by the Board in relation to the class of employee in which the person is included - that period; or (b) in any other case - 3 months. ... (6) Where the period of engagement of a short-term employee in a Department expires, the employment of the employee is not thereby terminated, but the Secretary of the Department shall: (a) if the Department no longer requires assistance of a temporary nature in the performance of the duties of the employee - terminate the employment of the employee; or (b) in any other case - recommend to the Board that the employment be extended. (7) On receipt of a recommendation under paragraph (6)(b) in relation to the employment of a short-term employee, the Board shall: (a) if it is satisfied: (i) having considered the need to maintain the service as a career service - that it would not be appropriate to use the services of an officer to perform the duties of the employee; and (ii) having considered the need to maintain a stable work-force - that it would not be appropriate to use the services of a continuing employee to perform those duties; extend the period of engagement of the employee for such further period as it thinks appropriate; and (b) in any other case - terminate the employment of the employee with effect from such date as it thinks fit and, if the period of the engagement of the employee has expired, or would expire before that date, extend the period of engagement until that date. ... (9) Where at any time: (a) as a result of an extension of the period of engagement of a person under subsection (7), the person is employed as a short-term employee; and (b) the period of engagement of the person (including the period as so extended) has subsisted for the period of 1 year immediately preceding that time; any continuation of the employment of the person from that time shall be deemed to be employment as a continuing employee. ..." [139] Mr Brady, it may be recalled, relied upon the proposition that a short term employee, whose period of employment was extended beyond 12 months under subsection 82AD(7), was deemed to be an ongoing employee 88 . Upon the repeal of the PS Act 1922, the Public Employment (Consequential and Transitional) Amendment Act 1999 (the PECTA Act), converted short term or fixed term employees to engagement as an APS employee for the unexpired term of the respective engagement. Persons who were already ongoing employees were deemed to be engaged as ongoing employees under the new Act 89 . It would follow that, if Mr Arends were to be conceived as being so employed in 1996 for a fixed or short term, and his period of engagement was extended for a further 18 months by inferred approval of the Secretary of Defence, subsection 180AD(9) would operate to cause the continuation of the employment to be deemed as employment of a continuing employee. The PECTA Act, upon coming into force, converted continuing employees to ongoing APS employees. [140] Mr Crow countered that proposition by relying upon procedural conditions about the engagement of short term employees imposed by section 82AE, and upon the absence of any indication that the engagement of Mr Arends was at any time expressed to be made under the terms of section 82AE, or authorised by anyone holding a delegation under the PS Act 1922. He led no evidence about who held any such delegation. [141] In the circumstances, it may be relevant to note a feature of the period between the expiry of Mr Arends' second contract and the commencement of his third contract between July 1996 and January 1998. A substantial devolution of authority to approve appointment, engagement and extensions of term appointments under the PS Act 1922, was implemented. A "streamlining" of recruitment procedures, was introduced by the Government that took office in 1996. With effect from 1 September 1996, the then Public Service Commissioner, Peter Shergold, "remade" delegations under the PS Act 1922. Among other changes made, Secretaries of Departments were delegated to exercise a number of powers including appointments of "officers" below Senior Executive Service level, and to extend a term of employment under subsection 82AD(7) 90 . Those changes were associated with a policy guideline to be issued by the Public Service Merit Protection Commissioner: " Less Process Better Results - Minimum Performance Standard for Recruitment of Staff " in October 1996. For the purposes of this decision it is sufficient to note that as at September 1996, no recourse to the Public Service Commissioner was necessary to extend a term employment under subsection 82AD(7). The Secretary of Defence held the necessary delegation. [142] The PS Act 1922 also contained a notable provision not referred to in the submissions put to us by either party; section 8A, Exempt Officers and Employees . That provision enabled the Governor General to declare, by order, that the provisions of the PS Act 1922 or specified regulations not apply to officers of employees included in a class specified in the order. Our research was not sufficiently exhaustive to identify what use of that provision remained extant between 1994 and 1999. The power to recommend that the Governor General declare that provisions of the Act not apply was delegated by the Public Service Commissioner in September 1996 to the Secretary of the Department of Industrial Relations 91 . That exercise indicates little more than that the power was sufficiently extant in September 1996 to warrant delegation. No material was readily available to indicate that any relevant use was made of it and in force at the time relevant to the formation of Mr Arends' employment between 1994 and 1999. Nor was any evidential material adduced to contradict that possibility. [143] We have included reference to it because material available in public documents indicates a history and use of "exempt employees" that is relevant enough to discourage us from completely discounting any possible use of the power to meet the staffing exigency to which Mr Arends' engagement was a response. An Appendix to a report commissioned for the Royal Commission on Australian Government Administration in 1976 is a conveniently available source. It listed employee employed as ... Radiographer in a general exemption for purposes of the class exemption list. The relevant item in the list also covered allied health workers employed as Medical Laboratory Technologist; Occupational Therapist; Pharmacist; Social Worker; and Physiotherapist. [144] The authors of the report, L.G. Cupper and K.W. Hince pointed out: " Exempt Employment 1.8 ... pursuant to Section 8A(1) of the Act, officers or employees may be exempted from all or certain provisions of the Act and Regulations. The nature and forms of exempt employment can be discussed under four headings: (i) Class Exemption List (ii) Group Exemption (iii) Short-term engagement of individual staff (v) Special Exemption Orders 1.9 The current Class Exemption List is an order by the Governor-General in 1967 under Section 8A(1) and amended in 1968 and 1969. The Governor-General on the recommendation of the Board has in effect declared that persons in specific employment categories, and Departments employing such persons, are exempt from certain provisions of the Act and Regulations. A copy of the Class Exemption List is Appendix 1. The classes of employees and designations included in the list are exempted from the following requirements only of the Act and Regulations.* (i) The mandatory provision in subsection (3) of section 82 that temporary employees should be paid not less than a rate within the limits of payment prescribed for permanent employees for similar work. (ii) The need to register for temporary employment. (iii) The need to secure the Public Service Inspector's approval for engagement. (iv) The limits on the duration of temporary employment. (v) The mandatory provision that the recreation leave conditions of temporary employees should be as prescribed, i.e. as laid down in the Public Service Regulations. * The specific Sections of the Act and Regulations are also detailed in Appendix 1. Group Exemption 1.10 The exemption power of Section 8A(1) has also been used to enable, for a limited number of designations in the service, a direct matching of rates of pay of the dominant employer in a particular State or category. Such designations are exempted from the salary provisions of the Act and Regulations and include inter alia social workers in Queensland and radiographers in Victoria, Queensland and Tasmania. These designations form part of the Class Exemption List." 92 [145] That and other public documentary sources are sufficient to establish that, from at least 1964 to 1984, Radiographers were in relatively short supply, had a relatively low incidence of use in Commonwealth employment, and that needs for them were met through exempt employee arrangements under section 8A of the PS Act 1922 93 . Those needs were not confined to the Department of Veterans Affairs, as the general exemption for Radiographers in the class exemption list discloses. However, the class exemption list appears to have been repealed in early July 1986 94 . Section 8A remained extant until November 1999. On the material available, we are unable to establish whether any special measures, other than contracts for services, may have been used, between 1994 and 1999, to meet exigencies of the kind that had been met by use of class exemptions of categories of employment by the Department of Defence. None the less, we consider it safe to assume that after 1996, authorisation under section 8A of the PS Act 1922 was available to the Secretary of the Department. We cannot discount the possibility that action under such an authorisation may have been among the measures and delegations introduced to further a more streamlined and flexible human resourcing process than that which might be reconstructed from an examination of the bare provisions of Part 10 of the PS Act 1922. [146] Finally, we note in this context section 10 of the Supply and Development Act 1939 - 1999 , (the S&D Act). It allowed for the employment of persons in connection with defence related " undertakings ". We have no reason to assume that HMAS Albatross, or any aspect of Mr Arends' engagements or service, was within, or for, such an undertaking . Except for "officers" unattached from the APS, employment under the S&D Act clearly fell outside the application of the PS Act 1922. The existence of such employment may have some bearing upon the construction of subsection 6(1) of the PS Act 1999. However, the S&D Act was repealed by the Defence Legislative Amendment Act No. 1 of 1999 from 1 January 2001. In the circumstances, we make no further reference to it. 13. THE NAVAL DEFENCE ACT 1910-2001: [147] The Naval Defence Act 1910 - 2001 (the ND Act) remains in force. It has a direct bearing as a source of authority to create an employment relationship under a law of the Commonwealth. Part VI, so far as relevant, reads as follows: " Part VI - Special powers in relation to Naval ships, Naval establishments and civil employment 40 Interpretation 40 Interpretation (1) In this Part, unless the contrary intention appears: authorized person means a person appointed by the Minister in writing to be an authorized person for the purposes of this Part. .... determination means a determination made under section 42A. industrial award means an award within the meaning of the Workplace Relations Act 1996 . 42 Employment of persons in civil capacity The authorized person may, on behalf of the Commonwealth, engage persons for employment in a civil capacity (whether within or without Australia) in or in connexion with a naval establishment or otherwise in connexion with the Navy. 42A Determination of conditions of employment (1) The authorized person may, by instrument in writing, determine the terms and conditions (including rates of pay and allowances) applicable to the employment of persons under section 42. (3) A determination takes effect from the date on which it is made or, if it is expressed to take effect from another date specified in the determination, from that other date. .... (5) A determination may make provision for or in relation to terms or conditions of employment by applying, adopting or incorporating, with or without modification: (a) the provisions of any Act, or of any regulations, as in force at a particular time or as in force from time to time; or (b) any matter contained in any other instrument or writing as in force or existing at the time when the determination takes effect. (6) Determinations shall be deemed not to be Statutory Rules within the meaning of the Statutory Rules Publication Act 1903. (7) Nothing in this section affects the application of the Workplace Relations Act 1996 in relation to persons employed under the last preceding section. 42C Public Service Act not to apply (1) Subject to the next succeeding subsection, the Public Service Act 1999 does not apply to persons employed under section 42 of this Act. (2) Section 75 of the Public Service Act 1999 applies in relation to a person employed under section 42 of this Act as if he were an APS employee, within the meaning of that Act, employed in the Department. 42D Transfer of persons where functions are to be performed by a Commonwealth authority ..." [148] As part of the elaboration upon the statutory and regulatory background to the issues in the matter, an affidavit sworn by Ms Henley on 13 February 2003 was presented and accepted as evidence 95 . It was intended to rebut a contention by the Respondent, to the effect that section 42 of the ND Act, may have application to the case at hand. [149] Ms Henley stated that: "3. Employees of Defence are members of the Australia Public Service ("APS") and are engaged pursuant to the Public Service Act 1999 ("PSA 1999"). Prior to 5 December 1999 members of the APS were subject to the Public Service Act 1922. 4. Members of the Australian Defence Force are not employees of the Commonwealth and are not subject to the PSA 1999. 5. Prior to 15 May 1994 certain persons were employed in relation to naval establishments pursuant to s.42 of the Naval Defence Act 1910. Those persons were employed in physical grades classifications, on duties such as gardening, kitchen hand, driving, cleaning, machine operating and also some maritime activities. There were no classifications for health professionals under the Naval Defence Act 1910 and I have found no record indicating that health professionals were employed pursuant to s.42 of the Naval Defence Act 1910. 6. The Public Service Commissioner directed that persons employed under the Naval Defence Act 1910, other than some of those engaged on maritime activities, be transferred to the APS with effect from 15 May 1994. A copy of the Determination is attached. 7. The last employee engaged under s.42 of the Naval Defence Act 1910 was a holder of a maritime classification in the Master Attendant's Branch and he ceased employment on 5 March 1999. Since that date no further persons have been engaged as employees pursuant to s.42 of the Naval Defence Act 1910." 96 [150] Mr Crow asserted, and we accept the assertion, that classifications and pay rates for persons employed under section 42 of the ND Act were generally covered by "Determinations" made by authorised officers 97 . However, it would appear that failure to exercise the power in section 42A of the ND Act would not be a circumstance affecting the application of the Act to a person employed under section 42 of the ND Act. Nor does Mr Crow's assertion clarify who, at any relevant time, was an "authorised officer" for the purposes of section 42 of the ND Act. The holders of job position 21529, occupied by Commander Westphalen and Thomas, denied that they held authority to engage employees under the old or new PS Acts, or any other Act 98 . [151] Mr Crow put the negative defence that Mr Arends had failed to establish the jurisdictional fact that he was engaged under another Act, or that the person who signed the relevant contracts was an authorised person under section 42 of the ND Act 99 . For several reasons we draw no adverse inference against Mr Arends, but might more readily be persuaded to do so against the Department. Authority to sign contracts on behalf of the Commonwealth does not exclude the exercise of authority at higher levels to approve a form of contract that was ambivalently an employment. Not only the MAO, but the most senior levels of the DHS were, or may reasonably be taken to have been informed by mid-1999 of a predicament about the use of CHPs. We draw an inference from Commander McCrow's circulated message, and from the content of the DI(G) ADMIN 24-1. It is that the contradiction between the high degree of integration and control of CHPs like Mr Arends, and the continuing use of a contract for services as the mode of engagement, was understood within the DHS. Information about delegations and levels of authority under any of the Acts administered by the Department is singularly within the knowledge of that Department as a collective entity. Such information, as our own research has proved, is not readily accessible to a person external to the Department. [152] Moreover, the Full Bench sought to obtain through Mr Crow, a response clarifying the delegations available to those who appear to have made, by action or inaction, decisions about Mr Arends' engagements. The evidential material produced did not exclude the availability at approving level of delegated authority from the Secretary to approve various forms of employment as exempt employee, or under the Naval Defence Act 1910 . Such authority was presumably, or actually, available to the Secretary at relevant times. Several possible permutations for different levels of authority, exercisable by the MAO, or by more senior officers, were not excluded. Indeed, the scope for approvals at levels senior to the MAO were not touched upon by the Department's direct evidence which was effectively confined to the officers attesting the contract. [153] We shall return to an aspect of that question. We also note that section 42C of the ND Act operates to exclude the operation of the PS Act 1999 to persons employed under section 42 of the ND Act. 14. THE DEFENCE ACT 1910-2002, THE FINANCIAL MANAGEMENT AND ACCOUNTABILITY ACT 1997 AND RELATED PROVISIONS: [154] Finally, and most importantly in this context is the Defence Act 1910 - 2002 (the Defence Act). Section 9A of the Defence Act provides for the administration of the Defence Force by the Secretary of the Department and the Chief of the Defence Force. In the following extracts, it may be noted that: (1) having the administration of the Defence Force appears to be a plenary grant of power; (2) instructions known as the Defence Instructions (General) and the defence Instructions (Navy) are made in implementation of that administrative power. [155] Section 9A is the source of DI(G) ADMIN 24-1. So far as relevant it reads: " 9A Administration of Defence Force (1) Subject to section 8, the Secretary and the Chief of the Defence Force shall jointly have the administration of the Defence Force except with respect to: ... (2) Instructions issued by or with the authority of the Secretary and the Chief of the Defence Force in pursuance of the powers vested in them jointly by virtue of subsection (1) shall be known as Defence Instructions (General). ... (4) Where Defence Instructions (Navy), Defence Instructions (Army) or Defence Instructions (Air Force) are inconsistent with Defence Instructions (General), the Defence Instructions (General) prevail and the Defence Instructions (Navy), the Defence Instructions (Army) or the Defence Instructions (Air Force), as the case may be, shall, to the extent of the inconsistency, be of no effect. (5) Evidence of Defence Instructions (General), Defence Instructions (Navy), Defence Instructions (Army) or Defence Instructions (Air Force) may be given in any proceedings in or before a Court, a service tribunal, the Defence Force Discipline Appeal Tribunal, or any other tribunal, by the production of a document purporting to be a copy thereof." [156] We have outlined sufficiently the relevant provisions of the DI(G) ADMIN 24-1 issued under that authority. Those directions and the associated guidelines elaborate the general source of authority to procure and pay for services. We have referred to much of that material in our narration of Mr Arends' contracts. For present purposes, it is sufficient to note that the Defence Act, in association with the FMA Act is the core source of statutory authority for the arrangements entered into with Mr Arends. [157] The contracts into which Mr Arends entered were manifestly made under authority sourced to the DI(G) ADMIN. That authority stemmed from the FMA Act and section 9A of the Defence Act. Those contracts and the evidence as a whole justify the conclusion that those responsible for procuring his services, and for then paying for them, on behalf of the Department, can be found to have intended to act under the authority of those laws of the Commonwealth. [158] With some reservation, we accept that those who signed the contracts did not intend to create by the contract an employment relationship. Rather, it is likely that their objective was to establish a relationship that was not an employment relationship. Our reservation is that the evidence, and to some extent the statutory framework, suggest that a power to enter into a contract for services was used to displace a need for an employment. The question that is to be determined on this appeal is whether the use made of the form of contract for services with Mr Arends did avoid being an employment, at least for the purposes of the Workplace Relations Act 1996. For that reason, and perhaps generally, any subjective intention of Commanders Westphalen and Thomas is a consideration without much weight. 15. DETERMINATION: [159] Under the preceding headings we have analysed the legislative framework that applied in the past, and now applies to the Department as an employer. That analysis leads us to accept that the apparently minor saving made by subsection 6(3) of the PS Act 1999 has proved to be full of meaning. Subsection 6(1) creates an obligation for all persons engaged as employees to be engaged under the PS Act 1999, or under the authority of another Act. Subsection 6(3) declares that obligation does not by implication affect any power that an Agency Head might have to engage persons as independent contractors 100 . [160] A concession is made in this case that the use of such a power has given rise to a relationship that may properly be characterised as a common law employment. On the evidence, and on our analysis of the statutory and administrative background, the circumstances of this case are not accidental. Indeed, it may reasonably be concluded, and we do conclude, that a deliberate use is made of a form of contract for services in circumstances where requirements for a statutorily authorised employment or a common law employment are clearly met. Mr Arends' first and last contracts were made to meet the circumstance that a uniformed health practitioner is not available and a vacancy exists within the unit establishment 101 . [161] It follows that the resort to a contract for services with Mr Arends was a purposeful substitute for an employment. Moreover, it appears reasonable to infer from the evidence generally, that for there to be a vacancy in the unit establishment, an authorisation for an employment existed prior to the action to engage Mr Arends. More than likely any such authorisation would have been for a member of the Defence Force; but that is another of the points of detail on which no conclusive evidential material is available. Of course, authorisation of a position in an establishment is not the same as authorisation of the filling of it, or authorisation of the engagement of a person as an employee in the establishment. None the less, the conditions for and practice associated with the engagement and use of CHPs, reinforces our conclusion that Mr Arends' contract for services was incidental to a systemic use of that form of engagement to meet a known ongoing need for service not readily distinguishable from the service required of an employee. [162] Accordingly, we see no reason why the authorisation under the Defence Act and related provisions of a contract for services is any less an authorisation where it transpires that the contract, as a matter of law, is to be characterised as a contract of service. [163] We have had regard to a commentary on Government contracting based on Professor Campbell's paper, but written some years later by Dennis Rose. The discussion does not go directly to points at issue in this matter. However, the following observations have persuasive relevance. (In reproducing them we have included his footnotes as our own.) "Nowhere do the Audit Act 1901, the Finance Regulations or Finance Directions confer any power to make contracts. They are drafted on the basis that the power is derived elsewhere, and are concerned only with regulating the exercise of that power. ... Clearly a Minister cannot be expected to deal personally with the multitudinous contracts in which her or his Department is concerned, and can expressly authorise others to make contracts. Furthermore, there is the principle in Carltona Ltd v. Commissioners of Works 102 under which an officer at an appropriate level has implied authority to act for and on behalf of the Minister within the scope of the Minister's actual authority, unless the Minister has given express or implied instructions to the contrary, or unless the authority is expressly or impliedly excluded by or under any valid legislation. On this basis the Secretary of a Department 103 has been held to have authority in relation to matters within the area of that Department's responsibilities and, in view of the Finance Regulations in respect of purchase order, any officer authorised by the Secretary to issue purchase orders, and any other departmental officer within the scope of his official duties, probably has authority, subject to the effect of non-compliance with the Finance Regulations (see below), to bind the Commonwealth, at least within the limits reasonably to be regarded as usual in the case of an officer of the particular level 104 . It may be that anyone "held out" by the Governor-General in Council, or by a Minister within the scope of his actual authority from the Governor-General in Council under an A.A.O. or otherwise, could bind the Commonwealth in contract 105 . ... Crothall Hospital Services 106 supports the view that actual authority will readily be inferred. The Full Federal Court reasoned that, when the making of payments implied to the supplier an acceptance by the Commonwealth of the supplier's offer, this implied acceptance must have had the authority of those unidentified persons (whoever they may have been) who were competent to give it. The case thus shows a readiness to make inferences needed to justify a finding the Commonwealth is bound in circumstances where the justice of the case is thought to warrant it." 107 [164] In Commonwealth of Australia v Ling 108 , Beaumont J cited that paper with general approval. His Honour dealt in that matter with a series of defences pleaded against the Commonwealth which sought to rely upon a form of contract. His Honour's reasoning is consistent with an acceptance that the Commonwealth's modern power to make contracts operates according to law, without need for direct legislative authority to make a contract of a specific kind, subject to it not being curtailed by a relevant statute 109 . [165] In our view the authorisation of Mr Arends' serial contracts for services was effectively an authorisation under the Defence Act and DI(G) ADMIN 24-1 of a contract of service. Therefore, he was at all material times up to the termination of his service, a person in employment by authority of a law of the Commonwealth. On the test we have summarised at [112], Mr Arends was a Commonwealth public sector employee and therefore within jurisdiction for purposes of section s 170CE and 170CK. Moreover, and for separate reasons, including those we have already given at [121], and [159] to [160], Mr Arends was an employee, and therefore within jurisdiction for purposes of section 170CK of the Act. [166] It is appropriate to indicate also our conclusion that Mr Arends was at no time engaged under the PS Act 1999, or under the Naval Defence Act 1910 . It is not necessary for us to fully detail our reasons for that conclusion. We consider that authority to have engaged him under either of those enactments existed in the Department throughout his employment. Had the process available been applied in 1996, Mr Arends would almost certainly have been converted, by the PECTA Act, to ongoing APS employee status under the PS Act 1999, upon its coming into operation. [167] No such action to engage him in terms appropriate to employment under those enactments was ever taken. Mr Arends himself may not have welcomed such action if a threat to his existing conditions was a concomitant of it. We do not attribute the failure to engage him as an employee in terms appropriate to those enactments to a lack of intention on the part of the Agency Head, or for that matter the signing officer. Rather, the course of conduct and the process of both parties was manifestly not consistent with a legally binding engagement specific to employment under those enactments. [168] We note also that we have not pronounced upon several points raised in submissions or arising from our consideration of the circumstances. Some points of that kind are developed in our analysis. We have taken them no further in the absence of a basis for conclusive findings, or for our use of the point as a consideration of determinative weight. We consider that facts that are not contested by either party are a sufficient and sound basis to determine the jurisdictional point at issue in this matter. [169] In summary: we conclude that the contract held by Mr Arends was approved by authority of a law of the Commonwealth. Indeed, the contract was in the form mandated by the DI (G) ADMIN 24-1 instruction. The operational execution of that form of agreement caused it to be, in law, a contract of service. A legal characterization of the contract in its total operation to that effect was in contemplation by the Department as the Agency responsible for the continued use of that form of engagement. However the Department sought to rely upon the availability but non-use of other, statutory, forms of employment to escape that consequence for purposes of the Act. The use of the statutorily available forms of employment for Mr. Arends was eschewed by the Department. That avoidance occurred within a legislative administrative perspective that appears to have been designed to allow, perhaps even encourage, a more or less arbitrary substitution of "independent contractor" engagements for the statutory forms of employment enabled, or more recently mandated by the PS Act 1999 under a regulatory regime said to espouse merit and equity principles. Mr Arends' relationship with the Department was characterised as effectively an employment for purposes of the superannuation and taxation regimes. We can find no adequate reason in the relevant definitions of the Act to characterize it otherwise, or to read them as intended to exclude it. No other enactment precludes Mr Arends' contract and service from being held to be an employment. [170] For the reasons given, we grant leave to appeal, we find that Mr Arends was at all relevant times a Commonwealth Public Sector employee , and an employee for the purposes of Part VIA of the Act; we dismiss the Department's objection to jurisdiction; we dismiss the appeal. BY THE COMMISSION: JUSTICE P.R. MUNRO Appearances: R. F. Crow, of counsel, with J. Heard , and K. Henley for the Department of Defence. P. Brady , solicitor, for Mr Arends. A. Rich for the CPSU, the Community and Public Sector Union, intervening. Hearing details: 2003. Sydney: February 17. Printed by authority of the Commonwealth Government Printer <Price code K> 1 PR922852. 2 Submissions of the Department of Defence and amended notice of appeal were received on 13 December 2002, and marked COM1; submissions of Mr Arends, received 31 January 2003: marked A1; those of the CPSU intended to be relied upon were received on 14 February 2003 and marked CPSU1. The Department's submissions in reply were tendered during the hearing before the Full Bench on 17 February 2003: COM4. In addition, the following material was also tendered on behalf of the Department during the hearing: a table summarising the relevant contracts between the parties: COM5; Extracts from a document entitled DRB47 - Manual of Financial Delegations , Date of Print: 30/08/00: COM6-8. 3 Transcript, PN52. 4 Sammartino v Commissioner Foggo [1999] FCA 1231; Pawel v Australian Industrial Relations Commission [1999] FCA 1660. 5 The second contract in the series, dated 20 June 1995, was located after Drake SDP's decision. 6 The Department submitted that the form of Mr Arends' several contracts was mandated by the Defence Instruction General ADMIN 24-1, issued pursuant to section 9A of the Defence Act 1903, as in force from time to time. 7 Appeal Book Vol 1 at p. 47. 8 Appeal Book Vol 1, clause 3 at p. 48. 9 Appeal Book Vol 1 at pp. 49-50 10 Appeal Book Vol 2 at p. 322. 11 Appeal Book Vol 1 at p. 41: Exhibit Arends 5. 12 Appeal Book Vol 2 at p. 42. 13 A Minute from Air Commodore Austin dated 12 December 2002, states that amendments were made to the Defence Instruction (General) ADMIN 24-1 (Amendment No. 10), issued on 31 January 2000. Further amendments have since been incorporated into DI(G) ADMIN 24-1 (Amendment No. 11), issued on 21 June 2001. 14 The Defence Instructions (General) ADMIN 24-1 as at 21 June 2001 were tendered before Drake SDP and marked Exhibit Arends 2. The additional evidential material included in Appeal Book Vol 2 adds the version of the Instructions, Amendment 8, in force at August 1992. The form of Mr Arends' first contract replicates almost exactly the form at Annex A to that Instruction. 15 Reproduced at Appeal Book Vol 2 p. 263. 16 Appeal Book Vol 2 at p. 74. 17 Appeal Book Vol 2 at p. 76. 18 Appeal Book Vol 2 at pp. 264 and 271. 19 Appeal Book Vol 2 at pp 78-79. 20 Appeal Book Vol 2 at p. 80. 21 Appeal Book Vol 1 at p. 33. 22 Appeal Book Vol 2 at p. 276. 23 Ibid clause 8. 24 Ibid clause 12 at Appeal Book Vol 1 at p. 36. 25 Appeal Book Vol 2 at p. 24. 26 Appeal Book Vol 1 at p. 15. 27 Appeal Book Vol 2 at p. 354. 28 Transcript, PN108-113. 29 Financial Management and Accountability Act sections 44 and 53; and Financial Management and Accountability Regulation 9. 30 Exhibits COM 6, 7 and 8: extracts from Defence Reference Book - No. 47: Manual of Financial Delegations : Transcript, P351-352. 31 Appeal Book Vol 2 at p. 83. 32 Ibid DHPD 90B at clause 3.1.3 33 Section 62 allows the Finance Minister to delegate certain powers and requires the delegate to comply with any directions of the Finance Minister. 34 Section 52 enables regulations to authorise the Chief Executive to give instructions to an officer on any matter on which Regulations may be made. 35 Amendment 11, DI(G) ADMIN 24-1 at [1(a)]: Appeal Book Vol 1 at p. 59. 36 According to a Minute of Air Commodore T. K. Austin dated 12 December 2002, amendments to the Defence Instructions (General) ADMIN 24-1 were issued on 31 January 2000 (No. 10) and 21 June 2001 (No. 11). 37 Appeal Book Vol 2 at 145-233, March 1996. 38 Ibid at 1.11 and 6.8. 39 Ibid Annex A to DEFPUR 301: Appeal Book Vol 2 at pp. 115-117. 40 Appeal Book Vol 2 at pp. 154-156. 41 Ibid DEFPUR 301 at pp. 5-6; Appeal Book Vol 2 at pp. 96-97. 42 DI(G) ADMIN 24-1 Amendment 11 at [14]: at p. 63 of Appeal Book Vol 1; a similar policy is stated in amendments 9 and 10 at [14]: Appeal Book Vol 2 at p. 268; and 298. The policy plainly dates from the revision made on 29 January 1999 by Amendment 9. Amendment 8 was the version of DI(G) ADMIN 24-1 in force at the time of the first two contracts. At [9] and [10], that Instruction allows negotiations for a contract engagement for a maximum of 12 months, with the option of renewal . It pointed out that Finance Directions exempt procurement of services of health practitioners from quotation or public tender requirements. 43 PR922852, paras 4-9. 44 (1986) 160 CLR 16. 45 PR922852 at [24] - [36]. 46 PR922852 at [39] - [40]. 47 PR922852 at [17] - [18]. 48 Transcript, PN220, in rebuttal to the CPSU submission that the Commonwealth's proposition is "capricious, arbitrary and unfair and should not be followed". 49 Transcript, PN192. 50 Transcript, PN188. 51 Transcript, PN203. 52 Transcript, PN210-211. 53 (1987) 162 CLR 427 at 437-438; Mason ACJ and Deane J agreeing at 430, 446. 54 Transcript, PN218. 55 Transcript, PN230. 56 During brief oral submissions, Mr Crow indicated that the argument on the section 67 point was intended to apply equally to both major grounds of appeal. 57 Clayton v Hefron ; Hunter Resources Limited v Melville (1988) 77 ALR 8. 58 Potter v Minahan (1908) 7 CLR 277; Bropho v State of Western Australia (1990) 93 ALR 207; Thompson v Australian Capital Television Pty Ltd (1994) 127 ALR 317 at 329; Balog v Independent Commission Against Corruption (1990) 93 ALR 469. 59 As outlined by McHugh JA in GJ Coles v Retail Trade Industrial Tribunal (1987) 7 NSWLR 503 at 527. 60 Official Trustee in Bankruptcy v Byrne (1989) 94 FLR 465. 61 Sammartino v Commissioner Foggo [1999] FCA 1231 per Moore, Marshall, Finkelstein JJ at [4] - [5] and see also Sammartino v Mayne Nickless Print S6212 at [3]. 62 (1986) 160 CLR 16. 63 Written Submissions by the Applicant on Jurisdictional Issues: [Undated]; Appeal Book Volume 1 at 164, although attachments referred to are not reproduced at those pages. Much of the detail was put to Lt. Bryant in cross-examination and accepted by him: Appeal Book Vol 1 at pp. 116-120; and 126-131. 64 See [55] above and reference. 65 Konrad v Victoria Police (1999) 91 FCR 95 at 127 per Finkelstein J with whom Ryan J at 101; and North J at 104 agreed. 66 The reservation is expressed only because the wording of the agreements signed by Mr Arends consistently described the services he provided as being to the Defence Force, and the Defence Health Service is defined in some of the agreements to be relevant services of the Royal Australian Navy and other arms of the Defence Service. 67 Sections 170LH and 170LI; sections 170VC; Definition of industrial action in subsection 4(1) refers to persons employed by the Commonwealth and see also paragraph 5(3)(d) and section 121. 68 Section 60: former Secretaries; section 73, payment in special circumstances; section 74, locally engaged employees; and perhaps section 78, delegations. 69 PECTA Act 1999 section 5 provided for the conversion of old Act officers, and continuing employees; or term employees respectively, to new Act ongoing APS employees or to APS employees for the unexpired part of the period of engagement under the old Act. 70 Sections 11, 12, 13 and 14 of PS Act 1999. 71 Regulations 3.5, 3.6 and 3.7. 72 Public Service Act 1922 , as in force November 1999: sections 10,.42, 82AC, 82AD, 82AE, and 82AF; contrast section13 Public Employment (Consequential and Transitional Provisions) Act1999 section13. It deems references in a statutory instrument to officers to be a reference to APS employees. 73 Public Service Act 1922 as amended March 1981: section 42 and subsection 82(1A). 74 (1982) 65 FLR 360 at 363; 370-371; Woodward J, although dissenting on other points, expresses a consistent view at 375-375. The High Court (Gibbs CJ, Mason, Murphy, Brennan and Deane JJ) in Ioannou v Fowell (1984) 156 CLR 328 reversed the Full Court decision but did so on a basis that included an acceptance by all parties that a person so engaged or employed was not within an exception covering persons engaged under " a contract of employment for a fixed term or term of years ": at 333; referring to paragraph 5(2)(d) of the Commonwealth Employees (Redeployment and Retirement) Act 1979 . 75 The observations of Brennan J in Director of Education v Suttling , quoted at [69] above, referring to authority to engage on terms (consistent) with the statute are compatible with that analysis. 76 The Explanatory Memorandum to the Public Service Bill 1999 (ISBN 064210488) at [2.2.4 - 2.2.6] lists references in the Bill to "notice in the Gazette" or "in writing". No reference to engagement is listed; the creation of a formal position under section 77 must be in writing. 77 McCarry: Ibid at pp. 52-59 and cases cited in relation to manner of appointment and proof of appointment. 78 McCarry: Ibid at pp. 18-21 and cases cited. 79 Spratt v Homes (1968) 114 CLR 226 at 276 per Windeyer J; Butterworths Australian Legal Dictionary: Law of the Commonwealth at p. 671. 80 (1952) 85 CLR 237 at 249. 81 G.J. McCarry: Aspects of Public Sector Employment Law 1988 at p. 11. 82 CPSU v Lionel Woodward , Chief Executive Officer, Australian Customs Service & Anor; CPSU v The Minister for Industrial Relations & Anor [1977] 688 FCA (30 July 1997) at p. 13 per Branson J. 83 Wool Selling Brokers Officers Association Case (1950) 67 CAR 224 at 227. 84 Re Oceanic Crest Shipping Co (1986) 160 CLR 626 at 662 - 664; and see McCarry; op. cit. at 15 to 18. 85 See Public Service Bill 1999: Explanatory Memorandum (Ibid) at [2.1.13] in relation to the adoption of the term APS employee ; and at [2.2.1] concept of office ; and see also [11.8.1] in relation to the power in section 77 to create " formal positions ". 86 Professor Enid Campbell, Australian Government Contracts (Research Paper No. 47, Royal Commission on Australian Government Administration 1974-1976) (Microfiche Ref. R47X at pp. 11 to 14). 87 Section 82AA. 88 Subsection 82AD(9). 89 Section 5 of PECTA Act. 90 Item 125: Remaking of Public Service Delegations: Commissioner's Delegations: Public Service Commissioner Publication and Legislation Archive. 91 Delegations: Remaking of Public Service Commissioner Delegations paragraph 18(5)(d) of PS Act 1922 by P.R. Shergold, Public Service Commissioner (27 August 1996): Schedule 1 at Items 201 and 202: Australian Public Service Commission Home Page. 92 L.E. Cupper and K.W. Hince: "Report on Categories of Employment and Terms and Conditions of Employment in the Australian Public Service"; at pp. 5-6 and Appendix 1, p. A8, Research Paper for Royal Commission on Australian Government Administration 1976, Part of Collected Papers of Royal commission Microfiche Record. 93 Print F6891: Re Inequity in Rates of Pay of Radiographers employed by the Department of Veterans Affairs : per Alley and Cohen JJ at 2, 3, 6 and 7. 94 Public Service Commission Memorandum: 19/06/86 81/5975 Repeal of Class Exemption List. 95 Exhibit COM2. 96 Ibid Exhibit COM2. 97 Transcript PN 99. 98 See text and references at [46] - [49] above. 99 Transcript, PN116-125. 100 The Explanatory Memorandum to the Public Service Bill 1999 stated of clause 6: " 1.10. All persons who are to be employed in a Department of State or an Executive Agency will be required to be engaged under this Bill, or under the authority of another Commonwealth Act (Bill s-cl.6(1) - no equivalent in 1922 PSA). This engagement will result in the person being an `employee' in the common law sense. ... 1.12. The Bill will not provide authority for the engagement of persons to perform services on a non-employee basis. 1.13 In addition, Agency Heads will still retain whatever powers they might otherwise have to engage independent contractors (Bill s-cl.6(3) - no change from current law but no explicit equivalent in 1922 PSA). A person who is called a `consultant' is not necessarily an independent contractor - that status will depend on the terms of the engagement." 101 Paragraph 1(1) DI(G) ADMIN 24-1, Amendment 11; Appeal Book Vol 1 at p. 59. 102 [1943] 3 All E.R. 560. 103 Coogee Esplanade Surf Motel Pty Ltd v. Commonwealth (1976) 50 A.L.R. 363 at 379 per Hutley J.A., with whom Moffitt P. and Glass J.A. agreed on this point; and see s. 25(2) of the Public Service Act 1922, which makes the Secretary responsible, subject to the Minister, for the general working of the Department. 104 See Commonwealth v. Crothall Hospital Services (Aust.) Ltd (1981) 54 F.L.R. 439; Coogee Esplanade Surf Motel (1976) 50 A.L.R. 363; contrast the sales clerk in Director of Posts and Telegraphs v. Abbott (1974) 22 F.L.R. 157. 105 The "holding out" will not give ostensible (or "apparent") authority to act on behalf of the Crown unless the person "holding out" had actual authority, express or implied: A.G. (Ceylon) v. Silva [1953] A.C. 461. It would be extraordinary if, for example, a Minister for Minerals and Energy, not himself having authority to borrow moneys on behalf of the Commonwealth, could give ostensible authority to the Secretary of his Department to borrow moneys on behalf of the Commonwealth. And if legislation provides the exclusive mode of entering into a contract, and is not treated as merely "internal" to the Government, no one can be "held out" as having authority to enter into it in any other manner: see below. 106 (1981) 54 F.L.R. 439 at 452. 107 Dennis Rose: The Government and Contract , at pp. 245, 248 and 251; included as Chapter 9 of "Essays on Contract" (1987) P.D. Finn Editor. 108 (1993) 188 ALR 309. 109 Ibid at [119] to [135].