Ansell, J.M. v Brewster, D.A

Re: JOAN MARGARET ANSELL
And: DONALD ARTHUR BREWSTER; PAUL WILLIAM HICKEY and MARIA LINKENBAGH; BARBARA
BYRNE and JOHN ROWLING constituting a Disciplinary Appeal Committee
No. ACT G61 of 1990
FED No. 262
Number of pages - 12
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J(1)

CATCHWORDS

Administrative Law - Judicial review - Officer of Australian Public Service charged and found guilty of disciplinary offences - Direction that officer be dismissed from Australian Public Service - Appeal to Disciplinary Appeal Committee on ground that direction unduly severe - Whether officer charged with disciplinary offences by officer having authority to do so - Whether authority ineffective because of error in identifying source of power - Whether Disciplinary Appeal Committee took into account irrelevant considerations

Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5

Public Service Act 1922 (Cth), ss.26, 56, 61, 62, 63D

Australian Broadcasting Tribunal v. Saatchi and Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1

Commissioner of Taxation v. Cripps and Jones Holdings Pty Ltd (1987) 17 FCR 55

University Staff Associations v. Academic Salaries Tribunal (1985) 19 FCR397

Amalgamated Television Services Pty Ltd v. Australian Broadcasting Tribunal (1989) 88 ALR 287, (1989) 91 ALR 363

HEARING

CANBERRA, 12 May 1992

#DATE 29:4:1993

Counsel for the respondents: Ms M.J. Beazley QC and Mr C.M. Erskine

Solicitor for the respondents: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

1. Paul William Hickey cease to be a party respondent to the application.

2. The application be dismissed.

3. The applicant pay to the first respondent his costs of and incidental to the application.

THE COURT DIRECTS THAT the above order for costs not be entered before 26 May 1993 within which time the Court will hear any submissions which the parties may wish to make seeking a variation of that order.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

NEAVES J This is an application by Joan Margaret Ansell ("the applicant") for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") in respect of a decision of the third respondents, Maria Linkenbagh (the Convenor) and Barbara Byrne and John Rowling (Members) constituting a Disciplinary Appeal Committee ("the Committee") established in accordance with the Merit Protection (Australian Government Employees) Act 1984 (Cth). That decision, which was made on 21 September 1990 and notified to the applicant on 2 October 1990, confirmed a decision made on 13 November 1989 by the first respondent, Donald Arthur Brewster, directing that the applicant be dismissed as an officer of the Australian Public Service.

The application was filed on 30 October 1990. An inordinate amount of time and effort was expended in seeking to have the applicant, who for the most part was not legally represented, identify the issues which were appropriate for judicial determination under the Judicial Review Act and file affidavits confined to the facts relevant to those issues. The history of the matter is traced in the judgment which I delivered on 15 November 1991. On that date I directed that the applicant, who was at that stage legally represented, file and serve a further amended statement of particulars of the grounds upon which she relied. I further directed that any further affidavits to be filed and served by the applicant be confined strictly to material necessary to support the grounds of which particulars were given in the further amended statement of particulars which I had directed be filed.
The further amended statement of particulars and a further affidavit sworn by the applicant were subsequently filed. The statement of particulars made clear that two grounds only were relied upon by the applicant, namely -

(a) that the Committee had no jurisdiction to make the decision under review (Judicial Review Act, s.5(1)(c)); and

(b) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made in that the Committee took irrelevant considerations into account in the exercise of the power (Judicial Review Act, ss.5(1)(e) and 5(2)(a)).

The series of events which culminated in the decision of the Committee, events as to which I do not understand there to be any dispute, may be shortly stated. On 9 August 1989 Ildo Alfredo Bongi, describing himself as an officer authorized by the Secretary of the Department of Employment, Education and Training for the purposes of s.61(2) of the Public Service Act 1922 (Cth), charged the applicant, who was then an officer of that Department, with a number of disciplinary offences, being offences of failing to fulfil her duty as an officer of the Australian Public Service. A schedule of the charges was prepared in the following terms:

"1. CHARGE A paragraph 56(d) 10 April 1989

2. CHARGES B1 TO B20 paragraph 56(f)(i)/section 91(1)(e) 4, 7, 8, 9, 14, 15, 16, 17, 18, 22, 23, 24, 25, 28, 29 and 30 November; and 1, 2, 8 and 12 December 1988 CHARGES C1 TO C20 paragraph 56(d)

alternative charges to charges B1 to B20

4, 7, 8, 9, 14, 15, 16, 17, 18, 22, 23, 24, 25, 28, 29 and 30 November; and 1, 2, 8 and 12 December 1988

3. CHARGES D1 TO D20 paragraph 56(f)(i), regulation 13(f) 4, 7, 8, 9, 14, 15, 16, 17, 18, 22, 23, 24, 25, 28, 29 and 30 November; and 1, 2, 8 and 12 December 1988

4. CHARGE E paragraph 56(f)(i), regulation 13(f)

10 April 1989"

The paragraph, section and regulation references are references to provisions of the Public Service Act and Regulations. The dates shown on the schedule are the dates on which the disciplinary offences charged were alleged to have occurred. The charges C1 to C20 were alternative to the charges B1 to B20.

Section 56 of the Public Service Act relevantly provided that an officer was to be taken to have failed to fulfil her duty as an officer if she engaged in improper conduct as an officer (par.(d)) or if she contravened or failed to comply with a provision of the Public Service Act or Regulations (par.(f)(i)). Section 91(1)(e) provided that, except with the express permission of the Secretary of the Department, which permission might at any time be withdrawn, an officer of a Department was not to accept or engage in any remunerative employment other than in connexion with the duties of her office or offices under the Commonwealth. Regulation 13(f) of the Public Service Regulations provided that an officer who was, during her hours of duty, absent from duty without the express permission of the Secretary or the officer in charge committed a breach of the regulations.
Charge A alleged that the applicant had said threatening and abusive words to her supervisor. Each of the charges B1 to B20, and each of the alternative charges C1 to C20, alleged that the applicant had engaged in remunerative employment as a casual relief teacher other than in connexion with the duties of her office under the Commonwealth and without the express permission of the Secretary of the Department of Employment, Education and Training. Each of the charges D1 to D20 and charge E alleged that the applicant was absent from duty without the express permission of the Secretary of the Department of Employment, Education and Training or the officer in charge.
An inquiry into the charges pursuant to s.62 of the Public Service Act was held by the first respondent. He expressed his conclusion in terms that the applicant was guilty as charged and directed that she be dismissed as an officer of the Australian Public Service. His decision is dated 13 November 1989. It appears from the report referred to in his decision that, in relation to the charges B1 to B20 and C1 to C20, the first respondent preferred to find the applicant guilty of the charges B1 to B20 on the ground that "it is usually better to allege a specific breach of duty than a general charge of improper conduct". He went on to say, however, that, if he were wrong in deciding that the charges B1 to B20 were more appropriate, the evidence demonstrated that the applicant was also guilty of the charges C1 to C20.
Pursuant to s.63D(2) of the Public Service Act, the applicant, by letter dated 27 November 1989 signed by her then solicitors, appealed from that decision to a Disciplinary Appeal Committee on the grounds that each charge should have been dismissed and that the action directed in relation to each charge was unduly severe.
On 19 April 1989, the applicant had been summarily convicted in the Magistrates Court of the Australian Capital Territory of certain criminal offences. In relation to each offence a pecuniary penalty was imposed with the rider that, in default of payment, the applicant was to be imprisoned until the rising of the Court. Action was then taken under s.63(1) of the Public Service Act by the second respondent, Paul William Hickey, resulting in a further direction that the applicant be dismissed from the Australian Public Service. That direction appears to have been given on 20 December 1989. From that decision an appeal to a Disciplinary Appeal Committee was lodged on 3 January 1990.
The appeals from the directions given by the first and second respondents came before the Committee constituted by the third respondents on 28 June and 22 August 1990. Both the applicant and the Department of Employment, Education and Training were legally represented. On the earlier of those dates, after considerable discussion, the Committee determined, with the consent of the parties, that it would, in the first instance, hear the appeal in respect of the direction given by the first respondent in so far as it was based on his finding that the applicant was guilty of the disciplinary offences identified in the schedule referred to above as charges B1 to B20 and D1 to D20 and, in so far as it might be necessary, the charges identified as C1 to C20. When the hearing resumed on 22 August 1990, the Committee, in relation to those matters, received documentary material tendered by both parties and heard oral evidence from the applicant.
It is common ground that in the proceedings before the Committee, the applicant, through her counsel, conceded that, on the dates specified in the respective charges then before the Committee and without the necessary express permission, she -

(a) was absent from her employment as an officer of the Department of Employment, Education and Training; and

(b) worked in remunerative employment as a casual relief teacher with the ACT. Schools Authority.

In the light of those concessions, the appeal before the Committee was limited to the question whether the direction that the applicant be dismissed from the Australian Public Service was unduly severe.

The Committee subsequently confirmed the direction given by the first respondent. There has been no hearing of the appeal against the direction given by the first respondent in so far as it was based on his finding that the applicant was guilty of the disciplinary charges identified as charges A and E or of the appeal against the direction given by the second respondent.
As the challenge which had originally been made to the decision of the second respondent was not pursued, counsel appearing on his behalf submitted that the Court should order that he cease to be a party to the application (Federal Court Rules, Order 6, r.9). It is appropriate that such an order be made and I so order.
On the hearing of the application to this Court, the applicant was not legally represented. The first of the grounds upon which she relied was based on the contention, which I accept as correct, that the decision of the Committee (and, indeed, that of the first respondent) cannot stand unless she had been duly charged, in accordance with the relevant provisions of the Public Service Act, with the disciplinary offences which founded the decision to dismiss her from the Australian Public Service.
At the material time, s.61 of the Public Service Act relevantly provided:

"(2) Where an officer authorized by the relevant Secretary for the purposes of this subsection is of the opinion that an officer may have failed to fulfil his duty as an officer, the authorized officer shall, as soon as practicable, decide whether he should be charged and:

(a) ....

(b) if he decides that the officer should be charged - shall, by writing under his hand delivered to the officer, charge the officer with the failure."

The expression "relevant Secretary" was defined in s.7(1) to mean:

"the Secretary of the Department in connection with which, or in which is employed an officer or employee in connection with whom, the expression is used or is applicable".

As has already been mentioned, the applicant was charged with the relevant disciplinary offences by Mr Bongi who described himself as an officer authorized by the Secretary of the Department of Employment, Education and Training for the purposes of s.61(2) of the Public Service Act. The applicant contended that, contrary to that assertion, Mr Bongi was not authorized to charge her with those offences.
The applicant was charged with the relevant offences on 9 August 1989. Mr Bongi, in an affidavit sworn on 7 April 1992, has stated, and the statement was not challenged, that between 1 February 1989 and 1 September 1989 he was an Administrative Service Officer, Class 7 employed in the Department of Employment, Education and Training and that, during the whole of that period, he held position number 7497 in the Central Office of the Department. It also appears from an annexure to a memorandum dated 20 July 1989 signed by Mr Bongi that, in exercising the powers conferred by s.61(2) of the Public Service Act, he regarded himself as acting under a "delegation" which he said "was given to me on 20 February 1989 and endorsed by the current Secretary on 24 April 1989".
On 20 February 1989 Dr Vincent William John FitzGerald held the office of Secretary to the Department of Employment, Education and Training. On that day he signed an instrument, the operative part of which read as follows:

"I, Vincent William John FitzGerald, Secretary to the Department of Employment, Education and Training, AUTHORISE ILDO ALFREDO BONGI, Administrative Service Officer Class 7, position number 7497, to be an officer authorised by the Secretary for the purposes of sub-section 61(2) of the Public Service Act 1922."

It appears from the evidence that in February 1989, other officers were authorized officers for the purposes of s.61(2) of the Public Service Act but that each of those officers was disqualified "due to prior association" from exercising, in relation to the applicant, the powers conferred by that section.
In a departmental minute dated 20 February 1989 addressed to the Secretary in which he was requested to sign the above instrument, the following statement appeared:

"Mr Bongi will be thereby empowered to examine the possible misconduct of an officer in the Australian Capital Territory Office."

It is common ground that the officer referred to was the applicant.

Prior to 20 April 1989 Dr FitzGerald had ceased to hold the office of Secretary to the Department of Employment, Education and Training and Mr Gregory Frank Taylor had been appointed to that office. On 24 April 1989 Mr Taylor signed an instrument the operative part of which was as follows:

"I, GREGORY FRANK TAYLOR, Secretary to the Department of Employment, Education and Training, pursuant to sub-section 26(1) of the Public Service Act 1922 ("the Act"), hereby AUTHORISE any officer from time to time holding, occupying or performing the duties of a position specified in the schedule attached to this instrument, to be an officer authorised by the Secretary for the purposes of sub-section 61(2) of the Act."

The Schedule attached to the instrument identified 23 positions, some within the Central Office and others within the regional offices of the Department. Within the Central Office, 7 positions were identified, including position number 7497.

It is to be noted that the instrument signed by Mr Taylor referred to s.26(1) of the Public Service Act as the source of the power being exercised. I shall return to the significance of that reference later in these reasons.
It may also be noted that the instrument signed by Mr Taylor did not purport to revoke any authorizations which had been given by Dr FitzGerald as Secretary to the Department and which were then in force. This was apparently the result of a deliberate decision taken by those advising Mr Taylor for, in a departmental minute addressed to him dated 20 April 1989, the following appeared:

"You will note that the instruments signed by the previous Secretary have not been revoked, thereby ensuring continuity of empowerment for any disciplinary cases currently under investigation in the Department."

It further appears that, by instrument dated 21 August 1989, Mr Taylor, expressing himself to be acting pursuant to s.61(2) of the Public Service Act, revoked the authorization of 24 April 1989 which, somewhat curiously, was described as having been made "on behalf of" Mr Bongi. The instrument did not purport to revoke the instrument dated 20 February 1989 signed by Dr FitzGerald.
In support of the contention that Mr Bongi was not authorized to charge the applicant with disciplinary offences, the applicant submitted that neither the instrument signed by Dr FitzGerald on 20 February 1989 nor that signed by Mr Taylor on 24 April 1989 was effective to confer on Mr Bongi the status of an officer authorized for the purposes of s.61(2) of the Public Service Act. The instrument dated 20 February 1989 was said to be defective in that it was expressed in general terms and not in terms apt to limit Mr Bongi's authority to exercise the powers conferred by s.61(2) to an exercise of those powers in relation to the applicant. The submission that the instrument should have been so limited was based on the unavailability of the officers already authorized for the purposes of s.61(2) to act in relation to the applicant and the circumstance, confirmed by the departmental minute dated 20 February 1989 to which reference has been made, that Mr Bongi was being authorized solely for the purpose of considering whether the applicant should be charged with disciplinary offences. It was said that fairness dictated that, if an officer was to be authorized for a specific purpose, that purpose should have been stated on the face of the instrument of authorization.
In my opinion, the contention that the instrument dated 20 February 1989 was not, when made, effective to confer on Mr Bongi the status of an officer authorized for the purposes of s.61(2) of the Public Service Act cannot be accepted. It was expressed in terms appropriate for that purpose and the fact, if it be the fact, that it was contemplated that he would exercise the powers of an officer so authorized only in relation to the applicant provides no sufficient basis for concluding that the instrument was ineffective. It may be a question, however, whether the instrument dated 20 February 1989 remained operative on 9 August 1989 when Mr Bongi charged the applicant with the disciplinary offences the subject of the proceeding now before the Court.

The applicant also submitted that, even if the instrument dated 20 February 1989 was effective to confer on Mr Bongi the status of an officer authorized for the purposes of s.61(2) of the Public Service Act, it was to be construed as conferring a power to consider the conduct of the applicant only in so far as that conduct occurred before the date when the instrument took effect. The significance of that submission arose from the circumstance that the charges identified as charge A and charge E were based on conduct alleged to have occurred after 20 February 1989, namely on 10 April 1989.
In my opinion, no sufficient basis has been shown for construing the general words of the instrument in the manner for which the applicant contended. In any event, the submission, if accepted, would affect only the charges identified as charge A and charge E. It could have no effect in relation to the charges which were dealt with by the Committee in the decision the subject of the present application. Further, if the source of Mr Bongi's authority to charge the applicant with the charges identified as charge A and charge E is properly to be found in the instrument dated 24 April 1989, it could not be successfully contended that the charges related to events occurring after the date on which that instrument took effect.
The instrument dated 24 April 1989 signed by Mr Taylor was also said to be deficient in that it failed to disclose on its face that Mr Bongi was being given the status of an officer authorized for the purposes of s.61(2) of the Public Service Act solely for the purpose of considering whether the applicant should be charged with disciplinary offences. That Mr Bongi was to have this limited role was reinforced, so it was submitted, by the circumstance that his authority was revoked on 21 August 1989, shortly after he had purported to exercise that authority by charging the applicant with the disciplinary offences to which reference has already been made.
I am unable to accept that submission, my reasons being similar to those given in relation to the submission that the instrument dated 20 February 1989 was similarly defective.
It was also submitted that Mr Bongi was barred from acting under the instrument dated 24 April 1989 because he had, prior to that date, become involved, no doubt pursuant to the instrument dated 20 February 1989, in considering whether the applicant should be charged with disciplinary offences. In my opinion, there is no substance in that submission, particularly when regard is had to the circumstance that the occasion for the signing of the instrument dated 24 April 1989 was the appointment of Mr Taylor as Secretary to the Department of Employment, Education and Training in succession to Dr FitzGerald. The fact that Mr Bongi had been inquiring into the applicant's conduct under the earlier authority can provide no sufficient basis for the contention that the new Secretary was precluded from giving him a fresh authorization to proceed with that inquiry.
I have already drawn attention to the fact that the instrument dated 24 April 1989 referred to s.26(1) of the Public Service Act as the source of the power being exercised. That subsection empowered the Secretary to a Department, either generally or as otherwise provided by the instrument of delegation, by writing signed by him, to delegate to an officer of the Australian Public Service all or any of his powers or functions under the Public Service Act. The reference in the instrument to s.26(1) was quite inappropriate as the instrument was not one whereby the Secretary was delegating any of his powers or functions. What the Secretary was intending to do is clear enough. He was intending himself to exercise the power implicitly conferred upon him by s.61(2) of the Public Service Act to nominate officers to be authorized officers for the purposes of that subsection. What effect, then, does the circumstance that the instrument nominates s.26(1) as the source of the power being exercised have upon the validity of the instrument?
In my opinion, it is clear beyond doubt that the reference in the instrument to s.26(1) of the Public Service Act was inserted in error and that the relevant words and figures should be treated as mere surplusage. The operative words of the instrument demonstrably refer to the power conferred on the Secretary by s.61(2) of that Act and the instrument should be treated as having effect pursuant to that subsection. The circumstances are, in my view, distinguishable from the situations that were discussed in Australian Broadcasting Tribunal v. Saatchi and Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1 (see per Bowen CJ at pp 9-10, per Fox J at p 17 and per Wilcox J at p 23) and Commissioner of Taxation v. Cripps and Jones Holdings Pty Ltd (1987) 17 FCR 55 at p 63. Reference might also be made to University Staff Associations v. Academic Salaries Tribunal (1985) 19 FCR 397 at p 405 and Amalgamated Television Services Pty Ltd v. Australian Broadcasting Tribunal (1989) 88 ALR 287 per Sheppard J at pp 303-4 and, on appeal, (1989) 91 ALR 363 at pp 374-5.
In the light of the conclusion that the instrument of 24 April 1989 validly gave Mr Bongi the status of an officer authorized for the purposes of s.61(2) of the Public Service Act, it is unnecessary to consider whether the instrument dated 20 February 1989 also conferred upon him that status when, on 9 August 1989, he charged the applicant with disciplinary offences. However, I am inclined to the view that that instrument could not survive the making of the instrument dated 24 April 1989 and was impliedly revoked by the later instrument. Whether the instrument dated 20 February 1989 could support the action taken by Mr Bongi on 9 August 1989 if the instrument dated 24 April 1989 was ineffective is a question I need not stay to consider.
There remains the submission of the applicant that, in reaching its decision, the Committee took into account irrelevant considerations. For the purpose of considering this submission it is necessary to refer to the reasons given by the Committee for its decision. Before doing so, I should notice a submission that the Committee was improperly influenced by documents said to be relevant only to the charges identified as charge A and charge E, documents said by the applicant to be prejudicial to her situation. According to the applicant, those documents had been made available by the Department of Employment, Education and Training for use by the members of the Committee prior to the Committee deciding that it would, in the first instance, proceed with the appeal in so far as it related to the charges B1 to B20 and D1 to D20.
The documents in question were not tendered to the Committee during the hearing of the appeal in relation to the charges B1 to B20 and D1 to D20 and they were not marked as exhibits as were the other documents tendered to and received by the Committee. There is nothing in the material before the Court to indicate that the Committee, or any of its members, took those documents into account in considering whether the direction for dismissal based on the finding in respect of the charges B1 to B20 and D1 to D20 was unduly severe.
In its reasons for decision, the Committee traversed in some detail, largely by reference to her own evidence, the applicant's academic and employment history, initially with the Department of Education of the State of Victoria and later in the Australian Public Service. The Committee referred to her involvement in a promotions appeal in 1977 and to subsequent litigation in relation thereto (see Ansell v. Wells (1982) 43 ALR 41) and recorded that, after she returned to work with the Department of Employment, Education and Training as an Administrative Service Officer, Class 1 in March 1987 after a period of illness, there commenced what the Committee described as "a period during which no position in the Department offered the (applicant) was seen by her as being suited to a person of her education, experience and ability, except perhaps for an AS0 8 position in Katherine which she voluntarily gave up". The Committee continued:

"2. The (applicant's) evidence indicates that she is strongly of the opinion that she has the right to assess whether any position in which she is placed by the Department is suitable to her, and further that it is her right, if she determines a position to be unsuitable, to demand and be granted a transfer. She gave evidence of conflicts with other officers, and all those conflicts appear to evidence her dissatisfaction with her perception of the actions of the Department. The (applicant) refuses to acknowledge that her classification as an ASO 1 is appropriate, insisting that she is competent to perform at a much higher level and that she should be so classified. She equates her present potential to the level at which her successful opponent in the 1977 Promotions Appeal is now employed, or at least the AS0 7 level. The

(applicant) appears incapable of assessing her true value to the Department in terms of her actual history and work performance."

The Committee then referred to the events leading up to the applicant's absences from duty on 20 days during November and December 1988 and to her contracting with the ACT. Schools Authority to do casual relief teaching on those days. Paragraph 7 of the Committee's reasons for decision reads:

"7. The Committee noted the attitude and demeanour of the

(applicant) in the hearing room and as she gave her evidence. She installed in the hearing a substantial book case filled with large folders, but when asked to find correspondence to support statements by her that she had been threatened by other officers, she was unable to do so. Her attitude towards the Committee was polite and restrained, but at times when referring to her Department and other officers she appeared hostile and belligerent. She is apparently a woman who pursues with all her resources any cause which she espouses, to the point of staging a strike outside Parliament House, or going to prison rather than paying a fine or agreeing to bail conditions which she finds unacceptable. There are parts of the evidence which, although not going to the facts of the particular charges, indicate aspects of the personality of the (applicant). In addition, the members of the Committee had an opportunity to assess the (applicant) as she gave her evidence. Whilst many of the personal characteristics displayed by the (applicant) are to be admired, the Committee must assess her as a person suitable to remain a member of the Australian Public Service, and it is regrettable that on the balance, the Committee cannot be confident that the (applicant) is a person who will accept her position and role in her Department, and work as a member of a team in any given work place. The

(applicant) has in the opinion of the Committee allowed considerations personal to herself to overbear the interests of her employer Department and the Australian Public Service at large. Such self-interest does not sit comfortably with the ideal of officers working together for the good of the service, the Government and community. The (applicant) has allowed her own self-interest to not only interrupt her own productivity and usefullness (sic) as an officer, but to disrupt, repeatedly, the work of her fellow officers and supervisors. In pursuing her own causes she has apparently lost the ability to see herself and her actions in perspective, and to judge her own real worth as an employee. She has apparently lost the ability to understand her role as a public servant and an employee. The (applicant) was given the opportunity in response to questions from the Convenor, to affirm that she was prepared to accept and follow directions by the Department or any Department, at her designated ASO 1 level. She would not do so. The Committee can therefore have no confidence that she would perform satisfactorily if allowed to return to work in the Service."

There follows a reference to the applicant's intimation that she intended to appeal against the Committee's decision if adverse to her. The Committee continued:

"It could be concluded from that statement that the (applicant) has no respect for or confidence in, the Committee. Such a conclusion would be consistent with the obvious lack in the

(applicant) of any remorse or desire to reassess any of her own actions or statements which was evident to the Committee at the hearing, and the attitude of self-righteousness which pervaded the evidence of the (applicant)."

After referring to submissions made by counsel on the applicant's behalf, the Committee concluded:

"The Committee has considered all the evidence, particularly the oral evidence of the (applicant) and her letter of 16 October, 1988 to the Secretary of the Department, and is not satisfied that there are any management problems in relation to the (applicant) which are caused independently of the (applicant's) own attitude and conduct. The evidence is, on the contrary, that the Department and its officers have been generous to, and patient with the (applicant), whilst she has taken every opportunity she could grasp to be disruptive and unco-operative. She shows herself unprepared to take her place in the system and rather than taking the reasonable way out, and finding alternative employment, she has chosen to adopt an attitude and follow a course of conduct which clearly confirms that she is not a fit and proper person to hold any position in the Public Service."

The considerations which the applicant submitted the Committee had taken into account and which were said to be irrelevant to the resolution of the matter upon which it had to adjudicate were set out in the further amended statement of particulars filed pursuant to the direction of the Court given on 15 November 1991 in the following terms:

"(i) the attitude and demeanour of the Applicant in the hearing room at the DAC;

(ii) the attitude and demeanour of the Applicant as she gave evidence;

(iii) that the Applicant was unable to find correspondence when requested to do so;

(iv) that the Applicant at times when referring to her department and fellow officers appeared hostile and belligerent;

(v) that the Applicant pursues with all her resources any cause she espouses;

(vi) that the Applicant staged a strike outside Parliament House;

(vii) that the Applicant may choose to go to prison rather than pay a fine or accept bail conditions which she finds unacceptable;

(viii) accepting or taking account of evidence which while not going to the facts of the charges investigated by Brewster indicated aspects of the personality of the Applicant;

(ix) the Applicant's lack of confidence in the DAC;

(x) the Applicant's stated intention to appeal against the DAC decision;

(xi) the Applicant's attitude of self-righteousness;

(xii) the existence or otherwise of management problems in relation to the Applicant which are caused independently of the Applicant's own attitude and conduct;

(xiii) the Applicant's refusal to take the reasonable way out and find alternative employment."

As has been mentioned, the only issue before the Committee was whether the action directed to be taken in relation to the charges identified as charges B1 to B20 and D1 to D20, namely dismissal from the Australian Public Service, was unduly severe. In considering that issue, the Committee was required by s.63D(6) of the Public Service Act to take into consideration any evidence given on the hearing before it "of matters relating to the previous employment history and general character" of the applicant. That provision did not, of course, limit the matters which the Committee might take into consideration. It was entitled to take into account any material put before it that was relevant to that issue. What must not be overlooked, however, is that s.63D(6) did not require or entitle the Committee to adjudicate upon a different issue from that identified above. Matters relating to the applicant's previous employment history and general character were to be taken into account only in so far as they were relevant to the question whether the applicant's conduct as reflected in the relevant charges warranted her dismissal from the Australian Public Service.
The structure of the reasons given by the Committee for its decision and some of the language in which those reasons are cast, at least on an initial reading, lend some support to a submission that the Committee did not confine its consideration to the issue identified above but embraced the wider issue whether the applicant's conduct generally, including but not confined to the conduct to which the relevant charges related, justified the conclusion that the applicant was not "a fit a proper person to hold any position in the Public Service". However, on further consideration of the whole of the material that was placed before the Committee and the nature of the submissions put to it on behalf of the parties, I am satisfied that the Committee did, in the final analysis, confine itself to a consideration of the issue properly before it.
In considering whether the direction that the applicant be dismissed from the Australian Public Service was unduly severe, the Committee had necessarily to consider what other action could, and should, have been directed in the terms of what was permitted by s.62(6) of the Public Service Act. It was strongly urged upon the Committee by counsel for the applicant that the appropriate direction to be given in relation to the relevant offences was a direction that action be taken to transfer the applicant to another position of Administrative Service Officer, Class 1, either with or without a reduction in, or a deduction from, salary. In considering whether the action contemplated by that submission was, in all the circumstances, appropriate, the Committee was, in my view, entitled to give consideration to the various matters referred to in the extracts from its decision set out above. Those matters bore upon the question whether the Committee could be satisfied that it was realistic to give a direction along the lines proposed. Further, in assessing the likely result of acceding to the submission, the Committee was, in my opinion, entitled to take into account not only the answers which the applicant had given to the questions asked of her during the course of her evidence but also to her attitude and demeanour as observed by the members of the Committee during the hearing. The submission that the Committee took into account irrelevant considerations is, therefore, rejected.
For these reasons, the application is dismissed. The applicant must pay to the first respondent his costs of and incidental to the application.

[1993] FCA 262

29 APRIL 1993