Bragg v Secretary, Department of Employment Education & Training (Federal)
[1996] FCA 476
•7 JUNE 1996
CATCHWORDS
ADMINISTRATIVE LAW - Review of Administrative decision - error of law - Australian Public Service - Disciplinary Appeal Committee - whether decision based on irrelevant considerations - breadth of mitigatory factors that may be taken into account - whether costs incurred by a party as a result of disciplinary procedures are an irrelevant consideration - whether the stress of a public hearing is an irrelevant consideration
COURTS AND JUDGES - Disqualification for apprehension of possibility of judicial bias - Federal Court of Australia - association between Judge and Counsel's instructing solicitors - Counsel a former recent co-worker of Judge's spouse - consideration of principles of reasonable apprehension of bias - relevance of contemporary Australian social practices and conditions
Administrative Decisions (Judicial Review) Act 1977 (Cth): 10(2)(b)
Merit Protection (Australian Government Employees) Act 1984 (Cth): s 20
Public Service Act 1922 (Cth): ss 6, 63, 63d
Sex Discrimination Act 1984 (Cth): s 28b(2)
Aussie Airlines Pty Limited v Australian Airlines Pty Limited (Federal Court of Australia, Merkel J, 13 March 1996, FED No 147/96, unreported)
Bragg v Secretary, Department of Employment, Education & Training (Federal Court of Australia, Davies J, 8 June 1995, G84 of 1995, unreported)
Comptroller-General of Customs v Disciplinary Appeal Committee & Day
Fingleton v Christian Ivanoff (1976) 14 SASR 530
Hardcastle v Commissioner of Police (1984) 53 ALR 593
Kennedy v Cahill (1995) FLC 90
Livesey v NSW Bar Association (1983) 151 CLR 288
Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24
Re:JRL; Ex parte CJL (1986) 161 CLR 342
Richter v Walton (NSW Court of Appeal, CA40309/93, 15 July 1983, unreported)
S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358
Secretary, Department of Social Security v Willee (1990) 96 ALR 211
Vakauta v Kelly (1989) 167 CLR 568
Webb v The Queen (1994) 181 CLR 41
BRAGG v SECRETARY, DEPARTMENT OF EMPLOYMENT EDUCATION & TRAINING (FEDERAL)
NG 790 of 1995
CORAM: MADGWICK J
PLACE: SYDNEY
DATE: 7 JUNE 1996
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES
DISTRICT REGISTRY
No. NG 790 of 1995
BETWEEN BRAGG
Applicant
AND SECRETARY, DEPARTMENT OF EMPLOYMENT
EDUCATION & TRAINING (FEDERAL)
Respondent
CORAM: MADGWICK J
PLACE: SYDNEY
DATE: 7 JUNE 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
The Application be dismissed.
Note: Settlement and entry of orders is dealt with the Order 36 of the Industrial Relations Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES
DISTRICT REGISTRY
No. NG 790 of 1995
BETWEEN BRAGG
Applicant
AND SECRETARY, DEPARTMENT OF EMPLOYMENT
EDUCATION & TRAINING (FEDERAL)
Respondent
CORAM: MADGWICK J
PLACE: SYDNEY
DATE: 7 JUNE 1996
REASONS FOR JUDGMENT
MADGWICK J:
Introduction
This is an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) for review of a decision made by an Australian Public Service Disciplinary Appeal Committee (the DAC) concerning Mr Bragg, the first Respondent. The DAC was constituted by the second respondents.
The DAC decided that Mr Bragg should be admonished pursuant to s 63 of the Public Service Act 1922 (Cth) (the PS Act) in respect of their finding that two charges of failing to fulfil his duty as an officer of the Australian Public Service (the APS) had been made out.
In essence, the case for the applicant, the head of Mr Bragg’s APS Department, was that the DAC had erred on the side of leniency through legal error. The legal error was said to be the taking of extraneous matters into account.
The second respondents, the DAC members, appeared to submit to the orders of the Court.
A preliminary issue: apprehended possibility of judicial bias
A few days before the hearing of this matter I caused my Associate to write to the parties in the following terms:
“His Honour has observed that the solicitors for Mr Bragg are Messrs Geoffrey Edwards & Co. As it happens, His Honour’s wife is a solicitor employed by that firm, but not to do the kind of work embraced by this case. His Honour has no personal embarrassment or difficulty in hearing the case...”.
Counsel for the Applicant applied to have me disqualify myself from hearing the case:
“... on the grounds that the proximity of and nature of the relationship between the legal advisers of the first respondent and [myself] is such as to give rise to an apprehension in [the applicant] that [I] might not be impartial”.
Before the DAC, Mr Bragg had been represented by Ms Howell, then a solicitor employed by the said firm. About six weeks before the hearing of this case, Ms Howell left that employ to go to the Bar. She appeared as counsel for Mr Bragg before me, led, on this preliminary issue only, by Mr Rothman SC. Thus, within the last two months counsel for Mr Bragg on the principal issues before me was a co-worker of my wife, and my wife was then, and is now, an employee of Mr Bragg’s solicitors. To add the final matter referred to in argument on this point, the case of the applicant here touches, among other things, upon the DAC having allegedly unlawfully taken into account in Mr Bragg’s favour, as to penalty, the fact that he paid his solicitors some $7,200 in costs in respect of his DAC appeal.
Mr Skinner, on behalf of the applicant, put that the principal matter for concern arising out of that background is that, very recently, Ms Howell, counsel for the applicant, had been a co-worker with my wife.
Relevant legal principles
The general legal principles are hardly in doubt:
A judge should refrain from hearing a case
“if in all the circumstances the parties or the public might entertain a reasonable apprehension that he (sic) might not bring an impartial and unprejudiced mind [to it]”: Livesey v NSW Bar Association (1983) 151 CLR 288 at 293-4.
The rationale for the test is that:
“it is of fundamental importance that the parties to litigation and the general public have full confidence in the integrity, including the impartiality, of those entrusted with the administration of justice”: Webb v The Queen (1994) 181 CLR 41 per Deane J at 68.
2. However, the test of whether there is a possibility of reasonably apprehended bias is
“an objective one and the standard to be observed in its application is that of a hypothetical, fair-minded and informed lay observer”: ibid per Dean J at 68 (emphasis supplied).
In considering what such an observer might apprehend,
“the public perception of the judiciary is not advanced by attributing to the reasonable or fair-minded observer a knowledge of the law and an awareness of the judicial process that ordinary experience suggests not to be the case”: Vakauta v Kelly (1989) 167 CLR 568 per Toohey J at 585.
Nevertheless,
“[the] reasonable observer is to be presumed to approach the matter on the basis that ordinarily a judge will so act as to ensure both the appearance and the substance of fairness and impartiality”: Livesey at 299.
5. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour”: ReJRL; Ex parte CJL (1986) 161 CLR 342 per Mason J at 352.
The apprehension of bias may be grounded ... in family, financial or professional relationships with one of the parties ... In so far as such bias is said to arise from a relationship between the parties, it is clearly relevant to know the duration of that relationship, its intensity and nature and the time that has elapsed between its last renewal and the performance of judicial functions said to be affected by it”: S & M
Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 per Kirby P at 368-9.
The issue here
It will be appreciated that in this case the issue is a somewhat bare one. It may be assumed that, were there any other facts known to me, but not to the applicant, which might be thought capable of assisting the latter’s argument (if, for example, Ms Howell and my wife were close friends and/or had been co-workers for many years), I would have disclosed them (cf. S & M Motor Repairs at 361, 369 and 374).
Where a judge is invited to disqualify himself or herself because of some allegedly reasonable apprehension of possible bias arising from some connection of his or her spouse with a legal representative of one of the parties, a number of things may be noted:
·. Spouses are hardly to be put, for this purpose, in a category apart from other close family members, such as children or parents.
·. But the reach of love and affection does not stop at the front gate. What of connections of lawyers with other people close to the judge?
·. Contemporary Australian social practices and conditions must surely be considered. Most married people of both sexes engage in paid employment. Men’s monopoly on the professions and the Bench is being broken. There has been a great liberalisation in social mores as to such matters as de facto marriage relationships and homosexuality. Each of these trends may have a bearing on the range of personal attachments which judges and persons close to them may have to lawyers appearing in the courts.
·. In particular, it is commonplace in this country, for judges to have close friends of theirs or of their family members, participating as advocates directly before them, let alone as members of instructing solicitors’ firms, or employees therein. It is also not uncommon for members of judges’ families to be employed by, or even members of, legal firms representing litigants before the particular judges concerned. Other connections raise no eyebrow: frequently judges’ family members are associated with some political or social group much concerned about
the subject matter of some litigation before the relevant judge. Such ideological interests may well outweigh, or be perceived to outweigh, in intensity all but the weightiest and most direct economic or sentimental concerns. Marriage between practising litigation lawyers is now not uncommon and, where this occurs, connections not dissimilar from those in this case are apt to arise.
·. I am not aware of any previous occasion of objection such as has been raised here. That, of course, is hardly decisive, but it does say something about current practical Australian impressions of parties and other citizens of how the courts operate.
Before one can say that a reasonable and informed non-lawyer might reasonably apprehend possible judicial bias, one needs to be able to say how it is that the bias may be apprehended. As Merkel J put it in Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd & anor (Federal Court of Australia, Merkel J, 13 March 1996, No 147/96, unreported) in the course of an exhaustive judgment,
"although the test is one of appearance, it is an appearance that requires a cogent and rational link between the [impugned] association and its capacity to influence the decision to be made in the particular case"
In the instant case, presumably the thought processes of the ordinary reasonable citizen (and I am happy to accept Kirby P’s proposal that regard be had to those “on the Emu Plains omnibus”, except that in Sydney the vehicle might perhaps better be called a “Tangara”) would need to run something like this:
“There is a fair chance that the judge is on good terms with his wife. Because she works for one of the parties' solicitors, she will or may want that firm to succeed on their client’s account. And she will or may want her former co-worker to do well at the bar, and win the cases she is in. Something positive may occur between the judge and his wife such that he will come to understand these possible wishes of hers; or he may intuit them; or he may simply assume that such are her wishes. And he may decide to act in accordance with her actual or possible wishes; or he may unconsciously bend towards doing so. Such is the risk that, unless that particular judge does not hear the case, justice will not be seen to be done.”
While it is not to the point of perceived possible bias, the plain fact of judicial life in Australia, in my opinion, is that, on the facts here, no judicial officer would
consciously so act, and none would be so lacking in introspection as to fail to guard against so acting. The risk of impermissible influences subconsciously affecting a judge’s opinion always exists but is no greater, on the above stated grounds, than a dozen others that spring to mind: for example, in a case such as that at hand, a judge may have some political or social prejudice of which he or she is not consciously aware that may touch on the matters for consideration.
But the question is: what would the Tangara traveller think? In my opinion, it is well understood, by fair-minded and reasonably informed non-lawyers, who think at all about the subject, that the work of many people requires them to make decisions which friends or colleagues of their own friends and relations would like to go one way or the other, or which may in some indirect way advantage or disadvantage them, and that judges make such decisions all the time; that many people in private positions as well as public offices have the capacity in their work to do or not to do favours for friends of friends or of loved ones, but that a great many staunchly resist any temptation to do so, and that (without, I hope, its sounding pompous or sanctimonious for me to say so), in this country, for various reasons, judges perform very well in this regard. Confronted with the above musings, another hypothetical, ordinary, reasonable but reasonably informed citizen would, in my view say: "If the judge can’t do better than that, he [I am assuming the judge has a wife] should not be there. And remember, the rules are that the judge should bring any reasonably conceivable basis for objection to light, for reasoned debate”. And that citizen would, in my view, carry the day with his or her fellow traveller.
In any case, the applicant can hardly be in a stronger position here than if I myself, rather than my wife, had been a good friend of Ms Howell, let alone merely a recent co-worker with her. No judge would disqualify himself or herself on that account. The ordinary reasonable citizen must, therefore, be taken to see nothing amiss there, presumably because his or her imputed knowledge about the system would suffice to guard against ignorant presumptions. I have indeed only once heard of a judge being asked to do so, and coincidentally that occurred in this Court a
couple of months ago: see Aussie Airlines, supra. In that case, Merkel J unearthed two (barely) arguably similar instances: Kennedy v Cahill (1995) FLC 90 at 608 and Fingleton v Christian Ivanoff Pty Ltd (1976) 14 SASR 530. One hopes that a school is not being founded.
The added facts that my wife is an employee of the solicitors for one of the parties, and that the case involves the unremarkable proposition that that firm has charged a client for representing him, in my view adds nothing to the picture where no direct pecuniary or even sentimental interest, nor any close or considerable indirect interest, on the part of her employers in the outcome of the proceedings is shown. Even as to actual appearances before judges of counsel who are near relatives and the Bar's rules of etiquette against such a practice, Bray CJ said,
"These are salutary rules of professional discipline, but there is nothing to suggest that their breach would necessarily lead to disqualification of the judge..." Fingleton, supra at 534.
Some of my reasoning has been expressed in general terms. In this area of the law it is particularly important to remember that cases differ. There may be other cases in which an objection such as that taken here to a particular judge hearing the case might have a different fate.
For those reasons, I did not disqualify myself.
The substantive issues in the case
On 4th August 1994, Mr Bragg, then an “Administrative Services Officer 4” in the applicant’s Department, was charged by the latter’s delegate with two matters, said to have occurred 20 months before.
The first was that he
“failed to fulfil his duty as an officer ... in that he engaged in improper conduct as an officer.
Particulars of the charge are that on the 25th day of November 1992, at approximately 1.15pm, when Mr Bragg and Ms Darmanin were alone together in a lift in Town Hall House, Kent Street, Sydney, Mr Bragg turned towards Ms Darmanin, lunged at her, grabbed her aggressively by the shoulders and pushed her against the wall of the lift. He then grabbed her around the neck and shook her violently.”
The second was that he
“failed to fulfil his duty as an officer ... in that he failed to have regard to subsection 28B(2) of the Sex Discrimination Act 1984.
The particulars of the charge are that on the 25th day of November, 1992, at approximately 1.30pm, in the lunch room of the Public Sector Recruitment Office, Town Hall House, Kent St, Sydney, Mr Bragg humiliated Ms D by stating to others present that Ms D had been “dying to get her hands on him”, such behaviour amounting to sexual harassment as defined in subsection 28B(2) of the Sex Discrimination Act 1984.”
A duly-appointed departmental inquiry officer carried out an inquiry into the charges under the Public Service Act and found the charges proven. In respect of each charge the inquiry officer directed the first respondent to be dismissed from the Public Service.
The first respondent appealed to a Disciplinary Appeal Committee constituted under the Public Service Act and the appeal was heard at Sydney on 26 and 27 July 1995.
The Committee (by a majority) found the charges proven in respect of each charge and rendered its decision on 8 August 1995. Subsequently the majority reasons for decision dated 20 September 1995 were published on 22 September 1995. No minority decision was produced. As the majority could not agree on an appropriate penalty the convenor of the Committee exercised his discretion, acting as the Disciplinary Appeal Committee alone, to impose a penalty. In respect of both charges, he ordered that the first respondent be admonished.
No challenge is made to the circumstances and facts upon which the Committee’s decision to find the charges proven was based.
The issue raised by the appellant in these proceedings is otherwise expressed in the application for an order of review but in short is this: Did the convenor of the Disciplinary Appeal Committee err on the question of penalty by taking into account irrelevant considerations?
The lift and the lunchroom: What happened?
The DAC recounted the following in its reasons for decision:
“9.FACTS
9.1The charges centred around two incidents, one of which occurred in a lift and one of which occurred later in a tea room. There was no argument that the incidents had occurred however the Appellant and Ms D have different versions of what occurred.
9.2The appellant was in a lift lobby and returning from buying food for lunch. As the lift arrived he felt a hand placed lightly on his upper back and an object pressed into the middle of his back. He swung around immediately using words to the effect that Ms D should not do that as he could have hit her and that she was very lucky that he did not. He appeared to be extremely angry and said whatever was said aggressively. He contended that his immediate reaction was that a gun was being placed in his back and he swung around expecting a possible assailant. Ms D on the other hand contended that she said ‘hello’ and gently touched him with her fruit juice bottle on his left shoulder.
9.3Ms D’s initial response was to laugh because she felt he was joking. Nothing further was said until the lift arrived when the Appellant and Ms D entered with other people. Both Ms D and the Appellant were going to the 19th floor and other people were in the lift until the 16th floor. The alleged incident occurred in the period when Ms D and the Appellant were both alone in the lift between the 16th and 19th floor, an estimated time of between 9 and 12 seconds.
9.4The Appellant contends that nothing happened and has so contended throughout the process of investigation and finalisation of the appeal. Ms D, in a statement made on the 3rd June 1993 contends that when the doors of the lift began to close on the 16th floor, because he looked so angry, she started to step back from the Appellant and stood on the other side of the lift. Ms D in her statement says ‘MB moved towards me and just lunged at me, grabbing me aggressively by the shoulders and pushed me up against the wall of the lift. MB grabbed me and put both of his hands around my neck. He kept on shaking me violently, almost in an attempt to strangle me, all the time not saying a word.’ Ms D yelled at him and asked him to stop it and get away from her.
9.5When they arrived at the 19th floor, Ms D contends that he released her and stepped back. She “fled” out of the lift towards the office. She went to the lunch room and tried to explain what had happened to a girl who was in the lunch room at the same time.
9.6The Appellant, on the other hand, contended that he had said nothing in the lift and had no contact between him and Ms D. When the lift doors opened on the 19th floor he claims he held the ‘Open Door’ button to allow Ms D to pass in front of him. Before entering the lift, Ms D, he claims, apologised to him in a light hearted manner and said “hurting you is the last thing on my mind’.
9.7When he left he claims to have said, ‘Excuse me M, please don’t ever do that again. I thought someone had a gun in my back and as a result I could have accidentally flattened you. Furthermore you had no right to put your hands on me. Do not touch me again.’
9.8After leaving the lift he claims he went to the lunch room, where Ms D followed him. What occurred in the lunchroom is not clear. The Appellant claims that Ms D came into the lunch room and said to all the people in the room that she had just had ‘a bit of fun with Matthew’. He had replied, ‘It was not fun, M, what you did was wrong, you should not have put your hands on me. Now don’t do it again, keep your hands to yourself.’ The Appellant also contended that at this point one other person in the room said, ‘Yes, that’s sexual harassment.’ At this point the Appellant claims to have left the tea room. In her version of events, Ms D claims that in the lunch room he started to make sexually degrading remarks about Ms D and said, ‘She couldn’t control herself, she couldn’t keep her hands off me’ and ‘You’ve been dying to do that for a long time, dying to rub your hands all over my body’.
9.9At the time of the incident, Ms D was employed on a part-time basis to supervise entrance examinations for the APS. The day after the incident she indicated that she told Ms McN, another test supervisor with whom she worked, what had happened. Ms McN suggested that the matter should be reported to Ms T who was the supervisor. This was done several days later and Ms T agreed that she would raise it with Mr S who was the Section Manager. On the following day Ms T indicated that Mr S had spoken to the Appellant who had denied the whole incident and it appears that nothing further was done to investigate the incident or to take any action in relation to the Appellant. In the witness box the Appellant indicated that he had been assured that no further action would be taken in relation to the matter on two occasions before he was finally charged.
9.10In May 1993 Ms D attended her medical practitioner because of various illnesses which she claimed stemmed from the incident in the lift. On the basis of medical evidence Ms D sought Commonwealth Employees Compensation payments from Comcare in respect of her illness and, after a review of the case by an authorised review officer, a compensation was made to Ms D.
9.11Ms D subsequently made a complaint to HREOC on a matter not directly related to these proceedings. Settlement was negotiated between the Department and Ms D.
9.12Following the settlement, the Appellant was charged with the offences which are the subject of these proceedings.
As the DAC observed (para 11.1), “[the] only witnesses to both incidents were the Appellant and Ms D. The primary question therefore to be resolved is the relative credibility of the two witnesses.”
The DAC proceeded to review matters it regarded as relevant to the credit of each of them. The impression is that both were cross-examined to some effect.
The DAC continued:
“11.12While the Appellant presented as a reasonably credible witness, the majority of the DAC considered that the credibility of both Ms D and the Appellant was about at the same level. The majority were not convinced that the Appellant’s complete denial of an incident in the lift reflected what actually occurred there and in all the circumstances considered that, on the balance of probability, some form of physical contact did occur in the lift between Ms D and the Appellant and that some form of sexual harassment by the Appellant occurred subsequently in the tea room. This conduct clearly constitutes improper conduct as an officer and involves ignoring the provision of the Sex Discrimination Act 1984. The two charges were thus found to be proven. The majority noted in particular:
11.12.1 Ms D had consistently alleged that he had touched her in one form or another in the lift.
11.12.2 While all the witnesses brought on behalf of the Department supported Ms D’s story, not all of them were as objective in their support as they could have been.
11.12.3 Despite keeping written records of the incidents, the Appellant was unable to produce any witnesses to events at the foot of the lift or the tea room.
11.12.4 It is more likely than not that some sexually inappropriate words were exchanged in the tea room and that Ms D’s version of comments made in the tea room was more likely to approach what was said than that given by the Appellant.”
The Committee then turned to “Penalty”:
“12.1The Department’s direction in relation to each charge was that the Appellant be dismissed from the service. The first charge involved the Appellant in behaviour which clearly amounted to improper conduct as an officer and the second amounts to some form of harassment. The question then to be answered is whether in all the circumstances is the conduct so serious that it was no longer desirable for him to remain a member of the APS.
12.2The factors which are relevant in considering the question of penalty were detailed in the case of Richter v Walton (NSW Court of Appeal decision CA 40309/93 of 15 July 1993). In summary they are
(a)the nature and seriousness of the charges
(b)the degree of relevance to the Appellant’s duties or the reputation of the APS
(c)any mitigating factors
(d)whether the unacceptable behaviour of the Appellant was uncharacteristic
(e)whether the likelihood of any recurrence was remote
(f)the response of the Appellant to his wrong doing
(g)he effect of the proposed disciplinary action on the Appellant.
The DAC proceeded to consider these matters one by one. Of present relevance are the following observations:
”12.3The incident in the lift was undoubtedly a serious one in that the Appellant behaved towards Ms D in a way which clearly alarmed and upset her. The extent to which physical contact was involved is unclear particularly as there was no direct physical evidence of it. While there was some provocation which resulted in the reaction of the Appellant, it was not of such a nature as to exonerate his over reaction and failure to treat Ms D with the courtesy and sensitivity due to a colleague.”
12.4The incident in the tea room was a sequel the lift incident [sic]. What words which were exchanged is not clear but so far as the exchange involved some form of sexual harassment, again the Appellant's behaviour left much to be desired in terms of that expected of an officer in the APS. The second charge, however, did not carry the serious overtones of the first one as there was no suggestion of physical contact.
...
Mitigating Factors
12.6The Appellant was appointed to the APS on the 23rd April 1987 in the Department. He subsequently received a number of promotions, the most recent one being in August 1993 (after the alleged incident) when he was promoted to his current level of ASO4. He has not been previously a subject of disciplinary action and the Department brought no evidence before the DAC to indicate that his work performance had been anything but completely satisfactory.
12.7The Department was on notice that the incident had occurred but neither the Department nor Ms D took any action about nor did the Department investigate it until about 20 months after it occurred. The Appellant meanwhile was told twice by his supervisors that no action would be taken and accordingly had no reason to take action to ensure that his version of events could be substantiated. Even when the Department was investigating the incidents it chose, for whatever reason, not to interview a witness who the Appellant asked to be interviewed to give evidence to support his case. The Department also appears to have relied on the conclusions reached by Comcare for use in a completely different context and under fairly subjective conditions.
Whether behaviour was uncharacteristic
12.8The DAC had no evidence that the behaviour was characteristic of the Appellant. There was some allegations by Ms D that the Appellant had behaved inappropriately towards her on other occasions but she had not followed this up in any way. In the circumstances of the development of Ms D's story in this matter some doubt must be cast on these allegations by the circumstances surrounding Ms D's compensation claim and her related statement.
Whether likelihood of any recurrence was remote
12.9Given the lack of evidence that the Appellant has a pattern of behaviour of this kind and the relatively unusual circumstances of this case, the possibility of his reoffending must be seen as remote.
Response of the Appellant to the offence
12.10Throughout the whole of the incident the Appellant has contended that nothing occurred in the lift and not surprisingly he has made no admission that he did wrong. Given the impact that the proceedings have had on him and others involved, he must be in no doubt as to what is considered to be inappropriate behaviour and is on clear notice that if he was to behave in the same way towards other disciplinary action will surely follow.
Effect of proposed disciplinary action an Appellant
12.11The proposed action to dismiss the Appellant would have a dramatic effect on his income career prospects and his reputation. The processes associated with the incident have been stressful for him and have continued for some 20 months. Financially the DAC appeal has cost him $7,200 in legal fees."
Finally, the Committee concluded:
“12.12The actions of the Appellant in this case were clearly inappropriate and some form of penalty is essential. Given that the primary aim of the discipline provisions of the Act is not to punish but to uphold the standard of conduct expected of APS officers and protect the reputation of the APS in the eyes of the public, the direction to dismiss the Appellant in relation to each Charge is excessive. In all the circumstances of this case any penalty other than admonition would have an element of punishment - particularly in relation to the second charge. The following factors are relevant
12.12.1The Appellant has suffered significant financial penalty as a result of the incident.
12.12.2He has suffered personal stress over a long period including the stress of a public hearing of the matter.
12.12.3The delay in and circumstances of bringing the charges against him certainly disadvantaged him in preparing his case. This was compounded by the fact that he had been told twice that no action was to be taken against him.
12.12.4It is unlikely that he will repeat the behaviour in all the circumstances.
12.13For the rules relating to the maintenance of the APS are to have the desired effect they must be applied fairly, consistently and in a timely way and this must also be considered in determining the penalty in a case such as this.
12.14Taking all these matters into account in the absence of agreement as to penalty, acting under section 20 of the Merit Protection (Australian Government Employees) Act the Convenor as the DAC varies the decision against which the decision was made to directions that there be taken, in respect of the officer, action by way of admonishing the officer in respect of each of the charges.”
An initial difficulty is to understand precisely what facts the majority of the DAC found in order to establish each charge, so as to enable proper consideration of penalty. It scarcely needs to be stated how fundamental it is - when the facts as found differ, or might reasonably be understood as possibly differing, from those particularised in the charges - that the facts as actually found be clearly set forth. I need say no more on the subject because the DAC decision was not the subject of legal attack on that ground. It remains necessary to try to piece the matter together.
Mr Bragg’s account (cf. DAC decision, para 9.2) was that, before entering the lift, Ms D touched him in ways that angered and alarmed him, and which caused him to respond with an angry demeanour and by using unspecified words “aggressively”. Something, however, despite Mr Bragg’s denial, did thereafter occur in the lift. It involved “some form of physical contact” between the pair (para 11.12) but the “extent to which [such] contact was involved [was] unclear” (para 12.3). It did involve an “over reaction” by Mr Bragg (ibid) and, despite “some provocation” by Ms D, the provocation was not sufficient to “exonerate” him, ibid; there was a failure by him “to treat Ms D with the courtesy and sensitivity due to a colleague”. While it is not spelled out, the DAC majority seems to have considered that Mr Bragg deliberately used some degree of physical force on Ms D. The only conclusion one can fairly reach is that the degree of the force was the minimum necessary to sustain the charge. This would not be a very great degree. Most people would think it “improper conduct” for a man to use even a mild degree of hostile force against a woman, other than instantaneously in genuine fear. It may be assumed, from Ms D's allegations, that the DAC found that Mr Bragg pushed her with his hands.
As to the second charge, again the DAC shied off deciding, even by stating their effect in any detail, what precise words were used. However, the reader of the decision does know that there were words used by Mr Bragg that involved some form of sexual harassment but, although that “left much to be desired in terms of [the behaviour] of an officer in the APS”, the second charge, not involving “physical contact”, “did not carry the serious overtones” of the first (para 12.4).
The argument for the applicant
The only point argued was that the DAC had erred in law by taking into account two matters, namely, Mr Bragg’s liability for costs and his "stress", which were extraneous to the proper determination of suitable action to be taken in relation to him. If either of these matters was unlawfully taken into account, then the penalties should be set aside, and the issue of penalty, and it alone, should be remitted to the Committee, with any directions thought fit. (I have spoken throughout this judgment, for convenience, of "penalty", but the proceedings in relation to Mr Bragg are of course in no sense penal - see below).
What factors did the DAC take into account and on what basis?
To be fair to the members of the DAC, allowance of a degree of latitude in expression seems appropriate.
Thus, in relation to the references to Mr Bragg’s “stress”, while he gave no evidence of it, and there was certainly no expert evidence of it, it would be a reasonable and natural inference that various circumstances would very likely have distressed him beyond what was inescapable. The investigation of any disciplinary matter involving an appeal is likely, inescapably, to distress people. Those circumstances are:
(a)Apart from being approached several days later about the matter, when he denied any wrongdoing, Mr Bragg heard no more about the affair for the next 20 months (paras 9.9 and 10.1.2) when he was charged;
(b)On account of that delay, a possibly material witness was lost (paras 10.1.3 and 10.1.8);
(c)Mr Bragg was eventually charged after the following events:
(i)his having twice been assured by his supervisors that there would be no further action in relation to the matter (paras 9.9 and 12.6);
(ii)his being promoted a “level” (i.e. a grade) 8 or 9 months after the incidents charged (para 12.6);
(iii)an initially rather doubtful Departmental process of considering the matter following his being charged (paras 12.7, 11.2.4 - 11.6);
(iv)the Departmental delegate’s decision, nevertheless, that he be actually dismissed, a decision apt to “have a dramatic effect on his income, career prospects and his reputation” (para 12.11), whereas the dissentient Departmental nominee on the DAC ultimately considered that a “penalty of reduction in level” would suffice (para 12.15); and
(v)“the delay in and circumstances of bringing the charges ... [which had] certainly disadvantaged him in preparing his case” (para 12.12.3).
Nevertheless, the DAC regarded as relevant not only “personal stress over a long period” but that this included “the stress of a public hearing of the matter” (para 12.12.2).
In relation to costs, the position is simpler. The DAC found that “[f]inancially the DAC appeal has cost him $7,200 in legal fees” (para 12.11). The first-listed relevant factor in its decision that he be admonished in respect of each charge was that the appellant had suffered significant financial penalty as a result of the incident.
Relevant legal principles
The chief object of the PS Act is "to constitute a public service for the efficient, equitable and proper conduct, in accordance with sound management practices (including personnel management practices), of the public administration of the Australian Government": s 6. The Act, including of course the provisions as to "discipline" (Div 6 of Part III (ss 55-65)), is to be construed accordingly: ibid.
With that in mind, one may say, without being exhaustive, that the objects of the disciplinary provisions include protection of the public and of the public interest in an efficient, responsive and incorruptible public service; the maintenance of proper standards of conduct on the part of APS officers, bearing in mind that they are both employees and public employees; and the protection of the reputation of the APS (cf. Hardcastle v Commissioner of Police (1984) 53 ALR 593 at 597), as well as securing that the mode of administering intra-service discipline itself be efficient, equitable and proper.
In those senses, the disciplinary provisions are protective in character, and not punitive: ibid.
As to appropriate matters to be taken into account in possible mitigation of penalty, the scope is broad. Section 63D(6)(a) requires that on an appeal against the severity of action proposed to be taken against an officer in relation to whom a charge has been made out, the DAC is to take into consideration evidence of "matters relating to the previous employment history and general character of the appellant". Plainly, those are words of wide import.
In Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24, Mason J at 40 said:
"What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard..."
In Secretary, Department of Social Security v Willee (1990) 96 ALR 211 at 221-2, Foster J relied on those principles to accept that a wide range of matters personal to an appellant charged officer, additional to those mentioned in s 63D(6), were not excluded from the range of factors to which the DAC might legitimately have regard; nor was there any warrant for regarding personal factors as relevant only insofar as they might have contributed to a failure by the officer to appreciate the nature or gravity of the offence. With respect, I agree with His Honour's approach and conclusion.
In my view, to the extent that any matter does not distract the DAC from upholding the primary importance of taking, and being seen to take, action which will protect the APS's integrity and the confidence of the Australian public in it, it is legitimate and proper that such matter be taken into account. Such matters may include explanation of the offence, minimisation of culpability for it, personal hardship before or after the offence on account of the disciplinary process, or indeed any other mitigating factor personal to the errant officer. Such, in my opinion, is not only a conclusion compelled by the s 6 requirement that the administration of APS discipline itself be "efficient, equitable and proper"; it accords with common sense, common justice and good management practice.
"Stress"
It was rightly pointed out that no medical or the like evidence was called as to this, nor did Mr Bragg himself complain of it in his evidence. Nevertheless, as indicated above, a comfortable inference can be drawn of unusual stress attending the particular course of the disciplinary process in this case. With one exception, I think it perfectly proper for the DAC to have had mitigatory regard to it. The exception is in relation to the reference to the "stress of a public hearing of the matter". As such a hearing was implicitly mandated by the Merit Protection (Australian Government Employees) Act 1984 (Cth), and "stress" (a degree of distress, as it might less evocatively be termed) almost inevitably accompanies such a hearing, I cannot think that such ordinary distress is properly regarded as mitigatory.
However, taken in the entire context, it seems clear enough that that error alone, or added to the other which I identify below, would hardly have materially influenced the decision.
Legal costs
Charged officers appealing to the DAC may or may not wish to be legally represented. If they do, they may or may not be able to afford to pay for such representation. If they need financial assistance, they may or may not have access to some fund, publicly provided through a governmental legal aid system, or privately provided, as by a trade union. The actual necessity for legal representation, and the level of it thought appropriate, might be more or less rationally decided, from case to case.
Unlike matters of service history, general character, effect on the various service emoluments (cf. Comptroller-General of Customs v Disciplinary Appeal Committee & Day (1992) 107 ALR 480; 27 ALD 687) and general matters of hardship, the question of costs incurred is not a matter which a sense of equity, propriety or common fairness requires be taken into account. If it were otherwise, well-off officers who misbehaved would tend to have a comparative advantage over, and to incur less severe disciplinary consequences than, others with less money.
However reasonable it may be for charged officers to incur legal costs in relation to an appeal in respect of disciplinary action taken against them, the costs are incurred as a result of their own personal decisions or arrangements. By contrast, the very wide range of mitigatory matters which may legitimately be taken into account will not usually include hardships directly arising from officers' private decisions or lack of antecedently-made arrangements.
I think that the Committee erred in having regard to Mr Bragg’s having incurred substantial costs on account of his appeal to the DAC.
What should the Court do?
Relatively minor errors of law have been demonstrated to the Court. Mr Bragg has been formally admonished by the DAC. It is not Mr Bragg’s fault that the matter has dragged on for close to two and a half years. By contrast, his opponent’s departmental officers seem, as much as anyone, to have been responsible for much of the delay, and for twice telling him he need not fear an ill result from the matter. As I have indicated, the whole process has entailed a deal of quite unnecessary distress for Mr Bragg. His wrongdoing, the essential validity of Ms D’s complaint, and the appropriate standards of behaviour for APS officers have been vindicated by the DAC’s decision.
The Court has made it clear to the DAC and everyone else concerned that, while there is a very broad range of mitigatory matters which may be taken into account, there are limits to that range. The Court has identified two such matters that are outside that range.
It is common ground that the same DAC cannot, due to personnel changes, be re-assembled.
In my view, this is an unusual case. Very little of practical utility is likely to be achieved by remitting the issue of penalty for re-determination. Anything of practical utility is likely to be accomplished at the cost of further, inescapable distress to Mr Bragg after a long history of unnecessary distress for him, and at some public expense. In my view, the Court ought to decline in its discretion to intervene (see s 10(2)(b) of the ADJR Act and Bragg v The Secretary, Department of Employment Education & Training (Fed C of A, Davies J, G84 of 1995, 8 June 1995, unreported)).
Accordingly the final order I make will be that the application is dismissed.
I certify that this and the preceding 21 pages are a true copy of the Reasons for Judgment of His Honour Justice Madgwick.
Associate:
Dated: 7 June 1996
APPEARANCES
Counsel for the Applicant: C Howell
Solicitor for the Applicant: Geoffrey Edwards & Co
Counsel for the Respondent: B Skinner
Solicitor for the Respondent: M Allatt, Australian Government Solicitor
Date of hearing: 22 April 1996
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