Buonopane, John v Secretary, Dept Employment, Education and Youth Affairs
[1998] FCA 1128
•9 SEPTEMBER 1998
FEDERAL COURT OF AUSTRALIA
ADMINISTRATIVE LAW – Australian Public Service – Authorized officer empowered to charge officer if of opinion that officer may have failed to fulfil duty – Inquiry into charge to be held by officer appointed by Secretary – No formal hearing required, but officer at liberty to furnish statement and make oral submission – Where inquiring officer satisfied that charge made out penalty may be imposed, including dismissal from service – Authorized officer empowered to investigate allegations of misconduct against officer – Whether restricted to existing allegations – Whether officer entitled to particulars of allegations before authorized officer lays charges – Whether inquiring officer accorded procedural fairness at inquiry stage – Whether decision making process in its entirety fair to officer.
Public Service Act 1922 ss 61, 62.
Ansell v Brewster (unreported, Neaves J, 12 May 1992) applied
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 distinguished
Kelly v Watson (1985) 64 ALR 113 distinguished
Rees v Crane [1994] 2 AC 173 distinguished
Brettingham‑Moore v Municipality of St Leonards (1969) 121 CLR 509 applied
Twist v Randwick Municipal Council (1976) 136 CLR 106 applied
Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 mentioned
Dixon v The Commonwealth (1981) 55 FLR 34 mentioned
Edelsten v Health Insurance Commission (1990) 96 ALR 673 applied
Wiseman v Borneman [1971] AC 297 mentioned
Furnell v Whangarei High Schools Board [1973] AC 660 mentioned
South Australia v O’Shea (1987) 163 CLR 378 mentioned
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 mentioned
JOHN BUONOPANE v THE SECRETARY OF THE DEPARTMENT OF EMPLOYMENT, EDUCATION AND YOUTH AFFAIRS, JUDITH BOWMAN, SHERYL LEWIN and DAVID ARTHUR BRADLEY
VG 127 OF 1998
SUNDBERG J
9 SEPTEMBER 1998
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 127 of 1998
BETWEEN:
JOHN BUONOPANE
APPLICANTAND:
THE SECRETARY OF THE DEPARTMENT OF EMPLOYMENT, EDUCATION AND YOUTH AFFAIRS
FIRST RESPONDENTJUDITH BOWMAN
SECOND RESPONDENTSHERYL LEWIN
THIRD RESPONDENTDAVID ARTHUR BRADLEY
FOURTH RESPONDENT
JUDGE:
SUNDBERG J
DATE OF ORDER:
9 SEPTEMBER 1998
WHERE MADE:
MELBOURNE
THE COURT DECLARES THAT:
The second and fourth charges against the applicant were invalidly laid and were of no effect.
The second respondent was not authorised to hold an inquiry in relation to the second and fourth charges.
The second respondent’s decisions on the second and fourth charges are invalid.
THE COURT ORDERS THAT:
The second respondent’s decisions on the second and fourth charges be set aside.
The application be otherwise dismissed.
The respondents pay one half of the applicant’s taxed costs of the application.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 127 of 1998
BETWEEN:
JOHN BUONOPANE
APPLICANTAND:
THE SECRETARY OF THE DEPARTMENT OF EMPLOYMENT, EDUCATION AND YOUTH AFFAIRS
FIRST RESPONDENTJUDITH BOWMAN
SECOND RESPONDENTSHERYL LEWIN
THIRD RESPONDENTDAVID ARTHUR BRADLEY
FOURTH RESPONDENT
JUDGE:
SUNDBERG J
DATE:
9 SEPTEMBER 1998
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
THE FACTS
On 22 April the applicant, who was a member of the Australian Public Service, was the subject of a discipline counselling session in relation to a claimed misuse by him of Jobsystem Victoria State Bulletin Screen. The other officers present were Scott Little, Director Network Support, and Melanie Krepcik, Manager Information Technology Unit Melbourne (“the Unit”). At the conclusion of the session the applicant was told he would be put on standard hours until Mr Little and Ms Krepcik were satisfied that his work attitude had improved. This was to ensure that the applicant would be adequately supervised in the Unit. Later that day an Email purporting to be from the applicant was sent to thirteen persons in the Unit. In the Email the applicant said he had been victimised for something he had not done, complained about the conduct of the session, and concluded by saying: “I am ANGRY and will SHOW it”. On 23 April, according to Ms Krepcik in a report to Mr Little, the applicant was late for work, and she directed him to submit a leave without pay form to cover the absence. He refused to do so, and she directed him in writing to submit a form. The applicant accepted the direction, telling Ms Krepcik it would give him more ammunition to use against her. According to Ms Krepcik, during their exchange the applicant was extremely loud and could be heard by at least five people, he accused her of being a terrible manager who had deliberately set out to “shaft” him, he had sent the Email to all staff to tell them about her and her methods, and he would tell everyone so they would know she was the “worst person in the world”. Ms Krepcik said she was distressed by what had happened, and asked Mr Little to advise her how to proceed, as she didn’t think she could “take much more of this”.
On 5 May Ms Krepcik requested the appointment of an authorized officer under s 61(2) of the Public Service Act 1922 (“the Act”) to determine whether there was sufficient evidence to lay a charge of misconduct against the applicant. Attached to the request were, amongst other things, the record of the 22 April counselling session, the Email of that date, the applicant’s response to the record of interview and Ms Krepcik’s Email report to Mr Little of 23 April. By instrument dated 27 June the fourth respondent (Mr Bradley) was appointed an authorized officer under s 61(2) “in relation to allegations of misconduct against John Buonopane”. In a letter to Mr Bradley accompanying the instrument the appointor, W Mutton, Acting First Assistant Secretary, said:
1.As you are aware, you have been nominated as Authorized Officer to investigate allegations of misconduct against Mr John Buonopane.
2.I have issued the attached instrument effecting your appointment. As Authorized Officer it is your responsibility to investigate the allegations and decide whether Mr Buonopane should be charged with misconduct.
3.You should commence your investigation immediately and aim to finalise your investigation within one month of your appointment. If this is not possible, you must request an extension of the time frame from Ms Sheryl Lewin, Assistant Secretary, People Management Branch. Any such request must be accompanied by reasons which describe the exceptional circumstances preventing completion of the investigation in the specified time frame.
…
On the same day Mr Mutton wrote to the applicant telling him he had received allegations from Ms Krepcik, that Mr Mutton was required to appoint an authorized officer to investigate the allegations, that he had appointed Mr Bradley as authorized officer “in this matter”, and that Mr Bradley would contact him and provide him with an opportunity to furnish a statement “in relation to the matter”.
On 15 July Mr Little sent an Email to the applicant raising concerns about the applicant’s use of Email and requiring him to restrict his use to operational day to day issues or for communication with his supervisors. Mr Little said he had asked Ms Krepcik to raise this with the applicant to make sure he understood his role within the Unit. Ms Krepcik did so, and she alleged that the applicant’s response was to describe the Email as “rubbish”. When she asked him to keep his voice down he accused Mr Little of being a “coward” and “cheap”, and suggested that Mr Little should come to Melbourne and face him so he could see who he was dealing with.
On 14 August Mr Bradley interviewed the applicant. He told the applicant he was limiting his investigation into the applicant’s conduct from the 22 April counselling session to the date of the interview. The Email of 22 April was discussed. In Mr Bradley’s record of interview there is no express mention of the 23 April incident, though it records that Mr Bradley told the applicant that the investigation did not solely relate to inappropriate use of Email. The record does not mention the incident of 15 July, though another event on that date is noted. The applicant was provided with a copy of the record of interview, and on 29 August suggested a few minor corrections and additions, and agreed that otherwise it was an accurate record.
On 8 September the applicant sent an Email to Sandra Perham which was in part as follows:
today on the 8th of September, Ms Melanie Krepcik, skulked up to my desk and threw into my face a copy of a Minute that she will be sending you. This Minute is full of filthy, scurrilous and putrid lies. This person seeks only to blacken my name and character, and my suggestion to you would be to minimise handling of this document (as I did, lest I catch some disease) and dispatch it to the nearest recycling bin. Ms Melanie Krepcik has a long history of poor personnel practice and presenting twisted and misleading information in some feeble attempt at revenge which she somehow thinks she is compelled to extract.
The truth is that last Monday I injured my back at work …
…
At no stage had she who skulked to my desk enquire as to the status of my back or general welfare. She merely seeks to financially hurt me. Would it be possible for the department to organise for this person to undertake some form of CAT scan or other medical procedure to ascertain if there is a determinable reason that causes someone to exhibit such displays of malevolence. I merely ask out of concern for her welfare.
On 12 November Mr Bradley laid four charges against the applicant. The first charged him with having failed to fulfil his duty as an officer within the meaning of s 56(f)(i) of the Act in that he failed to comply with reg 8A(e) of the Public Service Regulations because he did not treat other officers with courtesy and sensitivity to their duties. The particulars of the charge were as follows:
on the morning of 23 April 1997 Ms Krepcik, Manager, Information Technology Unit, provided Mr Buonopane with a written direction to submit a leave without pay form. Mr Buonopane initially refused to accept the direction then changed his mind and agreed to accept the direction stating that this would give him more ammunition to use against Ms Krepcik. Mr Buonopane went on to accuse Ms Krepcik of being a terrible manager who had deliberately set out to shaft him. Mr Buonopane went on to say to Ms Krepcik that he would tell everyone about her so that they would know she was the worst person in the world.
The second charge was also based on s 56(f)(i) and reg 8A(e). The Particulars were as follows:
on the morning of 15 July 1997 on receipt of an email from Mr Scott Little, regarding concerns with Mr Buonopane’s use of email, Mr Buonopane acted in an inappropriate manner by referring to the email from Mr Little as rubbish. When asked to keep his voice down by Ms Melanie Krepcik, Manager Information Technology Unit, he accused Mr Little of being a ‘coward’ and ‘cheap’. He suggested to Ms Krepcik that Mr Little should come to Melbourne and face him so that he could see who he was dealing with.
The third charge was based on s 56(f)(i) and reg 8A(b). The particulars were that on 22 April the applicant had failed to comply with the Email Code of Practice by sending the Email of that date to named persons. The content of the Email was set out. The fourth charge was also based on s 56(f)(i) and reg 8A(b). The particulars were that on 8 September the applicant failed to comply with the Email Code of Practice by sending an Email to Sandra Perham. The content of the Email was set out. The charges were served on the applicant on 20 November.
On 25 November the second respondent, Judith Bowman, was appointed as inquiry Officer pursuant to s 62 of the Act. On 9 January 1998 Ms Bowman wrote to the applicant advising him that he could state in writing whether he admitted or denied the truth of the matters set out in the charges, furnish a statement in relation to the matters, and make a further oral statement. Ms Bowman told him that if she was satisfied that he had failed to fulfil his duty as an officer, she would, in deciding what action to take, have regard to the applicant’s previous employment history, including any instances where he had been counselled or warned within the last two years and any previous disciplinary action recorded on his official conduct record. On 9 January Ms Bowman interviewed the applicant. The interview was limited to procedural matters. A copy of the record of interview was later provided to the applicant under cover of a letter responding to inquiries he had made during the interview.
On 29 January the applicant provided Ms Bowman with a written response to the charges in which he reserved the right to make a further oral submission. On 27 February Ms Bowman wrote to the applicant’s solicitors suggesting a meeting at which the applicant could provide his oral submission. On 5 March Ms Bowman gave the applicant a summary of the preliminary interviews she had undertaken. The summary was in two parts. The first related to proof of the charges and the second to the directions that might be given if the charges were made out. The first part stated that the officers interviewed had confirmed that the events described in the charges (as they related to them) were factual. The relevant officers had been asked to confirm that they recalled receiving Email correspondence from the applicant which was consistent with the text outlined in the specific charges. The second part of the summary is extensive and need not be described.
On 5 March a meeting was held between Ms Bowman, the applicant and his solicitor. There was extensive discussion about the charges. On 6 March the applicant’s solicitors wrote to Ms Bowman setting out their legal arguments concerning the validity of Mr Bradley’s findings. They commented in detail on each of the charges. On 11 March Ms Bowman wrote to the solicitors stating that she had taken legal advice on the matters raised by them and was not satisfied that there was any legal impediment to the inquiry proceeding. She proposed to reconvene the hearing. The solicitors responded by saying that the applicant would participate in the investigation only if the Commonwealth agreed to pay their costs if any finding of misconduct were overturned on appeal on any of the legal grounds outlined, or on the ground that the Commonwealth had failed to provide the applicant with witness statements. Ms Bowman did not agree to the payment of the costs and again proposed a resumption of the hearing. The solicitors said that the applicant would not participate further until they were provided with “documentation to which he is entitled”. Ms Bowman refused to provide the documents, and specified a time for the resumption of the inquiry. The solicitors responded that the applicant would not participate unless he was given the witness statements relied upon in relation to the first and second charges (the non‑Email charges).
On 30 March Ms Bowman signed a notice of direction under s 62(6) in relation to the charges, all of which she found had been sustained. On the first charge (23 April exchange with Ms Krepcik) she directed that the applicant’s salary be reduced by two increment points for twelve months. On the second (15 July exchange with Ms Krepcik) she directed a further salary reduction for twelve months. On the third (22 April Email) she directed a salary deduction of $500. On the fourth (8 September Email) she directed that the applicant be dismissed from the Public Service.
THE APPLICATION
The applicant has applied under the Administrative Decisions (Judicial Review) Act 1977 for declarations that the charges were invalidly laid, that Ms Bowman was not authorised to hold an inquiry into the charges, and that her decisions are invalid. He also seeks orders setting aside each of the decisions made on 30 March 1998. Only two of the grounds of the amended application were pursued at the hearing. The first is that Mr Bradley did not have jurisdiction to decide that the applicant should be charged in respect of allegations that were made after 6 May 1997 (the date of Ms Krepcik’s request for appointment of an authorized officer) alternatively after 27 June 1997 (the date of Mr Bradley’s appointment). The only allegations he could consider were those the subject of Ms Krepcik’s request, that is to say those relating to the events of 22 and 23 April. By reason of Mr Bradley’s lack of authority to lay the other two charges, Ms Bowman had no power to act as an inquiry officer in relation to them. The second ground is that the applicant had been denied natural justice in that Mr Bradley had failed to inform him of particulars of the allegations concerning the events of 23 April and the 15 July and 8 September Emails, and Ms Bowman had failed to provide him with particulars of the allegations relating to the four charges, and had given her directions without providing him with a reasonable opportunity to be heard.
LEGISLATIVE BACKGROUND
Subdivision C of Division 6 of the Act deals with the Discipline of Officers other than Secretaries of Departments. The Subdivision consists of ss 60A to 63G. Section 61(2) provides:
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)if he decides that the officer should not be charged – may counsel the officer or cause a supervisor of the officer to counsel the officer; or
(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.
Under s 56 an officer is to be taken to have failed to fulfil his duty as an officer if and only if he does one or more of the things there set out. The only one that matters for present purposes is if the officer contravenes or fails to comply with a provision of the Act or the regulations that is applicable to him: par (f)(i). An officer charged under s 61(2) may request the Secretary to furnish copies of the charge to an organisation within the meaning of the Industrial Relations Act 1988 specified by the officer or to a person whom the officer wishes to assist him in relation to the charge, and the Secretary must comply with any such request: sub‑s (3).
Section 62(1) provides in part that
where an officer is charged with misconduct under section 61, an inquiry shall, without undue delay, be held into the charge by the relevant Secretary or an officer appointed for the purpose by the relevant Secretary.
Sub‑section (3) provides:
In an inquiry for the purposes of subsection (1), a formal hearing is not required, but the officer shall be notified that an inquiry is to be held into the alleged misconduct and given an opportunity to state, in writing, within 7 days or such longer period as the officer holding the inquiry may allow after the notice is furnished to him, whether he admits or denies the truth of the matters alleged to constitute the misconduct and to furnish a statement in relation to those matters, including a statement submitting that the matters alleged to constitute the misconduct are, even if true, incapable in law of constituting the misconduct for the purposes of this Act.
Sub‑section (4) provides:
Where an officer has furnished a statement in relation to the matters alleged to constitute misconduct, the officer shall, if he so requests, be given the opportunity of making a further oral statement to the officer holding the inquiry and, if he does so, a written record of his further statement shall be made by that officer.
Sub‑section (6) provides that where the officer holding the inquiry is satisfied that the officer charged has failed to fulfil his duty as an officer, he may counsel the officer, cause the officer to be counselled by another officer, direct that there be taken any of the steps listed in par (a), or direct that the officer be dismissed from the Service. The steps listed in par (a) include admonishing the officer, reducing the officer’s salary and causing a sum not exceeding $500 to be deducted from his salary.
Section 63B(1) sets out the conditions under which the Secretary may suspend an officer from duty. He may do so if he is of the opinion that an officer may have failed to fulfil his duty as an officer, and that it would be prejudicial to the effective operation of the Service, to the interests of the public or to the interests of the officer or his fellow officers, if the officer were to continue to perform the duties of his existing office pending the taking of a decision not to charge him with misconduct or the hearing and determination of any charge of misconduct laid against the officer. The Secretary is not authorised to suspend the officer unless he has given the officer an opportunity to be heard or is of the opinion that it would not be appropriate, in the particular circumstances, to give the officer such an opportunity.
An officer can appeal to a Disciplinary Appeal Committee against a decision made in respect of him under s 62(6): s 63D.
MR BRADLEY’S AUTHORITY
The instrument authorizes Mr Bradley “to be an authorized officer for the purposes of s 61(2) … in relation to allegations of misconduct against John Buonopane”. It is thus an authority for a particular purpose. Section 61(2) certainly contemplates a general authority – an authority “for the purpose of this subsection”. That was the form of authority considered in Ansell v Brewster (unreported, 12 May 1992). The applicant did not submit that the instrument was invalid because it was not a general authorization. The submission was that as a matter of construction the ambit of the authority was limited to inquiry into allegations that had been made against the applicant. In their natural meaning the words “in relation to allegations of misconduct against John Buonopane” refer to existing allegations against the applicant. The circumstances surrounding the instrument support this construction. Ms Krepcik’s request for the appointment of an authorized officer related only to the events of 22 and 23 April (Email and abuse of Mrs Krepcik respectively). The terms of the request were that an authorized officer be appointed to determine whether there was sufficient evidence to lay a charge of misconduct. That can only refer to the conduct complained of by Ms Krepcik. Mr Mutton’s letter to Mr Bradley of 27 June confirmed that Mr Bradley had been appointed to “investigate allegations of misconduct against” the applicant. Again that can only relate to allegations that had been made. The one month time limit on the investigation is only consistent with the investigation of existing complaints. Mr Mutton’s letter to the applicant is even more clear. He informed the applicant that he had “received allegations from Mrs Krepcik”. He said he was required to appoint someone to conduct an investigation into “the allegations”, and had appointed Mr Bradley as authorized officer “in this matter”. Mr Bradley’s role was to determine whether there was a case to answer. That must mean a case to answer in respect of the conduct the subject of the allegations. If Mr Bradley were to find there was a case to answer, he had to decide whether a charge of misconduct should be laid. What that means is that Mr Bradley had to decide whether the conduct complained of should found a charge of misconduct. Mr Bradley would provide the applicant with an opportunity to furnish a statement “in relation to the matter”. Plainly “the matter” is the subject of the allegations made by Ms Krepcik.
If the instrument stood alone, I would treat it as authorizing an investigation into allegations that had been made, and not as authorizing the investigation of allegations generally, in particular any allegations that might be made in the future. The surrounding circumstances put the matter beyond doubt. The present case is to be contrasted with Ansell, where an instrument authorising an officer “to be an officer authorised by the Secretary for the purposes of sub‑section 61(2)” was treated as not limited to the investigation of incidents that had occurred before the date of the instrument. The instrument in the present case is not only limited to past conduct, but to conduct the subject of existing allegations. In my view Mr Bradley was not authorized to investigate the events of 15 July or 8 September.
EFFECT OF THE LACK OF AUTHORITY
The applicant submitted that Mr Bradley’s lack of authority to investigate the events of 15 July and 8 September meant he had no power to lay charges with respect to those events. I think that is correct. I do not accept the submission for the respondents that an inquiry under s 62(1) can be held so long as charges have in fact been laid. The words of s 62(1) – “where an officer is charged with misconduct under section 61” ‑ contemplate a valid charge; one the authorized officer is empowered to lay as a result of investigations he has been authorised to make. In Ansell Neaves J held that the validity of proceedings under ss 62 and 63D depend on the existence of a valid charge. The cases relied on by the respondents, Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 and Kelly v Watson (1985) 64 ALR 113, are distinguishable. In Brian Lawlor Bowen CJ and Smithers J held that a decision made by an administrator in purported pursuance of a statute was a “decision” for the purposes of the review provision in s 25 of the Administrative Appeals Tribunal Act 1975 notwithstanding that it was not a legally effective decision. A “decision” in that context was one that had in fact been made. Kelly v Watson, which concerned an appeal to the Disciplinary Appeal Board under s 63D(2) of the Act, is to the same effect. Those cases depended on the “review” or “appeal” context in which the word “decision” appeared. As Smithers J said in Brian Lawlor at 335, to restrict the ambit of s 25 to legally effective decisions would remove from review those decisions most in need of review, namely those made without power. It would be an odd intention to attribute to Parliament in a measure permitting the review of administrative decisions that those which are legally ineffective are not susceptible to review. It would be equally odd to attribute to it an intention that an officer could be dismissed from the service after the hearing of a charge laid by an investigating officer who was not empowered to investigate the matter the subject of the charge. The context in which the present issue arises is entirely different from that in the review/appeal cases.
The fact that Mr Bradley was not authorised to investigate the conduct of 15 July and 8 September meant he could not lay charges in relation to those events, and Ms Bowman could not hold an investigation into those charges. Her decisions on the second and fourth charges are thus invalid, and the directions in respect of them, namely that the applicant suffer a salary reduction of three increment points (the second charge) and that he be dismissed from the Service (the fourth charge), must be set aside.
THE ONE MONTH POINT
The applicant’s contention was that all the charges were invalid because they had not been laid within one month of 27 June 1997. This remains a live issue only as to the surviving charges (the first and third). This submission was based on Mr Mutton’s letter to Mr Bradley requiring him to finalise his investigation within one month of his appointment. Mr Bradley was told he could obtain an extension of time from the third respondent, and there being no evidence that he did, his authority expired at the end of July, and the charges laid in November were invalid. I do not accept this submission. Section 61(2) requires the authorized officer to decide “as soon as practicable” whether to lay a charge. What is practicable depends on the circumstances. Mr Mutton had no power to define the statutory prescription so that something that was not done within a month was not done as soon as practicable. The applicant did not contend that the charges had not been laid as soon as practicable; only that they had not been laid before the expiration of the month, and that they were invalidly laid for that reason.
PROCEDURAL FAIRNESS AT THE CHARGING STAGE?
The applicant contended that Mr Bradley had failed to give him particulars of the allegations concerning the events of 23 April and had thereby deprived him of an opportunity to respond to those allegations. It was submitted that an authorized officer’s decision under s 61(2) affects an officer’s rights or interests. It was pointed out that s 61 concerns disciplinary action, that the authorized officer exercises an important discretion in deciding whether or not to lay a charge, that the mere charging of an officer affects reputation within the service, and that the fact of being charged exposes an officer to suspension under s 63B. Reliance was placed on the decision of the Privy Council in Rees v Crane [1994] 2 AC 173. Under s 137 of the Constitution of the Republic of Trinidad and Tobago a judge could be removed from office in accordance with the section for inability to perform the functions of his office or for misbehaviour: sub‑s (1). Under sub‑s (2) a judge could be removed from office by the President where the question of removal had been referred by the President to the Judicial Committee and the Committee had advised the President that the judge ought to be removed. Under sub‑s (3), when the Judicial and Legal Service Commission represented to the President that the removal of a judge ought to be investigated, the President was required to appoint a tribunal to inquire into the matter and recommend to the President whether he should refer the question of removal to the Judicial Committee. If the tribunal recommended removal, the President was required to refer the question accordingly. When the question of removing a judge had been referred to a tribunal, the President, on the advice of the Chief Justice, could suspend the judge.
After receiving complaints about Mr Justice Crane, the Chief Justice decided not to include him in the roster of judges who were to sit in court for the following term. The judge was informed that he should cease to preside in court until further notice. Without notifying him, the Commission met to consider whether to make a representation to the President under s 137(3) that the question of removing the judge from office ought to be investigated. The judge was not told of the complaints against him or given an opportunity to answer them. The Commission made a representation to the President under sub‑s (3) that the question of removing the judge ought to be investigated. The President appointed a tribunal to inquire into the matter, and suspended the judge. On the judge’s application for judicial review the Privy Council held that the Commission had not accorded him procedural fairness in that it had not informed him of the allegations made against him and given him the chance to reply to them in an appropriate way. At 191 the Board said:
It is clear from the English and Commonwealth decisions which have been cited that there are many situations in which natural justice does not require that a person must be told of the complaints made against him and given a chance to answer them at the particular stage in question. Essential features leading the courts to this conclusion have included the fact that the investigation is purely preliminary, that there will be a full chance adequately to deal with the complaints later, that the making of the inquiry without observing the audi alteram partem maxim is justified by urgency or administrative necessity, that no penalty or serious damage to reputation is inflicted by proceeding to the next stage without such preliminary notice, that the statutory scheme properly construed excludes such a right to know and to reply at the earlier stage.
Their Lordships then observed that there is no absolute rule to this effect even if there is to be, under the procedure, an opportunity to answer the charges later. At 192 they quoted with approval a passage from de Smith’s Judicial Review of Administrative Action 4th ed (1980) at 199:
Where an act or proposal is only the first step in a sequence of measures which may culminate in a decision detrimental to a person’s interests, the courts will generally decline to accede to that person’s submission that he is entitled to be heard in opposition to this initial act, particularly if he is entitled to be heard at a later stage.
The emphases are their Lordships’. They then said that in considering whether to follow the general practice in a particular case courts should not be bound by rigid rules, but should have regard to all the circumstances of the case. After noting that the fact that the judge would have had an opportunity to answer the complaint at a later stage before the tribunal and before the Judicial Committee was a pointer in favour of the general practice, their Lordships identified a number of factors that pointed in the other direction. These included:
Section 137 was silent as to the procedure to be followed at each stage, and as a matter of interpretation was not to be construed as necessarily excluding a right to be informed and heard at the first stage.
It had not been shown that it was not possible for the complaint material to have been given to and replied to by the judge or that unacceptable delay would have followed had such a course been taken.
The Commission’s action was not analogous to the decision of a police officer to charge a defendant in the criminal process. The composition of the Commission and the nature of the process made what happened more akin to a quasi‑judicial decision.
The complaint – inability to perform the functions of the judge’s office because of infirmity of body and/or misbehaviour – was a serious one.
The fact that the Commission had represented to the President that the question of removing the judge should be investigated had generated considerable publicity.
A judge was in a particularly vulnerable position if suspicion that the Commission and the President were satisfied that the charges had been made out was raised without foundation.
As these factors show, Rees v Crane is readily distinguishable from the present case. Subdivision C is not silent as to the procedure to be followed at each stage of the disciplinary process. Section 61(2) requires the authorized officer to make his decision as soon as practicable. The authorized officer’s decision is analogous to a police officer’s decision to charge a person. The complaints made against the applicant lack the serious quality of those against the judge. There is no evidence of any publicity surrounding the applicant’s treatment. The applicant does not share the peculiar vulnerability of a judge.
The disciplinary scheme in Subdivision C has features which have led me to conclude that an officer is not entitled to be informed of the allegations that may lead to a charge being laid. As I have said, the Subdivision is not silent as to the procedure to be followed at the various stages of the process. When an officer is charged, an inquiry is to be held without undue delay. No formal hearing is required, but the officer must be notified that an inquiry is to be held, and must be given an opportunity to state whether he admits or denies the truth of the matters alleged to constitute the misconduct and to furnish a statement in relation to those matters: s 62(3). The officer also has the right to request the opportunity to make a further oral statement to the inquiring officer: s 62(4). The Secretary is not authorised to suspend an officer under s 63B(1)(d) unless he has given the officer an opportunity to be heard or is of the opinion that it would not be appropriate to afford such an opportunity. Section 63D gives a dissatisfied officer a right of appeal to a Disciplinary Appeal Tribunal which is required to hear the appeal. It is plain from sub‑ss (3) and (6) that the hearing in question is a formal hearing.
The scheme established by the Subdivision discloses that Parliament has adverted to the procedural fairness required at each stage of the disciplinary process. At the appeal stage there is to be a formal hearing. At the suspension stage the officer is to be given an opportunity to be heard unless particular circumstances exist which make it inappropriate. At the inquiry stage, a formal hearing is not required, but the officer has to be told of the misconduct the subject of the charges and given an opportunity to make a statement in relation to the misconduct. The contrast between this stage (s 62(3) and (4)) and the s 61(2) stage is eloquent. The limited right conferred on the officer under s 61 is to have a copy of the charge furnished to the persons specified in sub‑s (3). To import into s 61(2) one of the procedural steps required at the s 62 stage would be to alter the carefully crafted scheme devised by Parliament. This is not a case where Parliament is silent on procedural fairness. It has specified the stages at which fairness is required and the content of that fairness. The intention is manifest that at the earliest stage the officer is not to have the opportunity to make representations as to why charges should not be laid against him. See generally Brettingham‑Moore v Municipality of St Leonards (1969) 121 CLR 509 at 542, Twist v Randwick Municipal Council (1976) 136 CLR 106 at 109‑110, Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 at 499, Dixon v The Commonwealth (1981) 55 FLR 34 at 41‑42 and Edelsten v Health Insurance Commission (1990) 96 ALR 673 at 686, 688. I will return to the question whether the court should supplement the statutory scheme after considering the complaint that the applicant had not been afforded procedural fairness at the inquiry state.
PROCEDURAL FAIRNESS AT THE INQUIRY STAGE
The contention here is that Ms Bowman did not provide the applicant with sufficient information as to the allegations relating to the 23 April event to enable him to answer them. The same complaint is made in relation to the 15 July allegations. But since the decision relating to that complaint must be set aside on other grounds, I need not deal with the present attack on it. The applicant knew that the charge against him was that on 23 April Ms Krepcik gave him a written direction to submit a leave without pay form; that he initially refused to accept it; that he then changed his mind telling her it would give him more ammunition to use against her, that she was a terrible manager who had deliberately set out to shaft him, and that he would tell everyone about her so they would know she was the worst person in the world.
Prior to 5 March 1998 Ms Bowman had provided the applicant’s solicitors with a document headed “Preliminary interviews”. In it she said that the notes covered discussions she had held in January with officers in Melbourne and Canberra. The discussions had two purposes. The first was to assist in determining whether there was evidence to sustain the charges. The second was to seek background information relevant to the directions that were appropriate to be given if the charges were proved. Those consulted had either been directly involved in or had witnessed the incidents described in one or more of the charges. The officers who were identified in the authorized officer’s report as being recipients of Email or witnesses to events outlined in the charges had been asked to confirm the facts as stated in the charges. Each of the officers consulted had confirmed that events as described in the charges, as they related to those officers, were factual. Officers to whom Emails had been sent had confirmed receiving Email consistent with the text outlined in the specific charges. On 17 March 1998, in response to advice that Ms Bowman intended to proceed with the investigation on 18 March, the applicant’s solicitors wrote to her stating that the applicant would not participate in the process unless he was given the statements of any persons involved in or witness to the conversation discussion and/or acts on which the first and second charges were based, or summaries of those statements. The material was not provided. The refusal to provide this material was the basis of the present complaint. As developed before me, the complaint was not that the identity of the witnesses had not been disclosed, but that the substance of the conversations that had been overheard by those not actually party to them had not been provided to the applicant.
The content of the procedural fairness required at the inquiry stage is not at large. It is prescribed. The officer must, amongst other things, be given an opportunity to state whether he admits or denies the truth of the matters alleged to constitute the misconduct and to furnish a statement in relation to those matters. The applicant was in my view provided with that opportunity. The 23 April charge is clear as to the date, the parties involved, and what was alleged to have been said which constituted the misconduct. Ms Bowman had told the solicitors that the other party to the exchange, whom the applicant knew to be Ms Krepcik, had verified that what was alleged to have occurred had taken place. That was sufficient to enable the applicant to admit or deny the truth of the matters alleged to constitute his misconduct. It was also sufficient to enable him to furnish a statement in relation to it. In order to avail himself of the rights conferred on him by s 62(3) he did not need to know the substance of what had been overheard by the witnesses to the conversation. This procedural fairness complaint has not been made out.
THE CHARGING STAGE REVISITED
From time to time it has been said that a court should supplement even a statutory scheme which provides a measure of procedural fairness if it is satisfied that the procedures adopted were not in an overall sense fair to an applicant. Cf Wiseman v Borneman [1971] AC 297 at 308, 317; Furnell v Whangarei High Schools Board [1973] AC 660 at 687 per Lord Reid and Viscount Dilhorne, dissenting; de Smith, Woolf and Jowell, Judicial Review of Administrative Action 5th ed (1995), 409; and Aronson and Franklin, Review of Administrative Action (1987), 141. For the reasons given under the preceding heading, procedural fairness was accorded at the inquiry stage, and in my opinion the procedures implemented pursuant to ss 61 and 62 were in an overall sense fair to the applicant. There is no occasion to supplement them. Viewed in its entirety, the decision‑making process accorded procedural fairness to the applicant, even though he was not able to make representations at the charging stage. Cf South Australia v O’Shea (1987) 163 CLR 378 at 389 and Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 578.
CONCLUSION
I will declare that the second and fourth charges laid by Mr Bradley were invalidly laid and were of no effect, that Ms Bowman was not authorised to hold an inquiry in relation to those charges, and that her decisions on those charges were invalid. Her decisions on those charges should be set aside. Save as aforesaid the application is dismissed.
I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg
Associate:
Dated: 9 September 1998
Counsel for the Applicant: R Niall Solicitors for the Applicant: Baker & Armstrong Counsel for the Respondent: M Kennedy Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 24 August 1998
0
14
1