Comcare v Chenhall

Re: COMMISSION FOR THE SAFETY AND REHABILITATION OF COMMONWEALTH EMPLOYEES
And: GREGORY CHARLES CHENHALL
No. G175 of 1991
FED No. 535
Statute
(1992) 37 FCR 75

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Cooper J.(1)

CATCHWORDS

Statute - Commonwealth Employees Rehabilitation and Compensation Act 1988 - exception for "injury" arising out of "reasonable disciplinary action" - meaning of "disciplinary action" - wide or narrow interpretation - ordinary grammatical meaning in the context in which it appears - purposes of the Act - reasonable action lawfully taken against an employee in the nature of or to promote discipline - disciplinary action, not the steps anterior to the decision to take such action - action to determine whether or not disciplinary action will be taken against an employee not within definition - nature of action depends upon duties and rules in governing statute or common law - look to disciplinary Act - rules of conduct - circumstances where action of a disciplinary nature can be enforced - type of action - depends on the regulatory rules of the employee in question - misconduct need not be proven.

Commonwealth Employees Rehabilitation and Compensation Act 1988 Section 4(1)

Australian Federal Police Act 1979 Section 14

Complaints (Australian Federal Police) Act 1981 Sections 6A, 6B and 67(3).

Australian Federal Police (Discipline) Regulations Division 1 Part II, Regulations 3 - 17, 18, 19(1), 18(1), 21(2), and 20.

Public Service Act 1922 - 1960 Division 6, Sections 51(3)(d), 55, 61(2), 51 and 52(2).

General Order 6 Sections, 2, 3, 23(1), 24(1), 25(1), 25(2), 4.

Re Rizkallah v. Australian Postal Commission (1992) 23 ALD 517.

Re Scalzo v. Australian Postal Corporation (1992) 24 ALD 83.

Caldwell v. Smith (1985) 57 ALR 386.

Caldwell v. Smith (No. 2) (1983) 51 ALR 394.

Hart v. Jacobs (1981) 39 ALR 209.

Australian Telecommunications Commission v. Hart (1982) 43 ALR 165.

Etherton v. Public Service Board of New South Wales (1983) 3 NSWLR 297.

The Queen v. White Ex parte Byrnes (1963) 109 CLR 665.

Commission for the Safety and Rehabilitation of Commonwealth Employees v. Gregory Charles Chenhall

HEARING

BRISBANE

#DATE 29:7:1992

Solicitors for the Applicant: J. Hewison of Australian Government

Counsel for the Respondent: Mr D.P. O'Gorman

Solicitors for the Respondent: Mr M.J. Lewis of A.W. Bale and Son

Counsel for the Applicant: Mr G. Gibson QC and Ms E. Ford

ORDER

THE COURT ORDERS THAT :-

1. The application is dismissed and the matter is remitted to the Tribunal for further consideration in accordance with the Order of the Tribunal of 14 November, 1991.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The applicant is the Commission for the Safety Rehabilitation and Compensation of Commonwealth Employees ("Comcare"). The respondent is Gregory Charles Chenhall, a former member of the Australian Federal Police.

The respondent joined the Australian Federal Police in 1975 and retired on grounds of invalidity on 18 June, 1989.
So far as the present application is concerned the relevant history commences on 6 March, 1989 when the respondent lodged a claim for compensation in respect of paranoia/anxiety from work related stress which he claimed was attributable to an incident which occurred on 16 February, 1989 and to ongoing harassment by members of the Australian Federal Police Force. The application followed an earlier application which resulted in a consent order made by the Administrative Appeals Tribunal on 5 December, 1988.
The claim of 6 March, 1989 was rejected by a delegate of the applicant on the following grounds :-

"i. the AAT decision, based on a consent agreement, did not provide for further payments in respect of anxiety depression related to alleged treatment by the Australian Federal Police unless a specific new incident occurred after that decision (5 December 1988). Comcare could not alter the consent agreement which awarded only limited payments for events prior to that date;

ii. the events of 16 February, constituted the process of "reasonable disciplinary action" by the Australian Federal Police within the meaning of the exclusions to the definition of "injury" in subsection 4(1) of the Commonwealth Employees' Rehabilitation and Compensation Act

1988. Hence, any condition resulting from that reasonable disciplinary action is not compensable. There was no evidence establishing that the investigations by the Australian Federal Police on that day were not carried out in a reasonable manner; and

iii. there has been no new work related incident (other than the interview on 16 February 1989) since the consent agreement and decision on 5 December, 1988".

The respondent sought review of this decision by the Tribunal. The Tribunal agreed to hear and determine as a preliminary issue whether or not the events of 16 February, 1989 arose out of "reasonable disciplinary action" within the meaning of that term as contained in the definition of "injury" in section 4(1) of the Commonwealth Employees Rehabilitation and Compensation Act 1988 ("the Act").
The Tribunal on 7 December, 1990 came to the following decision :-

"The Tribunal UPON EMBARKING on the hearing of the applicant's application, UPON BEING REQUESTED by the parties to decide an issue raised by the application before proceeding further to hear and determine any other issue or issues and before finally deciding the application for review, AND HAVING HEARD Mr O'Gorman of Counsel for the applicant and Miss Rowling for the respondent and hearing and receiving evidence THE TRIBUNAL DECIDES on that issue raised for consideration at this stage of the proceedings as follows :

1. none of the events of 16 February, 1989 comes within the meaning of "disciplinary action" as that phrase is used in the definition of "injury" in sub-section 4(1) of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 and, all of the events, other than that part of the interview dealt with in paragraph 2 of the decision, were part of the "employee's employment" within the definition of "disease" in sub-section 4(1) of the Commonwealth Employees' Rehabilitation and Compensation Act 1988; and

2. that part of the interview of 16 February, 1989 which dealt with investigation of criminal offences possibly committed by the applicant was not part of the "employee's employment" within the definition of "disease" in sub-section 4(1) of the Commonwealth Employees' Rehabilitation and Compensation Act 1988.

AND DIRECTS that the application be listed at a date suitable to the parties and the Tribunal for further hearing of the applicant's application".

The parties are agreed that the Tribunal made the following relevant findings of fact in the reasons for its decision of 7 December, 1990 :-

1. The Respondent joined Australian Federal Police in 1975. He retired on grounds of invalidity on 18 June, 1989.

2. On 16 February 1989 the respondent resumed work at Brisbane Airport following six weeks recreation leave.

3. On 16 February 1989 the respondent was interviewed by Detective Superintendent Griffiths, Internal Investigation Division and Detective Sergeant Turnbull, both members of the Australian Federal Police.

The interview related to four main matters -

(a) Allegations of impropriety made by the Respondent against another officer in relation to a particular file;

(b) Admissions made by the Respondent that he had lied in an interview with another officer.

(c) An allegation that the Respondent had falsely stated in evidence in earlier proceedings before the Tribunal that he had given evidence to the Fitzgerald Commission of Inquiry;

(d) An allegation by another officer that the Respondent had threatened him and his family.

4. The interview related to the investigation of possible disciplinary offences by the Respondent, possible criminal offences by him, and a possible offence, either disciplinary or criminal in nature, by another officer.

5. The Respondent first learned the results of the investigation by letter dated 9 November 1989 from the Officer in Charge, Internal Investigation Division stating, inter alia, that in relation to the investigation into his giving false and misleading evidence before the Tribunal, no criminal prosecution would be commenced against him having regard to the investigating officer's report and recommendations, the content of material relevant to the investigation, advice from the Director of Public Prosecutions and the fact of his retirement from the Australian Federal Police on grounds of invalidity on 18 June 1989.

The Tribunal proceeded to further hear the matter and on 14 November, 1991 made the following order :-

"1. Set aside the decision under review and substitute a decision that the respondent is liable to pay compensation to the applicant from 16 February, 1989 to 12 October, 1989; and

2. Adjourn further consideration to a day to be fixed".

The parties are agreed that the Tribunal in coming to its decision of 14 November, 1991 found the following facts :-

1. The Respondent suffers from a paranoid personality disorder, and suffered a reaction to the events of 16 February 1989.

2. Such reaction was an "aggravation" of his condition as that term is used in the definition of "disease" in s.4 of the Act.

3. By virtue of the events of 16 February 1989 the Respondent suffered an "injury" within the definition of that term in s.4 of the Act.

4. Having considered the evidence of Doctors Klug and Young (summarised at paras. 8 - 14, Appeal Record pp 40 - 43), the Tribunal is satisfied that the Respondent was incapacitated for work from 16 February, 1989 until 12 October, 1989.

The applicant appeals from the decision of the Tribunal given on 14 November, 1991 and to the extent that the decision of 7 December, 1990 was given effect to in the latter decision, the application involves an appeal from the earlier decision. The question of law identified by the applicant is the meaning of the phrase "disciplinary action" where it appears in the definition of "injury" in section 4(1) of the Act. The error of law alleged to have been made by the Tribunal was in deciding that the phrase "disciplinary action" encompassed only "a response of a punitive kind to an established wrong-doing" or the "application of a sanction after the making of a finding (not necessarily after a formal hearing) of guilt or culpability".
The applicant contends that the term "disciplinary action" means any action or conduct (in this case the interview of 16 February, 1989) the subject matter of which concerns misconduct, and where misconduct is subsequently established against the employee. Alternatively the applicant submits that the term means any action or conduct the subject matter of which concerns misconduct, irrespective of whether misconduct is subsequently established against the employee.
The respondent contended that the reasoning of the Tribunal was correct and supportable by reference to various Commonwealth Statutes dealing with discipline where the disciplinary action provided for was punishment after hearing and determination of a charge of misconduct.
The reasoning which led the Tribunal to the view which it took of the meaning of the term "disciplinary action" is demonstrable from the following passage from its reasons :-

"63. The term "injury" is defined in section 4 as meaning : "(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury (or the aggravation of such an injury) arising out of, or in the course of, the employee's employment;

but does not include any such disease or injury suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment".

The term "disease" is also defined in section 4 as meaning:

(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth".

64. The first issue for consideration is whether the events of 16 February, 1989 are "reasonable disciplinary action" within the meaning of the definition of "injury". The Shorter Oxford Dictionary defines "disciplinary", in part, as "pertaining to, or promoting discipline" and "discipline", again in part, as a noun as

"1. Instruction imparted to disciples or scholars; teaching; learning, education - 1615 2. A branch of instruction; a department of knowledge ME 3. The training of scholars and subordinates to proper conduct and action by instructing and exercising them in the same; mental and moral training...

5. The order maintained and observed among persons under control or command 1667; a system of rules for conduct

1659. 6. Eccls. The system by which order is maintained in a Church; the procedure whereby this is carried out..." As a verb, "discipline" is defined in part as meaning "...to subject to discipline; in earlier use, to educate, train; later, esp. to bring under control. b. spec. To train in military exercises and prompt action in obedience to command; to drill 1598. c. To subject to ecclesiastical discipline 1828. 2. To inflict penitential discipline upon; hence, to chastise, thrash, punish ME".

65. The word "action" is defined, in part, as "I. Generally 1. The process or condition of acting or doing, the exertion of energy or influence; working, agency operation ME. 2. A thing done, a deed; in pl conduct".

66. The expression "disciplinary action" has been considered by this Tribunal in Re Harper where it gave its approval to a submission made to it that "'disciplinary action' implied a response of a punitive kind to an established wrongdoing; the application of a sanction after the making of a finding (not necessarily after a formal hearing) of guilt or culpability" (paragraph . We have been unable to find any other cases which consider the words. Pyle's case does not assist us as it did not consider the meaning to be ascribed to this expression, it having been decided under the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act") which did not contain the same provision.

67. It seems to us that we must go back to the definitions of the terms set out in paragraphs 64 and 65 above and that the words "disciplinary action" mean "action pertaining to or promoting discipline". Now that could lead to a very broad interpretation or to quite a narrow one. The narrow interpretation was favoured in Harper's case. On the other hand, it could be said that the action of inflicting a penalty or sanction is merely one of the steps (albeit the last) related to (pertaining to) or promoting the order maintained among the police force (discipline). It could be argued that among the other steps related to or promoting the order maintained among the police force may be those steps relating to the investigation as to whether there may have been an offence, the deliberations as to whether there should be a formal "charge" by whatever name and a formal hearing. Those steps may be regarded, it could be argued, as part of the system which has been developed to maintain the order or discipline. The fact that set procedures have been set down in the regulations and General Orders and the fact that they will be followed itself promotes discipline in the sense of good order.

68. We have followed the principles enunciated by Fullagar J. in Wilson's case at 335 that "where two constructions of a Workers' Compensation Act are possible, that which is favourable to the worker should be preferred". Consequently, as did the Tribunal in Harper's case, we have adopted the narrower interpretation so that only "disciplinary action" which could be described as some sort of a "response of a punitive kind to an established wrongdoing" or the "application of a sanction after the making of a finding (not necessarily after a formal hearing) of guilt or culpability".

69. On this interpretation, no part of the interview or events on 16 February, 1989 could be described as disciplinary action as a sanction or penalty was not imposed and, in any event, there was no finding of guilt at either a formal or informal level as Detective Superintendent Griffiths did not make such a finding and only prepared a report to the DPP for advice".

In support of its submissions the applicant relied upon two later decisions of differently constituted Tribunals. The first is Re Rizkallah and Australian Postal Commission (1992) 23 ALD 517. The second is Re Scalzo and Australian Postal Corporation (1992) 24 ALD 83.
In Rizkallah the anxiety disorder from which the employee claimed he suffered arose from warning counselling and ultimately the issue of a warning about unsatisfactory conduct in the performance of his work. In coming to its decision that the giving of the warnings was "disciplinary action" within the meaning of "injury" as defined in section 4(1) of the Act, the Tribunal observed at page 518 :-

"The Shorter Oxford English Dictionary defines "disciplinary" as "pertaining to or promoting discipline". The appropriate definition of the noun is "the order maintained and observed among persons under control or command; a system of rules for conduct". It seems to me that all aspects of the system of rules for the conduct of employees and the enforcement of those rules by any means falls within the concept of discipline and consequently the adjective "disciplinary". The Tribunal in Harper relied upon the existence of 2 possible constructions of the Act. I have difficulty in seeing that 2 constructions are possible. A soldier is obliged to salute his officer. This is part of the system or rules for conduct of soldiers. The fact that he has to salute an officer is not, in itself, a punishment. The fact that he must salute is, nevertheless, a part of a system or discipline. If he is reprimanded, formally or informally, for failure to salute and suffers no deprivation of liberty or money, the reprimand will still be part of a system of rules for conduct of soldiers. In the present case, the applicant was given a formal warning that his conduct was not acceptable and that it could lead to more serious consequences if he conducted himself unsatisfactorily in the future. The fact that a formal warning was given could, in itself, be regarded as "punitive". It would have formed part of the applicant's employment record and would have counted if any further unsatisfactory conduct led to more serious consequences. It would have had this effect because it is part of a disciplinary process - a necessary step for dealing with repeated disciplinary breaches. It is not necessary, however, to see it as part of a process leading to punishment. In itself, it is an incident (or action) in a system of rules for conduct".

In Scalzo the employee was subject to snap checks on a number of occasions to check his work performance in sorting letters prior to their being taken out on delivery. Additionally, there were concerns that he was completing his delivery rounds late in order to qualify for a meal allowance. In consequence of the checks and the concerns as to his conduct in delivering mail, the employee was counselled under the award discipline process. The Tribunal rejected the approach taken by a differently constituted Tribunal in Harper wherein it was held that "disciplinary action", within the definition of "injury" in section 4(1) of the Act, implied a response of a punitive kind to an established wrong-doing; the application of a sanction after the making of a finding (not necessarily after a formal hearing) of guilty of culpability.
The Tribunal in Scalzo, in rejecting the approach in Re Harper, made the following observations at page 89 :-

"We agree with the Tribunal in Re Harper that merely asking a person to account for money or asking how the person had spent a working day did not constitute "disciplinary action".

However, unlike the Tribunal in that case, we do not consider that "the application of a sanction after the making of a finding...of guilt or

culpability" is necessary. In the Shorter

Oxford English Dictionary the only meaning given to the word "disciplinary" which is appropriate in our view to the context, ie. in the

definition of "injury" in s.4(1), is "pertaining to or promoting discipline". The most

appropriate of the meanings given of

"discipline" is, we consider, "the order

maintained and observed among persons under

control or command; a system of rules for

conduct". In the Random House Dictionary the two meanings given of "disciplinary" are "of, for, or constituting discipline" and "promoting discipline". The meanings of "discipline" which are given and which might be appropriate to the context with which we are concerned are

"punishment inflicted by way of correction and training" and "behaviour in accord with rules of conduct; behaviour and order maintained by

training and control" and "a set or system of rules and regulations". In our view it is the second or third of those meanings which is most appropriate, not the first.

There can be no doubt that the checks and the counselling undertaken by Mr Minett and Ms

Kilduff were part of a process of dealing with the applicant's misconduct. It promoted the order which was maintained and observed among persons under control or command and also the system of rules for conduct. It promoted

behaviour in accord with the rules of conduct and behaviour and with the order which was

maintained by training and control. On that basis, therefore, it was capable of constituting "disciplinary action". In our view, to require that a sanction has been applied is to give an unduly narrow meaning to the expression in the context. We accept that, where two

constructions of a beneficiary statute are

possible, that which is more favourable to the worker should be preferred. However, when the provisions of a statute are being construed, it is necessary to have regard for the intentions of the legislature so far as they can be deduced from the whole of the statute. In the present case we are satisfied that the legislature

intended that an employee should not be entitled to be compensated under the Act in respect of an injury if he brought the injury onto himself by his own misconduct. Whether the injury resulted from an early stage or the process of

disciplinary action or only from the last stages of the process is in our view immaterial. This conclusion is, we believe, consistent with that reached by the Tribunal in Re Rizkallah and

Australian Postal Corp (1991) 23 ALD 517".

The applicant submits that the reasoning in Rizkallah and in Re Scalzo ought to be preferred to the reasoning of the Tribunal in the instant application for three reasons :-

1. the dictionary definition of the words "disciplinary" and "discipline".

2. a perceived legislative intention that an employee should not be entitled to compensation under the Act in respect of an injury which the employee brought upon himself or herself by his or her own misconduct.

3. that disciplinary action should be seen as a process and it is irrelevant for the purpose of the Act whether the injury was caused by an incident at any particular point in the process.

The term "disciplinary action" is to be interpreted by reference to its ordinary grammatical meaning in the context where it appears in the Act. The starting point is to look at the context.
An employee to whom the Act applies is one who falls within the terms of section 5(1) of the Act. That is, a person who is employed by the Commonwealth or by a Commonwealth authority as defined, whether the person is employed under a law of the Commonwealth or of the Territory or under a contract of service or apprenticeship. By sub-section 2 of section 5 the definition of "employee" includes members of the Australian Federal Police and Defence Force and the holders of an office established under the law of the Commonwealth or the law of a Territory other than the Northern Territory, and such persons are, for the purposes of the Act, taken to be employed by the Commonwealth. The definition of "employee" abolishes the distinction in the relationship for the purposes of the Act between persons who are employed under a contract of service, being generally persons appointed under the provisions of the Public Service Act 1922 and persons employed by Commonwealth authorities, on the one hand, and persons having a special relationship with the Commonwealth or the Crown eg. police officers and members of the Defence Forces whose relationship is not that of master and servant or employer and employee.
The purpose of the Act is to provide compensation to employees (as defined in section 5 of the Act) for injury arising out of or in the course of the employee's employment (sections 4 and 6) with the Commonwealth. Excluded from the ambit of compensation is injury resulting from certain defined conduct on the part of an employee (section 6(3), section 14(2), section 14(3)). The Act does not exclude all injury which has been caused by misconduct on the part of an employee. Section 14(3) allows for compensation for injury caused by serious and wilful misconduct, not intentionally self-inflicted, which results in death or serious and permanent impairment. An injury sustained by misconduct which is not categorised as serious and wilful is compensable provided the injury arose out of or occurred in the course of the employee's employment with the Commonwealth.
I am not persuaded that an examination of the Act justifies the conclusion drawn in Scalzo that "the legislature intended that an employee should not be compensated if he brought the injury onto himself by his own misconduct". Such a conclusion does not stand with the terms of section 14(3) of the Act. If anything can be seen from the context of the definition of injury, it is that the definition is not to include an injury resulting from certain specified conduct on the part of the employer and that the conduct of the employee is irrelevant for the purposes of the definition. There is no concept of misconduct in the "failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment" which is the other excluded cause of injury in the definition. It is the conduct on the part of the employer which has such a consequence which in turn results in an injury.
The definition applied by the Tribunal, and the primary definition contended for by the applicant, both assume the existence of a right or power in the Commonwealth or its authorities to take action against an employee constrained only by the obligation that the action must be reasonable, and that the circumstance which gives rise to the exercise of the power is some undefined but proven misconduct on the part of the employee. In my view neither approach is correct.
In the context of the definition of "injury" in section 4(1) of the Act, the phrase "disciplinary action" means no more than reasonable action lawfully taken against an employee in the nature of or to promote discipline. The relevant discipline is constituted by the body of duties and such rules of conduct or behaviour as are applicable to and enforceable against the employee by virtue of his or her employment by the Commonwealth. The disciplinary action referred to in the definition is action which has been taken against the employee prior to the injury being suffered by the employee as a result of such action. What is clear to my mind is that it is the disciplinary action itself and not the steps anterior to the decision to take such action which is covered by the definition. Additionally, the action must be directed against a particular employee and does not include an action taken by the Commonwealth as part of the general maintenance of discipline over employees of which the particular employee is but one. Thus, action taken to determine whether or not disciplinary action will be taken against an employee, although it may be characterised as part of a system or process to maintain discipline, is not action within the meaning of the definition of "disciplinary action" in the Act.
The nature of the action which may be taken, and which must be lawful, depends upon the nature of the duties and the rules of conduct or behaviour, and, the means provided for by statute or the common law to enforce them. The definition of "injury" in the Act assumes the right of the Commonwealth as an employer to take disciplinary action against an employee. As it is an Act dealing with compensation it does not purport to deal with discipline or disciplinary action. In consequence, the Act leaves unanswered three questions :-

1. What discipline or rules of conduct apply to an employee of the Commonwealth?

2. In what circumstances can the Commonwealth as an employer take action of a disciplinary nature to enforce the discipline or rules of conduct against an employee?

3. What type of action may the Commonwealth take against an employee if the circumstances giving occasion to the taking of disciplinary action exist?

It is not possible in my view to say whether any particular conduct is or is not "disciplinary action" within the meaning of the definition without determining the answers to the three questions posed above, and testing the conduct against the answers obtained to those questions. It follows that the effect to be given to the words is determined in any particular case by reference to the regulatory rules applicable to the employee in question and not by reference to general notions of good order and control of Commonwealth employees.
It may well be that the identification of the relevant duty or code of conduct or body of rules applicable to a particular employee operates in such a way that the only lawful disciplinary action which is available under that regime is a punitive sanction available only in cases of proven or admitted misconduct, and that the practical effect is that the operation of the definition is limited to those circumstances.
On the other hand, the regime may entitle certain types of action to be taken against employees to enforce discipline where the employer or some designated person has reasonable grounds to believe that an employee has breached or may have breached, or may in the future breach, any duty the employee owes or any applicable code of conduct or rules of behaviour without the requirement that misconduct be proven.
However, that result in either case comes not from the construction of the term "disciplinary action" as a matter of English usage in the definition, but as a matter of what conduct may lawfully be taken by the Commonwealth as an employer against an employee to enforce the disciplinary regime so far as it concerns that employee.
There is a further reason which militates against a construction which requires proven misconduct as an element of the definition. The definition does not in terms refer to proven misconduct on the part of an employee and provides no mechanism for establishing the existence or otherwise of misconduct where it is neither admitted nor found by a person or body charged with the duty to determine that question.
It was submitted on behalf of the applicant that a person in the position of the respondent, where an allegation or complaint was made of some breach of discipline and investigated under General Orders issued pursuant to Section 14 of the Australian Federal Police Act 1979, but where no charge of misconduct was laid or determined under the Complaints (Australian Federal Police) Act 1981 (the "Complaints Act") or the Australian Federal Police (Discipline) Regulations (the "Discipline Regulations"), would have to establish that he or she was not guilty of the breach as part of his or her proof of an entitlement to compensation. The submission is not an attractive one. It would require the employee to prove his or her innocence. This would occur in circumstances where if, for example, proceedings had been brought against the employee pursuant to Regulation 19(1) of the Discipline Regulations for a disciplinary offence specified in Regulation 18(1) and prosecuted to a conclusion, the Commissioner of Police if he or she heard the matter, could not make a determination of guilty unless he or she was satisfied beyond reasonable doubt of the employee's guilt (Regulation 21(2)).
The Act does not in my view contemplate that as part of the process of determining an entitlement to compensation the applicant or its delegate is required to make a determination as to the guilt or innocence of the employee of alleged misconduct where it is alleged that the injury resulted from disciplinary action. The only matters which fall to be determined under the definition are :-

(a) Was the action which resulted in the injury disciplinary action?

(b) If "yes", was it reasonable?

It was submitted by Counsel on behalf of the respondent that judicial interpretation of the term "disciplinary action" refers only to the imposition of a sanction. In support of this submission I was referred to a number of cases which included Caldwell v. Smith (1985) 51 ALR 386 at 388-389; Caldwell v. Smith (No. 2) (1983) 51 ALR 394 at 398; Hart v. Jacobs (1981) 39 ALR 209 at 210; Australian Telecommunications Commission v. Hart (1982) 43 ALR 165 at 175; Etherton v. Public Service Board of New South Wales (1983) 3 NSWLR 297 at 298-299, 301, 303. In each of these cases the employee was charged under the relevant statute with an offence against discipline notwithstanding that different expressions were used to describe the nature of the process in the statute. Each of the employees was exposed to the possibility of punishment if found guilty of the offence charged. However, there is nothing in the cases which would persuade me that any of the observations made by the Courts was intended to limit the meaning of disciplinary action to the imposition of a sanction. That the employee in each case was exposed to the possible imposition of a sanction was the direct consequence of a charge being laid and was the application of the particular provisions of the particular statute.
Reference was also made by the respondent in support of the submission to the observations of the High Court on Division 6 of the Public Service Act 1922 - 1960 in The Queen v. White Ex parte Byrnes (1963) 109 CLR 665 at 670-671. The issue before the High Court was whether the exercise of the disciplinary power under section 55 of the Public Service Act 1922 as it then stood by a Chief Officer or Appeal Board was an invalid exercise of the judicial power of the Commonwealth. In a joint judgment of the Court, Their Honours said :-

"As has already appeared, we think that Div. 6 of Pt. III of the Act relating to offences is part of the law regulating the relationship between the Commonwealth and its servants; it is a law with very special application. Section 55, in creating so-called "offences" and providing for their "punishment", does no more than define what is misconduct on the part of a public servant warranting disciplinary action on behalf of the Commonwealth and the disciplinary penalties that may be imposed or recommended for such misconduct".

I do not read the statement of Their Honours as saying more than that section 55 of the Public Service Act 1922 as it then stood defined certain conduct as misconduct which justified the taking of action as prescribed by statute leading to the imposition or recommendation of a disciplinary penalty if the alleged misconduct was established. It was the taking of action against an officer to that end which the Court categorised as disciplinary action. There is some support for this view in the Court describing the Chief Officer and the Appeal Board when discharging the duties imposed on them under Division 6, which duties were adjudicative in nature, as "an administrative Tribunal maintaining the discipline of the Commonwealth Service in the manner prescribed by law". I read this statement as saying that the maintenance of the discipline of the Commonwealth is achieved when the Body established by the Statute is called upon to exercise its statutory function in respect of conduct alleged against a particular officer. Thus, disciplinary action is taken against an officer in terms of the statutory regime in the Public Service Act 1922 as it then stood when action was taken which required the Chief Officer or the Appeal Board to exercise their statutory function.
In any event, the observations in The Queen v. White Ex parte Byrnes have to be treated with some caution as the observations relate to the structure of the discipline regime as contained in the Public Service Act 1922 in 1963.
The structure of Division 6 of the Public Service Act 1922 as it then stood was to create categories of defined misconduct as offences and exposed an officer who was guilty of such an offence to "such punishment as is determined upon under the provisions of this section" (s. 51(1)). Offences under s. 51(1) were classified as being either minor or other than minor offences depending upon the view of the Chief Officer or a prescribed officer of the conduct alleged to constitute the offence. In the case of the former, if the Chief Officer was of the opinion that an offence had been committed, that officer had the power to caution, reprimand or fine up to a prescribed amount (s. 52(2)). In the case of other than a minor officer, where there was reason to believe that an offence had been committed, the officer could be charged by the Chief Officer laying a charge. If the Chief Officer, after following the prescribed procedure and considering the material was of the opinion that the charge had been sustained, he could fine or impose any of the sanctions prescribed in s. 51(3)(d).
The present structure of Division 6 of the Public Service Act 1922 is relevantly different to that considered by the High Court in The Queen v. White Ex parte Byrnes. Under the present Division 6, where an authorised officer is "of the opinion that an officer may have failed to fulfil his duty" the authorised officer may elect not to charge the officer but counsel, or cause a supervisor of the officer to counsel, the officer (see: Section 61(2))). Thus, action may be taken in the absence of proven misconduct. The act of counselling would not in common understanding be regarded as a sanction but would be regarded as action in the nature of or to promote discipline.

It was further submitted by the respondent that the interview on 16 February, 1989 was not disciplinary action under the Complaints Act or the Discipline Regulations which were the relevant enactments applicable to the respondents service with the Australian Federal Police. The interview, it was submitted, was no more than an investigation carried out under General Order 6 of the General Orders made pursuant to the Australian Federal Police Act 1979, and, possibly carried out under the provisions of the Complaints Act. It was submitted that the purpose of the investigation was to determine whether any disciplinary action ought to be taken against the respondent under the Discipline Regulations or the Complaints Act.
Before the Tribunal it was submitted on behalf of the applicant that "the investigation was carried out under General Orders and were (sic.) for the purpose of ascertaining whether there was evidence to lay disciplinary charges" (Record page 22). The Tribunal found that there were three aspects to the interview on 16 February, 1989 which related to the conduct of the respondent. Relevant to this application is the finding that one aspect of the interview was "that relating to investigating disciplinary offences by Mr Chenhall". The Tribunal appears to have accepted that the investigation was being carried out under the General Orders, in particular General Order 6, and, possibly under the Complaints Act.
The main purpose of General Order 6 is to provide for the investigation of allegations and disciplinary matters to which the Complaints Act does not apply.
Central to the operation of the General Order is the existence of an allegation, which is defined as :-

"'Allegation' means -

(A) an allegation or complaint made by a member concerning the misconduct of another member,

(B) an allegation or complaint made by a member concerning the conduct of another member, and

(C) an allegation or complaint made (either orally or in writing) by a person (not being a member) concerning the behaviour of a member

not being a complaint to which the Complaints Act applies, and includes the reporting by a member of the misconduct of another member".

"Misconduct" and "conduct" for the purpose of the General

Order are defined by Section 3 in the following terms :-

"3. In this General Order, unless the contrary intention appears -

(A) a reference to the misconduct of a member shall be construed as a reference to the manner in which a member conducts himself or any action taken by a member, either in his official capacity or otherwise, such manner or action taken appearing to another member as being evidence of an offence or a disciplinary offence; and

(B) a reference to the conduct of a member shall be construed as a reference to the manner in which a member conducts himself, either in his official capacity or otherwise, such manner not being grounds for, or giving rise to, an allegation of misconduct".

A disciplinary offence for the purpose of the General Order means a disciplinary offence for the purposes of the Discipline Regulations (Section 2 of the General Order 6). The Discipline Regulations in Division 1 of Part II provide a code for the conduct of members (Regulations 3 - 17). Regulation 18 sets out the circumstances in which a disciplinary offence is committed. Regulation 18 provides:-

"18(1)A member or staff member is guilty of a disciplinary offence and is subject to punishment in accordance with these Regulations if a member :

(a) contravenes or fails to comply with a provision of Division 1;

(b) contravenes or fails to comply with a General Order or a General Instruction issued under section 14 of the Act that applies to him or her;

(c) is negligent or careless in the discharge of his or her duties;

(d) is guilty of disgraceful or improper conduct, either in his or her official capacity or otherwise;

(e) acts in a disorderly manner or in a manner unbecoming a member or staff member of the Australian Federal Police;

(f) acts in a manner that is prejudicial to the good order and discipline of the Australian Federal Police;

(g) acts in a manner that brings, or is likely to bring, discredit to the reputation of the Australian Federal Police; or

(h) is charged before a court with an offence against a law of the Commonwealth, a State, a Territory or another country and the charge is proved to the satisfaction of the court, whether or not the court proceeds to convict the member".

An allegation (as defined) is investigated in accordance with the provisions of the General Order. At the conclusion of the investigation the investigating officer is obliged to furnish to the Officer in Charge of the Internal Investigation Division a disciplinary brief (as defined) in respect of the investigation together with any comments or recommendations the investigating officer may wish to make (section 23(1) of the General Order 6). The disciplinary brief then goes to an Assistant Commissioner who may forward the brief to the Legal Services Branch for the purpose of evidential assessment and advice (Section 24(1) of General Order 6). Where the Officer in Charge of the Legal Services Branch is satisfied as to the sufficiency of the evidence, he is to identify the appropriate offence (being an offence other than a disciplinary offence) or disciplinary offence he believes has been committed. It is at this stage that a decision is made by an assistant Commissioner as to whether or not a member of the force should be charged with any offence or a disciplinary offence (Section 25(1) of General Order 6).
Where an Assistant Commissioner determines that a member should be charged, he forwards his decision, together with all the relevant material upon which it is based, to the Officer in Charge of the Discipline Unit for appropriate action (Section 25(2) of General Order 6).
A member is charged with a disciplinary offence when proceedings are instituted against the member under Regulation 19 of the Discipline Regulations (Section 4 of General Order 6).
Proceedings are instituted under Regulation 19 of the Discipline Regulations by the Commissioner who may institute such proceedings where it appears to the Commissioner that a member may have committed a disciplinary offence (Regulation 19(1)). The Commissioner is empowered where a member may have committed a disciplinary offence of a kind appropriate to be dealt with by caution to offer the member a caution (Regulation 19AA(1)). If the caution is accepted, the Commissioner shall not institute proceedings for a disciplinary offence.
Proceedings on a charge for a disciplinary offence shall be heard by the Disciplinary Tribunal or the Commissioner in the circumstances provided for in the Regulations. A member may be suspended from duty until proceedings in relation to the disciplinary charge have been determined (Regulation 20). Where a member is determined by the Commissioner to be guilty of a disciplinary offence, the Commissioner may impose any of the prescribed penalties which range from admonishment to dismissal (Regulation 22). The Disciplinary Tribunal if it determines a member guilty of a disciplinary offence may impose any penalty, the Commissioner could impose under Regulation 22 or remit the proceedings to the Commissioner to impose penalty in accordance with the Regulations (Section 67(3) of the Complaints Act).
The approach taken by the Complaints Act is substantially similar to that provided for in the Discipline Regulations and General Order discussed above.
The Complaints Act provides for a complaint to be investigated and dealt with as either a minor or other complaint. There is power to attempt to conciliate complaints in certain circumstances (Sections 6A and 6B). Otherwise, complaints are investigated by the Internal Investigation Division and a report made to the Commissioner and the Ombudsman (s. 10). After receipt of a report the Commissioner shall consider whether any action should be taken by way of charging, or offering a caution or an admonition to the member (Section 11). If a member is charged with a breach of discipline or declines the offer of a caution or admonition and is charged with a breach of discipline, then a proceeding is heard and determined by the Disciplinary Tribunal (s. 67).
The Disciplinary Tribunal, if it finds a member guilty, may itself impose penalty or remit the proceedings to the Commissioner to impose penalty in accordance with the prescribed regulations (s. 67(3)).
A review of the relevant regime shows that General Order 6, when read in conjunction with the Discipline Regulations, and the Complaints Act provides for an investigation and report prior to the making of a decision as to what action, if any, will be taken against the member in respect of the complaint or allegation. If those carrying out the investigation conclude that the complaint or allegation is mischievous or irresponsible, no action may be taken against the member. However, the complaint after preliminary investigation may be such that a decision is made that some action must be taken against the member and what action will depend upon the courses open under either the Discipline Regulations or the Complaints Act.
Importantly for present purposes action may only be taken in respect of a disciplinary offence as defined in Regulation 18 of the Discipline Regulations in the circumstances which I have set out above. The available action in those circumstances is to offer a caution or admonition or to charge the member. There is no occasion to take any action until the relevant investigation is complete and the Commissioner forms the requisite opinion provided for in the Discipline Regulations or the Complaints Act.
In my view disciplinary action is not lawfully taken against a member of the Australian Federal Police until such time as the Commissioner determines, in accordance with the Discipline Regulations or the Complaints Act, after the provisions of the General Order have been complied with, to take some action against a particular member in respect of a defined disciplinary offence and takes one of the steps provided for under the Discipline Regulations or the Complaints Act to give effect to that determination.
For the purpose of the definition of "injury" in the Act, disciplinary action within the meaning of the definition is not taken against the employee who is a member of The Australian Federal Police until the Commissioner acts in the manner I have described. Action taken to investigate a complaint or allegation against a member, including advising the member of the existence and nature of the complaint or allegation and interviewing the member in relation to it prior to the Commissioner determining to act in accordance with the provisions of the Discipline Regulations or the Complaints Act on the report of the investigation does not constitute "disciplinary action taken against the employee" within the meaning of the definition of "injury" in the Act.
On the findings of fact made by the Tribunal :-

(a) The interview on 16 February, 1989 was not "disciplinary action" within the meaning of that term as used in the definition of "injury" in the Act.

(b) There was no disciplinary action relevantly taken against the respondent under or in accordance with the Discipline Regulations or the Complaints Act in relation to any disciplinary offence.

(c) The reaction which the respondent suffered in consequence of the events of 16 February, 1989 was an aggravation of a disease (a paranoid personality disorder) from which the respondent suffered and the respondent thereby suffered an "injury" within the meaning of section 4 of the Act.

(d) In consequence of the injury, the respondent was incapacitated for work from 16 February, 1989 to 12 October, 1989.

(e) The applicant was liable to pay compensation to the respondent from 16 February, 1989 to 12 October, 1989.

Although the definition of "disciplinary action" applied by the Tribunal was incorrect, in my view the result reached by the Tribunal on the findings of fact which it made was the correct one.
In the circumstances the application is dismissed and the matter is remitted to the Tribunal for further consideration in accordance with the order of the Tribunal of 14 November, 1991.

[1992] FCA 535

29 JULY 1992