Hall v State of South Australia
[2010] SASC 219
•22 July 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
HALL v STATE OF SOUTH AUSTRALIA
[2010] SASC 219
Judgment of The Honourable Justice Gray
22 July 2010
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - GENERALLY
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - FAILURE TO OBSERVE STATUTORY PROCEDURE
TIME, WEIGHTS AND MEASURES - TIME - PARTICULAR WORDS AND EXPRESSIONS - REASONABLE TIME
ADMINISTRATIVE LAW - JUDICIAL REVIEW - PRIVATIVE CLAUSES - GENERALLY
Application for judicial review - plaintiff was subject to an inquiry and disciplinary action pursuant to the Public Sector Management Act 1995 (SA) for allegedly accessing a large number of internet sites containing pornographic material via computer equipment allocated to him for use in relation to employment in the public service - plaintiff complains that process undertaken by the Chief Executive of the Attorney-General's Department in giving him notices of inquiry was fundamentally flawed - consideration of the concept of “inquiry” - whether the Chief Executive suspected on reasonable grounds that plaintiff was liable to disciplinary action - whether inquiry is to be held within a reasonable time - whether there is power to amend a notice of inquiry - whether a privative provision in the Act prevents the bringing of the application - observations about the legislative scheme.
Held: application dismissed - insofar as section 59(9) purports to preclude from review decisions involving jurisdictional error, the High Court decision in Kirk v Industrial Court (NSW) makes clear that such a provision would be beyond State legislative power - to the extent that application challenges “decision to suspend”, challenge is on a jurisdictional basis - there were sufficient facts before the Chief Executive to give rise to a suspicion on reasonable grounds - once suspicion is reached on reasonable grounds that an employee may be liable to disciplinary action the facilitation of an inquiry to determine whether the employee is in fact liable should proceed within a reasonable time, taking into account all the circumstances of the particular case - what will be a reasonable time will be a question of fact - in circumstances of case, enquiry held within a reasonable time - Chief Executive need not be ready to hold the inquiry at the time of issue of the notice of inquiry - there is a power to amend a notice of inquiry.
Public Sector Management Act 1995 (SA) s 57, s 58, s 59, s 60, s 61, s 62 and s 64; Supreme Court Civil Rules (2006) r 199, referred to.
Federal Commissioner of Taxation v Day (2008) 236 CLR 163; Kirk v Industrial Court (NSW) (2010) 239 CLR 531; The Cheltenham Park Residents Association Inc v Minister for Urban Development & Planning [2010] SASC 93; Craig v South Australia (1995) 184 CLR 163; Easling v Promotion and Grievance Appeals Tribunal (2006) 95 SASR 391; George v Rockett (1990) 170 CLR 104; Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70; Ruddock v Taylor (2005) 222 CLR 612; Hussien v Chong Fook Kam [1970] AC 942; Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266; Baker v Commissioner of Federal Police (2000) 104 FCR 359; Re Locke; Ex parte Commissioner for Railways [1968] 2 NSWR 197; R v British Broadcasting Corporation; Ex parte Lavelle [1983] 1 WLR 23; Hospital Benefit Fund of WA Inc v Minister for Health, Housing & Community Services (1992) 39 FCR 225; Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297; Deputy Commissioner of Taxation v Ganke [1975] 1 NSWLR 252; R v Skurray (1967) 86 WN(Pt 1) (NSW) 1; McManus v Scott-Charlton (1996) 70 FCR 16, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"Suspects on reasonable grounds", "Reasonable time", "Inquiry"
HALL v STATE OF SOUTH AUSTRALIA
[2010] SASC 219Civil
GRAY J:
Introduction
This is an application for judicial review.[1]
[1] Made pursuant to Supreme Court Civil Rules (2006), rule 199.
Rodney Sydney Hall, the plaintiff and applicant, seeks to judicially review the decision of the Chief Executive of the Attorney-General’s Department to issue Mr Hall with notices of inquiry regarding his position as an officer of the public service.
The Chief Executive alleged, inter alia, that Mr Hall accessed a large number of internet sites containing images of a pornographic or sexually explicit nature using computer equipment allocated to him for use in relation to his employment. Mr Hall complains that the process undertaken in giving him the notices of inquiry was flawed and fundamentally so, such that the notices should be declared invalid. The application calls on this Court to consider provisions of the now repealed Public Sector Management Act 1995 (SA).[2]
[2] Repealed by the Public Sector Act 2009 (SA), which commenced on 1 February 2010.
Background
The evidence in this application was wholly written. I received a statement of facts agreed by the parties. I also received an affidavit of Mr Hall dated 22 December 2009, exhibiting a large amount of correspondence. There was no application to cross-examine on this affidavit. The facts were largely not in dispute. My findings follow.
Mr Hall was born in 1958 and is aged 51 years. On 22 May 2006 he commenced employment as a Food and Beverage Coordinator with the Office of Recreation and Sport, within the Attorney-General’s Department. Mr Hall predominately worked at the Hindmarsh Soccer Stadium, but would on occasion attend other venues as required so as to carry out his employment duties. About six to twelve months after commencing his employment, he was provided with a laptop computer by his employer. The laptop computer remained at the Hindmarsh Soccer Stadium except for infrequent occasions. The computer could only be accessed by using Mr Hall’s unique username and password.
On 2 April 2009, Frances Anderson, the Director of Human Resources for the Attorney-General’s Department and the Department of Justice, received information that Mr Hall may have used Government computers to access inappropriate websites containing images of a sexually explicit or pornographic nature.
On 3 April 2009 a Minute was sent to the Chief Executive of the Attorney-General’s Department seeking approval to suspend Mr Hall. On the same day the Chief Executive approved a recommendation to sign an initial notice of inquiry and suspension letter for Mr Hall and to approach the Crown Solicitor and request that the Government Investigations Unit undertake investigations. Later that day, Christopher Paul, the general manager of Finance and Business at the Office of Recreation and Sport, attended at Hindmarsh Soccer Stadium, spoke to Mr Hall and advised that action was being taken due to concerns over inappropriate use of Government resources. Mr Paul requested that Mr Hall provide his laptop computer and network access. Mr Hall complied with this request.
On 6 April 2009 Mr Hall attended a meeting at Kidman Park with Mr Paul and Tania Prescott, a Human Resources Officer with the Attorney-General’s Department, at which Mr Hall was provided with a letter dated 3 April 2009 entitled “Notice of Disciplinary Proceedings and Suspension from Duty Pursuant to the Public Sector Management Act 1995” and a “Notice of Inquiry” dated 3 April 2009. I shall refer to this as the first notice of inquiry.
On or about 14 April 2009 the Government Investigations Unit were briefed by the Crown Solicitor’s Office to investigate the matter. By a letter to the Chief Executive dated 20 April 2009, the Public Service Association, who was representing Mr Hall, sought discovery of all documentation and evidence that was to be presented by the Department in the disciplinary inquiry. The Public Service Association did not receive a response to this request until 18 January 2010, some nine months later.
A letter of engagement dated 14 May 2009 from Ferrier Hodgson, a forensic accounting firm, was sent to the Government Investigations Unit, and shortly thereafter, laptop computers of Mr Hall and another employee and a desktop computer from the Hindmarsh Soccer Stadium were examined by Ferrier Hodgson. On 29 May 2009, Ferrier Hodgson produced a report as a result of that examination and that report was received by Ms Anderson on 1 June 2009. The report revealed that Mr Hall’s laptop computer had been used to access a large number of internet sites containing pornographic or sexually explicit material, over a two-year period. There was also evidence that a large number of pornographic photographs and video files had been saved to the laptop computer’s hard drive.
At the Chief Executive’s direction, the matter was referred to the South Australia Police because the advice to him was that at least one of the sites may have contained images of female persons below the age of 18 years engaged in sexual activity.
By letter to Mr Hall dated 12 June 2009, the Chief Executive stated that “[t]he allegations against you are most serious and if admitted or proven it is probable termination of your employment in the public service will result”. The Chief Executive advised of his intention to vary the suspension of Mr Hall’s employment, to suspension without remuneration and accrual of leave entitlements, pending consideration of the matter by the Police. The letter advised that evidence collected during the preliminary investigations indicated that Mr Hall may have accessed internet sites containing child pornography. The letter further advised that the disciplinary process commenced by service of the first notice of inquiry was to be put on hold pending consideration of the matter by the Police and any criminal process arising. The letter enclosed what purported to be an “Amended Notice of Inquiry” dated 12 June 2009. I shall refer to this as the second notice of inquiry.
By letter dated 18 June 2009 to the Chief Executive, the Public Service Association opposed suspension of Mr Hall’s employment without remuneration. In a letter of response the following day, the Chief Executive advised of the suspension of employment without remuneration or the accrual of leave entitlements. By letter dated 25 June 2009 the Attorney-General’s Department advised Mr Hall that his request to access sick leave, flexi leave and TOIL had been denied.
In mid July 2009 Mr Hall was advised by the South Australia Police that the investigation was concluded and that the Police would not be taking action. On 23 July 2009 Ms Anderson was advised that the Police would not be pursuing criminal charges in relation to accessing pornographic websites.
By letter to the Chief Executive dated 30 July 2009, the Public Service Association advised that the Police had concluded investigations and would not be taking action, and requested that Mr Hall’s suspension be varied to suspension with remuneration and rights to accrual of leave entitlements. The Public Service Association understood that the initial decision to alter the terms of Mr Hall’s suspension, to suspension without remuneration was “in part predicated on possible criminal allegations against Mr Hall emanating from an enquiry conducted by SAPOL”. The letter further requested that if the Chief Executive determined not to alter the terms of suspension as requested, the Chief Executive “ensure that any further actions to be taken against Mr Hall…are expedited”.
By letter to the Public Service Association dated 10 August 2009, the Chief Executive stated that he was not persuaded to alter the decision to suspend without remuneration as requested by the letter from the Public Service Association. In the letter, the Chief Executive stated that the referral of the matter to the South Australia Police was a minor consideration in his decision to suspend, and that “[t]here is substantial evidence against Mr Hall of serious misconduct on his part and … that it is clear that if allegations against him are admitted or proven in due course, it will result in the termination of his employment”. It was stated that the matter was receiving appropriate attention and would be resolved in a reasonable time frame, but that it was impossible to predict this time frame with any accuracy.
Meanwhile, on 5 August 2009 Ms Anderson had been advised by the Crown Solicitor’s Office that Mr Hall had been charged with the offence of failing to comply with a direction to submit to a breath analysis and had been served by the Police with a notice of immediate licence disqualification. Ms Anderson was advised that there was no record of Mr Hall taking out an application to have the licence disqualification suspended. Investigations by the Department were commenced as to whether Mr Hall had driven his whilst disqualified.
On 13 August 2009 Mr Hall lodged a grievance appeal with the Promotions and Grievance Appeals Tribunal.[3]
[3] Pursuant to section 64 of the Public Sector Management Act 1995 (SA).
On 28 August 2009 the Chief Executive wrote to Mr Hall enclosing an “Amended Notice of Inquiry” dated 28 August 2009, which included the allegation of driving whilst disqualified. The letter indicated that the Chief Executive had referred the allegations to the South Australia Police, and had deferred consideration of the allegations until such time as the outcome of any criminal process and any investigation conducted by the Police, was known. I shall refer to this as the third notice of inquiry.
On 2 September 2009 an email from the Public Service Association was sent to the Attorney-General’s Department, repudiating that Mr Hall drove whilst disqualified and requesting particulars of the allegation. On the same day, an email from the Attorney-General’s Department advised that: the matter was in the hands of the Police, and the Department would not give particulars of the allegation; the Department had several witness accounts of Mr Hall driving during the relevant period; that the Department would not be hurried into dealing with the matter; and, that it was proper that the Police consider the matter first given the allegations were criminal in nature.
On 16 September 2009 the Chief Executive was informed that information suggesting Mr Hall was disqualified from driving was incorrect and that he had in fact successfully applied to have the licence disqualification suspended – apparently five days after the issue of the disqualification. The incorrect information was the result of there being two separate court files - one at Mount Barker and one at the Adelaide Magistrate’s Court – under two different names. Accordingly, the third notice of inquiry included allegations which were based on what was subsequently discovered to be inaccurate information.
Two days later, by letter dated 18 September 2009, the Chief Executive wrote to Mr Hall indicating that the Department had been provided with inaccurate information relating to the allegation of driving whilst disqualified and enclosing another “Amended Notice of Inquiry” dated 18 September 2009 “replacing” the third notice of inquiry. I shall refer to this as the fourth notice of inquiry.
On 22 September 2009 Mr Hall’s grievance appeal was heard by the Promotions and Grievance Appeals Tribunal, and on 30 September 2009 the decision of the Tribunal was delivered. The Tribunal dismissed the appeal, but found that the time frame taken to conduct the investigation was unsatisfactory and that Mr Hall “had not been adequately informed of the progress or all the allegations made against him during the course of [the] investigation.”
On 19 October 2009, Ms Anderson met with Mr Hall and a Public Service Association representative who expressed concerns at the delay of the matter. Ms Anderson advised that having received advice, the Chief Executive would not proceed with the inquiry until the criminal matters had been determined. It is to be observed that the charge of failing to comply with a direction to submit to a breath analysis was still outstanding. Four days later, on 23 October 2009, Ms Anderson was informed by Police that consideration of the charge had been adjourned to 19 November 2009. One month later, on 23 November 2009, Ms Anderson was advised that consideration of the charge had been adjourned to 4 February 2010, when the matter would be set for trial.
On advice and to avoid further delay, a decision was made to have Mr Hall interviewed, but on the proviso that a further interview might be necessary depending on the outcome of criminal proceedings. According to the agreed facts Mr Hall had not been interviewed earlier because a number of different allegations needed to be investigated before they could be put to him collectively for him to provide responses.
On 27 November 2009 Mr Hall’s solicitors wrote to the Chief Executive requesting that the inquiry be terminated and that his remuneration be immediately reinstated.
On 1 December 2009 Mr Hall was interviewed by an officer from the Government Investigations Unit. On 22 December 2009 the within proceedings were commenced. By letter dated 13 January 2010, Mr Hall was given notice that a disciplinary inquiry would be held on 10 February 2010 – over ten months subsequent to the first notice of inquiry being served. On 2 March 2010, the delegate assigned to hear the inquiry delivered his reasons for finding that Mr Hall was liable to disciplinary action.
On 10 March 2010, submissions on penalty were made before the delegate, and on 15 March 2010, the delegate delivered his decision with respect to penalty. Mr Hall was reprimanded and suspended without pay, from the date of the initial suspension without pay until the date the delegate order came into effect on 1 April 2010. Mr Hall’s salary was reduced for two years; by two increments for the first year and by one increment for the second year.
Mr Hall has appealed the decision of the delegate to the Disciplinary Appeals Tribunal. That appeal has yet to be determined.
The Legislative Scheme
Division 8 of Part 8 of the Public Sector Management Act dealt with conduct and discipline of public sector employees. It is under this Division that the Chief Executive purported to act at all times relevant to the within proceeding. Sections 57 through to 62 form Division 8 of the Act.
Section 57 sets out the general rules of conduct. That section provides, inter alia, that an employee will be liable to disciplinary action where the employee contravenes a provision of the Act or a direction given to them by a person with relevant authority. An employee will further be liable to disciplinary action where the employee is negligent or indolent in the discharge of the duties of their position; is guilty of disgraceful or improper conduct in an official capacity; or is guilty in a private capacity of disgraceful or improper conduct that reflects seriously and adversely on the Public Service; make improper use of property of the Crown; engages in employment or business outside the public service not authorised by the regulations; or discloses information not authorised by the regulations.
Section 58 prescribes the circumstances in which an employee may become liable to disciplinary action. The section sets out the requirements of an inquiry into the liability of an employee to disciplinary action, where the Chief Executive suspects on reasonable grounds that an employee may be so liable. If, on an inquiry, the Chief Executive is satisfied on the balance of probabilities that the employee is liable to disciplinary action, the Chief Executive is conferred specific powers of action pursuant to section 58. It is appropriate to set out section 58 in full:
(1)If the Chief Executive of an administrative unit suspects on reasonable grounds that an employee in the unit may be liable to disciplinary action, the Chief Executive may hold an inquiry to determine whether the employee is liable to disciplinary action.
(2)Notice in writing of an inquiry under this section setting out the grounds on which the employee is suspected of being liable to disciplinary action must be given to the employee.
(3)Nothing in this section prevents the making of any preliminary investigations prior to the holding of an inquiry or the giving of a notice of inquiry under this section.
(4)The employee affected by an inquiry under this section—
(a) may be assisted or represented in the inquiry by another person; and
(b) must be afforded a reasonable opportunity—
(i) to be present throughout the course of the inquiry; and
(ii)to question persons making allegations against the employee or providing information in support of the allegations; and
(iii)to bring persons or documents before the Chief Executive to provide information in support of the employee; and
(iv) to make statements and representations to the Chief Executive.
(5)If, on an inquiry under this section, the Chief Executive is satisfied on the balance of probabilities that the employee is liable to disciplinary action, then the Chief Executive may do one or more of the following:
(a) reprimand the employee;
(b) order that the leave entitlement of the employee be reduced by a specified amount;
(c) order that the employee be suspended from duty in the Public Service for a specified period with or without remuneration and, as the Chief Executive thinks fit, with or without accrual of rights in respect of recreation leave and long service leave;
(d) order that the salary of the employee be reduced by a specified amount for a specified period;
(e) recommend to the Governor—
(i)that the employee be transferred to some other position in the Public Service with a lower remuneration level; or
(ii)that the employee's employment in the Public Service be terminated.
(6)For the purposes of subsection (5), a period of suspension may, if the Chief Executive thinks fit to so order, be comprised of or include the whole or part of any period for which the employee has been suspended without remuneration under another power conferred by this Division.
(7)The Chief Executive may, if he or she thinks fit, suspend an order under subsection (5) subject to compliance by the employee with conditions specified by the Chief Executive.
(8)Before taking or recommending disciplinary action in respect of an employee under subsection (5), the Chief Executive must give the employee at least 14 days notice in writing of his or her findings and of the disciplinary action (if any) that he or she proposes to take or recommend.
(9)The holding of an inquiry under this section in respect of an employee must, if the employee is charged with an offence relating to a matter to which the inquiry relates, be suspended pending the determination of the proceedings in respect of the offence.
(10)The Governor may, on the recommendation of the Chief Executive under this section—
(a) transfer an employee to some other position in the Public Service with a lower remuneration level; or
(b) terminate an employee's employment in the Public Service.
If an employee is given notice of a disciplinary inquiry, section 59(1) relevantly provides that the Chief Executive may:
(c)suspend the employee from duty in the Public Service (with or without remuneration and, as the Chief Executive thinks fit, with or without accrual of rights in respect of recreation leave and long service leave); or
(d)transfer the employee from his or her position to some other position in the administrative unit with the same remuneration level; or
(e)recommend to the Commissioner that the employee be transferred to a position in another administrative unit with the same remuneration level.
The Notices of Inquiry
It is convenient to extract the grounds for inquiry as set out in the first notice of inquiry issued to Mr Hall on 3 April 2009:
The grounds upon which I suspect you are liable to disciplinary action are as follows:
1.From at least December 2008 to 30 March 2009, you were guilty of disgraceful or improper conduct in an official capacity, contrary to section 57(d) of the Act.
Particulars
1.1 During working hours when you were supposed to be performing the duties of your role and using computer equipment allocated to you to use in connection with the performance of your duties, you accessed internet sites containing images of a pornographic or sexually explicit nature.
2.During April 2009, you made improper use of property of the Crown, contrary to section 57(e) of the Act.
Particulars
The particulars of allegation 1 are repeated
The second notice of inquiry, issued on 12 June 2009 and headed “Amended Notice of Inquiry” repeated the same grounds as the first notice, except that it alleged a different date range and added the following particulars to Ground 1:
1.2 During the said period, you downloaded and saved a number of movies and photographs containing images of a pornographic or sexually explicit nature.
1.3 Your inappropriate use of the Crown’s computer and internet facilities was extreme. During the said period you accessed internet sites containing images of a pornographic or sexually explicit nature over 7000 times.
The third notice of inquiry, issued on 28 August 2009, and also headed “Amended Notice of Inquiry” repeated the grounds and particulars of the second notice and added a ground 3 and ground 4 and particulars thereof in the following terms:
3.Between 24 January 2009 and 3 April 2009, you were guilty of disgraceful or improper conduct in a private capacity that reflects seriously and adversely on the Public Service, contrary to section 57(d) of the Act.
Particulars
3.1 You were disqualified from driving on 24 January 2009.
3.2 On several occasions during the said period you drove a motor vehicle, including during working hours and for work purposes.
3.3 The offence of driving whilst disqualified, contrary to section 91 of the Motor Vehicles Act 1959 is an offence punishable by imprisonment.
4.Between 24 January 2009 and 3 April 2009, you contravened or failed to comply with a provision of the Act, contrary to section 57(a)(i) of the Act.
Particulars
4.1 The particulars at 3.1 to 3.3 are repeated.
4.2 All public sector employees are obliged to comply with relevant legislation pursuant to section 6(f) of the Act. Your conduct is in breach of the Motor Vehicles Act 1959.
4.3 All public sector employees are obliged to comply with the Code of Conduct for Public Sector Employees issued by the Commissioner for Public Employment pursuant to section 6(ea) of the Act. Your conduct contravenes several aspects of the Code including but not limited to those relating to honest and ethical conduct.
The fourth notice of enquiry, also headed “Amended Notice of Enquiry”, dated 18 September 2009, set out grounds and particulars identical to those of the second notice, save that it alleged that ground two, improper use of property of the Crown, occurred over a period from at least December 2007 to March 2009 rather than during April 2009, and in respect of ground one, replaced reference to an allegation of access to pornographic or sexually explicit material “over 7000 times” with “a large number of times”.
A Consideration of the Issues
Mr Hall seeks declaratory relief in the nature of orders that the notice or notices of inquiry be set aside as invalid. His contentions give rise to a number of questions to be answered by this Court; namely, whether for the purposes of Part 8 of the Public Sector Management Act, “inquiry” is synonymous with “investigation”; whether “inquiry” contemplates a hearing; whether the Chief Executive had the requisite state of mind - suspicion on reasonable grounds - before issuing the notice of inquiry; whether there is required a certain intent and preparedness to conduct an inquiry when issuing a notice of inquiry; whether the inquiry is to be held within a reasonable time or as soon as practicable from the issue of the notice of inquiry; and, whether there is a power to amend a notice of inquiry. An issue also arises in respect of the reach and effect of a privative provision in the Public Sector Management Act.
A Preliminary Observation
Mr Hall is employed at the service of the public. Mr Hall’s work time, laptop computer and access to resources are paid for by the public. It is axiomatic that his time and those resources should be directed to serve the best interests of the public. Pursuit of personal interest at the expense of workplace resources is inappropriate in any workplace, but in particular where the cost is to the public. In such circumstances, this is not only a waste of public resources, but has the real potential to erode public confidence in the public service. The conduct of Mr Hall in the present proceedings was not only personal, but private. Sexual gratification through use of pornography is a very private matter.
The public sector holds itself out to be a model employer. The alleged conduct carries with it the potential to produce dangers in the workplace, including sexual harassment. The conduct was serious conduct affecting employment, with the possibility of attracting criminal sanctions depending on the age of the participants in the pornography. The alleged conduct was sustained over a significant period of time. If established, the conduct is grounds for dismissal.
In Commissioner of Taxation v Day,[4] the High Court had occasion to consider the provisions of the Public Service Act 1922 (Cth). Day was concerned with whether legal expenses incurred by an officer under the Public Service Act in relation to charges of misconduct laid under that Act, were allowable as deductions under the Income Tax Assessment Act 1997 (Cth), or whether they were private or domestic expenses. The majority held that the officer’s position as an officer subject to the Public Service Act, obliged him to observe standards of conduct extending beyond the performance of tasks immediately associated with his office and exposed him to disciplinary procedures which might have consequences for the retention of his office or salary, observing:[5]
…It is neither realistic nor possible to excise from the scope of the respondent’s service as an officer elements which may be associated with tasks and so identify them as income-producing. What was productive of his income by way of salary is to be found in all the incidents of his office in the Service to which the Act referred, including his obligation to observe standards of conduct, breach of which might entail disciplinary charges. The respondent’s outgoings, by way of legal expenses, followed upon the bringing of the charges with respect to his conduct, or misconduct, as an officer. He was exposed to those charges and consequential expenses, by reason of his office. The charges cannot be considered as remote from his office, in the way that private conduct giving rise to criminal or other sanctions may be.
[Footnote omitted - emphasis added]
[4] Federal Commissioner of Taxation v Day (2008) 236 CLR 163.
[5] Federal Commissioner of Taxation v Day (2008) 236 CLR 163 at 182-183 (Gummow, Hayne, Heydon and Kiefel JJ)
Although the High Court in Day was addressing a factual matrix distinct from the within proceedings, in reaching the above conclusions, the majority made the following observations that I consider pertinent:[6]
The incurring of legal expenses with respect to charges against an officer of the Service for failure of duty must be considered in the context of the special position which such an officer holds, the extent of the duty owed by the officer and the legislative provision for the enforcement and regulation of such duty. The public service legislation in Australia has served and serves public and constitutional purposes as well as those of employment, as Finn J observed in McManus v Scott-Charlton. Such legislation facilitates government carrying into effect its constitutional obligations to act in the public interest. For reasons of that interest and of government the legislation contains a number of strictures and limitations which go beyond the implied contractual duty that would be owed to an employer by many employees. In securing values proper to a public service, those of integrity and the maintenance of public confidence in that integrity, the legislation provides for the regulation and enforcement of the private conduct of public servants. This extension, to what might be called private conduct, was evident in s 56(d) and (e) of the Public Service Act 1922, which provided that an officer may be taken to have "failed to fulfil his duty as an officer" if he engages in improper conduct as an officer or in improper conduct otherwise than as an officer, in the latter case the conduct "being conduct that affects adversely the performance of his duties or brings the Service into disrepute". It is noteworthy that in McManus Finn J rejected as untenable, as a generalisation, the submission that the only limiting directions that could be given to a public servant were those which have a nexus with the performance of that person's employment duties.
The chief object of the Public Service Act 1922 was "to constitute a public service for the efficient, equitable and proper conduct, in accordance with sound management practices, ... of the public administration of the Australian Government". The provisions relating to disciplinary action were referable to the maintenance of those standards of conduct.
[Footnotes omitted -emphasis added]
[6] Federal Commissioner of Taxation v Day (2008) 236 CLR 163 at 180-181 (Gummow, Hayne, Heydon and Kiefel JJ)
In the present proceeding, this Court is not so concerned with a proper categorisation of the alleged conduct as private or otherwise. The above observations in Day however, emphasise the critical role that legislation regulating employment in the public service plays in pursuit of the public interest. As a result, the legislation regulates conduct rigorously such as to create a relationship between employer and employee distinct from that outside the public sector.[7] The integrity of the public service and maintenance of public confidence in that service are driving forces behind that type of legislation, and are attributed in Day as a reason for extending regulation of conduct of public servants to private conduct. In the present proceeding, this approach emphasises the seriousness of Mr Hall’s alleged conduct.
[7] See further the decision of Finn J in McManus v Scott-Charlton (1996) 70 FCR 16.
Privative Provision
On the hearing of the appeal, an issue arose as to the effect of a privative provision in the Public Sector Management Act. It is convenient to consider that issue at the outset.
As mentioned, section 59 forms part of Division 8 of the Act, which deals with “conduct and discipline”. That section purports to oust review of a decision to suspend an employee, and by way of sub-sections 9 and 10, relevantly provides:
(9) Subject to subsection (10), a decision to suspend or transfer an employee under this section is not subject to appeal or review under this Act or any other law.
(10) A decision that remuneration be withheld from a person suspended under this section may be the subject of an appeal under this Act.
The question that arises is whether section 59(9) in any way limits or prevents this Court from hearing the application brought by the summons in this matter.
The issue of privative provisions has recently been the subject of High Court analysis in Kirk v Industrial Court (NSW). French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, with respect to privative provisions made under State legislation, observed:[8]
In considering State legislation, it is necessary to take account of the requirement of Ch III of the Constitution that there be a body fitting the description “the Supreme Court of a State”, and the constitutional corollary that “it is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description”.
At federation, each of the Supreme Courts referred to in s 73 of the Constitution had jurisdiction that included such jurisdiction as the Court of Queen’s Bench had in England. It followed that each had “a general power to issue the writ [of certiorari] to any inferior Court” in the State. Victoria and South Australia, intervening, pointed out that statutory privative provisions had been enacted by colonial legislatures seeking to cut down the availability of certiorari. But in The Colonial Bank of Australasia v Willan, the Privy Council said of such provisions that:
It is, however, scarcely necessary to observe that the effect of [such a privative provision] is not absolutely to deprive the Supreme Court of its power to issue a writ of certiorari to bring up the proceedings of the inferior Court, but to control and limit its action on such writ. There are numerous cases in the books which establish that, notwithstanding the privative clause in a statute, the Court of Queen’s Bench will grant a certiorari; but some of those authorities establish, and none are inconsistent with, the proposition that in any such case that Court will not quash the order removed, except upon the ground either of a manifest defect of jurisdiction in the tribunal that made it, or of manifest fraud in the party procuring it. … (emphasis added)
That is, accepted doctrine at the time of federation was that the jurisdiction of the colonial Supreme Courts to grant certiorari for jurisdictional error was not denied by a statutory privative provision.
[Footnotes omitted]
[8] Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [96]-[97]. Heydon J substantially agreed with the majority in this respect: Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [113].
In exploring the supervisory jurisdiction of the Supreme Courts, the joint judgment clearly identified jurisdiction as being one of the “defining characteristics” of those courts:[9]
The supervisory jurisdiction of the Supreme Courts was at federation, and remains, the mechanism for the determination and the enforcement of the limits on the exercise of State executive and judicial power by persons and bodies other than the Supreme Court. That supervisory role of the Supreme Courts exercised through the grant of prohibition, certiorari and mandamus (and habeas corpus) was, and is, a defining characteristic of those courts. And because, “with such exceptions and subject to such regulations as the Parliament prescribes”, s 73 of the Constitution gives this Court appellate jurisdiction to hear and determine appeals from all judgments, decrees, orders and sentences of the Supreme Courts, the exercise of that supervisory jurisdiction is ultimately subject to the superintendence of this Court as the “Federal Supreme Court” in which s 71 of the Constitution vests the judicial power of the Commonwealth.
There is but one common law of Australia. The supervisory jurisdiction exercised by the State Supreme Courts by the grant of prerogative relief or orders in the nature of that relief is governed in fundamental respects by principles established as part of the common law of Australia. That is, the supervisory jurisdiction exercised by the State Supreme Courts is exercised according to principles that in the end are set by this Court. To deprive a State Supreme Court of its supervisory jurisdiction enforcing the limits on the exercise of State executive and judicial power by persons and bodies other than that Court would be to create islands of power immune from supervision and restraint. It would permit what Jaffe described as the development of “distorted positions”. And as already demonstrated, it would remove from the relevant State Supreme Court one of its defining characteristics.
This is not to say that there can be no legislation affecting the availability of judicial review in the State Supreme Courts. It is not to say that no privative provision is valid. Rather, the observations made about the constitutional significance of the supervisory jurisdiction of the State Supreme Courts point to the continued need for, and utility of, the distinction between jurisdictional and non-jurisdictional error in the Australian constitutional context. The distinction marks the relevant limit on State legislative power. Legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power. Legislation which denies the availability of relief for non-jurisdictional error of law appearing on the face of the record is not beyond power.
[Footnotes omitted]
[9] Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [98]-[100].
The above discussion demonstrates that the High Court has recognised a clear constitutional basis for the supervisory jurisdiction of the Supreme Courts to review, by way of judicial review and the ordering of appropriate remedies, the decisions of inferior courts, tribunals and other decision makers acting under State legislation.[10]
[10] See The Cheltenham Park Residents Association Inc v Minister for Urban Development & Planning [2010] SASC 93 at [38].
The Court in Kirk discussed a clear demarcation with respect to a legislature’s power to limit judicial review, between jurisdictional error and non-jurisdictional error. As observed in the joint judgment, the distinction between jurisdictional and non-jurisdictional error marks the relevant limit on State legislative power. The Court highlighted the limits on legislation which would seek to take from a Supreme Court the power to grant relief on account of jurisdictional error, and as such, privative clauses which seek to limit a Supreme Court’s power to grant relief in this context, will be invalid. The joint judgment was less clear with respect to what will amount to a jurisdictional error, or the capacity of State legislatures to define what will amount to a jurisdictional error, observing that: “It is neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error”.[11] The joint judgment did not directly disturb the decision in Craig v South Australia,[12] but did emphasise that the reasoning in Craig was not to be seen as “providing a rigid taxonomy of jurisdictional error”,[13] and that the examples of what will amount to jurisdictional error given in that case were just that – examples.[14]
[11] Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [71].
[12] Craig v South Australia (1995) 184 CLR 163.
[13] Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [73].
[14] See generally, Chris Finn, “Constitutionalising supervisory review at State level: The end of Hickman?” (2010) 21 Public Law Review 92.
In practical terms, the remedy sought by Mr Hall in these proceedings is the revocation or lifting of his past suspension. There are of course other elements of the orders sought, but the suspension is central to the action. Section 59(9) purports to oust from review a “decision to suspend” an employee. It is for this reason that consideration of the effect of the privative provision is important.[15] On the other hand, when Mr Hall’s position is analysed closely, it is clear that his complaints - that the giving of the notice of inquiry at a time when the Chief Executive was not in a position to hold an inquiry, and that the Chief Executive could not have possessed the requisite state of mind at the time of the giving of the notice of inquiry - are grounds for the challenge to the actual giving of the notice of inquiry. In this respect, the decision to suspend is not a decision that is directly challenged. However, in light of the above observations, and the terms of section 59, I have reached the view that it is important to consider the reach of the section with respect to the present application.
[15] See for example Easling v Promotion and Grievance Appeals Tribunal (2006) 95 SASR 391 (White J).
In the present proceedings, by a letter accompanying the first notice of inquiry on 3 April 2009, Mr Hall was suspended from duty. That suspension purported to be pursuant to section 59(1)(b) and (c). This was the only decision to suspend made. In this case, an essential precondition of the use of the power to suspend under section 59(1)(c) is “notice of disciplinary inquiry” given under the division.[16] The orders sought in the within application attack the satisfaction of that essential precondition by contending that the notice of inquiry given to Mr Hall was not validly given.
[16] See section 59(1)(b) of the Public Sector Management Act 1995 (SA).
Insofar as section 59(9) purports to preclude from review decisions involving jurisdictional error, the High Court in Kirk makes clear that such a provision would be beyond State legislative power.
It is my view that to the extent that a “decision to suspend” is challenged by the within application for judicial review, it is challenged on a jurisdictional basis. That basis is an alleged misconstruction on the part of the Chief Executive of section 58 of the Act, and an allegation that it was beyond the Chief Executive’s power to issue a notice of inquiry in the circumstances that he did. In this respect, the alleged error falls into a recognised category of jurisdictional error; namely, a misapprehension of or disregard to the “nature or limits of [his] functions or powers”.[17] This is particularly so when regard is had to the class of the relevant decision-maker: an individual administrative decision-maker with powers conferred under a statue. It is settled that the concept of jurisdictional error as it relates to administrative tribunals is wider than in the case of inferior Courts. Relevantly, the following observations from Craig as excerpted in Kirk, are apposite:[18]
If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it. …
These same principles apply to individual administrative decision-makers.
[17] Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [72] citing the well established example set out in Craigv South Australia (1995) 184 CLR 163 at 177.
[18] Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [67] quoting Craigv South Australia (1995) 184 CLR 163 at 194.
Accordingly, insofar as the “decision to suspend” is challenged, section 59(9) provides no impediment to the bringing of the present application.
Section 58 of the Public Sector Management Act and the Concept of “Inquiry”
As earlier mentioned, critical to a determination in the within proceedings is a construction of section 58 of the Public Sector Management Act. Counsel for Mr Hall contended that “inquiry” as contemplated by section 58 is not an investigation, but a hearing. It was further said that the section contemplates that such an event shall take place within a reasonable time or as soon as practicable from the issuing of the notice of inquiry. Finally, it was said that notification of an “inquiry” at a time when the Chief Executive is not ready to hold the same is an ultra vires act.
That an inquiry is separate from an investigation or at least a “preliminary investigation”, is clear from the terms of section 58. For example, section 58(3) permits “preliminary investigations” both prior to the giving of a notice of inquiry and prior to the holding of the inquiry itself.
It was accepted by counsel for the State that section 58 contemplates a “hearing”. The word “holding” used in respect to an inquiry suggests as much. Further, the terms employed in section 58(4) suggest a hearing, or at least a physical process whereby an employee may be “assisted or represented in the inquiry by another person”, and must be afforded the opportunity to be “present” throughout the “course” of the inquiry, to “question persons” making allegations against them, to “bring persons or documents” before the Chief Executive to support the employee and to “make statements and representations” to the Chief Executive.[19]
[19] See Public Sector Management Act 1995 (SA), section 58.
Although a substantial portion of the process described in section 58(4) could be executed in writing, to “bring persons” before the Chief Executive does indicate some form of oral hearing. It may be characterised as an informal administrative hearing, inquisitorial in nature, the minimum requirements of which are set out clearly in section 58(4).
A Suspicion on Reasonable Grounds
The condition in section 58(1), that the Chief Executive suspect on reasonable grounds that an employee be liable to disciplinary action before he or she may hold an enquiry, requires the existence of facts which are sufficient to induce that state of mind;[20] namely, suspicion.
[20] See George v Rockett (1990) 170 CLR 104.
It was Mr Hall’s position that at the time the first notice of inquiry was issued, there had not been sufficient investigation to give rise to facts that could induce the requisite state of mind.[21]
[21] See Public Sector Management Act 1995 (SA), section 58(1).
As earlier mentioned, on 3 April 2009 a Minute was sent to the Chief Executive seeking approval to suspend Mr Hall. That Minute set out the following details relating to Mr Hall:
·The scanning results of Mr Hall’s computer indicated that a number of pornographic sites had been accessed for a period of time going back as far as 2008.
·Whilst it was evident that the sites were of a pornographic nature, the severity of the content accessed is unable to be determined at this stage.
…
It is recommended that Mr Hall be suspended from duty pending the outcome of a disciplinary inquiry pursuant to the Public Sector Management Act, 1995 based on the following reasons:
·The alleged matter of viewing pornography is of a serious nature;
·The alleged matter needs to be properly investigated with regard to the content of material which may have been accessed;
·The alleged material accessed dates back to 2008;
·To ensure that the alleged behaviour does not continue.
The State sought to rely on the above Minute as the principal factual foundation for the requisite suspicion on the part of the Chief Executive. However, it was contended by counsel for Mr Hall that the contents of the Minute were to be understood against the fact that the laptop computer was capable of being accessed by persons other than Mr Hall when using his unique username and password. It was said that in the circumstances, the facts as outlined immediately above were not enough to meet the test outlined in the decision of George v Rockett[22] in terms of suspicion on reasonable grounds.
[22] George v Rockett (1990) 170 CLR 104.
I am satisfied for reasons that shall follow that there were sufficient facts induce the requisite state of mind in the Chief Executive.[23]
[23] George v Rockett (1990) 170 CLR 104 at 113.
That the question of whether there are reasonable grounds to suspect is ultimately a question of fact to be tried on the evidence, is made clear by the authorities.[24] The description of the statutory state of satisfaction as “reasonable”, “posits a criterion for the assessment of the factual elements which went to supply the state of satisfaction”.[25] What will constitute reasonable grounds for suspicion will be assessed against what was known or reasonably capable of being known at the relevant time,[26] namely, when the Chief Executive decided to issue the first notice of inquiry.
[24] See for example: George v Rockett (1990) 170 CLR 104 at 112 citing with approval the comments in Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952 at 1000; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at [54].
[25] McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70 at [212] (Jacobson J) citing Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at [54] (McHugh and Gummow JJ).
[26] Ruddock v Taylor (2005) 222 CLR 612 at [40] (Gleeson CJ, Gummow, Hayne and Heydon JJ).
With respect to the notion of suspicion compared to that of belief, and its relationship to the import of the word “reasonable”, the often quoted remarks of the High Court in the unanimous judgment in George v Rockett are pertinent:[27]
Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam, "in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove.’” The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty Ltd v Rees, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, "was unable to pay [its] debts as they became due" as that phrase was used in s 95(4) of the Bankruptcy Act 1924 (Cth). Kitto J said:
"A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to ‘a slight opinion, but without sufficient evidence’, as Chambers's Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which ‘reason to suspect’ expresses in sub-s (4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the sub-section describes -- a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors."
The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.
[Footnotes omitted]
[27] George v Rockett (1990) 170 CLR 104 at 115-116.
As demonstrated by the Minute extracted above, it was clearly apparent to the Chief Executive that Mr Hall’s laptop computer had been scanned, and that the scan indicated that a number of pornographic websites had been accessed from the laptop computer over several months. The Chief Executive was also plainly aware that in order for the nature of the pornographic material to be assessed, and the gravity of the conduct to be established, further investigation needed to be undertaken. Even if, as contended, these objective facts are assessed and understood against the fact that Mr Hall’s laptop computer was capable of being accessed by persons other than Mr Hall when using his unique username and password, the facts nevertheless provide in my view reasonable grounds to suspect that Mr Hall was liable to disciplinary action.
As extracted above, suspicion does not demand actual belief, it demands a suspicion where proof is absent: “I suspect but I cannot prove”, or, a “slight opinion without sufficient evidence”.[28] The notion of “absence of proof” encompassed by the term “suspicion”, supports the construction that further investigation is contemplated by section 58 following the issuing of a notice of inquiry. This necessarily means that some degree of delay is envisaged by section 58. Further, the requirement in section 58(1) that the Chief Executive “suspects on reasonable grounds” that an employee may be liable to disciplinary action, is a state of mind which is to be distinguished from and understood against that required in section 58(5) of the Act; that is, where the Chief Executive on an inquiry is “satisfied on the balance of probabilities” that the employee is liable to disciplinary action.
[28] George v Rockett (1990) 170 CLR 104 at 115 citing Hussien v Chong Fook Kam [1970] AC 942 at 948 and Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 at 303.
If access to pornographic material via the use of resources supplied to Mr Hall by the Department was established, it was grounds for dismissal. The fact that there was still investigation to be done to assess the gravity of the conduct, and the fact that there existed a possibility that someone else may, through the use of a unique username and password, have accessed Mr Hall’s laptop computer (a fact which would in theory always exist), does not effect the finding that the contents of the Minute sent to the Chief Executive were sufficient to give rise to the necessary suspicion on reasonable grounds that Mr Hall had conducted himself in a manner which may make him liable to disciplinary action.
There is no merit to the submissions in this respect as there were sufficient facts before the Chief Executive to give rise to a suspicion on reasonable grounds.
Intention and Preparedness to Conduct Inquiry
It was submitted by counsel for Mr Hall that as at the time of issue of the first notice of inquiry on 3 April 2009, the Chief Executive had no present intention to hold or call an inquiry at any time in the imminent future. It was Mr Hall’s case that on a proper construction of section 58 of the Act, it is necessary for the inquiry to proceed as soon as reasonably practicable or within a reasonable time following the issue of the notice of inquiry, and that therefore, notification of an inquiry at a time when the Chief Executive does not foresee the progress of the inquiry in the manner above, is an ultra vires act. In other words, the giving of a notice of inquiry when the Chief Executive has no intention of conducting an inquiry within a reasonable time is an action which offends section 58 of the Act.
To support the submission that the Chief Executive in this case had no intention of conducting an inquiry at any time in the imminent future when the notice of inquiry was issued, counsel drew the Court’s attention to the fact that no inquiry was actually called. It is to be recalled that the Chief Executive initially took steps to conduct an investigation. However, subsequent developments resulted in the Chief Executive indicating in writing that he had no intention of conducting an inquiry at that stage. In that sense, the inquiry was suspended, the Chief Executive indicating that he intended to await the outcome of the Police investigation into the matter.
Commencement of the Hearing within a Reasonable Time
As mentioned earlier in these reasons, an inquiry into Mr Hall’s conduct finally took place in February 2010, purportedly in respect of the notice of inquiry of 18 September 2009; that is, the fourth notice of inquiry. However, from the time of the issue of the first notice of inquiry to the actual holding of the inquiry, some ten months had passed.
The delay was, in effect, a result of the deliberate decision to suspend investigations while awaiting the outcome of criminal processes.
Generally speaking, there is no inhibition upon an employer dismissing an employee in relation to conduct which is also the subject of incomplete criminal proceedings.[29] Outside of section 58(9), which requires that the holding of an inquiry must be suspended if the employee is charged with an offence relating to a matter to which the inquiry relates, there is on the face of the Act no other rule which requires that administrative action under the Act must await the determination of any criminal proceedings arising from the same conduct. Prejudice to the employee by reason of the existence of cognate criminal proceedings, is however, a factor to be considered by an employer in a decision to dismiss,[30] as is the integrity of the criminal proceedings.
[29] Baker v Commissioner of Federal Police (2000) 104 FCR 359 at [30] (Gyles J) a case which concerned both police disciplinary proceedings and criminal proceedings, citing Re Locke; Ex parte Commissioner for Railways [1968] 2 NSWR 197; R v British Broadcasting Corporation; Ex parte Lavelle [1983] 1 WLR 23.
[30] Baker v Commissioner of Federal Police (2000) 104 FCR 359 at [30].
It was submitted by counsel for Mr Hall that where the Police are considering the potential laying of a charge there is simply no province to suspend the holding of an inquiry. If this contention is correct, any such suspension would be ultra vires. This contention was framed as a supplementary submission to the other submissions put by Mr Hall. However, it is my opinion that in any case, subject to the observations in these reasons, the fact of suspension of an inquiry where the Police are considering the potential laying of a charge, does not deem acts that follow invalid. In other words, that it is mandatory for the Chief Executive to suspend the holding of an inquiry if an employee is charged with an offence relating to a matter to which the inquiry relates, does not of itself exclude the power to suspend an inquiry in other circumstances. It otherwise remains discretionary. As a matter of interpretation, the text of section 58 and the statutory scheme do not allow a conclusion to the contrary.
For reasons that follow, I have arrived at the conclusion that the decision to suspend an inquiry to await further progress in the potential laying of criminal charges is a decision within the power of the Chief Executive. In the circumstances, while it did result in a lengthy delay, it was not beyond power.
On more than one occasion during correspondence with Mr Hall and his representatives, the Chief Executive purported to exercise his discretion to put the disciplinary process commenced by the service of the notice of inquiry “on hold”, pending the outcome of investigation by Police, despite being “not constrained from proceeding” with the disciplinary process.
That the operation of section 58 of the Act has punitive consequences is clear. Not only is termination of employment plainly punitive in nature, the mere fact of suspension with or without pay, also carries with it punitive consequences. It was submitted by Mr Hall that in these circumstances, the Court, when of the view that the relevant section can be construed in more than one way, will construe the section in the most lenient way that is available:[31] the penal nature of Part 8 of Division 8 of the Act militates against a broad interpretation justifying an “open hand” to the Chief Executive when acting pursuant to section 58.
[31] Counsel sought to rely on Pearce and Geddes, Statutory Interpretation in Australia (6th ed, 2006), [9.14] and the cases cited therein.
For the reasons given, it would have been desirable for the Chief Executive to expedite the inquiry process. However, when examining the decisions of the Chief Executive at the time they were made, none can be said to be patently unreasonable. Once suspicion is reached on reasonable grounds that an employee may be liable to disciplinary action, the facilitation of an inquiry to determine whether the employee is in fact so liable should proceed as soon as reasonably practicable, taking into account all the circumstances of the particular case. In this respect, I do not hesitate in reading section 58 as being subject to an implied limitation that the holding of an inquiry shall occur within a reasonable time from the issuing of the notice of inquiry.[32] The following obiter of Nagle J in the Supreme Court of New South Wales decision of Deputy Commissioner of Taxation v Ganke,[33] with Street CJ and Begg J agreeing, is relevant:
Nevertheless in the present case there is implicit in deciding the issue as to whether there has been a failure on the part of the appellant a need to consider whether the time allowed by the Commissioner in his notice was a reasonable time. Section 264, of course, does not refer at all to the Commissioner's prescribing a time, and it is only by implication that I have come to the conclusion that a time for compliance with the request can be included by the Commissioner. But I feel that where one implies into the section a giving of time, or a prescribing of time, that time must be “a reasonable time”. To this effect I wish to call attention to the remarks of Wallace P. in R. v. Skurray: “It is well settled, and good sense, that where a penal provision requires an act to be done either without a time being stipulated, or even where the act must be done ‘forthwith’ a reasonable time is implied sufficient to enable performance to be effected.”
[Footnote omitted - emphasis added]
[32] See Hospital Benefit Fund of WA Inc v Minister for Health, Housing & Community Services (1992) 39 FCR 225 at 229; Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297 at 320-321; Deputy Commissioner of Taxation v Ganke [1975] 1 NSWLR 252 at 258; R v Skurray (1967) 86 WN(Pt 1) (NSW) 1 at 3.
[33] Deputy Commissioner of Taxation v Ganke [1975] 1 NSWLR 252 at 258
However, the qualification of taking into account all the circumstances of the particular case, must be understood as including the nature of the allegations of misconduct and other factors arising from the case. For example, it is not difficult to identify a number of reasons for the need to suspend an employee soon after the revelation of the allegations and while investigations continue in a case – the preservation of evidence, to ensure that the conduct does not continue, to protect the employee and other employees, and to protect the public interest. Indeed, those are considerations which may well arise in a case such as the present. Necessarily, circumstances such as these may give rise to delay in the holding of an inquiry, as it did in this case. The present case was complicated by two factors in particular: a police investigation looking into the possibility that child pornography may have been involved, which would lead to a serious criminal offence if established; and, the allegations regarding driving whilst disqualified and the misunderstanding proceeded upon in relation thereto.
In my view, the issuing of a notice of inquiry invokes a duty to proceed with the holding of the actual inquiry within a reasonable time. What will be a reasonable time will ultimately be a question of fact to be tried on the evidence. As the above analysis demonstrates, in the circumstances of the statutory scheme under consideration in this proceeding, the inquiry may be delayed, significantly in some circumstances, before the time passed becomes unreasonable. However, on a proper construction of section 58, it cannot be said that the Chief Executive only has power to issue a notice of inquiry when he is ready to hold the inquiry. It is to be noted that such a construction could risk leaving the statutory contemplation that preliminary investigations may be undertaken after the issue of the notice of inquiry, with little or no work to do.
I wish to make an observation about the delay to which Mr Hall was ultimately subject. The following observations are not be understood as affecting my findings with respect to whether the inquiry was held within a reasonable time for the purposes of section 58.
The Promotion and Grievance Appeals Tribunal on 30 September 2009 described the time frame taken to conduct the investigation as unsatisfactory. I agree that the ultimate delay was unusual and unsatisfactory. This is particularly so in light of the fact that Mr Hall’s suspension was for a substantial period without remuneration or other entitlements. Being without paid employment for a long period of time is a serious matter, with real potential to give rise to far reaching consequences for the person subject to the suspension. As discussed earlier in these reasons, the initial conduct alleged; that is, access to sexually explicit or pornographic material at work, was serious and if established, grounds for dismissal. The nature of the materials allegedly accessed by Mr Hall, and the extent of the misuse of public resources, were serious. As discussed, in my view there was an obligation on the part of the Chief Executive to ensure that the investigation proceeded towards an inquiry.
Material on the Court file suggests that Mr Hall was not only subject to financial hardship as a result of the suspension, but adverse impacts on his marriage and health were also apparent.
By affidavit, Ms Anderson, the Director of Human Resources for the Attorney-General’s Department and the Department of Justice, deposed that:
The delay in progressing this matter has been regrettable. It is unusual in my experience for an inquiry to be delayed to this extent. It is the practice of the Department to have matters like this heard and determined expeditiously.
In the circumstances of the present proceeding, there were unique complicating factors which contributed substantially to the significant delay to which Mr Hall was subjected. It was in the context of those unique factors that the ultimate delay caused was not unreasonable despite the unfortunate consequences of that delay for Mr Hall. I am satisfied that the inquiry was held within a reasonable time from the issuing of the notice of inquiry.
Power to Amend the Notice
It is to be recalled that the first notice of inquiry was approved by the Chief Executive on 3 April 2009, and that the three subsequent notices issued to Mr Hall purported to be “amended” notices of inquiry. The Chief Executive purported to act at all relevant times pursuant to the first notice, as amended. Mr Hall challenged the power to amend a notice of inquiry. It was Mr Hall’s position that section 58 does not make any provision for amendment of notices, and that strictly, what is contemplated by the section, is that there will be nothing to prevent a Chief Executive from giving another notice of inquiry and commencing the process by that second notice, but a true second notice, not an amended notice.
Given the power to make preliminary investigations both prior to the issuing of the notice of inquiry and the holding of the inquiry, it is to be expected that those investigations may reveal information that requires further particulars necessitating an amendment to a notice of inquiry. As earlier demonstrated, preliminary investigations and processes are not and do not form part of an “inquiry”.
The fact of the power to make investigations after the issuing of the notice of inquiry and before the hearing of the inquiry, suggests that section 58 contemplates that something further might come out of the investigation either for or against the allegations, that would then lead to either the allegations being curtailed, abandoned or expanded. Providing that proper notice of such discoveries and changes is given, it is difficult to see how this could give rise to any real prejudice to the person subject to the allegations. Counsel for Mr Hall pointed to no particular prejudice in this respect. Further, this is relevant in respect of delay. If the section contemplates what I have just described, then it follows that it contemplates some degree of delay in the holding of an inquiry in certain circumstances. I dealt with this issue earlier in these reasons.
The Public Sector Management Act, enables, inter alia, administrative provisions dealing with an employment relationship, and although a notice of inquiry cannot not be given the status of a criminal Information, a suspension without pay is a very serious sanction. Even if a suspension does operate technically in the “interim”, as this proceeding demonstrates, it can operate for an extended period of time. Notwithstanding the potentially serious consequences following on the issuing of a notice of inquiry, the notice need not be in any particular form, but should summarise with sufficient particularity, the grounds upon which the employee is suspected of being liable to disciplinary action. It is to be noted that nothing in the language of the Act or the text of particular provision indicates that the notice of inquiry as given cannot be amended subsequent to its issue. In my view there is nothing preventing the notice from being amended prior to the holding of a disciplinary inquiry pursuant to section 58 of the Act. The issuing of “amended” notices of inquiry was not an act beyond the power of the Chief Executive.
Conclusion
The application for judicial review is dismissed.
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