Kanak, Dominic (Wy) v The Secretary, Department of Employment, Education and Training
[1995] FCA 993
•4 DECEMBER 1995
CATCHWORDS
ADMINISTRATIVE LAW - Application under s 5 of the Administrative Decisions (Judicial review) Act 1977 (Cth) - review of decision to be counselled under s 61 Public Service Act 1922 (Cth) - whether breach of natural justice - Whether decision founded on irrelevant considerations - whether non-observance of procedures - whether failure to consider relevant considerations - whether bad faith - whether use of certain evidence contrary to law - whether contravention of responsibilities under International Declaration of the Rights of the Child and the International Declaration on Racial Discrimination
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5
Public Service Act 1992 (Cth) ss 61, 62, 63
DOMINIC (WY) KANAK v
THE SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION AND TRAINING
No NG 220 of 1995
Tamberlin J
Sydney
4 December 1995
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 220 of 1995
GENERAL DIVISION )
BETWEEN: DOMINIC (WY) KANAK
Applicant
AND: THE SECRETARY,
DEPARTMENT OF EMPLOYMENT,
EDUCATION AND TRAINING
Respondent
CORAM: TAMBERLIN J
PLACE: SYDNEY
DATED: 4 DECEMBER 1995
MINUTE OF ORDERS
THE COURT ORDERS THAT:
That the application be dismissed.
That there be no order for costs.
NOTE: Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 220 of 1995
GENERAL DIVISION )
BETWEEN: DOMINIC (WY) KANAK
Applicant
AND: THE SECRETARY,
DEPARTMENT OF EMPLOYMENT,
EDUCATION AND TRAINING
Respondent
CORAM: TAMBERLIN J
PLACE: SYDNEY
DATED: 4 DECEMBER 1995
REASONS FOR JUDGMENT
This is an application under s 5 of the Administrative Decisions (Judicial Review) Act (1977) ("ADJR Act") by Mr Kanak ("the applicant") seeking review of a decision of an authorized officer, Catherine Archbold ("Ms Archbold"), that he be "counselled".
The decision was made under s 61 of the Public Service Act (1992) ("the Act"). That provision relevantly reads:
"Disciplinary Action
61.
(2)Where an officer authorized by the relevant Secretary for the purposes of this subsection, is of the opinion that an officer may have failed to fulfil his duty as an officer, the authorized officer shall, as soon as practicable, decide whether he should be charged and:
(a) if he decides that the officer should not be charged - may counsel the officer or cause a supervisor of the officer to counsel the officer; or ..." (Emphasis added).
The applicant seeks an order that the decision be set aside and a further order declaring his rights in respect of any matter to which the decision relates. He also seeks an order directing the respondent to refrain from counselling him and such other orders as the Court thinks fit.
Since the applicant has now left the Public Service a restraining order is not appropriate. He is no longer subject to counselling. However, the applicant wishes to clear his name of any suggestion that he may have failed to fulfil his duty whilst an officer and it is for this reason that the case is pursued.
The decision was made on 30 November 1994. It was reached after an investigation by Ms Archbold. Details are set out in a comprehensive investigation report, entitled "Investigation of Authorized Officer Into Allegations of Misconduct against Mr Dominic Kanak" ("Investigation Report"). The Investigation Report contains a summary in these terms:
"SUMMARY OF DECISION
5.1 In conclusion, it is my decision that Mr Kanak may have committed misconduct in that he failed to fulfil his duty as an officer within the meaning of s.56(b), (c), and (d) of the Act. I am of the opinion that the evidence available to me establishes that Mr Kanak may have:
• been inefficient in the conduct of his duties as an officer of the Department by failing to comply with the requirements of the ABSTUDY guidelines which required him to notify the Department of any change in circumstance relating to his ABSTUDY application; reflecting his inefficient knowledge or understanding of guideline requirements;
• been careless in his conduct reflected by his failure to follow through with appropriate behaviour, as defined clearly in the ABSTUDY guidelines and application form, despite his recognition that he had been in dispute with the Department in the past in relation to ABSTUDY application matters;
• acted improperly as an officer in that he did not comply with conduct standards that had been established quite clearly relating specifically to the ABSTUDY guideline procedures manual.
5.2However, it is my decision that charges should not be laid in respect of the above misconduct. It is my view that laying of discipline charges is not the most appropriate manner in bringing about a correction in Mr Kanak's conduct or behaviour. Given that the incidents giving rise to a prime facie case of misconduct occurred over twelve months ago, and that the delay in the investigation of the incidents cannot be attributed in any way to Mr Kanak, I do not believe that it would be reasonable in terms of administrative fairness to lay misconduct charges at such a late stage. In my view it is more appropriate that Mr Kanak be counselled regarding his previous behaviour in respect of his Abstudy application. This counselling should be undertaken by his supervisor who should give him clear instructions on the requirements of Abstudy applicants in terms of maintaining correct information in respect of their applications." (Emphasis added)
On 6 March 1995, pursuant to a request dated 10 February 1995 from the applicant, a Statement of Reasons was furnished by Ms Archbold in the following terms:
"Dear Mr Kanak,
I refer to your request of 10 February 1995 for a Statement of Reasons for my decision to have you counselled.
In making this decision, I made the following findings on material questions of fact:
•you provided information about your income on your 1993 ABSTUDY application form which subsequently proved to be incorrect but you did not then notify the ABSTUDY office of your changed income circumstances within 7 days of your becoming aware of them, as you were required to do under the terms of the ABSTUDY program; and
•although you were an officer of the Department at the time, you did not notify your line management of your 1993 ABSTUDY application, as you were required to do by section B.7 of the ABSTUDY Policy Guidelines Manual.
These findings were based on the evidence and other material in:
•the documentation relating to possible disciplinary action against you which I obtained from the NSW State Office;
•the information you provided to me by telephone and in writing; and
•the ABSTUDY Policy Guidelines Manual.
The reasons for my decision are as follows. As an officer authorised under section 61 of the Public Service Act 1922 ("the Act"), I may have you counselled or may charge you provided that I am of the opinion that you may have "failed to fulfil your duty as an officer." The meaning of this phrase is defined in section 56 of the Act.
In my opinion, it is reasonable to expect that an officer who has worked in the ABSTUDY area will be particularly careful to comply with the terms of the ABSTUDY program when receiving assistance under that
program. This is especially so in such a serious matter as notifying the ABSTUDY office of other incomes which would affect eligibility or the rate of assistance payable. I believe that there is a general community expectation that officers of this Department would observe stringent standards in this regard. In my opinion, your failure to notify the ABSTUDY office of your income may constitute "improper conduct otherwise than as an officer, being conduct that brings the Service into disrepute". Accordingly, I concluded that you may have failed to fulfil your duty as an officer as defined by paragraph 56(e) of the Act.
In failing to notify your line management of your ABSTUDY application, I believe that you failed to comply with Departmental instructions applicable to the performance of your duties, namely the procedures set out in section B.7 of the ABSTUDY Policy Guidelines Manual. This section of the Manual clearly states that "the following procedures must be adhered to". Subregulation 8A(b) of the Public Service Regulations requires you to comply with any such Departmental instructions and, on this basis, I believe that you may have failed to comply with a provision of the Regulations. Accordingly, I concluded that you may have failed to fulfil your duty as an officer as defined by paragraph 56(f) of the Act.
Having found that you may have failed to fulfil your duty as an officer, I was of the opinion that the matters at issue had occurred some time ago and that a number of possible mitigating factors could have a bearing on the best course of action to be taken. For these reasons, I decided to have you counselled rather than formally charged under section 61 of the Act.
My involvement in this matter is now concluded. Since I made arrangements with your Area Manager for you to be counselled, any further enquiries should be directed to your local management.
Yours sincerely,
CATHY ARCHBOLD,
MANAGER, EMPLOYER STRATEGIES BRANCH
6 March 1995"
Ms Archbold was an officer from outside New South Wales and she had no previous contact with the case.
On 16 February 1995, the applicant lodged a Grievance with the Merit Protection and Review Agency ("MPRA"). On 28 June 1995, the MPRA recommended that the respondent should abandon its efforts to counsel Mr Kanak and that in view of the "irretrievable total breakdown of the ... employment relationship" the respondent should investigate options for terminating the applicant's employment.
In the course of the Report of the MPRA, Mr Budak of the Department of Employment, Education and Training ("DEET") considered that:
"The main feature of this case is that there is no agreement as to the relevant facts. According to the Authorized Officer, Mr Kanak failed to comply with DEET, Abstudy guidelines which required him to notify DEET of any changes in circumstances relating to his Abstudy application (eg re his income from salary as a DEET Officer).
On the other hand, Mr Kanak remains adamant that he had no case to answer because, he says, he advised DEET about his receipt of ABSTUDY allowance and he sees it as a denial of natural justice that the Authorised Officer did not appear to believe him."
On 11 August 1995 the applicant ceased employment with DEET.
Grounds of Application
The grounds relied on by the applicant are set out in an amended application as follows:
"THE GROUNDS OF THE APPLICATION ARE -
1.THAT A BREACH OF THE RULES OF NATURAL JUSTICE OCCURRED IN CONNEXION (sic)WITH THE MAKING OF THE DECISION IN THAT:
I WAS REFUSED THE CHANCE TO SEEK LEGAL/UNION ADVICE WHEN I WAS BEING SUSPENDED;
2.THAT PROCEDURES THAT WERE REQUIRED BY LAW TO BE OBSERVED IN CONNEXION (sic) WITH THE MAKING OF THE DECISION WERE NOT OBSERVED IN THAT:
(a) THE TAKING OF EVIDENCE PREPARATORY TO THE MAKING OF THE DECISION WAS NOT DONE ACCORDING TO LAW;
(b) THAT PAYMENTS DUE TO THE APPLICANT FOR DISMISSED 'SUSPENSION WITHOUT PAY CHARGES' ACCORDING TO THE PUBLIC SERVICE ACT 1922 WERE NOT MADE TO THE APPLICANT AT THE TIME OF THE DISMISSED SUSPENSION;
THAT THE MAKING OF THE DECISION WAS AN IMPROPER EXERCIZE (sic) OF THE POWER CONFERRED BY THE ENACTMENT IN PURSUANCE OF WHICH IT WAS PURPORTED TO BE MADE, IN THAT IT: ** FAILED TO PROPERLY TAKE A RELEVANT CONSIDERATION INTO ACCOUNT IN THE EXERCIZE (sic) OF THE POWER; NAMELY THAT:
(a)**** THE CHARGES CONNECTED WITH THE DECISION TO COUNSEL HAD ALREADY BEEN DISMISSED BY THE SECRETARY;
(b) **** THE ABORIGINAL PROGRAMS BRANCH HAD BEEN DEVOLVED FROM THE ABSTUDY SECTION PRIOR TO THE FRAUD PREVENTION UNIT INVESTIGATION PROCESS\REPORT IN CONNEXION (sic) WITH THE MAKING OF THE DECISION;
(c) **** THE APPLICANT HAD BEEN ON LONG PERIODS OF EXTENDED LEAVE SINCE 1990 AND HAD NOT BEEN INFORMED OF SECTION B.7 OF THE ABSTUDY POLICY GUIDELINES;
(d) **** THE APPLICANT HAD INFORMED THE ABSTUDY UNIT OF CHANGED INCOME CIRCUMSTANCES PRIOR TO THE ORIGINAL MISCONDUCT\SUSPENSION CHANGES IN CONNEXION (sic) WITH THE MAKING OF THE DECISION;
(e) **** THE APPLICANT'S SUPERVISOR HAD BEEN INFORMED THAT THE APPLICANT WOULD BE STUDYING IN 1993;
(f) **** THE APPLICANT'S SUPERVISOR WAS AWARE OF THE APPLICANT'S ABSTUDY APPLICATION;
(g) ** WAS AN EXERCIZE (sic) OF A DISCRETIONARY POWER IN BAD FAITH IN THAT:
**** THE APPLICANT HAD FORWARDED COMMENT ON THE ABSTUDY GUIDELINES SAYING HE BELIEVED HE HAD ULTIMATELY ADHERED TO THE ABSTUDY GUIDELINES IN THE MATTERS CONNECTED WITH THE MAKING OF THE DECISION.
4.THAT THE DECISION INVOLVED AN ERROR OF LAW [SEE 2.]
THAT THE DECISION WAS INDUCED OR AFFECTED BY FRAUD IN THAT MISCONDUCT CHARGES RELATED TO "FRAUD" WERE CONSIDERED IN THE DECISION MAKING PROCESS.
THAT THE PERSON WHO MADE THE DECISION BASED IT ON A FACT THAT DID NOT EXIST, NAMELY "...YOU [THE APPLICANT] DID NOT THEN NOTIFY THE ABSTUDY OFFICE OF YOUR [THE APPLICANT'S] CHANGED INCOME CIRCUMSTANCES WITHIN 7 DAYS OF YOUR [THE APPLICANT] BECOMING AWARE OF THEM.."; WHEN THE FRAUD PREVENTION UNIT'S REPORT MENTIONED THAT THE APPLICANT HAD IN FACT DONE SUCH AN ACT. [SEE ALSO 3.]
THAT THE DECISION WAS OTHERWIZE (sic) CONTRARY TO LAW, IN THAT:
(a) ** THE DEPARTMENT SAID IT WOULD USE FEDERAL POLICE EVIDENCE IN CONNEXION (sic) WITH MAKING THE DECISION TO COUNSEL;
(b) ** THE DEPARTMENT'S RESPONSIBILITIES UNDER THE INTERNATIONAL DECLARATION OF THE RIGHTS OF THE CHILD AND THE INTERNATIONAL DECLARATION\CONVENTIONS ON HUMAN RIGHTS\RACIAL DISCRIMINATION WERE DISREGARDED.
THAT PROCEDURES THAT ARE REQUIRED BY LAW TO BE OBSERVED FOR THE PURPOSE OF MAKING THE DECISION HAVE NOT BEEN OBSERVED, IN THAT THE DEPARTMENT DID NOT PROVIDE ME WITH CLEAR ADVICE AS TO WHO WAS THE ORIGINAL AUTHORIZED OFFICER IN CONNEXION (sic) WITH THE MAKING OF THE DECISION THAT THE APPLICANT BE COUNSELLED. [SEE ALSO: 1,2,7]
PARTICULARS OF FRAUD [SEE 5] OF BAD FAITH IF ALLEGED: I BELIEVE IT IS BAD FAITH TO HAVE TAKEN A STATEMENT FROM SOMEONE WHO INWHICH (sic) THEY SAY THEY HAVE ULTIMATELY KEPT RULES FOR A SITUATION AND THEN IMPLY THEY HAVE NOT AND PROPOSE TO HAVE THEM COUNSELLED WITH OUT REHEARING ANY DEFENSE (sic) THEY MAY FURTHER WISH TO OFFER....."
The applicant appeared in person.
I will consider the grounds and matters raised in the order set out in the above Application.
Breach of Natural Justice
Before the decision under challenge was made on 30 November 1994, the applicant had been suspended on three previous occasions. The first occasion was on 23 April 1993. That suspension was made under s 63B(1)(b) of the Act. This section deals with suspension of an officer on the ground of possible failure to fulfil duties as an officer. This suspension was revoked on 17 June 1993 because a criminal charge was laid on 26 May 1993 and a new suspension, this time under s 63B(1)(a), was imposed on the applicant. The suspension was imposed on the basis of the criminal charge. When the matter came before the Local Court in December 1993 and no evidence was offered, this suspension too, in turn, was revoked. A third and further suspension, under s63B(1)(b) was imposed on 18 January 1994. This was removed on 28 March 1994 when the applicant was directed to return to work. He returned to work on 5 July 1994.
No application has been made to review any of the three suspension decisions.
However, the applicant submits that the suspension decisions were so tied in with Ms Archbold's decision, of 30 November 1994, to counsel him that any defects in those decisions in turn invalidated that decision.
The applicant says that before he was suspended on 23 April 1993, he was refused permission by Mr Correll, an authorized officer, to leave the room in which he was interviewed, and obtain legal or union advice. There is some dispute as to whether the applicant had been informed prior to the meeting of its purpose or of any charges. The evidence does not enable me to determine that question. Nor is it necessary for me to do so.
The respondent does not admit the facts alleged.
The submission by DEET is that whether or not the decision was validly made on 23 April 1993, there was no challenge to it within time. Further, even if that decision was invalid, it has not been shown to have had any effect on the decision presently under challenge. Emphasis is placed by the respondent on the two intervening suspensions between that of 23 April 1993 and the ultimate decision to counsel on 30 November 1994. Moreover, the decision to counsel, it is submitted, was a separate and independent decision made some nineteen months after the first suspension and there was no relevant causal or temporal connection.
I accept the submission as to lack of connection between the first decision by an officer to suspend and the ultimate decision by Ms Archbold to counsel the applicant. There is no need to investigate the circumstances of the 23 April 1993 meeting. It is too remote in time. Also it is different in character from the decision presently before me. In addition, it has not been shown to have had any significant effect on that decision. The decision under challenge was made and dealt with, as a discrete matter, by a different authorized officer with no previous contact with the issues under consideration.
There is nothing in the Statement of Reasons of 30 November 1994 to indicate that any weight or significant weight was given by Ms Archbold to the circumstances of the first suspension.
The Statement of Reasons of 6 March 1995 were essentially founded on the view that it was reasonable to expect that an officer who had worked in the ABSTUDY area would be particularly careful to comply with the terms of the ABSTUDY Programme when receiving assistance under that programme and would make full disclosure of all relevant income. The notification to the ABSTUDY Office of other income, which could effect the eligibility or rate of assistance payable was considered significant by Ms Archbold. It was also her view that there was a general community expectation that officers of DEET would observe stringent standards in this regard. Her conclusion was that failure to notify correct income position may constitute "improper conduct". It was not a determination that there was improper conduct. Moreover, Ms Archbold formed the view that in failing to notify the Line Manager of the ABSTUDY application, the applicant had failed to comply with Departmental instructions set out in Section B.7 of the ABSTUDY Policy Guidelines Manual. She concluded that the applicant may have failed to fulfil his duties as an officer within the meaning of ss 56(e) and (f) of the Act.
Ms Archbold took into account that the matters had occurred some time ago. In her view, a number of possible mitigating factors were relevant and she decided that the best action was to have him counselled rather than formally charged.
There is no reliance in the Statement of Reasons to any suspension action whatsoever.
Neither is there any reference in her Investigation Report to indicate that reliance was placed on the suspension of 23 April 1993, or on any subsequent suspension.
Procedures not Observed
Ground (a)
The first procedural irregularity relied on is that,in a statement made by Ms Sue Di Tucci on 13 April 1993 witnessed by Ms Karen Kent,there was an irregularity on the face of the document.
Ms Di Tucci made two statements. The first was 13 April 1993. That is expressed to be signed and witnessed on 13 April, 1993. It refers to three groups of documents being produced, comprising personnel records, leave forms and flexi-sheets. It is said that these three lines referring to the exhibits were not on the document at the time it was witnessed by Ms Kent and signed by Ms Di Tucci. The purpose of the statement was to set out evidence which Ms Di Tucci would be prepared to give in court as a witness. The gist of the statement is that she says she was then currently employed as a Personnel Officer with DEET. She began employment on 29 February 1988. Her duties include certifying and varying salary payments, commencing and ceasing staff from pay, and providing advice to staff on entitlements and allowances. She states that DEET personnel records indicated the applicant had been employed with DEET during the period 1 January 1993 to 1 April 1993, that he took leave without pay from 30 December 1992 to 13 January 1993 and was on leave without pay from 21 January 1993, although he did not submit a leave form. From 28 January 1993 until 29 January 1993 he was considered to be on unauthorised leave. Finally, the records show that he was on manual pay and that she certified each fortnight according to attendance recorded on his flexi-sheet.
Ms Di Tucci made an additional statement which is expressed to have been made and witnessed on 10 June 1993. In fact the signature of the witness, and that of Ms Di Tucci have a handwritten date alongside the signatures of 16 June 1993. This statement also refers to the production of the DEET personnel records; application for leave forms and flexi-time attendance records. The substance of this statement is similar to that of 13 April.
I can see nothing in the irregularities referred to which would, either alone or cumulatively, be capable of invalidating the decision made on 30 November 1993 or indeed any previous decision affecting the applicant. They have nothing to do with that decision and no weight appears to have been placed on them.
I am satisfied, on the material presented to me, that the personnel records, leave forms and attendance records referred to in the statement expressed to have been made on 10 June, but signed on 16 June, were produced with that statement.
Ground (b)
A further irregularity raised by the applicant is that on revocation of the suspensions he became entitled thereafter to be paid for the period of such suspension. This claim is said to arise under s 63B and s 63C of the Act.
Whatever be the merits of this suggested "irregularity", I cannot see that it has any bearing on the decision under challenge and it would not warrant review of that decision. There is no reference in Ms Archbold's report to it having been given any significant weight or as being a relevant consideration. It clearly was not. It seems to me that this is purely an unrelated collateral matter.
Improper Exercise of Power
Ground (a)
The first matter raised in this regard is that Ms Archbold failed to properly take a relevant consideration into account, namely that the charges connected with the decision to counsel, had already been dismissed by the Secretary of DEET.
The applicant refers to the fact that on 28 March 1994, he was advised that the unresolved disciplinary action would cease and that an independent authorized officer would be appointed to consider the matter afresh. Also he was told that his suspension under s 63C(2) of the Act was removed and that he was directed to return to work. He, in fact, returned to duty on 5 July 1994. In the meantime, on 26 April 1994, Ms Archbold had been appointed as authorized officer for the purposes of s 61(2) of the Act in relation to allegations of misconduct.
There is no evidence that Ms Archbold was unaware of the removal of the suspension in March 1994. Indeed, her Statement of Reasons says that she based her findings on material in documentation relating to possible disciplinary action which she obtained from the New South Wales State Office of DEET. Nor is there any evidence that she was unaware of the fact that the criminal charges against the applicant had been dismissed, or that no evidence was offered in his case.
There is no evidence to the effect that Ms Archbold acted under a mistaken belief that there was a continuing suspension or that the criminal charges were being pursued at the time when she investigated or made her decision on the matter. There is simply no evidence that she placed any emphasis or attached any importance to such matters.
Accordingly, I do not find this ground made out.
Grounds (b) and (c)
These grounds allege that Ms Archbold failed to properly take into account certain relevant considerations. These were that the Aboriginal Programmes Branch had devolved from the ABSTUDY section, prior to the Fraud Prevention Unit Investigation process, and that the applicant had been on long periods of extended leave since 1990 and had not been informed of Section B.7 of the ABSTUDY Policy Guidelines.
In her Investigation Report, Ms Archbold expressly refers to the applicant's work history and experience with DEET having been interrupted by periods of extended leave, which could have contributed to his less than expected working knowledge of the Departmental ABSTUDY Guidelines. See her Investigation Report, paragraphs 4.3.1.3, 4.3.2.1 and 4.3.3.1. Ms Archbold also specifically interviewed the applicant to establish if it was reasonable to expect that he would have either a good working knowledge or understanding of the need to provide correct information in relation to ABSTUDY allowances. She formed the view that it was not unreasonable to expect him to have such knowledge.
In her record of interview with the applicant on Friday 1 July 1994, Ms Archbold records that the applicant worked as an Aboriginal Field Officer for Education and that he stated to her that the ABSTUDY Guidelines were significantly different at that time. This account is taken from a record of an interview made by the applicant on 1 July.
It appears from paragraph 4.3.1.1 of her Investigation Report that Ms Archbold considered the important consideration to be that the Guidelines and Explanatory Notes on the ABSTUDY application form, completed and signed by the applicant in November 1992 (although it is a 1993 ABSTUDY form) and again in May 1993, were quite clear. In her view it was likely that he knew of the obligation to disclose other income. Her finding in paragraph 4.3.2.1 was that the standards were stated clearly and it is unlikely that conduct relating to notifying DEET of changed circumstances would have altered significantly. She considered that the applicant's absence should have signalled the requirement for more care upon return to employment. This conclusion, in my view, was one which was reasonably open to her.
Having regard to these matters it cannot be said that there was an error of law arising from a failure by Ms Archbold to take into account the matters referred to in 3(b) and (c) of the application to this Court.
Grounds (d), (e) and (f)
These matters relate to whether the relevant units or persons were, in any event, aware of his changed income circumstances prior to the original charges having been made.
On the approach taken by Ms Archbold a central feature, which led to her conclusion that there may have been a failure to fulfil his duty as an officer, was the incorrect statements in the application forms. The question whether the Unit or Supervisors or Superior Officers had been informed or knew of his changed circumstances really went to mitigation. It is clear from the Statement of Reasons and the Investigation Report that Ms Archbold took into account and gave significant weight to mitigating factors in reaching her conclusion that counselling was the appropriate alternative.
Moreover, on a close examination of the material relied on by the applicant, it does not appear that there was an adequate disclosure of the applicant's income position in 1993.
Ms Roslyn Field in a statement of 25 January 1994, stated that she was never officially advised of his 1992 ABSTUDY application although she was aware that he was studying in Victoria during 1992. She had no idea he was claiming full time ABSTUDY as he was employed as a full time officer with DEET. The first she knew of his 1993 application for ABSTUDY was when she was told in April 1993.
Ms Archbold, was clearly aware, because it is an attachment to her Investigation Report, of the letter of the applicant of 8 April 1993, when the applicant sent a cheque for possible overpayment of ABSTUDY. That letter referred to a previous letter written in December 1992 with a payment to cover possible overpayment of ABSTUDY. A specific search of DEET files by a Ms Houghton was made. It showed only a copy of a letter of 15 December 1993 (which it was assumed should have read December 1992) which referred to the December letter in addition to the 8 April 1992 letter. In these circumstances it was open to Ms Archbold to conclude that no such notification had been made in December 1992. The applicant also referred to a letter written by Wendy Brabham, the Acting Coordinator of DEET, to Alan Jobling, the Study Bank Officer, on 16 July 1992, stating that the applicant was currently undertaking his fourth year of a BA Honours at Deakin University and that the course would resume in the second week of January 1993. This letter does not make any disclosure of the income position of the applicant. In or about 15 October 1992, the applicant had applied to the State Director of DEET to register as an ATAS tutor. He there stated that he believed he could make a worthwhile contribution to Koori communities in the region through ATAS while on unpaid leave approved until 18 December 1992.
In response, the Senior Executive Officer of the Human Resources Management section of DEET wrote to the applicant on 26 October 1992, granting approval to register as a tutor only for a period of his unpaid leave. He was asked to notify his local ABSTUDY Unit of any changes to his income that resulted from his work employment as a ATAS tutor.
These documents do not disclose the income position of the applicant.
I am not satisfied that Ground 3(d) (e) or (f) of the application have been made out.
Grounds (g)
This ground claims that Ms Archbold exercised her discretionary power in bad faith. The basis for this is said to be that Ms Archbold did not sign a copy of the record of the interview which she had with the applicant on 1 July 1994. This is not a matter of any substance. The typed record of the telephone conversation on 1 July was sent to the applicant on 7 July 1994, under cover of a letter which appears to have been signed by Ms Archbold. This was sufficient authentification of her version of the conversation. This ground has not been made out.
Ground 4 - Error of Law
This is a reference to the matters raised under Ground 2 which have been considered above.
Ground 5 - Decision Induced by Fraud in that misconduct charges related to fraud were considered in the decision making process.
There is nothing in the Statement of Reasons or in the Investigation Report by Ms Archbold which indicates she relied in any significant way on the existence of the previous misconduct charges or suspensions related to alleged fraud. In particular, there is no evidence that she placed any weight on the criminal charges which had been withdrawn or on the suspensions.
Ground 6
It is claimed in this ground that Ms Archbold based her decision on an incorrect statement to the effect that the applicant did not notify the ABSTUDY office of his changed income circumstances.
This is really the same complaint as was dealt with under grounds 3(b)-(f) above.
The Report of the Fraud Prevention Unit referred to in the particulars of this ground, is that dated 15 April 1993. That report, in paragraph 8, states that:
"Mr Kanak has forwarded documentation on 8/4/93 to ABSTUDY Melbourne, claiming he notified them of changes to circumstances in December 1992. He further states that his payments have not ceased. A question should be asked why it has taken some 7 payments (over 3 months) and some $2,500 to raise this issue now."
The report proceeds in paragraph 9, to discuss the alleged notification letter of December 1992. It is pointed out that ABSTUDY Melbourne had no record of the letter said to have been faxed to them in December 1992.
There is nothing in the Report of the Fraud Prevention Unit which accepts the suggestion that there was notification of the true income position within the prescribed time.
Ground 7(a)
This is an allegation that DEET indicated it would use Federal police evidence available to it in connection with making the decision to counsel which it was submitted was contrary to the law.
Although the criminal charges have been withdrawn, it does not follow that the Ms Archbold was precluded from having regard to the relevant records of DEET concerning the Federal Police investigation. It appears that the charges were withdrawn on the basis that they could not be established to the criminal standard.
I do not consider that it was necessary for DEET to make an application under the Freedom of Information Act in order to secure access to the material gathered by the Australian Federal Police as contended by the applicant. It was relevant for Ms Archbold to consider such matters because they involved a substantial overlap of fact and circumstance material to the issue before her for decision.
Ground (b)
In this ground the applicant claims that DEET's responsibility under the International Declaration of the Rights of the Child and the International Declaration on Racial Discrimination were disregarded.
The contention is that Ms Archbold did not take into account Principles 4 and 6 of the International Declaration of the Rights of the Child ("the Declaration") which is contained in Schedule 3 to the Human Rights and Equal Opportunity Commission Act 1986. The relevant provisions are:
"Principle 4
The child shall enjoy the benefits of social security. He shall be entitled to grow and develop in health; to this end, special care and protection shall be provided both to him and to his mother, including adequate pre-natal and post-natal care. The child shall have the right to adequate nutrition, housing, recreation and medical services.
Principle 6
The child, for the full and harmonious development of his personality, needs love and understanding. He shall, wherever possible, grow up in the care and under the responsibility of his parents, and, in any case, in an atmosphere of affection and of moral and material security; a child of tender years shall not, save in exceptional circumstances, be separated from his mother. Society and the public authorities shall have the duty to extend particular care to children without a family and to those without adequate means of support. Payment of State and other assistance towards the maintenance of children of large families is desirable."
The submission is that as a result of the conduct of DEET, a child of the applicant had been deprived of the rights under these clauses due to being separated from her father as a result of his economic hardship which, it is said, was largely attributable to DEET.
I am not satisfied that there was any deprivation of any rights under the Declaration. In the circumstances of this case, the Declaration was not relevant to the consideration of Ms Archbold. The question before her, in substance, related to the obtaining of double benefits contrary to the ABSTUDY guidelines and the failure to make full and timely disclosure. This has nothing to do with the child or children of the applicant.
Ground (b)
A further matter raised was that there may have been some racial discrimination in the treatment of the applicant by DEET in relation to the counselling. This was on the basis that it involved ABSTUDY which was a system of allowances directed to persons of a particular race or culture. Once again, I cannot see any indication in the history of this matter nor in the Investigation Report or Statement of Reasons by Ms Archbold which could in any way be said to evidence racial discrimination. The Report was concerned with the question whether financial disclosure had been made and not with the race or racial characteristics of the person under investigation. Accordingly, I do not consider that this ground has been made out.
Ground 8
In ground 8 it is stated that DEET did not give clear advice to the applicant as to who was the original authorized officer.
Essentially, it is said that there were two authorized officers appointed in 1993 and as a result the applicant was not provided with clear advice as to who was the original authorized officer.
Any confusion in the mind of the applicant in relation to this matter does not affect the decision of Ms Archbold.
The Act makes it necessary that different officers are appointed in respect of separate stages of disciplinary proceedings. Under s 61(2) there must be an officer authorized by the Secretary who decides whether the officer should be charged. See s 61. There then follows an inquiry "without undue delay" into the charge by the Secretary or an officer appointed for that purpose. The Act requires that the later inquiry into a charge must not be held by an officer who has furnished a report in respect of the conduct in question or by the officer who laid the charge. See s 62. The obvious purpose of this provision is to achieve an investigation untainted by any suggestion of pre-judgment.
Accordingly, the Act requires more than one authorized officer to be involved. It cannot be said, in my view, that this requirement, or any confusion in the mind of the applicant in relation to it, in any way invalidates the decision of Ms Archbold.
Conclusion
I am not satisfied that there is any basis on which to sustain the challenges made to the decision of Ms Archbold that the applicant be counselled. The applicant is no longer an officer of DEET and is not subject to the Act. Accordingly, he will not in fact be counselled.
DEET has asked for costs if it is successful. The applicant appeared in person and conducted the case with diligence and brevity. He is obviously a person of limited financial resources. I do not make any order as to costs.
My order is that the application is dismissed
I certify that this and
the preceding twenty-five (25)
pages are a true copy of the
Reasons for Judgment herein of
his Honour Justice Tamberlin.
Associate:
Date: 4 December 1995
Applicant appeared in Person Mr D Kanak
Counsel for Respondent: Miss R M Henderson
Solicitor for Respondent: Australian Government Solicitor
Mr James Lonergan
Date of Hearing: 10 November 1995
Date Judgment Delivered: 4 December 1995
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