Re Hinds and Australian National University
[2012] AATA 495
•31 July 2012
DECISION AND REASONS FOR DECISION [2012] AATA 495
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2009/5662, 2010/0111, 2010/0354
Re
LYNETTE HINDS
APPLICANT
And
AUSTRALIAN NATIONAL UNIVERSITY
RESPONDENT
DECISION
Tribunal Mr. Mark Hyman, Member
Date 31 July 2012 Place Canberra The decision under review is set aside and substituted under section 43 of the Administrative Appeals Tribunal Act 1975 (Cth).
Decision Summary
The decision under review is set aside and in its place is substituted the following.
In the email of 1 April 2008 from Professor Peter Grabosky to Ms Kathryn Leonard:
To the paragraph specified in this column ...
...the note in this column is to be appended:
The third paragraph
The Administrative Appeals Tribunal has determined that the record in this and the following paragraphs is inaccurate in dealing with a single misattribution issue when there were concerns over misattribution of authorship in respect of two documents: ‘Policing in the 21st Century: Safety and Security in the ACT – Survey Report’ (2005) and ‘Policing in the 21st Century: Final report from the Focus Groups’ (2005). The first of these was an internal document but had limited circulation beyond the ANU Project team and ACT Policing through its use in meetings with Neighbourhood Watch and community groups.
The seventh paragraph
The Administrative Appeals Tribunal has determined that the first sentence of this paragraph is inaccurate and misleading. Dr Hinds withheld one power point file from a single colleague but did not exhibit any more general attitude or behaviour involving denying her colleagues access to Project documents.
The paragraph beginning ‘Professor Grabosky at no time encouraged...’
The Administrative Appeals Tribunal has determined that in the third sentence of the paragraph the reference to an accusation of plagiarism is incomplete in not identifying the details of the accusation. The sentence should include the information that the accusation was made by Dr Fleming in respect of an academic paper authored by Dr Lyn Hinds and Dr Tina Murphy.
The paragraph beginning ‘This was a matter between Dr Hinds and Dr Fleming...’
The Administrative Appeals Tribunal has determined that the first sentence of this passage is inaccurate. Access to the PowerPoint file was sought by Professor Grabosky from Dr Hinds on behalf of Dr Fleming, and the matter involved the three of them.
The paragraph beginning ‘Professor Grabosky was always concerned...’
The Administrative Appeals Tribunal has determined that the final sentence of the paragraph is misleading, as it could be taken to be a warning generally against interaction with staff or others at the Centre of Excellence in Policing and Security. The sentence would not be misleading if the words ‘with Dr Fleming’ were inserted after ‘interaction’.
The paragraph beginning ‘The Conference in question...’
The Administrative Appeals Tribunal has determined that the final sentence of this paragraph is incomplete. The passage should include the information that Dr Hinds did not attend the conference, and that as a result no data collected during the research project were presented at the conference.
The paragraph beginning ‘It would have been inappropriate...’
The Administrative Appeals Tribunal has determined that the final sentence of this paragraph is misleading. It does not explain that the conference held at RegNet at the end of the Project was an invitation-only event for a maximum of perhaps 50 people and that the Annual Conference of the Australian and New Zealand Society of Criminology was a public conference attended by perhaps 300 people. The degree of contact to be expected between two attendees at the two events would therefore be very different.
The paragraph beginning ‘ On two separate occasions...’
The Administrative Appeals Tribunal has determined that the third and fourth sentences of this paragraph are incomplete. Dr Hinds did not simply decline the request; rather she advised Professor Grabosky that she did not hold all the material that was to be archived and was therefore unable to accede to his request.
The paragraph beginning ‘Shortly before the expiry...’
The Administrative Appeals Tribunal has determined that this paragraph is incorrect and misleading. It suggests that Dr Hinds made a conscious choice not to attend the morning tea when in practice she was not aware that the morning tea was to involve a farewell for her. The paragraph in its entirety is to be deleted.
In the email of 29 April 2008 from Professor Valerie Braithwaite to Ms Kathryn Leonard:
To the paragraph specified in this column ...
...the note in this column is to be appended:
The third paragraph
The Administrative Appeals Tribunal has determined that the first sentence of this paragraph is factually incorrect and should be deleted. The Tribunal has further determined that the fifth and sixth sentences are misleading. The invitation to the morning tea did not make it explicit that Dr Hinds was to be farewelled, and that explains her non-attendance. The two sentences are to be deleted.
The fourth paragraph
The Administrative Appeals Tribunal has determined that the fourth sentence of the paragraph is inaccurate. Dr Hinds’s concern was not with her university status but with continuing access to university services, specifically library and computer services. The interruption of computer services for a week without warning was a source of particular concern.
The fifth paragraph
The Administrative Appeals Tribunal has determined that this paragraph is misleading. Despite Professor Grabosky’s recommendation, Griffith University made no offer of appointment to Dr Hinds.
The sixth and seventh paragraphs
The Administrative Appeals Tribunal has determined that the sixth and seventh paragraphs of the email are incorrect and misleading. Two bonus proposals were put forward. Professor Grabosky and Dr Fleming proposed a bonus to be awarded when research personnel published papers. Professor Braithwaite opposed this proposal and it did not proceed. A second proposal was made by Professor Grabosky for a bonus to be paid to Dr Hinds in order to retain her on staff until the Linkage Project was complete. Professor Braithwaite initially opposed this proposal but later relented and bonus payments were made to Dr Hinds. There is no connection between those bonus payments or any other bonus proposals and the possible promotion of Dr Hinds to a Level C position.
The eighth paragraph
The Administrative Appeals Tribunal has determined that this paragraph is misleading. Despite Professor Braithwaite’s opposition to amendments to the review materials on the RegNet website, Dr Fleming’s CV was amended, without Professor Braithwaite’s knowledge or approval.
The paragraph beginning ‘The initial complaint concerned...’
The Administrative Appeals Tribunal has determined that this paragraph is incorrect. The complaint related not to a report to the Australian Research Council, but to authorship of a research report entitled ‘Policing in the 21st Century: Safety and Security in the ACT – Survey Report’ (2005), which was cited in the 2006 Progress Report to the Australian Research Council.
The paragraph beginning ‘A report of a focus group...’
The Administrative Appeals Tribunal has determined that this paragraph is incomplete in not specifying the report that was the subject of the dispute. The report about which attribution of authorship was in dispute was ‘Policing in the 21st Century: Final report from the Focus Groups’ (2005).
The paragraph beginning ‘Three approaches seemed to be in order...’
The Administrative Appeals Tribunal has determined that this paragraph is misleading, in that no approach was made by Dr Hinds to the University counsellor. Rather Dr Hinds asked Professor Grabosky to arrange a formal mediation process.
The paragraph beginning ‘These materials were passed on...’
The Administrative Appeals Tribunal has determined that the eighth sentence of this paragraph is misleading. Dr Hinds’s wish to see amendments to Dr Fleming’s CV is limited to the material presented on the RegNet website in the context of the review of RegNet by the ANU’s Research School of Social Sciences.
The paragraph beginning ‘My argument for not doing so...’
The Administrative Appeals Tribunal has determined that the first sentence of the paragraph is incorrect. Professor Braithwaite had been advised of an alleged misattribution in Dr Fleming’s CV on the RegNet website and therefore had evidence of such misattributions, although she may nevertheless not have regarded it as appropriate to make any amendment to the CV.
………….. [sgd]…………………………………..
Mr. Mark Hyman, Member
CATCHWORDS
FREEDOM OF INFORMATION – amendment and annotation of personal records – amendment of opinions – meaning of bias – whether the document is incomplete, incorrect, out of date or misleading – decision set aside and substituted
PRACTICE AND PROCEDURE – motion for dismissal as abuse of process – existence of collateral purpose – whether collateral purpose was predominant purpose – motion for dismissal denied
LEGISLATION
Administrative Appeals Tribunal Act 1975, ss 2, 33, 37, 42B
Administrative Decisions (Judicial Review) Act1977, s 5(2)(a)
Freedom of Information Act 1982 ss 3, 4, 48, 49, 50, 51, 55, 61, 66Freedom of Information Amendment (Reform) Act 2010
CASES
Attorney-General v Wentworth (1988) 14 NSWLR 481
Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd v Australia and New Zealand Banking Group Ltd (2000) 205 CLR 337
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
In re Majory [1955] Ch 600
Minister for Immigration v SZMDS (2010) 240 CLR 611
Re Corbett and Australian Federal Police [1986] AAT No 2860 (2 September 1986)
Re Hinds and Australian National University [2011] AATA 261
Re Hinds and Australian National University [2011] AATA 772
Re Leverett and Australian Telecommunications Commission [1985] No N85/75 (2 September 1985)
Re Williams and Australian Electoral Commission [1995] AATA 160; 21 AAR 467
RR v Department of Army (1980) 482 Fed Supp 770
WaterConservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492Williams v Spautz (1992) 174 CLR 509
SECONDARY MATERIALS
Senate Standing Committee on Legal and Constitutional Affairs, Report on the Operation and Administration of Freedom of Information Legislation (1987)
REASONS FOR DECISION
Mr. Mark Hyman, Member
INTRODUCTION
The applicant, Dr Hinds, worked at the Australian National University (ANU) as a member of the research staff on sociological aspects of policing, over the period 2005-2008. In 2006 and 2007 she found herself in conflict with other members of staff and in 2008 left the employ of the ANU.
In 2008 Dr Hinds began a grievance process against her former employer, on the basis that her work had been appropriated by others, that she had been bullied and that senior staff had not dealt appropriately with her complaints. The ANU found there was no case to answer.
Dr Hinds seeks amendment to three documents under the Freedom of Information Act 1982 (Cth) (‘the FOI Act’):
(a)In a letter to the ANU dated 11 August 2009, Dr Hinds requested amendment of the ‘Australian Research Council (ARC) Final Report for Linkage Project’ (‘the ARC report’). This request was denied by the ANU’s FOI officer in a letter dated 11 September 2009, and then again in a subsequent internal review letter dated 9 November 2009. This is application 2009/5662, lodged on 29 November 2009.
(b)In letters to the ANU dated 6 July 2009 and 18 November 2009, Dr Hinds requested amendments to an email generated in the course of her grievance process, from Professor Peter Grabosky to Ms Kathryn Leonard (an ANU employee), dated 1 May 2008 (‘the Grabosky email’). ANU refused to amend the email by letter dated 10 December 2009, and this decision was affirmed by internal review, in a letter dated 14 January 2010. This email is the subject of application 2010/0111, lodged with the AAT on 11 January 2010.
(c)In letters to the ANU dated 10 July 2009 and 30 September 2009, Dr Hinds requested amendment to another email generated in the course of her grievance process, from Professor Valerie Braithwaite to Ms Kathryn Leonard, dated 29 April 2008 (‘the Braithwaite email’). The ANU refused to amend the document in a letter dated 29 October 2009, and this initial determination was affirmed by internal review dated 22 December 2009. This email is the subject of application 2010/0354, lodged with the AAT on 27 January 2010.
Two earlier hearings have resulted in some matters being resolved. A preliminary jurisdictional hearing on 28 March 2011 led to an interlocutory decision dated 19 April 2011,[1] (in which I determined that the three documents contained personal information about Dr Hinds and were amenable to the processes in Part V of the FOI Act).
[1] Re Hinds and Australian National University [2011] AATA 261
A second hearing was held on 29 August 2011 aimed principally at dealing with the proposals to amend the ARC report, but also dealing with jurisdictional matters relating to the proposals to amend the Grabosky and Braithwaite emails. Concessions by the ANU led to resolution of all but one proposed amendment to the ARC report; and in a further decision dated 1 November 2011[2] following the hearing I determined that the remaining proposed amendment to the ARC report fell outside the scheme of the Act. In that decision, I also determined that all of the proposed amendments to the Grabosky and Braithwaite emails fell within the scope of the Act.
[2] Re Hinds and Australian National University [2011] AATA 772
The above decisions settled matter 2009/5662, leaving the other two matters to be decided.
ISSUES
This decision deals with the proposals to amend the two emails, i.e. applications 2010/0111 and 2010/0354. The issues before me now, for each passage to which amendment is proposed, are:
(a)is the passage incomplete, incorrect, out of date or misleading; and
(b)if so, what amendment, if any, should be made.
The ANU decided not to amend the two emails because Dr Hinds, in her application and subsequent supporting documentation, had not specified with sufficient precision what she was seeking in each amendment. Dr Hinds’ application to the AAT was similarly undetailed and included the documentation considered during the previous reviews. The FOI Act requires that an application specify the amendments sought, but does not spell out how far specification must go, nor what the consequences are if an application fails to do so. There is no provision for an incomplete or imperfect application to be dismissed, nor do the provisions of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) relating to dismissal of a matter fit the circumstances. Accordingly, I directed Dr Hinds to supply specific textual amendment for each of her amendment proposals.
THE HEARING
The matter was heard over three days, on 5-6 February and 16 April 2012. The applicant appeared in person. Mr Allan Anforth represented the respondent, assisted by Mr Timothy Neal, a solicitor employed by the ANU.
The ANU submitted documents under section 37 of the AAT Act (‘the T-documents’) in relation to the amendments to the ARC report. Dr Hinds submitted an extensive bundle of documents in support of her statement of facts, issues and contentions, comprising reports, emails, correspondence and statements (A1-A75). Subsequently, in the course of the hearing, Dr Hinds submitted further documents of broadly the same kind (H1-H5). At the hearing, the ANU tendered emails between Dr Hinds and Professor Braithwaite, and a letter from Dr Hinds to the Australian and New Zealand Society of Criminology dated 18 August 2008, with attachments (R1-R3).
Professors Grabosky and Braithwaite gave evidence at the hearing. Each was cross-examined by Dr Hinds. Dr Hinds proposed calling nine witnesses to support her case, but as a result of exchanges with the Tribunal over those witnesses and the potential relevance of their evidence, ultimately decided not to call any witnesses. How Dr Hinds came to that decision goes to the heart of questions arising throughout the hearing relating to the relevance of evidence and to abuse of process. It is as well to outline the key points at this stage.
At the end of the day’s hearing on 6 February 2012, when Dr Hinds had completed cross-examination of Professor Grabosky but was only part way through cross-examination of Professor Braithwaite, the ANU expressed concern that it had little or no sense of the evidence likely to be led by the applicant once cross-examination of Professors Grabosky and Braithwaite was complete.
I directed that the applicant should provide a list of witnesses and an indication of the relevance of the evidence expected to be adduced from each. In doing so, I intended to address three concerns:
(a)first, with nine witnesses to be called, it was reasonable that the ANU should have some sense of the case to which it was expected to respond. The Tribunal’s General Practice Direction requires of represented parties that they lodge witness statements at least 14 days before the second conference. Dr Hinds was unrepresented, and so not subject to the Practice Direction, but with nine proposed witnesses it was reasonable that the ANU should receive, at least, an outline of evidence.;
(b)second, although the Tribunal is not bound by the rules of evidence (section 33 of the AAT Act), the evidence that the Tribunal can take into account is limited to that which is relevant. Indeed, a decision may be set aside if a decision-maker takes into account matters that are not relevant (see for example Administrative Decisions (Judicial Review) Act 1977, s 5(2)(a); Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492). Relevance is also part of meeting the objective set out in section 2 of the AAT Act that the processes of the Tribunal should be ‘fair, just, economical, informal, and quick’. Relevance goes in particular to the efficient use of public resources and the time of all concerned. The ambit of Part V of the FOI Act is distinctly narrow, and Dr Hinds had shown a tendency in the hearing to pursue lines of evidence irrelevant to the matters to be decided. I intended that an outline of the evidence to be led from each witness would help illuminate the likelihood of the evidence proving to be relevant or otherwise;
(c)third, the respondent expressed concern on more than one occasion that Dr Hinds was engaging in an attempt to re-agitate the matters dealt with in her grievance process (indeed at one stage the respondent submitted that the matter should be dismissed for abuse of process, a submission dealt with later in this decision). Dr Hinds is entitled under the FOI Act to seek amendments to the public record of information that is personal to her, and the documents in question were created in the context of her grievance. It is therefore inevitable that these proceedings should cover or refer to some of the same material as the grievance process. The outline of evidence was intended to facilitate a distinction between attempts to use the Tribunal’s processes for collateral purposes and the legitimate process of review provided for by the FOI and AAT Acts.
Dr Hinds complied with the direction. The outline of evidence submitted, however, was not sufficiently detailed as to provide a satisfactory basis for a decision on the relevance of the evidence likely to come forward from the proposed witnesses. Accordingly, on 5 March 2012, a telephone directions hearing explored the evidence likely to come forward from each witness. On the basis of Dr Hinds’s responses, I directed that three of Dr Hinds’s nine witnesses not be called, and that witness statements be obtained from the other six. The three witnesses excluded from the process were Professor John Wellard, an ANU employee who could give evidence on the ANU’s academic misconduct policies; Dr Margaret Sheil, Chief Executive Officer of the Australian Research Council, who could give evidence on that organisation’s approach to attribution of authorship of scholarly papers; and Ms Heather McLeod, an ANU employee who could give evidence on the ANU’s human resources policies. For reasons explained later within this decision, I did not regard such evidence as likely to help decide the matters at issue.
I directed that witness statements be obtained from the remaining witnesses not only for the reasons given above, but also because it was necessary both for efficiency and to avoid prejudicing the interests of the ANU that there be a clear indication of what each witness could relevantly contribute to the hearing process.
Dr Hinds subsequently advised that, as she had been denied three of her witnesses, she would now not call any of the other six. When the hearing resumed on 16 April, Dr Hinds referred during the process of questioning Professor Braithwaite to a number of other matters on which Ms McLeod, one of the witnesses originally denied her, could give evidence. I offered Dr Hinds the opportunity to make submissions regarding the relevance of the witness to the matters at issue, noting that I might reconsider the decision that the witness should not be called. Dr Hinds declined to take advantage of that offer, saying that she no longer had any confidence in the Tribunal process.[3]
[3] Transcript, 16 April 2012, p 172.
The Motion for Abuse of Process
Both at the start of proceedings and part way through the examination of Professor Grabosky the ANU contended that Dr Hinds had brought the proceedings in an attempt to re-enliven her grievance process, and that they were therefore an abuse of process. During the cross-examination of Professor Grabosky the ANU moved for dismissal of the application.
Abuse of process means that the action has been brought for a purpose for which the process at hand was not intended. The ANU presumably took the view that if found to be an abuse of process, the application could be dismissed as frivolous and vexatious under s 42B of the AAT Act.
The High Court explored the parameters of abuse of process in Williams v Spautz (1992) 174 CLR 509. The essence of the doctrine was endorsed by the majority (Mason CJ, Dawson, Toohey and McHugh JJ) in the following terms (at 528, Brennan J concurring at 536), quoting Evershed LJ in In re Majory [1955] Ch 600 (at 623-4):
... that court proceedings may not be used or threatened for the purpose of obtaining for the person so using or threatening them some collateral advantage to himself, and not for the purpose for which such proceedings are properly designed and exist; and a party
so using or threatening proceedings will be liable to be held guilty of abusing the process of the court and therefore disqualified from invoking the powers of the court by proceedings he has abused.
The majority also considered and rejected the notion that abuse of process occurs only where the sole purpose in bringing an action is collateral to the process, and concluded rather that for abuse of process to be found, it is sufficient that that the collateral purpose is the predominant purpose. The onus of satisfying the court that there has been abuse of process lies on the party alleging the abuse; and the court should exercise its discretion to grant a permanent stay (or, by extension in this case, to dismiss the application) only in exceptional circumstances (at 529).
The power to dismiss an application for abuse of process is an inherent power of superior courts. In Re Williams and Australian Electoral Commission [1995] AATA 160; 21 AAR 467, the Tribunal, three Federal Court judges sitting as Presidential Members, noted (at [34]) that:
It is questionable whether the AAT, being a statutory tribunal outside the court system, has inherent powers to control its processes similar to those which are possessed by the courts. We do not seek to address that issue in this case. It is unnecessary to do so in our view, for we consider that the situation in any event falls within the provisions of s 42B. It does so not only because of the futility of the proceedings, but also because they are being pursued by the applicant for a collateral purpose – a purpose which is irrelevant to any issue which could legitimately be raised in these proceedings.
It is evident that more than one factor – both futility and abuse of process – came into play to allow the Tribunal in that case to dismiss the matter under s 42B. The Tribunal also noted (at [39]) that ‘the power to dismiss under this head [s 42B] must be exercised cautiously and sparingly’. In Attorney-General v Wentworth (1988) 14 NSWLR 481 Roden J, dealing with dismissal by a court, suggested (at 491) that matters could be regarded as vexatious, among other reasons, if ‘... they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise’.
Turning then to the present application, Dr Hinds is entitled under the FOI Act to seek amendments to the two emails. Those two emails were part of her grievance process, and seeking evidence as to their validity as a record necessarily requires some engagement with facts dealt with in that process. Clearly Dr Hinds retains an acute sense of having been wronged in her time at the ANU and, from time to time, her cross-examination of the witnesses went beyond the accuracy of the record and into the grievance itself. Nevertheless, I am not persuaded that Dr Hinds brought her case predominantly to pursue her grievance: her lines of cross-examination focused for the most part on matters that were sufficiently directly relevant to the facts at issue to persuade me that she brought the proceedings in good faith. Further, some of her proposals for amendment had substance and merit. I therefore denied the ANU’s motion for dismissal.
LEGISLATIVE SCHEME
The FOI Act underwent major reform through passage of the Freedom of Information Amendment (Reform) Act 2010 (Cth). The amendments took effect on 1 November 2010. Dr Hinds’s applications preceded that date, and are therefore subject to the Act as it stood before those amendments.
Part V of the Act provides for people to seek amendment or annotation of personal information held by government entities and other bodies covered by the Act (of which the ANU is one).
‘Personal information’ is defined in section 4 of the FOI Act as ‘information or an opinion ... whether true or not, ... about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’. Under section 48, where an agency holds a document, the person concerned has lawfully gained access to it and claims that it contains personal information about that person which is incomplete, incorrect, out of date or misleading, and it has been used, is being used or is available for use for an administrative purpose, the person may apply to the agency to amend or annotate the information. Section 49 specifies the requirements for an application for amendment of personal records, including that the application must specify the amendment requested.
Section 50 sets out the process to be followed by an agency in deciding whether to agree to an amendment sought by an applicant.
(1) Subject to section 51C, where the agency or Minister to whom such an application is made is satisfied that:
(a)the record of personal information to which the request relates is contained in a document of the agency or an official document of the Minister; and
(b)the information is incomplete, incorrect, out of date or misleading; and
(c)the information has been used, is being used or is available for use by the agency or the Minister for an administrative purpose;
the agency or Minister may amend the record of information.
(2) The agency or Minister may make the amendment:
(a)by altering the document or the official document concerned to make the information complete, correct, up to date or not misleading; or
(b)by adding to that document or official document a note:
(i) specifying the respects in which the agency or Minister is satisfied that the information is incomplete, incorrect, out of date or misleading; and
(ii) in a case where the agency or Minister is satisfied that the information is out of date - setting out such information as is required to bring the information up to date.
(3) To the extent that it is practicable to do so, the agency or Minister must, when making an amendment under paragraph (2)(a), ensure that the record of information is amended in a way that does not obliterate the text of the record as it existed prior to the amendment.
The reference to section 51C in subsection 50(1) is not relevant for present purposes.
On review, the powers conferred by the FOI Act in respect of matters covered by the review rest with the Tribunal. In the context of the present matter, I have already ruled that the information in the emails to which amendment is sought is personal information as set out in section 4 and that the documents were lawfully obtained. I also ruled that the proposals to amend the two emails meet paragraphs (a) and (c) of section 50(1): the emails were documents of the ANU and both had been used for an administrative purpose, namely in the grievance process of the ANU. For section 50(1), then, the remaining test is whether, in each case, the Tribunal is satisfied that ‘the information is incomplete, incorrect, out of date or misleading’. If so, then a discretion to amend the information is enlivened.
The question immediately arises as to what considerations condition the exercise of that discretion. Once it has been established that the official record is invalid in some way it seems clear that an amendment should be made either to correct it or to note the error unless there are particular and persuasive reasons to the contrary. To proceed otherwise, especially given the option in section 50(2)(b) of appending a note specifying the nature of the error, would appear to be condoning retention on the official record of continuing inaccuracy about a particular individual. It is difficult to believe that the legislature’s intent in Part V of the FOI Act was to leave diagnosed errors in the record. That is confirmed in that the relevant part of the object of the FOI Act set out in section 3 is expressed in unqualified terms: ‘creating a right to bring about the amendment of records containing personal information that is incomplete, incorrect, out of date or misleading’.
Opinion and bias
Section 55(6)(c) provides that this Tribunal, in reviewing a decision refusing to amend a record of personal information, must not require an amendment to a record of opinion unless that opinion was based on a mistake of fact or ‘the author of the opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion’.
Neither ‘opinion’ nor ’bias’ is defined in the FOI Act. The Oxford English Dictionary lists a number of meanings for ‘opinion’[4], of which those relevant for the purposes of section 55(6)(c) would appear to be ‘a view held about a particular issue; a judgment formed or a conclusion reached’; ‘what or how one thinks about something; judgment or belief’’; ‘what one thinks of a person or thing’; and ‘professional advice’. These definitions go beyond the concept of opinion as usually applied in the law of evidence, where it is taken to mean an inference drawn from observed facts.
[4] "opinion, n.". OED Online. June 2012. Oxford University Press. 30 July 2012 <>
I see no reason to construe the term narrowly. The intent of Part V of the FOI Act, as reflected in the relevant object in section 3, is to allow members of the community to amend personal information about themselves where that information displays one of the specified forms of invalidity. That intent should be interpreted generously. It should extend to broad views about a person, where it can be shown that those views were without a proper foundation.
‘Bias’ is defined in the Oxford English Dictionary to mean ‘an inclination, leaning, tendency, bent; ... predisposition towards; predilection; prejudice’[5]. In a submission dated 20 April 2012, the respondent addressed the meaning of bias in the context of section 55(6)(c). The respondent points out that the case law is not rich with examples addressing the meaning of bias in the specific context of section 55(6)(c). There is on the other hand an extensive body of case law on bias in decision-makers, especially in courts and tribunals, but extending to administrative decision-makers, including for example Ministers.
[5] "bias, v.". OED Online. June 2012. Oxford University Press. 30 July 2012 <>
The meaning of bias for a decision-maker is well established. There is an expectation that a decision-maker, especially but not only a tribunal member or judge, will come to a decision with an open mind, weighing up the relevant material and considerations and arriving at a decision unswayed by prejudice and predilection. A decision-maker who does not will have exhibited bias, and a decision affected by bias can be set aside by a court applying the rules of procedural fairness. It is not immediately apparent that the same understanding applies in circumstances such as the present, where Professors Grabosky and Braithwaite were not themselves decision-makers in the grievance process, but rather providing an account of past events to inform a decision by another. The respondent’s submission took me, among other cases, to Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149, a High Court case in which the challenge to a Minister’s decision was based on the interests of two officers of his department who had advised him on the matter. That case concerned whether the resulting decision could be set aside for bias, and the usual test of apprehended bias in such cases, articulated in this and in many others, is whether ‘a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide’ (Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd v Australia and New Zealand Banking Group Ltd (2000) 205 CLR 337, at 344 (Gleeson CJ, McHugh, Gummow and Hayne JJ). The case law also includes considerable debate about the extent to which the above standard extends to purely administrative rather than judicial and quasi-judicial decision-makers.
It is apparent that the concept of open-mindedness in this discussion sits uncomfortably with the role of people contributing to another’s decision in a way that does not require of them at any point that they adopt an independent position. It may in many cases be the very point of the material they contribute that it provides, say, an appraisal of another person’s work performance, or an assessment of their strengths and weaknesses in some respect. To say that such an assessment or appraisal should be open-minded would be at odds with the task described.
The provision in question, section 55(6)(c), was introduced by the Freedom of Information Amendment Bill 1991. The Explanatory Memorandum to the Bill gives no explanation of the legislature’s intent other than that it is to give effect to a recommendation of the Senate Standing Committee on Legal and Constitutional Affairs 1987 Report on the Operation and Administration of Freedom of Information Legislation. That Report, at [15.45] on p 226, recommends the introduction of what became section 55(6)(c), in terms not materially different from those of that paragraph. The recommended measure is preceded by the sentence: ‘Opinions should not be open to review solely because it can be shown that another qualified person would have reached a different opinion.’ The Report drew on some of the early cases, preceding the introduction of section 55(6)(c), where this Tribunal canvassed the question of whether amendments under Part V could be made to opinions. In Re Corbett and Australian Federal Police [1986] AAT No 2860 (2 September 1986) the Tribunal reviewed the cases, including a case under the US Privacy Act, RR v Department of Army (1980) 482 Fed Supp 770. The last refers to a reliance on ‘insidious rumours and unreliable subjective opinions’ as providing a basis for amending an opinion (Gesell J, at 774). In Re Leverett and Australian Telecommunications Commission [1985] No N85/75 (2 September 1985) the Tribunal added ‘ill-will’, ‘lack of balance’ and ‘the existence of such a trivial factual substratum as to render the opinion formed dangerous to rely upon and likely to result in error’.
These discussions suggest that when contributing to the official record an opinion that reflects on another, the person giving the opinion must set aside personal histories, allegiances and antipathies, ill-will and rumour, and present a fair-minded, sober and balanced view.
It is perhaps inevitable when a person brings a grievance with an employer that those called upon to recount relevant parts of the aggrieved person’s employment history may be tempted to be defensive and self-serving; to present events, and especially their own involvement, in the best possible light. There is nevertheless an implied obligation in section 55(6)(c) that people should resist that temptation and do their best to ensure that the public record is accurate, fair and balanced.
Onus and satisfaction
I have already noted[6] that the requirement of s 61 of the FOI Act that the respondent has the onus in establishing that the decision under review was justified does not apply to applications under Part V. No formal onus lies on either party in these proceedings. That said, the Tribunal must be satisfied of various matters under section 50(1) and, where relevant, under section 55(6)(c), before the discretion to make an amendment is enlivened. That state of satisfaction must arise on some reasonable basis (Minister for Immigration v SZMDS (2010) 240 CLR 611, Heydon, Crennan and Bell JJ). The implication is that the existing record becomes the default option: unless the applicant introduces evidence or argument to demonstrate the existence of some form of invalidity, it will not be possible to reach the state of satisfaction required before an amendment can be considered. It is therefore in practice up to the applicant to make the case for each instance of invalidity.
[6] Re Hinds and Australian National University [2011] AATA 772
THE FACTS
Most of the facts underlying the decision are not at issue; although the terms in which the facts were presented or referred to were frequently the subject of dispute. When Professors Grabosky and Braithwaite came to draft the emails that are the subject of this decision, they wrote from the perspective of April or May 2008 looking back on events of the preceding three years or more. Some matters became clearer only in the current review through the hearing process, and a number of issues arose in the hearing regarding the timing of various occurrences. The following sequence of events was established.
The events took place during Dr Hinds’s employment at the Regulatory Institutions Network (‘RegNet’), which at the time formed part of the ANU’s Research School of Social Sciences. Dr Jenny Fleming was employed in RegNet from 2003 as a member of the research team, working on the ARC-funded project known as the Linkage Project (T8) (in the papers Dr Fleming is variously referred to as ‘Dr Fleming’ and ‘Professor Fleming’; for reasons of consistency this decision refers to her throughout as ‘Dr Fleming’). The project dealt with social aspects of policing and was conducted with the Australian Federal Police (AFP) as the industry partner. Professor Grabosky was Dr Fleming’s (and later also Dr Hinds’s) supervisor and a Co-Chief Investigator on the Linkage Project (with two others).
In January 2005 Dr Hinds joined the ANU, working as a researcher in RegNet on the ARC Linkage Project (T8, A75). During 2005 Drs Hinds and Fleming produced a survey report, ‘Policing in the 21st Century: Safety and Security in the ACT – Survey Report’ (‘the Safety and Security report’) (I make no finding with regards to authorship credit for this and other reports and no conclusion should be inferred from the order in which the authors are mentioned). In 2005 Drs Hinds and Fleming also produced a report of some of the project’s work with focus groups in the community, entitled Policing in the 21st Century – Final Report from the Focus Groups (‘the 2005 Focus Groups report’).
The Progress Report to the ARC on the Linkage Project for the calendar year 2005, submitted in February 2006, included a listing of papers and reports coming from the project. It cited the Safety and Security and 2005 Focus Groups reports, with Dr Fleming as sole author of both (T6 of 2009/5662). Dr Hinds raised with Dr Fleming in February 2006 that she had not been listed as an author of the Safety and Security report in the ARC Progress Report (A11, A12).
In June 2006 the RegNet website included Dr Fleming’s CV as part of the material lodged there in the context of a review of RegNet by the Research School of Social Sciences; on 23 June Dr Hinds discovered that the CV included a listing of the Safety and Security report with Dr Fleming as sole author; and a Focus Groups report dated 2004, again with Dr Fleming as sole author (A9).
Dr Fleming left ANU in June 2006 and took up academic employment elsewhere (T8). On 6 July 2006 Dr Fleming conceded in an email to Dr Hinds that the Safety and Security report was written with Dr Hinds and should acknowledge her contribution through joint authorship credit (A12).
In August 2006 Professor Braithwaite became head of RegNet.
On 18 September 2006 Professor Grabosky wrote to Dr Hinds acknowledging that authorship of the Safety and Security report should be credited to Dr Hinds and Dr Fleming, in that order (this was in the context of the citing of the report in the Progress Report to the ARC for 2005). On 27 February 2007 Dr Hinds discovered that Dr Fleming’s CV on the RegNet website now cited the Safety and Security report as ‘(with Lyn Hinds)’ and the date of the cited Focus Groups report was listed as 2005 (with authorship credited to Dr Fleming alone and the title unchanged from that listed on 23 June) (A39). Dr Hinds pointed out these changes by email to Professor Braithwaite on 27 February 2007 (A40) and again on 3 April 2007 (A43)
On 12 June 2007 in an email to Dr Hinds and a colleague, Dr Tina Murphy, Dr Fleming suggested she should have been given authorship credit in a paper by Drs Hinds and Murphy appearing in the Australian and New Zealand Journal of Criminology (A46). The issue was investigated and Professor Braithwaite concluded that it was not of substance (A52).
During 2007 RegNet conducted a recruitment round; Dr Hinds applied for a position but was unsuccessful. In September 2007 both Dr Hinds and Dr Fleming attended the Annual Conference of the Australian and New Zealand Society of Criminology in Adelaide. In December 2007 a conference was held in Canberra at which the results of the Linkage Project were presented; Dr Hinds did not attend.
In January 2008 Dr Hinds’s contract with the ANU came to an end and she left the University. On 18 March 2008 Dr Hinds lodged a formal grievance with the ANU (A58). Ms Kathryn Leonard, an ANU human resources officer, wrote to Professor Grabosky on 22 April setting out Dr Hinds’s concerns and requesting a response. She wrote in similar terms to Professor Braithwaite on 23 April. Professor Grabosky replied on 1 May 2008 (T8) and Professor Braithwaite on 29 April (T7).
CONSIDERATION
Dr Hinds proposed 38 amendments to the Grabosky email and 33 to the Braithwaite email. These have been numbered G1-G38 and B1–B33 respectively for ease of reference.
Whether any of the information to which amendment is sought is incorrect, incomplete, out of date or misleading depends in part on the context in which that information appears. Three aspects of context may be significant here:
(a)first, both emails were generated as part of Dr Hinds’s grievance process, and that in itself establishes a context for the information;
(b)second, each passage to which Dr Hinds seeks amendment is part of a larger text, which will from time to time affect how the particular passage is to be understood; and
(c)third, the emails were written as a response to a series of issues raised by Ms Leonard. The nature and phrasing of those issues may influence how the passage in question should be read. This point has particular force because each author interpolated the issues raised by Ms Leonard into the email response, so that the reader sees not only the words of Professors Grabosky and Braithwaite, but also those of Ms Leonard to which they are responding.
Where necessary or relevant, the issues to which each passage is a response, and the larger passage within which each amendment has been sought, have been set out in the decision. Text which Dr Hinds sought to amend is underlined, and the number of the amendment is where necessary identified immediately after the relevant underlined text.
In each case, the author began the email with some introductory text which does not purport to respond to the particulars of Ms Leonard’s text.
A number of actions, purportedly taken by Dr Fleming, lay at the centre of Dr Hinds’s grievance process. Dr Hinds accused Dr Fleming of plagiarising her work and of bullying her. She also said that other staff at ANU – specifically Professors Grabosky and Braithwaite – responded inadequately to her complaints about Dr Fleming, indeed so inadequately that their response was a major focus in her grievance process. This decision is not concerned with any of those matters in themselves, but inevitably touches on them where the emails deal with them.
In that process it is inevitable that this decision will make reference to Dr Fleming. Dr Fleming was not called as a witness; she has had no opportunity of answering any of the matters raised about her; her only opportunity of giving her side of any issue is in the various papers – emails, letters, an affidavit – forming part of the evidence or prepared before the hearing; and as she is neither a party nor a witness there is no engagement of the requirements of procedural fairness. It is therefore essential to state clearly that this decision includes no finding, explicit or implicit, about any of Dr Hinds’s accusations against or comments on Dr Fleming, or indeed about any of Dr Fleming’s behaviour. The sole concern of this decision is the integrity of the two emails as part of the public record.
The Grabosky Email
General introduction
Professor Grabosky’s email begins with a paragraph, under the heading ‘General background’, to which Dr Hinds seeks two amendments. The paragraph is as follows (here and elsewhere Professor Grabosky, despite being the author of the email, identifies himself in the third person):
At the time of Professor Fleming’s departure in June 2006, Professor Grabosky asked Dr Hinds to assume day-to-day oversight responsibility for the Project, which she did (subject to the exceptions noted below) until the expiry of her contract in January 2008. [G1]
Dr Hinds contended that the use of the phrase ‘day-to-day oversight’ was misleading because it implied a lower level of responsibility than that borne by Dr Fleming, when in practice Dr Fleming, at her departure, passed her responsibilities entirely to Dr Hinds. The latter was acknowledged by Professor Grabosky under cross-examination and supported by Professor Braithwaite’s letter (A36). Dr Hinds also contended that the only responsibility connected with the Project that she did not in practice assume was that related to the end of project conference. For that reason, the use of the plural ‘exceptions’ was misleading. Proposed amendment G1 was to replace ‘day-to-day oversight’ with ‘management’, and the second underlined phrase with the phrase ‘except for preparation for the end of project conference’.
Professor Grabosky said that Dr Hinds did not take on the following tasks at the end of the Project:
(a)organising the end-of-project conference;
(b)archiving the project data; and
(c)lodging the final report.
Dr Hinds acknowledged the first of these but contested the other two. The archiving of the project data is itself the subject of proposed amendment G36, considered later, where Dr Hinds argued that she could not archive the data because she did not hold all the relevant materials. Professor Grabosky thought she could have obtained access to the data and should have undertaken the archiving. Later in evidence (Transcript, 7 February 2012, pp 37-8) Professor Grabosky noted that earlier in the project Dr Fleming had organised a small-scale workshop, and that similar responsibilities had not been carried by Dr Hinds. But according to his evidence this was a one-off event that fell to Dr Fleming, whereas no similar event came Dr Hinds’s way. This difference did not represent a difference of ongoing responsibility.
I am not satisfied that the phrase ‘day-to-day oversight’ is inaccurate or misleading. There is at best a fine distinction between that and Dr Hinds’s preferred word ‘management’, and I am unpersuaded that a reader would get the wrong impression from Professor Grabosky’s words. Nor am I persuaded that the use of the plural in ‘exceptions’ is inaccurate or likely to mislead a reader. The phrase is a general one and refers the reader to the material that follows: to the extent that exceptions are identified, the reader can come to the appropriate conclusions. I am not satisfied that the passage is incomplete, incorrect, out of date or misleading.
Attribution of authorship
The next passage to which amendment is sought (amendments G2 and G3) follows immediately. Under the heading ‘Attribution of authorship’ Professor Grabosky said:
Professor Grabosky recalls Dr Hinds calling this matter to his attention in mid-2006, around the time of Dr Fleming’s departure to take up a chair at the University of Tasmania.[G2] Prior to that time, Professor Grabosky cannot recall any concerns expressed by Dr Hinds concerning Dr Fleming’s conduct.
The misattribution of authorship of concern to Dr Hinds refers to an internal Project document that, [G3] to the best of Professor Grabosky’s knowledge, was never circulated beyond the ANU Project team and ACT Policing (ie internally). [G3] Professor Grabosky recalls that the actual document in fact bore no authorship credits.
The text refers to a single, unnamed and unspecified document which was the subject of the attribution dispute. Dr Hinds contended that the passage quoted is misleading, incomplete and inaccurate in two places for four reasons:
(a)Dr Hinds alerted Professor Grabosky to two documents with disputed authorship, not one;
(b)the Professor was alerted to the first document in dispute in February 2006, not mid-2006;
(c)the document was a public document not an internal document; and
(d)the text was incomplete or inaccurate if the titles of the documents were not identified.
Dr Hinds proposed amendments adjusting each of those aspects of the text. The two documents, to which a number of proposed amendments below refer, were prepared in the course of the Project: the first – that claimed to have been brought to Professor Grabosky’s attention in February 2006 – is the Safety and Security report; the second is the 2005 Focus Groups report. Both are dated 2005. Under cross-examination, Professor Grabosky stood by his recollection that the issue first arose in mid-2006, and that it concerned a single document. He did not dispute the identity of the Safety and Security report when put to him, although he said he did not remember its title (the title is in fact specifically referred to later in the email in Ms Leonard’s text). He remembered a further document reporting on work with focus groups, but remembered it as a 2004 report by Dr Fleming, a report which contained material of considerable sensitivity to the AFP. Professor Grabosky also acknowledged, in the 2006 email, that it was clear that Dr Hinds had already raised matters of authorship and attribution direct with Dr Fleming by the time she raised it with him.
Dr Hinds was unable to offer evidence that she alerted Professor Grabosky to a claimed misattribution of authorship of the Safety and Security report in February 2006, and I am not satisfied that that aspect of the text is inaccurate. The evidence does show, however, that she had put both claims of misattribution before Professor Grabosky in mid-2006. An email from Dr Hinds to Dr Fleming dated 6 July 2006 (A11) mentioned both documents and the attribution issues with regard to each, and that email was copied to Professor Grabosky. That email also appears as an attachment – indeed the very first attachment – to Professor Grabosky’s email that is the subject of the amendment proposals. He attached it to provide supporting material for the ANU human resources staff in the grievance process. It seems clear, then, that in mid-2006 two reports each the subject of dispute over authorship were drawn to Professor Grabosky’s attention. He may have forgotten by 2008, or he may not have paid adequate attention in 2006; whatever the reason, I am persuaded that the focus of the email on a single disputed authorship issue is an inaccuracy, in this paragraph and those that follow. Further, the identity of the two documents does not seem to be in dispute.
Professor Grabosky asserted that the Safety and Security report was internal because it had had limited circulation (to a few ACT Policing personnel and the Project team at ANU). Dr Hinds argued that it was a public report because it had been used in meetings with the public in some Canberra suburbs. Professor Grabosky accepted that some community meetings had involved the dissemination of the report or the material in it, but stood by his characterisation of it as internal, because it had not been made generally public, and bore no authorship credits. Dr Hinds suggested it bore no authorship credits because Dr Fleming herself chose to distribute it in that form, as part of denying proper credit to Dr Hinds.
The ANU did not dispute the wider circulation of the report, but pointed out that the misattribution of which Dr Hinds was complaining in June 2006 was on Dr Fleming’s curriculum vitae (CV), which appeared on the RegNet website. The ANU argues that it was not an option for Professor Grabosky, or indeed other ANU staff, to amend Dr Fleming’s CV, even if they were in agreement that a misattribution had occurred. That may be the case, but the location of the citation where the misattribution occurred is irrelevant for the purposes of the amendments presently under consideration. Professor Grabosky’s account of events in this part of his email is without reference to where the misattribution occurs (although two paragraphs later he refers to the misattribution occurring in a progress report to the ARC), and it is the validity of his record that is amenable to the processes of the FOI Act, not the possibility of action at the time.
I accept Professor Grabosky’s characterisation of the Safety and Security report as ‘internal’. The document was the raw material of the Project, containing survey outcomes which could subsequently be the basis for analytical work that could be published on the RegNet website, in refereed journals, or at academic conferences. That the report had been used in limited public meetings held as part of the Project does not, in my view, rob the report of its internal character; it is common at such events for printed material to be circulated or presented in summary form to stimulate an exchange among those participating. Such a limited distribution of material is not the same as making a document generally available to the public. The wider circulation must, however, be acknowledged if the record is to be accurate.
I am satisfied that a second misattribution issue was raised with Professor Grabosky, and that in not referring to it the record is inaccurate, misleading and incomplete. As there are two documents, their titles must be specified to avoid confusion in subsequent references. That is especially the case here as it became clear that there were two reports reporting on exchanges with focus groups as part of the project: Dr Fleming produced a report entitled ‘Policing in the 21st Century – Focus Groups Report – (ACT Policing – all ranks) to ACT Policing’ dated 2004 (referred to in this decision as ‘the mapping document’); and she worked with Dr Hinds on the 2005 Focus Groups report, which went by the title ‘Policing in the 21st Century – Final Report from the Focus Groups’. The titles are so similar that specification of the document over which the dispute took place seems necessary if the reader is not to be misled.
A note is to be appended to the third paragraph of the email as follows:
The Administrative Appeals Tribunal has determined that the record in this and the following paragraphs is inaccurate in dealing with a single misattribution issue when there were concerns over misattribution of authorship in respect of two documents: ‘Policing in the 21st Century: Safety and Security in the ACT – Survey Report’ (2005) and ‘Policing in the 21st Century: Final report from the Focus Groups’ (2005). The first of these was an internal document but had limited circulation beyond the ANU Project team and ACT Policing through its use in meetings with Neighbourhood Watch and other community groups.
At this point a few comments on the differing attitudes taken by Dr Hinds and Professor Grabosky may be helpful, perhaps essential. These attitudes go not only to why Professor Grabosky explained the events of 2006 as he did, and why this was unsatisfactory to Dr Hinds; they also have a bearing on whether in some of his comments Professor Grabosky could be regarded as biased, in terms of the operation of s 55(6)(c) of the FOI Act.
Professor Grabosky stated in the 2006 email that he encouraged Dr Hinds not to take the attribution issue too seriously ‘given the nature of the offending document’. Expanding on this in giving evidence, Professor Grabosky suggested that the issue was ‘trivial’. Assuming sole authorship on one’s CV of such a report, which had no authorship attribution on the copies he had seen, was low on ‘the continuum of heinousness’ of academic misconduct. He had counselled Dr Hinds to focus on moving ahead by developing the ‘negotiable currency of academia’, that is, refereed journal articles.
To Dr Hinds, by contrast, a colleague listing such a document on her CV without acknowledging the contribution Dr Hinds had made to that document was ‘theft’. Dr Hinds also evidently focused less on the publications she could develop from her research, and more on ensuring that the AFP – the industry partner in the Project – was delivered a useful product.
Neither of the above characterisations is intended to suggest that either set of attitudes is to be preferred.
In cross-examination, Dr Hinds also questioned whether Professor Grabosky’s treatment of the misattribution issue was consistent with ANU policy on academic misconduct. She referred to a paper by the Director of the ANU’s Research Office, Dr John Wellard, tendered by the ANU. I denied Dr Hinds’s proposal to call Dr Wellard to give evidence on this issue as the evidence she proposed to adduce from him would not assist in deciding the issues before the Tribunal. The basis for denying Dr Hinds her witness was that even if it were convincingly shown that Professor Grabosky’s conduct had been inconsistent with ANU policy there is at best a tenuous line of reasoning by which a reader could be misled:
(a)first, it would require that the reader, in order to be misled, know of, posit or assume the existence of an ANU policy on academic misconduct, and further, assume that the Professor Grabosky’s attitudes and actions would be consistent with that policy (presumably because they were those of a senior member of ANU academic staff);
(b)second, these assumptions would have to be adopted in the face of a complete silence by Professor Grabosky and Ms Kathryn Leonard on the issue; Ms Leonard did not refer to the ANU’s policy in setting down issues on which she sought an answer, and Professor Grabosky made no mention of the policy in his response; and
(c)third, these assumptions would have to be adopted despite a clear enunciation by Professor Grabosky of an alternative basis for his actions, namely that in his view the question of misattribution was not important given the nature of the document: “...an internal Project document...”, “... the actual document bore no authorship credits”, “...the issue should not be magnified out of proportion, given the nature of the offending document...”, “Given that the document giving rise to the dispute was an internal working paper, it was not regarded as a matter of high priority to rectify the issue of authorship attribution.”
This reasoning informed my decision to deny Dr Hinds her witness. The consistency of Professor Grabosky’s statements and actions with the ANU’s policy on academic misconduct has no bearing on whether these passages of his email are incorrect, incomplete or misleading. The same reasoning applies to Dr Hinds’s proposal to call Dr Sheil of the ARC to give evidence; consistency with the ARC’s wishes and practices is equally irrelevant. And, as will become apparent later, the same reasoning applies to the Braithwaite email, as Professor Braithwaite’s approach to these issues is broadly similar to that of Professor Grabosky.
Dr Hinds’s next proposed amendment (G4) is to the following sentence, in the sixth paragraph of the email:
In an email in June 2006, Dr Fleming expressed apologies that Dr Hinds’ contribution to the internal document had not been acknowledged in the Report to the ARC.[G4]
Dr Hinds argued that this passage was misleading, incomplete and inaccurate because it omitted an earlier apology by Dr Fleming in February 2006, and did not mention the question of authorship of the 2005 Focus Groups report and Dr Fleming’s failure to apologise in regard to that document. Dr Hinds’s proposed amendment adopted the language of plagiarism rather than of acknowledgement of error; and dealt at length with the Focus Groups report and the circumstances attaching to it. In the hearing, however, Dr Hinds did not press those issues at this stage, concentrating rather on the omission of any reference to the Focus Groups report in this paragraph of the email, and in particular of any apology regarding its authorship.
The evidence already presented established that a second report – the 2005 Focus Groups report – had been omitted by Professor Grabosky from this part of the email, despite its having been drawn to his attention. The amendment made under G3 corrected that inaccuracy and noted its application to the following paragraphs. In that context, I am not satisfied that there is any further inaccuracy or incompleteness in the present passage. Professor Grabosky noted the apology; it was not introducing an incompleteness not to deal with Dr Fleming’s lack of action on another document. Indeed Dr Fleming’s email draws a distinction between the 2005 Focus Groups report and her earlier (2004) report with a similar title. Omitting any mention of the issue, in the light of that assertion, is surely not introducing any inaccuracy. I am not satisfied that the passage is incomplete, incorrect, out of date or misleading.
Proposed amendment G5 is to the following text:
Dr Hinds was not satisfied with this, and continued to express concern over the matter. [G5]
Dr Hinds once again pressed the point that an apology had not been offered in respect of the Focus Groups report. Her proposed amendment was quite long and addressed other issues about the Focus Groups report, but these were not pressed. For the reasons given regarding G4 above, I am not satisfied that the omission of any mention of a second report introduces any further inaccuracy or incompleteness, given the note appended in respect of amendment G3. I am not satisfied that the passage is incomplete, incorrect, out of date or misleading.
Proposed amendment G6 is to the following passage. The additional text is quoted to provide context:
At this point, it was apparent that relations between Dr Hinds and Professor Fleming had become irreparable. By this time, Professor Fleming had ceased to be employed by the ANU. Although her primary responsibility was to her new employer, she continued to contribute to the Linkage Project on an occasional basis. Professor Grabosky advised Dr Hinds that current and former Project team members could continue contributing to the Project, in isolation from each other. Although this was an imperfect solution, it was seen as the best strategy to ensure sustainability of the Project.
Unfortunately, Dr Hinds interpreted this solution as a licence to withhold Project documents from other team members. When asked to provide a copy of a power point file (previously presented to a public forum), she refused.[G6]
Dr Hinds acknowledged that she had refused to pass over a power point file that Professor Grabosky was proposing to forward to Dr Fleming. But the documentary evidence (emails at A22, A25, A28, some but not all of which were addressed to or copied to Professor Grabosky) demonstrates that she had passed a significant number of other documents on to Dr Fleming. There is also documentary evidence of the arrangement by which conflict between Dr Hinds and Dr Fleming was to be avoided. That arrangement (described in A43, a note dated 2 April 2007 from Dr Hinds to Professor Braithwaite) appears to have contemplated that documents of the kind that Dr Hinds withheld would not be shared (each would work separately on material for publication ‘without contact or consultation’; sharing would occur only after publication). In his oral evidence, Professor Grabosky acknowledged this arrangement and was unable to identify any other document that Dr Hinds refused to pass on to a colleague, or any other colleagues to whom she denied access to documents. Professor Grabosky’s explanation of his statement in the email was that, as she had chosen not to pass on one document, she might choose not to pass on others. He also made a distinction between a licence and acting on that licence, suggesting that Dr Hinds might have displayed an attitude by withholding one file but not have acted in other instances.
I am satisfied that the statement is inaccurate and misleading. Only one document was involved, and only one person was denied access to that document. At the heart of the issue is the reference to Dr Hinds interpreting the arrangements as ‘a licence’ to withhold documents. Those words, together with the use of the plural for ‘documents’ and ‘team members’ suggest a pattern, attitude or habit. I find Professor Grabosky’s distinction between having a licence and acting on it specious. The statement clearly encourages the reader to believe that Dr Hinds withheld documents more widely than in fact she did, and is inconsistent with both Professor Grabosky’s oral evidence and the documentary evidence. The reference to a ‘licence’ involves the drawing of an inference from observed behaviour and is a statement of opinion, so that s 55(6)(c) is engaged. I am compelled to find that Professor Grabosky has painted Dr Hinds’s actions in darker colours that was warranted by the facts known to him, and in doing so has exhibited bias.
A note is to be appended to the seventh paragraph of the email in the following terms:
The Administrative Appeals Tribunal has determined that the first sentence of this paragraph is inaccurate and misleading. Dr Hinds withheld one power point file from a single colleague in accordance with an arrangement to which Professor Grabosky was party, but did not exhibit any more general attitude or behaviour involving denying her colleagues access to Project documents.
Publication and citation issues
Ms Kathryn Leonard of the ANU’s human resources function asked Professor Grabosky to respond to the following issue:
Dr Hinds states that:
You signed off on a 2005 ARC Progress Report which attributed citation of a report entitled ‘Policing in the 21st Century – Safety and Security in the ACT, Report of ACT wide survey to Australian Federal Police’ solely to Dr Fleming.
Professor Grabosky’s response was:
According to Professor Grabosky’s recollection, the document in question was an internal working document which in fact bore no authorship attribution.[G7]
Dr Hinds’s proposed amendment to this passage deals essentially with the same issue as that considered under proposed amendment G3. In that instance I decided that characterising the document as ‘internal’ did not constitute an inaccuracy and was not misleading. I am not satisfied that there is anything incomplete, incorrect, out of date or misleading in this passage.
Ms Leonard sought a response to Dr Hinds’s assertion that after the incorrect citation of the Safety and Security report had been identified it “was allowed to continue by Dr Fleming on her CV and to be incorrectly cited on the RegNet website”. Professor Grabosky’s response is the subject of proposed amendment G8:
Professor Grabosky noted Professor Fleming’s apology and undertaking to correct her curriculum vitae. By this time, Professor Fleming was employed elsewhere.[G8]
The documentary evidence (A39, an extract from an electronic record of Dr Fleming’s CV, accessed on 23 February 2007) shows that the citation of work to which Dr Hinds had contributed had not subsequently been corrected, or at least not to the standard and form Dr Hinds believes to be correct. She argued that if the correction had not been made then Professor Grabosky’s statement was misleading, as it implied that the CV would indeed be corrected. The ANU argued that the statement by Professor Grabosky goes no further than noting that the apology had been given and that an undertaking had been made. Professor Grabosky had not asserted that a correction had been made or assumed any responsibility for ensuring that that took place. I agree with the ANU. The passage is not incomplete, incorrect, out of date or misleading.
Proposed amendment G9 relates to a further statement by Dr Hinds to which Ms Leonard sought a response: “the incorrect citation of this work [the Safety and Security report] in ARC Progress Reports (and elsewhere) was not rectified until 2007.” To this assertion Professor Grabosky responded:
Given that the document giving rise to the dispute was an internal working paper, it was not regarded as a matter of high priority to rectify the issue of authorship attribution. Dr Hinds, when preparing a draft of the 2008 annual report for Professor Grabosky’s signature, could have availed herself of the opportunity to do so, but apparently did not. [G9]
The first sentence of the passage above deals with issues already well rehearsed: I do not find it to be incomplete, incorrect, out of date or misleading. With regard to the second sentence, Dr Hinds sought to demonstrate three matters in cross-examining Professor Grabosky:
(a)first to show that an extended period of about a year and a half elapsed before the report was corrected;
(b)second, that Professor Grabosky, as the person signing off the report and submitting it to the ARC had the responsibility for ensuring it was correct; and
(c)third, to establish that Professor Grabosky had not drawn to her attention that, in drafting the ARC report, she could have ensured that any corrections to citations were made.
On this basis, Dr Hinds argued that the sentence was therefore misleading. I do not so find. The time that elapsed receives no mention in Professor Grabosky’s text and the extended period is consistent with his assertion that the matter was not, in his view, a high priority. That Professor Grabosky was responsible for the report going forward does not make the passage misleading – it merely illustrates how little regard Professor Grabosky had for the accuracy of attribution of papers of this kind. And Professor Grabosky pointed out that Dr Hinds’s evident preoccupation with receiving proper recognition for her work left him with the impression that no action was necessary on his part to alert her to the possibility of correcting the citations because the issue would be in the forefront of her mind. I find that Professor Grabosky’s attitude is not biased or without foundation and the sentence is a fair reflection of it. I am not satisfied that this passage is incomplete, incorrect, out of date or misleading.
Dr Hinds proposed three amendments to a passage of text by Professor Grabosky in response to the following issue raised by Ms Leonard:
following the concerns over the citing of the above article [the Safety and Security report], Dr Fleming “invented” a report in 2004 titled “Policing in the 21st Century – Focus Group Report (ACT policing – all ranks) to the ACT Policing” which, despite repeated requests by Dr Hinds for a copy, was not provided by you. [sic]...In addressing these allegations it would be of assistance if you could please provide an authenticated copy of this report plus the ARC Progress report where the publication was cited.
Professor Grabosky’s response (inserted before the last sentence of Ms Leonard’s request above), to which Dr Hinds sought three amendments, was as follows:
Professor Grabosky was no more capable of compelling disclosure of the 2004 report by Professor Fleming than he was of compelling disclosure of a powerpoint file by Dr Hinds [G10]. A document has recently been located that was based on interviews and focus groups conducted by Dr Fleming in 2003 [G11]. Reference was made to this in the Annual Report for the year 2004 [G12]. A scanned version of the first and last pages of the focus group document are provided [sic] under separate cover. The document is marked private and confidential, and it contains material of an extremely sensitive nature.
Dr Hinds pointed to documentation (statements by Dr Fleming and Professor Grabosky, dated respectively 10 June 2010 and 7 June 2010, appearing as attachments to the ANU’s outline of evidence of 9 July 2010) establishing that there were two documents with similar names, as noted above: a report by Dr Fleming based on work done in 2003 and 2004 and bearing the date 2004 (‘the mapping document’), and the report in which Dr Hinds was involved, dated 2005 (the 2005 Focus Groups report). Dr Hinds asserted that the report Professor Grabosky referred to in his email at G10 and G11 is the mapping document; that he did not pursue Dr Hinds’s claims of plagiarism with the Dean of the Research School of Social Sciences within the ANU (as ANU policy suggested) because the Dean was in fact Dr Fleming’s domestic partner; and that he was aware by 2008 of the existence of the 2005 Focus Groups report as a separate and quite distinct document, but deliberately confused the issue by not acknowledging it in his email.
Dr Hinds also produced documentary evidence, in the form of the 2004 progress report to the ARC (A1), to show that there was no citation of any report relating to focus groups (i.e. neither the mapping report nor the Focus Groups report). She argued that Professor Grabosky’s reference to the inclusion of work on consultation with focus groups in the Progress Report for 2004 was therefore inaccurate.
It appears that when he made his statement in 2010 Professor Grabosky was much clearer about the existence of two documents than he appeared to be in 2008. It may be, as Dr Hinds suggested, that through conversing with Dr Fleming in 2010 he had established things in his mind. When, at the hearing, he said that he was only now aware of the distinction between the two reports, the question obviously arises whether that is consistent with his 2010 statement. But that is not to the point. The matters before me are limited to the correctness of the statement Professor Grabosky made in 2008 in the email prepared for the grievance process. In that email Professor Grabosky was responding to a question from Ms Leonard, a question that focused entirely on the 2004 mapping document, and whether or not Professor Grabosky had prevented Dr Hinds from obtaining access to it. In those circumstances, regardless of Professor Grabosky’s state of knowledge or understanding regarding the existence of two reports on the focus groups, I am not satisfied that the response he provided in sentences covered by G10 and G11 is incomplete, incorrect, out of date or misleading.
It is certainly clear that no citation of a report on work with focus groups was included in the 2004 progress report to the ARC (which was submitted in January 2005). I am not satisfied that the sentence at G12 is inaccurate, however. Professor Grabosky’s email merely says that reference was made in the Progress Report to ‘a document’ on work with focus groups, and at various points in the Progress report there is such a reference, for example section 3.3 includes the statement ‘...we have completed the focus groups begun in late 2003 and compiled an extensive report for ACT Policing’. That account, and indeed the passage as a whole, is consistent with the rest of Professor Grabosky’s evidence, and in particular with his very clear recollections of the sensitivity attached to the earlier report. I am not satisfied that Professor Grabosky’s statement at G12 is incomplete, incorrect, out of date or misleading.
Ms Leonard proceeded to seek a response to another issue: ‘Prior to her arrival, finalisation of one report to the ACT Chief Police Officer had been delayed by over 12 month’ [sic]. Professor Grabosky responded:
The substance and timing of project activity evolved over the course of the project as a result of strategic changes in the industry partner organization. At no time prior to, during, or subsequent to Dr Hinds’ participation in the project has the ACT Police Chief Officer expressed to fellow Chief Investigators any dissatisfaction with project reporting.[G13]
Dr Hinds proposed that this text should have acknowledged criticism of the late delivery of the report on the work with focus groups by the ACT Police Chief Officer, criticism that had been made when she was present. Professor Grabosky insisted he could not recall such criticism being made. Dr Hinds expected that one of her witnesses would be able to corroborate that the criticism was made. As subsequently she decided not to call any witnesses, that corroboration could not be provided. In the absence of corroboration, I am not satisfied that the passage is incomplete, incorrect, out of date or misleading.
Ms Leonard next raised an issue about the administrative burden Dr Hinds had to bear: ‘Her opportunity to undertake research was limited by you, due to the level of project management and administrative work required to be performed by her to ensure the project deliverables where [sic] achieved.’
Professor Grabosky’s response was:
Professor Grabosky consciously strove to minimise administrative burdens on Dr Hinds, including assuming overall responsibility for the Project conference throughout most of 2007. Dr Hinds was also spared other responsibilities normally falling to RegNet staff including higher degree supervision and presentation of in-house seminars.[G14]
Dr Hinds proposed amending this passage on the basis that her terms of employment did not involve any administrative burdens of the kind Professor Grabosky refers to here, so that he did not take away any that she might have expected to have. She also sought to demonstrate that in practice Professor Grabosky did impose some administrative load. Professor Grabosky said in the course of giving evidence that it had been available to him to ask Dr Hinds to take on administrative duties but that he had refrained from doing so.
The words used by Professor Grabosky are not strong ones – all that is asserted is that he ‘consciously strove to minimise’ administrative burdens. In my view such a claim would be met equally by trying to remove burdens that would fall to someone in the course of their normal work, and by avoiding adding burdens to someone to whom an additional share of such work might have been given. Dr Hinds may have felt overworked. In someone who appears to have been meticulous and assiduous in her approach to work, that would not be a surprise. But I am not satisfied that Profesor Grabosky’s statement is incomplete, incorrect, out of date or misleading.
Ms Leonard raised an issue regarding the paper delivered to a conference (this issue is also dealt with under G6 above): ‘She was general [sic] aggrieved regarding your (and/or Dr Fleming’s) request for a copy of Dr Hinds’ paper to the ICPC Conference.’ In response Professor Grabosky said:
The presentation in question was made to a public forum. It was an open source (as opposed to confidential) product of the Project and as such should have been freely available to project members.[G15]
Dr Hinds asserted that the paper she gave to the conference was not ‘open source’ because she was yet to present the material to the industry partner; that the event was not a public one, because attendance was restricted to those who had paid and registered; and that she had withheld the paper from Professor Grabosky because she feared that Dr Fleming would appropriate it. In the course of his evidence Professor Grabosky made the point that he wanted the material shared not with the public at large but with other project members; and that he regarded Dr Fleming as retaining the status of project member after she had left the ANU, because she was still collaborating on papers that derived from the project. It also emerged that the conference was held in September 2006, and that Dr Fleming asked for a copy of the paper in early 2007.
I am satisfied that this part of Professor Braithwaite’s email is misleading. It is not clear to a reader that what was in dispute was the Safety and Security report, which was cited within the report to the ARC. Professor Braithwaite’s email refers to authorship of a ‘report to the ARC or a linkage partner’, ‘reports to funding bodies’, and suggests that ‘senior staff in RegNet would regard it as most peculiar if anyone put an ARC report on their CV.’ A note is to be appended to this paragraph in the following terms:
The Administrative Appeals Tribunal has determined that this paragraph is incorrect. The complaint related not to a report to the Australian Research Council, but to authorship of a research report entitled ‘Policing in the 21st Century: Safety and Security in the ACT – Survey Report’ (2005), which was cited in the 2006 Progress Report to the Australian Research Council.
In regard to proposed amendment B11, Dr Hinds contended, first, that the text was not an accurate or complete account unless the full name of the focus groups report was identified; and second that the text should recognise Dr Fleming’s failure to acknowledge Dr Hinds’s contribution to that report. The ANU agreed to the inclusion of the name of the report, but not to any additional text beyond that.
Given that there were apparently two focus groups reports (the mapping report, and the 2005 Focus Groups report), distinguished only by details in the title and the year in which they were completed, I am satisfied that the report is misleading if it does not specify more clearly the subject of the dispute. A note is to be appended to the paragraph as follows:
The Administrative Appeals Tribunal has determined that this paragraph is incomplete in not specifying the report that was the subject of the dispute. The report about which attribution of authorship was in dispute was ‘Policing in the 21st Century: Final report from the Focus Groups’ (2005).
In regard to proposed amendments B12 and B13, Dr Hinds argued that as she had brought her claims to the attention of Professors Grabosky and Braithwaite, the responsibility for resolving the issue no longer lay with her. To the extent she had some responsibility for assisting in any resolution, it was incumbent upon those in charge at RegNet to seek that assistance from her. Dr Hinds asserted that she had not been asked to provide the material that she held, and argued that the paragraph was misleading because in practice Professor Braithwaite was not interested in a proper investigation into the question of disputed authorship.
Professor Braithwaite’s evidence was that Professor Grabosky put considerable effort into tracking down a copy of the 2004 Focus Groups report; that she did ask two colleagues about any conflict they may have had with Dr Fleming over authorship issues, but without being aware whether or not they were personal friends of Dr Fleming; that typically, many errors in the citing of reports were the result of slips or clerical errors; and that her major focus at the time had been in helping Dr Hinds to put these matters behind her and help her move forward.
It seems probable that Professor Braithwaite put only limited effort into resolving Dr Hinds’s issues over authorship. In their evidence to the Tribunal, it was apparent that both Professors regarded Dr Hinds as having unnecessarily escalated the issue. They were qualified and entitled to hold that view, which was not the result of bias, mistake of fact or improper enquiry. I have no reason to disbelieve Professor Braithwaite when she says that she did not know whether the two people she asked about authorship issues were friends with Dr Fleming. The statements form a consistent part of a record that signals clearly and unambiguously Professor Braithwaite’s reluctance to put too much weight, time or effort into addressing the substance of Dr Hinds’s grievances, which was to her a minor matter and a distraction from the proper pursuit of academic success. I am not satisfied that the statements at B12 and B13 are misleading, incorrect, out of date or incomplete.
With regard to proposed amendment B14, Dr Hinds argued that the text is incomplete. RegNet staff were asked to investigate the question of the authorship of the paper she prepared with Dr Murphy, but did not do so even to the extent of making contact with Dr Fleming, and so left it to her (Dr Hinds) to convey the outcome to Dr Fleming. Dr Hinds argued that the text is incomplete or misleading in not establishing that broader context.
I do not accept Dr Hinds’s argument. The email text makes it plain that the ANU satisfied itself that there was no substance to Dr Fleming’s assertion that her authorship had not been acknowledged, and is explicit that, Dr Fleming having left the ANU, no contact was made with her. A reader has all the information needed regarding how thorough or complete the investigation was, and could draw conclusions accordingly. I am not satisfied that the passage is misleading, incorrect, out of date or incomplete.
Bullying allegations
Further proposals for amendment arise in the context of the second issue on which Ms Leonard sought clarification or information: ‘Any actions taken by you regarding the bullying allegations/concerns raised by Dr Hinds’. Professor Braithwaite responded with two paragraphs, occasioning seven proposals for amendment from Dr Hinds. The relevant parts of the email read as follows:
Dr Fleming had left RegNet before I became head of department. I was dealing with retrospective reporting in the main, although both Drs Fleming and Hinds were still involved in the ARC grant. Two points are worthy of note here. First there were no witnesses to any bullying incidents involving Dr Hinds, although it was well known that Dr Fleming had a manner that could be overbearing and could upset people. [B15] Second, RegNet staff in general managed this aspect of Dr Fleming’s character and were sensitive to rallying around those who found it a little intimidating.[B16] ... This was the background knowledge I had to the set of steps outlined below.
Three approaches seemed to be in order. The first approach was to seek the help of the University counsellor. Dr Hinds informed me that she had asked for mediation with the University counsellor but that the counsellor had advised against it on the grounds that Dr Fleming would not take it seriously. [B17] With that avenue closed, we fell back on internal procedures. Professor Grabosky had set in place work practices that limited the need for Drs Hinds and Fleming to engage with each other. I supported this practice and encouraged Dr Hinds to get on with her work and come to me if she encountered further difficulties (which she did with the paper written by herself and Murphy). My second suggestion was that Dr Hinds attend meetings and events at which Dr Fleming was present in the company of one of the senior staff from RegNet [B18]. Senior staff were willing to provide this support [B19]. I explained to Dr Hinds that it was important for her to regain confidence in the presence of Dr Fleming and that she could be assured that she would be safe if accompanied by one of these senior staff. I also suggested to her that she try to learn how to deal with the behaviour that she found offensive by watching others and getting their assistance to better manage encounters with Dr Fleming. I acknowledged that it was a hard thing to do but that it could be done and we would help her do it.[B20]
Regarding proposed amendments B15 and B16 Dr Hinds contended that the distinction Professor Braithwaite drew between bullying and behaviour that was merely ‘intimidating’ or ‘overbearing’ was misleading. Such behaviour accorded with the definitions of bullying in the ANU’s policy on bullying and other definitions in similar documents (such as the ACT Work Health and Safety (Preventing and Responding to Bullying) Code of Practice 2012, ‘the ACT Code of Practice’, tendered as H5). To present the behaviour as merely overbearing or intimidating was trivialising it, and in trivialising what happened, it was misleading.
I do not accept Dr Hinds’s argument. Ms Leonard did not mention the ANU’s policy on bullying in her identification of the issues on which she sought information, nor did Professor Braithwaite in responding. In any case, no ANU policy current at the relevant period was tendered in evidence, and so it is not clear what the ANU’s definition may have been at the time. In evidence, Professor Braithwaite gave ‘persistent denigration’ as her understanding of the meaning of ‘bullying’, but was equally willing to accept the definition in the ACT Code of Practice (‘Bullying is repeated unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety’). It is clear that Professor Braithwaite relied on her common sense understanding of bullying, and formed the opinion that Dr Fleming’s behaviour did not go so far as to satisfy it. That was the opinion reflected in this passage of her email. The opinion is not based on errors of fact; it is not prompted by bias or improper enquiry, nor is she unqualified to form it. I do not accept that the challenged sentences are incomplete, incorrect, out of date or misleading.
Dr Hinds said with regard to proposed amendment B17 that she did not approach the University counsellor seeking mediation, but rather asked Professor Grabosky to arrange it. An email exchange dated 13 February 2007 (A37 and A38) supports her contention. The challenged sentence in Professor Braithwaite’s email is amenable to two readings, one of which accords with what the evidence shows occurred, the other of which might lead a reader to assume that Dr Hinds made a direct and independent approach to the counsellor. To that extent the sentence is misleading. A note is to be appended to this paragraph as follows:
The Administrative Appeals Tribunal has determined that this paragraph is misleading, in that no approach was made by Dr Hinds to the University counsellor. Rather Dr Hinds asked Professor Grabosky to arrange a formal mediation process.
Dr Hinds argued with respect to proposed amendments B18, B19, B20 and B21 that Professor Braithwaite did not institute any effective program for managing her problem with Dr Fleming, and that the relevant sentences exaggerate the extent to which she did so, and are therefore incorrect or misleading. It was Dr Hinds’s contention that the only encouragement to senior staff to support her, so far as she was aware, occurred in December 2007, approximately a month before she was due to leave the ANU. Dr Hinds also stated that otherwise no-one offered her any support, and so she had no awareness of any support strategy that was purportedly offered her.
Professor Braithwaite said in evidence that she had been focused on ensuring that Dr Hinds was enabled to move forward and get past her problems with Dr Fleming, and that she had encouraged staff to be supportive in general terms, without specifying what they should do. This had occurred over the six months or thereabouts from the middle of 2007 onwards, although the RegNet conference at the end of the project, in December 2007, had been a particular focus because that was a major opportunity for Dr Hinds to demonstrate the effort and skill she had put into the research project.
I have no reason to doubt Professor Braithwaite’s evidence. Her account is internally consistent and accords closely with the tenor and content of the email. I am not satisfied that the passages covered by B18-B21 are incomplete, incorrect, out of date or misleading.
The written record kept about Dr Hinds
The third issue to which Ms Leonard sought a response was: ‘What was the nature and scope of the written account that you kept “in confidence” regarding the matters raised by Dr Hinds.’ Professor Braithwaite responded with three paragraphs to which Dr Hinds sought five amendments (B22-B26).
These materials were passed on to Professor Robin Jeffrey ... because Dr Hinds indicated she wanted to take her grievance to a higher level. She was dissatisfied with how we handled her complaints. She believed we should have asked Dr Fleming to change her CV and she thought we should initiate disciplinary action against Dr Fleming over her inclusion of reports on her CV that allegedly were written by Dr Hinds [B22]. (Dr Fleming was not in RegNet at the time but was still a visiting fellow at ANU I believe.) [B23]
My argument for not doing so was that I did not have evidence to support the allegations. [B24]Furthermore, I was not prepared to tell someone what they could or could not put in their CV, unless they asked my opinion. If there was evidence of a fraudulent claim yes, but if someone wanted to pad their CV with unpublished reports, then that was their judgment call in my view [B25]. They would be judged by their peers accordingly.
In sum, I could not find sufficient reason to discount the assertion that Dr Fleming’s actions were at worst careless and insensitive. [B26] ....
Dr Hinds argued that Professor Braithwaite’s gloss on what she believed was incorrect. Dr Hinds’s wish to change Dr Fleming’s CV was limited to the material that appeared on the RegNet website, and that point was accepted by the ANU. Dr Hinds stated that her dispute with the ANU at that time related to obtaining recognition for her work, and that she had never sought any sanction against Dr Fleming. She also asserted that Professor Braithwaite was well aware of Dr Fleming’s status as a visiting fellow, and so the ‘I believe’ at the end of the first paragraph quoted above was superfluous and misleading.
Dr Hinds pointed to the evidence she had supplied regarding her contribution to the reports that had appeared on Dr Fleming’s CV on the RegNet website without attribution to her. In the light of that evidence, including Professor Grabosky’s acknowledgement in his letter of 18 September 2006 (A29), Dr Hinds asserted that Professor Braithwaite did indeed have evidence to support the allegations in question; and that the evidence also supported the conclusion that the misattribution on Dr Fleming’s CV was fraudulent. Finally, Dr Hinds argued that to describe Dr Fleming’s actions as ‘at worst careless and insensitive’ was misleading, as in her view the evidence showed that there was clear intention behind Dr Fleming’s actions.
The facts underlying these passages are established by the evidence already considered, as set out in paragraph 37-46 above, although they are caught up here in some cases in expressions of opinion. It is clear that Dr Hinds’s concern with Dr Fleming’s CV is indeed limited to how that CV appeared on the RegNet website in the context of the RSSS review, and does not extend to her CV more generally or appearing elsewhere. Although an astute reader would probably understand that from context, a less attentive reader might not. I am satisfied that the sentence might mislead and should be amended. With regard to the suggestion that the reference to Dr Hinds’s wish that disciplinary action be taken against Dr Fleming, I take the view that Professor Braithwaite drew an inference from Dr Hinds’s words that was reasonable in the circumstances. Dr Hinds has protested vehemently in the hearing that she wished merely to get credit for her work, but in her grievance process also sought ‘censure’ of Dr Fleming; Professor Braithwaite’s inference that she wanted disciplinary action to be taken was not biased or otherwise unfounded. I am not satisfied that the reference is incomplete, incorrect, out of date or misleading. Nor am I satisfied that the inclusion of ‘I believe’ at the end of the next sentence (B23) is incomplete, incorrect, out of date or misleading. The words merely signal to the reader that Professor Braithwaite has not checked her records to assure herself that her recall of the timing of relevant events is accurate.
The sentence at the beginning of the following paragraph is more problematic. It is clear from the facts laid out above that Dr Fleming’s CV on the RegNet website had not included an attribution of authorship to Dr Hinds when she had made a major contribution to the Safety and Security report, and that this had been brought to Professor Braithwaite’s attention. Further, Professor Braithwaite, earlier in the email, had said that her reason for not changing the CV had been that it was a historical record of how RegNet presented itself to the review. I accepted that explanation. Thus the sentence seems to present two problems in terms of its validity: first, Professor Braithwaite did have evidence to support ‘the allegations’ (which were allegations about the citing of work on Dr Fleming’s CV that had been written with Dr Hinds); and second, the argument she advanced for not changing the CV is inconsistent with her argument advanced earlier in the email.
In the context of the paragraph that precedes it and the sentences that follow, this sentence was very much about the citing of work on the RegNet website, and not about whether the failure to attribute work constituted plagiarism or how seriously it ought to be taken. Nevertheless, viewed in a broader context, especially of the following paragraph, it is more probable than not that Professor Braithwaite was making a point about whether what occurred was a culpable act of academic dishonesty or something rather less serious or less definite. This was very much the tenor of her oral evidence on these passages. It was evident that Professor Braithwaite adopted the position – a position which she appears to have held consistently throughout, and in common with Professor Grabosky – that reports of the kind being considered here were not important academic products; that they did not normally attract authorship credits or appear on CVs; that therefore mistakes about their authorship were both likely and unimportant; and that if such errors occurred they should not be taken seriously. The opinions reflected in the sentences at B25 and B26 were not unfounded in any of the ways set out in s 55(6)(c). I am satisfied that the sentence at B24 is incorrect, but not satisfied that the sentences addressed by proposed amendments B25 and B26 are misleading, incorrect, out of date or incomplete.
A note is to be appended to the first paragraph of the three under consideration in the following terms:
The Administrative Appeals Tribunal has determined that the eighth sentence of this paragraph is misleading. Dr Hinds’s wish to see amendments to Dr Fleming’s CV is limited to the material presented on the RegNet website in the context of the review of RegNet by the ANU’s Research School of Social Sciences.
A note is to be appended to the second paragraph of the three under consideration in the following terms:
The Administrative Appeals Tribunal has determined that the first sentence of the paragraph is incorrect. Professor Braithwaite had been advised of an alleged misattribution in Dr Fleming’s CV on the RegNet website and therefore had evidence of such misattributions, although she may nevertheless not have regarded it as appropriate to make any amendment to the CV.
Other matters relating to Dr Hinds’s employment at RegNet
Ms Leonard’s final request for clarification and information was: ‘Any other information regarding Dr Hinds [sic] discussions and involvement with you in relation to the conduct of Dr Fleming, Professor Grabosky or working at RegNet’. In response Professor Braithwaite provided two paragraphs attracting seven proposed amendments (B27-B33):
There are undoubtedly many other relevant pieces of information that come under the category of ‘how do we help this person move forward, given the enormous head start she has with her career through being part of the Linkage project’. [B27] This message, communicated and actioned by both Peter Grabosky and me in so many ways, was each time dismissed by Dr Hinds as irrelevant. [B28] I recruited others to help get this message across, but to no avail. [B29] There was only one thing that mattered to her – our failure to punish Dr Fleming. [B30] I spent some time explaining to Dr Hinds that we live by our academic reputations, and that they are based on our capacity to work cooperatively with colleagues and the quality of the work that we do. The secret to being a successful academic is not to focus on others’ failures and stigmatise them for them – others learn about these things soon enough – but to focus on our own strengths and build networks of support. Dr Hinds chose not to take this advice [B31]. She believed that academia should work differently.
I came to the view towards the end of our association that the only thing that would satisfy Dr Hinds was that we side with her in a vendetta to destroy Dr Fleming [B32]. At the time I found this morally reprehensible; I still do – wherever the truth in who wrote the ARC reports lies. [B33]
The arguments advanced by Dr Hinds in support of these amendments largely repeated material already argued in respect of other amendments. The evidence in support is also by this stage familiar. Dr Hinds stated in regard to B27 that she had left academia for a career elsewhere, and argued that her career had therefore been harmed rather than advanced by her participation in the Linkage project. She contended in regard to B28 and B31 that the efforts and advice of Professors Braithwaite and Grabosky had been ineffectual because they had not properly investigated her claims of plagiarism and bullying. In particular, that she ‘chose’ not to take advice implied that the advice was of a kind and utility that might invite someone to choose to follow it – and in Dr Hinds’s contention, it was not. In regard to B29, efforts to support her had been so minimal she was unaware of them. In regard to B 30 and B32, Dr Hinds contended that she had no punitive intent towards Dr Fleming: her only aim had been to secure recognition for her own work and to that end to have her claims properly looked into. Regarding B33, Dr Hinds argued that to describe her behaviour as ‘morally reprehensible’ was excessive, given that the strongest terms applied to Dr Fleming were that she may have been merely ‘careless’ or ’insensitive’.
I am not satisfied that any of these sentences is incomplete, incorrect, out of date or misleading. In these passages Professor Braithwaite has summed up her perspective on her interaction with Dr Hinds. She did so in mid-2008, several months after Dr Hinds had left the ANU. Professor Braithwaite said in evidence that she was unaware at the time that Dr Hinds had not moved to Griffith University. Dr Hinds suggests that is unlikely to be the case. There is no good reason to disbelieve Professor Braithwaite, but in any case it is irrelevant. Professor Braithwaite, in the first of the sentences under consideration here, was voicing her opinion that Dr Hinds had been offered an excellent opportunity but had not taken it. That it had turned out badly for her in a career sense does not invalidate Professor Braithwaite’s perspective on the career opportunities that had been available to her while she was at ANU. The actions described in the sentences that follow (B28, B29 and B31) have been considered at length; that they were unsatisfactory to Dr Hinds is the result of the differing perspectives that she and Professor Braithwaite bring to the issue.
As for the reference that Dr Hinds wanted to ‘punish’ Dr Fleming and conduct a ‘vendetta’ against her, similar issues arose in relation to B22 above. The strong language that Dr Hinds used in regard to Dr Fleming provided the basis for Professor Braithwaite’s inference that her (Dr Hinds’s) interests were not focused entirely on her own work but extended very much to what action might be taken against Dr Fleming. Examples of language that might have allowed Professor Braithwaite to draw this inference are: on 23 July 2006, in an email to Professor Grabosky (A20) ‘I am not aware of any actions to date to censor Jenny for her actions. I seek that in writing.’ Although that email was to Professor Grabosky, the idea that Dr Fleming should be censured reappeared in the grievance process and is referred to in the first paragraph of the Braithwaite email. On 27 February 2007, in an email to Professor Braithwaite (A40) Dr Hinds said of Dr Fleming ‘She has demonstrated herself to be a thief.’ On 2 April 2007 in a message to Professor Braithwaite (A43) Dr Hinds used the phrases ‘Jenny Fleming’s false claims of sole authorship’, ‘Jenny falsified the date of the 2005 report’, ‘Jenny’s intimidatory and aggressive actions’. The statement lodged on 18 March 2008 in support of her grievance (A58) is very strongly critical of Dr Fleming (and also of Professors Braithwaite and Grabosky). I cannot see that Professor Braithwaite’s inference that Dr Hinds wished to see action taken against Dr Fleming was biased or otherwise unfounded.
The reference to Dr Hinds’s actions being ‘morally reprehensible’ is very much an opinion. Dr Hinds argued that it was unfounded, and in particular that it was disproportionate compared with her statements about Dr Fleming. What is relevant in the context of the FOI Act is whether the opinion was unfounded in one of the specified ways. The effect of s 55(6)(c) is that different people can hold different opinions on the same matter provided their opinion is not improperly founded. I have already found that Professor Braithwaite’s opinion that Dr Hinds wished to see a vendetta against Dr Fleming was not unfounded; her opinion that this was morally reprehensible flowed from that and equally is not unfounded.
CONCLUSION
Where an applicant under section 48 of the FOI Act is unsuccessful in securing an amendment, the Act provides in section 51 that the decision-maker must take reasonable steps to facilitate an application to annotate the record. Proposals for annotation may only be disregarded if they are irrelevant, defamatory or unnecessarily voluminous. I offered to Dr Hinds at the end of the hearing that I was willing to consider her application for amendment, in those instances where I did not decide to make an amendment, as an application for annotation. If a particular proposal was in my view irrelevant, defamatory or unnecessarily voluminous I would substitute some words that did not fail that test and give her the opportunity to apply to have the replacement words amended. I made this offer so that by the single process the matter would be brought to an end. Dr Hinds declined to abide by the suggested process.
The FOI Act provides in section 66 that the Tribunal may make a recommendation to the Attorney-General that the costs of a successful or substantially successful applicant be borne by the Commonwealth. In the present matter it is doubtful that Dr Hinds has been substantially successful, and in any case as an unrepresented applicant she does not appear to have incurred legal costs at any significant level. There is no recommendation on costs.
This is an unfortunate case. A promising academic career seems to have been brought to an end by the events the subject of this review. It is by no means clear that this decision will put the matter finally to rest, although that is surely to be hoped.
DECISION
The decision under review is set aside and in its place is substituted the following.
In the email of 1 April 2008 from Professor Peter Grabosky to Ms Kathryn Leonard (the Grabosky email):
To the paragraph specified in this column ...
...the note in this column is to be appended:
The third paragraph
The Administrative Appeals Tribunal has determined that the record in this and the following paragraphs is inaccurate in dealing with a single misattribution issue when there were concerns over misattribution of authorship in respect of two documents: ‘Policing in the 21st Century: Safety and Security in the ACT – Survey Report’ (2005) and ‘Policing in the 21st Century: Final report from the Focus Groups’ (2005). The first of these was an internal document but had limited circulation beyond the ANU Project team and ACT Policing through its use in meetings with Neighbourhood Watch and other community groups.
The seventh paragraph
The Administrative Appeals Tribunal has determined that the first sentence of this paragraph is inaccurate and misleading. Dr Hinds withheld one power point file from a single colleague in accordance with an arrangement to which Professor Grabosky was party, but did not exhibit any more general attitude or behaviour involving denying her colleagues access to Project documents.
The paragraph beginning ‘Professor Grabosky at no time encouraged...’
The Administrative Appeals Tribunal has determined that in the third sentence of the paragraph the reference to an accusation of plagiarism is incomplete in not identifying the details of the accusation. The sentence should include the information that the accusation was made by Dr Fleming in respect of an academic paper authored by Dr Lyn Hinds and Dr Tina Murphy.
The paragraph beginning ‘This was a matter between Dr Hinds and Dr Fleming...’
The Administrative Appeals Tribunal has determined that the first sentence of this passage is inaccurate. Access to the PowerPoint file was sought by Professor Grabosky from Dr Hinds on behalf of Dr Fleming, and the matter involved the three of them.
The paragraph beginning ‘Professor Grabosky was always concerned...’
The Administrative Appeals Tribunal has determined that the final sentence of the paragraph is misleading, as it could be taken to be a warning generally against interaction with staff or others at the Centre of Excellence in Policing and Security. The sentence would not be misleading if the words ‘with Dr Fleming’ were inserted after ‘interaction’.
The paragraph beginning ‘The Conference in question...’
The Administrative Appeals Tribunal has determined that the final sentence of this paragraph is incomplete. The passage should include the information that Dr Hinds did not attend the conference, and that as a result no data collected during the research project were presented at the conference.
The paragraph beginning ‘It would have been inappropriate...’
The Administrative Appeals Tribunal has determined that the final sentence of this paragraph is misleading. It does not explain that the conference held at RegNet at the end of the Project was an invitation-only event for a maximum of perhaps 50 people and that the Annual Conference of the Australian and New Zealand Society of Criminology was a public conference attended by perhaps 300 people. The degree of contact to be expected between two attendees at the two events would therefore be very different.
The paragraph beginning ‘ On two separate occasions...’
The Administrative Appeals Tribunal has determined that the third and fourth sentences of this paragraph are incomplete. Dr Hinds did not simply decline the request; rather she advised Professor Grabosky that she did not hold all the material that was to be archived and was therefore unable to accede to his request.
The paragraph beginning ‘Shortly before the expiry...’
The Administrative Appeals Tribunal has determined that this paragraph is incorrect and misleading. It suggests that Dr Hinds made a conscious choice not to attend the morning tea when in practice she was not aware that the morning tea was to involve a farewell for her. The paragraph in its entirety is to be deleted.
In the email of 29 April 2008 from Professor Valerie Braithwaite to Ms Kathryn Leonard (the Braithwaite email):
To the paragraph specified in this column ...
...the note in this column is to be appended:
The third paragraph
The Administrative Appeals Tribunal has determined that the first sentence of this paragraph is factually incorrect and should be deleted. The Tribunal has further determined that the fifth and sixth sentences are misleading. The invitation to the morning tea did not make it explicit that Dr Hinds was to be farewelled, and that explains her non-attendance. The two sentences are to be deleted.
The fourth paragraph
The Administrative Appeals Tribunal has determined that the fourth sentence of the paragraph is inaccurate. Dr Hinds’s concern was not with her university status but with continuing access to university services, specifically library and computer services. The interruption of computer services for a week without warning was a source of particular concern.
The fifth paragraph
The Administrative Appeals Tribunal has determined that this paragraph is misleading. Despite Professor Grabosky’s recommendation, Griffith University made no offer of appointment to Dr Hinds.
The sixth and seventh paragraphs
The Administrative Appeals Tribunal has determined that the sixth and seventh paragraphs of the email are incorrect and misleading. Two bonus proposals were put forward. Professor Grabosky and Dr Fleming proposed a bonus to be awarded when research personnel published papers. Professor Braithwaite opposed this proposal and it did not proceed. A second proposal was made by Professor Grabosky for a bonus to be paid to Dr Hinds in order to retain her on staff until the Linkage Project was complete. Professor Braithwaite initially opposed this proposal but later relented and bonus payments were made to Dr Hinds. There is no connection between those bonus payments or any other bonus proposals and the possible promotion of Dr Hinds to a Level C position.
The eighth paragraph
The Administrative Appeals Tribunal has determined that this paragraph is misleading. Despite Professor Braithwaite’s opposition to amendments to the review materials on the RegNet website, Dr Fleming’s CV was amended, without Professor Braithwaite’s knowledge or approval.
The paragraph beginning ‘The initial complaint concerned...’
The Administrative Appeals Tribunal has determined that this paragraph is incorrect. The complaint related not to a report to the Australian Research Council, but to authorship of a research report entitled ‘Policing in the 21st Century: Safety and Security in the ACT – Survey Report’ (2005), which was cited in the 2006 Progress Report to the Australian Research Council.
The paragraph beginning ‘A report of a focus group...’
The Administrative Appeals Tribunal has determined that this paragraph is incomplete in not specifying the report that was the subject of the dispute. The report about which attribution of authorship was in dispute was ‘Policing in the 21st Century: Final report from the Focus Groups’ (2005).
The paragraph beginning ‘Three approaches seemed to be in order...’
The Administrative Appeals Tribunal has determined that this paragraph is misleading, in that no approach was made by Dr Hinds to the University counsellor. Rather Dr Hinds asked Professor Grabosky to arrange a formal mediation process.
The paragraph beginning ‘These materials were passed on...’
The Administrative Appeals Tribunal has determined that the eighth sentence of this paragraph is misleading. Dr Hinds’s wish to see amendments to Dr Fleming’s CV is limited to the material presented on the RegNet website in the context of the review of RegNet by the ANU’s Research School of Social Sciences.
The paragraph beginning ‘My argument for not doing so...’
The Administrative Appeals Tribunal has determined that the first sentence of the paragraph is incorrect. Professor Braithwaite had been advised of an alleged misattribution in Dr Fleming’s CV on the RegNet website and therefore had evidence of such misattributions, although she may nevertheless not have regarded it as appropriate to make any amendment to the CV.
I certify that the preceding 199 (one hundred and ninety nine) paragraphs are a true copy of the reasons for the decision herein of Mr Mark Hyman, Member. ..........................[sgd].. ...........................................
Associate
Dated 31 July 2012
Dates of hearing 6 - 7 February 2012, 16 April 2012 Date final submissions received 20 April 2012 Applicant In person Counsel for the Respondent Alan Anforth Advocate for the Respondent Timothy Neal, ANU
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