Secretary, Department of Health and Human Services v Beveridge
[2004] TASSC 9
•23 February 2004
[2004] TASSC 9
CITATION: Secretary, Department of Health and Human Services
v Beveridge [2004] TASSC 9
PARTIES: SECRETARY, DEPARTMENT OF HEALTH
AND HUMAN SERVICES (THE)
v
BEVERIDGE, Wendy
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M330/2003
DELIVERED ON: 23 February 2004
DELIVERED AT: Hobart
HEARING DATES: 11 February 2004
JUDGMENT OF: Blow J
CATCHWORDS:
Public Service – Duties and offences in relation to office – Other States or Territories – Tasmania – State Service Code of Conduct – Failure to comply with an Australian law – No adverse determination outside disciplinary process – Jurisdiction to determine whether breach of Code.
State Service Act 2000 (Tas), ss9(4), 10(3).
Aust Dig Public Service [64]
REPRESENTATION:
Counsel:
Applicant: S N Allston
Respondent: No Appearance
David Cookson: P W Tree
Solicitors:
Applicant: Solicitor-General
Respondent: Director of Public Prosecutions
David Cookson: Dobson Mitchell & Allport
Judgment Number: [2004] TASSC 9
Number of Paragraphs: 21
Serial No 9/2004
File No M330/2003
THE SECRETARY, DEPARTMENT OF HEALTH AND HUMAN SERVICES
v WENDY BEVERIDGE
REASONS FOR JUDGMENT BLOW J
23 February 2004
This is an application pursuant to the Judicial Review Act 2000 for the review of a decision made by the respondent as a delegate of the State Service Commissioner pursuant to the State Service Act 2000 ("the Act"). An employee in the State Service named David Cookson ("the employee") was charged with seven alleged breaches of the State Service Code of Conduct. That Code is set out in the Act, s9. Two of the allegations against him concerned alleged breaches of s9(4), which requires an employee, when acting in the course of State Service employment, to comply with all applicable Australian law. The respondent concluded that she did not have jurisdiction to determine whether there had been a breach of any Australian law unless there has been a determination by a court or other body having jurisdiction to make determinations as to breaches of that law. The applicant contends that there is no such restriction on the Commissioner and his delegates. The respondent did not appear at the hearing but the employee was represented by counsel, and sought to uphold the respondent's decision. What the respondent did constitutes a "decision" by virtue of the Judicial Review Act, s5(a), since she refused to make a determination as to each of the two relevant allegations.
As I have said, the State Service Code of Conduct is set out in the Act, s9. That section is a long one. It begins as follows:
"(1) An employee must behave honestly and with integrity in the course of State Service employment.
(2) An employee must act with care and diligence in the course of State Service employment.
(3) An employee, when acting in the course of State Service employment, must treat everyone with respect and without harassment, victimisation or discrimination.
(4) An employee, when acting in the course of State Service employment, must comply with all applicable Australian law.
(5) For the purpose of subsection (4)
'Australian law' means ¾
(a)any Act (including this Act) or any instrument made under an Act; or
(b)any law of the Commonwealth or a State or Territory, including any instrument made under such a law.
(6)…".
Under s10, a breach of the Code of Conduct can be punished by the appropriate Minister, or a delegate of the Minister, but only after an investigation and determination as to whether an employee has breached the Code. The following provisions in s10 are of relevance:
"10 ¾ (1) The Minister may impose one or more of the following sanctions on an employee who is found, under procedures established under subsection (3), to have breached the Code of Conduct:
(a)counselling;
(b)a reprimand;
(c)deductions from salary by way of fine not exceeding 20 penalty units;
(d)reduction in salary within the range of salary applicable to the employee;
(e)reassignment of duties;
(f) reduction in classification;
(g) termination of employment in accordance with section 44 or 45;
(2) …
(3) The Commissioner is to establish procedures for the investigation and determination of whether an employee has breached the Code of Conduct.
(4) The procedures referred to in - GS10@Gs3@ENsubsection (3) ¾
(a)are to afford procedural fairness in the determination of whether an employee has breached the Code of Conduct; and
(b)may be different for different categories of employees; and
(c)may vary according to the circumstances of the alleged breach of the Code of Conduct.
(5) …".
Under the Act, s20(1), the State Service Commissioner may issue directions relating to any of the Commissioner's functions under the Act, and such directions have effect according to their tenor unless they are inconsistent with or repugnant to other provisions of the Act. In May 2002, the Commissioner issued a direction entitled "Procedures for the investigation and determination of whether an employee has breached the Code of Conduct". That direction contains the following provisions:
"3.1The Head of Agency may investigate an allegation of a breach of the Code. The purpose of this investigation is to gather sufficient information to enable the Head to form a view as to whether or not reasonable grounds exist for a referral to the Commissioner for a determination that the Code has been breached (the information obtained will form the basis of the case that a breach has occurred).
3.2Where a Head becomes aware that an employee has been found guilty of an offence punishable by at least six months imprisonment, whether or not a conviction has been recorded or a term of imprisonment has been imposed, the Head may refer that matter to the Commissioner for a determination that the Code has been breached without the need for investigation by the Head.
…
3.7As soon as it appears that an alleged breach of the Code may involve a breach of criminal law the Head must contact Tasmania Police. Where the police become involved the application of these procedures should be postponed.
…
4.8In following these procedures the Commissioner:
(a) is to act according to equity, good conscience, and the merits of the case without regard to technicalities or legal forms;
(b)is not bound by the rules of evidence, but may inform himself or herself on any matter in such a way as he or she thinks just;
…".
In the disciplinary proceedings, it was alleged that the employee had failed to comply with the Workplace Health and Safety Act 1995, s16, in that he had failed to take reasonable care for the health and safety of staff who were under his direction or supervision. Proceedings in relation to the contravention of the section would normally take the form of a summary prosecution in the Magistrates Court. It was also alleged that the employee failed to comply with the Anti-Discrimination Act 1998, s17(2), in that he sexually harassed another person. An alleged contravention of that subsection would ordinarily be the subject of an inquiry by the Anti-Discrimination Tribunal.
It is clear that Parliament realised that there was an overlapping between the jurisdiction of the State Service Commissioner and the jurisdiction of the Anti-Discrimination Commissioner and the Anti-Discrimination Tribunal, and that it legislated in relation to that overlapping. The Act, s24, provides as follows:
"24 ¾ (1) The Commissioner is not empowered to determine a matter under section 51 that is within the jurisdiction of and is being dealt with by the Ombudsman, Tasmanian Industrial Commission or Anti-Discrimination Commissioner, or any other person or body that may be prescribed, until the matter has been dealt with.
(2) The Commissioner may refer any matter arising under this Act to the Ombudsman, Tasmanian Industrial Commission or Anti-Discrimination Commissioner, or any other person or body that may be prescribed."
It is worth noting that s24(1) relates only to reviews under s51 of actions taken by State Service officers and employees, and not to disciplinary proceedings under s10. Parliament could have worded s24(1) so that it referred to "a matter under section 10 or section 51", but it chose to refer only to s51.
Under the Anti-Discrimination Act, complaints may be made to the Anti-Discrimination Commissioner. The Commissioner may accept a complaint and deal with it, or may reject a complaint. The Anti-Discrimination Act, s64(1) provides as follows:
"64 ¾ (1) The Commissioner may reject any complaint if ¾
(a)…; or
(b)…; or
(c)the complainant has commenced proceedings in a commission, court or tribunal in relation to the same events, and that commission, court or tribunal may order remedies similar to those available under this Act; or
(d)a person other than the complainant has commenced proceedings in a commission, court or tribunal in relation to the same subject matter of the complaint and the Commissioner is satisfied that the subject matter may be adequately dealt with by that commission, court or tribunal; or
(e)in the opinion of the Commissioner, there is a more appropriate remedy that is reasonably available; or
(f)the subject matter of the complaint has already been adequately dealt with by the Commissioner, a State authority or a Commonwealth statutory authority; or
(g)in the opinion of the Commissioner, the subject matter of the complaint may be more effectively or conveniently dealt with by a State authority or a Commonwealth statutory authority.
If the Anti-Discrimination Commissioner accepts a complaint and refers it to the Anti-Discrimination Tribunal for an inquiry, and the Tribunal finds after an inquiry that the complaint is substantiated, there are various orders that the Tribunal may make. Significantly, the Anti-Discrimination Act, s89, contains the following subsections:
"(2) If the Tribunal finds after an inquiry that a complaint against a State Service officer or State Service employee is substantiated, it may order the Minister responsible for the Agency in which that officer or employee is employed to exercise any one or more of the powers specified in section 10 of the State Service Act 2000.
(3) If the Tribunal makes an order under subsection (2), the inquiry held under this Act is taken to be a determination arising from an investigation under section 10 of the State Service Act 2000."
There is no equivalent provision whereby a determination of the State Service Commissioner could be treated as a determination under the Anti-Discrimination Act.
The respondent provided written reasons for the decision under review. In her reasons, she referred to the relevant legislation and to the Commissioner's direction of May 2002. Her conclusion appears in the following passage:
"The allegations have been drawn in such a way that makes it impossible to determine the breach of the Code without necessarily determining a breach of another distinct piece of legislation. When reading the Act as a whole and considering s 89 of the Anti-Discrimination Act 1998, this could not be the intention of Parliament. I therefore conclude that the Commissioner/Delegate does have jurisdiction to determine whether there has been a breach of the Code but this does not extend to a consideration of a breach of other legislation unless there has been a determination by the other body seized with jurisdiction so as to provide the foundation of the Commissioner/Delegate's power under s 9(4) of the Act. There has not been a determination by either the Magistrates Court or the Anti-Discrimination Commissioner and therefore I rule that I do not have jurisdiction to consider the conduct based on a breach of s 9(4)."
In substance, counsel for the employee submitted that the Act, ss9 and 10, should not be interpreted as conferring jurisdiction on the Commissioner or a delegate of the Commissioner to make a determination that an employee had failed to comply with an Australian law without such a determination first having been made by the court or authority ordinarily responsible for making determinations as to breaches of that law. In substance, he submitted that Parliament could not have intended the functions of courts and quasi-judicial bodies to be usurped. He cited two reported cases in support of his argument ¾both single judge decisions from the Court of Queen's Bench of Manitoba.
Winnipeg Police Association v Winnipeg (1982) 140 DLR (3d) 729 concerned disciplinary proceedings against a police constable. He was charged under a regulation that provided that a person in his position "commits an offence against discipline and is punishable … if he is found guilty of … discreditable conduct, that is when on or off duty acting in a manner reasonably likely to bring discredit on the reputation of the Department, any other police department or any member of the police service." It was alleged that the constable had breached a recognizance. Any breach of the recognizance in question would have amounted to an offence contrary to the Criminal Code (Can), s133(3). Scollin J granted an application preventing the holding of a disciplinary hearing. After referring to the provisions of the Criminal Code (Can) as to the enforcement of recognizances, his Honour said, at 732:
"… but as the exclusive aim of the related set of provisions is the protection of the integrity of the criminal justice system, so the exclusive means to enforce them is that for that system; as the alpha of the conduct is solely the concern of the criminal law and the courts, so is the omega, and no other minor or major tribunal has any business exercising jurisdiction, acting as a fail-safe, complementary or parallel forum to effect indirect enforcement in the field of the administration of the criminal law, whether under a mushroom cloud of 'conduct unbecoming' or otherwise. In this respect the law relating to breach of recognizance resembles the law relating to contempt of court; it would be unthinkable for another tribunal to subsume under its disciplinary powers, and thereby arrogate to itself, the question whether a party was in contempt of the courts of justice."
The wording of the regulation to which that case related was significantly different from the wording of s9(4). The regulation did not expressly make the breach of any law a disciplinary offence whereas s9(4), in a disciplinary context, expressly requires that State Service employees comply with all applicable Australian laws when acting in the course of their employment.
Rosenbaum v Law Society of Manitoba (1983) 150 DLR 352, concerned disciplinary proceedings against a lawyer. In those proceedings, it was alleged that the lawyer was guilty of professional misconduct because he had committed perjury. Scollin J refused an application for prohibition, saying that the law society had a duty to ensure that one of its members did not deceive the court of which he was an officer, irrespective of the criminal law connotations of the conduct in question. However his Honour also made the following comments, at 354:
"At one extreme, the decision in Winnipeg Police Assn v Winnipeg [1982] 6 WWR 617, 140 DLR (3d) 729, 18 Man R (2d) 14 (QB), on which the lawyer relies is, on its facts, authority for no wider proposition than that a professional disciplinary tribunal is precluded from initiating proceedings to prove, as a breach of its own disciplinary rules, specific conduct, such as breach of recognizance or contempt of court, which is expressly proscribed as part of the very disciplinary apparatus of the courts themselves, but which has not been pursued by the authorities directly concerned. At the other extreme, the public interest in the pursuit of certain heinous or grave acts, such as treason or murder, may be so significant as to pre-empt any disciplinary initiative to charge and pursue that aspect of the acts, with the appropriate professional penalty dependent on criminal conviction."
The critical question, both before the respondent and on this application, concerns the interpretation of ss9 and 10. Are they to be interpreted as being subject to an implied restriction prohibiting the Commissioner or a delegate from determining that an employee has failed to comply with an Australian law unless a court of quasi-judicial authority with general jurisdiction in relation to that law has first made a determination to that effect? To resolve that question, it is necessary to have regard to the ordinary rules of statutory interpretation. There is no rule of statutory interpretation creating a presumption that a decision-maker exercising statutory power lacks the power to decide a question that is normally one for a court or a different quasi-judicial decision-maker or authority. There is an ancient and somewhat anomalous rule of statutory interpretation whereby a statute conferring jurisdiction on justices will be presumed, in the absence of express words, not to confer power to make a finding in respect of a bona fide dispute as to title to land: Strickland v Killen [1983] Tas R 31. However the trend of modern authority has been to permit questions that would normally arise in one context to be determined in another. Thus, for example, a collateral challenge to the validity of a search warrant may be determined in the course of a criminal trial, without separate administrative law proceedings being instituted: Ousley v R (1997) 192 CLR 69. Similarly, it has been held that a planning tribunal has the power to determine the validity of a regulation: Attorney-General v Estcourt (1995) 4 Tas R 355. Counsel for the employee, Mr Tree, did not identify any rule of statutory interpretation that supported his argument.
It is true, as counsel for the applicant pointed out, that quasi-judicial tribunals and decision-makers are sometimes obliged to accept the correctness of decisions made by courts. Thus, for example, it has been held in relation to criminal deportation proceedings that the Administrative Appeals Tribunal is obliged to accept the correctness of a criminal conviction: Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649; Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209. A similar situation existed under the previous disciplinary regime applicable to the State Service: Tasmanian State Service Act 1984, s58(3), (4), (5) and (6). However Parliament has chosen not to repeat such provisions in the Act.
In my view the most fundamental rule of statutory interpretation is that general words should be given their ordinary literal meaning unless a contrary intention is shown. See Pearce and Geddes Statutory Interpretation in Australia, 5th ed, par2.3. Parliament has said in the State Service Code of Conduct that an employee, when acting in the course of State Service employment, must comply with all applicable Australian law. Parliament has also said that the Commissioner is to establish procedures for the investigation and determination of whether an employee has breached the Code of Conduct. There is nothing in the Act to suggest those words should be given some limited meaning. If one gives them their ordinary literal meaning, it follows that the Commissioner may establish a mechanism for a determination to be made as to whether an employee has failed to comply with an Australian law, regardless of whether any prior decision-making has taken place in relation to the same question.
The Acts Interpretation Act 1931, s8A(1), requires "an interpretation that promotes the purpose or object of the Act … to be preferred to an interpretation that does not promote the purpose or object". It appears from the long title to the Act that one of its purposes is "to provide for the … management of the State Service". That purpose is best promoted by adopting an interpretation whereby the Code of Conduct is clear, simple, and readily enforceable. The interpretation contended for by the applicant promotes the relevant purpose of the Act, whereas that contended for by Mr Tree on behalf of the employee simply does not. A requirement that a decision be made elsewhere before a determination could be made that s9(4) had been breached would hamper the disciplinary process, unnecessarily in my view.
The interpretation of ss9 and 10 adopted by the respondent and contended for by the employee would sometimes have absurd results, in my view. For example, a summary prosecution for a breach of the Workplace Health and Safety Act might not be instituted as a result of a limitation period being overlooked, or as a result of the exercise of a discretion not to prosecute, or as a result of budgetary constraints. The available evidence might be considered insufficient to prove beyond reasonable doubt the commission of an offence, but sufficient to satisfy the lower standard of proof applicable in disciplinary proceedings. In any of those situations, it would be absurd for a finding by a magistrate that the offence had been committed to be the sine qua non of a determination that s9(4) had been breached.
It is true that, without any implied restriction on the power to make determinations that s9(4) has been breached, it is technically possible that very serious questions could be decided in disciplinary proceedings when it would be more appropriate for such questions to be determined before a court or some other quasi-judicial body. It is theoretically possible for a determination to be made under s10(3) that a State Service employee has committed murder without that employee first being charged or brought to trial in a criminal court. But it is fanciful to think that such a situation might arise, and that some intention to limit the power to make adverse determinations should be imputed to Parliament in order to avoid such a situation. The Commissioner is required by the Act, s18(3) "to act according to equity and good conscience", and should be credited with ordinary common sense.
For the above reasons, I do not think ss9 and 10 should be interpreted in such a way that no determination could ever be made that s9(4) had been breached without a finding adverse to the relevant employee first having been made outside the disciplinary process. Despite there being specific legislative provisions in relation to the overlapping jurisdiction of the Anti-Discrimination Commissioner and the Anti-Discrimination Tribunal, I think the application of the same principles of statutory interpretation must lead to the same result in respect of contraventions of the Anti-Discrimination Act. There is nothing in the specific provisions I have referred to that indicates an intention on the part of Parliament that the power to make determinations as to breaches of the Code of Conduct is to be in any way restricted.
I therefore order that the decision of the respondent made on 13 November 2003 in respect of allegations that the State Service Act 2000, s9(4) had been breached by David Cookson be set aside. I will invite submissions as to any further or consequential orders.
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