The Secretary Department of Social Security v Willee, P.A

Re: THE SECRETARY, DEPARTMENT OF SOCIAL SECURITY
And: P.A. WILLEE; J. WILLIAMS; P.E. McDONALD and GAIL ANNETTE APPLETON
No. G127 of 1990
FED No. 351
Administrative Law
96 ALR 211

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Foster J.(1)

CATCHWORDS

Administrative Law - unlawful divulging of confidential Department of Social Security information - dismissal of employee recommended - appeal to Disciplinary Appeal Committee - mitigating circumstances - imposition of fine - whether appellable error - onus of proof - construction of Public Service Act 1922 - whether mitigating circumstances irrelevant considerations - whether unreasonable.

Administrative Decisions (Judicial Review) Act 1977.

Merit Protection (Australian Government Employees) Act 1984 - s 8, s 16, s 17, s 18, s 36, s 37.

Public Service Act 1922 - s 55(1), s 56, s 61, s 62, s 63B, s 63D.

Social Security Act 1947 - s 19(2).

Munning v Smith and Ors (1987) 22 IR 254

McDonald v. Director-General of Social Security (1984) 1 FCR 354

Minister for Health v. Thomson (1988) FCR 213

Minister for Aboriginal Affairs v. Peko-Wallsend Limited 1985-1986 162 CLR 24

Wouters v. Deputy Commissioner of Taxation (1988) 20 FCR 342

Bromley Londonborough City Council v. Greater London City Council (1983) 1 AC 768

HEARING

CANBERRA

#DATE 6:7:1990

Counsel for the applicant: A.H. Slater.

Instructed by: Australian Government Solicitor.

Solicitors for the first respondents: Australian Government Solicitor.

Counsel for the second respondent: L. Katz.

Instructed by: Geoffrey Edwards and Co.

ORDER

The application be dismissed.

The applicant to pay the respondents' costs of these proceedings.

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

JUDGE1

In these proceedings review is sought, pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1974 (the "ADJR Act") of a decision given by the first respondents on 24 January 1990. In giving the decision the first respondents were acting as a "Disciplinary Appeal Committee" established in accordance with sub division C of division 2 of part II of the Merit Protection (Australian Government Employees) Act 1984 (the "Merit Protection Act"). I shall refer to them hereafter as "the Committee". The second respondent is and was at all relevant times an officer of the Department of Social Security of which the applicant was the secretary. The decision was made by the Committee under s 63D of the Public Service Act 1922 ("the Act"). It varied the prior decision of a delegate of the Applicant to dismiss the second respondent from the Australian Public Service, by substituting for such dismissal a direction that the sum of $500 be deducted from the second respondent's salary.

Before considering the grounds of the present application, it is necessary to set out in some detail the relevant statutory provisions and the events which brought the second respondent before the Committee.
The first provision is s 19(2) of the Social Security Act 1947 which provides as follows:-

"An officer shall not, either directly or indirectly, except in the performance or exercise of any duty, function or power as an officer, make a record of or divulge or communicate to any person any information concerning another person obtained by reason of the performance or exercise of his or her duties, functions or powers under this Act."

A penalty of $12,000 or imprisonment for two years or both is now provided in respect of breaches of this section. It is to be noted that, although, as will appear later, the second respondent has admitted to a breach of this section, the proceedings with which this application is concerned do not constitute a prosecution under this section. Reliance is, however, placed by the applicant upon the penalty provisions as indicating the serious nature of a breach of the section. The proceedings in question were brought under disciplinary provisions of the Act. These are to be found in division 6 of part III of the Act.
By s 55(1) of the Act it is provided, inter alia, that "'misconduct', in relation to an officer, means a failure of the officer to fulfil his duty as an officer".
Section 56 of the Act provides so far as relevant that "an officer shall be taken to have failed to fulfil his duty as an officer if and only if-

. . .

(d) he engages in improper conduct as an officer".

Section 61 of the Act provides that if the supervisor of an officer has reason to believe that the officer may have failed to fulfil his duty as an officer he may require a written explanation from the officer and, if after consideration of that explanation he is of the opinion that the officer has failed to fulfil his duty, he may furnish a report to another officer, authorised for that purpose, who further considers the matter. If this second officer is of the same opinion he shall decide whether the offending officer should be charged and, if he so decides, he "shall, by writing under his hand delivered to the officer, charge the officer with the failure".
Where an officer is so charged with misconduct, it is provided by s 62(1) of the Act that an inquiry be held into the charge without undue delay. The inquiry is to be held by another officer authorised in that regard. By virtue of s 62(2) of the Act that officer shall not be the officer who furnished the report or laid the charge. Section 62 continues, so far as relevant, as follows:-

"(3) In an inquiry for the purposes of sub-section (1), a formal hearing is not required, but the officer shall be notified that an inquiry is to be held into the alleged misconduct and given an opportunity to state, in writing, within 7 days or such longer period as the officer holding the inquiry may allow after the notice is furnished to him, whether he admits or denies the truth of the matters alleged to constitute the misconduct and to furnish a statement in relation to those matters . . .

(4) Where an officer has furnished a statement in relation to the matters alleged to constitute misconduct, the officer shall, if he so requests, be given the opportunity of making a further oral statement to the officer holding the inquiry and, if he does so, a written record of his further statement shall be made by that officer. . . .

(6) Where the officer holding an inquiry into a charge is satisfied that the officer charged has failed to fulfil his duty as an officer, he may counsel the officer, or cause the officer to be counselled by another officer, or, if he is of the opinion that other action is necessary-

(a) may direct that there be taken in respect of the officer, action by way of-

(i) admonishing the officer;

(ii) causing a sum not exceeding $500 to be deducted from the salary of the officer; . . .

(b) may direct that the officer be dismissed from the Service."

An appeal from such a decision by an officer holding the inquiry is provided for by s 63D. This section, so far as relevant, provides as follows:

"(2) An officer may appeal to a Disciplinary Appeal Committee against a decision made in respect of him-

(a) if the decision relates to a charge of misconduct - on either or both of the following grounds:

(i) that the charge should have been dismissed; or

(ii) that the action directed to be taken in relation to the charge is unduly severe . . .

(3) A Disciplinary Appeal Committee shall hear each appeal submitted to it under sub-section (2) and may confirm, vary or set aside the decision against which the appeal is made. . . .

(6) Where an officer appeals to a Disciplinary Appeal Committee under sub-section

(2) against a decision on the ground that the action directed to be taken in respect of him is unduly severe, the Committee shall take into consideration any evidence given on the hearing of the appeal-

(a) of matters relating to the previous employment history and general character of the appellant . . .

Certain provisions of the Merit Protection Act must also be considered. This Act establishes an instrumentality known as the Merit Protection and Review Agency ("the Agency") which is given certain defined functions and powers. By s 8(1) it is required to "take reasonable steps to ensure that Review Committees carry out their functions properly and efficiently". By s 8(2) it is required (inter alia) to "issue guidelines, not inconsistent with this Act or the regulations, in relation to procedure to which Review Committees may have regard in performing their functions". Guidelines in relation to Disciplinary Appeal procedures have been issued pursuant to this section. I shall refer to them later in these reasons.
The Merit Protection Act deals with various kinds of appeal committees. In respect of Disciplinary Appeal Committees, the Agency is required (s 16) to arrange for the establishment of such Committees as appear to be required for the purposes of division 6 part III of the Act. It provides (s 17(1)) that such a Committee shall be constituted by a Convenor nominated by the Agency, a person nominated by the Secretary of the relevant Department and a person nominated by an appropriate organisation of which the officer is a member. The Convenor cannot be appointed as such unless (s 17(2)) he or she "is or has been a Magistrate or is enrolled as a legal practitioner of the High Court, of another federal court or of the Supreme Court of a state or territory and has been so enrolled for not less than 5 years". Such a Committee may take evidence on oath or affirmation and a member of the Committee may administer an oath or affirmation (s 18).
Sections 36 and 37 apply to all Review Committees and provide as follows:-

"36. A member of a Review Committee, while acting as such, is not subject to direction by any other person or by any body or authority other than a court.

37. (1) In proceedings before a Review Committee-

(a) the Committee shall make such

enquiries as it considers necessary into the matter before the Committee;

(b) the procedure of the Committee

is, subject to this Act and the relevant Act and to the regulations made under those Acts, within the discretion of the Committee;

(c) the proceedings shall be

conducted with as little formality and technicality, and as quickly, as a proper consideration of the matter before the Committee permits; and

(d) the Committee is not bound by

rules of evidence."

On 21 July 1989 the second respondent committed an admitted breach of s 19(2) of the Social Security Act 1947 by giving information to her brother as to the street number of a residence of a person in receipt of social security benefits. This came to the notice of her supervisor with the result that procedures set out above were set in train. She was charged under s 61(2)(b) of the Act with having failed to fulfil her duty as an officer within the meaning of s 56(d) in that: "On 21 July 1989 she engaged in improper conduct as an officer. Particulars of the Charge are that she breached s 19(2) of the Social Security Act 1947 in that she divulged information about a client to a person who was not authorised to receive the information".
An inquiry under s 62 of the Act was duly held by an appropriate officer, Mr Rock, who was satisfied pursuant to s 62(6) that the charge was made out and was of the opinion that action other than counselling was necessary. He was of the view that admonition or fining was not appropriate and that the appropriate course was to direct that the second respondent be dismissed from the Australian Public Service. He gave such a direction.
The second respondent appealed to the Committee. She was represented by an officer of the Public Service Union. Mr Rock appeared on behalf of the Department. She did not seek dismissal of the charge but claimed that the action taken was unduly severe.
The Committee found the following facts, as set out in its reasons:
"7.1.1 The Appellant, then aged 22 years had joined the department some six months prior to the commission of the offence which she admitted at the hearing. She gave evidence that she was first approached by her mother by telephone from Queensland who requested that she supply the street number of the address of a woman whom the appellant's brother believed would be able to assist in proving his defence of self-defence in relation to an assault charge which he was then facing. The appellant declined on the grounds as she deposed that it would have been to her knowledge improper for her to do so.
7.1.2 The appellant who was then parturient with a child subsequently delivered on 3 October, 1989 was in frequent contact with her parents in relation to her own parlous medical condition occasioned, as she deposed, by the presence in her blood stream of antibodies or antigens from an earlier blood transfusion. These hostile blood agents were likely to be a threat to the life of her unborn child. The medical evidence on this issue was derived solely from the appellant a somewhat unsatisfactory state of affairs but ultimately one to which Mr Rock did not demur. The appellant was also distressed and trying both to give and receive support to the other members of her family in respect of the then recent and sudden death of her 16 year old sister from an heart attack. On each occasion that she was in communication with her family members, the appellant was subjected to further and persistent requests for the information concerning the street number of the address of the alleged prospectant witness. These requests came particularly from her father. Ms Findlay tendered a letter from that gentleman acknowledging his persistent requests for his daughter to supply the information for her brother. The appellant resolutely withstood the satisfaction of these requests.
7.1.3 Ultimately, on 21 July, 1989 the appellant's brother telephoned her from gaol in Queensland and importuned her himself and she succumbed, thus committing the offence.
7.1.4 On or about 5 September, 1989 the appellant learned from her mother that the police had charged her brother with conspiracy to murder the person whose street number the appellant had divulged to him and that he and his co-conspirators had been informed upon by another person. From a letter written by the police informant in the matter tendered in evidence by Mr. Rock, it seems that the witness was not harmed but taken into safe custody. When interviewed by the police on 15 September the appellant freely confessed her actions, of which the appellant swore the police had no knowledge until she disclosed them. The police have determined not to charge the appellant with any offence in relation to the matter and she has agreed to turn Queen's evidence against her brother.
7.1.4 (sic) On receipt of the information in the letter from the police informant the department took the instant action. She was first suspended on 18 October, and then made the subject of an enquiry on 19 October, 1989. After several visits from the investigating officer (the same Mr Rock), the parties finally made contact on 30 October, 1989. The appellant supplied a signed handwritten statement of confession but without reference to any mitigating circumstances or display of remorse or contrition. The appellant said in evidence that this was because of her acute distress and worry about the matter."
On the basis of these findings, the Committee varied Mr Rock's prior decision by substituting for dismissal the direction that the sum of $500 be deducted from the appellant's salary. In so doing, the Committee substituted for the maximum available penalty, namely dismissal, the next available penalty in order of magnitude, namely the imposition of a maximum fine. The other penalty options provided in s 62(6) of the Act, which have not been set out above, were simply not appropriate having regard to the very junior status of the second respondent.
In their written reasons, the Committee set out in detail the contentions of the department as presented by Mr Rock and those of the appellant as presented by the Union representative. The Committee expressed its conclusion, based on the facts as found and having regard to the submissions made to it, as follows:-
"7.4.1 The DAC is of the view that (leaving aside serious criminal offences) it is difficult to imagine a more serious disciplinary offence than that of divulging confidential information to those ineligible to receive it. Few (if any) disciplinary offences could have a more serious impact on the efficient conduct of the affairs of the DSS. It follows that except in rare cases, any breach of the provisions of Section 19 of the Act will justifiably be visited with dismissal.
7.4.2 Had the DSS satisfied the DAC that the actions of the appellant were designed to assist the true purpose of her brother's intentions there would be no question that the original direction would have been confirmed. The minds of the members were left in considerable suspicion on this issue - it being almost inconceivable that if the only information required by the brother was the street number of the witness's address, the appellant would not have suggested to him to obtain it by obvious and legal methods within his power. A DAC cannot proceed on suspicion; the appellants sworn evidence to the effect that this never occurred to her in her distressed state cannot be entirely discounted.
7.4.3 Having reached that conclusion, by its very nature the offence can still be said to have warranted dismissal. Nevertheless it cannot be said that for every such offence dismissal is mandatory - otherwise the legislature would have so decreed. The evidence in the mitigation was extremely powerful and in particular demonstrated:
7.4.31 That the appellant, presented as a young inexperienced person of quiet shy and timid disposition as well as somewhat naive. As such she was more susceptible than most people would be to the suggestion that the purpose for which the information might be used was not just innocent but helpful to a just cause. These characteristics also made her vulnerable to the other matters causing her stress at the time.
7.4.32 That the appellant had a strong appreciation of her duty in the matter which was only overborne by persuasive and persistent requests over a reasonable period of time; made by people with whom she was emotionally involved on several levels and upon whom she depended for support and to whom she was endeavouring to provide support over the death of her 16 year old sister. Some of these people were the same persons to whom she had looked since infancy for guidance between right and wrong. In this regard her father's actions during her moral dilemma were particularly reprehensible.
7.4.33 The appellant to be suffering from significant emotional stress occasioned by her pregnancy to her de facto husband and the unknown complications of her unborn child's blood condition."
The applicant contends that these reasons, and also certain passages in the transcript of evidence of the proceedings demonstrate error amenable to correction under the ADJR Act. Counsel for the applicant puts three separate submissions.
Firstly, he submits that the Committee fell into an error of law in that they approached the second respondent's appeal on the basis that the onus lay upon the applicant to justify the decision appealed from and decided the appeal on the basis that the onus thus wrongly imposed had not been discharged. He points in particular to the statements made in paragraph 7.4.2 of the Committee's written reasons as set out above. Reference was also made to some passages in the transcript of the proceedings which tended to indicate a view on the part of the Committee that the applicant bore this onus. It was submitted that the Committee was thereby in error. Not only did the applicant bear no such onus, the true position was that the second respondent bore an onus of establishing to the Committee's satisfaction that the penalty appealed from was too severe. This being so, it was submitted that, on the basis that the "minds of the members were left in considerable suspicion" on the question whether the second respondent knew the true reason for her brother's inquiry the Committee should have held that the second respondent had not discharged the burden of establishing her lack of awareness of the true situation.

To this submission there are, in my view, two answers. Firstly, a fair reading of the Committee's reasons, in light of the transcript and exhibits, satisfies me that the Committee was not in fact approaching the resolution of the appeal on the basis of considerations relating to onus of proof. It is clear from the transcript that no argument as to onus was ever addressed to the Committee. The passages relied upon, the strongest of which is the passage set out above, do not, in my view, indicate that the Committee was deciding the matter by reference to considerations of whether an ultimate onus of proof lay upon one side or the other. Paragraph 7.4.2, in my opinion, does no more than indicate that the initial suspicions of the Committee were overcome by the sworn evidence of the second respondent in the absence of any countervailing evidence brought by the applicant. This amounts merely to a statement of a finding on the evidence before the Committee. Insofar as it has any connection with onus in the legal sense, it could, perhaps, be described as an indication that a purely evidentiary onus, i.e. of adducing countervailing evidence, had not been discharged by the applicant. It says nothing as to failure to discharge any ultimate onus of proof. It amounts to no more, in my view, than a finding on the facts that the second respondent did not know the true purpose of her brother's inquiry. This is amply born out, in my opinion, when the paragraph is read with subsequent paragraphs of the Committee's reasons.
If I am wrong in this interpretation of the Committee's reasons, I would nevertheless reject this ground of appeal, on the basis that the Act, on its proper construction, does cast a general onus upon the applicant, in a hearing before the Committee, of establishing its case against an officer who has been the subject of disciplinary action. It is clear, in my opinion, that the Act contemplates that the proceedings before the Committee shall be of a different nature from the proceedings brought under s 62(1) of the Act. These latter proceedings are an "inquiry" in which "a formal hearing is not required". The officer charged with the conduct of the inquiry proceeds in accordance with ss 62(3) and (4). He simply gathers the necessary information as contemplated by those provisions. There is no presentation of material to him by some other officer who has conducted an investigation. He is both the investigator and the adjudicator.
On the other hand, the provisions of s 63D clearly require that there shall be a "hearing" before a Disciplinary Appeal Committee of any appeal from an officer's decision under s 62. Although it would appear that s 37 of the Merit Protection Act would apply to the Committee with the result that it would be empowered to "make such inquiries as it considers necessary" and that it is "not bound by the rules of evidence", its procedure is to be within its discretion subject to any applicable statutory or regulatory provision.
Whilst it is clear that a Disciplinary Appeal Committee is to act with complete independence (Merit Protection Act s 36), can determine its own procedure, and undertakes its own inquiries if so minded, the reference to a "hearing" in s 63B contemplates, in my view, that for the most part a Disciplinary Appeal Committee, acting under s 63D, will conduct a hearing in which relevant materials are placed before it by the inquiring officer seeking to sustain his decision and by the officer, the subject of disciplinary decision, seeking to have that decision set aside or varied. Although the power resides in the Committee to initiate its own inquiries, one would envisage that that power would be exercised only rarely and in special circumstances.
It has been properly conceded by the applicant that a hearing before a Disciplinary Appeal Committee under the Act is a hearing de novo of the charge (Munnings v Smith and Ors (1987) 22 IR 254). Although a Committee must necessarily remain free to determine its own procedure, the Agency has, pursuant to s 8(2) of the Merit Protection Act issued guidelines for the assistance of Disciplinary Appeal Committees, which guidelines appear to have been followed in the instant case. These guidelines include a document entitled "Advice to Participants in the Disciplinary Appeal Process". Paragraph 13 describes the hearings and their nature as follows: "DAC hearings are conducted with as little formality as possible. The task of the DAC is to hear each appeal, and to confirm, set aside or vary the decision against which the appeal is made; it should be noted that it is possible for the DAC to increase or decrease the severity of the original decision. The DAC's role is to examine the matters before the Committee afresh, not to review the decision appealed against". In my view, this is a correct statement of the Committee's role.
Reference may also be made to paragraphs 14, 15 and 16 of this document. These provide as follows:-
"14. In order to conduct an adequate and fair inquiry certain procedures are generally followed. An opening address is usually presented by a representative of the Department/Authority taking the disciplinary action.
15. Witnesses may be called to give evidence under oath or affirmation. Both parties to the appeal (i.e. the appellant and the department) or their representatives have the right to cross-examine witnesses.
16. Documentation from either party may be produced in evidence and noted by the Convenor as exhibits. Both parties have an opportunity to make a closing statement."
Procedural matters are further dealt with in part B of this document which contains further guidelines under the heading "Presentation of facts by the Department". These are as follows:
"10. It is expected that the appellant and the department will present, or arrange to have presented on their behalf, their case to the Committee. This would include tabling all of the papers to be used in the case (which have been previously made available to all parties - in particular the appellant), addressing the DAC and examining witnesses. They may conduct their own case or be represented by a legal practitioner, or other person, who may examine witnesses and address the DAC on their behalf.
11. The department's representative (i.e. person presenting the case for the department) should be aware that while the members of the DAC may have read beforehand the papers made available to the appellant, it is necessary for the department to make its case before the Committee, drawing attention to the relevant papers as appropriate. It is important to understand that the Committee has the duty of not merely reviewing the department decision but of examining the matter afresh.
. . .
13. What thoughts an inquiry officer may have had - or whether he/she neglected to examine a matter or misconceived a point is not relevant to the matters before the Committee. The alleged misdemeanour or breach of regulations and whether evidence sufficient to sustain the finding that the appellant committed the breach are the matters which the DAC will consider.
14. Based on the evidence placed before it and its findings, the Committee's role is then to decide what, if any, is the appropriate disciplinary action."
Although these guidelines cannot, in view of the legislation, operate as binding directions to the Committee as to its procedures, they constitute, nevertheless, a proper exercise of the Agency's powers under s 8(2) of the Merit Protection Act. Similarly if a Committee acting under s 63D of the Act follows these procedures it will, in my opinion, be acting within the ambit of the powers conferred upon it by s 63D.
It is, therefore, appropriate that a Committee should conduct its proceedings in accordance with these guidelines and, thereby act in like manner to a court conducting a de novo hearing of a charge brought by a prosecuting authority against a citizen. What effect does this have on questions of onus? It would surely be strange if, even allowing for the administrative nature of the proceedings, the general onus, based on common sense and considerations of justice and summed up in the expression "he who asserts must prove", did not apply. Although many statements are to be found in the authorities (see e.g. McDonald v. Director-General of Social Security (1984) 1 FCR 354) to the effect that questions of onus of proof and the rules relating thereto which have evolved in respect of curial proceedings are not generally appropriate to purely administrative determinations, these, of course, must be read in the light of the particular matters under consideration in those cases.
There is no warrant, in my opinion, for asserting a general proposition that the concept of an ultimate onus of proof is inappropriate to proceedings before an administrative tribunal where that tribunal is to determine whether a charge brought against an officer has been proved and, if so, what, if any, is the appropriate penalty to be imposed. In such circumstances common fairness would require the casting of the customary onus upon the prosecution to prove its case. Such a situation is, in my opinion, significantly different from one where a mere inquiry or investigation of an administrative character is being undertaken.
The views which I have expressed are consistent with what was said by Beaumont J in Minister for Health v. Thomson (1985) 8 FCR 213 at p 223:-

"Generally speaking, concepts of onus of proof used in adversary proceedings are inapplicable in administrative proceedings in the social security area: see McDonald v Director-General of Social Security (1984) 1 FCR 354. However, where, as here, a breach of discipline, or something analogous is alleged, the onus of proving such a breach lies upon the accuser. The general position is explained by Professor Enid Campbell in 'Principles of Evidence and Administrative Tribunals' published in Campbell and Waller (ed), Well and Truly Tried, (1982), p 53: 'There may be legal burdens of proof to be discharged in administrative proceedings just as much as there are legal burdens of proof in purely judicial proceedings. Sometimes the incidence of the burden of proof is spelled out by legislation, but more often than not it is simply implied in the nature of the proceedings. If, for example entitlement to grant of a licence or benefit depends on proof that certain qualifications have been met, the burden of proving the relevant facts going to qualifications must fall upon the applicant. Similarly where the issue to be decided is whether circumstances have arisen which would justify cancellation or suspension of a licence, or a finding that a breach of discipline had occurred, the onus of proving that these circumstances have arisen would devolve on the accuser. This would be so notwithstanding that the accuser was also, of necessity, the person or body having authority to adjudicate.'"

I respectfully agree with and adopt this passage. The result is that, in my opinion, there would have been no error in the Committee's having approaching the present matter on the basis that the applicant bore the general onus of establishing the breach charged.
The applicant further submits, however, that even accepting that this onus existed, it did not extend to the sustaining before the Committee of the penalty previously imposed. It was contended that the onus lay upon the second respondent to establish to the Committee's satisfaction that the penalty of dismissal should be set aside and some less severe penalty imposed. Hence if she left the Committee in a state of uncertainty as to the existence of facts upon which she relied, she would not satisfy this burden. I reject this submission. In my opinion, in a de novo hearing, the person in the position of prosecutor bears the overall onus of establishing not only the offence but also all facts upon which he seeks to rely for the grounding of a penalty of a particular nature. In these proceedings the issue was plainly tendered as to whether or not the second respondent was aware of the true purpose of her brother's inquiry. Clearly, if she were so aware, dismissal would have been warranted and the penalty previously imposed would have been sustained before the tribunal. Consequently, if (and I have already expressed my views to the contrary) the Committee had decided the matter on the basis that the applicant had failed to discharge an ultimate onus of establishing a proper basis for the imposition of the penalty of dismissal, then I am of the view that this approach would nevertheless have involved no appellable error.
The second ground relied upon by the applicant is that the Committee took into account irrelevant considerations when determining the appropriate penalty to be imposed upon the second respondent for her admitted misconduct. Specifically it was put that the matters referred to in the Committee's reasons as set out above, namely the youth, inexperience, pregnancy, medical and family difficulties, marital status, unawareness of the true reason for her brother's inquiry, and the overcoming of her initial unwillingness to disclose the information by the persistent pressure and importuning of her family, were not matters that could be taken into account, unless they could be found to have contributed to a failure on her part to appreciate the nature or gravity of the offence. It was submitted that in the circumstances that she conceded at all times that she knew that the divulging of such confidential information constituted a most serious offence, these matters were simply irrelevant to the Committee's deliberations.
I do not accept this submission. Some of these circumstances, at least, would be matters that the Committee was required to take into consideration under s 63D(6)(a). Apart from this the Act itself contains no warrant, in my opinion, for thus restricting matters that the Committee may take into consideration on the question of penalty. There is nothing in the "subject-matter, scope and purpose of the Act" which, in my view, produces such a result by way of "some implied limitation on the factors to which the decision-maker may legitimately have regard" (per Mason J. Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-1986) 162 CLR 24 at 40). I am satisfied that the matters set out in the Committee's reasons were all proper matters to be taken into account on the question of mitigation of penalty. Consequently I reject this ground of appeal.
The applicant's final submission is that the decision of the Committee was necessarily flawed as it was so unreasonable that no reasonable person could have come to it (s 5(2)(g) of the ADJR Act).
The Full Court of this Court in Wouters v Deputy Commissioner of Taxation ((1988) 20 FCR 342 at 352) said of this section, "this ground of invalidity of administrative decision has been described by Lord Diplock in Bromley Londonborough City Council v Greater London City Council (1983) 1 AC 768 at 821, as being reserved for 'decisions that, looked at objectively, are so devoid of any plausible justification, that no reasonable body of persons could have reached them'." The applicant's submission is that the Committee's decision fell into this category by reason of the fact that the divulging of confidential information by an officer was so serious a breach that dismissal was the only appropriate penalty. It was argued that a person who committed such a breach could never be trusted again and that her continued employment was, in effect, unthinkable. The answer to this submission is, in my opinion, to be found in the Committee's reasons. It is perfectly clear that the Committee took a most serious view of the offence but took into account that the Act does not provide that dismissal shall be mandatory where such a breach has occurred. In those circumstances it was appropriate for the Committee to take into account mitigating factors which it found to be established. It was both open to it to do so and appropriate that it should have done so. Clearly, in the special circumstances of this case as so found, the Committee felt that the second respondent's employment could be continued and that the imposition of the second most severe available penalty was a sufficient penalty. This was not a decision, in my view, vulnerable to the ground of invalidity relied on.
I find that none of the grounds relied upon in the application has been made out. Accordingly I dismiss the application with costs.

[1990] FCA 351

06 JULY 1990