Bohills v Friedman

THE SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

REASONS FOR JUDGMENT 1 By application filed on 11 April 2000, the applicant sought review pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") of a decision of a Disciplinary Appeal Committee of the Merit Protection and Review Agency. The decision, made on 6 March 2000, was to find proven a charge against the applicant of failing to fulfil his duty as an officer and to confirm a direction of another officer that the applicant "be fined" $350 in respect of that charge. An amended application was filed on 14 July 2000, naming the three persons who constituted the Disciplinary Appeal Committee ("the DAC") as the first respondent and the Secretary of the Department of Immigration and Multicultural Affairs as the second respondent. 2 In March 1999, the applicant was employed in the Australian Public Service. He held the position of Australian Public Service officer Level 4, Criminal Deportation Unit, Compliance Section, Department of Immigration and Multicultural Affairs in Melbourne. On 26 March 1999, the applicant was required to travel by car from Melbourne to Castlemaine to interview a prisoner in the Castlemaine gaol. He invited Ms Bernadette O'Brien to join him. She was a temporary employee in the Criminal Deportation Unit, whose duties included gathering information on criminal offences to assist case officers in the preparation of submissions to senior management regarding possible deportation of offenders. 3 The applicant and Ms O'Brien stopped for morning tea on the way to Castlemaine. They arrived at the gaol at about 11.30 am and completed their interview at about 2.30 pm. They then purchased takeaway food for lunch. The applicant drove to a house in Castlemaine which belonged to a friend of his, and which he had permission to use, but which was unoccupied at the time. He and Ms O'Brien ate their lunch, seated at a large dining table. They both then played a harmonium (in the reasons of the DAC called a "pump organ") for a short time before returning to Melbourne. On their return, Ms O'Brien spoke to another officer of the department about her experience, said that she had felt uncomfortable, but declined to take the matter further at that stage. 4 At the time these events occurred, s 61(2) of the Public Service Act 1922 (Cth) ("the Public Service Act") provided as follows: "Where an officer authorized by the relevant Secretary for the purposes of this subsection is of the opinion that an officer may have failed to fulfil his duty as an officer, the authorized officer shall, as soon as practicable, decide whether he should be charged and: (a) if he decides that the officer should not be charged-may counsel the officer or cause a supervisor of the officer to counsel the officer; or (b) if he decides that the officer should be charged-shall, by writing under his hand delivered to the officer, charge the officer with the failure." Section 56 contained an exhaustive definition of when an officer should be taken to have failed to fulfil his duty as an officer. Paragraph (d) of that definition provided that an officer failed to fulfil his duty as an officer if "he engages in improper conduct as an officer". Section 55(1) defined "misconduct" in relation to an officer as a failure of the officer to fulfil his duty as an officer. Section 62 made provision for the conduct of an inquiry into a charge of misconduct and for the manner in which that inquiry was to be held. By subs (6), where the officer holding an inquiry into a charge was satisfied that the officer charged had failed to fulfil his duty as an officer, the inquiring officer was empowered to direct that there be taken, in respect of the officer, action of various kinds. These included, by s 62(6)(a)(ii), causing a sum not exceeding $500 to be deducted from the salary of the officer. 5 By a document dated 18 August 1999, the applicant was charged pursuant to s 61(2) in the following terms: "I, Bruce Campbell GRIFFIN, Executive Level 1, an officer authorised by a delegate of the Secretary for the purposes of subsection 61(2) of the Public Service Act 1922 ('the Act'), being of the opinion that JOHN BOHILLS, APS level 4, of the Criminal Deportation Unit, Compliance Section, Department of Immigration and Multicultural Affairs ('the department'), Melbourne, in the State of Victoria, may have failed to fulfil his duties as an officer HEREBY CHARGE the said JOHN BOHILLS with having failed to fulfil his duty as an officer within the meaning of subsection 56(d) of the Act in that he engaged in improper conduct as an officer. PARTICULARS OF THE CHARGE are that on 26 March 1999, while in Castlemaine, Victoria, on duty with Ms Bernadette O'Brien, an APS Level 2 employed by the Department on temporary contract, the said Mr Bohills drove himself and Ms O'Brien to an unoccupied house to have lunch they had purchased from a take-away venue when he knew or ought to have known that it was improper for him to do so. FURTHER PARTICULARS OF THE CHARGE are that Mr Bohills did not inform Ms O'Brien as to where he proposed they have their lunch prior to them arriving at the said house, and did not ask her whether she agreed to have lunch at that place." 6 It is important to note that the officer who laid the charge chose to particularise the alleged offence in this way. It might have been open to that officer to charge the applicant solely on the basis that he had taken a junior, temporary employee to an otherwise unoccupied house. By doing so the charging officer would have invited consideration of the question whether that conduct by itself constituted improper conduct, on the basis that any consent of Ms O'Brien was likely to have resulted from the imbalance of power between her and the applicant. The charge was framed, however, specifically on the basis that the alleged lack of prior information and of any opportunity for Ms O'Brien to consent or refuse were elements of the offence. The evidence Ms O'Brien and the applicant gave to the DAC on these issues was in conflict. The way in which the DAC resolved the conflict of evidence was crucial to its decision to find the charge proven. 7 The applicant was also charged at the same time with various other offences of failing to fulfil his duty as an officer. 8 Pursuant to s 62 of the Public Service Act, Greg Hackett was appointed to hold an inquiry into seven charges of misconduct. After conducting an inquiry, Mr Hackett was satisfied that the applicant did not seek the permission of Ms O'Brien prior to driving to the unoccupied house at Castlemaine. He also reached the conclusion that it was improper for the applicant to take Ms O'Brien to the unoccupied house without informing her and without seeking permission. Mr Hackett therefore directed that the applicant "be fined" $350 in respect of this charge. The question whether this was a valid direction, supported by the power given by s 62(6)(a)(ii) of the Public Service Act, was not raised in this proceeding. On one other charge, Mr Hackett also found the charge proven and directed that the applicant "be fined". In respect of each of the other five charges, Mr Hackett found the charge proven and directed that the applicant be dismissed. 9 In respect of the five charges the subject of directions that the applicant be dismissed, he sought relief in the Australian Industrial Relations Commission, pursuant to the Workplace Relations Act 1996 (Cth). In respect of the two charges the subject of directions that he "be fined", the applicant exercised his right of appeal pursuant to s 63D of the Public Service Act. At the time, that section provided as follows: "(1) A reference in this section to a decision in respect of an officer shall be read as a reference to a direction given in respect of the officer under subsection 62(6) or 63(1), not being: (a) a direction under subsection 62(6) that there be taken, in respect of the officer, action by way of: (i) admonishing the officer; (ii) causing a sum not exceeding $50 to be deducted from the officer's salary; or (iii) transferring the officer to an office at the same locality, being an office for which the officer is qualified and which has the same classification as the officer; or (b) a direction under subsection 63(1) that there be taken, in respect of the officer, action by way of transferring the officer to an office at the same locality, being an office for which the officer is qualified and which has the same classification as the officer. (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; or (b) in any other case-on the ground that the action directed to be taken in respect of him is unduly severe. (3) A Disciplinary Appeal Committee shall hear each appeal submitted to it under subsection (2) and may confirm, vary or set aside the decision against which the appeal is made. (4) Where a decision in respect of an officer is varied by a Disciplinary Appeal Committee in such a manner as to direct the taking of action of a kind referred to in paragraph 62(6)(a) or 63(1)(c), the direction takes effect in respect of the officer immediately it has been given. (6) Where an officer appeals to a Disciplinary Appeal Committee under subsection (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; (b) if the officer was, under section 63B, suspended without salary in respect of the misconduct or offence to which the decision relates-of any loss of earnings arising from that suspension; and

(c) if the officer is to be transferred to another office-of the expenses that will be incurred by the officer in connexion with that transfer. (7) A Disciplinary Appeal Committee shall give reasons, in writing, for its decision on an appeal under this section."

10 The DAC was established pursuant to s 16 of the Merit Protection (Australian Government Employees) Act 1984 (Cth) ("the Merit Protection Act"). In accordance with s 17, the DAC consisted of a chairman appointed by the Merit Protection and Review Agency to be a chairman of a Disciplinary Appeal Committee, a nominee of the chief officer of the applicant and a nominee of the relevant union, appointed to represent officers. Section 17(2) of the Merit Protection Act provided as follows: "A person shall not be appointed as the Chairman of a Disciplinary Appeal Committee unless he 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." The function of the DAC, laid down by s 63D(3) of the Public Service Act, was to "hear" the appeal submitted to it by the applicant. Its powers were to "confirm, vary or set aside the decision against which the appeal is made." The nature of the function to be performed by the DAC was not expressed clearly in s 63D. 11 In Allesch v Maunz [2000] HCA 40, (2000) 173 ALR 648, at [22] - [23], Gaudron, McHugh, Gummow and Hayne JJ identified three different types of appeals which may lie from a primary decision: 1. An appeal in the strict sense, in which the function of the appellate court is "simply to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given." Unless the matter is remitted for rehearing, the appellate court "can only give the decision that should have been given at first instance". 2. An appeal by way of rehearing, in which "the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error". There may be a statutory provision "which indicates that the powers may be exercised whether or not there was error at first instance." The appellate court "can substitute its own decision based on the facts and the law as they then stand." 3. A completely fresh hearing, called by the High Court a hearing de novo, in which the powers of the appellate court "may be exercised regardless of error." 12 These principles also apply to appellate tribunals that are not courts. See Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47, (2000) 174 ALR 585 at [12] - [13] per Gleeson CJ. Gaudron and Hayne JJ. At [13], their Honours said in relation to the second type of appeal: "Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing."

One of the disadvantages of the terminology used in drawing these distinctions is the ambiguity of the term "rehearing", which is apt to describe both the second and the third categories of appeals so identified. That word may have been used in other judgments to refer to an appeal by way of fresh hearing, thereby avoiding the awkward and antiquated use of a Latin expression. 13 Section 63D of the Public Service Act, as it stood at the relevant time, contained no express provision as to the type of appeal contemplated. Subsection (2) spoke of "grounds", but its effect was to provide for an appeal against a finding of guilt or an appeal against the severity of the punishment imposed at first instance. Subsection (3) required that the Disciplinary Appeal Committee "shall hear" the appeal. Only in respect of an appeal against

the severity of the penalty was there an express provision allowing the committee to take into account evidence given on the hearing of the appeal. 14 The nature of the function of such a committee arose as an issue for determination in Secretary, Department of Social Security v Willee (1990) 96 ALR 211. In that case, the issue was whether a committee had wrongly placed on the secretary of the relevant department the onus of establishing that the penalty imposed on an officer found guilty of failing to fulfil her duty as an officer was too severe. Foster J held that the committee in that case had not approached the resolution of the appeal on the basis of considerations relating to onus of proof. At 218 - 219, his Honour went on to say: "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 s 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 (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." As Foster J pointed out, the Public Service Act contemplated that the hearing before a Disciplinary Appeal Committee was the first hearing to which the officer charged was entitled. This factor suggests strongly that the role of such a committee was to conduct a fresh hearing. 15 In Day v Douglas [1999] FCA 1444 at [3], Gyles J expressed the view that an appeal to a Disciplinary Appeal Committee was by way of rehearing. His Honour did not specify whether he intended this to mean a rehearing in the sense of the second category of appeals discussed in Allesch v Maunz, or in the sense of a fresh hearing. On appeal, the Full Court in Commonwealth of Australia v Day [2000] FCA 474 did not discuss the nature of the function of a Disciplinary Appeal Committee and therefore expressed no view as to the correctness of Gyles J's conclusion. 16 In my view, the task to be performed by the DAC fell within the third category of appeals discussed in Allesch v Maunz, namely a fresh hearing. Of particular importance to this conclusion is that there had been no previous hearing. It may have been that the investigating officer, Greg Hackett, had interviewed the applicant, to ascertain what he said about the charge. There is no indication that he had given the applicant an opportunity to comment on all the evidence he had gathered in the investigation of the charge. Mr Hackett was not obliged to afford to the applicant such an opportunity. In my view, however, the DAC was required to determine, on the evidence before it: whether the applicant had engaged in the conduct with which he was charged; whether, if so, that conduct was to be regarded as improper; and, if it was, what was to be the appropriate penalty. 17 In substance, this appears to have been the view of the DAC as to its function. Although, as will be seen, it had been supplied in advance with a considerable amount of material relating to the two charges on which the applicant had appealed, and its members had read at least some of that material, it did not start from the position that it was obliged to have regard to that material. It heard the evidence of a number of witnesses. Only when the previously supplied material was tendered did the DAC receive it into evidence. 18 In accordance with s 63D(7) of the Public Service Act, the DAC provided written reasons for decision, dated 6 March 2000. In those reasons, it expressed findings in relation to the two charges before it. In relation to the charge that did not involve Ms O'Brien, the DAC found that the applicant had engaged in the conduct the subject of that charge, but that the conduct was not improper. It decided that the charge could not be made out and should have been dismissed and set aside the direction in relation to it. 19 In relation to the charge involving Ms O'Brien, the DAC found that the applicant had engaged in the conduct alleged in the charge and that his actions constituted improper conduct. It therefore found that charge proven. After considering various aspects relevant to the question of penalty, the DAC decided that the aims of the disciplinary provisions of the Public Service Act were best met by a deduction from salary in the amount of $350. It concluded that the direction in respect of this charge was not unduly severe and confirmed the direction. It is this decision that the applicant seeks to review. The respondents who constituted the DAC indicated to the Court that they were content to abide a decision of the Court. The Secretary of the Department of Immigration and Multicultural Affairs appeared by counsel to resist the application for review.

20 The grounds upon which the applicant relied were expressed in somewhat general terms in the amended application. In the course of argument, they refined themselves into two grounds. The first was that a breach of the rules of natural justice occurred in connection with the making of the decision, within the meaning of s 5(1)(a) of the ADJR Act, in that a reasonable person would have apprehended that the DAC's deliberations were tainted by bias against the applicant. The second ground, pursuant to s 5(1)(e) and s 5(2)(a) of the ADJR Act, was that the making of the decision was an improper exercise of the power conferred by s 63D of the Public Service Act, because the DAC took into account an irrelevant consideration in the exercise of its power to hear and determine the appeal. Both grounds arose from the transmission to the DAC prior to the hearing of the appeal of documents, including a substantial folder of material, and the use which the DAC made of that folder. 21 The folder contained a number of formal documents, relating to the appointment of Mr Hackett to investigate the allegations against the applicant, the suspension of the applicant pending the inquiry and the two charges the subject of appeal. It contained correspondence between solicitors then acting on behalf of the applicant and Mr Hackett, relating to the seven charges against the applicant. It contained written statements of witnesses interviewed by Mr Hackett in relation to the two charges the subject of the appeal and transcripts of interviews between witnesses and Mr Hackett. The transcripts included an interview with the former manager of the Criminal Deportation Unit, who held that position in March 1999. The interview included the former manager's very favourable expressions of opinion as to the credibility of Ms O'Brien. The folder included the complete report of Mr Hackett, relating to all seven charges with which his investigation had dealt. That report contained details of the allegations made against the applicant and of the findings of Mr Hackett in relation to them. 22 Finally, although not in the folder, the DAC received a report from the Brighton Psychology Centre dated 22 June 1995 of a psychological assessment of the applicant, and a report of a consultant psychiatrist dated 21 August (probably in 1996). Apparently these two reports had been produced in relation to a previous claim by the applicant for workers compensation. The latter report made reference to allegations of sexual misconduct made by a female student when the applicant worked previously as a school teacher. It did not contain any information as to any result of the making of any such allegation. The psychologist's report described the applicant as having a "maladaptive personality style with passive/aggressive tendencies." The consultant psychiatrist's report described him as "a rather prickly individual who could easily be slighted", but as suffering from no discernible psychiatric disorder at the time of the report. 23 The applicant's first contention was that the provision of this material to the DAC prior to the hearing of his appeal led to the DAC being biased. It is, of course, unnecessary for the applicant to show that the DAC held any actual bias against the applicant. The question is not one of the actual state of mind of a decision-maker. The test to be applied is the same as that expressed by the High Court of Australia in Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293 - 294: "[The] principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it." The test, therefore, is an objective one and is to be determined by reference to standards of reasonableness. 24 In Hercules v Jacobs (1982) 60 FLR 82, a former employee of the Australian Telecommunications Commission applied to the Court pursuant to s 5 of the ADJR Act for an order of review in respect of a decision of a disciplinary appeal board constituted under the Telecommunications Act 1975 (Cth). The decision of that board had been to dismiss the employee from his employment. Prior to dealing with the appeal, the board had received from the Australian Telecommunications Commission a copy of its file relating to the charges against the employee. The file contained material which ought not to have been brought to the board's attention, including information about a previous conviction of the employee. Applying the reasonable apprehension of bias test, Fitzgerald J quashed the decision of the board. His Honour was particularly influenced by the fact that the employee's credit-worthiness was important to the board's deliberations. 25 In Phillips v Secretary, Department of Immigration and Ethnic Affairs (1994) 48 FCR 57, Wilcox J overturned the decision of a similar disciplinary tribunal in the public service on the ground of apprehended bias. In that case, the chief officer of the department of the officer concerned had published within the department material that was highly critical of the officer's conduct. At 76 - 79, Wilcox J found that it was unlikely that such material had escaped the attention of the chief officer's nominee to the disciplinary tribunal, who was himself an officer of the same department. On the basis that one member out of three of the disciplinary tribunal was likely to have learned of the adverse material, Wilcox J held that there was a reasonable apprehension of bias on the part of the tribunal in approaching the hearing and determination of the disciplinary appeal. 26 In Day v Douglas [1999] FCA 1444, at [45], Gyles J said: "The applicant also sought to have the DAC decision set aside because of the manner in which material relating to a former disciplinary offence was utilised during the proceedings. I was not persuaded that there was any error sufficient to justify judicial review in what was done. However, that does not mean that I approve of what was done. On the contrary, I cannot see any legitimate forensic basis upon which counsel for the second respondent tendered, at the outset of the case, prejudicial material which was put forward as relevant only to penalty." 27 On appeal, in Commonwealth of Australia v Day [2000] FCA 474, at [22] - [24], the Full Court said: "In the court below Gyles J expressed his disapproval of the tender by Customs of Mr Day's antecedents at the outset of its case before the DAC. The Commonwealth complains that it was not heard on this question before his Honour and, on the hearing of the appeal, it sought to justify that tender by reference to various legislative provisions and to guidelines issued by the Agency under s 8(2)(b) of the Merit Protection Act. Those guidelines are published in Chapter 5 and Part IV of Chapter 7 of the Agency's Operations Manual. (Copies of those Chapters, which were not in evidence in the court below, were received in evidence on the appeal.) The Commonwealth submits that s 37(1) of the Merit Protection Act is particularly relevant. It provides, in effect, that the procedure of the DAC is within its discretion and that proceedings shall be conducted with as little formality and technicality, and as quickly, as a proper consideration of the matter permits. But that provision does not absolve the DAC of the obligation to accord procedural fairness. Further, reg. 145 of the Public Service Regulations, to which the Commonwealth refers, does not provide for documents furnished to an appellant in a timely fashion also to be given to members of the DAC ahead of the hearing. It is true that the guidelines issued by the Agency assume that documents 'previously provided' may 'need to be formally re-presented' (paragraph 7.46(3)), but the prior distribution of such documents is included in a different part of the Agency's Manual only as administrative guidance for the assistance of its staff. Contrary to the submissions of the Commonwealth, the decision in Barnes v Australian Telecommunications Commission (1989) 25 FCR 283 also provides no authority for the course adopted by Customs in this case before the DAC. In Barnes the evidence relating to penalty was of an entirely different character and had no ramifications for the credit of the officer in respect of the charges he was facing. The guidelines in Chapter 5 of the Agency's Manual state (paragraph 5.30) that the procedural requirements of natural justice will vary according to the particular circumstances of each case. That it (sic) is the instruction that should be steadily borne in mind by Customs in the further conduct of Mr Day's appeal under s 63D of the Act. It is unnecessary now to determine his contention on this point, but we may say that we share Gyles J's disquiet about what happened prior to and at the first hearing. The particulars of Mr Day's antecedents were irrelevant to whether he was guilty of the charge he is presently facing. Yet such information was apt to poison the mind of the DAC, notwithstanding its subsequent disclaimer. If Mr Day is eventually found guilty by a new Disciplinary Appeal Committee, evidence can be subsequently adduced of his history on the question of penalty, to which issue alone such evidence is relevant." 28 These authorities suggest strongly that the practice of providing to a Disciplinary Appeal Committee material from the file of an investigating officer prior to the hearing of an appeal under s 63D of the Public Service Act should not have been followed, particularly in a case where the credit of the officer concerned, and of another witness or other witnesses, was crucial to the outcome. This was one such case. The DAC specifically found Ms O'Brien to be a more credible witness than the applicant. It regarded its preference for the evidence of Ms O'Brien to that of the applicant as crucial to its decision. In such a case, there is a very real risk that members of a tribunal can be influenced in their assessment of the credit of witnesses by their background knowledge about the officer concerned, gleaned from the information provided in advance. 29 In the present case, as I have said, the DAC had in its possession before the hearing the folder of documents containing Mr Hackett's report, statements of witnesses and records of interview with witnesses. Early in the hearing, the chairman of the DAC announced that the DAC "is aware of the nature of the charges and has read the statements of evidence, if that's what they're called." Those statements were contained in the folder. It is therefore clear that the DAC had read at least some documents from that folder. It is likely that its members had read the whole of the folder. That appears to have been the object of providing them with it. It does not take much imagination to see the damage that could be done to the applicant, in a case in which his credibility was treated as crucial, by knowledge on the part of the members of the DAC of the findings of Mr Hackett in relation to the five charges that were not before the DAC and of the reports of the psychologist and the consultant psychiatrist as to the applicant's earlier mental state and his personality. Of particular importance was the mention in the consultant psychiatrist's report of a previous allegation of sexual misconduct. It was also entirely inappropriate that the members of the committee should see, or should have been provided with the opportunity to see, the opinion of the former manager of the Criminal Deportation Unit as to Ms O'Brien's credibility. 30 In response to this argument, counsel for the second respondent referred to Madafferi v Minister for Immigration and Multicultural Affairs [2000] FCA 158. In that case, an appeal from a decision to refuse a visa under the Migration Act 1958 (Cth) came to the Administrative Appeals Tribunal, constituted by a deputy president of that tribunal. Among the documents transmitted to the tribunal was a statement of a police officer relating to the visa applicant and his brother and particularly to their alleged involvement in criminal offences. The deputy president had refused to disqualify himself on the ground of apprehended bias. The visa applicant appealed to the Court. Heerey J upheld the decision of the deputy president. At [13], his Honour pointed out that a deputy president of the tribunal must be a legal practitioner of at least five years' standing and that the tribunal was not bound by the rules of evidence but could inform itself on any matter in such manner as it thinks appropriate. His Honour regarded the deputy president as perfectly capable of disregarding parts of the police officer's statement, or giving little weight to parts of it, as appropriate. Counsel for the second respondent in the present case drew parallels between the Administrative Appeals Tribunal and the DAC. Like the deputy president, the chairman of the DAC, unless a magistrate or former magistrate, was required to have been qualified as a legal practitioner for five years, pursuant to s 17(2) of the Merit Protection Act. Like the Administrative Appeals Tribunal, the DAC was not bound by the rules of evidence. 31 There is one important point of distinction between the present case and Madafferi. In Madafferi, the deputy president of the Administrative Appeals Tribunal was sitting alone. In the present case, the DAC consisted of three persons. Although the person chairing the DAC might have been perfectly capable of disregarding prejudicial and irrelevant material, or giving little weight to material to which little weight should have been attached, there is no requirement that the other two members of the DAC have legal training. Given the manner of their appointments specified in s 17(1) of the Merit Protection Act, it is unlikely that they were lawyers. Their voting power within the DAC was equal to that of the chairman. Given that the disqualification of one member of a multi-member tribunal for bias is sufficient to taint the entire tribunal (as in Phillips), it cannot be argued that Madafferi is in point. In my view, Hercules, Phillips and Day constitute a clear body of law relating to Disciplinary Appeal Committees under s 63D of the Public Service Act. Those authorities make it clear that the receipt by such a committee prior to the hearing of an appeal of material adverse to the credibility of the officer appealing, where such credibility is a matter to be determined by the committee, is sufficient to give rise to a reasonable apprehension that the committee might not bring an impartial and unprejudiced mind to the resolution of the appeal. In my view, such a reasonable apprehension existed in relation to the DAC. 32 That is not necessarily the end of the matter in relation to the ground of bias. It is established that a party may waive the right to object to apprehended bias on the part of a decision-maker. In Vakauta v Kelly (1989) 167 CLR 568, the High Court of Australia held that a party to a court proceeding, by not objecting at the trial to remarks giving rise to a reasonable apprehension of bias, had waived the right to appeal against the judgment on the ground that the trial judge had made those remarks. At 572, Brennan, Deane and Gaudron JJ said: "Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her." At 577, Dawson J said: "There can, I think, be no doubt that an objection upon the ground of bias can be waived. Even where it is a question of the public apprehension of bias, the parties themselves must be competent to waive the objection. Although justice must manifestly be seen to be done, where a party, being aware of his right to object, waives that right, there will be little danger of the appearance of injustice." At 588, Toohey J said: "While, of course, the community has an interest in knowing that cases are decided impartially, that interest is not affected adversely by a doctrine which refuses a party to litigation the opportunity to resile from a position he has taken. The appellant should be held to have waived any entitlement to challenge what was said by his Honour during the hearing." 33 The strictness of the High Court's position in Vakauta seems to have been modified somewhat by subsequent decisions. As Kirby P (as he then was) pointed out in Goktas v Government Insurance Office of New South Wales (1993) 31 NSWLR 684, at 686 - 687: "Yet a failure by a legal representative at the trial to note objections and to ask that they be recorded, although often a significant handicap, may sometimes be explained in the forensic setting. It will be rare that it is to a party's advantage for its representative to challenge the fairness of a judge. Or to impugn the judge's neutrality. Still more rare will it be to suggest bias, or the appearance of bias, on the part of that judge. To the end of the trial, the parties and their representatives depend so heavily upon the opinion of the judge that there will be natural inhibitions, psychological impediments and forensic constraints which restrain challenges of this kind where they are not absolutely necessary. Where there is a professional Bar, the ongoing relationships with judges in other cases adds a further restraint which it would be naive to ignore." 34 In Johnson v Johnson [2000] HCA 48, (2000) 174 ALR 655, at [79], Callinan J drew attention to what, in his Honour's view, are problems to which some of the statements in Vakauta may give rise: "…that, on one view, the literal application of them may have the consequence that a higher and greater responsibility to ensure the conduct of impartial proceedings is imposed upon counsel than the judge trying the case; that an apprehension of bias may be created cumulatively, so that its full impact and relevance may really only become apparent when judgment is pronounced; that exceptionable, apparently biased statements by judges in the course of proceedings may confront counsel with dilemmas which it is almost impossible for them to resolve, or to resolve without causing offence to the court and the creation of a not unreasonable perception on the part of the parties, of prejudice to the one who takes the point; the risk of other dilemmas of the kind to which the Court referred in Livesey; that in some exceptional cases a submission of apprehended bias may be no more than a polite fiction for no doubt unintended, unconscious and ultimately unprovable, but nonetheless actual bias; and that the application of formal, technical principles of waiver to a party upon the basis of the conduct of his or her counsel in not checking inappropriate and judicial conduct, may produce unfairness to that party." 35 Accepting that it is possible for a party to a proceeding to waive the opportunity to argue that the court or tribunal should be disqualified on the ground of apprehended bias, the question must arise as to what amounts to a waiver. As appears from the facts of Vakauta, silence can amount to a waiver. In the light of more recent authorities, whether it will do so may depend on the forensic circumstances. It is clear from Vakauta that it is unnecessary for a party to invite the judge, or the member or members of the tribunal, to disqualify himself, herself or themselves. The taking of an objection is sufficient to preserve the right to challenge an unfavourable decision at a later date on the ground of apprehended bias. The rationale of the rule is that an objection will give the court or tribunal an opportunity to correct any misapprehension, or to take the view that it should not continue to deal with the case. Whether an objection has been taken must depend on the particular circumstances of a case. In determining whether an objection has been taken, it is legitimate to bear in mind the factors to which Kirby P (as his Honour then was) and Callinan J referred. 36 It is therefore necessary to examine the circumstances of the hearing by the DAC. The applicant was represented by counsel. Early in the hearing, in the course of an opening by counsel who appeared, in effect, for Mr Hackett to seek to uphold his decisions, the question of the folder of documents supplied prior to the hearing and its receipt by the DAC arose. As I have said, the chairman announced that the committee was aware of the nature of the charges and had "read the statements of evidence, if that's what they're called." Counsel for the applicant then said: "Can I raise an issue just in relation to that point? I don't doubt the propriety of this Committee and the ability of this Committee to consider these matters properly, but I'm gravely concerned by the fact that the Committee has actually - the representation, Mr Friedman, that you just made. Read this material, read all the material I think - well, read the statements I think you said. It will become readily apparent that there is a plethora of highly irrelevant loaded and prejudicial material contained in these statements because we are here today in relation to two charges and this - I don't want to open, but my opening pretty much says this. There is (sic) two charges and it's a question of relevance and probative value. I've read this material closely and carefully and it will be no news to the Committee to know that there are five other matters that have been dealt with by the inquiry. And those five other matters are a subject of an appeal in a different place, not before this Committee. And what I am gravely concerned by is the fact that the Committee's collective minds are somewhat poisoned by the highly prejudicial material that's contained in this - I don't know if you call it a brief or just the appeal book. Let's call it the appeal book. It is a matter of great concern because in the first instance so much of it, in fact maybe as much as 95 per cent is simply not relevant to agitating the appeals in relation to the Castlemaine incident, Charge B and the Ms Cavanagh incident, Charge G. That's what's relevant here today. Any evidence that deals with that in the statements and I've looked through and I've marked it out is most probably probative, but most of the other material, with the greatest respect, is highly prejudicial and just not relevant." 37 In response to this, the chairman reassured counsel for the applicant that the DAC's mind was not poisoned and that it would give whatever weight was appropriate to the material contained in the documents and was mindful that only matters relevant to the charges would be used by the DAC in reaching its decision in the matter. Counsel for the applicant made it clear that he was not attacking the DAC, that he was instructed to take the issue and that it was proper of him to raise the issue. 38 It is plain that counsel for the applicant was at pains not to alienate the DAC. This was no doubt wise, given that the DAC was to deliberate upon his client's guilt or innocence in respect of the two charges the subject of the appeals and to deal with any question of penalty if it was satisfied of guilt. Whilst counsel for the applicant expressed grave concern that the DAC's collective mind might have been somewhat poisoned, he prefaced what would otherwise have amounted to an objection to the members of the DAC continuing to hear the appeal with a disclaimer, which made it clear that the applicant accepted that the DAC could and would act properly. Had he not included this disclaimer, I should have concluded that he had objected. In my view, however, the result was that he protested, but he did not object. The disclaimer amounted to a waiver of any objection to the DAC continuing to hear the matter, based on its receipt of material prior to the hearing. It absolved the DAC from considering whether it should decide to disqualify itself and allow the appeal to be heard by a reconstituted committee. It therefore amounted to a waiver of the applicant's right to challenge the decision of the DAC on the ground of apprehended bias arising from its prior receipt of the material in the folder of documents supplied prior to the hearing. Having thus waived his right to challenge, the applicant cannot revive it in this Court. He cannot succeed in this application on the ground of denial of natural justice by reason of apprehended bias. 39 That was not the end of the story in relation to the folder of documents, however. Towards the end of the first day of the hearing, counsel for Mr Hackett attempted to tender the whole of the folder. This was despite having admitted in the morning that it contained some material which was not relevant. Counsel for the applicant objected to the tender. His objection was put with a degree of forcefulness and was based primarily on relevance. The DAC accepted the tender of the whole folder. Counsel for Mr Hackett then attempted to tender the report from the Brighton Psychology Centre and the report of the consultant psychiatrist. Again, counsel for the applicant objected. After hearing argument, the DAC rejected the tender of these two documents. In doing so, it recognised the obvious point that the two reports were irrelevant to the task before it. 40 That left the DAC in the position that, on the first day of a four day hearing, it received into evidence a number of documents containing irrelevant and prejudicial information concerning the applicant. Again, counsel for the second respondent urged upon me that the DAC was chaired by an experienced lawyer, capable of sifting the relevant from the irrelevant and disregarding the irrelevant, and capable of attaching little or no weight to material which was not probative on any issue but was highly prejudicial. Again, it must be remembered that the chairman was only one of three members of the DAC and that the other two members may have lacked the training or experience to sift evidence. 41 Of greater importance, however, is what the DAC actually did. In the course of its reasons for decision, it said: "In reaching its decision the Committee takes into account documents tendered by the parties together with oral and written submissions and evidence given at the hearing. In relation to Charge 1 the Committee agrees that, in the absence of independent or corroborating evidence, it is required to accept either the evidence of the appellant or Ms O'Brien. On balance, the Committee prefers her evidence to that of the appellant. In considering the relative merits of each version of events, the Committee notes the submissions by Mr Harrington there were some inconsistencies in the evidence given by Ms O'Brien. The Committee finds that there was no reason for her to invent her evidence, as she had nothing to gain. Similarly, the Committee finds her to be a more credible witness than the appellant, both in demeanour whilst giving evidence, and the plausibility of the account of the Castlemaine trip."

In the light of the first sentence of this paragraph, it seems impossible to assume that the DAC engaged in a proper process of sifting the relevant from the irrelevant or the prejudicial from the probative. To the contrary, the DAC said that it took into account documents tendered, without drawing any distinction between those which it should have taken into account and those which were irrelevant. 42 Further, the DAC chose to deal with the matter on the basis that it preferred the whole of the account of Ms O'Brien to the whole of the account given in evidence to the DAC by the applicant. In taking this course, the DAC appears to have accepted a submission by counsel for the applicant that its task was to choose between the two accounts. It was, of course, not bound to do so. Its task was to make findings of fact in relation to the charges as particularised. If it found that the allegations of fact particularised in the charge were made out, it was then required to bring its expertise to bear in deciding whether the proven conduct could properly be described as "improper". In finding the facts, it was required to act on the evidence, in the light of the probabilities. 43 The process of recollection is a human process, with all of the flaws that beset human processes. Even in the absence of deliberate falsehood, it is plain that different people will recall the same event or series of events in different ways. This is because recollection inevitably involves reconstruction and reconstruction may be influenced by a number of factors, including the overall impression with which the observer has been left as a result of the event, or series of events, and the importance of the event or series of events to the observer. The task of a fact-finder is to attempt his or her own reconstruction, based on the differing accounts, with knowledge of the stakes which the different witnesses have in viewing the events in a particular way, and in the light of the probabilities. A fact-finder may choose to accept one witness's account wholly, in preference to that of another, where there are differences. In the absence of a finding of deliberate falsehood, he or she should only do so with a consciousness that the task is to find the facts, and not simply to endorse one account of them as against another. Even where there is deliberate falsehood, the possibility of accuracy of reconstruction in some respects ought not to be discarded altogether. 44 The DAC having accepted that the credibility of Ms O'Brien's account as against that of the applicant was the crucial issue, the dangers of the consideration of irrelevant material in the folder of documents are obvious. In particular, Mr Hackett's findings in relation to the five charges that were not before the DAC and the endorsement of the credibility of Ms O'Brien by the former manager of the Criminal Deportation Unit were matters giving rise to a likelihood that the DAC misused its fact-finding function. In my view, the receipt in evidence of the contents of the folder, and the reliance on it in the performance of its fact-finding function, meant that the DAC took into account irrelevant considerations in making its decision. Its decision to uphold Mr Hackett's finding in relation to the incident involving Ms O'Brien was therefore an improper exercise of the power conferred on the DAC by s 63D of the Public Service Act. It was an improper exercise of the power in the sense in which that expression is defined in s 5(1)(e) and 5(2)(a) of the ADJR Act, namely that it involved taking into account irrelevant considerations. 45 The consequence of this conclusion is that the DAC's decision finding the charge against the applicant proven and confirming the direction of Mr Hackett that he "be fined" $350 must be set aside, pursuant to s 16(1)(a) of the ADJR Act. Plainly, the applicant's appeal in relation to that charge must be re-heard. Even though he is no longer an officer of the public service, it is no doubt important to him to clear his name, if he can. The effect of setting aside the decision of the DAC is to leave in place the decision of Mr Hackett, against which the applicant appealed. That is undesirable from his point of view. There may be difficulties arising from an attempt to deal with a former officer's appeal. I do not know whether Ms O'Brien is available and willing to give evidence again. If she does, she will have to give attention, yet again, to an episode she would no doubt prefer to forget if she could. If the differently constituted committee were to find the charge proven, but that the penalty should be different, it may no longer have the practical power to make changes. I was not told whether money has already been deducted from the applicant's salary. If not, it may now be impossible to do this if a penalty involving deduction from salary is upheld or imposed. Against all of these considerations, however, the interests of the applicant must be regarded as overriding. He has a right of appeal, which he has exercised. That right must be afforded to him according to law. 46 The power in s 16(1)(b) of the ADJR Act to refer the matter to which a decision relates to "the person who made the decision" for further consideration has been relied on frequently to justify the reference of a matter back to a tribunal or authority generally. Often this has been done with a direction that the matter be re-heard by a differently constituted tribunal. 47 The legislation under which this matter arose has now been repealed and replaced by other legislation. The Public Service Act was repealed by s 3(1) of the Public Employment (Consequential and Transitional) Amendment Act 1999 (Cth) ("the PECTA Act") and cl 754 of Sch 1 to that Act. Similarly, the Merit Protection Act was repealed by s 3(1) of the PECTA Act and cl 606 of Sch 1 to that Act. The PECTA Act commenced on 5 December 1999. 48 Section 14(3)(a) of the PECTA Act and the Public Employment (Consequential and Transitional)Regulations 1999 (Cth) make provision for transition from the old to the new legislation. Regulation 2.19(2) provides that a number of provisions of the Public Service Act, including s 63D, continue to apply in relation to "pre-commencement conduct". That term is defined in s 4 of the PECTA Act in terms that include the conduct of the applicant that formed the basis of the charge. In a similar way, reg 4.2(4) and reg 4.4 provide for the continuation of the Merit Protection Act and regulations made under it to the extent necessary. I was assured by counsel for the second respondent that Disciplinary Appeal Committees are still in existence, and that it will be possible to constitute one using none of those who are designated in this proceeding as the first respondent. The order I make should ensure that the matter is dealt with again by a differently constituted Disciplinary Appeal Committee. 49 Lest there be any misunderstanding, I wish to make it clear that the mistakes of the past should not be repeated. The differently constituted Disciplinary Appeal Committee should not be given material, other than the statement of the charge, documents necessary to set out the decision from which the appeal has been brought and the document by which the appeal has been brought, prior to embarking on its deliberations. There is no need for it to be supplied with a copy of these reasons for judgment. This will avoid the possibility of an argument that the newly constituted committee is tainted by bias as a result of reading these reasons for judgment, which refer to the material that the DAC should not have had before it. Such an argument was put, and rejected, in Hercules v Brennan (Fitzgerald J, 8 November 1982, unreported) in relation to the re-hearing of the disciplinary charges his Honour had dealt with in Hercules v Jacobs. Further, it would be unwise for counsel for Mr Hackett to tender to the newly constituted Disciplinary Appeal Committee material he knows to be irrelevant, relying on the ability of the committee to sort the relevant from the irrelevant. In my view, it is unnecessary for a Disciplinary Appeal Committee to have before it the statements of the witnesses taken by Mr Hackett or the interviews he conducted with witnesses (and particularly the interview bearing upon the credibility of Ms O'Brien). If the newly constituted Disciplinary Appeal Committee is to make a decision based on the credit of the people who give oral evidence to it, it is better that it should do so without those documents. Of course, if there is cross-examination as to credit by reason of a previous inconsistent statement, that statement can be tendered. There is, however, no sound argument in favour of the provision of evidence from the folder of documents to the committee in advance, or for the wholesale tender of that folder. 50 The DAC also awarded "costs of the appeal" to the applicant against the Department of Immigration and Multicultural Affairs in the sum of $5,000. This was on the basis that the applicant had succeeded on one appeal and failed on the other, and involved some notional offsetting, taking into account the length of the hearing, the nature of the charges, the fact that the bulk of the hearing involved the charge on which the appeal failed and the DAC's decision on both matters. In effect, the DAC attempted to award costs to the applicant in respect of the appeal on which he had been successful. The decision on that appeal is not before the Court. The Court appears to have no power under the ADJR Act to order that anyone pay the applicant's costs of the hearing before the DAC, even though it is setting aside the decision of the DAC. It seems safer not to attempt to disturb that part of the decision relating to costs. It will be a matter for the reconstituted committee to consider the exercise of any power it might have to award costs, if the applicant's appeal should succeed. I express no view on whether the reconstituted committee would have any power in relation

to the costs of the hearing before the DAC; that was not the subject of any argument before the Court. 51 Having succeeded on his claim in this Court, the applicant is entitled to an order that the second respondent pay his costs of the proceeding.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Solicitor for the Respondent: Australian Government Solicitor