Consideration
46 I agree with the parties that Chenhall 37 FCR 75 correctly and helpfully discusses the law as to what is necessary to constitute "disciplinary action". Whether particular conduct amounts to "reasonable disciplinary action" has previously been treated as a question of law: Chenhall 37 FCR 75; Schmid v Comcare [2003] FCA 1057; (2003) 77 ALD 782, [84]. The question is: at what point in the regulatory regime in the present case did disciplinary action begin? This requires an analysis of that regime.
47 It appears that the learned Senior Member did misapply the definition of "reasonable disciplinary action", in that he did not consider disciplinary action within the meaning of the Act to have occurred at all in the present case. I accept that disciplinary action had begun from 1 December 2004, when the respondent was provided with the allegations made against her. What is described within the Procedures as an "investigation" is, when viewed in the context of the Parliamentary Services Commissioner's Direction 2000/1 (the basis of the Procedures, in accordance with s 15 of the Parliamentary Service Act 1999 (Cth)), actually a determination of whether there has been a breach of the Code of Conduct. This is clearly "action lawfully taken against an employee in the nature of or to promote discipline": Chenhall 37 FCR at 83. Cooper J explicitly (and in my respectful opinion, correctly) rejected the proposition that disciplinary action refers only to the actual imposition of a sanction: Chenhall 37 FCR at 85. The Tribunal appears to have misconstrued Chenhall 37 FCR 75 in this respect: at [39] it said "[t]aking into account the Senate's own procedures it is clear that the process did not go beyond an investigation and reporting of findings to the Usher of the Black Rod and the disciplinary action envisaged by the Procedures document did not take place". That is to conflate the entire process of disciplinary action and its ultimate outcome. Had the allegations not been sustained, the action of investigating them for the direct purpose of determining whether any sanction should be applied would nevertheless have been "disciplinary" action.
48 Notwithstanding this error, it needs to be shown that the actual decision may have been affected by it: the "appeal" is from the decision not from the reasons given in support of it.
49 By design or otherwise, reasons for decision given by decision-makers of all kinds frequently include expressions of opinion on material discussed in the case at hand that are unnecessary for the actual decision; in particular, appellate or reviewing decision-makers often intend, in that way, to be helpful to primary decision-makers. Tribunals giving opinions which are, logically, gratuitous do not always understand that, in terms of doing only what is necessary, an opinion expressed may have that character. Even where this is understood, a busy tribunal member may omit an explanation for undertaking the excursus. Frequently, judges (even at the highest levels) discuss unnecessary material and, often enough, without expressly flagging their understanding that they are doing so. At least an equal degree of understanding of the process of writing reasons for decision can and should properly be extended to administrative tribunals. The eye too keenly attuned to unduly strained inference needs some detuning.
50 The learned Senior Member's actual decision did not and could not have depended on whether there was disciplinary action. The Tribunal found that the respondent suffered incapacity from her injury from November 2004 to April 2005, on the basis of the evidence of the respondent's general practitioner, Dr Wessell. In respect of this evidence the Tribunal held that "Dr Wessell made the assessment that Ms Eames was unable to function properly during the period following the events of November 2004 and her ability to make decisions was affected." (Emphasis added.) It may well be that the Tribunal overlooked that the events of Monday 15 November appeared to have been of material and additional significance for the respondent's condition to those of Friday 12 November. But that is of no present moment - all events in November predated the start of the disciplinary action. It is trite that the fact that another person, including this Court, may have come to a different conclusion is not to the point. It was open to the Tribunal to find that the respondent's injury was suffered entirely as a result of the circumstances surrounding the explosive interaction with Ms Slattery. I believe that is what the Tribunal did find and decide.
51 The Tribunal found that the respondent's injury was suffered from November 2004. Even if the Senior Member had considered that the events beginning 1 December 2004 were reasonable disciplinary action, the final outcome could not, in the light of that finding, have differed.
52 The misapplication of the phrase "reasonable disciplinary action" by the Tribunal thus does not authorise the upholding of this appeal. The Full Court in Bridges v Minister for Immigration and Multicultural Affairs [2001] FCA 1647; (2001) 114 FCR 456 at [10] said that
[t]he governing principle is that a decision of an administrative tribunal will be set aside for error of law if it can be shown that the error could have affected the outcome of the case, that is that a different result might have been reached had no error of law been made: X v Commonwealth (1999) 200 CLR 177.
53 There are other matters.
54 The foundation of the Senior Member's view that the action, now held to be disciplinary, was not "reasonable" rested entirely upon an opinion that the inquisitor had not accorded Ms Eames procedural fairness in circumstances where there was plainly a duty to afford it. At least in such circumstances, whether procedural fairness was given is to be categorised as a question of law, even though it obviously depends on factual findings. In Clements 131 FCR at [6]-[8] the Full Court held that whether the Tribunal itself denied procedural fairness is a question of law and, with respect, this must be so. In general, questions of law are those which are inescapably for a judge to decide. In many instances, these actually involve inquiry into and assessment of factual matters by the judge. Judgments on the admissibility of evidence are often examples of this. Whether procedural fairness has been given is such a question because, if procedural fairness has not been given, the administrative action in question (and not just disciplinary action) is affected by jurisdictional error: eg Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. Whether there has been a jurisdictional error is, ex hypothesi, a question of law.
55 I see no reason why the conclusion should be different where, as here, an overall judgment of whether the primary decision-maker (or delegate) erred in a finding that certain action was "reasonable" and the only ground for arguing that it was not was that the actor concerned denied procedural fairness. In other circumstances a decision on whether some action was "reasonable" might be entirely a question of fact. In other cases still, such a question may expose the lack, at the margins, of a clear distinction between what is a question of law and what is not.
56 This implies another consideration: Cooper J in Chenhall 37 FCR 75 indicated (rightly, in my respectful view) that, among other things, to be "disciplinary action" in terms of the statute, the action needed to be "lawfully" taken. If procedural fairness be denied, the action will not be lawful, whether or not some circumstances may exist (about which I say nothing) in which the action might nevertheless be "reasonable". Not only will the action be unlawful but unlawfulness in decision-making should have practical consequences even if it does not always lead to outright invalidity: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [100].
57 Finally, it was a view well open to the Senior Member, and one with which I agree, that Ms Eames was not afforded procedural fairness. Whether she had to any significant degree behaved improperly, despite the objective inappropriateness of her language, or should be disciplined at all for it, or how, would largely depend on an impression of the degree to which she had been provoked and the degree of emotional tension prevailing between her and Ms Slattery. Ascertainment of, or advocacy as to, the facts often depends on understanding who is saying what and on how, when and to whom they are saying it. The reasonableness of the Department's giving Ms Eames the witness statements is strongly (though not necessarily conclusively) attested by the promise to her by Mr Curtis, the Usher's trusted inquisitor, that she would have them. There was nothing to establish special circumstances existing before or after Mr Curtis so indicated to warrant any other view: there was no question of confidential policy advice at a high level the disclosure of which might jeopardise future frankness, no question of protecting any witness from a real risk of retribution, nor any other kind of circumstance which could justify a limitation on disclosure of adverse material to a party undergoing disciplinary investigation. It is true that in many cases it is enough to give the burden of the allegations without the supporting evidence. But in a disciplinary matter, it is often the nuances of surrounding circumstances that can affect the outcome. Mr Curtis' report did, indeed, name the witnesses and give, fairly fully, an account of the evidence that he found persuasive. However the likely crucial issue for the decision-maker (Ms Griffiths) was whether Ms Slattery exceeded the bounds of reasonable discourse as Ms Eames' senior colleague. Ms Eames could only deal with the relevant nuances by knowing the full detail at least of what the eyewitness of the initial confrontation, Mr Sullivan, had said. The original witness statements on which Mr Curtis relied were not before the Court, making it difficult to conclude that this material may not have assisted Ms Eames' claims. Further, the advice from the Australian Government Solicitor not to release the witness statements was given without those who prepared the advice having seen the statements in question, and relying only on Mr Curtis' report. The advice was explicitly qualified by this fact. It cannot be said that there was no practical injustice in Ms Eames not being shown the material referred to.
58 Further, A promise by an inquisitor to give material to a party affected can be highly relevant to whether procedural fairness has been denied, notwithstanding the overall merits of the case: Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1.
59 It should be noted that the Act has, since the hearing of this case, been amended so that the exception within the definition of injury extends to "reasonable administrative action". This exception is broader and more clearly defined: see s 5A of the Act. These amendments came into force on 13 April 2007, and address many of the issues of principle which were raised as primary issues of concern to the applicant during the hearing. However, these amendments have no effect on the present decision.
60 For these reasons the appeal will be dismissed with costs.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.