Mongan v Woodward

REASONS FOR JUDGMENT 1 The applicant, Edwin Mongan, has been found by the second respondent, Annwyn Godwin, to have breached the Australian Public Service Code of Conduct ("the Code"). Put shortly, the breaches related to his storing of non-work materials on his office computer in contravention of a direction previously given by the first respondent, Lionel Woodward. The materials contained what were considered to be both offensive and pornographic matter. Mr Woodward was at all relevant times Chief Executive Officer of the Australian Customs Service ("the ACS"). Ms Godwin was National Manager (Staffing) in the ACS and was Mr Woodward's delegate in making a determination under the procedures he had established for determining whether an Australian Public Service employee in the ACS had breached the Code. Mr Mongan was such an employee. He had previously acknowledged (in 1998) that unofficial material should not be stored on any ACS computer; he had been disciplined for so doing; and he undertook not to do so again. 2 The present application is to restrain Ms Godwin (as delegate) and Mr Woodward (as CEO of the ACS) from proceeding under s 15 of the Public Service Act 1999 (Cth) ("the PS Act") to impose the sanction on Mr Mongan of termination of employment that was foreshadowed in a communication from Ms Godwin to him of 17 January 2003. The basis of the application is that of reasonable apprehension of bias in both respondents in the imposition of the foreshadowed sanction. The application does not seek to impugn Ms Godwin's decision that Mr Mongan has breached the APS Code of Conduct enshrined in s 13 of the PS Act. Background Setting 3 This can be stated briefly. I have noted that in 1998 Mr Mongan was disciplined for storing non-work material on his ACS computer. After preliminary inquiries were made in response to a report in June 2002 that his computer contained such material, the Internal Affairs Unit of the ACS ("the IAU") commenced an investigation into the appropriateness of his use of his computer. The assessment of the contents of his computer systems folder was completed in late August 2002 and the decision was taken to interview him. 4 Before that interview took place a Mr John Drury, the Deputy CEO of the ACS and the person with oversight responsibility for the IAU sent the following minute to the Manager of the IAU. It stated (omitting formal parts): "MR G MONGAN This set of files is an appalling display of flagrant disregard for what Customs has declared to be the unacceptable use of official IT equipment. What makes this so flagrant is the conjunction of Mr Mongan's statement of apology and commitment to stop misuse - dated September 1998 - and the material dredged up by Ms Walton in recent months. This shows that Mr Mongan's letter of apology and commitment were worthless and that he displays all the hallmarks of a serial offender. Mr Mongan deserves the most severe action to be taken against him. I accept the recommendation that he be charged with Code of Conduct violations as indicated. In my view, I wonder whether there is any point in this officer being employed in Customs when his behaviour is so blatantly defiant of reasonable authority. Finally, it appears to me that there is a group of officers from - or formerly employed in - Imports/Exports who appear to be confidants or fellow travellers with Mr Mongan in his unacceptable behaviour. These should also be dealt with and warned. It is probably time that they were dispersed to other parts of Customs where they be subject to new forms of supervision." It is this minute that is the catalyst to the bias allegation. 5 I should here interpolate that the function of the IAU was to investigate allegations of serious misconduct in the ACS. Mr Drury's function at the relevant time was to consider any recommendation made by the IAU that allegations of misconduct be referred to a delegate of the CEO (such as Ms Godwin) for the purposes of making a decision under the relevant Procedures for Determining Breaches of the Code of Conduct. On making a referral (as in Mr Mongan's case) Mr Drury had no further role in the matter referred. 6 Mr Mongan was interviewed by the IAU on 2 October 2002. On 11 October 2002 a decision adverse to him was made by another delegate of the CEO which foreshadowed the possibility of a sanction of termination of employment. On 6 December 2002 after the threat of legal proceedings, Mr Mongan was notified that that decision had been vacated and that a new decision-maker was to be appointed. A new file was being created for the purpose. 7 On 16 December Ms Godwin informed Mr Mongan that she was the appointed delegate. I should note in passing that (i) Mr Drury played no part in her appointment to the position she held at the time in the ACS; (ii) there is no evidence that he played any part in the CEO's delegation to her; and (iii) the evidence is that Ms Godwin does not report to Mr Drury but reports directly to Mr Woodward. 8 On 17 January Ms Godwin informed Mr Mongan's lawyers that she had found him to be in breach of the APS Code. In her facsimile letter of that date she intimated: "My present inclination is that I should terminate your employment for the reasons set out in the enclosed document entitled 'Possible sanction in respect of breach of the APS Code of Conduct: Edwin Grant Mongan'." She invited submissions from Mr Mongan on that matter. 9 The enclosed document to which reference was made, contained (inter alia) the following: "View of the Deputy Chief Executive Officer 13. On 3 September 2002 Mr John Drury, the Deputy Chief Executive Officer of Customs (the DCEO), wrote a Minute to the Manager of the Internal Affairs Unit concerning the files containing the documents the subject of the disciplinary proceedings. A copy of his note is attached at Annexure B to this document. 14. The DCEO expressed the view that the documents constituted 'an appalling display of flagrant disregard for what Customs has declared to be the unacceptable use of official IT equipment'. He considered that Mr Mongan's undertaking of 16 September 1998 was 'worthless' and that Mr Mongan 'displays all the hallmarks of a serial offender'. 15. The DCEO considered that Mr Mongan 'deserves the most serious action to be taken against him' and wondered 'whether there is any point in this officer being employed in Customs when his behaviour is so blatantly defiant of reasonable authority'. 16. The opinion of the DCEO is a relevant consideration in determining what, if any, sanction to impose upon Mr Mongan. However, I am conscious that, as the delegate of the CEO of Customs empowered to consider what, if any, sanction should be imposed on Mr Mongan, the decision on sanction is mine alone to make." 10 No evidence in this proceeding indicates how, why or by whom, Mr Drury's minute was supplied to Ms Godwin. Applicable Principles 11 There is no disagreement between the parties (save in matters of emphasis) as to the principles to be applied in this matter. A decision-maker with power to decide a question adversely to an individual, should not hear and determine that question - "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": Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294. That possibility must be "real and not remote": cf Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345. Submissions and Conclusions 12 The applicant's case against Ms Godwin can be put shortly. Though Mr Drury had no part at all to play in the decision to be made by Ms Godwin (other than accepting the IAU recommendation that the matter be referred to a delegate), his own views on the matter were impermissibly intruded into the decision making process. Those views, which emanated from one of the two Deputy CEOs of the ACS, were capable of contriving the environment in which Ms Godwin might reasonably be expected to act in reaching her conclusion. Notwithstanding her observation that the decision on sanction was hers alone to make, the significance and adverse character of the views expressed by Mr Drury (before Mr Mongan had even been interviewed), the respective positions of Mr Drury and Ms Godwin in the ACS (notwithstanding that she did not report to him) and the fact that Ms Godwin so clearly regarded Mr Drury's views to be relevant, could only induce a reasonable apprehension of bias in a fair-minded observer. There was a sufficiently close relationship of influence between the two officers: cf Webb v The Queen (1994) 181 CLR 41 at 74. 13 The applicant goes on to submit that the apprehension of bias which affects Ms Godwin's role as a decision-maker extends to all officers of the ACS including Mr Woodward. Mr Drury's minute has tainted the sanction process thus disabling the ACS from further proceeding in the matter. 14 The submissions of the two respondents differentiate between them. First, Ms Godwin. It is accepted that in certain, unusual circumstances, where a decision-maker's superior has publicly expressed views on matters the subject of decision, apprehended bias may arise by reason of that expression of views: Phillips v Secretary, Department of Immigration and Ethnic Affairs (1994) 48 FCR 57. It is then said that the present is not such a case having regard to the respective positions of Mr Drury and Ms Godwin in the ACS. Theirs was not a "relationship of influence" such as would suggest that Ms Godwin might not bring an impartial and unprejudiced mind to her decision as a result of her being aware of Mr Drury's view. Reliance in this is placed on the following. Ms Godwin (a) is answerable directly to Mr Woodward and is not a subordinate of Mr Drury; (b) has only been in Customs since 14 October 2002; (c) was not appointed by Mr Drury; (d) was transferred to the position of National Manager, Staffing without any involvement of Mr Drury; (e) is not answerable to Mr Drury in relation to her performance; and (f) is not managed or supervised by Mr Drury in any way. The statement that the decision on sanction was hers alone to make should be accepted as stating the actual position. 15 As to Mr Woodward, it is contended there is no basis upon which apprehended bias could be raised against him were he to exercise personally his power under s 15(1) of the PS Act to impose a sanction on Mr Mongan. When Mr Drury wrote his minute he was not acting in Mr Woodward's position, neither was he acting at his direction nor as his delegate. It is inherently unlikely that Mr Woodward's impartiality would be compromised by the view which Mr Drury expressed. Even were I to restrain Ms Godwin from further acting in the matter, Mr Woodward should be permitted to act personally. In any event even if I were to conclude both respondents should be disqualified there is no reason why Mr Woodward should be prevented from delegating the s 15(1) power to a decision-maker outside of the ACS under the power so given him by s 78(7) of the PS Act: see also Phillips' case, above, at 78. 16 For my own part, I am satisfied that a case for disqualification has been made out against Ms Godwin but not against Mr Woodward. My reasons for these conclusions are as follows. 17 In Ms Godwin's case I do not in any way suggest that she would be guilty of actual bias towards Mr Mongan were she to take the decision foreshadowed. But my concern is not with actual bias. It is with the reasonable apprehension of it. Whatever Mr Drury's views on the matter, the unexplained and in my view unnecessary provision of them to Ms Godwin, gives rise to the possible inference that they were so provided (by whomsoever is unclear) with the object of influencing a subordinate officer in discharging the function delegated to her. To adapt Wilcox J's words in Phillips' case (at 78), the minute might reasonably be said to give an indication to Ms Godwin as to how Mr Drury considered a person in her position should act. 18 If the provision of the minute to Ms Godwin could thus give rise to that reasonable apprehension, was it provided in circumstances such that one might reasonably apprehend that it had the capacity to influence impermissibly? While there clearly can be circumstances in which the attempt to exert influence is not only ineffectual but also would reasonably be regarded by any fair-minded observer as such, the present is not such a case. 19 Notwithstanding the formal matters relating to Ms Godwin's appointment, reporting, etc in the ACS that have been relied upon in submissions, a reasonable person who had regard to the respective positions of Mr Drury and Ms Godwin in the ACS and to the directness of the views he expressed, could quite properly apprehend bias on Ms Godwin's part were she to make a decision of the nature foreshadowed by her. Mr Drury may not exercise direct power over her. But it is reasonable to infer that he exercises both power and influence within the ACS. A fair minded observer might reasonably conclude that, in a bureaucratic structure such as is evidenced in this matter, their respective positions provided a sufficient relationship of influence as could make Ms Godwin susceptible to influence for impermissible reasons. I acknowledge that it might be the ideal of the APS that public servants will act fearlessly in discharging their functions. Nonetheless, it is necessary also to acknowledge that human nature is as it is. 20 Further I consider Ms Godwin's statement that the decision was hers alone to make might well be taken reasonably as stating the obvious without dispelling the apprehension otherwise created by the known circumstances. 21 The provision of the minute to Ms Godwin was a mistake and, if done knowingly, a misguided act. It has compromised her, not because of any act done or communication made by her but because of her position relative to Mr Drury. That she has been put in such a position is to say the least regrettable, not the least for her. It should not have happened. I am satisfied that she should not proceed further in the process and she should be restrained from so doing. 22 As to Mr Woodward, I see no basis in the evidence before me to preclude him personally from exercising the s 15(1) power to impose a sanction on Mr Mongan. Having said this, prudential reasons may suggest delegation to a person outside the ACS would be appropriate in the circumstances. The evidence does not provide grounds for any reasonable apprehension that Mr Woodward might impermissibly be influenced by Mr Drury's expression of views let alone that he might act impermissibly to defend those views emanating as they do from one of his deputies. I would dismiss the application as it relates to Mr Woodward. 23 I will order (i) that the second respondent be restrained from further proceeding against the applicant in relation to the decision made by her that was notified to the applicant on 17 January 2003; and (ii) that the application in relation to the first respondent be dismissed. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.