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[2003] NTSC 120
respondent. Application for certiorari dismissed; costs reserved for further submissions.
The Court left the Board's reinstatement decision in place. The Board could take account of the fact that Jenkins's offending occurred before he joined the Public Sector when deciding whether immediate dismissal was in the public interest. It was not required to pursue a non-disclosure allegation that the CEO had withdrawn. The Board's appeal was a merits review, but it could not choose disciplinary outcomes that belonged to the separate s 51 process. The Territory's application for certiorari was dismissed.
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2,678 words · generated 30/09/2026
The Northern Territory, acting through the Chief Executive Officer of the Department of Community Development, Sport and Cultural Affairs, applied for certiorari to quash a decision of the Disciplinary Appeal Board. The Board had directed the CEO to reinstate Scott Jenkins to his previous substantive level in the Northern Territory Public Sector [1]. The Territory argued that the Board had made jurisdictional errors by misconstruing s 50 of the Public Sector Employment and Management Act and misunderstanding its role as an administrative tribunal [2].
No linked legislation citations have been extracted yet.
Jenkins had worked as a mortgage broker between October 1998 and September 2001. In early 2001, he was charged with offences involving forged and uttered documents used in loan applications. After leaving that employment, he obtained temporary public-sector employment in 2002 and then won a permanent AO2 Tenancy Officer position [4]. On 21 November 2002, he pleaded guilty to 58 counts across 13 incidents. The conduct involved altering or creating documents and presenting them to ANZ, resulting in loans being made that might not otherwise have been granted. He was sentenced to one year and eight months' imprisonment, suspended after four months and backdated to 21 November 2002 [4].
Jenkins had not told his public-sector superiors about the pending charges before his imprisonment. The CEO appears to have learned about the matter shortly after Jenkins was remanded in custody [4]. In March 2003, the CEO gave notice of an intention to dismiss Jenkins under s 50, describing the convictions as a breach of discipline under s 49(b). The notice did not raise non-disclosure of the charges as a ground [5]. In June 2003, the CEO decided that Jenkins had committed breaches of discipline under ss 49(b) and 49(p), and terminated his employment immediately [6].
Jenkins appealed. At the Board hearing, the CEO's counsel withdrew the s 49(p) allegation, which was based on the alleged failure to disclose charges. The Board found that the convictions constituted a breach of discipline under s 49(b), but concluded that the breach did not justify immediate dismissal in the public interest. It allowed the appeal and directed reinstatement [7], [28].
Mildren J dismissed the Territory's application. The result was not a judicial determination that the alleged non-disclosure could never constitute a disciplinary breach. Rather, the Court decided that the Board had not committed jurisdictional error in allowing the allegation to be withdrawn and did not have to prosecute that abandoned allegation itself [29]. The dismissal of the judicial review application left the Board's decision undisturbed [33].
The first issue was what s 50 required the Board to determine. Section 50 permits a CEO to dismiss summarily where the CEO is of the opinion that the action or omission constituting a breach of discipline amounts to misconduct of such a nature that it is in the public interest that the employee be immediately dismissed [9]. The decision therefore involves more than identifying a breach. The decision-maker must also assess the nature of the misconduct and whether immediate dismissal is warranted in the public interest.
The Territory argued that the Board had treated the word “immediately” incorrectly and had relied on delay as an irrelevant consideration [19]. Mildren J rejected the premise that delay was necessarily irrelevant. The seriousness with which misconduct may be regarded can be affected by the passage of time. Under s 49(b), it is the finding of guilt that constitutes the relevant breach, but only if the offence affects the employee's employment. Older offending may have a different bearing, including where rehabilitation has occurred [20]-[21].
The Board also considered that Jenkins's offending took place before he joined the Public Sector. Mildren J held that this timing was relevant to the question whether immediate dismissal was in the public interest and whether the discretion to dismiss summarily should be exercised. The weight of that factor was for the Board [25]. This is an important limit on the judgment's holding: it recognises the relevance of the pre-employment timing but does not dictate what weight a decision-maker must assign to it in another case.
The Board had also reasoned in the alternative that, if the misconduct did call for immediate dismissal, the CEO had delayed too long to exercise that discretion properly [23]. Mildren J expressly did not decide whether the CEO's delay was relevant, because the Board's first basis independently justified its conclusion [24]. The judgment therefore should not be read as establishing a firm rule that delay either does or does not invalidate a s 50 decision.
The non-disclosure ground was resolved by reference to the way the matter was conducted. Paragraph 13 of the Code of Conduct, as quoted in the judgment, said employees charged, convicted or acquitted of an offence were required to advise the CEO, whether or not the offence related directly to their duties [27]. But the CEO's counsel withdrew reliance on the alleged breach of this requirement before Jenkins opened his case [28]. The Court found no statutory basis requiring the Board to take over the prosecution of a ground the CEO had abandoned. Doing so could also expose the Board to an allegation of apparent bias. Further, Jenkins might have had an answer that he did not present because the allegation had been dropped [29]. Mildren J said relief would have been refused as a matter of discretion even if the Board had erred, given the potential prejudice caused by the Territory's own change of position [29].
The Court then addressed the form of the Board appeal. Section 58(2) described an appeal as a “review” of evidence considered by the CEO, but also provided for additional evidence and permitted the Board, in its discretion, to deal with the appeal as it thought fit [13]. In the circumstances, Mildren J treated the Board hearing as de novo, or a merits hearing. Relevant features included that the CEO did not have to give reasons or be legally trained, natural justice did not apply to a s 50 summary-dismissal decision, and the Board had admitted additional evidence [30]. The Board's own description of its task, examining the facts and substituting its view of the preferable outcome, was not erroneous [30].
That merits role did not erase the boundary between ss 50 and 51. Section 50 concerned immediate dismissal; s 51 concerned investigation of a suspected breach and a range of possible outcomes. Mildren J held that the provisions created separate processes, with distinct appeal routes under ss 57(1)(b) and 57(1)(c) [10], [32]. Because the CEO had acted under s 50, neither the CEO nor the Board could choose a s 51(10) alternative as part of that s 50 appeal [31]-[32]. If the CEO considered that another disciplinary outcome might be appropriate, the s 51 process would need to be commenced separately [32].
The judgment applies the existing statutory framework rather than announcing a broad new doctrine. Before the decision, the Act already distinguished the summary-dismissal process in s 50 from the investigation and disciplinary-outcomes procedure in s 51. The Court's contribution was to explain how that distinction constrained both the CEO and the Board in this particular appeal [10], [32].
For s 50, the Court's explanation is that finding a breach of discipline does not itself answer whether immediate dismissal is in the public interest. The nature and seriousness of the misconduct must be considered, and contextual facts such as when the conduct occurred may be relevant [20]-[25]. The Board retains responsibility for the weight it assigns to relevant facts [25]. The judgment does not prescribe a test for the weight of pre-employment offending, or establish that such offending will generally prevent summary dismissal.
For s 58, the judgment reconciles the statutory description of an appeal as a “review” with the Board's ability to admit further evidence and decide the merits. It concludes that, in the case before it, the appeal was de novo in substance [30]. The reasoning is tied to the statutory features identified by Mildren J, and should not be detached from the legislation's wording and the circumstances of additional evidence being admitted.
For the relationship between ss 50 and 51, the judgment clarifies that the Board's merits function was not unlimited. It could reassess the s 50 question and substitute its decision on that question, but it could not impose an outcome available only through s 51 [30]-[32]. The statutory process selected by the CEO determined the question before the Board.
The judgment text supplied here does not describe subsequent legislative amendments or later court treatment. Its “after” position can therefore be stated only as the interpretation given in this decision, not as a complete account of the law's later development. The Court also left open whether CEO delay was a proper consideration in the circumstances [24].
At [20], Mildren J said: “The seriousness of the misconduct is a necessary precursor to the exercise of the discretion to summarily dismiss, but I do not consider that delay was an irrelevant consideration to the exercise of the Board's discretion.” In plain English, the Board first had to assess the nature of the misconduct and whether it met the statutory threshold for immediate dismissal. The passage rejects the claim that timing was automatically irrelevant, but [24] makes clear that the Court did not finally decide the separate issue about the CEO's delay.
At [21], the Court explained that not every conviction affects an employee's employment for the purposes of s 49(b). A conviction for an offence committed many years earlier might not affect current employment, particularly if the person had been rehabilitated. The important point is that the statutory connection between the offence and employment must be considered; a finding of guilt alone is not necessarily enough to establish a breach under s 49(b).
At [25], the Court stated that the fact the offending occurred before Jenkins joined the Public Sector was relevant, and that “[t]he weight to be given to that factor was entirely a matter for the Board.” This translates to a two-stage idea: the fact could properly enter the assessment, but the Court did not replace the Board's judgment about its significance.
At [29], Mildren J rejected the proposition that the Board had to continue with the s 49(p) allegation after the CEO withdrew it. The Court stressed that the Board was not required to prosecute the allegation itself, and that the employee might have been prejudiced if the Board revived it after he had been told it was no longer pursued. The decision therefore links the Board's role to fairness and institutional impartiality.
At [30], the Board said it was conducting “a review on the merits” and could substitute its decision for the CEO's as to the preferable outcome on the facts. Mildren J concluded: “There is no error in this approach.” In plain English, the Board could decide the s 50 merits question for itself, rather than merely checking whether the CEO's process was legally valid.
At [32], the Court described the s 50 and s 51 processes as “quite different.” This was not a merely technical distinction. The procedures could have different practical and monetary consequences, including whether an employee was suspended with or without pay [32]. The Board could not bridge those statutory processes by selecting a s 51 sanction in an appeal from a s 50 dismissal.
The decision is most directly relevant where a public-sector employee is summarily dismissed under a statutory power framed around whether misconduct makes immediate dismissal in the public interest. It is particularly pertinent if the underlying offence occurred before the employee joined the public service. In that setting, the decision supports treating the timing of the offending as potentially relevant to the statutory assessment, while leaving the weight to the decision-maker [21]-[25].
It is also relevant where an employee appeals a summary-dismissal decision and the appeal body is authorised to receive additional evidence and make a merits decision. The statutory text and procedures need close comparison: the judgment relied on the particular combination of s 58(2), the Board's power to deal with the appeal as it thought fit, and the admission of further evidence [13], [30].
A further trigger is a case where the primary decision-maker has selected one disciplinary route but the appeal body is asked to impose a sanction found in another route. The judgment indicates that an appeal against a s 50 decision is not an opportunity to import the alternative outcomes in s 51(10) [31]-[32]. The source of the original decision and the relevant appeal provision matter.
Finally, the decision is pertinent where an allegation is withdrawn during an administrative appeal. It highlights the risk of the tribunal assuming responsibility for prosecuting a ground that the initiating party has abandoned, particularly where the affected person may not have had a fair opportunity to answer it [28]-[29]. The judgment's treatment is fact-specific and does not state that every withdrawal must be permitted, or that every abandoned issue is irrelevant in all proceedings.
The judgment text supplied here contains no decisions after 8 December 2003 discussing or applying Northern Territory of Australia v Disciplinary Appeal Board of the Northern Territory & Anor. No later-court treatment can therefore be identified from this source. It would be unsafe to infer that the reasoning has been followed, distinguished, or superseded without later authorities.
The judgment itself does identify the authorities Mildren J used. It applied Craig v South Australia on the ability to prove jurisdictional error by evidence beyond the record [17]. It considered Coal and Allied Operations Ltd v Australian Industrial Relations Commission in explaining the distinction between appeals de novo and appeals by way of rehearing [30]. It referred to Re Moore, Peko-Wallsend and Re Minister for Local Government in addressing the relevance and weight of considerations [25]. It followed Dare v Dietrich, Seears v McNulty and V T v Winzar in support of its conclusion about the effect of additional evidence on the character of the appeal [30]. These are authorities relied on in the judgment, not evidence of later treatment of this judgment.
The clearest express open question concerns delay. The Board had an alternative basis for its conclusion that, if immediate dismissal was warranted, the CEO had delayed too long. Mildren J did not decide whether that delay was relevant because the Board's first basis was sufficient [24]. The judgment therefore does not resolve what degree or kind of delay would affect a s 50 decision, or whether the answer depends on the particular facts.
The judgment also does not define the boundary of when an offence “affects” an employee's employment under s 49(b). It gives an example involving old offending and possible rehabilitation [21], but does not lay out a comprehensive test for the required connection. Nor does it determine the substantive merits of the withdrawn s 49(p) allegation or the Code of Conduct allegation. The Court considered whether the Board had to address the abandoned ground, not whether Jenkins's conduct in fact breached the Code.
The precise consequences of admitting additional evidence will also depend on the appeal statute in each case. Mildren J's conclusion that this was a de novo merits hearing relied on several features of the Act and the particular admission of further evidence [30]. The judgment does not say that every statutory appeal becomes de novo whenever additional evidence is received.
Finally, although the Court noted that a CEO could commence a s 51 process after the Board's decision [32], it did not determine whether a later s 51 process would be appropriate on any particular facts, what outcome it might produce, or how such a process would be conducted. Those matters were not before the Court.
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Review of decision of Disciplinary Appeal Board - whether Board misconstrued s 50 of the Act - whether instant dismissal was in the public interest - whether respondent in breach of Code of Conduct for failing to disclose criminal offences to employer.
Public Sector Employment and Management Act s 49, s 50, s 51 and s 57
Coal and Allied Operations Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 41; Re Minister for Local Government; ex parte The Buddhist Society of Western Australia (Inc) [2001] WASCA 380 at [51]- [83]; Re Moore; Ex parte Co-operative Bulk Handling Ltd (1982) 56 ALJR 697 at 697; The Queen v Australian Broadcasting Tribunal and Others; Ex parte Hardiman and Others [1980] HCA 13; (1980) 144 CLR 13 at 35, referred to.
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 176, applied.
Dare v Dietrich [1979] FCA 47; (1979) 26 ALR 18 at 32-33; Seears v McNulty (1987) 89 FLR 154 at 160; V T v Winzar [1992] NTSC 9; (1992) 106 FLR 306 at 309, followed.
Northern Territory of Australia v Disciplinary Appeal Board of the Northern
Territory & Anor [2003] NTSC 120
NORTHERN TERRITORY OF ASUTRALIA (CHIEF EXECUTIVE OFFICER, DEPARTMENT OF COMMUNITY DEVELOPMENT, SPORT & CULTURAL AFFAIRS)
DISCIPLINARY APPEAL BOARD OF THE NORTHERN TERRITORY
[1] This application is brought by originating motion for an order in the nature of certiorari to quash a decision by the Disciplinary Appeal Board of the Northern Territory (the Board) which directed the Chief Executive Officer of the Department of Community Development, Sport and Cultural Affairs (the CEO) to reinstate Scott Jenkins (Jenkins) to his previous substantive level in the Northern Territory Public Sector.
[2] The plaintiff's argument is that the Board, an administrative tribunal, made two fundamental errors which were "jurisdictional errors" in that it misconstrued s 50 of the Public Sector Employment and Management Act (the Act) and it misconceived the nature of its functions as a Tribunal.
[3] In accordance with the usual practice noted in The Queen v Australian Broadcasting Tribunal and Others; Ex parte Hardiman and Others [1980] HCA 13; (1980) 144 CLR 13 at 35, the Board has submitted to such order as this Court should make.
[4] Between October 1998 and September 2001 Jenkins was employed as a mortgage broker with Fairway Home Loans. In early 2001, Jenkins was charged with offences relating to the forging and uttering of documents in respect of loan applications by various members of the public to the ANZ Banking Group Limited. Between June and July 2002 and September and October 2002 following his dismissal from Fairway Home Loans, he successfully obtained employment in the Northern Territory Public Sector on a temporary basis as an AO2 Tenancy Officer. In October 2002 he applied for and won a permanent position as an AO2 Tenancy Officer. On 21 November 2002 he pleaded guilty to 58 counts involving 13 separate incidents of four related offences resulting in loans being made by the ANZ Bank to various people where the loans might otherwise have not been made. The steps taken included in each case, the alteration of documents, the making of false documents and uttering them to the bank. He was remanded in custody until he was sentenced. On 28 November 2002 Jenkins was sentenced to a total of one year and eight months imprisonment, suspended after four months, back dated to 21 November 2002. At no time prior to his imprisonment did Jenkins inform his superiors in the public service about the charges pending against him, and it appears that the first the Chief Executive Officer knew about the matter was shortly after Jenkins had been remanded in custody.
[5] On 20 March 2003, at about the time Jenkins was due to be and was in fact released from prison, the Chief Executive Officer wrote to Jenkins advising him of his intention to dismiss Jenkins from his employment pursuant to s 50 of the Act. The reason for the proposed dismissal given in the letter is that the convictions amounted to a breach of discipline pursuant to s 49(b) of the Act. No mention is made in the letter of any failure to disclose the pending charges either at the time he obtained temporary employment or at the time he obtained permanent employment. The letter invited Jenkins to provide any submissions he might wish to make before the Chief Executive Officer finally determined the matter.
[6] Jenkins provided written submissions as he was invited to do, and the Chief Executive Officer conducted an investigation. In the result the Chief Executive Officer reached the decision that Jenkins had committed breaches of discipline as defined by s 49(b) and (p) of the Act. There is no specific mention of what conduct amounted to a breach of s 49(p) in the letter of 5 June 2003 to Jenkins advising him of the outcome. The Chief Executive Officer also reached the conclusion that as a result of the breach of discipline, Jenkins' employment should be terminated, effective immediately. From this decision, Jenkins appealed under s 57(1)(b) of the Act to the Board.
[7] At the hearing before the Board, reliance upon a breach of discipline within the terms of s 49(p) was abandoned. The conclusion of the Board was, in short, that although there was a breach of discipline within the terms of s 49(b), the breach was not of such a nature that it was in the public interest that Jenkins be immediately dismissed from the Public Sector vide s 50 of the Act. Consequently it allowed the appeal and directed the Chief Executive Officer to reinstate Jenkins.
[8] The relevant provisions are contained in Pt 8 of the Act which deals with "Discipline". Section 49(b) provides that:
"an employee who is found guilty in a court of an offence that affects the employee's employment committed before or after the commencement of this Act commits a breach of discipline."
Section 49(p) provides that "an employee who otherwise disregards or acts in a manner inconsistent with the prescribed principles commits a breach of discipline." There is no definition of "prescribed principles", but there is a regulation making power in s 65(1)(c) empowering the Administrator to make regulations, "prescribing principles to be observed in public administration and management, human resource management and conduct." I will return to this topic later.
[9] Section 50 of the Act provides for summary dismissal and is in the following terms:
Notwithstanding anything in this or any other Act or the rules known as the rules of natural justice (including any duty of procedural fairness), where a Chief Executive Officer is of the opinion that the action or omission constituting a breach of discipline amounts to misconduct of such a nature that it is in the public interest that the employee be immediately dismissed from the Public Sector, the Chief Executive Officer may, after consultation with the Commissioner, dismiss the employee from employment in Public Sector."
[10] Section 51 deals with the procedure to be adopted in respect of breaches of discipline where the employee has not been dismissed under s 50, and where a Chief Executive Officer suspects that there has been a breach of discipline. In this event, s 51 envisages that an investigation will be carried out (s 51(1)), but before this is done, notice must be given to the employee advising him of the intention to carry out the investigation, what the suspected breach is, and giving the employee an opportunity, within 14 days, to provide a written explanation (s 51(3)). If the Chief Executive Officer decides to continue with the investigation having received the employee's response, those carrying out the investigation must advise the Chief Executive Officer in writing of their findings, and whether or not the employee has committed a breach of discipline, giving reasons (s 51(8)). A copy of this advice must be provided to the employee vide s 51(9). If, having considered the results of the investigation the Chief Executive Officer is of the opinion that the employee has committed a breach of discipline, the Chief Executive Officer may take a number of alternative actions including taking no further action, cautioning the employee, fining the employee, reducing the employee's salary, suspending the employee, transferring the employee to another Agency, or dismissing the employee.
[12] Part 9 of the Act deals with appeals and review. Section 57(1)(b) provides for a right of appeal to a Disciplinary Appeal Board. The Board in question is, pursuant to s 57(2) constituted by a "chairperson" appointed by the Minister who must be a legal practitioner of at least five years' standing or have "other suitable qualifications or experience" in the opinion of the Minister. The "chairperson" in this case was a prominent member of the junior bar. The other two members of the Board consist of a nominee of the Commissioner and a nominee of the "prescribed employee organisation". The Board is empowered to either disallow the appeal or allow the appeal in whole or in part and direct the Chief Executive Officer to take such action as the Appeal Board considers necessary (s 57(6)).
[13] The procedures of the Board are dealt with by s 58. Section 58(2) provides:
"(2) An appeal shall be by way of a review of the evidence taken into account by the Chief Executive Officer against whose action or intention the appeal is lodged, but where a party to the appeal, by notice in writing to the Appeal Board, satisfies it that there is additional evidence that was not available to the Chief Executive Officer before the Chief Executive Officer took the action or formed the intention or that evidence available to the Chief Executive Officer was not adequately taken into account, the Appeal Board shall (as the case requires) admit that evidence and, in its discretion, deal with the appeal as it thinks fit."
[14] It is common ground that additional evidence was admitted before the Board in this case, and that a hearing was conducted as envisaged by ss 58(6), (8) and (9) of the Act.
[15] The Board is given powers to summon witnesses, take evidence on oath, and require the production of documents (s 58(12)). The Act envisages that the appeal will proceed with as little formality and technicality as the circumstances permit (s 58(4)). A party may be represented before the Board, and with the Board's permission may appear by a legal practitioner and tender evidence (s 58(9)). The Board is required to give its decision and the reasons for its decision in writing (s 58(15)). There is no appeal from a decision of the Board although the statute does not contain a privative clause.
[16] At the beginning of the hearing counsel for the plaintiff Ms Kelly, sought to tender an affidavit from Gabrielle Martin, the solicitor for the plaintiff, which annexed a number of documents which were tendered before the Board, the reasons for the Board's decision, the transcript of proceedings before the Board as well as three documents which were not placed before the Board, including the Code of Conduct allegedly made under s 16 of the Act. This affidavit was objected to by counsel for Jenkins, Mr McNab. I admitted the affidavit de bene esse. Ms Kelly also sought to rely upon an affidavit sworn by the CEO, Mr Michael Dillon. No objection was taken to paragraphs 1, 2, 4, 5, 6, 7 and 8 thereof. Objection was taken to paragraphs 9, 10 and 12. I admitted these paragraphs de bene esse. The remaining paragraphs were not pressed.
[17] The objections taken by Mr McNab were on three bases: (1) to the extent that the plaintiff relies on error on the face of the record, none of these documents are part of the record. I agree with Mr McNab, but the plaintiff's case is not based on error on the face of the record, but jurisdictional error. I accept the submission of Ms Kelly that in these circumstances the plaintiff is entitled to lead evidence to prove the error in any way it can: see Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 176. The plaintiff is therefore not confined to the record, and can prove jurisdictional error by referring, for example, to the reasons; (2) no proper basis was established for admitting the evidence, and (3) there was nothing in the plaintiff's outline of argument which identified which documents, or which parts of which documents, were to be relied upon. In the end result I consider that very little of the material is admissible apart from the Board's formal decision and its reasons. The rest appears to me to be largely irrelevant (except for some of the background facts which are necessary to know in order to put the case into context) and except where otherwise indicated I have rejected everything else.
[18] The second defendant also tendered an affidavit which was admitted without objection. It set out some of the background facts, and annexed the sentencing remarks of Martin CJ, copies of the letters the second defendant received from the plaintiff dated 20 March and 5 June 2003, a letter from the Secretary of the Board setting out the names of the Board members, a copy of the Board's decision and of the Board's reasons.
[19] Ms Kelly submitted that the Board misconstrued s 50 which caused it to ask itself the wrong question and to take into account matters which were irrelevant. It was submitted that the Board construed s 50 to mean that the Chief Executive Officer must in the circumstances envisaged by that section immediately dismiss the employee, and that delay in dismissing the employee was irrelevant.
[20] In my opinion the plaintiff's submission is circuitous. The argument is that because the Board took into account the delay in deciding whether or not the conduct amounting to a breach of discipline amounted to misconduct of such a nature that it was in the public interest to immediately dismiss the respondent, the Board must have misconstrued s 50. The seriousness of the misconduct is a necessary precursor to the exercise of the discretion to summarily dismiss, but I do not consider that delay was an irrelevant consideration to the exercise of the Board's discretion.
[21] The seriousness with which one is entitled to view misconduct can be affected by the passage of time particularly when the conduct giving rise to the misconduct occurred a long time ago. In terms of s 49(b) of the Act, the breach of discipline is the finding of guilt, but only if the finding is of an offence which affects the employee's employment. Obviously not every finding of guilt of an offence will affect the employee's employment. If the offence occurred many years ago, the offender may have been rehabilitated in the meantime, for example. In such a case there may be no finding of a breach of discipline at all.
[22] But in this case, there was also delay of a different character. It was delay by the Chief Executive Officer in investigating the matter and in taking the step of dismissal. Overall, the time which lapsed between the Chief Executive Officer finding out about the respondent's conviction and the dismissal was a little over six months. The Board considered that the finding of guilt of the offence did affect the respondent's employment and that there was a breach of discipline. As the Board rightly concluded, the question then became whether the breach of discipline was also "misconduct of such a nature that it is in the public interest that the employee be immediately dismissed from the Public Sector."
[23] As I read the Board's reasons, the Board considered that the conduct which led to the finding of guilt was not such as to warrant immediate dismissal from the Public Sector in the public interest. The Board considered that it was relevant that the misconduct occurred two and a half years to one and a half years before the appellant's entry into the Public Sector. The Board's view was that immediate dismissal was not called for, rather than the second defendant being dealt with under s 51 of the Act, "a longer process with a greater choice of disciplinary outcomes." Alternatively, the Board considered that if:
"contrary to the Board's view ... the appellant's misconduct was of such a nature that it was in the public interest that the appellant be immediately dismissed from the Public Sector, it was in the public interest that the appellant be dismissed promptly ... the discretion to summarily dismiss was not properly exercised ... the respondent ... delayed far too long ... ."
[24] Even if the Board ought not to have taken into account the Chief Executive Officer's delay, a matter I do not find necessary to decide, that was a separate alternative ground for the Board's conclusion. If the Board's conclusion was justified on the first ground, there is no jurisdictional error.
[25] In my opinion the Board was correct to conclude that the fact that the offending occurred before the respondent joined the Public Sector was a factor which was of relevance in deciding whether or not the misconduct was of such a nature that it was in the public interest to immediately dismiss the respondent and whether the discretion to take the course of immediate dismissal should be exercised. The weight to be given to that factor was entirely a matter for the Board: Re Moore; Ex parte Co-operative Bulk Handling Ltd (1982) 56 ALJR 697 at 697; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 41; Re Minister for Local Government; ex parte The Buddhist Society of Western Australia (Inc) [2001] WASCA 380 at [51]- [83].
[26] A further argument which was developed by Ms Kelly was that the Board erred in failing to take into account the fact that the respondent at no relevant time before his employment became permanent disclosed the fact that charges were pending against him.
[27] Ms Kelly submitted that this failure was a breach of s 49(p) of the Act. The argument was that the respondent had breached the Commissioner's Employment Instructions issued under s 16 of the Act. Section 16(2)(c) authorises the Commissioner to include in Employment Instructions issued by him a Code of Conduct to be observed in the Public Sector. The Code of Conduct provides in paragraph 13 the following:
"Employees who have been charged, convicted or acquitted of an offence are required to advise the Chief Executive Officer, regardless of whether the offence relates directly to the employee's duties."
[28] Initially, at the hearing before the Board, counsel for the Chief Executive Officer who was dux litis presented a case against the respondent based upon this alleged breach of s 49(p) of the Act. On the morning of the second day, and before the second defendant had opened his case, the plaintiff sought leave to withdraw reliance upon s 49(p). This was objected to by the solicitor for the second defendant but the Board permitted this to be done. As a consequence any alleged breach of s 49(p) and of par 13 of the Code of Conduct, was not considered by the Board.
[29] Ms Kelly submitted that, notwithstanding that these allegations were withdrawn, the Board ought to have forced the respondent to defend these allegations, as on the material already tendered before the Board, a prima facie case of breach of par 13 of the Code of Conduct had been established. I am unable to accept this contention. In effect Ms Kelly's submission amounts to this, that the Board committed a jurisdictional error in allowing counsel for the appellant to withdraw that allegation. I am unable to find any provision of the Act which prevented the Board from acting as it did or requiring the Board to, in effect, prosecute for itself a ground which the CEO had formally abandoned. Absent express statutory authority for such a course, the Board, had it taken the course suggested by Ms Kelly, would have placed itself in danger of having any decision it made challenged on the ground of apparent bias. I do not consider that the Board committed any error in allowing that matter to be dropped, let alone jurisdictional error. Furthermore it would have been unfair of the Board to have taken into account a matter expressly abandoned by the plaintiff. The second defendant may have had an answer to this ground of complaint which he did not address at the hearing because the matter had been abandoned. It has not been shown that no prejudice would flow to the second defendant if this ground ought now to be considered. As Mr McNab submitted, this is a text-book case where the plaintiff should not have a remedy as the sole reason for the result would be its own conduct in disowning its previous conduct and departing from the position previously taken to the probable prejudice of the second defendant. As a matter of discretion, even if the Board ought to have considered s 49(p) and fell into jurisdictional error, as a result, I would refuse the relief sought. I therefore dismiss the first ground upon which the application is based.
Did the Board misconstrue its function as an administrative tribunal?
[30] Ms Kelly submitted that having admitted additional evidence the hearing before the Board became a hearing de novo. Mr McNab submitted that the appeal was by way of rehearing at which additional evidence was heard. The two fundamental differences between an appeal de novo and an appeal by way of rehearing is that in the former case the tribunal or court usually hears all of the evidence again and decides the matter on the basis of that material afresh, whereas in the latter case the appeal is usually conducted on the basis of the evidence before the original decision-maker and the tribunal or court usually has to find error before it can alter the result: see Coal and Allied Operations Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at 202-203. Notwithstanding the use of the expression, "an appeal shall be by way of a review of the evidence taken into account by the Chief Executive Officer" in s 58(2) of the Act, it seems to me that the appeal in this case was a de novo hearing because (1) the Chief Executive Officer is not required to give any reasons, (2) the Chief Executive Officer is not required to be legally trained, (3) the rules of natural justice and procedural fairness do not apply to a decision to summarily dismiss under s 50, and (4) further evidence was admitted by the Board. It is usually the case that once further evidence is received, and the appellate body is required by the statute to `deal with the appeal as it thinks fit', or to reach such decision as is just or some similar formulation of words, the appeal, whatever its previous form, becomes an appeal de novo: cf Dare v Dietrich [1979] FCA 47; (1979) 26 ALR 18 at 32-33; Seears v McNulty (1987) 89 FLR 154 at 160; ; at 309. This was in fact the course which the Board took because, as the Board said:
"the appeal was not simply an administrative review in terms of review as to the legality of the dismissal, but rather a review on the merits where this Board was able to examine the facts and substitute its decision for that of the respondent as to what is the preferable outcome on the facts."
[31] However, Ms Kelly submitted that the Board did not carry out its functions in two respects. First, it ought to have taken into account the non-disclosure of the pending charges as a breach of discipline within the meaning of s 49(p). I have already dealt with that submission. Secondly, it was put that the Board ought to have considered the alternatives to summary dismissal as set out in s 51(10) of the Act. Mr McNab submitted that this was not open to the Board because the appeal was an appeal against the action of the Chief Executive Officer under s 57(1)(b) and not an appeal against the action of the Chief Executive Officer under s 57(1)(c).
[32] I consider that Mr McNab is correct in his submission. The structure of the Act contemplates two quite separate procedures: immediate dismissal under s 50, with a right of appeal to the Board vide s 57(1)(b); and an investigation resulting in findings under s 51 with a right of appeal to the Board vide s 57(1)(c). The two procedures under s 50 and s 51 are, as I have endeavoured to explain, quite different. It matters not that in this case the Chief Executive Officer adopted a more generous and fairer process towards the second defendant than he was required to do under s 50, because he did not proceed, nor did he purport to proceed, under s 51. Thus, the only question which fell for decision by the Chief Executive Officer was whether the second defendant ought to be immediately dismissed. It was not open to the Chief Executive Officer to consider any of the alternatives under s 51(10) as he had not proceeded via s 51. If the Chief Executive Officer had reached the conclusion that summary dismissal under s 50 was not appropriate, but nevertheless termination was appropriate under s 51(10)(a), he would have needed to have started again with an investigation under s 51. Apart from the odiousness of summary dismissal and the likely effect it has on a person's future (as opposed to termination) there are potentially different monetary consequences to an employee depending on whether or not the employee is suspended with or without pay, for example, and these consequences flow from the exercise of further discretionary powers conferred upon the Chief Executive Officer under the Act (such as under s 51(6)), so the differences in the two procedures are not academic even in a case like this. This leads to the conclusion that the Board could not have considered any alternatives under s 51(10) but was limited to deciding the question it did decide. That being so, the direction of the Board that the plaintiff reinstate the second defendant was appropriate and proper. I point out however, that there is nothing to prevent the Chief Executive Officer from proceeding, should he now wish to do so, via s 51.
[33] In the result, the application must be dismissed. I will hear the parties as to costs.
Northern Territory of Australia
Disciplinary Appeal Board of the Northern Territory & Anor [2003] NTSC 120
(2000) 203 CLR 194
(1986) 162 CLR 24
(1982) 56 ALJR 697
(1980) 144 CLR 13
(1995) 184 CLR 163
(1979) 26 ALR 18
(1987) 89 FLR 154
(1992) 106 FLR 306
Application for certiorari dismissed; costs reserved for further submissions.