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[2011] TASSC 27
General information, not legal advice.
Supreme Court of Tasmania
2011-06-03
Porter J
Original judgment source is linked above.
Administrative Law - Judicial review - Grounds of review - Procedural fairness - Existence of obligation - Right to be heard - State Service investigation into possible breaches of Code of Conduct - Investigation mandated where Head of Agency held belief of possible breach on reasonable grounds - Whether terms of scheme required hearing before investigation initiated - Whether obligation otherwise arose - Consideration of investigatory and decision-making scheme as a whole.
Cornall v AB [1995] VICSC 7; [1995] 1 VR 372, applied.
Byrne v Marles [2008] VSCA 78; (2008) 19 VR 612, considered.
Administrative Law - Judicial review - Grounds of review - Error of law - State Service investigation into possible breaches of Code of Conduct - Investigation mandated where Head of Agency holds belief of possible breach on reasonable grounds - Internal review by State Service Commissioner - Whether review of Commissioner's decision a matter of law or fact - Whether State Service Commissioner erred in law in holding that Head of Agency had reasonable grounds for belief.
George v Rockett [1990] HCA 26; (1990) 170 CLR 104; R v Connell; ex parte The Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407, applied
Administrative Law - Judicial review - Grounds of review - Procedural fairness - Bias - Apprehension of bias - Investigation into possible breaches of State Service Code of Conduct - Allegation of bias - Application of bias rule to investigator - Whether reasonable apprehension of bias.
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, considered.
Administrative Law - Judicial review - Grounds of review - Absence of authority - Improper exercise of power - Investigation of possible breaches of State Service Code of Conduct - Whether investigation beyond terms of investigator's reference.
Kelson v Forward (1995) 60 FCR 3, applied.
First Respondent: Director of Public Prosecutions
Second Respondent: Director of Public Prosecutions
Third Respondent: Director of Public Prosecutions
Judgment Number: [2011] TASSC 27
MICHAEL PERVAN v IAIN FRAWLEY, ACTING STATE SERVICE COMMISSIONER; DAVID ROBERTS, SECRETARY, DEPARTMENT
1 Mr Pervan, the applicant, is a senior Tasmanian State Service employee. A formal investigation into possible breaches of the State Service Code of Conduct on his part has been commenced. He unsuccessfully applied for an internal State Service review of that decision. The investigation had started, but it was suspended during the application for review. It is now continuing. The applicant has applied for orders of review under the Judicial Review Act 2000 ("the JRA") or similar relief, and declaratory orders. The targets of the application are the refusal to grant his application for a review of the decision to investigate, and also the conduct of the investigation itself. For the reasons which follow, I have determined that the application must fail, except to the extent of a challenge to the investigator's authority concerning the parameters of the investigation presently being conducted.
2 The applicant is the Chief Executive Officer, Southern Area Health Service - Senior Executive Level 3 in the Department of Health and Human Services in the Tasmanian State Service. As such, he is effectively the Chief Executive Officer of the Royal Hobart Hospital. His employment is governed by the State Service Act 2000 ("the SSA"). At the relevant times the first respondent, Mr Frawley, was the Acting State Service Commissioner, a position specifically provided for in the SSA, s27. At relevant times the second respondent, Mr Roberts, was the Secretary of the Department of Health and Human Services, and hence a "Head of Agency" by virtue of s30 of that Act. It is convenient, although not entirely accurate in one instance, if I refer to them respectively as the "Commissioner" and the "Secretary".
3 In September 2010, as a result of what the Secretary described as "recent complaints that have been made", he requested a Ms Sparks - described in correspondence as an "Independent Consultant Investigator" - to "undertake a fact-finding investigation and prepare a report", so that he could make an initial assessment. It seems that on 24 September 2010 the Secretary told the applicant of the complaints, and directed that he take three weeks' annual leave. In October 2010, Ms Sparks delivered a voluminous report to the Secretary. In the process of preparing this report, Ms Sparks did not speak to the applicant, nor did she invite his response to any material.
4 On 20 October 2010, the Secretary initiated a formal investigation into the conduct of the applicant. This was done under "Commissioner's Direction No 5", and the investigation was to be carried out in accordance with that direction. This is a direction made by virtue of the SSA, ss10(3) and 20(1). Section 20(1) provides that the State Service Commissioner may "issue Directions which relate to any of the Commissioner's functions under this Act", and which significantly, "have effect according to their tenor unless they are inconsistent with or repugnant to other provisions of this Act." Section 10(3) provides that the Commissioner is to establish procedures for an investigation and determination of whether an employee has breached the "Code of Conduct". That Code of Conduct is set out in the SSA, s9.
5 Commissioner's Direction No 5 ("CD5", as it is commonly called) contains a number of parts. Part 4 is entitled "Allegation and Investigation", and cl 4.1 provides as follows:
"4.1 Should a Head of Agency have reasonable grounds to believe that a breach of the Code may have occurred, the Head of Agency must appoint, in writing, a person (the Investigator) to investigate the alleged breach of the Code in accordance with these procedures. The Investigator must be impartial and must report to the Head of Agency in accordance with Clause 4.9 on the outcome of their investigation."
6 The Secretary notified the applicant of the investigation by letter dated 20 October 2010, addressed to his previous solicitors although apparently handed by the Secretary to the applicant at a brief meeting. This letter:
•
told the applicant of the Secretary's intended investigation of allegations against him "that may constitute breaches of s9 of the SSA";
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set out a number of instances and particulars of what was said to be the substance of the alleged conduct under investigation, and advised the applicant of the investigation process;
•
informed the applicant that he would not be performing the duties of the Chief Executive Officer until further notice, and that his alternative duties would be discussed with him;
•
instructed the applicant that during this period he should not attend the Royal Hobart Hospital premises without the Secretary's prior consent, with the exception of any requirement to attend for a personal medical appointment or medical emergency for the applicant or his family;
•
further instructed him that he should not under "any circumstances" visit the 9th Floor, Block A Executive Offices - presumably the location of the applicant's office - without the Secretary's prior consent, and that in the event that consent were granted, the applicant had to be accompanied to the 9th Floor by an employee of the Secretary's choosing.
7 I have no evidence as to what, if anything, occurred in relation to the allocation of alternative duties. As to the investigation into the alleged breaches of the Code of Conduct, at about the same time as the advice to the applicant, the Secretary appointed Ms Sparks as the investigator. The applicant, acting through his union, objected to Ms Sparks being the investigator for the CD5 investigation, having regard to her authorship of the report. Ms Alice Burchill was made Acting Secretary of the Department for the period from 25 October to 7 November 2010 inclusive. By letter of 27 October 2010 to the applicant's then solicitors, Ms Burchill noted the request for a different investigator to be appointed, and confirmed that she had determined to appoint Claire Alder to undertake the CD5 investigation as an alternative to Ms Sparks.
8 By letter of the same date addressed to Mrs Alder, Ms Burchill stated that she (Ms Burchill) considered that there were reasonable grounds to believe that the applicant may have breached the Code of Conduct and "authorised" Mrs Alder to undertake an investigation in accordance with CD5. The letter set out the terms of reference for the investigation. I have attached an edited and "de-identified" copy of that letter to these reasons as annexure "A". By an "instrument of appointment" dated the same day and attached to that letter, Ms Burchill, appointed Mrs Alder "to undertake a formal investigation pursuant to Commissioner's Direction No 5 of 2009 against Mr Michael Pervan, ...". [My emphasis - the use of the word becomes relevant in these proceedings.]
9 Mrs Alder wrote to the applicant on 11 February 2011, saying "I confirm that I have been appointed by Alice Burchill, Acting Secretary Department of Health and Human Services at the time, to undertake a formal investigation against you into alleged breaches of the State Service's Code of Conduct pursuant to the Commissioner's Direction No 5 of 2009". Attached to the letter were what was said to be particulars of the alleged conduct in order to "assist [the applicant] with preparing for the interview."
10 On 2 November 2010, the applicant applied under s50(1)(b), to the State Service Commissioner for a review of State Service action which related to his employment in the State Service. Specifically, the applicant sought "a review of the action of the Head of Agency ... to instigate a Commissioner's Direction No 5 (CD5) Investigation." This related to the Secretary's decision of 20 October and the process leading to it, and not Ms Burchill's actions as Acting Secretary. On 7 January 2011, the first respondent, as Acting Commissioner, dismissed this application for review.
11 By originating application the applicant seeks judicial review of the decision by which the application for review was dismissed, or in the alternative, relief in the nature of certiorari in respect of that decision. The Attorney-General intervened in the proceedings under s39 of the JRA, and is the only respondent who has taken an active role. As amended, and in short summary, the application to this Court seeks:
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a declaration that the investigation commenced by the Secretary under CD5 is invalid;
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an order of review "in respect of the conduct by [the Secretary] in carrying out the investigation" under CD5;
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a declaration that the "preliminary inquiry" leading to the Secretary's decision to investigate pursuant to CD5, is a nullity.
12 The grounds set out in the application are somewhat lengthy, and in parts, amount to factual statements and assertions. I will set out what I see to be the essence of the complaints. As to the decision of the Commissioner to dismiss the application for review under the SSA, the grounds are that there were errors of law as follows:
•
the Commissioner wrongly held that there was no requirement for procedural fairness to be afforded to the applicant in the process leading to the decision to investigate under CD5;
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the Commissioner wrongly found that the Secretary was entitled to form an opinion that there were reasonable grounds to believe that the applicant may have committed a breach of the Code of Conduct within the terms of CD5, and erred in failing to find that the Secretary had no such grounds.
13 As to the conduct of the investigation under CD5, the grounds of review, as illuminated in argument, assert that:
•
the investigation is invalid for two reasons: first, that the appointment of Mrs Alder by Ms Burchill was invalid because Ms Burchill's appointment as Acting Secretary was itself invalid with the consequence that she lacked the necessary authority; secondly, (assuming the authority existed) that her appointment of Mrs Alder commenced a new investigation, the details of which were not notified to the applicant as required by cl 4.4 of CD5;
•
there is an apprehension of bias on the part of Mrs Alder;
•
there has been an enlargement of the scope of the investigation under CD5, without lawful authority in that existing allegations have been enlarged, and new ones added.
Jurisdiction under the Judicial Review Act 2000
14 There is no issue that the decision of the Commissioner of 7 January 2011 is a reviewable decision under the JRA, s17, as being a decision to which the Act applies. In relation to the challenge to the investigation, the applicant relies on the JRA, s18(1), which provides that if a person has engaged, is engaging, or proposes to engage in, conduct for the purposes of making a decision to which the Act applies (whether by that person or by another person), a person who is aggrieved by the conduct may apply for an order of review relating to the conduct. Section 8(b) is also relevant. It provides that a reference in the Act to conduct engaged in for the purpose of making a decision, is taken to include a reference to the doing of anything preparatory to the making of the decision, including the holding of an inquiry or investigation.
Whether any relief should be granted - the discretion
15 In addition to the issues raised by the grounds of the application which I have previously summarised, there is a further issue in this case raised by counsel for the Attorney-General. It is submitted that irrespective of any views which I may hold as to the grounds, no relief ought to be granted. It is, of course, rightly said that the power of the Court to grant relief under the JRA, s27, is discretionary. More specifically, the Attorney relies on ss12 and 38 of the JRA. Section 12(1)(b) gives the Court a discretion to dismiss an application where adequate provision is made by a law, other than the JRA, under which the applicant is entitled to seek a review of a matter by the Court or another court or tribunal, an authority or a person.
16 Additionally, s13 requires the Court to dismiss an application if review of a matter is available at the end of the initial proceeding, and it is desirable that it be dismissed in order to avoid interference with the due orderly conduct of the initial proceeding. More generally, s38 enables the Court to stay or dismiss an application if it considers (amongst other things) that it would be inappropriate for the proceedings relating to the application to be continued, or for the application to be granted.
17 The Attorney-General points to the availability of review under s50 of the SSA in respect of the conduct of the investigation, but moreover relies on the proposition that to intervene at this stage would cause disadvantageous delays and fragment ongoing proceedings, the undesirability of which, in the absence of a clearly discernible benefit, was noted by Evans J (Crawford J agreeing) in Port of Devonport Corporation Pty Ltd v Abey [2005] TASSC 97; (2005) 15 Tas R 158 at [35], [48] - [49]. See also Wilson v Co-ordinator-General Department of State Development [2001] QSCA 159 at [13] and, in this particular context, Twining v Australian Public Service Commission [2006] FCA 129 at [19].
18 Sections 14 and 38(2)(b) of the JRA require the Court to "try to ensure" that any exercise of the dismissal power occurs at the earliest appropriate time, and summary determination on an interlocutory or preliminary basis readily suggests itself. However, as Tennent J pointed out in Judd v Commissioner for Licensing [2009] TASSC 16 at [11], there is nothing in the JRA which limits the time in which the Court may consider the use of the power of dismissal; it can be exercised on the hearing of the substantive issues raised by the application. In that event, it might be convenient in the circumstances to consider summary dismissal before considering any of the grounds raised. In this case however, Mr Turner submits that "even if the grounds for review are made out", relief ought not to be granted.
19 The overriding consideration in each of ss12, 13 and 38 is the interests of justice, which interests have a public component; expressly so in the case of s13. In many cases it will not be possible to determine whether the application should be dismissed without at least some consideration of the grounds. The question of whether or not there would be a discernible benefit from granting relief must be considered in context. The resolution of the grounds of an application before consideration of whether, in the exercise of the discretion, intervention should occur, was for instance, the course adopted by Heerey J in Re Mario Abbotto; and Purcell [1991] FCA 657. I think this is such a case in which the exercise of the discretion is guided by the nature of the grounds; see Abbotto at [22] - [29].
The Commissioner's decision as to the CD5 investigation
20 The applicant's argument is that the Secretary was obliged to give him an opportunity to be heard before making the decision to instigate the CD5 investigation. (What the word "decision" encompasses is the formation of the belief as to possible breaches, and the consequent mandated appointment of an investigator.) The suggested procedural fairness would have involved either the Secretary himself hearing from the applicant, or ensuring that Ms Sparks did so. The applicant says that the rules of procedural fairness, and in particular the right to be heard, is to be implied from the statutory scheme, or alternatively by virtue of the operation of the common law, given the terms of the scheme and the nature of the decision. Either way it involves an examination of the framework in which the Secretary was operating.
21 As I have noted, the present investigation being conducted by Mrs Alder was authorised by Ms Burchill. The intent was that Mrs Alder replace Ms Sparks in the investigation commenced by Mr Roberts. This will be later discussed under other grounds. In relation to these grounds, the applicant's focus is on Mr Roberts' decision and the preliminary Sparks inquiry. It is convenient that for the time being at least, the relevant "decision" to investigate is taken to be that of the Secretary, Mr Roberts.
22 The process of setting out the relevant provisions is an unfortunately long one. I have already noted the direction in s10(3) of the SSA, for the Commissioner to establish procedures for the investigation and determination of breaches of the Code of Conduct. Section 10(4)(a) of that Act provides that the procedures referred to in subs(3) "are to afford procedural fairness in the determination of whether an employee has breached the Code of Conduct." CD5 contains clauses which deal with this issue of procedural fairness. In Pt4 of CD5, the following clauses appear:
"4.4 Prior to the commencement of the investigation or in circumstances outlined in Clause 4.7, the Head of Agency must inform, in writing, the employee suspected of committing a breach of the Code:
(a) of the substance3 of the alleged breach of the Code;
(b) of the intention to investigate the alleged breach;
(d) that the employee may seek his or her own advice and can be assisted by a person of the employee's choice throughout the process; and
(e) of the possible implications for the employee if the matter proceeds to a determination by the Head of Agency that the employee has breached the Code.
3 'Substance' means the essential elements that have given rise to the allegation of the breach of Code and the specific parts of the Code allegedly breached.
4.5 During the course of the investigation, the employee suspected of committing a breach of the Code is to be given the opportunity to be interviewed and, if he or she wishes, to provide documentary evidence to the Investigator.
...
4.7 If, during the course of an investigation, the Head of Agency has reasonable grounds to believe that further breaches of the Code may have occurred, the Head of Agency must inform the employee of those alleged further breaches in accordance with Clause 4.4. Investigation of the additional allegations may then proceed, either as part of the current investigation or as a new investigation.
...
4.10 The Head of Agency shall provide the employee with a copy of the Investigator's report(s) and provide the employee with an opportunity to respond to the report(s). The employee may choose to provide this response in writing or otherwise and may provide any other relevant documentary evidence. This response must be provided to the Head of Agency within a period determined by the Head of Agency provided that this period is not less than 14 days.
4.11 If the response provided by the employee in accordance with Clause 4.10 contains information/evidence not previously known, and/ or information/evidence which is viewed by the Head of Agency as being of relevance to his/her determination pursuant to Clause 5, the Head of Agency may request the Investigator to undertake further investigations in relation to those matters, and to provide a further report concerning them within a reasonable time."
23 In addition, Pt5 of CD5 deals with the final determination by the Head of Agency, and also addresses procedural fairness. Clause 5.2 is in the following terms:
"5.2 When required to make a determination as to whether or not an employee has breached the Code, the Head of Agency must:
(e) ensure at all times during this process the employee receives procedural fairness and natural justice; and
(f) act according to equity, good conscience, and the merits of the case without regard to technicalities or legal forms."
24 Lastly, I turn to s7 of the SSA_,_ Commissioner's Direction No 2 ("CD2") and the Department's "Disciplinary Procedure" publication. Section 7(1) of the Act sets out "State Service Principles". Section 7(1)(a) provides that "the State Service is apolitical, performing its functions in an impartial, ethical and professional manner". CD2, is entitled "State Service Principles". CD2 repeats each of the Principles set out in s7 of the SSA_,_ and under each principle, sets out what measures Heads of Agency need to put in place. Principle number 1 in CD2, is a repetition of s7(1)(a) of the Act. Clause 1(d) of CD2, directs the Head of Agency to put in place measures directed at ensuring that:
"Procedures are in place to effectively deal with allegations of misconduct in a fair and timely manner. This includes having mechanisms in place for employees and Officers to raise issues in the workplace confidentially;".
25 The "DHHS Disciplinary Procedure" contains the procedures put in place by the Head of Agency. Clause 2.1 of the Disciplinary Procedure notes that all alleged breaches of discipline relating to the Code of Conduct, serious performance issues or inappropriate and unlawful behaviour need to be addressed and resolved within the context of the relevant legislation, industrial instruments and the principles of procedural fairness. Attachment 1 to the Procedure publication is a "Step by Step Guide to the Disciplinary Process". Paragraph 1 of this Guide is entitled "Establishing Reasonable Grounds for an Investigation".
26 Paragraph 1.1 relates to undertaking initial assessment of the allegations; the first step is said to be to establish there are reasonable grounds to believe that a breach of the Code of Conduct might have occurred. It details what Managers should do upon receipt of information that points to a possible breach of the Code of Conduct, and it specifies that they should ensure that they obtain as much detail as possible about the allegations. The end point of that process is that an assessment of the information is made.
27 Paragraph 1.1 of the Guide goes on to provide that "There are generally five options for action at this stage". As listed, the first three are:
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if the matter is obviously lacking credibility, is trivial or is not a disciplinary matter, no further action is necessary using this process, although other action might be appropriate;
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if the information is such that concerns could be alleviated by a reasonable explanation from the respondent, the Manager will contact the employee in question and ask that an explanation be provided; and
•
in the case of an extremely serious matter which may involve a possible danger to other employees, clients or the public, it should be investigated as soon as possible.
28 Senior counsel for the applicant highlighted the second option, and pointed out that this option was not pursued before the CD5 investigation was implemented. Much reliance is placed on this aspect of the scheme.
29 As I have noted, the applicant submits that in failing to give him an opportunity to be heard before instigating the CD5 investigation, the Secretary was in breach of express provisions of the statutory scheme in relation to the investigations of possible breaches of the Code of Conduct. Alternatively, it is submitted that the rules of procedural fairness are to be implied in the process as a matter of law, due to the nature of the decision and its impact.
30 As to this issue, the Commissioner said that he "did not consider there to be a requirement for procedural fairness to be afforded at the fact-finding stage on this occasion." In explanation, the Commissioner said that:
•
there was no requirement for an employee to be heard as to the decision to commence the CD5 process;
•
whilst there was a prescriptive list of requirements to be satisfied by the Head of Agency when instigating a CD5 process, none of them came into effect until after the decision had been made to commence the investigation;
•
there was no expectation through the procedures established pursuant to s10(3), that the employee would be afforded any right to be heard prior to the action commencing;
•
had the Head of Agency held the requisite belief concerning a breach of the Code, at the time of being informed of the original complaints, he would have been obligated to move to a CD5 process, and in so doing, would only be required to inform the employee in accordance with cl 4.7 of CD5;
•
given that there was no requirement to afford an employee the opportunity to be heard in relation to the instigation of a CD5 process, it followed that there would be no such requirement during a fact-finding investigation of the nature described in this case; and
•
it was necessary for procedural fairness to be afforded where the outcome "may destroy, defeat or prejudice a person's rights or legitimate expectations", but said that he did not consider these factors were involved in this case, "as no decision has as yet been taken that can be claimed to have affected the applicant in the manner described".
31 As to the last point, the Commissioner explained that:
"**[68]...**The decision taken did no more than identify that were issues to be resolved that may, if found, constitute a breach of the Code. It will be the purpose of the CD5 action to investigate and determine the allegations and in that process the applicant will be afforded the necessary rights and protections required of procedural fairness through both the investigation and determination phases of that process. The report of the investigator dated October 2010, in its own right, should have no material bearing on the applicant.
[69] Whilst acknowledging that being the subject of a CD5 process is an important matter and does have some impact on those involved it does not represent an adverse finding. There has been no finding to date as this can only occur after the conduct of a CD5 process. As a consequence, there is as yet (and may not be) any adverse finding, penalty, sanction that has been applied that could be claimed to have impacted on the reputation of the applicant or affected him in some other significant manner that could be directly attributed to the fact-finding investigation. Consequently, the decision to instigate the CD5 process in itself would not, in my view, constitute reputational damage or be of a nature that 'may destroy, defeat or prejudice a persons' [sic] rights or legitimate expectations'."
32 The Commissioner went on to deal with the claim "that the applicant had been the subject of a 'constructive suspension' for the term of the fact-finding investigation". He said "I did not find this confirmed as from the information before me had the applicant held concerns in this regard at the time in question, I would have expected him to exercise his right to review that matter through the relevant provisions of the Act or otherwise". He went on to reiterate that the CD5 process was "a standalone process and one designed to ensure the applicant will be afforded procedural fairness", and concluded:
"[73] In view of the above I do not believe that on this occasion failure to afford the applicant the opportunity to comment during the fact-finding investigation stage to have flawed the process in such a manner that would indicate the matter is beyond remedy.
[74] It follows from the above that I do not consider on this occasion that the failure to afford the applicant the opportunity to comment on the allegations during the fact-finding investigation would have compromise the move to a CD5 process. I reiterate, under this process, the applicant will be entitled to expect procedural fairness obligations to be fully satisfied."
33 The first submission does not rely on resort to the common law. The applicant submits that the right to be heard in relation to a decision under cl 4.1 of CD5, is expressly afforded by the legislative scheme. As I understand the submission, it is that the Act, and both CD2 and CD5, contain clear pronouncements that procedural fairness, particularly the right to be heard, is to be afforded to employees who are the subject of investigation. It is said that those provisions provide a general environment of procedural fairness. The argument is that the general scheme includes the DHHS Disciplinary Procedure Guide, which guidelines are purportedly mandated by cl 1(d) of CD2 which I have set out above.
34 The explicit requirement for a hearing before a decision to investigate is made, is said to be par1.1 of the DHHS Guide, which I have also set out above. For the sake of convenience, I will repeat it. The Guide provides that there are generally five options for action, once as much detail as possible has been gathered about the allegations. An option is that "if the information is such that concerns could be alleviated by reasonable explanation from the respondent, the Manager will contact the employee in question and ask that an explanation be provided". The applicant submits that the general provisions which are directed to procedural fairness, put together with this part of the Guide, create an obligation which was breached in this instance.
35 As the applicant points out, provisions such as those under consideration may give rise to statutory rights available to State Service employees: Paras v Department of Infrastructure [2006] FCA 622 at [25]; Quinn v Overland [2010] FCA 799 at [59]. However, the submission must be rejected as a matter of construction. First, as to the general provisions I note that whilst s10(3) requires the Commissioner to establish procedures for the "investigation and determination of whether an employee has breached the Code of Conduct", by s10(4)(a), those procedures are to afford procedural fairness only "in the determination of whether an employee has breached the Code ...". Second, the DHHS Disciplinary Procedure is a self-styled "guide". From its terms, it is clear that what it contains are guidelines only, although it might be expected that ordinarily they would be followed. However, the framework of the scheme, which includes cl 1(d) of CD2, and par1.1 of the Guide, does not, as a general proposition, combine to produce an immutable obligation.
36 Moreover, the specific part of par1.1 relied on is dependent on an assessment being made of the information. The suggested obligation on the manager to contact the employee in question and seek an explanation, arises in a limited circumstance; that is, only if the information is of such a nature that concerns could be alleviated by a reasonable explanation. An attempt was made to suggest that as a broad proposition, the information in this case could have been alleviated by a reasonable explanation, but I do not think that can be fairly said. In any event, the operation of the part of par1.1 of the Guide depends upon an assessment by the manager. Having regard to all of the provisions of the scheme, I cannot conclude that the failure to seek an explanation for the "information" before making a decision to investigate is in breach of the terms of the statutory scheme.
37 The applicant says that the initiation of the investigation was a decision which affected his rights, interests and legitimate expectations in a direct and immediate way, and accordingly the rules of procedural fairness applied to the decision-making process: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 per Mason J at 584. In Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, Mason CJ, Deane and McHugh JJ said at 598 that "it can be taken as settled, that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment": see more recently Plaintiff M61 v Commonwealth of Australia [2010] HCA 41; (2010) 85 ALJR 133 at [74]. Of course, the concept of interests includes reputation: Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564.
38 In deciding whether the rules of procedural fairness applied to the decision, the question arises of whether that decision can properly be regarded as a discrete and independent one, or as one which forms part of an entire process. If so, the question then arises as to whether the framework of the scheme, viewed in its entirety, is directed to achieving procedural fairness in an overall sense. In Ainsworth v Criminal Justice Commission (above) the facts were that the Commission conducted an investigation, and reported its findings to a Parliamentary criminal justice committee. The question was whether it was required to give to persons whose reputations may be adversely affected by findings in the report, an opportunity to be heard as to why such findings should not be made. At 578, Mason CJ, Dawson and Toohey JJ said:
"It is not in doubt that, where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if 'the decision-making process, viewed in its entirety, entails procedural fairness': South Australia v O'Shea [1987] HCA 39; (1987), 163 CLR. 378, at p 389".
39 Their Honours said that there was difficulty in viewing the Commission and the committee as engaged in the one decision-making process because the report was the final step in the discharge by the Commission of its functions and responsibilities. Any damage to reputation by the publication of the report could not be redressed by any activities by the committee.
40 In Phan v Kelly [2007] FCA 269; (2007) 158 FCR 75 at [39], Tamberlin J said, before referring to Ainsworth:
"In examining a staged statutory procedure concerning the rights or interests of a practitioner, in addition to considering the availability of procedural fairness at each stage it is necessary to take into account the statutory scheme as a whole in so far as it establishes a framework directed to achieving procedural fairness."
See generally [40] - [44] of his Honour's judgment. It may be however, that the impact of the particular decision is such that the rules would apply to that decision: Nicholson-Brown v Jennings (2007) 162 FCR at [58] - [59].
41 The features of the scheme thus need to be examined. First, as I have already observed, in truth the Secretary does not make a decision in the ordinary sense. He or she makes an assessment of the allegations on the available material, and does or does not form a belief as to whether a breach of the Code may have occurred. The formation of the belief mandates the investigation. In relation to a very similar provision, it has been said that the formation of the belief has no effect on the person's rights and interests: Re Medical Board; ex parte P [2001] WASC 103; (2001) 24 WAR 127 at [37] - [39].
42 Clause 4 of CD5 specifically gives the employee the opportunity to be interviewed by the investigator, and to provide documentary evidence. The employee is to be given a copy of the investigator's report and has an opportunity to respond in writing or otherwise. They may provide further relevant documentary evidence. It is then that the Head of Agency proceeds to a determination, during which process the employee is to receive "procedural fairness and natural justice": cl 5.2(e). Clause 5.2 enables the Head of Agency to regulate his or her procedure. It was not contended before me that this could not be a formal hearing with evidence being given, and the consequent right to cross-examine. As to the cl 4.1 exercise, it is clear that the function of the Secretary at this point is limited and not of itself intended to be investigative. The ability to deal with disputed material would be greatly confined.
43 In his reasons on the application for review, the Commissioner detailed the arguments which had been put, which were along the same lines as advanced in this Court. Having ruled that the terms of the scheme themselves did not impose a requirement for procedural fairness at the cl 4.1 stage, the Commissioner went on to deal with the present issue. As can be seen from the analysis and quotations set out above at [29] - [31], he took the view that whilst being the subject of an investigation may have some impact, the decision to investigate, by itself, did not have any relevant impact; such impact not arising until an adverse determination had been made at the later stage.
44 It was only the cl 4.1 decision itself which was the subject of the application to the Commissioner[1]. As to effect of that decision, apart from the personal impact of being the subject of such an investigation, the applicant relied on the "reputational consequences inherent in an investigation of any complaint". It was said that the matters inevitably became the subject of public notice and of media statements. Although not the subject of any evidence, I can accept a degree of stress and anxiety about the investigation, and some impact in responding to the allegations as provided for in the procedures. As to reputation, the situation would clearly have become known to Hospital staff. The material before me suggests that the informal Sparks inquiry and the applicant's forced leave had come to the attention of a reporter with the local newspaper. Beyond a broad inference that the subsequent CD5 investigation became public knowledge, I have no evidence of what was actually published. Certainly, I am not able to conclude that any details of the allegations in the investigator's reference were in the public domain.
45 The applicant also relied on the fact that he was the subject of the direction to perform alternative duties, and the effective ban on entering the Hospital or his office. These were actions taken at the same time as the applicant was advised of the formal CD5 investigation. Senior counsel for the applicant submitted that the fact of those directions and their consequences can be taken into account in assessing the impact of the CD5 investigation decision, and hence the requirement for procedural fairness in respect of that decision[2]. As I understand it, the submission is that the CD5 investigation decision enabled the other action to be taken and that the whole of the action taken by the Secretary on 20 October 2010 should be regarded as a "compound decision" with the directions as to alternative duties and access restrictions not to be regarded as "stand alone" directions.
46 The applicant says that he was penalised by way of "a constructive suspension from office", pointing out that reassignment of duties is one of the sanctions that the Minister may impose on an employee for a breach of the Code under s10(1)(e) of the SSA. It is also said that the applicant was exposed to the humiliation of the access restriction requirements, effectively being treated as a trespasser except for limited purposes or in limited circumstances. Lastly, the applicant says that there was a legitimate expectation, arising from the statutory scheme, that he would be given a hearing in relation to the instigation of any CD5 investigation. There is nothing to suggest an actual expectation; the issue is that of a prescriptive one. Put in this way, the use of the term "legitimate expectation" is, at the least, unnecessary and, because of the apparent circularity of reasoning involved, unhelpful.
47 It is better put on the basis that because of the circumstances, simple fairness requires the hearing to be given: Haoucher v Minister for Immigration & Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648 per Dawson J at 659 - 660. I am not able to find that the suggested expectation would arise in this case. This is for the reasons I have previously given about the lack of any entitlements created by the scheme. In any event, there in nothing made out in terms of practical unfairness, as now seems to be required: Minister for Immigration & Multicultural Affairs v Lam (2003) 214 CLR 1.
48 In all of that, I take the view that it is necessary to look at the nature of the cl 4.1 decision when put in the context of the overall scheme. Whilst there may be some aspects of the decision itself which suggest that a right of hearing be given, they are not such as to compel consideration of requirements for the decision in isolation from the broader decision-making process. As is apparent, I have accepted that a degree of impact arises from the mere fact of the investigation itself, and I take into account, to the extent established by the evidence, an impact on reputation both in relation to the applicant's immediate personal sphere, and in the wider community. However, the investigation is the first formal step in a much lengthier procedure. It does not of itself lead to any finality, and culminates only in a report, as to the making of which the applicant is to be heard. That leads to a final determination by someone other than the investigator, at which stage the applicant has a further right to be heard. All of this is conducted in private. Wider publicity can only arise as a result of the actions of someone involved.
49 That being my view about the decision itself, the question is then, as noted, whether the provisions for procedural fairness in the later stages are sufficient to "exclude any additional requirements" at the particular stage under consideration; that is, whether the scheme as a whole achieves procedural fairness: Phan v Kelly (above) at [44].
50 In Cornall v AB [1995] VICSC 7; [1995] 1 VR 372 consideration was given to investigatory and disciplinary powers relating to legal practitioners. The scheme enabled the Secretary of the Law Institute to investigate alleged misconduct or breaches of standards on the part of solicitors. After completing an investigation, the Secretary could refer a matter to the Registrar of the Solicitors' Board or to the Board itself, if of the opinion that there appeared to have been misconduct or a standards breach. Both the Registrar and the Board were empowered to conduct hearings which were essentially private in the case of the Registrar, but public in the case of the Board unless ordered otherwise. Both the Registrar and the Board could make findings and impose penalty.
51 The Appeal Division of the Victorian Supreme Court (Ormiston, Coldrey and O'Bryan JJ) held that there was no obligation to afford procedural fairness in an investigation at a preliminary or administrative stage of a procedure if, looking at the procedure in its entirety, the person to be affected had a fair and complete opportunity to put a case. At 400 - 401, the court noted the requirement that the decision-making process should be viewed in its entirety, and said that when the particular processes were so viewed, this "must involve a recognition that the role of ... the Secretary of the Law Institute is very different from that of the person or body required to reach a decision so that, if procedural fairness is inherent in the ultimate decision-making process, then the rules of natural justice will ordinarily not be broken by some failure to afford a further opportunity to be heard at the stage of recommending the preferment of a charge." And later:
"The secretary was not a fact-finding tribunal and the respondent had and still has full opportunity to put his case to a quasi-judicial tribunal which is unaffected and cannot be affected by the formation of opinion by the secretary."
52 One of the cases considered by the court, and distinguished, was one primarily relied on by the applicant: Rees v Crane [1994] 2 AC 174. This case was distinguished in Cornall (at 395), apparently on the basis that it "led to immediate consequences of such importance to the individual investigated that the investigating body was obliged to afford procedural fairness". Rees v Crane concerned the procedures for the removal of a judge of Trinidad and Tobago. There was a three-stage process requiring a decision by a Commission to recommend to the President that a judge ought be investigated. This was followed by a tribunal of inquiry which then made a report to the President as to whether the question of removal should be referred to the Judicial Committee of the Privy Council. The respondent judge sought judicial review of the Commission's decision to recommend an investigation, and his suspension on full pay pending the investigation. The matter found its way to the Privy Council where it was held that the respondent had a right to be heard at the stage of the Commission's considerations.
53 At 194 Lord Slynn of Hadley noted that the appointment of a tribunal and the suspension of the respondent "on the basis of bodily infirmity and misbehaviour were bound to raise suspicion or conviction that the Commission and even the President was satisfied that the charges were made out, in a way which subsequent revocation and suspension would not necessarily dissipate". His Lordship went on to say (also at 194) that the consideration of the factors and the conclusion on them were not based specifically on the nature of the judicial function or the fact that the respondent was a judge. "A similar approach would apply mutatis mutandis to other persons who could rely on the same consideration, but a judge, though by no means unique, is in a particularly vulnerable position both for the present and the future if suspicion of the kind referred to is raised without foundation. Fairness, if it can be achieved without interference with the due administration of the courts, requires that the person complained of should know at an early stage what is alleged so that, if he has an answer, he can give it."
54 The Court of Appeal in Byrne v Marles [2008] VSCA 78; (2008) 19 VR 612 expressly followed Cornall, although the outcome was different. By the time of Byrne v Marles, the disciplinary scheme had changed. Complaints were made to the Legal Services Commissioner who was required to give written notice of that complaint to the practitioner about whom the complaint was made, and then to investigate that complaint. The Commissioner was authorised to refer a complaint to an investigatory body for investigation. At [65] - [66] Nettle JA (Dodds-Streeton JA and Coughlan AJA agreeing) put the view that a decision of the Commissioner to investigate a complaint did not sufficiently determine rights, or was not at least sufficiently connected with the final decision to satisfy the requirements for certiorari.
55 In further considering the argument in relation to the broader test as it would relate to natural justice, Nettle JA noted that although some of the reasoning in Cornall by which earlier cases had been distinguished, including Rees v Crane, may be open to question, the decision in Cornall was correct. At [82] his Honour said (footnotes omitted):
"82 On the other hand, there is no reason to doubt the conclusion in Cornall v AB that the requirements of natural justice may be satisfied if 'the decision-making process, viewed in its entirety, entails procedural fairness'. Plainly, there was a distinction between the facts in Cornall v AB and those in Ainsworth. As Aronson puts it, 'the very purpose of the investigation [in Cornall v AB] was to determine whether there should be a further hearing or some other action and a decision adverse to the respondent would necessarily be followed by a hearing'. Further, as the court in Cornall v AB were careful to observe, the only decision of the secretary there in question was a decision to refer the matter for quasi-judicial determination. Furthermore, as was said, it was easy to see that in considering the whole process whereby matters were referred to the Registrar of The Solicitors' Board, there was intended to be an ample opportunity for the solicitor to present his case at the hearings prescribed by the legislature. Other things being equal, therefore, I would respectfully follow Cornall v AB in the determination of this case."
56 The court in Byrne v Marles went on to hold that a person, the subject of the complaint, had a right to be heard by the Commissioner before a determination to treat the complaint as a disciplinary complaint and to refer it to the Institute for investigation. That was because of the obligation to give notice of the complaint to the solicitor and, the provision of the discretion to dismiss a complaint if it was vexatious, misconceived, frivolous or lacking in substance; or, in the case of a disciplinary complaint, if the view was formed that it required no further investigation. Before leaving this line of authority, I note that Rees v Crane appears to have been regarded as an exception "in relation to judicial officers" to a general rule that procedural fairness does not apply to decisions to investigate, as opposed to any findings made by an investigator: Trindall v Minister for Aboriginal Affairs [2004] NSWLEC 121 at per McClellan CJ at [52].
57 Similar considerations to those in Byrne v Marles arose in Murray v Legal Services Commissioner [1999] NSWCA 70; (1999) 46 NSWLR 224, another case relied on by the applicant. They led the New South Wales Court of Appeal to hold that a legal practitioner, the subject of a complaint, had a right to be heard as to the decision of the Commissioner to refer a complaint to the Disciplinary Tribunal for determination. The scheme under consideration provided for an investigation into a complaint by the Commissioner, with the Commissioner having the power to institute proceedings in the tribunal if satisfied that there was a reasonable likelihood of a finding of unsatisfactory professional conduct or professional misconduct. Additionally, the Commissioner could reprimand or dismiss the complaint if satisfied that there was a reasonable likelihood of a finding of unsatisfactory professional conduct but not professional misconduct. Very clearly, the Commissioner had powers far beyond the mere instigation of an investigation into allegations.
58 I repeat my earlier observation that the applicant confined his arguments about a right to be heard, to the decision to investigate. I have set out the way in which the consequential decisions are said to contribute to the impact of that decision. It is no doubt correct that the consequential decisions of having the applicant carry out alternative duties, and of access restrictions, may have enhanced perceptions of the seriousness of the allegations. There may be some merit in the proposition that the applicant ought to have been consulted about the consequential decisions; perhaps in particular, the ostensibly severe access restrictions. For example, in Foster v Secretary, Department of Education and Early Childhood Development [2008] VSC 405, it was held that a teacher who was transferred to alternative non-teaching duties pending an inquiry into misconduct, had a right to be heard in relation to that decision[3].
59 There have been a number of cases in which a right to be heard in relation to suspensions, pending inquiries where the suspension has been "without pay": for example, Dixon v Commonwealth [1981] FCA 77; (1981) 55 FLR 34. Otherwise, suspensions on full pay seem to be regarded as an incident of a decision to investigate, and in the main, not attracting procedural fairness: Lewis v Heffer [1978] 1 WLR 1061 at 1073 and Dixon (above) at 181[4]. Each case must, of course, be judged on its own facts. To return to my point, there is a distinction between a decision to investigate and action taken in consequence of that decision, to the extent that there may not be a right to be a right to be heard in relation to the allegations, but consequential action having significant impact may compel the right as to that action. This was made plain in, for instance, Birss v Secretary for Justice [1984] NZCA 24; [1984] 1 NZLR 513 at 517.
60 It will have become apparent that I think the Commissioner was wrong in his approach, but the issue remains as to the proper outcome. I take the view that Cornall should be applied in the determination of this point as to the cl 4.1 exercise. Insofar as it is a decision in the true sense, the formation of the belief leads only to an investigation, at the end of which no formal findings are required to be made. Whilst the investigation may cause some detriment, the applicant has three opportunities in the investigatory and determination processes to respond to the allegations and to otherwise participate. There is a very weighty trend towards holding that the rules of procedural fairness do not apply to decisions which merely commence investigatory or similar processes, where those processes do not of themselves involve final determinations: see for instance Norwest Holst Ltd v Secretary of State for Trade [1978] Ch 201, Edelsten v Health Insurance Commission (1990) 27 FCR 56, Brierley Investments Ltd v Australian Securities Commission (1997) 78 FCR 255, Buonopane v Secretary, Department of Employment Education & Youth Affairs (1998) FCR 173, Re Reynolds; ex parte Pearce [2001] WASC 276, Ryan v Australian Securities & Investments Commission (2007) 158 FCR 310, Trindall v Minister for Aboriginal Affairs (above) and Phan v Kelly (above).
61 The same approach has been taken even where the inquirer makes findings of fact and determinations: AYHT v Medical Board of South Australia [2000] SASC 136; (2000) 77 SASR 148 and Eckerlsey v Medical Board of Queensland [1998] 2 Qd R 453. There is a "danger of infinite regression"[5] if action which commences an investigative and hearing process is held to give rise to hearing requirements. If the cl 4.1 process is subject to procedural fairness, the danger is realised. No error of law has been shown.
62 The grounds of the application allege errors of law, citing s17(2)(f) of the JRA. The first error alleged is that the Commissioner found that the Secretary "was entitled to form an opinion that reasonable grounds existed to believe that the applicant may have breached the State Service Code of Conduct". The second error of law is, in reality, the converse of the first, in that it alleges that the Commissioner failed to find the Secretary "had erred in concluding, if he did so conclude, that he had reasonable grounds to believe a breach of the Code of Conduct may have occurred". On that basis, in practical terms the issue is whether the Commissioner erred in concluding the Secretary had reasonable grounds to believe that a breach may have occurred.
63 Although the error of law ground was relied on, it was not contended for the applicant that there was no evidence at all to support the finding so as to constitute such an error: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 per Mason J at 358; Lark v Nolan [2006] TASSC 12 at [37]. Nor does the applicant rely on the JRA "no evidence" ground of s17(2)(h). The applicant contends that the existence of reasonable grounds under cl 4.1 is one of jurisdictional fact; that is to say, the existence of a belief on reasonable grounds is a factual precondition to the valid exercise of the power under CD5. It follows that if there were no reasonable grounds for the belief, the fact upon which the exercise of the jurisdiction depended did not exist. How this sits with the ground relied on was not fully explored. The Attorney argues that the decision of the Commissioner involved mere findings of fact and is not amenable to relief. Why all of this would be so as a matter of principle, in the context of the assertion as to "jurisdictional fact", was not made clear.
64 As a result of these matters, I need to say something about the proceedings both before the Commissioner, and in this Court. The application for judicial review seems to have proceeded on the assumption that the Commissioner, in acting under s50(1) of the SSA, was conducting a review in the sense of "looking it over" with a view to correction, rather than in the sense of carrying out a de novo process. That would seem to be correct. The powers available to the Commissioner under s51(6)[6] on the determination of an application for review, do not suggest a de novo process. Accordingly, the Commissioner was not required to re-determine the issue under cl 4.1 of the CD5 for himself. It appears from the Commissioner's reasons that this is how he approached the matter. (Were it to be otherwise, and the Commissioner determined the point afresh, the applicant may have faced some difficulties in fitting the common law concept of error of jurisdictional fact into the grounds of the JRA.[7])
65 There seemed to be no dispute that the Commissioner could review the merits of the Secretary's decision; there was no argument that the Commissioner was restricted to looking only at the question of whether the Secretary had in fact formed the requisite belief. On those bases, if the Secretary was wrong about the existence of reasonable grounds for the belief, and assuming that constitutes a "jurisdictional fact", the Commissioner would have erred in law in failing to pronounce that error, and in failing to correct it.
66 Judicial review for error of jurisdictional fact is a common law concept.[8] In general terms, such a fact is "a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question": Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120 at [43]. The determination of whether a particular issue is one of jurisdictional fact is often a complex and difficult question: see the discussions by Weinberg J in Cabal v Attorney-General (Cth) [2001] FCA 583; (2001) 113 FCR 154 at [49] - [70] and Chesterman J in Chancellor Park Retirement Village Pty Ltd v Retirement Villages Tribunal [2003] QSC 276 at [16] - [31].
67 Whilst the grounds of review under the JRA are not limited to those encompassed by the scope of jurisdictional error[9], that is not to say that under the JRA the question of the characterisation of the decision of the Secretary does not need to be considered. What mandates an investigation is the formation of a belief for which there are reasonable grounds, in the sense that once the Head of Agency has formed the belief, there is no discretion; an investigator must be appointed. For an investigation to be initiated, the Head of Agency needs to have reasonable grounds to believe that a breach of the Code may have occurred. The relevant belief must be held in fact, and it must be based on reasonable grounds.
68 I think it best to approach the issue in the following way. It seems to me that the requirement for reasonable grounds for the belief, and which belief mandates an investigation, makes the exercise of the power amenable to review. What is required is the existence of facts sufficient to induce the state of mind in a reasonable person, and it is that requirement which "opens many administrative decisions to judicial review": George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 112 citing the well-known dissenting but "now orthodox" opinion of Lord Atkin in Liversidge v Anderson [1941] UKHL 1; [1942] AC 206. Where a statute contains reference to the formation of a belief, the belief must be such that it could be formed by a reasonable person who correctly understands the meaning of the law under which he or she is acting: R v Connell; ex parte The Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407 per Latham CJ at 430.
69 In the main, in relation to provisions which mandate or authorise the exercise of power where there exists a particular belief or state of satisfaction, judicial review is available on the question of whether the decision-maker could have reasonably formed that belief or reached that state: see Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [73], and Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gummow J at [133] - [137]. For those reasons I cannot agree that the issue is one of fact in the sense that the formation of the belief under cl 4.1 is a purely subjective exercise immune from review; as was the case, for example, in Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10; (1997) 187 CLR 297 at 303 - 304, 308. The formation of the belief on reasonable grounds is a necessary pre-condition to the validity of the initiation of the investigation. Without that belief, the Head has no power to act. To the extent that a description is necessary, in my view the formation of the necessary belief can be described as a "jurisdictional fact", as was done by Toohey J in Brunetto v Collector of Customs [1984] FCA 383; (1984) 4 FCR 92 at 96. I take the view that the existence of reasonable grounds for a belief in the Head of Agency, is a matter essential to the exercise of the power under cl 4.1 of CD5. Accordingly, if it is shown that no belief was formed, or that the belief was not based on reasonable grounds, then the Secretary would have lacked the power to initiate the investigation.
70 The question is whether there existed reasonable grounds for the belief. Essentially, the applicant has adopted an "all or nothing" approach. With one exception[10], no attempt was made to address the discrete matters, the subject of the investigation. The submission is that there were no reasonable grounds for the belief that any breach of the Code may have occurred. It is asserted that the Sparks Report "is a jumbled mishmash of untested allegations, hearsay, contradictory conclusions and pages of irrelevant transcript, much relating to events and personality clashes occurring well before Mr Pervan took up his position ...". It is common ground that the Secretary only had regard to the report in initiating the CD5 investigation.
71 The report is a lengthy document totalling nearly 370 pages. It is made up of a number of sections. There is an Executive Summary, followed by a "Recommendations" section which is in fact duplicated as the fourth section. The two are, in short, in identical terms. The third section is a "Detailed Report", containing a subsection headed "Background", which is a description of the events leading up to the investigation. It details a meeting between three senior hospital staff, with the Acting Director of Human Resources Strategy and Policy, at which complaints were made and concerns raised about the applicant. Following a subsection which details the relevant policies and procedures, there is a subsection entitled "Evidence Considered", which is made up of 21 pages of analysis of the evidence available from ten named individuals. There follows a six-page "Analysis of Issues Raised and Findings". There then follows the duplicated "Recommendations" section, which is followed by a section entitled "Attachments". That section comprises the bulk of the report. It is made up of briefing papers and material provided during the course of the investigation, transcripts of interviews, and file notes of discussions with the named individuals, together with documents produced by them.
72 The Executive Summary contains a subsection which is entitled "Summary of Investigator's View on the Relevant Facts". Two parts of that subsection attracted particular attention in the argument that no reasonable grounds for the belief existed. Those parts read as follows:
"Findings
The evidence currently available suggests that:
•
Mr Pervan may have engaged in misconduct contrary to the Code of Conduct by bullying and harassing at least two senior staff, Dr [C] and Ms [V];
•
Mr Pervan may have engaged in conduct inappropriate for a CEO, by making derogatory and offensive comments in writing and verbally about senior staff.
I submit there is sufficient evidence on which the Secretary could be satisfied that it would be appropriate to commence an investigation and determination under the process set out in Commissioner's Direction No 5 of the State Service Act 2000.
However, I submit a CD5 should only be initiated on the basis that further inquiries will be necessary.
Draft Allegations
On the material currently available it should be possible to draft a broad allegation to the effect that Mr Pervan is alleged to have engaged in a long-running, wide-ranging campaign of bullying and harassment, citing Ms [V] and Dr [C] as examples. However, it might be difficult to particularise that allegation until further inquiries are made.
Until such enquiries are complete, it might not be possible to provide Mr Pervan with the 'substance' that is required pursuant to the terms of Commissioner's Direction Number 5.
If the Secretary is satisfied that a CD5 should be initiated, I suggest that Mr Pervan be provided with a 'holding allegation' and that he be informed that the 'substance' will be particularised once further inquiries are complete.
...
Conclusion
The Secretary must be able to satisfy himself according to the threshold set out in the CD5 procedure. That is, he is required to have reasonable grounds to believe a breach may have occurred.
A detailed analysis of what has been raised to date and this fact-finding investigation suggests there is some reliable evidence to conclude that there are 'reasonable grounds to believe a breach of the Code may have occurred'.
In those circumstances, initiating a CD5 investigation would be appropriate.
Under that framework, it would then be open to the Department to embark on the further inquiries that I have outlined and referred to above."
73 Following the Executive Summary, there is a section entitled "Recommendations". It is section 2. There is a section 4, also entitled "Recommendations". As I have noted, the two sections are identical. They read:
•
There is some reliable evidence to warrant a disciplinary investigation and determination under Commissioner's Direction No 5 against Mr Pervan for bullying and harassment;
•
If it is felt there is some substance to the complaints made by Ms [V] and Dr [C], further inquiries should be undertaken in order to determine if there are reasonable grounds to believe a breach of the Code may have occurred;
•
...".
74 The applicant submitted that the "weakness and unfairness" of the report was highlighted by a number of things. A summary of the significant matters identified is as follows:
•
one of the three original "complainants" had not made any material complaints of his own, but was relating what Dr B, one of the original complainants, and Ms D, had said to him;
•
Dr B had provided no documentary support for the matters raised but "alluded to having extensive emails", the suggestion by Ms Sparks being that further enquiries would be made when Dr B was feeling well enough to assist further;
•
Ms D refused to proceed with, or substantiate her complaint of sexual harassment; "in those circumstances, it would be difficult and unwise to mount a case on that allegation ...";
•
none of the complaints from Ms V had been verified and only merited further investigation;
•
the issue of whether Ms V's allegations arose from her being the victim of a campaign of bullying and harassment, as opposed to "a self imposed, dangerously demanding work load", had "not yet been adequately or definitively explored or resolved" but her "complaints merit further investigation";
•
whilst Dr C's complaints were capable of being described as a campaign of bullying, "consideration must be given to whether or not those matters really do raise a case for Mr Pervan to answer or whether Dr [C] might be said to be carrying over his concerns about his [Mr Pervan's] predecessor ... These issues warrant further explanation". Much of the evidence provided to Ms Sparks was hearsay or otherwise weakened by the passage of time;
•
a CD5 investigation should only be initiated on the basis that further enquiries were necessary.
75 Making due allowance for argumentative hyperbole, it must be acknowledged that the report does not present a cohesive easily understood collation and analysis of the material. All in all it is a rather unsatisfactory document. There is some basis for the criticisms which have been made of the report, and in particular, I would accept that there is some merit in the suggestion of "contradictory conclusions". Ms Sparks said that there was sufficient evidence to warrant a CD5 investigation, but that it should only be initiated on the basis that further inquiries will be necessary. On one view, that is a contradiction in terms; on another view, it is a self-evident statement of what will follow from the initiation of a CD5 investigation. However, in other parts of the summary, Ms Sparks seems to differentiate between matters which may provide grounds for proceeding, and those about which she appears to have some reservations, with further inquiries being necessary in order to clarify the situation.
76 Having said all of that it must first be noted that the genesis of the Sparks investigation was allegations made by three senior Hospital employees to the Acting Director of Human Resources. Secondly, it must be remembered that the exercise carried out by Ms Sparks was to gather information about those allegations, to identify if possible any further information which the Secretary should consider, and to collate and analyse all of that information. It might be easy to overlook the fact that the Sparks investigation was really an assessment of the nature of the allegations and the supporting material. It was not an investigation in any formal sense, and of course did not purport to make any factual findings. By definition it would include untested allegations and hearsay. The nature of much of what is said to be hearsay, particularly as it relates to Ms D, would appear to be admissible in a court under the laws of evidence.
77 Further, whilst Ms Sparks advised the Secretary of some conclusions of hers as to the appropriateness of a CD5 investigation, the Secretary was under no obligation to take them into account. Indeed, the requirements of cl 4.1 would have compelled the Secretary to make up his own mind on the material presented, a matter which it is to be presumed, was not lost on him. I should also add that in any event, the nature of the summary and the recommendations provided would compel a reasonable reader to analyse the source for themselves.
78 I have read through that part of the report which is described as the "Evidence Considered". In the main, the most relevant parts of this material are the transcripts of interviews and the file notes of discussions. I do not purport to have read through and completely digested all of the emails and letters, but I have familiarised myself with their significance. The point is not the way in which Ms Sparks has presented her summary with analyses, and the correctness or otherwise of her recommendations. Nor is the point the manner in which she has presented the information. The question is whether on the basis of the source information provided, there were reasonable grounds to believe that a breach of the Code of Conduct, or breaches, may have occurred. In the context of a not dissimilar statutory scheme for investigations, in Power v Hammond [2006] VSCA 25 at [106] Chernov JA (Maxwell P and Ormiston JA agreeing) said that it was not necessary for any prima facie case to appear. The exercise upon which the Secretary was relevantly embarked was the formation of a belief on reasonable grounds as to the possibility of a breach of the Code. The Sparks report was a precursor to the formal investigation, not the investigation itself. What that CD5 investigation may reveal is yet to be established. Obviously, I am not to judge the merits of any of these matters.
79 Having carefully considered the matter, I am not persuaded that it was wrong for the Commissioner to hold the view that the Secretary was entitled to form the relevant belief. That is to say, I am not satisfied that it was not open for the Secretary to form the belief, and no error has been demonstrated on the part of the Commissioner in taking that view. In saying this, I would include the discrete issue raised in relation to an allegation of failing to provide Dr C with appropriate adequate financial support for his Department. It seems to me that having regard to the provisions of the Code of Conduct identified, reasonable grounds existed for an investigation. In saying that, I am not to be taken as expressing approval for the way in which the allegations have been generally framed or worded. I am confining myself to the task at hand. I also take the view that Ms Sparks' suggestion of holding allegations does not assist the applicant's argument. That was her view about what could perhaps occur. It is the terms of reference which provide the parameters of the investigation, which detail the incidents which are said to be the substance of the alleged conduct and which provide other particulars. That aspect is not under challenge in these proceedings. I determine that these grounds are without merit.
80 On 30 August 2010, the then Premier signed an instrument entitled "Temporary Exercise of Powers of Head of Agency". Its terms were that:
"I ... in pursuance and exercise of the powers conferred upon me by Section 21A of the Acts Interpretation Act 1931, hereby direct that
Alice Theresa Burchill
Shall perform and exercise the duties, obligations, rights and powers of the office of Secretary, Department of Health and Human Services from 6 September until 19 September 2010 inclusive, and 25 October until 7 November 2010 inclusive."
81 The applicant submits that the appointment is invalid in that the requirements of the Acts Interpretation Act 1931, s21A, were not complied with. It is said that this leads to the invalidity of the appointment of Mrs Alder as to the substituted investigator. The section reads:
"21A Performance of duties, &c, in absence
(1) Where -
(a) by any enactment, instrument, contract or agreement, any duty, obligation, right or power is imposed or conferred on the holder of an office, position or appointment -
(i) arising from the appointment or employment of a person under the State Service Act 2000; or
(i) the holder of that office, position or appointment is unable to perform or exercise the duty, obligation, right or power; or
(ii) that office, position or appointment is vacant -
that duty, obligation, right or power may be performed or exercised by any eligible person so directed in writing by the appointing authority in the same manner and to the same extent in all respects as if that eligible person were the holder of that office, position or appointment."
82 The applicant's argument is that the words "so directed in writing" in the concluding part of subs(1), compel the appointing authority to include in the written direction, an explanation of the reason for the direction, that being the reason which arises under subs(1)(b). In other words, the direction must address not only the fact of the appointment but the basis for it.
83 I reject the submission. There is neither warrant nor reason to read into s21A(1) the obligation to recite the reason for the direction in the instrument itself. The exercise of the power is dependent upon the existence of a reason within the meaning of subs(1)(b). Once the power is enlivened, the appointing authority may direct an eligible person to perform or exercise the duty, obligation, right or power which the holder of the office, position or appointment is unable to perform. The words "so directed" merely operate to require the direction to specify what duties, obligations, rights and powers are to be performed or exercised. In this case it was all the duties, obligations, rights and powers of the office of the Secretary.
84 Additionally, I accept the respondent's argument that s40 of the Acts Interpretation Act governs the situation. In my view the section makes it clear that if a Minister makes or issues an instrument such as the instrument of appointment of Ms Burchill, there is no need to set out the facts or circumstances upon which the power to make or issue the instrument depends. The relevant part of the section is as follows:
"40 Conditions precedent need not be recited
(1) ...
(2) If by any Act the Governor, a Minister, a statutory authority, a rule-making authority or any specified officer is empowered to make or issue any proclamation, order-in-council, order, warrant or other instrument, it is sufficient to cite in the proclamation, order-in-council, order, warrant or instrument the Act authorising its making or issuing, and it is not necessary to recite or set forth any facts or circumstances or the performance of any conditions precedent upon which that power depends or may be exercised."
85 Accordingly, I do not need to determine the alternative submission put by counsel for the respondent as to the applicability of the de facto officer doctrine, although I should say something about it. The doctrine was discussed in G J Coles v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503; in particular, by McHugh JA at 525 - 527. His Honour explained the effect of the doctrine to be that "acts of a de facto public officer done in apparent execution of his office cannot be challenged on the ground that he has no title to the office. It matters not that his appointment to the office was defective or has expired or in some cases even that he is a usurper." McHugh JA went on to say that the rationale of the rule in modern times is the protection which it afford the public, in the sense of avoiding great inconvenience. Kirby P and Hope JA at 520, quoted from R v Bedford Level Corporation [1805] EngR 148; (1805) 6 East 356; 102 ER 1323, in which it was said "... An officer de facto is one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law".
86 Without deciding the point, and for what it's worth, I would be inclined to the view that the de facto officer rule applies in this case, although the evidence is a little sparse. I think the word "reputation" which was stressed by counsel for the respondent, simply means a belief or opinion about someone that is widely held. In this case, the material shows that Ms Burchill was a Deputy Secretary of the Department and had for a two-week period about a month before the particular period, performed the role of Secretary. It would cause great inconvenience if her acts were invalidated by a failure to set out the basis for her appointment under s21A of the Acts Interpretation Act.
The validity of the "second" CD5 investigation
87 The applicant's alternative submission is that the investigation presently being conducted by Mrs Alder is invalid. This is because the investigation implemented by Mr Roberts as Secretary (as to which Ms Sparks was appointed investigator), terminated on the appointment by Ms Burchill, as Acting Secretary, of Mrs Alder. It is said that this appointment gave rise to a new CD5 investigation, the details of which were not advised to the applicant as required by cl 4.4. As I have previously noted, the applicant objected to Ms Sparks being the investigator. As a result, Ms Burchill notified him that she had determined to appoint Mrs Alder "to undertake the Commissioner's Direction No 5 Investigation as an alternative to Jocelyn Sparks".
88 I should not commence a consideration of this submission without noting that the application for review to the Commissioner, and hence much of the debate before me, proceeded on the basis that the CD5 investigation was one instigated by, and being carried out under the auspices of, Mr Roberts as Secretary. Indeed, he is a respondent in these proceedings; Ms Burchill is not. Having said that, I hold that the submission is without any merit. It seems to me that the power to appoint an investigator under cl 4.1 would carry with it the power to remove the person appointed, if circumstances required it. Such a power resides in the office holder as such, not in the particular individual. Ms Burchill was acting in the office when she appointed Mrs Alder. The material I have does not show what, if any, action was in relation to Ms Sparks' position as investigator. At least impliedly, the appointment of Mrs Alder would effect the removal of Ms Sparks. The fact that the appointment of Mrs Alder was as a replacement to Ms Sparks in the current CD5 investigation was expressly told to the applicant. Ms Sparks' removal was at his request.
89 It is true that Ms Burchill, in her letter to Mrs Alder, stated that she had reasonable grounds for the belief referred to in cl 4.1 of CD5. That may well have been the case, and it may have been an exercise carried out by Ms Burchill as a matter of caution, but in all of those circumstances I do not think the situation can be reasonably construed as a termination of the first investigation, and the commencement of a second. In any event, whilst it is strictly the case that the matters under cl 4.4 were not advised to the applicant after the appointment of Mrs Alder, it would have been abundantly plain to the applicant, that the terms of reference of the Alder investigation were precisely the same as the first one. He had effective knowledge of the relevant matters to the extent that cl 4.4 can be taken to have been complied with.
Apprehended bias on the part of the investigator
91 The hearing rule and the bias rule do not necessarily co-exist, but the applicant's submissions proceed on the unstated assumption that the bias rule, as an aspect of procedural fairness, applied to Mrs Alder in her position as investigator. Counsel for the Attorney made no response to this implicit assumption. More particularly, taking the view that the assumption is correct, nor was there any discussion of the way in which the rule should be applied, in the sense of the applicable standard. Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 establishes that investigative conduct and findings of fact which affect rights, interests and legitimate expectations in the relevant way attracts the rules of procedural fairness. But it is clear that the test for apprehended bias must take into account the nature of the role of the person whose decision or conduct is the subject of the scrutiny.
92 In Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [40] the majority, when referring to procedural fairness and the aspect of apprehended bias, said:
"The application of the principle in connection with decision makers outside the judicial system must sometimes recognise and accommodate differences between court proceedings and other kinds of decision making."
93 Further, in Minister for Immigration & Multicultural Affairs v Jia Legeng (above), Hayne J noted that: "The analogy with curial processes becomes even less apposite as the nature of the decision-making process, and the identity of the decision-maker, diverges further from the judicial paradigm." His Honour went on to note that it was trite that the content of the rules of procedural fairness must be appropriate and adopted to the circumstances of the particular case. See also Minister for Immigration & Multicultural Affairs v Epeabaka [2001] HCA 10; (2001) 206 CLR 128 at [27].
94 In this case, procedural fairness, to the extent of the hearing rule, is expressly afforded by virtue of cl 4.5 of CD5. There are further provisions of CD5 which need to be examined. Clause 4.9 requires the investigator to provide a written report to the Head of Agency. That report must provide evidence relevant to the circumstances relating to each alleged breach of the Code, include as attachments any relevant submissions, statements, records of interview, or other documentary material, and only include those matters relevant to each alleged breach of the Code.
95 CD5 makes no express provision for findings of fact by the investigator, although no doubt the concept of the written report would encompass the making of observations on the strength or otherwise of the evidence referred to. This clause can be taken as imposing a further requirement for the person under investigation to be heard, in that cl 5.2(a) requires the Head of Agency to ensure at all times that the employee receives procedural fairness and natural justice. (See cl 5 at [23] above). Clause 5.1 of CD5 requires the Head of Agency to make a determination as to whether or not an employee has breached the Code, but it is open for the Head to determine that no breach has occurred, simply by a consideration of the report and the employee's response.
96 However, the report of the investigator merely informs the Head of Agency, who then proceeds to make a determination under cl 5 of CD5. In circumstances where a report is given no more significant status than that, and the investigator makes no decision to which the scheme gives any force or effect, it has been held that the investigator is not obliged to afford procedural fairness in the form of a hearing: Trindall v Minister for Aboriginal Affairs (above); Darkinjung Local Aboriginal Land Council v Minister for Aboriginal Affairs [2006] NSWLEC 291. In Trindall, McClellan CJ at [118] said:
"... [I]t is significant that the report of the investigation is required by s 219 to go only to the Minister. The investigation is not itself a public process and publication of the report is not required by the statute. Upon receiving the report, the Minister may chose to do nothing with it and the matter may come to an end. The report may never be published. In my opinion it would be inappropriate to provide an obligation to afford procedural fairness in respect of an investigation - the report of which need not be published and which may have no further consequence for any person or body."
97 As to the bias rule, in circumstances where an investigator is to make a report to another body which then makes formal findings and determinations, it may be that procedural fairness simply requires that the investigator "act fairly rather than ... be unbiased or free from the apprehension of bias": Sheridan v Local Government Association of Queensland [2006] QSC 395 at [29], citing R v Secretary of State for Trade; ex parte Perestrello [1981] QB 19, and Minister for Immigration & Multicultural Affairs v Jia Legeng (above) at [181].
98 Any consideration of an apprehension of bias on the part of Mrs Alder as the investigator ought, for those reasons, proceed on the basis that there is a less stringent approach in the circumstances of a scheme as exists in this case. Bearing in mind that approach to the application of the test, I turn to the test itself. It is whether a fair minded observer might reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question required to be decided, or of the task which has been entrusted: British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 85 ALJR 348 per French CJ at [37] - [38] (in dissent as to the result but not as to the test); Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11]; Ebner v Official Trustee in Bankruptcy (above).
99 It is of course the conduct of Mrs Alder which is the subject of scrutiny, rather than any other category of disqualification. There are two aspects of that conduct. The first is her statement in the letter to the applicant of 11 February 2001, in which she said that she was undertaking a formal investigation "against" him into alleged breaches of the Code of Conduct. The second is the suggestion that she has enlarged the allegations and added new ones. The second aspect of her conduct forms the subject of a separate ground of review.
100 As to the first aspect of the conduct, the particular focus of the attack is words used by Mrs Alder in her letter to the applicant of 11 February 2011, the relevant terms of which I have set out above at [9]. The crucial words are "I have been appointed ... to undertake a formal investigation against you". As can be seen from above at [8], these were the identical words which Ms Burchill used in her letter to Mrs Alder, which attached the instrument of appointment and provided the details of the investigation. In short, Mrs Alder simply repeated the reference to her appointment to undertake a formal investigation, in the same terms as had been notified to her. There is no doubt that the use of the word was clumsy and ill-advised. However, I am not at all persuaded that in the whole of the circumstances the use of the expression would instil in the fair minded lay observer a reasonable apprehension that Mrs Alder might not, to the extent that her role is that of an investigator, bring an impartial and unprejudiced mind to her task, and might present an unfair slanted view of things.
101 That brings me to the alleged conduct of enlarging the allegations made, and of adding to them. It is convenient if I deal with that issue in the context of the discrete grounds of review which relate to it, in order to obtain a full appreciation of what it is that is alleged, and how it is said to, of itself, invalidate the investigatory process. As will emerge, I accept, to a limited extent, the complaint that particulars of alleged misconduct which fall outside the parameters of the authorised investigation, have been added by Mrs Alder. But applying the test of apprehended bias, I reject the contention that such conduct might induce in the fair-minded observer a reasonable apprehension that Mrs Alder might not bring an impartial and unprejudiced mind to her task. Rather than suggesting prejudgment and impartiality, the established transgression from the authorised parameters of the investigation is far more likely to be ascribed to a misunderstanding of the role, or simple incompetence. This ground is not made out.
[See Addendum - Further reasons for judgment - pars[120] to [127] below.]
The scope of the investigation - invalidity?
102 I need to return to three pieces of correspondence to which I have previously referred. The first is the letter from Mr Roberts (as Secretary) to the applicant of 20 October 2010, which informed the applicant of the CD5 investigation. The second is the letter from Ms Burchill (as Acting Secretary) to Mrs Alder of 27 October 2010, (annexure "A") which set out the terms of reference of the investigation, and which is in identical terms to the one initially sent to Ms Sparks. The third is the letter from Mrs Alder to the applicant dated 11 February 2011 confirming her appointment as the investigator and setting out particulars of his alleged conduct in order to assist him with preparation for any interview. In the first two letters, the detail of the allegations is identical. For reasons which I have given, the "Alder investigation " is for all intents and purposes the same as was initiated by Mr Roberts.
103 Clause 4.4 of CD5 provides that prior to the commencement of an investigation, the Head of Agency must inform the employee concerned of a number of things in writing. Those things include "the substance of the alleged breach of the Code". As has been seen, "substance" is explained as meaning "the essential elements that have given rise to the allegation of the breach of the Code and the specific parts of the Code allegedly breached". The Secretary's letter was written in compliance with cl 4.4. It alleges that the applicant may have acted contrary to s9(2), 9(3), and 9(14) of the Code of Conduct. The letter then sets out those provisions which are as follows:
"(2) An employee must act with care and diligence in the course of State Service employment.
(3) An employee, when acting in the course of State Service employment, must treat everyone with respect and without harassment, victimisation or discrimination.
(14) An employee must at all times behave in a way that does not adversely affect the integrity and good reputation of the State Service."
"It is alleged that in your role ... you have been involved in a practice of harassment and victimisation of employees of the Department of Health and Human Services including Dr [MC], Ms [FD] and Ms [JV] and that you may have otherwise condoned a culture of inappropriate conduct towards these employees."
105 As can be seen from annexure "A" of course, the broad allegation which I have just set out is duplicated in that letter. I need to consider the current terms of reference, and it is appropriate to refer to the terms of annexure "A". The Acting Secretary has, after the general allegation, set out four subject-matters, three of which have a heading being the name of an employee. Under the names of the first two employees there are specified a number of matters which purport to be the substance of the alleged breaches. In the case of Dr C, the letter states: "the following incidents are said to be the substance of the alleged conduct towards Dr [C] as known to me at the time of this notice". Thirteen particulars are then set out. In respect of FD, under the heading of her name, the one allegation is "that you have been involved in inappropriate conduct in the form of the sexual harassment ... including ...". There follows two particulars specifying particular incidents.
"That since a meeting of the STAHS executive in early 2010 in which Ms V and others did not support the appointment of T L to the executive committee that you have been involved in ongoing conduct towards Ms V that may constitute the victimisation and harassment of her."
107 In the Acting Secretary's letter, there is then a further heading of "General Allegations of Inappropriate Conduct", which is followed by four particulars of apparently separate incidents.
108 In the letter to the applicant dated 11 February 2011, Mrs Alder confirmed her appointment in the terms which I have earlier described, and went on to state that she had provided particulars of the alleged conduct which were attached to the letter, to assist him with preparing for the interview. The letter then goes on to repeat those parts of the Acting Secretary's letter commencing with the broad allegation of acting contrary to the particular subsections of the Code of Conduct. The subject-matter, the introductory words and the particulars set out are in identical terms to those in the Acting Secretary's letter. However, in respect of each matter heading, Mrs Alder has referred to the particulars in an attachment. For instance, in respect of Dr C, the heading reads "Doctor [MC] - For particulars see Attachment 1". There are four attachments coinciding with the four subject-matters. Each attachment refers to further attachments; for instance, Attachment 1 in respect of the first particular provided in the letter, says "See Attachment 1a for documents". In total there are ten such attachments ranging from 1a to 4b. I was not provided with any of these documents, although I imagine that some of them may have come from the documents which formed part of Ms Sparks' report.
109 The applicant submits that it is clear from the attachments to Mrs Alder's letter and the further particularisation of the allegations, that she has enlarged the scope of the authorised investigation and has added new and separate allegations. In other words, it is argued that the investigation being conducted falls outside the parameters of the one which she has authority to conduct. It is said that this leads to the invalidity of the investigation. Reference was made to the approach adopted by Finn J in Kelson v Forward (1995) 60 FCR 3. In that case a Minister had requested, pursuant to the Merit Protection (Australian Government Employees) Act (Cth) 1984, s56, a report from the Merit Protection Review Agency into workplace harassment. A report was produced upon which the Minister could have acted. Having found that the inquiry went "well beyond the mandate given by the s56 request", his Honour turned to consider the consequences.
110 At [128] - [134], his Honour discussed the way in which the matter should be approached. I respectfully agree. It is convenient to set out the passage in its entirety:
"Inquiring without jurisdiction or authority
I have found earlier in these reasons that, whether or not misled by its own definition, by its s 4 object, or by a combination of these (and other) reasons, the MPRA's inquiry went, and was rightly seen by the applicants to have gone, well beyond the mandate given by the s 56 request.
The question to be decided is whether this failure to adhere to the terms of reference invalidates the Report. The applicants' submission was that in answering this question in the case of an inquiry such as this, the proper perspective to adopt is that of persons caught up in, and likely to be affected by, the inquiry process. Such persons, it was said, are entitled to know what the scope of the inquiry is, and are entitled to complain if it is exceeded. By scope I understood the submission to be referring to the subject matter of the inquiry and not to the range of decisions or actions which the search for that subject matter could properly lead the inquiry to examine: cf Ross v Costigan at 200 ff. The reason given for this entitlement is that a person implicated in the inquiry is then able to say in relation to an allegation made against him or her: 'I do [or do not] have to answer this because it is [or is not] relevant to the inquiry.' Analogical support for regarding the question of scope as one of validity was sought in case law on jurisdictional facts: eg Queensland v Wyvill [1989] FCA 485; (1989) 25 FCR 512.
The respondent, in contrast, submitted that the proper perspective to take was that of the Minister. If the MPRA had gone beyond what he considered he asked it to do, then he was at perfect liberty to ignore the Report in its entirety or to ignore those parts of the Report he considered went beyond his understanding of the terms of reference. The submission in turn sought its support in case law on the 'somewhat elusive' mandatory-directory distinction: eg Yates Security Services Pty Ltd v Keating (1990) 25 FCR 1 at 24; Formosa v Secretary, Department of Social Security [1988] FCA 291; (1993) 46 FCR 117 at 122. The particular point made in this was that the inquiry was an infra-Executive matter and if there was ultra vires it should be left to the Executive not to the courts to correct as it thought fit.
Whatever attraction may lie in the analogy suggested by the respondent in cases where the direction in question does not impact upon interests other than the interests of the Executive government itself, here one must take into account the interests of the applicants.
The s 56 request gave the MPRA authority to evaluate the behaviour of AWM officers (including the applicants) for a particular purpose - ie to determine whether that behaviour constituted workplace harassment. To that extent it was given the capacity to diminish the standing and repute of any individual officer if, and to the extent that, a positive finding was made against him or her. But the reason for that diminution was to be because that officer had been found to have engaged in workplace harassment. The MPRA had no justification possibly to diminish reputations for reasons unrelated to workplace harassment.
It is not appropriate for this Court to disregard that possibility - and the scope it thus would give unfairly to prejudice individuals - simply because the inquiry occurs within the four walls of the Executive arm of government. I should emphasise that I am limiting my comments to acting without authority in a way which could put the reputation of a person or persons at risk. Basic fairness to public officials requires that this should not be a risk to which they are exposed simply because, for whatever reasons, others exercising public power misunderstand their own authority. Here, it clearly was a risk to which the applicants were exposed because of the unauthorised areas into which the MPRA presumed to wander.
Accordingly I find that the making of this Report was an improper exercise of the power conferred on the MPRA by the s 56 request to report to the Minister."
111 I will deal with the four attachments to Mrs Alder's letter. Rather unhelpfully, the incidents said to be the subject of the alleged conduct towards Dr C, are set out in Attachment 1 in a different order than in the Acting Secretary's letter. There are 15 "particulars" provided in relation to incident No 1, two in respect of incident No 5, one in respect of incident No 7, four in respect of incident No 9, and four which relate to incident No 13. On the face of it, all of these additional particulars seem to be connected in fact with each of the five "incidents" specified in the Acting Secretary's letter. I am unable to say that any individual or group of particulars represents an enlargement of the inquiry beyond what can be reasonably be contemplated as the parameters of the authorised inquiry.
112 Attachment 2 relates to the allegation of inappropriate conduct in the form of sexual harassment of Ms D. As noted, two specific instances are referred to in the Acting Secretary's letter. Mrs Alder has included in attachment 2 the following:
"The particulars of general inappropriate conduct are that:
•
Since approximately August 2009, and after the Ministerial was moved [sic], you refused to walk down the corridor if [FD] was there and spoke in favourable terms about Ms [D] to other staff."
113 In its terms and having regard to the facts alleged, this particular relates to "general" inappropriate conduct, not inappropriate conduct in the form of sexual harassment. As such, the allegation would fall outside the terms of the authority except to the extent that it might be capable of investigation of the fourth matter - General Allegations of Inappropriate Conduct. I will return to this point.
114 Attachment 3 sets out 14 particulars of the alleged conduct which, as will be recalled, is "ongoing conduct towards Ms V that may constitute victimisation and harassment." In the present exercise, I am not to make any qualitative judgment or assessment of the allegations in terms of their merit. I am to assess whether the particulars can fairly be said to fall within the parameters of the authority given. Some of the particulars provided seem trivial taken in isolation, and there may be difficulties in seeing how they constitute victimisation and harassment. However, I am not able to say that they are beyond the scope of the authorised investigation.
115 Attachment 4 deals with the subject-matter of the "General Allegations of Inappropriate Conduct". Four separate instances are set out in the Acting Secretary's letter. These are repeated in attachment 4 to Mrs Alder's letter but following the introductory words "The particulars of general inappropriate conduct are that:", there follows an additional 16 separate allegations relating to words spoken and behaviour engaged in.
116 The notion of inappropriate conduct is not of itself dealt with in the Code of Conduct. In terms of the Acting Secretary's letter, it may be that "inappropriate conduct" falls within any one or more of the three obligations identified by the Acting Secretary; that is, subs(2), (3) and (14) of s9 of the SSA. The Acting Secretary's letter does not specify the way in which it is said the specified four instances of inappropriate conduct contravene the Code. As to this aspect of the investigation, the Acting Secretary's authority extends to allegations of inappropriate conduct, four instances of which are given. It may well be, as Mrs Alder's description of her further particulars acknowledges, that the Acting Secretary intended the word "general" to qualify the words "inappropriate conduct", and that the wording used was adopted to distinguish this subject-matter from the three preceding subject-matter headings which took the form of employees' names.
117 Be that as it may, having regard to the whole of the scheme, it cannot be correct to suggest that a CD5 investigation could be carried out into a general allegation of inappropriate conduct, some particulars of which are contained in the authority, with the investigator being free to investigate anything which might fall within the description of "inappropriate conduct". Clause 4.7 enables the scope of an investigation to be expanded, if during its course, the Head of Agency forms the necessary belief about possible further breaches, after which "investigation of the additional allegations may then proceed ...". This has not occurred. It follows that I take the view that the 16 additional particulars of general inappropriate conduct set out in attachment 4 to Mrs Alder's letter, together with the particular of general inappropriate conduct in attachment 2, fall outside the terms of the authority given.
118 The grounds of the application as to this aspect of the investigation are made out. I do not think that I should exercise the discretion not to grant relief at this point. The investigation is at a relatively early stage. Both practical considerations and broader considerations of the potential impact of the investigation militate against staying or dismissing the application for review as to these grounds. Having said that, I am tentatively of the view that it would not be necessary to invalidate the entire exercise. There is as yet no concluded report within the meaning of cl 4 of CD5. The applicant is yet to be interviewed and given the opportunity to provide documentary evidence. More limited declaratory and injunctive relief may be more appropriate but I will hear counsel as to this.
119 It follows that the application is granted, but the only relief to which the applicant is entitled is that in relation to the terms of reference presently being pursued by the investigator. It was agreed that should any of the grounds be made out, I would hear further from counsel as to the form the orders should take. As I have said, I will hear counsel as to the orders which should be made in the circumstances.
120 After handing down my reasons on 3 June 2011, the applicant drew my attention to an oversight of mine in relation to the issue of the apprehension of bias of the investigator: see pars[90] - [101] above. The error occurs in [91] in which I said that the applicant's submissions proceeded on the unstated assumption that the bias rule, as an aspect of procedural fairness, applied to Mrs Alder in her position as investigator. I also said that counsel for the Attorney made no response to this implicit assumption. As now pointed out, the fact is that cl 4.1 of CD5, which is the clause governing the instigation of an investigation, also provides that:
"The Investigator must be impartial and must report to the Head of Agency in accordance with clause 4.9 on the outcome of their investigation." [Emphasis added]
121 Senior counsel for the applicant kindly accepted that in the course of argument my attention had not been drawn to that part of cl 4.1. But of course, I ought to have adverted to it given that it is contained within cl 4.1, the other terms of which were the subject of close attention.
122 The applicant sought to make further submissions in relation to the issue. Counsel were agreed that as nothing had progressed beyond me handing down my reasons, I had jurisdiction to do so: Fletcher Constructions Australia Ltd v Lines Macfarlane & Marshall Pty Ltd [2001] VSCA 167; (2001) 4 VR 28 at [43]. I heard further argument on 9 June 2011, and reserved my decision on the additional points raised. I said that I would publish reasons in due course by way of an addendum to the reasons previously published. I now do so.
123 The requirement in cl 4.1 is that the investigator be impartial. There remains no suggestion of actual partiality. The earlier reasons show my ultimate approach to the matter of apprehended bias. In fact I proceeded on the basis that the bias rule, as an aspect of procedural fairness, applied to Mrs Alder in her position as investigator, but said that it was clear that the test for apprehended bias must take into account the nature and the role of the person whose decision or conduct is the subject of scrutiny. I referred to, amongst other authorities, Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [40]. However, the applicant now argues that having regard to the explicit requirement in cl 4.1 for the impartiality of the investigator, the test to be applied should be the most stringent one; that normally to be applied to a judicial officer hearing a case. I have difficulty in following how that can be so, and precisely what it meant in practical terms was not, in my view, properly explained. I reject the submission; the proposition simply cannot be correct.
124 The law which I am to apply is that stated by the High Court in Ebner and the other authorities to which I have referred in pars[92] and [93] above. This is an investigation. It is an evidence gathering exercise. The duties and obligations of the investigator include giving the employee the opportunity to be interviewed, and to provide documentary evidence if the person wishes. The investigator is to provide a report on the outcome of the investigation, which report "must provide evidence (if any), relevant to the circumstances relating to each alleged breach of the Code", and to include as attachments "any relevant submissions, statements, records of interview or other documentary material". The investigator can make no findings or determinations of fact, although as I previously said, it might be expected that at least some comment on the strengths and weaknesses of the evidence might be made. The authorities make it clear that the test for apprehended bias in this case must be applied in relation to that particular role.
125 I accept that, as submitted, the fair-minded observer can be properly attributed an understanding of the terms of CD5. The applicant submits that in the context of the CD5 process, the conduct of Mrs Alder has gone so far beyond the investigatory role, that she has become effectively a prosecutor in a cause; or at least the observer would think so. That submission is also rejected. As to the issue of the additional allegations, it is important that cl 4.7 specifically contemplates that during the investigation, the possibility of further breaches may be revealed. These may be added to the investigation if the Head of Agency forms the necessary belief. More generally, the observer would know of the evidence gathering and reporting roles, and would recognise that a particular view of things may arise in the investigator's mind without that compromising the proper performance of the duty.
126 The law requires an articulation of the logical connection between the matters complained of and the feared deviation from the proper course: Ebner (above) at [8]. Looking at the matter again, I remain unpersuaded that a fair-minded lay observer, imbued with an understanding of the processes and the surrounding circumstances, is likely to feel that because of the matters complained of, Mrs Alder might not provide a fair and impartial report on the evidence which has been gathered. In other words, that she might become an advocate for persons claiming to be aggrieved by the applicant's conduct, and present an unfair and unbalanced report as a result. In so concluding, I am mindful that the question is not to be determined on how Mrs Alder will in fact approach the matter, but that the question is one of real possibility and not probability: Ebner (above) at [7].
127 For those reasons, the outcome of the application for review will remain the same.
STRATEGIC AND PORTFOLIO SERVICES• OFFICE OF THE SECRETARY
Subject: Mr Michael Pervan: Appointment to Investigate Alleged Breaches
of the State Service Code of Conduct in Accordance with Commissioners Direction No 5
I refer to recent discussions regarding Chief Executive Officer of Southern Tasmanian Area Health Service (STAHS), Mr Michael Pervan.
I consider that there are reasonable grounds to believe that Mr Pervan may have breached the State Service Code of Conduct and I hereby authorise you to undertake an investigation in accordance with Commissioner's Direction No 5 of 2009.
I have attached an instrument of appointment as investigator for your reference and use.
It is alleged that in his role as Chief Executive Officer of Southern Tasmania Area Health Service Mr Pervan has been involved in a practice of harassment and victimisation of employees of the Department of Health and Human Services including against Dr C, Ms D and Ms V and that he may have otherwise condoned a culture of inappropriate conduct towards these employees.
I confirm the terms of reference for the investigation as follows:
The following incidents are said to be the substance of the alleged conduct towards Dr C as known to me at the time of this notice:
•
That Mr Pervan failed to provide Dr C with appropriate adequate financial support for the Department of Medical Imaging despite being aware of the financial situation within the Department.
•
That over many months Mr Pervan referred to Dr C as "Dr" in a derogatory fashion whilst the remainder of senior employees were called by their first names in committee meetings.
•
That despite being the head of the Department of Medical Imaging Mr Pervan refused on various occasions to meet with Dr C to arrange operational issues.
•
That Mr Pervan refused to speak to Dr C over many months.
•
That Mr Pervan failed to act on the failures of STAHS Human Resources and Recruitments Services in respect of issues affecting the Department of Medical Imaging which caused Dr C stress in the management of the Department in areas such as the management of a sexual harassment matter and in managing staff and Doctor shortages.
•
That on several occasions Mr Pervan alleged that Dr C was suing him and that he stated to Dr C "bring on the court case with your lawyers and barrister from Sydney".
•
That Mr Pervan failed to act or adequately respond to documents provided to him by Dr C that originated from Department of Medical Imaging employees which included serious complaints and issues in the Rowell and Potter report.
•
That Mr Pervan provided written communications between Dr C and him of a confidential nature to other employees of STAHS that resulted in a claim for workers compensation against the DHHS by Mr H.
•
That Mr Pervan stated to Dr C that Mr H would "slash his tyres" but that Mr Pervan would take no action against him if this were to occur.
•
That Dr C has found it difficult to reasonably interact with Mr Pervan on the basis of his mood or affect being unpredictable in that Mr Pervan has been at times pleasant but more frequently hostile and antagonistic towards Dr C.
•
That Mr Pervan said words to the effect of "Dr C, I don't want to talk to you and I don't want to see you ... I don't want to meet with you and I don't want to talk to you".
•
That on various occasions Mr Pervan ignored Dr C in public.
•
That Mr Pervan determined to make Dr C's position as Director, Medical Imaging unworkable from an operational point of view by falling to engage with him and be available to him as reasonably required given his position as Director of Medical Imaging.
That Mr Pervan has been involved in inappropriate conduct in the form of the sexual harassment of Ms D including:
•
That on one occasion approximately 12 months ago Mr Pervan approached Ms D in the corridor of the Executive Floor at the Royal Hobart Hospital and proceeded to put his arms around her without her consent to do so.
•
That approximately 12 months ago Mr Pervan said words to the effect of "lets face it Ms D I know about women like you, you manipulate men, you are a dick tease'"
That since a meeting of the STAHS Executive in early 20l0 in which Ms V and others did not support the appointment of Mr L to the Executive Committee that Mr Pervan has been involved in ongoing conduct towards Ms V that may constitute the victimisation and harassment of her.
•
That Mr Pervan conveyed inappropriate comments in respect of senior clinical staff by email including references to "corporate infection" and "the lump that grew up".
•
That on one occasion Mr Pervan referred to the Executive Director of Nursing Ms P as "incompetent".
•
That on one occasion, Mr Pervan told staff that he was "counting the days till Ms D left".
•
That Mr Pervan condoned the use of text messaging during Executive team meetings that referred to Dr B as a 'geriatric gasbag' and that underlying this allegation is a culture supported by Mr Pervan of a lack of respect being afforded to some senior members of staff within STAHS, particularly within the context of the STAHS Executive Committee whilst treating other senior managers more favourably.
In the event that your investigation identifies allegations or other information that does not currently fit within your terms of reference please seek my further instructions. It may be that I provide you further terms of reference in which case I will need to notify Mr Pervan of this fact. This may be necessary if inappropriate conduct towards other employees is identified.
[1] At the hearing before the Commissioner, it was made clear, as it is in these proceedings, that it is the CD5 investigation decision which was sought to be impugned, not any of the consequential decisions or directions.
[2] I should note that in the application for review before the Commissioner, a different stance was adopted. The application for review referred to the "informal suspension" of the applicant, but this related to the applicant's forced leave during the information Sparks Inquiry, and not the direction in respect of alternative duties which was made on 20 October 2010, when notice of the CD5 investigation was given.
[3] The power to transfer to other duties was a power which, although it could be used in aid of an inquiry, was not of itself part of the disciplinary scheme: see [50].
[4] As to the present case, the State Service Regulations 2001, reg34, provides that a Head of Agency may suspend an employee if he or she believes on reasonable grounds that there may have been a breach of the Code of Conduct. Regulation 35 enables the Commissioner (but not the Head) to suspend an employee without salary, in the same circumstances, but the Commissioner's Direction No 8 provides that such action will be taken after the Commissioner has considered submissions by the employee concerned.
[5] Aaronson Dyer and Groves, Judicial Review of Administrative Action, 4th ed (2009) at 493 [7.280].
(6) In the determination of an application for a review, the Commissioner may -
(a) refuse to grant the application for a review and, if appropriate, direct the Head of Agency to take such action as the Commissioner considers appropriate; or
(b) in the case of an application for a review under section 50(1)(a), grant the application and direct the Head of Agency to undertake again the selection in accordance with section 39 and undertake such other requirements as are imposed by the Commissioner; or
(c) in the case of an application for a review under section 50(1)(b), grant the application and recommend or direct the Minister or the Head of Agency or any person to whom the powers of the Minister or the Head of Agency have been delegated, to take such action as the Commissioner considers appropriate.
[7] Judicial Review of Administrative Action (fn 5 above) at 256 [4.350].
[8] It is true that the applicant has invoked the "inherent jurisdiction" of the Court. There was some discussion about the possibility of the grant of relief in the nature of prerogative relief, where the provisions of the JRA do not provide an adequate remedy. That the Court has jurisdiction to grant relief in the nature of prerogative remedies, notwithstanding the abolition of various prerogative writs by s43 of the JRA, was recognised and confirmed by the Full Court in Tasman Quest Pty Ltd v Evans [2003] TASSC 110; (2003) 13 Tas R 16 per Blow J at [8] - [9], Crawford and Slicer JJ agreeing. Such relief is provided for in Pt26 of the Supreme Court Rules 2000. (See also Von Stalheim v Anti-Discrimination Commissioner [2005] TASSC 134 at [15], R v RMPAT'; ex parte North West Rendering Pty Ltd [2005] TASSC 8 at [25] and Civil Aviation Authority v Illingworth [2009] TASSC 57 at [8].) This notwithstanding, counsel for the Attorney-General stated that the Attorney's position was that this Court has no power to grant relief in the nature of prerogative relief, and that the rules to that effect are invalid. The matter was left on the basis that if my resolution of the issues resulted in the applicant being entitled to some relief, but only under Pt26 of the Supreme Court Rules, I would hear further submissions. These would include whether, by reason of the High Court's judgment in Kirk v Industrial Relations Commission (2010) 239 CLR 53, notices ought be given in relation to the Judiciary Act 1903 (Cth), s40.
[9] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [5].
[10] This was the allegation that Mr Pervan had failed to provide Dr C with appropriate adequate financial support for his department.
Pervan
Frawley [2011] TASSC 27
(2008) 19 VR 612
(1990) 170 CLR 104
(1944) 69 CLR 407
(2000) 205 CLR 337
(2001) 205 CLR 507
(1995) 60 FCR 3
(2005) 15 Tas R 158
(1985) 159 CLR 550
(1990) 170 CLR 596
(2010) 85 ALJR 133
(1992) 175 CLR 564
(2007) 158 FCR 75
(2001) 24 WAR 127
(1990) 169 CLR 648
(2003) 214 CLR 1
(1999) 46 NSWLR 224
(1981) 55 FLR 34
(1990) 27 FCR 56
(1997) 78 FCR 255
(2007) 158 FCR 310
(2000) 77 SASR 148
(1990) 170 CLR 321
(2008) 236 CLR 120
(2001) 113 FCR 154
(1999) 197 CLR 611
(1997) 187 CLR 297
(1984) 4 FCR 92
(1986) 7 NSWLR 503
(2001) 206 CLR 128
(2011) 85 ALJR 348
(2000) 201 CLR 488
(1989) 25 FCR 512
(1990) 25 FCR 1
(1993) 46 FCR 117
(2001) 4 VR 28
(2003) 13 Tas R 16
(2010) 239 CLR 53
(2010) 240 CLR 611