Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Elvin Brian Brown) and Department of Juvenile Justice [2008] NSWIRComm 154

SUBMISSIONS...........................................................................................................69 For the applicant..........................................................................................................69 For the respondent.......................................................................................................81 In reply..........................................................................................................................91

CONSIDERATION.....................................................................................................98 Was the alleged misconduct of the applicant proven on the balance of probabilities?.............................................................................................102 RD Incident - 14 April 2007.......................................................................................106 NB Incident - 2 June 2007.........................................................................................109 Does the applicant's conduct constitute a repudiation of his contract of employment?...................................................................................113 If the misconduct is proven, was the seriousness of the misconduct such as to warrant the applicant's dismissal?.......................................117

CONCLUSIONS........................................................................................................119 What relief should be ordered by the Commission?..................................................120

ORDERS....................................................................................................................124

Annexure 1 - Extract - Public Sector Employment and Management Act 2002............................................................................59 Annexure 2 - Children (Detention Centres) Regulation 2005 - Part 6 - Maintenance of Order.............................................................65 Annexure 3 - Department's Use of Force and Instrument of Restraint Policy and Procedure..............................................................67 Annexure 4 - Department's Policy and Procedures for Managing Difficult Behaviour..................................................................................75 Annexure 5 - Department's Minor Misbehaviour Policy..........................................94 Annexure 6 - Department's Code of Conduct..........................................................108

INTRODUCTION 1 Mr Elvin Brian Brown ('the applicant') was dismissed by the Department of Juvenile Justice ('the respondent') from his employment as an Aboriginal Unit Co-ordinator at the Reiby Juvenile Justice Centre as a consequence of two separate incidents involving young detainees at the Centre. His Union, the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ('the PSA') filed an application pursuant to s 84 of the Industrial Relations Act 1996 ('the Act') seeking the applicant's reinstatement and the payment of lost remuneration as a result of his dismissal. The application came before the Commission (Boland J, as he then was) for conciliation on 29 January 2008. However, attempts at settlement of the claim were ultimately unsuccessful and the matter was remitted to me for hearing. 2 The two incidents occurred on 14 April 2007 and 2 June 2007, and involved two detainees who, for the purposes of this decision will, by order of the Commission, be identified as 'RD' and 'NB'. The incidents will be referred to respectively, as the RD Incident and the NB Incident. Both incidents were recorded on CCTV footage. Copies of the tapes were tendered in evidence and frequently resorted to during the oral testimony of the witnesses. At this juncture, I would indicate that I have reviewed the CCTV footage numerous times since reserving my decision in the matter. BACKGROUND The allegations of misconduct 3 The precise nature of the allegations against the applicant were detailed in correspondence sent to him from the then Director General of the respondent, Ms Jennifer Mason, dated 24 May 2007 and 13 June 2007, and were expressed in the following terms: RD Incident On or about 14 April 2007 you assaulted detainee RD at Reiby Juvenile Justice Centre. On or about 14 April 2007 you used excessive force, inappropriate and unauthorised methods of restraint, takedown and movement on detainee RD in breach of the department's Use of Force & Instruments of Restraint Procedures, training and clause 50 of the Children (Detention Centres) Regulation 2005. NB Incident On or about 2 June 2007 you assaulted detainee NB at Reiby Juvenile Justice Centre. On or about 2 June 2007 you used excessive force on detainee NB at Reiby Juvenile Justice Centre in contravention of clause 50 of the Children (Detention Centres) Regulation 2005. On or about 2 June 2007 you used inappropriate and unauthorised methods of restraint, takedown and movement on detainee NB in breach of the department's Use of Force and Instruments of Restraint Procedures and training. On or about 2 June 2007 you failed to follow the proper procedures for dealing with misbehaviour and managing difficult behaviour contained within the Children (Detention Centres) Act 1987 and the Children (Detention Centres) Regulation 2005, the relevant departmental policies and procedures, and training when dealing with detainee NB at Reiby Juvenile Justice Centre. On or about 2 June 2007 you caused the breakdown of good order in Reiby Juvenile Justice Centre in breach of section 49 Order Generally of the Children (Detention Centres) Regulation 2005. On or about 2 June 2007 when dealing with detainee NB, you failed to work safely to protect the health and safety of yourself, colleagues, clients and visitors by not following all departmental Occupational Health and Safety procedures and guidelines designed to help maintain a safe place of work. 4 The applicant was further advised that in respect to the RD Incident the Director General had appointed an independent investigator, Mr David Madden, and in respect to the NB Incident had appointed Mrs Claire Alder to investigate the allegations and prepare reports. 5 By letters dated 8 August and 14 August 2007, the Director General advised the applicant that she had formed the view that he had engaged in misconduct (based on the findings of the investigators that the allegations had been sustained) and was considering imposing disciplinary action under s 42(1) of the Public Sector Employment and Management Act 2002. The applicant was invited to provide a written submission (which he did) and attend an interview with the Director General (which took place on 24 October 2007, with Mr Michael Sinclair from the PSA acting as the applicant's support person). 6 By letter dated 22 November 2007, from the Director General, Ms Jennifer Mason, the applicant was advised of his summary dismissal. The applicant was further advised that as a result of the findings of the investigators, the respondent was obliged to report his misconduct for the purposes of the Commission for Children and Young People Act 1998 and that the applicant would be registered with the Commission for Children and Young People as a Category One notification. 7 As earlier mentioned, the two incidents were subject to independent investigations by Mr Madden and Mrs Alder. Their detailed reports and findings were tendered through the evidence of Ms Nicole Christoph, the respondent's Employment Relations Officer. Neither Ms Christoph nor the two investigators were required for cross-examination. 8 The Commission notes that while the case advanced by the applicant plainly sought to overturn the findings of the investigators, Mr Reitano, of Counsel for the applicant, conceded, properly in my opinion, that there was no issue in relation to procedural unfairness arising from the investigations, nor would there be any attack on the personal integrity of the investigators. That said, it was the applicant's case that he rejected the allegations of misconduct and claimed that he had acted appropriately and in self-defence during both incidents, which he had reported. 9 Annexed to this decision are relevant extracts from the following documents referred to during the proceedings: a) Section 41 to 46 of the Public Sector Employment & Management Act 2002. (Annexure 1)

b) Sections 49 to 51 of the Children (Detention Centres) Regulation 2005. (Annexure 2)

c) Department's Use of Force and Instrument of Restraint Policy and Procedures. (Annexure 3)

d) Department's Policy and Procedures for Managing Difficult Behaviour. (Annexure 4)

e) Department's Minor Misbehaviour Policy. (Annexure 5)

f) Department's Code of Conduct. (Annexure 6) Personal background 10 The applicant is of Aboriginal descent having been one of 11 children of William and Leisha Brown. He was born on an Aboriginal mission at Kempsey in February 1962. He was removed from his family at birth and returned to them when he was five years old. The applicant now has four dependent children living with him since his former partner had a nervous breakdown in December 2007 and became unable to care for their children. 11 The applicant is a qualified carpenter and joiner. He commenced employment at the Centre on 23 September 2002 as an Aboriginal Youth Officer and was promoted to Aboriginal Unit Co-ordinator in March 2007 on a six month trial. Prior to his employment at the Centre he worked for six years as an Aboriginal Community Liaison Officer with the Department of Education and Training and prior to that, for three years as an Aboriginal Education Assistant at Melville High School. He holds a Certificate III and IV in juvenile justice work; he has completed two years of a Bachelor of Arts (Teaching) from the Australian Catholic University and has completed 1 year of a Bachelor of Arts (Adult Teaching) from the University of Technology. The Reiby Juvenile Justice Centre ('the Centre') 12 The applicant had worked in the Whitten Unit of the Centre from the commencement of his employment. The Unit caters for 13 to 16 year old male detainees. There are three other Units, each having a maximum of 15 detainees. The applicant described the daily routine of the detainees. He said that detainees are eligible to earn incentive points for positive behaviour. 13 Reiby is the only juvenile justice centre in the State which houses A1(O) and A1(B) detainees under the age of 16 years. The applicant described these categories: A1(O) involves offences such as murder, manslaughter, aggravated sexual assault and A1(B) being detainees with a history of assault on staff or other detainees, or who have escaped or who have known management problems. They usually have lengthy criminal histories. Both detainees NB and RD were in this latter category and on Management Plans. These set out the goals a detainee has to achieve and are reviewed weekly by management. 14 The change of shift arrangements at the Centre occurs at 2pm each day. Night shift commences at 10pm and there is one Unit Co-ordinator and one Youth Officer on night shift. There are periodic checks on each detainee during the night shift. 15 The applicant described the training undertaken by Youth Officers, which includes specific training on how to restrain detainees. He said that he received his restraint training about a year after he commenced employment. Refresher training is provided about once a year. Because of rostering difficulties, the applicant said he had only received his refresher training twice in the last five years. The applicant said that restraint training includes the following instructions: a) If a detainee came towards us in an aggressive manner, we were to continue to back away and to hold our open hands out in front of us; b) If a detainee continued to come towards us with their hands outstretched, we were to slap their hands away and block any hits; c) We were to restrain the detainee by twisting their hand behind the detainee's back; d) Only the unit co-ordinator is authorized to carry hand-cuffs and they are to be used only when necessary; e) prior to using any restraint or force, we were to try and negotiate with a detainee - to try and talk to them and calm them down and if they didn't do so to order them to their room. We were required to tell them on three occasions to go to their room before we were allowed to use force and we had to forewarn the detainee that force would be used if they did not obey the three warnings. THE TWO INCIDENTS The RD Incident: 14 April 2007 16 It may be safely assumed that in finding the applicant guilty of misconduct, the respondent relied on the conclusions of Mr Madden in which he found as follows: The investigation found that the evidence in relation to the misconduct of Elwyn Brown was conclusive. Although the officer defended his actions, the CCTV footage clearly shows his inappropriate actions including acting aggressively towards a detainee and using inappropriate and unauthorised restraints. The video evidence shows that officer Elwyn Brown pushed the detainee towards the Whitten unit, that he grabbed hold of the young person in a front on bear hug, that he pushed the young person with his shoulder, that he took hold of the young person from the rear by grabbing the young persons and neck (sic) and that he moved the young person to his cabin whilst in a headlock. The detainee freely admits that he initiated the pushing and shoving, that he was frustrated and angry, that he swore at the officer and also that he punched the officer in the head, but he states he did so because he was being choked and could not breathe. Despite the young person admitting that he commenced the pushing and shoving, this does not provide mitigation for the actions of the officer. There is a much higher standard of behaviour expected of officers as against that of detainees who are being held in Juvenile Justice Centres, often for a failure to comply with the States legislation. There was a reasonable expectation that the officer would respond differently to a confrontational detainee. The restraints he used could have caused significant injury to the detainee. Based on these issues, it is recommended the matter be treated as a disciplinary matter. 17 During the investigation, Mr Madden interviewed a number of persons, in addition to the applicant. These were: Mr Andrew Blackwood - Youth Officer Mr Stephen Ross - Duty Manager Mr Gary Head - Training Manager Mr David Valenzuela - Youth Officer Mr Terrence Cheney - Casual Youth Officer RD - Detainee

Four of these witnesses gave evidence in the proceedings. The applicant's version of events 18 In his written statement, the applicant said he had known RD and his family for quite a long time. He had played football with RD's uncles and had driven RD home on occasions after his release from the Centre. 19 On the day of the incident, the applicant was working in the office of the Whitten Unit when he heard yelling and abuse coming from the courtyard area during the detainees' recreation time. The yelling and abuse was coming from RD who was apparently upset about not being able to make a phone call. The applicant approached RD and asked what the problem was. RD continued directing his anger and abuse at him. When RD continued his swearing and abuse, the applicant warned him that if he did not calm down he would have to go to his room. When the abuse continued the applicant said "Right R because you are abusing staff you are going to have to go to your room". RD replied "You are going to have to drag me" and he began pushing the applicant in the chest. The applicant said "no, that's not going to happen. Let's walk to your room". The applicant said he was pushed and shoved as they walked toward the dining room door. The applicant claimed that he "guided" him towards the room. When they entered the dining room, RD picked up a plastic chair and threw it. 20 The applicant said he then approached RD with his arms open and put his arms around RD's arms in a sort of "front on bear hug". This was to stop RD from assaulting him. The applicant claimed another Youth Officer, Mr Terrence Cheney, who was nearby, made no effort to assist. At this point, the applicant was directing RD the wrong way to his room and RD said "this is not the way to my fucking room". The applicant said he then started to walk him to the east wing. RD continued the abuse and was flailing around with his arms while he was trying to fend him off. There was more pushing and shoving and RD was struggling the whole time. At some point RD had punched the applicant two or three times. The applicant eventually wrestled RD to the ground and leaned on him until other Youth Officers came to his assistance. RD was not handcuffed, but he was assisted to his room by the applicant and Youth Officer Blackwood. 21 The applicant maintained that at no time did he have his arm around RD's neck, nor had he choked him, or poked him in the eye. The applicant said that RD had a history of being demanding and difficult. The applicant believed that RD wanted to be placed in the Robinson Unit, which is a less structured unit than the other units at the Centre, and knew that if he assaulted an officer he would automatically be sent to the Robinson Unit. The applicant believed that RD was determined to assault him at the first opportunity so as to be transferred. However, this did not happen as the Acting Centre Manager had told the applicant that the Unit was full. 22 As a result of his dismissal, the applicant had been placed on a Category One notification under the Commission for Children and Young People Act. He can no longer work with children without a risk assessment. That meant he could not even continue managing his own children's football team. He believed he was being treated as a criminal. The applicant said he had never been the subject of any previous disciplinary action. Two earlier complaints against him had been dismissed.

23 During cross-examination of the applicant the CCTV footage was replayed. The applicant denied he was the aggressor in the incident with RD. He further denied pushing RD from behind or that he grabbed him around the neck area. The applicant agreed he had been trained in the use of force on detainees. He was aware that cl 50 of the Children (Detention Centres) Regulation 2005 provides that force may only be used in certain circumstances. 24 Ms Anderson, of Counsel for the respondent, directed the applicant to various sections of the Department's Regulations and Guidelines and he acknowledged that he had received training about them. However, he believed a "push" was an approved means of dealing with a detainee. He did not agree that a "push" was an inappropriate technique. In any event, he denied that he pushed the detainee. Rather, he claimed he "assisted" him by walking behind him. After further reviewing the CCTV footage, the applicant admitted pushing RD and he acknowledged that it was wrong to do so. 25 When asked about the correct method of escorting a detainee by walking beside the young person, the applicant agreed that he had not adopted that method. He had adopted the approach he had because he believed RD was going to hit him. While he agreed it was unacceptable to grab a detainee around the neck or head, he believed that he had no choice as RD was very violent and worked up. 26 The applicant conceded that he could have asked for assistance or used his duress alarm. He claimed that he called out to Youth Officer Cheney, but Mr Cheney did nothing. This conflicted with what he had told Mr Madden that: "At that stage I didn't feel I needed to ask him for assistance because I thought he would have stepped in quite a number of times". The applicant had also told Mr Madden that he was not quite sure what an approved restraint technique was for moving a detainee. 27 The applicant claimed he had continued to talk to RD throughout the incident and that he had reacted quickly so as to avoid a riot. He said he had no chance to call other staff for assistance. He denied he had used force simply because RD had challenged his authority. The applicant explained that he had been hit three times by RD and was dazed by the punches. He had to hold RD on the ground until assistance arrived. Witnesses called by the respondent 28 Mr Gary Head is the respondent's Training Manager. Mr Head had provided Mr Madden with the records of the applicant's training. Mr Head said that since June 2007, there has been a departmental procedure dealing with the use of force. Prior to that time, there had been non-prescriptive guidelines and the specific requirements in cl 50 of the Regulation. Mr Head agreed that there was a multitude of different circumstances in which an individual officer makes a subjective judgement about what needs to be done in particular circumstances. The guidelines were designed to assist the officer in making those judgements. 29 Mr Head agreed that there were certain circumstances where force is permitted under cl 50 of the Regulation. These were where the officer is in fear for their own safety or where a detainee disobeys an instruction and is warned that force may be used to ensure compliance. At all times however, force must be reasonable. Mr Head agreed that a good indicia of whether force was excessive was whether a person was injured. Mr Head added that there were no black and white guidelines which state a person must not be choked or grabbed around the head. This was because the particular circumstances are unpredictable. Mr Head said that prior to June last year, one approved technique did involve touching a person's head. However, Mr Head did not know if the new guidelines, implemented in November 2007, were a direct result of significant complaints about the workability of the former guidelines. 30 Mr Head agreed that in given circumstances, it may be appropriate to depart from guidelines or particulars of the approved training techniques. They were not mandatory. However, Mr Head had formed the view that the applicant had used techniques with RD which were not in accordance with the guidelines. In referring to protective stances, Mr Head said that what he saw was a "push" and this was inappropriate. In re-examination, Mr Head said that before grabbing a detainee an officer should seek assistance to help escort the person. Mr Head said that after looking at the CCTV footage, he believed it would have been appropriate to talk to the detainee before moving him away. 31 In further cross-examination, Mr Head said he had only commented on what he had seen on the CCTV footage. He conceded that he had not dealt directly with detainees, did not know the record of the detainee in question, nor did he know, either the relationship RD had with the applicant or what was being said in the confrontation. He acknowledged that, with all these variables in mind, the applicant's behaviour may have been appropriate. Mr Head further accepted that devoid of such knowledge, it would not be appropriate for anyone to act on his opinion of the appropriateness of how RD was dealt with. 32 Mr David Valenzuela is a Youth Officer at the Centre with 13 and a half years experience. At the time of the incident, he was Acting Unit Co-ordinator of Macarthur Unit. At the time of the incident, he was in the recreation area and heard the screaming and yelling. When he investigated, he saw a bin flying inside the Unit and he witnessed the fracas involving the applicant and RD. He had told Mr Madden that, at one stage, he had seen the young person grabbed from behind. While he had told Mr Madden the detainee had been grabbed around the neck, he agreed in cross-examination that he could have been mistaken and he could not be sure if the applicant's hold on RD was part of the approved technique.

33 Mr Terrence Cheney has been employed at the Centre as a Casual Youth Officer for three and a half years. Mr Cheney sent an email to Mr Scott Harrison, the Acting Assistant Manager of the Centre on 2 May 2007, in which he said: In reply to that sentence, I believed that U/C Elwyn Brown had control of the situation and I was there to back him up and support him if and when required and up until the time of the physical contact between U/C Elwyn Brown and Y/P RD there was no reason for me to take any additional action than I had take (sic) at the time, as I have already stated I believed that U/C Elwyn Brown had control of the situation.

34 Mr Cheney agreed that working in detention centres involves making split second decisions based on a person's training and experience, arising from a million different variable situations. Mr Cheney confirmed that he believed the applicant had the situation with RD under control. However, he would have approached it differently. 35 Mr Cheney's evidence was that RD had been behaving aggressively first towards him and then towards the applicant. Nevertheless, he believed the applicant had the situation under control and that is why he had not intervened. Mr Cheney's recollection was that RD was moving backward all the time, facing the applicant. Then he saw an emerging situation when the applicant grabbed hold of RD by putting his right arm around RD's head. When shown the CCTV footage, Mr Cheney agreed he could not have seen where the applicant's arm was. He accepted his perception of what had happened was mistaken. Mr Cheney said he did not see RD punch the applicant as his view was obscured. However, he could see an arm and RD's head.

36 Detainee RD was summonsed to give evidence from detention at the Frank Baxter Juvenile Justice Centre. He is presently 16 years old. RD said that when he was interviewed by Mr Madden about the incident, he had told the truth. RD said that the applicant was a good bloke and he had got on pretty well with him, except when things happened which he did not like. 37 RD said that on the day of the incident he had become quite angry because he was not allowed to make a phone call. He had begun abusing people. RD agreed that the applicant had told him that if he continued mucking up, he would have to go to his room. When directed to go to his room, RD refused and knew if he did not do so, he might be physically taken there. The applicant then held him and walked him to the wrong section to where his room was. During the escort, RD agreed he had thrown a chair and kicked a bin across the room. At this point, he had not been hurt by the applicant. RD agreed that he had turned to push the applicant. The applicant had then put his arm across his chest. At some point, they both fell to the ground and were struggling in a scuffle. 38 When shown the CCTV footage, RD acknowledged he had been pushing the applicant and the applicant was fending him off. RD agreed the applicant had not choked him. However, he had been accidentally poked in the eye, but he had not been hurt. He later complained to one of the staff. RD agreed that he was angry and aggressive towards the applicant and he was not scared of him. In cross-examination, RD said he could not recall if he had been thrown to the ground or whether he had been choked. 39 Mr Andrew Blackwood (who was not required for cross-examination) witnessed the incident, and prepared an incident report and use of force report in which he said the "detainee became abusive and aggressive towards staff and assaulted U/C Brown". Mr Blackwood was interviewed by Mr Madden and told him: DM: OK. From your observation, did it appear that Elwyn Brown had the young person by the throat? AB: No, not at all. Not that I recall anyway. ... DM: OK and do you recall whether you saw any injuries on the young person? AB: No, not that I recall but when we put him in I actually spoke to him I said are you alright, yeah I'm alright. He was you know mostly upset but he said he was fine, I said just calm down we'll come talk to you in a moment. And he said that's fine. And yeah from what I recall he was fine after that, there was no incident. DM: OK from what you described is there any time where you were concerned about the behaviour of other staff that were present? AB: No, not really, no. DM: OK so was there anything that concerned you in terms of the way the young person had been dealt with to that point? AB: Not at all no. As I said, RD's one of our longest clients so he sort of has a good relationship with every, most of the staff members anyway... DM: Yep. AB: ...but no I didn't see anything wrong with how it was handled at all.

40 Mr Stephen Ross was the incident supervisor. He had reported that "the incident appears to have been handled correctly in accordance with Departmental policies and procedures". In his interview he described the applicant in the following way: DM: Have you seen him interact with the young people? SR: Yes. DM: How would you describe his interactions? SR: I'd say disciplined in his, how would I put this, disciplined in his calls that he makes as a youth officer, so there's no, once he's makes a decision that's it, there's no grey area. That's what I'd say. DM: does he interact well with young people? SR: Yes, yeah I thing he does.

His assessment of the incident was: SR: It appears to be a choke hold but it also could be perceived that it's gone to a rear bear hug restraint and he's gone up to the choke through struggle. DM: So I guess it's like a head high tackle, that's not a head high tackle. A chest tackle where the arm comes up and gets into the head? SR: Possibly. DM: Is that a fair analogy? SR: Um, I guess so. ... DM: OK, so having seen that and now having look (sic) at what you wrote in where you record incident appears to be handled correctly in accordance with department policies and procedures. And bearing in mind this is the first time you saw the CCTV, do you still stand by what you recorded there? SR: With the incident appears to be handled correct (sic) accordance with department policies and procedures, from what I read on the reports yes, but looking a the footage if the use of force policy it probably could've been handled a bit better.

The NB Incident: 2 June 2007 41 Like the RD incident, it may be assumed that the respondent accepted the conclusions and findings of Mrs Alder in making the decision to dismiss the applicant. These were: In considering whether Elwyn Brown has engaged in misconduct, I have reviewed all the available evidence from witnesses, documentary evidence and most importantly from the CCTV footage. A number of facts have been established about he incident on 2 June 2007. It is essential to view the CCTV footage in order to fully appreciate the evidence relied upon. A brief chronology of the factual findings is made below: s On 2 June 2007, NB was having breakfast in the Whitten Unit Dining area. He asked permission to leave his seat in order to throw away some milk. He went up to the kitchen area where he spoke to Elwyn Brown, Unit Co-ordinator. s Elwyn Brown was annoyed that NB had come up to the kitchen area. Words were spoken between them and NB then verbally abused the respondent calling him a 'fat cunt' or 'fat fuck'. s The Respondent asked NB to repeat what he said, not because he did not hear him, but because he was angry. There then followed an exchange between the two where the Respondent continued to ask him what he said and then NB repeated the verbal abuse. I make the finding that although NB started the abuse, the Respondent provoked NB into repeating the abuse, thus escalating the confrontation. s The Respondent warned the detainee about his behaviour and warned him that he was going to 'main'. s NB returned to his seat and Camellia Jackson, Youth Officer went over to him and started to calm him down. s At the same time as Camellia Jackson was calming NB, the Respondent walked over to him. He was warned that force would be used if he did not cooperate and go to his room. I am unable to make a finding as to how many times he was warned. s NB did not refuse to go to 'main', but questioned why he had to go. On balance, I find that given more time, he would have agreed to go to his room with Camellia Jackson. s The Respondent repeated that NB had to go to 'main' and NB then got up from his chair. Immediately thereafter, the Respondent grabbed him and held him in a headlock. The Respondent pushed him forcibly towards the window. s At the point at which the Respondent took hold of the detainee, there was no threat being made to the Respondent and the use of force was unnecessary, excessive and unlawful. The method of restraint was therefore unauthorised. The Respondent made an admission that the method he used was not authorised. s Youth Officer, Tika Makisi assisted the Respondent in restraining NB who was, at this stage, struggling and attempting to extricate himself from the Respondent's hold. s The struggle continued in the immediate vicinity of the window. The Respondent was thrown to the ground by NB. s Michelle Sawka, Casual Youth Officer joined Tika Makisi in an attempt to control NB. She attempted to calm him down, but was pushed aside when the Respondent got back up off the ground and barged into the melee. s Michelle Sawka sustained a dislocated thumb when she was pushed out of the way by the Respondent. s I do not find that the Respondent punched NB in the jaw when he got off the ground. Due to the angle of the camera and the positioning of the parties, the CCTV footage does not provide a clear view of where the Respondent's hand is at the relevant time. s Other officers assisted in restraining the detainee and he was removed to his room. I do not find NB to be an entirely truthful witness. I do not accept that he only started swearing at the Respondent when he returned to his seat. There would be no reason for the Respondent to have said to him "what did you say" unless he had said something abusive at the kitchen counter. I do not accept the evidence that the Respondent punched him in the jaw. I note that it is common ground that he had blood in his mouth after he was restrained; however, there is no other reliable evidence that he was punched. I have been impressed by the evidence given by Camellia Jackson and Tika Makisi. In particular, it is clear that there were other non-violent ways of resolving the situation. Both of the witnesses were attempting to diffuse the atmosphere and, had they had more time, matters could have been dealt with in a negotiated manner. I find the Respondent's attitude to be arrogant and unhelpful. Throughout the interview, he denied that he had done anything wrong, despite being shown the CCTV footage. He would not accept that he was the aggressor or that he had forcibly pushed the detainee into the window. He focussed on the number of allegations he faced and the fact that he was being singled out for ridicule. The failure of the Respondent to follow the correct procedures led to the incident escalating unnecessarily and disproportionately. In the normal course of events, the Respondent should have attempted to diffuse the situation by either ignoring the verbal abuse or dealing with it later on as a minor misbehaviour or try to get the detainee to leave the area voluntarily. The Respondent did not seek the assistance of any other staff member and embarked on this course of action single-mindedly. The use of force, despite warning given, was unnecessary and was not the only option left to deal with the situation. I do not accept the Respondent's version, in interview, that he felt threatened by detainee NB immediately prior to pushing him. It is clear from the footage that Camellia Jackson is calming him down, but she is not given sufficient time to continue in this way before the Respondent intervenes and destroys any chance of a peaceful resolution to the incident. It is noted that the Respondent referred to Camellia Jackson's actions in going over to the detainee in this way " So why did she think that she had, had the option to come over there and interrupt? ' The Respondent paid no regard to the potential hazards of provoking a confrontation in a dining area. There were 15 detainees, cutlery, chairs and any number of opportunities for weapons to be used. The Respondent placed other staff members and detainees in an unsafe environment, thus failing to work safely to protect the health and safety of others in breach of the OH&S procedures. The Respondent did not consider the health and safety of Michelle Sawka when he pushed her forcibly out of the way at a time when she was assisting in the restraint of NB. I make the observation that the use of force could have been avoided altogether had Elwyn Brown dealt with the initial minor misbehaviour in a professional and appropriate way, instead of inflaming the situation by asking NB to repeat the verbal abuse. This disproportionate reaction by the Respondent shows a lack of professionalism and calls into question the judgement in assessing and dealing with detainees who are exhibiting difficult behaviour. It is of concern that, as a Unit Coordinator, the Respondent has shown little regard to proper procedures. It is noted that the injuries that NB sustained during the restraint could have been avoided had the Respondent followed the correct procedures for dealing with minor misbehaviour and managing difficult behaviour. Whilst it is acknowledged that it is easy to criticise someone's behaviour with the benefit of hindsight, the investigation finds that the Respondent should have had the foresight to anticipate that matters could escalate to a point where the situation was out of control. 42 In addition to the applicant, Mrs Alder interviewed the following persons during her investigation: Ms Michelle Sawka - Casual Youth Officer Ms Camellia Jackson - Youth Officer Ms Leilani Tonumaipea - Unit Manager Mr Tika Makisi - Temporary Youth Officer NB - Detainee 43 Only Ms Jackson and NB gave evidence in the proceedings.

The applicant's version of events 44 The applicant said that he had had no issue or problem with NB in the short time he had been in Whitten Unit (two to three weeks). He was aware of NB's background and of his high security (A1(B)) classification. He said he was aware that NB did not like to follow instructions and had a history of being abusive to Youth Officers and other detainees. 45 The incident occurred during breakfast when the applicant and three other Youth Officers were on duty. The applicant said that earlier that morning Youth Officer Camellia Jackson had been talking on the phone and refused his request to assist in releasing the detainees from their rooms for breakfast. She had also refused his request to work in the kitchen. 46 The applicant described the incident as follows. NB came to the counter of the scullery to pour some left over milk down the sink. When the applicant asked him if he had permission to do so, (as the detainees are not permitted to move around the dining room), NB replied that he just wanted to get up. As he walked away, the applicant heard NB mumble something and he asked him what he had said. NB yelled back "you fat fuck". The applicant then said, "what did you say?" and he said it again. The applicant replied "okay, well you're going to have to go to your room". NB walked back to the table and sat down. Ms Jackson intervened and also told NB to go to his room. The applicant approached him and said "come on N, you're going to your room". However, he refused and said "No, what for". The applicant then said "N, if you don't go, I will have to use force to take you to Main" (an isolation room - which was described as a concrete room with a toilet). The applicant said that when he moved behind NB's chair, NB suddenly jumped up and adopted a boxing stance, as if he intended to throw a punch. The applicant responded by grabbing NB's left hand and twisting it behind his back to restrain him. A struggle ensued and the applicant was thrown to the ground, injuring both his knees. NB was eventually restrained by four other Youth Officers, handcuffed and taken to 'Main'. 47 The applicant maintained that, at no time, did he punch NB in the jaw or anywhere else, nor did he put NB in a headlock. He described the pushing towards the window as NB falling back during the struggle. The applicant said that, at no time, did he take NB 'down'. He merely held him down until assistance arrived. When taken to the CCTV footage, in oral evidence, the applicant disagreed that he could have received the same level of assistance had he pressed his duress alarm before grabbing NB and then pinning him to the ground. 48 In cross-examination, the applicant rejected the proposition that Ms Jackson was handling the situation and that there was no reason for him to move in. He disagreed that it was policy to seek assistance at the first indication of any difficulty with a detainee. He denied escalating the situation by asking NB to repeat what he had said. He disagreed with the suggestion that he could have ignored NB's swearing at the time and written up a minor misbehaviour report later. 49 The applicant was shown his hand written notation during Mrs Alder's interview in which he had said that the incident had occurred because NB had challenged his authority. He said he had given NB two warnings, another officer had given him a warning and he still refused to go back to his room. He then decided NB was to go to 'Main', as a punishment, according to his Management Plan. 50 It was Mr Reitano's contention that the CCTV footage indicated that when NB stood up, he raised his left arm as if to "load a right cross" (punch). When questioned about this, the applicant said he believed that NB was intending to hit him and he could not have stepped back to avoid being hit. He denied taking a pre-emptive strike by grabbing NB and pushing him towards the window. 51 Despite Ms Jackson's view that NB was getting up to go to his room, the applicant stated that he believed Ms Jackson had undermined his authority. The applicant denied that he was in breach of policy, which prescribed force as a last resort. While the policy requires keeping verbal interaction going as long as possible, the applicant said he had spoken to NB for as long as he could and after he had been abused twice. The applicant denied the situation could have got out of hand and involved other detainees in the dining room as he believed the other detainees were all well behaved.

52 The applicant did not acceipt that he should have called additional staff to assist him in escorting NB to his room or to 'Main'. He denied that he had not exhausted all efforts at verbal interaction before using force. He said the only restraint he had of NB was holding his arm. 53 The applicant told Mrs Alder that some of the allegations against him were fabricated. For example, it was not true that he had hit NB in the jaw, or that NB had hit him three times in the stomach. However, he recognised that Mrs Alder did not find the allegation of him hitting NB in the jaw as sustained. The applicant conceded that he had told Mrs Alder that he did not feel he should be put under any pressure about how to restrain detainees.

Witnesses called by the respondent 54 In her evidence, Ms Camilla Jackson denied that the applicant had asked or instructed her to work in the scullery. In fact, she had expected to do so, but the applicant had taken that position himself. In cross-examination, she insisted the applicant had not asked her three times to get off the phone that morning.

55 Ms Jackson said that when she approached NB she put her hand on his shoulder and spoke to him for a few seconds. She told him it was best if he went to his room. She was not aware the applicant was behind her at that point. She had initially thought that what NB had said to the applicant was a joke, but then realised it was not when the applicant approached NB. When NB stood up, the applicant was standing beside her. He then pushed NB towards the window with a heavy lunge and he ended up in contact with NB's neck. Ms Jackson said she had not noticed NB doing anything when he stood up and he was not aggressive or agitated. Ms Jackson could not recall NB swinging around towards the applicant when he got up from the chair. She did not see him take any step forward. The next thing she saw was NB being pushed towards the window. However, she agreed NB must have turned around to be pushed front on by the applicant. 56 Ms Jackson said she did not see NB raise his right arm or see where he had positioned his feet. When shown the CCTV footage, Ms Jackson agreed the applicant had been behind her, not to her right side. Ms Jackson also acknowledged that she could see NB's arm "moving up". 57 In cross-examination, Ms Jackson rejected the suggestion that she was just making up her evidence as she went along. She claimed to have a good recollection of the incident and of her interview with Mrs Alder. Ms Jackson said she only saw NB stand up, turn towards her, and be pushed towards the window. She was also looking around the room at the time because 14 other detainees were there and things could have got "out of hand". She stated that until the applicant came out of the scullery, she believed the abusive language was a bit of banter and fun. From her experience, she knew the difference between swearing in an aggressive way and as part of normal conversation. Ms Jackson said she had not been aware that the applicant had told NB to go to his room or to 'Main'. At that point, all she was aware of was the swearing going on between them. 58 Ms Jackson denied that she had attempted to be misleading in her written incident report in order to paint the facts badly for the applicant. She claimed no ill feeling towards him and had counted him as a friend. In her handwritten report she said that NB stood up when he saw the applicant coming quickly towards him. However, in her typed statement, she said she did not know why NB had stood up. She did not see any inconsistency between the two statements. 59 In re-examination, Ms Jackson claimed she had been anxious to get NB out of the dining area because the applicant was agitated and angry and had been screaming at him across the room. At that point, NB had not appeared to be aggressive. 60 Mr Reitano referred to the witnesses who provided statements or were interviewed during the investigation and drew the Commission's attention to a number of specific parts of the statements. 61 Mr Tika Makisi was in the vicinity of where the incident took place. He filled in an incident report in which he described the incident this way: Whilst supervising detainees during breakfast routine, detainee B asked to get up and went to counter to talk to U/C Brown. As he walking back to his table he became abusive towards staffs. Detainee B was given severals warnings to stop abusing staff but refused to do so. He was then directed to move to his room in a couple occation but still refused to do so. He was then directed force will be used if did not moved. I Y/O T Makisi and UC Brown then restrained detainee B, at some stage U/C Brown sliped off and I Y/O Makisi restrained him until Y/O Cassidy and Y/O Harrison arrived. Then he was hand cuff and moved to main. (sic)

62 In his interview with Mrs Alder, Mr Makisi said: I, I did, because well where he come, he's coming on my side. I didn't see. All I know that when he come in, N was stand up and my interpretation when I look, N is, the way that he move, he stood back, it's, it's like, I don't know, I used to be a young boy and I, I know they don't move like that. When I, my interpretation of that, when N move back his right foot or something and he turned his body towards Elwyn, it's the possibility of throwing a punch or something. But he didn't do that intentionally. And when they call him to the, when Elwyn grab him on the upper torso and then push him, they all both, with that force, they both went straight into the wall. 63 Ms Michelle Sawka assisted in restraining NB and broke her thumb in the scuffle. In her incident report, she said: Detainee NB returned to his seat continuing to verbally abuse U/C Brown. He was given several warnings regarding his behaviour and refused to follow direction. U/C Brown instructed him to move from the dinning (sic) room to Main and warned him if he didn't comply then necessary force would be used.

She confirmed this account in her interview with Mrs Alder. 64 Detainee NB was subpoenaed to give evidence. He is presently detained at Kariong Juvenile Justice Centre. NB said that he told the truth in the statement he gave to Youth Worker Rebecca Francis and in his interview with Mrs Alder. When shown the CCTV footage of the point where he had stood up from the table, he said he had done so, in order to go to 'Main'. 65 In cross-examination, NB said he had known the applicant for about three to four years and had never had a problem with him. They had got on pretty well and he regarded him as a pretty decent person. NB agreed there had been previous incidents arising from his own aggressive behaviour. On one occasion, he had tried to escape from detention with three or four other detainees. 66 Concerning the incident, NB said everything was fine until he had got up to tip milk in the sink. Even though he had permission, he was queried by the applicant. He then called him a "fat fuck" and repeated it loudly when he sat down so he would hear it. He accepted everyone in the room had also heard it. He agreed he swore maybe half a dozen times, including calling the applicant a "fat cunt". The applicant had twice asked him to repeat what he had said and then told him to go to 'Main'. He agreed he was annoyed when Ms Jackson said "just go to 'Main'". As he got up, he was tackled into the window by the applicant. NB agreed that when he stood up, the door to 'Main' was in front of him and to the left and the applicant was behind him. While the applicant obviously thought he was getting aggressive, NB denied 'shaping up' to him or forming a fist. He did not remember raising his left hand in a blocking action or shaping up with his right. When shown the CCTV footage, NB said that when played at normal speed, it shows him standing up, turning quickly and the applicant immediately rushing at him. The applicant put his arms on him and pushed him towards the window. NB said that if he had really refused to go to 'Main', he would have remained seated. He had got up to pick up his stuff, but did not have time to, because he was pushed towards the window. 67 Asked if he was intending to take the applicant on, NB said "why would I take someone on? Look how big he is and look how small I was". He agreed he said afterwards that it took seven officers to restrain him. He said he became more aggressive when he was "chucked into the wall". When the applicant fell to the floor in the scuffle, everyone was laughing and this probably "geed him up more". He said when the other officers arrived, the applicant accidentally hit him in the jaw. He accepted that this was understandable and not deliberate, as the applicant was trying to restrain him. 68 NB said his evidence was no different to what he had said in his interview with Mrs Alder. The applicant had "started something and he was going to finish it". It took seven officers to restrain him because he was fighting back all the time. However, he said he did not mean for anyone to get hurt and he had written a letter of apology to Ms Sawka as a result of her broken thumb. NB stated that the incident was just "one of those things". All the officers were good workers; just doing their job.

For the applicant 69 Mr Reitano crystallised the issue to be determined by the Commission by posing the question - did the applicant use excessive force in the way he handled the incidents involving RD and NB? In his opening submission, Mr Reitano said that if the Commission accepted that the applicant had assaulted the detainees, then his 15 year career of working with children would be over. Mr Reitano submitted that the Commission would accept that the use of force by the applicant was reasonable in circumstances where the detainees were the aggressors, had been abusive, violent and uncooperative. 70 Mr Reitano said the evidence disclosed no striking or punching by the applicant and no injuries to the detainees. Moreover, at least three experienced officers had formed the view that the use of force was reasonable in the circumstances. The applicant had followed the correct procedure in warning the detainees of the consequences of not following directions. 71 In respect to the NB incident, Mr Reitano submitted that the applicant was faced with a position where he was about to be punched by the detainee and had grabbed him in a 'bear hug' position. The CCTV footage was not entirely helpful as to whether NB was pushed into the window. However, NB had been abusive, he had a history of violence and the incident had happened very quickly. 72 In further submissions, Mr Reitano said that use of force could be used where a detainee did not obey a direction and had been warned of the consequences. The applicant had complied with these mandatory guidelines. Mr Reitano said that the evidence disclosed that there was no holding of RD's head or neck by the applicant. The CCTV footage was unclear and while Mr Cheney had said it had happened, he had later conceded that he may have been mistaken. Mr Reitano said the applicant had control of the situation and had only a few seconds to react in what could have been a variety of different ways. 73 In respect to the NB incident, Mr Reitano noted that the regulation itself provides for the use of force to protect oneself. NB had been acting very aggressively, in a dangerous environment where chairs and bins were being kicked around. The evidence was clear that NB was not intending to follow directions and had stood up suddenly and had "loaded a right cross" with the intention of punching the applicant. NB had not intended to pick up his mess and then head to 'Main'. The CCTV footage indicated that no punches were thrown by the applicant; rather, he is seen holding NB in order to restrain him. 74 Mr Reitano submitted that the two investigators (unlike the Commission), did not have the benefit of cross-examination of the witnesses and the testing of their evidence. In respect to Ms Jackson's evidence, Mr Reitano said that her calling the applicant a liar, her troubled demeanour and her different recollections to others, would give rise to the Commission treating her evidence with the utmost caution. She had conceded that she did not know everything about the incident and had not been involved in it from the beginning. It was extraordinary that she did not believe that the abuse of NB towards the applicant was serious. Mr Reitano said her evidence - which was designed to discredit the applicant - may have been an attempt to conceal her own complicity as to what had occurred. 75 As to Mr Cheney's evidence, he had accepted it had not been possible for him to see what he had earlier claimed to have seen. Yet, Mr Madden had relied on Mr Cheney's version of the incident in that he said he saw an arm around RD's throat or neck area. This was plainly wrong. 76 Mr Reitano rejected the respondent's case that the applicant had "a complete contempt for the department's use of force guidelines". These were guidelines only - for a very good reason. There are a number of scenarios and circumstances which might require a variety of responses. It was absurd to suggest that force be used only as a last resort, in circumstances where an officer is about to be hit. Mr Head had given evidence about approved techniques and agreed that they may be departed from, depending on the circumstances. 77 Mr Reitano observed that the respondent described the applicant as arrogant. However, even if he was, that could be no basis for dismissing him. Mr Reitano put that in examining the evidence of all the witnesses, they all gave a broad imprimatur to the way the applicant chose to deal with both incidents. Mr Reitano said it was curious that the investigators were invited to make findings, rather than to investigate. However, the investigators made a fundamental mistake in that they gave no weight to witnesses with long experience and who had said they did not see anything wrong with the way the applicant had handled the incidents. That was not to say that the applicant did everything correctly. However, the applicant's reactions were within the range of reasonable responses. 78 Mr Reitano submitted that the conduct alleged in this case requires findings to be made on a higher standard than the mere satisfaction, on the balance of probabilities (the Briginshaw test (Briginshaw v Briginshaw (1938) 60 CLR 336)). It would be necessary to establish whether the applicant entertained a reasonable belief that his conduct was necessary to defend himself. The applicant may well have thought that NB was preparing to attack him. A second question arises, Mr Reitano submitted - was there a reasonable possibility that the applicant's response was reasonable in the circumstances?: See R v Katarzynski [2002] NSWSC 613. 79 Mr Reitano put that the Commission would be cautious of accepting what can, and cannot be seen, on the CCTV footage. It is not continuous film, but rapid photographic images. Where there is any doubt in respect to the footage, then the applicant should be given the benefit of that doubt. 80 The applicant sought reinstatement and appropriate orders as to back-pay and continuity of service. For the respondent 81 Ms Anderson submitted that there were three erroneous propositions of law put by Mr Reitano. Firstly, the decision in Katarzynski was a criminal case, and therefore can have no relevance to these civil proceedings. 82 Secondly, the investigators were entirely correct in applying the civil standard of proof in determining whether the applicant had engaged in misconduct. It is the same standard to be applied by the Commission. 83 Thirdly, it was said that the use of force guidelines did not bind the applicant. This was incorrect. The applicant was obliged to follow the lawful directions of his employer. However, Ms Anderson conceded that, of course, there may be dire circumstances which make it unreasonable to comply with the guidelines; but there is an obligation on employees to comply with the Department's policies and procedures, otherwise the system would become unworkable. 84 Ms Anderson referred to the provisions in s 41 to s 53 of the Public Sector Employment and Management Act 2002 in respect to officers in the Public Service and then cited Hardcastle v Commissioner of Police (1984) 53 ALR 593 at 597, in support of her submissions. 85 Ms Anderson submitted that the applicant demonstrated a complete contempt for the Department's Use of Force guidelines and referred in particular to the following: 3.1 Principle two - "Staff exercise a high degree of integrity and common sense when they are in situations where physical contact is likely to occur with clients". 3.2 Principle three - "Staff remain alert to the fact that many clients have a history of physical and/or sexual abuse and for this reason they must carefully consider whether physical contact is appropriate and if so, how and by whom contact is made". 3.3 Guideline 1 - "Force should always be an option of last resort". 3.4 Guideline 3 - "On every occasion an officer must use no more force than is reasonably necessary in the circumstances, and the infliction of injury on the detainee is to be avoided if at all possible". 3.5 Guideline 4 - "Where time and circumstances allow, verbal interaction with a client is to be prolonged for as long as possible, and a variety of verbal strategies are to be exhausted by a variety of staff (especially staff with a pre-existing good relationship with the client), before reasonable force is used as a last resort". 3.6 Guideline 5 - "When considering the use of force, a staff member is to give weight to his or her own safety, and that of their team". 3.7 Guideline 8 - "If possible, staff are to wait for extra staff to assist with the restraint of a client. There are to be a minimum of two staff present when force is used and this is to be performed under the supervision of a supervising officer, e.g. Unit Manager, Unit Coordinator. The Unit Manager, Unit Coordinator must carry handcuffs during their shift". 3.8 Technique - "A method that restrains the detainee in accordance with approved departmental restraining techniques must be used". 86 Ms Anderson noted that the applicant now acknowledged that he pushed RD. It is clear from the CCTV footage that the applicant was pushing and that RD was going backwards - the plain act of an aggressor. She emphasised that there was not one iota of remorse from the applicant that he had done anything wrong. 87 Ms Anderson argued that the submission that the applicant was faced with making spur of the moment decisions was not supported by the CCTV footage in respect to the RD incident. He had about 50 seconds to work out how to handle the situation to avoid a dangerous escalation, and chose to react aggressively. Ms Anderson rejected the criticism of Ms Jackson of being a 'busy body' as she was actually trying to defuse the situation. The fact Ms Jackson was 'on edge' during her evidence, does not mean she was a liar. When shown the CCTV footage, she had made concessions. This was the hallmark of an honest witness. Ms Jackson accepted she had been wrong when she had thought NB's abusive language was merely banter. 88 Ms Anderson said in both incidents the applicant used the excuse of self-defence, yet with NB he made a pre-emptive rush at him and with RD a pre-emptive grab. In the NB incident, it was clear that the applicant had plenty of room to step back and avoid being hit. Ms Jackson was attempting to calm NB down and he was not going to involve her in any melee in which she might be hurt. It was NB's evidence that he had barely stood up before he was rushed by the applicant. It was a nonsense that NB intended to hit the applicant at that point. Ms Anderson observed that if he had really wanted to be aggressive, one would wonder why he would have sat down in the first place.

89 RD's evidence was consistent with the CCTV footage and what he had told Mr Madden about being grabbed. The applicant claimed he asked Mr Cheney to assist him, which Mr Cheney denied. It was said that there was insufficient time to press the duress alarm. However, the applicant had at least 40 to 45 seconds to seek assistance before he grabbed RD. 90 Ms Anderson submitted that the Commission would find the applicant's misconduct proven and not interfere with the respondent's decision to dismiss him. In reply 91 Mr Reitano submitted that he did not suggest that the Commission was bound to adopt the approach in Katarzynski. Rather, the question of whether reasonable force was used can be assessed by reference to the two step analysis in that case. Ultimately, it is a question of logic and commonsense. 92 As to the Briginshaw test, it would be laughable to suggest that the Commission would have regard to what RD told Mr Madden if it was different to what he said on oath in these proceedings. He said in his evidence that the applicant did not go anywhere near his neck or throat. The CCTV footage was inconclusive, and even Mr Cheney had accepted that he had been mistaken. 93 Mr Reitano put that Ms Anderson completely misunderstood Mr Head's evidence as to the Use of Force Guidelines. He had said the guidelines were to assist - not to mandate. Further, it was nonsense to suggest there would be anarchy if they were not applied. 94 Mr Reitano rejected Ms Anderson's submission that the applicant had time to consider his responses. The only time RD became aggressive was immediately before the applicant needed to grab him. The time NB became aggressive was immediately after he stood up and 'faced up' to the applicant. It was misleading to suggest that either incident occurred over an extended period of time. 95 Mr Reitano said that, at no time, had he suggested Ms Jackson was a liar. Rather, the Commission would not act on her evidence because other evidence was more credible and reliable. At the very best, she was mistaken. 96 As to the roles of Messrs Blackwood, Valenzuela, Cheney and Ross, Mr Reitano said he had never suggested they were witnesses to the whole incident. However, as experienced officers, they had all expressed the opinion that the applicant's response was within the ordinary range of responses that could be expected. 97 Mr Reitano said there could be no comparison to the concessions made by Mr Cheney and Ms Jackson. Mr Cheney did not call anyone a liar, but quite properly conceded his error. However, Ms Jackson's evidence should be treated with the utmost care. CONSIDERATION 98 This is a case which involves the summary dismissal of a relatively senior employee of the Department of Juvenile Justice with five years experience and 15 years experience of working with young people. The applicant was found by two independent investigators, in respect to two separate incidents, to have used excessive force and unauthorised methods of restraint on young detainees in his care. Mr Reitano invites the Commission to find that the use of force by the applicant, in both incidents, was reasonable in all the circumstances and his dismissal was 'harsh, unreasonable and unjust' within the meaning of Pt 6 Ch 2 of the Act. 99 In my opinion, the seriousness of the allegations against the applicant cannot be overstated. On the other hand, nor can the implications for the applicant of his dismissal. As a result of the adverse findings by the investigators, the applicant has been reported to the Commission for Children and Young People and the Ombudsman. It must be said, that his prospects of future employment in child related employment are likely to be very limited. 100 In Najdov and Macedonian Australian Welfare Association of Sydney Inc [2004] NSWIRComm 101, I had cause to consider the effect summary dismissal may have on a dismissed employee. At par [183] and [184] I said: 183 It is obvious that the summary dismissal of an employee for misconduct can have serious and sometimes long term implications for the employee. It is for this reason that the Full Bench in Franklins Ltd v Webb reminded employers of the need to be fully satisfied that the misconduct had been committed and that the conduct justified dismissal. The Full Bench said at p261: We consider that the significance of decisions by employers to dismiss employees in circumstances such as occurred here cannot be over-emphasised. Mr Webb is a man of advancing years with long service and an unblemished employment record. The consequences for him of the employer's decision to dismiss are considerable - not only pecuniary considerations arise but also issues such as loss of self-esteem and confidence, difficulty in obtaining future employment and loss of social standing; tremendous upset upon the individual concerned and his family, with serious consequences quite unanticipated at the time of dismissal, must also be taken into account. It is considerations such as those which seem to us to have motivated the Commission in Court Session to remind employers of the need to be fully satisfied after proper investigation that the employee has committed the conduct to support dismissal.

184 In Hill v Department of Juvenile Justice [2000] NSWIRComm 128, serious allegations concerning the supply of drugs to juvenile offenders, by a person in charge of their welfare were the alleged reasons for the employee's dismissal. The allegations had no basis in fact and could not be proven. I said at para 62-63: In Standley v Electronics Boutique Australia Pty Ltd , IRC 4516 of 1998, 18 March 1999, I considered the serious implications for an employee where allegations of misconduct are made. I said at p14: It hardly needs to be said that summary dismissal is the most serious form of sanction an employer can take against an employee. It can, not only serve as a means of punishing the employee for transgressions in the then existing employment relationship but can, and often does, jeopardise and diminish the employee's future employment prospects.

A finding by this Commission that a summary dismissal was justified, is a most serious matter which may unhappily burden and grievously harm an employee for years into the future. See also my discussion of this matter in Thornton and Happy Hours Pre School Kindergarten , IRC5333 of 1999, 29 July 1999 and Taggart and Bell Sports Australia , IRC5224 of 1998, 10 September 1999. The serious unproven allegations made against the applicant have gravely impugned his reputation. Left to stand unchallenged, these allegations would seriously hamper his future employment prospects, damage his reputation and more than likely, deleteriously effect his well being and that of his family. It is the Commission's duty - indeed, its obligation - to correct the injustices the applicant has so plainly suffered. I unreservedly intend to do so. See also my comments in Standley and Electronics Boutique Pty Ltd (unreported, Sams DP, IRC98/4516, 18 March 1999) ; Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division, on behalf of Bowman, and City of Sydney Council and Staal and Tupene and Health and Research Employees' Association of New South Wales (on behalf of Nagy and Others) and Western Sydney Area Health Service [2004] NSWIRComm 27. 101 The Commission has had a number of occasions since that case to emphasise the above considerations in matters involving the summary dismissal of employees of the Department of Juvenile Justice: See Perks and Petroski and Department of Juvenile Justice [2005] NSWIRComm 458 and Young and others v Department of Juvenile Justice [2007] NSWIRComm 142. These considerations are apposite to the outcome in this case. Was the alleged misconduct of the applicant proven on the balance of probabilities? 102 There is no argument that the onus of proof in this matter rests on the respondent and that the respondent must not only allege misconduct, but prove the allegations against the applicant. In a recent appeal decision of this Commission, the Full Bench had cause to consider a set of circumstances not dissimilar from those faced by the Commission in this case. In New South Wales Nurses' Association (on behalf of Colin Prior) v South Eastern Sydney & Illawarra Area Health Service (2007) 164 IR 225, the Full Bench said at par [11]: 11 The Court of Appeal in Samad v Public Service Board (New South Wales) (1983) 5 IR 464 at 466 said that it is a well established and well known rule of conduct that an assault by an employee of a person under institutional psychiatric care will not be tolerated and that employees who breach this requirement will not be retained in employment. We consider that approach to be correct and applicable in cases such as the present. However, it is also undoubted, and consistent with well established principle, that where an allegation of misconduct is raised as a defence or justification for a particular course of action by an employer, such as in summarily dismissing an employee, then the legal burden in an evidentiary sense to establish the allegation shifts from, in this case, the Union to the employer: see Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70; Budlong v NCR Australia [2006] NSWIRComm 288 at [86] - [87] and [100]; Humphries v Cootamundra Ex-Services and Citizens Memorial Club Ltd (2003) 128 IR 37 at [86]; National Union of Workers, NSW Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 at [35]; Austin v NF Importers Pty Ltd (2005) 146 IR 113 at [16]. 103 There was some debate between Counsel, which ultimately dissolved, as to the civil standard of proof in matters such as this. It is plain enough that the civil standard of proof is on the balance of probabilities in unfair dismissal proceedings: See Four Sons Pty Ltd v Sakchai Limsiripothong (2000) 98 IR 1. However, the very serious allegations made here, including what amounted to a criminal allegation of assault, must place the evidentiary burden at the upper end of the scale. I refer again to the above decision where the Full Bench said at paras 13 and 14: 13 Although it must be accepted that the respondent carries the onus to be discharged according to the ordinary civil onus, on the balance of probabilities, the very nature of the issues involved and the consequences of a decision to summarily dismiss an employee, required the respondent to make out its case in a convincing way. It has been long established that the dicta laid out in the High Court of Australia in Briginshaw v Briginshaw (1938) 60 CLR 336, should apply. It is timely in such circumstances, in our view, to once again set out the observations of Dixon J (as he then was) in Briginshaw at 361 - 363:

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. ...

This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues ... But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected. (emphasis added). 14 In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR at 449 - 450, Mason CJ, Brennan, Deane and Gaudron JJ explained the above passage from Briginshaw this way: The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. (emphasis added). 104 In this case, it could not be said that the respondent acted hastily or capriciously in respect to the investigation of both incidents. In my view, the inquiries conducted by Mr Madden and Mrs Alder were thorough, exhaustive and unbiased, and as properly conceded by Mr Reitano, were not able to be attacked on procedural unfairness grounds. Both investigators made findings on the correct test - the balance of probabilities - and both inquiries had regard to interviews by various witnesses to the incidents, including the applicant and both detainees; albeit obviously not on oath. 105 After viewing the CCTV footage on a number of occasions and having regard to the totality of the evidence given in these proceedings and, save for one finding involving the RD incident, I am unable to come to a contrary conclusion to either Mr Madden or Mrs Adler. The exception is that I cannot conclude, as Mr Madden did, that the applicant choked RD. I accept RD's evidence that he had not been choked and Mr Valenzuela and Mr Cheney's evidence that they could have been mistaken as to where the applicant's arm was. In addition, the CCTV footage is inconclusive on this point. Mr Madden clearly accepted NB's claim of being choked and found accordingly. Nevertheless, I do not consider my findings to the contrary to be fatal to Mr Madden's overall conclusions. Bearing that in mind, I would now make the following specific findings in respect to the two incidents. RD Incident - 14 April 2007 · RD had abused staff, including the applicant, after he was refused permission to make a phone call; · the applicant warned RD that if he continued his behaviour he would be confined to his room; · RD continued his aggressive behaviour and when the applicant directed him to his room, RD pushed the applicant; · the applicant responded by pushing RD towards the Unit door; · in the Unit, RD continued his aggressive behaviour and he threw a plastic chair across the dining room; · the applicant took hold of RD in a 'bear hug' like stance, chest to chest, and proceeded to march him backwards to the wrong end of the Unit; · when RD protested his room was in the other direction, both RD and the applicant continued pushing each other and exchanged words; · the applicant did not ask Officer Cheney for assistance or call for assistance by the duress alarm; · as the exchange continued, the applicant spun RD around, held him from behind by putting his left arm over RD's left shoulder, most probably with his arm around his upper chest near his throat; · RD threw at least two punches at the applicant's head; · in the scuffle, RD fell to the ground and the applicant held him on the ground; · two other officers arrived to assist in moving RD to his room; and · the incident lasted 1 min 10 sec, from the time the applicant entered the courtyard until RD was placed in his room. 106 The Commission has no doubt that the applicant acted aggressively for the majority of the duration of this incident and that he used excessive force to restrain the detainee. Further, the applicant did not seek assistance from another officer present or seek assistance from other officers, by resorting to his duress alarm. The applicant's actions were in breach of the Department's guidelines and policies of which an employee of this man's experience and seniority would have been aware. I do not accept (if it be a defence) that the applicant did not receive regular refresher training. The issues here are fundamental to the duties of juvenile justice officers. 107 While I readily acknowledge and agree with Mr Head's evidence that the Department's guidelines are designed to assist officers and are not mandatory, it does not necessarily follow that the applicant's conduct was a reasonable response, in the circumstances that he perceived them at the time. In my opinion, from any objective viewing of the CCTV footage, it could not be considered that the applicant's conduct was a reasonable response in the circumstances. 108 As to the other claims of self-defence, I have difficulty with accepting this proposition given the following:

a) the relative disparate size of the two persons involved;

b) the degree of aggression displayed by the applicant over the time of the incident;

c) the various holds the applicant had on the detainee; and

d) the proximity of another officer (Mr Cheney) and others in the vicinity of the incident. NB Incident - 2 June 2007

· NB approached the scullery bench during breakfast where the applicant was working; · a verbal exchange took place in which NB called the applicant a "fat cunt" or a "fat fuck"; · the applicant insisted NB repeat what he said, which he did; · the applicant warned NB that he would be going to 'Main'; · NB walked back to his seat and sat down and Youth Officer Camellia Jackson went over to him, placed her hand on his shoulder in an attempt to calm him down; · within a few seconds the applicant approached, and words were exchanged; · the applicant insisted NB go to 'Main' and warned him force would be used if he did not; · as NB stood up, the applicant rushed him, grabbed him and either pushed him or his weight propelled him towards the window. I cannot be certain if NB 'shapes up' to the applicant as this section of the CCTV footage is far too short and inconclusive. The reactions of the applicant and NB are almost instantaneous; · another Youth Officer, Tika Makisi, assisted the applicant to restrain NB. There was a scuffle and the applicant appeared to lose his balance and fell to the ground under the window; · another Youth Officer joined in an attempt to calm NB down; · NB was eventually restrained and removed; and · the incident lasted 1 min 40 sec, from when NB approached the scullery until he was escorted to 'Main'. 109 The Commission is satisfied that the applicant used excessive force on NB when he charged him after NB stood up. It is clear Youth Officer Jackson was attempting to calm him down, immediately beforehand. I am further convinced that the applicant's handling of NB's abusive language was inappropriate, in that he encouraged him to repeat the words used when he knew precisely what had been said and the abuse could have been ignored and written up later. 110 The applicant should have sought assistance if he believed it was necessary to send NB to 'Main', but rather took matters into his own hands. The applicant's actions were not in accordance with the Department's policies and procedures in that he used excessive force unnecessarily. 111 I do not accept that the applicant could have perceived that NB was intending to hit him when he stood up from the table. Even if this had been so, there was enough room for evasive action, particularly as it was likely to involve Ms Jackson, who was very close by. Moreover, I accept NB's evidence that if he had refused to go to 'Main' he would have remained seated. 112 It follows from these findings, that I accept that the respondent has discharged the onus it bears in proving the applicant's misconduct in respect to both incidents. Does the applicant's conduct constitute a repudiation of his contract of employment? 113 Section 43 of the Public Sector Employment and Management Act defines the meaning of misconduct (see Schedule 1). There is no reference in the definition to the more commonly used expressions of serious and / or wilful misconduct. However, in my opinion, for an employee to be summarily dismissed for misconduct, (as is the case here), there must be demonstrated conduct of such a serious or wilful nature as to strike at the very heart of the ongoing relationship between the employer and the employee. It has often been described as conduct amounting to a repudiation or renunciation by the employee of his / her employment contract. 114 Hungerford J in Day v Lumley Life Limited (1999) 90 IR 70, described the employment relationship as a serious contractual relationship involving rights and obligations on both parties. His Honour said: The employment relationship, I have to say, is a serious relationship with important incidents for both parties to it. It is a consensual relationship based on contract and with respective rights and obligations. It should not, I think, operate, or to be so seen, in practice in a way which permits one party, here the employer, to act in a one-sided manner contrary to the legitimate expectations and understandings of the other party, here the employee, and particularly where such action damages or detrimentally affects the career interests of the employee. Employees have a corresponding duty to act with fidelity and good faith. 115 In Concut Pty Ltd v Worrell and Another (2000) 103 IR 160, McHugh J discussed the ordinary relationship of the employer and employee at common law: The ordinary relationship of employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and mutual trust. At common law: "[c]onduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal. ... [T]he conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises." In the present case, the findings at trial went beyond mere uneasiness as to the future. They necessitated, or at least warranted, a conclusion that the "confidence" essential to the relationship of employer and employee had been destroyed. Instead of pursuing the interests of the company and its shareholders, the employee had pursued his own private interests. Not only was the employee in breach of his duty of fidelity and trust owed to the employer, he had remained in breach of that duty to the date of the trial. Until that time he had not accounted for the benefits wrongly appropriated by him. Indeed, he had denied any wrongful appropriation. The issue so tendered at the trial was determined against the employee. He was then subject to the employer's counter-claim for an order to make a refund. Such order was duly made at trial. It was not contested on appeal. Given his senior status in the company's service and the nature and extent of the misconduct disclosed in the evidence and accepted by the primary judge, it was open to him to find that the employee had undermined the confidence essential to the ongoing relationship of employment. Prima facie, this had afforded a legal justification for the employee's summary dismissal.

It is, however, only in exceptional circumstances that an ordinary employer is entitled at common law to dismiss an employee summarily. Whatever the position may be in relation to isolated acts of negligence, incompetence or unsuitability, it cannot be disputed (statute or express contractual provision aside) that acts of dishonesty or similar conduct destructive of the mutual trust between the employer and employee, once discovered, ordinarily fall within the class of conduct which, without more, authorises summary dismissal. Exceptions to this general position may exist for trivial breaches of the express or implied terms of the contract of employment. Other exceptions may arise where the breaches are ancient in time and where they may have been waived in the past, although known to the employer. Some breaches may be judged irrelevant to the duties of the particular employee and an ongoing relationship with the employer. But these exceptional cases apart, the establishment of important, relevant instances of misconduct, such as dishonesty on the part of an employee like Mr Wells, will normally afford legal justification for summary dismissal. Such a case will be classified as amounting to a relevant repudiation or renunciation by the employee of the employment contract, thus warranting summary dismissal. 116 The assault of a young detainee by a juvenile justice officer, and moreover by an officer in a position of some authority, would, prima facie, be an authoritative basis for a conclusion that the employee's conduct had struck at the very heart of the employment relationship. With nothing more, it would be unlikely that there would be any grounds for this Commission to intervene in respect to the employee's consequent summary dismissal. That the applicant's conduct was serious, cannot be disputed. However, for reasons which I will shortly outline, I would determine that the applicant's conduct was not such as to permit a finding that his conduct constituted a wilful repudiation of his contract of employment, thereby justifying summary dismissal.

If the misconduct is proven, was the seriousness of the misconduct such as to warrant the applicant's dismissal? 117 While I have reached an answer to this question, it has been a most difficult exercise. It has involved the fine balancing of a number of countervailing factors of varying weight. On the one hand, the matters pointing in the applicant's favour, include the following:

2. His long work experience involving children, particularly those in the Aboriginal community.

Severe financial and personal loss to the applicant in circumstances where he is the sole parent of four dependent children.

There were no charges of assault preferred against the applicant.

There were no deliberately incurred injuries received by the two detainees.

The undoubted provocation by the two detainees, including actual physical violent contact, their disdain for authority and refusal to comply with direction.

Certain limited admissions made by the applicant during his evidence (accepting that he "pushed" RD).

Evidence that the applicant reacted well with the detainees.

Although not witnesses to the entire incident, five of the applicant's work colleagues accepted that the applicant's conduct was within the range of expected responses.

My finding, contrary to that of Mr Madden, that the applicant did not choke RD. 118 Balanced against these factors, are the following:

1. The paramount importance of protecting young detainees in custody.

3. The adverse findings of two independent investigations which are generally supported by the Commission.

4. The consequent breaches of Departmental policies and guidelines.

5. A failure by the applicant to accept that he did anything wrong and his general lack of contrition. 6. The fact the applicant was a senior employee who must have known what was expected of him as a Unit Co-ordinator giving example to others.

7. The fact that there were two incidents relatively not far apart. It could not be said that either one was a "one off" or isolated incident.

CONCLUSIONS 119 As I said earlier, I find myself generally in agreement with the conclusions and findings of the two investigators. It will be immediately apparent that the investigators were not called upon, (nor indeed would it have been appropriate) for them to determine what penalty should be applied. That decision resides exclusively with the Director General and there are a range of penalties under s 41(2) of the Public Sector Employment and Management Act available; from a caution to summary dismissal. Given that the Director General had two conclusive reports with specific adverse findings and considering her wide discretion to determine penalty, I doubt if I had put myself in the position of the decision maker, that I would have arrived at a different conclusion to her. Nevertheless, it is trite to observe that the mandate under which the Director General acted is very different to that under which I must determine this matter. Plainly, there is no reference under the Public Sector Employment and Management Act to considerations of whether a particular dismissal might be said to be 'harsh, unreasonable or unjust'. That is not to say, of course, that in exercising her discretion under that Act that the Director General was not obliged to consider the broader concept of fairness, both in a substantive and procedural sense (see s 45). There is no doubt in my mind that the Director General properly and appropriately considered all the relevant factors consistent with her obligations under the Public Sector Employment and Management Act. That said, I have formed the view that the applicant's dismissal was neither unreasonable or unjust. However, after balancing the range of factors I earlier identified in paras 117 and 118, I have also come to the view, and not without serious reservations, that the applicant's dismissal was 'harsh' within the meaning of the Act, and within the commonly accepted understanding of how that term applies in an industrial context. In this regard, I refer to the well known passage from Byrne v Australian Airlines Limited (1995) 185 CLR 410, where at 465 the High Court said: ...It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.

There can be no room to doubt that the applicant's dismissal has had severe and deleterious consequences for his personal and economic circumstances. What relief should be ordered by the Commission? 120 Notwithstanding that I have found that the applicant's dismissal was 'harsh' within the meaning of Pt 6 Ch 2 of the Act, I did give serious thought to concluding this matter without making any orders in respect to reinstatement, re-employment or compensation. That the Commission has a discretion to make no orders in a particular case, is undoubted. 121 Nevertheless, after weighing up all the relevant factors in this case, I consider that the applicant deserves a second, but final chance. Therefore, I intend to make orders of re-employment of the applicant, on certain strict conditions. In doing so, it seems to me that not only has the applicant suffered severe personal and economic loss arising from his dismissal, but the Department would lose an employee with specific experience and skill in assisting with rehabilitating one of the more disadvantaged groups in the juvenile justice population. However, I would wish to make it abundantly clear that this decision was very much 'lineball' and any future indiscretion on his part should be regarded as finally ending his employment with the respondent. 122 The Commission has arrived at this conclusion having regard for the primacy given under the Act to reinstatement, or if this is considered impractical, to re-employment, once a finding of unfairness has been made. In this regard, I refer to what the Full Bench said in Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288 at [105] to [110]:

105 It is trite law that reinstatement is the primary remedy. It is only where it is impracticable to reinstate an applicant that the other remedies available under s 89 of the Act may be applied: see Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [88]; Riley v Workcover Authority [2006] NSWIRComm 108 at [94].

106 In Plummer v Stannard Bros Launch Service (2005) 145 IR 111 the Full Bench stated the position as (at 115): Reinstatement is the primary remedy under s 89 of the Act: Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 at [34]; Little v Commissioner of Police (No.2) (2002) 112 IR 212 at [88]; Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited (2003) 128 IR 37 at [125]. Other remedies may only be ordered if reinstatement is considered to be impracticable. That requires the member of the Commission, in all cases where relief is to be ordered, to give active consideration to the practicability of reinstatement. Indeed, we consider s 89(5) requires a finding that it would be impracticable to reinstate the appellant prior to making an order for compensation and in the process of making that finding to give reasons: Entertainment Distributors Company Pty Limited and Anor v Burnard and Ors (1993) 49 IR 446 at 453.

107 The Full Bench in Little (No 2) considered the test to be applied as to the practicability of reinstatement of re-employment. At paragraph [91] the Full Bench stated: 91 It is in this light that we turn to consider the question of the practicability of reinstatement of re-employment. In this respect, we propose to apply the test in Perkins v Grace Worldwide (Aust) Pty Limited (1997) 72 IR 186 at 191-192 (which was adopted in Hollingsworth v Commissioner of Police at 341-342).

108 The focus in Perkins was on the issue of whether a loss of trust and confidence was a relevant consideration in determining whether reinstatement was impracticable and it is worth repeating what the Full Bench of the Federal Court had to say: Trust and confidence is a necessary ingredient in any employment relationship. That is why the law imports into employment contracts an implied promise by the employer not to damage or destroy the relationship of trust and confidence between the parties, without reasonable cause: see Burazin v Blacktown City Guardian Pty Limited (Wilcox CJ, von Doussa and Marshall JJ, 13 December 1996, not yet reported). The implication is not confined to employers, it extends to employees: see for example Blyth Chemicals Ltd v Bushell (1933) 49 CLR 66 at 81-2 and North v Television Corporation Ltd (1976) 11 ALR 599 at 609. So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based. At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act. If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee. Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party. It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer's own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.

109 This approach was also accepted in Hollingsworth v Commissioner of Police (No 2) (1999) 88 IR 282.

110 As to the approach to be taken in assessing the practicability of reinstatement, the comments of Cahill VP in NSW Public Service Professional Officers Association v Forestry Commission (NSW) [1990] 39 IR 46 at 50 are relevant: In this regard industrial tribunals should examine with some rigour, and should not too readily accept, claims made on behalf of an employer who has been found to have treated an employee unfairly in the matter of termination of employment that there would be "practical uselessness" in attempting to re-establish the previous employment relationship. My views in this regard accord with those of McClelland J in Hardie Ferodo Pty Ltd v New South Wales Nurses' Association (unreported, 28 Nov 1978), as cited with approval by Hungerford J in Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union v Gartrell White (No 3) (1990) 35 IR 70 at 99. In the Hardie Ferodo case McClelland J said this: "This is, of course, a consideration to be taken into account in every reinstatement case but it must be treated with considerable caution. These cases come before the Commission by way of s 25A proceedings and the fact that such a case proceeds to arbitration after conciliation has failed provides in itself obvious evidence that the employer does not want the employee back. If that consideration had been allowed to outweigh all others the Commission would never have reinstated anybody."

See also New South Wales Nurses' Association on behalf of Debbie Rudder v Booroongen Djugun Aboriginal Corporation [2007] NSWIRComm 89. 123 In my view, having regard to the conditions I intend to place on the applicant's re-employment, it would be impractical to order reinstatement in this case. In order to ensure the applicant undertakes a period of strict supervision, I intend to order his re-employment as a Youth Officer at Reiby Juvenile Justice Centre. In addition, the applicant is to be placed on probation for six months and is to undergo retraining on the Department's Use of Force Guidelines as soon as it can be arranged. His file is to record that he is on a last warning and any future indiscretion may result in his dismissal. In view of the aforementioned findings, I do not consider this to be an appropriate case for orders in respect to lost remuneration and such orders are refused. However, I would recommend that the respondent review restoring the applicant's continuity of service after the satisfactory completion of the six months probation period.

ORDERS 124 Pursuant to s 89(2) and s 89(8) of the Industrial Relations Act 1996, the Industrial Relations Commission orders that:

1. The respondent, the Department of Juvenile Justice, shall re-employ the applicant, Mr Elvin Brian Brown, as a Youth Officer at the Reiby Juvenile Justice Centre.

2. The applicant, Mr Elvin Brian Brown, shall be re-employed within 21 days of this decision, on the following conditions: a) the applicant shall be on probation for a period of six months commencing from the date of his re-employment; b) the applicant shall undergo retraining on the Department's Use of Force Guidelines as soon as it can be arranged; and c) the applicant's personnel file shall record, that as a consequence of this decision, he is on a final warning.

Extract - Public Sector Employment and Management Act 2002 41 Objects of Part The objects of this Part are as follows: (a) to maintain appropriate standards of conduct and work-related performance in the Public Service, (b) to protect and enhance the integrity and reputation of the Public Service, (c) to ensure that the public interest is protected. 42 Definitions (1) In this Part:

disciplinary action , in relation to an officer, means any one or more of the following: (a) dismissal from the Public Service, (b) directing the officer to resign, or to be allowed to resign, from the Public Service within a specified time, (c) if the officer is on probation - annulment of the officer's appointment, (d) except in the case of a senior executive officer - reduction of the officer's salary or demotion to a lower position in the Public Service, (e) the imposition of a fine, (f) a caution or reprimand. misconduct - see section 43. procedural guidelines means the guidelines in force from time to time under section 44. remedial action, in relation to an officer, means any one or more of the following: (a) counselling, (b) training and development, (c) monitoring the officer's conduct or performance, (d) implementing a performance improvement plan, (e) the issuing of a warning to the officer that certain conduct is unacceptable or that the officer's performance is not satisfactory, (f) transferring the officer to another position in the Public Service that does not involve a reduction of salary or demotion to a lower position, (g) any other action of a similar nature.

(2) In this Part, a reference to an allegation that an officer may have engaged in misconduct includes a reference to the appropriate Department Head being made aware, or becoming aware, by any means that the officer may have engaged in misconduct. 43 Meaning of "misconduct" (1988 Act, s 66) (1) For the purposes of this Part, misconduct includes, but is not limited to, any of the following:

(a) a contravention of any provision of this Act or the regulations, (b) performance of duties in such a manner as to justify the taking of disciplinary action, (c) taking any detrimental action (within the meaning of the Protected Disclosures Act 1994) against a person that is substantially in reprisal for the person making a protected disclosure within the meaning of that Act, (d) taking any action against another officer that is substantially in reprisal for an internal disclosure made by that officer.

(2) For the purposes of this Part, the subject-matter of an allegation of misconduct may relate to an incident or conduct that happened:

(a) while the officer concerned was not on duty, or (b) before the officer was appointed to his or her position.

(3) In this section, internal disclosure means a disclosure made by an officer regarding the alleged misconduct of another officer belonging to the same Department as that to which the officer belongs. Division 2 Dealing with misconduct 44 Issuing of procedural guidelines (1) The Director of Public Employment may, from time to time, issue guidelines for the purposes of:

(a) dealing with allegations of misconduct as a disciplinary matter, and (b) the taking of disciplinary action with respect to officers under this Division.

(2) The Director of Public Employment may from time to time amend, revoke or replace the procedural guidelines. (3) The procedural guidelines as in force from time to time must be made publicly available in such manner as the Director of Public Employment thinks appropriate. (4) The regulations may make provision for or with respect to any matter for which the procedural guidelines can provide. In the event of any inconsistency between a provision contained in the procedural guidelines and a provision in the regulations, the latter is to prevail. 45 Requirements relating to procedural guidelines (1) The procedural guidelines must be consistent with the rules for procedural fairness. (2) Without limiting subsection (1), the procedural guidelines are to ensure that:

(a) the officer to whom an allegation of misconduct relates is advised in writing of the alleged misconduct and that the allegation may lead to disciplinary action being taken with respect to the officer, and (b) the officer is given an opportunity to respond to the allegation.

(3) A formal hearing involving the legal representation of parties and the calling and cross-examination of witness is not to be held in relation to an allegation of misconduct and the taking of disciplinary action with respect to an officer. (4) However, subsection (3) does not prevent the appropriate Department Head from:

(a) conducting such investigations into an allegation of misconduct as the Department Head considers necessary, or (b) conducting interviews with the officer to whom the allegation relates or with any other person in connection with the matter concerned, or (c) taking signed statements from the officer or any such person.

46 Dealing with allegations of misconduct (1) If an allegation is made to the appropriate Department Head that an officer may have engaged in any misconduct, the appropriate Department Head may:

(a) decide to deal with the allegation as a disciplinary matter in accordance with the procedural guidelines, or (b) decide that it is appropriate to take remedial action with respect to the officer.

(2) After dealing with an allegation of misconduct as a disciplinary matter in accordance with the procedural guidelines, the appropriate Department Head may, if the Department Head is of the opinion that the officer has engaged in any misconduct, decide to take disciplinary action with respect to the officer. (3) Before any disciplinary action is taken with respect to an officer under this section, the officer must be given an opportunity to make a submission in relation to the disciplinary action that the Department Head is considering taking. (4) Even though the appropriate Department Head decides to deal with an allegation of misconduct as a disciplinary matter in accordance with the procedural guidelines, the Department Head may, at any stage of the process:

(a) decide to take remedial action with respect to the officer concerned, or (b) decide to dismiss the allegation, or decide that no further action is to be taken in relation to the matter, or both.

(5) A decision under this section by the appropriate Department Head to take remedial action with respect to an officer does not, if it appears to the Department Head that the officer may have engaged in any misconduct while the remedial action is being taken, prevent the Department Head from dealing with the alleged misconduct as a disciplinary matter under this section.

Children (Detention Centres) Regulation 2005 Part 6 - Maintenance of Order 49 Order generally (1) Officers must seek to influence detainees through example and leadership and must seek to enlist their willing co-operation. (2) At all times, the treatment of detainees must be such as to encourage their self-respect and sense of personal responsibility. (3) A juvenile justice officer is not to engage in behaviour toward a detainee:

(a) that is intimidating, humiliating, demeaning, threatening or oppressive, or (b) that otherwise constitutes an abuse of the officer's authority.

50 Use of force (1) A juvenile justice officer must not use force against any person in a detention centre except for the following purposes:

(a) to prevent a detainee from injuring himself or herself, (b) to protect the officer or other persons from attack or harm, (c) to prevent a detainee from inflicting serious damage to property, (d) to prevent a detainee from escaping, (e) to prevent a person from entering a detention centre by force, (f) to search a detainee in circumstances in which the detainee refuses to submit to being searched, (g) to seize any dangerous or harmful article or substance that is in the possession of a detainee, (h) to prevent or quell a riot or other disturbance.

(2) A juvenile justice officer may also use force in order to move a detainee who refuses to move from one location to another in accordance with an order of that officer, but only if the officer first gives a warning to the detainee of the consequences of failing to comply with the order. (3) In dealing with a detainee, a juvenile justice officer must use no more force than is reasonably necessary in the circumstances, and the infliction of injury on the detainee is to be avoided if at all possible. 51 Reports on use of force (1) As soon as practicable after force is used by a juvenile justice officer against a person, a report must be furnished to the centre manager by each officer involved in the use of force. (2) The report:

(a) must be in writing, and (b) must specify the name of each person who has been subjected to force and the name of each officer who was involved in the use of force, and (c) must specify the location where the use of force occurred, and (d) must describe the nature of the force used and the purpose for which, or the circumstances in which, force was used, and (e) must be signed by each officer involved in the use of force.

Annexure 3 Department's Use of Force and Instrument of Restraint Policy and Procedure

Use of Force& Instruments of Restraint Principles of Physical Contact Three principles underpin physical contact: Principle One: Staff must endeavour at all times to maintain the dignity of clients. Their right to privacy is already diminished due to the nature of the custodial environment. Principle Two: Staff exercise a high degree of integrity and common sense when they are in situations where physical contact is likely to occur with clients. Principle Three: Staff remain alert to the fact that many clients have a history of physical and/or sexual abuse and for this reason they must carefully consider whether physical contact is appropriate and if so, how and by whom contact is made. The following guidelines apply to use of force: Number Guideline Guideline 1: Force should always be an option of last resort, with the exception of circumstances outlined in Clause 50 of the Children (Detention Centre's) Regulation 2005 Guideline 2: Where possible and circumstances allow, a female member of staff should be present when force is used on a female detainee. Guideline 3: On every occasion an officer must use no more force than is reasonably necessary in the circumstances, and the infliction of injury on the detainee is to be avoided if at all possible. Guideline 4: Where time and circumstances allow, verbal interaction with a client is to be prolonged for as long as possible, and a variety of verbal strategies are to be exhausted by a variety of staff (especially staff with a pre-existing good relationship with the client), before reasonable force is used as a last resort. Guideline 5: When considering the use of force, a staff member is to give weight to his or her own safety, and that of their team. Guideline 6: Where time and circumstances allow, staff are to warn a young person of their intention to use reasonable force prior to the application of the force. Following a warning, the client is to be given another opportunity to comply with staff instructions, in full knowledge that force may be applied if the refusal continues. Guideline 7: Where the objective is to move a resisting client to confinement (as a consequence of misbehaviour), staff are to consider the appropriateness of negotiating with the client a reduction of time in confinement in the event the detainee chooses to comply with the instruction. Of course, this strategy is to be used sparingly, to avoid reinforcement of non-compliant behaviour. But there will be situations where the risk of injury is so high that use of this strategy is justified. Guideline 8: If possible, staff are to wait for extra staff to assist with the restraint of a client. There are to be a minimum of two staff present when force is used and this is to be performed under the supervision of a supervising officer e.g. Unit Manager, Unit Coordinator. The Unit Manager, Unit Coordinator must carry handcuffs during their shift. Guideline 9: Staff are to continue to use their communication and negotiation skills during the physical intervention procedures in an attempt to resolve the issue and to reduce the risk of injury to all parties. Guideline 10: When using force, staff must not increase the amount of force applied than is reasonably necessary in the circumstances, otherwise they may be charged with use of excessive force and/or assault. Guideline 11: Use of Force must not involve the use of any weapon. Guideline 12: Staff need to be aware of the reporting guidelines as stipulated in Clause 51 of the Children (Detention Centre's) Regulation, 2000, e.g. Reports on Use of Force.

Excessive force If the force used was not reasonably necessary in the circumstances, in the sense that (i) force was used to achieve an unreasonable end or that (ii) the amount of force used exceeded what was necessary to achieve a reasonable end, staff may be investigated by the department or the police and charged under the appropriate legislation e.g. Public Sector Employment and Management Act or Crimes Act.

Technique If, as a result of all other options being attempted without success or deemed to be inappropriate, a decision has been made to use reasonable force, then a method that, in the view of the staff member, will least likely cause an injury to the detainee, quickly restrains the detainee, and limits the opportunity for him or her to move in a threatening way, must always be used. A method that restrains the detainee in accordance with approved departmental restraining techniques must be used. Departmental approved restraint techniques can only be used after completing departmental training in managing difficult behaviour. This will make it easier for staff to control the detainee's movements, and will minimise the risk of injury to everyone concerned. Instruments of Restraint In accordance with the legislation, the following articles or classes of articles have been approved by the Director-General as instruments of restraint that can be used by approved staff in the specific circumstances outlined previously: · handcuffs · disposable flexi-cuffs · restraint belts · ankle cuffs · protective shields · protective helmets. No other articles or classes of articles are to be used as instruments of restraint within the Department of Juvenile Justice. USE OF FORCEWITHOUT THE USE OF INSTRUMENTS OF RESTRAINT When to use this procedure This procedure is used in circumstances where a decision not to use force would present an immediate high risk to the detainee, staff, other detainees, the public, the good order and security of the Centre and, if a detainee refuses to move from one location to another in accordance with an order of that officer, but only if the officer first gives a warning to the detainee of the consequences of failing to comply with the order.. It is used to: 1. restrict the movements of a detainee against his or her will (e.g. assaulting a staff member or another detainee); or 2. move a detainee against his or her will from one place to another (e.g. moving to segregation or confinement). Staff must be aware that any Use of Force on a detainee that is not reasonably necessary, or is more than is reasonable to achieve the above objectives, will be treated as an alleged assault by a staff member on a detainee. Where Unit Managers have responsibilities in these procedures, this relates to the Unit Manager responsible for the detainee involved, or the Unit in which the event occurred. In the absence of that Unit Manager, the Duty Manager assumes those responsibilities in these procedures. After hours, when the Manager, Assistant Managers and Unit Managers are not on-site, the Unit Coordinator assumes these responsibilities.

Responsible Action Required IF: the detainee, despite reasonable direction from you: is behaving in a manner which poses an unacceptably high risk to the safety of himself or herself or others; OR IF: the detainee, despite all intervention attempts and reasonable directions from you, refuses to move from one location to another, thus interfering unacceptably with the good order and security of the Centre's Operations; THEN, ONLY where time and circumstances allow: · Continue with negotiation and conflict resolution attempts. · If you think the situation may escalate to a point where you may need to use force, contact the Unit Manager and request that he or she attends the Unit/area. · Ask another staff member to encourage the detainee to follow your directions. (other staff may be of assistance, if they have not been involved in the events leading up to the incident, or if their relationship with the detainee is better) · Seek assistance from the detainee's psychologist, another counsellor, or another staff member who has worked closely with the detainee. · Inform the detainee that if he or she does not settle or follow your directions, reasonable force may have to be used - and give the detainee adequate opportunity to conform prior to using force. · (if possible) Wait for the Unit Coordinator, Unit Manager or Duty Manager to attend the area, and for him or her to attempt to manage or control the detainee without the use of force. The level of risk for staff and detainees may be unacceptably high at this time, and if absolutely necessary, you may have to use force before the senior officer attends. · Ensure that reasonable force can be used safely - check for other detainees in the area, make sure they are appropriately supervised by other staff members, and (if possible) direct detainees to another area out of sight of the detainee involved. · Check the surrounding area for obstacles, potential weapons, etc., and remove any items that may harm the detainee or staff. Supervising staff / Unit Coordinator · Ensure an adequate number of staff are available to use force to restrain or move the detainee. A minimum of 2 staff should be involved in the use of force, and this should be increased in terms of the assessed capability of detainee and staff who are present. · Inform the detainee again that force may be used to restrain him or her. If it is still safe to do so after this attempt, give the detainee another opportunity to comply with your instructions. · Contact the Unit Coordinator and inform him or her that you are going to attempt to restrain or move the detainee with the use of force. · With direction from the Unit Coordinator or more senior officer, move towards the detainee (with assistance from other staff) as quickly as possible, and restrain him or her by applying the least amount of force necessary to control his or her movements in accordance with approved departmental training methods. · Continue to check the surrounding area for the presence of other detainees and potential weapons. · While still restraining the detainee, move as quickly as possibly to an area where the detainee can be released safely. Force must not be applied any longer than is necessary to control the detainee, but at the same time once force has been applied it must not be withdrawn before a secure destination is reached or the danger passes. · If you have decided to segregate the detainee, Where time and circumstances did not allow for the Unit Coordinator's attendance: · Contact the Unit Coordinator immediately and inform him or her: 1. that you have used force; 2. the nature of force used; 3. the detainees' current location; and · any injuries sustained. · Direct staff in procedures to ensure the safety of detainees and staff. Unit Coordinator · Attend the Unit or area immediately. · Continue to utilise negotiation and conflict resolution skills in an attempt to negotiate a non-violent resolution to the problem. · Ensure the safety of detainees and staff according to directions from Unit Coordinator. Supervising / Unit staff · Complete a Report on Use of Force and submit to the Unit Coordinator. (A separate form is required from each staff member involved) · Complete and submit a Staff Report as directed by the Unit Coordinator. · Ensure the detainee involved, other detainees and staff are safe and secure and have been checked and treated for any injuries. If injuries were sustained, · If the detainee was placed in segregation, determine if he or she should remain in segregation, and instruct staff accordingly. Unit Coordinator · Direct each staff member who applied force to complete a Report on Use of Force and (where necessary) a Staff Report or Report of Minor Misbehaviour. Check the content of each Report on Use of Force, and (where applicable) other reports and submit them to the Unit Manager or Manager, Transport, Placements and Classification (If the detainee on whom force was used is unsettled, arrange for a staff member to speak with the detainee and, if necessary, arrange crisis support for the detainee. · Conduct a debrief session with staff outlining the incident and responses and strategies to manage similar situations in the future. · If necessary or requested by a staff member, contact the staff counselling service, refer staff involved in the incident, and refer any other staff present who may have been affected by the incident. NOTE: if this was a particular type of incident, this referral may be a requirement. · Ensure a debriefing is conducted with detainees who witnessed the use of force. · Ensure all appropriate referrals have been made and that staff and detainees are provided with support. · Check the content of each Report on Use of Force and any Staff Reports submitted. (and CIMS)Conduct further investigations into the event if required, in terms of incident management and risk management activities and requirements. Unit Manager/ Manager Transport, Placements & Classification · Ensure the detainee's family have been informed of the incident along with any injuries sustained and any further police action to be taken. · Provide details of incident to the: 1. Unit Coordinator or Youth Officer with allocated responsibility for the detainee to ensure case plan is updated; and 2. Assistant Manager (Client Services) for information of the CSM. Assistant Manager (Generalist) / Manager Transport, Placements & Classification · Ensure the Use of Force is recorded on the Use of Force& Instruments of Restraint Return. (this may be done any time before the end of the month) · Ensure the Use of Force& Instruments of Restraint Return is submitted to the Regional Director/Assistant Regional Director , no later than 10 days after the end of the month. In Centres this should be done via the Manager, and in the Transport, Placements & Classification reports are forwarded to the Assistant Director General Operations. Centre Manager /Manager Transport, Placements & Classification · Review all reports in relation to the event and, if required, direct the Assistant Manager (Generalist) or (if transport related) the Unit Coordinator (Transport) to obtain additional information and conduct appropriate investigation.

Annexure 4 Policy and Procedures for Managing Difficult Behaviour Behaviour Management - Managing Difficult Behaviour

when a detainee's behaviour is considered difficult or challenging; and when an appropriate response is required to not only stop the behaviour, but to teach the detainee alternative, pro social behaviour for future situations.

The departmental policy defines difficult or challenging behaviour as behaviour demonstrated by a detainee of such intensity, frequency and duration that the physical safety or emotional well-being of the detainee or other people is placed at significant risk.

There must be a link between case management and behaviour management. Behaviour management should be individualised, and case management is the avenue through which this can occur. Effective case management also reduces the likelihood of difficult behaviour occurring, as it is a means of paying attention to, and recognising the detainee, alleviating the need for him or her to gain such concern and interaction through problematic behaviour. ( case management)

It is common practice for staff to spend more time with and responding to detainees when they are misbehaving, than when they are behaving appropriately. This increases the risk to staff, the detainee, and other detainees, and the likelihood of the problematic behaviour continuing and escalating dangerous behaviour.

It is likely that addressing difficult behaviour through case management will result in more significant behavioural changes, and increased safety for staff and detainees. This is because case management is a means to gather, disseminate and use information about the individual detainee. For example:

personal, social, custodial, and offending issues that may have contributed to the behaviour in the first place; strategies best suited to the detainee's needs; and strategies that have proven most effective with this detainee. Before deciding on the most appropriate response for the behaviour, staff should refer to the detainee's case plan and related documentation to assist decisions, and wherever possible, the response should be consistent with other case management strategies being implemented with the detainee. Case management documentation should contain information about strategies previously tried, and whether this same behaviour has occurred in the past. ( behaviour management - managing difficult behaviour; case management)

NOTE: There is a belief that staff do not have enough time to refer to case management before making a decision as to how the behaviour will be managed. Such a belief increases the likelihood of inappropriate responses to misbehaviour, including excessive use of confinement and limited use of other options. Any urgency to respond to problematic behaviour would involve concerns about the safety of the detainee or others, which means that segregation, or another safety or protection strategy is most appropriate at that time. When the safety concerns no longer exist, the detainee can then be dealt with for the misbehaviour. ( SEGREGATION)

After the response has been determined, a review of the case plan should be conducted, in light of the misbehaviour. This should involve analysis of the behaviour, the circumstances in which the behaviour occurred, the strategies used to manage the behaviour, and possible strategies that could be implemented, by staff and the detainee, to reduce and address future behavioural issues. ( behaviour management - managing difficult behaviour; case management)

There is a significant link between managing difficult behaviour and risk assessment, and the management of identified risk. A detainee's difficult behaviour (eg. assault, fighting, threats of violence) presents some of the greatest risks to staff and other detainees.

The behaviour provides information about risk, and enables staff to assess and re-assess the detainee's risk rating and program participation. The response, if it demonstrates consideration of the best possible way to reduce the behaviour, and to stop it occurring in the future, reduces the level of risk and enables staff to identify a wider range of risk controls. ( risk assessment; ohs procedures - risk management)

All centre staff have responsibility for addressing difficult behaviour demonstrated by detainees, for encouraging detainees to manage their own behaviour, and for assisting with behaviour management strategies.

Unit Managers are responsible for conducting checks and reviews of the way in which difficult behaviour is being managed in their respective unit, to ensure the full range of options is being utilised and that options chosen by staff are consistent with detainees' case plans.

The term "supervising staff" in this procedure refers to any staff member who addresses a detainee about difficult behaviour, who assists the detainee to manage his or her own behaviour, and any staff member who reports a detainee for difficult behaviour. This is not restricted to Youth Officers, including Education and Training staff.

If it is necessary to report the detainee, in the first instance, supervising staff should contact the Unit Coordinator responsible for the detainee.

It is important to integrate the work of staff from these two departments. Wherever possible, Education and Training staff should use Juvenile Justice procedures and forms/records when using these procedures. In the event this is not possible, their reports should be attached to the Juvenile Justice documentation that was completed when dealing with the detainee.

Assistant Managers are responsible for conducting regular reviews of behaviour management systems operating within the centre. These should be conducted on at least a monthly basis. The Assistant Manager (Generalist) should coordinate the review, and always ensure the Assistant Manager (Client Services) and Unit Managers are involved.

These reviews should involve analysis of behaviour reports and outcomes, and discussions with staff working directly with detainees, checking that:

alternatives have been considered before the use of the chosen option and procedure; all reports are detailed enough to provide adequate information for deciding the most appropriate response; all responses are fair and reasonable for, and appropriate to the particular behaviour; the full range of behaviour management options are used; maximum penalties are not routinely imposed (eg. confinement periods); and improper punishments and responses are promptly and fully investigated. On the basis of the above analysis, actions to improve behaviour management should be determined, in consultation with Unit Managers and any other staff who may assist the process (eg. unit staff, counselling staff).

Each review should be documented, including actions taken to improve behaviour management and related systems, and submitted to the Manager.

Obviously, the best approach to managing difficult behaviour is to prevent it occurring at all. Responding to behaviour when it has already occurred increases the risk to safety of staff and detainees significantly. Preventing difficult behaviour from occurring, and as a result, increasing safety of everyone in the centre, can be achieved in ways such as:

Observing the behaviour of detainees - especially in different surroundings, with different people, in different interactions - to establish knowledge of the instances in which the detainee is most likely to present difficult behaviour; Recording behaviour observations - both positive/pro social and negative/behaviour - to improve staff and detainee capacity to identify patterns in behaviour, and to ensure all staff know about the behaviour a detainee is capable of (this is particularly important when detainees are managed by staff on rotating rosters); ( jj-cw018) Speaking to detainees when their behaviour is escalating, or when they are in, or entering a situation that is known to provoke difficult behaviour; Responding positively and supportively to detainees when they are behaving positively/pro socially, and highlighting the differences between that behaviour and more difficult behaviour; and Role modelling, in a range of situations, so detainees can observe alternative, more positive ways of behaving.

The link between case management, risk management, and behaviour management demands the use of a range of options to manage the behaviour of individual detainees. Not all detainees are the same, therefore, not all detainees respond to the same behaviour management strategies. The likelihood of a detainee reducing problematic, challenging and difficult behaviour is strongly influenced by responses that are designed on the basis of his or her individual needs and strengths.

A range of options for dealing with difficult behaviour already exist in juvenile justice centres, and each centre may develop additional strategies, as long as they demonstrate adherence to detention legislation and departmental policy. Options that already exist are:

Continued negotiation or mediation Referral to a program, including groupwork Referral to counselling - group or individual Development of a behaviour management plan Minor misbehaviour Serious misbehaviour Referral to the police, which includes the option of Youth Justice Conferences (where the behaviour can be alleged as a criminal offence) Re-classification Another type of centre-based option.

The process of responding to difficult behaviour with one of these options is demonstrated in the diagram below. Details of each option are also provided below.

Each of the options is described below. · This may occur at the time the behaviour is occurring or some time afterwards. It may include: Negotiation or mediation · Exploring with the detainee the reasons for his or her behaviour - eg. dissatisfied with a decision, problem phone call, problems with a relationship in or outside the centre - and then negotiating a change in behaviour for a change in the situation. · Mediating between the detainee and the other person involved, or with whom the detainee is having problems - eg. after a fight with another detainee - to resolve the differences, through enabling the detainee and the other person to voice their concerns or issues, and to reach an agreement for changed behaviour. (this may be done by the supervising staff, or another staff member may be arranged to mediate) Referral to a program · A program or activity - e.g. groupwork, social skills program or activity - that focuses on the behaviour that was demonstrated and associated issues, or on skills or information that may assist the detainee in developing alternative ways of managing that type of situation in the future. · If such a program is not currently available, attempts should be made to organise that type of program for the detainee as soon as possible. This also contributes to the development of a range of programs that are suited to the centre's detainee population. · This can be either individual or group counselling, or both. This should be determined by the counsellor in consultation with staff who work closely with the detainee (e.g. key worker). Referral to counselling · Similar to the program referral, the counselling would focus on the behaviour and associated issues. · It may be negotiated with the detainee that he or she participate in a set number (at least initially) of sessions to focus on the problem behaviour, with a view to continuing if needed and agreed. · This can be either: o part of the case plan, with 'behaviour' as a particular focus area, where the information and strategies about the behaviour are documented 'within' the plan; or o a separate plan, but presented as an attachment to the case plan. In this case, there would be more detail about the behaviour, strategies and consequences, with a notation in the case plan referring to the behaviour management plan. There must always be a link between these plans and the case plan. · The following is a guide for the discussion about, and the content of behaviour management plans: o The specific behaviour to be addressed - no more than two specific behaviours should be addressed in any one plan; Behaviour management plan o Known triggers for the behaviour; o Purpose of the behaviour; o Behaviour history; o Interventions to address the behaviour - eg. certain approaches by staff in day-to-day interactions, counselling, programs, etc.; o Duration of the plan; o Daily schedule, including times the detainee will be offered access to specific area, programs, etc.; and o Consequences for continued inappropriate behaviour. Minor misbehaviour · Refer to a separate procedure - BEHAVIOUR MANAGEMENT - MINOR MISBEHAVIOUR Serious misbehaviour · This only applies for detainees who are currently serving a control order. · Refer to a separate procedure - BEHAVIOUR MANAGEMENT - SERIOUS MISBEHAVIOUR · This only applies if the behaviour can be alleged to be a criminal offence. There are two separate procedures to refer to for this: Police / YJC · incidents · youth justice conferences · A detainee may be re-classified to Class A or (where applicable) transfered to prison on the basis of behavioural issues in custody. Re-classification · There are two separate procedures for this: · TRANSFER TO ANOTHER CENTRE · transfer to and from an adult prison Other type of centre-based option · There may be other options within specific programs at each centre - e.g. a unit program may specify a range of behaviours and consequences for detainees in that unit. · In this case, such options must demonstrate adherence to detention legislation, departmental policy, and other relevant guidelines, standards, etc..

In the prevention or management of difficult behaviour there is always a possibility that either intentional or unavoidable physical contact may take place. This contact may be of a different nature to contact described in the procedure for use of force and may arise as a result of negotiations or mediation, managing minor misbehaviour or responding to misbehaviour through the local centre-based option.

As example, a young person receives an upsetting phone call about a family difficulty. He or she becomes emotional, throws a chair and hurls abuse at a staff member. The staff member enters into a period of negotiation to address the misbehaviour, discovers the cause behind it, assists in settling the young person and in the process puts his hand on the young person's shoulder to communicate interest, care and concern.

In this and similar situations, the following three rules applying to physical contact should be adhered to:

Rule One Under no circumstances should the staff engage in:

a frontal embrace of a young person; body rubbing, pressing, bumping or genital contact; sparring or mock fighting.

Rule Two Physical contact is not permitted in the following circumstances:

when a young person is in his bed room or bathroom during strip searches

making hand contact with a young person's shoulders, arms, back in order to communicate interest, care and concern: offering a sideways hug, if the young person is very distressed, provided it is assessed that this contact will comfort the young person and the young person is accepting of this contact.

Staff are to be mindful that it is in the best interest of both the staff members and clients involved, that this type of physical contact be conducted whilst in sight of another member.

These rules should be understood in conjunction with the Client Protection Policy that outlines inappropriate sexual contact and abuse.

The same rules should apply to physical contact in the day to day activities and interactions between staff and clients.

It is recognised that physical contact between staff and clients in custody will at times be necessary for the performance of routine living tasks, administering first aid or to communicate concern by non-verbal means.

Discretionary physical contact such as touching, patting and hugging is subject to varying personal norms and levels of acceptance. Consequently these behaviours could be misinterpreted by those involved or observers and therefore their use is to be avoided. Staff should discourage young persons from patterns of frequent touching, patting, hugging and play fighting.

Gender issues need to be taken into account prior to staff determing that physical contact is appropriate.

Whatever option is chosen, this will influence the next review of the detainee's case plan. It will either require an extraordinary session with the detainee and staff working on case management with him or her, or reference will be made to the event in the next scheduled review of the case plan.( case management)

To ensure there is a record of each behaviour management event, and of the reporting and decision making process, a report should be completed each time staff use this procedure.

Supervising/reporting staff are required to complete a Staff Report for all types of responses in this procedure, except for minor misbehaviour, which requires a Report of Minor Misbehaviour. ( CIMS or jj-a011).

Other reporting requirements can be found in the relevant procedures that are separate to this one. (e.g. BEHAVIOUR MANAGEMENT - MINOR MISBEHAVIOUR; BEHAVIOUR MANAGEMENT - SERIOUS MISBEHAVIOUR; incidents ,,, Various)

A copy of each report must also be sent to the Drug Intelligence Unit. Wherever possible, an electronic version should be emailed to that unit, to increase efficiency in data collection and analysis.

Casework Progress / Behaviour Observation form ( jj-cw018 )

This is a daily record of staff observations of the detainee's behaviour that is also linked to risk assessment. All staff working directly with detainee should make entries on this form, based on their observations of, and interactions with the young person on a daily basis. This form provides a running record of both pro social and difficult behaviour, and can assist the development of appropriate behaviour management strategies and case plan tasks.

The target behaviours are linked to the case plan goals, as a means of assisting the young person to achieve case plan goals and tasks. Each time case plans are reviewed, information on the Casework Progress / Behaviour Observation form should be used as one source of information. At the completion of reviews, new case plan goals and target behaviours should be entered on a new form.

When responding to or managing difficult behaviour, staff can refer to this form for information such as:

if this particular behaviour has occurred before; how long the same type of behaviour has been occurring; what days and times of the day this behaviour occurs. The above information is valuable to determining the intensity, frequency and duration of the behaviour. Staff can then, firstly, determine if there needs to be a detailed response at all, and in the event such a response is needed, it can help determine the response strategy.

Where Unit Managers have responsibilities in these procedures, this relates to the Unit Manager responsible for the detainee involved, or the unit in which the event occurred. In the absence of that Unit Manager, his or her supervising Assistant Manager assumes the responsibilities. In the absence of the Assistant Manager, the Duty Manager assumes those responsibilities in these procedures.

After hours, when the Manager, Assistant Managers and Unit Managers are not on-site at the centre, the Unit Coordinator assumes these responsibilities.

Responsible Action Required

When the behaviour is first identified as difficult:

· Immediately speak to the detainee about the behaviour. · Explain the inappropriateness of the behaviour to the detainee. It is helpful to highlight the importance of behaving in different ways - eg. the detainee is returning to the community; different behaviour may gain positive rather than negative consequences (eg. earning rewards in the incentive scheme). · Caution the detainee to stop the inappropriate behaviour. 1 Supervising staff If the detainee continues and refuses your directions to stop:

· Inform the detainee that you have asked him or her to stop the inappropriate behaviour, and explain again the inappropriateness of the behaviour, and the benefits of behaving more appropriately. · Caution the detainee that should the behaviour continue, there will be consequences for his or her actions. · If the detainee requests personal time in his or her room, decide if this is a genuine request and determine if it will assist management of the behaviour or situation. Remember, if it stops the situation from escalating to violence, it is in the best interests of staff and detainees. ( DETAINEE REQUEST FOR PERSONAL TIME) NOTE: Under no circumstances can you direct the detainee to his or her room and refer to this as his or her request. Requesting personal time in a room is a legitimate self-management strategy for detainees to use (eg. to stop their behaviour escalating to greater levels of violence), but it must never be forced on them by staff, and the detainee must sign his or her request before going to the room. · Ensure you provide the supervising staff adequate opportunity to address and resolve the behavioural issue while regularly checking and ensuring their safety in the situation. It is important for front-line staff to resolve behavioural issues. This can improve the relationship and authority they have with detainees, reducing the likelihood of problems in the future.

2 Unit Coordinator · If supervising staff contact you about the situation, check if they want your assistance or not. o If staff request your assistance, attend the area and assist staff. o If staff do not request assistance, monitor the situation, and maintain regular contact with staff. · If the detainee requested personal time, ensure it was the detainee's choice and, if not, direct staff to remove the detainee from his or her room. ( DETAINEE REQUEST FOR PERSONAL TIME) If the detainee still continues and refuses to stop:

· Inform the detainee he or she has made a choice not to stop the behaviour, and that you have no alternative but to issue or recommend a consequence. (Your authority to issue or recommend depends on the consequence) · If the detainee's behaviour is risking the safety of the detainee or any other person and there is no alternative way to protect the detainee or others, direct the detainee to segregation, immediately inform the Unit Coordinator, and inform the detainee that the behaviour will be discussed after he or she has settled and no longer presents a risk. ( SEGREGATION ) · If the detainee refuses any direction to leave an area or to go to segregation and the safety of the detainee or any other person is at risk, use reasonable physical force if absolutely necessary and only when there is no other alternative, immediately inform the Unit Coordinator, and inform the detainee that the behaviour will be discussed after he or she has settled and no longer presents a risk. ( USE OF FORCE AND INSTRUMENTS OF RESTRAINT) · Check the detainee's current Case Plan, Casework Progress/Behaviour Observation form, and Case Notes for information about what would be the most appropriate response/consequence. ( CIMS / jj-cw018) · When the detainee is settled, discuss the range of options with the detainee, and ask him or her what the most appropriate response might be, and inform the detainee about the options you are considering. · NOTE: on occasions, it may take the detainee some time to settle, to allow this discussion. The priority or urgency is on safety and protection. Deciding on the response to the behaviour, and ensuring it is the most likely to reduce the behaviour in the future, does not require the same urgency. For example, if there is a sense of urgency about placing the detainee in confinement, this is more than likely about safety, and therefore, segregation should be used, after which the behaviour can be managed following this procedure.

· Determine the consequence you think is most appropriate to respond to the behaviour, and be prepared to state your reasons for the choice in terms of how it will change future behaviour. The options are: (refer to information in the introduction for detail) 3 Supervising staff 1. Continued negotiation or mediation 2. Referral to a program 3. Referral to counselling 4. Development of a behaviour management plan 5. Minor misbehaviour 6. Serious misbehaviour 7. Referral to the police, which includes the option of Youth Justice Conferences 8. Re-classification 9. Another type of centre-based option. · Complete a Staff Report, or in the case of minor misbehaviour a Report of Minor Misbehaviour, outlining the behaviour observed, attempts to address the behaviour without a consequence, and your recommendation for a response/consequence. ( CIMS or jj-a011) ( BEHAVIOUR MANAGEMENT - MINOR MISBEHAVIOUR) for additional procedures about reporting minor misbehaviour) · Submit the report to the Unit Coordinator, and inform him or her about the action you have taken so far, and the consequence you recommend. · Check the report and ensure it has all necessary detail to make a decision on the most appropriate response for the detainee. ( CIMS OR jj-a011) · Consider the recommendations of supervising staff, determine the response/consequence for the behaviour, inform staff and the detainee of your decision, and follow the relevant procedures. When making this decision, the best possible option is the one that will NOT ONLY stop the behaviour, but will ALSO introduce the detainee to more appropriate ways of behaving in the future.

· Ensure supervising staff have checked the detainee's current Case Plan, Casework Progress/Behaviour Observation forms, and Case Notes before making their recommendation and refer to these yourself, if necessary to make a final decision. ( CIMS/ jj-cw018) · If you determine the response/consequence should be to:

1. continue negotiation or mediation, ensure the negotiating staff and the detainee have adequate opportunity to fully negotiate or mediate the matter and an appropriate environment (eg. interview room, quiet space in the unit), and ensure staff document the content and outcome of the negotiation or mediation in the detainee's Case Notes afterwards. ( CIMS)

2. refer the detainee to a program, inform the Unit Manager of the decision, and ensure the staff involved discuss the specific behaviour with the Unit Manager to assist program referral or the design of a new program. Before making a final decision about this option it is helpful to speak to a counsellor or other program provider at the centre, to explore the type of program that may be best suited for the circumstances.

3. refer the detainee to counselling, inform the Unit Manager of the decision, make the referral to the psychologist or other counsellor, and ensure the staff involved discuss the specific behaviour with the counsellor to ensure the counsellor has sufficient information to work with the detainee. Before making a final decision about this option it is helpful to speak to a counsellor, to explore the appropriateness and type of counselling best suited for the circumstances.

4 Unit Coordinator 4. develop a behaviour management plan, inform the Unit Manager of the decision, discuss the specific behaviour with the Unit Manager to ensure all issues are considered in the plan, and recommend unit staff who should be involved in developing the plan with the detainee, the Unit Manager and a counsellor / psychologist.

If your centre's practices or procedures allow, negotiate and develop the plan with the detainee, another unit staff member, and a counsellor / psychologist, and submit the plan to the Unit Manager for approval. This is the ideal option because staff who dealt with the behavioural issue get to initiate and participate in the outcome.

5. to deal with the matter as minor misbehaviour, MINOR MISBEHAVIOUR.

6. to deal with the matter as serious misbehaviour, SERIOUS MISBEHAVIOUR.

7. refer the matter to the police, inform the Unit Manager and seek approval to contact the police.( incidents - general information/ MOVEMENT OUT - POLICE INTERVIEW/ VISIT BY POLICE/ youth justice conferences)

8. re-classify the detainee, inform the Unit Manager, discuss the specific behaviour with the Unit Manager to ensure all relevant information is provided to the Classification Officer for a possible review use another centre-based option, implement that option according to your centre's local procedures. · Check and sign the report, enter details of the response you have chosen, and submit it to the Unit Manager. ( CIMS) · If you chose an option that requires approval from a more senior officer and it was NOT approved, follow this procedure again, inform staff and the detainee, and based on discussions with them, choose another option. 5 Supervising staff · When the final decision is made about the response/consequence, participate in the response/consequence as directed by the Unit Coordinator or Unit Manager. · Enter details of the behaviour in the detainee's current Casework Progress/Behaviour Observation form, the Case Notes and the Unit Log Book. ( CIMS / jj-cw018) · Check and sign the report, and where the response requires your approval or the approval of a more senior officer, ensure the final decision is entered on the report. (CIMS OR jj-a011) · If the option chosen by staff requires your support or approval, consider the recommendation, and make a decision to support or not support it. · If the chosen option requires the support or approval of a more senior officer (e.g. recommendation for repite classification review), inform the relevant senior officer, and follow the relevant procedures. (eg. TRANSFER TO ANOTHER CENTRE /DETAINEE PLACEMENT RELOCATION ) 6 Unit Manager · If the chosen option is supported, inform staff, make the necessary referrals, and follow the relevant procedures. · If the chosen option is NOT supported, inform staff, provide reasons for the non-support, and recommend another option for them to consider. · Fax or email a copy of the Staff Report or Report of Minor Misbehaviour to the Drug Intelligence Unit. Emailing an electronic copy is the preferred method to assist efficient data collection and analysis in that unit. ( IMS OR jj-a011) · Adjust risk assessment and ratings accordingly and inform staff of any restrictions on the detainee. (& risk assessment) · If a review of the case plan is required, ensure a meeting of relevant staff and the detainee is arranged as soon as possible and follow case management procedures. ( case management) 7 Unit Manager (responsible for the detainee)(the Duty Manager does not do this. The Unit Manager can do it on his or her return to duty) · Ensure additional risk assessments are conducted as required, and ensure staff are informed about the results and follow appropriate procedures. ( risk assessment) · Regularly check the responses to difficult behaviour in your unit and ensure staff adhere to these procedures - ie. undertake regular checks of behaviour management strategies and outcomes in your unit. · Ensure unit staff are involved in regular reviews of the behaviour management approaches in your unit.

[1] The term "case plan" in this procedure is used to refer to the Intervention Plan and Case plan, depending on the stage of case management the detainee is at.

Annexure 5 Department's Minor Misbehaviour Policy When to use this procedure

This procedure should only be used after careful consideration of the type of behaviour that occurred, the circumstances in which it occurred, and the detainee's issues and needs, and only if such a response will:

· decrease the likelihood of the detainee behaving in that way again; and

· provide the detainee with options to behave differently in the same or similar situations in the future.

Before using this procedure & BEHAVIOUR MANAGEMENT - MANAGING DIFFICULT BEHAVIOUR.

Because case management is focused on the individual, it has the potential to provide a range of information that can assist the successful management of difficult behaviour, and to decrease the likelihood of that behaviour occurring again.

Before using this procedure, staff should refer to the detainee's case plan and related documentation to assist decisions, and wherever possible, the response should be consistent with other case management strategies being implemented with the detainee. Case management documentation should contain information about strategies previously tried, and whether this same behaviour has occurred in the past. (& BEHAVIOUR MANAGEMENT - MANAGING DIFFICULT BEHAVIOUR; & case management)

NOTE: There is a belief that staff do not have enough time to refer to case management before making a decision as to how the behaviour will be managed. Such a belief increases the likelihood of inappropriate responses to misbehaviour, including excessive use of confinement and limited use of other options. Any urgency to respond to problematic behaviour would involve concerns about the safety of the detainee or others, which means that segregation, or another safety or protection strategy is most appropriate at that time. When the safety concerns no longer exist, the detainee can then be dealt with for the misbehaviour. (& segregation)

After using this procedure, a review of the case plan should be conducted, in light of the misbehaviour. This should involve analysis of the behaviour, the circumstances in which the behaviour occurred, the strategies used to manage the behaviour, and possible strategies that could be implemented, by staff and the detainee, to reduce and address future behavioural issues. (& BEHAVIOUR MANAGEMENT - MANAGING DIFFICULT BEHAVIOUR; & case management)

The incentive scheme is aimed at promoting acceptable, pro social behaviour. Staff cannot deduct points or rewards already earned in response to negative or misbehaviour, but they can decide not to give additional points or rewards when misbehaviour occurs. If this response is chosen, then no other consequence can be given for the event of misbehaviour being managed. If the same type of behaviour continues after that response another strategy may be required, which may or not be use of these minor misbehaviour procedures.

All centre staff have responsibility for encouraging detainees to manage their own behaviour, and for assisting with appropriate management strategies. Therefore, any staff member can report a detainee for minor misbehaviour.

The terms "supervising staff" and "reporting officer" in this procedure refers to any staff member who reports a detainee for minor misbehaviour. This is not restricted to Youth Officers and also includes Education and Training staff.

The term "senior officer" in this procedure refers to the Manager, Assistant Managers, Unit Managers, and Unit Coordinators.

In the first instance, reporting officers should contact the Unit Coordinator who is responsible for the detainee.

There are thirteen types of minor misbehaviour defined in the Children (Detention Centres) Regulation 2000 (Schedule 1, Part 1). They are:

Disobeying rules or instructions A detainee must not breach any of the published rules of the detention centre or disobey any reasonable instruction given by a detention centre staff member.

Lying A detainee must not tell lies which adversely affect the good order and discipline of the detention centre.

Unauthorised telephone calls A detainee must not make telephone calls other than those authorised by a detention centre staff member.

Deliberate harassment or provocation A detainee must not deliberately use either words or actions to harass or provoke other detainees, detention centre staff members or any other person.

Damage to Government or personal property A detainee must not, unless by accident, cause damage to any Government property or to the personal property of another detainee, a detention centre staff member or any other person in the detention centre.

Abusive, indecent or threatening language A detainee must not use abusive, indecent or threatening language when speaking to another person in the detention centre, or when corresponding or communicating with persons either in the detention centre or elsewhere.

Subversive behaviour A detainee must not, by word or action, attempt to undermine the good order or discipline of a detention centre, or encourage other detainees to behave in such a way as to disrupt the good order or discipline of the detention centre.

Unauthorised entry into certain areas A detainee must not, unless with the permission of a detention centre staff member, enter a room, office, storeroom or other area to which entry by detainees has been clearly prohibited.

Possession of unauthorised articles A detainee must not receive, possess or pass on to others, any article which is not of a kind that has been authorised by the Superintendent.

Fighting A detainee must not become involved, or entice others to become involved, in physical altercations with other detainees.

Unauthorised use of alarms or equipment A detainee must not, unless authorised by a detention centre staff member or responding to a perceived emergency, use any alarm, fire fighting equipment or first aid supplies.

Refusal to work or participate in activities A detainee must not, except with reasonable excuse, refuse to perform properly allocated duties or to participate in authorised program activities.

There are standard punishments for minor misbehaviour, which are outlined in section 21(1) of the Children (Detention Centres) Act 1987:

Restriction from participation in sport activities Not exceeding four (4) days

Restriction from participation in leisure activities Not exceeding four (4) days

Additional duties (of a constructive nature designed to promote the welfare of detainees) Not exceeding seven (7) days

Exclusion from a place Not exceeding 3 hours - under 16 years of age

Confinement to a place (the Department defines this as placement in a locked room, not as mere separation from others) Not exceeding 3 hours - under 16 years of age

It is important to determine a punishment that will assist the detainee to develop alternative ways of behaving in the future.

Under the Children (Detention Centres) Act 1987, only the Manager has the authority to determine punishments. The Director-General has delegated this function to:

The reporting officer does not have the authority to make the final decision regarding punishment of a detainee, however, he or she should be actively involved in the inquiry, and in making appropriate recommendations about punishment.

Senior officers must ensure that reporting officers are provided opportunity to recommend punishments for detainees, to ensure they make best use of staff knowledge of and experience with the detainee.

All recommendations and decisions regarding punishment must demonstrate consideration of case management information and the current case plan for the detainee. (4 jj-cw002 or jj-cw005 / 4 jj-cw014 / 4 jj-cw018)

Any final determination of punishment must result from consultation with the reporting officer and the detainee. Where punishment recommendations are considered unreasonable or inappropriate, the senior officer must explain the reasons for this and re-negotiate another punishment.

When a detainee is consulted about punishments, it is more likely that his or her response to the punishment (eg. behaviour during and after the punishment) will be more positive and long-term.

Depending on the type and duration of the punishment, punishment decisions should be reviewed.

Reviews can be an effective tool when a detainee is resistant to a punishment (at the time he or she is informed of the punishment decision). They are also effective when a fairly extreme or lengthy punishment has been determined. In this case, there is the possibility that the detainee will discontinue problematic or undesirable behaviour during the punishment period, before that period ends, or demonstrate positive, alternative behaviours during the punishment period. When a review is included in the strategy, the punishment period can be shortened in light of the detainee's positive response.

The option of review can be included in negotiations with a detainee who is being placed in confinement. If he or she is resistant, and it is likely that physical force may be necessary, the staff member can offer reduced time in return for the detainee's willing movement to the confinement room. In this instance, the risk of physical and emotional injury to staff and detainees, which can occur during the use of physical force, will be avoided, and there will still be a punishment. This approach ensures safety rather than retribution is paramount.

Managers, Assistant Managers and Unit Managers can transfer inquiries into minor misbehaviour to other centres. If a detainee is transferred between Centres, prior to relevant investigations or reports being finalised, one of those senior staff of the receiving centre can apply minor misbehaviour procedures when the detainee arrives.

REMEMBER: Do not use this procedure unless all other options have been explored, and recommended strategies for management of the detainee have been attempted. (& BEHAVIOUR MANAGEMENT - MANAGING DIFFICULT BEHAVIOUR)

Where Unit Managers have responsibilities in these procedures, this relates to the Unit Manager responsible for the detainee involved, or the unit in which the event occurred. In the absence of that Unit Manager, his or her supervising Assistant Manager assumes the responsibilities. In the absence of the Assistant Manager, the Duty Manager assumes those responsibilities in these procedures.

After hours, when the Manager, Assistant Managers and Unit Managers are not on-site at the centre, the Unit Coordinator assumes these responsibilities.

Responsible Action Required When you consider there is no more appropriate alternative way of responding to the behaviour (& managing difficult behaviour):

· Contact the Unit Coordinator and inform him or her about the detainee and the misbehaviour you have witnessed.

1 Supervising staff · If the Unit Coordinator directs you to attempt an alternative means of managing the behaviour, follow his or her directions. · If directed by the Unit Coordinator, complete a Report of Minor Misbehaviour. Do not complete this report prior to contacting the Unit Coordinator, as he or she may have an alternative strategy. (. jj-a011)

The requirement for Unit Coordinator approval to write a report, in this instance, is because it is important that staff do not complete additional paperwork unnecessarily. If the matter is not going to be dealt with as minor misbehaviour, staff should not waste time writing a Report of Minor Misbehaviour.

· Enter on the Report of Minor Misbehaviour the punishment you recommend in the event the detainee is found guilty. This punishment should be appropriate to the misbehaviour and the detainee. Check the detainee's current Case Plan, Casework Progress/Behaviour Observation form, and Case Notes to inform your recommendation. (4 jj-a011 / 4 jj-cw002 or jj-cw005 / 4 jj-cw014 / jj-cw018) · Ensure supervising staff have attempted alternative ways of dealing with the behaviour. If there is a suitable alternative they have not considered, direct them to use that strategy instead of minor misbehaviour procedures. Ensure case management documentation is checked for information that may assist development of an alternative to minor misbehaviour. (4 jj-cw002 or jj-cw005 / 4 jj-cw014 / 4 jj-cw018) (& case management; & managing difficult behaviour)

· If there is no alternative to minor misbehaviour, direct the reporting officer to complete a Report of Minor Misbehaviour and to ensure the detainee completes the detainee statement. (4 jj-a011)

2 · If the detainee is settled, ask him or her to complete a detainee statement, and to record a plea of "guilty" or "not guilty" on that statement. If the detainee is not settled enough to complete the detainee statement, allow the detainee to make a statement at a later time (but within 24 hours of the report). An inquiry cannot be conducted without the detainee statement, because it is evidence for the inquiry. (. jj-a011) Unit Coordinator · If the detainee refuses to write a statement, ask him or her to make an entry in the statement section such as, "I do not wish to make a statement" or "no comment", and to sign the entry. If the detainee refuses to do that, note in the "Detainee's Statement" section: "detainee refused to make a statement", and ask another staff member, who witnessed the refusal, to sign that entry.

· Do not enter the detainee's plea of guilty or not guilty. The detainee must enter this. If he or she refuses, the plea section should remain incomplete.

· If the detainee requests assistance to write his or her statement, arrange for another staff member (not the reporting officer) to assist the detainee. 3 · Report all relevant information regarding the misbehaviour to the Unit Coordinator/senior officer, provide him or her with the Report of Minor Misbehaviour, and follow all directions given by the Unit Coordinator. (. jj-a011) Supervising staff (reporting officer) · Actively participate in the inquiry and, if the detainee is found guilty, participate in negotiations about the punishment. · Ask the reporting officer and the detainee to verbally describe the event that was reported, and ask questions as necessary to clarify information.

· Ask the detainee if he or she is pleading guilty or not guilty to the reported misbehaviour.

· Check the Report of Minor Misbehaviour and detainee statement, as evidence to determine if the detainee is guilty or not guilty, and if there should be a punishment or no punishment. (. jj-a011 & 4 jj-a011)

If the detainee pleads GUILTY to the minor misbehaviour and you are satisfied the plea is genuine, and convinced the detainee is guilty of the minor misbehaviour:

(Note: There are occasions when a detainee pleads guilty when another detainee was responsible for the misbehaviour; senior officers must always be aware of this, and not accept guilty pleas when there is doubt.)

· Check information in the detainee's current Case Plan, Casework Progress/Behaviour Observation form, and Case Note, to determine the most appropriate punishment. 4 jj-cw002 or jj-cw005 / 4 jj-cw014 / jj-cw018)

· Inform the detainee of the recommended punishment (from the reporting officer) and ask what he or she believes is an appropriate and reasonable punishment for the misbehaviour.

· Negotiate a punishment with the detainee and reporting officer, and where appropriate, determine a review period, and inform the detainee and reporting officer.

· Inform Unit staff of the punishment and direct them to ensure it is carried out, and that the detainee is supervised undertaking the punishment

· Direct a Unit staff member to record the detainee's name and a brief summary of the minor misbehaviour and the punishment in the Unit Log Book and the detainee's Casework Progress/Behaviour Observation form. (. jj-cw018) 4 Unit Coordinator If the detainee pleads NOT GUILTY to the minor misbehaviour:

· Allow the detainee to present further evidence (eg. from staff or other detainees) and to question the reporting officer.

· Question the detainee and staff further, using the reports and statements submitted and any additional information staff or detainees have provided.

· Determine, from the further information and questioning, if the detainee is guilty or not guilty and:

1. if the detainee is determined guilty, follow the previous procedure in this step;

2. if the detainee is determined not guilty, proceed to recording the outcome; or

3. if there is not enough evidence to determine guilt, record details in the Inquiry Details and circle "no determination".

IMPORTANT INFORMATION ABOUT CHECKING AND FINALISING DOCUMENTATION:

· The evidence and reasons for determination must be listed on the Record of Punishment - Minor Misbehaviour form (. jj-a012).

· Full details must be provided of the evidence used, including the names of both staff and detainee witnesses etc.

· Reference must also be made to all reports used and where reports are located should they be needed at a later date. If the Unit Coordinator or other senior officer determines that the detainee is guilty of minor misbehaviour: 5 Supervising staff · Record the detainee's name, a brief description of the minor misbehaviour, and the punishment in the Unit Log Book and the detainee's Casework Progress/Behaviour Observation form. (. jj-cw018)

· Ensure the punishment is carried out and that the detainee is supervised as appropriate, and as directed by the senior officer. After you have finished the inquiry and made a final decision:

· Enter the required information on the Record of Punishment - Minor Misbehaviour. (. jj-a012)

· Submit the Report of Minor Misbehaviour, detainee statement and the Record of Punishment - Minor Misbehaviour to the Unit Manager. If you determined a review period, do not submit the report until after the review has been completed. (4 jj-a011 / . jj-a012)

· If the detainee has an allocated Youth Officer for case management, ensure that officer is informed of the event.

· Ensure staff complete relevant unit, case management, and risk assessment documentation. 6 Unit Coordinator After the event, when it is time to review the punishment:

· Discuss the detainee's behaviour during the punishment with unit staff, and check documentation about the detainee for any evidence of problematic behaviour while completing the specific punishment.

· Return to the detainee at the agreed time, discuss his or her response to the punishment, inform him or her of any staff information relevant to your decision.

· Decide if the punishment can be ended or not. This should be based on the detainee's response to the punishment, eg. no significant behavioural issues during the punishment period. In the absence of such issues the punishment should be ended at the time of review.

· Inform the detainee and Unit staff of your decision.

· Direct Unit staff to record the decision in the Log Book, and record the outcome of the review on the original Record of Punishment - Minor Misbehaviour form. (. jj-a012) · Check the Record of Punishment - Minor Misbehaviour, the Report of Minor Misbehaviour and the detainee statement. (4 jj-a011 / . jj-a012)

· If the report is incomplete, return the report to the relevant Unit Coordinator (or the senior officer who conducted the inquiry) and request that it be completed and returned to you as soon as possible. (4 jj-a011 / 4 jj-a012)

7 · If the report is in order, sign the Record of Punishment - Minor Misbehaviour, the Report of Minor Misbehaviour and the detainee statement, and submit them to your supervising Assistant Manager for signature. (4 jj-a011 / . jj-a012) Unit Manager · Ensure the detainee receives a copy of the reports. (4 jj-a011 / . jj-a012)

· Fax a copy of the Report of Minor Misbehaviour to the Drug Intelligence Unit. (4 jj-a011) (not the Record of Punishment)

· Inform the Assistant Manager (Client Services) about the misbehaviour and, provide information in case a review of the detainee's risk assessment is required. 8 · In consultation with unit staff, determine if a review of the case plan is necessary, in light of the misbehaviour. If a review is necessary, arrange a meeting of relevant staff and the detainee and follow case management procedures. (& case management) Unit Manager (the Duty Manager does not have to do this. The Unit Manager can do it on his or her return to duty) · Inform the Assistant Manager (Client Services) if a review of the case plan is being arranged, and provide any additional information if a review of the detainee's risk assessment is required. (4jj-cw002 or jj-cw005) · Regularly check and sign Reports of Minor Misbehaviour and Records of Punishment - Minor Misbehaviour for the unit you supervise, and analyse them in terms of: (4 jj-a011 / . jj-a012)

o alternatives have been considered before the use of minor misbehaviour procedures;

o all minor misbehaviour reports are adequately recorded;

o all punishments given are fair and reasonable for the particular misbehaviour; 9 Assistant Manager o the full range of minor misbehaviour options are used;

o improper punishments are promptly and fully investigated.

· If you have any concerns about how misbehaviour is being managed, or documentation, inform the Unit Manager, and direct him or her to address the concerns and provide feedback.

· Inform the other Assistant Manager(s) and the Manager of any significant concerns or issues with the management of misbehaviour at the centre, inquiries, or documentation, and inform him or her of the action you have taken. 10 · If a review of the detainee's risk assessment is necessary, ensure the detainee is listed for the next Client Services Meeting (CSM), or (if necessary) convene an extraordinary meeting to re-assess risk. (& risk assessment) Assistant Manager (Client Services) · If a review of the case plan is necessary or recommended, ensure the Unit Manager arranges a review and involves appropriate staff and the detainee. (& case management) 11 · Ensure the minor misbehaviour and the punishment are recorded on the Punishment Return (this may be done during or at the end of the month). (. jj-a022) Assistant Manager (Generalist) · Ensure the Punishment Return is submitted to the Regional Director or Assistant Regional Director, via the Manager, no later than 10 days after the end of each month.(. jj-a022)

Annexure 6 Department's Code of Conduct Code of Conduct ISBN 0734765061 January 2003 January 2003 i NSW Department of Juvenile Justice Code of Conduct Code of Conduct January 2003 Table of Contents 1 Definitions .....................................................................................................3 2 General Code.................................................................................................5 Sanctions ........................................................................................................6 Ethics in Public Employment...............................................................................7 Values and Principles ........................................................................................8 Ethical Decision-Making...................................................................................10 Conflicts of Interest ........................................................................................11 3 Specific Guidelines........................................................................................12 Relationships with Clients and Former Clients.....................................................13 Acceptance of Gifts and Benefits.......................................................................14 Discrimination & Harassment ...........................................................................15 Making Public Comment ..................................................................................16 Confidentiality................................................................................................18 Use of Departmental Resources........................................................................19 Outside or Secondary Employment & Private Practice..........................................20 Political & Community Participation...................................................................21 Reporting Corrupt Conduct & Waste of Public Resources ......................................22 Post-Separation Employment ...........................................................................23 4 Compliance Requirements .............................................................................24 Compliance with Legal Requirements ................................................................25 Compliance with Departmental Policies & Guidelines ...........................................26 Sources of Authority .......................................................................................27 Appendices ......................................................................................................28 Appendix A Relevant Legislation ....................................................................29 Appendix B Relevant Departmental Policies and Guidelines ...............................30 Appendix C References .................................................................................31 Appendix D Acknowledgement of Receipt and Acceptance.................................32 January 2003 2 NSW Department of Juvenile Justice Code of Conduct Preface by Director General The Department of Juvenile Justice endorses ethical conduct as the cornerstone in building a professional and accountable organisation. The Code of Conduct sets out the basic rules and standards for proper behaviour in this organisation. A recent Departmental survey showed that employees do come up against numerous ethical dilemmas that are not easy to resolve. This is not a reflection on the individual, rather recognition of the wide variety of challenging situations that staff will be presented with when working in the complex area of juvenile justice. It is my experience that the vast majority of staff members are committed to doing their work with honesty, integrity, fairness and diligence, and are critical of anyone who does not share these values. The Department's Code of Conduct has been revised in the light of recent surveys, consultation with special needs groups as well as practical experience in using the Code as a guide for professional conduct. It expresses in simple and practical terms the values and principles embodied in the Department's Corporate Plan. While the Code of Conduct cannot cover every situation, it provides strong guidance for staff in dealing with ethical questions and dilemmas. The Code of Conduct is a key tool for developing and sustaining organisational integrity and strengthening the Department against corruption. All Departmental policies, procedures and guidelines are consistent with the standards set out in the Code. All staff members are responsible for their own personal and professional behaviour, and this Code of Conduct applies equally to everyone in the Department of Juvenile Justice. I expect senior staff and supervisors to lead by example. All staff members are required to formally acknowledge that they have received a copy of the Department's revised Code of Conduct and that they understand its contents and agree to comply with its principles. David Sherlock Director General January 2003 3 NSW Department of Juvenile Justice Code of Conduct 1 Definitions The table below defines terms used in this policy. Term Definition Conflict of interest A conflict of interest exists when it is likely that you could be influenced, or could appear to be influenced, by a personal interest in carrying out your duty as an employee. Departmental resources Departmental resources comprise anything that is paid for, owned or controlled by the Department. Resources include the following: • staff time • materials and supplies • facilities • motor vehicles, fuel, spare parts and accessories • general plant and equipment • office equipment • communication and information devices and services e.g. phones, computer equipment, Internet and email services Gifts and benefits The term 'gifts and benefits' used in this policy refers to items of value offered or given for commercial purposes in the course of business relationships to create a feeling of obligation in the receiver. Examples of gifts are: • money • alcohol • clothes • tickets. Examples of benefits are: • access to a private spectator box at a sporting venue • invitation to play golf at an exclusive club • a new job • preferential treatment, such as queue jumping • access to confidential information. Harassment Harassment is any behaviour that results in a person feeling threatened, uncomfortable, or unable to cope in their work environment. Privacy and confidentiality Privacy refers to an obligation of non-disclosure of information about a person. The obligation is to the subject of the information. Confidentiality refers to an obligation of non-disclosure of information in a way that protects the interests of the person or organisation that supplied you with the information. January 2003 4 NSW Department of Juvenile Justice Code of Conduct Term Definition Public comment Public comment is any comment made where it is expected that it will be seen or heard by members of the public. It includes the following: • speaking engagements • comment made: − on radio, television or in newspapers − in books, journals or notices − anonymously, e.g. where a face on the television is obscured − in e-mail messages going outside the Department January 2003 5 NSW Department of Juvenile Justice Code of Conduct 2 General Code This section contains the following topics: Sanctions ........................................................................................................6 Ethics in Public Employment...............................................................................7 Values and Principles ........................................................................................8 Ethical Decision-Making...................................................................................10 Conflicts of Interest ........................................................................................11 January 2003 6 NSW Department of Juvenile Justice Code of Conduct Sanctions Breaches of this Code of Conduct will attract disciplinary proceedings in accordance with the provisions of the Public Sector Employment and Management Act 2002. January 2003 7 NSW Department of Juvenile Justice Code of Conduct Ethics in Public Employment Public interest and individual rights The people of New South Wales have a right to expect the business of the State to be conducted with efficiency, fairness, impartiality and integrity. Public employment carries with it a particular obligation to the public interest. It requires standards of professional behaviour from the staff that promote and maintain public confidence and trust in the work of Government agencies. At the same time, people should not be subject to unnecessary restrictions simply because they work in the public sector. State employees have all the normal rights of employees under common and statute law. Code provides ethical framework This Code of Conduct has been developed to provide an ethical framework for decisions, actions and behaviour of Department of Juvenile Justice staff. In this regard, it explains the principles covering appropriate conduct in a variety of contexts and outlines the minimum standard of behaviour expected of employees. Code works with other policies It is not possible to address all ethical questions encountered in the work of the Department in this one document. For that reason, employees need to be aware of other Departmental policies and procedure documents. These documents provide more detail on the direction and ethos of the Department of Juvenile Justice. See 'Appendix B Relevant Departmental Policies and Guidelines' on page 30. Role of supervisors and managers Supervisors and managers need to be aware that they carry the responsibility to assist employees when the Code of Conduct and other policy documents are silent on a particular issue. January 2003 8 NSW Department of Juvenile Justice Code of Conduct Values and Principles Principles The table below presents the principles embodied in this Code of Conduct and the associated behaviour expected. Principle Expected Behaviour Implement the policies and decisions of the government of the day You must uphold the rule of law and system of Government and implement impartially the policies and decisions of the government of the day. Provide a quality service You must provide a relevant and responsive service to all clients, providing all necessary and appropriate assistance and fulfil the Department's vision, objectives and values. Maintain good working relationships You have the right to work in a safe, harmonious and equitable environment. You have a responsibility for contributing to and maintaining such an environment. You must understand and practise at all times the principles of occupational health and safety and equal employment opportunity. Values The table below presents the values embodied in this Code of Conduct and the associated behaviours expected. Value Expected Behaviour Professionalism You are expected to treat all people in a respectful and caring manner that acknowledges their human rights, cultural background, gender and stage of personal development. Honesty and integrity You are expected to act in a manner that places integrity above all other considerations. You must not use your position to gain any advantage for yourself members of your family, associates, friends or the like. Efficiency and economy You are expected to keep up to date with advances and changes in your area of expertise, and look for ways to improve your work performance. You should use your authority, available resources and information only for the work-related purposes intended. Responsibility You should ensure that your decisions and actions are reasonable, fair and appropriate to the circumstances and based on consideration of all the relevant facts available. Continued on next page January 2003 9 NSW Department of Juvenile Justice Code of Conduct Values and Principles, Continued Unacceptable behaviour outside work Lawful behaviour when you are away from the workplace is not of concern unless it brings, or has the potential to bring, discredit to the Department. Any private activity that may adversely affect your job performance is regarded as a work-related issue. Such activity could include alcohol abuse, illicit drug use or violent behaviour. You must never attend or resume work impaired by alcohol or other drugs as this puts your safety and the safety of others at risk, as well as giving the wrong message to the clients. For example, presenting for work severely hung over would be a breach of the Code of Conduct. Further detail can be found in the NSW Premier's Department, Alcohol and Other Drugs Policy and Guidelines, August 1988. January 2003 10 NSW Department of Juvenile Justice Code of Conduct Ethical Decision-Making When faced with a decision that poses an ethical dilemma, you should consider, either alone, with a supervisor or a specialist advisor the following questions: • Is the decision or conduct lawful? • Is the decision or conduct consistent with Government policy and in line with Departmental policy, objectives and Code of Conduct? • What will be the outcomes for yourself, your colleagues, your client/s, the Department and other parties? • Does the outcome from the decision raise a conflict of interest or could it lead to personal gain at public expense? • Can the decision or conduct be justified in terms of the public interest and would it withstand public scrutiny? January 2003 11 NSW Department of Juvenile Justice Code of Conduct Conflicts of Interest Definition A conflict of interest exists when it is likely that you could be influenced, or could appear to be influenced, by a personal interest in carrying out your duty as an employee. A conflict of interest which leads to biased decision-making may constitute corrupt conduct. Possible conflicts of interests The table below presents some interests that may give rise to a conflict of interest in the Department of Juvenile Justice. Possible Conflict of Interest Example Personal beliefs or attitudes that influence the impartiality of advice that you may give holding a grudge against, or disliking someone and deliberately giving them incorrect advice Personal relationships with clients, their families or their close associates that go beyond the level of a professional working relationship fostering affection from clients by buying them gifts Personal relationships with any other persons you are investigating or dealing with that go beyond the level of a professional working relationship having a close relationship with a client outside work Secondary or outside employment that compromises your integrity and/or the integrity of the Department of Juvenile Justice Note: You must obtain permission from your supervisor to engage in any employment outside the Department. working for the Department in a parttime capacity while holding full-time employment elsewhere Financial interests in a matter involving the Department, such as a contract for the supply of goods or services, or having friends or relatives with such an interest arranging a contract for a bakery owned by your cousin to supply bread to the Centre where you work Your responsibility Because you may be the only person aware of the potential for conflict of interest, it is your responsibility to avoid any financial or other interest that could compromise the impartial performance of your duties. Where an unavoidable conflict of interest arises, or has the potential to arise, you must advise your supervisor. Secondary employment If approval is granted to engage in secondary employment, you must ensure this additional work is done in your own time and does not interfere with Departmental duties or those of your colleagues. January 2003 12 NSW Department of Juvenile Justice Code of Conduct 3 Specific Guidelines This part contains the following topics: Relationships with Clients and Former Clients.....................................................13 Acceptance of Gifts and Benefits.......................................................................14 Discrimination & Harassment ...........................................................................15 Making Public Comment ..................................................................................16 Confidentiality................................................................................................18 Use of Departmental Resources........................................................................19 Outside or Secondary Employment & Private Practice..........................................20 Political & Community Participation...................................................................21 Reporting Corrupt Conduct & Waste of Public Resources ......................................22 Post-Separation Employment ...........................................................................23 January 2003 13 NSW Department of Juvenile Justice Code of Conduct Relationships with Clients and Former Clients Maintain a professional relationship You are expected to maintain a professional relationship with clients of the Department of Juvenile Justice. You must not knowingly have any personal, social or business association with: • a client, • former client, or • family or friends of a client of the Department. If you have any such association, you must immediately inform your supervisor. You are not to be professionally involved in any casework or official decisions relating to the young person. Inappropriate behaviours Employees are prohibited from engaging in behaviour that results in physical or emotional abuse of clients or their families. It is each employee's responsibility to make every effort to prevent clients being exposed to situations in which they may be exploited or neglected. You are not permitted to engage in any sexual activity with current or former clients or their family members, regardless of whether or not the person is over the age of consent to sexual relations. Statement regarding Aboriginal community: There is recognition, due to the fact that the Aboriginal community is a small community and has high intervention levels with the Justice System, that it is impossible for Aboriginal Departmental staff not to have contact with former clients. For example, attending family gatherings and community meetings might include previous clients. If the staff member perceives a conflict of interest in social/community interaction they must inform their supervisor. Aboriginal staff should refer to the paragraph on ethical decision making in section 2 of this Code of Conduct when ascertaining a possible conflict of interest. Notwithstanding this, the Aboriginal Staff Advisory Committee emphasises that staff are still not permitted to engage in any sexual activity with current or former clients and/or family members, regardless of whether or not the current or former client is of or over the age of consent to sexual relations. Further details Further details can be found in the following Departmental policies: • Client Protection Policy, and • Policy for the Management of Difficult Behaviour. January 2003 14 NSW Department of Juvenile Justice Code of Conduct Acceptance of Gifts and Benefits Acceptance of gifts not permitted As a general rule, you must not solicit or accept gifts or benefits of any sort from anyone under any circumstance. You must never accept money in any form. Gifts of nominal value You, or a member of your family, may accept a gift of nominal value but you must inform your supervisor. Examples of nominal gifts are: • inexpensive pens • pencils • notepads • key rings Gifts of more than nominal value You, or a member of your family, must not accept a gift of more than nominal value. If you, or a member of your family, are offered a gift or benefit of more than nominal value, or perhaps a bribe, you must inform your supervisor. Examples of gifts of more than nominal value include: • tickets to sporting events • discounted products for personal use • use of holiday homes • free 'training excursions' If you can't refuse Sometimes it is difficult to refuse a gift, for example if it is offered in a public way, such as to a guest speaker at a conference. All gifts, if accepted, must be regarded the property of the Department of Juvenile Justice. The Department will take responsibility for their use or disposal. If you are offered or given a gift or benefit against your will, you are required to orally report the incident to your supervisor immediately. You must follow up this report with a note in writing including the following information: • date, time and place of the incident • to whom the gift or benefit was offered, • who offered the gift or benefit and contact details (if known), • the response to the offer, • any other relevant details of the offer, and • your signature and the date The Professional Conduct Unit keeps a register of all gift offers. All offers of gifts are to be reported to the Director General via the Professional Conduct Unit. Your supervisor will make this report. IF IN DOUBT, CONSULT OR INFORM YOUR SUPERVISOR Further details Further details can be found in Gifts, Benefits or Just Plain Bribes? Guidelines for Public Sector Agencies and Officials, from the NSW Independent Commission Against Corruption, June 1999. January 2003 15 NSW Department of Juvenile Justice Code of Conduct Discrimination & Harassment Definition of harassment Harassment is any behaviour that results in a person feeling threatened, uncomfortable, or unable to cope in their work environment. Sometimes such harassment can reach a level where it may involve police action. For example, unwanted touching could result in charges of indecent or sexual assault. Examples of harassment Examples of harassment include: • Verbal abuse or threats • Unwelcome remarks, jokes, innuendoes or taunting about a person's body, attire, marital status, sex, pregnancy, ethnic or national origin, sexual lifestyle or disability • Displaying sexually suggestive, racist or other offensive or derogatory material such as posters or cartoons • Physical intimidation • Practical jokes that may cause awkwardness or embarrassment • Persistent and unwelcome invitations, requests or intimidation • Leering and/or other offensive gestures • Persistent and unwelcome physical contact such as patting, pinching, punching or touching Harassment and discrimination not permitted In accordance with the Anti-Discrimination Act 1977 (NSW), you must not harass or discriminate against your colleagues, clients or members of the public for any reason, including: • gender • physical appearance • marital status • pregnancy • age • race • ethnic or national origin • political or religious conviction • physical or intellectual impairment • sexual preference Witnessing harassment or discrimination If you witness harassment or discrimination, you should: • do something to stop it if possible, and • report it to your supervisor or other senior officer. Further details Further details can be found in the Department's Harassment Free Workplace Policy and Grievance Procedure. January 2003 16 NSW Department of Juvenile Justice Code of Conduct Making Public Comment Definition Public comment is any comment made where it is expected that it will be seen or heard by members of the public. It includes the following: • speaking engagements • comment made: − on radio, television or in newspapers (including letters to the editor) − in books, journals or notices − 'anonymously' e.g. where a face on the television is obscured − in e-mail messages going outside the Department Comment as private individuals As a private individual, you have the right to participate in public debate on political and social issues. In exercising this right, you also have the responsibility to make it very clear you are speaking as a private individual and not representing the official views of the Department of Juvenile Justice or the Government. There are some circumstances in which public comment is inappropriate. These include: • where it could be inferred that the public comment, although made in a private capacity, is in some way an official comment of the Government or of the Department of Juvenile Justice; • where public comment, even though unrelated to your normal duties, amounts to criticism sufficiently strong or persistent to give the impression that you are not prepared to implement or administer the policies of the Department or Government. Comments made on matters relating to union business by members of unions in their capacity as a local delegate within the Department or by union office holders employed by the Department are allowed under this Code, as long as the individual makes clear that the comments are made in a union capacity and not as an employee or on behalf of the Department. Disclosure of Information As an employee of the Department of Juvenile Justice you have a statutory obligation to protect and respect the clients' right to privacy and you must not publicly disclose any identifying information about any client (see section 3.5 on Confidentiality following). You should only disclose official information or documents: • in the course of your duties; • when proper authority has been given; • when required, or authorised, to do so by law; or • when called to give evidence in court. In these cases, the comments you make should be confined to factual information and to the relevant subject matter and should not, as far as possible, express an opinion on official policy or practice. Continued on next page January 2003 17 NSW Department of Juvenile Justice Code of Conduct Making Public Comment, Continued Comment to the Media The Media Unit is the central point of contact for all media inquiries. All media inquiries are to be referred to the Media Co-ordinator or Communications Officer in the first instance. In the event of these officers not being available, the Manager, Executive Services should be advised. No public comment is to be made to the media without prior approval. The Media Coordinator, in consultation with the Manager, Executive Services will decide what response is required and who should speak publicly on any given issue. In general, all comment and liaison with the media will be conducted through the Media Unit. Representing the Department Departmental officers are frequently required to represent the Department in an official capacity at interagency meetings, community forums and other meetings with outside agencies and individuals. In representing the Department you must ensure that you have the appropriate delegation and authorisation to do so and that you are sufficiently briefed on the issues likely to be raised and the appropriate Departmental responses. As a general rule, you may only disclose official information that is already in the public domain, such as the Department's Annual Reports or official media statements and avoid discussing Departmental or Government policy or offering a personal comment. The provision of information should also be consistent with Departmental and Government policy. Presentations at public forums You must have the approval of the Director General, via your supervisor, before agreeing to address or be involved in seminars or conferences run by professional associations, other organisations or non-profit bodies where the program is relevant to the public sector (refer to Director General's Instruction 184/97). An expression of interest for the Director General's approval is required where the presentation: • is related to the work of the Department; or • arises from work performed by the individual for the Department; or • involves an individual representing the Department; and • is not a presentation to an 'internal' group such as Official Visitors or a staff group. When in doubt The information above is provided as a general guide to assist you in relation to making public comment. It cannot cover every situation. If you are unsure of the appropriate response in any given situation you should discuss the matter with your supervisor or the Manager, Executive Services. January 2003 18 NSW Department of Juvenile Justice Code of Conduct Confidentiality Information for work related purposes only Official information must only be used for work related purposes and not for personal benefit. You must not access, use or disclose any official information (such as information maintained on the Client Information System and client files) without proper authorisation or lawful reason. Offence punishable by law It is an offence to unlawfully disclose information about clients under the following Acts: • Children (Detention Centres) Act 1987 • Children (Community Service Orders) Act 1987 • Young Offenders Act 1997 and • Privacy and Personal Information Protection Act 1998. Unlawfully disclosing information could result in a fine or period of imprisonment or both. You may also be liable to disciplinary action if you improperly access, use or disclose sensitive or confidential information. For example, it would be a breach of the confidentiality provisions of this Code to tell your neighbour that a certain young person was a client of the Department. Information security You must ensure that unauthorised people cannot access confidential information. You are only to discuss sensitive information, either inside or outside the Department, with people who are authorised to have access to the information. If you are unsure about who has proper authority, you must discuss the matter with your supervisor. You must maintain the secure storage of data such as client files and personnel files and report all unauthorised access to your supervisor. January 2003 19 NSW Department of Juvenile Justice Code of Conduct Use of Departmental Resources Misuse of resources Misuse of resources occurs when they are used for unofficial purposes and without proper authorisation. Your responsibility You are expected to be efficient and economical in your use of Departmental resources. You must not permit the abuse of these resources by others. Relevant policies You should be familiar with and follow the policies below: • DJJ Electronic Communication Devices Policy • DJJ Motor Vehicles Fringe Benefits Tax Guidelines • Premier's Department Motor Vehicle Policy Use of meeting rooms and equipment Group 3 Delegated Officers and Assistant Regional Directors may approve the use of facilities such as meeting rooms and equipment by non-profit professional and community organisations as long as there is no significant cost to the Department of Juvenile Justice. However, staff members who are responsible for approving the use of rooms by community groups should be mindful of public liability issues. Some facilities, such as swimming pools, carry a significant risk. A formal agreement must be entered into by the organisation intending to use the resource whereby the Department is indemnified against loss or damage. Examples of misuse of resources Offering a lift to a private passenger in a Departmental vehicle without prior approval of your manager is a breach of the Code of Conduct and of the Department's Motor Vehicle Fleet Policy. Using equipment owned by the Department, such as a lawnmower or a video camera, for private purposes is not permitted and is a breach of the Code of Conduct. January 2003 20 NSW Department of Juvenile Justice Code of Conduct Outside or Secondary Employment & Private Practice Approval required for outside employment You must seek approval from the Director General if you wish to undertake any form of paid employment or private practice outside the Department of Juvenile Justice, as required under the Public Sector Employment and Management Act 2002. Need to consider effect on Departmental duties In applying for outside (or secondary) employment, you must carefully consider whether the secondary employment may adversely affect the performance of your Departmental duties or give rise to a conflict of interest. This applies whether you are full-time, part-time or temporarily employed. January 2003 21 NSW Department of Juvenile Justice Code of Conduct Political & Community Participation Your responsibility You must ensure that any participation in party political activities does not conflict with your duty as a public employee to serve the government of the day in a politically neutral manner. This is important because of the need to maintain Ministerial and public confidence in the impartiality of the actions taken and advice given by employees. Duty to report If you become aware that a conflict of interest has arisen or might arise, you must notify the Director General immediately. You may be required to cease the political activity or withdraw from the area of work from where the conflict has arisen. Contesting elections Special arrangements apply to public servants who are contesting a State or Federal election. Details of these arrangements are in the following circulars: • Premier's Department Circular No. 95-4: Public Employees Contesting State Elections • Public Employment Office Circular 96-7: Standing for Election to the Commonwealth Parliament Participation as volunteers Employees are free to fully participate as volunteers in community organisations, charities and professional associations, subject to the requirements of: • this Code of Conduct, and • the Public Sector Employment and Management Act 2002. January 2003 22 NSW Department of Juvenile Justice Code of Conduct Reporting Corrupt Conduct & Waste of Public Resources Duty to report You have a public duty to report any: • corrupt conduct, • maladministration, or • serious and substantial waste of public resources. Please refer to the Department's Internal Reporting Policy for information on how to make your report. Right to support and protection You are entitled to ask for support and protection when you make a report of corrupt conduct, maladministration or waste of public resources. To gain this support, you must follow the reporting procedures set out in the Department's Internal Reporting Policy. (This protection does not apply in cases of vexatious or malicious allegations.) Right to be notified about action taken If you make a disclosure in accordance with the Department's Internal Reporting Policy, you are entitled to be notified of the action taken or proposed in relation to your report. January 2003 23 NSW Department of Juvenile Justice Code of Conduct Post-Separation Employment Do not use position to obtain employment Apart from developing skills that you are entitled to use elsewhere, you must not use your position in the Department to obtain opportunities for future employment. You must not be influenced in your work by plans for, or offers of, employment outside the Department. Do not use confidential information When you leave the Department, you must not use or take advantage of confidential information that may lead to gain or profit obtained in the course of your official duties, until the information has become publicly available. Deal fairly with former employees All staff should use integrity when dealing with former employees of the Department. You must not give them, or appear to give them, favourable treatment or access to privileged information. January 2003 24 NSW Department of Juvenile Justice Code of Conduct 4 Compliance Requirements This part contains the following topics: Compliance with Legal Requirements ................................................................25 Compliance with Departmental Policies & Guidelines ...........................................26 Sources of Authority .......................................................................................27 January 2003 25 NSW Department of Juvenile Justice Code of Conduct Compliance with Legal Requirements Terms and conditions of employment As New South Wales Public Servant, your terms and conditions of employment are set out in the Public Sector Employment and Management Act 2002 and its Regulation. These should be read in conjunction with the NSW Public Sector Personnel Handbook. Handling public monies and assets Whenever you are required to handle public monies and assets, you must comply with the Public Finance and Audit Act 1983. Awareness of Acts and Regulations As an employee of the Department of Juvenile Justice, you are expected to be aware of the Acts and Regulations that legally govern the management of juveniles who have been charged with and/or convicted of criminal offences. You are also expected to familiarise yourself with any other legislation that particularly applies to your job. January 2003 26 NSW Department of Juvenile Justice Code of Conduct Compliance with Departmental Policies & Guidelines Requirement to comply with policies and regulations With regard to the Departmental policies and guidelines, you must: • inform yourself about, and comply with: − Director General's Instructions, − all Departmental policies, operational guidelines and procedures, and − all local instructions and directions, • obey all lawful or reasonable orders given by any person or body with the authority to give the order, • apply all lawful Departmental policies, whether or not you personally agree with or approve of them, • always act in accordance with your legal duty of care to clients, and • not follow any unlawful order. Objections to policy or practice If you have a strong objection to any Departmental policy or practice, you may express your objection either verbally or in writing to your supervisor or any member of the Department's executive.. January 2003 27 NSW Department of Juvenile Justice Code of Conduct Sources of Authority Relevant legislation The main legislation applying to employees is the: • Public Sector Employment and Management Act 2002, and • Public Finance and Audit Act 1983. Other principal legislation relevant to employees of the Department is listed in 'Appendix A Relevant Legislation' on page 29. Departmental policies and guidelines 'Appendix B Relevant Departmental Policies and Guidelines' on page 30 provides a list of Departmental policies, guidelines and Director General's Instructions that have been referred to in the preparation of this Code of Conduct. January 2003 28 NSW Department of Juvenile Justice Code of Conduct Appendices This section contains the following appendices. Appendix A Relevant Legislation .......................................................................29 Appendix B Relevant Departmental Policies and Guidelines ..................................30 Appendix C References....................................................................................31 Appendix D Acknowledgement of Receipt and Acceptance....................................32 January 2003 29 NSW Department of Juvenile Justice Code of Conduct Appendix A Relevant Legislation The following is a list of the relevant legislation which applies to employees in the Department. • Anti-Discrimination Act 1977 (NSW) • Children and Young Persons (Care and Protection) Act 1998 • Children (Community Service Orders) Act 1987 • Children (Detention Centres) Act 1987 • Crimes Act 1900 • Freedom of Information Act 1989 • Independent Commission Against Corruption Act 1988 • Industrial Relations Act 1996 • Occupational Health and Safety Act 2000 • Ombudsman Act 1974 • Privacy and Personal Information Protection Act 1998 • Protected Disclosures Act 1994 • Public Finance and Audit Act 1983 • Public Sector Employment and Management Act 2002 • Young Offenders Act 1997 Other legislation, such as the Health Administration Act 1982 or the Psychologists Act 2001, may be relevant to a particular professional area of responsibility. Practising professionals who are employees of the Department should be familiar with and comply with the legislation relating to their area. January 2003 30 NSW Department of Juvenile Justice Code of Conduct Appendix B Relevant Departmental Policies and Guidelines The following is a list of the relevant policies, guidelines and Director General's Instructions which have been referred to when preparing this Code of Conduct. • Australasian Juvenile Justice Administrators: Standards for Juvenile Justice Custodial Facilities • Case Management Policy • Client Protection Policy (replaces Policy on the Provision of a Protective Abuse-Free Environment) • Corporate Plan • Director General's Instructions, in particular Instruction No. 160/96 (Motor Vehicle Fleet Policy), Instruction No. 184/97 (Staff Attendance / Presentations at External Conferences / Workshops) and Instruction No. 223/01 (Communication Devices Policy). • Disability Strategic Plan • Equity Action Plan • Electronic Communication Devices Policy • Ethnic Affairs Priorities Statement • Harassment Free Work Place Policy and Grievance Procedures • Health Services Operations Procedures • Human Resources Policies and Procedures Guide • Internal Reporting Policy • Juvenile Justice Community Policy and Procedures Manual • Language Service Policy • Motor Vehicle Fleet Policy • Motor Vehicle Fringe Benefits Tax Guidelines • Operations Procedures Manual for Juvenile Justice Centres • Policy and Procedures for the Resolution of Client Complaints • Policy for the Management of Difficult Behaviour • Policy on the Design and Use of Incentive Schemes in Juvenile Justice Centres • Policy on the Management of Suicide and Self-Harm in Juvenile Justice Centres • Reasonable Adjustment Policy • Suicide Prevention Policy January 2003 31 NSW Department of Juvenile Justice Code of Conduct Appendix C References NSW Independent Commission Against Corruption, Codes of Conduct: The Next Stage, March 2002. NSW Independent Commission Against Corruption, Gifts, Benefits or Just Plain Bribes? Guidelines for Public Sector Agencies and Officials, June 1999. NSW Premier's Department Circular No. 97-49, Participation in Not-For-Profit and Commercially Run Conferences and Seminars August 1997. NSW Premier's Department, Alcohol and Other Drugs Policy and Guidelines(PDF), August 1988. NSW Premier's Department, Model Code of Conduct for NSW Public Agencies Policy and Guidelines, May 1997. NSW Premier's Department, Policy & Guidelines for the Use by Staff of Employer Communication Devices(PDF), January 1999, ISBN 0 7313 3097 8. NSW Premier's Department, Motor Vehicle Policy for New South Wales Government Agencies September 2002. NSW Premier's Department Circular No. 95-4, Public Employees Contesting State Elections. Public Employment Office Circular 96-7, Standing for Election to the Commonwealth Parliament. January 2003 32 NSW Department of Juvenile Justice Code of Conduct Appendix D Acknowledgement of Receipt and Acceptance All staff are required to acknowledge receipt and acceptance of this Code of Conduct using the Acknowledgement of Receipt of Briefing and/or Training form.

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