Ryan v Director General of New South Wales National Parks and Wildlife Service and Anor

SECOND RESPONDENT: Department of Environment and Conservation formerly known as The National Parks and Wildlife Service on behalf of the Public Employment Office FILE NUMBER: IRC 6133 of 2003 CORAM: Schmidt J CATCHWORDS : Declaratory Relief - inquiry under Public Sector Management Act 1988 and Regulations - interpretation - mandatory procedures - failure to comply with Regulations - consequences - Telecommunications (Interception) Act 1979 - interpretation - information in public domain - further communication of information not prohibited - Independent Commission Against Corruption Act 1988 - protected evidence - inappropriate consideration of protected evidence found - orders made Independent Commission Against Corruption Act 1988 Industrial Relations Act 1996 LEGISLATION CITED : Public Sector Management Act 1988 Public Sector Management (General) Regulation 1996 Telecommunications (Interception) Act 1979 (Cth) Director of Public Prosecutions v Serratore (1995) 38 NSWLR 137 CASES CITED : Kizon v Palmer (1996) 142 ALR 488 Public Employment Industrial Relations Authority and Ors v Public Service Association of New South Wales (re Scorzelli and Ors) (1993) 49 IR 169 HEARING DATES: 04/19/2004; 04/20/2004 DATE OF JUDGMENT: 06/04/2004

APPLICANT: Mr D Shoebridge of counsel SOLICITORS: Rockliffs LEGAL REPRESENTATIVES: RESPONDENT: Mr P Kite SC with Ms E Brus of counsel SOLICITORS: IV Knight

JUDGMENT: - 32 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

SUSANNE KAY RYAN v DIRECTOR GENERAL OF THE DEPARTMENT OF ENVIRONMENT AND CONSERVATION FORMERLY KNOWN AS DIRECTOR GENERAL OF NATIONAL PARKS AND WILDLIFE SERVICE AND ANOTHER Application by Susanne Kay Ryan for declaratory relief under s154 of the Industrial Relations Act 1996

1 This is an application for declaratory relief under s154 of the Industrial Relations Act 1996 ('the Act'). The application arises out of the applicant's employment by the respondent and an inquiry conducted under the Public Sector Management Act 1988 ('the PSMA'), in relation to whether the applicant had committed certain breaches of discipline.

2 Recommendations were made in the inquiry as to certain charges to be laid against the applicant. It was the applicant's case that the charges exceeded the authority of the person appointed to conduct the inquiry and that the conduct and recommendations of the inquiry were unlawful and in breach of the PSMA, the Independent Commission Against Corruption Act 1988 ('the ICAC Act'), and the Regulations made thereunder, as well as the Telecommunications (Interception) Act 1979 (Cth).

3 The declaration sought was: 1. The Applicant is, and at all times has been, employed by the Second Respondent since 26 April 2000;

2. The purported termination of the Applicant's employment by the First Respondent of 11 July 2003 is void;

3. The applicant is entitled to be paid all superannuation, wages and other emoluments pertaining to her position as Human Resources Manager, Clerk Grade 9, in the employ of the Second Respondent and to retain all leave and other entitlements accruing and accrued to that position in the period from 26 April 2000 to date, save as to monies paid by the Respondents excluding as to leave taken during the disciplinary period;

5. Interest pursuant to s372 of the Industrial Relations Act 1996 in relation to all monies payable to the Applicant;

6. Such other or further orders as his Honourable Court deems fit.

4 Evidence was called from the applicant and a number of documents were tendered. The evidence showed that whilst employed as a Human Resources Manager by the National Parks and Wildlife Service ('NPWS'), the applicant made a protected disclosure to the New South Wales Ombudsman. In 2000 and 2001, the Independent Commission Against Corruption ('ICAC') conducted an inquiry into the matters so raised. The applicant gave evidence at the inquiry. Sections 37 and 38 of the ICAC Act applied to the applicant's evidence.

5 In December 2001 the ICAC report was made public. Amongst other things, the report recommended that consideration be given to the laying of certain criminal and disciplinary charges against the applicant. Certain information concerning the applicant was also later provided by the ICAC to the NPWS.

6 On 11 January 2002, the applicant was charged with two alleged breaches of discipline under s66 of the PSMA. She was suspended from duty without pay and on 22 February, the charges were amended, by addition of a third charge. These charges provided: 1. That you did engage in misconduct on 23 January 2001 when you passed on confidential information from Ms Penelope Spoelder's personal file to Mr John Patrick Kite who is an unauthorised person with no reasonable need to access this material.

2. That you did engage in misconduct on 1 February 2001 when you passed on confidential information from Ms Penelope Spoelder's persona file to Elizabeth Ahern who is an unauthorised person with no reasonable need to access this material.

3. That you did engage in misconduct by giving Mr John Patrick Kite unsupervised access to his personal file on or before 24 November 2000.

7 Investigation of the charges was apparently delayed because the Director of Public Prosecution was also considering whether criminal charges should be laid against the applicant. On 9 October 2002, Ms Helen Colbey was appointed by the Director General of the NPWS to conduct a preliminary inquiry into the charges, pursuant to s74 of the PSMA. Particulars of the charges were sought by the applicant.

8 In November, Ms Colbey advised the applicant of the material to which she proposed to have regard in her inquiry and invited submissions from the applicant. Certain extensions of time to provide those submissions were granted. The applicant's submissions were not filed within time, but when received by Ms Colbey, were nevertheless considered by her. They also caused her to investigate certain matters further, before making her report. The information obtained in these further inquiries were not put to the applicant for submission, before Ms Colbey made her report.

9 Ms Colbey's report was made to the Director General in March 2003. Ms Colbey recommended that one of the charges she was considering not be pursued and that two new charges be laid. The recommendations were accepted and the charges were later found to have been made out. Eventually the applicant's employment was terminated pursuant to s75 of the PSMA.

10 Mr Shoebridge of counsel submitted for the applicant that the termination was void, for a variety of reasons. Firstly, that the respondent had failed to act in accordance with the requirements of the PSMA, as discussed in Public Employment Industrial Relations Authority and Ors v Public Service Association of New South Wales (re Scorzelli and Ors) (1993) 49 IR 169 at 184 -186.

11 Ms Colbey was appointed to deal with three alleged breaches of discipline. The Regulations made under the PSMA prescribed how such alleged breaches may be dealt with, in clauses 22 and 26. Ms Colbey conducted her inquiry inconsistently with those obligations in a number of ways. The result was that the requirements of s75 of the PSMA had not been satisfied, so that the dismissal which followed was void.

12 It was also argued that the inquiry had been conducted inconsistently with the delegation given Ms Colbey. Clause 22 of the Regulations limited the inquiry to the subject matter dealt with in the delegation. Ms Colbey had recommended the laying of two further charges against the applicant, inconsistently with the delegation and the requirements of clause 22. Furthermore, the applicant had been given no opportunity to deal with the matters referred to in the fourth charge, inconsistently with the requirements of the PSMA.

13 It was also argued that the inquiry had been conducted inconsistently with the provisions of s37 of the ICAC Act. Material inadmissible in the inquiry had been considered.

14 It was also argued that the requirements of the Telecommunications (Interception) Act had been breached by the ICAC, in the material it had provided to the NPWS.

15 The case advanced for the respondent by Ms Brus of counsel, appearing with Mr Kite SC, was that there had been no breach of any aspect of the various statutory provisions relied upon and that the termination had been validly made.

16 The issues here before the Court do not concern the fairness or otherwise of the conduct of the ICAC inquiry; the inquiry conducted by Ms Colbey; the applicant's treatment in her employment by the NPWS; the decision to terminate her employment; or the propriety of her conduct in that employment. Rather, the consequences of various steps taken by ICAC and the NPWS arise for consideration, having regard to the relevant statutory provisions which governed their conduct in relation to the applicant. Mandatory provisions of the PSMA and the Regulations

17 It is convenient to deal at the outset with the submissions made in relation to the alleged failure to comply with mandatory requirements of the PSMA and the Regulations. The relevant provisions of the PSMA and the Regulations provide: 66 Breaches of discipline

(1) An officer is guilty of a breach of discipline if the officer: (a) contravenes this Act or the regulations, or (b) engages in any misconduct, or (c) consumes or uses alcohol or drugs to excess, or (d) intentionally disobeys, or intentionally disregards, any lawful order made or given by a person having authority to make or give the order, or (e) is negligent, careless, inefficient or incompetent in the discharge of his or her duties, or (f) engages in any disgraceful or improper conduct, or (g) takes 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, or (h) takes any disciplinary proceedings or disciplinary action against another officer that is substantially in reprisal for an internal disclosure made by that officer. (2) In this section, internal disclosure means a disclosure made by an officer regarding an alleged breach of discipline by another officer belonging to the same Department as that to which the officer belongs.

74 Procedure for dealing with breaches of discipline (1) A breach of discipline alleged to have been committed by an officer shall be dealt with by the appropriate Department Head. (2) Subject to this Division, the regulations may: (a) make provision for or with respect to the manner of dealing with alleged breaches of discipline, and (b) prescribe all matters that are necessary or convenient to be prescribed for carrying out or giving effect to this Division. (3) Section 83 (Powers of persons conducting special inquiries) applies to a disciplinary inquiry in the same way as it applies to a special inquiry.

75 Punishment of officers for breaches of discipline

(1) If: (a) an alleged breach of discipline is dealt with in accordance with the regulations, and (b) the officer concerned is found to have committed the breach or admits to the person or persons dealing with the breach that the officer committed the breach, the appropriate Department Head may decide to: (c) impose on the officer one or more of the punishments specified in subsection (2), or (d) dismiss the officer from the Public Service or direct that the officer resign, or be allowed to resign, from the Public Service within such period as the direction specifies, or (e) in the case of an officer on probation - annul the officer's appointment. (2) For the purpose of subsection (1) (c), the following punishments are specified: (a) a caution, (b) a reprimand, (c) a fine, (d) except in the case of a senior executive officer, reduction of salary or demotion to a lower position in the Public Service. (3) If: (a) the appropriate Department Head, in the exercise of powers conferred by this section, decides to direct an officer to resign, or be allowed to resign, from the Public Service within a period specified in the direction, and (b) the officer does not resign within that period, the Department Head may decide to dismiss the officer from the Public Service. (4) A decision of a Department Head under subsection (1) or (3) may be implemented at any time, but a decision of a Department Head under subsection (1) (d) or (e) or subsection (3) to dismiss an officer from the Public Service or to annul an officer's appointment must not be implemented without the approval of the Governor. (5) Subsection (4) is subject to Part 3 of the Government and Related Employees Appeal Tribunal Act 1980. (6) If a Department Head decides to dismiss an officer from the Public Service in accordance with subsection (1) (d) or (3), the decision shall be treated as a decision of the kind referred to in section 23 (1) (f) of the Government and Related Employees Appeal Tribunal Act 1980 even though the decision has not been approved by the Governor. (7) Any appointment required by a punishment specified in subsection (2) (d) shall be made by the appropriate Department Head. (8) If a fine is imposed under this section on an officer, the person responsible for paying the officer's salary must, on receiving notice of the imposition of the fine, deduct the amount of the fine from the salary payable to the officer, in such manner as the appropriate Department Head directs.

18 The Public Sector Management (General) Regulation 1996 relevantly provides: Division 1 Preliminary 19 Definitions In this Part: disciplinary inquiry means an inquiry held in accordance with this Part in connection with a breach of discipline alleged to have been committed by an officer other than a chief executive officer. the senior officer, in relation to an officer, means the senior officer in the branch or section of the Department in which the officer is employed. Division 2 Charges and preliminary inquiries 20 Charges and institution of preliminary inquiries for alleged breaches of discipline (1) If it appears to the appropriate Department Head or the senior officer that an officer (other than a chief executive officer) has committed a breach of discipline: (a) the officer may be charged with the alleged breach of discipline (either orally or in writing) by the Department Head or senior officer, and if so charged, the Department Head is to institute a preliminary inquiry into the matter, or (b) the Department Head may (without the officer being charged) institute a preliminary inquiry into the matter. (2) The senior officer who has charged an officer with an alleged breach of discipline or who considers that an officer should be so charged must immediately report the matter to the appropriate Department Head. (3) A person who charges an officer orally must, within 10 days after making the charge, confirm the charge in writing. 21 Appointment of person to conduct preliminary inquiry (1) The appropriate Department Head may personally conduct a preliminary inquiry or may appoint a person to conduct the preliminary inquiry. (2) The appropriate Department Head may so appoint any public servant, retired public servant or other person that the appropriate Department Head considers suitable to conduct the preliminary inquiry. (3) A person who has charged an officer with a breach of discipline is not eligible to conduct the preliminary inquiry. 22 Conduct of preliminary inquiry (1) A person conducting a preliminary inquiry must investigate the matter the subject of the inquiry. (2) A preliminary inquiry is, subject to this Part and any direction of the appropriate Department Head, to be conducted in such manner as the person conducting the inquiry thinks fit and without legal formality. (3) A formal hearing is not to be held before the person conducting the preliminary inquiry and witnesses are not to be called for examination or cross-examination by the officer under investigation or by any person acting on the officer's behalf. (4) However, the person conducting a preliminary inquiry must give the officer under investigation an opportunity to make written representations or, if the person conducting the inquiry approves, oral representations concerning the matter the subject of the inquiry. 23 Report of results of preliminary inquiry (1) The person conducting a preliminary inquiry is to prepare a written report of the results of the inquiry. (2) If a person other than the appropriate Department Head is conducting the inquiry, the person must furnish the Department Head with the report within the time specified by the Department Head or within such further time as the Department Head may from time to time allow. (3) The report: (a) must set out briefly the facts on which the person who conducted the inquiry relies in reaching the conclusions set out in the report, and (b) must recommend whether: (i) the charge should be dismissed or no charge made (as the case requires), or (ii) the inquiry should proceed and the officer be dealt with for a breach of discipline, and (c) may recommend: (i) if the officer has been charged - that the charge should be amended or further charges made, or (ii) if the officer has not been charged - the charges that should be made. Division 3 Action after preliminary inquiry 24 Action by Department Head after report of result of preliminary inquiry (1) The appropriate Department Head may, after considering the report of the results of a preliminary inquiry (but without being bound by the findings or recommendations contained in the report): (a) dismiss the charge or decide that the officer should not be charged (as the case requires), or (b) decide to proceed with the disciplinary inquiry (and for that purpose may charge the officer or, if already charged, amend the charge or make further charges). (2) If the appropriate Department Head decides to proceed with the disciplinary inquiry, the Department Head must: (a) notify the officer in writing of the charge (including any amended or further charge) and of the particulars of that charge, and attach to that notice a copy of the report of the result of the preliminary inquiry, and (b) call on the officer: (i) to deny or admit the truth of the alleged breach of discipline, and (ii) to show cause why the officer should not be punished for that breach of discipline, and to do so in writing within the time stipulated in that notice to the officer. (3) The notice must inform the officer that the officer may, in the reply to the notice, request an interview to discuss the matter in person with the Department Head. (4) The Department Head may determine the charge without discussing the matter with the officer if: (a) a reply to the notice is not received by the appropriate Department Head within the time stipulated in the notice, or (b) a reply to the notice is received by the Department Head within the time stipulated in the notice but the officer does not request an interview. (5) If a reply to the notice is received by the appropriate Department Head within the time stipulated in the notice and the officer requests an interview, the Department Head may determine the charge after duly making arrangements for the interview and, if the officer attends, after duly discussing the matter with the officer. (6) A Department Head, in determining whether an officer has or has not committed a breach of discipline, may take into consideration only those matters disclosed at any interview with the Department Head or in any of the following documents: (a) the report of the result of the preliminary inquiry, (b) any reply made by the officer to the charge, (c) the report of the result of any further inquiry instituted by the Department Head. (7) Subclause (6) does not prevent a Department Head taking into consideration any matter of which a court is entitled to take judicial notice. 25 Interview with Department Head (1) The appropriate Department Head is to give an officer at least 14 days' notice of the time and place at which an interview will be held under this Division to discuss the charge against the officer. (2) The person who conducted the preliminary inquiry must, if the appropriate Department Head so directs, also attend the interview. (3) The appropriate Department Head is not to hold a formal hearing into the charge or allow witnesses to be called for examination or cross-examination at an interview by the officer charged or by any person acting on the officer's behalf. (4) However, the appropriate Department Head may, because of any matter arising at an interview or at any other time, institute further inquiries into the matter and consider further reports on the results of those inquiries. (5) If further inquiries are instituted: (a) Division 2 applies to the further inquiries, and (b) the appropriate Department Head may determine the charge without a further interview with the officer charged. Division 4 General 26 Observers, inspection of documents and other matters (1) During any discussion or interview with the appropriate Department Head or other person conducting a disciplinary inquiry: (a) the officer under investigation or charged may nominate a person (other than a practising barrister or practising solicitor) to speak on the officer's behalf if the Department Head or other person conducting the inquiry is satisfied that the officer is not able to speak effectively on his or her own behalf, and (b) the officer is entitled to have a person of the officer's choice present as an observer, but not to take part in the discussion or interview. (2) An officer subject to a disciplinary inquiry or any person acting on the officer's behalf may inspect the Departmental papers, correspondence, reports or other documents relating to the matter at such time as may be arranged with the appropriate Department Head or other person conducting the inquiry. (3) The appropriate Department Head or other person conducting a disciplinary inquiry must not disclose confidential information obtained during the inquiry except for the purposes of the inquiry or any proceedings arising from the inquiry. 27 Delegation of functions by Department Head If the appropriate Department Head has delegated the Department Head's functions to deal with a breach of discipline, a reference in this Part to the appropriate Department Head is to be read as a reference to the delegate.

19 In Scorzelli, the Full Court was dealing with the proper construction of the PSMA and the Regulations then in operation. Amongst other things, at issue was whether charges there brought under s66 of the PSMA had to be dealt with in accordance with the requirements of those Regulations. The parties were at issue as to whether or not the procedures established by the Regulations were mandatory, so that any failure to comply strictly with them, resulted in invalidity, or directory, so that substantial compliance with them, or only minor departures from them, would not invalidate the whole procedure. At p184, the Full Court concluded: In our opinion the requirement of cl 27(2) to provide particulars is mandatory having regard to the purpose and nature of the whole scheme; that scheme reflects the seriousness of the subject matter of disciplinary action and its consequences The structure of the process afforded by the PSM Act and Regulation, namely, the division of the process into a preliminary inquiry (before or after a charge is made), the provision of a report of the results of the inquiry and, if it is decided to proceed further with the inquiry, the notification to the officer in writing of the charge (or any amended or further charge) AND the particulars thereof AND a copy of the report BEFORE proceeding further with the inquiry make it abundantly clear that it is fundamental and a condition precedent to subsequent action that the prior procedures be scrupulously observed. Indeed it may be considered that the legislative scheme is overly detailed and intricate. But that simply confirms the importance which the legislation attaches to the subject matter. The scheme is obviously designed to ensure that the officer concerned is given every opportunity of answering any allegations and/or charges made and that they are thoroughly investigated. For those purposes to be fulfilled it is necessary for the officer to be fully aware of the precise charge and its component particulars so that the officer may properly defend or answer them. In our opinion, the legislative scheme offers a more streamlined, less legalistic, procedure than that which obtained under the Public Service Act 1979, but it cannot be construed as imposing no, or only a partial, duty to comply with its requirements, breach of which could result in a slipshod, "cavalier" (to use Hunt J's adjective in Etherton v Public Service Board [1983] 2 NSWLR 297; 6 IR 323 attitude to procedure.

20 The Full Court also then expressly dealt with the requirements of clauses 25(4), 27(2), 27(7) and 28 of the then Regulation. At p190-1 the Full Court turned to consider a 'decision to charge ... having regard to fresh evidence contrary to clause 27(7) without the material being put to Mr East contrary to the scheme of clause 27 and 28'. It was concluded that 'if the procedure was, as here, in substantial deviation from the proper course then the result of the inquiry, the imposition of penalty is void'.

21 The Regulations which applied at the time here in question were different in some respects to those considered in Scorzelli. What has, in my view, remained unchanged, however, is the nature of the scheme established by the PSMA and the Regulations, namely as described by the Full Court in the way earlier quoted. I am satisfied that compliance with that scheme was also mandatory at the time here in question and that, on the evidence, there were a number of fundamental departures from what was there required, in the approach adopted in the inquiry conducted by the NPWS.

22 The mandatory nature of the scheme no doubt explains why the Premier's Department Personnel Handbook refers in clause 9-2.8 to an inquirer such as Ms Colbey having 'a measure of freedom in determining how the inquiry should be conducted provided there is compliance with the Act, the Regulation and the principles of procedural fairness', as well as requiring in clause 9-2.8.2: 'The inquirer should notify the officer the subject of the inquiry, when the inquirer is ready to give the officer an opportunity to make written representations with the respect to the matter, in accordance with cl. 22 (4). Generally, the officer should not be interviewed or required to make his or her representations until all the evidentiary material (eg, transcripts of interviews and other documents) dealing with the allegations against the officer has been collected.

An officer subject to a preliminary inquiry should also be given a reasonable opportunity to prepare and present his or her representations.

23 This is reiterated in Clause 9-2.8.4 of the Handbook which provides: As indicated above, an officer or any person acting on his or her behalf may inspect the departmental papers, correspondence, reports or other documents relating to the matter at such time as may be arranged with the department head or other person conducting the inquiry (cl. 26(2)).

Although an officer is not entitled to use working time to prepare for a disciplinary inquiry, departments should use some discretion to ensure that the officer is not prevented from properly preparing for the inquiry.

24 Ms Colbey advised the applicant on 15 November 2001 that she proposed to: '… have regard to as part of the preliminary inquiry process:

A transcript of a telephone intercept of 23/1/01 which was played on 6 August 2001 in the hearing before ICAC into matters concerning John Kite and the National Parks and Wildlife Service and was marked Exhibit 108 in that hearing.

A Statutory Declaration signed by you dated 1/2/01 and provided to the National Nine Network Pty Ltd (Channel 9).

National Parks and Wildlife Service Human Resource Management Confidentiality Agreement signed by you and dated 26/4/00.

I also intend to have regard to: · The ICAC Report on investigation into matters concerning John Kite and the National Parks and Wildlife Service where relevant and appropriate to the Preliminary Inquiry · The NPWS Code of Conduct · Ms P Spoedler's personal file and in particular but not necessarily limited to: Ø Her various applications for appointment to a number of positions in NPWS Ø Details contained on that file relating to an investigation that took place in 1994 into allegations of corruption by NPWS officers including Ms Spoedler relating to the determination of the Thredbo Master Plan Amendment EIS for Crackenback Ridge.

25 The Colbey report makes clear that in conducting the preliminary inquiry, Ms Colbey had regard to material other than that so disclosed to the applicant in the letter of 15 November. The applicant was not given an opportunity to have access to the documents and other material, which Ms Colbey obtained after the applicant had made her submissions. This was material to which Ms Colbey had regard, in addition to the material outlined in her letter of 15 November. In some instances, the material was obtained on the same day as the report was given.

26 Ms Colbey's report makes clear that she had regard to the submissions made by the applicant, even though received out of time and that they led her to a further chain of inquiry. The result was that further evidence was gathered, to which Ms Colbey had regard in the conclusions which she reached, but which was not revealed to the applicant. Ms Colbey was conscious that the applicant had not been given an opportunity to deal with that material, but nevertheless, concluded that it was unnecessary to provide that opportunity. She said: 'It should be noted that Ms Ryan was not provided with the information outlined above from Ms Anderson and Ms Rapana as it arose out of questions raised following on from Ms Ryan's written response to me. I have considered whether to provide this information to Ms Ryan prior to finalising the report to the preliminary inquiry. I have weighed up the nature of the information, its relevance to my findings and the concern to minimise any further delays associated with finalising this matter both for Ms Ryan and NPWS.

As part of the natural justice process associated with the preliminary inquiry procedures, Ms Ryan will of course have the opportunity to comment on my report prior to any determination being made by the Director General, (if the preliminary inquiry proceeds), when she is provided with a copy of the report and all of the attachments. The Director General will then have the opportunity to consider her further comments before making any determination. Having regard to all of the circumstances I have decided not to provide any further information to Ms Ryan prior to finalising my report.

27 It was argued for the respondent that the applicant suffered no adverse consequence as a result of this approach, because the applicant later had another opportunity to make submissions to the Director General under clause 24 of the Regulations. It seems to me that this approach is not consistent with that of the Full Court in Scorzelli. It also paid no regard to the provisions of clause 26(2), which entitled the applicant to inspect the documents in question. Nor did it take account of the fact that when later determining whether a breach of discipline had been committed, clause 24(6) of the Regulations permitted the Director General to have regard to the result of Ms Colbey's preliminary inquiry. In the context of this statutory scheme, it is clear that an opportunity to respond to Ms Colbey's report after it was made, in the further inquiry to be subsequently conducted under the Regulations, is not the same as an opportunity to make representations about the subject matter of the inquiry, to Ms Colbey, the person conducting the inquiry, prior to her making her preliminary report. The scheme established by the Regulations envisages that the officer charged will have both.

28 The practical difficulty with the approach adopted is also illustrated by the fact that while Ms Colbey was appointed to enquire into the three charges earlier set out, she determined that one of these not be proceeded with, but that two more be laid. I will return to this below, but observe at this point that the information upon which this new aspect of the charges rested, was pursued by Ms Colbey after the applicant had made her submissions. The result was that the applicant had no opportunity at all to make submissions about these new matters, before the new charges emerged. This, too, undermined the scheme established by the Regulation, particularly the provisions of clause 20(1).

Whether the Inquiry travelled beyond the statutory authority

29 The next matter which it is necessary to deal with, is the complaint made about two of the charges recommended by Ms Colbey. Her instrument of appointment provided that she was: ' … to conduct a preliminary inquiry into an apparent breach of discipline within the meaning of section 66 of the Public Sector Management Act 1988, alleged to have been committed by Ms Susanne Ryan, an officer of this Department. The apparent breach of discipline is detailed below:

1. That Ms Ryan did engage in misconduct on the 23rd January 2001 when Ms Ryan passed on confidential information from Ms Penelope Spoelder's personal file to Mr. John Patrick Kite who is an unauthorised person with no reasonable need to access this material

2. That Ms Ryan did engage in misconduct on the 1st February 2001 when Ms Ryan passed on confidential information from Ms Penelope Spoelder's personal file to Elizabeth Ahern who is an unauthorised person with no reasonable need to access material

3. That Ms Ryan did engage in misconduct by giving Mr. Patrick Kite unsupervised access to his personal file on or before the 24th November 2000.

30 Under s74 of the PSMA, the Regulations make provision as to how alleged breaches of discipline are to be dealt with. Clause 20 of the Regulations requires that if an officer is charged with an alleged breach of discipline, a preliminary inquiry 'into the matter' must be conducted. That inquiry can be conducted by the Department Head or by a delegate (clause 21). The person conducting the preliminary inquiry is required by clause 22 to 'investigate the matter the subject of the inquiry'. Clause 23 requires a report to be provided and permits a recommendation 'that the charge should be amended or further charges made'.

31 Here at issue was whether any further charges recommended pursuant to clause 23 were limited to charges in relation to 'the matter the subject of the inquiry', referred to in clause 22. That was the applicant's contention. The respondent argued that while the other charges must relate in some way to that matter, they were not confined to the matter itself.

32 I am unable to agree with the respondent's approach. In this case, Ms Colbey recommended that one of the charges she was investigating not proceed further, that two of the charges be amended and that two further charges be laid. They were: CHARGE 2

Misconduct within the meaning of section 66(1)(b) of the Public Sector Management Act 1988.

The particulars of the charge are that on 23 January 2001 during a telephone conversation with Mr John Patrick Kite, Ms Susanne Ryan passed on confidential information relating to investigations that the EPA were conducting into the NPWS concerning sewage spillage to Mr Kite who is an unauthorized person with no reasonable need to access this material.

Ms Ryan's conduct was in breach of the guiding principles of the NPWS Code of Conduct and specifically the sections relating to: · Service Information and Records · Making Public Comment; and · Professional Conduct

Ms Ryan's conduct was in breach of the confidentiality agreement that she had signed on 26/04/00 in that she failed to maintain the security and confidentiality of official and personal documents and information.

Misconduct within the meaning of section 66(1)(b) of the Public Sector Management 1988.

The particulars of the charge are that on the 1 February 2001 Ms Susanne Ryan passed on the following confidential information about matters relating to Mr Alistair Henchman's salary and position in NPWS in an affidavit to Ms Elizabeth Ahern who is an unauthorized person with no reasonable need to access this material:

"Another area of concern for me that Alistair Henchman, the NPWS architect for 12-15 years prior to the slide, has been on a senior officer's wage since the slide and yet there's no such position for a senior officer. I think it's shut-up money. There's an email that I've just received asking for an extension to his senior officer's position."

Ms Ryan's conduct was in breach of the guiding principles of the NPWS Code of Conduct and specifically the sections relating to: · Service Information and Records; · Making Public Comment; and · Professional Conduct

33 Ms Colbey's report showed that the views which she reached about these further charges arose out of various information, including what emerged from her further investigation after she had received the applicant's submissions. Her appointment did not require her to investigate these, or any other, new or additional matters, in addition to those referred to in her instrument of appointment. Once the information which led Ms Colbey to make these recommendations had come to her attention, it could have been referred to the NPWS. The Director General would then have been entitled to lay further charges against the applicant about these matters, or even without laying such charges, to cause a preliminary inquiry into the apparent breaches of discipline involved to be conducted (clause 20). This was not the course pursued.

34 On the evidence, it must be concluded that Ms Colbey had been appointed to conduct a preliminary inquiry only into the charges specified in her instrument of appointment. They comprised 'the matter the subject of the inquiry' (clause 22(1)). The Director General could plainly have expressed the instrument of appointment in wider terms, so that Ms Colbey's inquiry could have encompassed any other apparent breaches of discipline which came to light in the course of the inquiry. He did not do so. I am satisfied that the power of recommending further charges provided in clause 23, was therefore limited to further charges in relation to 'the matter the subject of the inquiry' Ms Colbey was appointed to conduct. The two new charges recommended went beyond that matter.

35 While not strictly relevant to the question of the proper interpretation of the Regulations, I am reinforced in my conclusions about the matter the subject of Ms Colbey's inquiry, by the relevant provisions of the Premier's Department Personnel Handbook. Clause 9-2.8 provides: A person conducting a preliminary inquiry shall investigate the matter the subject of the inquiry (cl. 22 (1)). This means that the person conducting the preliminary inquiry (the inquirer) should only investigate issues relevant to the subject matter of the inquiry. This means not canvassing matters falling outside of the terms of his or her instrument of appointment.

The provision of the transcript and the Telecommunications (Interception) Act 1979 (Cth)

36 The evidence also showed that Ms Colbey had regard to both a tape of a telephone conversation conducted by the applicant, which had been lawfully intercepted by ICAC and a transcript of that conversation. The applicant disputed the accuracy of the transcript, as well as objecting to Ms Colbey having regard to it. This led to Ms Colbey listening to the tape to satisfy herself as to the accuracy of the transcript and to obtain other evidence, identifying the voices on the tape. The applicant complained that the transcript was not lawfully provided to the NPWS and that she was not herself given an opportunity to hear the tape, nor was she given access to this further evidence, in which the voices were identified.

37 The respondent asserted that the applicant made no complaints about this to the Director General, when later invited to respond to the charges he pursued, following his receipt of Ms Colbey's report. This is not entirely correct, because the applicant's response to the Director General complained, in part, that she had been denied procedural fairness by Ms Colbey, in the approach adopted in the preliminary inquiry, without however going into detail as to her complaints.

38 The fact remains that the applicant was not given access to the tape or the other evidence, which I am satisfied she was entitled to have, for the reasons earlier outlined. Ms Colbey was not even given access to the tape so that she could satisfy herself as to the accuracy of the transcript.

39 I am not, however, satisfied that ICAC wrongly supplied the transcript of the tape to NPWS, prior to the commencement of the preliminary inquiry, as the applicant argued. The relevant provisions of the Telecommunications (Interception) Act 1979 (Cth) provide: 63 No dealing in intercepted information or designated warrant information (1) Subject to this Part, a person shall not, after the commencement of this Part: (a) communicate to another person, make use of, or make a record of; or (b) give in evidence in a proceeding; lawfully obtained information or information obtained by intercepting a communication in contravention of subsection 7(1). (2) Subject to this part, a person must not, after the commencement of this subsection: (a) communicate designated warrant information to another person; or (b) make use of designated warrant information; or (c) make a record of designated warrant information; or (d) give designated warrant information in evidence in a proceeding. 74 Giving information in evidence in exempt proceeding (1) A person may give lawfully obtained information (other than foreign intelligence information) in evidence in an exempt proceeding. (2) For the purposes of applying subsection (1) in relation to information, the question whether or not a communication was intercepted in contravention of subsection 7(1) may be determined on the balance of probabilities. (3) A person may give designated warrant information in evidence in an exempt proceeding.

40 'Exempt proceedings' is relevantly defined in s5B(f) as: (f) any other proceeding (not being a proceeding by way of a prosecution for an offence) in so far as it relates to alleged misbehaviour, or alleged improper conduct, of an officer of the Commonwealth or of a State; or

41 There was no issue between the parties that once the inquiry was commenced, ICAC would have been entitled to provide the tape and transcript and Ms Colbey would have been entitled to have regard to them, in the inquiry. This was because it was common ground that the telephone conversation was lawfully intercepted by ICAC, in accordance with the provisions of the Telecommunications (Interception) Act and that the inquiry was an exempt proceeding under that Act. Section 14(2) of the ICAC Act was also relevant. It provides: (2) If the Commission obtains any information in the course of its investigations relating to the exercise of the functions of a public authority, the Commission may, if it considers it desirable to do so: (a) furnish the information or a report on the information to the authority or to the Minister for the authority, and (b) make to the authority or the Minister for the authority such recommendations (if any) relating to the exercise of the functions of the authority as the Commission considers appropriate.

42 It was also common ground that provision of such information to the NPWS could not be made by ICAC, inconsistently with the requirements of other legislation, such as the Telecommunications (Interception) Act. Section 63 of that Act precludes communication of, or use of, a tape or transcript such as that which ICAC had here lawfully obtained. There are exceptions to that prohibition, including relevantly in s74, in relation to information given 'in evidence in exempt proceedings', the latter being defined in s5B. There was no issue that the ICAC proceedings themselves fell within that exemption, as did Ms Colbey's inquiry.

43 The case of the applicant was, however, that the supply of the transcript after the laying of the charges against the applicant, but before the appointment of Ms Colbey to conduct the preliminary inquiry, was a supply which ICAC was not permitted to give under s74, because the NPWS inquiry was then not on foot. As I understood the case of the respondent, it was argued that the supply of the transcript after the laying of the charge itself fell within the provisions of s74 and in any event, on a proper construction of the PSMA and the Regulations, the inquiry commenced with laying of the charges, not the appointment of Ms Colbey to conduct the inquiry required into those charges.

44 There were some difficulties with both arguments, which I find it unnecessary to explore, given the conclusion which I have reached. I am satisfied that the answer to the question of whether or not the supply of the transcript to NPWS involved a breach of s63 of the Telecommunications (Interception) Act, is to be found in a proper construction of the section itself.

45 While the applicant referred in submissions to the judgment of the Full Federal Court in Kizon v Palmer (1996) 142 ALR 488, attention was not drawn to the aspect of the judgment which deals with that question. There at issue was what use could be made of an affidavit, which referred to certain information which fell within the provisions of s63. Lindgren J, with whom Jenkinson and Keifel JJ agreed, considered the proper construction of s63, in circumstances which were relevantly similar to those which here arise for consideration. He observed at 508: I turn next to the exception provided for in s 74. If the applicant were to place reliance on the designated warrant information by "giving [it] in evidence in [this] proceeding" within the meaning of s 63 (2) (d), the question would arise whether s 74 (3) would apply. That sub-section provides that "a person" (including a private individual such as the applicant) may give designated warrant information in evidence in an "exempt proceeding". The only paragraph of the "definition" of "exempt proceeding" in s 5B which might arguably encompass the present proceeding in para (f).

46 His Honour concluded at 509-10, that a purposive approach to the construction of s63 must be adopted: A purposive construction is necessary to avoid absurdity. It would be absurd that the prohibitions in s 63 should continue to apply to information of a kind referred to in the definition of "designated warrant information" once that information is in the public domain by, for example, having been given in evidence publicly in a prosecution. There is no provision in Pt VII of the TI Act which expressly permits further divulging of designated warrant information which has been publicly given in evidence in a prosecution, yet according to a non-purposive construction, the prohibition would prevent a reporting of the evidence. This result cannot have been intended.

47 That is an approach to the construction of the section with which I respectfully agree. It follows that the same conclusion must be reached in the circumstances which here arise for consideration.

48 The circumstances here were that the ICAC lawfully intercepted the telephone conversation in question. Consistently with s74 of the ICAC Act, the transcript and the tape were then put before ICAC in the proceedings it conducted. They were exempt proceedings for the purposes of that Act. The transcript is quoted in the resulting ICAC report at pages 40 to 42. The report was made public in December 2001, prior to the laying of charges under the PSMA against the applicant. The information contained in the transcript was thus plainly then in the public domain, as a result of the ICAC proceedings. The transcript was later supplied to NPWS, in accordance with s14 of the ICAC Act, after the laying of the charges against the applicant, but before Ms Colbey's appointment. On the proper construction of s63, this was not precluded by the Telecommunications (Interception) Act, given that the information had already been made public in the ICAC inquiry. Further communication of the information was not thereafter prohibited by s63.

49 I note that the applicant also relied upon the judgment of the Court of Appeal in Director of Public Prosecutions v Serratore (1995) 38 NSWLR 137. I am satisfied that the judgment is not of assistance in a resolution of the matters which arise here for determination, because the question there considered was whether or not a bail application made in relation to a murder charge, fell within the definition of 'exempt proceedings' in s5B, particularly whether it fell within the phrase 'a proceeding by way of a prosecution for a prescribed offence'. The case did not require consideration of the proper construction of s63 of the Act, in circumstances where the information in question was already in the public arena. Breach of s37(3) of the ICAC Act

50 Sections 37 and 38 of the ICAC Act provides: 37 Privilege as regards answers, documents etc (1) A witness summoned to attend or appearing before the Commission at a hearing is not entitled to refuse: (a) to be sworn or to make an affirmation, or (b) to answer any question relevant to an investigation put to the witness by the Commissioner or other person presiding at a hearing, or (c) to produce any document or other thing in the witness's custody or control which the witness is required by the summons or by the person presiding to produce. (2) A witness summoned to attend or appearing before the Commission at a hearing is not excused from answering any question or producing any document or other thing on the ground that the answer or production may incriminate or tend to incriminate the witness, or on any other ground of privilege, or on the ground of a duty of secrecy or other restriction on disclosure, or on any other ground. (3) An answer made, or document or other thing produced, by a witness at a hearing before the Commission is not (except as otherwise provided in this section) admissible in evidence against the person in any civil or criminal proceedings or in any disciplinary proceedings. (4) Nothing in this section makes inadmissible: (a) any answer, document or other thing in proceedings for an offence against this Act or in proceedings for contempt under this Act, or (b) any answer, document or other thing in any civil or criminal proceedings or in any disciplinary proceedings if the witness does not object to giving the answer or producing the document or other thing irrespective of the provisions of subsection (2), or (c) any document in any civil proceedings for or in respect of any right or liability conferred or imposed by the document or other thing. (5) Where: (a) a legal practitioner or other person is required to answer a question or produce a document or other thing at a hearing before the Commission, and (b) the answer to the question would disclose, or the document or other thing contains, a privileged communication passing between a legal practitioner (in his or her capacity as a legal practitioner) and a person for the purpose of providing or receiving legal professional services in relation to the appearance, or reasonably anticipated appearance, of a person at a hearing before the Commission, the legal practitioner or other person is entitled to refuse to comply with the requirement, unless the privilege is waived by a person having authority to do so.

The Commissioner or person presiding at the hearing may declare that all or any classes of answers given by a witness or that all or any classes of documents or other things produced by a witness will be regarded as having been given or produced on objection by the witness, and there is accordingly no need for the witness to make an objection in respect of each such answer, document or other thing.

51 The applicant complained that the NPWS impermissibly had regard to evidence she had given before ICAC, in respect of which she had the benefit of the protections provided by s37(3) of the ICAC Act. I am satisfied that the complaint was made good.

52 Ms Colbey was provided with a copy of the ICAC report by the NPWS. The ICAC report contained extensive quotes from the applicant's protected evidence, as well as summaries of parts of that evidence. At p57 of the ICAC report, it was observed: 'It was submitted on behalf of Ms Ryan that the scope and purpose of the investigation did not include an investigation of the conduct of Ms Ryan and that the release of information from Ms Spoelder's file was irrelevant. It was also submitted that Ms Ryan is not a person against substantial allegations were made.

I am satisfied that the conduct that has been exposed is serious misconduct and that substantial allegations of corrupt conduct have been made in respect of her. Accordingly I have come to the view that Ms Ryan is an "affected" person within the meaning of s74A(3) of the ICAC Act. In any event, even if she is not an "affected person" I am not precluded from making statements pursuant to s74A(2) in respect of her. Section 74A(4) clearly states that I am not prevented from making such a statement in respect of any other person.

Pursuant to s74A(2) I state that, in all the circumstances, I am of the opinion that consideration should be given to:

(a) the prosecution of Ms Ryan for offences against s87 of the ICAC Act in respect of her evidence concerning: i. the disclosure of confidential information from Ms Spoelder's file to Mr Kite ii. the provision to Mr Kite of unsupervised access to his personal file (b) the taking of action against Ms Ryan for a breach of discipline contrary to s66(1)(b) and/or (f) of the Public Sector Management Act 1988 in relation to: i. the passing on of confidential information from Ms Spoelder's personal file to Mr Kite ii. the giving to Mr Kite of unsupervised access to his personal file.

53 As earlier noted, in her letter of 15 November, Ms Colbey advised that she would have regard to the ICAC report 'where relevant and appropriate to the Preliminary Inquiry'.

54 What parts of the report Ms Colbey regarded as being 'relevant and appropriate' to the inquiry was not clarified and was unclear from her later report. Indeed, her report annexed a copy of the entire ICAC report. Ms Colbey did not indicate that there were any parts of the report to which she did not have regard. To the contrary, Ms Colbey noted at p4 of her report that: 'Having regard to the background to this matter, including the investigation undertaken by the ICAC and their subsequent report and recommendations, it was considered appropriate by NPWS to engage the services of an independent Barrister, Ms F Backman, Higgins Chambers, to provide advice as required of any legal matters associated with the conduct of the Preliminary Inquiry. I did seek Ms Bachman's (sic) advice both orally and in writing on a number of occasions throughout the inquiry process and I have relied on that advice in the context of the conduct of the inquiry and my findings and recommendations.'

55 At p9, Ms Colbey also noted in her 'Introduction', the following: Ms Susanne Ryan is the Manager of the Southern HR Service Centre for the National Parks and Wildlife Service (NPWS). She is a member of the Workforce Services Division of the NPWS, directly supervised by Helen Anderson the Manager of the Workforce Services Division.

In December 2001 the ICAC published its report on investigation into matters concerning John Kite and the National Parks and Wildlife Service. The ICAC inquiry dealt with allegations made by an ex-NPWS employee, John Kite, in relation to the treatment he received from various NPWS employees, a PSA official and a barrister retained by NPWS. Mr Kite's allegations were supported by a photocopy of memorandum between two NPWS employees, which became known as "the Smoking Gun Memo". Mr Kite alleged that he had discovered the Smoking Gun Memo during an inspection of his personal file. Mr Kite and Ms Ryan gave evidence that the file had been provided to Mr Kite by Ms Ryan and that Ms Ryan had supervised the inspection. The ICAC found the Smoking Gun Memo to be a forgery, created by Mr Kite.

In relation to Ms Ryan the ICAC found that: · Ms Ryan engaged in corrupt conduct in giving Mr Kite unsupervised access to his personal file · Ms Ryan engaged in corrupt conduct in that she disclosed confidential information from another employee's personal file (Ms Spoelder) to Mr Kite · Ms Ryan breached a suppression order made by the Commission in disclosing matters she gave in evidence to the Commission to Mr Kite.

The ICAC recommended that consideration should be given to: · The prosecution of Ms Ryan for offences against s87 of the Independent Commission Against Corruption Act 1988 concerning: · The disclosure of confidential information from Ms Spoelder's file to Mr Kite, and · The provision to Mr Kite of unsupervised access to his personal file · The taking of action against Ms Ryan for a breach of discipline contrary to s66(1)(b) and/or (f) of the Public Sector Management Act 1988 in relation to Ø The passing on of confidential information for Ms Spoelder's personal file to Mr Kite, and Ø The giving of Mr Kite unsupervised access to his personal file.

The evidence before the ICAC regarding the alleged inappropriate disclosure of confidential information from Ms Spoelder's personal file to Mr Kite was a telephone intercept undertaken by the ICAC during its investigation. In addition to providing details of the telephone intercept to NPWS, the ICAC also provided them with a statutory declaration which in part discloses confidential information obtained from Ms Spoelder's personal file and the personal file of another officer Mr Henchman. The statutory declaration was obtained by the ICAC from Channel 9.

56 Ms Colbey also noted at p10 that she had received advice as to 'what material or information can be used to support these allegations' against the applicant. It was noted that the 'available material or information would appear to comprise three sets of documentation' This was identified as the transcript of the hearing before ICAC; the transcript of the intercepted phone call and a statutory declaration made by the applicant and which she gave to Nine Network Australia Pty Limited, which had not been tendered in the ICAC proceedings. The ICAC report was not identified as part of such 'available material or information'. It was, however, noted at p12 that the advice Ms Colbey received was: The following material or information may be admissible in evidence in any disciplinary proceedings against Ryan:

i) Transcript of intercepted telephone conversation of 23.1.01;

iii) Any other material or information which may be obtained as a direct or indirect consequence of the enforced testimony given during the Commission hearing.

57 Again, the ICAC report was not expressly identified. Given Ms Colbey's November advice to the applicant that she proposed to have regard to parts of the ICAC report, the proper inference is that the report was viewed as falling within category (iii) above. This is confirmed by the fact that the entire ICAC report was annexed to Ms Colbey's report.

58 Further light is thrown upon this matter by the provisions of the Premier's Department Personnel Handbook, which deals with the conduct of preliminary enquiries such as that Ms Colbey conducted. The Handbook provides in clause 9.2.8.7 that the report made to the Department Head should 'have as annexure all documents that the inquirer has relied upon in reaching his or her conclusions.'

59 I am satisfied that the proper inference from the evidence is that Ms Colbey had regard to evidence given by the applicant before ICAC, as set out in the ICAC report, contrary to s37 of the ICAC Act. It seems to me that the provision of the ICAC report to Ms Colbey and its annexure to her report, were serious errors, given that the report replicated evidence protected by that section. That evidence was not admissible in such disciplinary proceedings and should therefore not have been put before Ms Colbey.

60 This conclusion is reinforced by the fact that under the Regulations made under the PSMA, Ms Colbey's report, including the annexed ICAC report, then became a matter to which the Director General was entitled to have regard, in determining whether a breach of discipline had been committed by the applicant. (Clause 24 (b)(a)). In this aspect of the disciplinary proceedings, any consideration by the Director General of the evidence given by the applicant before ICAC, as set out in the ICAC report, was also contrary to s37 of the ICAC Act. The Regulations made under the PSMA could plainly not override that statutory protection.

61 There was no issue between the parties that if the applicant succeeded in the case brought, that the orders sought should be made. It follows that the applicant must have such orders in her favour. For all of the reasons given, I order accordingly. ------------------------

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.