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

Ryan v Director General of New South Wales National Parks and Wildlife Service and Anor - [2004] NSWIRComm 160 - NSWIRComm 2004 case summary — Zoe

[34]

(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.

[35]

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.

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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.

[87]

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.

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