Wilson v State of Queensland

Code of Conduct for the Queensland Public Service (December 2010) cl 1

Domestic Violence and Family Protection Act 2012 (Qld) s 169K

Industrial Relations Act 2016 (Qld) s 451, s 562B, s 562C, s 564, s 566, s 567

Public Service Act 2008 (Qld) s 3, s 187, s 194

Use of ICT Services, Facilities and Devices Policy_,_ Department of Justice and Attorney-General (June 2017) cl 6

Ambrey v Oswin [2004] QSC 224

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Breust v Qantas Airways Ltd (1995) 149 QGIG 777

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541

Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298

Bruce Anthony Piggott v State of Queensland [2010] ICQ 35

Geoffrey John Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20

Gilmour v Waddell & Ors [2019] QSC 170

Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)

House v The King (1936) 55 CLR 499

Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010

Minister for Immigration and Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332

Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232

• [1] Ms Tracey Wilson (the Appellant) is currently employed as a Court Services Officer AO3 at the Southport Magistrates and District Court by the State of Queensland, Department of Justice and Attorney-General (the Department; the Respondent).

• [2] Ms Wilson has been employed by the Department for about 17 years.

• [3] On 18 January 2019, Ms Wilson was suspended with normal remuneration as a result of being criminally charged with computer hacking and misuse between 9 October 2016 and 15 November 2017.

• [4] On 30 July 2019, by written correspondence Ms Jennifer Lang, Deputy Director-General (the decision maker) asked Ms Wilson to show cause as to why a disciplinary finding should not be made against her under the Public Service Act 2008 (Qld) (PS Act).

• [5] The show cause notice related to the following allegations:

• On multiple occasions between 9 October 2016 and 16 November 2017, without authority, Ms Wilson accessed the records of court clients on the Queensland Wide Interlinked Courts System (QWIC) (Allegation 1); and

• On multiple occasions during the course of 2016 and 2017, without authority, Ms Wilson inappropriately disclosed information obtained from the QWIC to a court client (Client X) in relation to another court client (Client Y) (Allegation 2).

• [6] Following correspondence regarding extensions of time and requests for information, Ms Wilson provided the Department with a response on 4 September 2019. That response was in a format that could not be accessed by the Department. An accessible response was subsequently provided by Ms Wilson on 16 September 2019.

• [7] On 11 December 2020, the Department issued Ms Wilson with correspondence that stipulated the decision maker's disciplinary finding and proposed disciplinary action. The decision maker found both allegations were substantiated on the balance of probabilities and indicated she was giving serious consideration to the termination of Ms Wilson's employment (the decision).

• [8] On 6 January 2021, Ms Wilson filed an Appeal Notice against the decision.

• [9] On 7 January 2021, Vice President O'Connor ordered that the decision subject of the appeal is stayed until the determination of the appeal or further order of the Commission pursuant to s 566(1) of the Industrial Relations Act 2016 (Qld) (IR Act).

• [10] Section 194 of the PS Act identifies the categories of decisions against which an appeal may be made. Section 194(1)(b)(i) of the PS Act provides that an appeal may be made "against a decision under a disciplinary law to discipline - a person (other than by termination of employment), including the action taken in disciplining the person."

• [11] Ms Wilson has been an employee of the Respondent at all times relevant to this appeal.

• [12] I am satisfied that the disciplinary decision made by the Department pertaining to Ms Wilson, namely the letter dated 11 December 2020 from the decision maker, can be appealed in part. For the reasons that follow, the proposed penalty section of the letter is not capable of appeal.

• [13] Section 564(3) of the IR Act requires that an appeal be lodged within 21 days after the day the decision appealed against is given. That is the relevant inquiry with respect to timeframes. I note that despite the question posed in the Form 89 - Appeal Notice regarding when the decision was received.

• [14] The Acts Interpretation Act 1954 (Qld) (the AI Act) provides (emphasis added):

**(1) If a period beginning on a given day, act or event is provided or allowed for a purpose by an Act, the period is to be calculated by excluding the day, or the day of the act or event, and - **

(a) if the period is expressed to be a specified number of clear days or at least a specified number of days - by excluding the day on which the purpose is to be fulfilled; and

(b) in any other case - by including the day on which the purpose is to be fulfilled.

(2) If the time, or last day of a period, calculated forwards that is provided or allowed by an Act for doing anything falls on an excluded day, the time, or last day, is taken to fall on the next day later that is not an excluded day.

(3) If the time, or earliest day of a period, calculated backwards that is provided or allowed by an Act for doing anything falls on an excluded day, the time, or earliest day, is taken to fall on the next day earlier that is not an excluded day.

(4) If no time is provided or allowed for doing anything, the thing is to be done as soon as possible, and as often as the relevant occasion happens.

(a) for filing or registering a document - means a day on which the office is closed where the filing or registration must or may be done; or

(b) otherwise - means a day that is not a business day in the place in which the thing must or may be done.

• [15] The decision was given to Ms Wilson on 11 December 2020. To accord with s 564(3) of the IR Act, an Appeal Notice should have been filed with the Industrial Registry on or by 4 January 2021 because the public holiday on 1 January 2021 and the weekend over 2 - 3 January 2021 are excluded days pursuant to s 38(2) and (5) of the AI Act.

• [16] The Appeal Notice was filed with the Industrial Registry on 6 January 2021 - 2 days out of time.

• [17] I am empowered by the IR Act to extend the time for filing an Appeal Notice.[1] The IR Act does not provide any criteria against which I am to determine whether or not to extend time.

• [18] Ms Wilson bears the positive burden of demonstrating that the justice of the case requires the indulgence of an extension of time to file the appeal.[2]

• [19] The question of whether to extend the time for filing an application under the IR Act is fundamentally an exercise of discretion. Such an exercise must be undertaken judicially and according to the rules of reason and justice, not arbitrarily or capriciously or according to private opinion.[3] Several factors inform the exercise of my discretion.

• [20] In Breust v Qantas Airways Ltd, Hall P set out the following considerations:[4]

• The prejudice to the Appellant if the extension of time is not granted;

• The prejudice to the Respondent if the extension of time is granted; and

• [21] The appeal was filed 2 days out of time. The 21-day appeal period has been determined by the legislature to be the appropriate period for a person to file an appeal. That is clearly stated in the IR Act.

• [22] The Appeal Notice indicates that Ms Wilson was aware she had filed the Appeal Notice out of time. Ms Wilson outlined the following explanation for the delay:

• On 11 December 2020, Ms Wilson's solicitor went on holidays and would not return until 11 January 2021. Ms Wilson's barrister was also away on leave until 1 February 2021.

• If Ms Wilson is forced to file the appeal without legal assistance she will be extremely prejudiced and unable to properly represent her case.

• In late December 2020, Ms Wilson contacted the QIRC Registry to enquire about lodging an appeal. Ms Wilson was advised that the timeframe to appeal would fall within the Christmas holidays and so she should file an extension to lodge an appeal as soon as possible after 4 January 2021 when the QIRC Registry was set to reopen.

• On 5 January 2021, Ms Wilson filed an Appeal Notice that simply requested an extension to lodge an appeal, rather than outlining any reasons for the appeal. Ms Wilson did so because she thought there was a two-part process whereby she first needed to request an extension and if approved, she would then file the appeal.

• [23] In its submissions filed 29 April 2021, the Department submitted that:

• The process for lodging a public service appeal is a simple one and legal representation in public service appeals is not allowed.

• The unavailability of legal representatives to assist in preparing Ms Wilson's appeal does not amount to good cause for the failure to lodge her appeal within time, noting Ms Wilson was aware, having regard to the decision, that an appeal was required to be filed within 21 days of receiving the decision.

• [24] Ms Wilson's explanation does evidence a degree of tardiness in both taking the initiative to properly educate herself on the appeal process and also in filing the appeal. Ms Wilson had substantial time from 11 December 2020 until the commencement of the Christmas break to file an appeal or an application for an extension to file an appeal. It appears that the delay largely stems from Ms Wilson's misbelief that she would be prejudiced if she was not given the opportunity to obtain legal representation before filing the appeal. That is incorrect for the reasons submitted by the Department.

• [25] The QIRC Registry does not provide legal advice and Ms Wilson should have taken the initiative to better understand the process upon which she was embarking. Ms Wilson stated she remained confused following the procedural guidance provided. However, that in itself is not a persuasive argument for extending time to appeal in the usual course.

• [26] The obvious prejudice to Ms Wilson is that she would lose the opportunity for an independent review of the decision, and any subsequent relief. I appreciate that outcome is not an insubstantial detriment.

• [27] Delay itself is considered to give rise to a general presumption of prejudice to the Respondent.[5] Furthermore, minimal additional prejudice to the Respondent in and of itself is an insufficient basis to grant an extension of time.[6]

• [28] For those reasons, I find that the Respondent would also suffer prejudice should I decide to exercise my discretion to hear the appeal out of time. The Respondent did not put forward submissions with respect to prejudice.

• [29] The Department's conduct comprised advising Ms Wilson that she has the right to lodge a fair treatment appeal under the appeal provisions of the PS Act. This conduct would have been helpful to Ms Wilson and I find the Department did not play a part in Ms Wilson's confusion regarding legal representation and her decision to file the appeal out of time.

• [30] Ms Wilson's prospects of success at a substantive hearing are a relevant consideration.[7] However, I note the guidance on this factor provided by President Hall in Bruce Anthony Piggott v State of Queensland (emphasis added, citations removed):

In addition to these factors, the prospects of an application succeeding at a substantive hearing are also relevant, so that where it appears that an applicant has no, or very limited, prospects of success, the Commission should not grant an extension of time. However, the occasions for rejecting an application for an extension of time on the ground that the applicant has poor prospects of success will be few, and generally, the merits of an application are part of the general consideration of all relevant factors. In assessing the prospects of the substantive application succeeding, in the context of deciding an application to extend time, the merits or lack thereof of the substantive application must be clear cut, and will usually flow from formation of a view that there is an obstacle that no amount of evidence can overcome. Cases where a view may be formed so adverse to the applicant as to justify the refusal to extend time on that ground, will be rare.[8]

• [31] In my preliminary view of the substantive matter, the merits (or lack thereof) are not clear cut at this stage - this warrants further consideration of the matter.

• [32] In light of the minimal period of the delay and in consideration of the factors outlined above, I will hear this appeal out of time.

• [33] Section 562B(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) provides that the purpose of a public service appeal is "to decide whether the decision appealed against was fair and reasonable."[9] This is the key issue for my determination. Subsection (4) provides that for an appeal against a decision about disciplinary action, the commission:

(a) must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but

(b) may allow other evidence to be taken into account if the commission considers it appropriate.

• [34] A public service appeal under the IR Act is not by way of rehearing,[10] but involves a review of the decision arrived at and the decision-making process associated therewith.

• [35] Findings made by the Respondent, which are reasonably open to it, should not be disturbed on appeal. Even so, in reviewing the decision appealed against, the Queensland Industrial Relations Commission member may allow other evidence to be taken into account.[11]

• [36] Pursuant to s 451(1) of the IR Act, this matter has been decided without a hearing.

What decisions can the Industrial Commissioner make?

• [37] In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:

(b) set the decision aside and substitute another decision; or

(c) set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

• [38] The decision maker determined that Allegation 1 and Allegation 2 are substantiated on the balance of probabilities.

• [39] On the basis of her findings in relation to both allegations, the decision maker determined that pursuant to s 187(1)(b) of the PS Act, Ms Wilson is guilty of misconduct that is inappropriate or improper conduct in an official capacity within the meaning of s 187(4)(a) of the PS Act.

• [40] The decision maker's findings were based, inter alia, on the following factors:

• Ms Wilson admitted to accessing the QWIC during the period from 9 October 2016 to 15 November 2017 to provide information to Court Client X.

• It is not in dispute that QWIC must be used for official work purposes only and Ms Wilson does not deny knowing this.

• Ms Wilson failed to act in accordance with the requirements of the Department of Justice and Attorney-General_, Use of ICT Services, Facilities and Devices Policy_ (ICT Policy) which provides that it (emphasis added):

is not appropriate to search records, including client records, on a departmental database without an authorised business purpose and additionally that it is not appropriate, in any circumstances, for staff members to view records of client/s that are known to them on a personal basis.[12]

• Ms Wilson advised that she understood that she was not authorised to look at the records of anyone 'known to you'.

• The decision maker was unable to accept Ms Wilson did not believe there was a conflict of interest because:

(a) It is not necessary for a friendship to exist in order for a personal relationship to give rise to a potential conflict of interest;

(b) An audit of Ms Wilson's departmental email accounts disclosed that Ms Wilson had previously referred to Court Client X as her 'good friend' and had also emailed staff to query aspects of Court Client Y's court matters, suggesting a level of interest; and

(c) At the very least, it is clear that Court Client X was known to Ms Wilson on a personal basis, such that she should have taken steps to deal with any actual, perceived or potential conflict of interest.

• The decision maker accepts that Ms Wilson may not have formally met or spoken to Court Client Y, however at the very least he was someone who was known to her on a personal basis, as she knew that he was the former partner of Court Client X. This is because:

(a) An audit of Ms Wilson's departmental email account disclosed that she had advised she had 'seen him on Saturday at our sausage sizzle';

(b) In an email to the investigator dated 22 February 2019, Ms Wilson stated that 'He may have been pointed out to you by [Court Client X], but I have never met him'; and

(c) In any event, Ms Wilson accepted that she was aware that Court Client Y was Court Client X's former partner.

• Although Court Client X may have been entitled to receive the information as a party to the matter, that is not the issue. The issue is whether it was appropriate for Ms Wilson to view records of Court Client X and Court Client Y having regard to the fact that they were known to her on a personal basis.

• Although Ms Wilson may have mentioned to her supervisor (unidentified) that she knew Court Client X through the cheer group affiliation, this does not amount to disclosure as required by cl 1.2 of the Code of Conduct for the Queensland Public Service[13] which stipulates:

A conflict of interest involves a conflict between our duty, as public service employees, to serve the public interest and our personal interests. The conflict may arise from a range of factors including our personal relationships, our employment outside the public service, our membership of special interest groups, or our ownership of shares, companies, or property.

As public service employees we may also experience conflicts of interest between our public service ethics and our professional codes of ethics (for example as health care professionals or as lawyers), or with our personal beliefs or opinions.

Having a conflict of interest is not unusual and it is not wrongdoing in itself. However failing to disclose and manage the conflict appropriately is likely to be wrongdoing.

As public service employees we are committed to demonstrating our impartiality and integrity in fulfilling our responsibilities and as such we will:

(a) always disclose a personal interest that could, now or in the future, be seen as influencing the performance of our duties. This will be done in accordance with our agency policies and procedures.

(b) actively participate with our agency in developing and implementing resolution strategies for any conflict of interest, and

(c) ensure that any conflict of interest is resolved in the public interest.

• The Acting Senior Registrar is unable to recall Ms Wilson raising a conflict of interest, has no record of anything reported and an inspection of the ESU's official conflict of interest records has no record of Ms Wilson declaring a conflict of interest.

• Ms Wilson appears to rely upon the fact that the supervisors or the front counter staff never questioned her about a possible conflict of interest - however, it was incumbent upon Ms Wilson to take steps to deal with any actual, perceived or potential conflict of interest.

• Ms Wilson admitted that the information disclosed to Court Client X included, but was not limited to, Court Client Y being granted bail and suggested that bail information is something that court staff are authorised to release, as long as they are a party to the matter. However, the disclosure of that information was prohibited pursuant to s 169K of the Domestic Violence and Family Protection Act 2012 (Qld) (DVFP Act).

• [41] Ms Wilson's submissions in support of her appeal can be summarised as follows:

• Ms Wilson had a 17-year employment history with the Department, with no disciplinary action or complaint prior to this matter.

• In her role, Ms Wilson "was authorised to access information from various data bases and to provide this information, upon request, to members of the public who are aggrieved or victims in legal proceedings." At all times, Ms Wilson was authorised to access the information referred to in the allegations and Court Client X was entitled to receive this information.

• To Ms Wilson, Court Client X was an "acquaintance through a mutual affiliation with a Cheer Club where both their daughters participated". Court Client X frequented the courthouse often and was well known to registry staff.

• The registry staff were "well aware" that Court Client X's daughter was a member of the same cheer group as Ms Wilson's daughter. Further, Ms Wilson had advised supervisors on three occasions that she knew Court Client X due to the link between their daughters.

• No supervisors nor staff members suggested to Ms Wilson that a potential conflict of interest could exist by virtue of Ms Wilson providing information requested by the court client.

• The estranged partner of Court Client X, being a court client himself (referred to as Court Client Y), made a complaint about Ms Wilson providing the information in which he made statements which falsely claimed that he and Ms Wilson were close personal friends. However, Court Client Y also stated that he might not recognise Ms Wilson if he passed her in the street and that he did not know the name or age of Ms Wilson's daughter. In this regard, Ms Wilson submits "These facts should have caused some concern from an impartial and prudent investigator as to the reliability of the evidence given by [Court Client Y]."

• The Department "did not seek information from [Court Client X] or consider her statement given to police as part of its decision process in this matter." This statement should be admitted because:

(a) The Respondent had the power to obtain this statement;

(b) Given the vast disparity in the evidence given by Ms Wilson and Court Client Y in relation to the nature of their relationship, it was appropriate to further investigate, rather than discount the evidence of Ms Wilson as lacking credit;

(c) The statement of Court Client X was given to the police under oath and with no involvement of Ms Wilson;

(d) The statement accurately confirms the truth of Ms Wilson's statements and exposes the gross falsity of Court Client Y's statements relating to the alleged relationship;

(e) The issue of Ms Wilson's credit is at stake and she is entitled to be dealt with as a long-term employee of the Department with an exemplary track record rather than as a person lacking credit and fabricating statements.

• Although Ms Wilson once characterised her relationship with Court Client X as her being "a good friend of mine", that was an error and not in fact the case. Ms Wilson would have meant to write "a good friend of a friend of mine".

• There is no reason or basis upon which to criticise Ms Wilson's credibility, or the truthfulness of her evidence given to police and to the Department's investigators.

• Both criminal cases in relation to the subject matter of this appeal have been discontinued with no evidence provided.

In your role as a Court Services Officer, you had access to a restricted computer and were authorised to use that computer to perform your duties. This provided you with access to the Queensland Wide Interlinked Courts (QWIC) database.

This extract shows that Ms Wilson had an entitlement to access the information provided to Court Client X.

• Ms Wilson did not act in a way that was contrary to cl 1.2 of the Code of Conduct for the Queensland Public Service and did not act in a manner that was contrary to the ICT Policy.

• Although the types of relationships contemplated under cl 1.2 of the Code of Conduct for the Queensland Public Service include personal relationships - "the remaining examples suggest some actual benefit to be derived by the person with the conflict of interest... Clause 1.2 is wholly concerned with situations where some direct, indirect, pecuniary, or non-pecuniary benefit is derived by the conflict of interest or potential conflict of interest." No such benefit was derived by Ms Wilson.

• When Ms Wilson received a request for information from Court Client X or any other person, the only question was whether Court Client X or that other person was the aggrieved or victims in the proceedings and therefore entitled to the information. Once that entitlement was established, Ms Wilson was authorised and required as part of her role to search and provide the requested information. Providing such information cannot be characterised as influencing the performance of Ms Wilson's duties under cl 1.2 of the Code of Conduct for the Queensland Public Service.

• The Department criticised Ms Wilson for failing to lodge a Declaration of Interest. However, the Queensland Government guidelines for lodging a Declaration of Interest states:

Chief executives, senior executives (and equivalents), and public service employees must declare any interests held that have a bearing, or may be perceived to have a bearing, on carrying out a role properly and impartially.

The clear emphasis is on potential or actual conflicts of interest that could have a bearing on the person carrying on their role properly and impartially. The Queensland Government guidelines list a number of examples of both direct and indirect potential personal interests, all of which suggest the need for some actual benefit to the employee declaring a conflict of interest.

• The circumstances in this matter did not warrant the filing of a Declaration of Interest and the Declaration of Interest Form for non-executive employees makes no provision for the declaration of such an interest.

• The ICT Policy does not suggest the need for lodging any Declaration of Interest.

• The parts of cl 6 of the ICT Policy referred to by Ms Wilson are extracted below:

Access or use of any ICT Services, facility or device that does not meet the conditions of authorised use will constitute unauthorised use, which is a manner that is inappropriate or unlawful by:

1. Failing to behave in a manner which supports the Public Service Act 2008 (Qld), the Code of Conduct, the Use of internet and email policy, this policy and other departmental policies and associated legislation (see Attachment 2: References)

1. Misusing information from departmental systems, including:

1. accessing departmental business information and systems without an authorised business purpose (e.g. emailing department documents to a personal email account for unauthorised purpose, selling information for personal profit, searching classified information to share with a friend, acquaintance or family member)

1. searching records, including client records, on a departmental database without an authorised business purpose (for clarity this means that staff members are not permitted to browse court files for their own interest unless the staff member has a specific work related requirement to view those records. Additionally, it is not appropriate in any circumstance for staff members to view records of client/s that are known to them on a personal basis)

• In the absence of any misconduct, searching and providing information to Court Client X was an authorised business purpose and Ms Wilson was not in any way misusing information. Further, the "Police Prosecution effectively accepted as much by discontinuing proceedings with no evidence provided."

• Ms Wilson and Court Client X "were no more than Cheer Group acquaintances, with absolutely no interaction outside of this limited contact." The drafters of the ICT policy could have included reference to "acquaintances" if they so intended. The fact that this was not done suggests that the test for whether someone is known on a personal basis is higher than a mere acquaintance.

• Regardless of whether Court Client X was known to Ms Wilson on a personal basis, Ms Wilson has nonetheless discharged her obligations under cl 6 of the ICT Policy by informing her supervisors of the limited contact between her and Court Client X.

• Throughout 2016 and 2017, Ms Wilson had not at any time considered that there could be any conflict of interest arising out of her providing assistance to Court Client X.

• The Department has made adverse findings relating to Ms Wilson's credit because of her repeated insistence that she was not a close friend of Court Client X. This is supported by the police statement of Court Client X. Consequently, the Department's assertion as to the lack of credit of Ms Wilson is not valid and her evidence that she never considered a potential conflict of interest should not be disputed or ignored as the Department has done in this case.

• Ms Wilson's assertion that she never envisaged a conflict of interest is "wholly unremarkable, reasonable, and logical in the circumstances based on the following":

(a) Ms Wilson was authorised to access and provide information to Court Client X as an aggrieved person/victim in a legal matter. This would too have applied had Court Client Y requested the same or similar information.

(b) Ms Wilson understood that a conflict of interest only arose if there was some benefit derived by her. This understanding is validated by cl 1.2 of the Code of Conduct for the Queensland Public Service and cl 6 of the ICT Policy. Ms Wilson stood to gain no benefit from providing the information. Despite not recognising a conflict of interest, Ms Wilson inadvertently complied with cl 6 of the ICT Policy by informing three different supervisors that Court Client X was known to her.

(c) Ms Wilson "made no secret" of the fact that Court Client X was known to her and this fact was widely known by other staff members. At no time did any staff member (including supervisors) raise any issue with Ms Wilson relating to any potential conflict of interest.

(d) Ms Wilson "knew her accessing of computer records would leave a digital footprint" and "at no time took any steps to conceal her activities in searching records at the request of [Court Client X]."

• [42] In response, the Department submitted the decision was fair and reasonable for the following reasons:

• Ms Wilson received assistance from a solicitor and barrister in the disciplinary process.

• Ms Wilson was informed of the specific nature of the allegations against her by way of the First Show Cause Notice and provided with copies of the documents considered by the decision maker in relation to the matter. Ms Wilson was also provided with further information in this respect.

• Ms Wilson was provided with opportunities, including extensions of time, in which to respond to the First Show Cause Notice and the decision.

• Ms Wilson was given detailed reasons in the decision as to why Allegation 1 and Allegation 2 were substantiated.

• On the evidence before the decision maker, it was open for her to find that Allegation 1 and Allegation 2 were substantiated and to find that Ms Wilson was guilty of misconduct within the meaning of s 187(4)(a) pursuant to s 187(1)(b) of the PS Act.

• The decision maker's findings are based upon Ms Wilson's own admissions made during the show cause process, including:

(a) Admitting to accessing the QWIC during the relevant period and providing information to Court Client X on numerous occasions. That information was provided at the request of Court Client X and included information pertaining to "court dates, whether the matter was listed for a mention or callover, whether she was required to attend and the outcome of the court dates".

(b) Admitting that before searching the QWIC system, she did not tell her supervisors or take any steps to deal with any actual, perceived or potential conflict of interest (other than allegedly advising an unidentified person/s that she knew Court Client X) in relation to the fact that Court Client X was a person known to her on a personal basis and Court Client Y was a person known to her on a personal basis, in his capacity as Court Client X's former partner.

(c) During her interview with the investigator, Ms Wilson accepted that her actions "looked like a conflict", that she had not declared her conflict to the Registrar and that she had not contemplated a formal conflict of interest declaration or taken any other steps to report the conflict.

(d) During her interview with the investigator, admitted that the information disclosed to Court Client X included, but was not limited to, Court Client Y being granted bail in October 2016, which was prohibited pursuant to s 169K of the DVFP Act.

• The discontinuance of Brisbane Magistrates Court proceedings referred to by Ms Wilson in relation to criminal charges of computer hacking and misuse involved different allegations and a different standard of proof to the current disciplinary process and the outcomes in the criminal proceedings did not prevent the decision maker from proceeding to make disciplinary findings against Ms Wilson.

• [43] The purposes of the PS Act are found at s 3 (emphasis added):

(a) establish a high performing apolitical public service that is -

(ii) focused on the delivery of services in a professional and non-partisan way; and

(b) promote the effectiveness and efficiency of government entities; and

(c) provide for the administration of the public service and the employment and management of public service employees; and

(d) provide for the rights and obligations of public service employees; and

(e) promote equality of employment opportunity in the public service and in other particular agencies in the public sector.

(a) fixes principles to guide public service management, public service employment and the work performance and personal conduct of public service employees; and

• [44] Section 187 of the PS Act relevantly provides as follows:

(1) A public service employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has -

(a) inappropriate or improper conduct in an official capacity; or

(b) inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service.

victimising another public service employee in the course of the other employee's employment in the public service.

• [45] Section 194 of the PS Act relevantly provides as follows:

(1) An appeal may be made against the following decisions -

(b) a decision under a disciplinary law to discipline -

(i) a person (other than by termination of employment), including the action taken in

(ii) a former public service employee by way of a disciplinary declaration made under section 188A, including if the disciplinary action that would have been taken was termination of employment;

• [46] I will now consider whether the decision that Allegation 1 and Allegation 2 were substantiated was fair and reasonable.

• [47] The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors (emphasis added, citations removed):

The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances.

The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power.

A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.

... when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. That is what is meant by 'according to law'. It is to be legal and regular, not vague and fanciful ...

... there is an area within which a decision maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be applied for that of a decision maker ...

... it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object ... The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.

... Unreasonableness is a conclusion which may be applied to a decision which lacks an evidence and intelligible justification.[14]

• [48] The decision was found on the 'balance of probabilities'. Clause 14 of Directive 14/20 Discipline prescribes that:

For an allegation to be substantiated on the balance of probabilities, the evidence must establish that it is more probable than not that the alleged conduct occurred. The strength of evidence necessary to establish an allegation on the balance of probabilities may vary according to the:

• Relevance of the evidence to the allegations
• Seriousness of the allegations
• Inherent likelihood or improbability of a particular thing or event occurring
• Gravity of the consequences flowing from a particular finding.

• [49] Given that both allegations share material facts, I will deal with them in a combined manner.

• [50] The fact that Ms Wilson accessed the records of Court Client Y on the QWIC[15] and disclosed information obtained from the QWIC to Court Client X[16] is not in dispute. Further, it is not in dispute that Ms Wilson was generally authorised to access information from QWIC and provide this information to members of the public who are aggrieved or victims in legal proceedings. This matter turns on whether accessing that information was authorised and whether disclosing that information was appropriate in the circumstances.

• [51] The basis of the Department's findings is that Ms Wilson had failed to act in accordance with cl 1.2 of the Code of Conduct for the Queensland Public Service and cl 6(b)(ii) of the ICT Policy that pertain to conflicts of interest and unauthorised use of information. These clauses have been extracted above at [40] and [41] respectively and will be considered below.

Did Ms Wilson know the court clients on a personal basis?

• [52] I accept Ms Wilson's contention that Court Client X was an "acquaintance" and note that the police statement given by Court Client X supports this contention. If indeed available to the decision maker, I agree that the statement should have been taken into consideration. However, I do not believe that omission to consider the document affected the reasonableness of the Department's decision. That is because ultimately the finding of whether Court Client X is an 'acquaintance', 'friend' or even 'good friend' is not required to determine whether Ms Wilson knew Court Client X "on a personal basis".

• [53] Ms Wilson submitted that because the pair were acquaintances, this type of relationship should not lead to a conclusion that Ms Wilson knew Court Client X "on a personal basis" as stipulated in cl 6(b)(ii) of the ICT Policy. I disagree for the reasons that follow.

• [54] The ICT Policy covers employees whom in their professional capacity have access to "government provided information and communication technology (ICT) services, facilities and devices". Clause 6(b)(ii) of the ICT Policy clearly stipulates that an employee will have misused information upon searching departmental databases for the records of a client that is "known to them on a personal basis".

• [55] On its plain and ordinary meaning, knowing someone on a personal basis refers to a relationship that has arisen from the private aspect of someone's life. In the context of employment, it is reasonable to conclude that an employee's private life is that which occurs outside the course of their employment. The scope is evidently broad and can range from intimate relationships to associations that have arisen from religious or cultural groups, for example.

• [56] Ms Wilson had met Court Client X through their daughters' cheer squad, an aspect of their personal lives. Accordingly, it was reasonable for the decision maker to conclude that Ms Wilson knew Court Client X on a personal basis.

• [57] I make similar observations with respect to the relationship between Ms Wilson and Court Client Y. Regardless of whether Ms Wilson agrees or disagrees with Court Client Y's contention they are "close personal friends", Court Client Y is an individual whom Ms Wilson knows by virtue of him being the ex-partner of Court Client X. Further, the evidence considered by the decision maker suggests that Ms Wilson attended a barbeque at which she knew Court Client Y had been present also. Therefore, it was reasonable for the decision maker to conclude that Ms Wilson knew Court Client Y on a personal basis.

Did a conflict of interest arise by virtue of the relationships?

• [58] I have established that Ms Wilson knew Court Client X and Court Client Y on a personal basis. The relationship placed Ms Wilson in a situation where she could potentially be conflicted between her duty to act in accordance with the Code of Conduct for the Queensland Public Service and her personal interest in assisting someone she knows on a personal basis. There was a very real possibility that the relationship could influence the performance of Ms Wilson's duties.

• [59] Ms Wilson submitted that cl 1.2 of the Code of Conduct for the Queensland Public Service contemplates conflicts arising from relationships through which there is "some actual benefit to be derived by the person with the conflict of interest" and that "Clause 1.2 is wholly concerned with situations where some direct, indirect, pecuniary, or non-pecuniary benefit is derived by the conflict of interest." I disagree with this interpretation. Clause 1.2 contemplates that a conflict of interest will arise simply by virtue of an employee knowing someone personally - it does not require any evidence that the conflict eventuated or was likely to eventuate into a benefit arising for the employee.

• [60] A conflict of interest arose by virtue of there being a personal affiliation between Ms Wilson and Court Client X. I accept that Ms Wilson should have taken steps to deal with any actual, perceived or potential conflict of interest.

• [61] Ms Wilson submitted that when she received a request for information from Court Client X, the first question she asked was whether that person was the aggrieved or a victim in the proceedings. From that question, Ms Wilson would determine whether the individual was entitled to the requested information. Although that may be the case, that contention does not negate the fact that a conflict of interest existed and that the relationship could potentially influence the performance of Ms Wilson's duties.

Did Ms Wilson properly disclose the conflict of interest?

• [62] As outlined in cl 1.2 of the Code of Conduct for the Queensland Public Service, a conflict of interest "is not a wrongdoing in itself. However failing to disclose and manage the conflict is likely to be wrongdoing." Ms Wilson submitted that she advised supervisors on three occasions that she knew Court Client X due to the cheer squad affiliation. Further, Ms Wilson contends that Court Client X frequented the courthouse and that the relationship was well known to registry staff. Ms Wilson submitted that despite her supervisors and colleagues being made aware of this relationship, no one suggested that a potential conflict of interest could exist.

• [63] The Department submitted that although Ms Wilson may have mentioned the relationship, that does not amount to proper disclosure. Further, the Department referred to Ms Wilson's allegation that she advised "an unidentified person/s" that she knew Court Client X. This submission indicates that perhaps Ms Wilson did not specify the supervisors she had advised and seems to indicate that the Department was not satisfied with the truth of the assertion. In the decision letter, the decision maker noted that the Acting Senior Registrar was unable to recall Ms Wilson raising a conflict of interest and has no records of anything being reported. Further, an inspection of the ESU's official conflict of interest records has revealed no records in relation to Ms Wilson declaring a conflict of interest.

• [64] On the one hand Ms Wilson submits that she informed her supervisors of her relationship with Court Client X but on the other she submits that she did not consider the relationship to constitute a conflict and therefore it appears that any communication with supervisors was not with the intention of verbalising a potential conflict but was rather inadvertent. If Ms Wilson did indeed openly discuss this relationship with her supervisors and they did not respond with a caution or the like, Ms Wilson's views on what constituted a conflict may have been misconstrued which led her to genuinely believe that accessing and providing the information was permitted. However, during her interview with the investigator, Ms Wilson advised she understood that she was not authorised to look at the records of anyone 'known to you'[17] and it is therefore difficult to accept that Ms Wilson had not at least contemplated that something was amiss when dealing with Court Client X.

• [65] The allegations made by Ms Wilson that she had mentioned the relationship to her supervisors require appropriately weighty evidence. Ms Wilson was unable to provide such evidence and in opposition, the evidence of the Acting Senior Registrar is that he cannot recall the conversation, nor is there any record on the conflict database. The evidence regarding the Acting Senior Registrar being unable to recall the conversation, in and of itself, is insufficient to contradict the allegation that Ms Wilson made mention of the relationship. However, in the context of the other evidence available to the decision maker, the Acting Senior Registrar's recollection is at least consistent with the notion that proper disclosure was never made.

• [66] With respect to the Declaration of Interest, I accept that Ms Wilson ought to have lodged a Declaration of Interest because the conflict may be perceived to have a bearing on carrying out a role properly and impartially. I disagree with Ms Wilson's contention that this requires evidence of a personal benefit that may be derived by her for the reasons outlined above.

• [67] I accept that there was a conflict of interest that was not appropriately dealt with before Ms Wilson accessed the QWIC records at the request of Court Client X. It was incumbent upon Ms Wilson to take the necessary steps to deal with a conflict of interest in the appropriate manner, which she failed to do.

Allegation 1: Did Ms Wilson access the records of the court clients without authority?

• [68] Although Ms Wilson may have generally had authority to access court records, in this circumstance, a conflict of interest existed and Ms Wilson did not discharge her obligations with respect to disclosing that conflict.

• [69] By searching the records of Court Client Y, Ms Wilson contravened cl 6(b)(ii) of the ICT Policy and her failure to disclose the conflict contravened cl 1.2 of the Code of Conduct for the Queensland Public Service. Therefore, in accessing the court records of Court Client Y, Ms Wilson acted outside the scope of her authority.

Allegation 2: Did Ms Wilson inappropriately disclose information?

• [70] Although Ms Wilson may generally have had authority to disclose information to court clients, in this circumstance, a conflict of interest existed and Ms Wilson did not discharge her obligations with respect to disclosing that conflict. Therefore, in accessing the court records of Court Client Y and disclosing that information to Court Client X, the disclosure of the information was inappropriate.

• [71] In addition to the reasoning above, I have noted the Department's submission that during her interview with the investigator, Ms Wilson admitted to disclosing to Court Client X that Court Client Y had been granted bail in October 2016 - such disclosure is prohibited pursuant to s 169K of the DVFP Act. Based on that conclusion, I find that even if I am wrong on finding that the general information provided by Ms Wilson was "inappropriately disclosed" to Court Client X by virtue of the conflict, the information was still "inappropriately disclosed" by virtue of it being prohibited pursuant to the DVFP Act.

• [72] I accept the Department's submission that the criminal cases referred to by Ms Wilson are with respect to different allegations and regardless, the discontinuance of criminal proceedings does not affect disciplinary findings under the PS Act.

• [73] I accept that Ms Wilson was afforded procedural fairness throughout the disciplinary process, noting the various requests for information and extensions of time granted to her. Ms Wilson was also given the opportunity to obtain legal advice.

Was it fair and reasonable for the decision maker to make her findings on the balance of probabilities?

• [74] I have now reviewed the evidence available to the decision maker when the decision was made and for the reasons outlined above, I have reached the same finding as the decision maker. There is no lack of intelligible justification in the decision, nor an absence of evidence upon which the decision maker could rely. Given the proposed disciplinary penalty of termination, there can be little doubt that the decision maker appreciated the seriousness of the allegations in considering the weight of evidence and making that finding.

• [75] The conclusions that have been drawn from the evidence before the decision maker reasonably justifies the conclusion that Allegation 1 and Allegation 2 are substantiated because the evidence establishes that it is more probable than not that the alleged conduct occurred.

• [76] I note that Ms Wilson has a 17-year employment history with the Department and no prior disciplinary action nor complaint. Ms Wilson has submitted that if she loses her job, she will be destitute. Ms Wilson is a single mother with sole responsibility for the care and financial support for her teenage daughter. Ms Wilson does not have any living family to whom she may otherwise turn to for support. These factors are significant and should be taken into careful consideration by the Department when determining the appropriate penalty. However, that is not relevant to my consideration of whether it was reasonable for the decision maker to find the allegations were substantiated in the circumstances.

• [77] In her response to the Show Cause Notice relating to disciplinary action, Ms Wilson makes a number of submissions about the appropriateness of the proposed penalty, namely termination of her employment.

• [78] The PS Act at s 194 sets out the types of 'decisions' which may be appealed. That includes a decision to impose discipline, but not a decision to terminate employment.[18] As such, if the decision maker had indeed determined to terminate Ms Wilson's employment in the decision letter, that could not be appealed through the Public Service Appeal pathway.

• [79] However, the decision letter provides as follows:

In relation to the taking of disciplinary action, I am currently giving serious consideration to the termination of your employment.

In terms of the principles of natural justice, no final determination of the disciplinary action has been made, or will be made, until you have had the opportunity to respond.

• [80] In considering what constitutes a decision, Cullinane J found in Ambrey v Oswin that:

A decision must, for the purposes of the act be one which is "final --- operative and determinative --- in a practical sense of the issue in fact falling for --- consideration."[19]

• [81] The proposal of a disciplinary penalty, followed by an invitation for submissions, is not a final and operative decision. It is a procedural determination that further action may be taken. As such, that portion of the decision letter it is not appealable, as it is not a 'decision'.

• [82] Ms Wilson has not demonstrated why the decision, or the process undertaken to arrive at that decision, was unfair or unreasonable. I have found that the decision maker was able to conclude on the material before her that the allegations were substantiated.

• [83] I have also found that the decision maker's proposed penalty of termination is not a 'decision' and so is outside the scope of this appeal.

• [84] Although I have found that the allegations were open to be substantiated on the evidence before the decision maker, I note that it is also true that reasonable minds may differ. A different, equally reasonable decision maker may well have considered the evidence insufficient to substantiate such significant allegations. The devastating impact of termination mandates that such a penalty is not undertaken lightly.

• [85] In the course of this appeal, Ms Wilson has suggested that proposed penalty would be harsh and unreasonable. She has implored the decision maker to give further consideration to her length of service, otherwise unblemished employment record and the devastating impact termination of employment would have on both she and her teenage daughter. I appreciate that with a decision in this appeal now released, the disciplinary process is likely to resume with the decision maker's determination of the appropriate penalty, having considered Ms Wilson's submissions on the proposed penalty of termination. Section 188(1) of the PS Act contains several examples of disciplinary action (including, but not limited to, termination of employment) that may be subject of such further considerations.

1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.

1. Pursuant to s 566(1)(b) of the Industrial Relations Act 2016, the stay of the decision appealed against made on 7 January 2021 is revoked.

[1] Industrial Relations Act 2016 (Qld) s 564(2).

[2] Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010; Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, 547.

[3] House v The King (1936) 55 CLR 499, [2].

[4] (1995) 149 QGIG 777.

[5] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, 556.

[6] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300.

[7] Geoffrey John Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20; Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232.

[8] [2010] ICQ 35, [6].

[9] Industrial Relations Act 2016 (Qld) s 562B(3).

[10] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008 (Qld).

[11] Industrial Relations Act 2016 (Qld) s 567(2).

[12] Show Cause Notice, 11 December 2020, p 6.

[13] Code of Conduct for the Queensland Public Service (December 2010).

[14] Gilmour v Waddell & Ors [2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332, [63]-[76].

[15] This factor is relevant to part of Allegation 1.

[16] This factor is relevant to part of Allegation 2.

[17] Department of Justice and Attorney-General, Show Cause Notice - Decision on Disciplinary Finding and Proposed Disciplinary Action, 11 December 2020.

[18] Public Service Act 2008 (Qld) s 194(1)(b)(i).

[19] Ambrey v Oswin [2004] QSC 224, [32] citing Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 337.