Div 6Dismissals and Punishments

Division 6—Dismissals and Punishments Definitions. 60. (1) In this Division, unless the contrary intention appears, “salary” does not include such allowances as are prescribed by the Bylaws. (2) In this Division, a reference to misconduct, in relation to an officer, is a reference to a failure of the officer to fulfil his duty as an officer. Disciplinary action. 61. (1) For the purposes of this Division, an officer shall be taken to have failed to fulfil his duty as an officer if and only if— (a) he wilfully disobeys or wilfully disregards a direction given to him as an officer and given by a person having authority to give the direction; (b) he is inefficient or incompetent by reason of causes within his own control; (c) he is negligent or careless in the discharge of his duties; (d) he is guilty of improper conduct as an officer; (e) he is guilty of improper conduct otherwise than as an officer, being conduct that affects adversely the performance of his duties, is prejudicial to the interests of the Commission or damaging to the business of the Commission; (f) he contravenes or fails to comply with a provision of this Act, of the regulations or of the By-laws that is applicable to him or with the terms and conditions upon which he is employed; or (g) he has, whether before or after becoming an officer, wilfully supplied to the Commission, to an officer or to some other person acting on behalf of the Commission incorrect or misleading information in connexion with his appointment to the Service. (2) If a supervisor of an officer has, at any time, reason to believe that the officer may have failed to fulfil his duty as an officer, the supervisor may require the officer to furnish to the supervisor, in writing, an explanation of the matters alleged to constitute the failure and may, after consideration of any explanation furnished by the officer, if he is of the opinion that the officer has failed to fulfil his duty as an officer— (a) counsel the officer; or (b) furnish a report concerning the matters, together with any explanation furnished to him, to an officer authorized for the purposes of sub-section (3). (3) Where an officer authorized by the Commission for the purposes of this sub-section is of the opinion, whether by reason of his consideration of a report furnished under sub-section (2) or otherwise, that an officer may have failed to fulfil his duty as an officer, the authorized officer shall, as soon as practicable, decide whether he should be charged and— (a) if he decides that the officer should not be charged—may counsel the officer or cause a supervisor of the officer to counsel the officer; or (b) if he decides that the officer should be charged—by writing under his hand delivered to the officer, charge the officer with the failure. (4) Where an officer charged under sub-section (3) so requests, a copy of the charge shall be furnished to the organization to which the officer belongs. (5) Where an officer is charged with misconduct, an officer authorized for the purposes of this sub-section, not being either the supervisor of the officer charged or an officer authorized by the Commission for the purposes of sub-section (3), shall, without undue delay, hold an inquiry into the charge. (6) In an inquiry for the purposes of sub-section (5), a formal hearing is not required, but the officer shall be notified that an inquiry is to be held into the alleged misconduct and given an opportunity to state, in writing, within 7 days or such longer period as the officer holding the inquiry may allow after the notice is furnished to him, whether he admits or denies the truth of the matters alleged to constitute the misconduct and to furnish a statement in relation to those matters. (7) Where an officer has furnished a statement in relation to the matters alleged to constitute misconduct, the officer shall, if he so requests, be given the opportunity of making a further oral statement to the officer holding the inquiry and, if he does so, a written record of his further statement shall be made by that officer. (8) An officer charged with misconduct shall not be taken, by reason only of having failed to deny the truth of a matter alleged to constitute the misconduct, to have admitted the truth of that matter. (9) Where the officer who held an inquiry into a charge is satisfied that the officer charged has failed to fulfil his duty as an officer, he may counsel the officer or cause a supervisor of the officer to counsel him, or, if he is of the opinion that other action is necessary— (a) admonish the officer; (b) direct that a sum not exceeding $40 be deducted from the salary of the officer; (c) if the officer occupies a position to which a range of salary is applicable and is in receipt of a salary other than the minimum salary of that range—direct that his salary be reduced to a lower salary within that range for a period not exceeding 12 months; or (d) recommend to the Commission in writing— (i) that the Commission transfer the officer to another position, whether at the same or a different locality, being a position for which he is qualified and which has the same classification as the position held by the officer, and the salary, within the salary range of the position, that should be paid to the officer; (ii) that the Commission transfer the officer to another position, whether in the same or a different locality, being a position for which he is qualified and which has a lower classification than the position held by the officer, and the salary, within the salary range of the position, that should be paid to the officer; or (iii) that the Commission dismiss the officer from the Service. (10) Where an officer makes a recommendation specified in paragraph (9)(d) in respect of an officer, he shall furnish to the Commission, with his recommendation, full particulars of his findings in relation to the facts giving rise to the misconduct. (11) Where an officer makes a recommendation specified in paragraph (9)(d) in respect of an officer, the Commission may, after consideration of the particulars furnished under sub-section (10) counsel the officer or if it considers that other action is necessary— (a) admonish the officer; (b) decide— (i) to give effect to the recommendation; or (ii) to take any other action that could have been recommended under that paragraph; or (c) give a direction referred to in paragraph (9)(b) or (c). (12) Where an officer recommends, or the Commission decides, that an officer be transferred to a position having the same classification as the position previously held by him and that he be paid a salary that is the equivalent of the salary previously paid to him, the officer may also recommend or the Commission may also direct, as the case may be, that a sum not exceeding $40 be deducted from the officer’s salary. (13) Where an officer authorized for the purposes of sub-section (5) or the Commission gives a direction that the salary of an officer be reduced, the officer is entitled, at the expiration of the period specified by the first-mentioned officer or the Commission in that direction, to be paid salary at the rate at which salary would have been payable to him if the reduction had not taken place. (14) The admonition of an officer by the Commission or by an officer authorized for the purposes of sub-section (5) does not have any effect— (a) if the officer appeals against the admonition—unless the appeal lapses or is withdrawn or a Disciplinary Appeal Board confirms the admonition; or (b) in any other case—until the expiration of the period within which the officer may appeal against the admonition to a Disciplinary Appeal Board. (15) A direction or decision under this section by the Commission or by an officer authorized for the purposes of sub-section (5) does not take effect— (a) if the officer appeals against the direction or decision—unless the appeal lapses or is withdrawn or a Disciplinary Appeal Board confirms, either with or without a variation, the direction or decision; or (b) in any other case—until the expiration of the period within which the officer may appeal against the direction or decision to a Disciplinary Appeal Board. Suspension of officers. 62. (1) Where– (a) an officer has been charged with having committed— (i) an offence against a law of Australia or of a State or Territory; or (ii) an offence against a law of a foreign country, being an offence which, if committed in Australia, would have constituted an offence against a law of Australia or of a State or Territory; or (b) the Commission is of the opinion that an officer may have failed to fulfil his duty as an officer, and the Commission is of the opinion that it would be prejudicial to the effective operation of the Commission, to the interests of the public or to the interests of the officer and his fellow officers if the officer were to continue to perform the duties of his existing position, the Commission may, by notice in writing— (c) suspend the officer from duty; or (d) transfer the officer temporarily to another position for which he is qualified (whether at the same or a different locality) having the same classification as the position held by the officer. (2) Where an officer is suspended from duty otherwise than by reason of circumstances referred to in paragraph (1)(a) before he is charged with misconduct, he shall, until an officer authorized for the purposes of sub-section 61(3) decides whether he should be charged, be deemed to be absent on leave of absence with salary. (3) Where an officer is suspended from duty at a time when he is absent on leave of absence, the suspension does not prevent his receiving any salary to which he is entitled during that period of absence. (4) The suspension of an officer from duty does not prevent the granting to the officer of leave of absence with salary. (5) Except as provided by sub-section (2), (3) or (4) or by section 63, an officer is not, unless the Commission, being satisfied that the officer is suffering or has suffered hardship, otherwise directs, entitled to be paid salary in respect of the period during which he is suspended. (6) An officer who is suspended from duty is entitled to engage in paid employment during any period of suspension without salary. Removal and variation of suspension. 63. (1) Where an officer is suspended from duty under section 62— (a) the Commission may, at any time, whether upon application by the officer or otherwise, remove the suspension or direct that the officer be paid salary during the suspension; and (b) the Commission shall, if the suspension continues for more than 30 days, forthwith after the suspension has continued for more than 30 days, consider whether the suspension should be removed or salary should be paid during the suspension. (2) Where an officer has, by reason of his having been charged with an offence referred to in paragraph 62(1)(a), been suspended from duty or transferred temporarily to another position and, upon the hearing of the charge— (a) the officer does not plead guilty, and is not found guilty in respect of the offence of which he is charged or of another offence of a kind referred to in that paragraph; or (b) the charge is not proceeded with, the Commission shall, if it has not previously done so, remove the suspension or transfer the officer back to the position that he had previously held, as the case may be. (3) Where an officer has been suspended from duty or transferred temporarily to another position in circumstances referred to in paragraph 62(1)(b) and— (a) if the officer is charged with misconduct—the officer holding an inquiry into the misconduct or a Disciplinary Appeal Board finds that the charge has not been established or the charge is withdrawn; or (b) in any other case—an officer authorized for the purposes of subsection 61(3), decides that the officer should not be charged with misconduct, the Commission shall, if it has not previously done so, remove the suspension or transfer the officer back to the position that he had previously held, as the case may be. (4) Where– (a) an officer has been suspended from duty under section 62; (b) the amount of salary that would otherwise have been paid to the officer in respect of the period or a part of the period of the suspension was not paid to him; and (c) the Commission removes the suspension, the officer shall, subject to sub-section (5), be paid that amount of salary. (5) Where the Commission is satisfied that an officer to whom sub\-section (4) applies has engaged in paid employment or work during the period or a part of the period of his suspension, the amount payable to him under that sub-section shall be reduced by the amount equal to the total of the amount of the earnings that the Commission is satisfied were received or are receivable by him in respect of that employment or work. (6) Where the suspension of an officer who had, after the suspension commenced, sought and been granted leave of absence for a part of the period of suspension, is removed under this section, the officer is entitled to a credit of a period of leave of absence equal to that part of the period of suspension. (7) Except where an officer is dismissed from the Service, the period during which the officer is suspended from duty counts as service for all purposes. (8) Where an officer retires or resigns from the Service or dies while he is suspended from duty without salary, the Commission may, in its discretion, authorize payment to the officer, or to the estate of the deceased officer, of an amount equal to the salary that would otherwise have been paid to the officer in respect of the period of his suspension without salary less the amount (if any) of the earnings that the Commission is satisfied the officer received or was entitled to receive in respect of any employment or work engaged in by him while so suspended. (9) Where, immediately before a direction or decision of an officer or of the Commission under section 61, a decision of the Commission under sub-section 64(1) or a decision of a Disciplinary Appeal Board under section 65 takes effect in relation to an officer, the last-mentioned officer is under suspension from duty in connexion with the misconduct or offence to which the direction or decision is related, the suspension ceases upon that direction or decision taking effect. Convictions by courts. 64. (1) Where a court convicts an officer on a charge for an offence referred to in paragraph 62(1) (a) or a court, without recording a conviction, finds that an officer has committed such an offence and the Commission, after giving the officer an opportunity to furnish to it, in writing, any explanation that he desires to make in relation to the offence, is of the opinion that, having regard to the nature and circumstances of the offence and the nature of the duties of the officer, the interests of the Commission justify it in so doing, the Commission may counsel the officer or may decide to— (a) transfer the officer to another position, whether at the same or a different locality, being a position for which he is qualified and which has the same classification as, or a lower classification than, the position held by the officer, and determine the salary, within the salary range of the position, that is to be paid to the officer; or (b) dismiss the officer from the Service. (2) A decision of the Commission under sub-section (1) with respect to an officer, does not take effect— (a) if the officer appeals against the decision—unless the appeal lapses or is withdrawn or a Disciplinary Appeal Board confirms, either with or without a variation, the decision; or (b) in any other case—until the expiration of the period within which the officer may appeal against the decision to a Disciplinary Appeal Board. (3) Where, after a person charged with an offence referred to in paragraph 62(1)(a) has been dismissed from the Service in accordance with a decision of the Commission under sub-section (1) the finding of the court in relation to the offence with which he was charged is nullified, the Commission may, upon application, in writing, made to it by the person, appoint the person as an officer, without probation, to fill his original position or an equivalent position, or, if such a position is not available, an available position as nearly as possible equivalent to his original position. (4) Where an officer charged with an offence referred to in paragraph 62(1)(a) has, under sub-section (1), been transferred to another position and the finding of the Court in relation to the offence with which he was charged is nullified, the Commission may, upon application, in writing, made to it by the officer, transfer the officer to his original position or an equivalent position, or, if such a position is not available, to an available position as nearly as possible equivalent to his original position. (5) Where the Commission refuses an application under sub-section (3) or (4), it shall notify the applicant, in writing, accordingly and furnish to him its reasons for the refusal. (6) Where an officer serves a term of imprisonment, or a period of custody in relation to an alleged offence, but is not dismissed— (a) he shall be deemed, for the duration of his imprisonment or custody, to be on leave of absence without pay; (b) his service before that period of imprisonment or custody shall be regarded as being continuous with his service after that period; (c) the period of his imprisonment or custody shall not, unless the Commission otherwise determines, be regarded as service for any purpose under this Act; and (d) the Commission may determine that the original position occupied by the officer is vacant. (7) For the purposes of this section, a finding of a court in relation to an offence shall be regarded as having been nullified— (a) where a person has been convicted on the basis of that finding—if the conviction has subsequently been quashed or otherwise nullified or the person convicted has received a pardon or has been released from prison as a result of an inquiry into the conviction; or (b) in any other case—if the finding has been set aside. (8) This section does not prevent an officer from being dealt with under another provision of this Act, but an officer shall not be punished under this Act twice in respect of the same matter. Appeals. 65. (1) An officer may appeal to a Disciplinary Appeal Board— (a) against his admonition by, or a direction or decision made or given with respect to him by, an officer or the Commission under section 61; or (b) against a decision made with respect to him by the Commission under sub-section 64(1). (2) Where the Commission has refused an application under subsection 64(3) or (4) the applicant may appeal against the refusal to a Disciplinary Appeal Board. (3) In the hearing of an appeal under this section, the Disciplinary Appeal Board may take evidence on oath or affirmation. (4) The regulations may prescribe the manner in which, and the time within which, appeals may be made under this section and the manner in which the hearing of appeals so made shall be conducted and may include provision for or in relation to the summoning of witnesses, the production of documents, the taking of evidence on oath or affirmation and the administering of oaths and affirmations. (5) A Disciplinary Appeal Board shall hear each appeal submitted to it under sub-section (1) and may confirm, vary or set aside the direction or decision against which the appeal is made. (6) Where an officer appeals under sub-section (1) against a direction or decision on the ground that the action to be taken in accordance with that direction or decision is excessively severe, evidence may be given on the hearing of the appeal— (a) if the officer was, under section 62, suspended without salary prior to the giving of that direction or the making of that decision—of any loss of earnings arising from that suspension; (b) if the officer is to be transferred to another position—of the expenses that will be incurred by the officer in connexion with that transfer; and (c) of matters relating to the previous employment history and general character of the appellant. (7) A Disciplinary Appeal Board shall hear each appeal duly submitted to it under sub-section (2) and may— (a) confirm the refusal appealed against; or (b) direct the Commission as follows: — (i) if the appeal is against the refusal of an application under sub-section 64(3)—that the Commission appointthe person as an officer, without probation, to fill his original position or an equivalent position, or, if such a position is not available, an available position as nearly as possible equivalent to his original position; or (ii) if the appeal is against the refusal of an application under sub-section 64(4)—that the Commission restore the officer to a salary equivalent to his former salary or transfer him to his original position or an equivalent position, or, if such a position is not available, to a position as nearly as possible equivalent to his original position. (8) A Disciplinary Appeal Board shall give reasons, in writing, for its decision on an appeal. (9) The Commission shall take such action as is necessary to give effect to a decision of a Disciplinary Appeal Board. Disciplinary Appeal Boards. 66. (1) For the purposes of this Part, the Commission shall, from time to time, arrange for the establishment of such Disciplinary Appeal Boards as are required. (2) A Disciplinary Appeal Board with respect to an appeal by an officer shall be constituted by— (a) a Chairman, who shall be a person appointed by the Minister to be the Chairman of a Disciplinary Appeal Board; (b) an officer nominated by the Commission; and (c) a person nominated as provided by the regulations to represent officers. (3) A person shall not be appointed to be the Chairman of a Disciplinary Appeal Board unless he is or has been a magistrate or is a barrister or solicitor of not less than 5 years standing. (4) A Chairman of a Disciplinary Appeal Board shall be paid such remuneration as is determined by the Remuneration Tribunal, but, if no determination of that remuneration by the Tribunal is in operation, he shall be paid such remuneration as is prescribed by the regulations. (5) A Chairman of a Disciplinary Appeal Board shall be paid such allowances as are prescribed by the regulations. (6) Sub-sections (4) and (5) have effect subject to the Remuneration Tribunals Act 1973-1974. (7) Subject to sub-sections (4) and (5), the Chairman of a Disciplinary Appeal Board holds office for such period, and upon such terms and conditions, as the Minister determines. (8) The officer referred to in paragraph (2)(b) and the person referred to in paragraph (2)(c) shall be nominated for the purposes of a particular appeal only, and an officer concerned in the laying of a charge against the appellant or in the inquiry related to the charge shall not be nominated for the purpose of an appeal relating to the charge. (9) A Disciplinary Appeal Board may, when only 2 of the 3 members are present, with the consent of the appellant and of the Commission, exercise all the powers of a Disciplinary Appeal Board in respect of an appeal. (10) Where, at a meeting of a Disciplinary Appeal Board, the members are divided in opinion on a question, that question shall be decided according to a decision of the majority but, if 2 members only are present and those members are equally divided on a question, the appeal shall be deemed to be adjourned for the purpose of being reheard by a Disciplinary Appeal Board. Review of findings. 67. (1) Where– (a) an officer authorized for the purpose of sub-section 61(5) or a Disciplinary Appeal Board has found that a charge against a person under sub-section 61(3) has been established; and (b) in respect of the charge— (i) a sum was deducted from the salary of the person; (ii) the salary of the person was reduced; (iii) the person was transferred to another position; or (iv) the person was dismissed from the Service, the person may, at any time, request the Commission, in writing, to review the finding, or the action taken in respect of the charge, on the ground that evidence that was not given, and could not reasonably be expected to be given, on behalf of the person in the course of the investigation of the charge is now available and that the evidence might, if it had been given, have resulted in the charge being found not to have been established, or in less severe action being taken in respect of the charge, as the case may be. (2) A request under sub-section (1) shall set out particulars of the evidence that has become available. (3) Where the Commission is satisfied that the ground of the request is established, the Commission shall review the finding or the action taken in respect of the charge, as the case may be. (4) Where the Commission has reviewed a finding, the Commission shall— (a) if it is satisfied, in the light of the evidence given when the charge was being investigated and the evidence before the Commission in connexion with the review, that the person failed to fulfil his duty as an officer—confirm the finding; or (b) in any other case—quash the finding and take such action by way of recompensing the person as is, in the opinion of the Commission, reasonable and practicable in all the circumstances. (5) Where the Commission has reviewed the action taken in respect of a charge, the Commission shall— (a) if it is satisfied, in the light of the evidence given when the charge was investigated and the evidence before the Commission in connexion with the review, that the action so taken was not too severe—confirm the action; or (b) in any other case—take such action to mitigate the severity of the action taken in respect of the charge as is, in the opinion of the Commission, reasonable and practicable in all the circumstances. (6) Without limiting the power of the Commission under sub\-section (4) or (5), the Commission may, if it considers it appropriate to do so, reappoint the person as an officer and appoint him to, or transfer the person to, his original position or an equivalent position or, if such a position is not available, to an available position as nearly as possible equivalent to his original position. (7) In this section— (a) a reference to the investigation of a charge is a reference— (i) if the person charged appealed to a Disciplinary Appeal Board—to the investigation of the charge by the Disciplinary Appeal Board; or (ii) in any other case—to the investigation of the charge by the officer authorized under sub-section 61(5) to investigate the charge; and (b) a reference to the giving of evidence includes a reference to the submission or production of statements or other material.