100212233

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES PAULINE JANE BINGHAM

APPLICANT

 -v-

 DIRECTOR GENERAL, DEPARTMENT OF JUSTICE

RESPONDENT

CORAM PUBLIC SERVICE APPEAL BOARD

  SENIOR COMMISSIONER A R BEECH - CHAIRPERSON

  MR K.R. TRENT - BOARD MEMBER

  MR S.H. DUNSTAN

DATE WEDNESDAY, 24 JULY 2002

FILE NO PSAB 8 OF 2002

CITATION NO. 2002 WAIRC 06058

_______________________________________________________________________________

Result Application for an Order for production of documents granted.

Representation

Applicant Mr B. Cusack (as agent)

Respondent Mr J. Beedham (as agent)

_______________________________________________________________________________

Reasons for Decision - Production of Documents

1         What follows is the unanimous decision of the Public Service Appeal Board.

2         The Public Service Appeal Board has before it an application lodged by the CSA on behalf of Ms Bingham for an Order pursuant to Regulation 80 of the Industrial Relations Commission Regulations 1985 directing the respondent to produce for inspection all documents in its possession relating to any suspected breaches of discipline, disciplinary investigations, disciplinary enquiries or termination of employment in respect to Ms Pauline Bingham including but not limited to 18 documents identified by name and date. 

3         Ms Bingham’s agent, Mr Cusack, stated that the reason for termination given to Ms Bingham in the letter which terminated her contract of employment was that the respondent had “serious concerns regarding her honesty and trustworthiness”.  Following a Freedom of Information enquiry, the 18 documents set out in the application were stated by the Department to exist.  In Mr Cusack’s submission, the contents of the documents are directly relevant to the decision of the Director General to terminate Ms Bingham’s contract and they are thus relevant to the appeal.  Mr Cusack stated that to order their production would be “just” and drew the Board’s attention to the decision of the Full Bench in ALHMWU v. WA Hotels and Hospitality Association and Burswood Resort (Management) Ltd (1995) 75 WAIG 1801 at 1805.  Mr Cusack conceded that production of the documents for inspection may cause some discomfort to the respondent because of the operations of its Internal Investigation Unit however this is balanced by the purpose of discovery of documents in a matter such as that presently before the Board.

4         Mr Cusack drew a parallel with the process whereby a department investigates one of its employees for a suspected breach of discipline under the Public Sector Management Act 1994.  That process is a public process and the documents concerned with that process would be made available to the employee.  Mr Cusack noted the need for confidentiality of some documents and confirmed that access to the documents are sought solely for the purpose of the appeal.  Mr Cusack submitted that it was not possible to limit the scope of the documents to be produced without compromising the purpose of discovery.  However, if the order is refused the risk of Ms Bingham being “ambushed” in the appeal is greater. 

5         On behalf of the Director General, Mr Beedham submitted the rejection of documents privileged by reason of s.5(1)(b) and s.5(2)(b) of Schedule 1 of the Freedom of Information Act 1992 is a relevant consideration for the Board.  The respondent contends that it is not in the public interest to disclose the content of these documents to Ms Bingham.  The Department considers that the Board should consider whether harm would be done by the production of the documents and whether the administration of justice would be frustrated by the production of the documents or impaired if the documents were withheld. 

6         The respondent states that the documents sought be produced were originated by the respondent’s Internal Investigations Unit or are documents that refer directly to the IIU.  The respondent has attempted to keep the integrity of the IIU sacrosanct.  In general terms, the primary role of the IIU mainly concerns matters of serious misconduct, deaths in custody, escapes and serious incidents.  The IIU does not release the Investigation Report to either the complainant or the subject.  The IIU relies heavily on information presented by witnesses and informants and the release of reports may directly jeopardise the investigator’s ability to collect information during an investigation.  If the Board grants the request to produce the documents for inspection the Department anticipates that there will be a reduction in the number of complaints from staff who would feel that they no longer have any assurance of confidentiality and therefore the respondent will suffer harm.  It is not in the public interest for that to occur.

7         In particular, Mr Beedham submitted that the respondent, in paying out the balance of Ms Bingham’s fixed term contract, together with the fact that in any event her fixed term contract would cease by the effluxion of time on 9 August 2002, means that Ms Bingham would not be disadvantaged or harmed in not having access to the documents sought to be produced. 

8         The Department submits that although the Board has the power to order the production of documents under s.27 of the Act, s.33 of the Act does not apply to the operations of the Board.  Section 33 permits the Commission to deal with sensitive or secret documents.  The lack of power for the Board to ensure that documents produced in evidence may not be made public shows an intention on the part of the Parliament that the Board not deal with such issues. 

Conclusion

9         It is not in dispute that the powers given to the Commission in s.27(1)(o) and (v) of the Act apply to the Board.  We are therefore satisfied that we have the power to order the production of the documents which are sought to be produced.  We also consider for the reasons to follow that s.27(1)(v) gives the power to order that the documents be produced subject to certain conditions.  Thus, the Public Service Appeal Board may, for the purpose of having the documents produced for inspection, oblige Ms Bingham to use the information contained in those documents only for the purposes of this appeal. 

10      We consider that the documents which are sought to be produced for inspection are relevant to the appeal.  In paragraph 8 of the Director General’s Notice of Answer of 17 May 2002, the Director General states that he lost confidence in Ms Bingham as an employee “following investigation of two discipline matters”.  It follows that the documents relating to those two investigations are directly relevant to the decision of the Director General that he had lost confidence in Ms Bingham as an employee.

11      The purpose of ordering the discovery of documents is to provide each party to the appeal with access before the appeal commences to the relevant documents in the hands of each party so avoiding trial by ambush, saving costs and encouraging settlement in proper cases (ALHMWU, above at 1805).  Further, discovery of documents is confined to what is in issue in the Notice of Appeal and the Notice of Answer (ibid). 

12      The rules relating to privilege, whereby objection is taken to the producing of documents that would otherwise be relevant, is relevant because it forms part of the equity, good conscience and the substantial merits of the case (ibid at 1808).  In resisting producing the documents for inspection on the basis of the confidentiality of the operations of its Internal Investigation Unit, the respondent claims public interest privilege.  This is a privilege which covers information which is not necessarily strictly Crown information but which was collected in the course of public duties or public administration (Australian Civil Procedure, B.C. Cairns, 4th Edition, LBC Information Services 1996, page 397).  There is therefore a balance to be struck between the public interest in maintaining confidentiality of certain information and the needs of parties to proceedings such as these for full disclosure.  Sometimes, there is a public interest in maintaining confidentiality such as information from police informers and from others who only give information if confidentiality is assured (Attorney General for NSW v. Stuart (1994) 34 NSWLR 667). 

13      We acknowledge that the operations of the Internal Investigations Unit may, in general, attract the public interest privilege such that an Order would not be made for the production for IIU documents. 

14      In this specific case however, we have been unable to distinguish between the circumstances of the investigation by the IIU into Ms Bingham and the investigation under the Public Sector Management Act 1994 by a Public Service Department into one of its employees where the investigation process will be open and the documents would be amenable to an order for their production.  For example, it is not said that Ms Bingham was employed in any security related or offender management function within the Department of Justice.  In our view, this is sufficient to distinguish the investigations of Ms Bingham from the investigations undertaken by the IIU which mainly concern matters of serious misconduct, deaths in custody, escapes and serious incidents.  There is no suggestion in the material before the Public Service Appeal Board that the reason why the Director General has lost confidence in Ms Bingham is because she was being investigated for a reason which fits these descriptions. 

15      We also were not persuaded that merely because the respondent paid out the balance of Ms Bingham’s fixed term contract, when it terminated the contract and that in any event her fixed term contract would cease by the effluxion of time on 9 August 2002, Ms Bingham would not be disadvantaged or harmed in not having access to the documents sought by to be produced for inspection this application.  We are unanimously of the view that Ms Bingham is entitled to argue in her appeal that her dismissal was unfair and that the documents she seeks to have produced for inspection are relevant to that argument. 

16      Finally, we are of the view that we have sufficient power in s.27(1)(v) of the Act to provide the protection in these proceedings to which the Department referred.  We make the point that an order in the terms sought merely obliges the respondent to produce documents for inspection to the appellant.  The order would not require any of the documents to be actually produced in evidence before the Board in the substantive appeal. 

17      Section 27(1)(v) of the Act provides that the Commission has the powers to:

(v) generally give all such directions and do all such things as are necessary or expedient for the expeditious and just hearing and determination of the matter.”

18      That provision does not confer substantive jurisdiction but it merely legislates for the method by which the Commission may exercise the jurisdiction already conferred on it by other sections.  In that regard it is a machinery provision (re:  AMEPKIU (2000) 80 WAIG 4577 at [12] and [13]).  We are of the view that s.27(1)(v) provides the machinery for the Board in exercising the power otherwise given to it in s.27(1)(o) to order the production of documents for inspection may include such other orders relating to that production as are necessary for the just hearing and determination of the appeal. 

19      We accept Mr Cusack’s undertaking to this Board that the documents sought to be produced are sought only to the extent that they are relevant to the decision by the Department to terminate Ms Bingham’s employment.

20      We also accept his undertaking that the production of the documents for inspection is sought for the only and sole purpose of these proceedings and that they will not be used or divulged otherwise.  In that regard we note that the Order sought is only for the documents to be produced for inspection.  We will incorporate Mr Cusack’s undertakings in any Order to issue by virtue of s.27(1)(v).  The documents are to be produced for inspection to Mr Cusack only, as Ms Bingham’s agent.

21      For all of the above reasons we consider it just to make the Order in these terms and a Minute of that Order will be issued to the parties.