WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2011 WAIRC 01041

DELIVERED : WEDNESDAY, 16 NOVEMBER 2011

Appellant

AND

Mr Peter Conran, Director General

Dept of the Premier and Cabinet

Respondent

FILE NO. : PSAB 17 OF 2010

Appellant

AND

Peter Conran, Director General, Department of the Premier and Cabinet

Respondent

FILE NO. : PSAB 21 OF 2010

Appellant

AND

Peter Conran, Director General Department of the Premier and Cabinet

Respondent

FILE NO. : PSAB 22 OF 2010

Legislation : Industrial Relations Act 1979 (WA) s 80I(1)(a);

Public Sector Management Act 1994 (WA) s 64(1), s 64(1)(b), s 64(3), s 66, s 67, s 102, s 102(1), s 102(1)(b), s 102(1)(c), s 102(1)(d), s 102(1)(e);

Public Service Regulations 1988 (WA) reg 8.

Result : PSAB 17 of 2010 – Appeal upheld – decision adjusted in part

  PSAB 22 of 2010 – Appeal upheld – decision adjusted

  PSAB 21 of 2010 – Appeal dismissed

Representation:

Counsel:

Appellant : Ms P J Giles (of counsel)

Respondent : Mr R J Andretich (of counsel)

Solicitors:

Appellant : Donna Percy & Co

Respondent : State Solicitor's Office

Case(s) referred to in reasons:

Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 71 ALR 615

Finance Sector Union of Australia v Commonwealth Bank of Australia [2001] FCA 1613; (2001) 111 IR 241

Gothard v Davey [2010] FCA 1163

K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509

Minister for Education v Galipo [2001] WAIRC 2543; (2001) 81 WAIG 1145

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Case(s) also cited:

Civil Service Association of Western Australia v Commissioner Corruption and Crime Commission [2008] WAIRC 001531; (2009) 89 WAIG 3

Director General Department of Premier and Cabinet v Read [2009] WAIRC 00114; (2009) WAIG 553

Re C&T Grinter Transport Services Pty Ltd [2004] FCA 1148

Schlafrig v Payne [1999] WASCA 174

Reasons for Decision

SMITH AP:

Background

1          The appellant has filed three appeals to the Public Service Appeal Board (the Board) pursuant to s 80I(1)(a) of the Industrial Relations Act 1979 (WA) (the Act).  Each appeal is against a decision of the respondent as an employing authority in relation to an interpretation of a provision of the Public Sector Management Act 1994 (WA) (the PSM Act) concerning the conditions of service of public service officers.  By consent, the appeals were heard together.  The appeals collectively raise an interpretation of s 66 of the PSM Act which provides for secondment arrangements and s 102 of the PSM Act which provides that employees are not to be employed outside of government without written permission of his or her employing authority.

2          The appellant is a public service officer.  From July 2007 until 13 August 2010, the appellant worked at Edith Cowan University (ECU) pursuant to a secondment agreement made between ECU and the respondent under s 66 of the PSM Act.

3          In a letter to the respondent dated 2 February 2010, the appellant sought retrospective approval from the respondent to engage in secondary employment pursuant to s 102 of the PSM Act.  Following the receival of the request, a dispute arose as to whether it was necessary for the appellant to obtain the permission of the respondent under s 102 for work carried out by him whilst overseas and whether the appellant should be required to take annual leave for the periods of time that he carried out work overseas.  A dispute also arose as to whether the appellant should be required to take annual leave over the ECU Christmas shutdown period each year whilst he was engaged on secondment at ECU.  A consequence of these disputes was that the respondent did not extend the secondment beyond 13 August 2010.

4          At all material times, the appellant contends that the work that he carried out overseas was part of the duties of the position he held on secondment as an academic at ECU in the School of Law and Justice.

5          Following the termination of the appellant’s secondment at ECU, the appellant sought permission from the respondent to engage in activities overseas with the United Nations Office on Drugs and Crime (UNODC) and to engage in secondary employment during leave or personal time in the two years to follow.  The respondent sought further information from the appellant about the proposed work.  The appellant provided some information, but refused to provide information about consultancy contracts and specific details of remuneration and other benefits that he anticipated he would receive.  In light of this response, the respondent refused permission on 20 October 2010 for the appellant to engage in those activities.  The respondent, however, informed the appellant that if he did wish to obtain approval he should provide the information requested and an undertaking that he would not hold himself out to be representing the government or the Department of Premier and Cabinet (DPC) and would not use any official information, equipment or facilities in the activities unconnected with his employment.

The appeals

6          PSAB 17 of 2010 seeks to challenge the respondent’s decision to require the deduction of annual leave credits in respect of activities undertaken by the appellant overseas that were set out in the letter by the appellant to the respondent dated 2 February 2010.  PSAB 22 of 2010 is an appeal against the decision by the respondent conveyed to the appellant by email on 4 June 2010 to require him to take paid leave while undertaking work overseas in July 2010.  Both PSAB 17 of 2010 and PSAB 22 of 2010 are appeals in relation to the interpretation of s 66 and s 102 of the PSM Act.

7          PSAB 21 of 2010 is an appeal against the decision of the respondent solely in relation to the interpretation of s 102 of the PSM Act.  It is an appeal against a decision of the respondent on 20 October 2010 to refuse permission to engage in overseas work as a criminal justice consultant.

Terms of conditions of secondment to ECU

8          Pursuant to s 66 of the PSM Act, with the consent of a public service officer, the respondent as an employing authority is empowered to enter into an arrangement in writing with an employer outside the public sector for the secondment of the public service officer to perform functions or services for, or duties in the service of, the employer during such period as is specified in that arrangement.

9          In 2006, the appellant was employed by the Corruption and Crime Commission (the CCC) and was in dispute with the CCC about the classification of a position held by him.  During that time the appellant was on leave and undertook voluntary work at ECU in the School of Law and Justice for the purpose of giving him something to do.  At about that time he was appointed as a non-salaried Adjunct Professor.  Prior to this time, he had engaged in lecturing at ECU from time to time.

10       On 1 September 2006, the appellant made an application to the CCC for permission to engage in secondary or private employment pursuant to s 102 of the PSM Act.  The proposed position and role was consultant or occasional lecturer.  That application was approved by the CCC on 7 November 2006.

11       In early 2007, the appellant was returned to the public service when he accepted a position under protest with DPC at level 7.3.  The appellant was in dispute with DPC about this level of classification.  He was appointed to an unattached position without duties.  The respondent anticipated at that time that the appellant would be transferred or redeployed to another agency to a position for which he was qualified.

12       The Civil Service Association of Western Australia Incorporated bought an action on behalf of the appellant in an attempt to deal with some of the issues that the appellant was in dispute with the CCC.  Unfortunately, the appellant’s health suffered during 2006 and 2007 as a result of his disputes and for a large part of that time until the secondment to ECU he was on administrative leave.

13       In May 2007, DPC began negotiating a secondment arrangement for the appellant with ECU.

14       On 14 May 2007, Maria Sandercott, Acting Human Resource Consultant from DPC, sent an email to Professor Mark Stoney who was the Head of School of the School of Law and Justice at the Faculty of Business and Law at ECU, in which she said (exhibit A – GR 12):

As discussed this morning, the Department of the Premier and Cabinet (DPC) would like to offer the services of Mr Glenn Ross to ECU for a period of six months commencing as soon as possible.  DPC would fund Mr Ross' placement and not seek recoup from ECU.

Can you please initiate discussions with your HR section to enable this placement and I will seek approval from our Director General. I will be in contact once approved.

Please contact me on 9222 9518 should you require any further information.

15       On 28 May 2007, Ms Sandercott again sent an email to Professor Stoney asking (exhibit A – GR 13):

How are you? I'm just following up on the proposed secondment of Mr Glenn Ross to ECU.

Are you able to provide me with an outline of work that Mr Ross is currently undertaking or would be undertaking if the secondment was approved?

16       In response, Professor Stoney said in an email sent by him to Ms Sandercott on 29 May 2007 (exhibit A – GR 13):

Thanks-I spoke with Glenn a few days ago as I was getting the documentation for his appointment arranged with ECU HR - he advised me to 'hold' for the moment as there were a number of other avenues being explored (I thought by you). As previously advised, the School of Law and Justice would be very pleased to engage Glenn as discussed.

Glenn would be engaged in the development and delivery of a number of units in our undergraduate and post graduate programs on criminology and justice investigations and intelligence. Glenn would also provide support and guidance (supervision) to our masters and honours students. Glenn would also be asked to provide research support in our various research projects and grants.

Where do we go from here? I await your advice and Glenn's advice.

17       Prior to the secondment arrangement being agreed to, the appellant wrote to the then Director General of DPC, Mr Wauchope, on 6 June 2007, seeking approval under s 102 of the PSM Act to engage in secondary employment.  In his letter he stated (exhibit 4 – GM 201):

In accordance with s. 102 of the Public Sector Management Act 1994, I apply for permission to engage in secondary employment.

I have an existing approval to undertake secondary employment granted on 1 September 2007 by the Corruption and Crime Commission. On the basis of that approval I entered into an agreement with Edith Cowan University to deliver lectures and to undertake the associated marking and assessment activities during semester 1 of 2007. The lectures were delivered in evening classes during my own time, as was the marking of assignments, etc. I was paid for this employment.

I have also undertaken to co-develop a new unit of study and to co-deliver the unit through recorded audio-visual means during semester 2 of 2007.  The work associated with developing and recording these lectures is to be undertaken after hours during my own time. I am to be paid for these services.

Your approval is sought for this secondary employment.

18       On 13 June 2007, Mr Wauchope granted approval to the appellant to undertake course co-development and delivery in semester 2 of 2007 for ECU (exhibit 4 – GM 202):

Thank you for your letter of 6 June 2007 seeking approval to undertake course co-development and delivery in semester 2, 2007 for the Edith Cowan University. In accordance with Section 102(1)(e) of the Public Sector Management Act 1994, public officers are required to seek approval to accept or engage in external employment for reward.

I am satisfied that this part-time employment as a course developer and deliverer, to be undertaken outside your normal hours of duty should not create an actual, potential or perceived conflict of interest with your Departmental responsibilities, and is unlikely to be detrimental to your work performance.  Accordingly, I am pleased to approve your request.

19       In the meantime, ECU took steps to formalise the secondment arrangement between DPC, the appellant and ECU.

20       On 23 May 2007, the Manager Faculty Operations at the Faculty of Business and Law at ECU, sent to Professor Stoney a draft letter of secondment to be sent to the appellant and a proposed secondment agreement.  The draft letter stated (exhibit A – GR 15):

Further to our ongoing discussions on the subject of your secondment to Edith Cowan University as Lecturer of Criminology and Justice I am now writing to confirm the basis for the secondment and how this will work.

The secondment will commence on 04/06/07 for a period to 30/11/07. During your secondment you will report directly to me. Early termination of this secondment can be brought about by either party or yourself subject to providing 4 weeks notice.

The Department of Premier and Cabinet will pay your salary and other employment benefits during your secondment to Edith Cowan University.

Should the terms of the secondment alter from any outlined in this letter, the terms and conditions agreed in the secondment agreement will override this letter.

It has been agreed between the Department of Premier and Cabinet and Edith Cowan University that you maybe [sic] required to return to the Department of Premier and Cabinet in order to attend training events or organisational meetings on occasions. On such occasions your line manager will contact you in good time in order to minimise any inconvenience this may cause.

Whilst on secondment, you are expected to adhere to the ' legislative requirements, process and practices' of Edith Cowan University. In addition you are required to abide by Edith Cowan University confidentiality policy, the purpose of which is to protect the misuse of information which may be considered sensitive or confidential in nature. Where any breach of this occurs this could lead to early termination of the secondment.

We see this as a great opportunity and look forward to working with you. To indicate your acceptance of this offer of secondment and the conditions contained in the Terms and Conditions outlined in the Secondment Agreement. Please sign and date a copy of the Secondment Agreement and return to me.

21       On 18 June 2007, the appellant informed Elizabeth Delany at DPC in an email that Associate Professor Stoney had given him a number of documents to look at and sign regarding commencing a secondment at ECU (exhibit A – GR 14).

22       On 19 June 2007, the appellant advised Ms Delany that he was happy with the secondment arrangements as proposed by ECU (exhibit A – GR 16).

23       On 20 June 2007, Mr Wauchope sent to Professor Stoney a letter confirming the placement of the appellant on secondment.  The letter stated (exhibit 4 – GM 203):

I am writing to confirm the placement of Mr Glenn Ross to Edith Cowan University.  Mr Ross is a Level 7 officer employed under the Public Service General Agreement 2006.

The placement will be for the period 21 June 2007 to 30 November 2007.

It is agreed that the Department of the Premier and Cabinet continue to be responsible for Mr Ross' salary for the duration of the placement. In accordance with the Agreement Mr Ross will be required to work 7.5 hours per day, 75 hours per fortnight. It would be appreciated if all leave requests for Mr Ross be forwarded to this office.

This Department will write to Mr Ross to confirm these arrangements.

If you have any queries regarding this matter, please contact Ms Carissa Griffiths on 9222 9628.

I thank you for your assistance in this matter.

24       On 2 July 2007, Ms Delany sent a letter to the appellant in which it was stated (exhibit A – GR 17):

I am pleased to advise that approval has been given for your placement to Edith Cowan University.

The placement will be for the period 21 June 2007 to 30 November 2007.

The Department of the Premier and Cabinet will continue to be responsible for the payment of your salary and maintenance of your leave entitlements for the duration of the secondment.

Whilst on secondment your continuity of service and tenure of employment will be maintained.

Should you agree to the above conditions in relation to your secondment, please sign the attached duplicate letter and return to the Human Resource Services Branch.

If you have any queries regarding this matter, please contact Ms Carissa Griffiths, on 9222 9628.

25       The appellant in his witness statement said that he had no recollection of signing the secondment agreement document prepared by ECU and attached to exhibit A – GR 15, but contemporaneous documents indicate that he did sign it.  However, the evidence before the Board indicates that DPC were not aware of the ECU secondment agreement until sometime in early 2010 and there is no evidence before the Board that anyone from ECU or DPC signed the document.

26       The initial secondment was for a period from 21 June 2007 to 30 November 2007.  Towards the end of this period further extensions were agreed to by the parties for the arrangement to continue.  Whilst further letters were sent regularly at six monthly periods to confirm the extensions of the secondment arrangement, no substantially new terms were sought to be introduced in the letters that were sent from DPC to ECU or to the appellant.

27       The secondment was bought to an end on 13 August 2010 by the respondent.  At that time, the appellant was required to return to DPC.

Overseas work performed by the appellant during 2009 and 2010

28       The respondent, Peter Francis Conran, the current Director General of DPC, gave evidence that in December 2008 Mr Mick Palmer, the Commonwealth Inspector of Transport Security, telephoned him.  At that time Mr Palmer was undertaking a consultancy with the Commonwealth Department of Infrastructure.  Mr Conran and Mr Palmer had had a long association of over 30 years.  During the telephone conversation, Mr Palmer asked Mr Conran whether it would be possible to second the appellant to the Commonwealth for two to four weeks to assist in conducting a Federal government review.  On 2 January 2009, Mr Conran received an email from Mr Palmer formally requesting the approval of the release of the appellant from his present duties at the expense of the Commonwealth to assist in an inquiry which he (Mr Palmer) had been directed to conduct by the Federal Minister for Infrastructure, Transport, Regional Development and Local Government.  The review was into the procedures, systems and security arrangements governing the handling of a government green paper.  The review was to be confined to inquiries within the Minister’s Office and his Department and was to take two to four weeks.  In the email, Mr Palmer also informed Mr Conran that he understood that the appellant was presently attached to DPC but was on secondment to ECU, but that tentative contact had been made with the appellant who had indicated he was willing to assist and that the appellant’s Head of School had supported the appellant’s involvement.

29       On 8 January 2009, Mr Conran responded to Mr Palmer’s request by email and advised that he approved of the arrangement and said ‘my people are doing the paper work now’.

30       The appellant gave evidence that whilst working on the inquiry with Mr Palmer he continued to fulfil all of his ECU student contact duties and his involvement in the inquiry took him to Brisbane on several occasions and to Canberra more than once.

31       On 4 February 2009, Mr Palmer wrote to Professor Stoney to thank him for his willingness to second the appellant to assist in the conduct of the inquiry.  In the letter he also asked Professor Stoney about the possibility of drawing upon the appellant’s research and report writing skills as part of a fresh inquiry into International Piracy and Armed Robbery at Sea Security, the impact or potential impact on maritime shipping and trade to and from Australia and the possible options for improving effectiveness of security practices and arrangements and increasing the safety of ships and crew.  In this letter, Mr Palmer said that:

(a) he thought the nature and the extent of the required research whilst critical to the inquiry had the potential to also be of benefit to ECU and would provide the appellant with an expanded network of scholars, international and Australian stakeholders and practitioners who are involved in issues relating to piracy, organised crime and terrorism; 

(b) from a personal perspective he regarded the appellant as a person of integrity and capacity and to be a valued member of an inquiry team of this nature and that much of the research could be conducted in situ;

(c) he anticipated that the appellant’s participation could involve brief absences from the university over the next eight to nine month period; and

(d) he contemplated that the appellant’s involvement would only be part-time and would be on the basis the appellant would be able to balance his responsibilities at ECU with the demands of the inquiry.

32       It seems, however, that Mr Palmer did not raise with anyone from DPC as to whether the respondent would agree to the appellant’s participation in this inquiry.

33       As a result of this work, the appellant visited Kenya to identify opportunities for Australia to increase its involvement as a member of the international community.  He also travelled to Brisbane and Canberra in connection with this inquiry.

34       The appellant’s interests in the issue of piracy did not finish at this time and have remained ongoing.  He continued his involvement with the Office of Transport Security and says he has continued to provide information to Mr Palmer from time to time.

35       As a result of this work, the appellant came into contact with UNODC.  In an email that Mr Palmer sent on 5 May 2009 to a number of people whose identities are immaterial to these appeals, Mr Palmer indicated that the lead agency for combatting piracy was UNODC and UNODC was establishing a program in Kenya.  In particular, Mr Palmer said (exhibit A – GR 21):

To allow an assessment to be made of the feasibility of the Kenyan police training initiatives I am sending Peter Pearsall and a member of the ITS Expert Panel, Mr Glenn Ross who is highly experienced in anti corruption inquiries and prison management, to Kenya this coming Saturday to meet with Alan Cole (who has requested our attendance at a meeting next week which he is holding with Kenyan Officials to determine the nature and scope of the UNODC assistance package to Kenya) and with representatives from the Interpol Regional Central Bureau in Nairobi and the Kenyan Maritime Police in Mombasa.

36       Stemming from his work with the piracy inquiry with Mr Palmer, the appellant was requested by UNODC to provide some assistance to them with prison assessments in East Africa.  The appellant was also asked by UNODC that if payments were to be made for the prison assessments, would he be able to accept such payments.  The appellant told UNODC he would have to take advice on the matter, which he did.  He spoke to Professor Stoney who explained to him that ECU encouraged academics to be involved in external consultancy projects and that the ECU Consultancy Policy enabled the acceptance of consultancy fees for the reasons identified in that policy.

37       The ECU Consultancy Policy provides that an employee may provide services as consultants to bodies external to the university on a paid basis, subject to approval being granted (exhibit A – GR 23).  In particular, cl 4.7 of the policy relevantly provides:

Submission of Institutional Consultancy Proposal

Prior to granting approval, the instigator for the Institutional Consultancy shall provide the following documentation:

4.7.1 Statement of the consultancy service to be provided;

4.7.2 Details of employee time/hours to be allocated to providing the service;

4.7.3 Copy of the Contract;

4.7.4 Budget and details of distribution/allocation to the individual;

4.7.5 Itemization of University resources to be used;

4.7.6 Proposed timelines;

4.7.7 Details of any quality/OSH/Risk assurance procedures and/or compliance requirements (including approval by the University's Human Research Ethics Committee or Animal Ethics Committee if required); and

4.7.8    Any other document as requested by the delegated authority.

38       On 10 June 2009, the appellant sent an email to Professor Stoney stating he was confirming an earlier discussion that he had accepted a short term consultancy with UNODC to assist them in an aspect of their Counter Piracy Program.  He said his involvement would be reviewing a number of prisons where pirates are being held with a view to having the prisons meet UN minimum standards.  He was to depart for Kenya on 4 July 2009 where, together with UNODC officials, he would visit four prisons.  Then he would go to the Seychelles to visit their prison and undertake a training needs analysis for their probation and parole service and return to Australia on 15 July 2009.  He advised Professor Stoney that during his physical absence he would remain in telephone and email contact and that he did not expect that his role at ECU would suffer unduly (exhibit A – GR 24).  Whilst the appellant was absent from Australia during that period of time he received a daily subsistence allowance from UNODC.  During this period he ‘fed’ information back to Mr Palmer’s office during this and subsequent periods overseas.

39       Shortly after the appellant returned to Australia he was contacted again by UNODC and was requested by them to assist in the conducting of training in Kenya for members of the judiciary, prosecutors, police and prison personnel from 25 July 2009 to 31 July 2009.  He subsequently attended Kenya between those dates and received a daily subsistence allowance for this period.  Again he spoke to Professor Stoney about his involvement prior to his participation.

40       On another occasion the appellant was requested by UNODC to attend the Seychelles to provide advice on criminal justice matters.  The work arose from a request of the British High Commissioner to the Seychelles.  Consequently, the appellant left to go overseas on 15 September 2009 and returned on 22 October 2009.  Again he received a daily subsistence allowance for this work.  Whilst away he provided criminal justice capacity building advice in Kenya, the Seychelles and Mauritius.  Whilst he was overseas he was contacted by the British Foreign and Commonwealth Office and asked if he could undertake an assessment of the immigration facilities at the international airport in Nairobi, which he did.  This work resulted in him attending the 2009 International Corrections and Prisons Association Conference in Barbados in October 2009 where he delivered a presentation on Somali piracy.  He paid accommodation and conference fees himself to attend this conference.  Several weeks later he delivered a similar presentation in Perth at the Australian and New Zealand Society of Criminology Conference which was held at the University of Western Australia.

41       The appellant carried out further work in Kenya and the Seychelles in January 2010.

42       During 2009, the appellant began exploring research potentials in Kenya.  By 2 September 2009, and after a period of developing relationships, the appellant took steps to secure funding to enable the research to continue, including an application to the Australian Government Research Support for National Security 2009/2010.  He also sought and obtained the involvement of UNODC and the Inspector of Transport Security as industry partners.

43       In January 2010, the appellant made an application to the ECU Ethics Committee for approval to undertake specific research in Africa with Somali pirates.  In the application, the appellant was described under the heading ‘Experience of Researchers’ as a Chief Investigator along with Dr Pamela Henry from ECU.  The appellant was also described as a person who lectures postgraduates at ECU Joondalup and (exhibit A – GR 30) and as:

[A] consultant to the United Nations Office of Drugs and Crime Counter Piracy Program and is seconded to the Inspector of Transport Security Inquiry into Piracy and Armed Robbery at Sea. He holds an extensive career developing correctional facilities within Australia and abroad and also participated in the establishment of the Corruption and Crime Commission of WA.

44       The appellant presented his proposal at the ECU Ethics Committee on 5 March 2010.  The committee was chaired by Professor Stoney and research approval was granted.  The approval period for the research was from 8 March 2010 to 1 December 2010.  On 1 April 2010, the appellant wrote to Mr Palmer and provided an update of the work that was being conducted.  He told Mr Palmer that the next phase of the project was to develop the interviewing tools that would be used as a basis for information collection.  This was to be undertaken in Kenya with UNODC.  He also advised Mr Palmer that he would be in Kenya from 12 April 2010 to 23 April 2010 to co-ordinate the development of the tools and the refining of methodological/logistical issues prior to piloting the instrument with the 19 currently convicted Somali pirates (exhibit A – GR 31).

45       The appellant also travelled to Kenya from 7 June 2010 to 25 June 2010 to conduct research with the Somali pirates.  On that occasion, he travelled with Dr Karine Hamilton and he made a specific travel approval request to ECU for that travel with Dr Hamilton, because Dr Hamilton’s expenses were being paid for by ECU.  This was the only occasion on which the appellant made an application to the ECU for travel approval.

DPC’s knowledge of the appellant’s work overseas

46       Apart from the secondment to the Australian Federal Government in January 2009 for a period of four weeks, from June 2007 until early 2010, DPC had little knowledge of the appellant’s activities.

47       In early 2010, Mr Conran spoke with Mr Palmer by telephone.  During the conversation Mr Palmer informed Mr Conran that the appellant had been engaged in work with UNODC and other sovereign governments in Africa providing consultancy advice, training in prisons and working with Somali pirates.

48       As a result of the conversation Mr Conran had with Mr Palmer, Mr Gregory John Moore, the Assistant Director General, State Administration and Corporate Support in DPC, sent an email to the appellant on 1 February 2010 (exhibit 4 – GM 208).  At that time, Mr Moore was concerned that since June 2007 the appellant had only applied for 12 days of annual leave.  In the email to the appellant on 1 February 2010, Mr Moore raised with the appellant that DPC policy requires all staff of the Department to clear at least four weeks' leave every calendar year, and to have no more than 17 weeks' accrued leave as a maximum.  He also pointed out that the appellant currently had over 46 weeks of leave and he had not made an application for leave since October 2008.  Mr Moore informed the appellant he needed to address the leave issue promptly and he was aware that ECU had closed from 24 December 2009 to 8 January 2010 and he thought that ‘supposedly’ all staff were on leave.  Mr Moore also raised with the appellant in the email that information had come to hand that indicated that the appellant had been doing some paid work for UNODC and that if this was so, there did not appear to be a request to the Director General for approval to undertake such work in accordance with s 102 of the PSM Act.  Mr Moore asked the appellant to also address that issue on an urgent basis.

49       The appellant responded to the issues raised by Mr Moore the next day by sending a letter to Mr Conran.  In the letter he stated as follows (exhibit A – GR 35):

Pursuant to s. 102 of the PSM Act, I hereby make (belated) application for approval to engage in secondary employment. I apologise for this lateness as I was under the misapprehension that while at ECU I needed to comply with the requirements of the ECU Act and the policy and procedures there under. This stemmed from my experience at the CCC where seconded staff are required to comply with CCC conditions of employment, which are different to those of the pubic (sic) service.  In any event, I advise as follows.

During my involvement in the piracy inquiry undertaken by Mick Palmer, of which you were aware, I was requested by UNODC East Africa to assist them by undertaking an assessment of Shimo la Tewa Prison in Mombasa, which I did.

Subsequently I have been contacted a number of times and asked to provide further assistance. On the first such occasion I raised this matter with Professor Stoney at ECU and he felt that such an engagement was within the broad role of a senior academic – the position I was filling. He further advised that here [sic] were no difficulties in accepting payment and that there was ample precedent to this effect. He cited further benefits likely to accrue to the university through my involvement in this international work.

To date I have been absent for the following periods:

I did receive payment for the first period and daily subsistence allowance for periods 1-5. I am however hopeful that at some point there will be consideration of further payment for my involvement.

While undertaking these activities overseas, I have at all times carried out my required work load at ECU. This has been made possible as:

• The course work units I deliver are for post-graduates who are not on campus and who I communicate with by email and phone in any case;
• I supervise my research students by email and occasionally on campus; and
• I continue to develop research topics and conference papers whether in Australia or overseas.

I believe that my reputation as a criminologist has been enhanced by this international work. Just today I was asked by the Kenyan Anti-Corruption Commission if I could present at a conference in April of this year. I have accepted this invitation but have declined their offer of payment of a speaker's fee.

I would be happy for you to speak with Professor Stoney regarding both my contributions to the school and the academic value of the work I have been involved in overseas. I would also welcome the opportunity to make a presentation to yourself or other interested parties of the work I have been doing and the research generated. (footnotes omitted)

50       The assessment of the appellant’s request for approval for secondary employment was referred to Mr Kenneth Allan Jones who is the Principal Project Officer and Senior Integrity Officer for DPC.  His role is to provide advice to the Director General of DPC on the application of s 102 of the PSM Act, the Public Sector Code of Ethics and DPC's Code of Conduct.  When Mr Jones received the appellant’s request for approval, Mr Jones sent an email to the appellant on 15 February 2010 requesting further information to enable him to assess the s 102 request.  In the email Mr Jones stated (exhibit A – GR 36):

The Department's Code of Conduct (attached) specifically requires officers to seek the Director General's approval before engaging in external employment for reward. This is to ensure that conflicts of interest are minimised, and that officers on the public payroll and [sic] not receiving remuneration as a public officer whilst at the same time earning additional income as a private individual. Therefore, DPC officers engaging in activities unconnected with their employment during normal working hours are required to take leave whilst engaging in those activities.

Whilst I note your advice that your engagements for UNDOC [sic] have some connection to your Edith Cowan responsibilities and the university supported your participation, as a seconded officer paid by this Department, your principal obligations are to the Director General of DPC who is your employer. These assignments have no relevance to your DPC functions, and consequently, unless otherwise approved by the Director General as a formal secondment to UNDOC [sic], you are required to take leave for each and every assignment taking place in normal work hours for which you received your normal salary.

To assist in me completing the assessment of your request, could you please advise:

1. Whether you applied for leave to undertake the assignments from UNDOC [sic] - while your Departmental leave records do not show any leave for the periods or absence in your letter of 2 February 2010, I am aware that it appears that some level bookings e-mailed to DPC may have gone astray and that you are providing further details to the Department?

2. What if any payment did you receive for undertaking these assignments (your letter indicates that you were paid for the assignment in July 2007 to assess prisons in Kenya)?

3. How much per day were you paid for the 'daily subsistence allowance' that applied to assignments 1-5? In this regard, I assume that UNDOC [sic] also paid your travel and accommodation expenses?

51       The appellant gave evidence that when he received Mr Jones’ email he found Mr Jones' comments that the assignments have no relevance to his DPC functions to be somewhat strange as he did not have and never had had any functions at DPC as he had never been given any duties by DPC.  Also, he was of the opinion that the terms of his secondment under s 66 of the PSM Act to ECU required that he perform functions and services for ECU and not the home agency.

52       In any event, the appellant replied to Mr Jones by email on 15 February 2010 (exhibit A – GR 37).  In this email he said that his duties at the university include delivery of course work units, development of course work material, supervision of research students and undertaking research.  In particular, he said that the course work units that he delivers are a postgraduate level and have no class or tutorials on site at the university.  Rather, the course work is internet based and students work on the material at times suitable to themselves – most usually after hours and on weekends.  To accommodate this requirement he worked during those 'out of hours' times and was available to students.  He also informed Mr Jones that whilst overseas the time zone differences mean that he is available to deal with student issues quite late into the evening and morning.  He also said that he was of the opinion that the entirety of the work that he did at ECU had no relevance to DPC functions and that the work that he carried out with the UN was entirely relevant to the functions of ECU.  He also provided Mr Jones with examples of how he saw this work to be relevant to the functions of ECU as follows (exhibit A – GR 37):

During my recent visit to the Seychelles I met with the Special Advisor to the President. The government of the Seychelles had entered into an agreement with ECU for the delivery of pre-primary, primary and secondary teaching training and, through me, ECU has been asked to develop a proposal for the development of an agreement for the delivery of training to police, military police, coast guard, prison staff and national parks rangers. I also met with the Chief Justice and the Minister responsible for the prison service and outlined a number of criminal justice reform measures that the Seychelles need to undertake to get into step with international standards. I believe that the Seychelles government is appreciative of the advice I have provided.

During my recent visit to Kenya I was invited to meet with the Kenya Anti-Corruption Commission to discuss anti-corruption activities. Stemming from this I have been invited to make a presentation at a series of four anti-corruption conferences across Kenya. The basis of my presentation will be the work I have been undertaking with one of my research students concerning powers and functions of anti-corruption agencies necessary to achieve good practices. I am also undertaking joint research with the Kenya Department of Corrections and have returned with the medical reviews on 100 Somali pirates held on remand and the same review of 100 non-pirate remandees. The outcomes of the analysis of these reviews is important to the EU and UN due to concerns that prisons in Kenya may not meet international standards thereby throwing into jeopardy the current arrangement for pirates captured by EUNAVFOR warships, NATO and CTF 151 to off-load pirates in Kenya. I have also agreed to participate in further research in the prison system related to juvenile sex offending populations, and reproductive health issues for female offenders. I have also entered into an agreement with the Chief Magistrate to undertake an evaluation of a remand review programme, a bail review programme, fine payment scheme and a court improvement programme. I also await ethics committee approval to commence to interview the Somali pirate population to determine a range of factors to do with demographic and social measures and, importantly, motivation issues to become a pirate. This research is being undertaken jointly with the UNODC and I believe that this research will be of interest to ASIO and the US State Dept, both of whom are aware of it.

53       In answer to the three questions asked by Mr Jones, the appellant said on 15 February 2010 that he had not applied for leave during the periods when he undertook the assignments with UNODC as he continued to perform his ECU duties.  In relation to the request for information about the amount received as a daily subsistence allowance, the appellant simply said that he did not see that this information was relevant and asked how this information might affect a decision to grant or not grant approval.  He also asked which of the following three criteria set out in the Code of Conduct under cl 6.5.1 was relevant to the decision.  The Code of Conduct criteria for assessment of applications under s 102 requires the following matters to be considered:

(a) Possible detrimental effect on an officer’s efficiency.

(b) Inconvenience to the Department.

(c) Whether the employment would give rise to an actual, potential or perceived conflict of interest.

54       The appellant also said in his email on 15 February 2010 to Mr Jones that he could not identify any conflict of interest, actual, potential or perceived in carrying out this work.

55       Two days after Mr Jones had received the appellant’s email, Mr Jones telephoned Professor Stoney to seek further general information about the appellant’s engagement in overseas activities with UNODC and to ascertain whether those activities had been approved by ECU and whether the activities were consistent with those for other academic staff.  While Mr Jones was talking to Professor Stoney he typed what he described as ‘key dot points’ and when the conversation was finished he converted these to a file note of the conversation.  The file note records the following (exhibit 2 – KJ 4):

Contacted Professor Mark Stoney at Edith Cowan University on 17 February 2010 to seek further information on Mr Ross' application for approval to engage in activities unconnected with his employment (section 102), and other questions arising from his retrospective application.

Professor Stoney confirmed that he had no objection to Mr Ross accepting assignments with UNODC, and while Mr Ross makes a substantial contribution to his Department, the benefits from his engagement in prison reviews and similar in Africa are of little practical value to ECU. Professor Stoney was unaware that Mr Ross had not sought approval from DPC, and agrees that Mr Ross is obligated to comply with DPC requirements rather than ECU's. When asked directly whether he would approve such absences for his staff (Mr Ross seems to suggest that this is commonplace ain [sic] academia), Professor Stoney stated that he would not have approved such significant absences for his staff. In Mr Ross' case, he recognised that he was pursing [sic] a personal interest that might lead to a new career (although in Professor Stoney's view, if Mr Ross wants a career at ECU, there are many other things that he could do to improve his prospects).

Professor Stoney was surprised when I informed him that Mr Ross' correspondence showed he had been overseas for 80 working days since 1/7/2009 (ie in excess of 3 months). Professor Stoney agreed that Mr Ross should take leave for the time that he was away. In general discussion, Professor Stoney also confirmed that the university closed over the Christmas/New Year period, and that most recently, his staff were on compulsory annual leave from 24/12/2009 – 8/1/2010 - in his opinion, Mr Ross should also have been on leave at the same time.

With regards to Mr Ross' assertion about being available to students outside normal working hours, Professor Stoney advised that academic staff are expected to be available outside normal working hours and this is recognised in more generous leave arrangements and an emphasis on meeting deadlines, deliverables and student outcomes rather than time and attendance. This enables them to have very flexible working arrangements (other than up front lecture time) and means that they regularly work from home, and at times that suit them. His view was that so long as they deliver the education programs effectively, he is not concerned about the number of hours that people work. However, Professor Stoney felt that Mr Ross's assertion that he was able to effectively service his students whilst in Africa was dubious given the poor standard of telecommunications in third world countries.

56       Mr Jones acted on the information recorded in the file note and provided to Mr Conran on 18 February 2010 a number of conclusions he had reached in respect of his assessment of the appellant’s application to engage in secondary employment.  In the advice to Mr Conran, Mr Jones stated (exhibit 2 – KJ 5):

(a) It was evident that the work engaged in by the appellant for UNODC in Kenya, the Seychelles and Mauritius had been undertaken during normal working hours and resulted in the appellant’s absence from the workplace.

(b) The appellant’s assertions that consistent with other ECU employees, he was available to students after hours and at weekends and continued to be whilst overseas, and that ECU would not require others to take leave in similar circumstances was not consistent with advice received from Professor Stoney.

(c) Whilst Professor Stoney was aware of the appellant’s engagement with UNODC and approved the same, the work was of minimal benefit to the university other than its potential for research possibilities.  Professor Stoney believed that these engagements were more about the appellant pursuing his passion than advancing the interests of ECU per se.

(d) Professor Stoney confirmed that he would not have approved similar arrangements for his staff.  However, he indicated the appellant was providing useful information to ECU and to his study area.

(e) It is unlikely there was any conflict of interest between the appellant’s UNODC assignments and his official responsibilities.  Yet, it was clearly inappropriate to have been paid his normal salary while absent from work unless he was on approved leave.

(f) The appellant should be instructed to submit leave applications for the days that he was absent whilst on overseas assignments.

(g) The appellant should be required to clear leave over the Christmas/New Year period as other ECU staff were not required to work during this period, and that Professor Stoney had advised that his staff were on annual leave during this period and considered it would be appropriate that the appellant be on leave at that time unless he had made other arrangements with DPC.

(h) The appellant should be instructed that he is required to formally seek the approval of the Director General in future in advance of any engagement by UNODC or any other organisation, and that if approved, he will be required to take leave for the duration of the assignment.

(i) The appellant had declined to provide details of remuneration received from UNODC as the appellant did not consider it to be relevant.  As he (Mr Jones) could not find any policy or legislative basis on which they might require the appellant to provide this information, to avoid a protracted debate, he had chosen to leave that issue to one side for the present.

57       On 18 February 2010, Mr Conran sent the following letter to the appellant (exhibit 2 – KJ 6):

Thank you for your e-mail correspondence of 2 February 2010 seeking retrospective approval pursuant to Section 102(1) of the Public Sector Management Act 1994 (the Act) for several engagements by the United Nations Office of Drugs and Crime (UNODC) to undertake work on their behalf overseas, principally in Africa. In this regard, I note that your advice that you sought and received Professor Stoney's approval to undertake the first of these assignments and have operated under that arrangement since. While appropriate to seek his approval, as you continue to be an employee of the Department of the Premier and Cabinet, you should also have sought my approval for each and every engagement.

Your correspondence identifies seven periods of absence whilst on engagement to UNODC totalling approximately 80 working days. As advised by Mr Jones, I consider that it is inappropriate for an officer to be paid when absent from the workplace unless on approved leave or some other approved purpose such as professional development. In my view, your engagement with UNODC was not an approved purpose in this context and accordingly, you are required to submit either annual or long service leave applications for the periods of absence disclosed in your letter of 2 February 2010. I understand that DPC's HR branch recently supplied you with a soft copy of a leave application and look forward to receiving these applications in due course.

While it appears that the engagements with UNODC in activities unconnected with your function already undertaken do not seem to have created a conflict of interest with your Departmental responsibilities, before accepting any future engagement by UNODC or any other organisation, you are required to formally seek my approval. To enable proper consideration of each request, you should provide details of the assignment, its duration, ECU's endorsement and what if any remuneration is to be provided. If approved, you will be required to take leave for the duration of any engagement. Although the potential for a conflict of interest (perceived or actual) between these assignments and your official responsibilities is remote, you should be aware that it is your responsibility to promptly disclose any conflict of interest that may arise from this external activity.

58       On 24 February 2010, the appellant wrote to Mr Conran asking him to reconsider the decision given on 18 February 2010 and stated that whilst he was absent from Australia he continued to fulfil all of his responsibilities to ECU and that he had been informed by Professor Stoney he was able to accept payment for work for UNODC (exhibit A – GR 41).  He also said in the letter to Mr Conran that his work overseas had led to the development of a number of research topics that he was anxious to continue and to further develop the school's international teaching program.  In the letter he also requested approval to engage in paid secondary employment during 2010.  He said that UNODC had requested that he enter into an agreement to provide advice and counsel to UNODC staff and law enforcement practitioners in a number of African countries and that this work could run through until 31 May 2010.  He informed Mr Conran that he had already accepted this offer and sought advice as to whether he could continue with this work or not.  He said the work did not require his presence in Africa and could be provided from Western Australia without any disruption to his responsibilities at ECU.  He also stated that to the best of his knowledge his agreement with UNODC would not cause any possible detriment to his efficiency, inconvenience the Department or ECU in any way, or give rise to an actual, potential or perceived conflict of interest.  He also sought clarification as to whether he could proceed with his acceptance of an invitation to participate (unpaid) in a series of conferences commencing in March 2010 being held across Kenya by the Kenya Anti-Corruption Commission, and whether it was necessary to discontinue the (unpaid) joint research projects between UNODC and ECU which would require him visiting Africa on several occasions throughout 2010 and possibly 2011.

59       On 15 March 2010, Mr Conran wrote to the appellant and informed him that as a public service officer employed by DPC in accordance with the PSM Act and on secondment to ECU until 30 June 2010 he had an obligation to keep both DPC and ECU informed on his respective obligations and requirements of each organisation under this arrangement (exhibit A – GR 42).  Mr Conran also informed the appellant again that he had to submit leave applications for the periods of absence disclosed in the letter of 2 February 2010, and that such leave applications should cover the period 24 December 2009 to 8 January 2010, when ECU was closed, and the staff of the School of Law and Justice were required to take leave.  Mr Conran also asked the appellant to submit leave forms to cover similar periods over the Christmas periods in 2007 and 2008.  Mr Conran then reiterated his direction that the appellant was required to seek approval before accepting any future engagement by UNODC or any other organisation and that he (the appellant) would be expected to be on leave for the duration of any approved engagement.

60       Sometime prior to the appellant replying to Mr Conran's letter, the appellant became aware of the file note that Mr Jones had written about the telephone conversation that he had had with Professor Stoney.  The appellant says the file note contained substantial insignificant errors and was not a correct record.

61       Prior to sending another letter to Mr Conran, the appellant asked Professor Stoney to review a draft of a proposed letter and to make any changes.  The last page of the letter referred to the file note of Mr Jones about the conversation.  Professor Stoney amended that paragraph of the letter to read (exhibit A – GR 43):

Professor Stoney has advised me that the notes taken are in important respects inconsistent with his recollection of the conversation and do not properly reflect the tenor of the discussions held and ought not to be relied upon.

62       After amendments were made by Professor Stoney, the appellant sent a letter dated 26 March 2010 to the respondent (exhibit A – GR 44).  The letter also indicated that Professor Stoney wanted Mr Conran to contact him to correct any misunderstandings.  In the letter the appellant made submissions in respect to the following issues:

(a) Secondment to ECU

The appellant pointed out that:

(i) The ECU Policy Statement dealing with Secondment Appointments provides that:

All inward Secondees to ECU will be subject to and must abide by the statutes, policies, procedures in place at the University, as amended from time-to-time and by any lawful directions for the duration of the secondment, unless otherwise agreed between the parties.

(ii) By letter dated 23 May 2007, Professor Stoney had directed him to adhere to the legislative requirements processes and practices of ECU.

(b) Secondary Employment

The appellant pointed to the ECU Consultancy Policy that recognises that consultancy work is a facet of academia and such activities, engagements and collaborations undertaken by academic employees provide benefits to ECU.  The appellant submitted that it was not reasonable to attempt to apply s 102 of the PSM Act to an academic undertaking consultancy services.  Further, that the functions of his employment as an Adjunct Associate Professor at ECU included the capacity to accept paid personal consultancies. Alternatively, he requested that retrospective approval to the consultancy work that he had performed be granted.

(c) Role of a Practitioner Scholar

The appellant contended that his status at ECU is that of an Adjunct Associate Professor to undertake research and teaching duties, the role of which is a Practitioner Scholar.  In particular, Practitioner Scholars are expected to be involved in research, and, among other matters, to maintain the currency of his/her professional practice and maintain close links with his/her professional community.  He then pointed out that following his paid consultancy for UNODC, he was requested to provide further assistance on a range of criminal justice development projects in several countries in Africa.  There was no payment for these additional consultancies although his airfares, travel costs and daily expenses were paid at the applicable UN rates.  He submitted that undertaking this work to assist in international counter-piracy efforts and criminal justice improvement programs was entirely consistent with his role at ECU as a Practitioner Scholar.  Further, that Professor Stoney is the only person who was in a position to determine whether the work he had performed was commensurate with his role and function as a Practitioner Scholar and to the standard required.

(d) Christmas Shutdown Leave

The appellant pointed to the ECU Academic Staff Union Collective Agreement which provides that ECU shall observe an annual limited services period of two weeks which shall commence at the date set by the Vice-Chancellor.  This period of time is known as PHIL days.  The collective agreement also provided that employees who work on Labour Day, Foundation Day and the Queen’s Birthday public holidays were granted five additional days on full pay and that these days were to be taken at the limited services period and not be cumulative.  He then submitted that whilst he was on secondment to ECU he was required to observe the above requirements and there was no requirement to take annual leave while on PHIL days.

63       At the time the letter was sent the appellant had scheduled a meeting with Mr Conran on 31 March 2010.  Unfortunately, that meeting did not proceed as Mr Conran was injured in a storm that affected the metropolitan area of Perth in March 2010.

64       On receipt of this letter by DPC it was referred to Mr Jones for his advice to Mr Conran.

65       On 25 May 2010, Mr Jones provided advice to Mr Conran about the matters set out in the letter.  Importantly, prior to providing advice, Mr Jones did not take any steps to clarify the issues that he had discussed previously with Professor Stoney.  In advice given on 25 May 2010 to Mr Conran, Mr Jones said that the appellant appears to overlook the following (exhibit 2 – KJ 10):

(a) He is a permanent public service officer, on secondment to ECU and is not an employee of ECU or a member of their academic staff.

(b) Therefore, his employment conditions are those applying to a public service officer, not to an ECU employee.

(c) He is required to comply with the PSM Act, the Department’s Code of Conduct and other public sector codes of practice – where these codes conflict with ECU codes of practice, the PSM Act and public sector codes prevail.

66       Mr Jones also advised that whilst the appellant reluctantly conceded that he would seek s 102 approvals, his correspondence of 24 February 2010 failed to provide the information required to enable assessment of his application.  In particular, the appellant had refused to provide details of any remuneration or other payment received from UNODC, although he had been approached to undertake an assignment in Kenya commencing in March 2010.  Mr Jones also informed Mr Conran that he had received information from another source that indicated that the appellant may have accepted that engagement as he was said to have been overseas in March/April 2010.  Mr Jones also pointed out to Mr Conran that despite a lawful instruction contained in correspondence to the appellant on 15 March 2010, the appellant had not yet lodged leave applications for the periods that he was overseas or for the ECU Christmas closure periods.

67       Following the advice given by Mr Jones, Mr Conran made the decision not to further extend the appellant’s secondment to ECU and sent a letter to the appellant dated 25 May 2010 in which he said (exhibit 2 – KJ 11):

I refer to your correspondence of 26 March 2010, and reiterate the position made in my correspondence of 15 March 2010, noting that you are yet to comply with the requirements contained therein.

I do understand the role and functions of an academic institution, however you continue to be a permanent public service officer. Therefore, your employment conditions are those that flow from the Public Sector Management Act 1994 (the PSM Act), the Public Service Award 1992 and the Public Service General Agreement 2008, not those which apply to ECU staff subject to the ECU Academic Staff Union Collective agreement. Therefore, I do not accept your position that ECU academic staff employment arrangements for external employment (for reward or otherwise), and leave while absent from the workplace and during Christmas close-down apply to you.

Accordingly, in light of your failure to submit leave applications as instructed in my correspondence of 15 March 2010, I have directed the Human Resource Services Branch to reduce your accrued annual leave by 93 day's annual leave having regard for absences shown in the attached schedule.

With regard to your request for retrospective section 102 PSM Act approval for a three-week consultancy, in the absence of further information about the nature of the consultancy, the principal to the contract and the remuneration or otherwise received, the Department is not able to assess your request. You are hereby instructed that you are not to accept any further external engagements of the type referred to in section 102 of the PSM Act, and advise that any violation of this instruction may be regarded as a breach of discipline.

I note that your current secondment concludes 30 June 2010. I have instructed the Manager, Human Resource Services to advise ECU that this secondment will not be extended beyond that date. Consequently, on 1 July 2010 you are to report to the 22nd floor, 197 St Georges Terrace where you will be given work to do until such time as you can be deployed to a suitable position in the public sector. In this regard, I inform you that it is my intention to register you for redeployment as the Department has no suitable positions into which you can be redeployed.

Should you have any further questions about this advice please contact Ms Kathryn Andrews, Manager Human Resources on 9222 9616

68       The appellant responded to the letter from Mr Conran in a letter dated 31 May 2010 (exhibit 3 – PC 10).  In the letter he asked Mr Conran or his representative to meet with him and Professor Stoney to negotiate the issues.  He also requested that whilst dispute resolution steps were being undertaken that the actions detailed in Mr Conran’s letter dated 25 May 2010 be held in abeyance, namely the deduction of leave credits, discontinuation of the secondment to ECU and registration for redeployment.

69       In the meantime, the appellant lodged an application to the Public Service Arbitrator on 11 May 2010 in PSA 22 of 2010 which sought to deal with the appellant’s dispute about the assessment of his classification in accordance with the directions given in PSAC 27 of 2006.

70       On 2 June 2010, Acting Senior Commissioner Scott convened a conciliation conference between the parties.  During the conference, the matters of the pending expiry date of 30 June 2010 of the secondment to ECU and issues around DPC’s requirement to clear leave for overseas visits were raised.  Mr Moore, who attended the conference on behalf of the respondent, was aware at that time that the appellant was due to depart for Africa on 5 June 2010.  During the conference Mr Moore informed the appellant that, although he was still within the period of secondment to ECU, he was required to gain the approval of the respondent to carry out the research he was scheduled to undertake in Kenya with Somali pirates.  Whilst the appellant was of the opinion that it was not necessary to obtain approval, he gave an undertaking to comply with the request.

71       On 3 June 2010, the appellant sent an email to Mr Moore about the proposed visit to Kenya commencing on 5 June 2010.  In the email he advised Mr Moore of (exhibit A – GR 49):

(a) The involvement of the industry partners, Alan Cole from UNODC and Mick Palmer, the Commonwealth Inspector of Transport Security.

(b) His involvement by his research assistant, Dr Hamilton.

(c) The approval of the project by the ECU Human Research Ethics Committee chaired by Professor Stoney.

(d) Travel approval had been given by Professor Stoney and Professor Arshad.

(e) The return date was scheduled for Saturday, 26 June 2010.

72       Attached to the email was a four page document which set out details of the research that was to be conducted.

73       Mr Moore responded to the appellant’s email by email on the next day (exhibit A – GR 51).  He advised the appellant that DPC would agree to a further short term secondment to ECU for the period 1 July 2010 to the close of business of 13 August 2010.  Mr Moore also advised the appellant that the Kenyan trip had been discussed with Mr Conran and that conditional approval was given for the appellant to attend the Kenyan research project from 5 June 2010 to 25 June 2010 on the basis that:

(a) He did not receive or accept any other payment for his work other than that by DPC for the period of his absence; and

(b) His period of absence be covered by him being on leave.

Mr Moore advised the appellant that his request for deferral of the decision to debit previous absences from leave would be addressed in the next few weeks.

74       The appellant responded to the email from Mr Moore on the same day by email (exhibit A – GR 51).  He told Mr Moore that he had no alternative but to comply with the direction to take leave for the next three weeks whilst he was on university approved research, but it was something he would look to discuss further at a later time.

Mr Moore’s meeting with Professor Stoney on 18 June 2010

75       Whilst the appellant was overseas, Mr Moore met with Professor Stoney on 18 June 2010.  During the discussion with Professor Stoney, Mr Moore indicated that DPC were questioning where the secondment was going, given that it was approaching the third year anniversary.  Mr Moore asked Professor Stoney whether the school would employ the appellant.  Professor Stoney said that as much as he valued the appellant, if he was to be employed it would need to be by way of a competitive selection process and the appellant would have some weaknesses in this process because he would be competing with people who have completed their doctorates and who might have other skills and qualifications and more established research.  This was especially the case given that the appellant would probably be seeking employment at the level of Associate Professor and he could not say with any certainty that he would be able to employ him.

76       Professor Stoney did, however, indicate to Mr Moore that he may be able to accommodate the appellant’s salary in 2011 as he was successful in a budget bid for extra salary.  However, there may be higher priorities for staff with other disciplines.  Professor Stoney said when giving evidence that on a number of occasions during the meeting with Mr Moore he told Mr Moore that the appellant was a very valuable asset to ECU and he had performed some important functions for the school.  He said this was a ‘win’ for ECU because the appellant had significant skills but came to the school at no cost to their budget.  They also discussed the issue of leave.  Professor Stoney told Mr Moore that he thought he had not managed that as well as he could have, but that he considered this was a matter between the appellant and the Department, as he saw the role to manage the leave was between the appellant and the employer.

77       Professor Stoney also told Mr Moore that it was not uncommon for staff members to travel for purposes connected with their academic work.  He said that this may not always be directly a benefit to the school, such travel had potential benefits in terms of research opportunities, teaching and learning opportunities and engagement opportunities.  He explained that ECU was a new law school and that some of the appellant’s work potentially has a high profile and the appellant is connected with some significant players who could be useful to the school.  He said, however, these things take time and they may not see an outcome of this work for two, three or five years.

78       After the appellant’s secondment ended, ECU did not offer the appellant employment and the position held by him has not been filled.

Evidence from ECU witnesses about the appellant’s overseas work and work carried out at ECU

(a) Professor Stoney’s evidence

79       Professor Stoney was the Head of School of the School of Law and Justice for six years until 6 June 2011 when he became the Associate Dean of Teaching and Learning.  He has also been the Professor of Law and Justice at the School of Law and Justice for the last three years.

80       Professor Stoney first met the appellant in 2007.  The appellant was introduced to him by Associate Professor Margaret Mitchell, who was the Head of the Sellenger Centre, which is the School of Law and Justice research centre.  The appellant had done some research grants work for Professor Mitchell and had also carried out occasional guest lecturing and he had been appointed by ECU as an Adjunct Professor prior to working for ECU on secondment.  Associate Professor Mitchell put a proposal to Professor Stoney that the appellant be seconded from DPC.  The basis of the secondment was that it was to be at no cost to the school.  Professor Stoney formed the view after reviewing the appellant’s background that the appellant would be a really good ‘fit’ in academic life, so he agreed to the secondment.

81       The appellant came to them as a traditional academic.  Professor Stoney gave evidence that the roles of academics vary depending on their qualifications, skills and experience.  They can be fully engaged in either teaching or research and more usually both.  In light of the appellant’s qualifications and experience, Professor Stoney saw him as being a researcher, teacher and mentor for students and staff and also thought the appellant could enhance engagement opportunities with stakeholders such as WA Police and Corrections.  After the secondment commenced, Professor Stoney received an email from DPC every six or 12 months asking whether he was happy to extend the appellant's secondment.  At all times he was happy to do so.

82       Professor Stoney did not manage the appellant’s performance in the way he would manage a full-time paid employee.  Also, the appellant did not book his annual leave with him.  With other staff Professor Stoney controlled the timing of annual leave, in accordance with ECU policies and procedures.  Yet, he met with the appellant on a regular basis to discuss what he was doing.  The appellant came to school meetings and in every other way he participated as a member of the school.

83       When the appellant took up the secondment, ECU sent a letter to the appellant describing him as a Lecturer of Criminology and Justice.  When giving evidence before the Board, Professor Stoney said the title should be Lecturer in Criminology and Justice as the role was not to just lecture in criminology and justice, there was a broader engagement in research, as all lecturers are appointed to perform and not just lecture in criminology.  Professor Stoney also said that the appellant did perform the role of practitioner scholar because he was engaged in teaching and learning, research and professional engagement.  Apart from a few guest lectures the appellant had no face-to-face contact with students.  He was, however, required to prepare unit materials, prepare courses, be an effective teacher, mentor staff, undertake or support research, build engagement opportunities and engage in the life of the school.  The appellant was not necessarily required to work seven and a half hours a day on every particular day, but he was able to say the appellant carried out a full workload (ts 71).

84       The first communication Professor Stoney received about the appellant taking leave was an email from DPC on 1 February 2010 in which he was asked what leave the appellant had taken over Christmas.  Professor Stoney replied to the email on the same day by email and indicated that ECU was closed for business from Christmas Eve and reopened in early January.  He also said in the email that he was happy to manage the appellant’s annual leave, but had not to that time seen it as his responsibility.

85       As to the work carried out by the appellant whilst on secondment at ECU, Professor Stoney’s evidence was that the major initiative was that the appellant had almost single-handedly developed a graduate certificate in child protection.  The appellant formed a steering committee in 2007 to 2008 to develop the course and started to run the certificate in July 2009.  The school had also developed a number of other graduate certificates in which the appellant became a pivotal player.  These included graduate certificates in criminology and justice, and one in investigations and intelligence.  The appellant had also played a major role in developing and teaching these units.  He was a significant contributor to the school, he was well liked and respected in the school and remained so.  All of the units the appellant was involved in were taught online.  Consequently, the appellant did not teach in a classroom.

86       Professor Stoney also gave evidence that if members of staff who are part of the financial establishment of the school are travelling, he is closely interested in how long they are going to be away to ensure that they meet all their commitments to the school.  If a staff member travels overseas at the cost of the school, he requires concrete outcomes for the school.  However, the appellant’s travel was not at the cost of the school.  This was not uncommon.  With all staff he is interested in ensuring that the commitments of the school are met and that the travel has sufficient benefits, direct or indirect, to the school.  Professor Stoney says he told Mr Jones of these matters when he rang him early in 2010 during which Mr Jones raised the issue of the appellant’s international travel.  A few weeks after the telephone call, Professor Stoney saw the file note of the conversation written by Mr Jones on 17 February 2010, which was sometime prior to the appellant sending the letter to Mr Conran dated 26 March 2010.  Professor Stoney gave evidence in these proceedings that the file note did not accord with his memory of the discussion he had with Mr Jones.  He saw the file note as being couched in negative terms and that is not the way he views the appellant.  His evidence is that he did say to Mr Jones that he had no objection to the appellant accepting assignments and that the appellant made a substantial contribution to the school.  Professor Stoney said, however, he did not say to Mr Jones that the benefits from his engagement in prison reviews in Africa were of little practical value to ECU.  What he did say was that there may not be any direct value at that point to ECU, but he did go on to say that the benefits to the school which flow from these activities take time to develop, the outcomes and timelines are often difficult to be definitive on, and that they are important for the school to pursue where possible.

87       He has no memory of making a statement to Mr Jones that suggested if the appellant had been a full-time paid employee of the school that he would not have approved his absences.  He said he always assesses applications for leave and travel on an individual basis.

88       Professor Stoney agreed that he did say to Mr Jones that he was surprised at the period of time that the appellant was away in 2009, as it amounted to a total of about five months.  For most staff he would not agree to such an absence, but the appellant was one of the few staff members whose only commitment is to online teaching, so the appellant’s case was different.  Most staff were required to be in the classroom, so external travel is not as easily managed.  When asked in cross-examination if he would be concerned if he is paying for a staff member who is away for almost half of the year outside Australia, Professor Stoney said he probably would be worried, but he was not saying he would not have approved the work.  He said approval would depend upon the circumstances of the load of the person and what they delivered and whether they could carry out their work properly from an external place.  The same principles did not apply to the appellant as he was not an employee.  However, the appellant always talked to him about opportunities and if he saw value in them he agreed to the appellant going.  Professor Stoney was, however, never placed in a position where he had to say to the appellant, ‘I don’t want you to go’. 

89       Professor Stoney testified that at no time during the telephone conversation he had with Mr Jones did he suggest that when the appellant was away, his work was not being done properly for the school.  He also said he has no memory of making the statement ‘if Mr Ross wants a career at ECU, there are many other things he could do to improve his prospects’.  He said, in fact, he does not recall being asked by Mr Jones about the appellant’s employment prospects.  He understood that from 1 July 2009 the appellant’s absences were made up of work undertaken on behalf of Mr Palmer in connection with the maritime piracy inquiry, international conference attendance, provision of assistance to UNODC and research activities on behalf of ECU.  The appellant regularly sought him out to advise him of developments in the work that he was doing and of any intended periods of absence.  The appellant was passionate about his work for ECU, both on campus and off.  Professor Stoney understood that the appellant continued to manage his student case load when not on campus and continued with the development of course material.  From his point of view, the appellant would be treated in the same way as all other staff in relation to work related absences.  If he was on approved work related absences from work he would not be required to take annual leave.  If it was not related to work then the situation would be different.

90       Professor Stoney agreed to a request from Mr Palmer to make periodic use of the appellant over a period of some eight to nine months during 2009 in connection with an inquiry that he, Mr Palmer, was undertaking into maritime piracy in Africa.  Professor Stoney saw no reason to discuss this arrangement with DPC.  Professor Stoney was never given any advice by DPC through the three years of the appellant’s secondment as to what was expected of him by DPC in his handling of the appellant’s terms and conditions of employment.

91       When Professor Stoney was asked about what connection the appellant’s work in Africa and the Seychelles relating to international piracy had to the work as an academic at ECU, Professor Stoney said that one of the priorities of the School of Law and Justice was to build engagement and research.  In particular, he saw the activities of the appellant as opportunities to engage and build research in the school and also build some teaching and learning opportunities by way of training and/or short courses and/or graduate certificates and the like.

92       As to the essential services period, that is, the time when the university shuts down over Christmas, Professor Stoney said he tried to make it clear to Mr Jones and later to Mr Moore that the essential services period is not regarded as a period of time where staff are to take annual leave.  It is compulsory leave that includes compulsory Christmas holidays and is in recognition of the fact that during the year, academics work outside normal working hours and on some public holidays.  The only public holidays taken in the normal academic year are Good Friday, Easter Monday and Anzac Day.  On other public holidays they work their normal hours.  This is in order to avoid disruption to the teaching program.  Leave over the time of the essential services period is additional to academics’ annual leave entitlements of 20 days per annum.  Professor Stoney said the appellant, like everyone else in the school, was required to be on leave during the essential services period.  An important feature of academic life is on meeting deadlines and outcomes, rather than time and attendance.  Professor Stoney said that apart from when the appellant was away, he tended to be frequently ‘on the corridors’ at the school’s premises at ECU Joondalup.

93       When asked about when academics are required to take their annual leave, and what those annual leave entitlements are, Professor Stoney said that academic staff are required to take 20 days of annual leave at a time when it does not unreasonably disrupt the program of the university.  So, generally, staff are discouraged from taking annual leave during teaching time, and traditionally most staff take their leave between December and February or in July each year, and all staff in his school are encouraged to take their annual leave each year.

94       Professor Stoney agreed that he told Mr Jones that he was aware that telecommunications in Africa is sometimes difficult.  By this he said he was not implying in any way that the appellant’s travel to Africa compromised the performance of his duties at the school.  The comment about telecommunications in Africa was a general comment and one based on his own experience, but he maintains that he made no assertion to Mr Jones that he had suggested it was dubious that the appellant would be able to service his students’ needs whilst he was away from ECU in Africa.

95       Professor Stoney also gave evidence that the appellant’s consultancies and advisory services have resulted in business opportunities and benefits for ECU.  At the time of giving evidence in June 2011, he anticipated in the following two weeks representatives of ECU were to meet with senior representatives of the Department of Foreign Affairs and Trade to discuss teaching opportunities, course delivery and short courses into sections of Africa.  He said he did not know whether those talks would lead to anything, but it was promising.

(b) Evidence given by other ECU academics and ECU students

96       Bernadine Kathryn Tucker, Ronelle Ann Jarvis and Rebecca Mary Anderson were all students at ECU whilst the appellant was on secondment.  The appellant was the academic who delivered courses to them from 2008 until 2010.  Each gave evidence that during that period of time they had regular contact with the appellant in the course of their studies.  When he was overseas they would email him regarding their student work and they would receive a reply from him in days.  In particular, Ms Tucker gave evidence that she submitted her masters thesis for marking to him while he was overseas.  She says there was no delay in having her thesis marked and the appellant provided her with a great deal of assistance and she passed her masters with ‘flying colours’.  Ms Jarvis also gave evidence that the appellant was always available to her within a short period of time to assist her.  Mr Anderson said when the appellant was overseas she emailed him regarding her student work and she usually received a reply within two to three days.  She also said her assignments were marked within an appropriate timeframe and there was never any delay in communication.  At no time did she feel that the appellant’s overseas travel delayed her studies.

97       Natalie Jane Gately is a Lecturer at ECU School of Law and Justice and a Research Scholar.  She is also the WA Manager for the Drug Use Monitoring Project.  She oversaw the appellant in his work and she also had contact with him through the postgraduate units he taught.  She speaks very highly of the appellant’s abilities as a lecturer.  She said that the appellant often copied her into replies that he sent to students to keep her ‘in the loop’.  From the correspondence she saw, it appeared to her that the appellant was readily available to his students and always answered their questions promptly, regardless of whether he was overseas or not.

98       Sharan Kraemer is a Lecture/Research Scholar, Practicum and Honours Co-ordinator at ECU at the School of Law and Justice.  She has been at ECU since 2001 and has been employed as a lecturer since 2003.  She first met the appellant when she started work at ECU because at that time he was working as a sessional lecturer.  She gave evidence that the appellant has done some guest lectures for her because he has immense knowledge in some of the areas they teach.  She was aware that the appellant engaged in some international work whilst he was at ECU on secondment.  She gave evidence that the appellant has always been available on email and she had never had difficulty contacting him by email whilst he was away.

99       Ms Kraemer and Ms Gately have authored a prisoner health survey.  Ms Kraemer testified that the appellant spoke to prison officers in Kenya about the survey which generated a lot of interest and led to positive publicity for ECU.  He also set up the possibility for some students from ECU to go to Kenya through the United Nations and carry out some practicums within Kenyan prisons. 

100    Dr Pamela Jayne Henry is the Director of the Sellenger Centre in the School of Law and Justice at ECU.  She gave evidence that the appellant is a valuable contributor to the development of research incentives at the Sellenger Centre.  She said the research examining the experience of Somali pirates would not have been possible without the appellant’s involvement.  Also his contacts in Kenya have provided the Sellenger Centre with access to participants, accommodation and in-kind funding.  Her opinion is that in her experience, no staff members had experienced difficulties as a consequence of the appellant’s overseas commitments during his time at ECU and his involvement with the school has led to positive outcomes.  She also said his lectures are well received, his research is innovative, he has facilitated practicum placements for students and postgraduate students respond well to him.

The appellant’s overseas work after his secondment with ECU came to an end

101    The appellant received advice dated 23 June 2010 from DPC that the secondment with ECU was extended through to 13 August 2010 (exhibit A – GR 52).  He also became aware of a letter from Mr Moore to Professor Stoney dated 18 June 2010 in which Mr Moore informed Professor Stoney that he (Mr Moore) intended to discuss with the appellant on his return to Australia options for moving forward beyond August 2010, and for him (the appellant) to return to the public sector for deployment to a suitable role (exhibit 4 – GM 215).  The appellant was not provided with a copy of this letter by DPC.  Despite this advice to ECU, Mr Moore did not hold any discussions with the appellant.

102    The appellant attended a second conciliation conference at the Commission before Acting Senior Commissioner Scott on 11 August 2010 and was advised by Mr Moore that his secondment was to end on 13 August 2010 and he was required to report for duty at DPC on 16 August 2010.  At the conference, Mr Moore put to the appellant that he may wish to consider clearing his accrued leave so that he need not return to work at DPC on 16 August 2010.  This would have enabled the appellant to continue to attend to his ECU obligations and commitments.  The appellant, however, declined the offer.  The appellant was also informed at the conference by Mr Moore that the appellant’s past absences overseas, in the view of DPC, attracted leave deductions.  This came as a surprise to the appellant at that point of time as he was of the view that the information that he had previously provided had negated the requirement to take leave when carrying out work overseas.

103    On 16 August 2010, the appellant returned to DPC.  At that time Mr Moore informed the appellant that DPC would be moving to formally register him as a redeployee and explained the process of how that would work.  This did not, however, occur.  The appellant filed a number of appeals in the Public Service Board, including these appeals, shortly after his return to DPC.

104    It is common ground that the appellant was not provided with any duties on his return to DPC.  He was, however, assigned a case manager from DPC’s human resource services branch to assist him in accessing job opportunities and he was provided with an office, email, computer and internet access.  Mr Moore said whilst he was conscious of the fact of finding some work for the appellant to keep him occupied, to some extent the appellant was keeping himself busy on what appeared to be research into criminology matters, public social policy, and child abuse law and policy.

105    Sometime after his return to DPC, the appellant made a request for permission to deliver three guest lectures at ECU on international human rights, sexual offences and mentally disordered offenders.  The appellant informed Mr Moore that it was estimated it would take approximately 20 hours to develop the lectures and produce power points.  On 20 August 2010, Mr Moore informed the appellant by email that Mr Conran had approved the appellant’s involvement in delivering the lectures and it would be expected that the bulk of the preparation time would be done in his (the appellant’s) own time (exhibit A – GR 72).

106    On 26 July 2010, whilst still on secondment, the appellant had written to Mr Conran advising him in conjunction with his functions as an academic at ECU, he had accepted an invitation to be a plenary speaker at a conference being held in Canada from 19 September 2010 to 22 September 2010.  His participation was as a keynote speaker and the costs associated with this attendance were to be met by the International Institute on Special Needs Offenders and Policy Research (Canada) (exhibit A – GR 74).  Participation in the conference had been approved from ECU by Professor Stoney.  On 7 September 2010, approval was given by the respondent to attend the conference if the appellant took annual leave (exhibit A – GR 77).

107    On his return to work, the appellant became ill as a result of the disputes he had with DPC about his level of classification, his overseas work and the fact he was returned to DPC without meaningful work being provided to him and spent increasingly less periods of time at work.  His last day of attendance at DPC was on 8 December 2010, and in January 2011 the appellant lodged a workers’ compensation claim with DPC.

108    Despite his illness, the appellant took annual leave between 24 September 2010 to 6 October 2010 and travelled to Canada to deliver the conference presentation on special needs offenders.  He returned to the DPC on the first working day after 6 October 2010.

109    On 6 October 2010, the appellant advised Mr Conran that he had applied for annual leave to undertake work with UNODC during November/December 2010, and there was a potential that he might be offered payment for such work, although none had been offered at the time and no discussions had been held.  In his letter he said for an abundance of caution he was notifying the Director General of such potential of payment.  He also said that he had taken cognisance of the DPC Code of Conduct and he was confident that no conflict of interest was involved.  He also advised there could be no detrimental effect on his efficiency as the work was to take place during a period of leave.  Also, there could be no inconvenience to the Department as it was to occur during a period of leave and there was to be no actual, potential or perceived conflict of interest with his functions at DPC as the work he would undertake had no relevance to the jurisdiction of Western Australia or the functions of DPC (exhibit A – GR 62).

110    On 13 October 2010, Mr Jones advised Mr Conran that in the absence of more comprehensive information, it was not possible for him to properly assess whether the appellant’s proposed engagement and activities unconnected with his employment constituted an actual, potential or perceived conflict of interest.  Mr Jones also stated the following in his advice to Mr Conran (exhibit 2 – KJ 13):

I also note advice from Mr Moore that in conversation, Mr Ross mentioned that he is still 'assisting' ECU students, presumably while he winds down his ECU involvement. Given the cessation of his secondment, it is appropriate that should this 'assistance' be anything more that [sic] a voluntary activity, Mr Ross seeks your approval to continue. In this respect, I confirm that approval granted to Mr Ross in 2007 to undertake ECU course development and delivery applied to the duration of second semester 2007.

In this regard, Mr Ross is no longer seconded to ECU having returned to the Department on cessation of his secondment. Whilst there may have been some valid basis to his claims that the external activities undertaken in the past were connected to his employment (through the terms of his secondment), there is no longer any basis for such a claim.

When considering what constitutes a conflict of interest, Mr Andretich observed that the expression of views or opinions on international criminal justice or other similar issues inconsistent with the Government's views on such matters might quite reasonably be considered to be an actual or potential conflict of interest. This risk increases significantly should Mr Ross hold himself out, or be perceived by others to be a representative of the WA Government (particularly considering his employment by a central agency), or of the Commonwealth Government.

Accordingly, I have drafted the attached correspondence to Mr Ross seeking further and better particulars in order to enable proper consideration to be given to his requests.

111    A letter was then sent to the appellant signed by Mr Conran dated 13 October 2010.  In the letter Mr Conran stated that he was unable to grant the written permission requested and sought the following information to properly consider the request to carry out work for UNODC in November and December 2010 (exhibit 2 – KJ 14):

(i) full details of the organisation(s) to which you will be providing assistance/consultancy advice including a contact person able to provide further information if required;

(ii) comprehensive details of the subject matter on which assistance/consultancy advice is to be provided including details of proposed recipients, when and where it will be delivered, and the nature of the service /advice to be provided;

(iii) details of any remuneration, per diem or other allowance, airfares and accommodation provided by the organisation(s) for whom you will work and/or recipients of the assistance/consultancy advice; and

(iv) the actual dates on which you will be engaged in activities unconnected with your employment whilst on annual leave.

112    Mr Conran also informed the appellant in the letter that on receipt of the requested information, he would give further consideration to the appellant’s requests having regard for the potential for these activities to constitute an actual, potential or perceived conflict of interest with the appellant’s official responsibilities and the government’s interests.

113    The appellant responded to Mr Conran’s request for information on the following day in a letter to Mr Conran dated 14 October 2010.  In his letter the appellant sought to broaden his request to include other periods of leave or personal time to be taken in the next two years.  He then went on to say (exhibit 2 – K 15):

You identify four points on which you seek clarification and to which I respond bearing in mind the extended nature of the approval now sought:

1. Full details of the organisation(s) to which you will be providing assistance/consultancy advice including a contact person able to provide further information if required.

Approval is sought for secondary employment as a Criminal Justice Consultant. Likely clients would include the United Nations and other organizations external to Australia.

In respect of this particular instance, and as mentioned, I have not entered any agreement to provide paid consultancy at this time. However, the organisation to which the current potential exists is the United Nations Office on Drugs and Crime East Africa which is located in Nairobi Kenya.

If there are information requirements in addition to that provided in respect of this potential engagement, or more generally, I request that you direct them to me and I will provide the required response or arrange for same.

2. Comprehensive details of the subject matter on which assistance/consultancy advice is to be provided including details of proposed recipients, when and where it will be delivered, and the nature of the service/advice provided.

I believe that I have expertise in a range of areas that may be of interest to organisations seeking to engage consultants including:

• Criminal justice capacity building

• Crime prevention

• Custodial and non-custodial corrections

• Legislative and policy development

• Training

The current potential opportunity concerns providing general consultancy advice on criminal justice matters and with specific attention to prison facility commissioning and staff training. I have no greater detail than this as, as I have stated, I have not entered into any agreement.

I envisage that my consultancy services may find a client base in countries within Africa or located within the West Indian Ocean. I will not be seeking or accepting consultancies within Australia without requesting specific additional approval.

3. Details of any remuneration, per diem or other allowances, airfares and accommodation provided by the organisation(s) for whom you will work and/or recipients of the assistance/consultancy advice;

Of course remuneration received etc, will be dependent upon the type and extent of service I am contracted to provide and will vary. Information or remuneration rates, etc will be commercial-in-confidence.

In respect of the current potential, I have not entered into any discussions concerning remuneration rates. At this time I am proceeding on the basis that there will be no payment for the contributions that I make. The nature of the work has extrinsic rewards such that I would not be distressed at not being paid at all. Having said this, I fail to see the relevancy of remuneration received, including the significance of the cost of airfares, in considering whether there is a conflict of interest or not. Perhaps you might be able to explain the relevance of this request so that I can better understand what needs to be provided.

Depending on the type of contracts I might enter into, remuneration might be an all embracing rate, a rate plus expenses, or a rate plus per deim [sic]. Again, the exact nature of these rates would be commercial-in-confidence.

4. The actual dates on which you will be engaged in activities unconnected with your employment whilst on annual leave.

I am on annual leave for the period 8 November through 3 December 2010. I do not have any contract at this time and the quantum of time that might be requested of me is not certain. However, I am unable to see the relevance of whether the consultancy was for one, two, three or four weeks when considering whether there was a potential or actual conflict of interest. Perhaps you might be able to explain the relevance of this request so that I can better understand what needs to be provided.

In any event this point is now somewhat moot as I am requesting approval to engage in secondary employment during leave or personal time over the next two years.

I understand that approval for annual or other leave is at the convenience of the Department, but that any approval should not be unnecessarily withheld.

In terms of the matters that you are required to properly consider as per the department's Code of Conduct, I provide as follows taking into account the expanded nature of my request:

a) Potential detrimental effect on productivity.

I am not expecting that requests for my services will be numerous as I am not intending to advertise my services; it will be as a result of being sought out. In the main I would anticipate that that [sic] such requests for consultancy services would be met during periods of leave and hence there would be no detrimental effect on my productivity such as to cause this request not to be approved.

b) Inconvenience to the Department

Following from the above, performing consultancy services during periods of leave or personal time should not result in any inconvenience to the Department as approval for leave is at the convenience of the Department.

c) Actual, potential or perceived conflict of interest

I do not have duties or responsibilities at the Department that are in any way remotely connected with the consultancy services that I might provide. I attest that there is no actual, potential or perceived conflict of interest that I am aware of such as to cause this request not to be approved.

114    On 20 October 2010, Mr Jones provided further advice to Mr Conran (exhibit 2 – KJ 16).  On the same day, Mr Conran wrote to the appellant as follows (exhibit 3 – PC 27):

I refer to your correspondence of 14 October 2010 in response to my letter of 13 October 2010 seeking further information about your proposed activities unconnected with employment.

In the absence of specific details requested about consultancy contracts or other activities in which you propose to engage, I am unable to grant the approval requested. For the same reason, I am not prepared to consider your request for a two year 'blanket approval' to engage in activities unconnected with your employment whilst on leave or in your own time.

Should you wish to seek approval as required under section 102 of the Public Sector Management Act 1994 (the Act) for the period of your annual leave from 8 November – 3 December 2010, you should provide the detailed information requested in my previous correspondence of 13 October 2010. In particular, I require you to explicitly confirm that you will not hold yourself out to be representing the Government or department, and in accordance with section 9 of the Act no official information, equipment or facilities will be utilised in the activities unconnected with your employment. In this regard, I also take this opportunity to remind you of the statutory obligation for all employees set out in section 102 of the Act to have received written permission before engaging in any activities unconnected with their employment, other than any activities specified in the public sector standards for the purposes of this section.

Other applications for secondary employment

115    On 7 September 2010, the appellant sought to attend a counter-terrorism conference being held in Perth from 30 November 2010 to 2 December 2010.  The appellant gave evidence that by the time Mr Moore sought to speak to him about permission to attend the time for submission of abstracts had well passed and there was no potential for him to proceed so he told Mr Moore ‘not to bother’.  Consequently, the appellant did not attend this conference.

116    In October 2010, the appellant sought permission to attend and participate in a research forum at ECU on 29 October 2010.  Mr Moore advised the appellant on 19 October 2010 that Mr Conran had approved his attendance, subject to him attending in his own time, not holding himself out to be representing DPC and being scrupulous in the use of official information, equipment and facilities (exhibit A – GR 73).

117    Shortly thereafter, the appellant was requested to attend and participate in the counter-terrorism roundtable conference being held by the Department of Foreign Affairs and Trade (DFAT) in Canberra in January 2011.  In an email to Mr Moore on 9 December 2010, the appellant sought approval to attend this conference.  The conference was to take place on 20 January and 21 January 2010.  DFAT was to make the bookings and meet the costs of the appellant’s travel.  The appellant provided a copy of the itinerary to the respondent.  On 15 December 2010, the appellant provided further information and a likely list of attendees (exhibit A – GR 81).  On 17 December 2010, Peter Shannon, the Assistant Secretary for the Counter-Terrorism Branch of DFAT, wrote to Mr Conran seeking approval for the participation of the appellant in a roundtable that DFAT was hosting (exhibit A – GR 83).  After receiving that letter, Mr Conran approved the appellant’s participation at that conference on 21 December 2010 (exhibit A – GR 84).  The approval was subject to the appellant making an application for three days annual or other accrued leave to cover the time that he would be absent.

The respondent’s concerns about the appellant’s engagement in overseas work

118    Mr Conran gave evidence that over the course of several months in 2010, while the dispute about the appellant’s engagement with UNODC and sovereign African governments was ongoing, he had several conversations with Mr Palmer.  Mr Conran became increasingly concerned about the nature and scope of the appellant’s activities in Africa.  Mr Conran came to the view that it was appropriate to seek additional information from the appellant to satisfy himself that the appellant’s engagement and activities whilst in Africa were not in conflict with his official responsibilities as a public service officer.  Mr Conran was also concerned whether it was appropriate for a person being paid by the Western Australian government to be employed in work of this nature which was very much outside the responsibilities of the State government.  The fact that the appellant had been paid in the past to perform such work elevated his level of concern.

119    On 21 December 2010, Mr Conran wrote to Messrs Alan Cole and Mark Shaw of UNODC seeking information about the nature of the work for which the appellant had been engaged and specific details of the contracts the appellant had entered into (exhibit 3 – PC 33).  Both Mr Cole and Mr Shaw subsequently responded and declined to provide contract details unless authorised by the appellant.

120    When giving evidence, Mr Conran explained how his concerns about the overseas work related to his concerns about whether he should review the appellant’s secondment arrangements to ECU.  Initially Mr Conran was comfortable with the arrangement with ECU as he had some sympathy for the appellant, but he was of the opinion that if the appellant was engaging in further work outside the secondment, whether paid or unpaid, he wanted to ensure that those arrangements were appropriate because the appellant was being paid public monies.  Also it was not for DPC to be paying for the appellant while the appellant was being paid for by another organisation.

121    When asked what was his understanding of the nature of the secondment between DPC and ECU, Mr Conran said he understood the appellant was a person who was working at the university and undertaking some tutoring, possibly some lecturing duties, and some research.  He, however, conceded he never turned his mind to the detail of the arrangement between DPC and ECU.  Mr Conran also expressed the opinion that the appellant had been less than honest with DPC in relation to his arrangements for overseas work, and that was of concern to him.

What were the terms of the secondment?

122    The appellant puts forward three alternative constructions of the secondment arrangement:

(a) That whilst the secondment arrangement was in place the appellant ceased to be employed by ECU.

(b) The contract between the appellant and the respondent was suspended by mutual agreement whilst the agreement was on foot Minister for Education v Galipo (2001) 81 WAIG 1145.

(c) Although the appellant remained an employee of the respondent throughout the secondment, the terms and conditions of his contract of employment became those of a member of the academic staff of ECU.

123    The consequence of each of the appellant’s arguments is that s 102 of the PSM Act had no effect during the period of secondment and the appellant’s international work was part of the duties and conditions of the engagement as a lecturer at ECU and did not require him to take leave to participate in these activities.  Also, as a lecturer, he was entitled to leave in lieu of public holidays as PHIL days.

124    The respondent contends whilst on secondment that the conditions of employment of the appellant were regulated by the PSM Act, the Public Service Award, the Public Service General Agreements of 2006 and 2008 and that there was no change to the employment conditions of the appellant during the secondment.

125    The respondent says that pursuant to s 102(1)(c), s 102(1)(d) and s 102(1)(e) of the PSM Act, the appellant was required to seek permission to undertake work to provide advice for reward in relation to incarceration and criminal justice matters.  The respondent also says that the external work the appellant engaged in whilst on secondment and the activities he sought approval to engage in, in October 2010, were and are activities in a private capacity.  In particular, the evidence given by Professor Stoney establishes that ECU had not assigned the external overseas activities, nor was the appellant regarded as a member of the establishment of the university.

126    The starting point of construction of the secondment arrangement turns on the express provisions of the PSM Act, in particular s 66 of the PSM Act.  Section 66 provides:

An employing authority of a department or organisation (in this section referred to as the seconding authority) may, if it considers it to be in the public interest to do so and the public service officer concerned consents, enter into an arrangement in writing with another such employing authority or with an employer outside the Public Sector for the secondment of a public service officer (other than an executive officer) in the department or organisation of the seconding authority to perform functions or services for, or duties in the service of, the other department or organisation or that employer during such period as is specified in that arrangement.

127    Importantly, s 66 contemplates a tripartite arrangement.  The first part of that arrangement is the employer of a public service officer is empowered to enter into an ‘arrangement’ in writing with another employer inside or outside the public sector for the secondment of a public service officer.  By the use of the word ‘arrangement’, it is not necessary for the parties to enter into an agreement that is binding in contract.  For example in this matter, it is doubtful that a finding could be made that the arrangement made between ECU and the respondent was supported by consideration.  The second part of the arrangement is that the public service officer must consent.  It is also notable that the arrangement between the employer of the public service officer and the other organisation is required to be in writing and the secondment is for the performance of functions or services for or duties in the service of the other organisation.

128    Whilst it is apparent in this matter that at the time the arrangement was entered into in 2007 that agreement was reached to second the appellant to perform functions or services for ECU or duties in the service of ECU, to determine what those functions, services or duties were to be performed, the correspondence passed between DPC and ECU at the time the arrangement was negotiated needs to be examined.

129    Any matters agreed between ECU and the appellant, unless agreed to by the Director General of DPC (or his agents acting on his behalf), cannot form part of the secondment arrangement as s 66 contemplates that agreed arrangement must have been made between DPC and ECU.  Consequently, the matters stated by Professor Stoney in the letter dated 23 May 2007, sent to the appellant (exhibit A – GR 15), unless agreed to by the Director General of DPC, could not form part of the secondment arrangement that was binding on DPC and the appellant as a public service officer.  In particular, the direction given to the appellant by Professor Stoney (exhibit A – GR 15) that whilst on secondment the appellant was expected to adhere to the ‘legislative requirements, processes and practices’ of ECU did not form part of the secondment arrangement as there is no evidence before the Board that a Director General of DPC or anyone acting on their behalf in DPC agreed to such a term.

130    The evidence, however, does establish that agreement was reached between the Director General of DPC and ECU that the appellant was to work as a lecturer of (or in) Criminology and Justice and DPC would fund the appellant’s placement and not seek recoup from ECU (exhibit A – [98] and GR 12).  It is implicit from the appellant’s evidence that he consented to this arrangement.

131    Importantly, the evidence does, however, reveal that an agreement was reached for the appellant to perform specified functions, services or duties for ECU during the secondment.  These were set out in an email from Professor Stoney on 29 May 2007 to Ms Sandercott from DPC in answer to an email sent by her the previous day to Professor Stoney in which she asked for an outline of work to be undertaken by the appellant if the secondment was approved.  In response to Ms Sandercott’s email, Professor Stoney in his email sent on 29 May 2007 outlined work which could be characterised as ‘functions, services and duties’ within the meaning of s 66 of the PSM Act.  These were that the appellant was to be engaged in the development and delivery of a number of undergraduate and postgraduate programs on criminology and justice investigations and intelligence.  He was also to provide support and guidance (supervision) to masters and honours students and provide research support in ECU’s various research projects and grants (exhibit A – GR 13).

132    Whilst the appellant in [94] of his witness statement (exhibit A), contends a plain reading of the duties set out in exhibit A – GR 13 were not exhaustive and his role was to be as a member of the academic community, such a construction is not open as the duties outlined by Professor Stoney were not put to DPC as a list of some of the duties the appellant would perform, but as the duties the appellant would perform.

133    The submissions made on behalf of the appellant dealt with, in some detail, whether there were any terms and conditions of the secondment arrangement that dealt with the appellant’s entitlements to leave and whether DPC or ECU was responsible for managing the appellant’s leave entitlements.  While the appellant was advised by DPC in a letter dated 2 July 2007 by Ms Delany from DPC (exhibit A – GR 17), that DPC would be responsible for his leave entitlements for the duration of the secondment, the only reference to leave referred to in the letter to ECU on 20 June 2007 confirming the secondment was that all leave requests for the appellant were to be forwarded to DPC.  Irrespective of the statements made in these documents, at law, other than the performance of functions, services or duties in the service of ECU, the appellant’s other terms and conditions of employment as a public service officer remained unchanged and his contract of employment with the respondent did not cease and nor was it or the terms and conditions of his employment as a public service officer suspended.  The reason why I make this finding is for the following reasons:

(a) Section 66 of the PSM Act expressly only contemplates a change in the functions and services to be performed or duties in the service of a public service officer and to whom these functions, services and duties are to be performed for.  No other changes to the employment contract or statutory duties of a public service officer are contemplated.

(b) The PSM Act must be read as a whole and s 66 must be construed not divorced from its context.  Statutory construction involves the analysis of the meaning of words of a provision in an Act in the context of the legislative scheme as a whole:  K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509 (514) (Mason J); Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (381).  When regard is had to these principles, the scope of s 66 of the PSM Act must be construed by regard to s 67 of the PSM Act which provides for the circumstances when the office of a public service officer becomes vacant.  Section 67 provides:

The office of a public service officer (other than an executive officer) becomes vacant if — 

(a) that public service officer dies; or

(b) in the case of a term officer, the term officer completes a term of office and is not reappointed; or

(c) that public service officer is dismissed, or retires from office, under this Act; or

(d) the employment of that public service officer in the Public Sector is terminated under section 79(3); or

(e) that public service officer resigns his or her office in writing addressed to his or her employing authority and that employing authority accepts that resignation; or

(f) that public service officer is appointed or transferred under this Part to another office, post or position (unless it is an appointment and the Commissioner authorises the offices, posts or positions being held concurrently by that public service officer).

(c) When in 2007 the appellant was appointed to a position as a principal policy officer in DPC, he was appointed to an office in the public service.  This position is described as unattached, as it is not attached to any specific duties.  However, he is still held against an office under s 64(1) and s 64(3) of the PSM Act.  Pursuant to s 67, the unattached office he held as a public service officer could not become vacant unless the circumstances subscribed in s 67 of the PSM Act applied.

134    It was argued on behalf of the appellant that if the principles considered by Moore J in Finance Sector Union of Australia v Commonwealth Bank of Australia [2001] FCA 1613; (2001) 111 IR 241 and by Edmonds J in Gothard v Davey [2010] FCA 1163 are applied to the facts of this matter, it could be argued that during the secondment to ECU the appellant ceased to be employed as a public service officer and became an employee of ECU.  The principles considered in those cases examined secondment arrangements at common law and did not deal with the secondment of a statutory office holder such a public service officer.  In any event, as counsel for the respondent points out in Finance Sector Union of Australia v Commonwealth Bank of Australia Moore J held that the matter is ultimately one of assessing the intention of the parties [63].  In these appeals the facts disclose that there was no evidence of an intention to create an employment relationship between the appellant and ECU.

135    The decision of the Full Bench in Galipo where it was found that a teacher’s contract of employment was suspended by mutual agreement whilst she worked in a public service position is distinguishable.  Ms Galipo was not a public service officer and was not seconded to the public service position under s 66 of the PSM Act or any statutory provision.  Consequently, her secondment arrangement was unaffected by the operation of a provision such as s 66 or s 67 of the PSM Act.

136    For these reasons, whilst the appellant was on secondment at ECU he remained a public service officer employed by DPC.  As a public sector employee and public service officer he was bound to comply with the provisions of the PSM Act.

Was the appellant required to comply with s 102 of the PSM Act?

137    Section 102(1)(b), s 102(1)(c), s 102(1)(d) and s 102(1)(e) relevantly provides:

(1) Except with the written permission of his or her employing authority, which permission may at any time be withdrawn, an employee shall not — 

…

(b) accept or continue to hold or discharge the duties of or be employed in a paid position in connection with any banking, insurance, mining, mercantile or other commercial business, whether it be carried on by any corporation, company, firm or individual; or

(c) engage in or undertake any business referred to in paragraph (b), whether as principal or agent; or

(d) engage or continue in the private practice of any profession; or

(e) accept or engage in any employment for reward other than in connection with the functions of his or her office, post or position under the State.

(a) Appellant’s submissions

138    The appellant contends that even if s 102(1) applied to him whilst he was on secondment to ECU his overseas activities were not activities contemplated in s 102(1)(c), s 102(1)(d) or s 102(1)(e) and as such, he was not required to seek permission from the respondent to engage in those activities.  He also contended when giving evidence that since his return to DPC in August 2010 it is not necessary for him to obtain permission of the respondent to undertake overseas work for UNODC when he is on annual or long service leave as time on leave is his ‘own time’.

139    The appellant also argues that the evidence discloses he has not engaged in or undertaken any business or employment for reward nor has he engaged in private practice of any profession.  In support of this argument, it is said that at no time has he drawn a salary from his overseas work and he is not engaged in a ‘profession’ in the overseas work undertaken by him.

(b) Respondent’s submissions

140    In response, the respondent says that the evidence is sufficient to conclude that the appellant undertook the business of providing advice for reward in relation to incarceration and criminal justice matters.  The respondent argues that this occurred during the period of his secondment to ECU and was likely to have continued after his return to DPC.  In any event, the respondent points out, the appellant sought approval to work as a consultant in relation to criminal justice capacity building, crime prevention, custodial and non-custodial corrections, legislative and policy development and training for reward in his letter of 14 October 2010 (exhibit 3 – PC 25).  It is argued that this activity would come within s 102(1)(c) if undertaken for reward.  It is the type of work he engaged in during his secondment and outlined in the appellant’s letter of 2 February 2010 (exhibit 3 – PC 2).

141    In the letter of 14 October 2010, the appellant’s application was for approval to engage in ‘secondary employment as a Criminal Justice Consultant’ (exhibit 3 – PC 25).  In relation to the external work identified in his letter of 2 February 2010, the appellant advised that engagement in these activities enhanced his ‘reputation as a criminologist’ (exhibit 3 – PC 2).  In cross-examination, the appellant stated that he has been a member of an association of criminologists for a period of more than 10 years.  He also reluctantly conceded when cross examined that he describes himself as a criminologist (from time to time) (ts 32), despite later saying there was no such thing as a criminologist (ts 59).  Consequently, it is argued it is evident that he sees himself as a criminologist and the professional qualifications that he has justifies him in doing so.

142    The respondent points out that the external work that the appellant engaged in whilst on secondment and the activities in respect of which he sought approval to engage in the letter of October 2010 are activities in respect of which he has engaged or wishes to engage, in a private capacity.  Professor Stoney was clear that he had not assigned the external activities under consideration to the appellant, nor were they otherwise activities which were performed as service or duties for ECU.  The activities can fairly be regarded as ones which have been engaged in by the appellant as a private practice, that practice being as a criminologist.  The activities were not ones which constituted the performance of functions or services for or duties in the service of ECU and therefore were outside the scope of the secondment.  Consequently, the respondent says the appellant required leave to engage in them during work time and permission under s 102.  They did not constitute service in respect of which he was entitled to be paid under the terms of his employment, those terms being contained in the PSM Act, the Public Service Award and General Agreements.  The respondent says he was entitled to make a deduction from the appellant’s accrued leave for the time engaged in these activities or insist that they be undertaken during periods of leave.

143    The secondment was to provide services as a ‘lecturer of criminology and justice’ (exhibit A – GR 15).  While it may be that lecturers employed by ECU engage in external consulting work and attend conferences, the respondent points out these are private activities and not service provided to ECU.  These are an incident of being an academic employee not required service or duty and the appellant was not a member of the academic staff.

144    Criminology is a recognised discipline, in fact one in which the appellant delivered lectures, and still appears to, at ECU.  It is defined by the Macquarie Dictionary as 'the systematic study dealing with the causes of crimes and treatment of criminals'.  The Macquarie Dictionary relevantly defines a profession to be 'a vocation requiring knowledge of some department of learning or science'.

145    While the appellant’s submission was that the notion of a profession is vague and could not be sensibly applied to the activities of the appellant, the respondent says the external activities which are the subject of these appeals can be fairly regarded as ones concerning the appellant as a criminologist and ones in which he engaged in the private practice of that profession.  That is, he engaged in the provision of advice concerning the causes of crime, the means of preventing it and the treatment of criminals.  In his letter of 26 March 2010, the appellant says he was a ‘practitioner scholar’ at ECU.  That requires him to have experience gained from a ‘successful and sustained professional practice’ (exhibit 3 – PC 7), Edith Cowan University Academic Staff Collective Agreement 2009 para 11.9.2.  That practice could only on the evidence be as a criminologist.  Professor Stoney agreed that the appellant was a practitioner scholar.

146    The respondent also says that where a reward has been received or will be received for the appellant’s services, approval to provide them is required under s 102(1)(c) and s 102(1)(e) of the PSM Act.

(c) The scope of s 102(1) of the PSM Act

147    In Schlafrig v Payne [1999] WASCA 174, Ipp J, with whom Anderson and White JJ agreed, made the following observations about s 102(1) of the PSM Act [21] – [23]:

[21] The purpose of s102(1) is plain, and is manifest from the heading to the section, namely, 'Employees not to engage in activities unconnected with their functions'. 'Employee' is defined by s3 of the Act as a person employed in the public sector or an 'employing authority' as defined by s5 of the Act. The body of s102(1) reveals a clear intent to preclude (subject to permission) public sector employees from being privately involved in professional or commercial activities. Thus, s102(1)(b) precludes an employee (as defined) from being a paid employee in connection with any commercial business, or discharging duties for which payment is received in connection with any such business; s102(1)(d) precludes an employee from being engaged in the private practice of any profession; s102(1)(e) is a catch-all provision, precluding employment for reward outside the public sector. Against this background, it seems to me, s102(1)(c) is intended to cover any situation, not covered by s102(1)(b), s102(1)(d) or s102(1)(e), where employees are engaged for reward in professional or commercial activities unconnected with their duties as persons employed in the public sector. Such a construction is consistent with the second reading speech relating to the Public Sector Management Bill where the Premier, being the Minister concerned, stated that the 'main thrust of the legislation' was 'good management, accountability, ethical official conduct and integrity in government'.

[22] In this context it would be incongruous, in my view, if an employee in the public sector were to be able to avoid the prohibitions contained in s102(1), and the clear purpose and intent of that section, by taking a significant share in a proprietary company and using that company as a vehicle for commercial gain by seeking to increase the value of his or her shareholding. This, in effect, is the consequence of the applicant's argument. In my view the section is not capable of being so construed.

[23] In my opinion, the phrase 'any business' in s102(1)(c) has to be construed in the same way as Sir George Jessel, MR, construed the word 'business' in Smith v Anderson (1880) 15 Ch D 247 (at 258-259). The relevant issue in that case was whether a certain trust, that held shares in a number of telegraph companies, had to be registered. The applicable legislation only required registration if the trust was an association of more than 20 persons formed for the purpose of carrying on a business having as its object the acquisition of gain. The Master of the Rolls (at 258), pointed out that 'business' is a word of 'large and indefinite import' and, after examining the definitions of 'business' in various dictionaries, said:

'Anything which occupies the time and attention and labour of a man for the purpose of profit is business. It is a word of extensive use and indefinite signification.'

Nothing in the judgments of the members of the Court of Appeal (who came to a different conclusion as to the result of the case) cast any doubt on Jessel MR's construction of the word 'business' (see, in particular, Brett LJ at 278).

148    As Ipp J aptly observed, s 102(1) is intended to preclude public sector employees from being involved in private professional or commercial activities.  This intent is reflected in the heading to s 102 which provides context to the provision.

149    Importantly, when these principles are applied to the appellant’s circumstances, subject to the preconditions in s 102(1)(c), s 102(1)(d) or s 102(1)(e) being met, s 102(1) can only apply to activities which are private activities and are activities which are not part of the appellant’s functions as a public service officer.

150    Also of importance is that whilst the secondment arrangement was in place under s 66 of the PSM Act, the functions of the appellant as a public service officer were enlarged to include the functions specified in the secondment arrangement.  This is manifest from the provisions of s 66 of the PSM Act when read together with s 102(1) of the PSM Act.  It follows it would be nonsensical if a public service officer when seconded to perform functions for an employer outside the public service would be required to obtain permission under s 102(1) of the PSM Act where the functions in question were specified in writing in the secondment arrangement.

(d) ECU research project work

151    Leaving aside the preconditions to s 102(1)(c), s 102(1)(d) and s 102(1)(e), when the correspondence between the parties and the evidence given in these appeals are considered, it is apparent that it was a function of the appellant whilst on secondment at ECU to provide research support in ECU’s various research projects.  Mr Conran understood that was the case (ts 171).  In my opinion, it is inherent in the function to provide research support that the appellant could engage in research work.  However, that research work would have to be research in ECU’s research projects; that is research that was approved by ECU in accordance with their processes of approval for such projects.  Having heard the evidence given by the witnesses and read their witness statements, it appears that the only overseas work conducted by the appellant that fell into this category was the research work that the appellant conducted with Dr Hamilton.  This research work involved interviewing Somali pirates and the work was formally approved by the ECU Ethics Committee in March 2010.  The appellant travelled overseas to Kenya to conduct work for this research project from 12 April 2010 to 23 April 2010 and from 7 June 2010 to 25 June 2010.  The fact that the UNODC and Mr Palmer, as the Inspector of Transport Security, were partners in the research project was not material as the work was also ECU approved research.

152    For these reasons, I am of the opinion that s 102(1) of the PSM Act did not apply to the overseas work performed by the appellant from 12 April 2010 to 23 April 2010 and from 7 June 2010 to 25 June 2010 and between those dates, as this work was part of the functions he was to perform whilst on secondment.  Consequently, the respondent had no authority at law to require the appellant to take leave to perform this work as it was part of the functions the appellant was required to perform whilst on secondment to ECU.

(e) Other overseas work carried out by the appellant

153    With the exception of the delivery of a paper at a conference in Barbados in October 2009, it seems all the other consultancy work carried out by the appellant overseas was work for UNODC.  The work became available to him through his contact with officers from UNODC when the appellant carried out work for Mr Palmer in 2009 when Mr Palmer was inquiring into maritime piracy in Africa.  On each occasion, including the delivery of the paper in Barbados, the appellant’s airfares were paid for by a third party and he received a daily subsistence allowance.  On one occasion he received a consultancy fee.

154    The fact that the appellant received a consultancy fee on one occasion for prison assessments he conducted in Kenya from 6 July 2009 to 16 July 2009 is not sufficient to establish the appellant was ‘engaged in or undertaking any business’ within the meaning of s 102(1)(c) of the PSM Act.  To engage in a business within the meaning of this provision is to engage in paid work that has an element of continuity or a series of paid contracts that can be said to raise an element of commerciality.  A finding of profit is not necessary.  Yet a mere possibility that further payment may be forthcoming in the future is not sufficient to raise an inference upon which a finding of commerciality can be made.

155    Turning to s 102(1)(d) of the PSM Act, whether the work overseas could be said to be work in the private practice of any profession, namely as a criminologist, turns in part whether an occupation or providing consulting services in the field of crime prevention and correction can be described as a profession.  What constitutes a ‘profession’ was considered by French J in Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 71 ALR 615 where his Honour observed (619):

The word 'profession' is descriptive of a class of occupations. The membership of that class is not rigid or static but shifts with general community perceptions: Bradfield v FCT (1924) 34 CLR 1 at 7 per Isaacs J. Whether a person carries on a profession in a given case is a question of degree and always of fact: Robbins Herbal Institute v FCT (1923) 32 CLR 457 at 461 per Starke J.

It has been said that the word involves the idea of an occupation requiring either purely intellectual skill or else manual skill controlled, as is painting and sculpture or surgery, by the intellectual skill of the operator as distinct from an occupation which is substantially the production or sale or arrangement for the production or sale of commodities: Commissioners of Inland Revenue v Maxse [1919] 1 KB 647 at 651.

The concept has created difficulties for social scientists. Theoretical definitions by reference to the crucial characteristics of professions are said to have resulted in '… a confusion so profound that there is even disagreement about the existence of the confusion': Professions and Power, T J Johnson, Macmillan (1972) p 22.

One suggestion for definitive criteria includes the existence of a requirement for formal technical training accompanied by some institutionalised mode of validating both the adequacy of the training and the competence of the trained individual. The training, it is said, must lead to some order of mastery of a generalised cultural tradition in a manner giving primacy to an intellectual component. Skills in some form of the use of the tradition must be developed and there must be some institutional means of ensuring that the skills will be put to socially responsible uses: Parsons, 'Professions' (1968) 3 International Encyclopaedia of Social Sciences 536 cited in Partlett, Professional Negligence p 3.

156    When regard is had to the attributes described in the reasons of French J in Thiess, it is clear that despite the appellant’s denial to the contrary, the appellant is engaged in the profession of ‘criminologist’ and, in fact, described himself as such in his letter to the respondent dated 2 February 2010 when he sought retrospective approval to engage in secondary employment.  However, that is not the only precondition of s 102(1)(d).  For his overseas work to come within s 102(1)(d) of the PSM Act, the work in the profession must be in private practice.  As the overseas work (which was not research work for ECU) did not come within the functions or services specified in the secondment arrangement, it is apparent that his work can be characterised as work engaged in the private practice of the appellant’s profession as a criminologist.

157    It is immaterial whether Professor Stoney ‘approved’ this work.  In any event, the evidence at its highest is not that he formally approved the work, but that he did not object to the appellant carrying out this work.  Nor was he concerned about the appellant being away from Western Australia for a substantial period of time in 2009 as the appellant was still able to carry out his duties and functions of his ECU work as all of the appellant’s courses were delivered through the internet online.  It is, however, unfortunate that Professor Stoney and the officers at DPC who were responsible for managing the appellant’s secondment did not properly manage the terms and conditions of the secondment arrangement.  It is also unfortunate that once the errors, or perhaps what could better be described as misunderstood inferences in Mr Jones’ memorandum which were drawn from the matters stated by Professor Stoney in the conversation with Mr Jones on 17 February 2010, became apparent to Professor Stoney and were notified in general terms to Mr Jones by the appellant not long after that conversation took place, that neither Mr Jones nor Professor Stoney sought to directly address those apparent errors or misunderstandings.  Nor did they take any steps to clarify those matters or the terms of the secondment arrangement which was an important arrangement between DPC and ECU for the provision of functions and services to ECU.

158    In any event, whether Professor Stoney approved that overseas work or whether the work was contemplated in the role of ‘practitioner scholar’ is immaterial.  Professor Stoney may have regarded the appellant as a practitioner scholar, but such a role was not contemplated by the terms of the secondment arrangement.

159    When regard is had to s 102(1)(e) of the PSM Act, even if the overseas work carried out by the appellant could not be regarded as work engaged in by the appellant in the private practice of a profession, it is clear that such work was carried out as employment for reward that was unconnected with his functions of the secondment arrangement, which whilst the secondment arrangement remained in place formed part of the functions of the appellant’s office, post or position under the State, within the meaning of s 102(1)(e) of the PSM Act.  The words ‘for reward’ in s 102(1)(e) can be contrasted with the words ‘paid position’ in s 102(1)(b).  The words ‘paid position’, when compared to the words ‘for reward’, connote payment beyond expenses incurred in carrying out work, whereas ‘for reward’ are words that contemplate the obtaining of a benefit that has a monetary value or remuneration of any kind.  This would include the provision of airfares, payment of accommodation and living expenses.

160    For these reasons, the appellant was required to seek written permission from the respondent to carry out the work he engaged in overseas that was not ECU research project work.

Should the appellant have been required to take leave whilst engaged in overseas work for UNODC that was not ECU research project work?

161    It is apparent from the documentary evidence before the Board, that the respondent, at all material times, acted upon an assumption that whilst the appellant was carrying out work for UNODC he was absent from his workplace.  The difficulty with that assumption is that it relies largely upon an inference drawn from what Professor Stoney said to Mr Jones about poor standards of communication in Africa.  Unfortunately, when the file note of the conversation Professor Stoney had with Mr Jones came to Professor Stoney’s attention in March 2010, he took no steps to contact Mr Jones and explain to Mr Jones that the appellant was in fact able to service his students whilst in Africa and carry out a full load of all of his ECU commitments.

162    Unfortunately, too, Mr Jones did not make further enquiries of Professor Stoney.  Consequently, the decision made by the respondent to deduct annual leave credits from the appellant’s entitlements stood.

163    The evidence given in these proceedings by Professor Stoney and the other ECU witnesses clearly establishes that the appellant did, in fact, carry out a full load of ECU teaching duties whilst he was overseas.  This is largely because all of his teaching work was delivered online and he was able to supervise his students through the use of email.  Also, his student contact work when in Perth was carried out by the appellant at night and on weekends because students often made contact with him at those times.   When regard is had to this evidence, the question that then arises is whether the deductions should have been made from the appellant’s annual leave credits.

164    Annual leave and long service leave is paid leave whereby an employee is released from all obligations to perform work.  Whilst as a public service officer the appellant’s prescribed hours of work were not seven hours and 30 minutes a day under cl 20(1) of the Public Service Award, as the General Agreements replaced the provisions of cl 20 of the Public Service Award.  When the Public Service General Agreement 2008 (the 2008 General Agreement) was in place, pursuant to cl 16.1 of that agreement, the prescribed hours of duty were 150 hours per four week period to be worked between 7.00am to 6.00pm Monday to Friday.  When those hours are to be worked could be varied by an employer:  cl 16.5 of the 2008 General Agreement.  Although these provisions require that working hours arrangements are to be put in place by an employer, where an employee is seconded to another agency it is not practical for the employer of a public service officer to put in place these arrangements as the work carried out by the seconded officer is not for the employer, but for the other agency.  Nor was it practical in this matter for the respondent to regulate the times the appellant was required to carry out work for ECU.  The times of delivery of that work could only be regulated by the nature of the teaching duties.  They were that he was required to deliver online courses to largely postgraduate students who study outside normal working hours.

165    In the circumstances, where it was clear that the appellant, at all material times, competently and diligently performed the functions of a full-time lecturer for ECU, it was not reasonable for the respondent to require the appellant to deduct credits from the appellant’s leave entitlements whilst during the relevant periods of time he was also carrying out work for UNODC overseas.

166    That does not mean that if the appellant had sought approval to carry out work for UNODC overseas prior to carrying out that work as he is required to do under s 102(1) of the PSM Act, it would not have been open for the respondent to grant permission to the appellant on condition that he take paid leave to perform that work, if the respondent formed the opinion that the nature of the work to be performed by UNODC was to be full-time and the appellant would not have been able to fulfil the full-time function for ECU in accordance with the secondment arrangement.  However, no assessment was made of the extent of the UNODC work as approval was sought retrospectively.

167    For these reasons, I am of the opinion that the respondent should not have deducted credits from the appellant’s leave credits for any of the overseas work carried out by the appellant, including attendance at the conference in Barbados.

Should annual leave credits have been deducted for the periods of time during the ECU Christmas limited service periods?

168    As set out above, the appellant’s terms and conditions of employment whilst on secondment did not change, except for the functions, services and duties he was to perform.  Consequently, his entitlements to leave were provided for in the Public Service Award and not those provided to ECU academic staff.  Relevantly, cl 24 of the Public Service Award prescribes 10 specific days as public holidays each year and allows an employer to approve a day in lieu to be taken as a holiday for any of the prescribed public holidays.  Three of the prescribed 10 public holidays fall within the ECU Christmas limited service periods each year.  These are Christmas Day, Boxing Day and New Year’s Day.  Evidence was given by Professor Stoney that the only prescribed public holidays taken by teaching staff in the academic year are Good Friday, Easter Monday and Anzac Day.  Consequently, the appellant, as a lecturer, whilst on secondment, was required to work on Labour Day, Foundation Day and Queen’s Birthday.  It can be inferred from this evidence that ECU academic staff do not work on Australia Day each year as Australia Day falls outside the academic year.  The appellant as a public service officer is also entitled to receive two additional non-accruing paid leave days that can be taken at any time of the year.  These days were taken into account by DPC when the appellant’s annual leave entitlements were debited in August 2010.

169    After the hearing of evidence in these appeals was concluded, the Board received advice from the respondent that after considering the evidence of Professor Stoney the appellant was prepared to reinstate one day’s leave for each year 2007, 2008 and 2009 (being three public holidays worked by ECU staff, offset by two public service holidays that are not available to ECU staff).  As this concession is consistent with the entitlements to public holidays under the Public Service Award and the General Agreements, in my opinion, it was properly made.

170    Although Professor Stoney gave evidence that other paid PHIL days are provided to ECU academics in recognition of the requirement to work not only public holidays, but also to work outside standard working hours, the respondent points out that there is no evidence before the Board that the appellant worked more than 37.5 hours a week when performing ECU teaching functions and duties, and public service officers above level 6 have no entitlement to payment for overtime or time off in lieu:  cl 22(4)(a)(i) of the Public Service Award.

171    For these reasons, I am satisfied that the respondent was entitled to deduct from the appellant’s leave entitlements 15 days leave, for time not worked during the limited services period in 2007, 2008 and 2009 and not granted as time in lieu for public holidays worked and public service holidays.

Decision given on 20 October 2010 to refuse to provide approval for the appellant to engage in activities as a criminal justice consultant

172    In October 2010, the appellant sought to carry out work overseas as a criminal justice consultant.  Initially the request was for voluntary work for UNODC from 8 November 2010 and 3 December 2010 during annual leave.  On 14 October 2010, he extended the request to include periods of annual leave or personal leave in the next two years.

173    The appellant appeals against the decision by the respondent given on 20 October 2010 to withhold approval on the following grounds:

(a) The Director General requested information on which to base his decision that has not previously been requested of applicants for secondary employment and was unfair and inconsistent in doing so.

(b) The Director General failed to give proper consideration to relevant information provided.

(c)          The Director General asked for irrelevant information, but will not give approval in its absence.

(d) The Director General requested information that does not exist, but will not give approval in its absence.

(e) The Director General asked for information beyond his powers to request, but will not give approval in its absence.

174    The appellant argues that the respondent has not acted fairly or consistently in that he has asked the appellant to provide information that other public service officers in DPC have not been required to provide when seeking approval under s 102(1) of the PSM Act.  Through pre-hearing discovery the appellant sought and obtained copies of 27 applications for secondary employment considered by DPC.  Copies of these applications were received into evidence as exhibit B.  The appellant says that when each of these applications are analysed it can be seen he has been asked to provide information that is in excess of that asked of other applicants for secondary employment.  He points out that when considering his application under s 102(1) of the PSM Act, regard should be had to the Public Sector Code of Ethics which requires the respondent to make decisions that are honest, fair, impartial and timely and all relevant information should be considered.  A corollary of which is the respondent should not have regard to irrelevant information.

175    The appellant contends that:

(a) The information provided by him in regards to possible clients and the general nature of areas of consultancy expertise is relevant information.

(b) The requirement to submit specific client information and comprehensive information on services to be delivered is irrelevant information that should not be sought.

(c) The request for information on the rates of remuneration, per diem or other allowances, airfares, accommodation arrangements and actual dates on which secondary employment will be engaged whilst on annual leave is irrelevant information that should not be sought.

176    It is also argued that the respondent is acting ultra vires in seeking specific information on remuneration, per diem and other allowances.

177    The appellant points out that cl 6.5.1 of the DPC Code of Conduct (exhibit K) provides in determining whether to grant permission to undertake external employment the Director General is to have regard to:

(a) Possible detrimental effect on an officer’s efficiency;

(b) Inconvenience to the Department; and

(c) Whether the employment would give rise to an actual, potential or perceived conflict of interest.

178    The appellant says when the requirements of cl 6.5.1 are considered, the information requested beyond what he has provided to the respondent has no relevancy to whether the proposed secondary employment could give rise to an actual, potential or perceived conflict of interest.

The appellant’s functions of office as a public service officer

179    It is common ground that the appellant’s position in DPC is as an unattached level 7 principal policy officer without allocated duties.  From this fact, it is argued on behalf of the appellant that he has no functions, so no actual, potential or perceived conflict of interest could arise if he is granted permission to work as a criminal justice consultant.  However, it is not correct to say the appellant has no functions.  Nor does it follow that any actual, potential or perceived conflict of interest should only be measured against the appellant’s allocated duties.

180    At common law, all employees have a duty to their employer of fidelity and good faith which is part of the broader duty of mutual trust and confidence that an employer and employee have to each other:  Sappideen, O’Grady, Riley, Warburton, Macken’s Law of Employment (7th ed) [5.140] and [5.880].  Part of this duty is to protect an employer’s confidential information, answer lawful and reasonable questions, and for public sector employees they are required to not act inconsistently with government policies.

181    The duty not to make use of confidential information is specifically reflected in reg 8 of the Public Service Regulations 1988 (WA) which provides that a public service officer shall not:

(a) publicly comment, either orally or in writing, on any administrative action, or upon the administration of any Department or organization; or

(b) use for any purpose, other than for the discharge of official duties as an officer, information gained by or conveyed to that officer through employment in the Public Service.

182    Public service officers have traditionally been appointed as ‘permanent’ officers.  Although in more recent times public service officers can be appointed for a fixed term:  see, for example, s 64(1)(b) of the PSM Act.  The appellant is a permanent public service officer.  Historically, public service officers, or public servants as they were known in Western Australian until the enactment of the PSM Act in 1994, were appointed as permanent officers.  This was so to provide tenure and security in an attempt to ensure that the public service was composed of a body of career public servants who were able to provide ‘frank and fearless advice’ to the executive arm of government without fear or favour, as the public administration of the government of a State to rely upon such advice.  As such, the public service as a whole must guard against being affected by politics by being politically neutral and scrupulously accountable.

183    The appellant as a public service officer holds a permanent position in the government department that is responsible for advice to the highest levels of the executive in Western Australia and the implementation of high level government policies.  As Mr Jones explained when giving evidence a conflict of interest could possibly arise if the appellant was to provide advice as a criminal justice consultant to a sovereign foreign government that endorses policies that are inconsistent with the policies of the Western Australian government, or the Premier’s view of international relations (ts 113).

184    Whilst it may be the case that the appellant does not intend to provide advice to any foreign governments either directly or through UNODC that could raise such a conflict, the respondent is entitled to such sufficient information from the appellant to ascertain whether such a conflict could arise.  Part of a legitimate inquiry into whether such a conflict could arise would be to ascertain the specific identity of the clients the appellant intends to engage or has engaged, and the nature of services or advice to be provided, including the names of persons who are either prospective clients or represent prospective clients who can be contacted to provide further information.  These are clearly matters that are relevant to a proper assessment by the respondent of whether the appellant should be granted permission to engage in secondary employment.

185    Part of the reason for the appellant’s refusal to provide the requested information is his opinion that whilst on annual or long service leave he is entitled to do as he pleases, that is, he is free to engage in work for others.  This view, however, is misconceived.  During leave he remains a public service officer and as such s 102 of the PSM Act continues to apply to his activities.

186    It is also relevant for the respondent to ascertain whether the appellant will be in receipt of any remuneration, per diem or other allowance, airfares and accommodation.  Such information is specifically contemplated by s 102(1)(b), s 102(1)(c) and s 102(1)(e) of the PSM Act which prohibits engaging in a business and accepting or engaging in employment for reward.  This information, together with information about the dates and likelihood of the frequency of engagement in secondary employment that is to attract payment or other remuneration or reward, is relevant to whether, if in the event permission is to be granted, the appellant should be required to take paid or unpaid leave.  In any event, if the appellant’s secondary employment is to attract a consultancy fee on top of reimbursement of travelling and living expenses, it would be open to the respondent to consider whether in the circumstances the appellant should be required to take unpaid leave as it may not be appropriate in circumstances for the appellant to receive payment from the State of Western Australia as a full-time employee whist engaging in paid work for third parties.  This may be particularly relevant if the secondary work to be engaged in was to be full-time for substantial periods of time.

187    The fact that the respondent has not sought a similar amount of detailed information from other officers employed by DPC is not material or relevant.  None of the other employees seek to engage in providing advice to sovereign nations in parts of the third world where the contemplated advice deals particularly with matters that deal with core government services of policing, security and imprisonment.

188    In the absence of the provision by the appellant of the information requested by Mr Conran in his decision on 20 October 2010 it cannot be said that the decision to refuse permission to the appellant to engage in work as a consultant to be unreasonable.  Nor can it be said that the information requested was not reasonable.

Conclusion

189    In light of my reasons, I am of the opinion that the appeals PSAB 17 of 2010 and PSAB 22 of 2010 should be upheld.  In my view, the decision of the respondent in PSAB 17 of 2010 to deduct leave from the appellant’s leave credits should be adjusted by being varied to recredit the time deducted when the appellant was overseas.  An order should also be made that PSAB 17 of 2010 be otherwise dismissed, as part of the decision was to deduct 15 days leave for time not worked by the appellant during the 2006, 2007 and 2009 ECU limited services period.  For the reasons set out above I am of the opinion that this part of the decision should not be adjusted.

190    I am also of the opinion that the decision of the respondent in PSAB 22 of 2010 to require the appellant to take annual leave to participate in university approved research overseas be adjusted by setting the decision aside and recrediting the time deducted from the appellant’s leave credits.

191    Finally, I am of the opinion that the appeal in respect of the decision in PSAB 21 of 2010 be dismissed.

MR B DODDS – BOARD MEMBER

192   I have read a draft of the reasons for decision of Smith AP.  I agree with those reasons and have nothing to add.

MR K CHINNERY – BOARD MEMBER

193   I have read a draft of the reasons for decision of Smith AP.  I agree with those reasons and have nothing to add.