APPEAL AGAINST DECISION TO TAKE REMOVAL ACTION ON 24 FEBRUARY 2022

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2022 WAIRC 00746

DELIVERED : TUESDAY, 25 OCTOber 2022

FILE NO. : APPL 11 OF 2022

Appellant

AND

Director General, Department of Justice

Respondent

Catchwords : Industrial Law (WA) – Appeal against the removal under s 106(2) of the Prisons Act 1981 (WA) – Section 99 definition of ‘new evidence’ – Application to rely on documents not contained in the bundles of documents filed under reg 89E – Consideration of ‘new evidence’ – What does ‘taken into account…in making the removal decision’ mean? – Whether a document was ‘new evidence’ – Document’s relevance to appeal – Whether interests of justice require leave to tender new evidence – Whether to extend time to file documents under reg 89E

Legislation : Corruption, Crime and Misconduct Act 2003 (WA)

Industrial Relations Act 1979 (WA) s 26(1)(a), s 26(1)(b)

Industrial Relations Commission Regulations 2005 (WA) reg 89D, reg 89E, reg 89E(2)

Police Act 1892 (WA)

Prisons Act 1981 (WA) s 13(3), s 10B, Part X, s 99, s 101, s 101(4), s 102, s 102(3), s 102(4), s 102(6), s 103(4), s 106, s 106(2), s 107, s 108, s 108(2), s 108(3), s 108(3)(b)(i), s 108(3)(b)(ii), s 108(4), s 109, s 110A

Result : Application dismissed

Representation:

Counsel:

Appellant : Mr C Fordham of counsel

Respondent : Ms E Negus of counsel

Solicitors:

Appellant : Slater & Gordon Lawyers

Respondent : State Solicitor’s Office

Case(s) referred to in reasons:

ACF v Forestry Commission (1988) 19 FCR 127; 79 ALR 685

Australian Unity Property Ltd v City of Busselton [2018] WASCA 38; (2018) 237 LGERA 333

Beverley v The Commissioner of Police [2017] WAIRC 00270; (2017) 97 WAIG 627

Byers v Minister for Corrective Services [2022] WAIRC 00186; (2022) 102 WAIG 252

Frantzen v Director‑General Department of Justice [2022] WAIRC 00050; (2020) 102 WAIG 139

General Nominees Pty Ltd (Atf Family Trust Four) v the Metro Inner‑North Joint Development Assessment Panel [2022] WASC 114

Lee v West Australian Police Force [2021] WAIRC 00481; (2021) 101 WAIG 1294

Marshall v Metropolitan Redevelopment Authority [2015] WASC 226

Metropolitan Water Board v St Marylebone Assessment Committee [1923] 1 KB 86

Parramatta City Council v Hale (1982) 47 LGRA 319

Polizzi v Commissioner of Police [2014] WAIRC 00302; (2014) 94 WAIG 477

Tobacco Institute of Australia v National Health and Medical Research Council [1996] FCA 1150

Reasons for Decision

THE COMMISSION:

1         The appellant, Mr Kevin Said, was formerly a Senior Prison Officer. He was removed from that position following removal action under the loss of confidence provisions contained in Part X of the Prisons Act 1981 (WA). He has appealed the removal decision under that part.

2         By an interlocutory application, Mr Said seeks to rely at the hearing of his appeal on two documents that are not contained in the bundles of documents filed under reg 89E of the Industrial Relations Commission Regulations 2005 (WA).

3         The first document is a transcript of a private examination of another prison officer to Corruption and Crime Commission proceedings. Mr Said submits that this is a document which the decision maker examined and took into account in making the removal decision. The fact that it was not included in the documents filed under reg 89E was a consequence of it not being available to him at the time of filing, being ‘restricted information’ under the Corruption, Crime and Misconduct Act 2003 (WA). In effect, except for the delay in the document becoming available to him, it ought to have been contained in the documents filed under reg 89E of the IRC Regulations, being a document that was contained in the list of documents filed under reg 89D.

4         In the alternative, if the transcript is properly characterised as ‘new evidence’ as that term is used in the Prisons Act, then Mr Said seeks leave to tender it under s 108 of the Prisons Act.

5         The second document is an Incident Report logged by Mr Said in 2016. Mr Said agrees that this document is ‘new evidence’ for the purpose of Part X of the Prisons Act. He seeks leave to tender it on the basis that it is in the interests of justice to grant leave.

6         The respondent, the Director‑General, Department of Justice, opposes orders enabling these two documents to be before the Commission at the hearing of the appeal. He maintains that the transcript is ‘new evidence’, and that neither document meets the test in s 108 for the tender of ‘new evidence’, because neither document is relevant to any issue in the appeal.

7         The determination of the interlocutory application concerning the transcript therefore involves:

(a) The construction of the Prisons Act, in particular, the meaning of ‘examined and taken into account’ in part (a) of the definition of ‘new evidence’;

(b) A factual finding as to what if any use the decision maker made of the transcript in making the removal decision, to determine whether the transcript is or is not ‘new evidence’ as correctly understood;

(c) If the transcript is not ‘new evidence’, whether the Commission should exercise its discretion to extend the time for filing it as a document relied upon under reg 89E; and

(d) If the transcript is ‘new evidence’, whether it is in the interests of justice to grant leave to tender it.

8         Points (c) and (d) above essentially turn on the transcript’s relevance to the issues in the appeal.

9         The determination of the application concerning the Incident Report involves an assessment of whether it is in the interests of justice to grant leave to tender it. Regard must be had to the factors in s 108(4) of the Prisons Act, namely whether Mr Said was aware of the substance of the new evidence before his removal, and whether its substance was contained in a document to which he had reasonable access before the removal. It also involves an assessment of the relevance of the Incident Report to the issues in the appeal.

The construction issue: General principles

10      The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The applicable principles are well‑known, and were summarised in Australian Unity Property Ltd v City of Busselton [2018] WASCA 38; (2018) 237 LGERA 333 as follows (citations omitted):

The first aspect is the imperative to give primacy to the language which the legislating body has chosen to use. As the plurality observed in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

This focus on the statutory text may be seen as an aspect of the rule of law. It recognises and preserves the role of the legislature, acting within constitutional constraints, in identifying the policy which legislation is to pursue by requiring that effect be given to the chosen text. This point was noted by Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation:

The danger that lies in departing from the ordinary meaning of unambiguous provisions is that “it may degrade into mere judicial criticism of the propriety of the acts of the Legislature”... it may lead judges to put their own ideas of justice or social policy in place of the words of the statute.

Additionally, focus on the statutory text facilitates the comprehension of the meaning of legislation by persons whose conduct it regulates. As French CJ observed in Alcan:

The starting point in consideration of the first question is the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and the legislative purpose. That proposition accords with the approach to construction characterised by Gaudron J in Corporate Affairs Commission (NSW) v Yuill (1991) [1991] HCA 28; 172 CLR 319 at [340] as: ‘dictated by elementary considerations of fairness, for, after all, those who are subject to the law's commands are entitled to conduct themselves on the basis that those commands have meaning and effect according to ordinary grammar and usage.’ In so saying, it must be accepted that context and legislative purpose will cast light upon the sense in which the words of the statute are to be read. Context is here used in a wide sense referable, inter alia, to the existing state of the law and the mischief which the statute was intended to remedy.

Prison officer appeals under Part X of the Prisons Act

11      In light of these principles, it is useful to commence the analysis with some observations about the statutory scheme for appeals against removal decisions.

12      Part X, Division 3 of the Prisons Act provides for the removal of prison officers due to loss of confidence in a prison officer’s suitability to continue as a prison officer. In this regard, suitability to continue as a prison officer means suitability having regard to the officer’s integrity, honesty, competence, performance or conduct: s 99 and s 101.

13      Division 3 sets out the processes involved in removal of prison officers. The Chief Executive Officer/Director‑General may provide a notice setting out the grounds for the Notice of Loss of Confidence with an opportunity for the prison officer to make written submissions in relation to that notice under s 102 of the Prisons Act. Following the submission period, the Director‑General must:

(a) decide whether or not to take removal action against the prison officer; and

(b) give the prison officer written notice of the decision (the decision notice): s 102(3) of the Prisons Act.

14      The decision notice must contain the reasons for the decision: s 102(5).

15      ‘Removal action’ is the action of recommending to the Minister that the prison officer be removed under s 13(3) of the of the Prisons Act: s 101.

16      Section 102(4) of the Prisons Act provides:

(4) The chief executive officer must not decide to take removal action against the prison officer unless the chief executive officer —

(a) has taken into account any written submissions received from the prison officer during the submission period; and

(b) still does not have confidence in a prison officer’s suitability to continue as a prison officer.

17      Section 102(6) of the Prisons Act provides:

(6) Except as provided in the regulations, the chief executive officer must, within 7 days after giving the decision notice —

(a) give to the prison officer a copy of any documents that were considered by the chief executive officer in making the decision; and

(b) make available to the prison officer for inspection any other materials that were considered by the chief executive officer in making the decision.

18      A prison officer who is removed as a result of removal action has a right of appeal to the Commission on the ground that it was harsh, oppressive or unfair under s 106.

19      Section 107 of the Prisons Act provides:

107. Proceedings on appeal

(1) On the hearing of an appeal, the WAIRC must proceed in the following manner —

(a) first, it must consider the chief executive officer’s reasons for the removal decision;

(b) second, it must consider the case presented by the appellant as to why the removal decision was harsh, oppressive or unfair;

(c) third, it must consider the case presented by the chief executive officer in answer to the appellant’s case.

(2) The appellant has at all times the burden of establishing that the removal decision was harsh, oppressive or unfair.

(3) Subsection (2) has effect despite any law or practice to the contrary.

(4) Without limiting the matters to which the WAIRC is otherwise required or permitted to have regard in determining the appeal, it must have regard to —

(a) the interests of the appellant; and

(b) the public interest, which is to be taken to include —

(i) the importance of maintaining public confidence in the integrity, honesty, conduct and standard of performance of prison officers; and

(ii) the special nature of the relationship between the chief executive officer and prison officers.

20      Sections 108 and 109 of the Prisons Act are also relevant context. They provide:

108. Leave to tender new evidence on appeal

(1) New evidence cannot be tendered to the WAIRC during a hearing of an appeal unless the WAIRC grants leave under subsection (2) or (3).

(2) The WAIRC may grant the chief executive officer leave to tender new evidence if —

(a) the appellant consents; or

(b) it is satisfied that it is in the interests of justice to do so.

(3) The WAIRC may grant the appellant leave to tender new evidence if —

(a) the chief executive officer consents; or

(b) the WAIRC is satisfied that —

(i) the appellant is likely to be able to use the new evidence to show that the chief executive officer has acted upon wrong or mistaken information; or

(ii) the new evidence might materially have affected the chief executive officer’s removal decision; or

(iii) it is in the interests of justice to do so.

(4) In the exercise of its discretion under subsection (3), the WAIRC must have regard to —

(a) whether or not the appellant was aware of the substance of the new evidence before the appellant’s removal; and

(b) whether or not the substance of the new evidence was contained in a document to which the appellant had reasonable access before the appellant’s removal.

109. Opportunity to consider new evidence

(1) If the chief executive officer is given leave to tender new evidence under section 108(2) —

(a) the WAIRC must give the appellant a reasonable opportunity to consider the new evidence; and

(b) the appellant may, without the leave of the WAIRC, tender new evidence under this section in response to the new evidence tendered by the chief executive officer.

(2) If the appellant is given leave to tender new evidence under section 108(3), the WAIRC must give the chief executive officer a reasonable opportunity to consider the new evidence.

21      ‘New evidence’ is defined in s 99:

new evidence, on an appeal against the removal of a prison officer, means evidence other than evidence of any of the following —

(a) a document or other material that was examined and taken into account by the chief executive officer in making the removal decision;

(b) the notice given under section 102(1);

(c) a written submission made to the chief executive officer by the prison officer under section 102(2);

(d) a decision notice;

(e) a notification of the removal;

22      The approach the Commission is to take in determining appeals from loss of confidence removals was recently set out in Frantzen v Director‑General Department of Justice [2022] WAIRC 00050; (2020) 102 WAIG 139 at [20]‑[23] and restated in Byers v Minister for Corrective Services [2022] WAIRC 00186; (2022) 102 WAIG 252. Relevantly:

(a) the approach under Part X is the same as the approach that is adopted by the Commission to appeals against removals of police officers under the Police Act 1892 (WA).

(b) Ultimately, the test is whether, having regard to the circumstances of a particular case, it was open to the Chief Executive Officer to lose confidence in a prison officer by reason of their integrity, honesty, competence, performance, or conduct.

(c) In determining whether the removal decision was harsh, oppressive or unfair, the Commission is to first determine whether there is a logical and sound basis for the Director‑General to find as he did. The Commission should be attentive to the Director‑General’s reasons, examining them closely in terms of substance and the process by which they were formulated.

(d) The grounds of appeal mark out the scope of the issues to be determined.

23      An appeal under Part X is limited in scope and it is not a de novo proceeding. The parties are to consider the respondent’s reasons for removal and the materials relied upon for the removal and advance their respective cases based upon it: Lee at [11].

24      Consistent with this general scheme, Part X regulates the use of ‘new evidence’ in appeals: Lee at [14].

What does ‘taken into account…in making the removal decision’ mean?

25      The constructional choice presented by the parties in this application is essentially whether ‘taken into account…in making the removal decision’ in the definition of ‘new evidence’ means:

(a) considered as part of the process that led to the removal decision, including intermediate findings, acts and procedural determinations (the broad approach); or

(b) considered as an operative factor in the removal decision, that is, a basis for the decision (the narrow approach).

26      Mr Said’s counsel submitted that matters considered in the Notice of Loss of Confidence, as a step in the process of taking removal action, are matters that are taken into account in making the removal decision. Documents which are before the decision‑maker and weighed in the process are therefore documents that are taken into account, even if they are not fundamental to the ultimate decision.

27      On the other hand, the Director‑General submits that only those documents which are fundamental elements in the decision are ‘taken into account’, as correctly construed.

28      In support of a broad construction, counsel for Mr Said points to the interaction between the definition of ‘new evidence’ and the process which follows leave being granted to tender it, under s 109 of the Prisons Act.

29      Counsel for the Director‑General relied upon notions of what it is to ‘take into account’ a relevant (or irrelevant) matter, derived from decisions concerning judicial review of administrative actions. Counsel directed the Commission’s attention to Burchett J’s comments in ACF v Forestry Commission (1988) 19 FCR 127; 79 ALR 685, an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth), to the effect that a decision maker commits no error by considering a factor, and rejecting it, so that it played no part in the decision and did not affect the decision: a decision maker ‘may pick up a red herring, turn it over to examine it, and then put it down, so long as [s]he does not allow it to affect [her] his decision’.

30      The Director‑General posits that the logical extension is that considering a matter, but then rejecting it, means it has not been taken into account. It should be noted that Burchett J does not expressly consider or state whether such process means the matter has not been taken into account. His Honour’s point is simply that administrative error by taking into account an irrelevant matter has not occurred.

31      The Director‑General also relies on Parramatta City Council v Hale (1982) 47 LGRA 319 where Moffitt P stated at 339:

The obligation imposed by s. 90(1) is direct and specific. First it should be observed that s. 90(1) provides that the consent authority “shall take into consideration” such of the matters in (a) to (s) as are relevant. It was put to us that the authority could consider relevant matters and reject them. An assertion in these terms has an ambiguity likely to produce error. If the submission means that it is sufficient that the authority advert to a relevant matter and that it can then discard it, the submission must be rejected, because the requirement is that the matter shall be taken into consideration. It may well be that the council fell into this very error, which the submission made on its behalf seems to suggest, namely that having adverted to what was said concerning the environmental matters in the report, it discarded some matters without taking them into consideration. The obligation imposed by s. 90(1) is defined by the positive terms of the subjection, so that a gloss upon them is neither necessary nor desirable.

32      Again, the Director‑General says that the reasoning applied is that averting to a matter, and then discarding it for the purpose of making the decision, means that the matter is not ‘take[n] into consideration’.

33      In Parammatta City Council, the learned President was considering the requirements of s 90 of the Environmental Planning and Assessment Act 1979 (NSW). The section provided that when determining a development application, the council ‘shall take into consideration such of the following matters as are of relevance to the development the subject of the development application:’ A list of potentially relevant matters followed.

34      The statutory formula considered in Parammatta City Council is starkly different to that which empowers the Director‑General to take removal action. It is difficult to derive any assistance from it, in resolving the question of what ‘taken into account’ means when used in Part X of the Prisons Act.

35      The phrase ‘take into account’ is synonymous with ‘have regard to’. The Macquarie Dictionary contains a definition of ‘regard’ as meaning ‘to take into account; consider’.

36      The seminal statement on the words ‘take into account’ is that of Lord Hewart CJ in Metropolitan Water Board v St Marylebone Assessment Committee [1923] 1 KB 86 at 99:

…It is quite evident that confusion has arisen in the past between the ambiguous meanings of the word “account.” “To take into account” in the sense of including figures in a mathematical calculation, is one thing; “to take into account” in the sense of paying attention to a matter in the course of an intellectual process is quite another thing…

37      Within these observations about the meaning of ‘take into account’ there remains scope for different formula. The choice between those different formula remains a matter of statutory construction. In some statutory contexts, taking a matter into account will mean giving some consideration to it. In other contexts, it will mean giving the matter weight as a fundamental element in the ultimate decision. As Pritchard J stated in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [107]‑[109]:

The word ‘regard’, when used as a verb, is synonymous with ‘consider’ and ‘take into account’. In other words, the phrase ‘have regard to’ (or ‘have due regard for’) requires the MRA to take into account, or give consideration to, the matters listed. In my view, s 66(1) of the MRA Act and cl 5.22 of the CPR Scheme together identify the relevant considerations which the MRA is required to take into account in considering a development application.

The question which then arises is the extent to which the MRA is required to give consideration to those matters. There are divergent authorities about the content of a requirement for a decisionmaker to take into account relevant considerations when exercising a statutory power. One line of authority is to the effect that provided the relevant matter is given some consideration, the duty is discharged. The alternative line of authority, which has received support in this State, is to the effect that the requirement to take into account a relevant consideration is a requirement to give proper, genuine and realistic consideration to the relevant matter.

However, in every case, the content of an obligation on a decisionmaker to take into account relevant considerations ‑ or, as in this case, to ‘have regard to’ or to ‘have due regard for’ particular matters ‑ must be determined by a process of statutory interpretation. That process requires that the words used in the statute be construed within their statutory context.

38      In Tobacco Institute of Australia v National Health and Medical Research Council [1996] FCA 1150, Finn J observed (emphasis added):

…It is the case that the usual context in which courts in this country have construed the formula ‘have regard to’ is one where, as part of a decision making process, regard is to be had to particular considerations or matters that are themselves of a substantive kind, eg particular criteria, effects, etc: see eg Australian Capital Television Pty Ltd v Minister for Transport and Communications (1989) 86 ALR 119.

In cases of that variety, the ‘have regard to’ formula has been interpreted consistently as requiring that the decision maker subject to the formula must ‘take into account’ the matter or consideration to which regard is to be had, and must ‘give weight to’ that matter or consideration ‘as a fundamental element in making his determination’: Re R J D Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 53 ALJR 552 at 554 per Mason J; see also R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327 at 333, 338; Queensland Medical Laboratory v Blewett [1988] FCA 423; (1988) 84 ALR 615 at 623.

Distinctively, in the present case, s12(3) of the [National Health and Medical Research Council Act 1992 (Cth)] does not oblige the NH&MRC to have regard to a particular matter as a consideration relevant to the substance of its decision and of which account must be taken for that reason. Rather, it must have regard to the submissions received irrespective of whether, in the end, they are found to contain matter relevant at all to the decision to be taken. This obligation is a central element in facilitating the community’s participation in the NH&MRC’s policy development process.

Viewed in this light the import of the formula must be somewhat different from that indicated by Mason J in Sean Investments, above. Given the purpose to be served by the consultation process, I would adapt what Mason J said in Sean Investments so that the obligation to have regard to submissions received required the NH&MRC, in preparing the draft recommendation, to take them into account and to give positive consideration to their contents as a fundamental element in its decision making.

By way of elaboration, ‘positive consideration’ of a submission (i) would preclude the adoption of an a priori criterion which itself excluded a part or parts of that submission from actual consideration; and (ii) would involve ‘an active intellectual process directed at that ... submission’: Tickner v Chapman [1995] FCA 1726; (1995) 57 FCR 451 at 462 per Black CJ.

39      Justice Finn’s observations are pertinent because the administrative decision‑making scheme his Honour was considering was, like the Director‑General’s power in this case, one where there was no obligation to have regard to particular factors other than the affected parties’ submissions.

40      More recently, in General Nominees Pty Ltd (Atf Family Trust Four) v the Metro Inner‑North Joint Development Assessment Panel [2022] WASC 114, Tottle J observed at [85] that a statutory requirement to give ‘due regard to’ to listed matters requires that a decision‑maker must give ‘active or positive consideration to the matters listed, to the extent that they apply in any particular case’, but may be something less than a requirement that a decision‑maker must apply or act in compliance with the matters listed.

41      Returning to the text and context of the Prisons Act, then, we acknowledge that there are competing indications of the legislature’s intent.

42      Favouring a narrow construction of the phrase ‘taken into account’, the definition requires the document or material to be both examined and taken into account. Taking into account a document or material must therefore be something additional to merely examining it.

43      The limited nature of Part X appeals, and the requirement of s 102(5) to give reasons for a removal decision, also provide support for the narrow approach.

44      We note to the use of the word ‘considered’ in s 102(6), rather than ‘taken into account’, could indicate a deliberate distinction is intended between the two phrases.

45      However, the more compelling textual considerations are those which favour a broad construction of ‘taken into account’.

46      Aside from the definition itself, the term ‘new evidence’ is only used in Division 3, Subdivision 3 concerning appeals against removal decisions. This indicates that ‘new evidence’ is evidence which comes into play at the appeal stage of the Part X process, rather than in the investigation and loss of confidence stages of the process. In this structure, there is a chronological ‘line in the sand’. This reveals an intention to distinguish between documents and information in play before the decision was made and documents or matters coming into play after the decision is made. This distinction was alluded to in Polizzi at [10].

47      Second, as signified earlier, the ambit of the decision maker’s discretion is wide. There is no prescription as to what criteria the decision maker is to apply in forming the removal decision: no list of factors which might justify or mitigate a loss of confidence. The only matter which the decision maker is bound to have regard to, or take into account, in making the decision, is the written submissions received from the prison officer during the submission period: s 103(4). The decision maker is not compelled to give any particular weight to the submissions made by the prison officer.

48      The Director‑General is not required to reach his or her decision after considering far reaching or comprehensive information that might possibly be or become available. The Director‑General may conduct an investigation to determine a prison officer’s suitability to continue as a prison officer: s 101(4). Arriving at a conclusion as to loss of confidence necessarily permits the Director‑General to make value judgments around concepts of integrity, honesty, competence, performance, conduct and the public interest.

49      The very process of making a removal decision, by its nature, involves weighing and arriving at a decision by a process of synthesis. For instance, a mitigating factor might be genuinely and carefully weighed in favour of a prison officer, but ultimately not sway the Director‑General against taking removal action. The mitigating factor’s ultimate rejection does not diminish its involvement in the decision‑making process, so that it shouldn’t be before the Commission on appeal.

50      The nature of the decision‑making power is such that, by taking something into account, the decision maker need not rely upon it positively, or act in compliance with it. The judgement and estimation involved in a removal decision does not involve a tallying or tick box exercise, where all potentially relevant factors fall for or against the removal decision.

51      In other words, the nature of the decision‑making process is such that many relevant factors may be part of the decision‑making process yet not determinative of the ultimate decision, being the exercise of a wide discretion. It follows that the intended scope of what are matters ‘examined and taken into account’ is wide. The Director‑General can consider something, but ultimately reject it, as part of the process of ‘making the removal decision’.

52      Third, the fact that the other exclusions contained in subpars (b), (c), (d) and (e) of the definition are documents that evidence steps in the process of removal, rather than evidence which might operate to positively inform the ultimate removal decision, also supports a view that what is intended to be captured by the exclusions are documents that were part of the process leading to the removal action, rather than documents that were relied upon as operative to the decision. For example, subpar (b) refers to the notice of loss of confidence. This is a document that evidences the process leading to the removal decision, not a document which could form part of the operative reasons for the removal decision.

53      Fourth, the phrase ‘take into account’ is also used in reference to the obligation on the Director‑General in relation to the written submissions made by the prison officer under s 102(4). It is self‑evident that in this context, ‘take into account’ does not mean to use those submissions as positively or operatively determinative. The Director‑General is able to reject a prison officer’s submissions after considering them, so that the submissions do not form part of the reasons for a removal decision. The words ‘taken into account’ in s 102(4) must mean to consider and give any weight or no weight to the submissions as the Director‑General thinks fit.

54      Most compellingly, when one puts ‘new evidence’ in its operative context, that is, in ss 108, 109 and 110A, it becomes apparent documents or materials which the Director‑General considered in the course of the loss of confidence process cannot be intended to be ‘new evidence’.

55      An application to tender new evidence can be made by either the Director‑General or the prison officer. The criteria for granting leave in each case is different. If the Director‑General is applying, there are only two criteria under s 108(2):

(2) The WAIRC may grant the chief executive officer leave to tender new evidence if —

(a) the appellant consents; or

(b) it is satisfied that it is in the interests of justice to do so.

56      If the prison officer is applying, the criteria under s 108(3) are:

(3) The WAIRC may grant the appellant leave to tender new evidence if —

(a) the chief executive officer consents; or

(b) the WAIRC is satisfied that:

(i) the appellant is likely to be able to use the new evidence to show that the chief executive officer has acted upon wrong or mistaken information;

(ii) the new evidence might materially have affected the chief executive officer’s removal decision; or

(iii) it is in the interests of justice to do so.

57      If ‘new evidence’ is construed to include documents that were before the Director-General, and considered but not relied upon, then the criteria in s 108(3)(b)(i) and (ii) are redundant and have no scope to operate. If the Director‑General had considered particular evidence, but the removal decision was made, it will be practically impossible to show that the evidence might materially have affected the Director‑General’s decision. Similarly, such evidence, assuming it is relied upon as correct information, will never qualify as showing the Director‑General acted upon wrong or mistaken information.

58      Further, s 108(4), which applies only to a prison officer’s application for leave to tender new evidence, requires the Commission to have regard to whether or not the prison officer was aware of the substance of the new evidence before their removal, and whether or not the substance of the new evidence was contained in a document to which the appellant had reasonable access before the appellant’s removal.

59      These matters are specified as relevant factors consistent with the purpose of the scheme which is to vest the Director‑General with authority to make a removal decision and limit the role of the Commission on appeal. In other words, to ensure that prison officers make the most of their opportunity to make submissions to the Director‑General, rather than leave the substance of their response for their appeal.

60      Documents which formed part of an investigation, and which were considered by the Director‑General, even if ultimately given no weight, should ordinarily be documents which the prison officer was aware of before their removal. If such documents are ‘new evidence’, prison officers will bear a higher burden in any application for leave to tender them on appeal, for no apparent reason related to the purpose of Part X.

61      Section 109 provides that if leave is granted to a party to tender new evidence, then the other party must be given a reasonable opportunity to consider the new evidence, and tender new evidence in response. If this applied to documents and material that was before the Director‑General in the process of making a removal decision, the purpose of ensuring the removal process itself is the primary venue for determining the merits of a loss of confidence process, is undermined. It is not clear how the overall purposes of Part X are achieved by giving the parties’ what would in effect be a second bite at the cherry, on the same information that was previously available to them. Indeed, this would operate perversely, particularly if the Director‑General is required to be given an opportunity to consider evidence that was already before them.

62      Even greater absurdity would be created in the application of s 110A. It contemplates that the Director‑General might revoke a removal decision or reformulate their reasons upon leave being granted to a prison officer to tender new evidence. Obviously, such provisions would be unnecessary if ‘new evidence’ encompasses evidence which was before the Director‑General before they made a removal decision.

63      Although there are clearly competing textual and contextual considerations, the most compelling considerations are these latter ones, being found in the core of how the definition of ‘new evidence’ operates in the scheme of an appeal. This ultimately leads me to the conclusion that the meaning of ‘taken into account…in making the removal decision’ means considered as a step in the process that led to the removal action. The phrase does not involve the narrower requirement that the evidence be an operative factor or basis in the ultimate decision.

64      The result is that documents and materials that are both examined by the Director‑General, and considered by them as a step in the process leading to the removal action, will be within the exclusion in subpar (a) of the definition of ‘new evidence’ and therefore outside the scope of what is ‘new evidence’.

Is the transcript ‘new evidence’?

65      Some background details are necessary.

66      The relevant allegations that formed the basis of the Notice of Loss of Confidence can be summarised as:

(a) That Mr Said misled the Corruption and Crime Commission about when he first became aware of an incident that occurred on 12 November 2018 involving the assault of a prisoner and cover‑up of the assault by prison‑officers involved in it. Mr Said maintained in his evidence to the CCC that he did not know about the incident until after prison officers were suspended in 2020 (Ground 5).

(b) That Mr Said failed to report misconduct which he knew about (in other words, aided in the cover‑up of misconduct) (Ground 6).

(c) That Mr Said counselled other prison officers who had been stood down over the November 2018 incident in a manner which undermined the integrity of the investigation and perpetuated a toxic culture and corruption within prisons (Grounds 1, 2, 3, 4).

67      The allegations were contained in a Notice of Loss of Confidence dated 5 May 2021, which was served on Mr Said on 12 May 2021 together with a summary of investigation, an inspection list which listed the transcript, and copies of all documents in the inspection list, other than the transcript. The inspection list claimed privilege against the transcript’s production. Mr Said was provided with information to enable him to inspect the transcript and take notes.

68      The witness whose evidence is recorded in the transcript said, in their evidence to the CCC, that they told Mr Said about the November 2018 incident in the days following its occurrence. The Notice of Loss of Confidence and summary of investigation considered the transcript to be relevant to loss of confidence in two ways. First, as evidence of the date that Mr Said first became aware of the incident, being a date that was earlier than he stated in his evidence to the CCC. On this point, the investigation also referred to evidence that Mr Said accessed the Total Offender Management Solution (TOMS) database records for the incident four times in the eight days following the incident.

69      Second, the evidence was relevant to the allegation that the appellant failed to comply with his obligation to report misconduct. This allegation stands on a finding that Mr Said knew of the misconduct. The summary of investigation and the Notice of Loss of Confidence concluded that Mr Said was obliged to, and did not, report suspected misconduct at two points in time, being:

(a) in the days shortly after 12 November 2018, when he is alleged to have become aware of the Incident and cover up; and

(b) in August 2020, after the five officers involved in the incident and cover up were stood down and he spoke to some of them directly.

70      In his submissions in response to the allegations, Mr Said generally denied the truth of the witness’s evidence about the witness’s discussions with him. He made submissions as to why the witness’s evidence should be treated as not credible in relation to those matters. He also pointed out that the witness’s evidence was not put to him when he gave evidence to the CCC, depriving him of a fair opportunity to fully explain his version of events.

71      The decision notice recording the reasons for Director‑General’s removal decision stated, relevantly (emphasis added):

…

5. While I have carefully considered your Written Submission, I have decided to take removal action against you on the grounds set out in the NLOC.

6. This correspondence constitutes the Decision Notice for the purposes of section 102(3) of the Act and explains the reasons for my decision.

7. You have already been provided with all documents I have taken into account in making this decision (namely, the Summary of Investigation and all documents in the List of Documents).

…

Ground 5

…

30. The second ground you raise in your response is that it was not put to you in your examination before the Commission that you had a discussion about the events of 12 November 2018 and you therefore did not have the opportunity to respond to this in full. While I consider [the witness’s] testimony on this issue to be credible, I also accept that the issue could have been more fully explored with you in context during your examination.

31. Therefore, while Ground 4 stands, I am relying only on the evidence relating to your TOMS access and have not taken into account nor relied on in my final decision the original assertion that you acquired the relevant knowledge from a conversation with [the witness].

Ground 6

…

34. I note that within your Written Submission you strongly deny having any conversation with [the witness] following the events of 12 November 2018. For the reasons set out in paragraph 30 of this Decision Notice, in relation to Ground 6 I have not taken into account nor relied on in my final decision the original assertion that you acquired the relevant knowledge from a conversation with [the witness].

35. Instead, my loss of confidence on this ground is based only on one point in time: that, following the officers’ receipt of the correspondence suspending them on 14 August 2020, you had sufficient grounds to reasonably suspect that misconduct and potentially criminal conduct had taken place and you then had an obligation to report it.

…

72      The Director‑General’s reasons for the removal decision are set out comprehensively and transparently in the decision notice. There is no reason for the Commission to look beyond the decision notice, or to draw any inferences that particular information was or was not considered or taken into account in making the decision. The Commission was not invited to do so.

73      It is clear from the decision notice that the Director‑General was aware of the existence of the transcript, had been provided with the transcript and had considered the transcript. Indeed, the Director‑General formed the view that the witness’s evidence as contained in the transcript was ‘credible’.

74      It is also clear that the transcript was not relied upon by the Director‑General as justification for the decision to take removal action. Indeed, as to Ground 6, the decision to confine the allegation to the later point in time meant that the transcript became irrelevant to the allegation. In other words, while the Director‑General had regard to the transcript, he gave it no weight and it formed no part of the reasons for making the removal decision.

75      Nevertheless, because the transcript was examined by the Director‑General, and was considered by him in the process leading to the removal action, including in his assessment of the grounds for the Notice of Loss of Confidence and the Investigation Report and Mr Said’s submissions, it qualifies as a document which falls within the exclusion in subpar (a) of the definition of ‘new evidence’ set out at s 99. It is therefore not ‘new evidence’.

Determining the application in relation to the transcript

76      As a consequence, Mr Said is not required to seek leave under s 108 to tender the transcript, nor will the processes set out in ss 109 and 110A be triggered if Mr Said was to rely upon it in the hearing of the appeal.

77      However, in order for Mr Said to rely upon the document he requires a direction allowing him to file the transcript as a document which he relies upon in his case, outside the time specified in reg 89E(2) of the IRC Regulations.

78      Reg 89E of the IRC Regulations is in the following terms:

89E. Documents relied on to be filed and served

(1) Except as otherwise directed by the Commission, within 14 days of the service on the appellant of the documents referred to in regulation 89D —

(a) the chief executive officer must file in the office of the Registrar 3 copies of every document relied upon by the chief executive officer in the appellant’s case; and

(b) the Registrar must serve a copy of those documents on the appellant.

(2) Except as otherwise directed by the Commission, within 14 days of the service on the appellant of all of the documents referred to in subregulation (1) —

(a) the appellant must file in the office of the Registrar 3 copies of every document relied upon by the appellant in the appellant’s case; and

(b) the Registrar must serve a copy of those documents on the chief executive officer.

(3) If, under an agreement between the chief executive officer and the appellant, one party files a document on behalf of both parties, the requirements under this regulation in relation to that document are taken to have been satisfied.

79      The regulation confers a discretion on the Commission. There is nothing in the regulation itself which specifies how the discretion should be exercised, so the Commission must be guided by the factors set out in s 26(1)(a) and (b) of the Industrial Relations Act 1979 (WA): see s 10B of the Prisons Act.

80      Acting according to the substantial merits of the case requires consideration of whether the transcript is relevant to the appeal. It would not be acting in accordance with the substantial merits of the case to extend the prescribed time for filing a document, if that document will play no part in assisting the Commission to determine any issue in the appeal.

81      Mr Said’s counsel submits that the transcript is relevant because it provides context to excerpts from the evidence Mr Said gave to the CCC in public hearings, reproduced in the Notice of Loss of Confidence and summary of investigation. Counsel did not suggest that Mr Said would inevitably or certainly tender the transcript, but seeks its inclusion for the purpose of reg 89E of the IRC Regulations in case it is necessary to refer to it because the excerpts from Mr Said’s evidence to the CCC is before the Commission. Counsel submitted that the test for relevance was ‘lower’ for the purpose of reg 89E documents, or at the preliminary stage, but did not otherwise articulate how the document was relevant to the issues in the appeal.

82      The grounds of appeal as specified in the notice of appeal filed under s 106(2) mark out the scope of the issues to be determined: Beverley at [43]‑[44]. As s 106(2) refers to the removal decision, the removal decision also plays a part in setting out the scope of the issues in the appeal.

83      Paragraphs 17 to 26 of the appellant’s grounds attached to the Notice of Appeal set out the substance of Mr Said’s grounds of appeal. Relevant to the Grounds 5 and 6 in the decision notice they are:

…

Unjust

18. Mr Said denies that he engaged in misconduct of the type alleged by any of the allegations.

…

2) In relation to ground 5, Mr Said could not, as at November 2020, recall the details of events occurring at Hakea Prison on 12 November 2018. It would have been disingenuous for Mr Said to have given evidence to the contrary.

Computer records taken from 2 years’ prior provide no proof of Mr Said's current state of knowledge.

3) In relation to ground 6, the Director General has inferred that Mr Said had specific knowledge of misconduct, and that he then knowingly failed to make a report about what he knew. The inferences drawn in relation to Mr Said’s knowledge were not supported by reasonable evidence and are denied.

…

Disciplinary action was disproportionate

25. The assessment as to the seriousness of the conduct alleged against Mr Said was improperly infected by particular assertions made during CCC examinations.

26. The Appellant further contends that significant mitigating issues were not given proper consideration.

…

84      The issues raised by these grounds, read with the decision notice, are:

(a) Whether it was reasonably open to the Director‑General to find that Mr Said first knew about the November 2018 incident, based on Mr Said’s TOMS accesses.

(b) If Mr Said first knew about the November 2018 incident, whether it was open to the Director‑General, based on Mr Said’s TOMS accesses, to find that he knowingly gave false evidence to the CCC that he did not know about the November 2018 incident.

(c) Whether it was reasonably open to the Director‑General to find that from 14 August 2020, Mr Said had sufficient grounds to reasonably suspect other prison officers had engaged in misconduct in relation to the November 2018 incident.

85      The transcript records the witness as giving evidence of a discussion he had with Mr Said about the November 2018 incident in the days following it. There are no other parts of the transcript which have been referred to in any of:

(a) the decision notice;

(b) the Investigation Report;

(c) Mr Said’s submissions to the Director‑General;

(d) Mr Said’s Notice of Appeal or grounds of appeal; or

(e) Mr Said’s submission in this application.

86      The relevant factual findings on which the removal decision was based were not made on the basis of evidence contained in the transcript. Indeed, Ground 6 concerns a later point in time than the evidence in the transcript relates to.

87      The transcript is not relevant to the issues in the appeal. Accordingly, there is no justification for the Commission to exercise its discretion to allow its late filing.

Application for leave to tender new evidence ‑ The Incident Report

Was Mr Said aware of the substance of the Incident Report before his removal?

88      The Incident Report is a Department of Corrections Incident Description Report recorded on Hakea Prisons’ TOMS database. It is for an incident occurring on 12 January 2016 and was completed by Mr Said. It describes a Code Red in Unit 7 involving a prisoner who barricaded himself in a dayroom. Mr Said talked with the prisoner, to diffuse a crisis involving the potential for self‑harm or suicide. The incident culminated in Mr Said having to call for assistance because the prisoner proceeded to hang himself.

89      Mr Said did not refer to this event, nor to the Incident Report, in his submissions to the Director‑General. However, there is no suggestion that he was not aware of the substance of the Incident Report. The inference can reasonably be drawn that he was aware of its substance. That inference is compelled by the fact that he completed the Incident Report, the incident itself was of such seriousness and consequence that it must have remained starkly in Mr Said’s mind. Mr Said seeks to rely on it precisely to make the point that his involvement in the incident had heightened his inclination to take the risk of self‑harm and suicide seriously.

90      Mr Said concedes that the Incident Report was ‘able to be accessed and considered’ by the Director‑General at all material times. However, neither Mr Said nor the Director‑General addressed the Commission, or advanced evidence of, whether Mr Said had reasonable access to the Incident Report (via TOMS) before his removal. In the absence of any evidence or suggestion to the contrary, it is safe to infer that Mr Said did not request access to TOMS for the purpose of obtaining a copy of the Incident Report. In light of Mr Said’s concession that the report was available to the Director‑General, we also infer that the Director‑General would have made the Incident Report available to Mr Said for the purpose of responding to the Notice of Loss of Confidence had it been sought.

91      These matters weigh against the grant of leave.

Is it in the interests of justice to grant leave to tender the Incident Report?

92      Mr Said’s counsel submits that in making the removal decision, the Director‑General was ‘unreasonably dismissive’ of Mr Said’s explanations of his genuine welfare concerns for the prison officers to whom his comments the subject of the allegations were addressed. He says the Incident Report provides important and relevant contextual evidence as to Mr Said’s state of mind when he made the statements which are the subject of the allegations against him.

93      It is said that the Incident Report might materially have affected the way that the Director‑General assessed Mr Said’s words and actions.

94      Mr Said’s counsel did not seek to rely on the Incident Report to show that Mr Said had some greater sensitivity to the risks of self‑harm and suicide in prisons. Rather, it goes to the veracity of Mr Said’s explanation that the statements he made were for the purpose of lifting the spirits of his co‑workers:

FORDHAM, MR: Well, it relates to the gravity that ‑ or the weight that should be given to Mr Said’s explanation, because the Director General has not placed much weight on it. And we say it’s a very serious matter, and we say that report highlights why it's serious, and why it's serious, in particular, to Mr Said ‑ not that he has a particular sensitivity to it, but he doesn’t ‑ his experience with it means that it's not going to be simply something or it's less likely to be something that’s going to be said as a glib excuse.

Because it’s ‑ the way that it's been taken by the Director‑General seems to be that it’s been disregarded as an excuse, so simply a glib explanation to say, ‘Well, I was worried about him ‑ I was worried about his welfare’. And the response in the decision notice seems to say, ‘Well, I'm not satisfied that that's the case, I'm not really satisfied that you had concerns or that those concerns would have warranted you making the type of statement that you did’. He accepted that managing such risks was a core part of working in the prisons environment. However, he said that the Decision Notice demonstrated that the Director‑General treated Mr Said’s concerns as ‘glib explanations.’

95      When asked to identify which parts of the decision notice indicated the Director‑General was dismissive of Mr Said’s explanations, counsel pointed to the following statements in the decision notice:

…

12. …The statements were characterized in the NLOC as demonstrating that you were intentionally providing the advice to undermine the investigation…

…

18. I do note your explanation that you made these statements to this particular person as a form of support to him.

19. I am unpersuaded that your reference to ‘providing support lessens [the] significance of your comments and I continue to have lost confidence in you on this ground.

20. Your response to this Ground does not add anything to the information that is already before me based on your evidence before the Commission. The NLOC already sets out why my concerns are not lessened by your attempt to explain your conduct as using humour or offering ‘welfare support’ to the officers.

…

22. Your response to this ground is that by remaining ‘staunch’, you meant continuing to support an officer “unless that person has been found guilty”. You further add that you would report and disown an officer immediately if you found out that they had mistreated other staff or prisoners.

…

24. However, the full context in which you made these statements is set out in the NLOC. I remain persuaded that you were discussing the scrutiny of past instances of the use of force against prisoners and your comments reflect an intention to undermine the integrity and accountability systems that are put in place by the Department to monitor use of force incidents and potential misconduct.

…

96      As reference is made in the decision notice to the Notice of Loss of Confidence, we have also paid close attention to the Notice of Loss of Confidence, in particular pars 38, 47‑51 and 60.

97      The Director‑General’s reasons read with the Notice of Loss of Confidence do not reveal that he was dismissive of Mr Said’s welfare concerns. Nowhere is there any indication that the Director‑General formed a view as to Mr Said’s state of mind concerning a desire to manage welfare risks. Rather, the Director‑General did not accept that there is a rational or reasonable link between having a genuine and reasonable concern about a prison officer’s welfare and such concern justifying the statements that Mr Said made to those prison officers. That is, there is no finding that Mr Said did not reasonably have welfare concerns. The Director-General simply reasoned that holding such welfare concerns provided no excuse for making the statements.

98      Accordingly, Mr Said’s grounds of appeal are not advanced by the Incident Report and the interests of justice do not require that Mr Said be given leave to tender it.

99      The application should be dismissed.

NOTE: [41], [44] and [90] amended by Corrigendum issued 26 October 2022 ([2022] WAIRC 00748).