2013 WAIRC 00152
APPEAL AGAINST A DECISION GIVEN ON 5 APRIL 2012

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2013 WAIRC 00152

CORAM
: PUBLIC SERVICE APPEAL BOARD
THE HONOURABLE J H SMITH, ACTING PRESIDENT - CHAIRMAN
MS B CONWAY - BOARD MEMBER
MR E ISAILOVIC - BOARD MEMBER

HEARD
:
THURSDAY, 22 NOVEMBER 2012

DELIVERED : FRIDAY, 22 MARCH 2013

FILE NO. : PSAB 7 OF 2012

BETWEEN
:
GLENN ROSS
Appellant

AND

PETER CONRAN DIRECTOR GENERAL, DEPT OF THE PREMIER & CABINET
Respondent

Catchwords : Industrial Law (WA) - Public Service Appeal Board - application to strike out appeal against a decision to commence an investigation under s 81(2) of the Public Sector Management Act 1994 (WA) - whether the respondent engaged in a de facto investigation contrary to s 81(2) - whether respondent can only direct an employee to investigate an alleged breach of discipline under s 81(2) - whether a direction to investigate must be effected by a formal delgation - are the matters sought to be reviewed by the appellant in this appeal an attempt to relitigate matters determined in PSAB 21 of 2010 - appeal not out of time - no investigation commenced prior to direction given by the respondent to investigate - a direction to investigate under s 81(2) not a delegation of the power to investigate - investigator not required to be an employee of the respondent - rules of procedural fairness do not apply to steps to initiate an investigation - pleas of res judicata and issue estoppel not made out - respondent had reasonable grounds to direct an investigation - no merit in issues the appellant seeks to raise that are matters that relate to an interpretation of a provision of the Public Sector Management Act
Legislation : Industrial Relations Act 1979 (WA) s 27(1)(a), s 27(1)(a)(ii), s 80I, s 80I(1), s 80I(1)(a);
Public Sector Management Act 1994 (WA) s 7, s 8, s 9, s 33, pt 3, s 64, s 66, pt 5 div 3, s 80, s 81, s 81(1), s 81(2), s 81(2)(a), s 81(3), s 82(2), s 83, s 83(1), s 83(2), s 86, s 86(2), s 86(3), s 90, s 102, s 102(1), s 102(1)(b), s 102(1)(c), s 102(1)(d), s 102(1)(e);
Public Sector Management (General) Regulations 1994 (WA) reg 15, reg 16;
Public Sector Reform Act 2010 (WA) pt 3, sch 8 item 2(1);
Interpretation Act 1984 (WA) s 63;
Corruption and Crime Commission Act 2003 (WA) s 180(3);
Administrative Decisions (Judicial Review) Act 1977 (Cth).
Result : Appeal dismissed
REPRESENTATION:

APPELLANT : MR G ROSS, IN PERSON
RESPONDENT : MR R J ANDRETICH (OF COUNSEL)
Solicitors:
RESPONDENT : STATE SOLICITOR'S OFFICE

Case(s) referred to in reasons:
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Allina Pty Ltd v Federal Commissioner of Taxation (1991) 28 FCR 203, 212; (1991) 99 ALR 295
Builders' Registration Board of Queensland v Rauber (1983) 47 ALR 55
Civil Service Association of Western Australia Inc v Director General of Department for Community Development [2002] WASCA 241; (2002) 82 WAIG 2845
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Cornall v AB (A Solicitor) [1995] 1 VR 372
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Edelsten v Health Insurance Commission (1990) 27 FCR 56
Knight v Commissioner of Police [2011] WASC 93
Mann v Employing Authority, Government Employees Superannuation Board [2008] WAIRC 00044; (2008) 88 WAIG 131
Palermo v Rosenthal [2011] WAIRC 00069; (2011) 91 WAIG 129
Ramsay v Pigram (1968) 118 CLR 271
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Ross v Conran, Director General Dept of the Premier and Cabinet [2011] WAIRC 00955; (2011) 91 WAIG 2261
Ross v Conran, Director General, Dept of the Premier and Cabinet [2011] WAIRC 01041; (2011) 91 WAIG 2408
S v The Director-General, Department of Racing, Gaming and Liquor [2012] WAIRC 00700; (2012) 92 WAIG 1630
State Government Insurance Commission v Johnson (1997) 77 WAIG 2169
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
The Civil Service Association of Western Australia Inc v Commissioner Corruption and Crime Commission [2008] WAIRC 01511; (2008) 89 WAIG 4
The Civil Service Association of Western Australia Inc v Director General, Department of Education and Training [2008] WAIRC 01722; (2008) 89 WAIG 220
The Medical Board of Queensland v Byrne (1958) 100 CLR 582
Case(s) also cited:
Baker v Campbell (1983) 153 CLR 52
Kioa v West (1985) 159 CLR 550
Liquor, Hospitality and Miscellaneous Union, Western Australian Branch v The Director General, Department of Education and Training (2010) 90 WAIG 1517
Sorby v The Commonwealth (1983) 152 CLR 281


Reasons for Decision
SMITH AP
Background
1 The appellant filed an appeal to the Public Service Appeal Board (the Board) pursuant to s 80I(1)(a) of the Industrial Relations Act 1979 (WA) (the Act). The appeal is against a decision of the respondent in relation to an interpretation of a provision of the Public Sector Management Act 1994 (WA) (the PSM Act), concerning the conditions of public service officers. Although the notice of appeal is not drafted with a great extent of clarity, it is apparent from the appellant's submissions that the decision in relation to which an interpretation is sought is a decision made by the respondent on 26 March 2012 notifying the appellant that he, the respondent, had appointed Mr Joe Baskwell from Australia Wide Investigations Pty Ltd to conduct an investigation into a suspected breach of discipline in accordance with s 81(2) of the PSM Act and the Public Sector Management (General) Regulations 1994 (the PSM Regulations): exhibit 2, GR 30. The disciplinary investigation instituted by the respondent was in relation to an alleged act of the appellant of engaging in activities unconnected with his employment and without the written permission required under s 102 of the PSM Act, which could constitute a breach of discipline under s 80 of the PSM Act.
2 This matter arose out of a request made by the appellant to the respondent by letter dated 6 October 2010 for the appellant to take annual leave for the period 8 November 2010 to 3 December 2010. In his request he stated the leave was for the purpose of providing advice on criminal justice matters to the United Nations Office on Drugs and Crime (UNODC). The appellant also said in the request that 'at this point' his work would be voluntary but there was a potential that he would be paid for part or all of the work performed: exhibit 2, GR 2. The appellant pleads in his notice of appeal that the application for annual leave for this purpose was formally approved on 7 October 2010.
3 The respondent denies that approval to take leave for this purpose was given. In a letter to the appellant dated 13 October 2010, the respondent sought information from the appellant about the work to be performed and details of remuneration and other payments which would be provided. The respondent also advised the appellant in the letter that on receipt of the information he would give further consideration to his application.
4 The appellant in essence, pleads that whilst the respondent did not approve for him to receive remuneration for his services should they be offered, his annual leave was approved. Consequently, he proceeded on approved annual leave and performed voluntary services for UNODC in Somalia. It was whilst the appellant was overseas that the respondent served him with a notice of suspected breach of discipline that he had engaged in activities unconnected with his employment whilst on annual leave without written permission, as required by s 102 of the PSM Act.
5 The notice of appeal to the Board was filed by the applicant on 12 April 2012 and allocated to Commissioner Kenner as Chairman of the Board. An issue arose as to whether the appeal had been filed under s 80I(1)(a) of the Act. The Board, constituted by Commissioner Kenner as Chairman, made an order on 1 June 2012 that the appellant and the respondent file and serve submissions regarding the jurisdiction of the Board as constituted, to hear the appeal. After the submissions were filed, it was clear that the appeal was brought under s 80I(1)(a) of the Act. As appeals under s 80I(1)(a) can only be heard by a Board constituted by the President of the Commission as Chairman, the appeal was then reallocated and the Board was reconstituted.
6 After the Board was reconstituted, a scheduling conference was held on 27 August 2012. At that conference the respondent's legal representative made an oral application that the appeal should be dismissed on two grounds. These are that:
(a) Some of the issues raised in the appeal relate to decisions that could not be reviewed by the Board as the appeal has not been commenced within the time prescribed for a review of these decisions; and
(b) The appeal should be struck out on grounds of res judicata or issue estoppel.
7 The parties were directed to file submissions in relation to the respondent's application to strike the appeal out. The respondent filed its submission on 3 September 2012 and the appellant filed his submission in response on 18 September 2012. The respondent filed a further submission in response to the appellant's submission on 6 November 2012 and the application to strike out the appeal was heard by the Board on 22 November 2012. As a result of issues raised by the appellant in respect of discovery of documents relating to the appointment of the investigator and some issues raised by the Board at the hearing, the following order was made by the Board on 26 November 2012:
1. The respondent is to provide discovery to the appellant by close of business on 29 November 2012, of any documents in his possession or control in the following classes:
(a) any documents (including any memoranda of telephone conversations) that relate to the appointment of, or direction given to, Mr Baskwell to undertake an investigation under s 81(2)(a) of the Public Sector Management Act 1994;
(b) any documents that record any telephone conversations that occurred prior to 26 March 2012, with any person about the appellant undertaking work in Africa.
2. The appellant is to provide discovery to the respondent by close of business on 29 November 2012 of any documents (including emails) in his possession or control that relate to remuneration or payment of any expenses for work carried out outside Australia prior to 26 March 2012.
3. The appellant is to file and serve any submission he wishes to make in respect of the principles of procedural fairness and the application of these principles to the stages of disciplinary inquiries, by close of business on 29 November 2012.
4. The respondent is to file and serve any reply to any submission made by the appellant pursuant to order 3 of this order, within seven (7) days of receipt of the appellant's submission.
5. If the appellant wishes to make any submission about any document discovered to him pursuant to order 1 of this order he is required to file and serve the submission within seven (7) days of receipt of discovery of the documents.
6. If the appellant files and serves any submission pursuant to order 5 of this order, the respondent has seven (7) days from receipt of the submission, to file and serve any reply.
8 In response to the orders made by the Board, the appellant filed a bundle of submissions. On 26 November 2012, he filed four documents titled as follows:
(a) Appellant's submission re section 33 of the PSM Act.
(b) Appellant's submission re procedural fairness – bias.
(c) Appellant's submission re section 102 and conflict of interests.
(d) Appellant's submission re section 102 and voluntary work.
9 On 29 November 2012, the appellant filed a document titled 'Appellant's submission re procedural fairness – disciplinary process'. On 30 November 2012, the respondent filed further submissions in response in which he stated that the submissions concerning s 102 and conflict of interest are outside the scope of the order made by the Board on 26 November 2012. The appellant also filed further submissions on 30 November 2012 titled 'Appellant's submission re procedural fairness – disciplinary process addendum' and the respondent filed a response to the 'addendum' on 3 December 2012.
10 Unfortunately much of the submissions made by the appellant in the documents filed by him on 26 November 2012, 29 November 2012 and 30 November 2012, together with the material filed on by him 18 September 2012, raise matters which are irrelevant to the decision which is the subject of the appeal or do not raise an issue relating to the interpretation of a provision of the PSM Act. Also much of the material is repetitive and prolix.
11 At the heart of the appellant's appeal is the allegation made by the respondent that the appellant may have breached s 102 of the PSM Act. The scope of s 102 of the PSM Act and a consideration at least in part of the appellant's activities of work carried out by him overseas with UNODC was considered at some length by a Public Service Appeal Board in a decision delivered by the Board on 16 November 2012: Ross v Conran, Director General, Dept of the Premier and Cabinet [2011] WAIRC 01041; (2011) 91 WAIG 2408 in PSAB 17 of 2010, PSAB 21 of 2010 and PSAB 22 of 2010 (PSAB 17 of 2010, PSAB 21 of 2010 and PSAB 22 of 2010).
12 It is not in dispute that the disciplinary action against the appellant was instituted by the respondent prior to the determination of the previous Public Service Appeal Board in PSAB 21 of 2010. On 26 November 2010, the respondent sent a letter to the appellant by email whilst the appellant was on annual leave and performing work for UNODC in Somalia. The letter was issued under s 81(1) of the PSM Act. In the letter the appellant was notified that it had come to the attention of the respondent that he (the appellant) may have committed an act which may constitute a breach of discipline under s 80 of the PSM Act. The appellant replied on 6 December 2010 and denied he had breached s 102 and stated that he was not engaged in employment for reward, if that was the concern. In response, the respondent wrote on 15 December 2010 and advised that he was going to hold the matter in abeyance as the appellant had initiated proceedings in the Western Australian Industrial Relations Commission.
13 It was alleged in the Notice of suspected breach of discipline that he (the appellant) had engaged in activities unconnected with his employment whilst on annual leave without the written permission required under s 102 of the PSM Act. Whilst the appellant attempts to make the point in his submissions that he does not seek in this appeal to challenge the decision to initiate disciplinary action under s 81(1) of the PSM Act, he attempts to raise issues which go to the validity and veracity of that decision.
Legislation
14 Pursuant to Item 2(1) of Schedule 8 of the Public Sector Reform Act 2010 (WA), the provisions of Part 5, Division 3 of the PSM Act as in force prior to 28 March 2011 apply to the disciplinary action instituted against the appellant by the respondent. Consequently, in these reasons all legislative provisions of the PSM Act will be referred to as if the provisions of the Public Sector Reform Act 2010 Part 3 had not been enacted. Also, it is common ground that the PSM Regulations that apply to the decision, the subject of this appeal, are those in force as at 5 November 2010.
PSAB 17 of 2010, PSAB 21 of 2010 and PSAB 22 of 2010
15 PSAB 17 of 2010, PSAB 21 of 2010 and PSAB 22 of 2010 were heard together by a Public Service Appeal Board on 13 June 2011, 14 June 2011 and 15 June 2011. The appeals raised an interpretation of s 66 of the PSM Act which provides for secondment arrangements and s 102 of the PSM Act which prohibits employees from engaging in certain activities outside of government without written permission of their employing authority. PSAB 17 of 2010 and PSAB 22 of 2010 were appeals in relation to the interpretation of s 66 and s 102 of the PSM Act. Those appeals sought to challenge the respondent's decision to require the deduction of annual leave credits in respect of activities undertaken by the appellant overseas. PSAB 21 of 2010 was an appeal against the decision of the respondent solely in relation to the interpretation of s 102 of the PSM Act. It was an appeal against the decision of the respondent on 20 October 2010 to refuse permission for the appellant to engage in overseas work as a criminal justice consultant. PSAB 17 of 2010 and PSAB 22 of 2010 were upheld on grounds not related to this matter. PSAB 21 of 2010 was dismissed. Importantly, the Public Service Appeal Board in those appeals made a number of findings about the scope of s 102 of the PSM Act in relation to the appellant's request to carry out work overseas for UNODC.
Issues raised in the appellant's notice of appeal
16 In the notice of appeal the appellant says:
(a) When the respondent wrote to the appellant on 15 December 2010 advising him that he was going to hold the disciplinary matter in abeyance given proceedings the appellant had initiated in the Western Australian Industrial Relations Commission, there was no explanation provided as to why any delay was necessary and why the alleged breach could not be continued. The length of delay renders the process procedurally unfair.
(b) PSAB 17 of 2010, PSAB 21 of 2010 and PSAB 22 of 2010 related to a period when the appellant was on extended secondment to Edith Cowan University (ECU) and did not concern the same period or circumstances raised in this appeal.
(c) Despite not making a decision in relation to the suspicion of an alleged breach of discipline and stating the matter had been placed in abeyance, the respondent commenced a covert investigation by contacting overseas and Australian agencies and individuals seeking information in relation to the work performed by the appellant. The seeking of this information was ultra vires. In the appellant's submissions filed on 18 September 2012, the appellant particularised the investigations which he says constituted a de facto investigation as follows:
(i) By a letter dated 21 December 2010, the respondent wrote to officials of UNODC (Mr Alan Cole and Mr Mark Shaw) and made inquiries directly relevant to the alleged breach of discipline: exhibit 2, GR 16. The respondent was unsuccessful in gaining the information sought at that time.
(ii) On 26 July 2011, the respondent wrote to UNODC Vienna making a similar request for information: exhibit 2, GR 20.
(d) The covert investigation commenced by the respondent was commenced without notice to the appellant and had the effect of tainting any further involvement by him and was procedurally unfair.
(e) The respondent failed to provide particulars of the alleged breach as required by reg 15 of the PSM Regulations.
(f) The respondent failed to provide material documents to the appellant.
(g) The respondent misapplied s 102 of the PSM Act, as s 102 does not apply to voluntary work.
17 On 7 February 2012, the appellant wrote to the respondent regarding the status of the alleged breach and requested advice as to whether his explanation of 6 December 2010 had been accepted or if an investigation had been carried out and the result of any such investigation. The appellant says he received no positive response so he lodged a notice of appeal (PSAB 3 of 2012) on 16 February 2012 seeking to appeal against the respondent's apparent decision not to make the status of the alleged breach known to him. Before the matter could be heard the respondent issued the decision to the appellant dated 26 March 2012 which notified that he had appointed an investigator to conduct an investigation into the suspected breach of discipline. The appellant then discontinued PSAB 3 of 2012.
18 The orders sought by the appellant in this appeal are as follows:
1. That the investigation into the alleged breach of discipline be ceased.
2. That policy made by Respondent that was ultra vires his powers be withdrawn.
3. That breaches of the PSM Act and subordinate instructions by the Respondent be brought to the attention of the Public Sector Commissioner or the Corruption and Crime Commission.
4. That the Respondent be required to write in suitably agreed terms to overseas and Australian agencies and individuals who have been contacted in this manner to restore the reputation of the Appellant.
19 When the appellant filed his submissions on 18 September 2012, he raised three additional issues which follows are:
(a) Under s 81(2) of the PSM Act the respondent can only direct another person to investigate if that person is in an employment relationship with the respondent. In particular, the engagement of Mr Baskwell of Australia Wide Investigations Pty Ltd to undertake the investigation does not enable the respondent to meet the requirements of s 86(2) and s 86(3) of the PSM Act to give an authoritative order or command to direct the investigator, Mr Baskwell, to undertake the investigation.
(b) It is necessary that an investigator, whether they be a public service employee or not, be appointed under s 81(2) of the PSM Act in order for that person to have the delegated powers to undertake the disciplinary inquiry. As there was no formal instrument of delegation as required by the PSM Act in a proper form, the direction to investigate was invalid.
(c) Whether the respondent can prove that he, the appellant, is a public service officer under Part 3 of the PSM Act, as the respondent only has the lawful authority to institute breaches of discipline against a person who is employed by the respondent as a public service officer.
20 The appellant in his written submissions filed on 18 September 2012 also raised a number of other issues which go to the conduct of the investigation carried out by Mr Baskwell and whether the findings made by Mr Baskwell should have been accepted or were validly made. As those matters do not relate to the decision by the respondent which is the subject of the appeal, those issues will not be considered in these reasons.
The respondent's notice of answer
21 The respondent admits approval was given for the appellant to take annual leave between 8 November 2010 and 3 December 2010. However, the respondent says that by letter dated 13 October 2010 the respondent advised the appellant that as he was seeking approval under s 102 of the PSM Act to engage in activities unconnected with his employment more specific information was required to be provided prior to consideration of his application in respect of the following matters:
(i) details of persons to whom the appellant would be providing his services;
(ii) details of the subject matter on which the Appellant's advice would be provided, who would be provided with it, when and where;
(iii) details of the remuneration or other payments or assistance which would be provided;
(iv) the dates on which the Appellant would be engaged in providing his services.
22 The appellant provided further information by letter dated 14 October 2010 in general terms and advised that he was 'seeking approval for secondary employment as a Criminal Justice Consultant'.
23 By letter of 20 October 2010, the respondent advised the appellant in the absence of the provision of the specific details requested concerning the contracts and activities related to his application of 6 October 2010, he (the respondent) was unable to provide approval under s 102 of the PSM Act.
24 The respondent pleads that in PSAB 21 of 2010 (which was commenced by the appellant on 28 October 2010) the appellant specifically sought to have the decision of the respondent 'to refuse approval to engage in activities unconnected with employment … given on the 20th day of October 2010', reviewed.
25 The respondent points out in the notice of answer that when the Public Service Appeal Board delivered its decision on 16 November 2011 it was held:
(a) At [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.
(b) At [156] of the decision in PSAB 21 of 2010 the Public Service Appeal Board also found that the activities which the appellant sought approval under s 102 of the PSM Act to engage in involved him in the private practice of a profession, namely as a criminologist so as to attract the application of s 102(1)(d) of the PSM Act.
26 As the disciplinary breach concerned issues the appellant had raised in PSAB 21 of 2010, the respondent deferred further action pending the outcome of the appeal.
27 The respondent provided further particulars to the appellant of the alleged breach of discipline by letter dated 1 March 2012 stating that it was alleged that:
(a) the Appellant engaged in employment unconnected with his employment whilst on annual leave without the permission required under section 102 of the Public Sector Management Act;
(b) during the period between 8th November and 3rd December 2010;
(c) the Appellant engaged in that type of work identified in his letter of 6 October, 2010, as 'providing some assistance in the UN Office on Drugs and Crime providing consultancy advice on criminal justice matters at overseas locations';
(d) the Appellant did so contrary to section 102(1)(c), (d) or (e) of the Public Sector Management Act.
28 The respondent pleads that the time between the Public Service Appeal Board delivering its decision in PSAB 21 of 2010 and the respondent's letter of 1 March 2012 is not so long as to make it unfair for the disciplinary process to be continued.
29 The respondent also pleads that the appeal is incompetent as it has not been commenced within the time prescribed, nor does it concern any matter within s 80I(1) of the Act, not previously determined by the Public Service Appeal Board in PSAB 21 of 2010.
The respondent's submissions as to why the appeal should be struck out
30 The respondent in his submissions filed on 3 September 2012 raises the following matters:
(a) Insofar as the decision by the respondent to apply s 102 of the PSM Act to the external activities referred to in the appellant's letters of 6 October 2010 and 14 October 2010 and the respondent's letter of 26 November 2010 (which commenced the disciplinary process the subject of this appeal), this appeal is out of time and requires leave insofar as this ground of relief is concerned.
(b) Insofar as the appellant's grounds of review relate to s 102 of the PSM Act in relation to the activities referred to in the appellant's letters of 6 October 2010 and 14 October 2010, these grounds should be struck out on the basis that it is an abuse of process to allow the appellant to re-litigate issues raised and considered by the Public Service Appeal Board in PSAB 21 of 2010. The Public Service Appeal Board gave its decision in respect of PSAB 17 of 2010, PSAB 21 of 2010 and PSAB 22 of 2010 on 16 November 2011. It is contrary to public policy for a tribunal to reconsider its previous decisions involving the same issues and the same parties or material findings concerning them and this is made clear through the application of the doctrines of res judicata and issue estoppel. If a statutory basis is required to apply this doctrine, the Board is empowered to act under s 27(1)(a)(ii) of the Act.
(c) PSAB 21 of 2010:
(a) was an appeal against the decision of the Respondent given in his letter of 20 October 2010 and was 'solely in relation to the interpretation of section 102 of the Public Sector Management Act' (para 7);
(b) determined the Applicant was, or would be, engaged in private practice in the profession of Criminologist insofar as the external activities were concerned so as to attract the application of section 102(1)(d) (para 156). If that was so it was immaterial that the Applicant may not be paid or rewarded for his services;
(c) found if the Applicant's air fares, accommodation or other expenses were to be paid for, as they had been in the past, this would constitute a reward for the purposes of section 102(1)(e) of the Public Sector Management Act;
(d) found section 102(1)(d) and or (1)(e) of the Public Sector Management Act applied to the activities which were the subject of the decision constituted by the Respondent's letter of 20 October, 2010;
(d)[sic] held the Respondent's decision of 20 October 2010 to refuse approval under section 102 of the Public Sector Management Act for the Applicant to engage in the external activities outlined in his letters of 6 and 14 October 2010 was not unreasonable in the absence of the provision of the further information requested by the Respondent.
The appellant was represented by counsel in PSAB 21 of 2010 and the issue of the application of s 102 of the PSM Act to the activities referred to in the appellant's letters of 6 October 2010 and 14 October 2010 was fully argued. There is no justification for the matter to be re-litigated in these proceedings as the appellant had the opportunity to put forward all relevant evidence and arguments during the hearing of PSAB 21 of 2010, including what he now says is the 'voluntary' nature of the services that he was to provide. This issue is not new and was raised by the appellant in PSAB 21 of 2010.
(d) In [33] of the appellant's notice of appeal he says that the disciplinary process is being conducted on the basis that the respondent has refused to disclose all relevant information. Whilst this issue is not conceded, whether relevant information has not been provided, it is a matter that will need to be determined as a matter of fact by evidence after the disciplinary process is complete. Alternatively, at this point in the process, it is an issue for the Public Service Arbitrator who can make an order if what is alleged is established. Whether information has been disclosed or not does not involve any issue of statutory interpretation. Also, this ground is too vague, is out of time and requires leave, even if it could properly be characterised as a matter concerning an interpretation of a provision of the PSM Act.
(e) The respondent does not concede he commenced his own investigation. In any event, he says he is able to obtain information and if in the event such information is relied upon in the disciplinary proceedings (subject to it being disclosed to the appellant, with the opportunity to address it), there can be no objection. Further, the respondent says that if the appellant was aware of the respondent commencing an investigation in August 2011 the appeal on this ground is also out of time and requires leave.
(f) The issue of delay is the only substantial ground of appeal. However, whether delay in all of the circumstances is unfair is a matter for the Public Service Arbitrator as it raises no issue involving an interpretation of the PSM Act. It is only a factor a Public Service Arbitrator could take into account when determining whether disciplinary proceedings should be permitted to proceed.
(g) It is accepted that reasonable particulars of the allegations are required to be provided. Whether the particulars provided of the alleged breach are deficient does not require an interpretation of any provision of the PSM Act. This issue is also a matter within the jurisdiction of the Public Service Arbitrator. In any event, further particulars were provided prior to the investigation being commenced. If the initial particulars provided were insufficient, which is not admitted, this was remedied by the provision of the further particulars prior to the investigation commencing by a letter from the respondent to the appellant dated 1 March 2012.
31 As to the orders sought by the appellant, the respondent says:
(a) Order 2 is vague, no policy is identified which is the subject of the ground of appeal.
(b) Order 3 is not within the relief that the Public Service Appeal Board can award.
(c) Order 4 is not within the relief the Public Service Appeal Board can award.
(d) No proper basis is established by either the Application or the Applicant's submissions that there are grounds that can be argued that are within the jurisdiction of the Public Service Appeal Board that could justify the making of this Order.
The appellant's written submissions
32 In this section of reasons the paragraphs of submissions referred to as paragraphs are paragraphs in the written submissions filed on 18 September 2012. Subsequent written submissions will also be referred to by the date of filing and the title of the document filed.
(a) Lodgement within time and submissions that go to irrelevant issues
33 The appellant states unequivocally that the decision contained in the letter of 26 November 2010 is not the decision that is the subject of this appeal and is highly critical of the respondent's submission that the issues raised by the appellant go to the earlier decision. This submission is curious. For example, in [104] to [113] and [171] to [181], the appellant makes a submission that the particulars of the notice of alleged breach of discipline of 26 November 2010 were deficient. Despite the fact that the appellant is highly critical in his submissions of the respondent's submission that the notice of 26 November 2010 is not the decision the subject of this appeal, the appellant attempts to bring the validity of that notice as an issue in this appeal and argues that the respondent should be estopped from any attempts subsequently to address identified shortcomings. However, as this appeal only deals with the decision made on 26 March 2012, it is my view that this submission is not relevant to the disposition of this appeal and should not be dealt with by this Board.
34 In any event, the appellant states in [5] that it is on the record that he made no protest against the actions of the respondent of 26 November 2010 in forming a suspicion that the appellant had in some manner transgressed the PSM Act and was seeking an explanation from the appellant in respect of such suspicion. The decision which is the subject of the appeal is the letter from the respondent dated 26 March 2012 in which the respondent advised the appellant of a decision to proceed with a disciplinary investigation into the alleged breach of discipline.
35 The appellant also makes submissions about the following matters that are not relevant to this appeal:
(i) Paragraphs [114] to [130] deal with the issue whether the respondent properly could be said to have held a suspicion that the appellant had committed a breach of discipline so as to issue a notice under s 81(1) of the PSM Act. Paragraphs [114] to [130] of the appellant's submissions also deal with the appellant's response to the notice issued under s 81(1) of the PSM Act and the appellant makes a submission that the respondent had no evidence or facts which would support a contention that he (the appellant) was intending to engage or had engaged in employment for reward, in contravention of s 102 of the PSM Act.
(ii) Paragraphs [91] and [92] deal with a submission and evidence that the respondent had approved the appellant's annual leave in question and that the notice given by the appellant to the respondent of his intention to undertake voluntary employment conformed with the requirements of the PSM Act. Paragraphs [93] to [103] raise a submission about whether when he carried out work in Somalia, a potential conflict of interest could arise. Whether the appellant has committed a breach of discipline is a matter that has yet to be investigated and determined.
(iii) On 26 November 2012, the appellant also filed submissions about s 102 of the PSM Act. In his submission, at all material times, he says he was engaged in voluntary work. He also sought to raise an argument that by engaging in work for UNODC no conflict of interest with his public duties as an employee of the respondent can arise. These submissions squarely deal only with the issue as to whether the appellant should be found in breach of s 102(1) of the PSM Act. This is the central issue to be considered by Mr Baskwell as the investigator. Consequently, these submissions are not relevant to the decision in question which is the decision to appoint an investigator. Thus no regard will not be had in these reasons to these submissions as to do so would pre-empt the outcome of the investigation.
(iv) Paragraphs [262] to [274] set out submissions about whether the appellant should be required to participate in an interview with Mr Baskwell after Mr Baskwell was appointed to investigate the alleged breach of discipline.
(v) Paragraphs [290] to [296] go to a submission about the powers or authority of an investigator to make any findings of guilt or otherwise.
(vi) Paragraphs [297] to [302] deal with matters that occurred subsequent to the investigator, Mr Baskwell, delivering his investigation report to the respondent.
(vii) In a document titled 'Procedural fairness – disciplinary process addendum' filed on 30 November 2012, which is an addendum to the third document filed on 29 November 2012, the appellant makes a number of submissions about the conduct of the investigator, Mr Baskwell, and his investigation report. As these submissions deal with events that occurred subsequent to the decision in question, these submissions will not be considered in these reasons for decision.
(viii) The appellant makes a submission in [28] to [36] of his written submissions titled 'Procedural fairness – disciplinary process' filed on 29 November 2012, that he was denied procedural fairness in that the notice of breach of discipline dated 26 November 2010 did not provide him with all of the allegations against him and was provided in a manner that made it impossible to respond properly.
(b) Res judicata and issue estoppel
36 The appellant submits in [21] and [22]:
21. Once a final judgment has been handed down in a lawsuit, subsequent judges who are confronted with a suit that is identical to or substantially the same as the earlier one will apply the res judicata doctrine to preserve the effect of the first judgment. A defendant in a lawsuit may use res judicata as a defence.
22. The general rule is that a plaintiff who prosecuted an action against a defendant and obtained a valid final judgment is not able to initiate another action versus the same defendant where:
• the claim is based on the same matter that was at issue in the first action;
• the plaintiff seeks a different remedy, or further remedy, than what was obtained in the first action;
• the claim is of such a nature as could have been joined in the first action.
(i) Claim is based on a different matter
37 The appellant says the doctrine of res judicata and issue estoppel has no application to this appeal as this appeal is not based on the same matter in PSAB 21 of 2010. In [7] of the reasons for decision of the Public Service Appeal Board in PSAB 21 of 2010, it was stated that '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 work as a criminal justice consultant'. The appellant argues the subject matter of this appeal is different as this appeal concerns the disciplinary action undertaken by the respondent.
38 He also says 'by time', the two appeals are not the same matter. Whereas PSAB 21 of 2010 was concerned about the application to engage in work as a criminal justice consultant, the subject matter of this appeal does not concern the private practice of professional criminology as the words 'private', 'practice', 'profession', 'criminology' or 'criminologist' are not mentioned in any of the correspondence sent to him concerning the alleged breach of discipline. Consequently, the appellant argues this appeal raises a fresh matter concerning a different period of time. The true nature of this appeal he says concerns the application of Part 5 of the PSM Act and the inapplicability of s 102 to the issues in the disciplinary inquiry. His defence to the alleged breach is that the activities he engaged in the period in question were as a volunteer and that s 102 has no application to voluntary services.
(ii) Whether the appellant seeks a different remedy or a further remedy, than what was obtained in the first appeal
39 The appellant says that the remedy sought in this appeal is not for the same transaction as PSAB 21 of 2010. In PSAB 21 of 2010, the appellant sought approval to engage in paid secondary employment, whereas the current appeal seeks to have the disciplinary action against the appellant stopped, as it is without foundation.
(iii) Whether the claim is of such a nature as could have been joined in the first action
40 The appellant simply says that the circumstances relating to this appeal were not alive at the time of PSAB 21 of 2010 and hence there was no potential for the two matters to be joined. This appeal commences where PSAB 21 of 2010 left off.
(c) De facto investigation
41 The appellant argues in [134] to [170] that the respondent engaged in a de facto investigation after notifying the appellant that he was going to defer the process of the alleged breach of discipline pending the outcome of the matters before the Commission.
42 The first letter the appellant says constituted the commencement of the de facto investigation is a letter the respondent wrote to officials of UNODC on 21 December 2010. This letter, a copy of which has been edited in part by the removal of some words and the addition of the words 'Outside Ambit', stated as follows:
Dear Outside Ambit
Engagement of Mr Glen Ross during the period 1 March 2009 - 31 December 2010
Mr Glenn Ross, a permanent officer of the Western Australian Department of the Premier and Cabinet was on secondment to Edith Cowan University (ECU) from June 2007 to August 2010. During that time, the Department continued to pay Mr Ross' fortnightly salary. Mr Ross has advised that during that time, and more recently in November 2010 he undertook assignments for UNODC in Kenya, Seychelles and Mauritius.
In February 2010, Mr Ross retrospectively sought my approval as required under section 102 of the Public Sector Management Act 1994 (the Act) for engagement in activities unconnected with his employment (for several assignments undertaken for your organisation). In his application, Mr Ross advised that he was paid for the first assignment in July 2009, but that for five other assignments undertaken between July 2009 and February 2010, only his airfares, accommodation and daily subsistence allowance were paid (although he hoped that some further payment might be made to him in time). Subsequently, Mr Ross and the Department are in dispute over my decision to require him to take leave to undertake assignments for your organisation, and more recently, my refusal to approve his application under section 102 of the Act.
To assist me to consider his position in this matter, could you please provide the following:
(iv) dates and purposes for which Mr Ross was engaged by UNODC;
(v) details of any payments, reimbursements or other remuneration made to Mr Ross for his services; and
(vi) any correspondence or other documents from ECU approving Mr Ross' engagement in any activities (including research) for or involving UNODC.
While I acknowledge that festive season arrangements might make it more difficult to promptly respond to this request, your early advice would be appreciated. Should you have any further questions In this regard, please contact
43 A reply to that letter was given on 30 December 2010. An edited version of the letter stated as follows:
Dear Outside Ambit
Thank you for your letter dated 21 December and for the similar letter addressed to Outside Ambit who I copy.
In reply to both letters, I can say that Glenn Ross has done a great deal of valuable work for us over the last 18 months. In particular, he has lead the corrections element of the Counter-Piracy Programme in East Africa, ensuring countries that are engaged in the prosecution of pirates are properly prepared for the role and that the prisons are assisted with the management of Somali prisoners charged with or convicted of piracy. UNODC considers he has made an outstanding contribution to the programme and would specifically highlight his invaluable work with the population of a new prison which UNODC opened in Somalia last month. That prison now holds pirates, terrorists and other dangerous prisoners. That it opened on time and without incident is testament to Glenn Ross's clear direction, sound professional knowledge and excellent managerial skills.
At paragraphs (iv) to (vi) you asked for specific details of Glenn Ross's contract. As I am sure you will understand, we cannot share confidential contractual information without the agreement of the parties to the contract. If you can secure Mr Ross's written agreement to us releasing that information we will be happy to do so.
Please get in touch if I can assist further.
44 The appellant says that the respondent made these enquiries without his knowledge or permission and in the knowledge there was no legal entitlement to the information sought. The appellant says that this breach of process is of sufficient magnitude as to in itself require the discontinuation of disciplinary process. Alternatively, if it is held the disciplinary process was able to continue, the appellant says it should do so without the further involvement of the respondent, Mr Conran, or Mr Moore and Mr Jones due to their participation in the quasi-investigation which was a clear breach of procedural fairness.
45 The appellant also says that reg 16 of the PSM Regulations as it stood at that time, required the respondent to notify the appellant that an investigation was to be conducted before the investigation commenced. The appellant says this was not done and the respondent provided no notification to him (the appellant) that an investigation was in progress. The appellant also says that this was contrary to the process provided for in cl 4.1 of the Department of the Premier and Cabinet Disciplinary Procedures Guide which provided at the material time as follows:
Agencies must ensure that the process of establishing suspicion remains simple. Should employing authorities seek out information that gives them a higher level of knowledge than suspicion, they are pre-empting any investigation and risk reaching conclusions before the employee has had an opportunity to provide their side of the story. This is contrary to the principles of natural justice (see subsection 2.6) and risks corrupting any eventual findings and actions.
…
If information is received that relates to a possible breach of discipline, that information should be put to the employing authority. There is no need for memoranda explaining or embellishing source material to be provided. If the employing authority does not form a suspicion on the basis of material provided to him/her and seeks further information, then this may be obtained, however, any request to seek information which would allow the employing authority to obtain a higher state of knowledge or belief about a matter other than suspicion should be resisted. This stage of the process is only about suspicion, the investigation phase provides agencies with the appropriate opportunity to uncover evidence.
46 Having formed the necessary suspicion as evidenced by the notice of the alleged breach on 26 November 2010, the appellant says the respondent was required to either accept the explanation provided or notify the appellant that the matter was to be investigated. There was no capacity for the gathering of additional 'suspicion' or the conducting of an investigation without first having notified the appellant. To conduct an investigation in these circumstances was a breach of reg 16 of the PSM Regulations, s 81 of the PSM Act and cl 4.4 of the Department of the Premier and Cabinet Disciplinary Procedures Guide.
47 Without the appellant being notified, the appellant contends the respondent resumed this de facto investigation when he wrote to UNODC in Vienna in a letter dated 26 July 2011 as follows:
Dear Sir or Madam
Engagement of Mr Glenn Ross by UNODC
In December 2010 I wrote to your OUTSIDE AMBIT and the OUTSIDE AMBIT regarding the engagement of Mr Glenn Ross (an officer of this Department) who I am advised undertook assignments in Africa for your organisation seeking access to any contracts or other formal engagement arrangements, and details of any remuneration paid. I attach a copy of that correspondence and OUTSIDE AMBIT e-mail response for your information.
Mr Ross is a permanent public service officer employed in the Western Australian public sector under the provisions of the Public Sector Management Act 1994 (the Act). Section 102 of that Act imposes a statutory obligation on Mr Ross, as a condition of his employment, to formally seek and receive approval before engaging in external employment for reward and/or undertaking the private practice of any profession (whether or not reward is involved).
OUTSIDE AMBIT responded on 30 December 2010 that he was not at liberty to share confidential information about Mr Ross' engagement arrangements without specific authority. Mr Ross declined to provide that authority, and has since asserted that other than a period of 10 days in July 2009, all his engagements with UNODC have been as a volunteer.
In order to assess Mr Ross' existing and prospective requests pursuant to section 102 to determine whether approval is required, and if so, to give it, I again request details about the nature of his engagement with UNODC and details of payments provided to him. In this regard it would be appreciated if you could confirm that apart from airfares, accommodation and daily subsistence allowance applicable to the particular country, no remuneration was paid to Mr Ross post August 2010 and that the nature of his engagement was that of a volunteer.
48 The appellant became aware of the letter sent to UNODC that was dated 26 July 2011. He emailed the respondent on 15 August 2011 seeking that these enquiries be discontinued. However, by letter dated 5 October 2011, Serguei Agadjanov, Chief of the Human Resources Management Service of UNODC, responded to Mr Conran's letter as follows:
Reference is made to your letter to Ms Kayoko Gotoh, Officer-in-Charge and Deputy Director, Division for Operations and Chief, Integrated Programme and Oversight Branch, UNODC, received through the Permanent Mission on the engagement by UNODC of Mr Glenn Ross, a permanent public service officer of the Government of Australia, dated 26 July 2011 and received by us on 15 August 2011. The Human Resources Management Service of UNOV and UNODC, responding on behalf of the Organization, expresses its deep regret for the delay in reply.
More specifically, you requested confirmation that apart from airfares, accommodation and daily subsistence allowance applicable to the particular country, no remuneration was paid to Mr Ross post August 2010 and that the nature of his engagement was that of a volunteer.
In this regard, we first would like to draw your attention to the fact that the engagement of Mr Ross in July 2009 by the UNODC Regional Office in Eastern Africa (ROEA), located in Nairobi, Kenya was administered through the UNOV/UNODC Administration at Headquarters in Vienna, Austria. Subsequent engagements by ROEA were administered through the United Nations Office for Project Services without the involvement of the Administration in Vienna.
Accordingly, we were informed by ROEA that Mr Ross has been/is engaged by that Office through UNOPS on three occasions post August 2010 and that to date he has not claimed the daily fees he would be entitled to under these agreements. This means, de facto, that from the referenced month onwards, during his engagements administered through UNOPS, Mr Ross has been in receipt of airfares and daily subsistence allowance (which would include accommodation) only.
It should be noted that the payment modality used by UNOPS whereby the consultant or individual contractor is paid upon submission of a time sheet is not a modality applied by the UNOV/UNODC Administration as consultants and/or individual contractors retained by us are paid upon satisfactory completion of their services or deliverables.
I trust this information will assist in your consideration of this matter. Please let me know if the UNOV/UNODC Administration can be of any further assistance.
49 The appellant contends that this information was provided by UNODC Vienna on the basis of a mistaken belief that the appellant was an Australian government employee and, as Australia was a member state of the UN, it was appropriate to provide that information. He also says that this belief was formed by UNODC Vienna as a result of subterfuge by the respondent as he says that UNODC Vienna would have no legal basis on which to provide the information that it did. But, in any event, he says:
(a) The information evidenced conclusively that the appellant had not been paid for the services he provided to UNODC and that he had indeed worked in a voluntary capacity.
(b) Despite the exculpatory nature of this information, the respondent never made its existence known to the appellant and did not provide a copy to the appellant despite its materiality to the alleged breach of discipline. The appellant argues the hiding of relevant information is contrary to the principles set out in s 7, s 8 and s 9 of the PSM Act for which the respondent should be sanctioned. The consequences of this action by the respondent means that only one of two things could have occurred. The respondent either made inappropriate inquiries to support his 'suspicion' or the respondent had appointed himself to undertake the investigation. If the former is the case, then the respondent should have:
(i) disqualified himself from further involvement, including the making of the finding not to accept the appellant's explanation and to proceed to investigate the matter;
(ii) not provided the subsequent investigator with the information or documentation gathered during the inappropriate investigation (including verbally); and
(iii) any material documentation obtained during the inappropriate investigation ought to have been destroyed or provided in its entirety to the appellant.
50 The appellant says that if it can be found the respondent had appointed himself as an investigator and undertook the investigation under the provisions of s 81(2)(a) of the PSM Act, he should have notified the appellant of this and disqualified himself from making a judgment as to the sufficiency or not to support a breach of discipline. In particular, the appellant says you cannot be an investigator and sit in judgment on the investigation.
51 The appellant says the de facto investigations were not in conformity with the requirements of Part 5, s 7, s 8 and s 9 of the PSM Act. Thus, the disciplinary process should be discontinued.
52 The applicant filed further written submissions about the rules of procedural fairness in three separate documents.
53 The appellant's second written submission was filed on 26 November 2012 and is titled 'Procedural fairness – bias'. In that document the appellant argues that the respondent performed three incompatible functions of:
(a) informant/complainant/accuser;
(b) investigator; and
(c) judge/decision-maker.
54 In these submissions the appellant repeats his submission that the respondent, after forming the requisite level of suspicion and notifying the appellant of an alleged breach of discipline, initiated his own investigation by sending the letters in question to officers of UNODC. When the appellant challenged the respondent about these inquiries, the respondent sent the appellant an email on 23 August 2011 in which he informed the appellant that he considered the action he took as appropriate. The appellant says that this course of action had the effect that the respondent, after involving himself as the accuser and involving himself in the investigation itself, then sat in judgment on the subsequent investigation report and made the decision to proceed to an inquiry. The appellant puts an argument that where a person acts as accuser, investigator and decision-maker, such action constitutes either actual bias or creates a perception thereof. Consequently, the appellant says this disciplinary process must be halted and recommenced at the point where the respondent involved himself as an investigator and the respondent, Mr Moore and Mr Jones and any other person from the Department of the Premier and Cabinet involved in the disciplinary matter to date should be excluded from further involvement in favour of independent persons.
55 The appellant filed the third written submission in respect of procedural fairness which is titled 'Procedural fairness – disciplinary process' on 29 November 2012. In those written submissions the appellant puts forward the following:
(a) In considering procedural fairness it is necessary to bear in mind the concept of 'practical justice' raised by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37] where his Honour said:
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
(b) The common law requires administrative decision-makers to accord procedural fairness to applicants or parties at all times: Robinson M, 'Practical Justice and Procedural Fairness' (Paper for delivery at the PAVE Peace Group, Sydney, 23 December 2003).
(c) In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 [26] the court found that it had long been established that the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires and it is also clear that the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case.
(d) In light of these authorities, the appellant says it is abundantly clear that:
(i) procedural fairness can be required at each step in a process if that is what is required to make the said process procedurally fair;
(ii) procedural fairness is not amenable to formulaic approaches and each case must be considered on its merits. This is in distinct contrast to earlier views where it has been expressed that in a multi-stage proceeding it is only necessary to ensure that procedural fairness was satisfied at the final hurdle; and that in some way this served to cure any and all deficiencies in procedural fairness that had preceded.
(e) In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 591 - 592 it was observed that procedural fairness requires that a decision-maker provide to a person likely to be affected by the decision:
(i) an opportunity to put information and submissions to the decision-maker in support of an outcome that supports his or her interests;
(ii) a right to rebut or qualify by further information; and
(iii) an opportunity to comment by way of submissions upon adverse material from other sources which is put before the decision-maker. The decision-maker is also required to put to the person affected any issue that is critical to the decision which is not apparent from its nature or the terms of the statute under which it is made.
In Alphaone, the Full Court also observed (590 - 591):
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.
(f) The bias rule of procedural fairness is that a decision-maker must not be personally biased (actual bias) or be seen by an informed observer to be biased in any way (apprehended or ostensible bias) in a hearing or dealing with a matter during the course of making of a decision. The essential question to determine whether there is an apprehension of bias raised is whether there is a possibility (real and not remote) and not a probability, that a decision-maker might not bring an impartial mind to the question to be determined: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [7] - [8]. The question is answered by reference to whether the fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the issue to be decided: [33].
(g) The Ombudsman Western Australia in 'Guidelines Procedural Fairness' states that if a reasonable perception of bias arises it is best to remove yourself from the process and ensure an independent person assumes the role of decision-maker.
(h) When regard is had to the statutory framework for the disciplinary process in Part 5, Division 3 of the PSM Act, in particular s 81, s 83 and s 86 and reg 15 of the PSM Regulations, it can be ascertained that these provisions provide for four decision points each of which has its own requirements for procedural fairness. These are:
(i) Is there sufficient suspicion to warrant the issuing of a notice of alleged breach? (s 81(1)). The accuser/allegation.
(ii) Is the employee's response adequate to allay the suspicion, or does it need to be investigated? (s 81(2)). The investigator/investigation.
(iii) Has the investigation satisfactorily explained the matter, or is an inquiry required? (s 83). The inquirer/inquiry.
(iv) If the inquiry finds a breach has occurred, what penalty should be imposed by the 'decision-maker'? (s 86). The decision-maker/decision.
The appellant says each of these steps involves the making of a separate decision, each of which requires its own deliberation, and hence, procedural fairness at each stage. For example, the report of the investigator cannot be used by the inquirer as it is necessary that the inquiry be undertaken de novo and that the inquirer makes his or her own decisions.
(i) The appellant also relies upon cl 2.1.1 of the Public Sector Commission's 'A guide to the disciplinary provisions contained in Part 5 of the PSM Act' which was published in 2011 and sets out the rules of procedural fairness for disciplinary provisions as follows:
In the context of the disciplinary process, procedural fairness has three main rules or principles:
1. The bias rule
· The employing authority (or person requested to investigate) acts fairly and without bias; and
· The employing authority (or person requested to investigate) does not hold, or is not perceived to hold, a vested or direct personal interest in the outcome of the process.
2. Hearing rule
· The employee is provided with notice of any allegations against them, given a reasonable opportunity to respond to those allegations or decisions affecting him or her, and their response is genuinely considered.
3. Evidence rule
· Decisions are based on logically probative (compelling) evidence; and
· Irrelevant considerations are not taken into account in making the decision.
(j) The appellant says that as the respondent involved himself in the investigation by sending letters in the hope of obtaining evidence to support the allegations he had made, this is the basis of the appellant's submission that the respondent acted as an investigator. The appellant also says that the respondent was a decision-maker as he made a decision not to accept his response to the allegation made of him. The appellant also says it is a relevant fact that the respondent and Mr Moore are both defending actions in the workers' compensation forum which have been instituted by the appellant. The appellant says that the respondent also intends to sit in judgement on the outcome of the inquiry that he has had commenced and to make the decisions as to guilt or innocence and, if guilty, the degree of the penalty. The appellant submits that this is contrary to the bias rule and as such is a denial of procedural fairness as it is not possible for the respondent to address this matter with other than a closed mind.
(d) Delay
56 In [131] to [133] he raises an issue whether there is any authority or capacity in s 81 of the PSM Act to enable a decision to be made by the respondent to hold the disciplinary process in abeyance for a period of over 12 months before taking action under s 81(2) to initiate an investigation. The appellant argues that an employee's response to the initial notice issued under s 81(1) must either be accepted or the matter investigated.
57 In [183] to [189] and [237] to [261] the appellant deals with the issue of the delay which he says was in the circumstances undue and unreasonable.
58 The appellant says that it is absolutely clear that there is no provision in the Act or elsewhere which enables a disciplinary matter to be held in abeyance awaiting the outcome of some other unconnected event. However, this is what the appellant says the respondent did. The respondent did not advise the appellant which matter before the Commission was the cause of holding the disciplinary process in abeyance, and did not advise what the necessity for doing so was. In any event, the appellant says that if additional information helpful to the respondent became available through a matter before the Commission, then that information could not be used in any event in the current disciplinary process, as to do so would mean that at the time of notifying of the alleged breach on 26 November 2010 the appellant was not provided with all the allegations made against him which were relevant to the breach of discipline which the employing authority suspected that he had committed as required by reg 15 of the PSM Regulations.
59 The appellant says that in the 14 months after the respondent had received his response to the alleged breach of discipline there had been no indication by the respondent as to whether the appellant's response to the allegation was sufficient to allay the suspicion held by the respondent. It is submitted that the extremely lengthy period of inactivity must be considered by any measure to be excessive on the part of the respondent in arriving at the decision as to what to do.
60 The appellant also contends the respondent did not notify him as to whether the explanation provided in a letter dated 6 December 2010 was satisfactory or not until some 15 months later, and then only after the appellant had raised the matter of the delay with the respondent and lodged PSAB 3 of 2012.
61 Whilst s 81 of the PSM Act provides no specified period for a decision to be made as to whether the explanation provided was satisfactory or not, s 63 of the Interpretation Act 1984 (WA) provides that:
Where no time is fixed or allowed within which an act or thing shall be done, such act or thing shall be done with all convenient speed and as often as occasion arises.
62 Even if it is to be accepted that it was permissible for the respondent to defer the making of a decision whether or not to accept the explanation given in the letter of 5 December 2010 until after the outcome of matters already proceeding in the Commission were known, which is not accepted, PSAB 21 of 2010 was finalised on 16 November 2011. That is over four months earlier than the decision was made to initiate the investigation. The respondent has not provided any explanation as to why it was necessary to await four months post-conclusion of the matter before the Commission. The appellant submits that whether the delay was 15 months or four months, neither can be expressed as being 'done with all convenient speed'.
63 Regard as to what can be considered a suitable time period for notification can be found in s 90 of the PSM Act as amended by s 103 of Act No 39 of 2010 which became operative after the disciplinary action was initiated by the respondent. Section 90 of the PSM Act currently provides:
The employing authority of an employee shall notify the employee —
(a) whether or not the employee has been found under this Division to have committed any breach of discipline alleged against him or her; and
(b) if such a finding has been made against the employee, what action has been taken under this Division in relation to the employee,
within the period prescribed in the Commissioner's instructions.
64 The appellant points out that the Public Sector Commissioner Instruction – Discipline General came into effect on 28 March 2011 and cl 1.2 of the Instruction requires that the disciplinary process 'is completed as soon as is practicable'. In addition, cl 1.7 of the Instruction provides:
If the employing authority finds that a breach of discipline did occur, the employing authority is to notify the employee in writing of that finding within 14 days and of any proposed action that may be taken.
65 This requirement to advise within 14 days is repeated in the Public Sector Commission's 'A guide to the disciplinary provisions contained in Part 5 of the PSM Act' where at cl 6.4 it states:
The employee is required to be notified in writing of any action imposed as soon as is practicable, but in any event within 14 days of the action taken.
66 The appellant says in light of these provisions it is difficult to argue that a period of 14 days is not reasonable as it is now enshrined in law by virtue of s 90 of the PSM Act and its operation within the Commissioner's Instruction.
67 The appellant says that regard can be had to the provisions of a later statute to throw light upon the interpretation of any early statute. In Allina Pty Ltd v Federal Commissioner of Taxation (1991) 28 FCR 203, 212; (1991) 99 ALR 295, 303 the Full Court stated:
There was some debate before us as to the circumstances in which courts are entitled to examine a later statute to determine whether it throws any light upon the interpretation of an earlier statute. Plainly this course can be taken when the words of the earlier statute are ambiguous, but if the words of the earlier statute are clear, little assistance may be gained from the later statute.
68 In this matter the time limitations for performing actions associated with the administering of the disciplinary provisions in the PSM Act prior to the amendments effected by the Public Sector Reform Act 2010 were unclear and ambiguous. Applying the time provisions arising from the amendments in the Public Sector Reform Act, where two weeks is considered sufficient a period in which to carry out the tasks required, provides certainty and casts the extensive periods taken by the respondent in a particularly bad light to the extent they must be considered a breach of natural justice.
69 In any event, the appellant says the respondent's own Disciplinary Procedures Guide of November 2007 at cl 4.3.1, headed 'Notifying the respondent when satisfied with their explanation', stated that s 90 of the PSM Act and reg 21 of the PSM Regulations require the employing authority to notify the employee within 14 days of any findings or actions made in relation to the disciplinary process, including a finding that no breach of discipline has occurred. The appellant says that the respondent did not comply with its own policy on notification.
70 Also, the Commissioner's Instruction – Discipline General is instructive.
(e) Decision to appoint investigator invalid
71 Paragraphs [275] to [290] deal with a submission that the decision by the respondent to appoint Mr Baskwell was not valid. The appellant says that as the direction to investigate was affected by the respondent by entering into agreement with Australia Wide Investigations or an employee of such an organisation, there was no capacity for the respondent to direct Mr Baskwell to undertake the investigation as the respondent has no capacity at law to 'direct' Mr Baskwell. The respondent says Mr Baskwell is in an employment relationship with Australia Wide Investigations and it is from this organisation that he must take directions. In making this submission, the appellant relies upon the observations made by Commissioner Scott in Mann v Employing Authority, Government Employees Superannuation Board [2008] WAIRC 00044; (2008) 88 WAIG 131 [48] - [51].
72 The appellant also makes the submission that the respondent did not, in any event, purport to direct Mr Baskwell to undertake the investigation as the language used in the 'appointment letter' dated 26 March 2012 (exhibit 2, GR 34) stated:
Mr Joe Baskwell
Australia Wide Investigations Pty Ltd
PO Box 17
OSBORNE PARK WA 6917
Dear Joe
Suspected Breach of Discipline
I would like to appoint you as Investigator to undertake an investigation on Mr Glenn Ross, an employee of the Department of the Premier and Cabinet in relation to an act which may constitute a breach of discipline under section 80 of the Public Sector Management Act 1994 (the Act).
In particular, it has been alleged that Mr Ross has:
• Engaged in activities unconnected with your employment without the written permission required under section 102 of the Act.
Mr Ross' contact details will be made available to you. For all other contact details you may require as part of your investigation process, please contact Ms Mei Wood, Manager Human Resource Services, on (08) 6552 5529 or email mei.wood@dpc.wa.gov.au.
So as to minimise the disruption to the parties concerned, it would be appreciated if you could report to me on your investigation by Friday, 25 May 2012 or as soon as is otherwise practicable.
Please send your invoices directly to me for payment and I will ensure they are dealt with promptly.
Should you have any queries, please contact me.
Yours sincerely
Peter Conran
DIRECTOR GENERAL
73 The appellant submits that the language used in this letter is not consistent with a direction to a person. It was at best a mere request. If Mr Baskwell had been unavailable or disinclined to accept the offer, no doubt some other person would have likewise been requested. Indeed, it is not known how many people were previously considered for this investigation.
74 Section 81(3) of the PSM Act provides that a person to whom a direction is given under s 81(2) shall comply with that direction. The appellant submits if any person declined the request and they were not a public service officer it is difficult to see how they could be charged with a breach of a lawful order as there is no capacity for the respondent to enforce compliance of a direction to a non-public service officer. The appellant also argues that the letter of request did not effect an appointment under s 81(2) of the PSM Act. His argument is that an appointment to be made under s 81(2) of the PSM Act can only be effective by an instrument of delegation to undertake the disciplinary investigation and that this did not occur.
75 On 26 November 2012, the appellant filed written submissions in support of his argument that the respondent failed to properly appoint Mr Baskwell to investigate the alleged breach of discipline as there was no formal delegation in writing of the respondent's powers to investigate a matter under s 81 of the PSM Act. In the written submissions titled 'Appellant's submission re section 33 of the PSM Act', the appellant says that the requirement to make a formal delegation in writing under s 81 is to be found in the Department of the Premier and Cabinet Disciplinary Procedures Guide in cl 2.7 which at the material time provided:
Section 33 of the Act provides for employing authorities to delegate their powers and/or duties. Agencies must ensure that should the employing authority wish to delegate any of his/her authority under the Act, a formal delegation is issued.
76 The appellant also relies upon s 33 of the PSM Act which empowers chief executive officers to delegate their powers and duties by executing a written instrument of delegation.
77 The appellant also relies upon cl 8.1.3 of the Public Sector Commission's 'A guide to the disciplinary provisions contained in Part 5 of the PSM Act' which provides:
Where an employing authority wishes to delegate his or her disciplinary powers, the extent to which they desire the alleged breach of discipline to be dealt with by a delegate must be reflected in writing and must carefully describe the extent to which a delegate is authorised to deal with the alleged breach.
78 The appellant says this provision requires an instrument of delegation to be executed that includes whether recommendations/findings/opinions are to be made and any requirements pertaining to such. The appellant points out that the respondent has not discovered any document that properly authorised or delegated his powers of investigation under Part 5 of the PSM Act to Mr Baskwell of Australia Wide Investigations. Also, the respondent concedes that no formal delegation of powers have been made to Mr Baskwell.
79 In these circumstances, the appellant submits that the respondent has failed in his duties to properly appoint and delegate an investigator and therefore the disciplinary process must be discontinued and be reverted to the point where the respondent properly appoints and delegates an investigator, at which time the process can recommence.
80 Despite the submissions filed by the appellant on 18 September 2012 and the appellant's notice of appeal seeking an order that the disciplinary investigation be ceased, in the written submissions filed on 26 November 2012 the appellant seeks that the disciplinary process be recommenced and that this appeal should proceed to hearing as there remains a public interest benefit to be had in continuing with this appeal so that the actions of the respondent, which the appellant contests, can be tested under oath.
(f) Onus on respondent to prove the appellant is a public service officer
81 In [303] to [316] the appellant points out that in order for Part 5 of the PSM Act to be applicable for disciplinary action to be instituted against him he must be employed as a public service officer. He also points out that the appointment of public service officers is provided for in s 64 of the PSM Act. He says that whilst the transcript in PSAB 18 of 2010 makes frequent reference to him having been appointed to the public service he is not confident that he has ever been appointed to a position as a public service officer under s 64.
82 He contends that it is incumbent upon the respondent to demonstrate that he, the appellant, has been appointed as a public service officer under Part 3 of the PSM Act.
(g) Should the disciplinary inquiry be allowed to continue
83 The appellant says in [317] to [323] that the disciplinary process should be stopped. He contends that Anderson J in Civil Service Association of Western Australia Inc v Director General of Department for Community Development [2002] WASCA 241; (2002) 82 WAIG 2845 [20] said, if there is truth in all factual material put forward by the respondent in support of the allegation, and that material discloses grounds on which the respondent could reasonably suspect that [the employee] has committed a breach of discipline, the Commission should not intervene in a disciplinary inquiry.
84 The appellant argues that when this test is applied, and when the factual material provided by the respondent in the notice of breach of discipline is examined it can be seen the material was insufficient to support a suspicion of the allegations being true and did not provide a reasonable basis on which to proceed with the disciplinary process. The appellant also says the respondent's behaviour in pursuing the disciplinary process has been marred by procedural irregularities, apprehension of bias, and a prosecutorial zeal out of keeping with the limited degree of suspicion validly held and the exculpatory evidence obtained. In looking to explain the respondent's actions, the appellant says it is apposite to consider the words of Pitt Taylor J in A treatise on the law of evidence as administered in England and Ireland; with illustrations from the American and other foreign laws, (7th ed, 1878):
[I]t must be remembered, that, in a case of circumstantial evidence, the facts are collected by degrees. Something occurs to raise a suspicion against a particular party. Constables and police officers are immediately on the alert, and, with professional zeal, ransack every place and paper, and examine into every circumstance which can tend to establish, not his innocence, but his guilt. Presuming him guilty from the first … they determine, if possible, to bag their game. Innocent actions may thus be misinterpreted, — innocent words misunderstood; and, as men readily believe what they anxiously desire, facts the most harmless may be construed into strong confirmation of preconceived opinions. It is not here asserted that this is frequently the case, nor is it intended to disparage the police. The feelings by which they are actuated, are common … to all persons who first assume that a fact or system is true, and then seek for arguments to support and prove its truth.
85 To these contentions he says must be added the recognition that the respondent and he were, and continue to be, in dispute on a number of matters. Thus, he says the temptation therefore to attempt to prosecute disciplinary action against him was just too enticing a prospect for the respondent to ignore.
(h) Orders sought by the appellant
86 The appellant points out that the Board has the power under s 80I(1) of the Act 'to adjust all such matters as are referred to in paragraphs (a), (b), (c), (d) and (e)' and that the word 'adjust' was interpreted by Anderson J in State Government Insurance Commission v Johnson (1997) 77 WAIG 2169, 2170 as a power to reform the decision in some way.
87 The appellant in his original notice of appeal requested the making of four orders. He withdrew his application for an order set out in paragraph 2 of his notice of appeal. The appellant then pursued only three orders which are as follows:
(a) The investigation into the alleged breach of discipline be stopped (order 1). However, in submissions filed on 26 November 2012, the appellant appears to abandon this remedy and now seeks that the investigation be recommenced.
(b) Breaches of the PSM Act and subordinate instructions by the respondent be brought to the attention of the Public Sector Commissioner or the Corruption and Crime Commission (order 3).
(c) The respondent be required to write in suitably agreed terms to overseas and Australian agencies and individuals who have been contacted in this matter to restore the reputation of the appellant (order 4). The appellant says the respondent made the decision based on a misinterpretation of the PSM Act that he could undertake a de facto investigation himself which included the writing of letters to individuals and agencies that created a perception that the appellant must be doing something very wrong. The appellant says this wrong must be righted and the appellant's reputation restored.
The respondent's further submissions in response
(a) Appointment of the investigator
88 The respondent says that the investigation of the suspected breach of discipline was undertaken pursuant to s 81(2) of the PSM Act as it was, which provided an employing authority may investigate a matter or direct another person to investigate it. The respondent chose to retain Mr Baskwell to undertake the investigation and there was no need to make a delegation under s 33 of the PSM Act of any powers to Mr Baskwell as the respondent had no intention of delegating any of his functions to Mr Baskwell. Consequently, the respondent submits the provisions of s 33 of the PSM Act are irrelevant to the determination of this appeal. The respondent points out that cl 8.1.3 of the Public Sector Commission's 'A guide to the disciplinary provisions contained in Part 5 of the PSM Act' clearly only relates to the situation where an employing authority 'wishes to delegate his or her disciplinary powers'. As this was not what the respondent sought to do, this provision of the disciplinary guide is not relevant.
(b) Procedural fairness – bias
89 The complaint of the appellant in this appeal is that the respondent is complainant, investigator and adjudicator. The provisions of the PSM Act, as they were then enacted when the disciplinary proceedings were initiated against the appellant, provided that an employing authority could raise a suspected breach of discipline under s 81(1) of the PSM Act, investigate it under s 81(2) and decide, under s 83(1), whether a minor breach of discipline was committed, no breach of discipline was committed, or if it appeared that a serious breach of discipline had been committed. Thus there can be no substance in the submission of the appellant that by conforming to the scheme permitted by the PSM Act apparent bias must arise against the respondent.
90 In any event, the appellant otherwise raises no apparent bias on the part of the respondent, but whether bias does arise is a question of fact, not law, which is the province of the Public Service Arbitrator. This is not an issue requiring the interpretation of the provision of the PSM Act.
91 Under s 81 of the PSM Act, all that was necessary to commence the disciplinary process was for the suspected breach of discipline to be notified in writing in accordance with any requirements that were prescribed. The section specifies the procedural fairness required before a decision to investigate is made. That was to provide the officer with a 'reasonable opportunity to submit an explanation to the employing authority'. That was done.
92 A decision to charge a person with a breach of discipline is only one step to a formal investigation process. If an investigation is pursued it will ultimately lead to a formal process where the person in question will be afforded procedural fairness. Thus, a decision to charge a person with a breach of discipline is only one step in a process capable of altering rights: The Civil Service Association of Western Australia Inc v Director General, Department of Education and Training [2008] WAIRC 01722; (2008) 89 WAIG 220 [17]. As no adverse final decision is made as a result of deciding to investigate, or to charge, there is no obligation at that stage of the process to provide procedural fairness, as that will be provided during the process, before a final decision is made. There is certainly no obligation at that point in the process to provide the employee in question with all documentation relevant to the allegation.
Conclusion
(a) Whether the appeal is out of time
93 This is an issue which can be easily disposed of. Despite the fact that the appellant's various submissions are littered with complaints about the decision made by the respondent in November 2010 to serve him with a notice of suspected breach of discipline, the appellant nevertheless makes it plain in his submissions that the only decision that is the subject of this appeal, is the decision made pursuant to s 81(2) of the PSM Act on 26 March 2012, to direct Mr Baskwell to investigate the suspected breach of discipline.
94 The notice of appeal was filed in the Commission on 12 April 2012. It is stated on its face that the appeal is against the decision to commence disciplinary investigations on 5 April 2012. The date of 5 April 2012 is the date the appellant says he received a letter dated 26 March 2012 from the respondent. In the letter the respondent notified the appellant that he (the respondent) had appointed Mr Baskwell from Australia Wide Investigations Pty Ltd to conduct an investigation into the suspected breach of discipline. As there is no dispute that the notice of appeal was filed within time of the making of this decision, this ground of objection fails.
(b) Did the respondent commence a de facto investigation
95 If the appellant's contention that the respondent commenced an investigation into the alleged breach of discipline prior to appointing Mr Baskwell is accepted, two consequences emerge. These are:
(a) The respondent failed to comply with the requirements of reg 16 of the PSM Regulations which, at the material time, provided:
For the purposes of section 81(2) of the Act, the prescribed procedures in accordance with which a suspected breach of discipline is to be investigated are that the respondent is notified in writing —
(a) that an investigation of the suspected breach of discipline is being initiated and of the purpose of that investigation;
(b) that the investigation referred to in paragraph (a) will lead to a finding being made in respect of, and may lead to action being taken against, the respondent under Division 3 of Part 5 of the Act and of the range of possible findings and possible action;
(c) of the steps which may be taken in the conduct of that investigation prior to the making of a finding, and the taking of any action, against the respondent;
(d) of any interviews or meetings which the respondent is required to attend; and
(e) of his or her right to have present during any interviews or meetings attended by the respondent a representative capable of providing advice to the respondent.
(b) Once an investigation is commenced by a person who is an employing authority under s 81(2) of the PSM Act, it is arguable that a direction cannot be later given to another person to commence a second investigation.
96 When the letters the respondent sent to UNODC are properly examined, it is apparent that the appellant's argument that the respondent commenced or conducted his own investigation (within the meaning of s 82(2) of the PSM Act) cannot be made out. Firstly, the two letters which the appellant seeks to characterise as 'an investigation' are letters which merely seek for information to be provided. Also of importance, the two letters seek information about all work carried out by the appellant for UNODC since July 2009, which period of time covered, in part, the period that the appellant was on secondment to ECU. This is important because when the first letter was sent on 21 December 2010, the appellant and the respondent were in dispute about whether the appellant should be required to take annual leave whilst he engaged in work for UNODC whilst he was on secondment to ECU.
97 In the decision that determined the appellant's appeals in PSAB 17 of 2010, PSAB 21 of 2010 and PSAB 22 of 2010, evidence was given about the first letter by Mr Conran and the letter itself was tendered into evidence as exhibit 3, PC 33. In my reasons for decision in those appeals, the following observations about the relevance of the letter and the respondent's concerns about the appellant engaging in overseas work were as follows:
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.
98 Clearly, the information sought by the respondent in the first letter was relevant to the issues raised in PSAB 17 of 2010, PSAB 21 of 2010 and PSAB 22 of 2010. In each appeal the interpretation of s 102 of the PSM Act was raised. In PSAB 17 of 2010 and PSAB 22 of 2010, a central issue in each appeal was whether whilst the appellant was on secondment to ECU he was required to seek the respondent's permission to undertake work overseas for UNODC. It was also in issue whether the appellant could be required to take paid leave to undertake this work. Part of the determination of the second issue was whether s 102(1) of the PSM Act applied to the appellant whilst he was on secondment. The Public Service Appeal Board found that s 102(1):
(a) did not apply to work the appellant carried out as research work for ECU; and
(b) did apply to the work the appellant carried out for UNODC in 2009 and 2010 whilst he was employed at ECU which was not research work for ECU on grounds that:
(i) the work he carried out was work engaged in the private practice of criminologist within the meaning of s 102(1)(d) of the PSM Act [156]; or
(ii) alternatively, was work carried out as employment for reward within the meaning of s 102(1)(e) of the PSM Act [159].
99 The first letter sent by the respondent to UNODC in December 2010 raised matters which were directly relevant to the issue whether the appellant was providing services in a 'profession' by asking for the purposes for which the appellant was engaged and whether the appellant had accepted or engaged in any employment for reward during 2009 and 2010.
100 The second letter was sent by the respondent to officers of UNODC after the hearing of the appeals in PSAB 17 of 2010, PSAB 21 of 2010 and PSAB 22 of 2010 had been concluded, but before the Public Service Appeal Board delivered their decision in those appeals. The second letter also sought information about all periods the appellant had been engaged in assignments in Africa and whether the nature of the engagement of the appellant was that of a volunteer and details of engagements post August 2010. Whilst it is the case that the request for information in this letter relates squarely to the period in question in the notice of a suspected breach of discipline, this letter itself(or taken together with the first letter to UNODC), cannot be characterised as an 'investigation' or the commencement of an 'investigation' within the meaning of s 81(2) of the PSM Act. To investigate means to inquire into a matter and to make an examination of the result of inquiries in order to determine the true facts. Whilst the sending of a letter in one sense and in some circumstances could be said to be a step in a process of an investigation, no evidence of analysis of information that flowed from the letter and no evidence of steps taken other than to take the step of appointing an investigator under s 81(2) of the PSM Act has been alleged by the appellant. Thus, it cannot be said that the sending of the letters constituted the commencement of an investigation.
101 An 'investigation' contemplated by s 81(2) and reg 16 of the PSM Regulations requires not only the collection of all relevant material, but also the examination and analysis of the veracity of the material and finally the making of findings. In particular, s 81(2) of the PSM Act and reg 16 of the PSM Regulations require a gathering of information, interviews or meetings with the person who is the subject of the investigation and with other persons who can or could provide relevant information (if deemed necessary by the inquirer) and for a report to be made containing findings as to whether a minor breach of discipline had been committed, or a serious breach of discipline appears to have been committed, or no breach of discipline had been committed: s 83(1) of PSM Act. The action of merely seeking to gather information by the sending of the two letters cannot constitute such an investigation without taking any steps to analyse or test the information gathered from the letters.
102 For these reasons, I am not persuaded by the appellant's argument that the respondent had commenced a 'de facto' investigation prior to the appointment of Mr Baskwell.
Was the respondent empowered to appoint Mr Baskwell as an investigator
103 The appellant contends the appointment of Mr Baskwell is invalid on two grounds. Firstly, the appellant says that it is only an employee of the respondent who can be directed to undertake an investigation under s 81(2) of the PSM Act. Secondly, a direction to investigate must be effected by a formal delegation under s 33 of the PSM Act.
104 In support of the appellant's argument in respect of the first ground, the appellant relies upon observations made by Scott C in Mann. However, when the observations made by Scott C are considered they do not support the appellant's argument. At [40] - [51] of her reasons in Mann she observed:
40 Sections 81 and 86 of the PSM Act simply say that the employing authority may investigate or direct another person to investigate, or hold or direct a person to hold a disciplinary inquiry, and that the person to whom such a direction to investigate is given shall comply with that direction. It also says that such a direction shall not be given to the Commissioner. The Commissioner means the Commissioner for Public Sector Standards (s 3(1)). Therefore the only person who is specifically excluded from receiving the direction to investigate is the Commissioner for Public Sector Standards.
41 Is there a requirement that the person is to be an employee?
42 'Person' is not defined in the PSM Act. The Interpretation Act 1984 defines 'person' as 'any word or expression descriptive of a person includes a public body, company, or association or body of persons, corporate or unincorporate'.
43 An examination of the provisions of the PSM Act indicates that the reference to an employee contained within Part 5 – Substandard Employment and Disciplinary Matters is reference to the person who is the subject of a substandard performance or disciplinary process as an employee and later is referred to as the respondent (s 81(2)), that is, the employee who is alleged to have a substandard performance or to have breached discipline. All other references to person relate to the person to whom the direction is given to investigate or inquire or to the standard of performance which a person might reasonably be expected to attain. It is quite clear from the use of the terms employee and person that they are not synonymous for the purposes of the processes under Part 5 of the PSM Act.
44 It is useful also to note that Section 11 – Minister may direct holding of special inquiry, as with ss 81(2)(a), 83(1) and 86(4)(a), refer to a person, in this case being a 'suitably qualified person', being directed to hold a special inquiry.
45 Taken in context, the reference within s 76 to Part 5 applying to and in relation to public service officers and other employees ought to be seen as applying to those employees in regard to the alleged substandard performance or alleged breach of discipline by those employees (underlining added). This is consistent with the context and the purpose of the PSM Act, and in particular Part 5. Part 5 imposes particular responsibilities and processes on the employing authority, the Minister and other 'persons', however its purpose is to deal with the alleged substandard performance and those breaches of discipline by those employees as part of the 'management of Public Service and other public sector employment' (long title of the PSM Act). This is confirmed by Part 5 containing reference to, and powers and responsibilities being imposed upon, bodies and persons who are not employees. For example, certain powers are to be exercised by or on behalf of the Governor and by the Minister (ss 77, 79 and others). While the Governor and the Minister may be employing authorities to certain classes of employees, they are not themselves employees.
46 Part 5 also has application to the jurisdiction of the 'Industrial Commission constituted by the Public Service Appeal Board' and 'the Industrial Commission' (s 78). Likewise these bodies are not employees.
47 Therefore, whilst s 76 says that it applies to employees, for the purposes of s 76, the application of Part 5 to those employees is for the purpose of those employees being the subject of substandard performance or breach of discipline allegations. Reference to other persons who are not such employees is for that purpose. It is in that context that Part 5 applies to those named types of employees and does not mean that any other person or body referred to within that Part is or must be an employee.
48 Accordingly, the Appellant's submission that Part 5 ought to be read as requiring the investigator or enquirer to be an employee is not sustained by the scheme of legislation. As the Respondent said, had the intention of the legislation been that only a public service officer, ministerial officer, or employee or member of a class of employee can be subject to such a direction to investigate or enquire then it would have been quite simple to have specified this condition. This is particularly so given the exclusion which has been specified of the Commissioner for Public Sector Standards.
49 Further, given the definition of person in accordance with the Interpretation Act 1984, one can see why the term person has been used to describe someone directed by the employing authority to undertake the investigation or the inquiry. That definition enables the employing authority to direct all manner of individuals or organisations for the purpose of having the investigation or inquiry undertaken. The same term person is used in s 11 by which the Minister may direct a 'suitably qualified person' to hold a special inquiry, yet that section is not limited in its application to employees as is Part 5.
50 The only question which might arise in that regard is the use of the terms 'direct' and 'direction' in ss 81(2), (3) and (4) and those terms as they are used further throughout the process. The Macquarie Dictionary, third edition defines 'direct' as:
'1. to guide with advice; regulate the course of; conduct; manage; control. 2. to give authoritative instructions to; command; order or ordain (something): I directed him to do it, or that he do it … 5. to point or aim towards a place or an object; cause to move, act, or work towards a certain object or end … 9. to give commands or orders ...'
and 'direction' as:
'1. the act of directing, pointing, aiming, etc … 5. guidance; instruction. 6. order; command. 7. management; control …'
51 Some aspects of those definitions would require that the 'person' be able to be subject to an authoritative order or command of the employing authority. This would appear to be inconsistent with engaging someone other than an employee to undertake work however this matter was not argued before me and I draw no conclusions as to it.
105 Commissioner Scott did not find that an investigator appointed under s 81 of the PSM Act can only be an employee. She left unanswered the question whether a person who is directed to investigate a suspected breach of discipline under s 81(2) of the PSM Act could be subject to an authoritative order or command of the employing authority, if the person appointed to investigate is not an employee of an employing authority. In my opinion, I do not see that if an investigator is not bound by the express and implied terms of contract of employment to comply with a direction given under s 81(2), that it necessarily follows that the person cannot be bound by a direction to investigate. Of importance, all persons appointed to investigate under s 81(2) are bound by the statutory command in s 81(3) of the PSM Act to comply. If an investigator failed to comply with a direction to investigate, compliance could be obtained through a prerogative order of mandamus for which relief can be sought for a failure or refusal to perform a public duty: see the discussion in chapter 13, Aronson M, Dyer B and Groves M, Judicial Review of Administrative Action (4th ed, 2009). Where a duty is created by a statutory provision the duty will be regarded as a public duty: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 584 - 585 Brennan J. Thus a direction to investigate would in my opinion be regarded as a 'public duty'. An action may also lie against the investigator in tort for breach of statutory duty. Also where an investigator is appointed and the employing authority enters into a contract for services with the investigator for performance of the direction, if the investigator fails to carry out the investigation at all, or in the manner required by the PSM Regulations, an action may lie against the investigator for breach of contract.
106 For these reasons, I am not persuaded by the appellant's argument that the appointment of Mr Baskwell is invalid as he was not an employee of the respondent. In my opinion, persons other than employees can be appointed under s 81(2) of the PSM Act to investigate a breach of discipline.
107 The appellant also argues that the direction to Mr Baskwell to investigate is invalid as the letter of appointment did not constitute a 'direction', nor did the letter effect a delegation of power to investigation. This point is semantic and is also one without substance. Section 81(2) provided:
(2) After having given the respondent the reasonable opportunity referred to in subsection (1), the employing authority may —
(a) if it is not the Minister, investigate or direct another person to investigate; or
(b) if it is the Minister, direct another person to investigate,
the suspected breach of discipline in accordance with prescribed procedures.
108 The respondent in a letter to Mr Baskwell dated 26 March 2012 (exhibit 2, GR 34) did not use the words 'I direct you to investigate' but instead said 'I would like to appoint you as Investigator to undertake an investigation … in relation to an act which may constitute a breach of discipline'. Whilst the language used was very polite, the terms of the letter made it clear that Mr Baskwell was to carry out an investigation into the alleged breach of discipline and Mr Baskwell was to be paid for carrying out the investigation. As such, the 'request' can be construed as a direction as the effect of the terms of the letter is to direct an investigation. The word 'direct' in s 81(2) of the PSM Act can be construed not only as a command to carry the task of investigation, but also to organise a person to carry out the investigation. However, once the direction is given the direction must be complied with: s 81(3).
109 As to the argument that the direction to Mr Baskwell was invalid as the respondent did not execute a written instrument of his (the respondent's) powers as required by s 33 of the PSM Act, s 33 provided:
Subject to any other written law, a chief executive officer or chief employee may, in writing and either generally or as otherwise provided by the instrument of delegation, delegate to an employee in his or her department or organisation any of his or her powers or duties under this Act, other than this power of delegation.
110 The respondent did not delegate his powers to Mr Baskwell, nor was it necessary for him to do so. Under s 81(2)(a) of the PSM Act, once a person is directed to carry out an investigation, the investigation has to be carried out in accordance with the approved procedures. The only power that could be delegated under s 81(2)(a) is the power vested in an employing authority to investigate or give a direction. If the employing authority's power to personally carry out an investigation or power to give a direction to another person to investigate was to be delegated, it must be to an employee in accordance with s 33 of the PSM Act. If a delegation was effected in accordance with the requirements of s 33, the person to whom the power was delegated would then have the power to investigate as if he or she was the employing authority, or to direct another person to investigate. This did not occur. The respondent did not delegate his power to investigate, nor did he delegate his power to direct another person to investigate.
111 For these reasons, I am of the opinion that Mr Baskwell's appointment as an investigator was valid and the decision made by the respondent to appoint Mr Baskwell to investigate the suspected breach of discipline was validly made.
The requirements of procedural fairness when invoking the steps in s 81 of the PSM Act
112 As the respondent points out in his submission when an employing authority suspects an employee or ex-employee has committed a breach of discipline, the requirements of procedural fairness are expressly prescribed. In November 2010, these requirements were, at all material times:
(a) The person who is suspected of a breach of discipline is to be given notice of all the allegations in the written notice: reg 15 of the PSM Regulations.
(b) Once served with a notice in writing of a suspected breach of discipline the person is to be afforded a reasonable opportunity to submit an explanation: s 81(1) of the PSM Act.
(c) After the person has been given a reasonable opportunity to respond, the employing authority may initiate an investigation under s 81(2) of the PSM Act. After this decision is made by the employing authority, but before the investigation commences, the person who is suspected of a breach of discipline must be notified in writing of the matters set out in reg 16 of the PSM Regulations.
113 In this appeal the appellant raises no complaint that once the decision was made by the respondent to direct Mr Baskwell to investigate he was not notified of the matters referred to in reg 16. Yet, the appellant complains that he was not provided with sufficient particulars of the alleged breach when he first received the notice of alleged breach of discipline. However, as the respondent points out, any complaint about that is not a matter that relates to the decision the subject of this appeal. Further, that even if it was part of the 'decision' the subject of this appeal, it is not a matter that arises 'in relation to an interpretation of any provision of the Public Sector Management Act 1994, and any provision of the regulations made under that Act, concerning the conditions of service' of public service officers. When an appeal is brought under s 80I(1)(a) of the Act, the Public Service Appeal Board is not empowered to deal with a dispute about matters such as whether particulars of a suspected breach of discipline were provided, or whether the particulars provided were sufficient to enable a finding to be made that notice had been given of 'all the allegations made against the person' as required by reg 15 of the PSM Regulations. Section 80I(1)(a) creates a right of appeal which is in the nature of a declaration of the construction of legislative provisions in the PSM Act and regulations made under the PSM Act. It does not enable a review of matters arising out of a decision by an employing authority that do not relate to the interpretation of legislation or regulations.
114 Thus, in this matter, whether the particulars provided to the appellant in the notice of suspected discipline constituted notice of all the allegations as required by reg 15 is not a question that requires an analysis of the proper construction of reg 15 or s 81(1) of the PSM Act. Such a dispute about particulars would be regarded as an 'industrial matter' and would be within the exclusive jurisdiction of the Public Service Arbitrator to inquire into under s 80E of the Act.
115 Other than what was expressly prescribed by s 81(1) and s 81(2) of the PSM Act and reg 15 and reg 16 of the PSM Regulations, when regard is had to the nature of the steps set out in the statutory scheme in these provisions, it is apparent that the appellant had no right to be afforded procedural fairness prior to the commencement of investigation by Mr Baskwell.
116 The disciplinary scheme in Part 5 of the PSM Act and the PSM Regulations contemplates the provision of procedural fairness at later stages of the investigation process: see the discussion in The Civil Service Association of Western Australia Inc v Director General, Department of Education and Training [17] - [31].
117 At law, no duty to accord procedural fairness usually arises when initiating an inquiry or taking steps to commence a disciplinary inquiry, as such decisions lack finality and are merely preliminary steps in a disciplinary process.
118 In The Medical Board of Queensland v Byrne (1958) 100 CLR 582, a medical practitioner was convicted on four charges under the Repatriation Regulations of falsely completing forms stating he had attended certain patients. After the conviction, the Medical Board of Queensland charged him with disciplinary offences to be heard by a Medical Assessment Tribunal constituted by a judge. The decision to charge the medical practitioner was made without giving him an opportunity to be heard on the issue whether the offences of which he had been convicted were deserving of disciplinary punishment before the charges were laid. It was argued that the Medical Assessment Tribunal had no jurisdiction to hear the disciplinary charges as the medical practitioner had not been afforded procedural fairness prior to the decision being made to lay the charges. McTiernan J observed at 590 that the only adverse consequence of the opinion of the Medical Board to the medical practitioner was that he was to be charged and to have a judicial trial before a tribunal. Fullagar and Taylor JJ made similar observations. At 594 they said:
In our view the words in s. 37(1)(iii) – 'for which in the opinion of the Board he should be subjected to disciplinary punishment under this Act' – merely prescribe a condition to be satisfied before the board proceeds 'to have the medical practitioner concerned charged accordingly before the tribunal'. The formation of the opinion which satisfies this condition is, in no sense, any part of a judicial process; on the contrary the requirement that it shall be formed before a charge is preferred is but an administrative safeguard against the formulation of charges before the tribunal based upon convictions for trivial offences or for offences which cannot be thought to call for any disciplinary action under the Act. Accordingly when such a charge is made it is for the tribunal ultimately to determine whether the conviction is in respect of an offence for which the practitioner should be subjected to disciplinary punishment.
119 Similar issues arose in Edelsten v Health Insurance Commission (1990) 27 FCR 56. In that matter the Health Insurance Commission commenced an investigation into whether Dr Edelsten had rendered excessive services. The purpose of the investigation was to determine whether there was sufficient evidence to refer the case and information with recommendations to a committee who was required to inquire into the matter and submit a report and make recommendations to the Minister for Community Services and Health. After a review of records produced by Dr Edelsten, the inquirer, a Dr Nearhos submitted a report to the committee. Dr Edelsten sought a review of the report under the Administrative Decisions (Judicial Review) Act 1977 (Cth) on grounds that Dr Nearhos was obliged to comply with the rules of natural justice (the rules of procedural fairness). Dr Edelsten's application for review failed. He appealed the decision to the Full Court of the Federal Court who found the inquiry by Dr Nearhos did not affect the rights of Dr Edelsten and thus the rules of procedural fairness did not apply to the inquiry held by Dr Nearhos. Northrop and Lockhart JJ explained their reasoning in reaching this conclusion as follows (68 - 70):
No rights of Dr Edelsten are affected by Dr Nearhos's decision, nor does any 'legitimate expectation' arise from it. During the course of the investigations being made by Dr Nearhos, Dr Edelsten spent much time and energy in supplying information to Dr Nearhos and other officers of the Commission. This action by Dr Edelsten can be understood, but that action does not 'constitute rights of Dr Edelsten' in any relevant sense. Nor does that action form the basis for any 'legitimate expectation'. Dr Edelsten was not required by law to take that action or to give any information or explanation. The legal 'rights' of Dr Edelsten were not affected by what the officers did. Dr Edelsten could have refused to co-operate and in so doing would not have committed any offence. For similar reasons, neither did the subsequent decision of Dr Dash to refer, as delegate of the Minister, the matter to the Committee pursuant to s 82 affect any rights of Dr Edelsten or give rise to any legitimate expectation. Indeed, even when the Minister or his delegate refers a matter to the Committee pursuant to s 82, the Committee, though bound by s 94 to consider the matter, may decide no more than that Dr Edelsten may have rendered excessive services: s 94(c). But the Committee is not empowered to decide at that preliminary stage whether Dr Edelsten has or has not rendered excessive services, simply whether he may have rendered excessive services. It is only when the Committee reaches an affirmative view on that question that it is required to conduct a hearing into the matter: s 94(j) and (k). The machinery of the Health Insurance Act then comes into operation, requiring the Committee to give notice of the hearing to Dr Edelsten and particulars of the matter to which the hearing relates (s 95); empowering it to issue summonses to Dr Edelsten and others for the production of documents and the giving of evidence at the hearing; and giving Dr Edelsten the right to legal representation at the hearing which must be conducted in private. Sections 94 to 105 of the Health Insurance Act contain provisions commonly found with respect to administrative inquiries, conferring powers on the inquisitor and rights and duties on the person whose conduct is the subject of the inquiry.
There is no doubt that the rules of natural justice apply to the hearing before the Committee. Dr Edelsten must be given full opportunity to answer all of the particular matters set out in the notice of hearing under s 95(2) if a hearing in fact takes place. Whether there will be such a hearing will depend on whether the Committee reaches a preliminary conclusion that Dr Edelsten may have rendered excessive services.
The making of an adverse report and recommendations by the Committee to the Minister does not itself in law affect Dr Edelsten's rights, though it is the genesis of a series of steps which ultimately may seriously affect his rights. The Minister must first consider the report and recommendations and may make a determination in writing in accordance with the recommendations: see s 106(1), the terms of which are set out earlier. Dr Edelsten then has a right to request a review of the determination or to apply for judicial review under s 106(3). It is only when the processes of review by a Medical Services Review Tribunal under Div 3 or judicial review under Div 4 of Pt VA of the Act are completed that the Minister's determination takes effect. The Minister is then required, by s 106AA to publish the requisite particulars of the determination and certain other matters and to cause a copy of the relevant statement to be laid before each House of the Parliament.
An adverse report of the Committee pursuant to s 104 and adverse recommendation under s 105 may clearly lead to serious injury to Dr Edelsten, his livelihood and reputation. But the decisions of Dr Nearhos and Dr Dash are at very early stages of the administrative process for determining if Dr Edelsten has rendered excessive services, and they are no more than steps in an administrative process that may lead to an ultimate or operative determination affecting his position. In themselves the decisions of Dr Nearhos and Dr Dash are steps remote from any such consequences. Those decisions lack any quality of finality and they are not substantive determinations.
120 In this matter all that has occurred is that the appellant was served with a notice of suspected breach of discipline. He was afforded an opportunity to respond to the allegations in the notice. Whilst he was not required to respond, he did so. After seeking information from officers of UNODC, the respondent made a decision to direct Mr Baskwell to investigate the alleged breach. These steps are only part of a disciplinary process. They have no finality. The steps are merely investigatory and preliminary in nature.
121 In The Civil Service Association of Western Australia Inc v Director General, Department of Education and Training an issue arose following a decision made that employees had committed minor breaches of discipline, whether the rules of procedural fairness required the employees to be provided with a copy of the inquirer's report of an inquiry conducted under s 81(2) of the PSM Act. In considering this issue, I considered the stage at which the rules of procedural fairness must be applied in a disciplinary inquiry and in doing so I had regard to the observations of McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 and the Full Court in Cornall v AB (A Solicitor) [1995] 1 VR 372. In Miah McHugh J said [146]:
Natural justice requirements are less likely to attach to decisions that are preliminary in nature. Examples are decisions to lay charges or commence disciplinary proceedings. The closer a decision is to having finality and immediate consequences for the individual, however, the more likely it is that natural justice requirements apply (Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Murray v Legal Services Commissioner (1999) 46 NSWLR 224; Rees v Crane [1994] 2 AC 173. See Cornall v AB [1995] 1 VR 372 where (at 395) the Appeal Division of the Victorian Supreme Court distinguished cases like Ainsworth and Rees v Crane as 'special cases where the outcome of the investigation and the recommendations made or opinions formed by the investigators were either final in the process thereby undertaken or led to immediate consequences of such importance to the individual investigated that the investigating body was obliged to afford procedural fairness'. See also Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 158-162; Parker v Anti-Corruption Commission (unreported; Full Court of the Supreme Court of WA; 31 March 1999)).
122 In Cornall the Full Court observed that there is no principle that (396):
[E]very investigator or investigative body must afford a person under investigation an opportunity to be heard in the sense understood in the law before they recommend a further step of a kind which will result in a judicial or quasi-judicial determination of the correctness or otherwise of the allegation made by the investigator. To do so would be to stifle the necessary functions performed by the police and the other many and varied authorities who for the protection of the public have to investigate alleged breaches of the law. That is not to imply that police and investigative bodies ought not to act fairly, nor, where appropriate, to seek answers (to the extent permitted by law) from those who are under investigation, but ordinarily the investigative process cannot be hedged around with requirements to seek further explanations at each stage of an inquiry. In this kind of investigation it is not the investigator's function to reach conclusions as to guilt or innocence but to determine whether there is an arguable case of sufficient strength to sustain a conviction or which would justify the imposition of monetary penalties or other sanctions by a disciplinary or other judicial or quasi-judicial tribunal. Regrettably the reputation of those charged with offences or brought before disciplinary or other tribunals will suffer to an extent in the eyes of those who fail to appreciate the different functions of investigator and decision-maker, whether judicial or quasi-judicial. Where the function of going forward with the prosecution or charge does not involve more than satisfaction as to facts sufficient to form a prima facie case, there is little practical merit in providing to a person so charged a further opportunity to make submissions or adduce facts to an investigator who is not essentially the fact-finding tribunal.
123 In this matter, the decision sought to be appealed is one step back from an investigation. It is the decision to investigate. Such a decision of a preliminary nature cannot in itself be a decision that the appellant is entitled to be heard on, or be told of all of the information the respondent acts upon, when making the decision.
124 Turning to the appellant's argument that the respondent performed three incompatible functions of complainant, investigator and decision-maker, which resulted in bias, it is important to firstly consider the distinction between a claim of actual bias and a claim of apprehended bias.
125 The distinction between actual bias and apprehended bias was considered by me in a joint judgment with Beech CC in Palermo v Rosenthal [2011] WAIRC 00069; (2011) 91 WAIG 129. In that matter we observed [120] - [123]:
120 The obligation on a member of the Commission when hearing a matter is to observe procedural fairness. This obligation includes the duty to hear and decide matters without bias or the appearance of bias. Bias means some preponderating disposition or tendency, a propensity, predisposition towards, predilection, prejudice. It may be occasioned by interest in the outcome, by affection, enmity or prejudgment: Minister for Immigration v Jia [2001] HCA 17; (2001) 205 CLR 507, 563 (Hayne J).
121 Grounds 1 and 10 raise the issue whether the appellant was denied procedural fairness on grounds of actual bias or apprehended bias by prejudgment. The test of whether the state of mind of a decision maker is affected by bias in the form of prejudgment is as Gleeson CJ and Gummow J described in Jia [74]:
is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.
122 Actual bias is rarely raised as a ground to impugn a decision, as it is ordinarily sufficient to establish apprehended bias of a decision maker. The test to be applied in determining whether a judge is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend the judge might not bring an impartial and unprejudiced mind to the resolution of the question he or she is required to decide: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 (492); R v Lusink; Ex parte Shaw (1980) 32 ALR 47; (1980) 55 ALJR 12; Livesey v NSW Bar Association (1983) 151 CLR 288; Vakauta v Kelly (1989) 167 CLR 568; and Webb v The Queen (1994) 181 CLR 41. The test is objective.
123 Actual bias usually arises in the form of prejudgment. The distinction between actual bias and apprehended bias was explained by North J in Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 as follows (134 - 135):
Actual bias exists where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant: Wannakuwattewa v Minister for Immigration and Ethnic Affairs (unreported, Federal Court, North J, No VG 451/1994, 24 June 1996) and Singh v Minister for Immigration and Ethnic Affairs (unreported, Federal Court, Lockhart J, No 902/96, 18 October 1996). The courts have rarely found actual bias to exist. That is principally because, at common law, a reasonable apprehension of bias suffices to disqualify a judicial officer. Where actual bias exists, reasonable apprehension of bias will also exist and, consequently, courts concerned with supervising the application of the requirements of natural justice have not had to go so far as to find actual bias. Another reason is that actual bias is usually difficult to prove. Rarely will the judicial officer expressly reveal actual bias. However, several New Zealand licensing cases do provide some examples of express actual bias. For instance, in Isitt v Quill (1893) 11 NZLR 224, the decision of a Licensing Committee to refuse to renew certain licences was overturned because the Committee members had made pledges in their election campaign to refuse all licences. See also the judgment of Stout  CJ in Re O'Driscoll; Ex parte Frethey (1902) 21 NZLR 317. Where actual bias is not expressly voiced, it may be proved by inference from the facts and circumstances.
…
[P]roof of actual bias by inference from the facts and circumstances of the case will usually involve an assessment of a series of actions by the decision-maker which, when taken together, form a whole picture leading to the conclusion of pre-judgment. It is unlikely that one single action, as distinct from a pattern of conduct, will demonstrate actual bias.
126 As the respondent points out, s 81 and s 83 of the PSM Act confer on the respondent three functions of complainant, investigator and decision-maker. In s 81(1) an employing authority is authorised to give an employee a notice of suspected breach of discipline. Thus, the respondent was empowered to act on information provided to him that the appellant may have breached s 102 of the PSM Act. Under s 81(2) the respondent was entitled to investigate the breach himself or direct another person to do so. Pursuant to s 83 once Mr Baskwell completed his investigation (or if the respondent had carried out his own investigation under s 83(2)) the respondent is required to make a determination himself whether the appellant:
(a) has committed a minor breach of discipline;
(b) may have committed a serious breach of discipline; or
(c) has committed no breach of discipline.
127 As the respondent is authorised by s 81 and s 83 of the PSM Act to carry out each of these functions, no claim of apprehended bias can arise. However, these provisions cannot prohibit a claim of actual bias: Builders' Registration Board of Queensland v Rauber (1983) 47 ALR 55; see in particular reasoning of Brennan J at (72 - 73).
128 The appellant's claim of apprehended bias and actual bias is founded solely on the proposition that where one person acts as accuser, investigator and decision maker, actual bias necessarily arises. As these roles are authorised by the PSM Act, apprehended bias and actual bias cannot arise by the mere performance of these functions. For actual bias to arise some evidence of prejudgment or prejudice on behalf of the respondent must be shown in making the decision. No such allegations are made. For these reasons, the appellant's submissions about bias have no substance.
Is there an onus on the respondent to prove the appellant is a public service officer
129 In this appeal, in my opinion, it is not open to the appellant to put an argument that an onus rests on the respondent to prove that he (the appellant) is a public service officer. For the appellant to invoke the jurisdiction of the Public Service Appeal Board under s 80I of the Act he must be a public service officer. To put this matter in issue is to 'approbate and reprobate'; that is to put this in issue is wholly inconsistent with the jurisdiction upon which he relies to bring this appeal. Thus, he should not be allowed to seek a benefit by pursuing an appeal under s 80I(1)(a) of the Act and at the same time disclaim liability under Part 5 of the PSM Act by attempting to claim that no disciplinary action can be instituted against him under s 81 of the PSM Act as he is not a public service officer.
130 Leaving this point to one side, the attempt to raise this issue is, in any event, entirely without merit. In The Civil Service Association of Western Australia Inc v Commissioner Corruption and Crime Commission [2008] WAIRC 01511; (2008) 89 WAIG 4 the Full Bench found that the appellant was returned to a public service position in 2007 when his employment with the Corruption and Crime Commission was terminated pursuant to s 180(3) of the Corruption and Crime Commission Act 2003 (WA). In particular, Ritter AP found [173]:
Mr Ross had been a permanent officer. When his employment with the CCC ended it was not of course his employing authority. Accordingly the redeployment provisions of the PSMRRR did not apply. Mr Ross could however return to an office at his former level of classification if he exercised the entitlement under s180(3) of the CCC Act. The DPC engaged in the relevant process to ensure this occurred. Although Mr Ross was not happy with this, he accepted an appointment with the DPC on 23 February 2007. This completed the entitlement and process provided for in s180(3) of the CCC Act.
(See also [164](b) and (c)). (Beech CC agreed [204] and I also agreed [211]).
131 The only relevant dispute that arose from the appellant's return to a public service officer's position in 2007 was whether the appellant was provided with duties to perform and whether he should have been returned to a level 9 position: Ross v Conran, Director General Dept of the Premier and Cabinet [2011] WAIRC 00955; (2011) 91 WAIG 2261 (PSAB 18 of 2010). In PSAB 18 of 2010 the material facts of the appellant's employment history as a public service officer were set out in some detail. In particular, the steps that were taken to return him to a public service officer's position were recorded in those reasons as follows [5] - [9]:
5 He commenced employment with the Western Australian Public Service on 15 December 1997 in the Department of Justice as a Manager, Forensic Case Management Team. His substantive position was at level 7 at the highest increment, level 7.3, in recognition of his skills and previous experience. The appellant was employed by the Department of Justice until 2002. During that period he acted for periods of time in a level 8 positions as Superintendent of Bandyup and Nyandi Prisons and a Manager of Prisoner Health Services.
6 In August 2002, the appellant was seconded to the Kennedy Royal Commission as the Manager of the Research, Policy and Reform Unit and paid as a level 8 on the highest increment level. He worked in this position until February 2004 when the Kennedy Royal Commission completed its work. He then accepted another secondment which was to the CCC to assist in the establishment of the CCC. From 2 February 2004 to 16 May 2004, the appellant acted as a Class 1 as the Director of Corruption Prevention, Education and Research (exhibit D, annexure KA 07). During this period he applied for the advertised position of Manager, Corruption Prevention, Education and Research which was a level 9 position. He acted in this position from the time he ceased to act in the Class 1 position to when he was formally appointed to the position on 8 October 2004. Pursuant to s 179 of the Corruption and Crime Commission Act 2003 (WA) (the CCC Act) the appointment of the appellant to the level 9 position was for a term of five years from 8 October 2004 to 7 October 2009.
7 By a letter dated 16 January 2006, the CCC informed the appellant that the position he occupied had been reclassified from a level 9 to a level 8. The appellant was also advised that his salary would be maintained as a level 9: Civil Service Association of Western Australia (Inc) v Commissioner Corruption and Crime Commission [2008] WAIRC 00181; (2008) 88 WAIG 265 [2], [13] and [14] (PSACR 27 of 2006). The appellant disputed the unilateral reclassification of his position from level 9 to level 8. The appellant experienced a workplace illness of clinical depression and anxiety and he was off work for periods of absence on workers' compensation. A consequence of the dispute was that he became surplus to CCC requirements.
8 When the appellant's contract of employment with the CCC ended on 1 September 2006 he became entitled pursuant to s 180(3) of the CCC Act to be appointed to an office under pt 3 of the PSM Act of at least the equivalent level of classification as the office the appellant occupied immediately prior to his appointment under s 179 of the CCC Act, which was at level 7. The appellant was the first public service officer to be returned to the public service under s 180(3) of the CCC Act. A dispute arose as to the classification that he should be returned at. There was also an issue as to what agency he should be returned to.
9 On 14 February 2007, the appellant was offered a position in the Department of Premier and Cabinet (DPC). The position was unattached and did not carry with it any specific duties or requirements set out in a job description form (JDF). The offer of employment provided that:
(a) the appellant's employment with the DPC would commence on 16 February 2007;
(b) he would be appointed permanently to a level 7 classification; and
(c) his rate of salary would be level 7, 3rd year.
The offer also stated that his duties would be as directed by DPC and that DPC would seek to place him in a permanent position internally in the first instance and in the event that this was not possible a placement would be pursued in accordance with the Public Sector Management (Redeployment and Redundancy) Regulations 1994 (WA). The appellant accepted the offer under protest on 22 February 2007. The appellant says he did so under duress because he had no choice. It is common ground that if he had not accepted the offer his career in the public service would have come to an end.
Interpretation of s 102 of the PSM Act – issue estoppel and res judicata
132 The appellant has only addressed the issue whether res judicata should act as a bar to his appeal proceeding. His submissions do not address whether issue estoppel should preclude his appeal. Both doctrines can act as a bar to further proceedings between parties. However, in each doctrine different criteria must be met before a bar will apply.
133 In Knight v Commissioner of Police [2011] WASC 93 EM Heenan J explained the difference between the doctrines of res judicata and issue estoppel. At [46] - [50] he said:
46 The learned authors of Spencer, Bower & Handley, Res Judicata (4th ed, 2009) write at [1.01]:
Res judicata is a decision pronounced by a judicial or other tribunal with jurisdiction over the cause of action and the parties, which disposes once and for all of the fundamental matters decided, so that, except on appeal, they cannot be relitigated between persons bound by the judgment.
47 The underlying reasons for the principle are clear and were stated by Lord Blackburn in Lockyer v Ferryman (1877) 2 App Cas 519, 530:
The object of the rule of res judicata is always put upon two grounds - the one public policy, that it is in the interests of the State that there should be an end of litigation, and the other, the hardship on the individual, that he should be vexed twice for the same cause.
48 A res judicata is a decision on the merits pronounced by a tribunal which is judicial in the relevant sense. As described in Spencer, Bower & Handley, Res Judicata at [2.02]:
It is immaterial for present purposes whether the tribunal is a court of record or not, or whether it is a superior court or not, or whether it is or is known as a court. Nor does it matter whether the tribunal, if English, has civil or criminal jurisdiction.
49 Res judicata is distinct from the doctrine of issue estoppel. The former applies only where a party attempts to relitigate a cause of action which has merged into a judgment in a prior proceeding - Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 per Gibbs CJ, Mason and Aickin JJ at 597. By contrast, the doctrine of issue estoppel applies where some question of fact or law was necessarily decided as part of the legal foundation of the decision. Regardless of whether the action failed or succeeded, issue estoppel will operate to prevent that same question of fact or law from being relitigated in proceedings on a different cause of action between the same parties or their privies. Dixon J describes the distinction between res judicata and issue estoppel in Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at 531 - 532 as follows:
A judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established is the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
50 His Honour then went on to explain that when considering the application of the doctrine of issue estoppel, it is essential:
to distinguish the matters fundamental or cardinal to the prior decision or judgment, decree or order or necessarily involved in it as its legal justification or foundation from matters which, even though actually raised and decided as being in the circumstances of the case the determining considerations, yet are not in point of law the essential foundation or groundwork of the judgment, decree or order.
134 EM Heenan J in Knight then went on to say [52]:
52 The application of the doctrine of issue estoppel, as it applies in civil proceedings, was also examined in Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 where at [21] -[22] Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ observed:
In his speech in Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2] [1967] 1 AC 853 at 935, Lord Guest, after noting that the doctrine of issue estoppel had been accepted by Australian courts for a number of years, indicated that, for the doctrine to apply in the second set of proceedings, the requirements were:
'(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and (3) that the parties to the judicial decision or their privies were the same persons as the privies to the proceedings in which the estoppel is raised or their privies.'
There was no dispute about the satisfaction of requirement (3). The second review officer was not sitting as a 'court' in any strict or conventional sense, but it was common ground that:
'The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdictions are derive from statute or from the submission of parties, and it only has temporary authority to decide a matter ad hoc - Administration of Papua New Guinea v Daera Guba [1973] HCA 59; (1973) 130 CLR 353 per Gibbs J at 453.'
135 This appeal does not raise the same cause of action as PSAB 21 of 2010 so this is not a matter where doctrine of res judicata applies.
136 The subject matter of this appeal does, however, require analysis to determine whether issue estoppel applies. Issue estoppel can only apply where an issue is determined in one matter and an identical issue is raised in a second matter: Ramsay v Pigram (1968) 118 CLR 271, 276 (Barwick CJ).
137 PSAB 17 of 2010, PSAB 21 of 2010 and PSAB 22 of 2010 were all appeals against a decision of the respondent as an employing authority in relation to an interpretation of s 66 and s 102 of the PSM Act. The issues that arose in relation to the interpretation of s 66 of the PSM Act are not relevant to the matters raised in this appeal. The question in this appeal is whether the issue sought to be raised in this appeal in relation to the interpretation of s 102 of the PSM Act is identical to the issues determined in PSAB 17 of 2010, PSAB 21 of 2010 and PSAB 22 of 2010.
138 In PSAB 17 of 2010, PSAB 21 of 2010 and PSAB 22 of 2010 an assessment was made by the Public Service Appeal Board as to whether s 102(1) of the PSM Act applied to work carried out by the appellant in 2009 and 2010 for UNODC. Importantly, the following findings of fact and law were made:
(a) When the appellant engaged in research work overseas whilst on secondment to ECU in April 2010 (that had been approved by the ECU Ethics Committee in March 2010), s 102(1) of the PSM Act did not apply to this work, as this work was part of the function the appellant had to perform whilst on secondment [151] - [152].
(b) On each occasion the appellant engaged in consultancy work for UNODC his airfares were paid for by a third party and he received a daily subsistence allowance. On one occasion he was paid a consultancy fee for prison assessments conducted in Kenya. However, these facts were not sufficient to establish he had engaged in or was undertaking a business within the meaning of s 102(1)(c) of the PSM Act [153] - [154].
(c) The appellant was engaged in the private practice of the profession of 'criminologist' within the meaning of s 102(1)(d) of the PSM Act [156] - [159].
(d) Even if the appellant was not engaged in private practice of a profession, he carried out employment for reward for UNODC that was unconnected with his functions as a public service officer whilst he was on secondment to ECU within the meaning of s 102(1)(e) of the PSM Act [169].
(e) In relation to the appellant's request to carry out work as a criminal justice consultant on a voluntary basis from 8 November 2010 to 3 December 2010 during annual leave (which is the period of overseas work in question in this appeal):
(i) it was relevant for the respondent to ascertain whether the appellant would be in receipt of any remuneration, per diem, or other allowance, airfares and accommodation as such information was contemplated by s 102(1)(b), s 102(1)(c) and s 102(1)(e) of the PSM Act [186];
(ii) in the absence of the information requested by the respondent in his decision of 20 October 2010, it could not be said that the decision by the respondent to refuse permission to the appellant to work as a consultant was unreasonable [188].
139 In the notice of appeal in this matter, the appellant pleads that PSAB 17 of 2010, PSAB 21 of 2010 and PSAB 22 of 2010 did not concern the same period or circumstances as this appeal. Clearly, that contention is not correct. However, the issue determined in PSAB 17 of 2010, PSAB 21 of 2010 and PSAB 22 of 2010 in relation to s 102 of the PSM Act is not identical to the issue raised in this appeal. In this appeal, the issue is whether the respondent was entitled to make a decision to investigate whether the appellant had breached s 102 when he performed work overseas for UNODC while on annual leave from 8 November 2010 to 3 December 2010. That issue was not determined in PSAB 17 of 2010, PSAB 21 of 2010 and PSAB 22 of 2010. It is an issue that can be determined in an inquiry under s 81(2) of the PSM Act or any subsequent investigation under s 86 of the PSM Act, if a decision is made that the appellant appears to have committed a serious breach of discipline. Thus, the doctrine of issue estoppel cannot be called upon by the respondent to bar the appeal. Consequently, this ground of objection must fail.
Delay
140 In my opinion, whether the respondent is required to act with convenient speed when making a decision under s 81 of the PSM Act is a matter that relates to an interpretation of this provision of the PSM Act, within the meaning of s 80I of the Act.
141 As the appellant points out in his submissions, no time is fixed for the performance of the procedural steps prescribed in s 81 of the PSM Act and in the PSM Regulations. Thus, s 63 of the Interpretation Act 1984 can be called into aid to construe s 81 as requiring an employing authority to carry out the prescribed steps with convenient speed. What is a convenient speed must necessarily depend upon all relevant circumstances that relate to the occasion for the exercise of each step.
142 As the question whether the appellant was required by s 102 of the PSM Act to seek the permission of the respondent before undertaking work for UNODC in Africa was a central issue in PSAB 17 of 2010, PSAB 21 of 2010 and PSAB 22 of 2010, in my opinion it was reasonable for the respondent to not proceed with the disciplinary process against the appellant until after the decision of the Public Service Appeal Board in those appeals was delivered. Not only was it reasonable to put the matter in abeyance, it was appropriate to do so. Thus to use the words in s 63 of the Interpretation Act, it was not convenient to proceed until the Public Service Appeal Board had delivered its decision.
143 There was a further delay by the respondent in making the decision to proceed with an inquiry after the Public Service Appeal Board delivered its reasons for decision in PSAB 17 of 2010, PSAB 21 of 2010 and PSAB 22 of 2010 on 16 November 2011. However, what circumstances were relevant that arose between the time of the delivery of the reasons for decision in PSAB 17 of 2010, PSAB 21 of 2010 and PSAB 22 of 2010 and the decision to institute an investigation of the suspected breach of discipline is not known. This, in my view, is not material.
144 Whether the delay rendered the decision that issued on 26 March 2012 unfair based merely on the fact of a delay is, however, without merit. Without some evidence or cogent submission that the delay caused or was likely to cause a prejudicial consequence or consequences to the appellant's legitimate interests, or create a substantial risk that Mr Baskwell would not be able to fairly assess the evidence, the appellant's claim that the delay was unfair must inevitably fail.
Should this appeal be dismissed
145 In the reasons for decision in PSAB 17 of 2010, PSAB 21 of 2010 and PSAB 22 of 2010 findings of fact and law were made that the appellant in engaging in work for UNODC overseas, was required to comply with s 102(1) of the PSM Act as work with UNODC was work within the scope of the meaning of s 102(1)(d), or, alternatively, s 102(1)(e) of the PSM Act. In my opinion, after these findings were made, the respondent was entitled to proceed with an inquiry under s 81(2) of the PSM Act into whether the appellant had breached s 102(1) of the PSM Act, whilst on annual leave from 8 November 2010 to 3 December 2010. Such a decision, in my opinion, was reasonable.
146 Where disciplinary proceedings have been instituted on reasonable grounds and are not baseless, a Public Service Appeal Board should not intervene to stop an inquiry or investigation into a suspected breach of discipline: S v The Director-General, Department of Racing, Gaming and Liquor [2012] WAIRC 00700; (2012) 92 WAIG 1630. The grounds for intervention do not as the appellant suggests allow the Public Service Appeal Board to make their own assessment of the truth of the factual material relied upon by an employer in making a decision to investigate. The Board is simply required to objectively assess whether reasonable grounds exist to implement disciplinary action, on the assumption that the facts alleged are capable of establishing a breach of discipline, are true. In Civil Service Association of Western Australia Inc v Director General of Department for Community Development Anderson J said [18] - [19]:
The appellant's main contention was that the respondent had no right to conduct an investigation into the conduct of Mr H because that conduct did not 'occur in the workplace or in the course of an employee discharging authorised duties … in the employment relationship', to use the words of the application. The appellant's case was that it was a private matter and not a breach of discipline 'whilst serving as an employee' within the meaning of s 81(1) of the Public Sector Management Act. In short, it was the appellant's case that the conduct alleged could not be misconduct.
In examining this contention, the Arbitrator might have been expected to confine herself to those facts which were alleged by Ms S in support of her complaint. The Arbitrator might have been expected to simply ask herself the question whether if all of the factual material put forward by Ms S in support of her complaint was true, did that factual material disclose grounds on which the Director could suspect that Mr H had committed a breach of discipline whilst serving as an employee. I think that would have been the proper and better approach.
147 In my opinion, this appeal should not proceed and should be dismissed under s 27(1)(a) of the Act as there was a reasonable basis for the respondent to proceed with an investigation as the findings in PSAB 17 of 2010, PSAB 21 of 2010 and PSAB 22 of 2010 provided grounds upon which the respondent could rely upon to form a suspicion the appellant had committed a breach of discipline. The relevant facts upon which a suspicion could be founded, are set out in [138](c), (d) and (e) of these reasons.
148 Further, there is no merit in any of the issues sought to be litigated in this appeal which are matters which arise out of the decision to proceed with an investigation under s 81(2), that are matters that relate to an interpretation of any provision of the PSM Act or the regulations made under the PSM Act.
149 For these reasons, I am of the opinion that an order should be made to dismiss the appeal.
MS B CONWAY
150 I have read a draft of the reasons for decision of Smith AP. I agree with those reasons and have nothing to add.
MR E ISAILOVIC
151 I have read a draft of the reasons for decision of Smith AP. I agree with those reasons and have nothing to add.