Legal Practice Briefing No. 21

Number 21

24 October 1995

THE DISCIPLINING OF PUBLIC
SERVANTS -
SOME ASPECTS

Introduction

The Statutory Framework

The disciplining of officers of the Australian Public
Service is dealt with in Division 6 of Part III of the Public
Service Act 1922 ('the Act') and the Public Service
Regulations, the Merit Protection (Australian Government
Employees) Act 1984 and the Merit Protection
(Australian Government Employees) Regulations.

An Officer's Duties

For disciplinary purposes, it is clear that the duties
of an officer are not confined to the duties of the particular
office occupied by that officer. Rather, the Act recognises
that there are more general duties which, if not fulfilled,
will render an officer liable to discipline. For instance,
all officers are obliged to comply with any enactments,
regulations, determinations, awards or departmental instructions
applicable to the performance of their duties (Public Service
Regulation 8A(b)).

What Does Not Constitute Disciplinary
Action

Counselling of an officer which is not undertaken by,
or at the behest of, an authorised officer under paragraph
61(2)(a) of the Act, or by an inquiry officer under subsection
62(6) of the Act, does not amount to disciplinary action.
Likewise, levelling criticism at an officer's performance
or telling an officer to do, or not to do, something does
not constitute disciplinary action against the officer.
Indeed, the giving of a lawful and reasonable direction
to an officer does not constitute disciplinary action against
that officer. The distinction between disciplinary and
non-disciplinary action may be vital in determining liability
to compensate an employee under the Safety Rehabilitation
and Compensation Act 1988, since the definition of
'injury' in that Act excludes any disease, injury, or aggravation
thereof suffered by an employee as a result of reasonable
disciplinary action (see Commission for the Safety Rehabilitation
and Compensation of Commonwealth Employees v Chenhall (1992)
37 FCR 75).

The Role of the Authorised Officer

Except in those cases where an officer is disciplined
on the basis of being found guilty of a criminal offence,
disciplinary action commences by way of an authorised officer
looking into the alleged wrongdoing.

The authorised officer's primary role is to decide whether
an officer may have failed to fulfil his or her
duty as an officer: if the authorised officer decides this
question in the affirmative, the authorised officer must
then decide whether the officer should be charged or not.
If the authorised officer decides against laying a charge,
the authorised officer may counsel the officer or cause
a supervisor of the officer to counsel the officer (section
61 of the Act).

It is not the role of an authorised officer to decide
whether an officer has actually committed misconduct or
not.

Authorised officers can be 'appointed' generically, that
is, they need not be appointed in relation to a particular
person or particular suspected misconduct. An authorised
officer can be 'appointed' by the relevant Secretary or
a delegate of the relevant Secretary. It is important that
instruments of appointment and of delegation be correct.
An incorrect instrument can invalidate all subsequent disciplinary
action.

While there is a good argument that the scheme of the
Act excludes an obligation on the part of an authorised
officer to accord natural justice to the officer under
investigation, it is good practice to accord natural justice
even at this early stage of the disciplinary process (by,
for example, advising the officer that charges are being
considered and inviting a brief written or oral response).

It is extremely important that any charge laid by an authorised
officer should be appropriately worded. Most of the problems
which arise in connection with disciplinary action result
from poorly worded charges. The Legal Practice is available
to advise authorised officers on the most preferable wording
of charges which it is proposed be laid.

The Inquiry Officer

The inquiry officer's primary role is to carry out an
inquiry into a disciplinary charge and to determine whether
the officer concerned has committed misconduct. If satisfied
that misconduct has occurred, the inquiry officer decides
what action should be taken (see section 62 of the Act).

Some points to note about the role of the inquiry officer
are:

  • an inquiry officer cannot be appointed generically
    under the Act. The appointment must be for the specific
    purpose of inquiring into a specific charge and the appointment
    must take place after the laying of the charge;
  • although there is doubt about whether inquiry officers
    can be appointed by a delegate of the relevant Secretary,
    the better view is that they can. However, given the
    importance of the role and the need for a specific appointment
    to be made after a charge is laid, the preferable course
    is for the inquiry officer to be appointed by the relevant
    Secretary;
  • doubt exists about whether an inquiry officer can
    be appointed from outside the department of the officer
    being disciplined;
  • the minimum natural justice obligations of an inquiry
    officer are set out in section 62 of the Act. It is good
    cautionary practice for an inquiry officer to make available
    all relevant documents obtained in the course of the
    inquiry to the officer concerned before determining the
    charge(s);
  • as a general rule it is recommended that inquiry officers
    not agree to allow legal representatives to put oral
    submissions and/or to cross-examine witnesses who have
    supplied information in relation to the charge;
  • the civil standard of proof applies to the determination
    of a charge but, in accordance with the decision in Briginshaw
    v Briginshaw 60 CLR 336, the more serious the conduct
    alleged against an officer, the higher the level of satisfaction
    required of an inquiry officer before finding a charge
    proven;
  • the extent to which a charge of misconduct can be
    varied or amended is a grey area. Any variation or amendment
    is more appropriately effected by an authorised officer
    than by an inquiry officer. Cosmetic amendments which
    do not alter the substance of what is alleged against
    an officer can probably be made;
  • an officer should not be subjected to more than one
    penalty in relation to one instance of misconduct. Accordingly,
    if multiple or alternative charges have been laid against
    an officer, the inquiry officer must ensure that only
    one penalty is imposed in respect of each instance of
    wrongdoing;
  • in deciding what penalty to impose in relation to
    misconduct it must be remembered that the object of disciplinary
    proceedings is to protect the public, to maintain proper
    standards of conduct by members of the Australian Public
    Service and to protect the reputation of the APS: the
    object of disciplinary proceedings is not to punish or
    to exact retribution (Hardcastle v Commissioner of
    Police 53 ALR 593 at 597).

Does the Privilege Against Self-Incrimination
Apply?

An officer suspected of misconduct cannot be lawfully
directed to answer questions relating to the matter. The
Federal Court has held that the disciplinary provisions
of the Act (and the liability of officers to obey directions)
does not remove the common law privilege against self-incrimination
(Comptroller-General of Customs v Disciplinary Appeal
Committee and Anor 27 ALD 687). Accordingly, authorised
officers and inquiry officers should make it clear to the
officers under investigation that they are not obliged
to answer questions, or supply information, if they do
not wish to do so.

Appeals to Disciplinary Appeal Committees

An officer who is the subject of a finding of misconduct
may, under section 63D, appeal to a Disciplinary Appeal
Committee ('DAC') unless the penalty action taken is admonition,
a fine of $50 or less or transfer at the same level and
locality. The appeal may be against the finding of misconduct
or just against the penalty imposed. A hearing by a DAC
is a completely new hearing of the case and is usually
conducted as an adversarial procedure. The rules of evidence
do not apply but witnesses can be (and frequently are)
examined on oath and cross-examined, relevant documents
can be the subject of a summons and the parties are entitled
to be legally represented.

The DAC is constituted by a Convenor, a nominee of the
relevant union and a nominee of the relevant department
or authority. The DAC may confirm, vary or set aside a
decision before it. There is some doubt about whether this
entitles the Committee to increase a penalty imposed by
an inquiry officer. The DAC has a discretion to award costs
to a successful appellant.

The Meaning of Improper Conduct Paragraph
56(d) of the Act

By far the most common charge laid against an officer
is that he or she engaged in improper conduct as an officer
within the meaning of paragraph 56(d) of the Act. An issue
arises as to whether such a charge requires proof of a
particular mental element. It is now well settled that
it is not a necessary element of a charge of improper conduct
that the officer concerned was aware that what they were
doing would be regarded as improper (see the decision of
the Full Federal Court in O'Connell v Palmer 53
FCR 429). However, if a charge of improper conduct positively
alleges a particular state of mind on the part of the officer
concerned, then an inquiry officer must be satisfied of
such state of mind before finding the charge proven. For
this reason, it is often prudent to express a charge of
improper conduct in terms which allege the doing of some
act in circumstances where the officer concerned 'knew
or ought to have known' that it was not proper for them
so to do.

The mere fact that conduct is liable to criticism, for
instance as being unwise, misguided or imprudent, does
not mean that the conduct is necessarily improper. A qualitative
judgment about the character of the conduct in question
must be made in the light of all relevant circumstances.
What is improper in one context might be proper in another
context.

Conduct as an Officer and Conduct Otherwise
than as an Officer

It can be extraordinarily difficult in a particular case
to determine whether conduct was engaged in 'as an officer'
(paragraph 56(d)) or 'otherwise than as an officer' (paragraph
56(e)). Improper conduct at work-related social occasions
raises this dilemma. Each case must be considered on its
facts. Of particular relevance will be the extent of the
connection between the conduct in question and the workplace.
It is recommended that legal advice be sought in those
cases which raise a serious issue as to whether the conduct
was engaged in 'as an officer' or 'otherwise than as an
officer'.

Suspension

Suspension of an officer is dealt with in sections 63B
and 63C of the Act. An officer cannot be suspended unless
and until the officer has either been charged with a criminal
offence or an authorised officer has informed the relevant
Secretary that they are of the opinion that the officer
may have failed to fulfil their duty as an officer (section63B(1)).
If either of these two pre-conditions is satisfied, then
an officer may be suspended provided the relevant Secretary
is of the opinion that it would be prejudicial to the effective
operation of the Service, to the interests of the public,
to the interests of the officer concerned or to other officers,
if the officer were to continue to perform the duties of
his or her existing office. Before suspending an officer,
consideration must be given to whether it would be sufficient
to direct the officer to temporarily perform other duties.
An officer should be suspended only as a last resort. Suspension
will ordinarily be warranted only in those cases where
the gravity of the officer's action is such as to warrant
dismissal.

Importantly, a Secretary is not authorised to suspend
an officer unless the Secretary has first given the officer
an opportunity to be heard or the Secretary is of the opinion
that it would not be appropriate, in the particular circumstances,
to give the officer such an opportunity (section 63B(1)).
Clearly, the general rule is that an opportunity to be
heard should be given unless there are special or exceptional
circumstances. Such circumstances must relate to the interests
of the Service, the public, the officer concerned or his
or her fellow officers.

Other points to note in relation to suspension are:

  • if an officer is suspended on the basis of a criminal
    charge, then the suspension is without pay (section 63B(2)).
    If an officer is suspended on the basis that an 'authorised
    officer' has formed an opinion that they may have failed
    to fulfil their duty as an officer, then the suspension
    is with pay until a disciplinary charge is laid, whereupon
    the suspension takes effect without pay (section 63B(3));
  • suspension does not affect an officer's entitlement
    to leave of absence with salary (section 63B(5));
  • a suspended officer who is not receiving salary is
    entitled to engage in outside employment (section 63B(6));
  • a Secretary may at any time, upon the application
    of the officer or otherwise, remove asuspension;
  • the whole or part of the officer's salary may be paid
    during the whole or part of suspension if the relevant
    Secretary is satisfied that the officer is suffering,
    or has suffered, hardship (section 63C(2)). Factors which
    are usually taken into account in deciding whether hardship
    exists include the likely period before the charge is
    heard and determined, the financial commitments and any
    debts of the officer, the savings and other sources of
    income of the officer, the opportunity to obtain outside
    employment, eligibility for unemployment or other social
    security benefits, and relevant domestic circumstances;
  • a suspension continues in force until removed by the
    relevant Secretary (or delegate) or until the basis upon
    which it was imposed is resolved (that is, the officer
    is acquitted of a criminal charge or found innocent of
    a disciplinary charge), in which case the Secretary must
    remove the suspension;
  • a Secretary must, forthwith after 30 days, consider
    whether the suspension should be removed (section 63C(2)(b)).

Concurrent Disciplinary Action and Criminal
Proceedings

The mere fact that a criminal prosecution is imminent
or pending does not necessarily mean that disciplinary
action ought not be taken against the officer for the same
or related conduct. Again, each case ought be considered
in the light of its own facts, including any preferences
expressed by the police or prosecuting authority. If an
officer is found guilty of a criminal offence (whether
or not a conviction is recorded) disciplinary action can
be taken, if appropriate, under section 63 of the Act.
If an officer is acquitted of a criminal charge, disciplinary
action can still be taken against the officer under sections
61 and 62: the so-called principle of 'double jeopardy'
has no application in these circumstances (Hardcastle's case)
but it would be prudent to have regard to the reasons given
for the acquittal of the officer.

Amenability of Disciplinary Decisions
to Judicial Review

Decisions of authorised officers and inquiry officers
are amenable to judicial review and attract an obligation
to provide statements of reasons, upon request, pursuant
to section 13 of the Administrative Decisions (Judicial
Review) Act 1977. If an inquiry officer directs the
imposition of a penalty, the Act itself requires that a
statement of reasons be issued, even in the absence of
any request, to the officer concerned. Moreover, decisions
to suspend an officer are subject to judicial review and
an obligation to provide a statement of reasons upon request
pursuant to section 13 of the AD(JR) Act.

It is also possible for statements of reasons to be sought
in relation to the appointments of authorised officers
and inquiry officers. If it is discovered that there is
a defect in the instrument of authorisation by the relevant
Secretary, then all process which has followed that appointment
may well be invalid. It is thus extremely important to
check documents 'appointing' authorised officers or inquiry
officers before they begin to exercise their powers.

It is possible for any of the decisions referred to above
(appointments, laying charges, suspension, making findings
of misconduct) to be challenged in the Federal Court on
the basis of error of law in the decision-making process.
In the event that an error of law is established, the decision
will usually be set aside by the Federal Court and remitted
to the decision-maker for further consideration according
to law. The costs of any such proceedings will usually
be paid by the unsuccessful party.

The Industrial Relations Court

Since the introduction of the unfair dismissal provisions
into the Industrial Relations Act 1988 ('the IR
Act') on 31March 1994, an officer or employee who has been
dismissed under the disciplinary provisions of the Public
Service Act 1922 has had the right to challenge the
validity of the termination decision in the Industrial
Relations Court of Australia. That Court has considered
and rejected an argument that the Court cannot consider
these matters because there is an adequate alternative
remedy in another forum (DAC proceedings) (Maggs v Comptroller-General
of Customs (1995) 128 ALR 586).

In such an application the onus is on the employer tosatisfy
the Court that there was a valid reason fortermination
of the employment (subsection 170DE(1) of the IR Act).
A termination will not bevalid if it is harsh, unjust or
unreasonable (subsection 170DE(2)). It must also be procedurally
fair (section 170DC).

In proceedings in the Industrial Relations Court the rules
of evidence apply. Thus it is important that the basis
for a termination of employment for disciplinary reasons
be able to be established by admissible evidence.

APS Enterprise Agreement

On 22nd September 1995 the Australian Industrial Relations
Commission approved the agreement Continuous Improvement
in the Australian Public Service, Enterprise Agreement:
19951996. That Agreement removes the right of staff
who are dismissed as a result of disciplinary action under
Part III, Division 6 of the Act, to appeal to a Disciplinary
Appeal Committee. Now they must apply direct to the Industrial
Relations Court of Australia.

Proposals for Reform

In December 1994 the Public Service Act Review Group recommended
to the Government substantial changes to the Act, including
to the provisions dealing with discipline. These recommended
changes have largely been accepted by the Government. A
code of conduct is to be inserted into the Act. Misconduct
will be defined as a breach of that code and Secretaries
will be given specific statutory power to deal with misconduct
as they consider appropriate, including a power to determine
the circumstances in which an investigation will be necessary
and the power to apply appropriate sanctions. Secretaries
will be empowered to issue their own guidelines describing
basic procedures to be followed, but they must use the
guidelines which will be set by the Public Service Commissioner
in the absence of any of their own.

It is proposed that less serious cases of misconduct be
dealt with as far as possible by informal resolution, for
example through counselling or mediation. Only in the more
serious cases is it proposed that a formal process be followed

ISSN 1448-4803 (Print)
ISSN 2204-6283 (Online)

The material in this briefing is provided
for general information only and should not be relied
upon for the purpose of a particular matter. Please contact
the Legal Practice before any action or decision is taken
on the basis of any of the material in this briefing.

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