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  4. Hunt v State of Queensland (Department of Agriculture and Fisheries) - [2022] QIRC 162

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Hunt v State of Queensland (Department of Agriculture and Fisheries)[2022] QIRC 162

Hunt v State of Queensland (Department of Agriculture and Fisheries)[2022] QIRC 162

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Hunt v State of Queensland (Department of Agriculture and Fisheries) [2022] QIRC 162

PARTIES: 

Hunt, Jeffrey

(Appellant)

v

State of Queensland (Department of Agriculture and Fisheries)

(Respondent)

CASE NO.:

PSA/2021/353

PROCEEDING:

Public Service Appeal - Appeal against a disciplinary decision

DELIVERED ON:

19 May 2022

HEARING DATE:

17 January 2022

MEMBER:

O'Connor VP

HEARD AT:

On the papers

ORDER:

  1. Pursuant to s 562C(1)(a) of the Industrial   Relations Act 2016 (Qld), the decision appealed against is confirmed.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – appellant employed as Deputy Director–General, Corporate Services, Department of Education – where appellant asked to show cause why disciplinary action should not be taken – where allegations against appellant – where appellant involved himself inappropriately in recruitment process for principal new college – where appellant misled a principal during the recruitment process – where Appellant failed to accurately record reasons for the decision to reclassify and readvertise position – where Appellant made decision to change student enrolment number for an inappropriate purpose – where Appellant inappropriately instructed the documentation be changed and attempted to conceal this instruction – where Appellant provided misleading and inaccurate information to the Director–General – where decision maker found allegations to be substantiated – where Appellant suspended with normal remuneration – where decision maker issued decision on disciplinary finding and proposed disciplinary action pursuant to s 188 of the Public Service Act 2008 – where Appellant alleges decision not fair and reasonable – whether there is an presence or absence of procedural unfairness in the decision making process – whether decision ought to be overturned

LEGISLATION:

Industrial Relations Act 2016, s 562B, s 566

Human Rights Act 2019, s 25, s 58, s 59

Public Sector Ethics Act 1994 (Qld), s 4

Public Service Act 2008, s 187, s 188, s 188A, s 194

CASES:

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564

BDY18 v Minister for Immigration and Border Protection (2020) 273 FCR 170

Bragg v Secretary, Department of Employment Education and Training (Federal) [1996] FCA 1536

Burgess v Director of Housing [2014] VSC 648

CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76

Coleman v State of Queensland (Department of Education) [2020] QIRC 32

Federal Commissioner of Taxation v Day (2008) 236 CLR 163

Federal Commissioner of Taxation v Futuris Corp Ltd (2008) 237 CLR 146

Goodall v State of Queensland & Anor [2018] QSC 319

Goode v Common Equity Housing [2014] VSC 585

Hossain v Minister for Immigration and Border Protection (208) 264 CLR 23

Ivers v McCubbin & Ors [2004] QSC 342

King-Koi v Queensland (Department of Education) [2020] QIRC 209

Masters Home Improvement Pty Ltd v North East Solution Pty Ltd (2017) 372 ALR 440

Mathieu v Higgins & Anor [2008] QSC 209

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421

Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Monavvari v State of Queensland (Queensland Health, eHealth) [2020] QIRC 232

MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441

Pillai v Messiter (No 2) (1989) 16 NSWLR 197

Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam (2003) 214 CLR 1

Swancom Pty Ltd v Yarra City Council (2009) VPR 48

Thompson v Minogue [2021] VSCA 358

Trustee of Property of Cummins (a bankrupt) v Cummins (2006) 227 CLR 278

Vega Vega v Hoyle and Ors [2015] QSC 111

Waterford v The Commonwealth (1987) 163 CLR 53

WBM v Chief Commissioner of Police (2012) 43 VR 446

Wirth v Mackay Hospital and Health Service [2016] QSC 39

APPEARANCES:

Mr J Hunt, the Appellant in person.

Mr D Reed, Public Service Commission for the Respondent.

Reasons for Decision

Introduction

  1. [1]
    Mr Jeffrey Hunt ('the Appellant') is employed in the position of Deputy Director-General, Corporate Services, Department of Education at classification SES4. Mr Hunt is currently suspended on full remuneration.
  1. [2]
    On 7 September 2021 the Public Service Commission acting through the Decision Maker, Mr Bob Gee, Director-General, Department of Agriculture and Fisheries ('the Decision Maker') made and notified their findings in respect of six allegations that had been made against the Appellant as follows:
  1. You involved yourself inappropriately, including making decisions, in the recruitment process for the Principal, Band 11 for the Inner City South State Secondary College (ICSSSC).
  1. You misled Principal A during the recruitment process for the position of Principal, Band 11, ICSSSC.
  1. You failed to accurately record the reasons for the decision to re-advertise the Principal, ICSSSC as an Executive Principal and misled the Director-General as to the reasons for the re-classification and re-advertisement.
  1. You made the decision to change the student enrolment number for ICSSSC from 1,500 to 1,600 or 1,650 for an inappropriate purpose.
  1. You inappropriately instructed the documentation referring to the ICSSSC student enrolment number be changed from 1,500 to 1,600 or 1,650 students and attempted to conceal this instruction.
  1. You provided misleading and inaccurate information to the Director-General in November 2019, resulting in the Director-General issuing a media statement which contained inaccuracies.
  1. [3]
    The Decision-Maker determined that in respect of the six allegations that disciplinary grounds existed in relation to the Appellant's conduct.
  1. [4]
    Notice was given by the Decision Maker to the Appellant on 7 September 2021 that pursuant to s 188 of the Public Service Act 2008 (Qld) ('the PS Act') consideration would be given to taking disciplinary action against him.  The Appellant was also advised by the Decision Maker that serious consideration was being given to the termination of the employment of the Appellant.

Interlocutory matters

  1. [5]
    On 17 January 2022 I heard the parties on three interlocutory questions. The first was the question of an oral hearing. The Appellant sought to have this matter dealt with by an oral hearing, however that submission was opposed by the Respondents.
  1. [6]
    I ruled that the matter should be heard on the papers for a number of reasons. Firstly, it is standard practice for public service appeals to be dealt with on the papers unless otherwise ordered. Secondly, it was evident at the mention that there was no intention to lead viva voce evidence. Finally, in my assessment there was more than ample material for me to decide the matter without the need for oral evidence or the parties speaking to submissions.[1] Nevertheless I left open the possibility that should an oral hearing be required I would issue directions accordingly and have the matter listed. No such need arose in the course of deciding this case.
  1. [7]
    The Applicant also sought to make further submissions. This too was opposed by the Respondent on the basis that all necessary submissions had already been ventilated. I ordered that no further submissions would be made unless I deemed it necessary at a later date.[2]
  1. [8]
    The final matter raised by the applicant was the sealing of the file to protect the confidential information and identities contained in the large volumes of documents attached to the Applicant's application. The Respondent did not object to this request, and I decided to grant the order on the basis that portions of the material contained in Mr Hunt's submissions related to a confidential Crime and Corruption Commission ('CCC') investigation.[3]

Grounds of Appeal

  1. [9]
    In his submissions the Appellant submitted the following grounds of appeal:
  1. (a)
    that the Disciplinary Decision of the Decision Maker in terms of s 562B(3) of the Industrial Relations Act 2016 (Qld) ('the IR Act') was not fair and reasonable; and
  1. (b)
    pursuant to s 59 of the Human Rights Act 2019 (HR Act) that the Appellant is entitled to seek the relief that is available under s 194 of the Public Service Act 2008 (PS Act) and s 562B(3) of the IR Act on the ground that the Decision Maker in making the Decision acted unlawfully by making the Decision in a way that was not compatible with the Appellant's human right to privacy and reputation as expressly provided for by s 25 of the HR Act.[4]

Legislative framework

  1. [10]
    Chapter 7 of the PS Act provides for appeals and reviews.  Section 194 in Part 1, Appeals, Division 1, Right of appeal relevantly sets out the following:

194 Decisions against which appeals may be made

  1. (1)
    An appeal may be made against the following decisions -
  1. (a)
    a decision to take, or not take, action under a directive;
  1. (b)
    a decision under a disciplinary law to discipline -
  1. (i)
    a person (other than by termination of employment), including the action taken in disciplining the person; or
  1. (ii)
    a former public service employee by way of a disciplinary declaration made under section 188A, including if the disciplinary action that would have been taken was termination of employment;

. . .

  1. [11]
    Chapter 6, Part 2 of the PS Act provides for disciplinary action for public service employees.  Division 1 provides Grounds for discipline and disciplinary action generally.  Section 187 sets out the Grounds for Discipline as follows:

187 Grounds for discipline

  1. (1)
    A public service employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has -
  1. (a)
    engaged in repeated unsatisfactory performance or serious under performance of the employee's duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or
  2. (b)
    been guilty of misconduct; or
  3. (c)
    been absent from duty without approved leave and without reasonable excuse; or
  1. (d)
    contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or
  1. (e)
    used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee's duties; or
  1. (ea)
    contravened, without reasonable excuse, a requirement of the chief executive under section 179A(1) in relation to the employee's appointment, secondment or employment by, in response to the requirement -
  1. (i)
    failing to disclose a serious disciplinary action; or
  1. (ii)
    giving false or misleading information; or
  1. (f)
    contravened, without reasonable excuse, a provision of this Act; or
  1. (g)
    contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.
  1. (2)
    A disciplinary ground arises when the act or omission constituting the ground is done or made.
  1. (3)
    Also, a chief executive may discipline, on the same grounds mentioned in subsection (1) -
  1. (a)
    a public service employee under section 187A; or
  1. (b)
    a former public service employee under section 188A.
  1. (4)
    In this section -

misconduct means -

  1. (a)
    inappropriate or improper conduct in an official capacity; or
  1. (b)
    inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service.

Example of misconduct -

victimising another public service employee in the course of the other employee's employment in the public service

relevant standard of conduct, for a public service employee, means -

  1. (a)
    a standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or
  1. (b)
    a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994.

responsible person, for a direction, means a person with authority to give the direction, whether the authority derives from this Act or otherwise

  1. [12]
    Division 1, s 188 of the PS Act provides for disciplinary action that may be taken against a public service employee as follows:

188 Disciplinary action that may be taken against a public service employee

  1. (1)
    In disciplining a public service employee, the employee's chief executive may take the action, or order the action be taken, (disciplinary action) that the chief executive considers reasonable in the circumstances.

Examples of disciplinary action -

  • termination of employment
  • reduction of classification level and a consequential change of duties
  • transfer or redeployment to other public service employment
  • forfeiture or deferment of a remuneration increment or increase
  • reduction of remuneration level
  • imposition of a monetary penalty
  • if a penalty is imposed, a direction that the amount of the penalty be deducted from the employee's periodic remuneration payments
  • a reprimand
  1. (2)
    If the disciplinary action is taken following an agreement under section 187A (4) between the previous chief executive and the current chief executive mentioned in the section, the chief executives must agree on the disciplinary action.
  1. (3)
    However, a monetary penalty can not be more than the total of 2 of the employee's periodic remuneration payments.
  1. (4)
    Also, an amount directed to be deducted from any particular periodic remuneration payment of the employee -
  1. (a)
    must not be more than half of the amount payable to or for the employee in relation to the payment; and
  1. (b)
    must not reduce the amount of salary payable to the employee in relation to the period to less than -
  1. (i)
    if the employee has a dependant - the guaranteed minimum wage for each week of the period; or
  1. (ii)
    otherwise - two-thirds of the guaranteed minimum wage for each week of the period.
  1. (5)
    In acting under subsection (1), the chief executive must comply with this Act and any relevant directive of the commission chief executive.
  1. (6)
    An order under subsection (1) is binding on anyone affected by it.
  1. [13]
    Division 2, s 188A of the PS Act provides for disciplinary action against a former public service employee as follows:

188A Disciplinary action that may be taken against a former public service employee

  1. (1)
    This section applies if -
  1. (a)
    a disciplinary ground arises in relation to a public service employee; and
  1. (b)
    after the disciplinary ground arises the employee's employment as a public service employee ends for any reason.
  1. (2)
    However, this section does not apply in relation to a person who is a former public service employee if the person's previous chief executive is aware -
  1. (a)
    the person is a prescribed employee; and
  1. (b)
    the previous chief executive or the person’s current chief executive has taken, is taking, or intends to take disciplinary action against the person, under a relevant disciplinary law, in relation to the disciplinary ground.
  1. (3)
    The former public service employee’s previous chief executive may make a disciplinary finding or take or continue to take disciplinary action against the former public service employee in relation to the disciplinary ground.
  1. (4)
    The disciplinary finding or disciplinary action must be made or taken within a period of 2 years after the end of the employee's employment.
  1. (5)
    However, subsection (4) does not stop disciplinary action being taken following an appeal or review.
  1. (6)
    Subsection (4) does not affect -
  1. (a)
    an investigation of a suspected criminal offence; or
  1. (b)
    an investigation of a matter for the purpose of notifying the Crime and Corruption Commission of suspected corrupt conduct under the Crime and Corruption Act 2001.
  1. (7)
    In disciplining the former public service employee, the former public service employee's previous chief executive may make a disciplinary declaration and may not take any other disciplinary action.
  1. (8)
    The former public service employee’s previous chief executive may only make a disciplinary declaration if the disciplinary action that would have been taken against the employee if the employee's employment had not ended would have been -
  1. (a)
    termination of employment; or
  1. (b)
    reduction of classification level.
  1. (9)
    The making of the disciplinary declaration does not affect the way in which the employee's employment ended, or any benefits, rights or liabilities arising because the employment ended.
  1. (10)
    In this section -

disciplinary declaration means a declaration of -

  1. (a)
    the disciplinary finding against the former public service employee; and
  1. (b)
    the disciplinary action that would have been taken against the employee if the employee's employment had not ended.
  1. [14]
    Section 194 of the PS Act relevantly identifies the decisions against which appeals may be made as follows:

194 Decision against which appeals may be made

  1. (1)
    An appeal may be made against the following decisions—
    1. a decision under a disciplinary law to disciplinary –
  1. (i)
    A person (other than by termination of employment), including the action take in disciplinary the person; or

…

(eb)    a decision a public service employee believes is unfair and unreasonable (a   fair  treatment decision);

…

  1. [15]
    Directive 14/20: Discipline ('Discipline Directive') came into effect on 25 September 2020. The purpose of the Discipline Directive, amongst other things, is to outline the process for managing disciplinary action under the PS Act.
  1. [16]
    Clause 8.3 of the Discipline Directive relevantly provides the process that must be followed in commencing a show cause process for a disciplinary finding as follows:
  1. (a)
    The chief executive is to provide the employee with written details of each allegation and invite the employee to show cause why a disciplinary finding should not be made in relation to each allegation (a show cause notice on disciplinary finding):
  1. (b)
    Written details of each allegation in clause 8.3(a) must include:
  1. (i)
    the allegation
  1. (ii)
    the particulars of the facts considered by the chief executive for the allegation
  1. (iii)
     the disciplinary ground under section 187 of the PS Act that applies to the allegation.
  1. (c)
    A copy of all evidence relevant to the facts considered by the chief executive for each allegation in clause 8.3(a) must be provided to the employee, including, where relevant, specific reference to page or paragraph numbers that comprise the relevant evidence.
  1. (d)
    The chief executive must provide the employee with a minimum of 14 days from the date of receipt of a show cause notice on disciplinary finding to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary finding if there are reasonable grounds for extension.
  1. (e)
    If the employee does not respond to a show cause notice on disciplinary finding, or does not respond within the nominated timeframe in clause 8.3(d) and has not been granted an extension of time to respond, the chief executive may make a decision on grounds based on the information available to them.
  1. [17]
    Clause 8.4 of the Discipline Directive provides for a decision on grounds as follows:
  1. (a)
    A chief executive must review all relevant material, including any submissions from the employee, and make a decision on the disciplinary finding on the balance of probabilities.
  1. (b)
    The chief executive must advise the employee of the chief executive’s finding in relation to each allegation included in the show cause notice on disciplinary finding.
  1. (c)
    For each finding in clause 8.4(a) the chief executive must clearly explain their finding of fact on the balance of probabilities, including the evidence relied on to reach the finding, and state if the disciplinary ground to which the allegation was applied has been established.
  1. (d)
    The employee is to be informed of the finding and explanation of the finding in writing, including information that the employee may appeal the disciplinary finding.
  1. (e)
    If the chief executive determines that discipline ground/s have been established, the chief executive may consider whether disciplinary action should be proposed (clause 8.5) and/or management action implemented, or to take no further action.

If the chief executive determines that no ground/s for discipline have been established, the chief executive may consider whether any management action is required and advise the employee in writing.

  1. [18]
    Clause 8.5 (d) of the Discipline Directive sets out the factors the chief executive should consider when proposing appropriate and proportionate disciplinary action. The considerations are as follows:
  1. (i)
    the seriousness of the disciplinary finding
  2. (ii)
    the employee’s classification level and/or expected level of awareness about their performance or conduct obligations
  3. (iii)
    whether extenuating or mitigating circumstances applied to the employee’s actions
  4. (iv)
    the employee’s overall work record including previous management interventions and/or disciplinary proceedings
  5. (v)
    the employee’s explanation (if any)
  6. (vi)
    the degree of risk to the health and safety of employees, customers and members of the public
  7. (vii)
    the impact on the employee’s ability to perform the duties of their position
  8. (viii)
    the employee’s potential for modified behaviour in the work unit or elsewhere
  9. (ix)
    the impact a financial penalty may have on the employee
  10. (x)
    the cumulative impact that a reduction in classification and/or pay-point may have on the employee
  11. (xi)
    the likely impact the disciplinary action will have on public and customer confidence in the unit/agency and its proportionality to the gravity of the disciplinary finding.
  1. [19]
    Section 562B of the IR Act provides for a public service appeal to the Commission to be reviewed.  Section 562B of the IR Act states as follows:

562B Public service appeal to commission is by way of review

  1. (1)
    This section applies to a public service appeal made to the commission.
  2. (2)
    The commission must decide the appeal by reviewing the decision appealed against.
  3. (3)
    The purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.
  4. (4)
    For an appeal against a promotion decision or a decision about disciplinary action under the Public Service Act 2008, the commission -
  1. (a)
    must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but
  2. (b)
    may allow other evidence to be taken into account if the commission considers it appropriate.
  1. [20]
    Section 25 of the HR Act provides as follows:

25 Privacy and reputation

A person has the right -

  1. (a)
    not to have the person's privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and
  2. (b)
    not to have the person's reputation unlawfully attacked.
  1. [21]
    Sections 58 and 59 of the HR Act provide the following:

58 Conduct of public entities

  1. (1)
    It is unlawful for a public entity -
  1. (a)
    to act or make a decision in a way that is not compatible with human rights; or
  1. (b)
    in making a decision, to fail to give proper consideration to a human right relevant to the decision.
  1. (2)
    Subsection (1) does not apply to a public entity if the entity could not reasonably have acted differently or made a different decision because of a statutory provision, a law of the Commonwealth or another State or otherwise under law.

Example -

A public entity is acting to give effect to a statutory provision that is not compatible with human rights.

  1. (3)
    Also, subsection (1) does not apply to a body established for a religious purpose if the act or decision is done or made in accordance with the doctrine of the religion concerned and is necessary to avoid offending the religious sensitivities of the people of the religion.
  2. (4)
    This section does not apply to an act or decision of a private nature.
  3. (5)
    For subsection (1)(b), giving proper consideration to a human right in making a decision includes, but is not limited to -
  1. (a)
    identifying the human rights that may be affected by the decision; and
  2. (b)
    considering whether the decision would be compatible with human rights.
  1. (6)
    To remove any doubt, it is declared that -
  1. (a)
    an act or decision of a public entity is not invalid merely because, by doing the act or making the decision, the entity contravenes subsection (1); and
  1. (b)
    a person does not commit an offence against this Act or another Act merely because the person acts or makes a decision in contravention of subsection (1).

59 Legal proceedings

  1. (1)
    Subsection (2) applies if a person may seek any relief or remedy in relation to an act or decision of a public entity on the ground that the act or decision was, other than because of section 58, unlawful.
  1. (2)
    The person may seek the relief or remedy mentioned in subsection (1) on the ground of unlawfulness arising under section 58, even if the person may not be successful in obtaining the relief or remedy on the ground mentioned in subsection (1).
  1. (3)
    However, the person is not entitled to be awarded damages on the ground of unlawfulness arising under section 58.
  1. (4)
    This section does not affect a right a person has, other than under this Act, to seek any relief or remedy in relation to an act or decision of a public entity, including -
  1. (a)
    a right to seek judicial review under the Judicial Review Act 1991 or the Uniform Civil Procedure Rules 1999; and
  1. (b)
    a right to seek a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or an exclusion of evidence.
  1. (5)
    A person may seek relief or remedy on a ground of unlawfulness arising under section 58 only under this section.
  1. (6)
    Nothing in this section affects a right a person may have to damages apart from the operation of this section.

Whether the decision was fair and reasonable

  1. [22]
    The Appellant submits the test of what is 'fair and reasonable' under s 562B(3) of the IR Act is well established.  In Goodall v State of Queensland & Anor ('Goodall'),[5] Dalton J examined in detail the relevant test and held that this involved two aspects:
  1. (a)
    the fairness and reasonableness of the decision-making process; and
  1. (b)
    looking at the fairness of the substantive decision that was arrived at by the person who made the decision that is being appealed.[6]
  1. [23]
    The Appellant submits the approach adopted by her Honour has been applied in a number of subsequent cases.
  1. [24]
    The Appellant challenges the decision of the Decision Maker on both aspects of the test of what is 'fair and reasonable' in respect of the decision-making process and the substantive decision of the Decision Maker that was finally reached.[7]

Natural justice failing in the decision-making process conducted by the Decision Maker

  1. [25]
    As in Goodall, the Appellant submitted that relevant Directives needed to be considered by the Decision Maker. In this instance the Chief Executive of the Public Service Commission (PSC) engaged an investigation provider and notwithstanding these steps, the relevant investigation determinations and process undertaken were unlawful.
  1. [26]
    On 18 August 2020 the Chief Executive of the PSC issued to the Investigator a document titled 'Terms of Reference - Investigation into Allegations relating to the appointment of a school principal' (Terms of Reference).  The Terms of Reference expressly stated in paragraphs 11 to 14 the following:

11. The Investigator is to proceed in accordance with the principles of natural justice and procedural fairness.  Accordingly, the Investigator must provide the subject officer/s with the opportunity to attend an interview so as to respond verbally to the matters under investigation and/or a reasonable opportunity to provide a written response or submission.

12. Material adverse to any identified subject officer, which is credible and relevant to the findings to be made by the Investigator is to be released to any identified subject officer during the investigation.  This can be released verbally at interview.  However, in certain circumstances, procedural fairness may require that the subject officer should have the opportunity to examine relevant documentary records prior to the interview.

13. The Investigator must make every reasonable effort to obtain any documentation or other material that is relevant to the matters under investigation.

14. The Investigator is directed to conduct the investigation in accordance with the principles set out in the Crime and Corruption Commission's publication Corruption in Focus which is available on the Commission's website.[8]

  1. [27]
    The CCC's 'Corruption in Focus' document specifically addresses in section 5 the provision of procedural fairness.  At page 5.6 of the document under the heading 'Give a fair hearing to the subject officer' the following is stated:

So if your investigation report contains adverse comment about a person, or if, as decision-maker, you have been provided with such a report for a final decision, procedural fairness requires that the subject officer must at the very least know the case against them and be given an opportunity to respond to those adverse comments before any decision is made.

If this information has been put to the person during an interview, it is not necessary to do this again before finalising the report or making the decision.  However, if the subject officer has only been told some of the grounds, or if any significant changes to the grounds have occurred since the interview, you must make them aware of the other grounds being relied on, as their response may influence your recommendations or suggest other avenues of enquiry.[9]

  1. [28]
    The Appellant submits it was essential that the investigatory and subsequent decision-making processes undertaken by the Decision Maker complied with the rules of natural justice and that he had to be provided with procedural fairness.[10]
  1. [29]
    In his letter of 26 May 2021 to the Decision Maker, the Appellant submitted that natural justice errors had occurred and therefore both the Investigator and the Decision Maker needed to recuse themselves as they could no longer remain involved in the disciplinary process. The Decision Maker on 7 September 2021 rejected the Appellant's submissions in this regard and ignored the fact that in the circumstances the Appellant had only made preliminary submissions and he then proceeded to make the decision under s 187 of the PS Act.[11]
  1. [30]
    The Appellant submits in these circumstances, where the Decision Maker relies on the content and factual findings made by an Investigator, the legal and factual risk is that if the Investigator fails during the conduct of the investigation to comply with the rules of natural justice, then no matter what steps are taken by the Decision Maker, the legal position will be that the decision-making process will be tainted and will then in a legal sense be invalid and of no legal effect.
  1. [31]
    Reference in this regard is made to the statement of Gleeson CJ in the High Court case of Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam ('Lam')[12] where in discussing the way that procedural fairness cases are approached by the Courts it was stated:

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.[13]

  1. [32]
    Even though subsequent decisions have explained that whilst generally speaking a Decision Maker is only required to disclose information which is adverse to a claimant, the fundamental test remains that the rules of natural justice will fluctuate with the circumstances of each case.
  1. [33]
    The decision of Lyons J in Vega Vega v Hoyle and Others,[14] ('Vega Vega') provides a practical demonstration of how the rules of procedural fairness must be applied when an investigator is conducting a complex disciplinary investigation and is then producing a significant disciplinary report for the final decision maker to determine whether specific disciplinary findings and action should be taken.[15]
  1. [34]
    The Appellant in his letter dated 26 May 2021 to the Decision Maker said it was only upon receiving from the PSC the email dated 14 April 2021 (some four months later) he was provided with a copy of the Investigator's report dated 18 December 2020 and given electronic access to numerous documents that filled approximately 16 arch lever folders containing various investigation documents and interview transcripts.[16]
  1. [35]
    In his submissions the Appellant prepared a table which highlights the credible, relevant and significant material that was gathered by the Investigator during the course of the investigation, and which was not properly raised or put to him in a fair way during the investigation process.[17]
  1. [36]
    In relying on the cases of Lam and Vega Vega, the Appellant submits that all the witness statements (both positive and negative) had to be provided to the person under investigation as that is what fairness required.  The Appellant states he was in the same position and should have received the same opportunity to review all the relevant witness statements before the Investigator finalised their investigation report.  The failure by the Investigator to provide all credible, relevant and significant material during the conduct of the investigation lead to breaches of the rules of natural justice/procedural fairness.[18]
  1. [37]
    The Appellant submits this material is not protected by the new case law dealing with 'materiality' that has been developed by the High Court in recent years.[19]

Failure by the Decision Maker in making illogical or irrational conclusions

  1. [38]
    The Appellant submits that in his appeal documentation the Decision Maker formed a number of important factual conclusions which were illogical or irrational including:
  1. (a)
    making incorrect findings in respect of the lawful scope of the administrative authority that the Appellant held as the Senior Responsible Owner (SRO) of the Building Future Schools Program;
  1. (b)
    failing to make several critical factual findings in respect of the relevant knowledge and personal participation and actions of the then Director-General, Mr Tony Cook when assessing the relevant conduct of the Appellant;
  1. (c)
    incorrect findings made by the Decision Maker in respect of the motives of the Appellant when he decided to seek a change in the classification level of the Principal for the ICSSSC and the determination of the published student capacity of that school;
  1. (d)
    the failure by the Investigator and the Decision Maker to properly and reasonably assess the reliability of other witnesses who potentially were also facing disciplinary action under the PS Act.  Several witnesses had a clear and real personal conflict of interest which was not properly or reasonably assessed by the Decision Maker; and
  1. (e)
    a failure to contact and seek evidence from relevant witnesses.[20]
  1. [39]
    The Appellant has submitted further analysis which justifies his submission that illogical or irrational conclusions were made during the investigation by the Investigator and/or the Decision Maker.  This includes failure to fully recognise and have regard to his role as the SRO of the Building Future Schools Project. In particular, the Appellant notes disappointment that the evidence of Mr Cook failed to recognise his powers and his role as the SRO.[21]
  1. [40]
    In relation to the knowledge and oversight by Mr Cook of his decisions in relation to the ICSSSC Principal position, the Appellant submits that the evidence of Mr Cook as to whether he knew about the proposed meeting with Ms Trad before it occurred is not accurate.  The suggestion that Mr Cook has made that he did not know for 'several weeks' or 'weeks' after the meeting with Ms Trad had occurred is not consistent with the relevant documentary evidence.[22]
  1. [41]
    The Appellant submits where there is a difference in recollection of what has occurred on a controversial but important factor very often with the passage of time, documentary evidence is always the most reliable and those texts should be relied upon. What is evident from the tone of the texts is that Mr Cook knew what was going on.[23]
  1. [42]
    The Appellant believes the facts show that Mr Cook knew both about the proposal to meet with Ms Trad, about the outcome of that meeting and he was then fully involved in proceeding to execute the plan to authorise the upgrading of the Principal for the ICSSSC - Special Purpose level.  If the Appellant's submissions are right that his actions were at all times overseen and understood to be occurring by the Director-General, then this fundamentally affects the conclusions made by both the Investigator and the Decision Maker.[24]
  1. [43]
    The Appellant submits that not all relevant witness were interviewed by the Investigator including Mr Jim Watterston, Director General at the time he was appointed to the SRO Role, Mr Michael O'Leary who had been acting in his role during his absence, and Ms Robinson and Ms Albury from the Governance and Strategy area of the Department.  The failure of the Investigator to interview these officers caused key evidence not being obtained and resulted in the Disciplinary decision not being 'fair and reasonable'.[25]

Whether after 21 May 2021 Appellant's employment as a public service employee had ended and whether any disciplinary process should proceed under s 187 or s 188A of the PS Act

  1. [44]
    The Appellant states he advised by letter dated 26 May 2021 to the Decision Maker that as his employment contract with the State was at an end, that any disciplinary action legally could now only proceed under s 188A of the PS Act.  The Decision Maker in his letter to the Appellant dated 7 September 2021 stated that because the Department had advised the Appellant that he was still an employee, and as the Department was still paying his salary, that he (the Decision Maker) would proceed on the basis that he was still an employee.[26]
  1. [45]
    The Appellant notes that his salary was at all times paid by the Department to support their legal position that he remained an employee and to assist the Department in the adverse action claim he commenced in the Commission on 11 June 2021.
  1. [46]
    Further, the Appellant submits that the Decision Maker, by making their decision on 7 September 2021 pursuant to s 187 of the PS Act, acted unlawfully as any discipline action against him following his termination of employment with the Department could only be continued under s 188A of the PS Act.  On a proper reading of s 188A and related definitions in the PS Act, the Decision Maker cannot legally be regarded as his 'previous chief executive'.[27] The term 'chief executive' is defined in Schedule 4 of the PS Act.  Schedule 4 refers to s 10 of the PS Act which provides:

10 Who is a chief executive

  1. (1)
    A chief executive, in relation to a department, is the person who holds appointment under this Act as the chief executive of that department.

Notes -

1 For public service offices, see sections 22 and 23.

2 Under  section 104, the chief executive of a chief executive is the Minister.

  1. (2)
    The chief executive, of a person who is a public service employee, is the chief executive of the department in which the person holds appointment as a public service employee.
  1. (3)
    Otherwise, a reference to a chief executive is a reference to the chief executive of a department.
  1. [47]
    In summary, the Appellant submits that because of the statutory interpretation and associated jurisdictional errors that have been made by the Decision Maker, his entire decision as set out in his letter dated 7 September 2021 is void and of no legal effect.[28]
  1. [48]
    Also, the Decision Maker is incapable of proceeding with any s 188A process under the PS Act against the Appellant as he is not his 'previous chief executive'.[29]

Relief under s 59 of the HR Act

  1. [49]
    The Appellant submits the Decision Maker acted unlawfully and breached his human right in relation to his privacy and reputation under s 25 of the HR Act.  Reference was made to the Vega Vega case where her Honour Lyons J found that the reputation of Doctor Vega Vega had been affected.[30]
  1. [50]
    In Ainsworth v Criminal Justice Commission ('Ainsworth'),[31] the High Court made it clear that a person's personal reputation is an interest that specifically attracts the protection of the rules of natural justice/procedural fairness.[32]
  1. [51]
    Section 58 of the HR Act provides in Queensland that it is unlawful for a public entity to act, or make a decision, that is not compatible with any of the human rights which are protected under the HR Act.
  1. [52]
    The Appellant notes he was the only public servant from the Department who was suspended in relation to the investigation process conducted into Ms Trad and the Director-General proactively issued a media release communicating his suspension from duty since 11 May 2020.  He has been the subject of numerous and repeated media articles since his suspension.  His previous unblemished professional reputation with almost a decade in the role of Deputy Director-General has been damaged by the investigation and the associated unlawfulness.[33]
  1. [53]
    Section 59 of the HR Act enables any relevant unlawfulness of the Decision Maker under s 58 of the HR Act to be independently relied upon by the Appellant in these appeal proceedings to justify the grant of any relevant relief or remedy otherwise available under ss 193 and 194 of the PS Act.[34]

Respondent's submissions

  1. [54]
    The Respondent submits that the view of the Appellant in his submissions is that the CCC, the investigator and Mr Gee all failed to properly understand his role as the SRO for the ICSSSC project.
  1. [55]
    The Appellant has not identified a document which states that, as SRO, he had authority to overrule a recruitment decision made by a selection panel or override the ordinary recruitment processes or to overturn a decision by a delegate of the Director-General to approve the appointment of Principal A. Such an authority would be a significant departure from the usual requirements and if such a document existed it would have been obtained by the CCC during its investigation or by QWorkplace Solutions.[35]
  1. [56]
    The Executive Management Board paper approved the proposed governance arrangements for the Building Future Schools Fund,[36] and at page 10 sets out the roles and responsibilities of the Program Board, including the SRO. It notes the SRO is accountable for the successful delivery of the program however nowhere does it state the SRO has authority to overrule a recruitment decision made by a selection panel or to override the ordinary recruitment processes or say that the Appellant has authority to overturn a decision of a delegate of the Director-General to approve the appointment of a person as a result of a recruitment and selection decision.[37]
  1. [57]
    In making the disciplinary findings in the second show cause notice against the Appellant, Mr Gee carefully considered the Appellant's submissions in relation to his role as the SRO:
  1. Mr Hunt developed concerns in relation to the suitability of Principal A almost immediately on his return to work, based on hearsay comments back to him and prior to having met Principal A;
  2. Mr Hunt suggested and attended a meeting between Principal A and the then Deputy Premier which, in his own words, he considered to be a "test to prove, up or down, whether we should proceed to make an offer of appointment" to Principal A;
  3. Mr Hunt overruled the authorised delegate who had approved Principal A's appointment;
  4. Mr Hunt misled Principal A as to the nature of the meeting with the then Deputy Premier;
  5. Mr Hunt instructed Ms Helen Kenworthy, Regional Director, to mislead Principal A and the other members of the selection panel as to the reasons Principal A's appointment was not proceeding;
  6. Mr Hunt submitted a briefing note to the Director-General (which included a draft letter to the Queensland Teacher's Union) which was factually inaccurate;
  7. Mr Hunt changed the student enrolment numbers for the ICSSSC after he decided to overrule the selection panel in its recommendation of Principal A and also the authorised delegate in their approval of Principal A's appointment;
  8. additionally, Mr Hunt changed the student enrolment numbers without a legitimate or objective basis to do so; and
  9. Mr Hunt prepared documents in relation to the initial recruitment process (which resulted in Principal A being the recommended candidate and her appointment being approved) for the ICSSSC which was not accurate.[38]
  1. [58]
    The Respondent submits that the Appellant did not deny the conduct at (a) to (f) in the previous paragraph was entirely inconsistent with the recruitment processes of the Department of Education and his obligation to act honestly and with integrity. Any suggestion that the Appellant's role as SRO permitted him to engage in such conduct is absurd and implausible. The Appellant cannot refer to any authority such as a delegation to overturn a decision of a delegate of the Director-General to approve the appointment of a person as a result of a recruitment and selection process because no such authority exists. The Appellant relies on his general authority as the SRO to justify his conduct rather than attempting to assert his role as SRO which permitted him to engage in each individual action. If the logic the Appellant applies was reasonable, any SRO appointed to such a role would be permitted to depart from accepted standards such as delegations, directives and policies. If a decision was taken to deviate from accepted standards it is a reasonable expectation that a senior executive officer, in particular a Deputy Director-General, would openly document and inform others for the reasons for such a decision. The Appellant did not do any of these things.
  1. [59]
    The fact that Mr Gee did not accept the Appellant's role as SRO permitted him to do the above did not mean he did not consider the Appellant's submissions.
  1. [60]
    In responding to the Appellant's submissions that additional witnesses should have been interviewed, the Respondent submits that Mr Gee denies there has been any failure to interview witnesses who had evidence relevant to the allegations about the Appellant's conduct and his role as the SRO.
  1. [61]
    The Respondent submitted that Mr Gee considered the Appellant's claim he was denied procedural fairness during the investigation,[39] and said there were numerous instances in the second show cause notice where specific and relevant witness evidence was put to the Appellant for his response during his interviews with QWorkplace Solutions.
  1. [62]
    Natural justice does not require QWorkplace Solutions to provide the Appellant with a complete copy of the transcript of every witness interview prior to or after his interview. What is required is a person be made aware of what he or she is accused of and by whom with sufficiently particularity to be able to respond to the allegations and to be given the opportunity to respond to the allegations.[40] The factual circumstances and statutory framework of Vega area quite specific and unique. The Appellant was not in the same position as Dr Vega Vega.
  1. [63]
    To ensure the Appellant was afforded procedural fairness, Mr Gee provided the Appellant with a copy of all of the material which had been obtained from the Department of Education and the witnesses during the investigation. Not every document obtained was relevant to the allegations against the Appellant and the investigator identified the documents which were relevant to the specific findings in the footnotes throughout the report. The documents identified in the footnotes were categorised as Part A and Part B attachments with a separate index and when the documents were provided to the Appellant electronically, they were contained in separate folders. The way the documents were collected during the investigation and provided to the Appellant did not result in any denial of natural justice.

Awareness of the Director-General, Department of Education

  1. [64]
    The Respondent submits that even if it accepted Mr Cook was aware that the Appellant planned to organise a meeting between Principal A and the then Deputy Premier, that does not absolve the Appellant from his conduct.  The Appellant submits Mr Cook was only aware of the meeting with the then Deputy Premier both before and after it occurs.  The Appellant does not submit that Mr Cook was aware of, or that Mr Cook in any way condoned:
  1. the Appellant overruling the formal approval of Principal A's appointment by the authorised delegate;
  2. the Appellant misleading Principal A as to the nature of the meeting with the then Deputy Premier;
  3. the Appellant instructing Ms Helen Kenworthy, Regional Director to mislead Principal A and the other members of the selection panel as to the reasons Principal A's appointment was not proceeding;
  4. the Appellant submitting a briefing note that was factually inaccurate;
  5. the Appellant changing the student enrolment numbers for the ICSSSC after he decided to overrule the selection panel in its recommendation of Principal A and also the authorised delegate in their approval of Principal A's appointment; and
  6. the Appellant preparing a document in relation to the initial recruitment process for the ICSSSC which was not accurate.[41]

Change in student enrolment numbers

  1. [65]
    The Appellant submits the student enrolment number was irrelevant as the position for the principal, ICSSSC was reclassified as an Executive Principal – Special Purpose and was not dependent on student enrolments. It is acknowledged an Executive Principal – Special Purpose is not dependent on student enrolments, clearly the student enrolments for the principal, ICSSSC was not irrelevant.[42] The Appellant made the student enrolment numbers important when he sought to rely on the purported increased student enrolment numbers to support his decision to reclassify and readvertise the position.

Assessment of the Appellant's motivation

  1. [66]
    It was open to Mr Gee to make findings about the Appellant's motives when he sought to have the principal position re-classified to an Executive Principal – Special Purpose.  The Appellant's motives for seeking the reclassification were relevant to his motivation for establishing an increased student enrolment number allegedly for an inappropriate purpose.
  1. [67]
    The evidence supported Mr Gee's conclusion that the Appellant increased the student enrolment number to support the readvertising of the principal position and, at the same time, to conceal his decision making in relation to overruling the selection panel's recommendation and the delegate's approval of Principal A's appointment.[43]
  1. [68]
    Mr Gee acknowledged that the Appellant was motivated to achieve the best possible outcome for the ICSSSC however it was open to Mr Gee to find the Appellant's motivations went amiss in the execution.

Assessment of witness credibility

  1. [69]
    The Appellant claims QWorkplace Solutions and Mr Gee failed to properly and reasonably assess the reliability of the other witnesses, in that he should have treated their evidence with more care because they were potentially facing disciplinary action under the PS Act. This is no different from the position of the Appellant.  Because a person may be facing disciplinary action it cannot be said they are a less reliable witness.
  1. [70]
    Mr Gee carefully considered witness credibility when making his findings and where he preferred the evidence of another witness over that of the Appellant, Mr Gee gave detailed reasons.[44]

Continuation of Appellant's employment

  1. [71]
    On 6 July 2021 Mr Gee wrote to the Appellant advising him of his decision to continue his suspension from duty on normal remuneration and continue the disciplinary process on the basis the Appellant remained an employee of the Department of Education.
  1. [72]
    The Appellant's employment contract permits the Director-General to transfer the Appellant to another position at the same classification level.  In circumstances where the Appellant continues to receive his salary and hold a SES4 position within the Department of Education his employment contract has not been repudiated and he remains an employee.
  1. [73]
    Therefore, it was open to Mr Gee to make a decision under s 187 of the PS Act to find allegations against the Appellant to be substantiated on the balance of probabilities.

No breach of s 197(5) of the Crime and Corruption Act 2001

  1. [74]
    Mr Gee denies any breach of s 197(5) of the CC Act and he did not rely on or use the Appellant's evidence to the CCC when deciding to find the allegations substantiated and make disciplinary findings against him.

No breach of the Human Rights Act 2019

  1. [75]
    As outlined above Mr Gee denies he acted unlawfully in making the disciplinary findings against the Appellant.  Section 25 of the HR Act does not prevent a decision maker from finding allegations against a public service employee capable of being substantiated, nor does it prevent a decision maker from making disciplinary findings under s 187 of the PS Act.

Order sought

  1. [76]
    The Respondent seeks the appeal should be dismissed on the basis that Mr Gee's decision to make the disciplinary findings against the Appellant was fair and reasonable and should be confirmed.

Consideration

Ground 1 – Breach of the rules of Natural Justice

  1. [77]
    Section 190 of the PS Act requires that when discipling a public service employee, a Chief Executive (or his or her delegate) must comply with the Act and any relevant directive of the Commission Chief Executive and the principles of natural justice.
  1. [78]
    Section 187(1) of the PS Act empowers a chief executive (or a relevant person such as Mr Gee) to discipline an employee.  The Respondent was obliged to accord natural justice to the Applicant by providing an opportunity to show cause why the disciplinary action should not be taken.[45]
  1. [79]
    In Wirth v Mackay Hospital and Health Service & Anor ('Wirth'),[46] Bond J was called upon to determine, within a Judicial Review application, a complaint by Dr Wirth. Namely, that:
  1. he was denied procedural fairness because the process of obtaining the investigation report was not a process in which he was accorded procedural fairness;
  2. he was denied procedural fairness because at no time in the process leading up to either the disciplinary findings decision or the disciplinary action decision was he ever provided with the investigation report or the evidence it contained; and,
  3. the decisions of the delegate were vitiated by her apparent bias.[47]
  1. [80]
    The application was considered having regard to s 187 of the PS Act and the application of the Human Resources Policy, Discipline: E10.
  1. [81]
    Bond J wrote:

The critical question - using the language of Kiefel, Bell and Keane JJ in WZARH - is what was required in order to ensure that the decisions were made fairly in the circumstances having regard to the legal framework within which the decisions were to be made. Or, to turn the question around, is there any aspect of the way in which the decisions were made which compels the conclusion that they were not made fairly and practical injustice has occurred?[48]

  1. [82]
    In Minister for Immigration and Border Protection v WZARH,[49] Kiefel, Bell and Keane JJ discussed Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam, to emphasise the proposition that the necessary focus is on the question whether practical injustice occurred:

In Lam, it was held that a failure by the decision-making authority to adhere to a foreshadowed line of inquiry may, but will not necessarily, amount to a denial of procedural fairness.  The manner in which any given administrative process is conducted may generate expectations on the part of the person affected as to how he or she should present his or her case; in some cases, fairness may require that such expectations be honoured.  In this regard, Gleeson CJ said:

'when a public authority promises that a particular procedure will be followed in making a decision, fairness may require that the public authority be held to its promise. ... Expectations created by a decision-maker may affect the practical content of the requirements of fairness in a particular case.'

The present case is readily distinguishable from Lam. In that case, as Gleeson CJ said, '[t]he applicant lost no opportunity to advance his case' and it was for that reason that no practical injustice was held to have occurred.  And Hayne J said:

'[The applicant] was afforded a full opportunity to be heard.  The Department's letter raised no new matter to be taken into account in making the impugned decision, and it did not divert attention in any way from the relevance of, or weight to be given to, the effect that cancellation of the applicant's visa would have on his children.'.[50]

  1. [83]
    Gageler and Gordon JJ cited with approval to the statement by Gleeson CJ in Lam that the concern of procedural fairness is to avoid practical injustice and, in particular, the following observation of Gleeson CJ in Lam:[51]

[T]he creation of an expectation may bear upon the practical content of that obligation. But it does not supplant the obligation.  The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed.[52]

  1. [84]
    The process adopted by the Respondent was informed by both the directive and the PS Act. The Appellant was given an opportunity to participate in the investigation process conducted by QWorkplace. He was afforded an opportunity during that process to engage in an interview where allegations against him were put and he had the opportunity to respond. He engaged in a formal show cause process. The allegations levelled against him were expressly set out and fully particularised. He was given an opportunity to respond to the allegations which he availed himself of. Moreover, in respect of penalty, he was given a further opportunity to make submissions.
  1. [85]
    As Gleeson CJ pointed out in Lam, 'The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed'.[53] In my view there has been no unfairness.

Ground 2 – Illogical or Irrational Conclusions

  1. [86]
    After considering the Appellant's responses and the evidence before him, the Decision-Maker concluded on the balance of probabilities that allegations 1, sub-allegations 1(a) and 1(b), 2, 3, 4,  and 5 had been substantiated and he determined that pursuant to s 187(1)(b) of the PS Act that the Applicant was guilty of misconduct. In respect of allegation 6, the Decision-Maker concluded that a finding could not be substantiated in respect of misconduct but determined that the Appellant had contravened, without reasonable excuse, clause 4.1 of the Code of Conduct.
  1. [87]
    For the purposes of s 187(1)(b) of the PS Act, misconduct is defined in s 187(4) as:
  1. (a)
    inappropriate or improper conduct in an official capacity; or
  2. (b)
    inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service.
  1. [88]
    Section 187(4)(a) of the PS Act has application to the current proceedings. It is this formulation of ‘misconduct’ which must be borne in mind in determining whether or not the conduct alleged against the Applicant can be properly regarded as misconduct.
  1. [89]
    Apart from the definition of misconduct in s 187(4), the PS Act does not provide guidance as to what is meant by 'inappropriate' or 'improper' conduct.
  1. [90]
    In Mathieu v Higgins & Anor,[54] Daubney J was called upon to determine whether the conduct of a Paramedic in the performance of his duties constituted misconduct as defined in s 10(a) of the Queensland Ambulance Service ('QAS') Policy.  The term 'misconduct' is defined as 'disgraceful or improper conduct in an official capacity'.[55]
  1. [91]
    In that case, the Applicant was, at the time of the conduct to which the decision related, employed as an Acute Care Paramedic by the QAS. The Applicant and a student paramedic attended at the residential address where a violent and potentially suicidal psychiatric patient resided. It was decided that the patient, who had reported having trouble breathing, should be moved to the Gold Coast Hospital. While the ambulance officers were walking him from his bedroom towards the ambulance, he collapsed.  Subsequently, the patient was placed on a stretcher and conveyed to the Gold Coast Hospital where he died soon after. An autopsy later performed on the patient reported that the cause of his death was ischaemic heart disease due to coronary atherosclerosis.  For the bulk of the attendance at the patient’s residence, and the journey from the residence to the hospital, the student paramedic served as the patient's primary caregiver.  The Department of Emergency Services commissioned an investigation report which ultimately concluded that the Applicant had failed to demonstrate an appropriate standard of care in treating the patient but that there was not sufficient evidence available to sustain a conclusion that the Applicant's conduct contributed to his death. The Applicant was issued with a 'notice to show cause why disciplinary action should not be taken against you in accordance with the Queensland Ambulance Service (QAS) Discipline Policy'.[56]
  1. [92]
    After the disciplinary process, the Applicant's conduct was found to be conduct which amounted to misconduct.
  1. [93]
    Daubney J, in considering s 10(a) of the QAS Policy, was of the view that it is not appropriate to rigidly separate the definition into its component parts; the words 'disgraceful' and 'improper' are included in the definition as alternatives, but nonetheless should not be regarded as wholly independent.  Rather, each term should be read as giving colour to the other.[57]  His Honour held that:

'[M]isconduct', as used in the policy, contemplates something more than mere incompetence, or a failure to attain the established standards of conduct.  As the policy stands, 'misconduct', to adapt the words of Kirby P (as his Honour then was), requires a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by ambulance officers.[58]

  1. [94]
    Daubney J cited, with approval, the reasoning of Kirby P (as his Honour then was) in Pillai v Messiter (No 2),[59] which addressed the meaning of the expression, 'misconduct in a professional respect' in the Medical Practitioners Act 1938 (NSW).  Kirby P said:

But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession.  Something more is required.  It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner.[60]

  1. [95]
    Coleman v State of Queensland (Department of Education),[61] was a case involving ten allegations against a principal employed by the State of Queensland through the Department of Education, arising out of allegations that he had behaved in an inappropriate and unprofessional manner towards two students. The Department determined that the ten allegations were substantiated and that, by his conduct, Mr Coleman was guilty of misconduct within the meaning of s 187(1)(b) and s 187(4)(a) and (b) of the PS Act.
  1. [96]
    Merrell DP held that:

In my view, the definition of 'misconduct' contained in s 187(4)(a) contemplates a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee.[62]

  1. [97]
    The Decision-Maker's reasoning in determining the allegations before him is clear. After traversing the Appellant's submissions, the Decision-Maker highlighted the evidence he thought was important, made findings of fact and applied the correct legal principles to the facts as found. Nothing can, in my view, raise any concerns about the approach adopted by the Decision-Maker. 
  1. [98]
    Let me briefly turn to the findings as determined by the Decision-Maker.

Allegation 1

You involved yourself inappropriately, including making decisions in the recruitment process for the Principal, Band 11 for the Inner-City South State Secondary College (ICSSSC)

Sub allegation 1(a) – You inappropriately suggested attending a meeting between Principal A and Ms Trad.

  1. [99]
    The Decision-Maker found the sub-allegation substantiated. In doing so, he accepted that the Appellant attended a meeting with Principal A on 29 March 2019. It was accepted by the Decision-Maker that the idea and decision to take Principal A to meet with Ms Trad was the Appellant's. On the Appellant's evidence, the meeting with Ms Trad was a 'test to prove, up or down', whether the offer of appointment to Principal A should proceed.
  1. [100]
    The Decision-Maker accepted that the idea to meet with Ms Trad was inappropriate because it was outside the regular selection process. Fundamental to integrity of that selection process was the involvement of the selection panel in the decision-making process. It was not accepted by the Decision-Maker that the meeting with Ms Trad was designed to seek approval. The Decision-Maker considered the meeting was unfair to Principal A. Despite the apparent significance of the meeting, the Appellant did not inform Principal A of the importance of the meeting; its purpose; and that it may be a factor in deciding whether she would be recruited for the role of principal at ICSSSC.
  1. [101]
    Principal A attended the meeting absent any idea that she was being assessed for her performance. The Decision-Maker found that the Appellant had not been open and honest with Principal A and in doing so the Appellant had done Principal A a disservice.

Paragraph sub allegation 1(b) – you inappropriately decided not to proceed with Principal A's appointment.

  1. [102]
    The Decision-Maker found this sub-allegation substantiated.
  1. [103]
    On the material before the decision-maker it was not in dispute that the Appellant decided not to proceed with Principal A's appointment.
  1. [104]
    The Decision-Maker refers to what was described as 'bespoke governance arrangements' and the Appellant's role as an SRO. However, it is apparent from the material and the conclusions reached by of the Decision-Maker that the Appellant has failed to identify any specific document that gave him authority to decide not to proceed with Principal A's appointment on the recruitment process. In making that decision, absent authority, the Appellant went outside the recruitment processes. Under the Department of Education's HR Delegations, the Appellant did not hold a delegation to approve the appointment of 'school leaders'. The selection report was signed by Ms Walton as the delegated officer.
  1. [105]
    After weighing the evidence, the Decision-Maker accepted that the Appellant not only overruled the Selection Panel, but he also overruled the authorised delegate who had approve Principal A's appointment.
  1. [106]
    The Appellant apparently likened his action in not proceeding with Principal A's appointment to a process whereby a selection panel 'parks' a process and goes back to market if they hold any doubt or uncertainty about the merits of the candidate. However, as the Decision-Maker points out, it is a matter for the selection panel to decide whether it should go back to market if a suitable candidate was not identified. Further, in circumstances where an appointment does not proceed because of new information, the selection panel at the time available such panel of the time the decision or there was a change in organisational priorities.
  1. [107]
    However, any additional information dealing with the Appellants 'assessment' of Principal A was never made available to the selection panel for them to consider, nor was Principal A given an opportunity to respond. It needs to be borne in mind that irrespective of the reservations held by the Appellant regarding the appointment of Principal A, the selection panel has nevertheless recommended Principal A's appointment. It was not for the Appellant to overturn the decision of the selection panel based on his own brief and perfunctory assessment of Principal A.
  1. [108]
    Principal A was approved for appointment on 15 March 2019 in those circumstances an offer could have been made.
  1. [109]
    It was accepted that the Appellant became inappropriately involved including making decisions the recruitment process for the Principal Band 11 – ICSSSC. In coming to the conclusion, the Decision-Maker was satisfied that the purpose of the Principal A's meeting with Ms Trad was inappropriate. He was further satisfied the decision not to proceed with Principal A's appointment was also in a private decision-maker was satisfied that the Appellant's conduct in taking this Cook to meet with Ms Trad was not impartial and also much transparency is further satisfied that the conduct of the Appellant amounts to a deliberate departure from accepted recruitment processes and standards of integrity and honesty. He was satisfied that the Appellant had abused the trust and confidence given to him as a senior executive within the Department of education. On that basis, he concluded that the Appellant had been found guilty of misconduct that is inappropriate or improper conduct in an official capacity within the meaning of s 187 of the PS Act.

Allegation 2

You misled Principal A during the recruitment process for the position of Principal Band 11, ICSSSC.

  1. [110]
    It is not in dispute that the Appellant met with Principal A on 28 March 2019 prior to meeting with her and Ms Trad on 29 March 2019. At the time of the meeting with Principal A on 28 March 2019 the Appellant was aware that Principal A was recommended as a candidate for the position of Principal Band 11, ICSSSC. The Appellant did not inform Principal A that she had been recommended for the position, nor did he tell Principal A that she was the only candidate who was being taken to meet with Ms Trad.
  1. [111]
    During the investigation process, the Appellant told the investigator that he met with Principal A on 28 March 2019. It was an introductory meeting because he needed to be satisfied that she was worthy of the appointment or nomination given that he held reservations about her suitability. The Appellant did not tell Principal A that the purpose of the meeting was to assess her capacity for the role principal. His failure to properly inform Principal A about the current status of the selection process and the impact the meeting may have had on the outcome of the selection process was contrary to the Appellant's own submission that he decided to introduce Principal A as a matter of fairness.
  1. [112]
    The Decision-Maker was of the view that had he told Principal A that he was assessing her suitability for the position outside of the selection panel process she may have prepared or taken some other approach to treating it Appellant did not tell Principal A that he had decided to overturn the decision of the recommendation of the selection panel it's further, the decision-maker found that Ms Kenworthy had been coached by Appellant to advise Principal A that the recruitment process had stopped; that the position would be readvertise at the Executive Principal on the basis that the student numbers would be higher.
  1. [113]
    The Appellant's conduct was at the least misleading and at the worst, dishonest. It was not on any view fair to Principal A, and it was a deliberate and serious department from the standards expected of a public servant, particularly one who holds a senior leadership role within the Department of Education. In those circumstances the evidence was sufficient for the Decision-Maker to make a finding of misconduct pursuant to the PS Act namely being an inappropriate proper conduct in official capacity within the meaning of s 187 of the PS Act.

Allegation 3

You failed to accurately record the reasons for the decision to readvertise the Principal ICSSSC as Executive Principal and mislead the Director-General as to the reasons for the re-classification and re-advertisement.

  1. [114]
    It was not in dispute that the Appellant instructed that a briefing note be prepared for the Director-General's approval establishing an Executive Principal – Special Purpose for the ICSSSC.
  1. [115]
    The instructions provided by the Appellant for the preparation of a briefing note was as a consequence of the decision not to proceed with Principal A's appointment. The initial draft of the briefing note was prepared by Mr Bill Barlow, the Principal HR Consultant and sent to the Appellant on 11 April 2021. Further drafting amendments were made by Ms Laura Day, Principal Advisor prior to the Appellant's final review. The briefing note was amended by the Appellant on 1 May 2021.
  1. [116]
    The various iterations of the briefing note prepared contained the following:

The new role of Principal, ICSSSC ST3 was recently advertised however, the selection panel has recommended that no appointment be made due to a lack of breadth and depth in the quality of the applicant pool.

  1. [117]
    Absent from the briefing note prepared for the Director-General was any advice from the Appellant which demonstrated his purported exercise of some delegated authority as an SRO to determine that the recommended applicant namely Principal A, not be appointed. Further, it incorrectly suggested that the selection panel had recommended not to make an appointment. It did not.
  1. [118]
    The further amendments undertaken by Ms Day on 23 April 2019 and the contents of the inserted paragraphs 3 and 4 under the heading, 'Background'. Those paragraphs were inaccurate because it referred to the design for the ICSSSC as including three multi-story learning blocks the concept master plan which was released on 29 March 2019 envisage having only two leading homes or learning blocks. Although further learning hubs could be accommodated in the future, it was not funded at this stage.
  1. [119]
    The Decision-Maker did not accept that it was evident that as at 1 May 2019 the ICSSSC would cater for over 1600 students on-site. The Appellant in his evidence to the investigator, said that he identified the higher number from looking at the capacity sheet as your 'a-ha' moment. The Appellant reached the 1650 figure by adding 10% to the 1500 target enrolment that he had picked or plucked as SRO.
  1. [120]
    The Appellant contended that the briefing note was initially drafted by others, and it was given to him shortly prior to the meeting with the Director-General. He submitted that his focus was on the operative parts of briefing rather than background. However, the Decision-Maker formed the view that the statement about the selection panel recommending no appointment be made was under the heading key issues and could only have been drafted by Mr Barlow based upon information given to him by the Appellant the statement was incorrect.
  1. [121]
    In assessing the evidence, the Decision-Maker accepted that whilst the role of DDG Corporate Services was an extremely busy one, it did not excuse the Appellant's conduct in submitting a briefing note to the Director-General which he knew contained inaccuracies.
  1. [122]
    The Appellant denied a coverup, however it was apparent from the material before the Decision-Maker that he had not been completely open and transparent about his involvement in the recruitment process including the decision-making. The Decision-Maker was satisfied that he had failed to record the reasons for the decision to re-advertise the Principal ICSSSC position and he did not record that he had decided not to proceed with the appointment of the recommended applicant. The Decision-Maker was satisfied that the Appellant had edited and approved a briefing note to the Director-General which he knew contained misleading information.
  1. [123]
    Accordingly, the Decision-Maker concluded that the allegation of misconduct had been proven.

Allegation 4

You made the decision to change the student enrolment number four ICS SSC from 1500 to 1600 or 1650 credit inappropriate purpose.

  1. [124]
    It was not in dispute that the Appellant made a decision to change the student enrolment numbers for the ICSSSC. The Appellant accepted that it was his decision.
  1. [125]
    The Decision-Maker accepted that the Appellant changed the student enrolment numbers in order to support or to justify the re-advertisement of the Principal role as an Executive Principal Level. The Decision-Maker considered that the amendment was inappropriate as the change was not objectively required.
  1. [126]
    The Appellant argued that the student enrolment numbers were a 'red herring' or are irrelevant for the purposes of the decision relating to the conduct in relation to the appointment of a foundation principal for the ICSSSC.
  1. [127]
    In his reasoning, the Decision-Maker sets out in some considerable detail the basis for taking disciplinary action. I do not intend to rehearse again the evidence assessed by him; it is sufficient to say that there was a proper basis for making the conclusions that he did.
  1. [128]
    The change to the student enrolment numbers for the ICSSSC from 1500 to 1600 or 1650 raised a number of concerns. First, it was inappropriate and was done for the purposes of supporting the decision to re-advertise the Executive Principal – Special Purpose position. Secondly, the decision was made in circumstances where the appointment was to be an Executive Principal – Special Purpose. There was no need for the change to an enrolment number.
  1. [129]
    The Decision-Maker found that the Appellant's conduct in increasing the student numbers to support a decision to readvertise the principal's role was dishonest and inherently improper. On the basis of those findings, the allegation was substantiated, and the decision-maker determined, in my view correctly, that the Appellant was guilty of misconduct for the purposes of 187(1)(b) and that it was inappropriate or improper conduct in an official capacity within the meaning of section 187(4)(a) of the PS Act.

Allegation 5

You inappropriately instructed the documentation referring to the ICSSSC student enrolment number be changed from 1500 to 1600 or 1650 students attempted to conceal this instruction.

  1. [130]
    On 12 April 2019 Mr Nathan Fitzsimmons, the Acting Program Director, Building Future Schools Fund sent an email to the Building Future Schools Group asking them to amend all 'publicly facing materials' relating to the ICSSSC referred to student numbers as 'over 1600' instead of 'up to 1500'. The amendment was requested following a telephone call from Ms Laura Day to Mr Fitzsimmons. After the email was sent, Ms Day requested Mr Fitzsimmons to recall and delete the email.
  1. [131]
    The evidence of the Appellant was that Ms Day had issued an instruction to change the documentation prematurely or had gone off too quickly and it was not necessary for the Appellant to ask for the email to be recalled.
  1. [132]
    Only the email and not the instruction was recalled. Subsequently Ms Day exchange text messages with Mr Fitzsimmons about changing the enrolment numbers in the documents related to the ICSSSC. On 23 April 2019 a text message was sent by Ms Day to Mr Fitzsimmons. In that text, Ms Day states:

Hi Nathan, I have spoken with Jeff about this and we can update the draft EMP – can you please action this and change to over 1600?  Thank you Laura.

  1. [133]
    There was nothing before the Decision-Maker to support the suggested amendment of the enrolment figures.
  1. [134]
    The Decision-Maker noted the evidence of Ms Day that her instruction to the Building Future Schools Group change the documentation was made at the Appellant's request. It was noted by the Decision-Maker that the increases identified in the email were consistent with the 'a-ha' moment referred to by the Appellant in his evidence.
  1. [135]
    The instruction given by the Appellant was found to be inappropriate because there was no objective or legitimate basis upon which the instruction could be issued. The instruction was never clarified; the Appellant attempted to conceal his instructions by seeking to have the email recalled or deleted, and the Appellant's conduct was inherently improper and dishonest. Accordingly, the conduct of the Appellant was in the view of the Decision-Maker that the Appellant's conduct was a deliberate departure from accepted standards of integrity and honesty.
  1. [136]
    The Appellant was guilty of misconduct for the purposes of 187(1)(b) and that it was inappropriate or improper conduct in an official capacity within the meaning of section 187(4)(a) of the PS Act.

Allegation 6

You provided misleading and inaccurate information to the director-general in 2019 resulting in the director-general issuing a media statement which contained inaccuracies

  1. [137]
    What is not in dispute is that on 27 November 2019 the Appellant emailed a Word document titled 'Media Response' to Mr Nick Seeley the Executive Director Office of the Director-General. The document contained a draft media statement and questions and answers or speaking notes.
  1. [138]
    The Appellant played a role in the creation of the document prepared in April 2019 in response to a request for information. The document was relied upon by Director-General when he issued the media statement on 28 November 2019.
  1. [139]
    It was accepted that Appellant did not prepare the media statement, which was issued by the Director-General. However, the Decision-Maker was satisfied that the Appellant knew that the document which was provided to Mr Seeley by email on 27 November 2019 would be provided to the Director-General and it was likely that he would rely upon. Further, the Word document provided to Mr Seeley contained a series of inaccuracies. In particular, the document relevantly contained the following:
  1. The panel proceeded through the selection process and the panel chair elected not to make an appointment from that process;
  2. The panel chair decided not to proceed with an appointment and to request to have the job readvertised particularly given information about the potential larger capacity of the n0ew school following architectural design work that had progressed following after the original advertisement.
  1. [140]
    The Appellant accepted that it was his decision and not Ms Kenworthy (Panel Chair) not to proceed with the appointment of Principal A.
  1. [141]
    The media statement released by the Director-General made reference to the new demographic modelling that had been undertaken which indicated that the ICSSSC will exceed 1600 students and be eligible for an Executive Principal position. Therefore, no appointment was made.
  1. [142]
    As the evidence established, Principal A's appointment was not proceeded with because the Appellant decided not to proceed with it. It was not, as stated, a consequence of some demographic modelling or other information that indicated that the student enrolment numbers were higher than initially anticipated.
  1. [143]
    The Decision-Maker was satisfied that the Appellant had provided misleading and inaccurate information to the Director-General in November 2019. He was further satisfied that the Appellant did so knowingly, in circumstances where Appellant was aware that Mr Cook was preparing a media statement in response to allegations or concerns about Ms Trad's involvement in the ICSSSE recruitment process. Given the serious nature of the allegations it was imperative that the Appellant provide to the Director-General an honest and accurate account of the decision-making processes. The Appellant was found not to have done so. That finding was clearly open on the evidence.
  1. [144]
    The Decision-Maker accepted that the Appellant was not given opportunity to review the media statement prior to its release. On that basis, the Decision-Maker was satisfied that the Appellant's conduct did not, on this occasion, amount to misconduct. However, he did consider that the Appellant's conduct amounted to a breach of his obligation to ensure diligence and public administration specifically to apply due care in his work and provide accurate and impartial advice on that basis. The Decision-Maker concluded that the Appellant had contravened, without reasonable excuse, Clause 4.1 of the Code of Conduct.
  1. [145]
    The conclusions reached by the Decision-Maker were reasonably open on the evidence before him.
  1. [146]
    It was then submitted by the Appellant that allegedly incorrect inferences were drawn by the Decision-Maker.
  1. [147]
    The evidence before the Decision-Maker must give 'rise to a reasonable and definite inference, not merely to conflicting inferences of equal degrees of probability'.[63]
  1. [148]
    In Masters Home Improvement Australia Pty Ltd v North East Solutions Pty Ltd,[64] ('Masters') the Victorian Court of Appeal wrote:

The principles, relating to the drawing of inferences in civil cases, are well established. First, any inference must be based on facts established by admissible evidence. Secondly, the process of reasoning must constitute a valid inference, as distinct from speculation or guesswork. Thirdly, and importantly, where the inference is drawn in favour of the party which bears the burden of proof in the case, the conclusion must be 'the more probable inference' from those facts. In other words, the inference drawn by the judge must be reasonably considered to have a greater degree of likelihood than any competing inference…

In its recent decision in Marriner & Ors v Australian Super Developments Pty Ltd, this Court summarised the relevant principles as follows:

"A party seeking to establish that an inference ought to be drawn must demonstrate that that inference is the more probable one which arises from the established facts. The inference must be based on evidence rather than speculation …".[65](citations omitted)

  1. [149]
    It is for the Decision-Maker to draw inferences from facts which are found proved. The issue is whether the inferences were open. In my view, they clearly were.
  1. [150]
    Let me briefly deal with some other matters raised by the Appellant. It was asserted that the Decision-Maker in making his findings was confused in respect of the lawful scope of the administrative authority held by a Senior Responsible Officer (SRO) of the Building Future Schools Project. The Appellant in his written submissions made the following statement:

There is much evidence that was provided about the roles that I played across all of the BFS projects – in terms of buying land, keeping old buildings and restoring them, acquiring sports fields; agreeing to staffing structures – all of which were part of the SRO role – and in the approval and endorsement of the appointment of the relevant principals and the classification of the schools.

At no time did the investigator or the Respondent refer to any other part who had the relevant authority – if it was not me as the SFO. That is an important point.[66]

  1. [151]
    Critically, the Decision-Maker concluded that the Appellant did not hold the authority to do what he did. In coming to that view, the Decision-Maker concluded that the Appellant could not identify a document which states that, as SRO, he had authority to overrule a recruitment decision made by a selection panel or override the ordinary recruitment processes or to overturn a decision by a delegate of the Director-General to approve the appointment of Principal A. 
  1. [152]
    As Industrial Commissioner Dwyer observed in Monavvari v Queensland (Queensland Health, eHealth),[67] ('Monavvari') if an Appellant wished to challenge the veracity of the statements made by the Decision-Maker, then the Appellant held the onus to produce evidence to contradict them.
  1. [153]
    The Appellant raises a general complaint that the Decision-Maker has made incorrect findings of fact; failed to make critical findings; and failed to properly and reasonably assess the reliability of other witnesses who were also potentially facing disciplinary action. The submission is short in particulars.
  1. [154]
    The authorities have consistently found that in relation to fact finding and the giving of weight to various factors '... [t]here is no error of law simply in making a wrong finding of fact'.[68] Further, that:

'... it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power .... I say ‘generally’ because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance'.[69]

  1. [155]
    While the courts consistently emphasise that fact finding is a matter for administrative decision-makers, they also make it clear that this is subject to the proviso that such assessments and weightings are reasonable in the circumstances. In Minister for Immigration and Citizenship v Li,[70] the High Court said that the area of 'free discretion' of the decision-maker to make such assessments '... resides within the bounds of legal reasonableness'.
  1. [156]
    The Appellant also asserts that there was a failure to contact relevant witnesses, in particular Mr Jim Watterston and Mr Michael O'Leary who had been acting in the Appellant's during his absence from work. 
  1. [157]
    In response to that assertion, the Respondent notes that Mr Watterston was the Director-General in 2017 when the Building Future Schools Fund was established, and the Appellant was appointed the SRO. The Appellant does not provide any detail as to what relevant evidence Mr Watterston could have given as part of the investigation.
  1. [158]
    In respect of Mr O'Leary, it is submitted that Mr O'Leary acted as the Deputy Director-General, Corporate Services while the Appellant was on leave from 27 January to 18 March 2019.  The Appellant submits that his discussions with Mr O'Leary was directly relevant to his state of mind and knowledge about the appointment of the principal.
  1. [159]
    I accept that that it was open to the investigator not to interview Mr O'Leary particularly having regard to the fact that he was not involved in the shortlisting of candidates or involved in the interview process and as such he was not in a position to offer an opinion as to the Principal's suitability or otherwise.

Ground 2 – Human Rights

  1. [160]
    What can be gleaned from the Applicant's submissions is that he seeks to pursue a claim under the HR Act in respect of his rights under s 25 of the HR Act, namely the right to Privacy and reputation.
  1. [161]
    The HR Act requires that public entities not to act in a way that is incompatible with human rights or fail to give proper consideration to a human right:
  1. [162]
    Section 58(6) declares that unlawfulness pursuant to s 58(1) will not invalidate an act or decision or constitute the commission of an offence. However, unlawfulness pursuant to s 58(1) will trigger the opportunity for piggyback relief provided by s 59, which relevantly provides:

59 Legal proceedings

  1. (1)
    Subsection (2) applies if a person may seek any relief or remedy in relation to an act or decision of a public entity on the ground that the act or decision was, other than because of section 58, unlawful.
  1. (2)
    The person may seek the relief or remedy mentioned in subsection (1) on the ground of unlawfulness arising under section 58, even if the person may not be successful in obtaining the relief or remedy on the ground mentioned in subsection (1).
  1. (3)
    However, the person is not entitled to be awarded damages on the ground of unlawfulness arising under section 58.
  1. (4)
    This section does not affect a right a person has, other than under this Act, to seek any relief or remedy in relation to an act or decision of a public entity, including -
  1. (a)
    a right to seek judicial review under the Judicial Review Act 1991 or the Uniform Civil Procedure Rules 1999; and
  1. (b)
    a right to seek a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or an exclusion of evidence.
  1. (5)
    A person may seek relief or remedy on a ground of unlawfulness arising under section 58 only under this section.
  1. (6)
    Nothing in this section affects a right a person may have to damages apart from the operation of this section.
  1. [163]
    A significant operational limit on the HR Act is the requirement that any claim made pursuant to it for relief or remedy in relation to an act or decision of a public entity must be 'piggybacked' onto an independent ground of unlawfulness.  That is the effect of s 59 (1) and (2) of the HR Act.
  1. [164]
    The independent ground of unlawfulness must relate to the same act or decision said to be unlawful under the HR Act.  This was clarified by the Victorian Supreme Court in Goode v Common Equity Housing where Bell J held that in respect of the analogous s 39 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Victorian Charter):

Section 39(1) was not intended to create a new cause of action based on Charter unlawfulness (however desirable that might have been).  As the discussion in the authorities reveals, it was designed to enable a person to seek relief or remedy 'in respect of an act or decision of a public authority' on a ground of Charter unlawfulness where he or she has an independent entitlement to seek such relief or remedy on a ground of non-Charter unlawfulness.[71]

  1. [165]
    The gravamen of the Appellant's claim seems to be that the Decision-Maker, in making the disciplinary decision acted unlawfully and breached his human right regarding privacy and reputation as provided for under s 25 of the HR Act.
  1. [166]
    At the outset, it is not in dispute that the Courts have made clear that reputation is an interest attracting the protection of natural justice.
  1. [167]
    In Ainsworth v Criminal Justice Commission,[72] the Respondent reported to the Parliamentary Criminal Justice Committee (PCJC) on the introduction of poker machines and recommended to the PCJC that the Ainsworth group of companies should not be permitted to participate in the gaming machine industry. No notification was given to the companies to be heard. A duty of procedural fairness arises because the power involved is one which may ‘destroy, defeat or prejudice a person’s rights, interest or legitimate expectation’. The High Court said where a report made and delivered by the PCJC had, of itself, no legal effect and carried no legal consequences whether direct or indirect, no action lies, but it is different when a report or recommendation operates as a precondition or is a bar to a course of action, or is a step in the process capable of altering rights, interests or liabilities.[73] The publishing of a report, damaging to the reputation of the Applicant, without having given the applicant a hearing, was found to lack fairness and declaration made to that effect.
  1. [168]
    In practice, an interference has generally been accepted as ‘lawful’ within the meaning of s 25(a) of the HR Act when it accords with an existing regulatory framework.[74] In my view, s 25(a) will not be engaged where information is provided in response to a disciplinary process under the PS Act. Moreover, as was observed by Macaulay J in Burgess v Director of Housing,[75] an interference with the equivalent Victorian provision required in s 13(a) would need to be ‘unlawful independently of the Charter’.
  1. [169]
    In Thompson v Minogue,[76] the Victorian Court of Appeal considered the adjective ‘arbitrary’, observing that the precise scope of the term for the purposes of s 13(a) (the analogous provision to s 25 HR Act) had not been settled. After surveying the authorities, the Court held that ‘arbitrary’ has the human rights meaning described by Warren CJ in WBM v Chief Commissioner of Police.[77] That is, arbitrary interference with privacy is one which is capricious, or has resulted from conduct, which is unpredictable, unjust or unreasonable in the sense of not being proportionate to the legitimate aim sought.[78]
  1. [170]
    I do not consider that the Appellant can make out a claim in respect of s 25 (a) or (b) of the HR Act.
  1. [171]
    Notwithstanding my conclusion above, it needs to be borne in mind that s 13 of the HR Act articulates a proportionality principle by which a human right may be subject under law to 'reasonable limits that can be demonstrably justified in a free and democratic society'.[79]
  1. [172]
    Whether a limit on a human right is reasonable and justifiable may, pursuant to s 13(2), involves balancing 'the importance of the purpose of the limitation' and 'the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right'.[80]
  1. [173]
    The Code of Conduct for the Queensland Public Service contains the ethics principles and their associated set of values prescribed in s 4 of the Public Sector Ethics Act 1994 (Qld). That section relevantly provides:

4 Declaration of ethics principles

(1)  The ethics principles mentioned in subsection (2) are declared

to be fundamental to good public administration.

(2)  The ethics principles are—

• integrity and impartiality

• promoting the public good

• commitment to the system of government

• accountability and transparency

  1. [174]
    In Federal Commissioner of Taxation v Day,[81] the High Court held that the misconduct provisions of the PS Act (albeit in the Commonwealth context) are directed at securing values proper to a public service: those of integrity and the maintenance of public confidence in that integrity. They said:

The public service legislation in Australia has served and serves public and constitutional purposes as well as those of employment, as Finn J observed in McManus v Scott Charlton. Such legislation facilitates government carrying into effect its constitutional obligations to act in the public interest. For reasons of that interest and of government the legislation contains a number of strictures and limitations which go beyond the implied contractual duty that would be owed to an employer by many employees. In securing values proper to a public service, those of integrity and the maintenance of public confidence in that integrity, the legislation provides for the regulation and enforcement of the private conduct of public servants. This extension, to what might be called private conduct, was evident in s 56(d) and (e) of the Public Service Act 1922, which provided that an officer may be taken to have "failed to fulfil his duty as an officer" if he engages in improper conduct as an officer or in improper conduct otherwise than as an officer, in the latter case the conduct "being conduct that affects adversely the performance of his duties or brings the Service into disrepute". It is noteworthy that in McManus Finn J rejected as untenable, as a generalisation, the submission that the only limiting directions that could be given to a public servant were those which have a nexus with the performance of that person's employment duties.

The chief object of the Public Service Act 1922 was "to constitute a public service for the efficient, equitable and proper conduct, in accordance with sound management practices, … of the public administration of the Australian Government". The provisions relating to disciplinary action were referable to the maintenance of those standards of conduct.[82]

  1. [175]
    The High Court has also observed in Commissioner of Taxation v Futuris Corp Ltd that:

Members of the Australian Public Service are enjoined by the Public Service Act (s 13) to act with care and diligence and to behave with honesty and integrity. This is indicative of what throughout the whole period of the public administration of the laws of the Commonwealth has been the ethos of an apolitical public service which is skilled and efficient in serving the national interest.[83]

  1. [176]
    In Bragg v Secretary, Department of Employment Education and Training (Federal),[84] Madgwick J, after considering the objects of the Public Service Act 1922 (Cth) wrote:

With that in mind, one may say, without being exhaustive, that the objects of the disciplinary provisions include protection of the public and of the public interest in an efficient, responsive and incorruptible public service; the maintenance of proper standards of conduct on the part of APS officers, bearing in mind that they are both employees and public employees; and the protection of the reputation of the APS, as well as securing that the mode of administering intra-service discipline itself be efficient, equitable and proper.[85]

  1. [177]
    The authorities to which I have referred clearly identify that the purpose of the disciplinary regime under the PS Act is protective. In other words, the regime under Chapter 6 of the PS Act is intended to protect the public, maintain proper standards of conduct by public service employees and protect the reputation of the public service.
  1. [178]
    The regime under Chapter 6 of the PS Act imposes a reasonable limit on human rights that can be demonstrably justified.

Other Matters

  1. [179]
    The Appellant raises an alleged breach of s 197(5) of the Crime and Corruption Act 2001 (Qld). The basis of the submission is that the Respondent has improperly used or relied upon the evidence obtained by the CCC to substantiate the allegations and make disciplinary findings against the Appellant.
  1. [180]
    A transcript of the evidence obtained from the CCC was made available to the Director-General as part of that investigative process. I accept the submission that the CCC evidence did not form part of the material considered by QWorkplace Solutions during the investigation of the allegations against the Appellant, nor did that evidence form part of the material considered by the Decision-Makers.

Conclusion

  1. [181]
    By s 562B of the IR Act the appeal must be decided by the Commission reviewing the decision appealed against and the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.
  1. [182]
    The appeal is not by way of rehearing but involves a review of the decision arrived at and the associated decision-making process.[86]
  1. [183]
    For the reasons advanced above, I have formed the view that the decision, the subject of the appeal before the Commission, was fair and reasonable.

Order

  1. [184]
    I make the following order:

1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

Footnotes

[1]  TR 1-8, LL 33-41.

[2]  Directions Order dated 17 January 2022 [3]

[3]  Ibid [2].  

[4]  Appellant's submissions filed 4 November 2021 [5].

[5]  Goodall v State of Queensland & Anor [2018] QSC 319 ('Goodall').

[6]  Ibid [25], [35].

[7]  Appellant's submissions filed 4 November 2021, [9].

[8]  Ibid [13].

[9]  Crime and Corruption Commission Queensland, Corruption in focus: A guide to dealing with corrupt conduct in the Queensland public sector, (January 2020), 5.1-5.6.

[10]  Appellant's submissions filed 4 November 2021, [14].

[11]  Ibid [15].

[12]  (2003) 214 CLR 1 ('Lam').

[13]  Ibid 14 [37] (Gleeson CJ).

[14]  [2015] QSC 111 ('Vega Vega').

[15]  Ibid [176].

[16]  Appellant's submissions filed 4 November 2021 Attachment 3 [21].

[17]  Ibid Attachment 4 [22]-[23].

[18]  Ibid [24]-[25].

[19]  See Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76;  BDY 18 v Minister for Immigration and Border Protection (2020) 273 FCR 170; MZAPC v Minister for Immigration and Border Protection and Another (2021) 95 ALJR 441.

[20]  Appellant's submissions filed 4 November 2021 [28].

[21]  Ibid Attachment 5, 1.

[22]  Ibid 2.

[23]  Ibid 3.

[24]  Ibid 4.

[25]  Ibid [32]-[37].

[26]  Ibid [40]-[41].

[27]  Ibid [45].

[28]  Ibid [46].

[29]  Ibid [47].

[30]  Vega Vega (n 14) [120]-[126].

[31]  (1992) 175 CLR 564.

[32]  Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 ('Ainsworth').

[33]  Appellant's submissions filed 4 November 2021, [61]-[62].

[34]  Ibid [65].

[35]  Respondent's submissions filed 29 November 2021, [8].

[36]  Ibid, Attachment D; Attachment E.JH1 in the QWorkplace Solutions investigation. It was provided by Mr Hunt to the investigator.

[37]  Ibid [9].

[38]  Ibid [10]; Attachments E and F.

[39]  Second Show Cause notice, 2-6.

[40]  Ivers v McCubbin & Ors [2004] QSC 342 [31].

[41]  Respondent's submissions filed 29 November 2021 [21].

[42]  Ibid [22].

[43]  Ibid [25].

[44]  Show Cause Notice dated 7 September 2021 37-8.

[45]  Wirth v Mackay Hospital and Health Service & Anor [2016] QSC 39 ('Wirth').

[46]  Ibid.

[47]  Ibid [25].

[48]  Ibid [40].

[49]  (2015) 256 CLR 326 ('WZARH').

[50]  Ibid 337 [35]-[36].

[51]  Ibid 342-3 [57], [61].

[52]  (2003) 214 CLR 1.

[53]  Ibid 13 [34].

[54]  [2008] QSC 209.

[55]  Ibid [18].

[56]  Ibid [7].

[57]  Ibid [17].

[58]  Ibid [26].

[59]  (1989) 16 NSWLR 197.

[60]  Ibid 200.

[61]  [2020] QIRC 032.

[62]  Ibid [64].

[63]  Trustees of the Property of Cummins (a bankrupt) v Cummins (2006) 227 CLR 278, 292 [34].

[64]  (2017) 372 ALR 440 ('Masters').

[65]  [2017] VSCA 88 [101]-[102].

[66]  Appellant's submissions dated 4 November 2021, Comments, [8].

[67]  [2020] QIRC 232 [55] ('Monavvari').

[68]  Waterford v The Commonwealth (1987) 163 CLR 54, 77 (Brennan J).

[69]  Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41.

[70]  (2013) 249 CLR 332.

[71]  Goode v Common Equity Housing [2014] VSC 585 [45].

[72]  Ainsworth (n 31).

[73]  (1992) 175 CLR 564, 580.

[74]  Swancom Pty Ltd v Yarra City Council (2009) 34 VPR 48.

[75]  Burgess v Director of Housing [2014] VSC 648 [219].

[76]  [2021] VSCA 358, [55] ('Thompson').

[77]  (2012) 43 VR 446, 471-2 [114], [117].

[78]  Thompson (n 76) [55].

[79]  Certain Children v Minister for Families and Children & Ors (No 2) (2017) 52 VR 441, 494 [161].

[80]  Human Rights Act 2019 (Qld) s 13(2)(e)-(g). 

[81]  (2008) 236 CLR 163.

[82]  Ibid 180-1 [34]-[35].

[83]  (2008) 237 CLR 146, 164 [55].

[84]   [1996] FCA 1536.

[85]  Ibid.

[86]  King-Koi v Queensland (Department of Education) [2020] QIRC 209.

 

Close

Editorial Notes

  • Published Case Name:

    Hunt v State of Queensland (Department of Agriculture and Fisheries)

  • Shortened Case Name:

    Hunt v State of Queensland (Department of Agriculture and Fisheries)

  • MNC:

    [2022] QIRC 162

  • Court:

    QIRC

  • Judge(s):

    O'Connor VP

  • Date:

    19 May 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
4 citations
Jump To
Cite 1 - (1992) 175 CLR 564
Cite 2 - (1992) 175 CLR 564
Cite 3 - (1992) 175 CLR 564
Cite 4 - (1992) 175 CLR 564
BDY 18 v Minister for Immigration and Border Protection (2020) 273 FCR 170
2 citations
Jump To
Cite 1 - (2020) 273 FCR 170
Cite 2 - (2020) 273 FCR 170
Bragg v Secretary, Department of Employment Education and Training (Federal) [1996] FCA 1536
2 citations
Jump To
Cite 1 - [1996] FCA 1536
Cite 2 - [1996] FCA 1536
Burgess v Director of Housing [2014] VSC 648
2 citations
Jump To
Cite 1 - [2014] VSC 648
Cite 2 - [2014] VSC 648
Certain Children v Minister for Families and Children (No 2) (2017) 52 VR 441
1 citation
Jump To
Cite 1 - (2017) 52 VR 441
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76
2 citations
Jump To
Cite 1 - (2019) 268 CLR 76
Cite 2 - (2019) 268 CLR 76
Coleman v State of Queensland (Department of Education) [2020] QIRC 32
3 citations
Jump To
Cite 1 - [2020] QIRC 32
Cite 2 - [2020] QIRC 32
Cite 3 - [2020] QIRC 32
Commissioner of Taxation v Day (2008) 236 CLR 163
3 citations
Jump To
Cite 1 - (2008) 236 CLR 163
Cite 2 - (2008) 236 CLR 163
Cite 3 - (2008) 236 CLR 163
Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146
2 citations
Jump To
Cite 1 - (2008) 237 CLR 146
Cite 2 - (2008) 237 CLR 146
Goodall v State of Queensland [2018] QSC 319
3 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Cite 3 - [2018] QSC 319
Goode v Common Equity Housing [2014] VSC 585
2 citations
Jump To
Cite 1 - [2014] VSC 585
Cite 2 - [2014] VSC 585
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
1 citation
Jump To
Cite 1 - (2018) 264 CLR 123
Ivers v McCubbin [2004] QSC 342
2 citations
Jump To
Cite 1 - [2004] QSC 342
Cite 2 - [2004] QSC 342
King-Koi v State of Queensland (Department of Education) [2020] QIRC 209
2 citations
Jump To
Cite 1 - [2020] QIRC 209
Cite 2 - [2020] QIRC 209
Masters Home Improvement Australia Pty Ltd v North East Solutions Pty Ltd [2017] VSCA 88
1 citation
Jump To
Cite 1 - [2017] VSCA 88
Masters Home Improvement Pty Ltd v North East Solutions Pty Ltd (2017) 372 ALR 440
2 citations
Jump To
Cite 1 - (2017) 372 ALR 440
Cite 2 - (2017) 372 ALR 440
Mathieu v Higgins [2008] QSC 209
6 citations
Jump To
Cite 1 - [2008] QSC 209
Cite 2 - [2008] QSC 209
Cite 3 - [2008] QSC 209
Cite 4 - [2008] QSC 209
Cite 5 - [2008] QSC 209
Cite 6 - [2008] QSC 209
Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326
4 citations
Jump To
Cite 1 - (2015) 256 CLR 326
Cite 2 - (2015) 256 CLR 326
Cite 3 - (2015) 256 CLR 326
Cite 4 - (2015) 256 CLR 326
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
2 citations
Jump To
Cite 1 - (1986) 162 CLR 24
Cite 2 - (1986) 162 CLR 24
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
2 citations
Jump To
Cite 1 - (2019) 264 CLR 421
Cite 2 - (2019) 264 CLR 421
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
2 citations
Jump To
Cite 1 - (2013) 249 CLR 332
Cite 2 - (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs, Re; Ex parte Lam (2003) 214 CLR 1
6 citations
Jump To
Cite 1 - (2003) 214 CLR 1
Cite 2 - (2003) 214 CLR 1
Cite 3 - (2003) 214 CLR 1
Cite 4 - (2003) 214 CLR 1
Cite 5 - (2003) 214 CLR 1
Cite 6 - (2003) 214 CLR 1
Monavvari v State of Queensland (Queensland Health, eHealth) [2020] QIRC 232
2 citations
Jump To
Cite 1 - [2020] QIRC 232
Cite 2 - [2020] QIRC 232
MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441
2 citations
Jump To
Cite 1 - (2021) 95 ALJR 441
Cite 2 - (2021) 95 ALJR 441
Pillai v Messiter (No.2) (1989) 16 NSW LR 197
3 citations
Jump To
Cite 1 - (1989) 16 NSW LR 197
Cite 2 - (1989) 16 NSW LR 197
Cite 3 - (1989) 16 NSW LR 197
Swancom Pty Ltd v Yarra City Council (2009) VPR 48
1 citation
Jump To
Cite 1 - (2009) VPR 48
Swancom Pty Ltd v Yarra City Council (2009) 34 VPR 48
1 citation
Jump To
Cite 1 - (2009) 34 VPR 48
Thompson v Minogue [2021] VSCA 358
3 citations
Jump To
Cite 1 - [2021] VSCA 358
Cite 2 - [2021] VSCA 358
Cite 3 - [2021] VSCA 358
Trustee of the Property of Cummins v Cummins (2006) 227 CLR 278
2 citations
Jump To
Cite 1 - (2006) 227 CLR 278
Cite 2 - (2006) 227 CLR 278
Vega Vega v Hoyle [2015] QSC 111
3 citations
Jump To
Cite 1 - [2015] QSC 111
Cite 2 - [2015] QSC 111
Cite 3 - [2015] QSC 111
Waterford v The Commonwealth (1987) 163 CLR 54
1 citation
Jump To
Cite 1 - (1987) 163 CLR 54
Waterford v The Commonwealth (1987) 163 CLR 53
1 citation
Jump To
Cite 1 - (1987) 163 CLR 53
WBM v Chief Commissioner of Police (2012) 43 VR 446
2 citations
Jump To
Cite 1 - (2012) 43 VR 446
Cite 2 - (2012) 43 VR 446
Wirth v Mackay Hospital and Health Service [2016] QSC 39
4 citations
Jump To
Cite 1 - [2016] QSC 39
Cite 2 - [2016] QSC 39
Cite 3 - [2016] QSC 39
Cite 4 - [2016] QSC 39

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Benesovsky v State of Queensland (Department of State Development and Infrastructure) [2024] QIRC 1271 citation
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May v State of Queensland (Queensland Health) [2024] QIRC 1762 citations
Patterson v State of Queensland (Queensland Corrective Services) (No. 2) [2024] QIRC 2872 citations
Rackley v State of Queensland (Queensland Police Service) [2024] QIRC 802 citations
Roche v State of Queensland (Queensland Ambulance Service) (No. 2) [2024] QIRC 2302 citations
1

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