JUDGMENT No. sco Qnna! 2 Lone CATCHWORDS ADMINISTRATIVE LAW - Judicial review - Public Service - Employee convicted of criminal offences - Disciplinary proceedings based on convictions - Direction that employee be dismissed - Appeal to Disciplinary Appeal Committee - Dismissal set aside and direction for counselling substituted - Decision based on finding that Department had adopted lesser standard of conduct than that Committee asked to adopt in relation to employee - Lesser standard said to arise from circumstance that Department employed and continued to employ employee with knowledge of earlier criminal record and employed employee while disciplinary process in train - Whether relevant considerations - Whether onus on Department to show its interests could only be served by dismissal PUBLIC SERVICE - Employee under Public Service Act 1922 (Cth) employed in branch of Public Service comprising persons required for conduct of public administration of the Government of the Australian Capital Territory - Disciplinary action taken against employee - Judicial review of decision of Disciplinary Appeal Committee - Legislative changes prior to hearing of judicial review proceedings resulting in establishment of Australian Capital Territory Government Service - Employment under Public Service Act ceased by operation of statute - Statute providing employee taken to be employed in Australian Capital Territory Government Service - Transitional provisions - Whether transitional provisions sufficient to warrant treating direction for dismissal from employment under Public Service Act as direction for dismissal from employment in Australian Capital Territory Government Service JOHN TURNER v MARIA LINKENBAGH, MARGARET BATESON and HERBERT KRUEGER constituting a Disciplinary Appeal Committee established under the Merit Protection (Australian Government Employees) Act 1984 (Cth) and ANOR No. ACT G 92 of 1993 Neaves J. 17 October 1994 Canberra IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION No. ACT G 92 of 1993 er ee ee ee BETWEEN: JOHN TURNER Applicant AND: MARIA LINKENBAGH, MARGARET BATESON and HERBERT KRUEGER constituting a Disciplinary Appeal Committee established under the Merit Protection (Australian Government Employees) Act 1984 (Cth) First respondents ROBERT BRENDAN HOWDEN Second respondent MINUTE OF ORDER JUDGE MAKING ORDER Neaves J. DATE OF ORDER 17 October 1994 WHERE MADE 3 Canberra THE COURT ORDERS THAT: 1. The application be dismissed. 2. There be no order as to the costs of the application \@ietie: Settlement and entry of orders is dealt with in Order 34 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRI Y ) ) No. ACT G 92 of 1993 GENERAL DIVISION ) BETWEEN: JOHN TURNER Applicant AND: MARIA LINKENBAGH, MARGARET BATESON and HERBERT KRUEGER constituting a Disciplinary Appeal Committee established under the Merit Protection (Australian Government Employees) Act 1984 (Cth) First respondents R' RENDAN HOWDEN Second respondent Neaves J. =][s3] 17 October 1994 REASONS FOR JUDGMENT John Turner ("the applicant"), who holds office as the Secretary of the Department of Urban Services of the Australian Capital Territory, has applied to the Court for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act"). The order is sought in respect of the decision made on 15 July 1993 by the first respondents, Maria Linkenbagh, Margaret Bateson and Herbert Krueger, constituting a Disciplinary Appeal Committee (the Committee") established in accordance with the Merit Protection (Australian Government Employees) Act 1984 (Cth) upon an appeal by Robert Brendan Howden ("the second respondent") against a direction made on 3 May 1993 that he be dismissed from his employment under the Public Service Act 1922 (Cth). The Committee varied the direction that the second respondent be dismissed, substituting a direction that he be counselled. It is common ground that, at the time the direction that the second respondent be dismissed was given, he was an "employee" within the meaning of the definition of that expression in subs.7(1) of the Public Service Act. The expression is there defined to mean a person employed under Division 10 of Part III of that Act. It 1s also common ground that, at the material time, the second respondent fell within the expression "transitional staff" as defined in subs.3(1) of the A.C.T. Self-Government (Consequential Provisions) Act 1988 (Cth), that expression being defined to include "transitional Territory staff", an expression itself defined to include the persons required for the conduct of the public administration of the Government of the Australian Capital Territory. Section 21 of the A.C.T. Self-Government (Consequential Provisions) Act provided that, until an enactment provided that subs.(10) of that section was to cease to have effect - an event which had not occurred at the material time - transitional staff were to be persons appointed or employed under the Public Service Act. Subsection 21(2) provided: "(2) The Head of Administration has all the powers of a Secretary under the Act, so far as they relate to the branch of the Australian Public Service comprising the transitional staff as if that branch were a separate Department." The reference to "the Act" was a reference to the Public Service Act. The reference to the "Head of Administration" was a reference to the person appointed under s.49 of the Australian Capital Territory (Self-Government) Act 1988 (Cth). By subs.21(5) of the A.C.T. Self-Government (Consequential Provisions) Act, the Public Service Act was to apply in relation to the transitional staff appointed or employed under that Act subject to the modifications in Schedule 1 to the A.C.T. Self-Government (Consequential Provisions) Act. It is not necessary for present purposes to refer to _ those modifications. At the time of the events with which this proceeding is concerned, Division 6 of Part III of the Public Service Act made provision in regard to matters of discipline within the Australian Public Service constituted by s.10 of that Act. Subdivision C within that Division provided for disciplinary action against officers of the Service other than Secretaries of Departments. The expression "officer", however, did not include an "employee". Section 63T of the Public Service Act provided that the regulations might make provision for and in relation to the application of the preceding provisions of Division 6 of Part III of that Act to and in relation to certain employees, including provision modifying and adapting the preceding provisions of the Division in relation to such an employee. Regulation 165 of the Public Service Regulations relevantly provided that Part X of those regulations (headed "Discipline in relation to Unattached Officers and Employees") applied to an employee referred to in par.63T(a), (b) or (c) of the Public Service Act. Paragraphs (a), (b) and (c) of s.63T referred to: "(a) an employee who is employed in a Department and has been employed in that Department continuously for a period of not less than 1 year; (b) an employee who is employed in a Department and has been employed in 2 or more Departments for periods that are continuous with one another and with his current period of employment and aggregate not less than 1 year; and (Cc) an employee who has been engaged by a Department to serve for a period of not less than 1 year." The expression "Department" was defined in s.7(1) to include a branch or part of the Australian Public Service in relation to which a person had, under the Public Service Act or another Act, the powers of, or exercisable by, a Secretary as if that branch or part of the Service were a separate Department. "Secretary" was defined to mean a person for the time being holding, or performing the duties of, an office of Secretary, the latter expression including an office the holder of which had, under the Public Service Act or another Act, in relation to a branch or part of the Service, the powers of, or exercisable by, a Secretary. Regulation 166 provided, inter alia, that, for the purposes of s.63T, the provisions of Subdivision C of Part III of the Public Service Act applied, subject to the modifications and adaptations specified in reg.167, to and in relation to an employee to whom Part X of the regulations applied as if, unless the contrary intention appeared, a reference in those provisions - "(a) to employment included a reference to engagement under the Act; (b) to the Service included a reference to the Department in which that employee is employed under the Act; (c) to an officer included a reference to such an employee; (d) .... (e) to an office included a reference to employment or engagement under the Act." Regulation 167 provided that the provisions of the Public Service Act specified in reg.166 were modified and adapted for the purposes of s.63T and reg.166 as set out in the regulation. The regulation provided that s.63 of the Public Service Act was modified by omitting par.(c) of subs.(1) and substituting a new paragraph and by substituting certain words in par.(d) of that subsection. As modified and adapted in accordance with regs 166 and 167, subs.63(1) of the Public Service Act, in relation to an employee to whom Part X of the regulations applied, read: "63. (1) Where: (a) a court has, after 15 September 1980, convicted an employee to whom Part xX of the Public Service Regulations applies of a criminal offence or found, without recording a conviction, that such an employee has committed such an offence; and (b) the relevant Secretary, after giving the employee an opportunity to furnish to him, in writing, any statement that he desires to furnish in relation to the offence, is of the opinion that, having regard to the nature and seriousness of the offence, the circumstances in which it was committed and the nature of the duties of the employee, he is justified in so doing in the interests of the Service or the Department in which the employee is employed under the Act; the relevant Secretary may counsel the employee or may: (c) direct that there be taken, in the case of an employee, action by way of transferring him to other duties for which he is qualified (whether at the same or a different locality) and the salary or salary range applicable to which is the same as or lower than that applicable to the duties of the employee immediately before the Secretary so directs; or (d) direct that the officer be dismissed from his employment." On 26 August 1992, the second respondent was convicted in the Magistrates Court of the Australian Capital Territory of 5 offences against s.6 of the Crimes (Offences against the Government) Act 1989 (ACT). That section relevantly provided that a person who imposed upon the Territory or a Territory authority by any untrue representation made in any manner whatsoever, with a view to obtaining money or any other benefit or advantage was guilty of an offence punishable, on conviction, by imprisonment for a period not exceeding 2 years. Each of the offences of which the second respondent was convicted alleged that he imposed upon the Commissioner for Housing for the Australian Capital Territory, a public authority under the Territory, by means of an untrue representation in an application for a rental rebate with a view to obtaining a benefit. The respective dates of commission of the offences were 10 August 1989, 3 April 1990, 20 August 1990, 9 May 1991 and 26 June 1991. The Court recorded convictions in respect of each of the offences but, without passing sentence, ordered that the second respondent be released in accordance with the provisions of s.556B of the Crimes Act 1900 (NSW) in its application in the Territory and discharged him upon his entering into a recognizance, self in the sum of $3,000.00, to be of good behaviour for a period of 3 years. The Court further ordered that, within 12 months, he pay compensation in the sum of $3,049.20 and perform unpaid work for 208 hours. The sum of $3,049.20 was accepted by the Committee as representing the balance outstanding as at 26 August 1992 of the amount of the benefit received by the second respondent by way of rental rebate by reason of the conduct constituting the offences. The Committee concluded that the amount of that benefit, namely $6,999.20, had been reduced by certain payments made by the second respondent prior to the matter coming before the Magistrates Court. By a notice dated 1 February 1993 addressed to the second respondent, Leonard Edward Withers, described as the delegate of the Head of Administration, stated that he had been informed that the second respondent had been convicted of an offence against s.6 of the Crimes (Offences against the Government) Act, the offence having been committed on or about 10 August 1989, and that he proposed to consider whether he would be justified in taking any disciplinary action against the second respondent under subs.63(1) of the Public Service Act. The second respondent was informed that he was entitled to submit, in writing, any statement that he wished to make in relation to the offence and to his employment in the Australian Public Service. It may be noted, in passing, that the notice set out the options that might be exercised with respect to the second respondent and his employment in terms of subs.63(1) of the Public Service Act rather than in the terms of that subsection as modified by regs 166 and 167 of the Public Service Regulations. By a further notice dated 3 May 1993 addressed to him by Mr Withers, the second respondent was informed that Mr Withers had directed, under subs.63(1) of the Public Service Act, that he be dismissed. The notice referred to the conviction for the offence referred to in the earlier notice, to a statement dated 10 February 1993 made by the second respondent and to the second respondent's oral presentation on 29 April 1993. The notice made no reference to the modifications to subs.63(1) of the Public Service Act effected, in relation to a relevant employee, by regs 166 and 167 of the Public Service Regulations. The second respondent was also informed that he might appeal to a Disciplinary Appeal Committee against the direction on the _ ground, expressed in terms of s.63D of the Public Service Act, that the action directed to be taken in respect of him was unduly severe. Against the direction that he be dismissed, the second respondent appealed. The appeal was heard by the Committee constituted by the first respondents. The material before the Committee was almost wholly documentary, the only oral evidence being that given by the second respondent. Not all of the exhibits that were received into evidence by the Committee are before the Court. It was said during the course of the hearing that some of the exhibits could not be located. One of the documents that was before the Committee gave details of the second respondent. He was described as a "continuing employee", his classification was given as that of General Service Officer Level 4 (part-time 23 hours per fortnight), and the branch in which he was employed was shown as "IDS Residential Services, Housing & Community Services Bureau". The initials "IDS" referred to "Intellectual Disability Services". His employment was shown as_ having commenced on 24 July 1989 "with varying hours of employment". The document also contained the statements: "(T]he 23 hours per fortnight was the average of hours worked over the previous year when continuing employee status was attained. The section is required to employ Mr Howden for at least 23 hours pf." There was also a document before the Committee (Exhibit E) which was described as the second respondent's employment history. That is, however, one of the documents that is not before the Court. In relation to the second respondent's employment and his duties, the Committee, in its reasons for decision, said: "The appellant is a 33 year old man, who at the time disciplinary action was taken against him was a part-— time, continuing employee, working at least 23 hours per fortnight. His duties were performed usually in group housing establishments occupied by clients of the Department who suffer a variety of disabilities, where he assisted the clients with living skills, generally helped them in their daily activities, and assisted in daily chores within the house, including cooking. No issue was taken by the Department with the appellant's submission that he was good at his job and had not been the subject ef prior action of a disciplinary nature. He has been working with the Department since 24 July 1989, and also worked for the Department as a Social Therapy Aide from 10 June 1985 to 9 January 1986." The references to "the appellant" are, of course, references to the second respondent. The references to "the Department" may be taken to be references to the Intellectual Disability Services within the Housing and Community Services Bureau which was then within the Attorney-General's Department of the Australian Capital Territory but which, the Court was informed, has since become part of the Department of Urban Services of the Territory. I shall in these reasons continue to use the expression "the Department" in that sense. The Committee expressed the view that its jurisdiction to hear appeals by employees such as the second respondent was to be found in s.63T of the Public Service Act and in regs 165 and 166 of the Public Service Regulations. No reference was made to reg.167 or to the modifications made by that regulation to subs.63(1) of the Public Service Act in its application to employees falling within the purview of Part X of the regulations. It may also be noted that the Committee made no finding that the second respondent fell within par.(a), (b) or (c) of s.63T of the Public Service Act. The reference to the second respondent as a "continuing employee" may be taken to be a reference to that expression in s.82AC of the Public Service Act which provided that, subject to that section, the Secretary of a Department might engage persons as continuing employees in the Department. It does not necessarily follow, assuming the second respondent to have been engaged pursuant to that provision, that he had been employed continuously, or engaged to serve, for a period of not less than 1 year so as to fall within par.(a), (b) or (c) of s.63T. In this connection, it may be noted that the material before the Committee referred to the second respondent as being, during the relevant period, employed part-time in Intellectual Disability Servaces and part-time in employment outside the Australian Public Service and that the Committee in its reasons for decision referred to the second respondent as "a part time employee". The matter has proceeded on the basis, accepted by both parties, that the second respondent was a person to whom the disciplinary provisions of the Public Service Act, modified and adapted in the respects referred to, applied. After referring to the criminal offences of which the second respondent had been convicted on 26 August 1992, to the circumstances in which those offences were committed, and to what the second respondent had written and said in explanation of his conduct, the Committee, referring to the second respondent as the appellant, said: "3. .... His explanations were unconvincing, and the Committee inclines to the view that his deception of the Housing Trust was deliberate, for the purpose of obtaining a personal benefit. His plea of guilty in the Magistrates Court supports that view. He benefited by an amount in excess of $6,000.00, and had paid back half of that by the time of the Court hearing, and is continuing to repay the balance. The appellant showed remorse for his conduct, but there is some doubt in the minds of members of the Committee as to whether he understands the gravity of his conduct in terms of what it indicates about his personal integrity. 4. The appellant's conduct is of a most serious kind. He deceived the public provider of subsidised accommodation causing substantial financial loss to an organisation which provides benefits to persons at the lower end of the income scale, and which is a part of the ACT Government, of which the employer Department is also a part. There was the potential for his conduct to adversely affect the reputation and integrity of the Department, and his continued employment may enhance that potential. A criminal history disclosing the appellant's convictions would certainly disentitle an applicant for admission to the Public Service from appointment, and there will undoubtedly be many citizens who disagree with the continued employment of the appellant, particularly at a time of high unemployment. These factors would, in the absence of other evidence, have caused this Committee to dismiss the appellant. The Public Service Act, however, requires Committees of this kind to take into account the previous employment history of the appellant 5. Counsel for the Department urged the Committee to the views that standards of integrity within the Public Service should be 'unimpeachable', and that honesty and integrity are vital qualifications, particularly for the duties which the appellant performed, as he was in close contact with intellectually disabled clients, for whom he should be a good role model. All those ideals are of course desirable. The difficulty for the Department in this case is that in relation to the appellant the Department had not adhered to those ideals in the past." The Committee then referred to certain other documentation that was before it. That material included letters, respectively dated 22 and 27 September 1989, addressed to the second respondent by the ACT Community and Health Service. The earlier of those letters read: "This is to advise that I intend to cease your temporary employment as a Social Therapy Aide at Melba Hostel with effect from close of business 29 September 1989. The termination of your employment is because of your having failed to fully disclose details of all criminal charges, convictions or pecuniary penalties and thus I consider you are not a suitable person for employment with this Department. Before I take this action you may wish to discuss this matter with me by telephoning 45 4480." It will be recalled that the second respondent had commenced that period of employment on 24 July 1989 and that he had been previously employed during the period 10 June 1985 to 9 January 1986. The second respondent's criminal record (Exhibit H before the Committee) is another of the documents that is not before the Court. However, the Committee, in its reasons for decision, while noting that no file notes or other records of what occurred in relation to the second respondent's criminal record at the time ware available, said that the record disclosed that between 20 February 1979 and 12 May 1983, the second respondent had several convictions for larceny, one for receiving and one for break, enter and steal and that he had breached a recognizance on two occasions. The letter dated 27 September 1989 read: "I refer to my letter of 22 September 1989 and our discussion of 25 September 1989. I have considered your explanation and have decided to accept it. Accordingly your temporary employment will not be terminated because of your not fully disclosing details of convictions. I note that you have been engaged as a temporary employee for a finite period. Your continued employment beyond 24 October 1989 will depend on the needs of the Department." The only other material before the Committee relevant to his failure to disclose fully details of his convictions was the oral evidence of the second respondent. He referred to the offences as having occurred a considerable time before applying for employment with Intellectual Disability Services and he offered some explanation as to the circumstances in which the offences were committed. He said that, when applying for employment in Intellectual Disability Services, he did not have a record of the convictions and relied on his memory in consequence of which the information given "was not as detailed as the administrator would have liked". It does not appear from the material that was before the Tribunal what details, if any, the second respondent may have given as to the convictions when seeking employment. The Committee's reasons for decision continue: 7. ..-. It is not unreasonable to expect that the Department which holds the view that standards of integrity should be 'unimpeachable' would not _ have employed the appellant in the first instance, and yet this Department did so. It is therefore difficult to accept the Department's submission in this case, that because the present charges breach an absolute standard of integrity, dismissal is the only option. The Department by its own conduct has set a lesser standard, against which the appellant's recent conduct should be measured. 8. The Department's counsel submitted that the 'error' in the initial employment of the appellant could be 'rectified' by this Committee. That is not our function. This Committee must ensure that staff are treated fairly, and that proper procedures are followed. Certainly the appellant sailed close to the wind with his commission of these offences, but the Department's arguments ring a somewhat hollow note when it is seen that the Department was content to employ the appellant initially knowing his poor criminal history, and it was also content to continue his employment whilst the disciplinary process was in train. That period commenced at least as early as December 1992, and possibly prior to that, and continued to 3 May 1993. Any fears the Department held as to the effect of the appellant's criminal activities, on his performance of his duties or the reputation of the Department, were not borne out in fact. 9. In all the circumstances, the Committee is of the view that dismissal of the appellant is not warranted, and might well be an injustice to the appellant. The Department has not demonstrated in this case that its interests can only be served by a direction for dismissal. The appellant must, in our view, be given a further opportunity to continue his employment, and given his special skills and interest in working with the disabled, we have every confidence that he will respond well to the opportunity we give him. He will not be able to expect to be given the benefit of any doubts if he re- offends, whether in the criminal sphere or in the area of misconduct under the Public Service Act. The Committee has reservations about his perception of the culpability of his conduct, and his understanding of the need for absolute integrity, but we hope he will respond in the appropriate manner to the chance we are to give him. 10. The various directions available in proceedings of this kind under Section 63D of the Public Service Act, are limited to counselling, transfer, or dismissal. Transfer is inappropriate as the appellant's qualifications and skills suit him to his present duties, his work performance has been unaffected by his criminal conduct, and he is a part time employee, which would make placement elsewhere very difficult. Dismissal is inappropriate for the reasons we have given. The remaining options are counselling, or no action at all. This Committee considers that counselling will be most appropriate, as it will afford the Department' the opportunity to monitor the appellant's conduct and attitudes for some time and will allow the appellant to gain the benefit of a wider understanding of what is expected of him as a Public Servant. We recommend that the counselling be commenced forthwith, with a suitably qualified counsellor (given the appellant's own education in Psychology) and that it continue in the discretion of the Department." The comment may be made that the Committee's reasons for decision strongly suggest that it approached the matter as if its task was to determine in the first instance which of the alternative courses of action prescribed by s.63(1) of the Public Service Act as modified and adapted in accordance with regs 166 and 167 of the Public Service Regulations should be taken in relation to the second respondent in the light of his conviction for the offences against the Crimes (Offences Against the Government) Act. That, of course, was not the issue before the Committee. Its task was to determine whether the action directed to be taken against the second respondent, namely the direction that he be dismissed, was unduly severe. The Committee regarded the second respondent's conduct the subject of the convictions under the Crimes (Offences against the Government) Act as "of a most serious kind" which would disentitle an applicant to appointment to the Public Service and which would, "in the absence of other evidence, have caused the Committee to dismiss" him. What, then, was it that led the Committee to take the view that the second respondent should not be dismissed but only counselled? The matters on which the Committee relied are to be distilled from the passages from its reasons for decision which are referred to or quoted earlier in this judgment. In essence, the Committee took the view that dismissal was not the appropriate course of action because the Department had not in the past adhered to what the Committee referred to as "those ideals" (see par.5 of its reasons for decision) and because it had, by its own conduct, set a lesser standard than that which it was urging the Committee to adopt in relation to the second respondent. In the Committee's view it was against this lesser standard that the second respondent's conduct was to be measured. The basis upon which the Committee concluded that the Department had adopted what it referred to as the lesser standard was that the Department "was content to employ the [second respondent] initially knowing his poor' criminal history and .... to continue his employment whilst the disciplinary process was in train" (see par.8 of the reasons for decision). The latter period was said to have commenced at least as early as December 1992 and to have continued to 3 May 1993. It is not entirely clear to what period the Committee was referring in its reference to the Department "initially" employing the second respondent. It would seem, however, that the reference must have been to his employment that commenced on 24 July 1989 for the Committee expressly acknowledged that there was no evidence before it to suggest that, at the time of the second respondent's employment that commenced on 10 June 1985, the Department had any knowledge of his criminal record. Equally, however, the material before the Committee did not establish what information' the Department had as to the second respondent's criminal record at the time he was engaged to commence employment on 24 July 1989. The only evidence, as the Committee acknowledged, was the evidence of the second respondent that he had disclosed his criminal record "in general terms". The clear inference from the letter dated 22 September 1989 is that the Department only became aware of the details of his criminal record sometime between 24 July and 22 September 1989. What remains is the Department's conduct in accepting' the second respondent's explanation for failing to disclose fully details of his criminal record and consequently taking no action to terminate his employment at that time. Again, the material before the Committee did not include details of the explanation given by the second respondent or the reasons which prompted the Department to take the course it did. It is to be noted that at the time that decision was taken, more than 6 years had elapsed since the last of the convictions then recorded against the second respondent. In my opinion, the conduct of the Department in employing the second respondent in July 1989 even, if it be the case, with some general knowledge that he had a criminal record, and its conduct later in 1989 in continuing that employment after becoming aware of the details of that record, a record that related to the years 1979 to 1983, provided no basis upon which the Committee could conclude that to dismiss the second respondent because of his conduct that formed the basis of his convictions on 26 August 1992 was unduly severe. It follows that, in my opinion, the Committee in reaching its decision, took into account an irrelevant consideration. I am also of opinion that the Committee took into account an irrelevant consideration when it had regard to the circumstance that the Department had continued to employ the second respondent while the disciplinary process was in train from December 1992 to May 1993. It is by no means clear what action the Committee considered the Department should have taken. The further comment may be made that the Committee was in error in concluding that it was for the Department to demonstrate that its interests could only be served by a direction for dismissal (see par.9 of the reasons' for decision). It was for the Committee to determine, on the whole of the material before it, whether the direction for dismissal was unduly severe. For these reasons and in the absence of any countervailing considerations, it would be appropriate to order that the decision of the Committee be set aside and the Matter be remitted for hearing and determination according to law by a differently constituted Committee. However, in the light of legislative changes which have come into effect since this proceeding was commenced, it may not be appropriate to make such orders. On 1 July 1994, the Public Sector Management Act 1994 (ACT) ("the Public Sector Act"), the Public Sector Management (Consequential and fransitional Provisions) Act 1994 (ACT) ("the Consequential and Transitional Provisions Act") and the Australian Capital Territory Government Service (Consequential Provisions) Act 1994 (Cth) ("the Government Service Act") came into operation. The Public Sector Act, by 8.12, established the Australian Capital Territory Government Service. By subs.5(3) of the Government Service Act, on the transfer day, namely 1 July 1994, a person employed under Division 10 of Part III of the Public Service Act to perform duties in the branch of the Australian Public Service referred to in subs.21(2) of the A.C.T. Self-Government (Consequential Provisions) Act 1988 (Cth) and a person otherwise employed by the Commonwealth to perform duties in that branch ceased, by force of subs.5(3), to be so employed. The Consequential and Transitional Provisions Act relevantly provides, by s.6: "6. (1) This section applies in relation to a person who immediately before the commencement day was a member of the transitional staff. (2) .... (3) wees (4) Subject to subsection (5), a person who was an employee of the Australian Public Service shall, on and after the commencement day, be taken to be an employee employed under the Public Sector Act. (5) A person who was, or was deemed to be, a continuing employee under section 82AC or 82AD of the Public Service Act shall, on and after the commencement day, be taken to be an officer employed under the Public Sector Act." The expression "transitional staff" is defined in subs.4(1) to mean the officers and employees in the branch of the Australian Public Service referred to in subs.21(2) of the A.C.T. Self-Government (Consequential Provisions) Act of the Commonwealth as in force immediately before the day on which the provision in which the expression appears commenced. Sections 9, 10 and 12 of the Consequential and Transitional Provisions Act apply to a person employed under the Public Sector Act by virtue of s.6 of the former Act. Subsections (3) and (4) of s.9 provide: "(3) Subject to subsection (4), a person shall be taken to have been employed as an employee on the same terms and conditions as applied to the person immediately before the commencement day. (4) An employee's period of employment may only be extended or renewed, and the terms and conditions of the employee's employment may only be varied, under the Public Sector Act and the management standards." Subsection (2) of s.10 provides: "(2) All rights and entitlements that accrued to a person immediately before the commencement day in connection with the person's employment as a member of the transitional staff or by a prescribed entity shall, on and after that day, remain in effect in relation to that person." Subsections (2) and (3) of s.12 provide: "(2) Any act or thing relating to a person's employment that was in effect under a superseded law immediately before the commencement day and that would, but for this subsection, cease to have effect on that day shall, on and after that day, continue in effect as if the act or thing had been done under the Public Sector Act. (3) Any matter or thing relating to a person's employment that was pending under aéée superseded law immediately before the commencement day and that would, but for this subsection, lapse on that day shall, on and after that day, be taken to have been commenced under the Public Sector Act and may be completed in accordance with that Act." The expression "superseded law" includes the Public Service Act. Part IX of the Public Sector Act contains provisions concerning disciplinary action against officers and employees of the Australian Capital Territory Government Service. It also provides for appeals by officers and employees against whom disciplinary action has been taken and for those appeals to be heard by a Disciplinary Appeal Committee established in accordance with Subdivision C of Division 2 of Part II of the Merit Protection (Australian Government Employees) Act 1984 (Cth) (see ss.178, 191, 201 and 202). It may be noted, however, that if the second respondent was, prior to 1 July 1994, properly to be regarded as a "continuing employee", he became an "officer" for the purposes of the Public Sector Act (Consequential and Transitional Provisions Act, subs.6(5)). The possibility that the legislative changes that came into operation on 1 July 1994 might have an effect upon the relief which might be appropriate if the decision of the Committee was to be set aside was first raised by the Court during the course of the hearing. Counsel for the applicant subsequently referred the Court to the detailed provisions of those legislative changes and made oral submissions in relation thereto. Counsel for the second respondent made no submissions in relation to the matter. The parties were afforded an opportunity to make submissions or further submissions in writing in relation to the effect of the legislative changes. No written submissions were, however, received. It may be accepted that the direction by the Committee that the second respondent be counselled, being an act or thing relating to the second respondent's employment that was in effect under the Public Service Act immediately before 1 July 1994, continued to have effect in relation to the second respondent by virtue of the provisions of subs 12(2) of the Consequential and Transitional Provisions Act. However, if the decision of the Committee were to be set aside and the matter remitted for hearing and determination according to law by another Committee and if that Committee were to determine that the direction that the second respondent be dismissed from his employment under the Public Service Act was not unduly severe, the direction for dismissal could not be carried into effect. This would follow from the circumstance that the second respondent's employment under the Public Service Act was effectively terminated on 1 July 1994 by the operation of subs.5(3) of the Government Service Act and the further circumstance that there is nothing in the relevant legislative changes that would warrant treating the direction that the second respondent be dismissed from his employment under the Public Service Act as a direction that he be dismissed from his employment under the Public Sector Act. In these circumstances, it would be futile for the Court to make orders in the terms to which the applicant would otherwise be entitled in order to give effect to the conclusions referred to earlier in this judgment. For that reason, and that reason alone, the application is dismissed. It is, I think, an appropriate case in which to make no order as to costs. I certify that this and the preceding 24 pages are a true copy of the Reasons for Judgment herein, of the Honourable Justice Neaves. Associate Dated: 17 October 1994 Counsel for the applicant Solicitor for the applicant Mr P.A. Walker ACT Government Solicitor Counsel for the second respondent Solicitors for the second respondent Mr G.C. Corr Stacy & Nyman Date of hearing 18 August 1994 Date of judgment 17 October 1994