Kanak, Dominic (Wy) v The Secretary, Department of Employment, Education and Training [1995] FCA 993

CATCHWORDS ADMINISTRATIVE LAW - Application under s 5 of the Administrative Decisions (Judicial review) Act 1977 (Cth) - review of decision to be counselled under s 61 Public Service Act 1922 (Cth) - whether breach of natural justice - Whether decision founded on irrelevant considerations - whether non-observance of procedures - whether failure to consider relevant considerations - whether bad faith - whether use of certain evidence contrary to law - whether contravention of responsibilities under International Declaration of the Rights of the Child and the International Declaration on Racial Discrimination Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5 Public Service Act 1992 (Cth) ss 61, 62, 63 DOMINIC (WY) KANAK v THE SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION AND TRAINING No NG 220 of 1995 Tamberlin J Sydney 4 December 1995

IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 220 of 1995 GENERAL DIVISION ) BETWEEN: DOMINIC (WY) KANAK Applicant AND: THE SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION AND TRAINING Respondent CORAM: TAMBERLIN J PLACE: SYDNEY DATED: 4 DECEMBER 1995 MINUTE OF ORDERS THE COURT ORDERS THAT: 1. That the application be dismissed. 2. That there be no order for costs. NOTE: Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 220 of 1995 GENERAL DIVISION ) BETWEEN: DOMINIC (WY) KANAK Applicant AND: THE SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION AND TRAINING Respondent CORAM: TAMBERLIN J PLACE: SYDNEY DATED: 4 DECEMBER 1995 REASONS FOR JUDGMENT This is an application under s 5 of the Administrative Decisions (Judicial Review) Act (1977) ("ADJR Act") by Mr Kanak ("the applicant") seeking review of a decision of an authorized officer, Catherine Archbold ("Ms Archbold"), that he be "counselled". The decision was made under s 61 of the Public Service Act (1992) ("the Act"). That provision relevantly reads: "Disciplinary Action 61. (2) Where an officer authorized by the relevant Secretary for the purposes of this subsection, is of the opinion that an officer may have failed to fulfil his duty as an officer, the authorized officer shall, as soon as practicable, decide whether he should be charged and: (a) if he decides that the officer should not be charged - may counsel the officer or cause a supervisor of the officer to counsel the officer; or ..." (Emphasis added). The applicant seeks an order that the decision be set aside and a further order declaring his rights in respect of any matter to which the decision relates. He also seeks an order directing the respondent to refrain from counselling him and such other orders as the Court thinks fit. Since the applicant has now left the Public Service a restraining order is not appropriate. He is no longer subject to counselling. However, the applicant wishes to clear his name of any suggestion that he may have failed to fulfil his duty whilst an officer and it is for this reason that the case is pursued. The decision was made on 30 November 1994. It was reached after an investigation by Ms Archbold. Details are set out in a comprehensive investigation report, entitled "Investigation of Authorized Officer Into Allegations of Misconduct against Mr Dominic Kanak" ("Investigation Report"). The Investigation Report contains a summary in these terms: "SUMMARY OF DECISION 5.1 In conclusion, it is my decision that Mr Kanak may have committed misconduct in that he failed to fulfil his duty as an officer within the meaning of s.56(b), (c), and (d) of the Act. I am of the opinion that the evidence available to me establishes that Mr Kanak may have: • been inefficient in the conduct of his duties as an officer of the Department by failing to comply with the requirements of the ABSTUDY guidelines which required him to notify the Department of any change in circumstance relating to his ABSTUDY application; reflecting his inefficient knowledge or understanding of guideline requirements; • been careless in his conduct reflected by his failure to follow through with appropriate behaviour, as defined clearly in the ABSTUDY guidelines and application form, despite his recognition that he had been in dispute with the Department in the past in relation to ABSTUDY application matters; • acted improperly as an officer in that he did not comply with conduct standards that had been established quite clearly relating specifically to the ABSTUDY guideline procedures manual. 5.2 However, it is my decision that charges should not be laid in respect of the above misconduct. It is my view that laying of discipline charges is not the most appropriate manner in bringing about a correction in Mr Kanak's conduct or behaviour. Given that the incidents giving rise to a prime facie case of misconduct occurred over twelve months ago, and that the delay in the investigation of the incidents cannot be attributed in any way to Mr Kanak, I do not believe that it would be reasonable in terms of administrative fairness to lay misconduct charges at such a late stage. In my view it is more appropriate that Mr Kanak be counselled regarding his previous behaviour in respect of his Abstudy application. This counselling should be undertaken by his supervisor who should give him clear instructions on the requirements of Abstudy applicants in terms of maintaining correct information in respect of their applications." (Emphasis added) On 6 March 1995, pursuant to a request dated 10 February 1995 from the applicant, a Statement of Reasons was furnished by Ms Archbold in the following terms: "Dear Mr Kanak, I refer to your request of 10 February 1995 for a Statement of Reasons for my decision to have you counselled. In making this decision, I made the following findings on material questions of fact: • you provided information about your income on your 1993 ABSTUDY application form which subsequently proved to be incorrect but you did not then notify the ABSTUDY office of your changed income circumstances within 7 days of your becoming aware of them, as you were required to do under the terms of the ABSTUDY program; and • although you were an officer of the Department at the time, you did not notify your line management of your 1993 ABSTUDY application, as you were required to do by section B.7 of the ABSTUDY Policy Guidelines Manual. These findings were based on the evidence and other material in: • the documentation relating to possible disciplinary action against you which I obtained from the NSW State Office; • the information you provided to me by telephone and in writing; and • the ABSTUDY Policy Guidelines Manual. The reasons for my decision are as follows. As an officer authorised under section 61 of the Public Service Act 1922 ("the Act"), I may have you counselled or may charge you provided that I am of the opinion that you may have "failed to fulfil your duty as an officer." The meaning of this phrase is defined in section 56 of the Act. In my opinion, it is reasonable to expect that an officer who has worked in the ABSTUDY area will be particularly careful to comply with the terms of the ABSTUDY program when receiving assistance under that program. This is especially so in such a serious matter as notifying the ABSTUDY office of other incomes which would affect eligibility or the rate of assistance payable. I believe that there is a general community expectation that officers of this Department would observe stringent standards in this regard. In my opinion, your failure to notify the ABSTUDY office of your income may constitute "improper conduct otherwise than as an officer, being conduct that brings the Service into disrepute". Accordingly, I concluded that you may have failed to fulfil your duty as an officer as defined by paragraph 56(e) of the Act. In failing to notify your line management of your ABSTUDY application, I believe that you failed to comply with Departmental instructions applicable to the performance of your duties, namely the procedures set out in section B.7 of the ABSTUDY Policy Guidelines Manual. This section of the Manual clearly states that "the following procedures must be adhered to". Subregulation 8A(b) of the Public Service Regulations requires you to comply with any such Departmental instructions and, on this basis, I believe that you may have failed to comply with a provision of the Regulations. Accordingly, I concluded that you may have failed to fulfil your duty as an officer as defined by paragraph 56(f) of the Act. Having found that you may have failed to fulfil your duty as an officer, I was of the opinion that the matters at issue had occurred some time ago and that a number of possible mitigating factors could have a bearing on the best course of action to be taken. For these reasons, I decided to have you counselled rather than formally charged under section 61 of the Act. My involvement in this matter is now concluded. Since I made arrangements with your Area Manager for you to be counselled, any further enquiries should be directed to your local management. Yours sincerely, CATHY ARCHBOLD, MANAGER, EMPLOYER STRATEGIES BRANCH 6 March 1995" Ms Archbold was an officer from outside New South Wales and she had no previous contact with the case.