Regan, Edward John v Australian Protective Service, Attorney-General's Department & Ors [1998] FCA 1002

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 749 of 1997

BETWEEN: EDWARD JOHN REGAN

Applicant

AND: AUSTRALIAN PROTECTIVE SERVICE, ATTORNEY GENERAL'S DEPARTMENT

First Respondent

DISCIPLINARY APPEAL COMMITTEE CONSTITUTED BY MR BORIS BUDAK, CONVENOR, MR LARRY GOODALL, MEMBER, MS MIRIAM WILLIAMSON, MEMBER

Second Respondent

JUDGE: LINDGREN J

DATE OF ORDER: 13 AUGUST 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The Australian Protective Service, Attorney General's Department cease to be a party and that the Commonwealth of Australia be added as first respondent in its place. 2. The application be dismissed. 3. The applicant pay the respondents' costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 749 of 1997

BETWEEN: EDWARD JOHN REGAN

Applicant

AND: AUSTRALIAN PROTECTIVE SERVICE, ATTORNEY GENERAL'S DEPARTMENT

First Respondent

DISCIPLINARY APPEAL COMMITTEE CONStiTuted BY MR BORIS BUDAK, CONVENOR, MR LARRY GOODALL, MEMBER, MS MIRIAM WILLIAMSON, MEMBER

Second Respondent

JUDGE: LINDGREN J

DATE: 13 AUGUST 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT (ex tempore)

INTRODUCTION There is before the Court an application for judicial review of a decision of the second respondent ("the Committee") under the Administrative Decisions (Judicial Review) Act 1977 (Com) on the ground provided for in s 5 (1) (a) of the Act, that is, "that a breach of the rules of natural justice occurred in connection with the making of the decision". The Committee filed an appearance submitting to such order as the Court might make save as to costs. GENERAL BACKGROUND At all material times the applicant ("Mr Regan") was an Australian Protective Service Officer Grade 1 ("APSO 1") employed by the first respondent ("APS"). (I questioned the legal status of the APS, and, by consent, ordered that the APS cease to be a party and that the Commonwealth of Australia be added as second respondent in its place, but I will continue to refer to the first respondent as "the APS".) He has been so employed since 1990. On 6 November 1996, Mr Regan escorted an unlawful non-citizen from the Villawood Detention Centre to the surgery of a Dr Derricott at Marrickville for a medical appointment. The individual escaped from custody. As a result, four disciplinary charges were brought against Mr Regan. An inquiry was conducted within the APS by Inquiry Officer Alan K Porter. On 28 May 1997, he found all four charges proved. A penalty was imposed on Mr Regan. The penalty was reduction of salary level from point 5 to point 2 within the APSO 1 salary range for a minimum period of 12 months, with any subsequent advancement from that salary level to higher salary points within that salary range according to the normal process. Mr Regan applied for review of the decision to a disciplinary appeal committee to be established by the Merit Protection Review Agency ("the Agency") under the Merit Protection (Australian Government Employees) Act 1984 (Com) ("the Act"). For that purpose, the Agency established the Committee. It is the review by the Committee with which the present proceeding is concerned. Neither counsel addressed submissions to the detail of the legislation, and the case has been treated on both sides as one to be decided on the natural justice ground advanced by Mr Regan. The Committee conducted a hearing on 16 and 17 July 1997. Mr Regan was represented on the first day by his brother James Regan ("Mr James Regan") who unsuccessfully applied for an adjournment. Mr Regan was present with his brother on the second day. The Committee substituted for the decision of the Inquiry Officer a decision that Mr Regan's salary be reduced from point 5 to point 3 of the APSO 1 salary range for a period of 12 months, and, after that period, be increased to point 4 of that range. Accordingly, Mr Regan succeeded before the Committee, but not to the extent that he would have wished: his salary was still reduced to less than its previous level of point 5. Mr Regan commenced this proceeding on 12 September 1997. There are two bases of the natural justice ground on which he relies. The first is the refusal of the adjournment. The second is reasonable apprehension of bias. The case of reasonable apprehension of bias is itself divided into two evidentiary limbs. The first limb depends upon a conversation which took place between the Convenor of the Committee, Mr Budak, and Mr James Regan. The second limb depends upon certain conduct of a Mr Allen, an officer of the APS who was present at the hearing, and Mr M. Allatt of the Australian Government Solicitor's Office ("the AGS"), who appeared at the hearing for the APS. The grounds to which I have referred require me to consider certain correspondence which preceded the hearing and certain events which occurred at that hearing. There is no transcript of the hearing in evidence. Before dealing with either of these areas of evidence, however, I will refer briefly to what Mr Regan has said in his affidavit sworn 12 March 1998. He states that if an adjournment had been granted, he would have wished to submit to the Committee that the Inquiry Officer, Mr Porter, had overlooked a distinction between persons who are in "administrative detention" and persons who are to be deported. He claims that a person who is in administrative detention, as was the person being escorted by him to the doctor's surgery, has committed no crime and is awaiting determination of an application to be recognised as a refugee. He asserts that in the case of such persons, the emphasis is upon preserving their dignity and personal liberty. By contrast, he contends that in the case of persons who are awaiting deportation, "a more rigid regime of detention is in place". He suggests that Mr Porter treated the case as belonging to the second category rather than the first. No doubt he claims that if Mr Porter had treated the case as belonging to the first category, his approach to penalty would or might have been different, and that if Mr Regan's present submission had been made to the Committee, its own decision would have been more favourable to him. I do not understand, however, why the submission was not put to the Committee on the second day of the hearing when Mr Regan was present. Moreover, Mr Regan and his brother Mr James Regan live at the same address, and I am satisfied, as will appear below, that Mr Regan authorised his brother to represent him on the hearing before the Committee. I am not satisfied the submission is one which Mr James Regan was not equipped to make. These considerations are not, however, decisive of the present case.