Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Azzi v State of New South Wales [2024] NSWCA 169 Hearing dates: 4 April 2024 Date of orders: 16 July 2024 Decision date: 16 July 2024 Before: Ward P at [1]; Leeming JA at [2]; Kirk JA at [15] Decision: (1) Appeal dismissed. (2) The parties are to notify each other by 5pm on 23 July 2024 of what orders they propose should be made as to costs of the appeal. (3) If the parties do not agree on the appropriate order as to costs of the appeal, they each may file and serve written submissions of up to 3 pages on the issue, along with any evidence relied on, by 5pm on 30 July 2024. (4) The parties may file and serve any reply submissions, of no more than 2 pages, by 5pm on 2 August 2024. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Public sector – Crown and ministerial employees – Termination of a senior executive for alleged misconduct in failing to comply with directions ADMINISTRATIVE LAW – Unreasonableness – Obvious inquiry into critical fact – Fact in question not critical – No obvious inquiry – Claim that directions to employee unlawful for non-compliance with industrial award and for contravention of Anti-Discrimination Act 1977 (NSW) – No unlawfulness established – Delegation of power – Materiality where decision-maker not authorised to make decision – Relevance of materiality to discretionary grant of relief ADMINISTRATIVE LAW – Hearing rule – Notice – Adverse information credible, relevant and significant to decision – Substance of information already put – No requirement for running commentary upon decision-maker's opinion about evidence – Remaking of first decision – Whether notice needed to be given of second decision – Notice was required of second decision Legislation Cited: Anti-Discrimination Act 1977 (NSW), s 25(2) Crimes Act 1900 (NSW), s 43 Government Sector Employment Act 2013 (NSW), ss 12, 26, 27, 58, 69 Work Health and Safety Act 2011 (NSW), s 19 Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009, cll 43.2, 65 Government Sector Employment (General) Rules 2014 (NSW), r 4, Pt 8 Cases Cited: AB v Independent Broad-based Anti-corruption Commission [2024] HCA 10; (2024) 98 ALJR 532 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 Bignell v New South Wales Casino Control Authority [2000] NSWCA 38; (2000) 48 NSWLR 462 Bread Manufacturers of New South Wales v Evans [1981] HCA 69; (1981) 180 CLR 404 Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 at 563 Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 Grant v BHP Coal Pty Ltd [2017] FCAFC 42; (2017) 247 FCR 295 Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374 Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; (2024) 98 ALJR 196 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 O'Reilly v Commissioners of State Bank of Victoria [1983] HCA 47; (1982) 153 CLR 1 Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 264 CLR 1 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23; (2014) 87 NSWLR 41 Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 Texts Cited: Robin Creyke et al, Control of Government Action (6th edn, LexisNexis, 2022) Category: Principal judgment Parties: Maroun (Mark) Azzi (Appellant) State of New South Wales (Respondent) Representation: Counsel: R Francois (Appellant) OR Jones (Respondent) Solicitors: Dentons (Appellant) MinterEllison Lawyers (Respondent) File Number(s): 2023/304549 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Division Citation: [2023] NSWSC 1028 Date of Decision: 29 August 2023 Before: Adamson JA File Number(s): 2022/303883; 2023/66999 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] The appellant, Mr Maroun (Mark) Azzi, was employed as a senior executive by the respondent, the State of New South Wales, working within the State Insurance Regulatory Authority (SIRA) which is part of the Department of Customer Service. His employment was terminated pursuant to s 69(4)(b) of the Government Sector Employment Act 2013 (NSW) (GSE Act) based on a conclusion that he had engaged in misconduct by failing to follow three directions given by his direct manager to instruct his subordinate Ms A to cease working remotely from Germany. A decision to that effect was communicated to him by letter from Mr Adam Dent, the Chief Executive Officer of SIRA (First Decision). After Mr Azzi commenced proceedings to challenge the validity of that decision, by another letter, the Secretary of the Department, Ms Emma Hogan, informed him that to avoid uncertainty she had made a further decision to terminate his employment with immediate effect (Second Decision). Mr Azzi also challenged that decision. The primary judge dismissed the proceedings. Mr Azzi now appeals, alleging invalidity of the Decisions on the following bases: 1. legal unreasonableness for failure to undertake an "obvious inquiry" into a "critical fact", being an issue of credit as to who should be believed in relation to the terms of the three directions to Mr Azzi (grounds 1-4); 2. breach of procedural fairness for non-provision of a policy document said to found the decisions, along with a summary of an email setting out certain admissions Mr Azzi allegedly made (grounds 5-7, other than 6(c)); 3. the three directions were said to be unlawful in breach of cll 43.2 and 65 of the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 and s 25(2) of the Anti-Discrimination Act 1977 (NSW) (grounds 9-10); 4. the First Decision was said to be invalid because it was made by Mr Dent who was not authorised to make it (ground 11), and the Second Decision was invalid for lack of notice that a new decision was to be made (ground 6(c)). The Court dismissed the appeal and held: Grounds 1-4: 1. Per Kirk JA, Ward P and Leeming JA agreeing: The minor premise of Mr Azzi's argument is that he denied that the directions had been made in the terms put to him by the Department. The major premise is that this was a "critical fact" for which further obvious inquiries could have been undertaken. The minor premise is not made out. It is unnecessary to examine the major premise: at [54]. There is no reason it was or should have been apparent to the decision-maker that Mr Azzi had a different version of the directions. There was no "obvious inquiry" to be made: at [64]. Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; (2024) 98 ALJR 196, referred to. Grounds 5-7 (other than 6(c)): 2. Per Kirk JA, Ward P and Leeming JA agreeing: The misconduct alleged and found was a failure by Mr Azzi to follow the three directions given to him by Mr Parker. Mr Azzi was aware of the policy: at [73]. In any event, the reason for giving the directions, purportedly for compliance with a policy, is immaterial: at [74]. In relation to the email, the substance of Mr Parker's account of his directions as recorded in his email had in fact been put to Mr Azzi in the letter setting out the allegations: at [80]. As to a conclusion expressed in a document before the decision-maker, procedural fairness does not require a running commentary upon what the decision-maker thinks: at [81]. Kioa v West [1985] HCA 81; (1985) 159 CLR 550; Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, referred to. Grounds 9-10: 3. Per Kirk JA, Ward P and Leeming JA agreeing: Clause 43.2 of the award does not apply – the Department has no office in Germany; it is not established that Ms A was working from home in the relevant sense; nothing in that clause suggests that a breach would render any decision invalid: at [91]. Any legal right under cl 65 to consultation lay with the union. Nothing suggests that any failure to comply with the clause would render any decision about the working arrangements of a particular employee unlawful or invalid. In any event there is evidence of consultation as required by that clause: at [92]. There is no evidence that Ms A ever made a complaint under the Anti-Discrimination Act. Overall there is no evidence she suffered any material disadvantage. There is no proper foundation to make out a discrimination claim, even if it was open to a third party to seek to make out such a claim: at [95]. Moreover, remedies for contravention are set out in the Act itself and Mr Azzi does not seek those relief. He did not identify a legal basis for saying that if Mr Parker's directions had been discriminatory then the Anti-Discrimination Act would have rendered them invalid: at [96]. Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23; (2014) 87 NSWLR 41; Bignell v New South Wales Casino Control Authority [2000] NSWCA 38; (2000) 48 NSWLR 462, referred to. 4. Per Leeming JA, Ward P agreeing: The only rights of review an employee in the position of Mr Azzi has are jurisdictional error. The issues embedded within the conclusion that a direction is lawful are distinct from the metes and bounds of jurisdictional error. If an employee's employment were terminated on the basis that there had been non-compliance with a lawful direction, and the lawfulness of the direction was in issue, and the Secretary had erred in law on that issue, then it is expected that the decision would be vitiated by jurisdictional error. It is decidedly improbable that a statute would, properly construed, authorise the Secretary to make valid decisions which are erroneous in point of law terminating the employment of senior executive officers: at [14]. Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374; Grant v BHP Coal Pty Ltd (2017) 247 FCR 295; [2017] FCAFC 42; Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58; Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1; Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4, referred to. Grounds 11 and 6(c): 5. Per Kirk JA, Ward P agreeing: The fact that it was Mr Dent who signed the first termination letter, which was expressed in the first person, weighs in favour of Mr Azzi's argument: at [102]. But it is clear from the briefing note that Ms Hogan was being treated as the person who was empowered to make the decision as to whether the proposed action should be taken: at [104]. All that Ms Hogan is prohibited by r 4(1)(c) of the Government Sector Employment (General) Rules 2014 (GSE Rules) from delegating is "the termination of the employment of a Public Service senior executive under section 41, 68 or 69 of the Act" (emphasis added). The decision to terminate Mr Azzi's employment was made by Ms Hogan, even if she left it to Mr Dent to decide between the two actions under s 69(4) of the GSE Act of terminating with or without an opportunity to resign first. In these circumstances the restriction in r 4(1)(c) was not infringed: at [112]-[113]. Bread Manufacturers of New South Wales v Evans [1981] HCA 69; (1981) 180 CLR 404, referred to. 6. Per Kirk JA: If the alleged error had been established then jurisdictional error would have been made out, regardless of whether or not there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. But that does not necessarily mean that materiality has no relevance, nor that relief should issue: at [119]. In practice either choice under s 69(4) would have made no difference because Mr Azzi did not in fact exercise the opportunity to resign. Any error was not material. That conclusion would have sufficed to refuse relief as an exercise of the Court's discretion: at [121]. LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421, referred to. 7. Per Leeming JA, Ward P agreeing: The inevitable result of Ms Hogan's decision was that Mr Azzi's employment would be brought to an end. True it is that she left it open to Mr Dent to determine whether Mr Azzi would have an opportunity, if he so chose, himself to bring the employment relationship to an end by resigning. Ms Hogan was entitled to take that course. The only limit to her power of delegation was that she could not delegate the power to terminate. But that limit was not contravened: at [7]. In circumstances where there is a general power to delegate subject to limits, conferred upon a Secretary of a Department, there is no reason to read the limiting rule expansively, and every reason to read it purposively and in accordance with its ordinary meaning: at [9]. 8. Per Kirk JA, Ward P and Leeming JA agreeing: The Second Decision involved the taking of an action which, pursuant to r 40(2) of the GSE Rules, must not be done unless the relevant employee is notified of the proposed action and given a reasonable opportunity to make submissions in response. What occurred did not meet the requirements of the statutory scheme: at [124]. Given the significant passage of time since the First Decision and what had occurred since, the failure to provide Mr Azzi that opportunity was material: at [126]. A decision-maker must comply with procedural requirements regardless of what the person affected may guess as to the possibility of a new decision being made: at [127]. The Second Decision was invalid. However, given the conclusion that the First Decision was valid, there is no utility in granting relief as regards the Second Decision: at [131]. Judgment 1. WARD P: I agree with Kirk JA as to the disposition of the appeal for the reasons that his Honour gives. I do not express a view as to whether, if error had been made out as contended for by Ground 11, relief would be refused as a matter of discretion as it is not necessary here to do so. I also agree with the supplementary observations of Leeming JA. The orders should be as Kirk JA has proposed. 2. LEEMING JA: I agree with the orders proposed by Kirk JA and, subject to what follows, with his Honour's reasons. What follows presupposes familiarity with those reasons. I wish to express my own reasons concerning ground 11, which maintained that Mr Adam Dent (the Chief Executive Officer of the State Insurance Regulatory Authority) and not Ms Emma Hogan (the Secretary of the Department) made the decision to terminate Mr Azzi's employment without authority to do so, and which raises a point of general principle. I also wish to make one point on jurisdictional error. 3. As Kirk JA explains, the "First Termination Letter" signed by Mr Dent included the statement "I have made the decision to terminate your employment with the opportunity to resign", adding that "This decision has been approved by Ms Emma Hogan, Secretary". But the question of power raised by this ground turns on what occurred, rather than how it was characterised by Mr Dent. There was no dispute as to what occurred. Mr Dent approved a briefing note which recommended the termination of Mr Azzi's appointment without giving him the opportunity to resign. Ms Hogan approved that recommendation, but added "I'm approving this BN, but have asked Adam Dent (by phone) to consider whether offering Mr Azzi an opportunity to resign is a reasonable option, and will leave it with him as the CEO of SIRA to make this decision". Contrary to his earlier recommendation, and in accordance with the discretion left to him by Ms Hogan, Mr Dent then advised Mr Azzi that his employment was terminated but with an opportunity to resign. In the event, Mr Azzi did not resign, but contested the lawfulness of his termination. 4. The power to terminate the employment of a senior executive was one of the "employer functions of the Government" defined in s 26(3) of the Government Sector Employment Act 2013 (NSW) and by s 26(1) the Secretary was authorised to exercise that function. Section 27(1)(a) conferred a full power of delegation of "any of the functions of the Secretary under this Act (other than this power of delegation)". However, s 27(4) provided that "The government sector employment rules may limit a power of delegation or sub-delegation under this section". The "government sector employment rules" were defined to be rules made by the Commissioner under s 12, and the rule upon which Mr Azzi relied was r 4(1)(c) of the Government Sector Employment (General) Rules 2014 (NSW) which provided that a function which could not be delegated under s 27 of the Act was "the termination of the employment of a Public Service senior executive under section 41, 68 or 69 of the Act". 5. Such force as Mr Azzi's submission on this ground has is based on the structure of s 69(4) of the Government Sector Employment Act which relevantly authorised two actions after a finding of misconduct: (a) terminate the employment of the employee (without giving the employee an opportunity to resign), (b) terminate the employment of the employee (after giving the employee an opportunity to resign), as well as five other actions in paragraphs (c)-(g) which did not involve terminating the employment (namely, imposing a fine, reducing remuneration, cautioning or reprimanding and so on). 1. In light of the limitation in the regulations on delegating "the termination of the employment" of a senior executive, it is necessary to focus upon the first two paragraphs of s 69(4). Their language is a little imprecise. The power to "terminate the employment" after giving the employee an opportunity to resign means that the employment relation will come to an end, either because it is terminated by the employer, or else because the employee takes advantage of the opportunity to resign and by his or her own act brings about the end of the relationship. In both cases, the employment relation is brought to an end following a unilateral exercise of power by the Secretary. The difference from an exercise of the power to "terminate the employment" without giving an opportunity to resign is that, in the latter case, the Secretary's unilateral act will then and there bring the employment relationship to an end, as opposed to leaving open the possibility that, by a separate unilateral exercise of power, the employee will resign thereby bringing the employment relation to an end by the employee's own act. However, the employee's resignation in such a case occurs in a context where in the absence of that act, the employment will come to an end in any event shortly thereafter. 2. Contrary to Mr Azzi's submissions, I do not consider that the termination of his employment made on 12 July 2022 was unauthorised. It is clear that Ms Hogan had the power to terminate his employment. It is clear that she, personally, accepted Mr Dent's recommendation that his employment be terminated. It is also clear that she left it to Mr Dent to determine whether (as he had originally recommended) the termination be without an opportunity to resign or with an opportunity to resign. I do not see that her doing so contradicted anything in the regime. The inevitable result of Ms Hogan's decision was that Mr Azzi's employment would be brought to an end. True it is that she left it open to Mr Dent to determine whether Mr Azzi would have an opportunity, if he so chose, himself to bring the employment relationship to an end by resigning. I think Ms Hogan was entitled to take that course. She had a complete power of delegation, subject to such limits as were in the government sector employment rules. The only limit was that Ms Hogan could not delegate the power to terminate. But that limit was not contravened. 3. One way of seeing this is to note that irrespective of what was subsequently done by Mr Dent, Mr Azzi's employment was brought to an end by Ms Hogan's decision. All that was left open by Ms Hogan was to permit Mr Dent to determine whether to permit Mr Azzi by his own unilateral act to bring the employment relation to an end sooner by resigning. But whatever Mr Dent did, and whatever Mr Azzi did, his employment would come to an end, inevitably, as a result of Ms Hogan's decision. That is why I do not consider that there was any contravention of the limit on the power to termination. 4. Another way of making the point is to note that if the effect of the limitation imposed by r 4(1)(c) was that the Secretary and only the Secretary could exercise all aspects of the powers conferred by s 69(4)(a) and (b), this ground would be made out. But that is not what r 4(1)(c) says. Instead, the rule says that the termination of the employment under, relevantly, s 69, cannot be delegated. In circumstances where there is a general power to delegate subject to limits, conferred upon a Secretary of a Department, there is no reason to read the limiting rule expansively, and every reason to read it purposively and in accordance with its ordinary meaning. Read in that way, only the Secretary of the Department, acting personally, is authorised to bring the employment relation of a senior executive to an end, but without thereby preventing one aspect – namely, whether the employee was to have an opportunity by his or her own unilateral act to bring the employment relation to an end a few days sooner – from being delegated by the Secretary. 5. For those reasons, I do not consider that ground 11 is made out. 6. It was common ground that the effect of s 58(7) of the Government Sector Employment Act was to disentitle Mr Azzi's rights of review save for jurisdictional error. The parties exchanged submissions both at first instance and in this Court on the relationship between patent errors of law on the face of a decision and jurisdictional error. Before the primary judge, the State contended that "a mere error of law does not necessarily constitute jurisdictional error. A decision-maker may make an error of law within jurisdiction. Whether an error of law is jurisdictional depends upon a proper construction of the statute conferring jurisdiction." That submission was accepted by the primary judge at [49]. It was sought to be defended in this Court, including by relying upon what had been said in Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374 at [94] as to the scope of jurisdictional error on the part of the Fair Work Commission. An appeal was dismissed from that decision, but in doing so a Full Court of the Federal Court observed that one aspect of the reasoning of the primary judge was "unpersuasive": Grant v BHP Coal Pty Ltd (2017) 247 FCR 295; [2017] FCAFC 42 at [99]. It is not entirely clear, but it may be that the Full Court was referring to the immediately preceding analysis by the primary judge of whether there was error of law, rather than her Honour's statements concerning the scope of the decision maker to make errors of law within jurisdiction. 7. But it is as well to recall the starting point, as identified in Craig v South Australia (1995) 184 CLR 163 at 179; [1995] HCA 58 and repeated in Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 at [68], which is that in the ordinary course, bodies which are not courts lack authority either authoritatively to determine questions of law or to make an order or decision otherwise than in accordance with the law. The position is quite different in the case of an inferior court, which in the ordinary course will be found to be authorised to make decisions including decisions which disclose legal error. 8. There are exceptions to that general rule. Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 is an example. There a body which was not a court was necessarily required by statute to determine questions of contractual construction which commonly will be questions of law. However, the statute contemplated that the decision-maker would not normally be a lawyer, and that his or her decisions needed to be made in an expedited timeframe, and importantly were without prejudice to the contracting parties rights to have questions of construction and breach determined by a court. In those somewhat special circumstances, this Court and the High Court held that error of law was not jurisdictional. 9. The present case falls well within the general rule rather than being an exceptional case like Probuild. The only rights of review an employee in the position of Mr Azzi has are jurisdictional error. And the decision which is challenged is one which terminates his employment with immediate effect and without compensation. In Mr Azzi's case, and possibly in many such cases, a central issue for the Secretary of the Department may be whether a direction is "lawful". As Kirk JA notes, there can be complex and subtle issues embedded within the conclusion that a direction is lawful. But for present purposes I wish only to observe that they are distinct from the metes and bounds of jurisdictional error. As presently advised, if an employee's employment were terminated on the basis that there had been non-compliance with a lawful direction, and the lawfulness of the direction was in issue, and the Secretary had erred in law on that issue, then I would expect that the decision would be vitiated by jurisdictional error. I respectfully agree with the primary judge that the question is one of statutory construction, but I would also add that it is decidedly improbable that a statute would, properly construed, authorise the Secretary to make valid decisions which are erroneous in point of law terminating the employment of senior executive officers. The statements in Grant v BHP Coal Pty Ltd (No 2) at [99] and by the primary judge that mere error of law by a body which is not a court are not necessarily jurisdictional are in my respectful opinion to be read in light of the principles summarised above. 10. KIRK JA: The appellant, Mr Maroun (Mark) Azzi, was employed as a senior executive by the respondent, the State of New South Wales. His position was "Director, Performance and Compliance Reviews" in the State Insurance Regulatory Authority (SIRA), which was part of the Department of Customer Service. His employment as such was terminated pursuant to s 69(4)(b) of the Government Sector Employment Act 2013 (NSW) (GSE Act), with effect from 21 July 2022. The termination was based on a conclusion that he had failed to follow three directions given by his direct manager, Mr Darren Parker. 11. A decision to that effect was communicated to him by letter dated 12 July 2022 from Mr Adam Dent, the Chief Executive Officer of SIRA (First Decision). The letter gave him the opportunity to resign prior to termination, but he did not avail himself of that opportunity. In October 2022 Mr Azzi commenced proceedings in the Supreme Court to challenge the validity of that decision, including on a ground that Mr Dent was not authorised to make that decision. Subsequently, by letter dated 30 November 2022, the Secretary of the Department, Ms Emma Hogan, informed him that whilst she did not accept that the earlier termination was invalid, to avoid uncertainty she had made a further decision to terminate his employment with immediate effect, this time without an opportunity to resign (Second Decision). This decision was made without any prior notice to Mr Azzi. Mr Azzi then filed a second Supreme Court proceedings challenging that decision. In both proceedings Mr Azzi asserted that the decisions were invalid for jurisdictional error. 12. The two proceedings were heard together by the primary judge, Adamson JA. The proceedings were dismissed with costs: Azzi v State of New South Wales [2023] NSWSC 1028. 13. Mr Azzi now appeals. His notice of appeal contains 13 grounds. One of those – ground 8 – complained that her Honour erred by considering a variant procedural fairness argument that had not actually been put. This ground was withdrawn when members of this Court queried what possible utility such a ground had. 14. Two other grounds – grounds 12 and 13 – challenged a decision of the primary judge to refuse a second application made by Mr Azzi for documents sought by a notice to produce, where such an application had previously been rejected by Elkaim AJ: Azzi v State of New South Wales [2023] NSWSC 659. These grounds of appeal also made little sense, given that if they had been upheld it would have been necessary to remit the matter where remitter had not been sought in the notice of appeal. Counsel for Mr Azzi suggested that it might be possible to stand the matter over for further hearing in this Court after production on the notice, perhaps to hear an application to adduce further evidence. That course had not been foreshadowed in the notice of appeal, either, and in any case seems impractical. 15. The reason for pursuing the notice to produce in the first place was difficult to understand in any event. It was said to be in order to answer a possible argument by the respondent – said to be made in response to a claim that certain obvious inquiries should have been undertaken by the Department – that the issue was not material because no relevant documents would have been found as a result of such inquiries. It is difficult to see how the respondent could plausibly have made such an argument in circumstances where it had successfully opposed having to search for and produce any such documents. These two appeal grounds were thus boxing at shadows. In any event, counsel for the appellant accepted that they fell away after counsel for the respondent withdrew a sentence of his written submissions which, on one reading, might have suggested that such a materiality point was being raised on appeal. 16. Thus ten grounds of appeal were pressed. These raise the following issues: 1. Both Decisions were said to be legally unreasonable because the Department failed to undertake an "obvious inquiry" into a "critical fact", being an issue of credit as to whether Mr Azzi or Mr Parker should be believed with respect to their accounts of the terms of the three directions given by Mr Parker (grounds 1-4). 2. The Decisions were said to have been made in breach of the requirements of procedural fairness, where Mr Azzi complained he had not been provided with a cyber security policy said to found the decisions, and further that he had not been provided with a summary of an email from Mr Parker setting out certain admissions that he said Mr Azzi had made (grounds 5-7). 3. The Decisions were said to be invalid because the three directions were unlawful and unreasonable as being contrary to the terms of an industrial award and given in contravention of s 25(2) of the Anti-Discrimination Act 1977 (NSW) (grounds 9-10). 4. The First Decision was said to be invalid because Mr Dent had made the decision where only the Secretary was authorised to make it (ground 11). If that ground was upheld, the Second Decision was then asserted to be invalid because Mr Azzi had been given no notice of it, in breach of the requirements of procedural fairness (ground 6(c)). 1. I will address those issues in turn, after first setting out the context in which they are raised. As will appear, none of the grounds of appeal is made out apart from ground 6(c). That ground challenges the Second Decision, but there is no utility in granting relief only with respect to that Decision. The appeal should thus be dismissed. Background 1. One of the employees of the Department who reported to Mr Azzi was "Ms A" (to use the pseudonymous label employed by the primary judge). In August 2021 she had alleged to Mr Azzi that her husband had been verbally and emotionally abusive toward her and her children. Shortly after that Ms A also told him that her father, who lived in Germany, had suffered a stroke and she was going to apply for a travel exemption to go there. An exemption was necessary because of COVID-19 restrictions. She travelled to Germany with her children in September 2021, taking her work laptop. Mr Azzi approved of Ms A working remotely from there as, he said, did Mr Parker at the time. Mr Azzi notified the Department's "ICT" section that Ms A would be doing this, saying that he did not know how long this would go on but that it was initially agreed that it would be three months. 2. Some time later Ms A became the main departmental employee tasked with reviewing documents to produce in response to an order for papers issued by the Legislative Council on 20 October 2021. The task was substantial. She undertook the work by reviewing documents remotely from Germany. 3. In late 2021 – to quote Mr Azzi's letter of 4 April 2022 (explained below) – the Department "introduced a policy that limited access to DCS systems from international locations, this included SIRA as a division of DCS". Whether or not such a policy existed, and its terms, was a matter of dispute in the proceedings. That there should be such a dispute is odd, given that Mr Azzi himself referred to the policy in this letter, where the letter he was responding to had not referred to such a policy. A PowerPoint document was produced in the litigation by the Department headed "Request for working overseas". The document said that the NSW Government's position was that public servants should work in NSW, but where there were genuine compassionate grounds the Department "will consider short term arrangements for working overseas". It also said that the maximum period for such arrangements was three months. The document is not overtly about cyber security issues, but it does state twice that any request for approval has to include a "cyber security assessment". The document says that workers are covered by workers compensation "for the 3 months working while overseas". The version of the document in evidence was attached to an email dated November 2021, and appeared still to be in draft. 4. There is no dispute that Mr Parker directed Mr Azzi on three occasions to take steps to stop Ms A from working remotely in Germany. The directions were given orally on 17 January 2022, 3 February 2022 and 4 March 2022. There is a dispute in the proceedings as to the terms of the directions, especially as to whether Mr Parker directed Mr Azzi to take such steps immediately. The nature of that dispute is discussed below when addressing grounds 1-4. 5. On Wednesday 9 March 2022 Mr Parker sent an email to Mr Azzi which relevantly said: This morning you told me that [Ms A] continues to work for SIRA while in Germany. I re-iterated my previous repeated requirement that this stops and asked you to today send [Ms A] an email explaining she is not permitted to work overseas. Can you please send me a copy of any email you have sent? Also, do you know what leave arrangements are in place for [Ms A]? 1. The next day, 10 March 2022, Mr Azzi responded with a draft email which he proposed to send to Ms A. Mr Parker in turn offered his own draft. The draft was prefaced with, relevantly, the following remarks addressed to Mr Azzi: I told you on 17/1, 3/2 and again 4/3 that [Ms A] is not to do any work for SIRA while overseas in Germany. As late as yesterday, you advised [Ms A] is still doing work for us while in Germany. This must stop immediately due to cyber security risks and a lack of approval. We also need to sort out her leave and payment arrangements. There is no recent leave logged in the system and therefore I suspect [Ms A] may have been paid as if she was working for many months. We also need to ensure the laptop is secure. 1. Later on the same day Mr Azzi emailed Ms A in the terms proposed by Mr Parker, then let Mr Parker know that he had sent the email. He did not address Mr Parker's remarks about the three directions. He did not deny that they had been given. 2. The Department then began a disciplinary process against Mr Azzi. Pursuant to s 69(2) of the GSE Act, the person "who exercises employer functions in relation to an employee of a government sector agency is responsible for dealing with any misconduct by that employee in accordance with this section". As explained below when addressing ground 11, that person was the Secretary of the Department, Ms Hogan. Section 69(4) of the GSE Act sets out a range of relevant actions that the person "may" take where a finding of misconduct is made against an employee "in accordance with" the relevant rules, as follows: (a) terminate the employment of the employee (without giving the employee an opportunity to resign), (b) terminate the employment of the employee (after giving the employee an opportunity to resign), (c) impose a fine on the employee (which may be deducted from the remuneration payable to the employee), (d) reduce the remuneration payable to the employee, (e) reduce the classification or grade of the employee, (f) assign the employee to a different role, (g) caution or reprimand the employee. 1. The relevant procedural requirements are set out in Pt 8 of the Government Sector Employment (General) Rules 2014 (NSW) (GSE Rules). Rule 38 is about the initial stage of handling such allegations. The person exercising employment functions – labelled "the employer" – is required to make an initial assessment as to whether to proceed with a matter. If such a decision is made, the employee is to be advised "of the details of the allegation of misconduct", and "of the action that may be taken under section 69(4) of the Act against the employee" (r 38(3)). The employee then "is to be given a reasonable opportunity to make a statement in relation to the allegation" (r 38(4)). The employer may, as a result of any such statement, decide whether to proceed with the matter or not (r 38(5)). 2. Rule 39 empowers the employer to conduct such inquiries as thought appropriate for the purpose of determining whether misconduct has occurred. However, the rule also prohibits the holding of a "formal hearing" involving legal representation and the examination and cross-examination of witnesses. 3. Rule 40 provides for the making of findings. It relevantly provides: 40 Findings by employer (1) The employer may, in dealing with an allegation of misconduct— (a) make a finding of misconduct by the relevant employee (in which case the employee is to be notified of the finding in writing) … (2) The employer may not take any action under section 69(4) of the Act in relation to an employee unless— (a) the employee is notified of the proposed action to be taken, and (b) the employee is given a reasonable opportunity to make submissions in relation to the proposed action, and (c) if any such submissions are made, the employer has taken those submissions into consideration. 1. The GSE Rules thus provide for a multi-stage process: 1. an initial assessment stage, where the employer decides whether to proceed with addressing an allegation of misconduct pursuant to the prescribed process; 2. if a decision has been taken to proceed, an investigation and findings stage involving notification to the employee, giving them a reasonable opportunity to make a statement (after receipt of which the employer may decide to take the matter no further), combined with such other inquiries as the employer considers appropriate, leading then to the making of findings as to whether there has been misconduct; 3. if misconduct is found, a penalty stage where the employee is to be notified of any proposed action to be taken under s 69(4) of the GSE Act and given a reasonable opportunity to respond prior to the making of a decision on the appropriate act. 1. The appellant submitted that these procedural requirements should be read consistently with the general legal requirements of procedural fairness which presumptively apply as a matter of statutory construction in the absence of clear statutory intent to the contrary. That submission was not disputed and should be accepted: note eg Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at [26]-[37]; Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636 at [97]; AB v Independent Broad-based Anti-corruption Commission [2024] HCA 10; (2024) 98 ALJR 532 at [26]. That conclusion follows naturally from both rr 38(4) and 40(2) referring to the employee being given a "reasonable opportunity" to respond. Those words can readily be seen to import notions of procedural fairness as developed at common law. 2. On 29 March 2022 Mr Azzi received a letter dated 25 March 2022, notifying him that misconduct proceedings had been commenced against him pursuant to r 38(3) of the GSE Rules in respect of three particularised allegations (the Allegations Letter). Mr Azzi was provided with an opportunity to make a statement in response to the allegations before a final decision was made. The allegations are set out below at [55]. In short the misconduct alleged was that Mr Azzi had failed to follow lawful and reasonable directions given by Mr Parker on three occasions: 1. an instruction on 17 January 2022 that Ms A was not to do any work for SIRA, with immediate effect, unless approval was given by the ICT (ie information technology) and "People and Culture" (ie HR) sections; 2. a direction on 3 February 2022 that Mr Azzi was immediately to stop Ms A doing any work for SIRA whilst residing in Germany; 3. a direction on 4 March 2022 that Mr Azzi needed to stop Ms A doing any work for SIRA. 1. The letter went on to state that the conduct described in those allegations may constitute a breach of s 7 of the GSE Act as well as the Department of Customer Service Code of Ethics and Conduct. Most pertinently, the latter stated that one of the "professional responsibilities" of employees was to "obey any lawful direction or instruction given to you". 2. Mr Azzi provided his response to the allegations in a letter dated 4 April 2022 (the Misconduct Response Letter). As explained below when addressing grounds 1-4, Mr Azzi did not expressly deny the allegations as made. He indicated that he had told Ms A to limit her remote access to platforms other than those of SIRA and the Department (the documentary review she was undertaking involved another platform). He noted that the work being performed in response to the Legislative Council order was being conducted solely by Ms A. He had contacted a Director in the ICT section about the remote access issue, who had told him that secure overseas access was only available in "5 Eyes" countries (which did not include Germany) and that he should contact the HR section. He emphasised that he considered he owed a legal duty of care to both Ms A and her children to take account of the threat of domestic violence against them if they returned to Australia. Those duties were said to stem from, amongst other things, s 19 of the Work Health and Safety Act 2011 (NSW) and s 43 of the Crimes Act 1900 (NSW). The latter prohibits exposing a child under 7 years to danger of serious injury or death without reasonable excuse. He had been "mindful of Mr Parker's instructions" but had sought to be "sensitive to her circumstances". He asserted that he had been transparent in providing updates to Mr Parker. 3. A briefing note summarising the misconduct allegations against Mr Azzi and his response was provided to the Secretary, Ms Hogan. The briefing note recommended that a finding of misconduct be made against Mr Azzi, that a proposed action to terminate his employment under s 69(4)(a) of the GSE Act be approved, and that Mr Azzi be sent the "Misconduct Findings Letter" – a draft of which was attached – setting out the findings and the proposed action, and seeking his response. On 31 May 2022 Ms Hogan accepted each of those recommendations by signing the briefing note. 4. On 6 June 2022 the Misconduct Findings Letter was sent to Mr Azzi. The letter was expressed in the first person narrative and signed only by Mr Dent as Chief Executive of SIRA. The letter addressed Mr Azzi's response before concluding that the relevant misconduct was nevertheless substantiated. The letter stated: While I appreciate you have stated [Ms A] was working on a significant piece of work for SIRA and that immediately ceasing her work for SIRA from Germany may have resulted in SIRA failing to meet the requirements of the [Legislative Council production order], this does not form a satisfactory reason for failing to follow a lawful instruction. Similarly, in light of [Ms A's] personal circumstances, while supporting [Ms A] is most certainly required and encouraged, where reasonable, it is an insufficient basis for overruling or disregarding the instruction of your manager, Mr Parker. 1. The letter concluded: As a result of the above misconduct, I am proposing disciplinary action against you pursuant to section 69(4) of the GSE Act. Specifically, I am proposing to terminate your employment (without giving you an opportunity to resign) pursuant to section 69(4)(a) of the GSE Act (Proposed Action). The Proposed Action has been approved by Ms Emma Hogan, Secretary. 1. In accordance with r 40(2) of the GSE Rules Mr Azzi was given an opportunity to make a submission in relation to the proposed action before a final decision on the proposed action was made. 2. On 17 June 2022 a responsive letter was sent by solicitors retained by Mr Azzi (the Kennedys Letter). It asserted that the directions were "neither lawful nor reasonable" in circumstances where the Department had already approved Ms A's relocation to Germany and knew that she had been at imminent threat of domestic violence. It asserted that Mr Azzi was not told that the directions were to take immediate effect. It said that the directions were complied with as Mr Azzi had taken steps in response, including "to exit/wind down [Ms A] from work". 3. A second briefing note was prepared for Ms Hogan, attaching materials related to the misconduct proceedings including the Kennedys Letter. This briefing note recommended that Ms Hogan do the following: 1 Note the information contained within this briefing note and attached supporting material. 2 Approve the misconduct action, the termination of Mr Azzi's employment (without giving Mr Azzi the opportunity to resign) pursuant to Section 69(4)(a) of the [GSE Act]. 3 Approve the attached letter to be signed by the Chief Executive, State Insurance Regulatory Authority (SIRA) advising Mr Azzi of the action (Tab A). 1. Ms Hogan accepted all those recommendations on 12 July 2022 by signing underneath them, with one important qualification, stated in the following remarks beneath her signature: Thanks. I think this case is a challenging one, in that Mr Azzi may have been well intentioned in his support of his employee's personal circumstance. I'm approving this BN, but have asked Adam Dent (by phone) to consider whether offering Mr Azzi an opportunity to resign is a reasonable option, and will leave it with him as the CEO of SIRA to make this decision. … 1. On the same day a letter headed "Misconduct Proceedings: Final Decision" was sent to Mr Azzi, communicating the First Decision (the First Termination Letter). The letter was again expressed in the first person and signed by Mr Dent as Chief Executive Officer of SIRA. After setting out the allegations and addressing Mr Azzi's submissions, the letter concluded as follows: I confirm I have carefully considered the available information, including your submissions of 17 June 2022. I have made the decision to terminate your employment with an opportunity to resign, pursuant to section 69(4)(b) of the GSE Act. This decision has been approved by Ms Emma Hogan, Secretary. 1. Thus Mr Dent had opted for the less severe action of termination with an opportunity to resign, as raised by Ms Hogan when signing the briefing note, as opposed to the action of termination without opportunity to resign, as had been recommended in the note. 2. It appears that by (although possibly much earlier than) August 2022 Ms A had returned to Australia where she continued to work for the Department. 3. Mr Azzi commenced proceedings in October 2022 to challenge the validity of his termination, alleging, amongst other things, that the decision was made by Mr Dent (rather than Ms Hogan) without authority. 4. Another briefing note was prepared for Ms Hogan, who approved it on 30 November 2022. Accepting the recommendations in the briefing note, she signed a letter to Mr Azzi dated that day and captioned "Termination of your employment" (the Second Termination Letter). It stated: I have been informed that you now contend that the termination of your employment was invalid. Whilst I do not accept that position, against the possibility that you remain an employee of the Department, and to avoid any continuing uncertainty about your employment, I have considered whether your employment (assuming it remains on foot) should now be terminated. I have carefully considered the available information, including your submissions of 17 June 2022 and the letter to you from Mr Dent dated 12 July 2022. I have also considered the fact you were given the opportunity to resign, and you did not elect to do so. Following that consideration, I have decided to terminate your employment without an opportunity to resign, pursuant to section 69(4) of the GSE Act. I agree with and adopt the reasons for the decision to terminate your employment in the letter of 12 July 2022. To the extent that it remains on foot, your employment with DCS is terminated effective close of business today. 1. No notice had been provided to Mr Azzi that another decision was contemplated. In response Mr Azzi commenced further proceedings in the Supreme Court challenging the validity of the Second Decision. In the course of the proceedings the State was ordered to provide a statement of reasons for this decision. That statement in effect just adopted the findings and reasons expressed in the termination letters sent on 12 July 2022 and 30 November 2022. Grounds 1-4: legal unreasonableness by absence of an obvious inquiry 1. The gravamen of grounds 1-4 in the notice of appeal is that the respondent failed to undertake an obvious inquiry into a critical fact such that both Decisions were invalid for legal unreasonableness. While the criteria for an error of this kind have been described as "including that the potential fact was readily ascertainable and was critical or central to the decision", such criteria "merely reflect the usually high threshold for a conclusion that a power has been unreasonably exercised as a matter of law": Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; (2024) 98 ALJR 196 at [25] (citations omitted). One of the grounds of appeal is that the primary judge erred by addressing this issue as an allegation of a failure to accord procedural fairness, as opposed to an argument of legal unreasonableness in the sense explained. In addressing these grounds it suffices to focus on the argument as it was put on appeal. 2. Mr Azzi's core argument in this Court was as follows: This case meets that unusually high threshold. The "critical fact" in this case was the question of credit: was Mr Parker to be believed or Mr Azzi? If Mr Azzi was believed, there was no misconduct as he complied with the directions. … On any view, the issue of credit, and in particular, Mr Parker's credit arose squarely on the facts known to the Crown: Mr Azzi denied the direction had been made in the terms put to him and there was no doubt that the cyber security "policy" which Mr Parker relied upon was non-existent and instead there was only a policy about tax issues. 1. I address the lack of significance of the "policy" below, when addressing grounds 5-7. As already noted, Mr Azzi himself referred to this policy in his Misconduct Response Letter. In any event, the focus of submissions was on the suggestion that Mr Azzi denied the directions had been made in the terms put to him, in particular as regards whether Mr Parker directed an immediate cessation of work by Ms A. The minor premise of the argument is that there had been such a denial so that an issue arose as to who should be believed out of Mr Parker and Mr Azzi. The major premise is that this was a "critical fact" for which further obvious inquiries could have been undertaken, with the failure to do so rendering the subsequent Decisions invalid. The minor premise is not made out. It is unnecessary to examine the major premise. 2. The allegations were set out in the Allegations Letter as follows: Allegation 1 Particulars (a) On 17 January 2022, in a Teams call with Mr Parker, Mr Parker advised you that [Ms A] (an employee of the SIRA within your directorate) was not allowed to do any work for the State Insurance Regulatory Authority (SIRA) while she was residing overseas in Germany. You were further advised by Mr Parker that approval for [Ms A] to work overseas was unlikely to be provided, but that if approval was to be sought you would need seek approval through both ICT and People and Culture. (b) In the discussion Mr Parker further reiterated to you that [Ms A] was not to do any work for the SIRA while she was in Germany and that you were to take action to address the issue immediately. (c) You subsequently failed to comply with Mr Parker's instructions as outlined in (a) and (b) (the First Instruction) above and allowed [Ms A] to continue working for the SIRA while located overseas in direct contravention of the First Instruction and without seeking approval from ICT and People and Culture. Allegation 2 Particulars (a) On 3 February 2022, in a one-on-one regular meeting with Mr Parker, you advised Mr Parker that [Ms A] was still undertaking work for SIRA while residing in Germany. (b) Mr Parker instructed you that it was highly unacceptable for [Ms A] to be doing any work for the SIRA while she was residing in Germany. (c) Mr Parker further instructed you that you must immediately stop [Ms A] doing any work whatsoever for the SIRA while she was residing overseas in Germany (the Second Instruction). (d) You subsequently failed to follow the Second Instruction above, and instead allowed [Ms A] to continue undertaking work for the SIRA while residing in Germany in direct contravention of the Second Instruction. Allegation 3 Particulars (a) On 4 March 2022, you had a regular scheduled one-on-one meeting with Mr Parker during which you advised Mr Parker that despite the First Instruction and the Second Instruction referred to in allegations 1 and 2 above, you had allowed [Ms A] to continue to undertake work for SIRA while residing in Germany. (b) During the meeting Mr Parker stated to you words to the effect "You need to stop [Ms A] doing any work for us." (the Third Instruction). (c) Despite the First Instruction, the Second Instruction and the Third Instruction you failed to take reasonable and timely steps to have [Ms A] cease undertaking any work for SIRA while residing in Germany, until Mr Parker again instructed you to do so in writing by email on 9 March 2022. 1. Mr Azzi's Misconduct Response Letter began with an explanation of the "overarching context", which included identifying the statutory duties he said that he, Mr Parker, SIRA and the Department all owed to Ms A and her children given the real threat of harm that existed. Then, under a heading "Response to Allegation 1", Mr Azzi included the following: B.1. On 17 January 2022, Mr Parker, during a conversation, asked that access to SIRA systems by [Ms A] be limited, due to cyber security risks and new policies being introduced by DCS. I advised Mr Parker that I would make enquiries and facilitate the removal of [Ms A's] access to SIRA systems. … B.4. [After explaining he had contacted the ICT Director] I immediately, following that confirmation, reached out to [Ms A] and advised that I had been instructed by Mr Parker to remove her access and was in the process of doing the same. I noted that I wanted to be sensitive to her circumstances and asked her to begin the task of process mapping the activities that she had been doing up till that point to prepare for a handover. … B.12. In response to Allegation 1, I submit that I adhered to the direction provided by Mr Parker, by immediately taking actions to make the necessary enquiries with DCS ICT, communicate the instruction to [Ms A], take steps to exit [Ms A] from active work with SIRA while being sensitive to her circumstances, winding down [Ms A's] work and process mapping critical SO52 work in order to ensure that delivery and handover was possible, and importantly, taking these actions while being cognisant of my duties under the WHS Act and the Government Sector Employment Act 2013 (GSE Act), specifically s 7 … 1. Nowhere under this heading does he deny that a direction had been given in the terms contained in Allegation 1. Counsel for Mr Azzi sought to derive an implication from [B.1] that Mr Azzi was denying that an instruction had been given in the terms alleged, but that is not stated nor implied. Any such implication would not be consistent with the remainder of his letter, as shall be seen. The letter is written with obvious care and is entirely coherent. In that context, if Mr Azzi had wished to dispute the allegations he clearly had the ability to do so. The fact that he did not do so is consistent with him not having relevantly responded to Mr Parker's statement in his 10 March 2022 email that "I told you on 17/1, 3/2 and again 4/3 that [Ms A] is not to do any work for SIRA while overseas in Germany". 2. Instead, his reference in his letter to "the direction provided by Mr Parker" (at [B.12]) is consistent with an acceptance of the allegation. The nub of his answer is clear: he was seeking to give effect to the direction "while being sensitive" to her circumstances and taking account of what he perceived to be constraining legal duties. In other words, he was not seeking to deny that the instruction had been given in the manner alleged. Nor was he arguing that he had complied in full with it. Rather, he was seeking to justify his delay in giving effect to it given what he regarded as overriding considerations. Mr Azzi effectively conceded that he only complied to the directions to the extent he considered conformed with those considerations. As counsel for the respondent put it, Mr Azzi took a "confess and avoid" approach. 3. The same is true of what Mr Azzi said in response to Allegations 2 and 3. Again, there is no denial of the allegations. When responding to both allegations he again referred to "the direction provided by Mr Parker". And in response to Allegation 2 he said that "I was responding to the instruction provided by Mr Parker, but doing so with regard to my statutory obligations … and minimising the risk to both SIRA and [the Department]" (emphasis added). Similarly, he said he "adhered to the direction provided by Mr Parker, by being transparent and honest in reporting on where I was in the process of completing Mr Parker's instruction, whilst being cognisant of my duties …" (emphasis added). Whether or not he had been transparent and honest was not to the point of the allegations. 4. His position was made quite clear under the heading "Other considerations and conclusion", where he said (original emphasis): E.1. I vehemently deny Allegations 1, 2 and 3 in that they are factually inaccurate to suggest that I took no action in response to the direction provided. E.2. Rather all actions taken were in response to the direction provided by Mr Parker while being at all times cognisant and compliant with my statutory obligations under the WHS Act and the Crimes Act 1900 (see Section A for further details). E.3. Noting the basis of this entire misconduct allegation is the alleged noncompliance with the DCS Code of Conduct, specifically obey any lawful direction or instruction given to you. Having previously set out, in Section A above, the statutory obligations under the WHS Act and the Crimes Act 1900, there is doubt as to whether the direction for immediate cessation of [Ms A] access was lawful. 1. His vehement denial of the claimed suggestion in the three allegations that he took no action puts in relief the absence of a denial that the instructions had been given in the manner particularised in the Allegations Letter. And the final sentence quoted itself accepts – indeed emphasises – that a direction had been given for immediate cessation of Ms A's remote access. 2. The Misconduct Findings Letter then sent to Mr Azzi grappled with the points and arguments that he had made. 3. The position subsequently taken in the Kennedys Letter departed somewhat from what Mr Azzi had said in his Misconduct Response Letter. The letter asserted that "at no time prior to 10 March 2022 was our client advised that the Direction was to take effect immediately and nor could it, having regard to the duty of care owed to [Ms A]". This assertion was made after misconduct findings had been made, and in response to the opportunity to make submissions on the proposed action of termination without the opportunity to resign. Even if it is accepted that such a late submission could affect the determination of misconduct already made – a point it is not necessary to decide – the submission gave no detail of the claim, nor attempt to explain the contradiction between that assertion and what had been said in the Misconduct Response Letter. 4. Counsel for Mr Azzi conceded that even on his own case Mr Azzi's Misconduct Response Letter was ambiguous. That concession itself undermines the argument that it was legally unreasonable for the respondent not to have undertaken further inquiries. In any event, in my view the letter is not ambiguous. Mr Azzi did not dispute the allegations that he had been instructed to stop Ms A performing work with immediate effect. In these circumstances there was no "critical fact" which arose as to the respective credit of Mr Parker or Mr Azzi or as to who was to be believed in relation to the content of the directions given. There is no reason it was or should have been apparent to the decision-maker that Mr Azzi's version of the directions was materially different from that of Mr Parker's. There was no "obvious inquiry" to be made on the point. It was entirely rational and reasonable for Ms Hogan, with the material before her, to find the directions were as set out in the Allegations Letter. Counsel for Mr Azzi accepted at oral submissions that if that view were taken then the rest of grounds 1-4 fall away. 5. Grounds 1-4 are not made out. Grounds 5-7: procedural fairness 1. Grounds 5-7 concern procedural fairness. Ground 6(c) raises an issue that is particular to the Second Decision. That ground is addressed below together with ground 11. Leaving that aside, Mr Azzi alleged that the decision-maker did not afford him a fair hearing because before the First Decision was made he should have been given: 1. a copy of the policy under which the directions to him were allegedly made; and 2. a copy or summary of Mr Parker's email of 8 March 2022 containing his account of conversations with Mr Azzi over which Mr Azzi allegedly made prejudicial admissions as to misconduct. 1. There was no dispute that procedural fairness requires in the ordinary case that an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 629; Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at [15]-[17]. The policy 1. The complaint relevantly articulated in the notice of appeal is that the decision-maker breached the duty of procedural fairness by not informing Mr Azzi of: the policy upon which it contended its direction to immediately terminate the working arrangements of Ms A without notice to her was lawful and reasonable and where it was clear that the Appellant had not seen or been given a copy of the policy upon which the direction was allegedly based and, in fact, had been misled as to it terms (which were not concerned with cyber security). 1. Attached to the briefing note provided to Ms Hogan prior to her approving the proposed action of terminating Mr Azzi's employment was a document headed "Proposed Action Submissions Analysis: Mark Azzi (SIRA)" (the Submissions Analysis). It was prepared by someone within the HR section of the Department. It analysed the Kennedys Letter. The document included the following: 1.17 As communicated to Mr Azzi, Mr Parker's directions for [Ms A] to immediately cease working from Germany was based on a policy change at [the Department], it was not a decision unique to [Ms A]. The policy change was based on cyber risk and people and culture implications. Any employee seeking to work from overseas was required to obtain approval from ICT and People & Culture and consideration would only be given to such an arrangement in exceptional circumstances and on a short-term temporary basis. Given this, Mr Parker directed Mr Azzi to behave in accordance with practice. 1. Mr Azzi argued that no such formal written policy existed, and if and to the extent it did exist it should have been made available to Mr Azzi because it was the basis of Mr Parker's directions and in any event presumptively informed the First Decision. These arguments are not only in some tension with each other, they are devoid of merit. 2. As already noted, the only relevant policy document produced in the litigation by the Department is the PowerPoint presentation referred to above at [25], which is not overtly addressed to cyber security issues, although the need for a cyber security assessment prior to approving overseas work is specified. That being said, the Submissions Analysis said that the "policy change was based on cyber risk and people and culture implications", so it was not suggested to be purely a cyber-focused policy. The PowerPoint presentation appeared to be still in draft as at 11 November 2021. 3. However the policy evolved, and whatever its precise reasons for being, by the time he was given the directions Mr Azzi clearly understood that the Department had introduced a new policy. In his affidavit evidence he said that on 17 January 2022 – when Mr Parker gave his first direction – Mr Parker told him that the Department was "concerned about cyber security risks and is introducing a new policy about it", and that Ms A "may eventually be locked out". Mr Azzi said that he then spoke to the Director within the ICT section, telling him that Ms A "is working from Germany and was approved to do so in September prior to the department's introduction of the new cyber security policy". Further, as noted above at [25], he himself referred to the policy in his Response Letter. 4. It is clear, thus, that the Department did have a policy at the relevant times of which Mr Azzi was aware (as the primary judge noted at [70]-[72]). Further, there is nothing in the PowerPoint document which is inconsistent with his understanding of the policy. What was said at [1.17] of the Submissions Analysis was, in substance, known to him. 5. In any case, the policy is a red herring. The misconduct alleged and found was a failure by Mr Azzi to follow the three directions given to him by Mr Parker. The reason for giving the directions is immaterial. The Allegations Letter summarised the alleged misconduct as that "you have recently repeatedly failed to follow reasonable and lawful instructions issued to you by Mr Parker". The three allegations were then itemised. The Findings of Misconduct Letter expressed conclusions that Mr Azzi had failed to comply with a lawful direction as regards each of the three instructions. The letter of 12 July 2022 communicating the First Decision addressed the points raised in the Kennedys Letter. It again indicated that the relevant misconduct was a failure to comply with the three lawful directions given by Mr Parker. In this context, Mr Azzi's arguments about whether or not the policy existed, what its precise terms or motivations were, and whether those terms should have been disclosed to Mr Azzi prior to his termination, were beside the point. 6. No breach of the requirements of procedural fairness rules occurred by reason of the failure to provide Mr Azzi with a cyber security policy document. 7. In written submissions Mr Azzi also made a complaint, not articulated in the notice of appeal, about the fact that the Submissions Analysis said there were options open to Ms A other than working in Germany, such as accessing accrued leave, or returning to live in Australia without living with her husband. Again, these views were not material to the issue of whether or not Mr Azzi failed to comply with the directions given to him. Mr Parker's email of 8 March 2022 1. Mr Azzi's complaint here was that part of the content of an email from Mr Parker to the HR section dated 8 March 2022 was set out in the Submissions Analysis which was provided to Ms Hogan prior to the First Decision. Neither that email nor the Submissions Analysis were provided to Mr Azzi prior to that decision being made. The email sets out Mr Parker's version of an exchange he had with Mr Azzi on 4 March 2022. The most pertinent part of the reported exchange, which is set out in the Submissions Analysis at [2.3], is as follows (emphasis added): Azzi: Darren, I've got to tell you something that won't make you happy. Parker: that is okay, what is it? Azzi: you know you said not to allow [Ms A] to work for us in Germany, well I've let her continue Parker: Why is that? Azzi: She is really good. I've sought more staff for ages now but that hasn't happened. [Ms A] is in a difficult situation. … Azzi: [Ms A] will be back in two weeks. Parker: You need to stop [Ms A] doing any work for us. Azzi: You can say that you've told me to stop this immediately. Parker: Will you stop access? Azzi: It's only two weeks and I need her. Parker: You know this isn't okay? Azzi: You can say you have told me. Parker: You need to stop [Ms A] doing any work for us. 1. The Submissions Analysis goes on to say at [2.4] that it is "clear from the above that the directions were to take effect immediately and that Mr Azzi was aware of this requirement, but wilfully and deliberately decided not to comply". 2. In this Court Mr Azzi submitted that the whole of the claimed exchange at [2.3], along with the conclusion expressed at [2.4], should have been disclosed to him prior to the First Decision being made. Counsel for Mr Azzi accepted at the hearing that Mr Azzi was not entitled to Mr Parker's email itself. Rather, it was said he required "a summary that properly summarises the critical matters" in order to meet the case against him. Mr Azzi submitted that the allegations regarding the terms of the directions and his supposed admissions were adverse to him and were credible and relevant and potentially significant to the making of the Decisions. 3. The problem with the submission is that, as counsel for the respondent submitted, the substance of Mr Parker's account of his directions as recorded in his email had in fact been put to Mr Azzi in the Allegations Letter. When setting out Allegation 3, the Letter said that "you advised Mr Parker that despite the First Instruction and the Second Instruction referred to in allegations 1 and 2 above, you had allowed [Ms A] to continue to undertake work for SIRA while residing in Germany". That captures the statement recorded in the email that "you know you said not to allow [Ms A] to work for us in Germany, well I've let her continue". And the Letter goes on to state that during the meeting "Mr Parker stated to you words to the effect 'You need to stop [Ms A] doing any work for us'". That is a precise reproduction of what the email records Mr Parker as saying twice to Mr Azzi. Thus the relevant contents of the 8 March 2022 email as recorded in the Submissions Analysis were disclosed, as the primary judge concluded at [68]. 4. As for the conclusion in the Submissions Analysis at [2.4] that it was clear that Mr Azzi was aware of the requirement to cease immediately "but wilfully and deliberately decided not to comply", that was a conclusion expressed by the author of the document in the HR section. Procedural fairness "does not require the Tribunal [ie the decision-maker] to give an applicant a running commentary upon what it thinks about the evidence that is given": SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [48]. Here, the opinion expressed was not even one by the decision-maker. It was not required to be disclosed. 5. There was no breach of the requirements of procedural fairness by the failure to disclose the identified portions of the Submissions Analysis. 6. Grounds 5-7 are not made out, leaving aside ground 6(c). Grounds 9-10: lawfulness and reasonableness of the directions 1. Grounds 9-10 related to the lawfulness and reasonableness of the directions, assuming they were in the terms as alleged by Mr Parker and put to Mr Azzi in the allegations. Mr Azzi said that the decision-maker should have found that the directions were unlawful because they were made in contravention of: 1. cll 43.2 and 65 of the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009; and 2. section 25(2) of the Anti-Discrimination Act, being a form of indirect discrimination. 1. It was asserted that the decision-maker therefore did not have jurisdiction to dismiss Mr Azzi for disobeying the directions. 2. A central plank of Mr Azzi's argument on these grounds was the submission that "[i]f the alleged directions had in fact been given to Mr Azzi but they were not lawful or reasonable directions, then the finding of misconduct could not lawfully be made". In response the respondent asserted that it, as employer, could "make the decision as to whether a reasonable and lawful direction had been issued to the appellant". These points raise issues of some complexity which were not fully grappled with in the parties' submissions. 3. For the reasons that follow, Mr Azzi has not established that the three directions given by Mr Parker were unlawful, in the sense of being contrary to any applicable legal norm. That suffices to resolve the issues of legality here without seeking to resolve the further questions raised by his argument, such as how the claimed breach of a legal norm meant that the two Decisions were afflicted with jurisdictional error. Quite what the notion of a direction not being "reasonable" added to the argument was not clear and was not developed. It is not necessary to consider that issue further. The Award 1. Mr Azzi submitted that not allowing Ms A to work from home in Germany breached cl 43.2, and that the "the undisclosed policy upon which the directions were allegedly given was not made lawfully pursuant to clause 65". 2. Clause 43 of the Award provides as follows: 43. Room at Home Used as Office 43.1 Where no Departmental office is provided in a particular location – Where it is impractical to provide an office in a particular location, employees stationed in such a location may be required to use a spare room at their home as an office. In such cases, the Department will be responsible for providing furniture, telephone and other equipment, as required. In addition, an allowance as specified in Item 12 of Table 1 – Allowances of Part B Monetary Rates is payable for the use of a room at home as an office. 43.2 Where an office exists in a particular location – Where a Departmental office or offices already exist in a particular location but the employee and the manager agree that the staff member could work from home on a short term or longer term basis, the arrangement shall be negotiated in accordance with the provisions of the Flexible Work Practices, Policy and Guidelines. The allowance set out in subclause 43.1 of this clause shall not apply in these circumstances. 43.3 Requirements – Arrangements under subclauses 43.1 or 43.2 of this clause shall be subject to: 43.3.1 A formal agreement being reached in respect of the hours to be worked; and 43.3.2 The work health and safety, provision of equipment requirements and any other relevant conditions specified in Part 2, Section 7 Working from Home in the Flexible Work Practices, Policy and Guidelines. 1. It is apparent that cl 43.2 is directed to situations where a person is employed to work in a particular location where a relevant departmental office is to be found, as opposed to where there is no such office, which situation is addressed in cl 43.1. In such a situation if the worker reaches an agreement with their manager that they can work from home, then the significance of cl 43.2 (taken together with cl 43.3) is as follows: the arrangement is to be negotiated in accordance with the identified "Flexible Work Practices, Policy and Guidelines"; work health and safety issues are governed by the Policy; the allowance referred to in cl 43.1 is not payable; and a formal agreement is to be reached in relation to hours worked. 2. Clause 43.2 does not undermine the dismissal of Mr Azzi. No breach of the clause has been made out. As the respondent submitted, the Department has no office in Germany. Moreover, it is not established that Ms A was working from home in the relevant sense. There is no evidence where in Germany she was residing or in what circumstances. It is not apparent that any formal agreement was reached of the kind referred to in the clause. The evidence does not indicate that such permission as had been given to Ms A to work remotely was permission to work overseas indefinitely. On the contrary, Mr Azzi himself referred in an email to an initial agreement that it be for three months (see above at [23]). Mr Azzi's counsel referred to p 36 of the current "Flexible Work Practices, Policy and Guidelines", which specifies certain periods of "reasonable notice" being given for termination of a working from home agreement. But that clause is in a draft agreement under the heading "Example Only". And even if there had been some such agreement which had been breached, it is not apparent Ms A suffered any disadvantage, as explained below with respect to the discrimination argument. It can also be noted that there is nothing in cl 43.2 to suggest that such a breach would render any such decision invalid. 3. Clause 65 of the Award requires consultation between departmental management and the Public Service Association and Professional Officers' Association Amalgamated Union. Mr Azzi alleged that the Department's policy relating to working overseas did not undergo any such consultation. He referred to Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23; (2014) 87 NSWLR 41. Walton P there held that cl 65.1 manifest "an intention that there be an effective means of consultation between management and the [union] in the form of the 1997 Consultative Arrangements which carried with it a legal obligation to comply with those Arrangements" (at [240]). Any such legal right to consultation, correlative to the identified duty, lay with the union. Neither that decision nor anything in the Award suggests that any failure to comply with the clause would render any decision about the working arrangements of a particular employee unlawful or invalid. In any event, an officer of the Department gave evidence that from October 2021 the Department "began consultation in relation to a new flexible working policy with the [union] and its employees, which included provisions about working overseas". No breach of the clause is established. The Anti-Discrimination Act 1. Section 25(2) of the Anti-Discrimination Act renders it "unlawful" for an employer to discriminate against a person on the ground of sex, including in the terms or conditions of their employment. Section 24(1)(b) of the Act defines such discrimination to include indirect discrimination, that is, where the perpetrator: requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex … comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. 1. Mr Azzi submitted that a decision to prevent an employee from working overseas detrimentally affect female employees disproportionately, given statistically more women suffer from domestic violence (and thus need to keep distance from their abuser) than men. He argued that the directions that Mr Azzi stop Ms A from working overseas was a discriminatory act against her on the basis of sex, as a male employee who was working overseas would be able more readily to comply with such directions. 2. There is no evidence that Ms A ever made a discrimination complaint. And, as the primary judge noted (at [89]), there is no evidence she has foregone wages as a consequence of the directions. It is notable that in the email that Mr Parker drafted for Mr Azzi to send to Ms A on 10 March 2022 it said "[y]ou last explained to me that you will be back in Australia in the next couple of weeks and ready to re-commence work". Although the evidence is not clear as to when Ms A actually returned, it appears that it was then thought that she would be returning soon. Counsel for Mr Azzi made a point that the first direction was given on 17 January 2022, and it is not clear what the understanding then was. Even allowing for that, overall there is no evidence she suffered any material disadvantage. In these circumstances there is no proper foundation to make out a discrimination claim, even if it was open to a third party to seek to make out such a claim. 3. Moreover, remedies for contravention are set out in the Act itself. As counsel for Mr Azzi herself put it, "we are not seeking relief under the Anti-Discrimination Act". Mr Azzi did not identify a legal basis for saying that if Mr Parker's directions had been discriminatory then the Anti-Discrimination Act would have rendered them invalid. The respondent pointed to authority of this Court to the contrary: Bignell v New South Wales Casino Control Authority [2000] NSWCA 38; (2000) 48 NSWLR 462 at [38] and [137]. However, it should be noted that that case related to an earlier iteration of the Act, and there are some material differences to the relevant version of the Act here. 4. Grounds 9-10 are not made out. Grounds 11 and 6(c) 1. Ground 11 raises an issue about whether it was Mr Dent rather than Ms Hogan who made the First Decision. It was common ground below and on appeal that Mr Dent was not authorised to make a decision to terminate Mr Azzi's employment under s 69(4) of the GSE Act. The proper decision-maker was "the person who exercises employer functions in relation to [the] employee" (s 69(2)). Pursuant to s 26 of the GSE Act, the Secretary of a department of the public service may exercise the employer functions on behalf of the respondent in relation to the employees of that department, including the power to terminate a person's employment. Thus at all material times the person authorised to make decisions in relation to Mr Azzi under s 69(4) was Ms Hogan. Section 27 permits delegation of the employer functions but provides that the rules "may limit a power of delegation or sub-delegation under this section". Rule 4(1)(c) of the GSE Rules in turn provides that the function of the termination of the employment of a senior executive "cannot be delegated". As Mr Azzi was a senior executive it was thus only Ms Hogan, as the relevant Secretary, who could exercise the power under s 69(4) to terminate his employment. 2. Before the primary judge Mr Azzi argued that the First Decision was not made by Ms Hogan. He said it was evident from the first person narrative of the 12 July 2022 letter that Mr Dent made the decision, with Ms Hogan merely approving it. The primary judge rejected that argument, holding that Ms Hogan made the decision by approval of the relevant briefing note (at [57]). Her Honour further held (at [58]) that Mr Dent acted as her agent in communicating that decision to Mr Azzi, pursuant to the principle recognised in Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 at 563 and O'Reilly v Commissioners of State Bank of Victoria [1983] HCA 47; (1982) 153 CLR 1 at 11. 3. On appeal Mr Azzi submitted that there was no evidence of any such agency arrangement. Rather, he submitted that the briefing note and the letter showed that the decision was one of Mr Dent, where Ms Hogan was merely being "briefed" of that decision which she in turn approved. According to Mr Azzi, Ms Hogan effectively admitted not having considered herself to be the decision-maker of the First Decision by making the decision for a second time. 4. Section 69(4) provides that "the person who exercises employer functions in relation to the employee may take any of the following actions". Mr Azzi treated the issue as being who was the relevant person to make the decision to take the action. In the summons in his first proceeding he asserted that "the only person lawfully permitted to make the decision to terminate the employment of [Mr Azzi] was a Secretary of the Department" and that Mr Dent "was not lawfully permitted to make" the First Decision. The question of who made the decision is distinct from the issue of who communicated it and in what terms. That question of identifying the decision-maker is one of fact and characterisation. 5. The fact that it was Mr Dent who signed the First Termination Letter on 12 July 2022, which was expressed in the first person, does weigh in favour of Mr Azzi's argument. The main concluding paragraph of the letter was as follows: I confirm I have carefully considered the available information, including your submissions of 17 June 2022. I have made the decision to terminate your employment with an opportunity to resign, pursuant to section 69(4)(b) of the GSE Act. This decision has been approved by Ms Emma Hogan, Secretary. 1. Mr Dent clearly was suggesting that he was the decision-maker, albeit that the decision had been approved by Ms Hogan. He had also sent the Findings of Misconduct Letter, which was similarly expressed in the first person. 2. The manner of expression of Mr Dent's letter is not determinative of who the decision-maker in fact was. What is more significant is that a briefing note was provided to Ms Hogan which asked her to "approve" the action of terminating Mr Azzi's employment under s 69(4)(a) without giving an opportunity to resign, and that she "[a]pprove the attached letter to be signed by [Mr Dent] advising Mr Azzi of the action". The briefing note went on to explain that the relevant delegation "provides that the termination of an executive's employment at any time, for any (including misconduct) reason, must be approved by the Secretary". It said that "it is recommended Mr Azzi is advised his employment with DCS will be terminated". The briefing note had been approved by Mr Dent. It is clear from the briefing note that Ms Hogan was being treated as the person who was empowered to make the decision, and she was being asked to take the decision as to whether the proposed action should be taken. 3. As explained above at [45], Ms Hogan approved the briefing note with one important qualification. Leaving that qualification aside for one moment, it is relevant Mr Dent's termination letter did note that the decision "has been approved" by Ms Hogan. The attempts by Mr Azzi to differentiate between making and authoritatively approving the decision involved a distinction without a difference. The briefing note treated Ms Hogan's view as determinative. It was she who was being asked to make the decision. 4. As for the qualification to Ms Hogan's approval, she noted she had "asked Adam Dent (by phone) to consider whether offering Mr Azzi an opportunity to resign is a reasonable option, and will leave it with him as the CEO of SIRA to make this decision" (emphasis added). The action then taken was terminating his employment with the opportunity to resign, pursuant to s 69(4)(b) of the GSE Act. The action in fact taken was different from what Mr Dent had recommended in the briefing note, because of Ms Hogan's view. That reinforces the fact it was her view which was treated as authoritative. 5. However, critically, that point can be argued also to cut the other way. Ms Hogan did not definitively determine whether action should be taken under paragraphs (a) or (b) of s 69(4), rather leaving "this decision" to Mr Dent. 6. Before addressing this point it is relevant to note that, as the respondent submits, this version of the argument was not raised below. That being said, the respondent did not say it was prejudiced by this, and it falls within the scope of the general legal complaint made by Mr Azzi on this front. The argument also does not sit entirely comfortably with the way in which ground 11 is worded. Again, however, the respondent did not object to it on that basis. All of this occurred in a context where ground 11 was not the subject of oral submissions in this Court. It appeared that counsel for Mr Azzi ran out of time to address it and, given that fact, counsel for the respondent did not respond to it orally. No doubt that was a consequence of the large number of appeal grounds raised. In all the circumstances I consider it appropriate to allow Mr Azzi some latitude in being able to raise the point. 7. It is a basic principle of Australian administrative law that, subject to the terms of the particular statutory regime, a decision-maker cannot abdicate the making of a decision allocated to them nor act under the dictation of another when making a decision. Gibbs CJ referred to this principle in Bread Manufacturers of New South Wales v Evans [1981] HCA 69; (1981) 180 CLR 404, when considering an argument that a Prices Commission had improperly acted under the direction of a Minister (at 418, citation omitted): a statutory authority must not, in the purported exercise of its discretion, act under the dictation of some other person. This proposition is plainly correct. The Commission is the body entrusted with power to fix the price, and its decision must be its own. If it acted under pressure exerted by the Minister, or simply gave automatic effect to a decision of the Minister, the decision would not then really be that of the Commission but would be that of the Minister. 1. The principle that the person authorised to make a decision should not act under the dictation of another similarly requires that that person should not entrust the making of their decision to another who is not empowered to make it. As a leading administrative law text has explained, one of the themes of this area of law is that "the official who is legally responsible for making a decision should in fact be the one who does so": Robin Creyke et al, Control of Government Action (6th edn, LexisNexis, 2022), [12.2.7]. 2. It is necessary to recall the language of s 69(4), which states: If, in accordance with those rules, there is a finding of misconduct by an employee of a government sector agency, the person who exercises employer functions in relation to the employee may take any of the following actions ... 1. The provision then lists seven distinct actions, along with an implicit eighth option of taking no action (the provision is quoted above at [30]). The GSE Rules provide a ninth option: the employer "may, instead of taking action under section 69(4) of the Act, require the conduct of the employee to be monitored over a specified period notified to the employee" (r 40(3)). Section 69(4) itself distinguishes between terminating with or without an opportunity to resign. Although both involve termination, the statute treats the two possibilities as materially distinct. Ms Hogan did not choose between them. She left that choice to Mr Dent. Ms Hogan's own language illustrates the point: "[I] will leave it with [Mr Dent] as the CEO of SIRA to make this decision". 2. However, all that r 4(1)(c) of the GSE Rules provides is that what cannot be delegated is "the termination of the employment of a Public Service senior executive under section 41, 68 or 69 of the Act" (emphasis added). The rules do not state that no decision under s 69 can be delegated. In effect, it is only a decision under the provision which involves termination of the employment of a senior executive which is required to be made by a Secretary personally. The decision to terminate Mr Azzi's employment was made by Ms Hogan, even if she left it to Mr Dent to decide between the two actions under s 69(4) of terminating with or without an opportunity to resign first. In these circumstances the restriction in r 4(1)(c) was not infringed. Mr Azzi did not argue that the reason Mr Dent was not permitted to make the final decision was anything other than the restriction in r 4(1)(c). 3. Mr Azzi's argument that the making of the Second Decision and the sending of the Second Termination Letter constituted some kind of admission about the invalidity of the First Decision does not advance matters. It is clear from the materials that the Second Decision was taken for the avoidance of doubt in light of the challenge that had been made to the First Decision (see above at [50]). Even if this was seen as an implicit acceptance there was some chance the challenge could succeed, that throws no light on what the facts were when the First Decision was made. And characterising those facts for legal purposes is a matter for the Court. 4. For completeness I note that no argument was made by the respondent that Mr Dent could exercise decision-making authority to decide to terminate as an agent of the Secretary. Any such argument would have faced the difficulty that the statutory scheme, by explicitly preventing delegation of decisions to terminate senior executives, required such decisions to be taken personally by Secretaries: note Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 at [176]. 5. The primary judge did not base her conclusion on who made the decision on agency principles. She did do so in relation to the issue of the communication of the decision, saying that "Ms Hogan was entitled to ask Mr Dent to communicate the decision to the plaintiff in his capacity as her agent in accordance with the Carltona principle" (at [58]). Her Honour's approach reflected the point made above that the making of the decision and its manner of communication are different matters. The statutory scheme did not specify how or by whom any decision under s 69(4) was to be communicated to the employee, although no doubt it is implicit that the decision must in fact be communicated. In that context, in my view it is unnecessary to invoke principles of agency as the statutory scheme does not specify who it was that had to do the communicating. 6. Thus in my view ground 11 is not made out. Even if it had been I would have held that the error was not material. The respondent's notice of contention suggested that the error was not material and thus no jurisdictional error was made out. It also asserted that the Court should decline to quash the Decisions as an exercise of the Court's discretion. 7. In recent years materiality has come to be seen as commonly, although not invariably, a necessary feature of jurisdictional error. This sense of materiality recently was affirmed by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610: [7] In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. That is because it is now accepted that a statute which contains an express or implied condition to be observed in a decision‑making process is ordinarily to be interpreted as incorporating such a "threshold of materiality" in the event of non‑compliance. [emphasis in the original; citations omitted] 1. The issue here does not relate to a condition on the exercise of power or on the decision-making process. It goes to the more fundamental question of who is authorised to make the decision. If the person who purported to make the decision is not authorised to do so then there is necessarily no valid decision, regardless of whether or not there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred: note LPDT at [6]. If ground 11 had been made out then that would have sufficed to establish jurisdictional error without having to consider any issue of materiality. But that does not necessarily mean that materiality has no relevance, nor that relief should issue. 2. In LPDT the High Court unanimously resolved an earlier disagreement within the Court as to whether issues of materiality went to the existence of jurisdictional error or only arose separately as a matter of discretion: see eg Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [44]-[45] and [81]-[95]. As is manifest in the quotation above from LPDT, the basis of the Court's resolution is a presumption of construction that Parliament intends that a failure to comply with an express or implied condition on the grant of power will not lead to invalidity unless material. Acceptance of that principle of statutory construction does not mean that issues of materiality can no longer arise as a matter of whether or not relief should be granted in a court's discretion. That it may still be necessary to consider discretionary matters is illustrated in LPDT where the High Court said that once the materiality threshold is met, for decisions where it is required, then "curial relief will be justified subject to any issue of utility or discretion" (at [16]). 3. Here, if error had been made out, it still could not be said that there is a realistic possibility that the decision that was made in fact could have been different in a practical sense if the error had not occurred. Ms Hogan expressly authorised Mr Dent to take a decision under either subs (a) or (b) of s 69(4). If Ms Hogan had not left that final choice to Mr Dent but made it herself then there were two possibilities. Given that she did not accept the recommendation to act under s 69(4)(a) in an unqualified way, it seems the most likely outcome would have been that she would have chosen the s 69(4)(b) route, just as Mr Dent did (taking the hint from his superior officer). Alternatively Ms Hogan could have chosen to terminate Mr Azzi's appointment without the opportunity to resign under s 69(4)(a). That in theory would have been a harsher option than the choice made by Mr Dent. But in practice either choice would have made no difference because Mr Azzi did not in fact exercise the opportunity to resign anyway. These points illustrate that the argument raised by Mr Azzi has little substantive merit. Put another way, any error was not material. That conclusion would have sufficed to refuse relief as an exercise of the Court's discretion. Ground 6(c): notice of the Second Decision 1. The grounds considered above were not made out as regards either Decision. Ground 6(c) was directed specifically to the Second Decision. It alleged that it was invalid for lack of procedural fairness because of the failure to provide any notice to Mr Azzi of the intention to make a further decision under s 69(4). 2. The primary judge rejected this argument, saying as follows: [60] I reject the plaintiff's submission that he was denied procedural fairness by not being forewarned of the Secretary's intention to re-make or ratify the first decision by making the second decision. The misconduct findings had already been made on 6 June 2022. Ms Hogan was not obliged to revisit these findings (which pertained exclusively to past conduct, rather than, say, continuing unfitness). Further, the plaintiff challenged the validity of the first decision, thereby creating both the occasion and the putative need for Ms Hogan to re-make or ratify the first decision, thereby ensuring that the termination of the plaintiff's employment was valid. The plaintiff, through his legal representatives, can be taken to have been aware of the possibility that Ms Hogan would take the action she did. Given the extensive process of procedural fairness which had been undertaken prior to the finding of misconduct and the termination, there was no need to engage in this process again before Ms Hogan made the second decision. 1. I respectfully disagree with her Honour. The Second Decision involved the taking of an action under s 69(4) of the GSE Act which, pursuant to r 40(2) of the GSE Rules, must not be done unless the relevant employee is notified of the proposed action and given a reasonable opportunity to make submissions in response. Mr Azzi was not notified of Ms Hogan's proposal to make the Second Decision nor given any opportunity to make submissions further to those he had made in relation to the First Decision. What occurred did not meet the requirements of the statutory scheme. 2. Counsel for the respondent argued that the "proposed action" which needed to be put to Mr Azzi here was in fact the same action which have already been put to him in the Misconduct Findings Letter on 6 June 2022, that is, notifying him of the proposed termination of his employment without an opportunity to resign pursuant to s 69(4)(a). But this argument does not sit well with the sequence of events. That proposed action was not undertaken; rather, the First Decision was that his employment be terminated with an opportunity to resign, pursuant to s 69(4)(b). The termination was to take effect at the close of business on 21 July 2022 if he had not resigned beforehand. The operative significance of the notification of proposed action had been overtaken by events, specifically the making of a different, less onerous decision to the proposal of which he had been notified. Subsequently, the Second Decision was different from the First. It was that his employment was terminated without an opportunity to resign and with effect at close of business on the day the letter was sent, 30 November 2022. It cannot be said that in these circumstances the Secretary had provided Mr Azzi a reasonable opportunity to make submissions on that proposed action. 3. The significant passage of time is relevant here. Nearly six months had passed since the Misconduct Findings Letter had been sent. Litigation had been commenced. Mr Azzi had put on affidavit evidence explaining in more detail what had occurred in the course of events involving the directions being given by Mr Parker. Ms Hogan herself referred to considering "the available information", including the First Termination Letter sent by Mr Dent on 12 July 2022, which was after the Misconduct Findings Letter had been sent. There may have been a range of new or further points that Mr Azzi might have wished to make if given a further "reasonable opportunity" to do so. These facts indicate, too, that the failure to provide him that opportunity was material. 4. As for the suggestion Mr Azzi can be taken to have been aware of the possibility that Ms Hogan would take the action she did, I consider that unpersuasive. To begin with, it cannot be assumed that he would have appreciated the possibility of Ms Hogan making the Second Decision. Mr Azzi submitted to this Court that it is "unusual for the same decision to be made twice". In any event, a decision-maker must comply with procedural requirements regardless of what the person affected may guess. 5. It is sometimes the case that a governmental litigant will take steps to remake a decision the validity of which has been challenged or is in doubt. Bhardwaj is an example of decision being retaken where jurisdictional error was conceded: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597. Such an approach is sometimes taken even if the decision-maker litigant maintains that a challenge will not succeed. Adopting this approach can involve taking a practical approach to resolving issues. But it must be consistent with the statutory scheme. When it occurs the decision-maker litigant typically gives notice that they are considering making a new decision, giving the challenger an opportunity to make new submissions. Counsel for the respondent was asked if Mr Azzi was required to put in "a submission saying, lest you do this clever trick that is sometimes employed in public law litigation … here are my further submissions". Counsel responded in the affirmative. The affected person is not required to engage in such guesswork. 6. Mr Azzi could not reasonably be expected to assume that a new decision under s 69(4) might be made at any time such that he was constantly taken to be on notice of that possibility. If that were so, he would constantly need to be considering making further submissions to the decision-maker along the lines of "in case you are thinking of making a new decision, and in case that decision is that my employment should be terminated without notice, then I seek to make the following points…". He might have had to add, "and in case you are thinking of imposing some other sanction, I would make these further points". The statutory scheme cannot sensibly be understood in that way. 7. In my view the Second Decision was taken without affording Mr Azzi the reasonable opportunity to make submissions in relation to the proposed action to which he was entitled under r 40(2)(b). In that way he was not afforded procedural fairness. 8. Ground 6(c) should be upheld. Thus the Second Decision was invalid. However, given the conclusion that the First Decision was valid, there is no utility in granting relief as regards the Second Decision. Orders 1. The appeal should be dismissed. Ordinarily costs of the appeal would follow the event. The respondent sought to be heard separately on costs, regardless of the outcome of the appeal. Provision should be made for further brief submissions on costs of the appeal, but only after the parties have informed each other of their respective positions on the issue to see if agreement can be reached. The issue will then be determined on the papers unless good reason to the contrary is shown by either party. 2. The orders of the Court should be as follows: 1. Appeal dismissed. 2. The parties are to notify each other by 5pm on 23 July 2024 of what orders they propose should be made as to costs of the appeal. 3. If the parties do not agree on the appropriate order as to costs of the appeal, they each may file and serve written submissions of up to 3 pages on the issue, along with any evidence relied on, by 5pm on 30 July 2024. 4. The parties may file and serve any reply submissions, of no more than 2 pages, by 5pm on 2 August 2024. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 July 2024