Karam v Secretary, Industrial Relations (NSW Department of Justice, Bureau of Births, Deaths and Marriages) [2016] NSWIRComm 1038

Industrial Relations Commission New South Wales Medium Neutral Citation: Karam v Secretary, Industrial Relations (NSW Department of Justice, Bureau of Births, Deaths and Marriages) [2016] NSWIRComm 1038 Hearing dates: This interlocutory issue was determined on the written submissions of the parties Decision date: 04 November 2016 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: The applicant did not breach subsection 18(f) of the Births, Deaths and Marriages Registration Act 1995 Catchwords: UNFAIR DISMISSAL – interlocutory decision – instruction to staff to record Presumption of Paternity on adoption certificates – whether applicant breached subsection 18(f) of the Births, Deaths and Marriages Registration Act 1995 – whether applicant acted pursuant to section 45 – whether applicant acted without legislative authority – no breach of subsection 18(f) found Legislation Cited: Industrial Relations Act 1996 Births, Deaths and Marriages Registration Act 1995 Status of Children Act 1996 Category: Procedural and other rulings Parties: Lisa Karam (Applicant)

Secretary, Industrial Relations (NSW Department of Justice, Bureau of Births, Deaths and Marriages) (Respondent) Representation: Counsel: Mr S Benson (Respondent)

Solicitors: Mr A Boulton, Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Applicant) Ms L Armstrong, Crown Solicitor (Respondent) File Number(s): 2016/00243281

INTERLOCUTORY DECISION 1. As at 13 April 2015 the applicant, Ms Lisa Karam, was occupying the role of A/Assistant Registrar, Registration Services, BDM (Clerk Grade 11/12) in the Bureau of Births, Deaths and Marriages, NSW Department of Justice. Her substantive grading was Clerk Grade 7/8. On that day the applicant was served with a letter containing a number of allegations against her. She was suspended from duty. 2. Ultimately the applicant was dismissed from her employment with effect from 3 August 2016 for misconduct. The sustained findings of misconduct against the applicant were set out in correspondence to the applicant dated 25 January 2016 in the following terms: 1. In the period since at least 6 November 2013, you breached the Births Deaths & Marriages Act 1995 in that without appropriate authority and/or delegation, you instructed staff to reference a Presumption of Paternity under the Births, Deaths & Marriages Act 1995, Section 18(f), on at least 20 known adoption certificates. 2. In the period since at least 6 November 2013, you breached the New South Wales Registry of Births, Deaths & Marriages Delegations Instrument (20 August 2013) in that without appropriate authority and/or delegation, you instructed staff to reference a Presumption of Paternity under the Births, Deaths & Marriages Act 1995, Section 18(f), on at least 20 known adoption certificates. 3. In the period since at least 6 November 2013, you have breached the Code Conduct, in that you failed to act within the appropriate authority and/or delegation of your role as A/Assistant Registrar Registration Services, and in accordance with any established procedures, when you instructed staff to reference a Presumption of Paternity under the Births, Deaths & Marriages Act 1995, s 18(f), on at least 20 known adoption certificates. 1. Each of the alleged breaches was grounded upon the assertion that the applicant had, without appropriate authority and/or delegation, instructed staff to reference a "Presumption of Paternity" under the Births, Deaths and Marriages Registration Act 1995 ('BDMR Act'), subsection 18(f), on at least 20 known adoption certificates. Section 18 of the BDMR Act is in the following terms: 18 Registration of parentage details The Registrar must not include registrable information about the identity of a child's parent in the Register unless: (a) both parents of the child make a joint application for the inclusion of the information, or (b) one parent of the child makes an application for the inclusion of the information and the other parent cannot join in the application because he or she is dead or cannot be found, or for some other reason, or (c) one parent of the child makes an application for the inclusion of the information and the Registrar is satisfied that the other parent does not dispute the correctness of that information, or (d) a court orders the inclusion of the information in the Register, or (e) a court makes a finding that a particular person is a parent of the child, or (f) the Registrar is entitled under any law (including a law of another State or the Commonwealth) to make a presumption as to the identity of the child's parent, or (g) the regulations authorise the Registrar to include the information. 1. The applicant was authorised by delegation to exercise the functions of the Registrar under section 18, with the exception of subsection 18(f). However, the applicant claims that she had authority to issue the disputed instructions to staff under section 45 of the BDMR Act. 2. Section 45 of the BDMR Act is in the following terms: 45 Correction of Register (1) The Registrar may correct the Register: (a) to reflect a finding made on inquiry under Division 2, or (b) to bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event. (2) The Registrar must, if required by a court, correct the Register. (3) The Registrar corrects the Register by adding or cancelling an entry in the Register or by adding, altering or deleting particulars contained in an entry. 1. The applicant was authorised by delegation to exercise the functions of the Registrar under section 45. She claims that she instructed staff to put parentage information in the Endorsement field of the Register pursuant to this section. 2. On 12 August 2016 the applicant filed an Application for Relief in Relation to Unfair Dismissal pursuant section 84 of the Industrial Relations Act 1996 ('Act'). This application was listed before Tabbaa C on 30 August 2016 for conciliation and directions. 3. During that conciliation conference it emerged that the parties were divided over a fundamental issue, namely, whether or not, by instructing staff to reference a "Presumption of Paternity" on adoption certificates, the applicant had breached subsection 18(f) of the BDMR Act. The parties agreed that this issue should be determined as a threshold issue by another member of the Commission. The file has been allocated to me for that purpose. 4. Both parties filed comprehensive written submissions on the disputed issue and agreed that the resolution of it should be done "on the papers". 5. It appears that the allegations of misconduct against the applicant have undergone some reformulation over time. 6. In correspondence to the applicant from Mr Peter Connelly, Deputy Secretary, Organisational Performance and Operations Division, of the respondent, dated 5 June 2015, the first of the three allegations of misconduct against the applicant was framed in terms that "you have breached the Births, Deaths & Marriages Act 1995, in that without appropriate authority and/or delegation, you instructed staff to reference a Presumption of Paternity under the Births, Deaths & Marriages Act 1995, s 18(f) on at least 20 known adoption certificates". The remaining two allegations of misconduct were also framed in terms that the applicant had "breached" the Delegations Instrument and the Code of Conduct. 7. The respondent engaged Ms Claire Alder, Consultant Investigator, to conduct an investigation into the allegations of misconduct against the applicant. In her Inquiry Report, dated 14 December 2015, Ms Alder found that the three allegations of misconduct against the applicant were sustained. However, these findings were prefaced by the following comments: It appears that, due to the Relevant Employee's entrenched view that she was referencing the presumptions of paternity under Section 45 and that Section 18(f) was not relevant to the situation, the concerns from the other staff were not considered or possibly understood fully by the Relevant Employee. I found the Relevant Employee to be a credible and honest witness who was genuinely disturbed when she appreciated the legal interpretation and ramifications of her decisions regarding the referencing of paternity on the certificates themselves. I am of the view that she honestly believed that she had the authority to reference the presumption of paternity on the certificates having been authorised and directed to do so by her then manager, Sharon Swinbourne. I find that the Relevant Employee genuinely believed that Ms Swinbourne had the authority from the then Registrar, Greg Curry and that the endorsement on the certificate was being made pursuant to Section 45 of the Act and not under Section 18(f). I also accept that, at no point, did the Relevant Employee consider that Section 18(f) was relevant as she was under the misapprehension that she was correcting the Register under Section 45, for which she had the delegated authority to do so. I find that the Relevant Employee held an honest but mistaken belief that she had the authority and/or delegation to reference the presumption of paternity in the endorsement field. I find that the Relevant Employee had not considered at any point that Section 18(f) was relevant and therefore her ignorance of the legal interpretation provided by the Crown Solicitor's Office indicates that she had no intent whatsoever to breach the Act or Delegations Instrument. I find overall that there was no intent or knowledge on the part of the Relevant Employee that she was acting unlawfully. Notwithstanding the above observations, on a purely technical and limited basis, I find the Relevant Employee to have engaged in misconduct when she, without authority and/or delegation, directed staff to reference the presumption of paternity on the certificates. It is therefore on this basis alone that I find the allegations sustained. I also note that it will be a matter for the Crown Solicitor's Office to review each of the certificates in question and determine whether there was any other basis, other than Section 18(f), for the presumptions of parentage to have been noted on the certificates. If it is found that Sections 18(a) to (e) and/or (g) are relevant, then those particular certificates should be excluded from the findings. I recommend that my findings are subject to a review by the Crown Solicitor's Office in order to establish whether a technical breach of the nature I have found can properly be considered to be misconduct, bearing in mind there being no intent/mens rea on the part of the Relevant Employee. In all the circumstances, I find all Allegations sustained. 1. Despite the findings and comments of the investigator set out above, in the subsequent letter dated 25 January 2016 from Mr Brendan Thomas, Deputy Secretary of the respondent, the three allegations of misconduct, framed in terms of "you have breached…", were sustained. 2. However, in an email to the applicant from Mr Thomas dated 3 May 2016, Mr Thomas stated as follows: I note in your preliminary response you made submissions regarding the interpretation of section 18(f) of the Births, Deaths & Marriages Act. I have considered those submissions and am satisfied your actions did not constitute a breach of the Births, Deaths & Marriages Act 1995. However, I find you engaged in misconduct when you instructed staff to record a person's parentage information by way of endorsement in the absence of any approval of the Registrar or any delegated authority. Thus the misconduct is as follows: 1. In the period since at least 6 November 2013 you acted without any legislative power when you relied upon s 18(f) of the Births, Deaths & Marriages Act 1995 as the basis for instructing staff to reference a Presumption of Paternity on at least 20 adoption certificates. The Act provided no authority for your actions. 2. In the period since at least 6 November 2013 you acted without any delegated authority when you relied upon s 18(f) of the Births, Deaths & Marriages Act 1995 as the basis for instructing staff to reference a Presumption of Paternity on at least 20 adoption certificates. The internal BDM delegations provided no authority for your actions. 1. Despite this reframing of the misconduct allegations in terms of "you acted without any legislative power…" and "you acted without any delegated authority…", the termination letter dated 22 July 2016 from Mr Thomas refers back to his letter of 25 January 2016 in which the findings of misconduct were cast in terms "you breached… Section 18(f)…" and "you breached the… Delegations Instrument…". It is unclear as to why there has been a reversion from "you acted without" legislative power and delegated authority, back to "you breached" the BDMR Act and the Delegations Instrument. 2. As I understand it, the issue which the parties have posed for determination is whether or not the applicant breached subsection 18(f) of the BDMR Act. The transcript of the conciliation conference before Commissioner Tabbaa of 30 August 2016 records the following: COMMISSIONER: ……………………. Otherwise, if the matter is not settled, the PSA and the respondent will provide submissions in relation to the interpretation of s 18F of the Births Deaths and Marriages Act 1995 relating to presumption of paternity and whether or not the applicant breached the Births Deaths and Marriages Act 1995 with respect to that particular provision. That is the first issue to be decided and, depending on the outcome of that, if the matter does proceed to that, depending on that, whether a merits argument will be run by the applicant. 1. In the written submissions filed on behalf of the applicant, reliance is placed on section 45 of the BDMR Act (set out at paragraph 5 above). The following submission is put on behalf of the applicant: Ms Karam did not instruct her staff to put parentage information (based on a presumption of paternity made by another agency) in the Mother/Father fields of the certificate under s.18(f). She instructed her staff to put that information in the Endorsement field of the certificate under s.45(3) of the BDMR Act… 1. Against this the respondent submits that section 18 of the BDMR Act (set out at paragraph 3 above) is a specific legislative provision prohibiting the inclusion in the Register of registrable information about the identity of the child's parent, unless the requirements of subsections (a)-(g) are met. In particular, subsection (f) allows such information to be included in the Register if the Registrar is entitled under any law (including a law of another State or the Commonwealth) to make a presumption as to the identity of the child's parent. By way of example, section 9 - Presumptions of parentage arising from marriage, of the Status of Children Act 1996 is used by the Registrar to allow the named father's details to be recorded on a new birth registration, if he is married to the mother at the time of the child's birth, despite only one parent signing the registration form. 2. By contrast, section 45 of the BDMR Act is a general provision which, relevantly, provides for correction of the Register to bring an entry about a particular registrable event into conformity with the most reliable information of the registrable event available to the Registrar. I agree with the submission made on behalf of the respondent to the effect that the power to correct the Register, set out in section 45, does not in any way dilute, or render nugatory, the limitation on the Registrar's functions imposed by section 18 relating to the registration of parentage details. In other words, section 45 does not permit an indirect route to overcome what could not be done directly because of the restraints in section 18. The applicant's attempt to call in aid section 45 as providing legislative support for her instruction to her staff to place parentage information, based on a presumption of paternity made by another agency, in the Register, must fail. 3. However, that is not the end of the matter. The question which has been posed for determination is whether or not the applicant breached subsection 18(f) of the BDMR Act. 4. Strictly speaking, it is not appropriate to characterise non-compliance with subsection 18(f) as a breach of that provision. Section 18 places certain restrictions on the inclusion of registrable information about the identity of a child's parent in the Register. Section 18 does not, of itself, render non-compliance with its terms a "breach" or an offence. That is done by section 58 which is in the following terms: 58 Unauthorised access to or interference with Register A person must not, without the authority of the Registrar or other lawful authority: (a) obtain access to the Register or information contained in the Register, or (b) make, alter or delete an entry in the Register, or (c) interfere with the Register in any other way. Maximum penalty: 100 penalty units or 2 years imprisonment, or both. 1. However, it is not possible, on the evidence and submissions currently before the Commission, to determine whether or not the conduct of the applicant constituted a breach of section 58. For that to occur there would need to be full argument as to whether or not section 58 creates an offence of absolute liability or of strict liability, where a defence of "honest and reasonable mistake" might be available, or an offence which required an element of mens rea or intention to commit the offence. Depending on the resolution of that issue, evidence as to the applicant's state of mind at the time she issued the disputed instruction to her staff may also be relevant to the determination of whether or not a "breach" has occurred or an offence has been committed. 2. The most that can be confidently stated at the present time is that, when the applicant instructed her staff to include "Presumption of Paternity" information on adoption certificates, she did not have legislative authority under the BDMR Act to issue that instruction. Whether or not that conduct constituted misconduct such as to justify the termination of her employment remains to be determined.