Case: Buonopane v Secretary of the Department of Employment, Education and Youth Affairs (1998) 87 FCR 173
Outcome: followed
Secondly, counsel for the respondents referred to Buonopane v Secretary of the Department of Employment, Education and Youth Affairs (1998) 87 FCR 173 and submitted that this case was authority for the proposition that a decision to charge an officer under s 61(2) of the PSA is not subject to the rules of natural justice. The respondents referred to the remarks of Sundberg J (at 184-185): The scheme established by the subdivision discloses that Parliament has adverted to the procedural fairness required at each stage of the disciplinary process. At the appeal stage there is to be a formal hearing. At the suspension stage the officer is to be given an opportunity to be heard unless particular circumstances exist which make it inappropriate. At the inquiry stage, a formal hearing is not required, but the officer has to be told of the misconduct the subject of the charges and given an opportunity to make a statement in relation to the misconduct. The contrast between this stage (s 62(3) and (4)) and the s 61(2) stage is eloquent. The limited right conferred on the officer under s 61 is to have a copy of the charge furnished to the person specified in subs (3). To import into s 61(2) one of the procedural steps required at the s 62 stage would be to alter the carefully crafted scheme devised by Parliament. This is not a case where Parliament is silent on procedural fairness. It has specified the stages at which fairness is required and the content of that fairness. The intention is manifest that at the earliest stage the officer is not to have the opportunity to make representations as to why charges should not be made against him. ... I will return to the question whether the Court should supplement the statutory scheme after considering the complaint that the applicant had not been afforded procedural fairness at the inquiry stage. 98 His Honour later concluded that it would not be appropriate to supplement the statutory scheme (at 186). 99 In my respectful opinion, his Honour's conclusions are correct and should be followed. 100 In my opinion, the first decision identified by the applicant was not a decision to which the ADJR Act applied. The third respondent formed an opinion that the applicant may have failed to fulfil his duty as an officer and conveyed that opinion to the first respondent. That is not the making of a decision within s 3(2) or (3) of the ADJR Act . Nor is it a decision as that concept has been explained in the authorities. It is not final or operative and determinative. It is a matter the relevant Secretary or his delegate takes into account in deciding whether to take one or other of the courses of action referred to in s 63B(c) or (d). 101 In my opinion, although the matter is not entirely clear, the second decision identified by the applicant was a decision to which the ADJR Act applied. Suspension has an immediate impact in that an officer is precluded from performing his ordinary duties. Parliament has seen fit to confer an opportunity to be heard, albeit, one capable of being defeated in certain circumstances, before a decision to suspend is made. Furthermore, in the case of an officer who has been charged previously with misconduct, suspension operates to bring the payment of the officer's salary to an end. All these considerations suggest an act in relation to a substantive matter and one which is final or operative and determinative and therefore a decision. It is true that s 63B also applied where an officer is first suspended and later charged (in fact that was the case here) and that in such a case, it is the act of charging that brings the payment of the officer's salary to an end. In that case it might be said that both the act of suspension and charging are decisions or at least the act of charging is a decision. I incline to the view that whatever the sequence of events, as a matter of substance the act of suspension is a decision within the ADJR Act and the act of charging is not. The act of charging involves no final conclusions of fact and an inquiry at which the officer concerned has a right to be heard as defined in s 62(3), must be held without undue delay. However, I do not need to decide the point because even treating both the act of suspension and the act of charging as decisions there is simply no ground upon which to impugn either decision. 102 In order to deal with all the issues canvassed before me I will assume (contrary to my earlier conclusion) that the third respondent's forming of an opinion and the conveying of that opinion to the first respondent was a decision to which the ADJR Act applied. 103 The first ground of challenge to the first decision is that there was a breach of the rules of natural justice in that the applicant was not given notice of the allegations against him, he was not given a reasonable opportunity to respond to them, he was not given an opportunity to be represented at the meeting held on 4 June 1997 and he was not given prior warning that his use of the ATO computer facility was, or may be, inappropriate. It is also alleged that the third respondent should have disqualified himself. 104 In my opinion, the answer to this ground of challenge is that the rules of natural justice did not apply to the first decision. They did apply to the second decision to the extent provided by s 63(1C) of the PSA. In my opinion, Parliament has made clear the extent to which the rules of natural justice apply to the decision to suspend. The first decision is no more than one element or aspect of that decision. For reasons I will give, the challenge to the second decision on the ground of a breach of the rules of natural justice fails. I reject the submission that the third respondent was bound to disqualify himself because of the legal proceedings issued against him. 105 The second ground of challenge to the first decision is that it involved an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made. The particulars of this ground of challenge are that (so it was said by the applicant) the third respondent took into account irrelevant considerations, namely, that the applicant had commenced criminal and civil proceedings against him, that he wished to remove the applicant from his place of employment and that he wished the applicant to have no entitlement to salary payments while conducting legal proceedings against him. This ground of challenge fails. For reasons I have already given, I am not satisfied that the fact that the applicant had commenced criminal and civil proceedings against the third respondent played any part in the opinion formed by the third respondent under s 63B of the PSA. I am not satisfied on the evidence that the third respondent wished to remove the applicant from his place of employment or that he wished the applicant to have no entitlement to salary payments while conducting legal proceedings against him. 106 The third ground of challenge to the first decision is that there was no evidence or other material to justify the making of the decision. The particulars of this ground are as follows: A. The evidence relied upon by the third respondent was such that he could not have been reasonably satisfied that the applicant may have failed to fulfil his duty as an officer (i) the applicant's use of the ATO computer facilities was at all times consistent with the manner in which the applicant had been performing his duty since he commenced work with the ATO in 1987 and was in accordance with the requirements of his duties. That use was also consistent with the manner in which other officers of the Service working in the ATO performed their duties. 107 The relevant ground is s 5(1)(h) of the ADJR Act and it provides a ground of review that: there was no evidence or other material to justify the making of the decision. Section 5(3) of the ADJR Act provides as follows: The ground specified in paragraph 1(h) shall not be taken to be made out unless: (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.