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NSW Government Bulletin

13 October 2021

#Government, #Workplace Relations & Safety

Published by:

Sladjana Skoric

NSW Government Bulletin

Court of Appeal finds ‘heavily redacted’ investigation report denied employee procedural fairness

The Victorian Court of Appeal (Court) recently held that the State of Victoria (by its department, the State Revenue Office) (SRO)’s “heavy” redaction of an investigation report into harassment claims against an employee, Mr Tobias Tucker, denied Mr Tucker “procedural fairness” and fell short of the SRO’s obligations.

Mr Tucker sought a declaration alleging that the SRO failed to comply with the procedural fairness obligations in the context of the investigation. The Court upheld Mr Tucker’s complaints about the unfairness of the harassment investigation due to the inequality of the information available to the parties:

“Harassment in the workplace is a serious matter and it is likely that many employers may be reluctant to employ someone who has been found to have engaged in such conduct. That reluctance may be ameliorated by a declaration by this Court that the findings of harassment against the applicant resulted from an unfair investigative process.”

The Court concluded that Mr Tucker was entitled to the relief he sought on the basis that the SRO had failed to conduct the harassment investigation in accordance with its obligations.

Background

Mr Tucker was employed by the State of Victoria, and commenced working at the SRO in 2011 as a legal officer in the customer service and debt management branch and was promoted to senior solicitor in October 2013. Mr Tucker’s employment was governed by a contract and a document entitled “Acceptance of Employment Terms” which required Mr Tucker to comply with the SRO’s workplace policies and procedures as well as its lawful directions.

The Victorian Public Service Agreement 2016 (VPSEA) also applied to Mr Tucker’s employment. The VPSEA contained clauses dealing with termination of employment and the SRO’s investigation processes into misconduct and disciplinary procedures. Clause 21 of the VPSEA set out the obligations of SRO pertaining to investigative processes, the provision of information to employees and allowing employees to respond to allegations, including a specific requirement that such processes be conducted in accordance with the requirements of “procedural fairness”.

In 2017, Mr Tucker was subjected to two workplace investigations concerning allegations of harassment and improper searches of customer records. After these allegations were found to be largely substantiated, the SRO proposed to give him a warning concerning the harassment allegations and to terminate his employment in respect of the improper searches of customer records.

Obligation to provide “procedural fairness”

Mr Tucker argued that the SRO failed to afford him procedural fairness by failing to comply with the information provision requirements in clause 21 of the VPSEA during both investigations.

The Court found that Mr Tucker failed to establish that SRO had breached any provision of the VPSEA or that he had been denied procedural fairness concerning the investigation into the improper searches of customer records.

However, in the context of the harassment investigation, Mr Tucker was able to show that the SRO had breached its obligation under clause 21 by failing to provide him with a proper opportunity to respond to the allegations. This failure was on account of the SRO heavily redacting the external report upon which the harassment allegations were based, which meant that he did not have the relevant information to properly respond before any disciplinary action against him was taken.

Given the nature of the redactions in the investigation report, Mr Tucker was unable to determine the evidentiary basis for the finding. This prevented him from providing any meaningful response to the findings or why the proposed disciplinary action was not warranted on that basis. This meant that Mr Tucker and the SRO were not placed on “equal footing – in terms of the information available to them – to make an assessment as to whether the findings had a sound foundation”, constituting a denial of procedural fairness.

The Court held that the SRO’s denial of procedural fairness to Mr Tucker meant that the findings of the harassment investigation were unfair, which entitled Mr Tucker to “feel vindicated”, stating that “such vindication would be enhanced by the making of a formal court order in his favour”.

Key lesson

This case highlights the importance for employers when conducting workplace investigations to ensure that the process complies with the applicable investigation and disciplinary procedures. These obligations are typically derived from workplace policies and procedures and industrial instruments.

Failure to comply with these obligations means that a flawed investigation and disciplinary process can undermine a disciplinary outcome even if that outcome is based on proven allegations, and the decision to discipline the employee would otherwise be justified.

A copy of the decision can be accessed here.

Authors: Sladjana Skoric & Louise Rumble

In the media

COVID-19 tracing data must be protected by law nationally
Federal legislation is urgently needed to ensure COVID-19 tracing data is used only for health purposes in every state and territory, says the Australian Lawyers Alliance as the Greens plan to introduce a bill to Parliament that will ban law enforcement agencies from accessing this data (07 October 2021).  More...

Big Tech warns of Australian online safety reforms’ cybersecurity risks
The federal government’s online safety reforms will lead to “widespread cybersecurity risks” comparable to the infamous Ashley Maddison data leak and may see “the work of one arm of government undoing the work of another”, according to a number of leading global tech firms (07 October 2021).  More...

Proposed CIC ‘doesn’t deserve to be called a watchdog’
The inability of the proposed Commonwealth Integrity Commission to hold public hearings and table reports will leave the public in the dark, an analysis by the CPI says (06 October 2021).  More...

Lifting the veil of secrecy: Court rules parts of Collaery case to be heard in public
The ACT Court of Appeal has ruled that parts of the ongoing prosecution of Bernard Collaery should be open to the public (06 October 2021).  More...

TAHE under scrutiny at parliamentary hearing
The NSW Transport Asset Holding Entity has come under scrutiny during a hearing by a parliamentary committee, where it was revealed that its CEO takes home a salary of $575,000 (07 October 2021).  More...

Accreditation rules relaxed as government ramps up Consumer Data Right
The federal government has significantly relaxed the accreditation rules around the Consumer Data Right, with participating companies to be able to “sponsor” smaller firms to take part in the scheme without accreditation (06 October 2021).  More...

GPEN sweep finds significant involvement of data protection authorities in COVID-19 solutions
An international privacy sweep has found that all participating data protection authorities have been actively involved in assessing the privacy implications of COVID-19 solutions and initiatives (06 October 2021).  More...

Appointment of First Parliamentary Counsel
The Attorney General announces the appointment of Ms Meredith Leigh as the new First Parliamentary Counsel, the head of the Office of Parliamentary Counsel (05 September 2021).  More...

Comment call on digital identity plans
The Digital Transformation Agency is calling for feedback on a draft bill to support the expansion of the Australian Government Digital Identity System. The agency released a factsheet on the proposed legislation which it said was required to expand the identity system to a whole-of-economy solution (04 October 2021).  More...

Legislation expanding digital identity scheme to private sector finally unveiled
New draft legislation will introduce two voluntary schemes to accredit companies and governments as service providers or relying partners in the digital identity program, as well as enshrining extra privacy safeguards in law and establishing a permanent oversight authority for the scheme (04 September 2021).  More...

NSW Seniors in spotlight on Awareness Day
October 1 is Australia’s first Ageism Awareness Day and coincides with the United Nations’ International Day of Older Persons and Probus Day. Minister for Seniors Natalie Ward said that it is an important opportunity to reinforce the value of older people to NSW, challenge stigma and highlight the many support services available (01 September 2021).  More...

Audit launched into Services Australia’s reliance on contractors
The national audit office has turned its attention to the prevalence of contractors at Services Australia, following concerns the agency has a “serious problem” with tech capability due to its over-reliance on outsourced work. The ANAO has also launched an audit into the Department of Defence’s use of contractors with the same terms of reference (30 September 2021).  More...

Record $95 million boost to legal help sector in NSW
More people facing hardship across NSW will have access to free legal support thanks to $95 million in additional Commonwealth legal assistance funding over four years. The record investment will support our hardworking legal assistance sector meet the unprecedented service demand from the COVID-19 health and economic crisis (30 September 2021).  More...

New campaign on the warning signs of elder abuse
A new campaign to raise awareness of elder abuse has been launched by the Australian Human Rights Commission to mark the International Day of Older Persons (30 September 2021).  More...

Ensuring fair and reasonable returns to class action plaintiffs
The Morrison Government has released for consultation exposure draft legislation to promote a fair and reasonable distribution of class action proceeds in proceedings involving a litigation funder (30 September 2021).  More...

NSW Coroner’s Court needs restructure and more resourcing to reduce delays
The NSW Coroner’s Court needs to be restructured and better resourced to reduce the current extensive delays, allow it to better examine systemic issues and ensure its recommendations are acted on, says the Australian Lawyers Alliance (29 September 2021).  More...

ACMA releases 2021–22 research program
The ACMA has released its 2021–22 research program, which will examine a range of topics across the Australian media and communications landscape, including unsolicited communications – phone calls, SMS and email and an examination into the use of affiliate marketing in online gambling (28 September 2021).  More...

Freedom of Information changes go too far
On the International Day for Universal Access to Information, the Law Council of Australia has expressed concern the COAG Legislation Amendment Bill 2021 extends Freedom of Information exemptions too broadly and without adequate justification (28 September 2021).  More...

In practice and courts

Draft legislation for Australian Government Digital Identity System
The proposed legislation will enshrine in law, privacy and consumer safeguards for greater trust in the system as it expands. This includes more services and sectors, accelerating an economy-wide rollout. Submissions are open until 27 October 2021. Click here for more information.

FCFCOA launches new pilot list for family law complex financial proceedings
The Federal Circuit and Family Court of Australia is launching a Major Complex Financial Proceedings List (MCFP List) to more efficiently deal with commercially complex financial family law cases. The MCFP List commences on 1 October 2021 and will operate as a pilot program in the Melbourne, Sydney and Brisbane registries of the court. See the Family Law Practice Direction – Major Complex Financial Proceedings List.

Department of Infrastructure, Transport, Regional Development and Communications: Draft Online Safety (Basic Online Safety Expectations) Determination 2021 consultation
We are seeking submissions on an exposure draft of the Online Safety (Basic Online Safety Expectations) Determination 2021. The draft determination sets out the government’s demands for providers that offer a social media service, “relevant electronic service” or “designated internet service”, including the nine principle-based “core expectations” included in the Act. View the consultation. Submissions to the consultation close on 15 October 2021.

Law Council submissions
08 October 2021 – Treasury Laws Amendment (Measures for Consultation) Bill 2021: Litigation funders.
01 October 2021 – COVID-19 concession proposals.

Law Council Update
The Law Council produces a fortnightly newsletter which highlights the Law Council's important activities and advocacy, along with any relevant media and events stakeholders would be interested in. Click here to read the 1 October 2021 issue.

AAT Bulletin
The AAT Bulletin is a weekly publication containing a list of recent AAT decisions and information relating to appeals against AAT decisions. Click here to read Issue No. 20/2021, 4 October 2021. 

Legal and Constitutional Affairs Legislation Committee

Crimes Amendment (Remissions of Sentences) Bill 2021
Report by 14 October 2021.

The adequacy and efficacy of Australia’s anti-money laundering and counter-terrorism financing (AML/CTF) regime
Report by 2 December 2021.

Constitution Alteration (Freedom of Expression and Freedom of the Press) 2019
Status: Accepting submissions. Date referred: 17 June 2021. Submissions closed: 20 August 2021. Reporting date: 31 December 2021.

Select Committee on Foreign Interference through Social Media
Select Committee on Foreign Interference through Social Media to inquire into and report on the risk posed to Australia’s democracy by foreign interference through social media. The committee is to present its final report on or before the second sitting day of May 2022. The closing date for submissions is 31 October 2021.

NSW

NSW Court of Appeal publications
The NSW Court of Appeal has published its latest Decisions of Interest Bulletin. Learn more here.

Costs disputes – uniform law – indexed amounts
Sections 291, 292 and 293 of the Legal Profession Uniform Law (NSW) relate to costs disputes. The amounts have again been indexed for the financial year 1/7/2021 – 30/6/2022. The Legal Profession Uniform Law (Indexed Amounts) Notice 2021 has been published and is available here.

ICAC: Further Operation Keppel public inquiry
1 October 2021 – the NSW ICAC will hold a further public inquiry in Operation Keppel from 18 October 2021. The Commission is investigating whether, between 2012 and 2018, the Hon Gladys Berejiklian MP engaged in conduct that: Constituted or involved a breach of public trust by exercising public functions in circumstances where she was in a position of conflict between her public duties and her private interest. Click here for more information.

ICAC: Re-opened public inquiry into allegations concerning John Sidoti MP starts
28 September 2021 – the NSW ICAC re-opened Operation Witney public inquiry into allegations concerning the State Member for Drummoyne, John Sidoti MP, will start on 29 September 2021. Click here for more information.

Published – articles, papers, reports

Which watchdog?
Centre for Public Integrity, discussion paper: 06 October 2021.
Unlike state and territory bodies the CIC would not be able to scrutinise the influence of people outside the public service on government, hold public hearings, accept whistleblower complaints, make findings or report publicly. View the paper.

PGPA Newsletter 73
01 October 2021 – annual reporting time; review of the Finance Secretary’s direction on the provision of performance information in portfolio budget statements; RMG updates: RMG–202 and RMG–212; employer training – super stapling; Comcover – risk management; APS 4 EOI – Department of Finance. Click here for more information.

Deaths in custody in Australia 2019–20
Doherty, Laura Sullivan, Tom, AIC Statistical Report No 36: 05 October 2021.
In 2019–20 there were 113 deaths in custody: 89 in prison custody and 24 in police custody or custody-related operations. This report contains detailed information on these deaths and compares the findings to longer term trends. Learn more here.

The impact of the 'What's Your Plan?' program on ADVO breaches and domestic violence
Min-Taec Kim; Crime and Justice Bulletin No. CJB242: 07 October 2021.
Domestic violence, program evaluation, apprehended violence order, behavioural insights, recividism/re-offending, Aboriginal over-representation. Learn more here.

Vaccinations in the workplace and navigating mental health in the COVID era
Law Society of NSW Employment Law Committee: 27 September 2021.
Examines examining the legal framework surrounding mandatory COVID-19 vaccinations and the workplace. Read more here.

OIC Annual Report 2020–21
The Queensland Office of the Information Commissioner Annual Report 2020–21 was tabled in Parliament on Tuesday, 28 September. Read more here.

Cases

Bathurst Regional Council v Department of Planning, Industry and Environment trading as Natural Resources Access Regulator [2021] NSWLEC 109
JUDICIAL REVIEW – decision of the Natural Resources Access Regulator to give official caution – alleged breach of Water Management Act 2000 – function to give official caution conferred by Natural Resources Access Regulator Act 2017 and Fines Act 1996 – jurisdiction of Land and Environment Court to review decision to give official caution – transfer of proceedings to Supreme Court.

Davis v Minister for Health [2021] NSWCATAD 293
ADMINISTRATIVE LAW – stay or interim order – jurisdiction of Tribunal – whether appropriate to secure effectiveness of review – public interest.

Jeray v Blue Mountains City Council [2021] NSWCATAP 310
STATUTORY CONSTRUCTION – meaning of requirement to identify information sought in section 41(1)(e) of the Government Information (Public Access) Act 2009 (NSW).

EJE v Nepean Blue Mountains Local Area Health District [2021] NSWCATAD 289
ADMINISTRATIVE REVIEW – health information – review of conduct of agency – contravention of Health Privacy Principles.

Registrar of Births, Deaths and Marriages v MacMahon [2021] NSWCATAP 303
APPEAL – question of law – statutory interpretation – power of Registrar of Births, Deaths and Marriages to refuse to register change of name – where use of name contrary to public interest – whether Registrar may have regard to purpose of name change, public record of applicant.
STATUTORY INTERPRETATION – definition – rule in Kelly v R – mischief rule – context – purpose and object of legislation – use of extrinsic materials – ejusdem generis rule.

Campbell v Murray River Council [2021] NSWCATOD 157
LOCAL GOVERNMENT – disciplinary decision re councillor – jurisdiction to review.

Redfern Legal Centre v Commissioner of Police [2021] NSWCATAD 288
ADMINISTRATIVE LAW – access to government information – scope of "government information".

Wood v Secretary of the Department of Transport on behalf of the Government of New South Wales [2021] NSWSC 1248
EMPLOYMENT AND INDUSTRIAL LAW – termination of employment – public sector employee summarily dismissed for serious and wilful misconduct – disclosure of information relevant to murder prosecution to police – whether contractual right to dismiss for serious and wilful misconduct exercised – whether disciplinary proceedings pursued under Transport Administration (Staff) Regulation – whether employee denied procedural fairness – whether employee engaged in serious and wilful misconduct – relevance of sections 315, 315A and 316 Crimes Act – whether contract repudiated.
CONTRACT – contract of employment – whether employee employed as a senior manager under Transport Administration Act – whether provision of contract of employment ineffective.
CONTRACT – breach of contract – construction of contractual confidentiality provision – whether employee contractually precluded from making disclosure to police – whether employee had legal duty to make disclosure – inconsistency between confidentiality provision and section 316 Crimes Act – whether disclosure precluded by Privacy and Personal Information Protection Act.
CONTRACTS – remedies – damages.
ADMINISTRATIVE LAW – judicial review – whether to extend time to commence proceedings – application brought 79 days out of time – Rule 59.10 of the Uniform Civil Procedure Rules – public interest – extension of time granted.
ADMINISTRATIVE LAW – jurisdiction – section 68O Transport Administration Act.
STATUTORY CONSTRUCTION – sections 68N and 68O Transport Administration Act – whether section 68O operates to preclude judicial review or remedies for breach of contract – reg 30 Transport Administration (Staff) Regulation – what procedural fairness requirements regulation imposes – Privacy and Personal Information Protection Act – section 4 – whether definition of personal information extends to information about an individual’s criminal activities – section 62 – whether offence confined to corrupt disclosure or use of personal information – Crimes Act – section 316 – whether section 62 Privacy and Personal Information Protection Act provides basis for a reasonable excuse under section 316(c) of the Crimes Act.

Broadbent v Commissioner of Police [2021] NSWCATAD 287
ADMINISTRATIVE LAW – access to government information – access application – conclusive presumption against disclosure – legal professional privilege – documents affecting law enforcement and public safety – public interests in favour of disclosure – public interests against disclosure – whether overriding public interest against disclosure.

Henry & Ors v Hazzard (No 2) [2021] NSWSC 1235
CIVIL PROCEDURE – notices to produce – before hearing – objection to production of material – public interest immunity.

Raed Hariz v Commissioner of Police [2021] NSWCATAD 285
ADMINISTRATIVE LAW – public access to government information – request for information – balancing public interest considerations – prejudice the supply of confidential information that facilitates the effective exercise of an agency’s functions – reveal an individual’s personal information – contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 – contravene a provision of another Act (Surveillance Devices Act 2007) that prohibits disclosure of information.

Wojciechowska v Commissioner of Police [2021] NSWCATAD 284
ADMINISTRATIVE LAW – jurisdiction of the tribunal – matter between a state and a resident of another state – whether tribunal exercising judicial power or administrative power.
ADMINISTRATIVE LAW – access to government information – correct and preferable decision – whether respondent did not hold any further information – whether the public interest consideration against disclosure of a deliberation, personal information and a secrecy provision, on balance outweighs the public interest consideration in favour of disclosure. Whether there is an overriding public interest against disclosure of the information in the way requested by the applicant.

Grant v Registrar, Births, Deaths and Marriages [2021] NSWCATAD 282
ADMINISTRATIVE LAW – registration of birth – whether Registrar should correct the applicant’s name recorded in the Register.

Cleverley v Harness Racing New South Wales [2021] NSWCATAD 281
ADMINISTRATIVE LAW – access to government information – whether prejudice to the effective exercise of an agency’s functions – whether prejudice to the conduct, effectiveness or integrity of any test or investigation – public interest in transparency and accountability – balancing public interest considerations.

DOZ v NSW Trustee and Guardian [2021] NSWCATAD 280
ADMINISTRATIVE REVIEW – financial management – where managed persons estate committed to NSW Trustee and Guardian – where NSW Trustee and Guardian made decisions to sell of protected person’s home – where protected person’s sons living in home – where substantial debts owed by protected person’s estate that cannot be paid without sale of property – whether correct and preferable decision.

Legislation

Commonwealth

Autonomous Sanctions (Designated and Declared Persons–Myanmar) Amendment (Continuation of Effect) Instrument 2021
07/10/2021 – this instrument continues the designations and declarations of five persons who the Foreign Minister is satisfied continue to meet the criteria for targeted financial sanctions and travel bans under the Autonomous Sanctions Regulations 2011. 

Royal Commissions Amendment (Defence and Veteran Suicide Private Sessions) Regulations 2021
05/10/2021 – this instrument amends the Royal Commissions Regulations 2019 to prescribe the Royal Commission into Defence and Veteran Suicide as a Royal Commission that is authorised to use private sessions. 

Competition and Consumer (Consumer Data Right) Amendment Rules (No. 1) 2021
05/10/2021 – this instrument amends the Competition and Consumer (Consumer Data Right) Rules 2020 to facilitate greater participation in the Consumer Data Right (CDR) regime by participants and consumers, provide greater control and choice to consumers in sharing their data, promote innovation of CDR offerings including intermediary services, and enable services to be more effectively and efficiently provided to customers. 

Do Not Call Register (Access Fees) Amendment Determination 2021 (No.1)
28/09/2021 – this determination amends the Do Not Call Register (Access Fees) Determination 2017 to increase the fees set out in part 2 of that determination. 

NSW

Regulations and other miscellaneous instruments
Administrative Arrangements (Administrative Changes–Ministers and Public Service Agencies) Order (No 3) 2021 (2021–583) – published LW 6 October 2021.
Administrative Arrangements (Interim Ministerial Changes) Order 2021 (2021–582) – published LW 5 October 2021.
Uniform Civil Procedure (Amendment No 98) Rule 2021 (2021–585) – published LW 8 October 2021.

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Sladjana Skoric

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