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Monday, 30 August 1993
Page: 601

(Question No. 338)


Senator Hill asked the Minister for Foreign Affairs, upon notice, on 28 May 1993:

  (1) What advice has the Australian Government received concerning the applicability of the disciplinary provisions of Part III of the Public Service Act 1922 to unattached public service officers appointed by the Executive Council as heads of Australian diplomatic missions.

  (2) Has an unattached officer of the Commonwealth Public Service ever been charged with misconduct under Part III of the Public Service Act 1922 for actions while serving as the Head of an Australian diplomatic mission under appointment by the Executive Council: if so, was specific advice sought in relation to the power to make charges under Part III provisions, bearing in mind the provisions of Part IV.

  (3) Did the Privacy Commissioner write to the then Secretary of the Department of Foreign Affairs and Trade (Dr Wilenski) on 26 October 1992, advising him that he was conducting an investigation under section 40 of the Privacy Act 1988 into complaints made by the former Australian Ambassador to Chile (Mr Malcolm Dan): if so, has the department made a complete response to all points raised by the Privacy Commissioner; if not, how long will it take the department to make a complete response.

  (4) (a) What was the total cost of the investigation of allegations of misconduct made against Mr Dan; (b) how many times did the team or members of the team visit posts where Mr Dan had served; (c) what were the dates of those visits; and (d) have any other such investigations been carried out by the Department of Foreign Affairs and Trade; if so, what was the total cost of each.

  (5) Has Mr Dan made any complaints of irregularities in the investigation of allegations of misconduct made against him in relation to his posting as Ambassador to Chile and Ambassador to Argentina; and (b) has he made any complaints about the subsequent process of inquiry under section 61(2) of the Public Service Act 1922; if so, what are those complaints and what investigations did the Department of Foreign Affairs and Trade initiate to determine the truth of those allegations.


Senator Gareth Evans —I am advised by my Department that the answer to the honourable senator's question is follows:

  (1) The Department has received advice concerning the applicability of the disciplinary provisions of Part III of the Public Service Act 1922 (the Act) to officers of the Department who are appointed as Heads of Mission on the following occasions:

  (i) 30 March 1989—This advice was provided by the Attorney-General's Department and concludes that unattached officers of the Australian Public Service are subject to disciplinary action under the Act;

  (ii) 4 July 1990—This advice was provided by the Department's Administrative Law Section. It concludes that officers of the Department who are appointed Heads of Mission are unattached officers for the duration of their appointment and can therefore be charged with misconduct under Section 63L of the Act;

  (iii) 10 December 1990—This advice was provided by the Department's Administrative Law Section. It considers the possible disciplining of Heads of Mission under Section 63J(2) of the Act, and concludes that, as unattached officers, Heads of Mission may be disciplined for improper conduct under this Section;

  (iv) 20 December 1990—This advice was provided by the Department's Administrative Law Section. It concludes that HOMs are unattached officers and fall under the discipline regime set out in Sections 63J and 63L of the Act. It also concludes that these provisions provide a separate disciplinary regime for unattached officers;

  (v) 21 December 1990—This advice was provided by the Attorney-General's Department. It states that when an officer of the Australian Public Service is appointed as a Head of Mission that officer becomes unattached and is deemed to be on leave of absence without pay. Such officers may be charged with misconduct under Section 63L of the Act;

  (vi) 28 April 1992—This advice was provided by the Australian Government Solicitor. It concludes that if charges are laid under Section 63J against an unattached officer and that officer is subsequently reattached there are doubts as to whether those charges could proceed further;

  (vii) 23 November 1992—This advice was provided by Queens Counsel. It concludes that charges against an unattached officer under Section 63J must be disposed of before that officer is reattached.

  (2) Only one unattached officer has been charged with misconduct under Part III of the Public Service Act for actions while serving as the head of an Australian diplomatic mission under appointment by the Executive Council. The charges were drafted by the Australian Government Solicitor, taking into account the provisions of Parts III and IV of the Public Service Act.

  In addition, one former head of an Australian diplomatic mission has been charged with misconduct under Part III of the Act. Those charges were brought against the officer after he had been reattached but related to alleged misconduct while he had been head of mission and therefore unattached. The charges were dismissed by the Inquiry Officer largely on the facts of the case. Subsequent legal advice concerning an unrelated matter indicated, as noted in answer (1)(vii) above, that if charges are laid under Part III of the Act against an attached officer for misconduct while that officer was unattached there is a doubt whether those charges would stand.

  (3) Yes, the Privacy Commissioner wrote to Dr Wilenski in October 1992 advising that he was conducting an investigation under section 40 of the Privacy Act following a complaint by Mr Dan under section 36 of the Act. The Department has provided a full response to the letter.

  (4) (a) The cost to the Department of the investigation of allegations of misconduct against Mr Dan so far is $15,139. That cost includes travel to Santiago and Buenos Aires by two Departmental investigators and their accommodation and allowances; (b) two Departmental officers travelled to Santiago and Buenos Aires to carry out the investigation into allegations against Mr Dan. They travelled together and on one occasion only. They were accompanied to Santiago by an officer from the Department of Immigration, Local Government and Ethnic Affairs; (c) the visit to Santiago was made from 18 April to 3 May 1991 and to Buenos Aires from 3 to 7 May 1991; (d) since the establishment in March 1989 of a discrete area within the Department dealing with fraud and discipline matters, there have been 180 separate investigations into allegations of misconduct, mal-administration or fraud, including the investigation into Mr Dan. Of that number, 77 of the investigations were in relation to allegations by the so-called "Officers Revolutionary Council". Nine overseas posts have been visited in the course of those investigations, in addition to the two posts visited during the Dan investigation, at a total cost of $81,352.

  Departmental investigations into fraud and misconduct are carried out by the Fraud Prevention and Discipline Section. That Section has a notional complement of five officers headed by a Director at the Senior Officer Grade B level. As well as its investigative function, the Section is responsible for providing policy advice on fraud and discipline matters and carrying out pro-active functions including fraud awareness seminars and fraud risk assessments. As it is not possible to determine accurately the number of staff hours dedicated to any particular investigation, no attempt has been made to provide these costs.

  (5) (a) Yes, Mr Dan has made a number of allegations to the Privacy Commissioner of irregularities in the investigation of allegations of misconduct made against him in relation to his posting as Ambassador to Chile and Ambassador to Argentina. As noted above, the Department has provided a full response to the Privacy Commissioner addressing all of these allegations. Following is a summary of the allegations:

  that the Department collected personal information by unlawful or unfair means contrary to Information Privacy Principle 1 (IPP 1) and that the collection of that information was unreasonably intrusive contrary to IPP 3;

  that the Department used information without first taking reasonable steps to ensure that the personal information was accurate, up to date and complete contrary to IPP 8;

  that the Department disclosed personal information relating to Mr Dan contrary to IPP 11 and possibly failed to protect adequately from unauthorised disclosure records containing personal information relating to Mr Dan contrary to IPP 4.

  (b) Yes, Mr Dan made complaints about various aspects of the Inquiry into three charges of misconduct which were finalised in September 1991. The three charges were proven. Mr Dan's complaints included:

  an allegation that an officer involved in the investigations sat in on the Inquiry in 1991 despite assurances to the contrary. (This was not the case);

  an allegation that he was unable to properly present his case because witnesses did not give oral evidence and no cross examination was possible. (The Inquiry was conducted according to procedural requirements. It is an administrative process and the rules of evidence do not apply);

  a challenge to the evidence on which the Inquiry Officer's findings were based;

  a challenge to the jurisdiction of the Inquiry Officer under the Act;

  an allegation that he was denied the opportunity to gather evidence due to his absence from Santiago. (This was not the case. There was no restriction placed on his movements and it was open to Mr Dan to return to Santiago if he so wished).

  Mr Dan was granted leave by the Merit Protection Review Authority for an extension of time to appeal the three findings of misconduct by the Inquiry Officer. A Disciplinary Appeal Committee (DAC) hearing was scheduled for February 1993. Mr Dan withdrew his appeal to the DAC shortly prior to the proposed hearing. In doing this, he brought the matter of the three charges to a close.

  An Inquiry into seven charges of misconduct is still in progress. Mr Dan made an application to the Federal Court seeking review of the following alleged decisions by the Inquiry Officer regarding these seven charges:

  not to investigate the alleged alteration of a document;

  to proceed with the Inquiry prior to the completion of FOI requests made by Mr Dan;

  to conduct the Inquiry without hearing oral evidence and without allowing the cross examination of witnesses;

  to proceed with the Inquiry without requiring the Department to make available all documents in its possession to Mr Dan;

  to proceed with the Inquiry before Mr Dan's request for documents from other Departments had been satisfied;

  to assert jurisdiction under Part III of the Act;

  Mr Dan has withdrawn this application to the Federal Court.

  Mr Dan also issued court proceedings challenging the appointment of the original Inquiry Officer. In accordance with its legal advice, the Department revoked the appointment and appointed a new Inquiry Officer.

  In addition, Mr Dan has made complaints about various aspects of the Inquiry into the seven charges including:

  the Department's alleged failure to provide him with copies of various documents. (The Inquiry Officer has provided Mr Dan with copies of all the documents from the Department and other Commonwealth sources which are to be taken into account by the Inquiry Officer);

  the Department's alleged failure to permit Mr Dan to present his account of events prior to the laying of the seven charges and the appointment of the Inquiry Officer. (The Department complied with all the procedural requirements in laying the charges and appointing the Inquiry Officer. Mr Dan has now made written submissions to the Inquiry Officer);

  the cost of the Inquiry to the Commonwealth and to himself;

  the alleged differences in the treatment of Mr Dan and the treatment of Mr Burke, the former Ambassador to Ireland and the Holy See. (Unlike Mr Dan, Mr Burke was not an unattached officer of the Australian Public Service during his time as Ambassador to Ireland and thus was not subject to Part III of the Act);

  the laying of the seven charges contrary to an alleged assurance by the Inquiry Officer into the first three charges that no further charges would be laid. (That Inquiry Officer has by affidavit sworn that no such assurance was given);

  the reliance placed on the reports and statements of the investigators by the Department and the Australian Government Solicitor. (It is open to Mr Dan to challenge any of the evidence before the Inquiry Officer during the course of the Inquiry);

   alleged tampering with a document. (On the advice of Counsel, the Inquiry Officer referred these allegations to the Department's Fraud Prevention and Discipline Section (FDS) for investigation. FDS found that there was no evidence of tampering with Departmental documents but concluded that the matter should be referred to the Department of Administrative Services (DAS) for investigation as there was evidence that one of DAS's documents may have been altered. Mr Dan has also referred this matter to the Australian Federal Police);

  challenging the Inquiry Officer's jurisdiction under the Public Service Act. (The Inquiry Officer has written to Mr Dan to inform him that although he is inclined to accept the Department's legal advice that he does have jurisdiction he will hear Mr Dan's submissions on this point in the course of the Inquiry. At the Inquiry Officer's invitation, Mr Dan has provided his written submissions);

  challenging the appropriateness of the Department's investigation into the alleged tampering with a document and alleging flaws in the Department's report. (The Inquiry Officer has informed Mr Dan that he may require further investigations into this aspect depending on the material presented to him by Mr Dan during the Inquiry);

  alleging that there is a campaign against him which has included the fabrication of evidence, embellishment and falsification of official reports on investigations, offering bribes to potential witnesses, failure to caution him before taking evidence, concoction of the bases of the charges, posing of an officer as a policeman to intimidate staff, threats to locally engaged staff, illegal taping of witnesses, submission of false and untested material to the Australian Government Solicitor, Australian Federal Police, & Director of Public Prosecutions. (It is the role of the Inquiry Officer to examine the evidence before him during the course of the Inquiry. It is also open to Mr Dan to challenge any of this evidence by way of written or oral submission).

  It would be inappropriate for the Department to comment further on these matters whilst the Inquiry is still in progress.