The MFB has failed to maintain discipline under the terms of its act. The board of the CFA refused to do something against the law. The people who refused to disobey the law get fired, and the people who refused to carry out their law stay in place. And the unlawful authority is given more power over the lawful authority.
The difference in character between the two authorities is fundamental. It is recognised in the CFA act.
The Parliament recognises that the Authority is first and foremost a volunteer-based organisation, in which volunteer officers and members are supported by employees in a fully integrated manner.
The ratio of volunteers to paid firefighters in the CFA is about fifty to one. It is hard to imagine anyone less like a volunteer than a member of the MFB. Almost every single thing they do is regulated and rewarded. The government simply insults our intelligence by denying that it has trashed this statutory precept. It has directly insulted the whole voluntary basis of the CFA and it knows it. What Faustian pact has driven it to disregard its own laws? The Premier found himself in a position of conflict – loyalty to a cabinet colleague and an electoral interest in not offending a union patron. Guess which one had to take the fall – and a woman to boot.
Even the government’s own reporter could see the differences:
Despite being similar services, CFA and MFB have very different cultures which are strongly entrenched in their organisations. CFA brigades are created from their communities and often become the fabric of their communities, particularly in rural areas. CFA volunteers may wear a number of hats in their local area and be leaders on a range of issues. Though part of the organisation, CFA brigades also have a sense of independence and autonomy. This can sometimes create tension with the organisation. MFB firefighters join the organisation. They are assigned to a particular station, which may not be in the community where they live, and form very strong connections with their brigade and platoon. They have a fierce commitment to protecting the communities they serve but are generally not “of” the community in the same way as CFA brigades. These differences in culture can result in very different approaches to community engagement.
It is clear to me from talking to people in the country that they are troubled by the MFB’s patent hostility to women. Things have changed. Rural people think that the MFB is about a century behind them. And guess what happens when management works up the courage to move a millimetre. Off the men go to their protectors in the Fair Work Commission. And this state government supports this old narrow world. Never let this government say that it supports women’s rights – until women are 50% of both authorities. (We here at Malmsbury have about 30% women – the work of Antichrist to the men of the City.)
Finally, could anyone at the Harvard School of Business devise a more perfect model for wrecking management than that propounded by the Fair Work Commission and the Premier of Victoria?
If you want to see the havoc that can be created when a federal body and a state government get involved in the administration a state statutory tribunal, look at the decision that follows. (Some names have been changed.) A copy of the original decision has been with relevant state and federal ministers for some time now.
COMMANDER JOHN SMITH
- This case could, I think, have been disposed of in an hour or two on the day it first came on for hearing. Instead, it has gone clean off the rails, and I fear that it may be costing the people of Victoria a great deal of money.
- Commander John Smith has been charged with disciplinary offences under the MFB Act. The offences are alleged to have occurred between December 2012 and September 2014. They involve allegations that Mr Smith used his computer at work to send, receive or store emails that were pornographic, offensive, obscene, racist and sexist. That conduct is alleged to be in breach of the MFB Workplace Behaviour Policy and the Victorian Public Sector Code of Conduct. These allegations founded charges of misconduct in the use of MFB property for an inappropriate purpose (s 78A (b) of the act) and disgraceful or improper conduct (s 78A(e) of the act).
- On 26 September 2014, more than six months ago, the charging officer gave substantial written details of the allegations to Mr Smith. A record of interview was made by the charging officer on 1 October 2014. Mr Smith was assisted by Commander Johnson who I was told has a law degree and who took an active part in the interview. Mr Johnson had told the charging officer that Mr Smith was not a member of the UFU and had no other access to advice, so that he, Mr Johnson, had agreed to assist him. During the interview, Mr Smith was not inclined to concede that he had breached any relevant obligation. He did say that if he passed material on, neither he nor the recipient thought that the material was offensive. He later said that those people were prepared to make statements to that effect.
- But Mr Smith replied in detail to the allegations in a letter to the charging officer dated 17 October 2014. In it, Mr Smith said:
As a person and MFB employee, I apologise unreservedly for having breached the MFB Workplace Behaviour Policy relative to offensive material. It clearly was not my intent to do so and as such I don’t believe I have consciously committed any of the offences detailed in your letter. I am, to say the very least, extremely embarrassed that this has occurred; not least because it was never my intention to contravene Brigade policy. On reflection, it is entirely appropriate and necessary that the MFB review these matters as serious when brought to their attention. It is also relevant to understand that these events did not occur in the public domain and did not offend any of the recipients.
Given that concession, you might wonder what all the fuss has been about.
- Mr Smith was advised on 10 December 2014 that charges were being prepared. They were conveyed by mail on 22 January of this year, and the date and place of hearing were conveyed and confirmed separately. On 16 March, I copied the union (the UFU) with an email request to the MFB for me to see a copy of the charges, and one of the three folders of the material complained of. Later I asked the MFB to find out who Mr Smith might turn up to the hearing with. ‘It may not be a good idea to do so alone.’
- The charges were brought on for hearing in the William Cooper Justice Centre on 30 March 2015. Ms Kathy Dowsett instructed by Thomson Geer appeared for the MFB. Mr Smith did not appear and there was no reason given for his absence. I was satisfied that he had been notified of the time and place of the hearing, and I indicated to counsel for the MFB that I would proceed with the hearing in his absence. I think that I commented that he had a right of appeal which would involve a rehearing. In the course of the morning, I was told that Mr Smith was not appearing because he had been on night shift. At one stage I counted six lawyers in the hearing room apart from me. Later I was asked to adjourn the hearing to the next day to allow Mr Smith to appear.
- I was reluctant to take this course because the charges were in my view serious. They raise issues that should be dealt with properly and promptly under the relevant law regulating this Brigade in the public interest. As I have said, Mr Smith acknowledges that ‘it is entirely appropriate and necessary that the MFB review these matters as serious when brought to their attention’. The evidence disclosed that Mr Smith had no computer of his own, and that he had used the MFB computer for private purposes, including receiving group communications in the material that the MFB complains of. The evidence also suggested that Mr Smith and Mr Johnson, both being commanders, had had some difficulty in coming to terms with the issues raised.
- The hearing resumed on Tuesday 31 March. Mr Smith did not appear again (although I thought I had seen him outside barristers’ chambers on my way to the court room). I was handed two lots of correspondence. One was from Davies Lawyers threatening Supreme Court proceedings and saying that consideration would be given to seeking counsel’s advice on a damages claim against the MFB and ‘the individual purporting to hear the matter.’ The other was correspondence with the union relating to a proposed hearing at the Fair Work Commission. Legal action of one kind or another was threatened or commenced in different state and federal jurisdictions. I said to counsel words to the effect that unless there was an injunction, I thought that I should proceed with the hearing. I was however told that the MFB agreed to the hearing being adjourned again. I wanted any adjournment to be as short as practicable, but I was persuaded to adjourn it for some weeks.
- The rehearing then had to be rescheduled on two other occasions because of issues like room availability or the work schedule of Mr Smith. The matter is presently part heard and listed for hearing on Wednesday 13 May at the County Court at 10.15 am.
- On 21 April, the solicitors for Mr Smith gave notice that they would ask me to disqualify myself on the basis of apprehended bias on the grounds stated in the letter. (The letter also referred to an application before the Fair Work Commission relating to ‘the proper forum for the determination of disciplinary proceedings brought against Commander Smith.’) They asked for their application to be dealt with as a preliminary hearing on 6 May or 7 May. On 23 April, Thompson Geer responded that any such application should be made at the hearing on the scheduled date. After correspondence, I agreed to hear the application as matter of urgency on Wednesday 6 May at 8am so as to hold the hearing date of 13 May.
- The hearing was scheduled at a time that would allow the lawyers for Mr Smith to apply to the Supreme Court for an injunction if they lost in their application. I suggested to the MFB that they might have an appropriate retired judge on stand-by.
- Mr David Grace QC appeared on the bias application for Mr Smith and Ms Dowsett for the Brigade. The matter was very capably and sensibly presented by each counsel, and I am most grateful to each of them. It was dealt with in less than an hour. Mr Smith was not present again, but a union official was. I counted nine lawyers in Court Room 1 of the William Cooper Centre yesterday morning.
- Mr Grace gave me some background and he gave me his understanding of the reasons why Mr Smith was not here on either of the two prior occasions. He told me that the object of the application to the Fair Work Commission was that the subject of these proceedings ought to be determined by that Commission and not this tribunal. When I said that that was a large claim, he referred me to s 26 of the federal act. He told me that Mr Smith was not contesting my jurisdiction but that that issue might be raised elsewhere.
- Ms Dowsett told me that the MFB contested the jurisdiction of the Fair Work Commission. There are therefore serious constitutional issues and there was some discussion of referring those issues to the state and federal Attorneys-General. I was also told that some issues in this case had been discussed up to ministerial level in the Victorian government and that Mr Smith did not appear on the second day because he had letter from the Chief of Staff of the Minister saying that the hearing would be adjourned. As well as constitutional issues, there are therefore heavy political issues. I was told that parts of the press were full of it.
- I was referred to Johnson v Johnson (2000) 201 CLR 488, 493; Re Minister for Immigration v Jia Legeng (2001) 205 CLR 507,  to ; Re Minister for Immigration, ex parte Epeabaka (2001) 206 CLR 128, ; Simjanoski and others v LaTrobe University  VSC 180; Robb v Nixon  VSC 310; Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; Victoria Police v Coroners Court  VSC 246, ; and Picos v Servcorp  FCA . Those cases give some guidance on applying the fundamental principle. It is to be applied with common sense to specialist tribunals or busy ministers, and the tribunal is not to be displaced unless the case for doing so is duly made. Some care needs to be taken when looking at preliminary comments in an ongoing hearing or remarks made with specialist knowledge. A tribunal is not to be displaced unless the case to that effect is ‘firmly’ established. The courts are there to protect the rights of people by due process and not to throttle the civil service or to scold politicians. The courts should discourage that ‘gotcha’ jurisprudence pursued by litigants longer in the pocket than on the merits – and I am not saying that is the case here.
- Since this is an application in the nature of a preliminary hearing, although the hearing itself has already taken place over two days, I will not look at the evidence of the material complained of in any detail. I should however say something about it in order to explain why in my opinion it is vital in the public interest, and in the interests of members of the Brigade, for these charges to be heard and determined according to law without delay. And when I refer to the law, I mean the law dealing with this Brigade.
- The charges allege that the material is offensive, sexist, racist and obscene. One set of photos shows a man whose genitals have been removed and stuffed in his mouth. The email comment is ‘Ouch!’ One shows a woman apparently trying to effect vaginal penetration with a form of fire extinguisher. One shows the rescue of a man whose car had gone down a well in, I think Saudi Arabia, and as I recall the conclusion is to the effect ‘That is why Allah gave them fucking camels.’ One asks: ‘What is the race that stops a nation.’ ‘Aboriginal.’ No one would want to spend time on this material, but it is difficult to think of any interest group or minority in this country that would not be seriously affronted, and possibly provoked.
- So, the evidence raises serious issues about the conduct of an officer of the Brigade. Then there is the significance of the rank of Mr Smith. In a case heard three years ago, I said of another commander:
A commander is a very high ranking officer in the MFB. There are only two between him and the top. This one told me that he had been paid more than twice the average wage and twice what this nation pays its secondary teachers in government schools. He finally accepted that the average taxpayer would be appalled to hear that someone in his position had collected $1300 for not turning up – and was sitting on the money. He had not considered refunding the money …
If a real question arises as to the conduct of someone in a position of trust, that person should say candidly what happened. If you want to put that as a legal proposition, the person trusted must respond in good faith.
Commander X did not do this. He behaved as if he saw the investigation as a kind of game, and as if his integrity were just a kind of bargaining chip. In his reaction to investigators, and in his evidence here, Commander X demeaned his office and rank and risked damage to the standing of the Brigade.
… any member of the MFB who prevaricates or plays games with investigators or in here can expect to be dealt with very firmly. If the initial conduct of this commander was bad, his response was worse. It suggests what might be called an attitude problem.
This question of attitude is the most troubling. These people work for terms and conditions beyond the dreams of most Australians, let alone people elsewhere. This man gets paid an amount beyond the comprehension of a meat-worker at the back of Kyneton, let alone a Sudanese migrant newly come to Melton. But this commander looks unable to accept the responsibilities that come with this high rank and great remuneration. The traffic looks one way. It is as if firefighters like this commander have been seduced by their own success.
- A commander is therefore a person of high rank. The higher the rank, the higher is the sense of duty expected and required of the person on whom the rank is conferred. That person stands in a position of trust and confidence to their employer. Any employee is legally obliged to do his or her job loyally and honestly. That means that they cannot use company property for private purposes, unless that use might fairly be characterized as incidental, or for improper purposes.
- This matter boils down to a simple issue of trust. In the light of the evidence of what was on the computer, and the response of Mr Smith to the charges he now faces, can he be trusted to discharge the duties owed by him to the Brigade as a commander?
- Then there was an express warning given by this tribunal about twelve years ago. One case involved a charge in 2003 against an inspector for having pornographic material on his computer. (The name of the man was Johnson – I am told that this was the officer advising Mr Smith in this case.) In the course of that decision, I said:
What is pornographic or obscene may be a matter of impression. As I remarked at the hearing, on the day when the hostilities commenced in the second Gulf War, a lot of people working in the city would be going home that night to stay glued to the television watching the fruits of civilisation and technology deployed, as some would see it, in the inevitable destruction of innocent people, about as obscene an exercise as you could get.
But some of the material was on any view pornographic, and we are not really talking about pornography. The real issue is trust. As I said, the offences took place over a prolonged period and contrary to express instructions given and acknowledged. The conclusion drawn by the Board is that Mr Johnson is not to be trusted in his present position and should be dismissed.
There is obviously a lot of force in this position. Mr Johnson is at a level – that of Inspector – where he cannot, as his counsel acknowledged, say this was mere recklessness. Mere recklessness may well be enough to get an inspector dismissed. But I think what we are looking at are errors of judgment and the question is whether they are such that there is no alternative but for Mr Johnson to be dismissed.
Later, I said:
Then there is the need to deter others. Let me make it clear, if it is not already clear, that any kind of abuse of computer facilities, particularly one involving pornography, is a sackable offence, and that the next person found guilty of this kind of conduct will be on express notice that dismissal is the most likely result. I recommend that something to this effect be placed on the warnings.
Under the ordinary process of our criminal law, Mr Johnson would be entitled to consideration for pleading guilty. You cannot discount a dismissal. It is all or nothing. I am not saying that anyone who pleads guilty cannot be dismissed, but where possible I would like to give recognition to people who facilitate the process. Mr Johnson is after all the first defendant to appear in this new process. He appeared on the first occasion in respect of charges laud recently and the matter was concluded in a little over two hours. He has not put the MFB to a waste of time or money.
As I mentioned, the real issue is I think trust and the need to vindicate the standing of the MFB and its standards of conduct. It can sometimes be difficult to police notions of trust in this context. Either Mr Johnson can be trusted or he cannot. If he cannot be trusted, he is not likely to be improved sufficiently after a holiday or suspension.
As it happens, the MFB did not get the dismissal of Mr Johnson in that case, and I am now told that the penalty imposed was reduced on appeal.
- None of these observations will come as surprise to the parties. They are extracted from a memorandum dated 17 September 2003 that I sent to the Brigade and the union reflecting on the first six months of a jurisdiction that had fallen into disuse. It contained some shockingly bad prophecies:
The procedure had not been working properly for some time. It is not surprising that there were some problems in getting it cranked up. People on both sides had to come to grips with a new kind of procedure. So did the Tribunal. The union wanted to test some questions in the AIRC and the Federal Court. Most of these issues have now been ironed out. In the past, disciplinary processes have stalled when ‘industrial’ issues led to an application to the AIRC or the Federal Court. It is most unlikely this will ever happen again.
So much for hope. And then this:
There is a recurring problem of legalism that I have referred to in a number of contexts. These matters should be dealt with as far as possible as issues between members of the Fire Brigade and not between lawyers. There has been too great a tendency – at times on both sides – to leave matters to the lawyers. Bush lawyers are to be discouraged whether they are qualified as lawyers or not, and reliance on technicalities is not encouraged either. Because of its history, our industrial law has been beset by legalism and technicality, but there is no need to import these factors into disciplinary proceedings. This message, I think, is getting through, but it is slow.
A number of the disciplinary proceedings arose out of a context that could be characterized as industrial. In truth, every disciplinary proceeding can be so characterised if it arises out of something done by members in the course of their duties and they are subject to industrial laws and industrial agreements. It is now accepted that the fact that a context may in some way be said to be industrial, or an industrial dispute, means nothing for the competency of this Tribunal, which is a disciplinary tribunal, to deal with the matter, or to the nature of the case as a whole. We can I think forget the industrial mantra.
Well, we now appear to have undergone a generational regression, but I set out those remarks so that people outside will understand the sense of déjà vu that those running the Brigade must undergo when the statutory process has to be cranked up again after a period of inaction. These problems were adverted to in Measure for Measure, but that happy ending looks a long way back now.
- Perhaps I might make a further reference to the obvious need for discipline in a uniformed force that may be called upon to respond to a terrorist attack. I also refer to the obvious need for the Victorian statute to give the CEO the power and duty to enforce discipline in his Brigade. Until yesterday, I had thought that it was axiomatic that only the Victorian parliament could alter that dispensation.
I have referred to what the principal Act says under the heading ‘Discipline’. This case is being dealt with under other provisions of the same law. We are considering disciplinary charges. In the operation of an organisation like the Brigade, the maintenance of discipline will ordinarily be seen as vital to the maintenance of its capacity and readiness to carry out its functions relating to fires and emergencies. It is difficult to envisage a fire brigade where this is not
the case other than a fire brigade run by the Marx Brothers.
It would simply not make sense to talk of an undisciplined readiness for a fire or emergency. It might make sense to talk of an undisciplined response, but that is the last thing that the Brigade or the people of Victoria would want. Terrorists prey on unreadiness and thrive on indiscipline.
It is therefore essential that the procedures dealing with discipline work promptly and effectively, and that they be seen to work promptly and effectively. This is very important. If the Brigade cannot run its own disciplinary procedures properly, how can it be expected to cope with an emergency?
By the disciplinary procedures of the Act, the Victorian Parliament has given the CEO, and no‑one else except his delegate, the duty to enforce the responsibilities the Parliament has put on firefighters. Since the process derives from the parliament, it can only be changed by the parliament. It follows in my view that the determination of discipline charges under the principal Act should, at least as a general rule, only be deferred for compelling reasons founded on convincing evidence. I would expect each party to be equally interested in obtaining a determination of issues with all due expedition. However that may be, the people of Victoria are in my view entitled to no less. (Hunter v. McGrath, 26 February 2003.)
- That is the background to the present application. I apologise for its length, but I do not want anyone reading this to have any misapprehension about what is at stake in this proceeding.
- Before proceeding to the present application, I want to say something about the role of the Fair Work Commission in these proceedings given the sad failure of my prophecy that it was unlikely we would see further applications to federal industrial tribunals or courts.
- Because I am not an industrial lawyer, I know very little about the Fair Work Commission, just as they know very little about me. This tribunal is of the state; that is of the Commonwealth. They occupy different worlds, in my opinion, as I have endeavored to show in my remarks above about the irrelevance of the ‘industrial’ mantra. The Commonwealth body focuses on the rights of employees, and the duties of employers. The state tribunal focuses on the duties of employees and the corresponding rights of the employer. One looks at obligations founded primarily in contract and regulated by statute; the other looks at obligations at common law attracted by statute. One is concerned with regulating employment at large and achieving industrial peace; the other is concerned with providing an essential service through a uniformed force.
- Above all, the Fair Work Commission seeks to arrive at agreements and settlements, and they encourage off the record discussions for deals. This tribunal is here to make findings of fact and decisions of law to maintain discipline not peace. To the contrary, our act envisages that the CEO will make a binding determination to resolve issues relating to discipline. That is why I said in my memorandum that you cannot in this tribunal have a ‘settlement’ as such and that the only way you can achieve a ‘satisfactory resolution’ of the issues raised by a charge under the act is for the statutory officer to hear them and determine them as expeditiously as All this has been dealt with here before. The differences between the state and federal bodies, with all respect to those who contend the contrary, seem to me to be both inevitable and irreconcilable.
- In short, industrial peace and the role of a uniformed force protecting public safety are very different things. That is why I say that the two tribunals are in different worlds – different universes. It would in my view make as much sense to ask me to sit on the Fair Work Commission as it would to ask one of its members to sit here. Neither of us would know what to do.
- As a result of what I am now told by Mr Grace, that opinion of mine may need some correction. At an appropriate time therefore, we need to consider the consequences of the overlap, to use a neutral term, between the two bodies, and the impact of that overlap on the due administration of justice under an act of the Parliament of the State of Victoria. I cannot help thinking that some industrial lawyers are prone to forget that the public has rights too. (Some see a similar tendency in some tax lawyers.)
- We can gain some insight into the differences in the two world views from the considered statement of Mr Smith in his letter of 17 October 2014 in which he gave his substantive reply to the allegations against him and made the concession that I have referred to above. As I said, Mr Smith contends that the matter should be conducted under Commonwealth industrial legislation rather than the act of the Victorian parliament that rules this Brigade. That contention, which struck me as large, gets much larger when you understand how Mr Smith and his advisers apparently envisage their preferred resolution of the allegations against him. This is how Mr Smith concluded that letter.
Having thought about this matter at considerable length, I have come to realise that the necessary change in attitudes in our workforce is not achievable purely by the publishing of a policy. The recent release of the Workplace Behaviour online interactive training program is a very positive development which I personally found beneficial and has assisted in changing my understanding of contemporary workplace values associated with Workplace Behaviour standards. People at my rank will be instrumental in driving the gradual cultural change that will be necessary and having now had such a direct experience, I feel I will have much to offer towards this organizational goal. I would hope that my MFB record and achievements over the last 35 years of service would afford me some consideration relative to this occurrence and that the explanations provided are accepted to enable a mutually satisfactory resolution of this matter.
No comment is required – but what would a fair-minded observer conclude might be a ‘mutually satisfactory resolution’ except one that involved a deal that avoided any hearing under the MFB Act and in which everything was on the table except for dismissal? If that is what an MFB Act-free zone looks like, some Victorians might be sorely troubled.
- The bias application before me was founded on two classes of statement made by the tribunal – statements in prior cases or in the memorandum referred to above, and statements made on the first two days of the hearing in the absence of the defendant, Mr Smith. The general nature of the remarks relied on by counsel for Mr Smith will I hope appear from my discussion of the argument. It was common ground that the question on the authorities is whether a fair minded lay observer might reasonably apprehend that the tribunal might not bring an impartial and unprejudiced mind to the resolution of the issues before it. If you strip out the double negatives, would the hypothetical observer reasonably apprehend that the tribunal might be prejudiced in deciding the question before it?
- Although I had asked how Mr Smith would plead to the charges, I was not told. I do not know what the range of issues might be on the substantive question of whether any breach of the act has been established. Nor was it asserted that any of the comments of the tribunal referred to was unfounded or untenable. The logical foundation of the argument therefore tended to be at large. I may here add that I had asked the reasons for the delay by Mr Smith in making this application, but I did not get an answer.
- The tribunal member takes the place of the CEO to enforce discipline under the act. In so doing, the tribunal will seek to define standards and issue warnings of the likely or possible consequences if those standards are not met. To go back to the memorandum:
The primary function of the Tribunal is of course to enforce the law relating to discipline and to enforce and, as required, set standards. It is part of this function for it to declare standards in the sense of saying what has to be done for standards prescribed by the law to be met. The Tribunal has I think been of use on a couple of occasions in being able to declare what the position is in respect of standards, for example, the proper response to an alarm of fire. In this way the Tribunal acts as a kind of audit on the processes in place. The Tribunal itself may not be able to contribute much and it will all depend on the quality of the contributions it gets from senior officers. It can also assist in monitoring these processes. For example, issues have arisen in relation to counselling of members after traumatic incidents and protocols in relation to attendance at charity functions that I think received some useful examination. Additionally, the Tribunal is in a position to lay down general guidelines in relation to the need for discipline in an emergency service which is subject to a command structure. These are I think positive contributions that can be made by a tribunal which is seen to be independent …
Without wishing to harp on the point, it is a little difficult to envisage the Fair Work Commission performing those functions. What if a firefighter belts an officer, or vice versa – can the culprit avoid being dealt with by the CEO under the act by invoking the powers of the Fair Work Commission? Who decides what cases the CEO can take? I was originally appointed as the delegate by a CEO who said that it was more important that he was ensuring that charges were in fact laid than that he personally should hear them. I can now better appreciate his prescience.
Because of the history of these proceedings, and the fact that they have not been invoked much of late, I have in a number of cases felt constrained to say that although these particular defendants would not get the maximum appropriate penalty, the next ones would. It is important that people understand that I meant those observations. As an example, and it is only an example, someone found guilty in the future of refusing to obey an order would almost certainly be facing dismissal and could on no account expect anything like the extreme leniency shown in the only case to have come up so far.
- In my view the general comments of the tribunal relied on by Mr Smith come within the kind of guidance that people would expect from a body like this, and certainly in a body like the MFB, where people demand chapter and verse on every aspect of their working life, and protest very loudly indeed if something happens that has not been the subject of proper advance notice, in black and white, and in triplicate. It may be the most over regulated institution on the planet. It and the union between them may be the most litigious combination in our nation. As I remarked, Sir Daryl Dawson told me that he did a lot of work in demarcation disputes for these litigants in the 1960’s. There is probably a real ghastly link between the overlays of regulation, and the lawyerism that spawns litigation and is now approaching its masterpiece here with something approaching forensic mayhem.
- Of course, neither the CEO nor I have the power or the will to lay down the law, and of course each case has to be considered on its merits. I see no reason why any member of the public would come to a different view in this case.
- It is in my view apparent that the comments made during the hearing were made with the knowledge and intention that they would be brought to the notice of Mr Smith. At least one was made to get him to appear or warn him of the possible consequences if he did not do so. The examples of the evidence that I have referred to above will be enough to reveal why some of this material cannot be sensibly discussed in antiseptic terms. Is ‘depraved’ too strong for some of this material? The instance of American employers is one that would have to have been disclosed, and you would have to have come from Mars if you had not noticed a recent upsurge in public interest in cases of the misuse of public property for private or improper purposes.
- Since all the comments were made on the footing that eventually Mr Smith would appear or at least eventually get a hearing if he wanted one, they do not look to be in a different case to the kind of discussion floated in any adversarial proceeding. Fairness requires that if something is troubling a tribunal, it should put it out there – at least since a New Zealand royal commissioner found himself in the Privy Council for saying that he had listened to an orchestrated litany of lies – and he had not warned the alleged liars.
- And the fact that a tribunal has reached an opinion does not entail that the tribunal will maintain that opinion in the face of the contrary case. That proposition looks sound in both logic and principle. It is also covered by authority. In the second case I was referred to, Justice Hayne (at ) referred to the observation of a 19th century English judge that preconceived opinions do not necessarily constitute bias, and that even expressing such opinions does not constitute such bias, because ‘it does not follow that the evidence will be disregarded.’ That proposition in my view is central to this present application.
- It is not surprising that the tribunal would express concern at the repeated failure of any officer of the MFB to attend a hearing and at the reaction of taxpayers to the legal and administrative costs being incurred as a result of the apparently considered actions of this accused. The tribunal has to proceed on the footing that the person charged is responding with the benefit of considered objective legal advice. (He had the benefit of one of Her Majesty’s Counsel yesterday.) That being so, it may be appropriate to remind the person charged and his advisers of the potential consequences of choosing some course other than the cooperation that had been signaled by the concession by Mr Smith that he had engaged in offensive behavior in breach of the relevant policy.
- Any lawyer of any relevant experience knows that the kind of advocacy required before a professional or disciplinary tribunal may be very different to that generally practised by criminal lawyers or industrial lawyers. Elsewhere you may be able to claim the right to silence or to indulge in subtle or rough-house tactical warfare, but in a tribunal where the issue is one of professional character and trust, any such forensic manouevres may be at best dangerous. Every now and then, such a tribunal may see fit to issue a reminder to that effect. This tribunal has, sadly, had to deal with a lot of bush lawyers in the past.
- It may help to put this application in context if I set out other comments made in the course of the hearing that were not referred to in this application.
He might be able to get a rehearing here as far as I know, but he would certainly get one on appeal.
There are lawyers and lawyers … There are lots of bush lawyers.
Someone who gets vilified as part of his job at least understands what it’s like to be vilified.
The law had always been that if you use equipment of the brigade in such a way as to bring the brigade into disrepute or to make that possible, then you are breaching your obligations to the brigade.
That email [the fucking camels email] which is grievously insulting to people of Arab background, and to people of the Muslim faith could lead to real violence, couldn’t it? … This is eleven months before the murder of those journalists at Charlie Hebdo … it’s been known for some time that people who mock Islam do so at their own risk.
… it’s unlikely that there’s going to be a substantive issue as to whether or not the charges have been proved …
If he wants to have a lawyer here, he better get on his bike and have that lawyer instructed.
Am I to make anything of the fact that the lawyers have threatened one course of action and adopted another?
- No one knows how this case might unfold. Only one side has been heard. The upshot will turn on the case presented for the defence. It is a commonplace that one story is good until the other heard. You can find remarks to that effect in the judgments of Sir Owen Dixon and in the Old Testament. But that obvious fact is not the answer to the question now before me.
- The application on the ground of apprehended or objective bias as I see it has to be determined in the light of all the matters that would be known or inferred by someone who read the transcripts and memorandum referred to. Doing the best I can to evaluate the response of ordinary people in that position, I am very far from persuaded that they would conclude that the tribunal might not bring an impartial and unprejudiced mind to the resolution of the issues before it. On my knowledge of what goes on in the outer – Bay 13, to those who are old enough – or the terraces at the Storm, I don’t think people there would conclude that the tribunal was prejudiced against Mr Smith or that Mr Smith would not get a fair hearing when the time came for him to prevent his case. Accordingly, in my opinion the application on behalf of Mr Smith fails, and is refused.
- Only God knows what the hypothetical observer might think if told what I have now been told. The tribunal got cranky with Mr Smith for not being there on day one, but Mr Smith was apparently under the impression that his federal application had sterilized the proceedings brought by the Brigade. Then on the second morning, the tribunal member breezes past Mr Smith standing on the steps of Owen Dixon Chambers and thinks that he is looking remarkably serene for a man who has just a sabre rattled before him, but Lo!, Mr Smith was not on his way to the tribunal, but is standing there with a letter from the Chief of Staff of the Minister saying that the hearing would be adjourned. So the tribunal member gets even crankier with Mr Smith, and this time with the Brigade also. And all because wires got crossed. It does not bear thinking of how the man on the Storm terraces would respond to this sad tale. It would not be printable here. If he were told of the costs and the lawyers involved, then, in NRL terms, things could get really ugly.
- I have indicated that if I reached the decision that I have now reached, and Mr Smith wanted to challenge it in the Supreme Court, then I would expect to proceed with the hearing on Wednesday 13 May unless I was directed otherwise by that Court. It hardly becomes me to invite such a challenge, but it would subject a struggling and beleaguered statutory process to the cauterizing glare of public scrutiny by a superior court, and, if I may be forgiven the phrase, that may be just what the doctor ordered.
- It will I think be clear to informed observers that this tribunal, and perhaps this Brigade, has seen better days. This is, I think, the first case for about three years and just the second case in five years. The sound and fury that now meets this rejuvenation of the process bears a sadly eerie resemblance to that which greeted the rejuvenation about twelve years ago. Even some of the faces remain the same. I make no comment on previous administrations, but it is clear to me that the present CEO and his staff are determined to fulfill their obligations under the statute, and to make this disciplinary process work. I am equally determined to do all on my part to the same end, and I would hope that anyone with any interest in the Brigade has the same objective.
- I do not think I need give any other direction now. I am available on short notice through the administration if any direction is sought. Otherwise, I will continue to hear the case at the time and place we have stipulated.
Owen Dixon Chambers
7 May 2015
In case in the course of this small sea of litigious controversy, the charges themselves come to be heard by someone else, who might have difficulty understanding the forces that can generate this kind of tension, I set out below some extracts from the memorandum I have referred to above on the subject of class warfare that was so bad in 2003 and now, I fear, may be just as bad. People reading this should not take it lightly. I doubt whether people in government know the stress that these class wars put on those in head office. That is why I have seen recurring turnovers in that office in my time. People just give up and leave because they cannot stand it any longer. This is an appalling human problem, if nothing else, and it does not reflect well on any of us that it has been suffered to go on for so long.
In the course of the hearing I heard a degree of evidence – again with misgivings about its relevance to me – about the extent of the industrial problems facing the Brigade, and the history of scabs in the Brigade. Since I have heard all this evidence, I am going to say something about it. It was not good to listen to. The secretary of the union accepted that there had been a class war going on for ten years. He said that the scabs in the 1950s carried the brand to their graves and so will the present lot.
Sharan Burrow [the ACTU President] does of course have the experience and standing to see this problem in its context. You could not but be impressed by her conviction and her concern. She said that the relationship between the MFB and the UFU is dysfunctional. When 1 asked her what she meant by that, she said that there were elements of hatred that she had rarely seen – the word used was hate – although she thought that the contact was better at the operational level.
It is not surprising that things are so bad if as a result of a class war people carry brands to their grave. They do not go gently into that good night – the innocents, as they see themselves on each side, will just rage, rage and rage against the dying of the light. Both the MFB and the UFU will no doubt reflect carefully on the assessment of the ACTU President: she is uniquely placed to make the diagnosis. In my own observation, the hate is not so much generational as tribal, and I have seen the faces of men on either side cloud over with puzzlement, anger or despair when confronted with it.
But I was repeatedly assured that none of this had any impact on the performance of the Brigade of its essential functions. That is a proposition which, despite its august proponents, defies belief. I do not know why the point was pressed, but it was, and I will deal with it. I reject it.
Secondly, there is the evidence of common sense and common experience. The MFB did not come from Mars. It depends on co-operation. How well do you co‑operate with someone you hate? Until recently I was a partner in a firm that had a staff of 1,500 and a turnover in excess of $250 million (compared to a staff of about 2,300 and a budget of about $190 million for the MFB). If I had been told that a whole line of thirty managers was hated by the staff under them, I would have been terrified, not just over the capacity of the firm to deliver its product, but to survive. I am sure that 200 other partners would have felt exactly the same.
I cannot believe that the officers and firefighters of this Brigade deserve all of this. This Brigade boasts of being a happy family and plainly it is not. The people I have met are all decent people who would not wish to remain the prisoners of history. They must believe that it is time for people on both sides to come out of the trenches dug in another century and to abandon a mind-set caste that surely has no place in this country. It must be time for the hate to stop. There are, after all, many who still believe that vengeance belongs to someone else; some see that proposition as a major premise of the new part of the major religious text in use in this country.
But even if it is correct to say that there is no evidence that the industrial strife impairs operational efficiency, as the union and the ACTU contend, does this mean that a corporation does not have to worry about industrial strife unless there is a measurable effect on productivity (a proposition not contended for by the union or the ACTU)? Such a response would be a prescription for failure in the public or private sector, and it would in my opinion be wrong – quite possibly unlawfully wrong – for those responsible for corporate governance to proceed on that basis. Something has to be done.
Mr Grace was at pains to point out that the allegation was not one of actual bias. If anyone wants to know my views about the governance of statutory tribunals, or of the role of an advocate before them, or of my attitude to this tribunal in particular, they can find it in chapter 22 of a book called Confessions of a barrister. It was published about twelve months ago on Amazon and Apple when this tribunal was quiescent. For ease of reference, I append most of it here.
When I came back to the bar, I was looking forward to having time to do my tax cases. My secretary, Lisa Mulcahy, who is as good a secretary as can be found, and who was both admired and feared by the press, had learned to expect the worst when I staggered back on a Friday at about 2.15 pm chewing on a Four ‘n Twenty, and desperate to get out a draft set of reasons that I could look at over the weekend. Gone were the days when I would do the decision in my car while one daughter was at ballet at Essendon or the other was at horse-riding at Kew. The pay was piddling, but that was not the point. I was under pressure in the firm to drop the brief because it took a lot of virtually free time, but money was not the main factor.
Apart from a sense of professional obligation, and a curious kind of gratitude, the position might offer some standing and a platform for building a practice, together with arbitration, mediation, and legal advice on corporate and defamation issues. I was about to publish my third book, Law for Directors. (The first had been The Journalists’ Companion that succeeded an MUP book by Geoffrey Sawyer; the second had been The Arbitrators’ Companion.) I certainly did not want to go back to court – it is just so frustrating watching others – but I was keen to continue the work in my little tribunal. I was looking forward to a useful autumn.
I have referred elsewhere to the grubby little coup by which I was dismissed without notice after 18 years. Two other members of the tribunal feared a loss of work in personal injury cases. Without notice to me, the President, or the Revenue, they hijacked the Taxation Division. The crown was as outraged as me – the till was in the hands of people who did not know what they were doing – but the President, a politically appointed judge who has since retired young, went along for the ride. I prepared a writ against the government, but my friend and colleague Robert Heathcote advised me not to issue it. I think that that advice was right, but it has left me with a sense of grievance that would do justice to a lapsed Irish Catholic member of the Australian Labor Party.
I referred my case to the Chief Justice. That court has an historical role, one that goes back many centuries, for the way in which inferior tribunals are run. That court is also the guardian of our administration of justice in general. My complaint related to the administration of justice, and the crown was, if anything, as dirty on what was happening as me, and a justice of the Supreme Court was involved. I was therefore saddened to get only a holding response from a court official, and no more. I will not speculate on the extent to which the political nature of the appointment at either end may have led to this inaction, but I will say just one more thing about this body with this silly name and this most unfortunate reputation. It is mainly staffed by part time or limited tenure civil servants, not judges – but we have a justice of the Supreme Court in charge of them.
This is hopelessly wrong juristically and managerially. We do not have judges running the railways. We do not even let them do Royal Commissions – all for the reasons that they should not run VCAT. It is just a matter of time until they hit a political fence, as happened here in the first Taxation Division – and tax is if nothing else politically sensitive. You cannot have Supreme Court judges in a position where they may be sued, albeit in the name of the crown, for wrongful dismissal in managing part of the civil service. And you are not going to attract good lawyers to the Thirds or Fourths. The Supreme Court needs to get out of it; the position is not helped when the County Court sends down its cast-offs.
The last case I heard at VCAT showed what happens when inanity prevails. A Sicilian migrant went from being a butcher to a baker – he did not like the cool room – and he astutely bought land in the corridor. By the time he got to me, he was worth north of $40 million. He distrusted lawyers and all professionals. Was he now a farmer? Someone had made directions for witness statements, which are anathema to me, and all the ghastly folderol indulged in by lazy judges. The Sicilian filed a statement in impeccable English about trusts and companies. The first thing he did in the witness box was to ask for an interpreter! But he knew his occupation: FARMER. Since I thought that that answer begged the question, I asked the interpreter what was the Italian word for ‘farmer’ and he said there was none.
This sad little farce reminded me of Derryn Hinch not taking the oath before Peter Murphy. Could lawyers possibly devise a better way of making a fool of their client? Then I remembered a case where Julian Burnside successfully argued that a taxpayer had waived legal professional privilege by referring to his legal advice. When I got to see the advice, my eyes nearly popped out. The lawyers had put their clients up to outrageous whoppers. Then I recalled a tax case that Bill Ormiston did as a junior while I was reading with him. Bill was for the crown and the question was whether a man should be assessed on the capital gain on land he had bought in the corridor. He said he had bought it for picnics and horse riding for the kids. Sadly, his bank manager’s very full diary notes told a different tale – he told the bank that this was a rolled gold investment opportunity on which neither they nor he could lose.
I did try my hand in a comeback as advocate once. That once was enough. I acted for a cattle breeder who got thrown out of the breeders’ association. His crime was to be smarter than those who threw him out. He was keen for me to appear in the appeal, so I reluctantly did. The appeal was a kind of arbitration conducted by my friend, the late Frank Costigan. I thought I might go mad. It went for three bloody days. I never did find out what my bloke’s real ‘conduct unbecoming’ was. Then Frank sat on the decision for weeks, and handed down a decision for which he charged six days’ preparation. We won, but that was the end of advocacy – it was very bad for my blood pressure.
That left the Fire Brigade. Their statute left the CEO to hear disciplinary charges. The CEO wanted to be involved in laying them, not hearing them. No one had been successfully charged for years, if ever. I advised him to delegate those powers. His lawyers said that he could not. I gave different advice, which the Brigade accepted. They asked who should do it. I asked a retired County Court judge. He accepted, but then declined when the government said that it would affect his pension. The Brigade asked me to do it, and I accepted.
There was a far bigger mess than I had inherited in tax cases. There was a kind of institutional industrial disease. No one ever got to trial. They would just put up some nonsense from a tame doctor. They had to learn that nothing short of a vigorously cross examined doctor would get an adjournment. As for ‘stress’, if someone was too stressed to come to us, we would go to them – I could just imagine pairs of eyes peering through the venetians as a cavalcade of police cars and fire trucks rolled up a street in Broadmeadows.
The other problem was the lawyers. I was copping the bush lawyer component of the industrial bar and the criminal bar. I wrote a paper called ‘Bush Lawyers.’ They have an answer to everything except the question. The industrial people were just away with the birds talking juristic nonsense. The criminal people were into game-paying and head-kicking, and both blow up in your face in a disciplinary tribunal.
But the worst problem was the class war, something from another time or another place. Sharan Burrow, then the President of the ACTU, and a most impressive woman, gave evidence before me in one case. I was very relieved when she said that this was the most poisonous industrial relationship she had seen.
One case involved an allegation of ‘scabs’, the most lethal word in the industrial lexicon. We got into the third day – two too many. Counsel for the union was cross-examining the investigating officer about the investigation. How was this relevant? The act says there has to be an investigation – before someone was charged. That is hardly surprising. Then the horror of it struck me – if counsel could show there had been no real investigation, he would then submit that the charge had not been properly laid. This was the sort of nonsense that was being spruiked. Pure bullshit.
During a break in play, I ran into the union secretary. I said I could give him a quote. He asked what I meant. I said that if his bloke went down, I would not fire him. The matter was all over an hour or so later. I understand there may be problems with quotes, but something had to be done to stop this effusion of public money.
I told the Brigade that I would talk to the Union. I thought that they should get to meet someone who had such power over their members. I thought that management might try to nobble me and that fairness required that the union have an equal opportunity to try to do the same. I had the secretary and president home to dinner, in what became a very boozy affair. The secretary had a very big public profile, but he wanted me to be inspected by Sharan Burrow and a big mover in the Labor Party.
In the upshot, the union bought into the process and managing the problem, and I felt as comfortable in talking to them as to management about general issues before the tribunal – such as trying to reduce the role of lawyers, and trying to stop ‘lawyerising’. I told the union secretary at the beginning that there were only two rules – no verbals, and no discussion of individual cases. He has observed both of those rules.
I was invited to the annual dinner dance of the union at the San Remo Ballroom in Carlton after the then CEO had been dropped off the list. He then rang me while I was in the bath listening to Haydn’s Nelson Mass. He asked me not to go. I said that I had accepted and that I had arranged to take a former articled clerk. This was Karen Knowles who was also a singer. This did not improve the humour of the CEO. I later wondered why the firies were asking Kas for her autograph but not me. Since then I have got on very well with both sides, which is as it should be.
The relative peace did not mean that I was not appealed from as well as getting sued in the Federal Court, the Supreme Court, and some curious industrial outfit, but nothing much seemed to come from any of my beneficence to the bar.
We got through the backlog, and established sensible ways to get through the business. One morning I actually had a case with no lawyer on either side, and I am sorry that there is not more of this. From time to time I would hear mutterings that I was not being hard enough. I will just mention one case.
A fire truck on display at a charity day for kids dying of cancer rolled over on TV and there was embarrassment and anger at Brigade HQ. They charged the man driving – who had surrendered the wheel to a mate – and the officer in charge – who was nowhere near the vehicle when it fell over. I saw no case against him and I dismissed that charge at the close of the evidence of the Brigade. I had to give a suspension to the man who should have been driving – his name was Whelan.
During the hearing, I got them to take me for a ride on one of these vehicles with both counsel. As we got going, we passed a handsome woman who had been in the tribunal room. I was told that she was the wife of the officer who had been charged – and the mother of nine children! When the hearing resumed, I asked counsel for the Brigade what penalty he would seek if the charges were proved. Dismissal. For both? Yes. I wondered how this would go down in the people’s daily – a fire brigade officer, with a stainless record after 20 years, and the father of nine children, had been fired for giving of his spare time to attend a charity for kids dying of cancer, for an accident that he had nothing to do with. I also wondered how long it would be before the comrades returned to work.
The case of Mr Whelan was hardly less interesting. He had grown up with the guy that he gave the wheel to. They had been garbos together. They had both therefore had experience in driving large heavy vehicles. But while Whelan went from being garbo to firie, his mate went into business and became very successful and very Smith. He also became committed to charities. He gave evidence before me, and he was very impressive.
I met both these guys twice later. One was at a football presentation that the union had invited me to. (It was a VFL function; the comrades are not toffs.) The secretary was late – as usual. I was directed to a table. The guy next to me asked if I knew who he was. No, mate. It was Mr Whelan! I cursed the secretary for being late, but Mr Whelan and his mate (the charitable ex-garbo) and I got on very well.
The second meeting was at the greatly favoured San Remo. It was a packed house. It was a living wake held in honour of Mr Whelan before his expected death from cancer. I told him that I was honoured to have been invited, and I meant it. It was a very generous and decent gesture of both Mr Whelan and his mate – and the union.
Otherwise, now, I enjoy giving legal advice to Black Inc, which publishes The Monthly and Quarterly Essay, and books, including, I hope, one written by Jeremy Cooper and me on superannuation. I have had five books published, and I have about ten on the rack that I want to get out in one way or another. I dedicated my most recent book to the memory of Jim Kennan.
Cliff Pannam has written as much as me, and probably has a similar sales record. Sweet Fanny Adams. I may suggest that we jointly get on a sure fire winner, the shortest legal text-book ever:
Gibson and Pannam
On Gift Duty
From Beginning to End – In One Line
Advenit. Venit. (It came and it went.)
Since Cliff is just coming off the high of the trifecta in the Melbourne Cup, our luck may be in.
I also appear to be at risk of developing a practice in acting for members of the clergy. These cases are likely to be even more sensitive than claims against lawyers, because you may have a difference in vocation that is literally out of this world. I have been appalled at some failures by a church to stand by their man because they thought that their ‘brand’ might be impugned. These cases, like discrimination cases, can be both sensitive and hard. I am most grateful for the counsel of Peter O’Callaghan in these – Peter’s contribution to our community, not to say our profession, is simply and sadly not understood by what passes for our press.
If I had my time again, I do not think I could ask for more than what I have been given this time around, but so mighty is my regard for people like Oliver Wendell Holmes, Roscoe Pound, and F W Maitland that I would like to have been a legal or constitutional historian. As it is, I look forward to my thirtieth anniversary of hearing cases, and I see no reason why I should not just keep going in one way or another. Retirement looks decidedly off.