OPERATING PARAMETERS FOR APPEAL

PANELS

Public Sector Management and Industrial Relations Group

CHIEF MINISTER’S DEPARTMENT

February 2006

Operating Parameters for Appeal Panels

INTRODUCTION

1. This document provides general guidance to members of Appeal Panels established under Agency Certified Agreements.

2. The document primarily supports the operation of Appeal Panels established under the Template Agreement of Core Conditions (Section M of the Agreement), although agencies could adapt these principles to panels established under occupational specific certified agreements (see paragraphs 11 and 12).

Note: The Appeal Panel process is separate to Internal Review procedures (Section L of the Template Agreement).

3. The document provides: background information on the ACTPS legislative

employment framework; the scope and establishment of the Appeal Panel; members’ role and duties; and guidance to Panel members on consideration of appeals

and procedures.4. This document is not intended to replace relevant legislative

provisions. Panel members must read this document in conjunction with relevant legislative provisions (see further paragraph 6).

5. This document uses hyperlinks to assist you to view referenced material quickly; (a hyperlink looks like this: hyperlink). If you are viewing this document in hardcopy form there is a list of references at Attachment   D.

ACTPS LEGISLATIVE FRAMEWORK

6. The main elements of the ACTPS legislative framework include: Public Sector Management Act 1994 and Management

Standards (PDF file); Agency Certified Agreements:

o Template Agreement comprising Part 1: Common Core Conditions and Part 2: Agency specific conditions; and

o Non Template Agreements (occupational specific agreements); and

Awards.

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7. The Human Rights Act 2004 (ACT) requires that all ACT legislation, including the PSM Act, must be interpreted consistently with human rights as far as possible. Relevant human rights include recognition and equality before the law, protection of the family, privacy, and taking part in public life (having equal access to appointment in the public service).

8. Other laws such as those dealing with discrimination, occupational health and safety, workers compensation and privacy also regulate aspects of the legislative framework.

Public Sector Management Act and Management Standards

9. The Public Sector Management Act 1994 (the PSM Act) establishes the ACTPS and sets out general provisions (e.g. values and principles) and primary employment issues including categories of employment, promotion, transfer, appeal and review mechanisms and discipline.

10. The PSM Act is supported by the Public Sector Management Standards (PDF file) (subordinate law). The Standards must be consistent with the Act. If any inconsistency arises, the PSM Act prevails.

Agency Certified Agreements

11. Certified Agreements are made under the Commonwealth Workplace Relations Act   1996 (the WR Act). While ACTPS certified agreements are agency based, government policy requires that agencies adopt a centrally negotiated Template Agreement as part of their agency agreement. The Template Agreement forms Part One of the agency Certified Agreement and includes a set of core conditions for staff in the administrative, professional, technical, general service officer and ambulance classifications. Part Two of the agency agreement includes agency specific conditions.

12. Occupational specific agreements, which cover nurses, doctors, teachers and fire-fighters are not required by government policy to incorporate the Template into their agency agreement but may adopt all or part of the Template Agreement.

13. Any Australian Workplace Agreements (AWAs) are also made under the Commonwealth WR Act.

Awards

14. Awards are made under the WR Act. Under that Act, awards can only contain specified allowable matters and are limited to minimum entitlements.

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Legislative Framework Hierarchy

15. The PSM Act and Management Standards (PDF file) are subordinate to Certified Agreements and Awards. This is because Certified Agreements and Awards are made under Commonwealth laws they override inconsistent ACT laws.

16. The following diagram represents a basic view of the employment framework.

Workplace Agreements (including current CertifiedAgreements and Australian Workplace Agreements)

(Fair Pay Commission Standards)1

Awards

Public Sector Management Act 1994

Public Sector Management Standards 2006

17. The framework can be complicated and often requires that all of the above sources are consulted.

18. For those appeals under the Template Agreement (see paragraph 19), the Agreement deals comprehensively with those appeal matters. This is because the Template Agreement overrides the PSM Act and Standards (PDF file). As such, the agreement is the primary source of authority for promotion/higher duties, discipline, under-performance and eligibility benefits reviews.

ESTABLISHMENT and SCOPE OF APPEAL PANEL19. The Appeal Panel is established under clause 90.3, Section M of

the Agency Certified Agreement (Template Agreement of Core Conditions).

20. Under clause 88.2 of the Template Agreement, the Appeal Panel is able to review the following matters:

Promotion or temporary performance decisions below SOG C level (for periods more than six months) affecting the employee where the employee was an applicant (excluding decisions by joint selection committees);

1 Until the first Fair Pay Commission determination, expected in Spring 2006, the full effect of the Fair Pay Commission Standards in relation to the legislative employment framework is unknown.

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Decisions arising from disciplinary action under Section K of the Template Agreement, except a decision to terminate a person’s employment;

Decisions arising from under-performance action under Section J of the Template Agreement, except a decision to terminate a person’s employment; and

Decisions taken in relation to employees’ eligibility for benefits under clauses 100 to 102 of the Template Agreement, the amount of such benefits, the amount payable by way of income maintenance under clause 104, and the giving of an involuntary notice of redundancy or notice of reduction in classification under clauses 102 and 103.

PANEL MEMBERSHIP 21. The Appeal Panel comprises:

A Chairperson drawn from a list approved by the Commissioner for Public Administration, in consultation with unions2. The Chairperson is chosen from the Commissioner’s list on a rotational basis, unless a conflict of interest is identified or the chosen person is unavailable. The Commissioner has approved these persons based on their experience in conducting employment related reviews.

Employer nominee. The employer should nominate a person who has appropriate experience relevant to the appeal matter, and has an understanding of broader legislative, management, human resource policy and practices.

A person nominated by the relevant union. The relevant union should nominate a person who has appropriate expertise relevant to the appeal matter and an understanding of the workplace/industry.

22. The Template Agreement prohibits a person from being a member of the Panel if that person was involved in the decision that is the subject of the application.3

The Convenor of Appeal Panels

23. The Chief Executive must nominate an employee in the agency to be the Convenor of Appeal Panels. The Convenor supports the Panel, with duties including:

setting up the Appeal Panel in a timely manner;

2 For a promotion appeal, agreement of the unions(s) is required.3 See clause 90.4 of the Template Agreement.

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providing existing evidence on which the original decision is based to the Panel members, appellant and employer in a timely manner, including any additional evidence submitted during the course of proceedings. The Convenor should keep create and maintain appropriate records (see Attachment B) in providing evidence to the Panel.

undertaking administrative arrangements, as required by the Chair, for meetings (e.g. venues, liasing with parties).

providing advice on matters of procedure and policy related to the legislative employment framework, at the request of the Chair.

24. The Template Agreement provides that the Convenor will only be a member of the Panel if the appellant4 agrees. However, best practice suggests that if a Convenor is also a Panel member, the Chief Executive must be satisfied that there are procedures in place to ensure a clear delineation between the roles of the Convenor and the Panel member.

25. The Convenor has a duty to the Panel, and in general is not subject to any direction from any other person about matters pertaining to the Appeal Panel process other than the Chairperson. This is because Appeal Panel proceedings are private and independent processes designed to promote accountable and transparent decision making in the ACTPS. Any direction by another person that could influence (or even perceived) to influence the process would not be a reasonable direction under the Code of Ethics set in the PSM Act, and could compromise the integrity of the process.

26. This does not prevent the Convenor from seeking advice from staff in their agency about correct procedures and processes to support the Panel. The Convenor will need to consider whether implementing a direction could compromise the integrity of the process.

MEMBERS’ ROLE AND DUTY TO APPEAL PANEL

27. Members of the Panel have a primary duty to the Appeal Panel.28. All Panel Members must act in all Panel proceedings with

fairness, equity and impartiality, independent of other interests, including those from the body that has nominated them, for example, the employer or union. If a member feels pressure from any body or person they should declare it, in writing, to the chairperson.

4 Applicant is the term used in agency certified agreements. For consistency in the Guide, we have used the term appellant.

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29. The chairperson may seek advice or assistance from the Public Sector Management Group (see paragraph 68) if they require advice about conflicts of interest and related issues, and are unable to resolve the issue at departmental level.

Impartiality and Code of Ethics

30. Members should consider before they accept a role on the Panel whether they are able to bring an unbiased and independent mind to proceedings. If not, or if they are in doubt, the nominee should decline the nomination.

31. There are often issues where members will know, or be aware of, one or more persons involved in the matter (e.g. a witness). This does not automatically prevent the person from participating on the Panel but each case should be considered on its individual circumstances.

32. Initially, questions of possible bias or conflict are for members’ own judgement and conscience. If the person is in doubt, this should be brought to the attention, and discussed with the chairperson. If the chairperson has concerns (that cannot be resolved at department level), they should seek advice from Public Sector Management Group (see paragraph 68).

33. Overall, if members consider that the conflict of interest (e.g. current or past association with a person involved in the appeal) inhibits the person from bringing an independent mind to the case, they should withdraw from the Panel, and advise the Convenor immediately so that a replacement may be found. This conflict of interest could be a real, apparent or perceived.

34. Before proceedings commence, Panel members should complete a Declaration of Impartiality and Code of Ethics (Attachment C) to declare they have no conflicts.

35. For those employees engaged under the PSM Act, the Code of Ethics (section 9 of the PSM Act) requires employees to declare any conflicts of interests (among other ethical duties) in relation to their duties, in this case serving on the Panel.

36. Members should also be aware of their duty to ensure that while proceedings are in progress no perceptions of conflict are created.

Confidentiality

37. The scope of discussion needed to make a recommendation in any appeal will vary according to each case. However, it is essential that all discussions remain strictly confidential.

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38. Maintaining confidentiality: minimises the risk of harm to relevant parties; reduces the opportunity for evidence to become

contaminated; encourages witnesses to be forthcoming with evidence;

and protects Panel members from potential legal action (e.g.

defamation).39. The Terms of Reference (see paragraph 50) and written

recommendation of the Panel should only be released to the appellant and decision maker (i.e. it is not otherwise a public document, unless there is a legal requirement to release). In the case of a promotion appeal, the Terms of Reference should also be provided to the person who is being appealed against.

40. The Panel must also ensure that any other persons who are involved in the appeal understand their obligation to keep the details of the appeal confidential (e.g. witnesses in gathering evidence).

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CONDUCT OF AN APPEAL

41. The procedure for considering an appeal is within the discretion of the Panel, but subject to the Template Agreement, and in particular the provision of natural justice and procedural fairness.

42. Clause 91.1 of the Template Agreement sets outs:In considering an application, the Appeal Panel must act in accordance with the principles of natural justice and procedural fairness. Proceedings of the Appeal Panel are to be conducted with as little formality and as quickly as practicable consistent with a fair and proper consideration of the issues.

43. The Panel should avoid an overly legalistic approach. The appellant or other parties may bring to a hearing a union representative, a friend or colleague for the purposes of support. Legal representation may appear only on behalf of parties, with the consent of the Panel (clause 91.2 of the Template Agreement). The Panel should consider each application for legal representation on its merits.

44. Under clause 91.3 of the Template Agreement, the Panel has the power not to investigate the application or if it has commenced investigating the application, not proceed further, if, in the Panel’s opinion:

the application is frivolous, vexatious, or not made in good faith;

the employee may apply to another person or authority about the application and it would be more appropriate for it to deal with the action; or

an investigation or further investigation of the application is not warranted.

45. While the Panel has responsibility for its own procedures, members should, in considering any procedural matter, keep in mind:

the stresses upon parties to an appeal; time requirements and the time that needs to be allocated

to the matter; the desirability of informality; the need for the recommendation to be made to the

decision maker in a timely manner after the application (consistent with a fair and proper consideration of the issues); and

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any other matter that the Panel considers relevant to promoting a fair and transparent process.

46. The Panel should not institute any process that may operate directly or indirectly to discriminate against relevant parties to the appeal.

47. Panel proceedings are to be conducted in private.

CONSIDERATION OF THE APPEAL

48. Clause 91 of the Template Agreement sets out the general powers and the role of the Appeal Panel. While the Panel may conduct the proceedings as it sees fit, within the limits of the Template Agreement and where natural justice/procedural fairness is afforded, the Panel may wish to consider the options detailed in paragraphs 52 to 63 in making a recommendation to the decision maker.

49. The purpose of the Panel is to make a recommendation to the decision maker on whether the decision/action is fair and equitable in all of the circumstances, and that administrative law requirements for decision-making were complied with, for example, that natural justice and procedural fairness were afforded. However, it must also be kept in mind that the procedures will differ according to the type of appeal given the scope of appeals includes (see further paragraph 19):

Promotion or temporary performance decisions (for periods more than six months) for promotions below SOC C level;

Decisions arising from disciplinary action (excluding termination);

Decisions arising from under-performance action (excluding termination); and

Decisions taken in relation to employee eligibility for benefits under clauses 100 to 102, the amount of such benefits, the amount payable by way of income maintenance under clause 104, and the giving of an involuntary notice of redundancy or notice of reduction in classification under clauses 102 and 103.

General matters

50. The Panel should develop Terms of Reference to ensure it is clear how the Panel will consider the appeal. The Terms of Reference should include:

Process/method for consideration of the appeal;

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Timeframes, including ensuring that the appellant and employer have sufficient time to respond after reviewing the other parties’ submissions; and

Any other relevant matter.51. The Terms of Reference should be circulated to the appellant and

employer before the appeal is considered. In the case of a promotion appeal, the Terms of Reference should also be provided to the person who is being appealed against.

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Process/Method

52. The Panel will need to determine the approach to deal with the appeal. The Panel may make recommendations based on the papers before the Panel. If the Panel does not have all of the relevant material before it, the Panel may seek statements or invite public servants to be interviewed in the course of considerations.

53. Panel members are expected to draw upon their own general knowledge and experience, to assist in identifying the issues of the appeal, analyse and assess the issues to form an opinion on the merits of the information before them.

54. To assist Panel members with fact finding, Attachment B provides guidance on gathering evidence, taking oral statements and securing records/information. It should be noted that while the rules of evidence do not apply to the appeal process, it is useful for Panel members to understand the basic principles so that the evidence is the best available, and the record of appeal can withstand scrutiny if the appeal is later subject to legal proceedings.

55. It is expected that Panel members will familiarise themselves with Section M of the Template Agreement and any other legislative provisions relating to the appeal.

Promotion/Temporary performance

56. When considering promotion or temporary performance appeals, the only ground on which the Panel may review the decision is that the appellant would be more efficient in performing the duties of the position than the person promoted or selected for higher duties. For these appeals the Panel may not review procedural matters, as this review right is provided under Internal review procedures (clause 84.2 of Section L- Template Agreement).

57. In considering the ground of greater efficiency, the Panel should have regard to:

the abilities, qualifications, experience, standard of work performance and personal qualities of each relevant party5 to the appeal to the extent that the Panel considers they are relevant to the performing the duties of that position;

if the Chief Executive or delegate who made the promotion had regard to, the potential for further career development, relevant to the position, in making the merit based decision; and

5 Relevant parties include the person selected for the promotion and any appellants, where they applied for that position.

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any other matter the Panel considers relevant.58. If the Panel considers that the person promoted/selected for

higher duties is entitled to the promotion/transfer on merit, the Panel has the power to confirm that decision. The Panel must also notify the appellant of this decision and provide written reasons for the decision.

59. However, if the Panel believes that another decision is appropriate (e.g. promotion of another applicant or re-commencement of the process), it will make those recommendations to the Chief Executive (or the Commissioner if the Chief Executive made the original promotion/selection decision).

60. The Panel will need to ensure that all other matters in Section M of the Template Agreement are complied with during Panel proceedings.

Discipline and Under-Performance

61. When dealing with appeals relating to discipline and under-performance, including the penalty imposed or action taken:

The Panel may need to decide on the facts of the appeal first; and

Once the Panel has made a decision on the facts (see Attachment   B for gathering evidence), and is in position to provide a recommendation, the Panel should have due regard to the matters at Attachment A.

62. The Panel will need to ensure that all other matters in Section M of the Template Agreement are complied with during Panel proceedings.

Employee eligibility for benefits relating to redundancy63. When dealing with appeals under the redeployment and

redundancy provisions, the Panel may be required to consider: An employee’s eligibility to benefits in relation to voluntary

redundancy and the amount of such benefits - Appeals in this area may involve, for example, the length of the notice period (whether 4 weeks or 5 weeks), the number of years of continuous service (provisions for recognition of previous employment for redundancy purposes are set out in Part 3.7 (PDF file)), calculations in relation to shiftloading or composite salaries and calculations in relation to the inclusion of other allowances;

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The amount payable to an employee by way of income maintenance - Appeals in this area may involve the maintenance of income at the rate received while performing higher duties;

The giving of an involuntary notice of redundancy or notice of reduction in classification - Appeals in this area may involve whether or not involuntary notices of redundancy should be given if the employee does not wish to accept a transfer to another position; or whether or not the notice of reduction in classification should be given if the employee has not applied for at least 3 separate positions for which they could be reasonably expected to be qualified to perform.

PROTECTION OF APPEAL PANEL MEMBERS

64. Legal action against Panel members who conduct themselves in accordance with the Template Agreement and this Guide is unlikely.

65. However, where a Panel member is engaged under the PSM Act6, the Territory indemnifies these persons for action/omissions made while involved in Panel proceedings, provided the person acts in good faith within the powers conferred by the position. This indemnity covers public liability, professional indemnity and directors and officers’ risks, where they act in good faith.

66. This Territory indemnity does not extend to a person nominated by the unions, unless they are employed in the ACTPS (i.e. engaged under the PSM Act).

FURTHER INFORMATION

67. Panel Members should discuss any issues with the Convenor of the Panel.

68. If the Convenor is unable to assist, the Convenor may seek advice from:

Senior Policy Advisor(s), Public Sector Management and Industrial Relations Group, on:

(02) 6207 1255; or (02) 6205 0307.

69. In some circumstances, it may be appropriate for the Convenor to seek legal advice from the Government Solicitor’s Office.

6 This includes the Chairperson and employer nominee.15

ACKNOWLEDGEMENTS

70. The ACT Public Service acknowledges the assistance of publications developed by the Northern Territory, NSW Government and NSW Ombudsman’s Office in the development of this Guide.

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ATTACHMENT A

Sufficient evidence to constitute a finding of misconduct/under-performance

1. The Panel must be satisfied that there is sufficient evidence, on the balance of probabilities, that the employee is liable to disciplinary/under-performance action.

2. The balance of probabilities is the civil standard of proof that applies to administrative investigations. This is a lower standard of proof than required in criminal matters, where allegations must be proved beyond reasonable doubt. Balance of probabilities essentially means that in order to be proved, it must be more probable than not that the allegations are made out.

3. The strength of evidence required to prove an allegation on the balance of probabilities may vary according to the seriousness of the issues involved. In the case of Briginshaw v Briginshaw (1938) 60 CLR 336, Dixon J remarked:

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the questions whether the issue has been proved.

4. It is important that the standard of proof dictated in Briginshaw is not reduced by a decision maker erroneously taking into account irrelevant considerations. Ultimately, decisions often turn on one person’s word against another’s. In deciding which witness is the most creditable a range of factors should be considered, including the demeanour of witnesses, the cooperation they have shown, their possible motives and any inconsistencies. Past behaviour may be taken into account but care must be taken. The criteria that must be satisfied before evidence of past behaviour should be permitted to influence the finding is where it is identical, relevant, recent and/or serious.

Provision of natural justice/procedural fairness

5. In all of the circumstances, it must be considered whether procedural fairness was afforded to the appellant (and where relevant, other parties).

6. Natural justice and procedural fairness are terms used interchangeably. Any decision affecting an individual that has been made without affording that individual procedural fairness is liable to be challenged and set aside.

7. Procedural fairness does not require the application of fixed rules but requires that the procedure adopted by the decision maker be fair in all of the circumstances. The principles of procedural

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ATTACHMENT A

fairness include providing a fair hearing, not being biased and acting on the basis of logically probative evidence (i.e. that the evidence is relevant to the facts in issue).

Fair hearing8. To ensure a fair hearing:

inform persons whose interests may be affected by allegations against them (i.e. a decision could be taken against them) or grounds for adverse comments in respect of them. This allows a person to respond to allegations.

provide persons with a reasonable opportunity to put their case. This period will depend on the circumstances, including the relative urgency of the relevant decision and the seriousness of the matters to be considered. If it is clear that a person is not able to respond properly without more time or further information, this should be provided, if possible (e.g. within legislative framework and taking into account the affect on other parties). This may also need to occur if new evidence will be used after the initial opportunity to respond;

hear all parties to a matter; make reasonable inquiries and consider all matters put

to them in reaching a recommendation/decision; and must not to give weight to irrelevant matters in reaching

a decision.

Unbiased decision maker9. Procedural fairness requires that no person decide a case in

which they have a direct interest. A good test is whether a fair-minded observer, aware of the facts, would have a reasonable apprehension that the decision maker will not bring an impartial or unprejudiced mind to the issue.

10. This does not prevent a decision maker who is required to form a preliminary view (e.g. whether or not to investigate possible misconduct) from making the decision. If the decision maker, because of their position, has some knowledge of the individual involved, it will not be a breach for that person to make the relevant decisions, if the circumstances show that the person has been impartial in determining the particular matter.

Severity of the Penalty11. It is essential that the type of penalty reflect the severity of

the breach of conduct or the level of under-performance. Fairness and equity require that the penalty be appropriate to the conduct but also that all relevant factors are taken into consideration in determining the penalty.

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ATTACHMENT A

12. The following circumstances should be taken into consideration when determining the penalty. For the most part, these factors are more relevant to disciplinary cases but some of the principles can be applied to under-performance actions:

o The type of conducto The seriousness and degree of conduct;o The circumstances of the conduct;o Whether there is previous history of that same/similar

conduct;o Previous advice/counselling in relation to the

same/similar conduct;o Whether the employee is aware of the required standard

of behaviour that has been breached and the consequences of breaching it;

o The employee’s length and record of services;o The employee’s personal circumstances;o The nature of employment and the employee’s duties;o Custom and practice in the workplace and industry;o Whether there is ongoing risk to the public, clients or

work colleagues;o Whether the effectiveness of the department and the

public service, in general, is compromised by continued employment;

o The personal circumstances of any victim of the conduct;

o Any injury, loss or damage resulting from the conduct;o The degree to which the employee has shown remorse

for the conduct;o The co-operation of the employee during the

investigation; ando Any other relevant matter or mitigating circumstances.

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ATTACHMENT B

Gathering evidence1. Gathering evidence is the process of effectively and efficiently

obtaining information relevant to the appeal.

2. To determine the facts of the appeal, the Panel will need to access the evidence obtained during the investigation or earlier process that led to the appeal. The Convenor will provide this evidence to Panel.

3. In addition, the Panel may need to seek its own evidence relevant to the appeal, e.g. seeking oral statements from witnesses in order to determine the facts of the appeal.

4. To assist the Panel in gathering evidence, guidance is provided on: General information about evidence and a basic overview of

the rules of evidence. While the rules of evidence do not apply to administrative appeals, it is useful for Panel members to understand the basic principles so that the evidence is the best available, and the record of appeal can withstand scrutiny if the appeal is later subject to legal proceedings;

Obtaining oral evidence, which is one of the most difficult forms of evidence to obtain; and

Securing documentary evidence and information.

Evidence5. The law of evidence essentially operates by focusing on the facts

or matters in issue. The fundamental principle of evidence is that all evidence must be relevant to the facts or matters in issue.

6. Relevant evidence is evidence, which, if accepted, could rationally affect (either directly or indirectly) the assessment of probability of the existence of a fact in issue. Relevance is essentially tested by logical reasoning. During gathering evidence, a lot of irrelevant material will be obtained, and care must be taken to select evidence that rationally affects the facts in issue.

7. Evidence can be direct or circumstantial, depending on how it is applied to the relevant facts in issue. Direct evidence is evidence of what a person saw, heard, smelt, or tasted. Circumstantial evidence is evidence from which facts may be inferred. An inference is a conclusion that possesses some degree of probability, which will depend on the accuracy of the premises from which the inference is drawn.

8. The main sources of evidence are: Oral evidence (recollections);

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ATTACHMENT B

Documentary evidence (records); Expert evidence (technical advice); and Site inspection.

9. In most cases, (in order to determine the facts of the appeal), the collection of oral and documentary evidence will be the primary forms of evidence, however in some cases expert evidence may be required.

10. Any evidence must be relevant, in that it is able affect to the facts in issue. Once evidence is admitted as relevant, it is then necessary to consider the weight that will be given to that piece of evidence. For example direct evidence would carry more weight than circumstantial evidence. The reliability of the evidence is also an important factor in determining weight.

11. It should be noted that not all relevant evidence is admissible. The law for various reasons excludes certain types of evidence (e.g. it would be unfair; in that it would be more prejudicial to the defendant than how useful the evidence would be in proving the facts of the matter).

Overview of rules of evidence

Relevance12. The first premise is that evidence must be relevant if it is to

be admitted (see further paragraphs 5 and 6 of this Attachment).

Hearsay evidence13. There is a general rule against hearsay evidence and a

number of exceptions to the rule. Generally, hearsay includes ‘evidence based on what has been reported to a witness by others, rather than what he or she had heard him or herself’. However, hearsay should not be discounted as a form of evidence, as interviewing persons can lead to other relevant witnesses. Fundamentally, what hearsay means is that evidence should be obtained at the source, rather than relying on what others say.

14. Hearsay evidence can carry less weight than direct evidence, and if the primary source is available, it should be used in preference to hearsay evidence. If it is not possible to obtain direct evidence, this should be recorded in the report.

15. The main exceptions to the hearsay rule are admissions and business records (including records of the Agency).

Opinion evidence16. Generally, witness statements should not contain expressions

of opinion about something or someone unless the witness is an expert who has been requested to provide expert evidence.

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ATTACHMENT B

There are some exceptions to this general rule and opinion evidence may be admissible if based on what a person saw, heard or perceived, and it is necessary to convey an adequate understanding of the witness’s perception of the matter. The evidence may also be admissible if the witness has acquired considerable practical knowledge about a matter through life experience.

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ATTACHMENT B

Cautioning 17. If during the course of fact finding, evidence is obtained which

establishes a prima facie case for a criminal offence against a person being interviewed, a caution should be administered to the person that he or she does not have to do anything, but anything said or done may be used in evidence.

18. Evidence that is obtained in the absence of a caution is considered to be evidence that has been improperly obtained, and as a general rule, will be excluded from court proceedings.

Obtaining oral evidence19. Oral evidence is the most difficult form of evidence to obtain,

since it is subject to the human condition. Witness recall is imperfect, every witness responds differently to the interview process and every witness’s unique psychology is brought to bear in the interview situation.

20. An interviewer should possess a good knowledge of the matters at hand and any relevant agency material (e.g. policies, practices and procedures), good analytical, effective communication skills, good sense and judgment, professionalism and integrity.

21. It is important to interview all witnesses to obtain all relevant facts, and as a general rule, if a person is subject to a complaint, they should be interviewed last.

Steps to a successful interview

a. Preparation/Planingi. Set objectives and an agenda for the interview.

Consider the timing and location of the interview. Privacy is a major psychological factor which contributes to the success of the interview, and the environment should be free from distraction.

ii. Set questions or lines of questioning before the interview to use as a checklist to ensure all relevant issues are covered. Of course, an interviewer may need to deviate from the list to ask follow-up questions and take account of unexpected evidence.

iii. The need for an interpreter or other special arrangements should be determined in advance.

b. Conduct of interviewiv. The interviewer should act fairly, reasonably and in

an impartial manner. v. The approach adopted by the interview will largely

depend on the circumstances and to a large extent should be tailored to suit a witness.

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ATTACHMENT B

vi. If a witness is uncooperative, there is little action the interviewer can take, unless some legal authority exists.

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ATTACHMENT B

c. Interview techniquesvii. Face-to-face interviewing is the primary method for

receiving evidence from a witness. Alternatives include telephone interviews and written requests for information but these methods should be used sparingly.

viii.Interviewers can use open, closed, strategic, hypothetical, provocative and assertive lines of questioning. Generally, an interview should commence using open questions to encourage narrative responses. Closed questions should only be used to confirm matters after the witness has told their story.

d. Recordingix. It is important that the interview is recorded

accurately. This can be achieved by tape recording, by preparing a record of interview or by creating a witness statement. The manner of recording will largely depend on the purpose for which the record is being taken. The more likely that the record will be used as evidence in formal proceedings, the more important that a full transcript or fully signed witness statement is obtained. The interviewer should inform the witness of the method of recording before the interview commences, and also provide the interviewees with an opportunity to comment on the interview report.

e. Third Partiesx. Generally witnesses should be permitted to have a

third party present for the purposes of support. The interviewer needs to make clear that the third party is an observer and may not take part in discussions and ensure that they agree to keep the interview confidential. Legal representation may only be allowed with the approval of the Panel (see paragraph 41).

Securing evidence/information22. It is important to ensure that all evidence/information is

obtained and stored appropriately.

Managing documents23. In providing evidence to the Panel, the Convenor should

create records to show where the documents are to be taken (i.e. location and storage facility), including how they are to be stored.

24. Original documents should be taken, as they often show information that does not appear in photocopies (i.e. pencil notes in the margin). Photocopies should be taken and used during the

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ATTACHMENT B

course of the appeal. The original document should be stored in a locked facility.

25. Where appropriate, the authenticity of documents should be confirmed with the person indicated as being the author. Where documents are taken, a record/receipt should be provided, together with the contact details of the Convenor, in case anyone needs to access the documents.

Recording and storing information gathered during the appeal26. Panel members should take notes of all discussions, phone

calls and interviews. These notes should be legible, include relevant dates/times, clearly identify the author of the note, and contain a file reference.

27. These records should be secured in a lockable cabinet. Documents should be stored to retain their original condition. Avoid storing documents in plastic bags because they sweat and could become damaged.

28. Records should also be maintained/stored in accordance with the Territory Records Act 2002.

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ATTACHMENT C

APPEAL PANEL

DECLARATION OF IMPARTIALITY AND CODE OF ETHICS

The purpose of this document is to facilitate proper, fair and efficient operation of Appeal Panels constituted under Section M of the Template Agreement of Core Conditions. The [Agency], on advice of the Public Sector Management Group, requires all persons nominated as members of Appeal Panels to make this declaration. If any member feels that they are unable to comply with this requirement, they should discuss the matter with other members of the Panel and their nominating body to determine whether or not, in all of the circumstances, they should decline nomination to the Panel.

I,…………………………………………………………………………………..(full name) of …………………………………………………………………………………(work/ other address)a member of the Appeal Panel in the matter of ………………………………………………………

DECLARE:

1. I do not have and have not had a relationship with a party before the Appeal Panel of a kind that may cause a reasonable person to suspect that I may be biased, including:

A family relationship; A close personal relationship; A relationship involving personal hostility; or a Business or employment relationship.

2. I do not have or have not had any other personal or professional involvement in the matter to be considered by the Appeal Panel (e.g. pecuniary or non pecuniary interest in the matter – such as acting as a party’s adviser in the matter).

3. I understand that, while acting as a member of the Appeal Panel, I am not subject to direction by, nor should I act on instructions from, any person, body or authority other than legal directions (e.g. from a court of law).

4. I will conduct my duties as a member of the Appeal Panel in accordance with the Template Agreement of Core Conditions with fairness, equity and impartiality independent of any interests of the body which nominated me.

5. I will contribute to the identification of the key issues of the appeal and participate in the analysis and assessment of those issues based on my own opinions on the merits and the information before the Panel.

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ATTACHMENT C

6. After making this declaration, should a relationship, involvement or interest of a kind described in this declaration develop, and there are grounds for reasonable suspicion of bias or prejudice on my part, I will disqualify myself from considering the appeal.

7. I will ensure that the free and frank discussion of views of the Panel in deliberating the evidence and matters before the Appeal Panel remain strictly confidential.

8. I acknowledge that the written recommendation is confidential and (subject to the Template Agreement) is only made available to the appellant and decision maker.

9. I acknowledge that if I fail to comply with the requirements of this declaration, I may not be nominated for future Appeal Panel proceedings.

Signature………………………………………………………………………………. Date………………….

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ATTACHMENT D

REFERENCESACT Legislation http://www.legislation.act.gov.auCommonwealth legislation http://scaleplus.law.gov.au

Human Rights Act http://www.legislation.act.gov.au/a/2004-5/default.asp Public Sector Management Act http://www.legislation.act.gov.au/a/1994-37/default.asp

Public Sector Management Standards

http://www.legislation.act.gov.au/di/2006-187/default.asp

Public Sector Management website http://www.psm.act.gov.au

Template Agreement http://www.psm.act.gov.au/industrial_arrange.htm#ca Workplace Relations Act http://scaleplus.law.gov.au/html/pasteact/0/70/top.htm

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