Burgess: Quaedvlieg lost on the tortuous road of administrative law

By Verona Burgess

Wednesday February 28, 2018

Verona Burgess explains why it’s rarely simply to get rid of a statutory officer.

The Barnaby Joyce steam train might have run out of all puff by now if it were not for two things: the sexual harassment allegation and the revelation that the new Independent Parliamentary Expenses Authority is auditing his travel claims.

Good old Senate estimates. If not for them, would we have learnt about the audit? Or that the case of the Australian Border Force Commissioner, Roman Quaedvlieg – who allegedly misused his position to help get his girlfriend a job at Sydney airport but has denied all wrongdoing ­– is now before the new Attorney-General, Christian Porter? Or that he has been paid $500,000 while on leave since last May?

Roman Quaedvlieg

Few public servants would be surprised that it may be easier to make an unwilling minister resign than force out a senior statutory officer.

As reported, estimates revealed that in August, after receiving a report from the Australian Commission for Law Enforcement Integrity of its investigation, the now-Home Affairs secretary, Michael Pezzullo, turned to the secretary of the Department of the Prime Minister and Cabinet, Martin Parkinson.

We only know exactly what he asked Parkinson to do because Labor senator Penny Wong asked PM&C deputy secretary Stephanie Foster.

Foster said: “… Mr Pezzullo asked Dr Parkinson to conduct a review and to prepare a report into whether grounds existed for the termination of the appointment of the ABF commissioner.”

Brass tacks, at last. But we still don’t know what’s in the ACLEI report.

Wong said: “I know he’s very senior, I know he’s very highly paid, but, really, I can’t imagine anybody at more junior levels in the public service or the cleaners who clean this building or people in the private sector getting this kind of period for consideration of these allegations on full pay.”

Quaedvlieg has not been legally suspended (only the Governor-General can do that under the Australian Border Force Act 2015). But by way of comparison, public servants can be suspended with pay under Public Service Regulation 3.10, while suspension without pay shouldn’t go on for more than 30 days other than in exceptional circumstances.

Read more at The MandarinBorder Force chief Roman Quaedvlieg’s future decided ‘in weeks’.

Disciplinary actions under the Public Service code of conduct can also drag on for aeons. Here’s the thing, though: we don’t know how many of them do, because agencies don’t usually report how long it takes to finalise inquiries. Nor does the Australian Public Service Commission ask them.

The APSC’s State of the Service website does aggregate APS figures for code-of-conduct investigations for 2016-17 but by breach, not individuals – one person might commit multiple breaches.

Altogether, 1720 alleged breaches were investigated; 1494 were found. In 65.1% of breaches, a sanction was applied. Of them, just 18.3% resulted in sacking. As for the rest, 76.37% resulted in a reprimand; 44.85% in reduction of salary; 22.91% in fines; 5.67% in reassignment and another 5.67% in reduced classification.

As for whistleblower complaints, they can take years – truly the stuff of nightmares.

More generally, if every procedural “i” is not dotted and every “t” crossed to excruciating lengths, it can be almost impossible to sack senior executives if they refuse to budge.

The tortuous highways and byways of administrative law can also lead to the Administrative Appeals Tribunal and the Federal Court.

Take the case of Jane Wolfe, a senior executive whose sacking by the head of the then-Defence Materiel Organisation, Stephen Gumley, in 2009 after numerous warnings was overturned in the Federal Court. The court reinstated her in 2010 on the grounds that she was not afforded procedural fairness, and awarded her $277,076 including a $38,000 “lost” performance bonus. Costs to the taxpayer included $825,000 to the Australian Government Solicitor and $307,000 to lawyers Mallesons Stephen Jaques.

Little wonder agency heads make use of the “incentives-to-retire” provision for senior executives, some of whom they’d probably prefer to sack.

Here’s a timeline of the Quaedvlieg affair:

  • May 29, 2017: He begins paid leave “by mutual agreement” with Pezzullo after a complaint is made.
  • July 1-September 30, 2017: ACLEI provides report or draft to Pezzullo.
  • August, 2017: Pezzullo asks Parkinson to report on whether grounds exist to sack Quaedvlieg.
  • December 22, 2017: Parkinson gives Quaedvlieg a copy of his report.
  • January 17, 2018: Quaedvlieg responds.
  • February 5: Porter receives Parkinson’s report and Quaedvlieg’s response.
  • February 26: No decision yet. touch

As mentioned, it’s the Governor-General who would sack Quaedvlieg. The minister — perhaps Porter ­– would have to table the grounds within seven days.

But don’t get too excited: to sack a department secretary, the government only has to say a minister has lost “trust and confidence” in him or her, after the 1999 Paul Barratt case in the Federal Court. Would such a catch-all do in this case?

Quaedvlieg was appointed on July 1, 2015, for a five-year statutory term; his Remuneration Tribunal-determined package is $617,920 a year.

If the ACLEI report is inconclusive or ambiguous but the government still wants him gone with nearly two and a half years to run, the cost might be astronomical and not just financially. Let’s hope it doesn’t take until budget estimates to find out.

Read more at The Mandarin‘So far, so good’ for Home Affairs.

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