C2003/894, Transcript of Proceedings [2003] AIRCTrans 687 (3 March 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HODDER

C2003/894

NATIONAL TERTIARY EDUCATION INDUSTRY UNION

and

CENTRAL QUEENSLAND UNIVERSITY

Application under section 170LW of the Act
for settlement of dispute re clause 31 -
Misconduct Procedures

BRISBANE

10.21 AM, WEDNESDAY, 12 FEBRUARY 2003

Continued from 7.2.03

PN255

THE COMMISSIONER: Now, I take it the appearances as are they were on the previous occasion? Mr Danby, you're representing the NTEU, and, Mr Watson, you're representing the Central Queensland University.

PN256

MR K. WATSON: May it please the Commission.

PN257

THE COMMISSIONER: And you're accompanied by MR D. SWAN, and, Mr Danby, today you're accompanied by MS E. FLOYD.

PN258

MR B. DANBY: That's correct, Commissioner.

PN259

THE COMMISSIONER: Yes, thank you. The Commission, consistent with the directions issued to the parties, has received written outlines of submissions and in that sense, Mr Danby, I will mark your document as NTEU exhibit 2.

EXHIBIT #NTEU2 WRITTEN OUTLINE OF SUBMISSIONS ON BEHALF OF THE APPLICANT

PN260

THE COMMISSIONER: And in your case, Mr Watson, I will mark the submissions that you've provided on behalf of the respondent as CQU exhibit 1.

EXHIBIT #CQU1 SUBMISSIONS ON BEHALF OF THE RESPONDENT

PN261

THE COMMISSIONER: Yes, thank you, Mr Danby?

PN262

MR DANBY: Good morning and thank you, Commissioner. My apologies for not bringing my suit coat. It was inadvertently left behind this morning.

PN263

THE COMMISSIONER: That's all right. I wish I didn't have to bring mine.

PN264

MR DANBY: Commissioner, did the Commission wish us to revisit our submission or would you prefer we go directly to rebuttal?

PN265

THE COMMISSIONER: Well, not really, unless there's something that you want to add. You will obviously get a right of reply subject to whether Mr Watson says anything further, but you will get a right of reply at least on the papers.

PN266

MR DANBY: I will move directly to rebuttal then, Commissioner, and address the matter as raised in the submission made by the University.

PN267

THE COMMISSIONER: Would it be better if I take your submissions as having been read, let Mr Watson have a go and then you reply then?

PN268

MR DANBY: Yes, that would be fine, Commissioner.

PN269

THE COMMISSIONER: Okay. All right. Thank you, Mr Watson.

PN270

MR WATSON: In my submission the thrust of the response put forward by the Central Queensland University is made evident by the written outline which has been supplied. In addition to those can I say this: that in no respect should these proceedings be seen as an appeal from the Review Panel's written deliberations of 27 November 2002. That's the document which forms part of exhibit NTEU and I think it's NTEU1C. Anyway, I'm sure the Commission knows the document that I'm referring to. Nor should it, in my submission, be seen that these proceedings are a de facto appeal from the decision of the Panel - the Review Panel - to reconvene tomorrow and Friday to hear the further evidence which it is anticipated will be led, although in many respects probably the NTEU would like to see this as a de facto appeal from that decision.

PN271

In my submission the Commission would only stop the process through its powers under clause 13 of the award if there was substance in anything that the NTEU was putting forward in relation to the complaints they made about the way matters have proceeded to date. And in my submission, when one looks at the written submissions put forward by the NTEU and upon which they rely, there is plainly no substance in what they say. Their attack, in my submission, is really an attack on process rather than an attack on substance.

PN272

Now, to understand what this is about, the Commission of course is required to look at clause 31 of the agreement and what clause 31 is dealing with. Can I take the Commission to clause 31 of the - - -

PN273

THE COMMISSIONER: Yes, I have a copy of the certified agreement.

PN274

MR WATSON: Now, I've tried to summarise in my written outline what in my submission - touching upon the matter as it touched upon Dr Walmsley was about; what clause 31 was about. If I can continue the paraphrasing, clause 31.1 starts off by saying:

PN275

Disciplinary action against an employee for misconduct or serious misconduct must be taken under the terms of this clause.

PN276

And then there's an exception which in my submission doesn't apply here because Dr Walmsley wasn't being dealt with for unsatisfactory performance. So prima facie, it would seem that before anything can be done in terms of any disciplinary action taken against Dr Walmsley, then that clause requires that the terms of this - sorry, that subclause, the opening words of that subclause require that the terms of the clause be complied with.

PN277

Now, 31.2 deals with the allegations of misconduct or serious misconduct and they require consideration by the Vice-Chancellor. I'm not going to use the whole phraseology in the clause, I'll just use the term Vice-Chancellor. Now, if the Vice-Chancellor considers an allegation of misconduct or serious misconduct warrants further investigation, then the Vice-Chancellor notifies the employee in writing and the employee has the opportunity of responding in writing.

PN278

Now, there's no issue in these proceeding that that step has been followed, that step has been done, and that's happened. Allegations have been given to Dr Walmsley. Dr Walmsley has replied. I might say that these matters were available at the time, were part of the documentation before the review panel, that is, the allegations and the reply. In fact, as can be seen from the document of the review panel, there was some little time - and if one has a look at the transcript it's borne out - there was some little time taken up before the review panel as to whether or not the allegations could somehow be condensed and that they be brought down to a smaller sphere. Now, that was done and there was an agreed document that was read into the transcript and I think it may have actually been tendered as well but it was a handwritten document in Mr Danby's hand that he read from. So the facts really came down to a more narrow compass, and I'll come to that in the course of these submissions, because the review panel actually refers to it. So that's been done.

PN279

31.3 isn't germane because the employee didn't admit the allegations in full. 31.4, however, is germane because it says:

PN280

If the allegation is denied in part or in full -

PN281

and my understanding is Dr Walmsley denied the allegations in full -

PN282

the Vice-Chancellor will give due consideration to the response of the employee and determine either that there has been no misconduct or serious misconduct or refer the matter to a review panel.

PN283

Now, obviously the Vice-Chancellor considered the response and determined that the matter should be referred to a review panel. 31.5 says:

PN284

If the allegations are denied by the employee -

PN285

sorry, no, 31.5 is not germane to this matter. 31.6, however is. It says:

PN286

Where a matter is referred to a review panel pursuant to subclause 31.4, the Vice-Chancellor shall convene the review panel within 10 working days where practicable.

PN287

Well, this review panel was convened and obviously was convened as a result of action taken by the Vice-Chancellor pursuant to 31.6. Now, 31.7 says who is to constitute the review panel and it is a chair, jointly agreed between the Vice-Chancellor and the NTEU, a nominee of the Vice-Chancellor and a nominee of the NTEU. Now, referring to what happened last week in the Commission, that matter is not in issue and that happened.

PN288

The rest of the subclauses are important, because they set out really what the review panel is required to do. The terms of reference of the review panel are:

PN289

To report to the Vice-Chancellor -

PN290

and these are the important words, in my submission -

PN291

on the facts relating to the alleged misconduct or serious misconduct, including ... (reads) ... soon as practicable, following the conclusion of the panel's proceedings.

PN292

In 31.9:

PN293

The employee and the Vice-Chancellor are entitled to be represented at a review panel by agents.

PN294

And it gives the disqualification of those person. Well, that occurred in the proceedings last year before the review panel. 31.10:

PN295

A review panel shall provide an opportunity for the employee to be interviewed by it ... (reads) ... and the Vice-Chancellor, or the Vice-Chancellor's nominee.

PN296

Now, that obviously, in this case, the transcript is before you, and there were proceedings where persons were questioned, and that occurred in the presence of those conditions. 31.11 says:

PN297

A review panel will conduct proceedings as expeditiously as possible, consistent with ... (reads) ... questions of interviewees, make submissions, and to present and challenge evidence.

PN298

And there is a requirement to keep a tape-recording, and of course that was done.

PN299

THE COMMISSIONER: Just a question there, Mr Watson.

PN300

MR WATSON: Yes.

PN301

THE COMMISSIONER: You are referring to the Commission having in its possession a copy of the transcript. I assume - - -

PN302

MR WATSON: I am sorry, of course you don't - - -

PN303

THE COMMISSIONER: I don't have a copy of the transcript.

PN304

MR WATSON: You don't - - -

PN305

MR DANBY: Commissioner, I would like to raise an objection. We don't believe that the transcript is relevant in this matter. The substance of this investigation is not the subject of our application, and it isn't the substance of any proper determination, in our view. We believe that the procedures are the issues in question, and unless some matter is absolutely requires some delving into the transcript, then we would object to its introduction.

PN306

I would further say that although we have had a chance to look briefly at the transcript, the procedures don't call for a transcript and we haven't had the time or the resources to compare the transcript directly to the tape. And therefore, we would be unwilling and unable to actually see the transcript here, except - - -

PN307

THE COMMISSIONER: That is all right, it is just that I raise that because it is being suggested the Commission has a copy, and the Commission doesn't.

PN308

MR WATSON: That was my mistake. I had in mind the transcript copy I gave Mr Danby last week, and not - - -

PN309

THE COMMISSIONER: Well, I saw that.

PN310

MR WATSON: Yes, yes.

PN311

THE COMMISSIONER: But I think the issue that he raises is a proper one. What, in any event, is of interest in that transcript to this Commission?

PN312

MR WATSON: Well - - -

PN313

THE COMMISSIONER: Given the nature of the application.

PN314

MR WATSON: There are two things. Firstly, as I understand the NTEUs submissions, they say that - page 4, between lines 135 140, they say we can - - -

PN315

THE COMMISSIONER: I will just get that, thank you.

PN316

MR WATSON: This is the NTEUs submission.

PN317

THE COMMISSIONER: There is the NTEUs submissions at line which, or para which?

PN318

MR WATSON: I am sorry, could I go back before that? Can I go back to about line 130 on page 4?

PN319

THE COMMISSIONER: Wait on, 130 on page 4 of what?

PN320

MR WATSON: The NTEU written submission.

PN321

THE COMMISSIONER: I am not sure how I find line 130.

PN322

MR WATSON: They are numbered on the left-hand side.

PN323

THE COMMISSIONER: Yes. I see, I am with you now, yes, thank you.

PN324

MR DANBY: That is our submission.

PN325

THE COMMISSIONER: Yes, I have that.

PN326

MR WATSON: Now, you see where it says there:

PN327

Because we say that it is manifestly within the authority of the Vice-Chancellor to ... (reads) ... within the authority of the Vice-Chancellor - Chancellor's agent to do so.

PN328

I won't go to the next bit. But then they go on 135 to say:

PN329

This authority of agents has been central to union management arrangements. There will be no benefits to the sector, in our view, serious detriment if this were to be disturbed -

PN330

I think that should read. We contend that because the agents came to an agreement that the matter could not proceed, the matter was concluded, concluded by consent between the parties. Now, with respect, if you go to the transcript, that wasn't the situation. It wasn't a case of agreement, it was a case of a submission that was put by Mr Tilbrook on behalf of the University that was concurred in by Mr Danby. Now - - -

PN331

THE COMMISSIONER: Well, what were those words?

PN332

MR WATSON: What were they, the words?

PN333

THE COMMISSIONER: Yes.

PN334

MR WATSON: Well, I can read out the transcript.

PN335

THE COMMISSIONER: Yes. Well, it is only in terms of the relevance of that particular portion that - - -

PN336

MR WATSON: I see, yes, I wasn't - - -

PN337

THE COMMISSIONER: It is not the total transcript.

PN338

MR WATSON: No, no.

PN339

THE COMMISSIONER: It is just simply an extract.

PN340

MR WATSON: No, no, I wasn't going to - the - - -

PN341

THE COMMISSIONER: No.

PN342

MR WATSON: It was simply a matter of - - -

PN343

THE COMMISSIONER: Because there isn't - that is obviously an issue between the parties as to what authority the agent had to act in the manner that is suggested he did, and what ultimately that means, the ramifications of that in this matter.

PN344

MR WATSON: Yes, yes. There is no - - -

PN345

THE COMMISSIONER: And it is much the same as you acting as an agent for the University, albeit a legally qualified one.

PN346

MR WATSON: Yes, yes. The difficulty with the NTEUs submission is this: that it is not a question of authority, it is a question of what was the role of the panel. In other words, whatever - even if there had been agreement, the panel was still required to discharge its function. And if there was - for example, if there was an agreement, having heard evidence that white is white and they came to an agreement that black was white, that wouldn't compromise the panel. The panel, in my submission, would still be required to discharge its function; making findings of fact as to - - -

PN347

THE COMMISSIONER: But the panel acted on what it was told.

PN348

MR WATSON: The panel did. The trouble is what happened in the proceedings is that the panel got cut off in its proceedings. Because of the submission which was made by the representative of the University, effectively the panel got blinded as to what its role was, and took what the representative said as being an end of the matter.

PN349

THE COMMISSIONER: But didn't, in effect, the panel accept that the University, or the Vice-Chancellor, or however which way you want to describe the instigator of this panel being stalled in determining it, it failed to make out their case? Isn't that essentially what the panel acted on?

PN350

MR WATSON: No, no, what the panel said is that, "We can't give you a report on the facts because we have no facts to report on." And they said that. Now, the reason - - -

PN351

THE COMMISSIONER: Well, which brings me back to my earlier point; the University failed to make out its case.

PN352

MR WATSON: The University failed - the University's representatives put a submission as to the effect of non-compliance with the sexual harassment policy. The submission was to the effect that that having been done, therefore there was no purpose - I am paraphrasing - there is no purpose in going on into it. There is no purpose in talking to the witnesses.

PN353

THE COMMISSIONER: So you are saying that he had no authority to put that to the panel.

PN354

MR WATSON: No, what I am - my - look, Commissioner, he can make submissions, of course he has got authority to make submissions. The agreement - - -

PN355

THE COMMISSIONER: Well, he acts for the Vice-Chancellor in that capacity.

PN356

MR WATSON: And - - -

PN357

THE COMMISSIONER: And unless of course he reserves some rights, such as you would have to reserve rights, if proceedings before this Commission on various occasions get to a stage where the parties say, "We can take the matter no further, Commissioner", and the Commission is then left with a vacuum in which to make a decision, and neither party reserves its rights in terms of however they - if, in the near future, or the very near future the parties, or one of the parties is before whoever - whatever the Tribunal is, or this Commission, says, "However, if in the future, or in the near future we are able to assist the Commission further by providing further evidence, we reserve our right to do that", I can understand that.

PN358

MR WATSON: Yes.

PN359

THE COMMISSIONER: But where, in effect, somebody gets up and in effect says, "Well, look, we don't have a case, we don't have an argument, we don't have any fact or anything to support this, and we leave ourselves at the mercy of the panel", or the Commission for that matter.

PN360

MR WATSON: Yes.

PN361

THE COMMISSIONER: I mean, that - I mean, I am just looking at: is that what the Commission has got in front of it - - -

PN362

MR WATSON: No, no, that is not what - - -

PN363

THE COMMISSIONER: - - - to consider?

PN364

MR WATSON: No, that is not what happened. What happened was - specifically, as I have said - this is the effect of the policy. In those circumstances, because the University didn't do this, allegedly didn't do this, therefore there is no point - I will read the words - I mean, it is probably the best - - -

PN365

THE COMMISSIONER: All right, okay. Now, this is the transcript which was produced by whom, Mr Watson?

PN366

MR WATSON: It was produced by us.

PN367

THE COMMISSIONER: Okay.

PN368

MR WATSON: We had no - look, I mean, we can do this the long way or the short way. The long way would be to actually play the tape - - -

PN369

THE COMMISSIONER: No, but Mr Danby is reserving his rights about this transcript.

PN370

MR WATSON: I know, but - well, just on that, I mean, that's a little bit - - -

PN371

THE COMMISSIONER: Well, I mean, it either - it either accurately reflects what was said, or it doesn't.

PN372

MR WATSON: Well, we say - - -

PN373

THE COMMISSIONER: And one way or the other, somebody can listen to that particular part of the tape, and define or determine whether or not what is in the written transcript accurately reflects what is in the oral transcript.

PN374

MR WATSON: Of course, somebody can do that. We say we have done that. We say we have had somebody do that. Not me, but somebody did that, and this transcript has been produced. Now, to say that, look, we haven't had time to consider the transcript against the tapes, with respect, is just not correct. They have had since Friday to check the transcript. They have had the tapes for months - months may be a bit strong, but they have had it for some time. But I am not concerned about - - -

PN375

THE COMMISSIONER: All right. You give me the words that you say exist.

PN376

MR DANBY: Well, Commissioner, can I make one point. Our objection. The committee reported, and we have submitted into evidence the committee's report; the committee has submitted in its report what it understood the parties to have said, and we have quoted that in our material. What we are saying here is that it is very dangerous as well to supplant the finding of that panel that is before this Commission with now going to the original transcript. I think it is very dangerous for us to be getting knee deep into the words of the transcript, when in fact the panel has told us quite straightforwardly in its decision what it understood the agents to have authorised them to say. And - - -

PN377

THE COMMISSIONER: Well, if that is in issue, there is one way to establish that one way or the other, and that is for me to hear what these words are. I don't want the whole transcript, I want to know what was said that caused the panel to act in the manner that it did. Yes, thank you, Mr Watson.

PN378

MR WATSON: I will read out what I say happened. This is on the second day, 20 November last year. Mr Tilbrook, the representative of the Central Queensland University said this - - -

PN379

THE COMMISSIONER: Are you right, Mr Danby? I will just let you catch up with Mr Watson. Which page are you at, Mr Watson?

PN380

MR WATSON: It is - they are double-sided. I don't know if Mr Danby's - - -

PN381

MR DANBY: Mine is not double-sided, but it is not paginated I am afraid.

PN382

MR WATSON: Six pages in.

PN383

MR DANBY: Six pages from the back.

PN384

THE COMMISSIONER: Six pages in. From the front or back?

PN385

MR WATSON: From the back.

PN386

THE COMMISSIONER: From the back. Okay. Perhaps you might just confer and see if you are both reading off the same section.

PN387

MR WATSON: Halfway down the page, for Mr Danby's benefit, Mr Tilbrook is recorded as having said the following:

PN388

I have got to say to the committee that having heard from Ms Culmsee, and now having heard from Jim,

PN389

Jim being a reference to Dr Mienczakowski, who was the head of school who gave evidence,

PN390

there is nothing to indicate that the intent to abide by step 1 of the formal complaints process was gone through. It appears that there has been a fundamental misunderstanding of the need to go through the process again, and to put it bluntly, the allegations rely on compliance with policy. It is a mutual obligation. If there is no - if there is a failure to comply - of compliance of one side, that obligation has failed, and I don't think that really the allegations can be sustained in those circumstances.

PN391

Ms Sowdens says "Bill," and Professor Davies, who is the CQU nominee on the panel:

PN392

Are you going to disagree, Bill?

PN393

and obviously referring to Mr Danby. Well, Mr Danby said:

PN394

No, no. I might just on this occasion agree with my learned friend.

PN395

I will skip the next bit. And Mr Tilbrook - Mr Danby said:

PN396

No, I agree with that.

PN397

Mr Tilbrook then said:

PN398

I think that the principles are pretty sound, you know, there is Federal Full Court - Federal Court authority of the fact that, or the proposition and obligations in a disciplinary setting are mutual obligations, and a failure on the part of the person or the company taking disciplinary action against an employee to comply with its policies and need to rely on these policies as a disciplinary measure will fail.

PN399

And when you find yourself in that kind of position I think the answer is - and Mr Danby says:

PN400

Now, for the panel, I think it would probably be of assistance to the panel that the panel recognises our agreed - our mutual view that the evidence suggests that the - or is likely that the policy was not complied with, and that the allegations in those circumstances cannot be sustained, and that the panel be agreed with that. That view was being put by both the Vice-Chancellor's representative and the representative of Dr Walmsley.

PN401

And, look, I won't go on further, but in my submission the effect of that was that no further witnesses were called. No further witnesses were thought to be required because of this impediment in the proceedings. That was just quite wrong. I mean, there was no - it was quite wrong for two reason. What the effect of the non-compliance with the policy was, but also what the effect or that effect had upon the panel. The effect it had on the panel is quite evident from their documentation which is; they considered that there was no reason to go further. But they - - -

PN402

THE COMMISSIONER: Their role isn't to investigate this, is it?

PN403

MR WATSON: Their role is to investigate it.

PN404

THE COMMISSIONER: No, in the sense of doing all of the leg work - I mean, what really should happen is that the process should be applied, and they should be presented with the circumstances in such a manner that they then are capable of, for themselves, elucidating the facts of the issue and reporting to the Vice-Chancellor on that basis. Isn't that their role?

PN405

MR WATSON: As a matter of mechanics, that would be a simple way of doing it. And that would be a preferable way.

PN406

THE COMMISSIONER: Well, I would have thought that is what those panels actually do do, in a simple way. But then again, you see, somebody else has to do the leg work to bring it to them in such a form that they can actually do that.

PN407

MR WATSON: Somebody - somebody has to be responsible, unless the Chairperson or somebody from the panel is actually going to the trouble of ringing up witnesses and saying, "Now, you be here at 9.30 tomorrow," obviously someone is going to have to do that.

PN408

THE COMMISSIONER: But that's not - but that's not the role of the panel is it? I mean, I would have thought that if you want to raise complaints, the obligation is upon you to prove - well, not so much prove your case, but bring the material in a factual basis, and the allegations, and the persons who make such allegations before the panel. It is not for the panel to run around issuing subpoenas or summons or whatever I wouldn't have thought. They wouldn't be empowered to that extent.

PN409

MR WATSON: Look, as a matter of - as a matter of practicalities I completely agree with the Commission, but as a matter of what this panel is entitled to do or was required to do; can I just take - - -

PN410

THE COMMISSIONER: Well, I am just at a bit of a loss there. You agree with my concept of what the panel does, and then you say that that's not right.

PN411

MR WATSON: Well, can I - well, I think the best thing in these circumstances, in my submission, is to actually go to the clause that the agreement itself.

PN412

THE COMMISSIONER: All right.

PN413

MR WATSON: What it does say is that - - -

PN414

THE COMMISSIONER: Which clause are you going to?

PN415

MR WATSON: 31.11. I did read these words.

PN416

A review panel will conduct proceedings as expeditiously as possible, consistent with the need for fairness and in camera, and as a committee of inquiry.

PN417

It's not - it's not the same as a Court or a Tribunal sitting there, and just waiting for the parties to present evidence to you. I mean, it is a committee of inquiry, so that that carries with it a different context.

PN418

THE COMMISSIONER: Yes, but any committee of the inquiry or Royal Commission has officers who go out and gather the information. It seems to me that that is what was lacking in this process.

PN419

MR WATSON: Well, that could have been lacking, and it could have been that the committee relied upon the university to do certain things.

PN420

THE COMMISSIONER: But wasn't the university obligated to do that?

PN421

MR WATSON: Wel, if it was - if it was putting forward matters; of course. I mean, there is no point in referring a matter - allegations to a committee and not - - -

PN422

THE COMMISSIONER: Well, not doing the leg work.

PN423

MR WATSON: Were not doing the leg work. Well, yes, I adopt - not doing the leg work.

PN424

THE COMMISSIONER: I mean - and it sounds to me if it looks like a duck, walks like a duck and quacks like one, it is a duck. And I think you have got a duck. I think the university, frankly, failed to do the leg work.

PN425

MR WATSON: Well, no. The university didn't fail to do the leg work. The university had the witnesses available. What it didn't do - what the representative of the university didn't do, and what the panel concurred with that those witnesses weren't made available. They weren't available.

PN426

THE COMMISSIONER: But isn't that the university's fault?

PN427

MR WATSON: No, it is the panel's fault.

PN428

THE COMMISSIONER: Why is it the panel's fault, because if the person responsible for bringing those witnesses before the panel fails to do that, or make the necessary arrangements or whatever, how is that then the panel's fault?

PN429

MR WATSON: Because the panel hasn't discharged its obligation. Its obligation was to make findings of fact.

PN430

THE COMMISSIONER: Yes, but its obligations can only be, I would have thought, exercised and carried through on the basis of those people who bring the matter - I mean, the Vice-Chancellor is the one who in effect instigated the actions under the certified agreement to constitute the review panel, which was done consistent with the terms of the certified agreement, and then simply failed to follow through with the obligations that then attach to the Vide-Chancellor, as to bring the matters properly before the review panel. I mean, the review panel can't run around - I mean, I understand they went there with a limited brief consistent with the terms of the certified agreement, but not one where they had to go out and actually physically organise people to be there and make sure they were there surely.

PN431

MR WATSON: But, may it please the Commission, in my submission, we are losing sight of the fact of what these proceedings are about.

PN432

THE COMMISSIONER: Yes. Well, I am not totally sure what they are about but, anyway, maybe you can enlighten me.

PN433

MR WATSON: But, as I said before, this is not an appeal. The university isn't bringing an appeal. It is not its application.

PN434

THE COMMISSIONER: I know they are not. But the thing is this: that what Mr Danby - if you boil Mr Danby's case down, he is saying his members are going to be denied natural justice if this review panel is reconstituted and meets again tomorrow. That is, in effect, what he is saying, isn't it, Mr Danby?

PN435

MR DANBY: Amongst other things, yes, Commissioner.

PN436

THE COMMISSIONER: Well, amongst that, but obviously that is a major part of it.

PN437

MR DANBY: Yes, of course.

PN438

MR WATSON: But how? Let's follow that through, may it please the Commission. How is Dr Walmsley denied natural justice? I mean, how is he denied natural justice if the review panel sits tomorrow? He is not denied natural justice. He is going to have Mr Danby there, he is going to be there, he will listen to the witnesses, he will be in the same position as he would have been last November - - -

PN439

THE COMMISSIONER: As he should have been last November.

PN440

MR WATSON: - - - as he should have been - exactly - if the panel - if the panel had done what the panel was required to do.

PN441

THE COMMISSIONER: So now we are going to blame the panel?

PN442

MR WATSON: No, it is not - - -

PN443

THE COMMISSIONER: Well, somebody has to take the blame for something here, Mr Watson. They have to.

PN444

MR WATSON: May it please the Commission, in the written outline that has been put in, the university has acknowledged that the representative misled the panel as to the effect of the policy - as non-compliance with the policy. There is no point in running away from that. Of course, we concede that. We concede that. Something happened that shouldn't have happened.

PN445

THE COMMISSIONER: I don't know whether this will help me solve this. What is the university's position? I notice Mr Danby's crying poor mouth about the cost and expense of having to go back up there. It seems to me that if the university is reasonable about this, they are the ones that, to me, if there is any blame to be attached, have caused the need for this panel to be reconstituted, the university should meet the costs of the union.

PN446

MR WATSON: That's never been raised. I can get instructions on it.

PN447

THE COMMISSIONER: Well, I think they should, frankly, if this does go ahead, but I would have thought if that is a concern of Mr Danby, in part - and I notice that that is part of what he said in his submissions - that needs to be addressed, that is if ultimately - I don't know just where we are going with this today but we'll see.

PN448

MR WATSON: Commissioner, I understand your point. I am sure the university representatives here understand the point, too. They will take it on board and, at some appropriate stage, I will either tell Mr Danby or the Commission what those instructions are.

PN449

THE COMMISSIONER: Yes.

PN450

MR WATSON: My instructions are now that the university will meet the costs of the airfares and accommodation.

PN451

THE COMMISSIONER: Well, whatever the costs are - I don't know what they are - reasonable - - -

PN452

MR WATSON: Reasonable costs, reasonable costs. I mean, not staying - well, I won't go further than that. So that puts that issue out of the picture. It gets down to this - and really - my submission is effectively this: the Vice-Chancellor wrote to the review panel. The letter is before you. It is point out - the Vice-Chancellor has pointed out the errors to the review panel and said, "Look, you didn't give me a report as you are required to do on the facts," and the panel, to some credit actually, recognised, in my submission, in a way that they weren't fulfilling their function.

PN453

THE COMMISSIONER: I don't think they had much choice.

PN454

MR WATSON: Well, they did - - -

PN455

THE COMMISSIONER: Well, they could have said, "No, sorry, we're not willing to reconvene."

PN456

MR WATSON: Well, they could - exactly. They could have said that, but they haven't. And they are allowed to. They are allowed to reconvene, and I will take you to the authority on that, may it please the Commission.

PN457

THE COMMISSIONER: I have noticed that authority that you have cited.

PN458

MR WATSON: Yes. I mean, that in my submission is ample authority for allowing the panel to reconvene. So the panel reconvening - I mean, with respect, how can natural justice be denied. They are going to perform the same function as they were required to perform last year, the witnesses are going to be heard, and Dr Walmsley, to use the phrase, is going to have his day in court. He is going to have the ability, if he chooses, to give evidence. He has denied the allegations. He will hear his accusers and he will be able to give evidence in front of the panel and be obviously challenged on that evidence. But he is in no different position than he was last year. In my submission, there is just simply no denial of natural justice. Indeed, if it weren't - - -

PN459

THE COMMISSIONER: I guess what raises then is what attention has been given to those witnesses in that period because that is something that Mr Danby was complaining about?

PN460

MR WATSON: Sorry, what - - -

PN461

THE COMMISSIONER: Well, complaining about whether or not now the witness haven't been primed improperly. I mean, that is the allegation he has made.

PN462

MR WATSON: Well, we can - my instructions are there is simply no substance in that. But that is the whole idea of cross-examination. That is what you do in cross-examination. You put things like that to witnesses and it is up to the panel then to make up its own mind. If Mr Danby thinks there is substance to the submission that either length of time or somehow these witnesses have been got at, to use the vernacular, then he can put that submission and he can put that in cross-examination. He is not being denied natural justice in that regard.

PN463

I want to take you to the report because this very issue is really an issue which the panel did touch upon in their documentation.

PN464

THE COMMISSIONER: The report resides where?

PN465

MR WATSON: I am sorry, the document that I am referring to - and I don't use the term report to describe it, because, in my submission, it is not a report. It is document 1C. It is in exhibit NTEU - and I think it is 1C.

PN466

THE COMMISSIONER: This is the bundle of documents - - -

PN467

MR WATSON: Yes, that Mr Danby submitted last week.

PN468

THE COMMISSIONER: I have that now. Yes, thank you.

PN469

MR WATSON: Well, if you go to - the first page of that document looks like a letter, I think. The next is the document headed Review Panel Report. If you go into the fifth page of that, about a third of the way down, do you see it says:

PN470

Given the terms of reference of the panel proceedings was to report on the facts of the alleged misconduct or serious misconduct, the panel directed the parties attention to simplify the facts of the alleged misconduct as it related to the events on the MV Monsoon.

PN471

I alluded to that earlier in my submissions when I said about the condensation that took place. They go on to say:

PN472

The panel suggested to the parties that it would be of greater assistance to address those facts prior to addressing the alleged breaches of codes and policies ...(reads)... be considered in the first instance and treated separately -

PN473

not dealing with the question of assessment matters, but can I then take you to the last page of the report, page 9, and the second paragraph:

PN474

The panel holds the view that the facts of the alleged misconduct or serious misconduct refer to the events and incidents as alleged by the two complainants involving Dr Walmsley on the MV Monsoon between 29 April and 2 May 2002.

PN475

They say:

PN476

As one of the complainants was uncontactable and unavailable and the other complainant unwilling to appear in these proceedings, it may be arguable as to whether the panel has ...(reads)... and, secondly, because of the failure of the complainants to appear in these proceedings -

PN477

and, then, the next paragraph - I will just skip over it, but I'd let the Commission read it.

PN478

The final paragraph is the important one. In so doing, the review panel makes an additional point: within the absence of proper and appropriate evidence and the examination of that evidence, it has formed no view, and could not, as to the facts of the events, incidents as alleged by the two complainants on the MV Monsoon against Dr Walmsley. No if I go back to what the certified agreement says, of course, the certified agreement requires the panel to - - -

PN479

THE COMMISSIONER: Which is this, that clause 31(11)?

PN480

MR WATSON: 31.8

PN481

THE COMMISSIONER: Sorry?

PN482

MR WATSON: 31.8. Te terms of reference of the review - - -

PN483

THE COMMISSIONER: 31.8. I'll just find that, thank you. Yes, I have that.

PN484

MR WATSON: The terms of reference of the review panel are to report to the Vice-Chancellor and resident nominee on the facts relating to the alleged misconduct or serious misconduct, including whether any mitigating circumstances are evident. Now, this is the position, may it please the Commission. Whatever happened on 19 and 20 November last year, whether witnesses were available or unwilling or otherwise, putting that to one side - putting to one side the misleading by the University's representative as to the role to be played by the sexual harassment policy - and I'll just come to that in a moment - we do have a situation where the panel has acknowledged - has acknowledged the letter of the Vice-Chancellor, has had those matters pointed out to him and has agreed to reconvene tomorrow and Friday so that all those things, defects or whatever, are going to be put to one side because tomorrow and the next day the panel is carrying on and those matters, the fact that the witnesses weren't there on the first occasion, will be overcome.

PN485

THE COMMISSIONER: What about if they don't turn up again? What are we going to have; a standing panel?

PN486

MR WATSON: Well, I won't be back here.

PN487

THE COMMISSIONER: Well, I probably will but - - -

PN488

MR WATSON: Oh, may it please the Commission, I mean - - -

PN489

THE COMMISSIONER: Well, I mean, you've got - you know, on the evidence of what the panel - the chairperson of the panel reported, "As one of the complainants was uncontactable, unavailable and the other complainant unwilling to appear in these proceedings" - now, unwilling to appear - - -

PN490

MR WATSON: Yes.

PN491

THE COMMISSIONER: - - - in one instance.

PN492

MR WATSON: Yes. It's wrong. I'm sorry, Commissioner, it's just wrong.

PN493

THE COMMISSIONER: Just wrong?

PN494

MR WATSON: It is wrong.

PN495

THE COMMISSIONER: Well, where does that come from? How did they reach that conclusion?

PN496

MR WATSON: No. I'm submitting it's wrong because both girls are going to be evidence - are available and willing to give evidence - - -

PN497

THE COMMISSIONER: Now?

PN498

MR WATSON: How?

PN499

THE COMMISSIONER: Now?

PN500

MR WATSON: Now - - -

PN501

THE COMMISSIONER: You're saying, "now," but not then.

PN502

MR WATSON: Yes, but - no.

PN503

THE COMMISSIONER: So you're saying, the university is certain that these two women - - -

PN504

MR WATSON: Yes.

PN505

THE COMMISSIONER: - - - will appear, without question - - -

PN506

MR WATSON: Yes.

PN507

THE COMMISSIONER: - - - to give evidence in support of the allegations they have made?

PN508

MR WATSON: Yes and has written to the panel advising of that fact. Now, the problem with the panel, with great respect to them, is that the unavailability or unwillingness of these persons was never a matter which was addressed either with Mr Danby or with Mr Tilbrook. Now, if natural justice is going to be accorded, it needs to be accorded to both sides. If that is going to be a matter which is going to be used as a substantive matter, then the University's representative needs, as a matter of natural justice, to be able to say, one way or the other.

PN509

Now, the reason why - the reason why it was never addressed is because Mr Tilbrook was on his feet before the panel, saying, "Well, we don't have to. We don't have to go there. We don't have to worry about talking to these witnesses or interviewing them because you can't go ahead, in any event. This question of the availability or unwillingness of witnesses was a complete side issue. It just - it never really - - -

PN510

THE COMMISSIONER: Well, then, who got the idea that, because, in effect, the University failed to comply with the terms of the certified agreement, that that has stopped these proceeding - their proceeding before the panel?

PN511

MR WATSON: Oh, obviously Mr Tilbrook. Mr Tilbrook made that - - -

PN512

THE COMMISSIONER: Not based on any instructions from anybody?

PN513

MR WATSON: Oh, certainly not, certainly not. In fact, my instructions are, it wasn't even discussed with the University, that he was going to make that submission. But - - -

PN514

THE COMMISSIONER: But wasn't he empowered to make - to reach that conclusion, subject to what was before him?

PN515

MR WATSON: He was - look, the certified agreement says, the representatives, the agents, are entitled to make submissions. Can't cavil with that. That's what the certified agreement says. But you can't - - -

PN516

THE COMMISSIONER: Well, they're empowered to do that, aren't they?

PN517

MR WATSON: They're empowered to do that - - -

PN518

THE COMMISSIONER: - - - and to respond to submissions, subject to the nature of the submissions?

PN519

MR WATSON: Yes, but the submissions cannot have the effect that the - it can't neuter the policy - sorry, it can't stymie what the requirement of the agreement was for the panel. In other words, you can't have submissions which effectively take away the power of the panel. They are independent. They are impartial and independent. They exist independently of the submissions. Now, they can accept the submissions or they can reject them but they don't bind the panel so that, in this instance, submissions were made which were wrong.

PN520

The panel has initially accepted that. The letter has been written by the University Vice-Chancellor and now the panel has said, "Oh, we understand." They've received the letter. They've agreed to sit again, to re-convene. That's where we're at. Now, unless Mr Danby can point to some problem in the process as to why the panel can't do that, these proceedings by the NTU must fail, in my submission, because there's be no problem with what's happened in terms of the panel re-convening. Can I take the Commission to that authority that I referred to?

PN521

It's the Minister for Immigration and Multicultural Affairs v Bhardwaj, spelt B-h-a-r-d-w-a-g, and it's reported in [2002] HCA 11; (2002) 187 ALR 117. And can I just briefly explain the facts of the case to the Commission?

PN522

THE COMMISSIONER: This is in the Federal Court, isn't it?

PN523

MR WATSON: No, it's in the High Court.

PN524

THE COMMISSIONER: Oh, High Court? I'm sorry.

PN525

MR WATSON: Yes. Mr Bhardwaj was an applicant for a student's visa to study in Australia. He'd applied at one college and then decided that he wouldn't study there; he'd apply at another college. And it must be under the Immigration Act or whatever. There's some process whereby the colleges must notify the Immigration Department whether or not these people are going to be accepted or commence study. So what happened was that Mr Bhardwaj started - well, said he was going to study at one college, didn't; said he was going to study at another college, and then changed to a third college.

PN526

Now, the second college notified the Department of Immigration that Mr Bhardwaj didn't start at the second college. The third college had failed to notify the Immigration Department that he had commenced. So what happened was that the delegate of the Minister, on receipt of the second college's notification, wrote to Mr Bhardwaj saying, "Well, you haven't commenced your study. Show cause as to why your visa shouldn't be cancelled." He didn't reply. The visa was cancelled. He then sought to have that visa cancellation reviewed by a tribunal.

PN527

That was to be heard on 15 September. On 13 September, Mr Bhardwaj became ill and, on 14 September, a fax was sent by his agent which was received about 6.40 pm by the Tribunal the night before that he was ill and they couldn't go ahead. That didn't get into the hands of the Tribunal so the Tribunal went ahead and, having not heard from Mr Bhardwaj, cancelled - or affirmed the decision. When that became know, Mr Bhardwaj didn't seek any other relief but his agent sought a further hearing or a re-hearing of that matter and the Tribunal did so and they re-heard it and then they overturned the Minister's decision.

PN528

Now, the Minister then appealed through a series of appeals to the Federal Court, Full Court and the High Court, ultimately, saying that the Tribunal was functus officio, couldn't hear it for the second time; having made it's decision, couldn't revisit it. And, in my submission, the High Court scad, "No, that's not right. You could revisit it," because the reason I go to the facts is because it's somewhat analogous to here where the panel somehow is being told that these witnesses are unavailable when in fact the University is saying, "No that's not right. The witnesses are available and they're available tomorrow to be heard and to give evidence and to be cross-examined."

PN529

But in terms of the point of law, can I just take the Commission to page 119 where Gleeson CJ says, in point 5 - line 5 - paragraph 5:

PN530

There is nothing in the nature of an administrative decision which requires a conclusion that a power ...(reads)... then its later decision will be valid.

PN531

And if I can also take you to what Callinan J said in the last page of the report at - - -

PN532

THE COMMISSIONER: I don't have that.

PN533

MR WATSON: Sorry?

PN534

THE COMMISSIONER: I don't have that.

PN535

MR WATSON: The last page?

PN536

THE COMMISSIONER: No. I don't have any attachments, other than your - - -

PN537

MR WATSON: No, I handed up the case.

PN538

THE COMMISSIONER: Here is it; I'm sorry. Yes, I'm sorry, Mr Watson, I do have that. Yes.

PN539

MR WATSON: You gave me a scare there for a moment.

PN540

THE COMMISSIONER: Paragraph 163 on page 156.

PN541

I have formed the opinion that what happened in September 1998 was something more ...(reads)... or even knowing that they had been filed in the registry of the court.

PN542

Now, in this case, in my submission, apart from the fact of the unavailability issue of the witnesses, there was the issue as to whether or not the panel acted correctly in not going further and entering upon the facts, and I know these things are all connected, of course. I mean, it was connected because the witnesses weren't called, but if, in my submission, the panel had just simply stepped back and said to itself, what is our role here, as they seemed to have done in the document in what they say is their report, it was to report on the facts. And, in my submission, they haven't done that. They haven't done it because they have accepted the submissions which were made as the consequence of the failure of non-compliance with the sexual harassment policy.

PN543

And if they thought - with the greatest of respect to Mr Danby, if you think about it, how can non-compliance, if the non-compliance with the sexual harassment policy was correct - how can the non-compliance with the sexual harassment policy have affected the question of serious misconduct; for this reason: serious misconduct is defined in the certified agreement. It is defined as including a serious dereliction in duties - in fact, I should take the Commission to the definition. It is at clause 7. Thank you.

PN544

THE COMMISSIONER: Of the certified agreement.

PN545

MR WATSON: Of the certified agreement. And it is the third last definition.

PN546

THE COMMISSIONER: Yes.

PN547

MR WATSON:

PN548

Serious misconduct means serious misbehaviour of the kind which constitutes a serious impediment to the carrying out of an academic's duties ...(reads)... required of the academic office.

PN549

And I'm not going to the next one, because it is not germane. So that is what they were required to do. Misconduct is defined as misconduct, which isn't serious misconduct. Now they were required to report on the facts in relation to that, and going back to what I said before, how could non-compliance with the sexual harassment policy affect that in this sense. If sexual harassment took place, then that must have taken place before the policy comes into play, in this sense, that you can't have a complaint unless you have sexual harassment. So if sexual harassment is taking place, then you have a complaint, then the policy applies.

PN550

THE COMMISSIONER: Well, alleged sexual harassment.

PN551

MR WATSON: Oh, yes, of course. When I say these things, I'm not, as if saying that Dr Walmsley is guilty of these things. There is a process to be gone through. I am saying this is the thought process, which, in my submission, should have been gone through by the panel, indeed, by Mr Tilbrook, but that is another point. Serious misconduct, as the panel has said in its - what it says is its report - are the facts. The circumstances that happened on the MV Monsoon. That is the serious misconduct. That is what they were required to report on. Now they haven't. They got misled by this notion that somehow non-compliance with the policy just stymied and cancelled out the whole of the process.

PN552

Finally can I say this: that it is important, may it please the Commission, that proper process be followed, and the reason is this: that if you have a look at 31.13 of the certified agreement, it says this:

PN553

If, having considered the review panel's findings on the facts relating to the alleged misconduct ...(reads)... advise the employee in writing.

PN554

I'm sorry, I should have taken you to 31.12.

PN555

On receipt of the report of the review panel, and having considered its findings on the facts ...(reads)... may take disciplinary action.

PN556

And if I can go back to what 31.1 says, as I said in the opening of my submissions, prima facie, those terms seem to be mandatory. In other words, as part of the process, there needs to be a report. The report must go to the facts. The panel is willing and has convened to consider the facts, or consider the evidence of tomorrow. In the absence of any compelling reason, and none has been shown by the NTEU, in my submission, that should be allowed to go ahead, otherwise, the Vice-Chancellor can't do what the Vice-Chancellor has set in motion.

PN557

Now there is no compelling reason brought forward, in my submission, on the material put forward by the NTEU, and nothing in respect of any denial of natural justice. Can I just make these quick comments in relation to the NTEU written submissions. Can I take you to page 3.

PN558

THE COMMISSIONER: Page 3, yes.

PN559

MR WATSON: Line 100. They say:

PN560

A number of matters flow from these contentions.

PN561

They say:

PN562

If the panel acted properly in acting upon the submission of the Vice-Chancellor's agent -

PN563

well, in my submission, the answer is it didn't. It didn't act properly. It didn't consider what it was required to do. At the end of page 105, the submission is made:

PN564

The panel, having completed its work, is functus officio.

PN565

Well, for the reason and the authority which I have given to you, may it please the Commission, the panel isn't functus; it is able to reconvene. The - - -

PN566

THE COMMISSIONER: So essentially you are saying there is nothing that the NTEU could take the Commission to which says that the panel is not empowered or able in any way to reconvene.

PN567

MR WATSON: Exactly. If you have a look at the terms of the agreement, there is just nothing there. Going back to the Bhardwaj's case, the High Court looked at the statute which set up the Tribunal, and they said there was nothing in there which disallowed the Tribunal to act as it did. In my submission, there is nothing in the agreement similarly here to stop the Commission doing what it is doing.

PN568

On page 4, half-way down the page, the NTEU say, about line 130:

PN569

Because we say it is manifestly within the authority of the Vice-Chancellor to agree to drop charges made against the staff member...

PN570

In my submission, as the transcript which I read out shows, there was no agreement to drop charges. There has never been any suggestion here of dropping charges against Dr Walmsley. It was the effect of the non-compliance which was being addressed.

PN571

And in my submission, it is not helpful to use criminal analogies in these sorts of proceedings. I notice Mr Danby in his submissions also uses the analogy of double jeopardy, that there's a reference to double jeopardy. There's no double jeopardy here. Mr Walmsley hasn't been convicted or acquitted. We haven't even got to that stage yet. There's been a preliminary skirmish but there's been no - his position hasn't been jeopardised as such. Of course, we would submit there's been nothing by consent, no conclusion by consent as is said at line 135:

PN572

We contend that because the agents came to an agreement that the matter could not proceed. The matter was concluded by consent between the parties.

PN573

THE COMMISSIONER: Well, that needs some explanation. I mean, obviously the suggestion there is that there was an agreement between the parties that the matter would go no further and ipso facto, the charges that had been alleged would no longer proceed in any event. I mean, that's what's being suggested.

PN574

MR WATSON: Yes. Look, I certainly have no instructions of that, and that the best - the closest in relation to that is what I've taken the Commission to in the terms of the transcript and that was to the effect that, as again I'm paraphrasing, this is the effect of non-compliance with the policy and I'll read again the words of Mr Danby:

PN575

Now for the panel I think it's probably be of assistance to the panel that the panel ...(reads)... policy was not complied with -

PN576

And the evidence he's referring to is the evidence of those witnesses as the two witnesses that gave evidence about this policy. Now those witnesses, and I concede, didn't give any evidence about conciliation and mediation occurring and so that was the alleged non-compliance with the policy. Now, Mr Danby goes on to say:

PN577

It is likely that the policy was not complied with and that the allegations in those circumstances ...(reads)... and the representative of Dr Walmsley.

PN578

But that, in my submission, is not an agreement; it is not an agreement as such. It's a concurrence and a view formed as to what the effect of non-compliance with the policy was. They were agreed submissions and not - - -

PN579

THE COMMISSIONER: I suppose to put it in the vernacular, the parties said, "Well, this is where we're at".

PN580

MR WATSON: This is where we're at, and the panel accepted that, and they said, "Right, it's all over", and ended the proceedings then. Didn't bother about hearing from the girls and packed up their tents and went home. But they shouldn't have done it; I mean, this has been my whole point and they recognise they shouldn't have done it. They recognise the error and they've agreed to rectify it by meeting tomorrow. That's the effect of it. At page 205 - sorry, page 6, line 205, Mr Danby says:

PN581

Those submissions of the parties were made in line with the guarantee of 31.11 that agents ...(reads)... could or would be presented.

PN582

Well, that's just not right. I mean, that wasn't the implicit - that wasn't implicit in what Mr Tilbrook was saying. In my submission, it wasn't implicit in what Mr Danby was agreeing with. He was agreeing with the fact that the non-compliance, the alleged non-compliance was a complete answer to the proceedings. It being a complete answer, there was no reason - no need to call. No need to take up any more - anyone else's time and that's what the agreement - but that was wrong because it didn't allow the panel to discharge their function. Now, Mr Danby says something about the Vice-Chancellor's letter then on page 6. He says that, at about line 220:

PN583

We say that the unanimous panel report is unambiguous, that it was the submission ...(reads)... that they could proceed no further.

PN584

I agree with that. That's quite correct. That was the effect of the submissions, not that there was an agreement, but that was the effect of the submissions. They couldn't proceed any further.

PN585

It is therefore nonsense to suggest that Mr Tilbrook having advised on the impossibility ...(reads)... matter over to another day.

PN586

Misses the whole point of the submission. The point is this: if somebody is saying, "You cannot proceed because of this", they're not giving attention to whether or not these people are going to be called further in relation to evidence, because it's unnecessary. No one turned their mind to these people being called or further called in relation to giving evidence because it wasn't necessary. I mean, what's the point? If we've got to stop here because we've heard two witnesses who have said, "This wasn't done and our view is that we don't - the panel can't proceed any further", you're not going to worry about whether or not further witnesses are going to be called because there's no point.

PN587

You're not going to call them at all, and so the point about - well, what the Vice-Chancellor was getting at in her letter is this: if you're going to rely upon unavailability or unwillingness of witnesses, wouldn't you raise that with the parties? I mean, doesn't natural justice require that to be raised. If you're going to say, "Look, the two complainants, we understand the two complainants aren't available". Now, if they're not going to give evidence, how can we make findings of fact? In my submission, duty would require you to put that - I mean, if you're on a panel, require you to put that to the representative of the university and to Mr Danby.

PN588

Mr Danby probably wouldn't be saying anything about it because it's in accordance with his client's interests to have that position occur but from the university's point of view, they'd want to be able to say, wouldn't they, "Well, no, that's not right. These people are available, they just weren't given that opportunity". And so that's the point in the Vice-chancellor's letter and as I said, it's being remedied now and will be remedied tomorrow and Friday, and on the next page, Mr Danby says:

PN589

We say that where the panel has made a finding -

PN590

this is line 235:

PN591

We say that where the panel has made a finding about the availability of witnesses ...(reads)... for that already reported by the panel.

PN592

With great respect, what the panel has said is not a finding of fact in the sense of what they were required to do. They were to make findings of fact in relation to serious misconduct. It's not - they're saying, in their documentation, "Look, these people aren't available". Why, if that's not correct, why can't the Vice-Chancellor or her delegates go round and find out whether in fact that's true and if it's true, to go back to the panel and say, "Look, I'm sorry, you've been misinformed; you're incorrect about that. These people are available to give evidence and are not giving evidence".

PN593

THE COMMISSIONER: Well, do I take it then if tomorrow these two witnesses suddenly indicate, "Well, no, we're not willing to give evidence", that's the end of this, isn't it? I mean, how else can you - you can't try to get blood out of stone, surely.

PN594

MR WATSON: No, of course not. Of course not. I mean, look, if these people aren't going to give evidence, if contrary to what they've been telling the university and they're not going to give evidence, I can't see how the university would be able to - - -

PN595

MR DANBY: Commissioner, I'd like to object. There's been a number of occasions would say contrary - - -

PN596

THE COMMISSIONER: Mr Danby, I'm asking Mr Watson a question; there's no - to me, there's no grounds of objection. I'm asking him a question, right?

PN597

MR DANBY: Thank you, sir.

PN598

MR WATSON: If they're not going to give evidence tomorrow, I can't see how the university - - -

PN599

THE COMMISSIONER: Well, then the panel - isn't the panel then though put in the same position it was on the first occasion? It can't complete its task. It can't report on the fact because there are no facts placed before it.

PN600

MR WATSON: Exactly. Exactly, but that's not because the university hasn't attempted to. See, here, the difference between what happened on the first occasion and what will happen tomorrow is this - I mean, assuming the hypothesis put is correct. There the university wasn't given the opportunity of testing whether or not these people were available or willing to give evidence. Tomorrow and between then and now, they have, and they - - -

PN601

THE COMMISSIONER: But didn't the university - and when did the university become aware on the first occasion that one was either unavailable or unwilling, and the other was unwilling; when did they become aware of that?

PN602

MR WATSON: I don't think we - well - - -

PN603

THE COMMISSIONER: Well, I want an answer to that whether you think I should get one or not.

PN604

MR WATSON: No, no. No, I'm not going to say that. What I was going to submit is that - and I don't want to put this higher than my instructions but I think my instructions are the position was that the university was never aware of that.

PN605

THE COMMISSIONER: Of what, of their unavailability.

PN606

MR WATSON: Or their unwillingness. I'm sorry, that's not - in relation to unwillingness, certainly no-one in relation to unwillingness, but in terms of unavailability I am instructed that there were times given to the university as to availability of these persons.

PN607

THE COMMISSIONER: So what - so then the panel proceeding was structured around those times and dates?

PN608

MR WATSON: Well, I would have hoped that was the case but I don't think it was.

PN609

THE COMMISSIONER: Well, you'd think that that's the way it should have been done.

PN610

MR WATSON: Well, of course it should have but they seem to have gone off on tangents. They seem to have gone off on matters which were - well, the thing of course that stymied the whole proceedings was the fact that there was this alleged non-compliance and the effect of that with the policy.

PN611

THE COMMISSIONER: But how was that conveyed - I mean, I'm trying to correlate the position of the witnesses as opposed to the evidence of two witnesses about non-compliance with the terms of the sexual harassment policy. How did those two interact? I mean, I would have thought they were two separate matters.

PN612

MR WATSON: They are, they were.

PN613

THE COMMISSIONER: So for all intents and purposes, no matter what happened, irrespective of compliance or not, those two persons who made the initial allegations were never going to appear before the panel on the occasion that the panel was convened?

PN614

MR WATSON: I don't think that - no, well, I can't agree with that.

PN615

THE COMMISSIONER: Well, how can you disagree with it?

PN616

MR WATSON: Sorry?

PN617

THE COMMISSIONER: I mean, well, what information was given to the university which was conveyed to the panel or those persons representing the respective parties about the unavailability or unwillingness of the witnesses to appear?

PN618

MR WATSON: I don't know. It is not available - on the material it is not available as to how the panel came to that view and it was certainly not a view - if they came to that view, it was not a view which was being conveyed to the representative of either the NTEU or to the university.

PN619

THE COMMISSIONER: I mean, it seems clear to me why Mr Danby is jumping up and down. You've confirmed now that if these people aren't available or are unwilling to give evidence tomorrow, that's the end of this; the panel can't fulfil its obligation in terms of determining the facts. I want to know why that wasn't the position reached on the first occasion. They weren't available, unwilling. How were the facts ever going to be presented to this panel?

PN620

MR WATSON: I think there's been a misunderstanding on the part of the Commission as to this unavailability, unwillingness. My instructions are that there were two days set aside for this panel. The witnesses were contacted and times were given. As I understand it, the times which were given were for Linda Ricciu - - -

PN621

THE COMMISSIONER: I don't need the names. That's fine.

PN622

MR WATSON: All right, for one of them from 19 November - that's the first date - from 8.00 till 4.30. On 20 November from 8.00 to 2 o'clock and that for one of the witnesses - sorry, she was only available on 19 November.

PN623

THE COMMISSIONER: All right.

PN624

MR WATSON: Now - - -

PN625

THE COMMISSIONER: Which was the witness who was described as unwilling?

PN626

MR WATSON: I don't know. I don't know. I can't answer that question. I don't know because I don't have those instructions. I'm not trying to be difficult. I just don't know. I don't know where that came from.

PN627

THE COMMISSIONER: Well, when were the representatives of the two bodies or the union and the university informed that those witnesses weren't available or unwilling? Somebody must have known that, surely.

PN628

MR WATSON: From the university's point of view?

PN629

THE COMMISSIONER: Yes.

PN630

MR WATSON: I don't know. I can't answer that.

PN631

THE COMMISSIONER: I mean, the university - well, then, who conveyed to these two potential witnesses the times that they were required to appear before the panel?

PN632

MR WATSON: Obviously the university.

PN633

THE COMMISSIONER: All right. So when that was conveyed by the university what was the response they got - one was unwilling - - -

PN634

MR WATSON: No, no.

PN635

THE COMMISSIONER: Well, then who determined that one was unwilling and one was unavailable or whatever?

PN636

MR WATSON: The panel came to that conclusion.

PN637

THE COMMISSIONER: Based on what?

PN638

MR WATSON: Exactly. We don't know because it wasn't put to us. That's the problem. look, if you have a look at the transcript, if you have a listen to the tapes, you will not hear one word about this - not one word.

PN639

THE COMMISSIONER: So what, you're saying the panel made an assumption about unavailability or unwillingness, because that's a pretty big assumption to make, that someone is unavailable or someone is unwilling without being told something.

PN640

MR WATSON: No, they acted on information. It wasn't information which was tested with us. That's my problem.

PN641

THE COMMISSIONER: So it was never formally put to the panel on the record - - -

PN642

MR WATSON: Exactly.

PN643

THE COMMISSIONER: - - - that one was unwilling or one was unavailable for some reason?

PN644

MR WATSON: Exactly, because no-one - they had come to the view, because of this non-compliance with the sexual harassment policy there was no point.

PN645

THE COMMISSIONER: Who is "they" had come to the conclusion?

PN646

MR WATSON: Everybody.

PN647

THE COMMISSIONER: What, including the two complainants? How would they know?

PN648

MR WATSON: No, no, no. Everybody in terms of - involved in the process - the panel and the representatives for the university and the NTEU. That's who I mean by everybody.

PN649

THE COMMISSIONER: They came to the conclusion that one was unwilling or - - -

PN650

MR WATSON: It was obvious - no, no, no, they came to the conclusion - it didn't matter whether unavailable, unwilling - - -

PN651

THE COMMISSIONER: So they came to the conclusion there was no need to call them.

PN652

MR WATSON: Exactly, yes.

PN653

THE COMMISSIONER: I wonder - well, I'm trying to work out how for the life of me anybody could then say one was unwilling or one was unavailable if the panel and those people appearing before it reached the conclusion - I don't know at what time they reached the conclusion - but because of alleged non-compliance with some requirement, that that was the end of the proceedings and the proceedings should go no further because in a nutshell, that's what was determined, wasn't it?

PN654

MR WATSON: Yes.

PN655

THE COMMISSIONER: I'm just trying to work out how they came to that conclusion.

PN656

MR WATSON: Which conclusion are you talking about?

PN657

THE COMMISSIONER: That because of the non-compliance that the proceedings should go no further. I want to know then what were the two witnesses told, the two complainants told?

PN658

MR WATSON: By whom?

PN659

THE COMMISSIONER: And by whom, yes.

PN660

MR WATSON: Well, I can't answer that but I can answer - look, can I hand up the last page of the transcript that we have.

PN661

THE COMMISSIONER: Is it a short reference?

PN662

MR WATSON: Yes.

PN663

THE COMMISSIONER: Just read it out.

PN664

MR WATSON: All right. About two or three pages before this there's some discussion going on about, you know, matters involving the effect of what's happened. I mean, mechanics, if I can use that word. Well, what's the effect of this in terms of university policies, that sort of thing. And Mr Tilbrook says this:

PN665

Just before you put the tape off -

PN666

so obviously this is right at the end of the proceedings, if I can even call them proceedings.

PN667

THE COMMISSIONER: Well, I was going to say, that's a moot point, whether there were any proceedings. I guess there was. There was evidence taken from two witnesses about non-compliance.

PN668

MR WATSON: Yes.

PN669

Just before you put the tape off, I take on board the comments you've made about the contribution ...(reads)... of its members and I can't think of another committee where that happens.

PN670

Big deal. Ms Sowdens says:

PN671

No, it is a very important role and very burdensome and should be recognised as such. Thank you all very much, and certainly to Howard. I hope things can move on for you in a positive light.

PN672

Obviously that's Dr Walmsley she's addressing. Professor Davies:

PN673

Can I just ask a couple of questions -

PN674

and obviously with a degree of levity Ms Sowdens says:

PN675

No, no, no.

PN676

Then she says, "Go on" and Professor Davies says:

PN677

That's one of the things.

PN678

Mr Tilbrook says:

PN679

The other thing is -

PN680

or Ms Sowdens says, and we're getting right to the end of the transcript here:

PN681

I was just going to ask Karen if you wouldn't mind going and talking to - and Cath, so that - and also notifying the witness in Gladstone that she need not be concerned that this matter is not -

PN682

and Karen, whom I assume is somebody from the university who was there helping the panel.

PN683

I spoke to Margaret before but Jim was in here and I phoned her back and she said that it wouldn't have happened today anyway because she was - I think she was a bit hesitant. All right, thank you for that.

PN684

Then Professor Davies:

PN685

Kim Purnell as well.

PN686

Karen:

PN687

Kim Purnell. I'll contact Margaret and everyone just to let them know that it's been completed and they won't be needed.

PN688

Mr Tilbrook:

PN689

Yes, I think Bill was on the list.

PN690

That's Mr Granville. And Karen says:

PN691

Yes, Bill as well.

PN692

And then the tape finishes. There's nothing - - -

PN693

THE COMMISSIONER: I wouldn't know what to make of all that.

PN694

MR WATSON: Well, what it indicates is that there was never any suggestion of saying to people they're unavailable or unwilling and we're going to - - -

PN695

THE COMMISSIONER: It seems to me though that what's inferred there is that a Gladstone witness - and Gladstone is some little distance from, I assume - where was the panel meeting?

PN696

MR WATSON: Okay. What the panel had concluded is they were going to hear evidence by video-conference.

PN697

THE COMMISSIONER: I see.

PN698

MR WATSON: So that there was a person - a witness - - -

PN699

THE COMMISSIONER: There was a video-link in Gladstone which was going to be utilised.

PN700

MR WATSON: - - - in Gladstone and one in Mackay.

PN701

THE COMMISSIONER: I see. So in effect then the panel cancelled at least one of the witness's appearance before it.

PN702

MR WATSON: Absolutely.

PN703

THE COMMISSIONER: One - but what about the other? Well, that might be the one that was unwilling.

PN704

MR WATSON: But see, it's all speculation.

PN705

THE COMMISSIONER: I don't know.

PN706

MR WATSON: But the trouble about this, Commissioner, is that it's speculation. If we'd been put in the position - if the university had been put in the position of saying, "Look, we're going to make findings against you. We're going to bring these proceedings to a conclusion by finding that this person is unwilling to give evidence," wouldn't we be entitled to make submissions about that? Of course we would. It is a denial of natural justice, not to be in a position to be able to make submissions about something so fundamental as the unwillingness or unavailability of a witness. There is nothing here, nothing about that. And as I keep saying, the reason why it happened, because no one turned their mind to it. It wasn't a matter of concern because they thought the proceedings were off because of this alleged non-compliance with the policy. I don't think there is anything more that I can - - -

PN707

THE COMMISSIONER: Very well. I will just take a short adjournment, Mr Danby, before I ask you to make any further submissions.

PN708

MR DANBY: Thank you, Commissioner.

SHORT ADJOURNMENT [11.45am]

RESUMED [11.51am]

PN709

THE COMMISSIONER: Yes, thank you, Mr Danby.

PN710

MR DANBY: Yes, thank you, Commissioner. I believe it is probably most appropriate if I proceed in basically the same order that Mr Watson raised some of these issues.

PN711

THE COMMISSIONER: Sure.

PN712

MR DANBY: Just a comment in regard to his mention that there is no substance by the NTEU; it is true that we regard this as a procedural matter, one which arises out of the application of the agreement, and we do have concerns about weighing into the substance of the actual case.

PN713

THE COMMISSIONER: Well, I certainly haven't heard anything about the substance of the case.

PN714

MR DANBY: Well, it was mentioned that we had no substance, and I was explaining that we didn't that it was appropriate to weigh into those issues. It was mentioned early on that - and I don't know for what purpose, but I believe it requires some clarification - that Mr Tilbrook, the agent for the Vice-Chancellor, and I condensed the allegations. Now, I am - well, Mr Granville was present during some of the proceedings, but I am the only person here who was actually present at all, and I recognise the difficulty of providing evidence from the bar table.

PN715

But if it is important, if it is a relevant issue, then I can make the resulting documents available, but what was undertaken was to make the documents comprehensible. There were no elements of the original allegations which were dropped out.

PN716

THE COMMISSIONER: Mr Danby, I don't see that as being relevant to my considerations.

PN717

MR DANBY: Okay, then I will move along, Commissioner. There was a contention made about submissions that can be made by agents, and Mr Watson indicated that if black was white, if it was contended that black was white or white was black that this would raise a difficulty for the panel. And he said further that the panel was blinded and so on. We say that the panel was fully entitled to accept the submission of the Vice-Chancellor's agent, particularly where that submission was agreed by the NTEU, absolutely entitled to accept that submission.

PN718

Not - well, it is arguably the case they might be obliged to accept it, but that is not the position we are taking here; we are saying that they were entitled to accept it. No one can speak for that panel, save the panel itself, and it has indicated that it acted as it did based on the positions taken by the Vice-Chancellor's agent.

PN719

THE COMMISSIONER: But Mr Danby, the role of the agents, or yourself and Mr Tilbrook, in my view, was to assist the panel. The panel is responsible for its own actions.

PN720

MR DANBY: Yes, Commissioner, I agree with that.

PN721

THE COMMISSIONER: And you know, Commissions at times act upon the submissions that are made; sometimes we reject them out of hand obviously, and tell the parties where we think they are wrong, but essentially, though, the panel had its own obligations and responsibilities, as did the agents.

PN722

MR DANBY: We believe that the University is considering too narrowly the responsibilities of the panel. It only cites the terms of reference that it chooses to recognise. And in carrying each of the appropriate provisions, the University mentions most often 31.8; that the terms of reference of the review panel are to report to the Vice-Chancellor and President or nominee, and so on. But it is important that this Commission, and indeed, the panel, took into consideration the injunction of 31.10 which says:

PN723

The review panel may interview any person it thinks fit to establish the merits of facts of the case, and take into account such further material as it believes appropriate to the case.

PN724

Well, the Vice-Chancellor's agent made submissions about what he believed was appropriate to the case, and that clause empowers them to take that into consideration.

PN725

THE COMMISSIONER: Yes, but their role was to report on the facts, and I see that as suggesting that - "and take into account such further material" - that can only be in pursuit of the facts - "any such further material".

PN726

MR DANBY: We say that the admissibility, or the relevance of any particular piece of information is for the panel to decide. And it may be in some cases that there will be a paucity of evidence arising out of those determinations made by the panel. Indeed, it might be that, for example, a witness gave some kind of second-hand testimony, and the panel felt it couldn't take that into consideration. It could easily report to the Vice-Chancellor that they could not report on the facts because they could put no weight into a submission made by a witness.

PN727

THE COMMISSIONER: Well, they would report that there are no facts that could be relied on.

PN728

MR DANBY: They are saying that there is an absence of facts, and arising out of the positions taken by the University's agent, and that it is constraint in this case was obliged to report straightforwardly that given the absence of the facts put forward by the University, because the University had this obligation to put up a case in regard to these matters, and it didn't. And the idea that somehow Mr Tilbrook was prevented from undertaking this role is clearly nonsense.

PN729

Throughout the hearing he had every opportunity to say, "I would like to put this matter over, to gain this witness, or that witness." The first witnesses of the case were witnesses put up by Mr Tilbrook. He was perfectly free to put up any witness he so chose, and did not.

PN730

THE COMMISSIONER: Well, you might also come to the conclusion Mr Tilbrook misled himself.

PN731

MR DANBY: Well, it might well be the case that he misled himself.

PN732

THE COMMISSIONER: Well, it sounds very much like that to me, that he did.

PN733

MR DANBY: It is just to say that - - -

PN734

THE COMMISSIONER: And you certainly wouldn't be complaining about him misleading himself, Mr Danby, on that occasion.

PN735

MR DANBY: Well, I have to agree, Commissioner, that yes, if indeed, if the employer - - -

PN736

THE COMMISSIONER: Let me say, if I was in that position I wouldn't be telling him about it.

PN737

MR DANBY: Well, I have to say that in this case I frankly agreed with his position, I mean, it wasn't simply tactically for our member. I believe that is the case, and I won't go into the details. This would carry us into some of the substance of this case, but - - -

PN738

THE COMMISSIONER: No, I don't want to do that.

PN739

MR DANBY: Well, I am just saying that I believe that there would be background which would justify my believing that as a matter of substance, and not just procedure. But in this case, yes, the University is obliged to be there on the day and put forward the case, and if the panel says there is no material available for us, they have little choice but to report that it was unsubstantiated.

PN740

THE COMMISSIONER: Well, let me take it further. Not only did Mr Tilbrook, in my view, based on what I have heard, mislead himself, he misled the panel.

PN741

MR DANBY: When we say misled the panel, Commissioner, that is to say that his advice supposedly seemed wrong. There has been no evidence submitted to us that he was wrong in regard to his contention about Federal Court cases. He made - - -

PN742

THE COMMISSIONER: He may be, but at the end of the day the concern that I have got is that somebody has made some assumptions about the availability or whatever of the two complainants, and for some - I am not sure how that was conveyed to the complainants, or at least one of them, the one who was suggested to be available in Gladstone and going to give evidence by way of video-link - that they were no longer - they weren't needed. I mean, that is a concern.

PN743

MR DANBY: Commissioner - - -

PN744

THE COMMISSIONER: And how conveyed that to them and why is not before me, is not something I have been made aware of, because I don't think anybody is clearly aware of how that was done.

PN745

MR DANBY: Well, I am aware, Commissioner, but I would say that the matter is resolved, I believe, by the fact that the unanimous report is signed by all three individuals attesting to the fact that one of the witnesses was unavailable and the other indicated a desire not to appear. Now, I agree that this information was heard off the record, that is the case. But I don't believe that the University should - - -

PN746

THE COMMISSIONER: Should it have been heard off the record?

PN747

MR DANBY: Pardon me, Commissioner?

PN748

THE COMMISSIONER: Should that have been dealt with off the record?

PN749

MR DANBY: That is another matter, Commissioner.

PN750

THE COMMISSIONER: Well, I understood that the proceedings, other than the conclusions where the panel might be deliberating, should have been recorded.

PN751

MR DANBY: Commissioner - - -

PN752

THE COMMISSIONER: I think that is an obligation under the certified agreement.

PN753

MR DANBY: Well - - -

PN754

MR WATSON: Commissioner, it is in 31.11.

PN755

THE COMMISSIONER: Exactly, that is why I thought I had read something.

PN756

MR WATSON: Yes, yes, the panel - - -

PN757

THE COMMISSIONER: That there was an obligation for that. That shouldn't have been dealt with off the record.

PN758

MR WATSON:

PN759

The review -

PN760

the words say -

PN761

The review panel will keep a tape-recording of its proceedings, but not its same deliberations.

PN762

MR DANBY: Well, I would say if that is the issue, there are two points I would raise. First of all, that may be in fact a technical defect that they failed to do that. That doesn't necessarily render their findings - - -

PN763

THE COMMISSIONER: No, but it might assist in ascertaining as to the unavailability and unwillingness, you would have thought would have meant at that stage that the panel was satisfied that at least one of the complainants was not willing to give evidence, so obviously they couldn't find any facts associated with that allegation by that person, and then there was a question of how you dealt with the unavailability of somebody, and I am not sure, if somebody indicates that they are willing and they are available, what intervened to see that that didn't occur? Well, what I am saying is that I think Mr Tilbrook misled himself and he also misled the panel, and that really caused some problems which I am now confronted with. That is - you know, there is a chain reaction in all of this.

PN764

MR DANBY: Yes. I think it is part and parcel of the role of agent, Commissioner, that you go there and you do the best job that you can.

PN765

THE COMMISSIONER: No, I don't disagree with that.

PN766

MR DANBY: And everyone, including the panel, and the panel is entitled - - -

PN767

THE COMMISSIONER: Doesn't mean you will always get it right.

PN768

MR DANBY: And the panel is entitled to take the positions by the agents as being definitive of a position of the University or the employee respectively. And the idea that somehow it is always for this panel to second-guess whether the agent might be misleading himself puts a burden on a panel I can't imagine them fulfilling.

PN769

THE COMMISSIONER: Well, I think he did - as I said, he did more than mislead himself, he misled them as well.

PN770

MR DANBY: Yes. But how can the panel - - -

PN771

THE COMMISSIONER: And I am not saying aided and abetted by you, either, Mr Danby.

PN772

MR DANBY: Yes, thank you, Commissioner. It is just to say that the alternate - I see no alternative, but for the ability of a panel to be able to accept the submissions, if it so chooses, or one or more agents, and I don't believe it is appropriate to try and second-guess those decisions, those findings in regard to those submissions at a subsequent time, as the University seems to be doing now. The idea - - -

PN773

THE COMMISSIONER: But haven't we got a situation where the University called - who called the two witnesses who gave evidence as to the non-compliance issue?

PN774

MR DANBY: Mr Tilbrook did.

PN775

THE COMMISSIONER: All right. So he calls two witnesses who then give evidence about alleged non-compliance, and then for some reason the whole thing runs off the rails because immediately everybody throws their hands up and says, "We can't really proceed with this now. You know, there has been non-compliance, that is alleged breach of the certified agreement; that means that this process is at an end and we can take it no further." That's essentially what happened it sounds to me.

PN776

MR DANBY: If the Vice-Chancellor had walked into that room and said that that was the case, we wouldn't be here today. We say the agent said it in the Vice-Chancellor's place and it should have the same effect. Now, the problem here is that you either have agents or your don't. Are they facilitators, are they representatives, are they some kind of advocate with limited authority?

PN777

THE COMMISSIONER: I would have thought the parameters of the authority that is given to an agent is something that is clearly understood by the agent and the person who commissions them in that role.

PN778

MR DANBY: It is not for us to try and guess whether or not there is clear communication between an agent and his or her principal. The individual goes there and is it for the panel to say, "Well, I understand what you said, Mr Tilbrook, but have you checked with the Vice-Chancellor to see if this is a position that has been approved by the Vice-Chancellor.

PN779

THE COMMISSIONER: No, well, you would assume that he had instructions of an order whereby he could stand up and make submissions.

PN780

MR DANBY: Indeed so, and Mr Tilbrook is not an inexperienced representative. He is a senior industrial officer, he is a non-practising lawyer. When he tells the panel that, indeed, the matter could proceed no further, I don't believe it was appropriate for the panel, or necessary for the panel really, to say to Mr Tilbrook, "Maybe you should go check with the Vice-Chancellor to make sure that you have the approval of the Vice-Chancellor to do something as serious as that." He had agency. He had agency authority and they accepted that agency authority and went with it. They operated on the basis of the what the university provided to them, and they operated on the assumption that the witnesses were unavailable.

PN781

Now, I take your point that this matter should have been on the transcript. However, all three members of the panel have signed a unanimous report indicating that that is their understanding, and if that is in their - there has been some contention about what is a finding, but if that is in their report, I don't think it is for the university to second-guess that now and say, "We don't believe it is something on which it could be relied because we didn't see it in the transcript."

PN782

THE COMMISSIONER: Well, let me tell you the doubts I've got about this. I think that in one instance the unavailability of one of the witnesses was caused by the advice given to the panel and someone on the panel conveyed certain advice to a witness. I don't think it is the other way - I don't think the witness ever said, "I'm not available." I think it came from the other direction based on what I can make of this.

PN783

MR DANBY: That is what the report said and that's what actually happened in that proceeding. If you look at the transcript - and I don't want to weigh into the transcript unnecessarily - if you back up, by the time those off-the-record remarks were made, this panel had closed.

PN784

THE COMMISSIONER: Yes, but you see - - -

PN785

MR DANBY: That remark to the individual was made in order to let the people know that this matter was over and that - - -

PN786

THE COMMISSIONER: But this is the point - I don't want to interrupt you but I have to. This is the whole point of this exercise. Somebody took the view that this alleged non-compliance meant that the matter couldn't proceed - that the review panel, in effect, its hands were tied, it had nothing to perform, was, in effect, what is the view that was reached. The panel then forms that view, "Yes, we agree with that. There has been non-compliance," and then Mr Tilbrook quotes them some authorities and refers to the Federal Court and some authorities there. So all of a sudden, somebody says to the witness in Gladstone, "Oh, you won't be needed. You are not going to be needed. We can't proceed," and that is the reason why you had the unavailability of one - I don't know about the unwillingness of the other. I wouldn't have a clue about that. But essentially, it wasn't that there was an unwillingness to hear that evidence - rather, to give that evidence; there was information conveyed to that witness that they weren't required.

PN787

MR DANBY: Commissioner, there is no evidence of that in that transcript.

PN788

THE COMMISSIONER: No, there is no evidence, sure, because it wasn't recorded. That is the problem.

PN789

MR DANBY: I accept that it should have been recorded, Commissioner.

PN790

THE COMMISSIONER: It certainly should have.

PN791

MR DANBY: But the panel has unanimously signed this document indicating that that is what happened and, in the absence of contrary - - -

PN792

THE COMMISSIONER: Yes, but they have done that in a vacuum.

PN793

MR DANBY: And I can give you this evidence from the bar table that that is not what happened. The panel was advised - let me back up - - -

PN794

THE COMMISSIONER: You can't give me that evidence from the bar table. That is right.

PN795

MR DANBY: Let me go a little further back about this proceeding. The committee - there was much discussion about how the evidence would be taken. We wanted to see the witnesses in person. The panel decided against us, that they could be heard by video. When the videolinks were established and the question was asked, "Are the witnesses ready?" the answer was no, they were not: one was unavailable and one was unwilling. That was the straightforward advice to the panel.

PN796

Now, I asked - I flagged the utility of bringing the chair of the panel here to discuss such issues and an objection was raised by the university in regard to that utility, and now they are going to make supposition about what the panel has signed. We have three signatures on this report saying that is what happened and it doesn't seem to me that there is room for supposition.

PN797

THE COMMISSIONER: Let me raise this with you.

PN798

MR DANBY: Yes.

PN799

THE COMMISSIONER: If, on the first occasion, Mr Tilbrook was right, that the panel couldn't proceed because of this alleged non-compliance, why is that not still the estoppel? Isn't that the estoppel?

PN800

MR DANBY: Frankly, I would agree that, Commissioner, but since we have got into this without prejudice - - -

PN801

THE COMMISSIONER: That is if it was a valid estoppel in the first place.

PN802

MR DANBY: Without prejudice to that, the panel was faced with two situations: one was the unambiguous advice from the agent of the Vice-Chancellor that the matter couldn't proceed and the second was the unavailability of the witnesses, and to place them in that situation and then say they erred seems to me to be facile.

PN803

THE COMMISSIONER: But, on its face, that is not necessarily factual, is it, this unavailability business. Unwillingness is a different issue to somebody being available and told that they are not needed - who was available and told they were not needed. I don't see how that is unavailable.

PN804

MR DANBY: They were told that because the committee had ended. At that point - - -

PN805

THE COMMISSIONER: Yes, but I am trying to make this point. I want to get some clarification on this. Where do you say that this alleged non-compliance with the sexual discrimination or harassment policy at the university wasn't complied with in the sense that it should have been. Where is the estoppel reached in terms of the panel?

PN806

MR DANBY: Well, I don't want to get us too deeply into the specific matter, but it seems to me - - -

PN807

THE COMMISSIONER: I am trying to sort out why the panel formed the view that it couldn't proceed because, obviously, you supported that submission.

PN808

MR DANBY: The two individuals involved - and their statements indicated they did not wish to appear, in writing, against this individual.

PN809

THE COMMISSIONER: That isn't the question I asked you, Mr Danby. I asked you to explain to me - - -

PN810

MR DANBY: Because they made a report to the sexual harassment officer. The sexual harassment officer took their information - the sexual harassment officer then took information from Dr Walmsley because the complainants had said that they wanted to see arrangements that would prevent a situation like this arising in the future. The procedure then said that those suggested changes needed to go to the complainants so that they could consider what was being suggested. That never happened, Commissioner.

PN811

THE COMMISSIONER: So that is under that policy. But the allegation of misconduct arises in its own right under the terms of the certified agreement, doesn't it?

PN812

MR DANBY: It does, indeed.

PN813

THE COMMISSIONER: So what happened before the sexual harassment officer and that policy - - -

PN814

MR DANBY: I understood Mr Tilbrook to be saying that because the procedure hadn't been followed, there could be no procedural fairness to Dr Walmsley because he never had his opportunity, as the university had guaranteed him, to put those - well, to actually have his written submission made to those complainants.

PN815

THE COMMISSIONER: So the allegations weren't treated in the manner that they should have been under the sexual harassment policy and so you are saying that that then doesn't lay anybody open to make allegations of misconduct until such time as the matters before the sexual harassment officer were completed consistent with that policy.

PN816

MR DANBY: That, indeed, is the specific advice of that policy, Commissioner. But, again, we are getting into a lot of the substance of the case - - -

PN817

THE COMMISSIONER: No, not really. I am trying to nail down why it was suggested to the panel that they couldn't proceed because of that.

PN818

MR DANBY: The step for notifying to the Vice-Chancellor that there had been misconduct only would arise subsequent to that as a university policy, and the university never took that step.

PN819

THE COMMISSIONER: I see. So you say that creates a situation where serious misconduct, that term, can't be applied to Dr Walmsley because the process hasn't been properly commence?

PN820

MR DANBY: I believe that the Vice-Chancellor is constrained by the policy of the university which says that she may not make the decision about taking this matter until the procedures for reviewing it have been undertaken.

PN821

THE COMMISSIONER: So, in effect, you are saying that the actions of the Vice-Chancellor where she triggered those requirements under the certified agreement were premature. That is, in effect, what you are saying?

PN822

MR DANBY: Very much so, Commissioner, under the university's own policy. Now, I have to say, this is without prejudice to my contention that the panel was entitled to take and accept the advice of the Vice-Chancellor's agent, whether or not that might have been true. Maybe it is arguably the case that that isn't to be taken into consideration. They were entitled to have Mr Tilbrook tell them, in place of the Vice-Chancellor, that this is all news to us because the university had been unaware of this up to that point seemingly. They were entitled to have the university say to them, "We're very sorry, committee, we are unaware of our own failure to operate our policy in regard to investigating this matter, and, because we feel constrained by our own policy, we don't believe that it is fair or proper to proceed."

PN823

What are they going to say in regard to that? Are they obliged now to become some kind of a board which must indeed review the university's policies. It seems to me that the Vice-Chancellor's agent is - the panel is entitled to take that agent's comments - - -

PN824

THE COMMISSIONER: Well, they are in effect being asked to interpret the law based upon those Federal authorities that were raised. I mean, if they didn't want to put that in issue, they would have had to say, "Well, look we don't concur with your submission, and your reliance upon the authority that you have raised with us." I would assume.

PN825

MR DANBY: They were free to - they were free to question it, I suppose, Commissioner.

PN826

THE COMMISSIONER: Yes, but their role is a fact finding role.

PN827

MR DANBY: Exactly, Commissioner, and if indeed the - if indeed the university explains its failure to proceed with the matter by an explanation that there is procedural unfairness to the accused, I can't imagine how they can not take that as a further matter as is envisaged by the clause, and as a relevant further matter as to why the university decided not to proceed. The university decided not to proceed. Mr Tilbrook could have said, "Notwithstanding this, I would like to present the following witness." Now, it was at that time then, at that same time that the panel received the advice that on the two links one was unavailable, one was not there, didn't front, and the other was unwilling to proceed. That is their statement - that is signed and attested to by the three members.

PN828

I understand the difficulty of my being a witness in this proceeding, but at the same time there is no contrary evidence, and the advice - and the view the university can now say that because it wasn't recorded on tape we don't believe it is the case. They have a signed statement from the three members of the panel saying that that is the reason why they couldn't take further evidence. And they say it is both reasons. They don't say one or the other. They say both reasons gave rise to their inability to come up with any further facts. I say that "statutorily" they met their responsibility which was to report the facts, and in this case it is the lack of facts.

PN829

THE COMMISSIONER: Well, there were no facts presented.

PN830

MR DANBY: Well, that's not strictly - - -

PN831

THE COMMISSIONER: Essentially.

PN832

MR DANBY: That's not strictly true, Commissioner. In addition to hearing from the witnesses in regard to the matter of the procedures being followed, there had been considerable material about the circumstances and - well, about what these individuals knew about this, and the reports they had taken. And now let me return briefly to this issue of the condensing the allegations, because I think it is relevant here. The university made a series of allegations, and in those allegations were a number of contentions about the various things.

PN833

About who was on what boat, who came on on certain days, and so on. We took all of those, and Mr Tilbrook and I, on the night of the first day, and we went through and he and I agreed what the agreed facts were. But there was a boat, it was, you know, under the control of the university, that the Code of Conduct had application, that Walmsley was on the boat on a certain day, that this person was there, that person was there; we went through almost - - -

PN834

THE COMMISSIONER: So the jurisdictional settings were in place?

PN835

MR DANBY: What we did essentially was had an agreed set of facts, which addressed a great deal of the - in fact, probably half the actual particulars of the allegations were agreed between the parties. And on the second day, we actually then went forward with most of the contentions made in the allegations as agreed facts, and we had a list of those issues which would be put to proof. And no element was left out. There was no - there was no element which was left out. There was no compression, or a reduction of the issues raised by the university.

PN836

THE COMMISSIONER: So there was an agreed set of something?

PN837

MR DANBY: What happened was we took all of the particulars that had been raised in the allegations. We organised them so that they applied globally, that is to say, where they had been repeated in regard to individual charges we said, "Yes." At all times, this was the case. At all times, this was the case. We agreed most of it, and then all we had left were those issues which were in dispute. The issues which Dr Walmsley had disputed in his reply to the Vice-Chancellor, and which was a much more narrow set of points.

PN838

But the panel could never get to that, Commissioner, because the university said it couldn't proceed, and the university said that - and the panel was advised that the witnesses were not available, or unavailable, or unwilling - unwilling or unavailable. I can't imagine what an expectation would be of a panel, except to say, "We will report this, and in those terms," which is what - which is what they did. They reported in the terms of the available evidence, which in this case was nothing that was able to substantiate the allegations against the accused.

PN839

Now, I would be happy to address to the case that has been brought to the attention of the - - -

PN840

THE COMMISSIONER: That is the High Court - - -

PN841

MR DANBY: - - - Commission, the High Court authority.

PN842

THE COMMISSIONER: Yes.

PN843

MR DANBY: Let me just find my notes on that, Commissioner. First of all, in regard to this decision. Now, this is about prejudice to our view that there was no error to be redressed. The issue in the case cited by the university presumes that there was an error, and more to the point, a failure - a statutory failure to undertake its responsibilities. As we have just argued, we don't believe there is any such failure, so our response in regard to the case is in that context.

PN844

First of all, we would like to say to the Commission, that in this High Court matter, this is a matter in a review for procedures which derive from an Act, and we say it is distinguished in that regard because the procedures in question here are procedures under an enterprise bargaining agreement. We believe that is a relevant distinction, because in the case of an Act the purposes of the Act are known, and therefore the body which is reviewing the action of any Tribunal under that Act can make some assumptions about the purposes of the Act, and fill in blanks so to speak in terms of those purposes under some circumstances.

PN845

That is not the case in regard to an enterprise bargaining agreement, and that situation has been addressed in a decision which we have brought to the attention of the university and provided copies to this Commission. And that decision is indeed the CFMEU v Amcor. It is a 2002 decision, FCA 6.10. Now, the import of this decision I guess can be found best at the end of it. What that decision says is, and this is at paragraph 18 on the penultimate page of the decision at the very bottom. In that Finkelstein J says:

PN846

Yet there comes a point when a Court of construction must resist the temptation ...(reads)... It is not so easy when there is an oversight.

PN847

And he goes on to indicate some authorities. But what the import of this decision is is that because in the case of an Act, there are opportunities to make those kinds of judgements, but that it is not so easy to do that - not appropriate to do that in enterprise bargaining agreements. And frankly, we believe that that view is actually supported by the decision which the university has brought - the High Court decision which the university has brought to our attention.

PN848

And we would call your attention to the paragraph which followed the one which the university brought to your attention. They indicated 6. I would like to take you to the bottom of paragraph 7 of that High Court decision where they say in regard - - -

PN849

THE COMMISSIONER: Yes.

PN850

MR DANBY: Where they say in regard to functus officio. They say:

PN851

However the Court held that the principle of functus officio should not be strictly applied if the Tribunal has failed to discharge its - - -

PN852

THE COMMISSIONER: I am not on the same page that you are.

PN853

MR DANBY: Sorry, Commissioner. There should be - we are working from a different copy - - -

PN854

THE COMMISSIONER: We are?

PN855

MR DANBY: - - - of the decision. It is paragraph 7 of the High Court decision.

PN856

THE COMMISSIONER: Now, my paragraph 7 starts in Chandler v Alberta Association. Is that the one?

PN857

MR DANBY: Yes, Commissioner, and I was taking - I am sorry, Commissioner, my apologies. I am taking you to the last sentence of that paragraph.

PN858

THE COMMISSIONER: Thank you.

PN859

MR DANBY:

PN860

However, the Court held that the principal of functus officio should not be ...(reads)... to discharge its statutory function,

PN861

and then:

PN862

There are indications in the enabling statute that a decision can be re-opened in order ...(reads)... committed to it by enabling legislation.

PN863

You see that that element is missing in the case of the instant case. There is no statute, or - and there is nothing in the EB, the enterprise bargaining agreement, that would provide indications enabling the re-opening, and we believe the matter very much turns on this issue of that. We carry you further, Commissioner, to paragraph 11.

PN864

THE COMMISSIONER: Yes.

PN865

MR DANBY: Where they say, and the answer and this is again the last sentence of the - oh, no, I'll read the whole clause:

PN866

To say that a Tribunal has considered an application, reached a conclusion ...(reads)... not done following communication of the decision.

PN867

Now, well, we say this, that this is - saying to us in regard to the incident case, is that in the case of Mr - I'm sorry, I've lost his name here. What's the pronunciation - - -

PN868

THE COMMISSIONER: Bhardwaj.

PN869

MR DANBY: Bhardwaj. He was claiming that he was denied administrative fairness as an individual by the failure of that panel. There's no such claim in this particular case. The only person who can claim the right to procedural fairness and natural justice is the person in jeopardy, and in this case, that's Dr Walmsley. The idea that the university claims for itself the same consideration to natural justice and procedural fairness that Dr Walmsley claims as the individual in jeopardy is a nonsense - - -

PN870

MR WATSON: Why?

PN871

MR DANBY: - - - and in - well, and I'd like to continue without interjections from my friend, but I would take you to paragraph - - -

PN872

THE COMMISSIONER: Well, I think the point that's being made by the offhand remark by Mr Watson is where did denial of natural justice and lack of procedural fairness only apply to one party; when did that occur?

PN873

MR DANBY: Well, there's only - - -

PN874

THE COMMISSIONER: I would have thought that's universal.

PN875

MR DANBY: I don't believe that it is universal, Commissioner, that - there's only one person in jeopardy in this process, that this panel owed - to whom does the panel owe the consideration of procedural fairness and natural justice? Not the complainants; they're merely witnesses in the process. Obviously, you're not going to abuse people in the process, but they, by virtue of the enterprise bargaining agreement have not earned any consideration. Is it the Vice-Chancellor? Well, the Vice-Chancellor had a representative and there's - I don't believe that in the circumstances - - -

PN876

THE COMMISSIONER: Yes, I see the point you're making.

PN877

MR DANBY: Yes, and carrying this further to paragraph 46, I believe this a relevant paragraph as well, and it's the second sentence of paragraph 46:

PN878

To categorise decisions in that way tends to ignore the fact that the real issue is whether ...(reads)... pursuant to which it is made.

PN879

Now, this says two things: one is this issue of the effect on the individual involved and that's Dr Walmsley and not the witnesses, and secondly, it's talking about the law pursuant to which it was made. Now we don't believe that there's any argument for reconvening that grows out of the enterprise bargaining agreement. The enterprise bargaining agreement is absent obviously any express provision about the reconvening of the panel. It appears to us that the university is making an argument that it is somehow implied.

PN880

It doesn't appear to us that it is an implied provision by virtue of the fact that they can't operate but for that process because clearly the Vice-Chancellor is capable of taking the decision which has been provided to her and unanimously signed by the panel members and operating on it. It meets all of the - all of what we might otherwise think of as the statutory requirements. They've made findings; they've reviewed the evidence as small as that evidence would be, and have indicated unambiguously to the Vice-Chancellor that they don't believe that the allegations can be substantiated because of the absence or the evidence or its absence provided to them on the days provided for its being presented.

PN881

Let me just look at my notes, Commissioner. Another issue in regard to this is that the case of the High Court decision was where the Tribunal in question on its own motion, decided to consider some of the issues arising. Now, the university has said in its submission, and I'll find the language here. It's on page 3 - it's their item number 10. It says:

PN882

Fortunately the review panel, after having had their - - -

PN883

THE COMMISSIONER: I'm sorry, this is the report, isn't it?

PN884

MR DANBY: This is the university's - it's CQU1. It's their outline of their submissions.

PN885

THE COMMISSIONER: Oh, I'm sorry. Yes.

PN886

MR DANBY: They say on the third page, it's item number 10:

PN887

Fortunately the review panel, after having had their errors pointed out have decided to reconvene to complete their assigned task.

PN888

Well, Commissioner, the only evidence that's before this Commission is the - on this point, aside from the submissions of the university, but the only evidence is indeed the letter of the Vice-Chancellor which did not invite the panel to consider whether it should reconvene. We don't know what's in the minds of the panel about reconvening. All we know is that the Vice-Chancellor, in unambiguous terms told the panel, "Be there, you are obliged to be there", and again I can advise this Commission that our advice to our member was, "You are an employee of the university. If your chief executive officer tells you to be some place, you should be there".

PN889

We don't want to have our member find herself subjected to any disciplinary action arising out of a failure to follow a direction from the Vice-Chancellor, but that's a separate issue about whether or not this panel on its own motion, decided to reconsider this case. There is no evidence to that effect, Commissioner. There is only the letter of the Vice-Chancellor saying, "You must do it", directing them unequivocally to undertake that role. Now, this carries on - - -

PN890

THE COMMISSIONER: So you're saying it wasn't a spontaneous decision of the review panel.

PN891

MR DANBY: Absolutely not. They regard - they signed a unanimous decision. They thought it was over. They didn't decide that something else was to happen; the Vice-Chancellor did. This is an external advice that they are to reconvene. It's external advice to three individuals. One is someone acting almost as a private contractor, the Chair. The other is the Deputy Vice-Chancellor - a Deputy Vice-Chancellor at the university who is - answers directly to the Vice-Chancellor and the third is an academic staff member.

PN892

If the Vice-Chancellor says to be there, well, absence of decision, for example, from this Commission, we would expect that they would be obliged to do as they're bid. Now whether they are there appropriately as a panel is a somewhat different matter, but I've gone a little further than I intended to. This is not where the Tribunal - The Tribunal made its own decision about revisiting; this panel did not. This is an external decision. Now, I have to say that I am very concerned about taint in this matter, Commissioner.

PN893

The - when we raise the issue of, for example, summoning the Chair of the panel, the university said well, they were concerned about how this might affect the later proceedings. Well, we're concerned how really being told by the Vice-Chancellor, the chief executive officer, what the - that you did a - firstly, you did a bad job. You were in error, you failed in your responsibilities, be back there and do the right thing because I've told you to do.

PN894

THE COMMISSIONER: Well, yes, that raised this issue: what authority has the Vice-Chancellor got to do that?

PN895

MR DANBY: Oh, yes, we say none, Commissioner. We say that it's neither an express nor an implied provision of the terms. We say further that there is no evidence that they erred. They acted in line - strictly in line with the procedures. Submissions were made to them, they took them into consideration, made decisions. Because of issues of admissibility and potential irrelevance, they decided that they had heard all the evidence that they could and they reported that fact, in this case, a paucity of evidence, but nonetheless, reported that to the Vice-Chancellor.

PN896

There may be situations - I believe that it is implicit in any reading that there may be situations where the university does not put the evidence in front of the panel that they need to make their decision, and the panel can do nothing but operate within those constraints. If the case isn't there, what are they to do? They can't form themselves into the inquisition and start a fishing expedition in the hopes of turning over the appropriate evidence. The university decided not to present on the day and the university advised of the unavailability. This is reported to the Vice-Chancellor.

PN897

I don't believe the Vice-Chancellor can supplant the signed statement of the three members of the panel about the availability of the witnesses with her own decision about the witnesses. We think it's highly improper for the Vice-Chancellor to go and begin to investigate after the end of the process, say, "I've made my own inquiries now about these matters and I say you were wrong and I say you were wrong in what you signed to me in your position and now you must take what I say as a given, and operate on that rather than upon your own judgments that you formed during the conduct of this investigation".

PN898

If that's the case, we're in dire straits, Commissioner. We can't administratively function on that basis. It would be patently unfair to Dr Walmsley if the decision about the availability of witnesses is now made by the Vice-Chancellor instead of by the panel. It says the panel will consider these matters, not the Vice-Chancellor, and if this were to proceed in that way he's denied the administrative fairness.

PN899

But on this issue there's more involved here. Let's assume for a moment that we accept the university's argument that this panel has some considerable - some future life. We believe that they would be obliged to act much differently than they did. First of all, we would expect that the matter would come on the panel's own prerogative but in any case we would have expected for example a further submission from the Vice-Chancellor's agent or indeed maybe even from the Vice-Chancellor, saying - I would hope that they would request leave to supplant their earlier submission with a new one for the consideration of the panel and allow Dr Walmsley and the union on his behalf to make counter-arguments in regard to that issue. None of that ever happened.

PN900

They did not act in fact - the university did not act as if this panel had life. They acted as if the Vice-Chancellor was in control of this matter, not that the panel was steering this matter. The agreement guarantees Dr Walmsley and his agent the opportunity to be present when such submissions are made. We weren't present when it was made. We got a letter and the decision had already been made directing the panel to reconvene without our ever making a submission. We only learned about the decision to reconvene by virtue of a letter to our member, Dr Walmsley, which is in the evidence before you today, saying the matter is going to be reconvened.

PN901

Where were we ever allowed a submission on that matter? We're guaranteed a right to the submission and it didn't happen. Well, it strikes me that where these decisions are made by the Vice-Chancellor and not by the panel, this is ultimately the case. Dr Walmsley can't be afforded administrative fairness when it's not the panel making the decisions but the Vice-Chancellor. Now, they've said repeatedly, happily the panel is doing this. I would have loved to have taken some evidence from the chair of the panel. That's not possible. I don't know what else you can say except that it's not possible. There is no evidence that that's the case. This panel is simply doing what they have been advised by the Vice-Chancellor, not expressing an opinion. I don't believe that we can speculate about what's in the mind of the panel.

PN902

Now, I guess this would raise another question: is the university saying to us that should this - without prejudice to our other arguments, but if this matter were to continue, that we would be able to say to the panel, "Was it your decision that we should come back here," and if the answer is no, that we all go back where we came from. I don't think so because I don't believe they had any confidence in that position themselves. If they'll say that to me I will be very much impressed - that the first question of the panel is, "Are we back here because of the panel's decision or because of the Vice-Chancellor's? If it's the panel's, go ahead; if it's the Vice-Chancellor's, not go ahead."

PN903

I'd be interested to know what their answer is. And if it was strictly left to them I would - well, I'd better be a little careful here. I have my own instructions but it's just as I said, I have little confidence in the sincerity of the university on this issue and I believe that we can only deal with what's before us and that's the instruction of the Vice-Chancellor, not a decision of this panel to reconvene. However - pardon me, Commissioner, for this delay. I took some of those points out of the order in which I intended to address them.

PN904

We should say too that I think it's important to consider the ephemeral nature of the panel in question. The Tribunal to which the university has referred has a life which continues beyond a specific case. We say that the panel in this particular matter is ephemeral and it's intended by the parties. You can't imagine anything but the ending of the life of the panel arising out of it completing its function. A Tribunal indeed has a statutory life which continues after the hearing of a single sitting. This panel indeed had more than one sitting but it made its decision about the matter being closed and at least insofar as the university has raised the issue of this transcript, several pages before the matters that were mentioned by Mr Watson - and this is, I believe, five pages up from the back - the chair of the panel says - - -

PN905

MR WATSON: Well, look, this is extraordinary. Mr Danby objects to my going to - now he wants to use it when it suits him.

PN906

THE COMMISSIONER: Well, I was going to raise that but obviously - - -

PN907

MR WATSON: I'll let him go ahead.

PN908

THE COMMISSIONER: Mr Watson, I did allow you to refer to it on more than one occasion. Mr Danby obviously accepted the fact that I wasn't going to accept objections to that extent. He's now entitled to refer to it.

PN909

MR WATSON: All right.

PN910

MR DANBY: Well, I was only going to refer to it to the extent to say that the panel had closed the proceedings at that point, Commissioner. The recording did in fact take up comments of the parties subsequent to the end of the proceedings but I wanted to point out for the Commission's benefit that the university cites off-the-record comments rather than the actual transcript of the case. Now, if the university accept that, I won't refer any further, but I thought that that was a relevant piece of information about the submission made by the university. It wasn't my intention to try and make any other further carriage out of the issues arising from the transcript.

PN911

THE COMMISSIONER: Mr Watson.

PN912

MR WATSON: Sorry, I'm looking at the transcript.

PN913

THE COMMISSIONER: I think what Mr Danby is saying is that some time before those comments that you read out to me, which you say are right at the end of the tape, were off-the-record comments. For some reason the tape kept running, but there's a conclusion which is capable of being recorded or recognised as such within the recording. Is that what you're saying, Mr Danby?

PN914

MR DANBY: Well, what I'm saying is - - -

PN915

THE COMMISSIONER: Conclusion of the formal proceedings.

PN916

MR DANBY: What I'm saying is that you need to be careful about interpreting what the university has mentioned for two reasons. One is - - -

PN917

THE COMMISSIONER: Well, frankly, I couldn't understand - I couldn't make head nor tail out of the last part of the transcript.

PN918

MR DANBY: Well, yes, and - - -

PN919

THE COMMISSIONER: It was gobbledegook. I mean, it was somebody making polite conversation to two or three people, so what?

PN920

MR DANBY: That's because it was unmediated discussion, Commissioner, and it's very hard to transcribe material when in fact everyone is just speaking, which is the case following the end of a hearing. Well, I've made enough point in regard to that unless the Commission wants me to read out where the matter is closed, several pages earlier.

PN921

THE COMMISSIONER: No.

PN922

MR DANBY: The issue has been raised about whether this is an appeal from the decision. I would agree it's not an appeal matter. It was suggested that - - -

PN923

THE COMMISSIONER: But really, the decision isn't what's before me. The decision of the panel is not before me, for me to determine one way or the other.

PN924

MR DANBY: Finally, I guess, on this issue of the life of the panel, in terms of - we have already advised the university, it's in our notification of the dispute that finally brought us here that because the panel finished its business, the former chair of the panel is no longer the chair of the panel because our nomination only existed for the time that the panel sat.

PN925

THE COMMISSIONER: Your agreement to a nomination.

PN926

MR DANBY: Yes, that agreement has a given life. Obviously under these provisions we don't agree to establish some standing committee. The agreement is for the consideration of the - up to where that panel submits its report. The procedures are broken down into steps and that is that when they get to the final step then the matter from the report becomes a matter for the Vice-Chancellor's consideration and we say that because that panel ends there's no standing - it must end at that point. There can be no other point at which the panel would end.

PN927

THE COMMISSIONER: Good, bad or indifferent.

PN928

MR DANBY: Good, bad or indifferent, Commissioner. We have never brought to any other proceeding - well, certainly not in this state as far as I am aware and as far as I know nationally, we have never attempted the reverse side here. And let me just quickly make a point about the reverse side of the coin in such a matter. If I had raised the issue to that panel and said, "Panel Members, my member has looked at all these allegations and seen the witness list and he's decided that this is not worth the candle. He is going to admit the allegations; he admits the allegations," the panel would be entitled to take that and investigate no further and report to the Vice-Chancellor - - -

PN929

THE COMMISSIONER: Well, the facts would be clear on their face, wouldn't they?

PN930

MR DANBY: Well, no, no. It's not necessarily a matter of facts because - - -

PN931

THE COMMISSIONER: Well, admissions, rather than facts which, I would have thought, leads to the facts; but, anyway.

PN932

MR DANBY: Well, let me take that - - -

PN933

THE COMMISSIONER: But, you know, this hypothetical, obviously. - - -

PN934

MR DANBY: Yes, it's hypothetical.

PN935

THE COMMISSIONER: This isn't what you were saying your member is doing.

PN936

MR DANBY: Let me clarify it further it, though and put it in somewhat different terms and this has happened routinely in this State in regard to these matters where I and the agent of the Vice-Chancellor stand up in front of the panel and say to the panel, "The member has tendered a resignation to the Vice-chancellor. The Vice-Chancellor has accepted that resignation and, on that basis, we don't believe the matter should proceed," and the panel has closed down the proceedings. We have done that on - - -

PN937

THE COMMISSIONER: Well, it wouldn't have any business to conduct, would it - - -

PN938

MR DANBY: Exactly correct, Commissioner. They would have no business - - -

PN939

THE COMMISSIONER: - - - because the ultimate outcome is either: the person resigns which, in effect, I guess, is some suggestion of quasi guilt of the allegations - - -

PN940

MR DANBY: Well, the resignation would not necessarily admit guilt, Commissioner. It would mean, the process is brought to an end.

PN941

THE COMMISSIONER: No. No, but you see, the inference is there, isn't it?

PN942

MR DANBY: Well, we would say, no. We would say that there is a presumption of innocent unless and until - and very often, a person tenders a resignation to avoid just such an inference.

PN943

THE COMMISSIONER: All right. Okay.

PN944

MR DANBY: It's just to say that, under those circumstances, the employer organisation and the relevant institutions - and I have to say, it wasn't Central Queensland University, as far as I can recall, that has ever engaged in that - but the conclusion of the panel has been, "Neither side is going to present us any more evidence. They've told us that this matter isn't to proceed. We are entitled to take information and end it."

PN945

THE COMMISSIONER: But they don't properly have anything before them.

PN946

MR DANBY: Exactly right, they have nothing before them, yes.

PN947

THE COMMISSIONER: Under those circumstances, what would they have before them? They don't have anything.

PN948

MR DANBY: Exactly right.

PN949

THE COMMISSIONER: There's nothing to examine, in terms of them uncovering what they say are the facts.

PN950

MR DANBY: And that's my point exactly: that the panel is largely in the hands of the parties to present the evidence. Where the parties say, "We're not presenting evidence on a given day," that panel is forestalled, effectively, from - - -

PN951

THE COMMISSIONER: Well, it's not forestalled - - -

PN952

MR DANBY: Well, it - - -

PN953

THE COMMISSIONER: It really comes to an end.

PN954

MR DANBY: Exactly correct.

PN955

THE COMMISSIONER: It has no business to conduct. The business it was formed for does no longer exists and won't be presented. Well, what can it do, other than pack up?

PN956

MR DANBY: The panel said to the Vice-Chancellor, "The report of the panel clearly indicates that the panel accepted the submission made by the Vice-Chancellor's agent and joined by the NTU that the proceeding could not continue." Oh, excuse me, that smacks of my terms, not theirs: wishful thinking, Commissioner, but not far off.

PN957

Strictly on the basis of the information and material presented prior to and during these proceedings ...(reads)... in are addressed earlier herein.

PN958

It should be noted that a series of other allegations were indeed investigated by the University and essentially withdrawn. The only witness came forward and said that the advice of the accused was exactly correct and fully explained the issues.

PN959

THE COMMISSIONER: Please don't deal with the merits.

PN960

MR DANBY: Yes. Well, it's just to say that some matters were indeed handled directly by the panel and determinations were made. Only some allegations were allegations where there was insufficient evidence to make a finding of the responsibility of our member. And that's the point I want to - I don't want to carry us into the specifics of any other allegations but it's not true to say that this panel simply defaulted. There were a series of allegations which were disposed of by virtue of evidence taken before that panel and, on some allegations, the panel made a determination that there was insufficient - in this case, none - to proceed.

PN961

Finally, there's two places in which the panel addresses the issue of the witnesses. Further on that page 8, they said:

PN962

The panel also holds the view that, given the complaints were respectively not available or ...(reads)... to examine the allegations against him.

PN963

And then later, on the next page, they repeat that and say that:

PN964

As one of the complainants was uncontactable/unavailable and the other complainant unwilling to appear in these proceedings -

PN965

and so forth; and then the three signatures of all the individuals. On the face of not just the claim but the reiteration of it, of the unavailability, I think it settles the matter of whether the University was prepared on the day. And I should point out that there is no evidence and the University has made no claim that the agent for the Vice-Chancellor asked for the matter to be put over. He could have done this. He could have said, "Look, regardless of the unavailability on the day, let's try and get them tomorrow. Indeed, when the University indicated to us that the witnesses wouldn't be available in person, we had a big discussion and they said, "Well, they'll be available on video. All right?"

PN966

Well, we were stuck with that decision. And then when they weren't available on video, the Vice-Chancellor's agent could have said, "Well, let's put it over." He did not. It's not for me to say that the matter has to be put over if the University is unwilling or unable to proceed and, indeed, it's not for the panel to say, "Look, we think that the University can't, indeed, say that they're unwilling or unavailable. You must put this matter over so that we can see if they turn up on another day." Some of us actually travelled a great distance.

PN967

There is the - and I have failed to mention this so far - there is the issue of expedition in all this. These matters cannot be allowed to continue on the basis on which the University suggests they should and that is that we just - if people don't turn up on the day or if the University is not prepared, well, then, we just go ahead and say that, "We'll put it over to another day." That panel was obliged, by the specific injunction of the provisions, consistent with fairness to the accused, to expedite this matter. And that appears at:

PN968

A review panel will conduct proceedings as expeditiously as possible, consistent with the need for fairness ...(reads)... or nominee and as a Committee of Inquiry.

PN969

We believe that it's completely out of keeping. These procedures and the following procedures have been mentioned by the University; and that's 31(12) and 31(13), talking about the University's responsibility - the Vice-Chancellor's responsibility. 31(12) says:

PN970

On receipt of the report of the review panel, and having considered its findings on the facts ...(reads)... may take disciplinary action if, after considering -

PN971

and 31(13):

PN972

If, having considered the review panel's findings on the facts relating to the alleged misconduct or serious misconduct, the Vice-Chancellor, President or nominee is of the view there has been no misconduct -

PN973

and so on. There is nothing in here which talks about: send the matter back for reconsideration by the panel. Now, it is commonly the case where reconsideration is a prospect - it's actually enumerated in an agreement. It's not here and we don't believe it's implied and, in any case, we say that there is no error which would give rise to the case that the University claims, that would mean that this matter could be referred. The Vice-Chancellor is obliged, now, to carry on with this matter and simply get on to the responsibilities, given that a report is in her hands to make those determinations and bring this matter to a conclusion. And anything else would mean that the requirement for expedition is not being met.

PN974

We have indicated in our submission what we seek in this and I won't reiterate them here but I accept the last three points. We believe that the unanimous report must be accepted, because it meets the requirements. We have recognised that there was a substantial lack of - there was a considerable lack of evidence presented. That is not the panel's fault. The panel operated on the evidence before them, they reported as well as they could, and they reported in line with the agreement, and we believe that that report must be accepted by the Vice-Chancellor as is envisioned by the clauses.

PN975

Having received the report of the panel, we believe the Vice-Chancellor must now undertake responsibilities under 31.12 and 31.13, and we believe that a settlement must return the accused to service as soon as practicable. This individual has been on suspension, albeit with pay - and I am not suggesting that - it was a with-pay suspension - and I must say, that element of it is appreciated insofar as it goes, but this is beginning to have an extremely damaging effect on the career of this academic; to be out of teaching, to be out of research. His research projects are being cancelled, his teaching load is attenuated.

PN976

He needs - we need a decision in these matters, and we believe that nothing like this was envisioned out of these processes for all of this back and forth - the panel heard the matter on the material available on the day, they have submitted their report, it is now for the University to continue the process. Thank you, Commissioner.

PN977

THE COMMISSIONER: Thank you. There is some need for expedition in this matter, given, as I understand it, the review panel is intending to reconvene tomorrow. So I will say this quickly: Mr Watson, I don't intend to dismiss this application that is currently before the Commission. I accept the arguments put forward by the union, and frankly, the reconvening of this panel is not at their own volition, it is at the Vice-Chancellor's volition and instruction and direction, in effect. I am not particularly happy with that.

PN978

MR WATSON: Well - - -

PN979

THE COMMISSIONER: Now, just a minute. How we intend to proceed from here I don't know. I notice in your points at the end of your submissions, Mr Danby, you have put some suggestions. What I intend to do now is adjourn and have the parties reconvene before me at 2 o'clock, and in that time I would hope you have some discussions about how we might deal with this now. But frankly, I am not going to dismiss the application, but I think the parties need to work out just what they are going to do to resolve their differences.

PN980

And if you can't do that, how we proceed from there, Mr Danby, is something you better tell me about, because you know, I have got some concerns about the Commission's capacity to really deal with this. I mean, you might have to go somewhere else with this, to be quite frank. But I want you to consider that.

PN981

MR DANBY: Yes.

PN982

THE COMMISSIONER: But I am not going to dismiss the application. And I think there is right and wrong on both sides, but at the end of the day, I think there is more right in the union's argument now; having had an opportunity to hear both of you at some length. I am very impressed by what both of you have had to say, but I think in all fairness, under the circumstances, there is a need for people to accept certain responsibilities, and I think the Vice-Chancellor better accept some of hers. I will adjourn to 2 pm.

LUNCHEON ADJOURNMENT [12.56pm]

RESUMED [2.04pm]

PN983

MR WATSON: May it please the Commission, the university's position is this: that there is no question of the proceedings taking place tomorrow and they have been called off. The university has taken steps to notify all persons concerned.

PN984

The next question then, from the university's point of view, is that it would like to consider the decision of the Commission in this matter and take advice in relation to it. Now, I appreciate that the Commission hasn't given a decision; it has given an intimation from the bench today. In those circumstances, the Commission would no doubt understand the urgency of this in terms of what is involved here - - -

PN985

THE COMMISSIONER: Can I try and help you this way, Mr Watson?

PN986

MR WATSON: Yes, Commissioner.

PN987

THE COMMISSIONER: I've looked at what the union proposes at the end of its submissions. My view of it is this: that whilst I accept that I think prima facie the union has made out a case which supports what they say they want here, but, essentially, what's alleged here are breaches of the certified agreement being committed by the university. That is what sounds to me like. As I said earlier, that's why I'm not sure as to what the union believes I can actually do with this.

PN988

Now, if it is a question if I have formed a view that on a prima facie basis there are obligations the university has to meet under the terms of the certified agreement, that is not something that is possible of the Commission determining and settling under 111AA.

PN989

MR WATSON: I didn't understand these proceedings were brought here alleging a breach of the certified agreement. I understood - - -

PN990

THE COMMISSIONER: I think that is what emerges, though. I mean, at the end of the day, I've got a section 170LW application. Now, I think I said the other day that I was of the view that what Mr Danby wanted the Commission to do was injunct the university against tomorrow's proceedings.

PN991

MR WATSON: And that, clearly, was never going to be a possibility from this Commission. I think everybody recognised that.

PN992

THE COMMISSIONER: Exactly.

PN993

MR WATSON: Mr Commissioner, I thought, and I would submit, that both sides of the bar table thought that we were here under clause 13 of the certified agreement seeking, basically, a recommendation from the Commission under clause 13, not proceedings in relation to - - -

PN994

THE COMMISSIONER: Well, that is not really the way that it has developed, of course. I don't think so.

PN995

MR WATSON: I disagree - - -

PN996

THE COMMISSIONER: It wasn't clear to me what the union actually wanted. I mean, I am searching to find what it is Mr Danby thinks the Commission can actually do.

PN997

MR WATSON: Well, can I just go to the bottom line for this, and, I suppose, speaking for the union, but this is what we apprehended: that they were seeking a recommendation from the Commission that the proceedings not be further proceeded with and that the university would not be taking part in further proceedings involving seeking further evidence from these persons - - -

PN998

THE COMMISSIONER: Well, I will just ask Mr Danby if that was his position. Is that your position, Mr Danby?

PN999

MR DANBY: Our position was - well, our position has been that it would be improper if it did go forward but the order that we are asking the - let me make a suggestion for an order, Commissioner, that I think avoids the concern which certainly everyone seems to recognise. We believe it is appropriate for this Commission to order that the Vice-Chancellor withdraw the direction to the panel because - let me back up briefly. 170LW is - we believe that there has been a mis-application of the agreement. We believe that what has happened here is out of keeping with the application of the agreement.

PN1000

We believe actually that the powers of the Commission are fairly broad in this regard, and we did attach a decision in regard - generally regarded as the Big W decision - which indicates that the power of the Commission to make orders in the matter is not limited to the specific provisions of the agreement which gave rise to the dispute. But what we are saying is we think it is perfectly feasible for this Commission to give an order that the Vice-Chancellor should withdraw that advice. The university itself in its submission has said that it appeared to them that the panel enjoyed - it says:

PN1001

It is clear, it is submitted, that the review panel operates both independently and impartially in this process.

PN1002

Well, if that is the case, certainly, then, such an order would be in line with their own submission.

PN1003

Then, too, we think it would be appropriate for this Commission to make an order saying that the next step in the process is that the university should, utilising the report that is available, undertake the steps at 31.12 and 31.13 which is clearly the order of march in terms of the procedures of the agreement. We think that is fully within what is envisioned by 170LW and, certainly, as 170LW is interpreted by the decision we have mentioned.

PN1004

THE COMMISSIONER: But, you see, your notification of dispute ends with this:

PN1005

The parties agree that if the matter could not be resolved by the JCC it would be referred to the Commission for resolution.

PN1006

MR DANBY: Yes.

PN1007

THE COMMISSIONER: That is the agreed position, is it?

PN1008

MR WATSON: Well, that is what they have notified the Commission under clause 13. There are specific things - - -

PN1009

MR DANBY: Under clause 13. But our ability to notify under clause 13 - this Commission is not controlled just simply by an EBA provision. It is controlled also by 170LW of the Act which is the dispute resolution procedure.

PN1010

THE COMMISSIONER: Yes, but that has to empower the Commission.

PN1011

MR DANBY: Pardon?

PN1012

THE COMMISSIONER: That has to empower the Commission to actually resolve these disputes - and resolve disputes.

PN1013

MR DANBY: We submit that it does, Commissioner, and we believe that that is outlined very clearly in the Big W decision. Let me back - - -

PN1014

THE COMMISSIONER: So you are going to 13.2?

PN1015

MR DANBY: I have to look at the clause, Commissioner.

PN1016

THE COMMISSIONER: This hasn't come from the JCC.

PN1017

MR DANBY: The JCC considered the matter and that was not resolved in that form. Then the next step is specified by the - - -

PN1018

THE COMMISSIONER: Well, I get to 13.5.

PN1019

MR DANBY: Well, 13.3 we believe is relevant; however, we could be carried - if indeed there is any problem with 13.3 we could be - we can be carried to 13.5. The Commission may resolve the dispute by the process of conciliation and/or arbitration, which we believe grants the sufficient authority here. But that is clearly within the ambit of 170LW. In these circumstances, the parties agreed to be bound by the Commission's resolution of the dispute, and we say that that resolution power is express and broad.

PN1020

And we think that the 170LW issue, which is the Act's recognition that there may be such matters arising is also broad in the decision, and making the Full Bench decision in regard to those powers in instructive - - -

PN1021

THE COMMISSIONER: But 13.5 requires the parties to have done certain things. Have those things been done?

PN1022

MR DANBY: No, we are not in 13.5. We are still at 13.3, Commissioner.

PN1023

THE COMMISSIONER: Right.

PN1024

MR DANBY: There has not been - it might be the case; if, in fact, the Commission does not have jurisdiction, that would be the first question. Does this Commission have jurisdiction?

PN1025

THE COMMISSIONER: Well, so Mr Watson, I take it then there has been no jurisdiction objection raised, or is that flagged?

PN1026

MR WATSON: No, no, and I made that plain last week. We weren't raising any jurisdiction objection, we understand the force of clause 13. The union seems to have the problem.

PN1027

THE COMMISSIONER: All right, so we are at 13.3.

PN1028

MR WATSON: I think so.

PN1029

THE COMMISSIONER: I seem to be the one who has been confused, not the parties, thank you, Mr Watson.

PN1030

MR WATSON: Well, in that case, I will go back to what I was saying before. We would like from the Commission a decision and then obviously what the Commission decides is a resolution of the dispute. And in having received that, then obviously the University needs to consider its position, and then - - -

PN1031

THE COMMISSIONER: Well, not if you read 13.3, it doesn't.

PN1032

MR WATSON: No, no, as a result of that.

PN1033

THE COMMISSIONER: Yes.

PN1034

MR WATSON: Yes, consider its position as a result of that.

PN1035

THE COMMISSIONER: Yes.

PN1036

MR WATSON: And then - in terms of, well, in terms of clause 31 and how that impacts upon what the - for example, the Vice-Chancellor is required to do.

PN1037

THE COMMISSIONER: Okay.

PN1038

MR WATSON: Now - - -

PN1039

THE COMMISSIONER: So the parties then are satisfied that these proceedings have reached a stage where the Commission could act consistent with 13.3.

PN1040

MR WATSON: Yes.

PN1041

THE COMMISSIONER: So there is nothing further that either party wants to put to the Commission in its considerations of these issues?

PN1042

MR WATSON: I am sorry - - -

PN1043

THE COMMISSIONER: Well, what I am trying to ascertain is have you both now presented any evidentiary or submissions that you want to present to the Commission for its considerations?

PN1044

MR WATSON: Well, I thought we - - -

PN1045

THE COMMISSIONER: Before the Commission moves to 13.3.

PN1046

MR WATSON: But I thought we had done that this morning.

PN1047

THE COMMISSIONER: Well - so you are satisfied - well, I just want to satisfy myself that the parties are done in terms of what they want to put to me and 13.3 is the vehicle by which this matter will be, at least, resolved.

PN1048

MR WATSON: Yes, 13.3 is the vehicle. I have further submissions I could put but I mean that's a bit - - -

PN1049

THE COMMISSIONER: Well, that's why I said have you - are you both done. Now that the issue has been clarified.

PN1050

MR WATSON: Well, Commissioner, with all due respect, I mean, you have said from the Bench today what your position was.

PN1051

THE COMMISSIONER: Yes.

PN1052

MR WATSON: And you have basically - - -

PN1053

THE COMMISSIONER: I've accepted the union's position, Mr Watson.

PN1054

MR WATSON: Exactly.

PN1055

THE COMMISSIONER: Yes.

PN1056

MR WATSON: Exactly.

PN1057

THE COMMISSIONER: So you want that converted in to a - - -

PN1058

MR WATSON: A decision.

PN1059

THE COMMISSIONER: A written form.

PN1060

MR WATSON: Yes.

PN1061

THE COMMISSIONER: All right.

PN1062

MR WATSON: I mean, and to ask for further submissions is futile.

PN1063

COMMISSIONER: All right. Well, no, that's fine. Well, can I have this from you then: what is going to be the position with the employee involved?

PN1064

MR WATSON: Dr Walmsley?

PN1065

THE COMMISSIONER: Yes?

PN1066

MR WATSON: Yes, I've spoken to Mr Danby about that. Look, as I understand the position he is on suspension.

PN1067

THE COMMISSIONER: On pay?

PN1068

MR WATSON: On pay, yes.

PN1069

THE COMMISSIONER: Well, there are some implications out of this suspension as I understand it.

PN1070

MR WATSON: For his career prospects?

PN1071

THE COMMISSIONER: Well, not only that but I think for his state of mind, isn't it?

PN1072

MR WATSON: Yes, I mean, look, the university's position is this: he would remain for - he would remain suspended on pay pending a consideration of the decision of the Commission and giving of advice but we don't look at that process as being attenuated process, in other words - and obviously I can't - - -

PN1073

THE COMMISSIONER: Well, the Commission is writing two urgent decisions now - - -

PN1074

MR WATSON: Of course.

PN1075

THE COMMISSIONER: - - - so don't expect me to do something overnight.

PN1076

MR WATSON: No, no, and we can plead with the Commission to move as quickly as possible, but we are in the Commission's hands with respect to that. The Commission understands the position we are in, but we are not going to drag our heels in that regard.

PN1077

THE COMMISSIONER: Well, the Commission will endeavour not to drag its heels either, Mr Watson, but I must say I was a little confused about whether or not the parties had, in effect, committed to 13.3 or clause 13 to the full extent that it could be applied or not. I wasn't clear on that, I must say that to the parties.

PN1078

MR WATSON: Okay. Well, perhaps that's our fault because we hadn't made it clear first up with the Commission that that was the position. I've always understood that to be the position.

PN1079

THE COMMISSIONER: Because I took your submissions to be ones where you wanted me to dismiss the application, and obviously there would have to be a decision of the Commission arising under clause 13 consistent with that - well that's how I took your submissions to be.

PN1080

MR WATSON: Yes. What I meant was that in saying dismissing - when I say the application, of course, I mean - I should have said perhaps the notification arose out of this.

PN1081

THE COMMISSIONER: Yes. That's where I got confused.

PN1082

MR WATSON: Okay. Well, I apologise for that.

PN1083

THE COMMISSIONER: No, that's okay - but it was my confusion not yours.

PN1084

MR WATSON: They are my submissions.

PN1085

THE COMMISSIONER: All right. So then the parties have satisfied themselves about the terms that they will apply on an interim basis until the Commission issues a recommendation; is that the case, Mr Danby? So is there anything further you want to put?

PN1086

MR DANBY: Something - you mentioned the issue of the suspension. We recognise - is it possible at this point to really undo a suspension with pay? He's on suspension with pay, there is nothing to be done in that regard. All we would ask is that any order - any arrangements to be as - - -

PN1087

THE COMMISSIONER: Well, it's not necessarily going to be an order, it will be a recommendation.

PN1088

MR DANBY: Any matters to be as expeditious as possible to get this - - -

PN1089

THE COMMISSIONER: Yes, well, the Commission will act on that, Mr Danby, subject to the other constraints it has.

PN1090

MR DANBY: Thank you. Well, I'll rest on our - on the issues that we believe are relevant in our submissions.

PN1091

THE COMMISSIONER: Mr Watson, you have nothing further?

PN1092

MR WATSON: No.

PN1093

THE COMMISSIONER: On that basis I'll reserve my decision and I shall adjourn these proceedings.

ADJOURNED INDEFINITELY [2.17pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #NTEU2 WRITTEN OUTLINE OF SUBMISSIONS ON BEHALF OF THE APPLICANT PN260
EXHIBIT #CQU1 SUBMISSIONS ON BEHALF OF THE RESPONDENT PN261