As clear as mud; Corruption, Crime and Misconduct Act (WA) and local government obligations

On 1 July 2015 the Corruption, Crime and Misconduct Act (WA) was substantially amended with the objective of beefing up the practical efficacy of the Western Australian Corruption and Crime Commission by amongst other measures, vesting the Public Sector Commission with jurisdiction to manage “minor misconduct”, thus leaving the CCC to fight relevant corruption and serious misconduct.
The Act now defines “serious misconduct” (in my words) in terms of corruption and criminal conduct by a public officer.
Minor misconduct is defined is sec 3 to mean misconduct of a kind described in sub-section 4(d) that is not any of the following (a) police conduct; (b) conduct engaged in by a member of a House of Parliament or the Clerk of a House of Parliament; and (c) conduct engaged in by a member of a local government or council of a local government.
Importantly, sub-sec 4(d) defines minor misconduct in terms (in my words) of conduct by a public officer which has the potential or does adversely affect the honest and impartial performance of the functions of a public authority or public officer, or conduct which is not honest or impartial or involves the misuse of information or material.
However minor misconduct is also defined by sub-sec 4(d)(iii) as conduct by a public officer which constitutes or involves a breach of the trust placed in the public officer by reason of his or her office or employment as a public officer.
What does this mean? What conduct does this sub-section seek to describe which is not already embraced by the other descriptions? And critically, is there a distinction between the trust which ordinary employees are required to honour and that of a public officer by reason of his or her employment as a public officer? As dry as this question may be, it is a real issue for local governments because they are obliged to identify, record and manage (audit if you like) incidents of such conduct on behalf of the Public Service Commission.
Now it would appear reasonably safe to assert that one of the elements of the sub-sec 4(d)(iii), which I will refer to henceforth for convenience as “breach of trust misconduct”, is the holding of office or being in employment as a public officer. So in the absence of any assistance from the Act about what this notion of trust in office or employment is, it is legitimate to look at the common law. Of course, equity has always recognized that a fiduciary must act with trust, but that obligation derives from the special and discreet nature if the fiduciary’s role.
The High Court’s majority decision in September 2014 in CBA v Barker (2014) HCA 32 to the effect that Australian common law does not recognize that there is to be implied into employment contracts a mutual duty of trust and confidence is generally regarded by most Australian lawyers as ending any suggestion that Australian employment contracts contain an implied obligation on employers to avoid destroying or seriously damaging the relationship of trust and confidence with their employees and vice versa.
However the related question, which was expressly left open by the High Court, is whether there is to be implied a duty of good faith with French CJ and Bell and Keane JJ saying that the decision “should not be taken as reflecting upon the question whether there is a general obligation to act in good faith in the performance of contracts”. Such a doctrine appears to have been upheld by the New South Wales Court of Appeal in Silverbrook Research v Lindley (2010) NSWCA 357, which involved the exercise of discretionary powers by an employer under an employment contract. Some commentators are suggesting that litigation lawyers are now drafting statements of claim in cases on the basis that such an implied term is alive and well.
In the absence then of any clear guidance from the courts, it is permissible in my view to apply common sense to the question of what constitutes breach of trust misconduct. It may be assumed that this may vary depending upon the nature of the public officer’s duties. What might be regarded as a breach of trust by a local government ranger, for example exercising a discretion not to book the Mayor for tardy parking, may not implicate a Council rubbish truck driver who might decide that a bin is too hard to empty because it is too far from the verge.
And there will always be horses for courses. Dyson Heydon QC is currently grappling with whether or not his apparent acceptance of an invitation to speak at a Liberal Party fund raiser constitutes grounds for apprehended bias in his capacity as a Royal Commissioner. The enemies of the Commission no doubt genuinely believe that he breached a trust conferred upon, or at least expected of and from, a person in that office not to do anything to imperil a perception of absolute impartiality. Supporters of the Commission, and its work, however see the allegations as absurd.
And therein lies the dilemma in determining what may or may not constitute breach of trust misconduct. I have heard it argued that breach of trust misconduct under sub-sec 4(d) (iii) of the Act would include minor offences such as theft or perhaps common assault.
I do not agree. In the first place sub-sec 4(c) deals expressly with criminal conduct such as stealing as a servant, albeit as serious misconduct. Secondly, to construe breach of trust conduct as including common assault is to ignore the commanding presence of the notion of “trust” deriving from the holding of an office or employment as a public officer.
My conclusion is that in determining whether particular conduct of a public officer constitutes breach of trust misconduct, and must therefore be recorded and managed by a local government, the test must start with an analysis of what the local government as employer and its ratepayers as the officer’s ultimate masters should be entitled to accept as a minimum standard of integrity and duty from the officer in that role.
This will be harder than simply asserting that the doing of a wrong not otherwise covered by sec 4 of the Act, for example an assault, or littering, or lying, will suffice. Let’s hope that this does not become a feast for lawyers, or a massive rod for local governments.