FEDERAL COURT OF AUSTRALIA
Dickson v Whiddett [2001] FCA 585
ADMINISTRATIVE LAW –review of decision to end fixed-term appointment of member of Australian Federal Police early – internal submission provided to decision-maker – no statement by decision-maker of reasons for decision – whether failure to take into account relevant considerations – alleged errors and omissions in submission – whether applicant could establish particular findings were made – whether irrelevant considerations taken into account – no evidence – alleged non existence of certain facts referred to in submission – unreasonableness – alleged perverse finding of fact in submission – procedural fairness – failure to disclose to applicant adverse allegations contained in submission – error of law
ADMINISTRATIVE LAW – remedy for breach of natural justice when applicant’s fixed term of employment expired
STATUTE - repeal of Australian Federal Police Act 1979 (Cth) s 26E(3) – prior to repeal, appointment could not be terminated “merely because” of certain acts or omissions – whether applicant had an accrued right within the meaning of Acts Interpretation Act 1901 (Cth) s 8(c) - meaning of “merely because”
PRACTICE AND PROCEDURE – application for extension of time in which to apply for judicial review – reasons for delay
Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5, s 11(1)(c), s 13(8), Schedule 2, item (za)
Judiciary Act 1903 (Cth), s 39B
Australian Federal Police Act 1979 (Cth), s 26E
Australian Federal Police Amendment Act 1996 (Cth), Schedule 1, item 5
Acts Interpretation Act 1901 (Cth), s 8(c)
Wedesweiller v Cole (1983) 47 ALR 528 referred
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 followed
Comcare v A’Hearn (1993) 45 FCR 441 followed
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 followed
Maxwell v Murphy (1957) 96 CLR 261 referred
Robertson v City of Nunawading [1973] VR 819 referred
Ellis v Minister for Lands (1985) 37 NTR 29 considered
La Macchia v Minister for Primary Industry (1986) 72 ALR 23 considered
Esber v The Commonwealth of Australia (1992) 174 CLR 430 referred
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred
Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 referred
Detsongjarus v Minister for Immigration, Local Government and Ethnic Affairs (1990) 21 ALD 139 referred
Kioa v West (1985) 159 CLR 550 followed
McLachlan v Australian Securities and Investment Commission (1999) 85 FCR 286 referred
Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996)137 ALR 103 referred
Telstra Corporation Limited v Kendall (1995) 55 FCR 221 referred
McVeigh v Willarra Pty Ltd (1984) 6 FCR 587 referred
Kanda v Government of Malaya [1962] AC 322 referred
Re Refugee Review Tribunal; Ex parte AALA (2000) 176 ALR 219 referred
Perder Investments Pty Ltd v Elmer (1991) 31 FCR 201 referred
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 considered
Bradley v Attorney-General [1988] 2 NZLR 454 referred
Administrative Review Council, Review of the Administrative Decisions (Judicial Review) Act: Statements of Reasons for Decisions, Report No 33 (14 February 1991), pars 152, 175-178
KEVIN JOHN DICKSON v ADRIEN MELVILLE WHIDDETT, DEPUTY COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE & ANOR
V 105 of 1999
KENNY J
MELBOURNE
18 MAY 2001
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IN THE FEDERAL COURT OF AUSTRALIA |
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V 105 OF 1999 |
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BETWEEN: |
KEVIN JOHN DICKSON Applicant
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AND: |
ADRIEN MELVILLE WHIDDETT, DEPUTY COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE First Respondent
MICHAEL PALMER AO, COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE Second Respondent
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. Leave be granted to the applicant to amend the amended application for an order of review in the form of the “Further Amended Application for an Order of Review” filed herein.
2. The time within which the applicant may lodge an application for an order of review under the Administrative Decision (Judicial Review) Act 1977 (Cth) be extended up to and including 11 March 1999.
3. The parties file and serve submissions concerning (a) the appropriate form of relief and terms of orders; and (b) costs, no later than 4.00pm on 28 May 2001.
4. The matter be fixed for judgment at 10.15am on 30 May 2001.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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V 105 OF 1999 |
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
1 This is an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the AD(JR) Act”) and s 39B of the Judiciary Act 1903 (Cth) for review of a decision made by a Deputy Commissioner of Police (“the Deputy Commissioner”), as delegate for the Commissioner of Police (“the Commissioner”). The decision, which was made on 30 June 1998 pursuant to s 26E(2)(b) of the Australian Federal Police Act 1979 (Cth) (“the AFP Act”), determined that the appointment of Kevin John Dickson as a member of the Australian Federal Police (“the AFP”) end on 22 July 1998. By motion, notice of which was dated 11 March 1999, the applicant also sought an extension of time in respect of his application for review under the AD(JR) Act.
factual background
2 The applicant was appointed a non-commissioned police officer in the AFP on 14 January 1986, with effect from 20 January 1986. His appointment was renewed on 21 June 1990 for a period of ten years, concluding on 1 July 2000. Over the course of his subsequent service, he was twice involved in operations that were the subject of investigation by the AFP Internal Investigation Division (“IID”), which resulted in negative evaluations of his conduct. On 10 March 1998, he was given a “Notice of Possible Action Pursuant to Section 26E of the Australian Federal Police Act 1979” dated 2 March 1998 (“the s 26E notice”). The notice advised him that the Deputy Commissioner was considering early termination of his appointment. It specified that the following matters would be taken into account in reaching any decision: (a) an IID investigation into his conduct on or about 29 November 1993; (b) an IID investigation into his conduct on 22 April 1994 and during court proceedings in April and May 1997; (c) his Performance Management Program (“PMP”) evaluation for the period 1 January to 31 December 1995; and (d) his most recent PMP evaluation. It set out the concerns to which these matters gave rise. The notice also advised that the Deputy Commissioner proposed to take into account the applicant’s “earlier PMP evaluations and [his] previous employment history”. It concluded with the statement that:
[Y]ou have fourteen (14) calendar days from receipt of this notice to inform [the Deputy Commissioner] whether you oppose your appointment being ended early under section 26E of the [AFP] Act.
3 By minute dated 30 June 1998, the Deputy Commissioner advised the applicant that:
[F]ollowing consideration of those matters notified to you in my minute dated 2 March 1998 and your response of 30 March 1998 (through your Solicitor, Mr Isakow), I, performing the duties of Commissioner, have decided to end your appointment as a member of the AFP with effect from the close of business Wednesday 22 July 1998.
4 To understand the case that the applicant made on review, it is necessary to know something of the matters referred to in the notice of 2 March 1998.
(a) IID investigation into the applicant’s conduct on 28 - 29 November 1993
5 In a minute dated 27 July 1994, Detective Superintendent Sharp, IID, reported on an investigation into an incident on 28 - 29 November 1993, involving the applicant. Sharp reported that, in investigating certain drug trafficking activities, the police were given an address of a flat in Collingwood (“the flat”) where a suspect claimed to live with her boyfriend. The police also knew him for his involvement in drug trafficking. In the early hours of 29 November 1993, the applicant and three other AFP members executed a search warrant at the flat by effecting a forced entry. The AFP found that the flat’s occupants were a thirty-five-year-old woman, her younger brother, her thirteen-year-old son and her eleven-year-old daughter. None were associated with the suspect or the activities under investigation. The AFP placed all four people on the floor of the flat, and handcuffed the woman and her two children. The applicant handcuffed the thirteen-year-old boy. When they had secured the flat, the AFP released the handcuffs, questioned the occupants, and gave them a brief explanation for what had happened. The mother of the children subsequently complained about the raid, and an IID investigation was conducted.
6 Sharp reported that AFP records available at the time of the raid showed that the suspect’s boyfriend did not live at the flat. Prior to the raid, however, no police officer sought to check the identity of the flat’s occupants. Sharp concluded that the operational commander and the senior investigator (who was the applicant) “ought to have caused a reasonable check of the file to have been made before accepting the address as provided by [the suspect]”. Sharp said that their failure to do so was “at least careless, if not a negligent discharge of their duty”, and constituted a disciplinary offence under par 18(1)(g) of the Australian Federal Police (Discipline) Regulations 1979 (“the Discipline Regulations”). Sharp also concluded that the applicant and other AFP members had contravened par 18(1)(g) of the Discipline Regulations by failing adequately to identify themselves as police, and acting without lawful authority in handcuffing the occupants of the flat. Sharp observed that they:
breached the AFP General Instruction 27C in respect of the use of handcuffs … . The … most serious breach [was] in the use of the handcuffs on an adult female, and 2 children. The General Instruction is clear, in Section 6(1), that females and children will not be handcuffed except in special circumstances. No such circumstances existed in the factual situation.
7 Sharp also observed:
The material gives rise to a number of issues to do with police practices that were lax or not followed, or which the members had inadequate or erroneous views of the law. Firstly, [the applicant] asserted he had a detailed conversation with [the suspect], pre her interview and at a time when she apparently made admissions, and provided information to him. He did not record that information in any form. Secondly, the standard of paperwork by [the applicant] was abysmal. He consistently made errors in the addresses in his reports. All of the members had clear misconceptions or misunderstandings on points of basic police powers which are crucial to law enforcement. [The applicant] had misconceptions in the area of police powers on entry to premises and of the power to arrest for questioning under s. 23 of the Crimes Act 1914.
Sharp added that:
It is clear that [the applicant] made at least a series of gross errors in the reports he filed. [S]ome were errors of addresses, other errors of fact as to what people had said in interviews.
Disciplinary proceedings were instituted against the applicant on 21 June 1996, but the charges against him were subsequently withdrawn. Instead, he received formal counselling, as well as training in the execution of search warrants.
(b) IID investigation into the applicant’s conduct on 22 April 1994 and during court proceedings in April and May 1997
8 On 13 June 1997, a senior prosecuting counsel lodged a written complaint about the applicant’s conduct. The complaint stemmed from matters emerging at a trial for the importation and possession of 2.4 kilograms of cocaine in 1994 by four co-accused. The applicant was a witness for the prosecution. He was called to give evidence concerning the testing of a firearm (a Tokarov 7.65mm calibre semi-automatic pistol). In the course of his evidence, a solicitor for the prosecution noted a property seizure record in the name of one of the accused. The record indicated that the applicant had seized a mobile telephone at or about the time of the arrest on 22 April 1994. When the record was drawn to prosecuting counsel’s attention, she asked that the matter be stood down in order to speak with the applicant about it. The applicant stated that he did not recall anything about the telephone seizure. In consequence, he was unable to give any evidence about it. Prosecuting counsel believed that the telephone had been used in the commission of the offences charged. She believed that the applicant made no real effort to recall the circumstances relating to the telephone seizure.
9 Prosecuting counsel also stated that, prior to the trial, she had been informed that the mobile telephone was “dead” and did not have a current subscriber number. This turned out to be incorrect. The applicant had said he had been unable to obtain any call charge records, but during the trial another officer made a further check and discovered (with comparative ease) that the records existed.
10 In a minute dated 5 January 1998, an IID officer by the name of Burnage recorded the outcome of the investigation subsequently conducted by the IID. According to Burnage, the complaints about the applicant (as put to him) were:
(1)(a) During the conduct of court proceedings associated with [the] Operation … you were called to give evidence as part of the prosecution. A complaint has been received that when asked by the prosecutor to provide information about an item of property (Mobile Telephone) listed on a property seizure record as having been seized by yourself, you displayed an attitude which has been described as laz[y]. According to the complainant you did not display a level of professionalism normally expected of a police officer with your level of training and experience.
(b) The inattentiveness which you displayed caused the prosecutor to describe your actions as irresponsible and contemptuous of both the prosecution and the trial process, to such an extent that the prosecution will avoid calling you in future as a witness in any retrial.
(2) During the conduct of [the] Operation …, on or about 22 April, 1994 you had cause to seize a small quantity of green vegetable matter, later analysed as being cannabis. No further action has been taken by yourself since that date and the seized item is still retained by the AFP, and recorded in the AFP Drug Register as ‘to be retained for court’. You failed to further investigate this matter.
(3) As part of the investigation associated with [the] Operation … you had cause to fire a Tokarov 7.65mm calibre semi-automatic pistol at the AFP pistol range, Southern Region. You undertook that task in a manner which later caused the prosecutor to have concerns about the level of professionalism and the best practice principles adopted during that procedure.
Following the investigation, Burnage recommended that all the complaints “be finalised as substantiated”. He also recommended that “this matter and report be forwarded to Professional Standards for review” and that, amongst other things, the applicant “be placed under close supervision with his PMP being monitored/reviewed at three monthly intervals”.
11 Burnage concluded that the applicant was “ill prepared with respect to giving evidence”. He remarked that the initial storing of the weapon in a loaded condition was “unacceptable and exposes both police and offenders to risk”, and that the property seizure record was “severely deficient”. In relation to the testing of the firearm, Burnage said:
4.1 The subsequent testing of the firearm by [the applicant] is of concern and is in complete contradiction of current AFP policy. [The applicant] on 28 April 1994 removed the firearm and seized ammunition from the care of the Regional Property Officer and attended at the Southern Region Firing Range situated on the 4th Floor of the Regional Headquarters, Southern Region. Once there he loaded the firearm with the seized ammunition and fired two (2) shots at a target. …
4.2 [The applicant] claims that his actions were under the express control of the Regional Firearms Officer Federal Agent Eric Riley (now retired). He further claims that the firing of the pistol is necessary to prove an offence under the provisions of the Victorian State Firearm Legislation. …
4.3 [The applicant] states that he did not take any notes nor record by any other means the procedure he followed with respect to the testing of the firearm. He also states that he has no knowledge of the ‘Forensic Services Book’ and in particular the chapter relating to firearms and ballistics procedures.
4.4 Several AFP members interviewed … state that [the applicant] is a firearms enthusiast and tested the firearm for personal reasons only and was not particularly concerned about following correct procedures.
4.5 The actions of [the applicant] on this occasion and in particular the destruction of evidence by utilising the seized ammunition in the pistol for testing purposes is not what would normally be expected of a senior and experienced Federal Agent. His actions on this occasion are found to be totally inexcusable.
12 Of the applicant’s failure to obtain the call charge records, Burnage said:
5.4 II inquiries have revealed that in a relatively short time frame (One to Two Minutes) the ESN for the seized mobile telephone could be obtained from Telstra Australia. This ESN is applicable to a mobile telephone service operated through Optus. Subsequent to the ESN being obtained subscriber details/customer details were obtained from the service provider.
5.5 It remains inexplicable, that an experienced officer such as [the applicant] would merely attend two mobile telephone retail outlets in the Melbourne CBD, and inquire as to subscriber details. It is also of concern that the security of [the] Operation … may have been jeopardised by disclosing AFP operational matters to non authorised persons.
13 Burnage also concluded that the applicant had essentially ignored the seizure of cannabis from one of the co-accused. He said:
7.1 [The applicant] claims under direction that he replaced [another officer] as Informant in the matter due to [that officer’s wife’s] pregnancy and on going medical treatment. [That officer] rebukes [sic] this assertion in his interview with II Investigators. [He] states that [the applicant] was instructed … to act in the capacity of Informant as a direct result of [the applicant’s] actions which brought about an early termination to the interview with [an accused].
In relation to this last-mentioned matter, Burnage expressed the view that the applicant had been “less than truthful” in answering questions under direction. He believed that the applicant’s “version of events [was] designed to mislead … and to give some credence to his abilities as an investigator”.
14 Burnage summarised his conclusions as follows:
Overall, this inquiry has revealed a general lack of confidence by members of the Operation … Team in [the applicant].
…
If this member’s performance during [this] Operation … is a sample of his overall performance there are numerous flaws in his current investigation ability and attitude toward his work and his fellow AFP employees.
…
Examination of the comments provided by the AFP members interviewed, and after discussion with them in general terms about their perception/s of [the applicant] suggests that:-
· There is a lack of confidence held by this member’s peers regarding his investigation abilities and attitude regarding ‘team enterprise’
· Observations suggest a laissez-faire, lazy and ambivalent attitude toward his duties; and
· their preference is not to work with this member.
The above mentioned judgement is also shared by [senior prosecuting counsel] and [the] DPP solicitor … who have been critical and unanimous in their condemnation of [the applicant’s] investigation ability and the attitude he displayed to them whilst at Court. Put simply they have now lost confidence in him and question his ethics.
(c) Review of the applicant’s PMP, 1 January 1995 - 31 December 1995
15 The s 26E notice stated, in part, that a review of the applicant’s PMP evaluation for the period 1 January 1995 to 31 December 1995 indicated that he:
may not have shown the level of enthusiasm and industry which could be expected of a member with [his] training and experience.
According to the s 26E notice, the comments of his supervisor included the following:
[The applicant] has not developed any informants and has provided little intelligence in relation to drug investigations.
[The applicant] has shown an ability to develop and research information as required, but tends to lack initiative and motivation, unless guided in a specific direction.
The notice referred to the fact that the applicant had been counselled by two of his supervisors during the 1995 review period.
(d) Review of the applicant’s PMP, 1 January 1997 - 14 November 1997
16 Under this heading, the s 26E notice stated:
(i) [The applicant’s] final evaluation for the period 01 January to 14 November 1997 indicates that [his] supervisor rated [his] performance as ‘3’ for three of [his] set objectives and ‘4’ for two of the objectives. [His] overall rating was adjudged by [his] supervisor, Federal Agent Lee, as ‘4’, which indicate[d] that [his] overall performance may have been marginal and that [he] may have required considerable guidance.
(ii) Several of [his] supervisor’s comments appearing within the PMP evaluation [gave] rise to concerns relating to [his] level of motivation and commitment to the AFP. …
The nature of the comments … give [sic] rise to concern that as a senior investigator and a member who has acted on occasions in the position of team leader, [he] may not have set an appropriate standard as a role model for other team members and that [he] may have exhibited a poor level of performance due to an apparent lack of ability or industry.
The results of the IID’s investigations were referred to the AFP’s Employment Standards branch for appropriate action. Clive Banson, the Director of Employment Standards, recommended that steps be taken under s 26E of the AFP Act.
17 By letter dated 30 March 1998, Isakow Solicitors, solicitors for the applicant, replied to the matters raised in the s 26E notice. On behalf of their client, the solicitors rejected the allegations against him. In particular, the letter stated, in relation to the applicant’s conduct on 28 - 29 November 1993, that “there was no method available for verifying the information prior to the execution of the search warrant”. The letter further stated that the “use of handcuffs was necessitated by the special circumstance that there was an immediate likelihood that [the boy] would attempt to seriously assault our client again” and that the applicant denied that “his paperwork was sub-standard”. The letter requested the DeputyCommissioner to provide further particulars of the alleged paperwork errors.
18 In relation to the applicant’s conduct on 22 April 1994 and during court proceedings in April-May 1997, the applicant denied “replying without honesty and integrity to questions given under direction” and “acting unprofessionally when responding to questions from the Crown Prosecutor”. The letter went on to state that “the fact that our client was asked to give evidence at the retrial, although he was not called, indicates that the prosecution is willing to call him as a witness in any retrial”. The letter further stated that, in relation to the cannabis matter, “[o]ur client instructs us that proper action was instituted given [the accused] was charged with possession of cannabis and the drugs were lodged with the Drugs Registrar. Our client further instructs us that it was not for him to pursue the cannabis issue and accordingly he sent the paperwork to the case officer”. In connection with the firearm testing, the letter said:
Our client denies that he potentially destroyed evidence. Our client instructs us that the evidence was that the firearm was capable of being discharged. Our client sought to prove this by discharging the firearm in the presence of Sergeant Eric Riley. … Our client further instructs us that before being discharged the firearm was searched for fingerprints but none were identifiable. … Our client instructs us that the ammunition seized is not evidence of a charge as in 1994 there was no charge for the possession of live ammunition.
The letter also responded to the allegations relating to the mobile phone inquiries and the applicant’s PMP evaluations.
19 In response to the request for particulars of the record-keeping errors referred to in the s 26E notice, a letter dated 27 May 1998 was sent to the applicant’s solicitors, attaching a record of conversation between the applicant and Sharp on 19 January 1994. The letter stated that “[t]he concerns addressed … in [the s 26E notice] have arisen from the attached record of interview”. The letter further advised that:
A submission is currently being prepared, in relation to this matter, for the decision maker. Accordingly, any further response that you or your client may consider relevant to the delegate’s decision, whether to end [the applicant’s] appointment early, should be received by my office without delay in order that it can be taken into account.
Under cover of a minute dated 26 June 1998 from Banson, the Deputy Commissioner received a submission about the applicant. In his minute, Banson stated:
The attached submission is referred for your consideration and decision as to whether or not to end [the applicant’s] appointment early. In making your decision, you must consider only the matters detailed within this submission.
The minute was date-stamped as received in the office of the Deputy Commissioner on 29 June 1998.
20 The submission, consisting of around twenty-seven pages, addressed the applicant’s employment history. It reviewed his assessments in his recruitment-training course and thereafter. It noted, for example, that the applicant had received positive evaluations for the period between early 1988 and 16 June 1994. The submission noted too that, for the period 1 January 1995 to 31 December 1995, the applicant “was evaluated with an overall rating of 3 but did receive a 4 rating for one of the performance objectives”. It also referred to his supervisor’s comments about his lack of success with informants and intelligence. It dealt in some detail with his evaluation for the period 1 January 1997 to 14 November 1997, setting out some of his supervisor’s comments, including:
Where this member is conducting duties which he believes are worthwhile then this member is motivated and possesses skills which are of value to the team and individual members. In this circumstance this member is able to advise less experienced members as to possible approaches which can be undertaken during an investigation. Where this member lacks motivation his attitude and productivity deteriorates and he requires close supervision to ensure his attendance within the workplace and that tasks are completed satisfactorily. This attitude and demeanour affect not only this [member’s] performance but also affects the attitude and morale of other members within the team.
It mentioned that the applicant responded to these criticisms at the time.
21 The submission very largely accepted the account of the 28 - 29 November 1993 incident contained in the IID minute of 27 July 1994, although it also referred to the applicant’s more recent response through his solicitors. The submission noted:
When interviewed by FA Sharp in January 1994, [the applicant] stated that [the boy] was arrested and handcuffed for assault as a result of a drinking glass that was thrown at the door as police attempted to gain entry … . As the claim made in [the applicant’s] response ie. the attempted stabbing, was not previously made during the II record of interview as justification for the handcuffing of [the boy], you may conclude that doubt is cast on [the applicant’s] honesty in relation to this matter.
The submission stated that the record of the 19 January 1994 conversation provided evidence of the errors to which the s 26E notice and the letter of 27 May 1998 referred. The submission ended:
You may conclude … that in regard to his conduct during this drug operation [the applicant] failed to comply with a relevant General Instruction, displayed a lack of vigour in conducting investigations, a disregard for AFP best practice and a level of competency below that expected of an AFP appointee. You may further conclude that, by his actions, [the applicant] played a significant role in discrediting the reputation of the AFP.
22 For the most part, the submission also accepted the account, in the IID minute of 5 January 1998, of the applicant’s conduct in the court proceeding in April-May 1997. In relation to the conflict between the applicant and his colleague as to why the applicant became the informant in the case of one accused, the submission stated, after mentioning the accounts of three witnesses:
When considering this matter you may conclude from the three versions of events provided to [the investigating officer], those from [the applicant] and [another officer] are most consistent with each other, with [the third officer’s] version being completely unsupported. … Even if [the applicant] was appointed the Informant because he acted inappropriately during the record of interview … , there is no indication from any of the member [sic] that [the applicant] was made aware of this. Consequently, [the applicant] may be of the genuine belief that he was made the Informant because [another officer] was not available to attend a bail hearing the following morning or commit to completing the brief. In this matter you may find that there is insufficient evidence to ascertain if [the applicant] has been honest and open in his II interview … and you may choose to disregard this matter when considering [the applicant’s] suitability to remain an appointee of the AFP.
23 As to his manner “during both the prosecution and trial processes”, the submission referred, amongst other things, to the material in the IID minute of 5 January 1998 and the applicant’s solicitors’ response to the s 26E notice, observing:
It appears more likely that on this matter that [the applicant] had not taken the time to properly complete that Property Seizure Record at the time of the operation or make himself sufficiently aware of the details of his evidence to competently give that evidence in court. … [Y]ou may conclude that … he acted in a [sic] unprofessional manner and brought discredit to the reputation of the AFP.
The submission expressed the view that his solicitors’ response to the alleged deficiencies in the property seizure record were “disturbing and, in fact, damaging to the defence against the member’s possible s.26E action”. It added:
While [the applicant] may have been placed in the difficult position of having to complete the Property Seizure Record after the items had been located (and apparently handed to [another officer]), he had an obligation as the designated property officer to make enquiries with all the members involved in the search to establish when and where the items had been located and to record those details accurately … .
…
While there is no evidence to prove that [the applicant] attempted to intentionally mislead the court proceedings … you may conclude that he has knowingly made a false entry in an official AFP document and has displayed exceedingly poor judgement and a serious lack of industry and competence in his function of property officer during the arrest phase of [the] Operation … .
24 Regarding the cannabis issue, the submission referred to the IID 5 January 1998 minute and to the statements of witnesses obtained in the course of the IID investigation, stating:
On this matter you may also conclude that [the applicant] has neglected his duty, as the member who seized the suspected drug from [the accused] and his arresting officer, for failing to instigate further legal action in relation to the cannabis.
25 Turning to the firearm testing issue, the submission referred to the response made by the applicant’s solicitors, the evidence of Mr Eric Riley, whom the applicant had said had been present when the pistol was tested, and the IID investigation. The submission concluded:
On this matter you may conclude that [the applicant] should reasonably have known that it was the usual procedure for seized firearms to be tested in Canberra and a police statement obtained to prove the test firing and the result. Further, if [the applicant] was not familiar with this investigational procedure he should have consulted with … the operational commander who delegated the task to him, to ascertain the appropriate action to take. You may conclude, on the evidence …, that on this occasion [the applicant] has displayed poor judgement, a failure to conform to best practice and has further failed to exercise initiative in his approach to operational duties.
26 After examining the mobile telephone issue, the submission observed:
[Y]ou may conclude that [the applicant] did conduct the inquiries into the seized mobile telephone as he stated and was provided with the incorrect ESN from the person he spoke to at the Optus office. If this is the case, you may consider that this … does not impact on your decision in relation to [the applicant’s] suitability to remain an appointee of the AFP. However, you may conclude that [the applicant] may be partly to blame for this situation because he did not make himself aware of [the] most appropriate investigational avenue to obtain the information he needed about the seized mobile telephones. … If you find, on the balance of probabilities, that [the applicant] holds some responsibility for his inability to obtain information about the mobile telephone, you may conclude that that has shown poor judgement and a disregard for best practice that reflects adversely on his abilities as an investigator.
27 Referring to the applicant’s PMP evaluations, the submission stated that parts of the appraisal for 1997 showed that the applicant was “working well below the standard expected of a police member with approximately 12 and a half years experience”. The submission added:
It also appears that [the applicant] has developed a negative attitude towards the AFP in general, evidenced by the comments he added to his 1995 and 1997 PMP evaluations, and he expresses this attitude openly in the workplace. On the matter of [the applicant’s] work performance and attitude, you may conclude from the contents of his PMP evaluations, his 26E response and this submission that [the applicant] has no convincing grounds for denying he lacks the requisite level of motivation, industry, responsibility and commitment to his AFP duties.
28 The submission ended with the observation:
Your decision in regard to whether [the applicant’s] fixed term appointment should be ended early focuses on balancing his skills, experience and potential against any concerns you may have as to his involvement in the incidents outlined above. Specifically, in considering whether [the applicant] is suitable to remain an appointee of the AFP you must be satisfied on the balance of probabilities that his actions, judgement and behaviour … adversely reflect on his integrity, competence, motivation and judgement such that he is not able to continue to perform the functions and duties of a member of the AFP.
As already stated, the Deputy Commissioner communicated his decision to end the applicant’s appointment as a member of the AFP by a minute dated 30 June 1998. The applicant received the minute on 1 July 1998.
extension of time
29 As a threshold matter, the applicant sought an extension of time in which to make an application for an order of review under the AD(JR) Act. The application was supported by affidavits sworn by the applicant on 15 March and 3 June 1999, and by his solicitors on 20 April 1999. Under s 11(3)(b)(iii) of the AD(JR) Act, in a case of this kind, the prescribed period for lodging a review application under s 5 is twenty-eight days from “the day on which a document setting out the terms of the decision is furnished to the applicant”. The applicant was notified of the decision to end his appointment with effect from 22 July 1998 on 1 July 1998. Section 11(1)(c) of the AD(JR) Act provides that a review application must be lodged within the prescribed period or within such further time as the Court allows. The application in this case was lodged on 11 March 1999, more than seven months after the expiration of the prescribed period.
30 The applicant deposed that he retained Isakow Solicitors shortly after he received the s 26E notice. When notified on 1 July 1998 of the Deputy Commissioner’s decision, he instructed his solicitors to brief counsel to advise on an appeal. On 21 July 1998, his solicitors in fact briefed counsel to advise on the employment law aspects of the Deputy Commissioner’s decision. On that date too, his solicitors wrote to the Deputy Commissioner, advising:
In relation to payment of final monies to our client we inform you that such monies are accepted by our client without prejudice to his right to commence legal proceedings against the Australian Federal Police surrounding his termination of employment.
As it turned out, it was not until September 1998 that his solicitors sought advice from the applicant’s present counsel on whether a remedy might lie in administrative law.
31 The applicant was not entitled to receive and did not in fact receive a written statement of reasons for the Deputy Commissioner’s decision: see AD(JR) Act, s 13(8) and Schedule 2, item (za). In order to learn more about the decision, he made a request on 1 October 1998 for access to documents relating to the Deputy Commissioner’s decision. The request was made under the Freedom of Information Act 1982 (Cth) (“the FOI Act”). The AFP responded, on 8 December 1998, by providing the applicant with numerous documents. The submission, which accompanied the 26 June 1998 minute to the Deputy Commissioner, was not included in this material. (The applicant did not see the submission until 11 May 1999 when it was produced in Court pursuant to a notice to produce dated 26 April 1999.)
32 Following a discussion with counsel sometime after 8 December 1998, the applicant delivered the documents obtained under his FOI request to counsel’s chambers on 21 December 1998. On 3 January 1999, counsel sought instructions from the applicant’s solicitors. The solicitor with carriage of the matter was then abroad and did not return until 15 January 1999. There was no discussion between the applicant’s legal advisers until late January 1999, when counsel was instructed to draw the review application initiating this proceeding. Counsel had drawn the application by the first week of March 1999.
33 On the hearing of this matter, the applicant gave further evidence and was cross-examined on the delay in lodging his review application. He maintained that he had funding difficulties in pursuing the matter, even though he received his termination payment from the AFP about 8 August 1998. His evidence was that he had been seeking redress by such channels as his legal advisers recommended since receiving the s 26E notice in March 1998; that he did not believe that he could have filed a “holding application”, “being a hollow document without reason”; and that he was unaware of any time limits on making a review application under the AD(JR) Act until early March 1999, notwithstanding that he had been receiving legal advice since March 1998.
34 The Court’s discretion to grant an extension of time for making a review application under the AD(JR) Act is a broad one. Although the prescribed twenty-eight day period is not to be set at nought, the Court may extend time pursuant to s 11(1)(c) where the justice of the case requires it: see, e.g., Wedesweiller v Cole (1983) 47 ALR 528 at 531 and Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (“Hunter Valley”) at 348-352. The applicant deposed that, if the Deputy Commissioner’s decision stands, his employment prospects will suffer and his reputation “as a law enforcement officer [will be] tarnished”. His evidence on this point was unchallenged. If there is an acceptable explanation for the delay, that too is to be taken into account: see Comcare v A’Hearn (1993) 45 FCR 441 at 444. The applicant proffered an explanation which, for the most part, I accept. The applicant took legal advice early. He was actively engaged in seeking legal advice from at least 1 July 1998, when he heard of the Deputy Commissioner’s decision, until he lodged his review application. He made his request under the FOI Act in October 1998 in an attempt to obtain information about the decision that would permit his legal advisers to advise him adequately. Two months elapsed whilst the AFP processed his request under the FOI Act. In the absence of s 13 reasons and a copy of the submission upon which the Deputy Commissioner was invited to act, it was not unreasonable for the applicant’s legal advisers to wait upon the result of his FOI request before taking further action. It is true, as the respondents pointed out, that “a holding application” might have been lodged at any time after 1 July 1998. In the circumstances of the case, however, I doubt that an application of this kind would have served a useful purpose. The applicant knew little about the decision prior to the receipt of the AFP documents in December 1998. Nonetheless, by virtue of the applicant’s solicitors’ letter of 21 July 1998 and the applicant’s FOI request, the AFP ought to have been aware that the applicant was contemplating a challenge to the Deputy Commissioner’s decision. Upon receipt of the documents obtained pursuant to his FOI request, the applicant took a short time to prepare them for counsel. The ensuing delay was attributable to the applicant’s legal advisers.
35 I accept that the period of delay for which the applicant, as distinct from his legal advisers, was personally responsible was minimal, and the delay for which his legal advisers was responsible was not, in the circumstances of the case, inordinate. In any event, as the decision of the Full Court in Comcare v A’Hearn (1993) 45 FCR 441 at 443-444 shows, in this context, delays attributable to a legal adviser are not to be treated as if they were the immediate fault of an applicant. As Wilcox J put it in Hunter Valley at 351:
[A]lthough the fact that a relevant failure is the fault of the solicitor for a party rather than the party himself does not in itself amount to sufficient cause to excuse the delay ‘the blamelessness of the claimant and the responsibility of his solicitor is very material’: see Sophron v The Nominal Defendant (1957) 96 CLR 469 at 474. It would be erroneous to treat the fault of the solicitors as if it were the direct default of the client.
I have already mentioned that the applicant, by his solicitors’ letter of 21 July 1998, put the AFP on notice that he had it in mind to challenge the Deputy Commissioner’s decision. So far as the AFP was concerned, the applicant’s FOI request in October 1998 kept the prospect of a challenge alive. This is not a case in which the applicant has rested on his rights and allowed the decision-maker to believe the matter was closed. This too is a factor militating in the applicant’s favour: see Hunter Valley at 348-349.
36 Although they referred to matters of general prejudice, the respondents did not attempt to establish by way of evidence that they would suffer any particular harm if an extension of time were granted. The absence of evidence of this kind is not, of course, determinative.
37 The applicant has, however, raised a tenable case for review. Interests important to him are at stake. Most of the delay is attributable to his legal advisers. The respondents will not be unduly prejudiced if an extension of time is granted. In all the circumstances, it is in the interests of justice to grant the extension of time that he seeks.
merits of the review application
38 By a further amended application for an order of review dated 20 April 2000, the applicant specified a number of grounds for review. These are considered below under the following headings:
(a) Failure to take into account relevant considerations;
(b) Taking into account irrelevant considerations;
(c) No evidence;
(d) Unreasonableness; and
(e) Procedural fairness.
39 The amendments that resulted in the current form of the application were made following the respondents’ production, upon a notice to produce, of various documents, including the submission prepared for the Deputy Commissioner. The applicant should have leave to amend his review application, in order to permit him to raise directly the matters upon which he seeks to rely. The application to amend was not opposed by the respondents.
(a) Failure to take into account relevant considerations
40 Under the AD(JR) Act, the failure to consider a relevant matter is one instance of an improper exercise of power: see s 5(2)(b). This reflects the common law. The principles relating to a challenge on this ground to an exercise of a statutory discretion are set out in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 (“Peko-Wallsend”). To succeed, an applicant for review must show that the relevant decision-maker failed to take into account a consideration that he was bound to take into account in making the decision: Peko-Wallsend at 39. Where the statute does not expressly mention these factors, then they must be determined by implication from its subject-matter, scope and purpose. Moreover, even where a decision-maker fails to take into account a matter as he was bound to do, a court will not necessarily set aside the decision. A factor may be of such little importance that the court may decide that the failure to take it into account could not have materially affected the decision.
41 As already noted, the decision impugned in this case was made under s 26E(2) of the AFP Act. After an amendment effected by s 5 of the Crimes Legislation Amendment Act (No. 2) 1991 (Act No. 123 of 1991), s 26E(2) relevantly read:
Subject to this Act and the regulations, an appointment under section 25, 26 or 26B ends:
(a) when the term of the appointment ends; or
(b) if, before the end of the term, the Commissioner determines, in writing, that the appointment ends on a day specified in the determination, being a day earlier than the day on which the term ends, but not earlier than the day on which the determination was made – on the specified day.
The appointment mentioned in s 26E(2) was as a police officer. The applicant is taken to have been appointed to be a non-commissioned police officer under s 26(1)(a) of the AFP Act, pursuant to s 56(3) of the Australian Federal Police Legislation Amendment Act (No. 2) 1989 (Act No. 153 of 1989): see ss 4, 55(1)(c), 56(3) and 57(2). His appointment was for a fixed term. Fixed term appointments were introduced by Act No. 153 of 1989: see ss 57(2) and 57(4) and the AFP Act, s 26D. The functions of the AFP are described in s 8 of the AFP Act. They include “the provision of police services in relation to … laws of the Commonwealth”: see s 8(1)(b)(i). The Commissioner is responsible for the “general administration of, and the control of the operations of” the AFP: see s 13(1). The Commissioner may delegate some of his powers to Deputy Commissioners: see s 15.
42 The applicant conceded that s 26E(2) of the AFP Act confers a comparatively wide discretion on the Commissioner. Any matters which the Commissioner is bound to take into account must be determined by implication from the subject-matter, scope and purpose of the AFP Act. In written submissions, the applicant contended, however, that:
[H]aving set an agenda covering a given range of factual issues, it is incumbent on the decision-maker to take into account evidence on both sides of a proposition forming part of the matters in issue, providing the evidence is not insignificant.
The applicant alleged that the Deputy Commissioner had failed in this duty.
43 Even accepting the premise, that “the decision-maker [must] take into account evidence on both sides of a proposition …”, I do not think that it overcomes the primary difficulty faced by the applicant. This difficulty stems from the fact that the decision-maker has not made a statement of his reasons for decision available to him. As already noted, the decision-maker was not obliged to do so, since a decision of this kind does not attract an obligation to give reasons, pursuant to s 13 of the AD(JR) Act or otherwise. Further, save for the evidence referred to below, the respondents themselves did not adduce any evidence about the making of the decision. The Deputy Commissioner gave no evidence at all. For reasons that appear below, the applicant’s case on this ground ultimately fails because he is unable to establish what matters the Deputy Commissioner in fact took into account and how much weight he gave them when he made his decision on 30 June 1998.
44 Assistant Commissioner Rodney Leffers deposed that it was the usual practice for him or his personal assistant to deliver to the Deputy Commissioner’s personal assistant any submission prepared under the supervision of the Director of Employment Standards regarding a decision of the kind with which this case is concerned. Superintendent Clive Banson, who was the Director of Employment Standards between October 1997 and March 1999, deposed that a submission relating to the applicant (“the submission”) was prepared under his supervision for the assistance of the Deputy Commissioner. Banson further deposed that, on 26 June 1998, he forwarded to Leffers the submission with its attachments A to N, under cover of a minute dated 26 June 1998 (mentioned above). I accept that the Deputy Commissioner had that minute together with the submission and its attachments at the time he made the decision under review.
45 The relevant consideration ground of review is predicated largely on alleged errors or omissions in the submission or its attachments. In effect, the applicant submits that, in the absence of evidence to the contrary, the court should conclude that these alleged mistakes were also made by the decision-maker. For the reasons stated below, I reject this submission.
46 I do not accept that, in the absence of evidence from the decision-maker, he is to be taken to have adopted, as his own, the entire contents of the submission that was prepared to assist him in making the decision. The submission made it clear that, in relation to a number of matters, there were different ways in which the Deputy Commissioner could properly evaluate the information before him. One cannot tell what way he chose. Further, there were, as we have seen, a multiplicity of matters discussed in the submission (and raised initially in the s 26E notice). The Deputy Commissioner may have chosen to give some matters no weight, some a little weight, and some a great deal. In the absence of any pertinent evidence, one simply cannot say what weight he gave to any particular matter. There may have been a number of different factors leading to the Deputy Commissioner’s decision. There is simply no basis shown to justify the view that his decision was based more heavily on one factor than another. It is well recognised that, in excluding some decisions from the application of s 13 of the AD(JR) Act, the legislature has largely insulated those decisions from review: see Administrative Review Council, Review of the Administrative Decisions (Judicial Review) Act: Statements of Reasons for Decisions, Report No 33 (14 February 1991), pars 152, 175-178. It does not follow, of course, that, in the absence of evidence from the decision-maker, a decision can never be successfully challenged. It may be possible to infer that a decision was made on a particular basis where it is apparent that it could not reasonably have been made on any other. A court may conclude, for instance, that a decision-maker did not take into account relevant material that was not actually before him or drawn to his attention (although in the possession of subordinates).
47 With these considerations in mind, I turn to the first matter raised by the applicant under the relevant consideration ground. The applicant submitted that the decision under review was based on a finding, in connection with the 28 - 29 November 1993 incident, that “the applicant’s measures to verify the accuracy of an address given to the AFP on the night of 29 November 1993 were inadequate”. He further submitted that Sharp’s report, on which the finding was based, ignored his “testimony to Internal Investigations as to the need for urgency in searching the address …”. This testimony was, so he submitted, a relevant consideration which the decision-maker was bound to take into account.
48 Neither Sharp’s 27 July 1994 report nor the submission prepared for the Deputy Commissioner in June 1998 referred to an asserted need for urgency. It does not follow from this, however, that the Deputy Commissioner failed to take the applicant’s statements about urgency into account or that he erred if he did not. One simply cannot tell whether or not the Deputy Commissioner’s decision was based, as the applicant would have it, on Sharp’s conclusion that the applicant did not take adequate steps to verify the information given to the AFP. The relevant incident took place more than four and a half years before the Deputy Commissioner made the decision. In the interim, the applicant had been formally counselled about his role in it. For all one knows, the decision-maker may have considered that the November 1993 incident was of much less importance than conduct that was closer in time.
49 In any event, even if I were satisfied that the Deputy Commissioner did base his decision upon Sharp’s conclusion, I would not accept that the Deputy Commissioner thereby erred as the applicant alleged. This is for three reasons. As already noted, the applicant’s assertion, that there was a need to act with urgency, was set down in a record of conversation between him and Sharp on 19 January 1994 made in the course of the IID investigation. The record was attachment H to the submission. As it happened, the submission referred to specific parts of the record, although not to the point at which the applicant referred to the need for urgency. Had the Deputy Commissioner read the whole of the record, however, he would have read the applicant’s statements regarding urgency.
50 The applicant submitted that it would be unsafe to assume that the Deputy Commissioner read the record, since the submission and its attachments were received in his office only a day before the decision was made. The fact is, of course, that the evidence does not permit the Court to make any finding as to whether or not the Deputy Commissioner in fact turned his mind to the 19 January 1994 conversation and the applicant’s reference to urgency. At most the evidence shows that the Deputy Commissioner could have turned his mind to the matter. There is nothing to establish that he did not.
51 Even if the Deputy Commissioner did not consider the applicant’s statement about the need for urgency, no error is shown. The submission and Sharp’s July 1994 report (attachment A to the submission) indicated plainly enough what was sought in searching the flat on 28-29 November 1993 and the time-limits under which the AFP members were acting. Sharp’s report referred to a “series of premises searches” conducted by the AFP on 28 November 1993; to the preparation of a further information for a search warrant for the flat “[e]ither late on 28 November 1993 or in the early hours of Monday 29 November 1993”; and to the execution of the warrant “[i]n the early hours of 29 November 1993”. This partly reflected the applicant’s statements in the 19 January 1994 conversation with Sharp that the decision to search the flat was made at about 10.30 pm on 28 November 1993 and the applicant’s diary note that the warrant was not executed until 3.30 am the next day. This account differed from the June 1998 submission, which mentioned that the warrant had been executed at about 2.15 am on 29 November 1993. Nothing in this case turns on the discrepancy. It is apparent that sufficient information appeared in the documents before the Deputy Commissioner to acquaint him with the circumstances in which the warrant was sought and executed.
52 Moreover, the issue for Sharp in July 1994 was whether or not the applicant should have checked the AFP file to verify the address that he had been given. It is tolerably clear that there were two critical factors in Sharp’s assessment: first, the AFP file contained a record of the actual address of the suspect’s boyfriend; and, secondly, the applicant admitted to Sharp that he knew that the boyfriend was known to the police for his involvement in unlawful drug-related activities. Sharp concluded that the applicant “either knew of that record in [the AFP] file, or ought to have known of it”. The circumstances were described in some detail at pars 30 to 32 of the submission. The submission specifically referred to a part of the record of the 19 January 1994 conversation that established the applicant’s knowledge - knowledge that he did not subsequently deny. The applicant did not specifically allege that he would not have had time to check the file before the warrant was executed, although this claim may have been implicit in his reference to the need for urgency. The allegation would have been difficult to maintain, however, in light of the fact that there were some four or five hours between the decision to apply for a search warrant and its execution at the flat. Indeed, it may be implicit in Sharp’s finding that the applicant took inadequate steps to check the boyfriend’s address that Sharp considered there was enough time to have checked the file. It was plainly open to him (and the Deputy Commissioner) to take this view. The applicant raised many matters, including this one, in his conversation with Sharp, but Sharp was not obliged to refer specifically to every one. I reject the applicant’s submission that, in the circumstances, the applicant’s claim of urgency was a matter of the kind that the Deputy Commissioner was bound to take specifically into account in making the decision under review.
53 The next error alleged under the relevant consideration ground was the Deputy Commissioner’s failure to consider the role of the case officer in relation to the prosecution of charges. The applicant submitted that the impugned decision was based on a finding that he “may have shown poor judgement and disregard for best practice” in connection with a charge for the possession of cannabis seized on 22 April 1994. In making this finding, the Deputy Commissioner did not, so the applicant submitted, take into account the case officer’s responsibility for coordinating the prosecution of charges.
54 For the reasons already given, the material before the Court makes it very difficult to say whether the Deputy Commissioner’s decision was based on a finding of the kind alleged. Even if it were, the submission provides no support for the claim that the role of the case officer was not taken into account. Paragraph 52 referred to the applicant’s solicitors’ contention that:
proper action was instituted given [the accused] was charged with possession of cannabis and the drugs were lodged with the Drugs Registrar. Our client further instructs us that it was not for him to pursue the cannabis issue and accordingly he sent the paperwork to the case officer for [the] Operation … .
The submission further stated that the applicant:
had explained during his II interview with FA Burnage that he had handed all the appropriate documentation to [the case officer] because, as the current Operation[’s] case officer, he would have knowledge about the status of the case and when the seizure was able to be destroyed … .
The applicant’s contention, that it was the case officer’s responsibility to pursue charges and not his, was plainly before the decision-maker. There is nothing to indicate that the Deputy Commissioner did not take that contention into account.
55 The applicant deposed that, on 17 March 1995, he filed a charge against a person as a consequence of finding cannabis in that person’s possession on 22 April 1994. Charge sheets and court records confirmed this. The submission stated, however, that “[i]nformation from FA Burnage indicates that [the suspect] was never charged in relation to the cannabis” and it invited the Deputy Commissioner to conclude that the applicant had neglected his duty.
56 In his 5 January 1998 minute, Burnage referred (at pp 19-20) to his interview (elsewhere referred to as a conversation) with the applicant on 4 September 1997, when the applicant said that he had filed charges but that he did not know if the court proceeding was completed. In the course of the conversation, the applicant also said that the case officer had responsibility for pursuing the prosecution. It was apparently because he made no inquiries and knew nothing about the subsequent proceeding that Burnage reached his conclusion that the applicant had “basically … ignored” and failed “to adequately monitor” the cannabis matter. As already noted, Burnage did not accept that this was not the applicant’s concern.
57 Burnage did not specifically allege that the applicant had failed to file a charge and it is unlikely that he intended his minute to be read in this way since he in fact set out in his minute the applicant’s statement that he had filed a charge as directed. Burnage apparently believed that the complaint about the applicant’s inaction regarding the cannabis was substantiated because, although a charge was filed, the applicant had on his own admission completely failed to monitor the progress of the court proceeding. The author of the submission misread Burnage’s minute in stating that the applicant had not filed a charge at all.
58 The entirety of Burnage’s 5 January 1998 minute and the record of the 4 September 1997 conversation were attachments C and I to the submission. The minute specifically referred to parts of the September 1997 record that indicated that the applicant had initiated, but not monitored, a proceeding concerning the unlawful possession of cannabis. If the Deputy Commissioner read Burnage’s minute for himself and the parts of the record to which it referred, he would have appreciated the nature of the applicant’s default as Burnage saw it. Moreover, the applicant’s solicitors’ letter of 30 March 1998, which was attachment E to the submission, also stated that the applicant had laid a charge and identified the alleged default as the applicant’s failure to pursue the matter further. There is nothing to show how much, if at all, the matter of the cannabis weighed in the Deputy Commissioner’s mind. If it was among the matters that he took into account, there is nothing to show that he was not alive to the actual position, as confirmed by the applicant’s solicitors’ letter. The evidence before the Court does not justify the inference that the Deputy Commissioner proceeded in error.
59 Under the relevant consideration ground, the applicant also submitted that the decision was based on a finding, in connection with the 22 April 1994 incident, that he “may have shown poor judgement and disregard for best practice in relation to testing a firearm seized” on that day. In making that finding, the Deputy Commissioner did not, so the applicant submitted, take into account his “testimony to Internal Investigations as to the role of Regional Firearms Officer, Sergeant Eric Riley, in supervising the test; the fact that the two rounds used in the test were not necessary exhibits in their original state; or the fact that the applicant successfully gave the required evidence of the capability of the firearm” at a subsequent trial.
60 For reasons already outlined, I reject the submission that the Deputy Commissioner’s decision can be shown on the evidence before the Court to be based on a finding that the applicant “may have shown poor judgement and disregard for best practice in relation to testing a firearm”. In the absence of evidence, one simply cannot say whether the Deputy Commissioner acted on any such basis. Even if I were of the contrary view, I would reject the submission that it has been shown that the Deputy Commissioner did not take into account the applicant’s statements regarding the role of the Regional Firearms Officer. The submission clearly sets out the applicant’s claim that he discharged the firearm in the presence of the Firearms Officer. It referred to his response, as conveyed by his solicitors in their letter of 30 March 1998, as recorded in his conversation with Burnage on 4 September 1997, and as narrated by Burnage in his subsequent minute. The submission also related that the Regional Firearms Officer could neither confirm nor deny his presence. As already noted, the solicitors’ letter, the record of conversation, and Burnage’s minute were attachments to the submission. In these circumstances, I am unable to accept that the Deputy Commissioner failed to consider the applicant’s account of the testing of the firearm.
61 The applicant also claimed that the Deputy Commissioner failed to consider that the ammunition rounds used by him in testing the firearm were not necessary exhibits in their original state, and that he successfully gave evidence of the firearm’s capability during a subsequent trial. For reasons already given, the applicant cannot make out the premise upon which this submission depends, namely, that the impugned decision was based on a finding relating to the testing of the firearm. In any event, the submission specifically stated, in par 55, that, the applicant’s “solicitor states that his client denies that the action of test firing the Tokarov pistol potentially destroyed evidence, being one of the rounds of ammunition that was seized with the pistol”. The applicant’s claim was therefore squarely before the Deputy Commissioner, and there is nothing to suggest that he did not take it into account.
62 For present purposes, I accept that the applicant successfully gave evidence concerning the firearm at a trial in May 1997. I do not accept, however, that this was a matter that the Deputy Commissioner was bound to take into account. The issue raised by the s 26E notice and before the Deputy Commissioner was whether the applicant had shown poor judgment and disregard for best practice in testing the firearm as he did. That he gave evidence about the capability of the firearm does not meet the criticism that the procedures adopted by him were not best practice.
63 Finally, under the relevant consideration ground, there was the matter of the Forensic Services Book. On 9 May 1997, the applicant gave evidence in criminal proceedings that he had test fired the pistol on 15 July 1994. The record of the 4 September 1997 conversation sets out the following exchange between Burnage and the applicant:
Q334 With respect to qualifications, I have a forensic services book in my possession, which talks about fire arms and ballistics procedures manual, in fact I was indicated by Mr pryor that, when I contacted him, that the procedures outlined in this manual were those that he followed with respect to testing the fire arms and the qualifications that he would possess. Have you ever seen this manual before?
A No, I have not.
Q335 Do you have any knowledge of what would be contained within this manual?
A No, I do not.
Q336 Did you follow any procedure with respect to when you tested the fire arm and by that, I mean, did you keep any notes or did you take any photographs?
A No, I did not.
64 The record indicated (at Q340) that the firearm was ultimately forwarded for testing again to an AFP member in Canberra by the name of Pryor. In his 5 January 1998 minute, Burnage stated (at p 41) that the applicant:
states that he did not take any notes nor record by any other means the procedure he followed with respect to the testing of the firearm. He also states that he has no knowledge of the ‘Forensic Services Book’ and in particular the chapter relating to firearms and ballistics procedures.
65 The submission set out (at pp 20-21) the conclusions reached by Burnage, stating:
As a result of his II investigation FA Burnage came to a number of conclusions with regard to [the applicant’s] testing of the firearm himself, rather than following the usual procedure of sending it to the firearms section in Canberra. The investigation report states, ‘[the applicant] claims that his actions were under the express control of the Regional Firearms Officer Federal Agent Eric Riley … he did not take any notes nor record by any other means the procedures he followed with respect to the testing of the firearm. He also states that he has no knowledge of the ‘Forensic Services Book’ and in particular the chapter relating to firearms and ballistics procedures … the actions of [the applicant] on this occasion and in particular the destruction of evidence by utilising the seized ammunition in the pistol for testing purposes is not what would normally be expected of a senior and experienced Federal Agent. His actions on this occasion are found to be totally inexcusable (point 4.5 p.41 Annex C). FA Burnage was also able to establish that [the applicant] had apersonal interest in firearms and other AFP members interviewed proposed that this was his motivation for conducting the testing [sic] firing himself.
The submission concluded with the comment that:
On this matter you may conclude that [the applicant] should reasonably have known that it was the usual procedure for seized firearms to be tested in Canberra and a police statement obtained to prove the test firing and the result. Further, if [the applicant] was not familiar with this investigational procedure he should have consulted with FA Ashton, the operational commander who delegated the task to him, to ascertain the appropriate action to take. You may conclude, on the evidence above, that on this occasion [the applicant] has displayed poor judgement, a failure to conform to best practice and has further failed to exercise initiative in his approach to operational duties.
66 The applicant submitted that the Deputy Commissioner ought to have had regard to the fact that there was no Forensic Services Book in existence at the time the applicant test fired the pistol in July 1994. At the hearing, the applicant adduced evidence from a member of the AFP, who was attached to the firearms section at Regional Headquarters between late 1994 and 1999, that the Forensic Services Book on firearms and ballistics was not published until December 1995. The witness said in evidence that he had never seen any other procedures manual relating to firearms and ballistics, although he conceded in cross-examination that “[t]here were no tests carried out on firearms for court-related matters during the time I was in the firearms section”, i.e., from late 1994 until 1999. He also said that “if anybody had any question about evidentiary matters concerning ballistics, they would go to the sergeant of the section and see what his recommendations were”. In final address, the respondents’ counsel handed up to the Court a copy of a document headed “General Order 9 Exhibits”. The respondents had led no evidence touching the document, and its precise provenance and operation in July 1994 were not established.
67 The June 1998 submission referred to the “usual procedure” of sending firearms to the AFP in Canberra. There is no evidence to controvert the assumption made by the submission that this was the usual practice in July 1994. Further, the evidence that there was no firearms testing at the AFP’s Regional Office from late 1994 is not inconsistent with this assumption (although statements by Riley in a record of conversation with Burnage on 12 November 1997 may be). As already noted, in reiterating what Burnage had said, the submission repeated his statement about the applicant’s ignorance of the Forensic Services Book. The applicant never claimed that he had any knowledge of the book prior to Burnage’s conversation with him in September 1997. His point was rather that this lack of knowledge could have no bearing on his conduct in July 1994, since the book had not been published by that date.
68 In questioning the applicant in September 1997, Burnage apparently referred to the Forensic Services Book as a source for appropriate testing procedure. As Q336 indicates, his focus was on the nature of the actual procedures used by the applicant, rather than on his lack of knowledge of the manual. It may be recalled that Burnage had initiated a discussion of this matter with the comment, “[t]he subsequent testing of the firearm …is of concern and is in complete contradiction of current AFP policy”. Burnage’s questions of the applicant and his subsequent minute do not warrant the conclusion that Burnage necessarily proceeded on the assumption that the applicant ought to have known about the book in July 1994, rather than in September 1997 when the applicant was interviewed. The critical fact was that Burnage regarded the applicant’s procedure as unsatisfactory. The submission also focused on the unsatisfactory nature of the applicant’s procedure and, specifically, his departure from what the author of the submission understood as the then usual procedure of sending fire arms to Canberra for testing. As already noted, there is little evidence before the Court as to what in fact was the usual procedure in July 1994. There was evidence that there was no firearms testing at the AFP’s Regional Office from late 1994 and that it was usual to ask Sergeant Riley questions “about evidentiary matters concerning ballistics”. The applicant has not established, however, that the usual practice at that time was other than as described in the submission. For the reasons already stated, one cannot say precisely what the Deputy Commissioner relied on in making the decision under review. If he took into account the applicant’s procedure and the fact that it was not the usual one, it was open to him to do so. It was also open to him to accord these considerations such weight as he saw fit.
(b) Taking into account irrelevant considerations
69 Prior to 5 August 1996, s 26E(3) provided:
The Commissioner must not make a determination under subsection (2) merely because:
(a) of an act or omission of the member or staff member concerned in respect of which a charge has been or could be laid against the member or staff member under the Australian Federal Police (Discipline) Regulations; or
(b) a court has convicted the member or staff member of a criminal offence within the meaning of those Regulations, or has found the member or staff member guilty of such an offence without recording a conviction.
Subsection 26E(3) was repealed by item 5 of Schedule 1 to the Australian Federal Police Amendment Act 1996 (Act No. 27 of 1996) which came into effect on 5 August 1996.
70 The applicant contended that he was entitled to the benefit of s 26E(3) in June 1998 notwithstanding its repeal in August 1996. In written submissions, he said that this was because:
The repeal of s.26E on 5 August 1996 was a ‘repeal’ within the meaning of s.8 of the Acts Interpretation Act 1901. At the time of the commission of the acts and omissions particularised in ground no. 2 of the application, the applicant was liable to the disciplinary proceedings in respect of those matters, but not to early termination under s.26E. This statutory regime was an element of the terms of his appointment at the time of the relevant events. He had a right or privilege to have the matters resolved under that regime, within the meaning of s.8(c) of the Acts Interpretation Act: Ellis v Minister for Lands (1985) 37 NTR 29.
71 The “acts and omissions particularised in ground no. 2 of the application” were (1) failing to take adequate steps to verify the address for search on 28 - 29 November 1993; (2) the use of handcuffs on a child during the search; and (3) failing to complete properly the property seizure record on or about 22 April 1994. The applicant submitted that these acts and omissions were matters:
in respect of which a charge had been or could have been laid against the applicant under the Australian Federal Police (Discipline) Regulations.
The applicant contended that, by reason of s 26E(3) as it stood prior to 5 August 1996, none of these matters should have been placed before the Deputy Commissioner for his consideration.
72 The acts and omissions to which the applicant referred all occurred before the repeal of s 26E(3). At the time they occurred, the applicant was liable to have disciplinary action taken against him in respect of them, but he was not liable to the premature ending of his appointment under s 26E(2) “merely because” of them.
73 The repeal of s 26E(3) was not accompanied by any transitional provision, although s 8(c) of the Acts Interpretation Act provided:
Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not:
…
(c) affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; …
…
and any such investigation legal proceeding or remedy may be instituted continued or enforced, and any such penalty forfeiture or punishment may be imposed, as if the repealing Act had not been passed.
74 The applicant did not assert that prior to 5 August 1996 his appointment could not have been terminated because of an act or omission that constituted a disciplinary offence. He conceded that, at all relevant times, the Discipline Regulations conferred such a power upon the Commissioner: see reg 22(1)(d)(ii). There was, however, apparently greater protection conferred by the Regulations on a member in connection with action taken under them than in connection with a determination under s 26E(2): see, e.g., reg 21(2). There was also a right of appeal to the Disciplinary Tribunal from a decision by the Commissioner to dismiss a member: see Complaints (Australian Federal Police) Act 1981, s 69. The applicant claimed an accrued right to be dealt with under the Discipline Regulations and not under s 26E(2) in relation to any matter arising prior to 5 August 1996 that was or could have been the subject of a charge under the Regulations. The respondents did not contest that the acts and omissions relied on by the applicant in this context were matters that had been or, in one case, could have been the subject of charges laid under the Regulations.
75 The common law regarding the retroactivity of legislation was stated by Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261 at 267:
The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed.
76 The presumption, as expressed in s 8 of the Acts Interpretation Act, only applies to legislation affecting rights already accrued, not to legislation which bases future action on past events. As the Full Court of the Victorian Supreme Court explained in Robertson v City of Nunawading [1973] VR 819 at 824:
[The] principle is not concerned with the case where the enactment under consideration merely takes account of antecedent facts and circumstances as a basis for what it prescribes for the future, and it does no more than that … .
In response to the applicant’s contention regarding the continued applicability of s 26E(3) to acts or omissions occurring before the repeal of the subsection, it might be said that the repeal affected only procedural matters; or that it merely enabled certain antecedent facts to be taken into account in reaching a decision which operates in future, as opposed to a decision affecting rights already in existence.
77 The applicant relied on Ellis v Minister for Lands (1985) 37 NTR 29, a case concerning a legislative amendment substantially altering the terms of an office-holder’s employment. O’Leary CJ concluded that the rights acquired by the office-holder by virtue of his employment under the former legislation were the sort of rights falling within the scope of a provision very like s 8(c) of the Acts Interpretation Act 1901 (Cth).
78 I doubt whether Ellis is analogous to the present matter. The amendment at issue in that case involved a widening of the conditions in which the office-holder’s employment could be terminated. It is arguable that the repeal of s 23E(3) did not have a similar effect since at all relevant times a member remained liable to have his appointment ended early on account of matters that included acts or omissions in respect of which a charge had been or could have been laid, though not “merely because” of those matters.
79 La Macchia v Minister for Primary Industry (1986) 72 ALR 23 is also instructive. The applicant in that case was the holder of a fishing licence. He was convicted of an offence at a time when the offence could not have resulted in the cancellation of his licence. A subsequent amendment permitted licences to be cancelled for such an offence. The Full Court of this Court upheld the cancellation of the licence under the amendment. French J, with whose reasons Bowen CJ agreed, observed at 33, that:
[I]t is appropriate to talk in terms of retrospectivity only where an amending Act affects rights by changing them with effect prior to its commencement. …
The fact that the power to cancel a licence … is conditioned upon a class of past events, does not mean that the inclusion in that class of events which predated the law, renders its operation retrospective.
Esber v The Commonwealth of Australia (1992) 174 CLR 430 provides an illustration of the contrary situation. In that case, Mason CJ, Deane, Toohey and Gaudron JJ held that an applicant to the Administrative Appeals Tribunal was not affected by amendments to compensation legislation because he had lodged his application for review prior to the date the amending legislation came into force.
80 It is unnecessary to decide whether s 8(c) of the Acts Interpretation Act 1901 operated to preserve the benefit of s 26E(3) as the applicant contended because, even if it did, the applicant could not make out this irrelevant consideration ground. Nor could he make out an alternative error of law ground based on the same submissions.
81 An act or omission that had been or could have been the subject of a charge under the Discipline Regulations was never absolutely excluded by s 26E(3) from consideration under s 26E(2). Subsection 26E(3) simply prevented a determination to end an appointment early from being made under s 26E(2) “merely because” of an act or omission of that description. In so far as the applicant submitted that s 26E(3) operated so as to prevent any such act or omission from being considered under s 26E(2) at all, that submission is misconceived. Such acts or omissions might be considered, although a determination to end an appointment early could not be made merely on account of them. A determination could, however, be made on account of them and other matters.
82 The evidence does not show the Deputy Commissioner’s reasons for making the determination under s 26E(2). The applicant has not established that the Deputy Commissioner made his decision merely because of matters arising before 5 August 1996 in respect of which a charge has been or could be laid under the Discipline Regulations. He may have done so, since there is no reference to any bar of the kind referred to in the former s 26E(3). Equally, he may have made his determination on the basis of various considerations, some but not all of which were within the former s 26E(3). In this latter event, even if the applicant had the benefit of s 26E(3), the Deputy Commissioner could not be said to have made his determination “merely because” of matters within s 26E(3). The Deputy Commissioner could only be said to have made a determination “merely because” of acts or omissions in respect of which charges had been or could be laid under the Discipline Regulations if his determination was based only on matters which fell within s 26E(3). There is nothing before me to justify a conclusion that he did in fact do so.
(c) No evidence
83 Paragraph 5(1)(h) of the AD(JR) Act provides that an order of review may be sought on the ground “that there was no evidence or other material to justify the making of the decision”. Subsection 5(3) relevantly provides that this ground “shall not be taken to be made out unless … the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist”. The “no evidence” ground of review under the AD(JR) Act may not be precisely the same as that at common law: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 357-9 per Mason CJ. Nothing turns on any difference in this case.
84 The applicant submitted that the Deputy Commissioner based his decision on (1) the fact that no charge had been laid in respect of the cannabis; and (2) the fact that the applicant’s ratings for cooperation were well below average. The applicant submitted that neither fact existed.
85 As already noted, although the submission erroneously stated that the applicant had filed no charge with respect to the possession of cannabis, the evidence does not justify the conclusion that the Deputy Commissioner was not alive to the actual position. As we have seen, this appeared in a number of attachments to the submission, namely, in Burnage’s 5 January 1998 minute, the record of the 4 September 1997 conversation, and in the applicant’s solicitors’ letter of 30 March 1998. The evidence does not show that the Deputy Commissioner made any erroneous finding of fact, and it does not otherwise justify the conclusion that he proceeded on an erroneous basis. Moreover, even if he mistook the relevant fact, there is no evidence that he based his decision on it: cf Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 at 220-21.
86 The submission discussed the applicant’s performance history in some detail, and included the following comment (at par 20):
During his Recruit Training Course, rotation through the operational areas of SR and Stage 4 Investigators Course [the applicant] achieved satisfactory results and assessments and his appointment was confirmed on 20 January 1987. On two occasions during this training period [the applicant] received below average ratings, for ‘co-operation’ on his final assessment dated 17 October 1986 and ‘confidence’ on his Stage 4 assessment dated 13 November 1986.
The reports dated 17 October 1986 and 13 November 1986 were tendered in evidence. Part 4 of the October 1986 report, which considered the applicant’s personal qualities, included a sub-part C, “Co-operation”. On a scale, marked out in eight levels, ranging from “Co-operates when asked”, “Co-operates willingly”, “Seeks Opportunities to co-operate”, and “Outstanding in working with others”, the applicant was marked in the second box from the beginning of the scale, in the category “Co-operates when asked”. Part 4 of the November 1986 report included a sub-part E, “Confidence”. On a scale, again marked out in eight levels, but this time ranging from “Lacking”, “Unsure”, “Confident”, and “Over-confident”, the applicant was marked in the third box from the beginning of the scale, in the category “Unsure”.
87 The applicant’s complaint was that there was no category of “below-average cooperation”, and that the submission wrongly conveyed the impression that there was. This complaint is not made out. The expression “below average” was not a quotation from the October 1986 report (or indeed the November 1986 report), as the applicant would have it. It was a general description of the rating given to him. There is no evidence before the Court as to what an “average” or “below average” rating might be, although one might assume that the applicant’s rating on both occasions might reasonably be described as “below average”. In any event, the applicant has not shown that a relevant fact – that he received a below-average rating for cooperation in October 1986 (or for confidence in November 1986) – did not exist. There was, moreover, no evidence to justify the conclusion that the Deputy Commissioner based his decision upon the fact, whether in existence or not.
(d) Unreasonableness
88 The applicant submitted that the reference, in Burnage’s 5 January 1998 minute, to the applicant’s ignorance of the Forensic Services Book was “unreasonable in the administrative law sense”.
89 As already noted, there was nothing in the minute, or in Burnage’s earlier questioning of the applicant, to justify the conclusion that Burnage necessarily proceeded on the assumption that the applicant ought to have known about the book in July 1994, rather than in September 1997. As the respondents pointed out, there was nothing inherently unreasonable in asking the applicant in September 1997 whether he had any knowledge of a manual published almost two years earlier. Even if Burnage had proceeded upon the erroneous assumption that the book had been published by July 1994, the assumption would not necessarily have been critical to his appraisal. His focus was on what he saw as the unsatisfactory nature of the applicant’s procedure in the test-firing in July 1994. The submission also focussed on the inadequacy of the applicant’s procedure and, specifically, on what its author regarded as a departure from the practice usual in July 1994. As already noted, there is no evidence before the Court that establishes that the usual practice of the AFP in July 1994 was other than that which the author of the submission described.
90 Even if Burnage and the author of the submission proceeded on the assumption that the applicant should have been aware of the Forensic Services Book in July 1994, it does not follow that the applicant would succeed on the unreasonableness ground. A perverse finding of fact may sustain a conclusion that a decision was made unreasonably. It may be that it is only an ultimate factual conclusion that can be impugned in this way: see, e.g., ABT v Bond at 356 and Detsongjarus v Minister for Immigration, Local Government and Ethnic Affairs (1990) 21 ALD 139 at 141. In this case, if there was any ultimate factual conclusion, it was that set out in the submission, namely, that the applicant:
should reasonably have known that it was the usual procedure for seized firearms to be tested in Canberra and a police statement obtained to prove the test firing and the result. Further, if [the applicant] was not familiar with this investigational procedure he should have consulted with … the operational commander.
This is unreasonable, so the applicant’s argument would run, because the sole fact upon which it was based – Burnage’s implied finding that the forensic services manual set out the procedures the applicant should have followed – was itself determined unreasonably.
91 There is no evidence in this case of any finding that the Deputy Commissioner might have made. The chain of reasoning that the Court would have to follow – an unreasonable finding by Burnage led to an unreasonable conclusion in the submission which in turn led to an unreasonable finding by the decision-maker – is conceivable, but no more than that. The evidence does not permit the conclusion that the Deputy Commissioner found as a fact that the book set out the usual procedure for July 1994 and that the applicant did not know of the procedure, since he did not know of the book. The Deputy Commissioner might have assessed the applicant’s conduct in test firing the firearm as unsatisfactory, regardless of the usual procedure in July 1994. He might have taken no account of the applicant’s lack of knowledge of the Forensic Services Book in September 1997. He might even have discounted the test-firing altogether, and have based his decision upon other matters. The ground of unreasonableness cannot be made out.
(e) Procedural Fairness
92 The final ground relied on by the applicant was that the rules of natural justice had been breached because adverse material was not put to him. This material was:
(1) An allegation that the applicant “made numerous requests to the … Prosecutors to give his evidence as soon as possible and was eager to get away from the court in the shortest possible time”.
(2) An allegation by the Senior Prosecuting Counsel that the applicant said he was able to give testimony of matters he did not remember.
(3) Various negative comments about the applicant’s work history.
(4) An allegation that the applicant was a firearms enthusiast and had tested the firearm himself for that reason.
93 As part of the IID investigation, Burnage interviewed an officer of the Director of Public Prosecutions. In his 5 January 1998 minute, Burnage stated that the officer:
recalls during the attendance of [the applicant] at the County Court to give evidence that he [the applicant] made numerous requests to the Prosecutors … to be sworn as a witness and give his Evidence in Chief. [The applicant] expressed an eagerness to get away from the court in the shortest possible time.
The fact that this statement was made by the officer to Burnage was reiterated in the submission.
94 As the applicant said, he was never informed of this particular observation. In his 4 September 1997 interview with the applicant, Burnage did not ask him specifically about his eagerness to get his evidence over and done with and to leave court quickly. Burnage did, however, ask the applicant whether he had any comment to make about the matters which were the subject of investigation (as to which, see above).
95 In relation to the allegation that he had been inattentive and “irresponsible and contemptuous of both the prosecution and the trial process”, the applicant referred to a need for “some sort of pre-trial conference” and attributed responsibility for the deficiencies in the prosecution’s presentation of its case to the lack of “input from DPP as to the direction of the case, and as [to] what was required from each witness”. In reply to a question as to how he thought he handled himself in court, the applicant said:
Court – court is always – it’s very challenging going to court and giving evidence, and I’ve always tried to present myself in – as best I could, and answer the questions as – as I’m under oath as a honest man – as I can at the time.
Before the interview ended, the applicant was invited to comment. He said:
Well, I’ll just say that this is [Senior Prosecuting Counsel’s] opinion on my behaviour in the court. I don’t think it’s an accurate opinion of my behaviour and I don’t think she was prepared and you know, with as – as I said before, with the pre-trial conferences and all the witnesses being informed, these things won’t happen.
96 The applicant’s alleged eagerness to discharge his responsibilities as quickly as he could is relevant, if at all, to the allegation that he was “irresponsible and contemptuous” of the court proceedings in which he was involved. This was the gravamen of par (1)(b) of the complaint in Burnage’s 5 January 1998 minute (set out above). In the 4 September 1997 interview, Burnage and the other officers assisting him squarely put this matter to the applicant. The applicant’s attitude towards court proceedings was again raised in the s 26E notice, this time as a matter upon which the Deputy Commissioner might found a decision under s 26E(2). The applicant was given a full opportunity to meet the critical complaint against him, although not the subsidiary matter – his eagerness to get away from court – that might have been considered relevant to it.
97 The second matter relied on by the applicant also related to his conduct in relation to the court proceedings. In his 5 January 1998 minute, Burnage gave a detailed account of an interview with the Senior Prosecuting Counsel who had initiated the complaint against him. In that minute, Burnage reported as follows:
[Counsel] states that [the applicant] indicated to her that he had no memory of seizing the telephone. [Counsel] recalls a time during an adjournment of the trial, she spoke with [the applicant] outside the court.
[Counsel] said: ‘Have you had a thought about it? Can you remember?’
[The applicant] said: ‘Well I can say I got it from O’Brien’
[Counsel] said: ‘Do you actually remember that or are you just saying that?’
[The applicant] said: ‘Well I don’t actually remember it’
[Counsel] said: ‘You do not give any evidence in the court that you don’t remember’
[Counsel] states that [the applicant] was unable to assist with any information pertaining to the discovery of the telephone or its ownership.
I accept, as the applicant submitted, that if it was in fact alleged that the applicant had stated a willingness to give fabricated evidence, then that allegation was never put to him. The allegation was raised neither in the 4 September 1997 interview with Burnage nor in the s 26E notice.
98 I do not accept, however, that Burnage understood that counsel was making any such allegation. The better view is that Burnage set out the conversation as part of the narrative of the events as they were recounted to him by counsel. Burnage understood the conversation as part of counsel’s unsuccessful attempts to clarify with the applicant the identity of the person from whom the telephone was seized. Had Burnage understood the conversation as an allegation by counsel that the applicant had offered to fabricate evidence, then, given its seriousness, that allegation would most certainly have attracted further comment by him. There is no such comment. It seems likely that Burnage was aware that, by the time of this conversation with counsel, the applicant had an independent basis for believing that the telephone had been seized from the accused, notwithstanding that he himself had no recollection of the event.
99 That Burnage interpreted the conversation simply as an unsuccessful attempt on counsel’s part to clarify the situation with the applicant is supported by Burnage’s conclusion that the applicant:
was ill prepared with respect to giving evidence and did not avail himself of the opportunity to refresh his memory by reading his statement prior to attending court.
This was the relevant core complaint – the applicant’s failure to prepare for an upcoming court appearance – and not any supposed offer to give fabricated evidence.
100 As we have seen, the applicant was questioned about his preparation for the court proceeding at the 4 September 1997 interview. Towards the end of the interview, there was the following specific exchange:
Q545 And on this occasion do you believe that there wasn’t adequate preparation, is that the case?
A No, there was no – I don’t believe there was an adequate preparation on behalf of the prosecution.
Q546 By the AFP people, the organiser or by the prosecutor, he – he or – sorry, him or her - -
A Well, I believe that from the prosecution, I mean direct from DPP Office.
Q547 But were you not advised in advance with – suitable warning that this court hearing was to take place. How long – how long before you were required to go to court were you notified of that fact, you’d be required on what time and what date?
A Oh, a couple of days before.
101 The s 26E notice relevantly focussed upon essentially the same matter, referring to the “lack of professionalism shown by [the applicant] during the conduct of court proceedings [which] stemmed primarily from the manner in which [the applicant] responded to questions directed to [him] during the court proceedings by the crown prosecutor”. The applicant was given a further opportunity to answer this allegation, and he did so by his solicitors’ letter of 30 March 1998. The submission did not travel beyond the allegation raised in the s 26E notice. In particular, it made no reference to the terms of the conversation with Senior Prosecuting Counsel, which are now relied upon by the applicant.
102 The applicant also complained that particular adverse aspects of his work history were selectively mentioned in the submission and that “[n]o adequate particulars of these adverse matters had been brought to [his] attention in connection with the making of the s 26E decision”. The s 26E notice informed the applicant that the Deputy Commissioner would give consideration to previous evaluations of his work performance. The notice identified in some detail those aspects of his PMP evaluations for 1995 and 1997 that raised a concern:
that as a senior investigator and a member who has acted on occasions in the position of team leader, you may not have set an appropriate standard as a role model for other team members and that you may have exhibited a poor level of performance due to an apparent lack of ability or industry.
The notice also advised the applicant that the Deputy Commissioner proposed to take into account his earlier PMP evaluations and previous employment history.
103 The negative comments, of which the applicant complains, were all contained within his previous PMP evaluations. The statement in the notice that earlier PMP evaluations would be taken into account comprehended them. Reports on the applicant on completion of his recruitment training course, which included ratings, fell within the scope of his previous employment history. Each PMP evaluation and the training course report bore the applicant’s signature. Some included his responses to an evaluation or report. His solicitors did not seek further particulars of these matters, although they did seek particulars of the alleged paperwork errors also referred to in the s 26E notice. In the circumstances, the applicant can be taken to have been aware of the contents of his PMP evaluations and training course reports. Some adverse matters were reiterated in the submission, but so too were some positive comments. The applicant took up the opportunity to deal with the issues specifically raised in the s 26E notice in his solicitors’ letter of 30 March 1998.
104 In so far as it is relevant, I would not accept that the submission was improperly selective in its account of the applicant’s performance history, bearing in mind that that account included some positive as well as some negative comments. In any event, the applicant’s training course and workplace/PMP evaluations were attachment F to the submission. The Deputy Commissioner would have been able to have regard to the entirety of the relevant reports and evaluations in considering the applicant’s performance history.
105 Finally, the applicant submitted that there was a breach of the rules of natural justice because he was not informed of the allegation, repeated in the submission, that he test fired the firearm himself because he was a gun enthusiast. The submission, at par 57, set out the conclusions reached by Burnage with regard to the applicant’s test firing of the firearm. The paragraph concluded with the following comment:
FA Burnage was also able to establish that [the applicant] had a personal interest in firearms and other AFP members interviewed proposed that this was his motivation for conducting the testing firing himself.
This comment derived from par 4.4 of Burnage’s 5 January 1998 minute, which was even more pointed. The minute stated:
Several AFP members interviewed … state that [the applicant] is a firearms enthusiast and tested the firearm for personal reasons only and was not particularly concerned about following correct procedures.
This minute was, as already noted, an attachment to the submission.
106 The respondents contended that these comments, which go to the applicant’s motivation in test firing the firearm, were not material to the gravamen of the complaint that the applicant failed to abide by best AFP practice. The relevant part of the s 26E notice stated that:
You may have shown poor judgement and a disregard for best practice in work procedures by the manner in which you undertook the task of arranging for the testing of a firearm … . The procedures you adopted for the testing of the firearm were not consistent with AFP best practice. In particular, your decision to personally fire the seized weapon with ammunition which formed part of a court exhibit gives rise to concerns that you may have, either negligently or deliberately, destroyed evidence.
The complaint was directed to the procedures that were followed, and to the destruction of evidence, rather than to any motivation that the applicant may have had. The conclusion invited by the submission reflected similar concerns: see submission, par 58, set out above. It may be that the applicant’s possible motivation played no role in the Deputy Commissioner’s appraisal of the test-firing and its significance. The authorities to which I am about to refer make it plain that this does not conclude the inquiry.
107 The relevant legal principles concerning natural justice (or procedural fairness) are well established. This is not an instance where the common law doctrine is excluded. The applicant was, therefore, entitled to know the case sought to be made against him and to be given an opportunity of replying to it.
108 The real difficulty is to determine what the Deputy Commissioner was required to do to ensure that there was no breach of the rules of procedural fairness. What was required depended upon all the circumstances of the case: see Kioa v West (1985) 159 CLR 550 (“Kioa v West”)at 584-5, 612-613 and McLachlan v Australian Securities and Investment Commission (1999) 85 FCR 286 (“McLachlan”) at 295.
109 Having regard to the relevant circumstances, including the relevant statutory provisions, the nature of the decision to be made and the interests of the applicant and of the AFP, there was no breach of the rules of natural justice in connection with the first three matters relied on by the applicant. The principal requirement was to bring to the applicant’s attention the critical matters alleged against him which the Deputy Commissioner was proposing to take into account in reaching his decision. The purpose was to give the applicant an adequate opportunity to respond: see Kioa v West at 587, 602, 628-9, 634 and McLachlan at 297. In each instance, the substance of the critical matters that the Deputy Commissioner proposed to take into account was brought to the applicant’s attention, and he was given an opportunity to respond to them.
110 There was no need for the Deputy Commissioner to bring to the applicant’s attention the precise details of all the matters which he proposed to take into account. For instance, in relation to the training course reports and PMP evaluations, it was enough that the applicant had been informed that the Deputy Commissioner proposed to take them into account; that the applicant knew the substance of any adverse matters upon which the decision might be based; and that the applicant was given an opportunity to respond to them: see Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103 (“Ozmanian”) at 123 (rev’d on appeal on other issues: (1996) 71 FCR 1); Telstra Corporation Limited v Kendall (1995) 55 FCR 221 at 230; and McVeigh v Willarra Pty Ltd (1984) 6 FCR 587 at 600-1.
111 There was one matter, however, that was not brought to the applicant’s attention at any stage. This was the allegation that he had test fired the firearm because he was a gun enthusiast. This allegation, which related to the applicant’s motivation in acting as he did, was distinct from the allegation that he had not acted in conformity with best practice, an allegation which was drawn to his attention.
112 The allegation that the applicant was a gun enthusiast who put his personal interests and predilections over prudent judgment and best practice in connection with an item that was likely to be an exhibit in future court proceedings was, on any view, highly prejudicial to the applicant. To put it bluntly, a person of this kind might well have been exactly the sort of person that the Deputy Commissioner did not want as a member of the AFP. It was, moreover, the sort of statement that once read was not readily put out of mind.
113 In Kioa v West, Brennan J said at 628-629:
A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise [citations omitted]. The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made. Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed … . Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account.
The allegation that the applicant test fired the pistol himself because he was a gun enthusiast was, in the circumstances, “credible, relevant and significant”.
114 According to Banson’s minute of 26 June 1998, which accompanied the submission, the submission set out exhaustively the matters that the Deputy Commissioner was to consider in making his decision. The allegation was included in the submission. It was treated, at least implicitly, as a matter pertinent to that decision. It may be that the author of the submission saw the applicant’s motivation as relevant to the conclusion that the Deputy Commissioner was invited to make, that in test firing the pistol, the applicant had “shown poor judgement”. In this circumstance, I reject the respondents’ submission that the allegation should be regarded as having no bearing upon the core complaint that the applicant failed to abide by best AFP practice. That submission is defeated by the inclusion of the allegation in the submission.
115 In his 5 January 1998 minute, Burnage treated the allegation as credible, specifically referring to the fact that it had been made by three AFP members. Since it was included without adverse comment in the submission, it is reasonable to assume that the author of the submission also saw it as credible, and was inviting the Deputy Commissioner to consider it on this basis. As I have already indicated, the allegation was reasonably capable of being regarded as significant to the decision that was to be made.
116 There is, as I have said, no evidence before the Court of the Deputy Commissioner’s reasons for decision. In circumstances such as this, however, there is no need to show that prejudicial material personal to the applicant was actually relied on by the Deputy Commissioner, in order to show that there has been a breach of the rules of natural justice because the applicant was not made aware of that material and given an opportunity to respond to it: see Ozmanian at 123; Kioa v West at 587-588, 602-603, 628-629, 634; and Kanda v Government of Malaya [1962] AC 322 at 337-8. It is enough to show that the way was open for the Deputy Commissioner to consider the allegation, and rely upon it to the prejudice of the applicant.
117 Before this allegation was brought before the Deputy Commissioner as part of the material upon which he might reach his decision, the applicant was entitled to be made aware of it and given an opportunity to answer it. One cannot say, with any confidence, that the applicant would have been able to answer it satisfactorily, but he may have done. Further, one cannot say with any confidence that his answer, even if complete, would have led the Deputy Commissioner to a different decision, but it may have done. As Gaudron and Gummow JJ observed in Re Refugee Review Tribunal; Ex parte AALA (2000) 176 ALR 219 at 243 (citing Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147), “[i]t is sufficient that ‘the denial of natural of justice deprived [the prosecutor] of the possibility of a successful outcome”.
118 For these reasons, I am satisfied that the decision made on 30 June 1998 pursuant to s 26E(2) of the AFP Act, to end the applicant’s appointment early, was in breach of the rules of natural justice.
remedy
119 In his further amended application for an order of review, the applicant claimed:
1. An order pursuant to s. 11 of the Administrative Decisions (Judicial Review) Act 1977 granting an extension of time in which to make the application under that Act.
2. An order setting aside or quashing the decision.
3. An order in the nature of mandamus, prohibition or injunction setting aside the decision or preventing the respondent from continuing to act in reliance on the decision.
4. An order declaring the decision invalid.
5. Such consequential orders as this Honourable Court thinks fit.
6. Costs.
For the reasons already given, I would make the first order sought.
120 There is, however, a difficulty with respect to the order or orders to be made on the merits of the application. The difficulty arises from the fact that, but for the interposition of the decision under review, the applicant’s appointment as a member of the AFP would have concluded on 1 July 2000. In this circumstance, I am of the provisional view that an order setting aside or quashing the decision may achieve little. If such an order were made and the matter were remitted for reconsideration, the decision-maker would be called upon to make a decision that could not have any effect: cf Perder Investments Pty Ltd v Elmer (1991) 31 FCR 201 at 204. Since the applicant’s fixed term appointment has ended, mandamus, and orders in the nature of mandamus, are not available. For much the same reason, prohibition, and orders of that kind, and injunctive relief are also inappropriate.
121 This is not to say that an order might not be made to quash the decision ab initio, without the usual order referring the matter back for reconsideration. If this course were pursued, however, it might be seen to trespass into the field of power conferred on the second respondent by s 26E(2) since, given the passage of time, there could no longer be any effective exercise of that power vis a vis the applicant.
122 The applicant has failed to make out all but one ground relied on in his application for an order of review. He has, however, established that there was, in one respect, a breach of the rules of natural justice in reaching the decision. There is his uncontroverted evidence that the decision has adversely affected his reputation and his opportunity for future employment. In these circumstances, the applicant should not, I think, be left without a remedy.
123 In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, the High Court determined that, although mandamus, certiorari, prohibition and injunctive relief were not available, it was appropriate to make a declaration that there had been a failure to observe procedural fairness in the making of adverse recommendations about a person, in order to vindicate a business reputation. This is a case, so it seems tentatively to me, where a declaration, if granted, would serve to vindicate, to some extent at least, the applicant’s reputation: compare also Bradley v Attorney-General [1988] 2 NZLR 454 at 489. I propose that the Court declare that: (1) in making the decision to end the applicant’s appointment earlier than 1 July 2000, the Deputy Commissioner failed to observe the requirements of procedural fairness; and (2) in consequence, the decision was invalid.
124 I emphasise that the views I have expressed on the question of relief are not definitive. Counsel did not address this question in the circumstances that have arisen. Accordingly, before making final orders, I invite counsel to make submissions, in writing if they choose, on the appropriate form of orders to be made, having regard to the conclusions I have reached on the merits of the case. I also invite counsel to make submissions on the question of costs.
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I certify that the preceding one hundred and twenty four (124) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. |
Associate:
Dated: 18 May 2001
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Counsel for the Applicant: |
Mr P Gray |
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Solicitor for the Applicant: |
Isakow Solicitors |
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Counsel for the Respondent: |
Mr W Mosley |
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Solicitor for the Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
27 April 2000 |
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Date of Judgment: |
18 May 2001 |
