FEDERAL COURT OF AUSTRALIA

Mentink v Minister for Justice (No 2) [2017] FCA 681

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s originating application filed on 20 October 2014 is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

REEVES J:

Introduction

1    This proceeding relates to the last decision in a series of decisions made over the past 13 years, approximately, involving Mr Mentink, the applicant, and, either directly, or indirectly, the Australian Federal Police (the AFP). This latest decision, which was made on 30 September 2014, falls into the “indirectly” category. On that date, the Federal Minister for Justice decided to take no further action with respect to Mr Mentink’s allegations raising corruption issues on the part of staff members of the Australian Commission for Law Enforcement Integrity (the ALEI Commission) in connection with their investigation of like allegations Mr Mentink had earlier made to the Integrity Commissioner in relation to certain members of the AFP. In this proceeding, Mr Mentink seeks to set aside this latest decision.

2    There is a long and complicated history to this proceeding. The details of that history are set out below, but it essentially falls into four stages, with some overlaps. The first stage – in 2003 and 2004 – is when the initial incidents occurred which gave rise to Mr Mentink’s concerns about the conduct of certain members of the AFP. The second stage – in 2004 – is when Mr Mentink made a complaint to the Commonwealth Ombudsman about the conduct of the members of the AFP who were involved in the first of those initial incidents. The third stage – from 2008 to 2011 – is when Mr Mentink referred the allegations mentioned above to the Integrity Commissioner raising corruption issues concerning the conduct of those members of the AFP who were involved in both of the initial incidents.

3    The fourth and final stage – since 2012 – concerns Mr Mentink’s allegations mentioned above raising corruption issues with respect to staff members of the ALEI Commission. To compound this complicated history, this fourth stage involves two Ministerial decisions. The first decision was made on 6 September 2012. That decision was revoked in May 2014 and replaced by the decision which is the central focus of this proceeding.

4    It is appropriate to mention at the outset that Mr Mentink has represented himself throughout this proceeding. So far as I am aware, he does not have any formal legal training or qualifications.

The legislative context

5    Before I set out the details of the four stages to the history of this proceeding, it is convenient first to outline the salient features of the legislative context in which it arises, namely, the Law Enforcement Integrity Commissioner Act 2006 (Cth) (the LEIC Act).

6    The majority of the provisions of the LEIC Act took effect from 30 December 2006 (see s 2). Its objects are expressed in s 3 as follows:

(1)    The objects of this Act are:

(a)    to facilitate:

(i)    the detection of corrupt conduct in law enforcement agencies; and

(ii)    the investigation of corruption issues that relate to law enforcement agencies; and

(b)    to enable criminal offences to be prosecuted, and civil penalty proceedings to be brought, following those investigations; and

(c)    to prevent corrupt conduct in law enforcement agencies; and

(d)    to maintain and improve the integrity of staff members of law enforcement agencies.

(2)    To assist in achieving these objects, this Act establishes:

(a)    the office of the Integrity Commissioner; and

(b)    the Australian Commission for Law Enforcement Integrity.

7    As is foreshadowed by s 3(2)(a) above, the office of the Integrity Commissioner is established under Part 3 of the LEIC Act, specifically s 14. The Integrity Commissioner’s functions are then described in s 15 as follows:

(aa)    to detect corrupt conduct in law enforcement agencies;

(a)    to investigate and report on corruption issues;

(b)    to refer corruption issues, in appropriate circumstances, to a law enforcement agency for investigation;

(c)    to manage, oversee or review, in appropriate circumstances, the investigation of corruption issues by law enforcement agencies;

(d)    at the request of the Minister, to conduct public inquiries into:

(i)    corruption issues; or

(ii)    corruption generally in, or the integrity of staff members of, law enforcement agencies;

(da)    to prevent corrupt conduct in law enforcement agencies;

(e)    to collect, correlate, analyse and disseminate information and intelligence in relation to corruption generally in, or the integrity of staff members of, both:

(i)    law enforcement agencies; and

(ii)    other Commonwealth government agencies that have law enforcement functions;

(f)    on the Integrity Commissioner’s own initiative, or on request by the Minister, to make reports and recommendations to the Minister in relation to any matter that concerns the need for or the desirability of legislative or administrative action on issues in relation to corruption generally in, or the integrity of staff members of, law enforcement agencies;

(g)    any other function conferred on the Integrity Commissioner by other provisions of this Act or by another Act.

8    The expression “law enforcement agency/agencies”, which appears throughout s 15 above, is defined in s 5 of the LEIC Act to mean:

(a)    the AFP; or

(b)    the ACC [Australian Crime Commission]; or

(ba)    Customs [the Immigration and Border Protection Department]; or

(bb)    AUSTRAC [Australian Transaction Reports and Analysis Centre]; or

(bc)    the CrimTrac Agency; or

(bd)    the Agriculture Department; or

(c)    the former NCA [National Crime Commission]; or

(d)    any other Commonwealth government agency that:

(i)    has a law enforcement function; and

(ii)    is prescribed by the regulations for the purposes of this paragraph.

It is to be noted that the ALEI Commission, itself, is not included among these agencies.

9    The Integrity Commissioner’s powers are defined in Part 9 of the LEIC Act. They include the power to require people to give information and produce documents (ss 75 to 81 inclusive); to conduct hearings (ss 82 to 104A inclusive); to apply for the issue of search warrants (ss 107 to 138 inclusive); and to exercise certain powers of arrest (s 139).

10    The ALEI Commission (see s 3(2)(b) above) is established under s 195 of the LEIC Act. The sole function of the Commission is to assist the Integrity Commissioner in the performance of his or her functions (see s 196).

11    It can be seen from the provisions set out above that the expressions “corrupt conduct” and “corruption issues” are critical to the functions and powers of the Integrity Commissioner under the LEIC Act. Both of those expressions, and a number of related expressions, are defined in s 5, and following, of the LEIC Act. In contrast, the expressions “corrupt” and “corruption” are not defined in the LEIC Act. The same position applied in the Independent Commission Against Corruption Act 1988 (NSW), which was considered in Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14 (see at [77]). This prompted Gageler J to observe (at [76]):

The word “corruption” appears in the ICAC Act in its title and in its objects clause. The word connotes moral impropriety in, or in relation to, public administration. It has never acquired a more precise meaning in the language of the law or in ordinary speech. Standard dictionary definitions of “corrupt”, used as an adjective, provide a range of meanings, from “dishonest” or “without integrity” to “infected” or “tainted”.

(Footnotes omitted)

12    There is a clear distinction drawn in the definitions in the LEIC Act between the process by which allegations of corrupt conduct against, and corruption issues that involve, the staff of law enforcement agencies are dealt with; and the process which is followed when the same, or similar, allegations or issues involve the staff of the ALEI Commission. In broad terms, the Integrity Commissioner, with the assistance of the ALEI Commission, deals with the former and the Minister deals with the latter, albeit that one of the options available to the Minister is to refer an ACLEI corruption issue involving staff members of the ALEI Commission to the Integrity Commissioner for investigation (see s 156(2)(a)). The exception to this option is where the ACLEI corruption issue relates to the conduct of the Integrity Commissioner, or an Assistant Integrity Commissioner (see s 156(3)). Accordingly, while Mr Mentink’s 2008 referral to the Integrity Commissioner concerning the conduct of members of the AFP fell into the former category, the referral he made to the Minister in 2012, concerning the staff of the ALEI Commission, that is the subject of this proceeding, fell into the latter category. While it is of no consequence to the 2014 decision, I mention for completeness that the exception referred to in s 156(3) above was limited to those two offices by an amendment to the LEIC Act, which came into effect in late 2012. Prior to that time, the exception applied to a member of the staff referred to in s 197, that is, the staff of the ALEI Commission.

13    The distinction mentioned above is reflected in the definitions in ss 5 and following of the LEIC Act. Hence, where the allegations involve a member of the ALEI Commission, the expression “engages in corrupt conduct” is defined in s 6(3) of the LEIC Act as follows:

For the purpose of this Act, a staff member of [the ALEI Commission] engages in corrupt conduct if the staff member, while a staff member of [the ALEI Commission], engages in:

(a)    conduct that involves, or that is engaged in for the purpose of, the staff member abusing his or her office as a staff member of [the ALEI Commission]; or

(b)    conduct that perverts, or that is engaged in for the purpose of perverting, the course of justice; or

(c)    conduct that, having regard to the duties and powers of the staff member as a staff member of [the ALEI Commission], involves, or is engaged in for the purpose of, corruption of any other kind.

Section 6(5) extends the above definition as follows: “For the purposes of this section, conduct is taken to be engaged in for a purpose if it is engaged in for purposes that include that purpose.”

14    There are analogous provisions to s 6(3) above in ss 6(1) and 6(2), which define the expression “engages in corrupt conduct” where the allegations in contention involve a member of a law enforcement agency. There is a similar distinction drawn in ss 7 and 8 which define the expression a “corruption issue” with respect to a law enforcement agency staff member, and the expression “ACLEI corruption issue” with respect to an ALEI Commission staff member, respectively. Specifically, the definition of “ACLEI corruption issue” in s 8 provides:

(1)    For the purposes of this Act, an ACLEI corruption issue is an issue whether a person who is, or has been, a staff member of [the ALEI Commission]:

(a)    has, or may have, engaged in corrupt conduct; or

(b)    is, or may be, engaging in corrupt conduct; or

(c)    will, or may at any time in the future, engage in corrupt conduct.

(2)    To avoid doubt, an allegation, or information, may raise an ACLEI corruption issue even if the identity of the person is unknown, is uncertain or is not disclosed in the allegation or information.

15    The integrity of those persons entrusted with the responsibility to advance the objects of the LEIC Act (see at [6] above) is obviously of paramount importance to the operation of the integrity of the system established by the Act. Hence, the provisions of Part 12 of the LEIC Act. That Part has a number of salient features. They include the establishment of a separate and independent process to deal with allegations of corruption involving the Integrity Commissioner and the staff of the ALEI Commission. As well, the decisions necessary for the conduct of that process are vested in the Minister and therefore engage the Executive at the highest level. Accordingly, Division 1 of Part 12 (ss 153 to 155 inclusive) provides the processes whereby ACLEI corruption issues are referred to the Minister and Division 2 (ss 156 to 158 inclusive) prescribes how the Minister is to deal with the issues so referred. Further, s 153 provides that the Integrity Commissioner, or a staff member of the ALEI Commission, must, upon becoming aware of an ACLEI corruption issue, refer that issue to the Minister. In addition to this provision, any member of the public may make such a referral to the Minister under s 154. Mr Mentink relied on this section in this matter. It provides:

(1)    A person (other than a staff member of [the ALEI Commission]) may refer to the Minister an allegation, or information, that raises an ACLEI corruption issue.

(2)    Without limiting subsection (1):

(a)    the person may refer the allegation or information anonymously; and

(b)    the person may refer the allegation or information either orally or in writing.

(3)    If the person refers the allegation or information orally, the Minister may require the person to put the allegation or information in writing.

(4)    If the person is asked to put the allegation or information in writing, the Minister may refuse to deal with the ACLEI corruption issue raised by the allegation or information until the allegation or the information is put in writing.

(5)    Nothing in this section limits a person’s right to make a complaint to the Ombudsman in relation to action taken by the Integrity Commissioner or a staff member of [the ALEI Commission].

16    Once an ACLEI corruption issue is referred to the Minister under one of the above provisions, s 156 describes how the Minister may deal with that issue. Since that section contains the provisions under which the Minister made the decision at the centre of this proceeding, it is appropriate to set it out in full, as follows:

Application of section

(1)    This section applies if:

(a)    the Integrity Commissioner, or another staff member of [the ALEI Commission], notifies the Minister of an ACLEI corruption issue under section 153; or

(b)    a person refers an allegation, or information, that raises an ACLEI corruption issue to the Minister under section 154; or

(c)    the Minister otherwise becomes aware of an ACLEI corruption issue.

How Minister may deal with ACLEI corruption issue

(2)    The Minister may:

(a)    refer the ACLEI corruption issue to the Integrity Commissioner for investigation under Division 3; or

(b)    authorise a person to conduct a special investigation of the ACLEI corruption issue under Division 4; or

(c)    decide to take no further action in relation to the ACLEI corruption issue.

(3)    The Minister must not refer the ACLEI corruption issue to the Integrity Commissioner for investigation under Division 3 if the ACLEI corruption issue relates to the conduct of:

(a)    the Integrity Commissioner; or

(b)    an Assistant Integrity Commissioner.

(4)    The Minister may, at any time, reconsider how the ACLEI corruption issue should be dealt with.

(5)    If the Minister decides:

(a)    to authorise a person under paragraph (2)(b) to conduct a special investigation of the ACLEI corruption issue under Division 4; or

(b)    to take no further action in relation to the ACLEI corruption issue;

the Minister must notify the Integrity Commissioner of the decision.

Integrity Commissioner to pass on information and documents to special investigator

(6)    The Integrity Commissioner must, as soon as practicable after being notified of an authorisation under paragraph (2)(b), give the person authorised to conduct the special investigation any information or document that:

(a)    relates to the ACLEI corruption issue; and

(b)    is in the possession, or under the control, of the Integrity Commissioner.

Note:    Under subsection (9), the Integrity Commissioner has a continuing obligation to pass on information that the Integrity Commissioner becomes aware of and that relates to the ACLEI corruption issue.

(7)    Subsection (6) has effect subject to section 152 (which deals with section 149 certified information).

(8)    The Integrity Commissioner may give the original or a copy of a document.

(9)    If:

(a)    the Minister notifies the Integrity Commissioner that the Minister has authorised a person under paragraph (2)(b) to conduct a special investigation of an ACLEI corruption issue; and

(b)    the Integrity Commissioner becomes aware of information that is relevant to the issue; and

(c)    the person conducting the investigation does not already have the information;

the Integrity Commissioner must give the information to the person.

(10)    Subsection (9) has effect subject to section 152 (which deals with section 149 certified information).

The four stages to the history

The initial incidents

17    On 27 December 2003, Mr Mentink was deported from Dili, in East Timor, to Darwin. This action gave rise to the first incident. Mr Mentink claims that during his deportation, certain officers of the AFP acted inappropriately by providing information about him to the immigration officials in East Timor. The second incident concerned Mr Mentink’s Australian registered yacht “Larus II”, which remained moored in Dili Harbour during his absence. In July 2004, Mr Mentink claims that his yacht was stolen by a third party. In October 2004, Mr Mentink reported that theft to the AFP. In March 2005, he was advised by the AFP that it did not have jurisdiction to investigate the theft because it had allegedly occurred outside of Australia. This refusal or failure to investigate constitutes the second incident of concern to Mr Mentink. Further details of these incidents and the wider background to them are set out below (at [33]).

Mr Mentink’s complaint to the Commonwealth Ombudsman

18    In June 2004, Mr Mentink lodged a complaint with the Commonwealth Ombudsman about, what he claimed was, the inappropriate behaviour of the officers of the AFP involved in the first incident above. Mr Mentink’s complaint was dismissed by the Ombudsman in late 2004. Pertinently for present purposes, it was Mr Nicholas Sellars, a Senior Investigation Officer with the Commonwealth Ombudsman, who informed Mr Mentink of the Ombudsman’s decision. He did that in a letter dated 10 November 2004 in which he said:

That advice informs you that the Australian Federal Police (AFP) agree they informed officials in East Timor of your departure from Darwin and of certain elements of your criminal record, but that the release of information was, in their assessment, both lawful and reasonable. That is the full extent of the information provided by the AFP to this office, and was sufficient in the circumstances for me to make a decision under the Complaints (Australian Federal Police) Act 1981. Having assessed your complaint, and applying a working knowledge of the National Privacy Principles, I saw no necessity to be critical of the actions of the AFP in the circumstances.

Mr Mentink’s referral to the Integrity Commissioner

19    As is already noted above, the LEIC Act, which established the office of the Integrity Commissioner, came into effect in December 2006. Approximately two years later, in November 2008, Mr Mentink made a referral to the Integrity Commissioner under the LEIC Act alleging corruption on the part of the members of the AFP involved in the two initial incidents mentioned above. In June 2009, the Integrity Commissioner decided to investigate Mr Mentink’s referral. Sometime thereafter, the ALEI Commission directed the investigation of the referral to the Professional Standards Unit (PSU) of the AFP. Approximately 12 months later, in July 2010, the AFP returned the investigation uncompleted to the ALEI Commission, claiming that Mr Mark Walters, the Manager of the PSU, had a potential conflict of interest arising out of the allegations Mr Mentink had made. Then, in September 2011, Mr Burge, the Assistant Director of Investigations at the ALEI Commission, sent a memorandum to the Integrity Commissioner (partly reproduced at [99] below) and recommended that the Commissioner reconsider his decision to investigate the referral and decide instead to take no further action on it. The Commissioner adopted that recommendation in October 2011, relying upon s 42(3)(e) of the LEIC Act: “further investigation of the corruption issue is not warranted having regard to all the circumstances”. Mr Mentink was informed of this decision in December 2011.

Mr Mentink’s referral to the Minister

20    On 12 May 2012, Mr Mentink sent a letter to the Minister in which he raised ACLEI corruption issues involving the staff of the ALEI Commission concerning its investigation of his referral relating to the members of the AFP. In making this May 2012 referral, Mr Mentink partly relied upon information he had obtained about the ALEI Commission’s investigation from a request he had made in December 2011 under the Freedom of Information Act 1982 (Cth) (the FOI Act). He therefore attached a document to his letter to the Minister in which he analysed that information. He referred to this analysis, in the introduction of his letter, where he relevantly stated:

Honourable Minister,

On 8 November 2008 I provided information to Integrity Commissioner Philip Moss which raised a number of AFP corruption issues. In December 2011 the Commissioner reconsidered and decided to cease investigation.

During the period July 2009 until December 2011 I heard absolutely nothing from Mr Moss or [the ALEI Commission]. I did not receive a sole letter purportedly sent by email on 3 August 2010; had I seen it I would have acted and my subsequent correspondence would have been very different.

…

In December 2011 I applied to [the ALEI Commission] for FOI access to discover what had led to the curious reasons set out in the closure advice from [the ALEI Commission].

…

I have attached a document containing an interim analysis of the information disclosed. …

…

Mr Mentink’s entire letter dated 12 May 2012 is set out in a subsequent judgment delivered in this proceeding: [2015] FCA 1094 at [12].

21    Thereafter, Mr Mentink set out the details of the corruption issues he had raised against the members of the AFP. One of those AFP members was Mr Nicholas Sellars who, as is already mentioned above (see at [18]), was employed by the Commonwealth Ombudsman at the time of Mr Mentink’s complaint to that office in 2004. The other was Mr Mark Walters who, as is also mentioned above (see at [19]), was employed in the PSU of the AFP at the time of Mr Mentink’s referral to the Integrity Commissioner in 2008. The parts of Mr Mentink’s letter referring to these two persons stated as follows:

[Mr Nicholas Sellars]

The events giving rise to AFP corruption issues began in 2003. In 2004 I lodged an extensive complaint with the Ombudsman but received no response. The complaint was sent by the Ombudsman to the AFP where it rested with the PRS, seemingly dormant. Aroused by news of the theft of my vessel with possible involvement of the AFP, I contacted the Ombudsman. A Nicholas Sellars provided a written decision soon after on 10 November 2004, dismissing my complaints in the most extraordinary fashion. Until Mr Moss advised in June 2009 that he would investigate some of the AFP matters of 2003, and further complaints about AFP conduct, the “Sellars Decision” survived numerous attempts to disturb it.

…

My early 2010 researches also revealed that Nicholas Sellars was now working in [the ALEI Commission]. This “sensitivity” was noted by [the ALEI Commission], but no action was taken.

The problems of the Sellars Decision of 2004 are such that were the matter to be investigated Mr Sellars would be discredited to the extent that he must resign or be dismissed from [the ALEI Commission]. In a nutshell, the Sellars Decision, in good part and in full spirit, had been accepted for investigation by an organization employing Mr Sellars.

Had something been done about this when the matter returned to [the ALEI Commission] in July 2010, [the ALEI Commission’s] integrity may have survived. [The ALEI Commission’s] executive was well aware of the Sellars problem, yet Mr Sellars became involved in the matter.

To cap all of this off, on 11 November 2011 a file note appeared, written by an [ALEI Commission] staff member who had worked in the Office of the Ombudsman in 2004. Had this note, a declaration, been written by Sellars, it would have exposed him to serious allegations, but [the ALEI Commission] has advised that the note was written not by Sellars, but by a second person formerly with the Ombudsman in 2004. Given the presence of this note on the file, the absence of any declaration or any other exonerating document in respect of Mr Sellars is absolutely astonishing.

Noting S154(5), I advise you that following a meeting with Senator Hogg I have referred my concerns about [the ALEI Commission] to the Commonwealth Ombudsman, who has consistently refused to review the Sellars decision from 2004 until the present time. I believe that the Act would not permit you to decline to take further action because the matter is with the Ombudsman – who is obviously in a difficult position.

[Mr Mark Walters]

In early 2010 I learned by chance that the matter was with the PRS, and discovered that the manager of the PRS, Mark Walters, was a person involved in my complaints against the AFP. In June 2010 the AFP woke up to this fact and requested that the investigation be returned to [the ALEI Commission]. This occurred on 1 July 2010.

22    Mr Mentink then outlined, in general terms, the ACLEI corruption issues he sought to raise. In doing so, he specifically drew a distinction between the corruption issues he had previously raised against the members of the AFP and the ACLEI corruption issues he was then seeking to raise with the Minister. He said:

I raise ACLEI corruption issues with you, hopeful that you will appoint a special person to investigate. I wish to be kept fully informed, and hope that, unlike [the ALEI Commission] investigation, I can be involved in some way.

Please note that the attached document addresses only the way in which [the ALEI Commission] conducted the matter. The final decision involved a consideration basically of two questions: firstly did the allegations of AFP corruption merit ongoing investigation; secondly, are [the ALEI Commission’s] limited resources better deployed in other matters. Essentially my information addresses everything that happened up until officer “C” decided to wind up the matter.

I am presently preparing a document dealing with the final decision: the “reasons” provided by officer “C” to the Commissioner, the reasons given by Commissioner Moss, and the reasons provided to me by Executive Director Hayward. I will send you a copy.

But my information alleging [ALEI Commission] corruption is not a complaint about the final decision. Philip Moss does not accept and address complaints. He addresses information that raises corruption issues, and he is not required to deliver an outcome or complaint resolution to an informant. There may well be circumstances in which difficult decisions must be made – to go on with one matter while dropping another.

It is [the ALEI Commission’s] conduct leading to the decision that raises corruption issues.

(Emphasis in original)

23    Earlier in his letter, Mr Mentink had expressed a concern about the option that was available to the Minister of referring his allegations of ACLEI corruption issues to the Integrity Commissioner, Mr Moss (see at [12] above noting that s 156(3) was amended to that form in December 2012). Mr Mentink equated the inappropriateness of that course to the way in which Mr Moss had referred the corruption issues he had raised against the members of the AFP, to the PSU of the AFP. He said:

One of your options is to refer the present ACLEI corruption issue to Mr Moss. The problem does not involve one person – it pervades all of [the ALEI Commission] and involves Mr Moss himself. This will be clear on examining the attached document. I suggest to you that referral to Mr Moss would be inappropriate.

In precisely the same way, Mr Moss’ referral of my information to the AFP was totally inappropriate. One of the issues I had raised was the complaint handling of the PRS in 2004. It is clear, however, that Mr Moss stipulated [the ALEI Commission’s] oversight and two-monthly reporting. There is no evidence of any oversight or any report, or indeed of the PRS report leading to the 2004 Ombudsman’s decision.

Mr Mentink’s earlier letter to Senator Mason

24    Approximately two months before his referral letter of 12 May 2012, Mr Mentink raised similar allegations in a letter he sent to Senator Hon B Mason on 18 March 2012. The Minister responded to Senator Mason in a letter dated 2 May 2012 in which he addressed Mr Mentink’s allegations in some detail. Mr Mentink was not provided with a copy of this letter until sometime in August 2012. The Minister’s letter stated:

Thank you for your letter dated 27 March 2012, which forwarded the correspondence of Mr Wilf Mentink regarding his complaint of corrupt conduct and inadequate investigative action by law enforcement officers.

Mr Mentink takes issue with a number of alleged actions by three different agencies – the Australian Federal Police (AFP), the Commonwealth Ombudsman, and the Australian Commission for Law Enforcement Integrity [the ALEI Commission].

The Australian Federal Police

In relation to the AFP, Mr Mentink alleges that AFP officers dealt corruptly with him between 2003 and 2009, specifically by providing information of his past convictions to Indonesian police and being complicit in the theft of his yacht from Dili, East Timor.

The AFP investigated the claims made by Mr Mentink and have advised him that all disclosures made to the Indonesian police were lawful and appropriate for the purposes of preventing and investigating Commonwealth offences. The AFP also advised that they do not have the jurisdiction to investigate the theft of Mr Mentink’s vessel from Dili.

The Commonwealth Ombudsman

Mr Mentink made a formal complaint to the Commonwealth Ombudsman regarding his treatment by the AFP in 2004. He alleges that his complaint was improperly dismissed and that, in dismissing it, the Ombudsman only dealt with one aspect of his complaint and neglected other points raised by Mr Mentink.

The Ombudsman advised that it considered issues raised by Mr Mentink and did not identify any evidence of corrupt conduct by any member of the AFP.

Australian Commission for Law Enforcement Integrity

Mr Mentink approached [the ALEI Commission] in November 2008 with his complaint alleging corrupt conduct by members of the AFP. After initially referring the complaint back to AFP’s Professional Standards Unit for investigation in 2009, the Integrity Commissioner reconsidered the way the issue should be handled as it became apparent that some of Mr Mentink’s issues related to officers then working within the Professional Standards Unit. [The ALEI Commission] took on full responsibility for the investigation in June 2010 under s26(1)(a) of the Law Enforcement Integrity Commissioner Act 2006.

Subsequently, in 2011 [the ALEI Commission] decided to take no further action on Mr Mentink’s complaint. I have been informed that in the course of its investigation, [the ALEI Commission] reviewed materials provided by both Mr Mentink and the AFP, and also made further inquiries of its own. In addition, the full investigation was kept under review.

The decision to cease investigation and take no further action was based on a number of factors:

•    the sale and transfer documents provided by the relevant authorities for Mr Mentink’s yacht were in good order, and there was no reason for the AFP to question the information provided from these authorities

•    Mr Mentink’s concerns had already been fully considered and investigated by both the AFP and the Commonwealth Ombudsman, who both found no evidence of inappropriate conduct by members of the AFP

•    [The ALEI Commission’s] own investigations and inquiries did not reveal any evidence of corrupt conduct by any member of the AFP

•    The Commissioner lacked jurisdiction to launch an investigation into the actions of the East Timorese Government or its officials.

I trust that this information will be of use to you.

The 2012 decision

25    On 6 July 2012, the Minister advised Mr Mentink by letter that, pursuant to s 156(2) of the LEIC Act, he had decided to take no further action in relation to his allegations (the 2012 decision). The letter from the Minister relevantly stated as follows:

Dear Mr Mentink,

Thank you for your letter dated 12 May 2012, in which you raise allegations of corrupt conduct by the Australian Commission for Law Enforcement Integrity [the ALEI Commission] and express your hope that I authorise a special investigation into the matter under subsection 156(2) of the Law Enforcement Integrity Commissioner Act 2006 (the LEIC Act).

I note that you raised similar allegations of corruption in your letter to Senator the Hon Brett Mason on 18 March 2012. This letter was forwarded to me as the responsible Minister.

Consistent with my response to Senator Mason on 2 May 2012, [the ALEI Commission’s] decision to cease the investigation into your complaint was based on a number of factors, including the previous investigations by the Australian Federal Police and Commonwealth Ombudsman, as well as jurisdictional issues in relation to international elements.

Based on this information I advise that no further action on this matter will be taken, in accordance with subsection 156(2)(c) of the LEIC Act.

Yours sincerely

Jason Clare

The information to which the Minister referred in the third paragraph above was that contained in his letter to Senator Mason dated 2 May 2012 (see at [24]).

Mr Mentink’s challenge to the 2012 decision

26    On 15 October 2012, Mr Mentink filed an originating application in this Court seeking an extension of time in which to seek judicial review of the 2012 decision. On 12 February 2013, his application was dismissed because it was held to have insufficient prospects of success: Mentink v Minister for Home Affairs [2013] FCA 68. Mr Mentink appealed that judgment to the Full Court. On 21 October 2013, Griffiths J (with whom Edmonds J agreed, Pagone J dissenting) allowed the appeal: Mentink v Minister for Home Affairs [2013] FCAFC 113. In his judgment, Griffiths J identified two errors in the primary judge’s decision as follows:

44    … First, having regard to the nature of the application before the Court and the stage of the proceedings, in my view it was premature to determine the appellant’s claim that the Minister had not taken into account the material which was set out in the appellant’s letter dated 12 May 2012 and its attached “interim analysis” … Neither of the Minister’s letters dated 2 May 2012 and 6 July 2012 made any reference at all to that aspect of the appellant’s complaint which concerned Mr Sellars’ apparent conflict of interest ... Nor is there any indication in any of the internal material obtained by the appellant under the FOI Act and put in evidence by him that that complaint was ever addressed by the [ALEI Commission]. As noted above, that issue figured prominently in the appellant’s complaint to the Minister concerning the alleged mishandling of his complaints by the [ALEI Commission] …

…

47    Secondly, I consider that the primary judge’s erroneous approach is also reflected in R[30], where her Honour said that she was not persuaded that the material apparently obtained by the appellant by way of the FOI “demonstrates” that the Minister did not have regard to the appellant’s material in reaching the relevant decision. In my opinion, the relevant question was not whether that material “demonstrated” that matter. Rather, the correct question was whether the appellant’s argument that the Minister had failed to take into account his material was reasonably arguable …

(Citations omitted)

27    Acting on the extension of time granted to him, on 12 February 2014, Mr Mentink filed an originating application for judicial review of the 2012 decision. The subsequent revocation of that decision (see immediately below) made it unnecessary for the Court to determine the substantive issues raised in that application. Accordingly, Rangiah J dismissed it on 17 July 2014: see Mentink v Minister for Home Affairs [2014] FCA 745 at [2].

The Minister revokes the 2012 decision

28    On 29 May 2014, Mr Coles, the Assistant Secretary of the Criminal Justice Division of the Attorney-General’s Department, wrote to Mr Mentink and advised him that the Minister proposed to revoke the 2012 decision and to make a further decision in its place. Mr Coles explained that the Minister would have regard to the following matters in remaking his decision, as well as any further information from [the ALEI Commission]:

•    Mr Mentink’s letter to Senator Brett Mason, dated 19 March 2012, and its enclosures;

•    Mr Mentink’s letter to the former Minister for Home Affairs and Justice, dated 12 May 2012, and its enclosures;

•    Mr Mentink’s letter to the former Minister for Home Affairs and Justice, dated 16 November 2012;

•    Mr Mentink’s affidavit to the court and its annexures, which were filed on 5 March 2014;

•    Mr Mentink’s submissions to the court, which were filed on 22 May 2014; and

•    documents released to Mr Mentink by the Attorney-General’s Department under the Freedom of Information Act 1982 (Cth) on 3 February 2014.

29    On 25 June 2014, Ms Margaret Close, a colleague of Mr Coles, wrote to Mr Mentink and described the information the Department proposed to obtain from the ALEI Commission and assured Mr Mentink he would be provided an opportunity to respond to that information. Ms Close’s letter stated:

I work with Anthony Coles.

I am writing to provide you with further information around the process for the Minister to make a new decision in relation to this matter.

As advised in Mr Coles’ letter to you dated 29 May 2014, the Department has sought further information on this matter from [the ALEI Commission], which the Minister may wish to take into consideration when making his decision. The Department will provide you with an opportunity to respond to this information once we receive it, to ensure you are afforded procedural fairness.

To ensure it can respond to all of the allegations of [the ALEI Commission] corruption you have raised, [the ALEI Commission] has requested access to:

•    your affidavit to the court and its annexures, which were filed on 5 March 2014, and

•    your submissions to the court, which were filed on 22 May 2014.

We will provide these documents to [the ALEI Commission] to ensure that it is provided with the same level of procedural fairness as will be afforded to you.

We understand that [the ALEI Commission] has put a number of safeguards in place to ensure that access to these documents will be limited to those officers within [the ALEI Commission] who were not involved in [the ALEI Commission’s] previous consideration of your matter and who do not work for the officer named in your complaint.

Mr Coles will be in touch again in due course to provide you with [the ALEI Commission’s] submissions and a chance to respond to those submissions.

The Skehill Report

30    At some time prior to 25 June 2014, Mr Stephen Skehill was engaged to undertake an independent review with respect to Mr Mentink’s allegations. According to his report dated 25 June 2014, Mr Skehill was “engaged by the Commonwealth of Australia, represented by the Australian Commission for Law Enforcement Integrity (ACLEI)”. His report also states his understanding that it:

… will be provided by [the ALEI Commission] to the Commonwealth Attorney-General’s Department and may be taken into account by the Commonwealth Minister for Justice in deciding whether or not to authorise a special investigation under the Law Enforcement Integrity Commissioner Act 2006 (the LEIC Act) into various allegations made by Mr Mentink of corrupt conduct within [the ALEI Commission]. I further understand that Mr Mentink will be provided with an opportunity to respond to my report if regard is to be had to it by the Attorney-General’s Department and/or the Minister for Justice.

31    It is unclear precisely when, in the sequence of events outlined above, Mr Skehill was engaged. However, I infer it was some time after the Full Court decision in late 2013 and before the report was finalised on 25 June 2014. It is also unclear what it was that prompted the ALEI Commission to engage Mr Skehill. Nonetheless, from the timing and contents of the report, I infer it was, at least in part, in response to the Full Court decision mentioned above.

32    Because, as will appear below, it was one of the more important documents provided to the Minister for the purpose of making his decision, it is necessary to set out the contents of Mr Skehill’s report in some detail. First, Mr Skehill outlined the details of his engagement as set out above. Next, he set out the relevant details of his personal background, experience and qualifications concluding with the statement:

•    In light of the above, I am of the view that there is no actual or reasonably perceived conflict of interest that would inhibit me in any way in conducting the independent review sought by [the ALEI Commission].

33    Then Mr Skehill set out in some detail the background events which led to his review being requested. Since I have only set out brief details of that background above, it is appropriate to set out that section of his report in full as follows:

The following is a brief description of the events leading to the request that I undertake the present review. It does not purport to be a complete or detailed chronology of what is a very complicated factual situation. It is included only for the purpose of establishing the context for the review.

Mr Mentink was convicted of two offences involving children in 1993 and sentenced to six years imprisonment. He was released on parole in 1996.

He subsequently lived on board a sailing vessel he owned, the Larus II, on which he visited Indonesia and East Timor on a number of occasions in 2001 and 2002.

In 2003 he sailed from Darwin to East Timor where he landed and made application for a visa. In dealing with East Timorese officials in connection with that application, he apparently stated that he had no criminal record or refused to acknowledge that he had a criminal record. East Timor authorities were aware of his prior conviction, and he was denied a visa and required to depart East Timor. Before doing so, he made an application for review of the decision to refuse his visa application.

Some months later he again sailed to Dili, for the stated purpose of ascertaining the status of his application for review. He was arrested and held in detention for various periods. A series of court proceedings ensued. Eventually he was deported by air to Australia, which meant that the Larus II remained in Dili.

The Larus II was registered in Mr Mentink’s name as an Australian ship by the Australian Maritime Safety Authority (AMSA). That registration was subsequently closed following representations to AMSA from a Mr Lee Thackray of the United Kingdom that he had legally purchased the vessel. Mr Mentink denies that such a sale occurred and claims that the Larus II was stolen from him.

In 2004 Mr Mentink complained to the Commonwealth Ombudsman about the role that he alleged AFP officers had played in the above events. [He separately has pursued against AMSA what he alleges was the wrongful removal of his registration from the Australian Register of Ships.]

Mr Sellars, then a member of the staff of the Commonwealth Ombudsman, subsequently concluded that AFP officers had not acted inappropriately in their dealings with Mr Mentink and the East Timor authorities and advised him that the Commonwealth Ombudsman would be taking no further action in response to Mr Mentink’s complaint.

Mr Mentink was not satisfied by this outcome and continued to contest the actions of the AFP through various means.

Eventually, he conveyed allegations of corruption by AFP officers to [the ALEI Commission] in 2008 following its creation.

The Integrity Commissioner decided that various of the alleged corruption matters raised by Mr Mentink warranted investigation and directed that this be undertaken by the relevant unit of the AFP (the PRS) subject to requirements for periodic reporting to [the ALEI Commission].

At a later date responsibility for the investigation was taken back from the AFP by the Integrity Commissioner when it became that Mr Mentink’s allegations included some against an officer who was by then employed in the PRS. Under the applicable legislation, the PRS cannot investigate allegations against a PRS staff member.

Subsequently, the Integrity Commissioner decided that AFP officers had not acted inappropriately in their dealings with Mr Mentink and the East Timor authorities and that [the ALEI Commission] would take no further action in response to Mr Mentink’s allegations.

Mr Mentink was not satisfied with this outcome and continued to raise his concerns through various means. Included amongst these were requests under the Freedom of Information Act 1982 (FOI), as a result of which he became aware that Mr Sellars was no longer an officer of the Commonwealth Ombudsman but was employed within [the ALEI Commission] and had had some involvement with the [ALEI Commission] investigation.

Mr Mentink complained to both the (former) Minister for Justice and the Commonwealth Ombudsman about Mr Sellars’ involvement and alleged that there had been corruption within [the ALEI Commission].

A delegate of the Commonwealth Ombudsman concluded that Mr Sellars was not inappropriately involved in the [ALEI Commission] investigation and that no further investigation by the Ombudsman was warranted.

The then Minister for Justice, the Hon Jason Clare MP, decided that he would not authorise a special investigation under the LEIC Act in relation to Mr Mentink’s allegations of corruption in the [ALEI Commission] investigation.

Mr Mentink then sought judicial review of Minister Clare’s decision. Before those proceedings were finalised, the current Minister for Justice, the Hon Michael Keenan MP, decided to revoke Minister Clare’s decision and he now proposes to remake that decision after further consideration.

In advising Mr Mentink of this, the Attorney-General’s Department advised Mr Mentink that Minister Keenan proposed, in remaking the decision, to have regard to certain specified documents and that it would seek further information from [the ALEI Commission] which the Minister may wish to also take into consideration (after Mr Mentink has been provided with an opportunity to respond to that further information).

Among the further information which the integrity Commissioner proposes to provide to the Department for possible consideration by the Minister for Justice is the report of the independent review to be conducted by myself.

34    In the next section of his report, Mr Skehill identified the question he was required to consider as follows:

… the question for consideration in this review is whether or not there is sufficient evidence indicating corruption in the [ALEI Commission] investigation to warrant the authorisation by the Minister for Justice of a special investigation under the LEIC Act.

Mr Skehill then set out his understanding of the “legal position relevant to this question, as it is upon the basis of that understanding that I have prepared this report.” Significantly, he began that outline by stating:

The simple making by a person of an allegation of corruption within [the ALEI Commission] does not necessarily impose on the Minister any obligation to authorise a special investigation. This is because section 156 of the LEIC Act only operates where the information thereby provided by the person “raises” an “ACLEI corruption issue” as defined in the Act. …

Then after referring to the provisions of ss 156(2) and 6(2) of the ACLEI Act, he said:

Accordingly, the questions I consider in this independent review are:

•    whether there is any evidence to suggest that Mr Sellars, or any other [ALEI Commission] officer, engaged in corrupt conduct in the course of the [ALEI Commission] investigation of the issues raised by Mr Mentink; and

•    whether there is anything to suggest that the authorisation of a special investigation by the Minister might be reasonably required to ascertain whether Mr Sellars, or any other [ALEI Commission] officer, engaged in corrupt conduct in the course of the [ALEI Commission] investigation.

35    Thereafter Mr Skehill set out his understanding as to the scope of his review in the following terms:

I stress that this review is not intended to ascertain whether there is any other valid criticism that might be made of the [ALEI Commission] investigation. Mr Mentink has raised many other complaints about the [ALEI Commission] investigation and related action by [the ALEI Commission]. Some of these complaints may fall for determination by others – for example, in the Australian Information Commissioner’s review of the decisions made on his requests under FOI. He has also raised complaints about other issues that do not involve action by [the ALEI Commission], including the 2004 decision of Mr Sellars while employed at the office of the Commonwealth Ombudsman and the decision of former Minister Clare, and these too are outside the scope of this review.

He concluded with the statement:

My sole concern is whether or not Mr Mentink has or is likely to have any valid issue of corrupt conduct within [the ALEI Commission].

36    At the outset of the “Analysis” section of his report, Mr Skehill noted what he considered to be a lack of clarity in Mr Mentink’s allegations. He did so in the following terms:

While Mr Mentink has alleged corrupt conduct by [the ALEI Commission], it is not immediately clear precisely what conduct he claims has been corrupt.

He certainly complains about Mr Sellars who, he says, “may have negatively influenced” the course and outcome of the [ALEI Commission] investigation; he refers to “the Sellars conflict of interest”; and he says that “Sellars’ activity and involvement served to prevent his 2004 decision coming under scrutiny as a result of outside pressures”.

But he also speaks more generally about “[the ALEI Commission’s] conduct”.

Certainly he disagrees with the Integrity Commissioner’s decision to terminate the [ALEI Commission] investigation and he is critical of the scope and depth of the investigation that was undertaken.

However it is not clear whether, apart from any negative influence Mr Sellars may have brought to bear on them, he regards these matters as involving corrupt conduct.

Accordingly, while I have looked in particular at the role played by Mr Sellars, I have not done this to the exclusion of other issues or possibilities. Instead, I have looked to see if there is any evidence of any other conduct by any other person in the conduct of the [ALEI Commission] investigation of Mr Mentink’s allegations against the AFP that might constitute or be indicative of corrupt conduct within [the ALEI Commission].

37    Next, Mr Skehill provided a detailed description of the structure of the ALEI Commission and where Mr Sellars and other persons worked within that structure. He said:

At relevant times [the ALEI Commission] was structured into two Branches – the Operations Branch, and the Strategic & Secretariat Branch (which is now called the Secretariat Branch, but is hereinafter referred to by its title as it was at relevant times). The Operations Branch consists of staff who actively participate in investigations of corruption. The Strategic & Secretariat Branch provides support to the Operations Branch, from legal, administrative, corporate and strategic perspectives, and its officers are not expected to actively participate in investigations of corruption. Within this division of responsibility, the Strategic and Secretariat Branch has responsibility for handling [the ALEI Commission’s] input into the preparation of Ministerial correspondence and for managing [the ALEI Commission’s] interrelationship with the Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity (PJC).

Mr Sellars was and is an officer of the Strategic & Secretariat Branch, not of the Operations Branch.

There is another [ALEI Commission] officer (who I refer to hereinafter as “the second officer”) who is also a former employee of the Commonwealth Ombudsman and who was in that former position at the time that Mr Sellars dealt with Mr Mentink’s complaint to the Commonwealth Ombudsman in 2004. The second officer occupied and still occupies a position that is in the Operations Branch but in practice reports to the head of the Strategic & Secretariat Branch in respect of much of his work duties.

38    Mr Skehill then referred to a file note dated 11 November 2011 on the ALEI Commission file where a “second officer” had disclosed that he was employed in the office of the Commonwealth Ombudsman between 1997 and early 2010, but claimed that he had no recollection of having any dealings with Mr Mentink and, accordingly, “I have no basis to treat him, or to propose that [the ALEI Commission] treats him, more or less favourably than would be warranted by the material on the [ALEI Commission] file.” After noting that, “[w]hen Mr Mentink later became aware of this, he suggested that the absence of a similar written declaration of prior involvement by Mr Sellars was a significant factor suggestive of corrupt behaviour by Mr Sellars”, Mr Skehill observed:

It is thus important to ascertain exactly what involvement Mr Sellars and the second officer each had in or with the investigation of Mr Mentink’s allegations against the AFP.

In accordance with the organisational structure described above, it would be expected that Mr Sellars would have no involvement with the investigation of an allegation of corruption in the AFP such as that made by Mr Mentink, unless or until there was some Ministerial correspondence or PJC involvement requiring a response by [the ALEI Commission]. Conversely, the second officer might or might not have some involvement in the conduct of the investigation because he effectively performs duties within both Branches.

Consistent with this expectation, the [ALEI Commission] files indicate that Mr Sellars played no role in, and had nothing to do with, the conduct of the [ALEI Commission] investigation until a related PJC inquiry was received in July 2010.

39    After analysing the involvement of these two people in the investigation, Mr Skehill concluded that Mr Sellars’ only role was that of a “letterbox” and that the second officer had no relevant role. He said:

The [ALEI Commission] files thus indicate that Mr Sellars’ only role was that of a “letterbox” and that he played no substantive part in, and did not influence, the outcome of the [ALEI Commission] investigation and the Integrity Commissioner’s decision.

So far as the second officer is concerned, the files indicate that he had no involvement at all in the [ALEI Commission] investigation prior to the decision by the Integrity Commissioner on 17 October 2011. His involvement after that date appears to have been confined to preparing a draft letter for the Executive Director of the Operations Branch to advise Mr Mentink of the Integrity Commissioner’s decision, and subsequently to provide advice to the Executive Director of the Operations Branch in relation to further correspondence received from Mr Mentink after he had been notified of the Integrity Commissioner’s decision.

The [ALEI Commission] files thus indicate that the second officer did not play any part in the [ALEI Commission] investigation itself, and did not in any way influence the Commissioner’s decision to terminate the investigation. He was involved in consideration of subsequent correspondence from Mr Mentink and may have been influential in the terminated investigation not being reopened, but I can detect no basis on which it might be suggested that his conduct in these respects was tainted by corruption.

40    Mr Skehill then turned to consider the following issue:

As noted above, the second officer made a note for file detailing his prior involvement in Mr Mentink’s matters, while Mr Sellars did not. It is thus appropriate to consider whether any significance should be attributed to this, as suggested by Mr Mentink.

41    After observing that there was no “legal requirement” to create such a document, Mr Skehill posited that:

The far more fundamental question is whether or not an officer with some prior involvement in a matter should have any later involvement and, if so, the nature of that later involvement.

42    His answer to that question was expressed in the following terms:

Clearly, later involvement that was directed at preventing scrutiny and review of an officer’s previous involvement could constitute corruption. Equally, later involvement that was limited to explaining the factual background of the prior involvement so as to facilitate such scrutiny and review would be quite proper.

In this case, Mr Sellars’ later involvement as disclosed by the [ALEI Commission] files was far more remote than even that level or kind of proper involvement. The [ALEI Commission] files indicate that he simply acted as a “letterbox” to convey to the PJC Secretariat and to the AFP benign factual information generated by others as to the status of the investigation. There is no evidence that he was aware of any substantive detail of the investigation other than that it was ongoing. Moreover, the speed with which he performed his functions of relevance suggests that he had insufficient time to become aware of substantive detail before he performed those functions. The files are entirely consistent with him simply performed a “letterbox” function and exerting no substantive influence. Moreover, while he did not create a discursive note of his previous involvement such as that created by the second officer, he did record on the official file that he wished not to be involved in any decision in relation to the matter.

In contrast, the second officer was directed to undertake what was clearly a substantive role in relation to the investigation – to draft the letter that converted the short terms of the Integrity Commissioner’s decision into a more expansive advice to Mr Mentink, and later to advise the Executive Director of the Operations Branch as to whether or not Mr Mentink’s subsequent correspondence warranted recommending that the Integrity Commissioner reconsider his decision and reopen the investigation.

Viewed in this factual context, it is in my view quite understandable why the second officer might have felt it inappropriate for him to create the file note that he did and why Mr Sellars did not consider it necessary. I do not believe Mr Sellars can reasonably be claimed to have acted corruptly by not creating a note for file of his previous involvement.

43    Mr Skehill then proceeded to consider and exclude any relevant involvement by Mr Sellars in preparing the response to Senator Mason’s letter in April/May 2012. Thereafter, he turned to consider whether Mr Sellars had any involvement in preparing the ALEI Commission’s response to the Ombudsman’s investigation of Mr Mentink’s complaint between May and August 2012. On that issue, Mr Skehill concluded:

The Executive Director of the Operations Branch [of the ALEI Commission] was integrally involved in the investigation of Mr Mentink’s allegations of corruption in the AFP. The case officers reported to him and were subject to his direction, and the recommendation to the Integrity Commissioner on which the Commissioner based his decision was signed off by him. He was thus in a key position to know whether or not Mr Sellars exercised any influence in the conduct of the investigation. He clearly advised the Commonwealth Ombudsman that Mr Sellars exercised no such influence. There is nothing in the [ALEI Commission] files to suggest that this was incorrect.

44    In the “Conclusion” section of his report, Mr Skehill recorded that “there is no available evidence that Mr Sellars or any other [ALEI Commission] officer engaged in corrupt conduct in relation to the investigation of Mr Mentink’s allegations of corruption in the AFP”. He went on to elaborate this conclusion in the following terms:

Not only is the absence of such evidence on the [ALEI Commission] file consistent with Mr Sellars not exerting any influence over that investigation, there is some evidence on the file that positively indicates he did not exert such influence:

•    his email of 5 November 2010 (i.e., before Mr Mentink raised concerns about Mr Sellars’ involvement) that he preferred not to be involved in relevant decision-making; and

•    after Mr Mentink raised those concerns:

•    the April 2012 [ALEI Commission] advice to the Attorney-General’s Department that Mr Sellars had not had any role in such decision-making; and

•    the [ALEI Commission] response to the May 2012 request for information from the Commonwealth Ombudsman, to the same effect.

Thus, on the basis of the investigation by the Commonwealth Ombudsman and the content of this independent review, I consider that the Minister for Justice would be justified in now deciding not to authorise a special investigation under the LEIC Act because there is no evidence available to support Mr Mentink’s allegations of corruption within the [ALEI Commission].

I further consider that there is no available evidence that suggests any reasonable likelihood that a special investigation, utilising the coercive powers available to it under the LEIC Act, would identify any additional evidence indicative of corrupt conduct on the part of Mr Sellars or any other [ALEI Commission] officer in relation to the investigation of Mr Mentink’s allegations of corruption in the AFP.

45    In the remainder of the “Conclusion” section of his report, Mr Skehill noted that both his review and the Ombudsman’s investigation had been “limited to examination of evidence contained on the [ALEI Commission files and that neither has extended to interviewing Mr Sellars or other persons involved in the conduct of the [ALEI Commission] investigation”. He then acknowledged that this gave rise to the “conceptual possibility” that “events occurred which were not recorded on, or intimated at in, the [ALEI Commission] files and that these might constitute corrupt conduct by an [ALEI Commission] officer”. Having done so, Mr Skehill turned to consider whether he should have sought to obtain “additional oral evidence” in the course of his review. On that question, he identified three alternative courses of action. The first was to seek to conduct voluntary interviews with relevant present or former ALEI Commission officers, the second was to request those persons to provide him with statutory declarations in response to his specific questions and the third, which was external to his review, was for the Minister to appoint a special investigator under the LEIC Act with all the powers vested in such an investigator. Ultimately, he concluded that he should not pursue either of the first two alternatives because “my doing so could inhibit the effectiveness of the third course of action (e.g., by alerting relevant officers to particular lines of inquiry) if the Minister subsequently decided to pursue it”. Nonetheless, Mr Skehill concluded his report by stating “however, I stress that it remains my view that the Minister would be fully justified in declining to authorise a special investigation on the strength of the material now available to him”.

The 2014 decision

46    As is already mentioned above, the Minister’s second decision – sometimes referred to in the materials as “the replacement decision” – was made on 30 September 2014 (the 2014 decision). As was foreshadowed in Mr Coles’ letter (see at [28] above), in the months prior to that decision, officers of the Department of the Attorney-General corresponded with Mr Mentink on a number of occasions. Among other things, they sought and received his submissions about the Skehill Report, a copy of which they provided to him, and identified the materials they intended to provide to the Minister so that he could make his decision.

47    On 15 August 2014, the Department provided a Minute to the Minister’s office which identified the key issues that needed to be considered by the Minister in making his decision. The Minute did so by reference to a large quantity of attachments as follows:

(a)    Attachment Al: Letter dated 29 May 2014, advising Mr Mentink of the decision to make a fresh decision.

(b)    Attachment A2: Mr Mentink’s letter to Senator Mason, dated 19 March 2012, and its enclosures.

(c)    Attachment A3: Mr Mentink’s letter to the former Minister for Home Affairs and Justice, dated 12 May 2012, and its enclosures.

(d)    Attachment A4: Mr Mentink’s letter to the former Minister for Home Affairs and Justice, dated 16 November 2012.

(e)    Attachment A5: Mr Mentink’s affidavit and its annexures, filed in court on 5 March 2014.

(f)    Attachment A6: Mr Mentink’s submissions, filed in court on 22 May 2014.

(g)    Attachment A7: Documents released to Mr Mentink by the Department under the FOI Act on 3 February 2014.

(h)    Attachment B: Mr Mentink’s further submissions, dated 14 June 2014.

(i)    Attachment C: The ALEI Commission’s further submissions, dated 25 June 2014.

(j)    Attachment D: Mr Mentink’s response to the ALEI Commission’s further submissions, dated 11 July 2014.

(k)    Attachment E: Draft letters to Mr Mentink informing him of the Minister’s decision.

The description of Attachment C (in (i) above) is misleading. It is common ground that that document was Mr Skehill’s report. It is accurately described in the Minister’s letter to Mr Mentink dated 30 September 2014 (see [51] below).

48    The Ministerial Minute explained that Mr Mentink’s allegations of ACLEI corruption issues fell into two categories: that the ALEI Commission had failed to properly investigate his allegations of AFP corruption; and that Mr Sellars’ involvement in the investigation presented a conflict of interest that raised an ACLEI corruption issue. On those two matters, the Minute recorded that:

1) Failure by [the ALEI Commission] to adequately investigate Mr Mentink’s allegations of AFP corruption

Mr Mentink alleges that there is no evidence, deliberation or sign of investigation by [the ALEI Commission] of the alleged AFP corruption issue he referred to them, and that this points to corruption within [the ALEI Commission].

…

[The Department] notes that [the ALEI Commission’s] assessment is based on an examination of all of [the ALEI Commission’s] records in relation to this matter, while Mr Mentink’s is based on an examination of redacted documents released to him under the Freedom of Information Act 1982, which necessarily involves some degree of speculation. Further, we note that [the ALEI Commission] is a very small agency and that the Integrity Commissioner prioritises [the ALEI Commission’s] resources to enable it to focus on the most significant and systematic law enforcement corruption issues. The LEIC Act also gives [the ALEI Commission’s] and the Integrity Commissioner discretion as to the manner in which an investigation may be carried out.

Mr Mentink has suggested that you seek to obtain access to transcripts held by [the ALEI Commission] that he claims disclose the extent of [the ALEI Commission’s] investigation of his referral (see, for example, Attachment B). [The Department] has not sought access to these documents, as we consider that there is adequate information available in Attachments A – D to allow you to make an informed decision about whether to authorise a special investigation or take no further action. Should you wish to authorise a special investigation, these documents may be relevant to that more detailed process.

2) Sellars’ conflict of interest

While employed at the Commonwealth Ombudsman in 2004, Mr Nick Sellars handled (and dismissed) Mr Mentink’s complaint to the Ombudsman about alleged inappropriate behaviour by the AFP. Mr Sellars was subsequently employed by [the ALEI Commission]. Mr Mentink alleges that Mr Sellars was ‘acutely motivated to ensure that the AFP corruption issues’ were not investigated by [the ALEI Commission] to avoid potential criticism for his 2004 decision, and that [the ALEI Commission] was similarly motivated not to investigate to avoid damage to Mr Sellars’, and [the ALEI Commission’s], professional reputation. He cites several emails involving Mr Sellars and Mr Sellars’ failure to formally declare this potential conflict of interest as evidence of corruption (particularly as another former staff member of the Ombudsman did make such a declaration). He also suggests that [the ALEI Commission’s] failure to properly investigate his allegations and its failure to adequately address the potential conflict of interest demonstrates [the ALEI Commission’s] complicity.

In Attachment C, [the ALEI Commission] provides a comprehensive examination of Mr Sellars’ involvement in this matter at [the ALEI Commission]. It concludes that Mr Sellars’ role was limited to a ‘letterbox’ or liaison function, consistent with his role within [the ALEI Commission], and that there is no evidence that Mr Sellars actively engaged in or sought to influence [the ALEI Commission’s] investigation of this matter. Further, [the ALEI Commission] notes that there is no legal requirement to formally declare a conflict of interest, that Mr Sellars’ role can be distinguished from the officer who did prepare such a statement and that Mr Sellars did state his intention not to be involved in matter.

In response to [the ALEI Commission’s] submissions, Mr Mentink alleges that Mr Sellars could have influenced the investigation outside the written record (Attachment D). While this cannot be ruled out as a possibility, both the Ombudsman (2012) and Mr Skehill have investigated Mr Sellars’ involvement in this matter and found no evidence of corruption. It is unclear whether a special investigator could uncover anything not already identified by these previous investigations (notwithstanding Mr Mentink’s concerns about their thoroughness).

49    The following alternative recommendations appeared at the end of the Minute:

Recommendation: I recommend that you:

a)    consider the information at Attachments A –D, and either:

i)    authorise a person to conduct a special investigation of the alleged ACLEI corruption issues referred to you by Mr Mentink, or

Agreed / Not agreed / Discuss

ii)    decide to take no further action in relation to this matter, and

Agreed / Not agreed / Discuss

b)    sign the appropriate letter at Attachment E informing Mr Mentink of your decision.

Signed / Not Signed / Discuss

50    On 4 September 2014, the Minister completed the recommendation section described above in the following manner:

Recommendation a)i): Not agreed

Recommendation a)ii): Agreed

Recommendation b): Not signed. “Want letter from official”.

51    On 30 September 2014, a letter was sent to Mr Mentink, signed by the Minister, informing him of the 2014 decision, as follows:

Dear Mr Mentink

I am writing in relation to the various allegations of corrupt conduct by the Australian Commission for Law Enforcement Integrity ([the ALEI Commission]) that you have raised and your desire for me to authorise a person to conduct a special investigation into these allegations under the Law Enforcement Integrity Commissioner Act 2006 (LEIC Act).

On 29 May 2014, the Attorney-General’s Department wrote to you on my behalf to inform you of my decision to revoke the former Minister for Home Affairs and Justice’s decision of 6 July 2012, and my intention to make a fresh decision in this matter.

I have now considered the information available to me and do not consider that this information demonstrates corrupt conduct on the part of [the ALEI Commission] or any [ALEI Commission] staff member. I have therefore decided to take no further action in relation to this matter, in accordance with paragraph 156(2)(c) of the LEIC Act.

In making this decision, I have had regard to the following information:

•    your letter to Senator Brett Mason, dated 19 March 2012, and its enclosures

•    your letter to the former Minister for Home Affairs and Justice, dated 12 May 2012, and its enclosures

•    your letter to the former Minister for Home Affairs and Justice, dated 16 November 2012

•    your affidavit to the court and its annexures, which were filed on 5 March 2014

•    your submissions to the court, which were filed on 22 May 2014

•    documents released to you by the Attorney-General’s Department under the Freedom of Information Act 1982 on 3 February 2014

•    your letter to me, dated 14 June 2014, and its enclosure

•    the report of Mr Stephen Skehill, commissioned by the Integrity Commissioner, dated 25 June 2014, and

•    your letter to me, dated 11 July 2014, and its enclosure.

Yours sincerely

Michael Keenan

52    Two things should be noted about this letter. First, if the letter dated 29 May 2014 which is mentioned in the second paragraph is included, the documents in this list are the same as those listed as attached to the minute provided to the Minister on 15 August 2014 (see at [47] above). Secondly, the third paragraph essentially records two decisions. Paraphrased, they are: that the information available does not demonstrate corrupt conduct; and that no further action is to be taken in accordance with s 156(2) of the LEIC Act. I will return to this matter later in these reasons.

The present proceeding

53    Mr Mentink filed his originating application in this proceeding on 20 October 2014. In that application he set out eight grounds of review, as follows:

1.    The [Minister] made a decision that was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made, failing to take relevant considerations into account in the exercise of the power;

2.    Breaches of the rules of natural justice occurred in connection with the making of the decision;

3.    The decision involved an error of law;

4.    The relevant statute was misconstrued in a way that led to the [Minister] misconceiving the extent of his powers;

5.    The [Minister] entertained a matter that lay outside the limits of his powers;

6.    The exercise of the [Minister’s] power was so unreasonable that no reasonable person could have so exercised the power;

7.    The history of the [Minister’s] decade-long involvement in [Mr Mentink’s] matters that were the subject of the [ALEI Commission] investigation establish unacceptable bias and conflict of interest on the part of the [Minister].

8.    The decision was affected by fraud and made in bad faith.

Particulars: The decision purported to be a remaking of an earlier decision the subject of application for review by this Court. The [Minister] had filed an affidavit which gave evidence of annexed documents relevant to the making of the decision. Several of those documents were falsified; they could not have existed at the time the [Minister] made his earlier decision. The affected documents purport to advise the [Minister] and appear to support the [Minister’s] defence of his earlier decision. The affected documents purport to advise the [Minister] and appear to support the [Minister’s] defence of his earlier decision. There is a prima facie case that the [Minister] revoked the earlier decision and made the 30 September 2014 decision in order to prevent this evidence arising before this Court.

54    He claimed the following relief:

1.    An order that the [Minister] pursuant to s156(2)(b) authorise a person to conduct a special investigation of the ACLEI corruption issue under Division 4 of the LEIC Act.

2.    Orders as the Court sees fit to make to ensure

a.    the complete independence of the special investigator from the [Minister], the Department of the Attorney General, the [ALEI Commission] and the Integrity Commissioner, the Ombudsman, the Australian Federal Police, and any other agency, body or person involved in [Mr Mentink’s] matters;

b.    appropriate communication between the investigator and [Mr Mentink] both in accordance with the Act and in order to further the objects of the Act to address integrity and corruption issues in the AFP, the [ALEI Commission], and any other involved law enforcement agency subject to the Act;

c.    appropriate terms of reference to extend to the Ombudsman’s decision of 2004 and the conduct of Australian Federal Police from 2003 onwards that were the subject of the investigation by the [ALEI Commission].

d.    reimbursement of [Mr Mentink’s] expenses in the course of the investigation.

3.    An order that the [Minister] pay the costs of [Mr Mentink].

55    The relief Mr Mentink has sought above does not reflect the powers of the Court on an application for review, as expressed in s 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). However, having regard to the fact that Mr Mentink is self-represented, I will presume he seeks an order to quash, or set aside, the 2014 decision under s 16(1)(a) of the ADJR Act. Otherwise, I will assume from the terms of Orders 1 and 2 above that he does not seek an order under s 16(1)(b) of the ADJR Act to refer the matter to the Minister for further consideration, but instead he relies upon s 16(1)(d) to seek an order from this Court that it order the Minister to authorise a special investigation under s 156(2)(b). As will appear below, it will be unnecessary to consider whether I should exercise the discretion necessary to grant this somewhat unusual form of relief because I have concluded that Mr Mentink is not entitled to any relief.

56    Before considering Mr Mentink’s eight grounds of review, two matters should be noted. First, it is common ground that Mr Mentink meets the criterion of being an “aggrieved person” within terms of s 5 of the ADJR Act. Secondly, while I have set out the complex history to this proceeding in quite some detail above, it is important to note that it is only the second part of the fourth and final stage of that history, namely the 2014 decision and the events surrounding it, that is directly relevant to the issues I have to determine in this proceeding. Except to the extent that it provides some relevant context to the 2014 decision, this therefore excludes any review of the 2012 decision.

Ground 1 – Failing to take account of relevant considerations and Grounds 4 and 5 – Errors of law

The contentions

57    It is convenient to begin by considering grounds of review one, four and five together because they raise the various construction issues concerning s 156 of the LEIC Act. With respect to ground one, Mr Mentink has identified the following four matters as relevant considerations that he claims the Minister failed to take into account when making the 2014 decision:

(a)    the original information provided by him to the Minister on 12 May 2012;

(b)    the ALEI Commission records to which he only had limited access;

(c)    the updated version of the original information provided by him to the Minister on 18 March 2013; and

(d)    the transcripts of the records of interview conducted by Mr Bache with Mr Walters in July 2010 and Mr Caldwell in November 2010.

58    The documents identified in [57(b)] and [57(d)] above require me to mention an interlocutory application Mr Mentink made in the course of this proceeding seeking discovery orders with respect to seven categories of documents he claimed were in the possession or control of the Minister. The first two categories of documents comprised the transcripts of the records of interview described in [57(d)] above (Mentink v Minister for Justice [2015] FCA 1094 (Mentink 2015) at [21(1)] and [21(2)]). Paragraph [57(b)] above describes, in broad terms, the documents in the third to sixth categories, inclusive (Mentink 2015 at [21(3)]–[21(6)]). Mr Mentink was aware of the existence of the documents in those categories as a result of his FOI request (see at [20] above). The seventh category was “advices and correspondence … relating to the notifications of ACLEI corruption issues by the Integrity Commissioner to the Minister on 9 March 2013 and 4 June 2013 and the Minister’s decision communicated on 7 January 2014” (Mentink 2015 at [21(7)]). This was the only category describing documents that were in the Minister’s control (Mentink 2015 at [21]). It is also important to note that, at the hearing of his application, Mr Mentink accepted that none of the documents in these seven categories was before the Minister when he made the 2014 decision (Mentink 2015 at [4]).

59    In October 2015, Edelman J dismissed Mr Mentink’s application with respect to all seven categories on three separate grounds, that:

(a)    Mr Mentink had applied under the wrong Court rule (Mentink 2015 at [26]);

(b)    the documents were not directly relevant to his judicial review application because:

(i)    they were not documents that were before the Minister when he made his decision (Mentink 2015 at [39] and [43]);

(ii)    the documents in categories (1) to (6) inclusive were not directly relevant to an ACLEI corruption issue (Mentink 2015 at [40]);

(iii)    the documents in category (7) were not directly relevant as they related to a different decision, were based on a notification to the Minister by the Integrity Commissioner and fell under a different section of the LEIC Act (s 153) (Mentink 2015 at [41]–[42]);

(c)    and the discovery order would not facilitate the just resolution of this proceeding as quickly, inexpensively and efficiently as possible (at [45]).

As well, with respect to categories (1) to (6) inclusive, his Honour reached a preliminary conclusion that those documents were unlikely to be in the Minister’s control because he did not have the power under either the LEIC Act, or the Australian Federal Police Act 1979 (Cth) (the AFP Act), to demand that those documents be provided to him (Mentink 2015 at [68]).

60    In 2016, Rangiah J refused Mr Mentink’s application for leave to appeal the judgment Mentink 2015: Mentink v Minister for Justice [2016] FCA 432 (Mentink 2016). On the issue of direct relevance, his Honour recorded that: “It was common ground between the parties before the primary judge that none of the documents sought to be discovered by the applicant were before the Minister” (Mentink 2016 at [71]). After rejecting the various exceptions to the ordinary rule that, in judicial review applications, the relevant evidence was limited to the materials that were before the decision-maker (Mentink 2016 at [68]–[75]), his Honour concluded: “However, the fundamental difficulty for the applicant is his inability to demonstrate how documents not before the Minister might be directly relevant, or even relevant at all, to the grounds of his application for review” (Mentink 2016 at [75]).

61    Returning to the four relevant considerations set out above, Mr Mentink submitted that they constituted the information he had referred to the Minister under s 154 of the LEIC Act and the Minister was therefore required to consider that information in making his decision under s 156. As to the documents described in [57(b)] and [57(d)] above, he submitted that, while he did not provide those documents to the Minister, because he had made particular reference to the information in them, the documents, and therefore that information, should have been obtained and considered by the Minister. This obligation could not, he submitted, be avoided by claiming “lack of relevance” of the information, or that the Minister had “no legal right of access” to those documents. Alternatively, he submitted that, if the Minister did not have the power to obtain the documents, this should have lowered the threshold when the Minister came to make his decision to appoint someone who did have that power, namely, a special investigator.

62    With respect to grounds four and five, Mr Mentink claimed they related to errors of law that were made by the Minister in his construction of s 156 of the LEIC Act as demonstrated by the 2014 decision and the process he had followed in reaching that decision as follows. First, because s 154 of the LEIC Act contained a requirement that the Minister had to take account of the information he had referred to him, Mr Mentink contended that the Minister was wrong in claiming that there were no specific factors that had to be taken into consideration when he made his decision under s 156(2). Secondly, he contended that the Minister could only have regard to the information he had referred to him under s 154 and, therefore, he could not properly have had regard to the information contained in the submissions that were put to him by the ALEI Commission. On this aspect, he contended that the process the Minister adopted of receiving submissions from the ALEI Commission, as if he were adjudicating between two parties, was flawed. On the same basis, he contended that the Minister was wrong to have regard to the information in the Skehill report. With respect to that report, he went further and claimed that its conclusions were fundamentally flawed.

63    In considering whether the information he had referred to the Minister raised an ACLEI corruption issue, Mr Mentink contended that the word “raises” in s 154 set a low threshold. In particular, he contended that, at that stage of the Minister’s deliberations, beyond excluding information that was frivolous or vexatious, it was not for the Minister to decide whether the information “proved” or “demonstrated” the ACLEI corruption issue, merely whether it raised such issues. Accordingly, Mr Mentink contended that the Minister had overreached his powers by stating in his letter of 30 September 2014 (see at [51] above) that the information he had referred to the Minister did not “demonstrate” corruption on the part of the ALEI Commission. To reach that conclusion at that stage, he contended, meant that the Minister had “determined the substantive issue” and had thereby pre-empted the investigation that could follow from his decision under ss 156(2)(a) or (b). It followed, so Mr Mentink contended, that, if the Minister considered the information referred to him raised an ACLEI corruption issue, the only option available to him was to decide whether to conduct an investigation under s 156(2)(a), or s 156(2)(b). Further, it followed, so he contended, that the option of taking no further action under s 156(2)(c) was not available at that stage. He submitted that this conclusion was supported by the use of the word “further” in s 156(2)(c). He contended that word indicated that the s 156(2)(c) option was only available once an investigation had begun and a subsequent decision was made to cease it. Finally, Mr Mentink contended that this construction meant that the Minister could not arrange for an “initial” assessment or investigation of the information before he made his decision under s 156(2).

64    In response, the Minister submitted that s 156 of the LEIC Act conferred a broad discretion on him when dealing with an ACLEI corruption issue that had been referred to him under s 154 and it did not require him to take any specific factors into account when exercising that discretion. Further, he submitted that the weight to be given to the matters he did take into account when making that decision was entirely a matter for him. Therefore, he submitted, the matters identified in Mr Coles’ letter dated 29 May 2014 (see at [28] above) were within the range of relevant considerations he was entitled to take into account in making his decision and the affidavit evidence before the Court showed that he had, in fact, had regard to those matters. This extended to include the documents identified by Mr Mentink in items [57(a)] and [57(c)] above. As to the documents identified in items [57(b)] and [57(d)] above, he submitted he was not required to have regard to those documents because they did not form part of the information identified in Mr Mentink’s letter of 12 May 2012, and nor did they fall within the range of documents referred to in Mr Coles’ letter of 29 May 2014. Further, he submitted, he was under no obligation to seek out those documents as Mr Mentink had claimed. In this respect, he submitted, the judgment of Edelman J on Mr Mentink’s discovery application established that those documents had no direct relevance to the ACLEI corruption issues that Mr Mentink had referred to him (see at [58] above). This was further supported by the fact, so he submitted, that Mr Mentink had made no allegation that Mr Bache had engaged in corrupt conduct with respect to the records of interview identified in item [57(d)]. The Minister therefore submitted that the documents in items [57(b)] and [57(d)] could not comprise relevant considerations to which he was required to have regard when exercising his discretion under s 156(2).

65    As to grounds four and five, the Minister contended that Mr Mentink was wrong in his submissions about the construction of s 156. That included his contentions that: a decision under s 156(2) had to be made solely by reference to the information that he had referred to him under s 154; if that information raised an ACLEI corruption issue his only option was to authorise an investigation under s 156(2)(a) or 156(2)(b); and he could not opt at that stage to take no further action under s 156(2)(c). He submitted that all these contentions were inconsistent with the plain terms of those provisions of the LEIC Act. On the same basis, he contended that he was entitled to make a preliminary assessment of the information prior to making his decision under s 156(2) and he was not acting beyond power in doing so. He submitted that Mr Mentink’s contention in this regard was ambivalent because he had accepted that the Minister was not bound to further consider an ACLEI corruption issue referred to him that was frivolous or vexatious. The Minister contended that, in making his decision, he had properly had regard to the information provided to him by Mr Mentink and by the ALEI Commission in its submissions and the weight that he afforded to the various aspects of that information was a matter for him. Thus, he submitted, he was not in error to adopt the process of requesting submissions from Mr Mentink and the ALEI Commission and having regard to them; and he was not in error in having regard to the Skehill report. He further contended that he made the 2014 decision having regard to the materials listed in his letter of 30 September and the information contained in those materials. He contended that those materials did not “unequivocally” indicate that a further investigation of Mr Mentink’s allegations of ACLEI corruption issues was warranted. With particular regard to the Skehill report, he submitted that it “addressed comprehensively, and dismissed, [Mr Mentink’s] concerns as to the only potential ACLEI corruption issue … that is, the alleged conflict of interest of Mr Sellars”. Furthermore, he contended, Mr Mentink had been given the opportunity to make submissions on the contents of the Skehill Report, which he accepted, and the weight he gave to that report and Mr Mentink’s submissions on it was entirely a matter for him.

What is a relevant consideration?

66    In considering the above contentions, insofar as they relate to ground one, the first question to be answered is: What is a relevant consideration? In Minister for Aboriginal Affairs v Peko- Wallsend Limited (1986) 162 CLR 24 (Peko-Wallsend), Mason J provided the answer to that question in the following terms (at 39–41):

(a)    The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision …

(b)    What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors – and in this context I use this expression to refer to the factors which the decision-maker is bound to consider – are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard … By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.

(c)    Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision …

(d)    The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned …

(Citations omitted)

67    To similar effect, in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 (Yusuf), McHugh, Gummow and Hayne JJ said (at [73]–[74]):

73    … The considerations that are, or are not, relevant to the Tribunal’s task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider …

74    This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker. What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.

(Footnotes omitted)

68    Consistent with the above observations, in Esposito v Commonwealth (2015) 235 FCR 1; [2015] FCAFC 160 (at [123]), the Full Court (Allsop CJ, Flick and Perram JJ) said:

The concept of a relevant consideration in administrative law denotes a matter of which a decision-maker is bound to take account. This is a legal issue to be determined from the terms of the law under which the decision is made. This will include those matters which the law explicitly says must be taken into account but also other matters when this is discernible from the subject matter, scope and purpose of the law: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J.

Construing the relevant statutory provisions – sections 154 and 156

69    In this context, a relevant consideration is, therefore, the matter, or matters, the statutory provision in question binds the decision-maker to take into account. That obviously requires an exercise in statutory construction, the pertinent considerations of which are the statutory text, its statutory context and the purpose of the statute: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69], Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, Commissioner of Taxation v Consolidated Media Holdings (ACN 009 071 167) (2012) 250 CLR 503; [2012] HCA 55, Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56 at [23]–[26] and Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [22]–[23].

70    In this matter, there are essentially two relevant statutory provisions although they, in turn, engage a number of other provisions of the LEIC Act. Because it was the focus of most of the contentions in this matter, it is convenient to begin with s 156(2) (set out at [16] above). It prescribes the three kinds of decision that the Minister may make with respect to an ACLEI corruption issue that is referred to him or her. Since the Minister who made the 2014 decision was a male person, for convenience I will refer to the Minister in these reasons using the male gender. The three kinds of decision that the Minister may make are:

(a)    to refer the issue to the Integrity Commissioner for investigation under Division 3 of Part 12 (ss 159 to 165 inclusive); or

(b)    to authorise a person to conduct a special investigation of the issue under Division 4 of Part 12 (ss 166 to 173 inclusive); or

(c)    to take no further action in relation to the issue.

71    Otherwise, the text of s 156(2) contains no other directive provisions. Thus, if the matter were left there, the Minister would be quite correct in his contention that, by its terms, s 156(2) does not prescribe any specific factors or considerations which he must take into account in deciding between the three kinds of decision described above. However, that ignores the statutory context to s 156(2), particularly the important qualification set out in the immediately preceding subsection, s 156(1), and, before it, in s 154.

72    Turning first to s 156(1), it prescribes certain circumstances that must exist before s 156 applies and, therefore, before any decision is called for under s 156(2). For the purposes of this matter, those circumstances are prescribed in s 156(1)(b): “This section applies if: … (b) a person refers an allegation, or information, that raises an ACLEI corruption issue to the Minister under section 154”. I interpose that the words “refer” and “referring” are defined in s 5(2) and (3) of the LEIC Act. Section 156(1)(b), in turn, engages s 154 (set out at [15] above). That section allows a person, apart from the Integrity Commissioner, or an ALEI Commission staff member, to refer an ACLEI corruption issue to the Minister.

73    The contrast between the permissive provisions of s 154 and the mandatory provisions of s 153 is worth highlighting at this point. As is already noted above (at [15]), s 153 places a mandatory requirement on the Integrity Commissioner and any ALEI Commission staff member to make a referral to the Minister upon his or her becoming aware of such an ACLEI corruption issue. Moreover, a failure to make such a referral may result in the commission of an offence under s 174 of the LEIC Act. Since, by definition, an ACLEI corruption issue only concerns a person who is, or has been, an ALEI Commission staff member (see the definition in s 8 set out at [14] above), it follows that, if a member of the public refers an allegation or information to the Minister under s 154 which for the first time raises an ACLEI corruption issue, questions are very likely to arise as to whether the Integrity Commissioner and/or any ALEI Commission staff member concerned has failed to comply with his or her obligation under s 153, and therefore committed an offence under s 174. I will return to this matter later in these reasons.

74    Returning to s 154 of the LEIC Act, the defined expression “ACLEI corruption issue” is pivotal to the operation of that section. Specifically, in order for an allegation or information to “raise” such an issue under s 154, the issue needs to be of the kind defined as an “ACLEI corruption issue” in the definition of that expression in s 8 of the LEIC Act. It necessarily follows that, before s 156 applies and therefore requires any decision to be made under s 156(2), the Minister has to make an assessment of the allegation or information to determine whether he considers it is an issue of that kind. That will require him to consider the terms of that definition and the various defined terms within it. Depending on the content of the referral that is made under s 154, the Minister will therefore need to consider the relevant components of that definition, which would most likely include him considering the following salient features of it:

(a)    that it only applies to a person who is, or has been, a staff member of the ALEI Commission: see s 8(1); and

(b)    that it extends to apply to conduct in the past (has, or may have), present (is, or may be) and future (will, or may at any time in the future) conduct: see s 8(1)(a), (b) or (c), respectively.

75    Furthermore, the pivotal expression within that definition – “engages [ed, ing] in corrupt conduct” – expands the matters the Minister will most likely need to consider to include the definition of that expression in s 6 of the LEIC Act. His consideration of that definition will most likely include the following salient features of it:

(a)    that it applies to conduct involving, or engaged in for the purpose of, abusing his or her office (s 6(3)(a)), or conduct that perverts, or is engaged in for the purpose of perverting, the course of justice (s 6(3)(b)), or conduct which, having regard to the duties and powers of the staff member concerned, involves, or is engaged in for the purpose of, corruption of any kind (s 6(3)(c)) (emphasis added);

(b)    that the expressions “corruption” and “corrupt” are not themselves defined and they may therefore extend to apply to an imprecise and broad range of conduct (see the discussion at [11] above);

(c)    that it extends to include conduct that involves, or implicates, a person who is not a staff member of the ALEI Commission (s 6(4)(b)); and

(d)    that it extends to include conduct that is engaged in for purposes that include one of the corrupt purposes described above (s 6(5)).

The Minister had to consider whether the referral raised an ACLEI corruption issue

76    It follows that, before the Minister was required to make any decision under s 156(2) with respect to Mr Mentink’s referral under s 154, he had, first, to consider whether s 156 applied to the referral and that, in turn, required him to consider whether the allegation or information so referred raised an issue that was an ACLEI corruption issue, as defined in the various provisions of the LEIC Act set out above. It is worth noting in passing that Mr Skehill identified this feature of s 156 early in his report (see at [34] above). For the reasons that follow, I consider the Minister duly considered whether s 156 applied to Mr Mentink’s referral and decided that it did not because Mr Mentink’s referral under s 154 did not raise such an issue. That being so, there was no statutory foundation for a decision under s 156(2) with respect to Mr Mentink’s referral.

77    It is convenient to begin by highlighting the complexity of the task the Minister had to perform when he was considering whether the allegation or information that Mr Mentink had referred to him under s 154 was an ACLEI corruption issue as defined. The myriad of legal and factual matters enlivened by the definitions in ss 8 and 6 of the LEIC Act, as set out above, amply demonstrate this. Furthermore, aside from these and related provisions, the LEIC Act does not contain any provisions which prescribe how the Minister is to perform this complex task, nor what other considerations or matters he is to have regard to when he does perform it. In the absence of any such statutory provisions, it is well-established that, provided he acts “in good faith and within the scope and for the purposes of” the LEIC Act (K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; [2009] HCA 4 at [59] per French CJ); and does not act “arbitrarily, capriciously or so as to frustrate the legislative intent” of the provisions of that Act (Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [22] per Gaudron and Gummow JJ), he was entitled to proceed in such manner as he considered was appropriate and taking into account whatever matters he considered were relevant.

78    On the former aspect – the manner in which he performed the task – this meant that the Minister could, as he in fact did, properly seek submissions from the ALEI Commission concerning the allegations and information Mr Mentink had referred to him under s 154. Indeed, while I do not know whether this consideration affected the process the Minister followed, the requirement to provide procedural fairness to any ALEI Commission staff members concerned, which I have mentioned above (see at [73]), probably dictated that course being followed (see the observations in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li) at [26] per French CJ, Hayne, Kiefel, Bell and Gageler JJ).

79    On the latter aspect – the matters he took into account – this meant that the Minister could, as he in fact did, properly take account of information other than that contained in Mr Mentink’s referral under s 154, or the subsequent submissions he made in response to the invitations he received from Mr Coles and Ms Close (set out at [28]–[29] above). Chief among that information was the Skehill Report, which, as the Minister correctly observed in his submissions, focused on the concerns at the centre of Mr Mentink’s referral to the Minister, namely, whether Mr Sellars’ alleged conflict of interest raised an ACLEI corruption issue (see the summary at [30]–[45] above). Supporting both of these conclusions is the peculiar circumstances in which the Minister was considering Mr Mentink’s referral. They included the observations the Full Court made during the course of the proceeding Mr Mentink issued to challenge to that decision (see at [26] above). In other words, the Minister could, in my view, have had regard to those observations in making the 2014 decision.

80    For these reasons, I reject Mr Mentink’s contentions that the Minister could only have regard to the information he had referred to him under s 154 and, therefore, he could not properly have regard to any other information, for example, the submissions that were put to him by the ALEI Commission or the contents of the Skehill report. I also reject Mr Mentink’s contention that the word “raises” in s 154 sets a low threshold for the Minister’s consideration of an allegation or information that is referred to him under s 154. Since it is not defined in the LEIC Act, that word must be given its ordinary meaning, which, in this context, is: “to give rise to; bring up or about (a question, issue, etc); put forward (an objection, etc);” (Macquarie Dictionary (4th ed, Macquarie Library Pty Ltd, 2005)). The Minister therefore had to assess whether Mr Mentink’s allegation or information gave rise to, brought up, or put forward all of the essential elements of an ACLEI corruption issue, as defined. I do not therefore consider that word is intended to set a threshold or standard, whether that be a high or low one. This is not to say that, once the Minister is satisfied that s 156 applies to the referral and he is then required to proceed to the next step, that is, to make a decision under s 156(2), he may not take account of a range of factors in making that decision. Depending on the circumstances, those factors may include the cogency of the allegation or information concerned, or whether he considers it is frivolous or vexatious, or the particular kind of ACLEI corruption issue it raises. On the latter aspect, that may include assessing whether the ACLEI corruption issue that has been raised constitutes “serious corruption”, or “significant corruption”, or “systemic corruption” as those expressions are defined in s 5 of the LEIC Act.

81    Furthermore, I do not consider the Minister erred, or “overreached” as Mr Mentink submitted, when he said in his letter dated 30 September 2014 that he did not consider that the information Mr Mentink had referred to him “demonstrates” corrupt conduct. Read in its proper context, the word “demonstrates” was, in my view, an apt expression to describe whether the allegation or information “raised” an ACLEI corruption issue. Similarly, while the Minister did not use the precise expression “ACLEI corruption issue” in his letter, but instead referred to “corrupt conduct”, since corrupt conduct is, as explained above, essential to that defined expression, I consider his reference to “corrupt conduct” was sufficient to convey his conclusion that Mr Mentink’s allegation or information did not raise an ACLEI corruption issue as defined.

No ACLEI corruption issue raised so no decision required under section 156(2)

82    Once the Minister reached the conclusion that the allegation or information Mr Mentink had referred to him under s 154 did not demonstrate corrupt conduct, or, in the terms of the LEIC Act, “raise … an ACLEI corruption issue”, it necessarily followed, in my view, that s 156 did not apply to his referral. That being so, as I have already observed above, the statutory foundation for a decision by the Minister under s 156(2) did not exist. This conclusion, however, requires me to address an aspect of the Minister’s letter dated 30 September 2014 which seems to have distracted both parties in their submissions in this matter. That is, the second decision alluded to above (at [52]) recorded in the concluding sentence of the third paragraph that: “I have therefore decided to take no further action in relation to this matter, in accordance with paragraph 156(2)(c) of the LEIC Act”. The clear import of this sentence is that the Minister proceeded to make a decision under s 156(2) of the LEIC Act even though he had just decided, on the view I have expressed above, that s 156 did not apply to Mr Mentink’s referral under s 154 because it did not raise an ACLEI corruption issue as defined. Assuming this to be an error of law, first, I do not consider that error affects my conclusion above that the Minister did not err in his anterior decision that the allegation or information Mr Mentink had referred to him under s 154 did not raise an ACLEI corruption issue as defined. Secondly, and relatedly, since that conclusion disposes of the central issue raised by these grounds of review, the subsequent error of law (assuming it to be so) is immaterial, in the sense discussed by Mason J in Peko-Wallsend (albeit directed to a different type of error: see at [66(c)] above), as discussed in Lansen v Minister for Environment and Heritage (2008) 174 FCR 14; [2008] FCAFC 189 at [120]–[125] per Moore and Lander JJ. Further, or alternatively, since, in the circumstances, the subsequent decision was superfluous and of no effect, it is not a decision with respect to which Mr Mentink could claim to be aggrieved for the purposes of s 5 of the ADJR Act.

83    Having reached the conclusion that s 156 did not apply to Mr Mentink’s referral under s 154 and that there was therefore no statutory foundation for the Minister to make a decision with respect to that referral under s 156(2), it is strictly unnecessary for me to consider whether the Minister was required to, and did not, have regard to the four considerations Mr Mentink identified above (at [57]), when making that decision, or whether, having decided the issue referred to him was an ACLEI corruption issue, he could only decide whether to authorise an investigation under either s 156(2)(a) or s 156(2)(b). Nonetheless, for completeness, I will briefly deal with these two matters on the assumption that s 156 did apply to Mr Mentink’s referral and the Minister was required to make a decision under s 156(2).

84    First, as I have already stated above (at [71]), s 156(2) does not prescribe any specific factors or considerations which the Minister must take into account in making a decision under that subsection. The four matters identified by Mr Mentink are therefore not relevant considerations under the terms of that provision. Secondly, all of the documents described in [57] above relate to the fact finding process in which the Minister would have had to engage if he were required to make a decision under s 156(2). That is, they relate to “the particular facts of the case” that Mr Mentink placed before the Minister (see Yusuf at [73], set out at [67] above). It follows that Mr Mentink’s reliance on these four matters calls for a merits review of the Minister’s decision and such a review is not within the supervisory role of this Court in judicial review proceedings of the present kind: see Peko-Wallsend at 40–41 per Mason J (particularly at [66(d)] above), Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 at 36–37 per Brennan J and Li at [66] per Hayne, Kiefel and Bell JJ. Thirdly, and in any event, it is clear that the Minister did have regard to the document described in [57(a)] above in considering Mr Mentink’s referral, at least for the purposes of determining whether it raised an ACLEI corruption issue, as defined. That is so because that letter is listed in the Minister’s letter of 30 September 2014 as a part of the information to which he had regard. Further on the same basis, while the document described in [57(c)] above is not mentioned in that list, I agree with the Minister’s contention that the substance of the information contained in that letter was included in Mr Mentink’s subsequent letters dated 14 June 2014 and 11 July 2014, each of which is included in the list in the Minister’s letter. There is nothing to gainsay the Minister’s statement in his 30 September 2014 letter that he had regard to the information in those two documents. In this respect, it is to be noted that Mr Mentink does not claim that the Minister’s consideration of the material that was placed before him was inadequate, nor does he allege that the material was so extensive that the Minister could not have duly considered it. Instead, he claims that the deficiency in the ALEI Commission investigation was so obvious from the materials he placed before the Minister that it should be concluded that the Minister did not have regard to those materials. Finally, on this aspect, with respect to the documents identified in [57(b)] and [57(d)] above, as Mr Mentink acknowledged before Edelman J, and as Edelman J and Rangiah J both subsequently found (see at [59]–[62] above), those documents were not before the Minister when he made his 2014 decision. They were therefore not relevant to the issues raised in this proceeding: see Waterford v The Commonwealth of Australia (1987) 163 CLR 54 at 77–78 per Brennan J.

85    As for Mr Mentink’s contention that the Minister could only decide whether to authorise an investigation under either s 156(2)(a), or s 156(2)(b), I consider the text and structure of s 156(2) does not support that construction. Section 156(2) sets out three options that are available to the Minister: an investigation by the Integrity Commissioner (s 156(2)(a)); a special investigation (s 156(2)(b)); or no further action (s 156(2)(c)). Since those three options are so clearly expressed to be available, without any qualification, I do not consider the inclusion of the word “further” in the body of s 156(2)(c) could have been intended to remove the third option. Instead, I consider the words “further action” in that subsection are intended to refer to the various actions that may precede a decision under s 156(2), including those associated with the assessment the Minister has to undertake of the allegation or information to determine whether it raises an ACLEI corruption issue as defined and, if it does, the range of factors that could require action of the Minister prior to him making a decision under s 156(2), some of which I have mentioned above (at [80]). I also reject Mr Mentink’s contention that the word “further” in s 156(2)(c) is intended to indicate that this third option only applies once an investigation is in train and the decision is made to cease it. This rejection is supported by the fact that the cessation of an investigation that is in train is expressly provided for in s 156(4).

Conclusion

86    Since Mr Mentink has failed to identify any relevant error of law that affected the validity of the 2014 decision and, to the extent s 156 applied to his referral (assuming it did), he has failed to identify any relevant consideration that the Minister failed to take into account, none of these three grounds of review has any merit.

Ground 2 – Failure to afford natural justice/procedural fairness

87    In his second ground of review, Mr Mentink contended that the Minister did not observe the requirements of natural justice or procedural fairness:

(a)    by failing to provide reasons for his decision; and

(b)    by failing to obtain and provide to him the records of interview conducted by Mr Bache the subject of his discovery application before Edelman J (see at [58] above).

88    With respect to [87(a)] above, it is common ground that, by virtue of s 13(11)(c) of the ADJR Act and item (eaa) of Schedule 2 to that Act, there was no obligation imposed on the Minister to provide reasons for the 2014 decision. Nonetheless, as Mr Mentink pointed out, this provision did not prevent the Minister providing reasons if he wished to, evidenced by the fact he did provide them for the 2012 decision. If this ground is dealt with on that footing, the proposition that a failure to provide reasons for a decision affects the fairness of the procedures employed in making that decision has been doubted or rejected sufficiently often in the High Court for me to reject it: see Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 670 per Gibbs CJ; Yusuf at [77] per McHugh, Gummow and Hayne JJ; and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; [2003] HCA 56 at [47] per Gleeson CJ, Gummow and Heydon JJ and at [55] per McHugh J. See also the discussion in Aronson M and others, Judicial Review of Administrative Action and Government Liability (6th ed, Thomson Reuters, 2017) at pp 637–638, para 8.450.

89    As for the documents in [87(b)] above, they were the first and second category of documents in respect of which Mr Mentink sought a discovery order (see at [57(d)]–[58] above). He failed in that discovery application because, among other reasons, the documents were not before the Minister when he made the 2014 decision and they were not directly relevant to any issue in this proceeding (see at [59] and [60] above). Since those documents were not relevant, it necessarily follows that the Minister did not fail to observe the requirements of natural justice or procedural fairness by failing to provide them to Mr Mentink.

90    For these reasons, Mr Mentink’s second ground of review has no merit.

Ground 3 – no power to revoke the 2012 decision

91    Under this ground, Mr Mentink sought to challenge the Minister’s power to revoke the 2012 decision. There are two reasons why this ground of review has no merit. First, as has already been mentioned above, this proceeding relates to the validity of the 2014 decision, not the 2012 decision and the revocation of the latter decision is therefore not relevant to this proceeding. Secondly, even if the validity of the 2012 decision were relevant to this proceeding, I consider the Minister had the discretion under s 156(4) of the LEIC Act to “at any time, reconsider how the ACLEI corruption issue should be dealt with”. Plainly enough, this provision allowed the Minister to revoke the 2012 decision and to consider afresh the ACLEI corruption issue raised by Mr Mentink under s 154.

Ground 6 – Unreasonableness

92    Under this ground, Mr Mentink claimed that no reasonable person could have reached the conclusion the Minister reached:

a.    That all of the information provided by [him] up until July 2014 failed to raise an ACLEI corruption issue given that [the ALEI Commission’s] own records disclosed no investigative activity other than the interviews recorded by Mr Bache,

b.    That the [ALEI Commission] need not be required to produce the above-mentioned records of interview in order to test the claim of no investigation during a period of 30 months prior to deciding to cease investigation,

c.    That no conflict of interest existed in respect of Nicholas Sellars and that the failure to investigate and decision to cease investigation served no interests of Mr Sellars or any other person or agency, and

d.    That no [ALEI Commission] corruption issue arises from the above.

93    Since a. above appears to be directed to the Minister’s decision that Mr Mentink’s referral under s 154 did not raise an ACLEI corruption issue, I will approach this ground as if it applies to that decision.

94    The contentions in [92(a)] and [92(b)] above can be rejected for the same reason as I have rejected the contention in [87(b)] above, namely that those records of interview are not relevant to any issue in this proceeding (see at [89] above). Furthermore, there was no obligation on the Minister to seek out those records of interview and, even if there were such an obligation, it is doubtful whether he had the power to obtain them either under the LEIC Act, or the AFP Act (see the discussion of Mentink 2015 at [59] above). Additionally, all of the contentions in [92] above are clearly directed to a merits review of the Minister’s decision that no ACLEI corruption issue arose with respect to Mr Sellars’ alleged conflict of interest. As I have already mentioned above, such a review of the Minister’s decision is not available in judicial review proceedings of the present kind (see at [84] above). Conversely, those contentions do not identify any aspect of the Minister’s decision that is “arbitrary, vague and fanciful” (Li at [65]), that is beyond the limit “to which an honest man competent to the discharge of his office ought to confine himself” (Li at [65]), or that “lacks an evident and intelligible justification” (Li at [76]). As to the latter, I agree with the Minister in his submissions that the “only potential ACLEI corruption issue identified by [Mr Mentink], that is, the alleged conflict of interest of Mr Sellars” was “addressed comprehensively, and dismissed” in the Skehill Report. In that respect, it is significant that Mr Mentink exercised, the opportunity offered to him to comment on that report (see [30], [46]–[47(j)] above). The weight to be given to those submissions and the contents of the Skehill Report was entirely a matter for the Minister. Hence, Mr Mentink cannot maintain that the information before the Minister “was all one way”: see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [137] per Gummow J.

95    For these reasons, I do not consider Mr Mentink has made out this unreasonableness ground.

Ground 7 – Bias and conflict of interest

96    In ground seven, Mr Mentink claimed that the Minister and the Department of the Attorney-General were affected by actual bias and a conflict of interest when they dealt with the allegations or information he had referred to the Minister under s 154. He claimed that this bias and conflict of interest was evidenced by the minute Mr Burge, the Assistant Director of Investigations at the ALEI Commission, sent to the Integrity Commissioner in September 2011 recommending that he take no further action on the corruption issue Mr Mentink had raised in relation to members of the AFP (see at [19] above). He claimed it could also be inferred from the decision not to provide reasons for the 2014 decision. Finally, he claimed it could be inferred from the conduct of his referral by the Department of the Attorney-General since 2012, that they had been “long … swayed by the sentiments expressed in the Burge Minute”.

97    In response, the Minister submitted a finding of actual bias could only be made if it was clearly established that the relevant decision-maker approached the determination of the issue in question with a closed mind and was unable, or unwilling, to decide it impartially. He contended that Mr Mentink’s allegations did not meet any of these tests because they were “spurious”.

98    As the Minister has correctly stated, Mr Mentink’s allegation is one of actual bias and such an allegation requires evidence of “pre-judgment”. That is, that the decision-maker is “so committed to a conclusion already formed as to be incapable of alteration or of being persuaded differently, whatever evidence or argument may be presented” (Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17 at [69], [70]–[72] per Gleeson CJ and Gummow J and [127] per Kirby J. The Minister is also correct in his contention that an allegation of bias must be “firmly established”: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 per Mason J.

99    To dispose of this ground, it is necessary to set out the relevant contents of Mr Burge’s minute to the Integrity Commissioner. Relevantly, it stated:

The purpose of the Minute is to recommend that you reconsider the investigation into allegations made by Mr Wilfred Mentink and that you take no further action. Mr Mentink is a convicted paedophile who has made a number of allegations against Australian Federal Police (AFP) staff (and others).

Mr Mentink first referred his allegations to you by e-mail on 07/11/2008, and contained within that is a useful summary of his grievances, only some of which are within your jurisdiction. In summary, his original allegations against AFP staff are that (in about mid 2003) someone provided his criminal history to the East Timorese authorities unlawfully, and that Federal Agent Jeff Caldwell was involved, inappropriately, in the attempts by the authorities in Dili to have him deported from East Timor.

Mr Mentink was apparently deported from East Timor by air on 27/12/2003 with the ‘loss’ of his yacht, the Larus II. Mr Mentink has alleged that ‘AFP and [Australian] Consular personnel pressured the East Timorese to deport him by air and to seize and sell his vessel.’ The circumstances surrounding the seizure of the Larus II by the East Timorese authorities and its subsequent alleged fate is an issue that Mr Mentink focuses on. What does not seem to be in question is that the Larus II was seized by the authorities in Dili. It must be noted, however, that the opposing views of the Dili authorities and the AFP are that the yacht was seized legitimately and sold to recover the costs of Mr Mentink’s deportation. Mr Mentink has alleged that the yacht was ‘stolen’ by a UK national named Lee Thackray.

…

I recommend, therefore, that you reconsider the investigation of this corruption issue. If you agree to do so, one option for you is to take no further action, on the following grounds:

•    Some of Mr Mentink’s allegations have already been investigated by the AFP, and found to be ‘Not Established’;

•    Mr Mentink’s referral(s) may be considered frivolous and vexatious. He is a highly motivated and vociferous individual. He has shown from previous actions that he has the capacity and motivation to keep making allegations that are essentially a rework of previous allegations. It cannot be discounted that he enjoys generating work for Australian Government agencies and feels that he has nothing to lose by doing so.

…

•    Further investigation of the corruption issue is not warranted having regard to all the circumstances, on the grounds that, and in addition to the above:

o    The current high workload of the Operations Section, with arguably more substantive and serious matters, and the likelihood of that workload increasing in the short and long terms;

o    Some of the information provided by Mr Mentink has been inconsistent with official and arguably more reliable accounts provided by, or at least ascertained by, the AFP. An example of this is the alleged theft of the Larus II. Mr Mentink has alleged that ‘… the AFP forced [his] deportation from East Timor with the intent of procuring the forfeiture of [his] vessel.’ However enquiries completed by the AFP indicate that the yacht was seized legitimately to assist in the recovery of money owed to the Government of East Timor to cover the cost of his deportation;

o    Some of the matters raised by Mr Mentink are years old, thus making investigation that much harder;

o    Given Mr Mentink’s behaviour to date, it is unlikely that he will ever be satisfied with action taken by [the ALEI Commission] or you. He seems to be convinced that he is an innocent victim of wrongdoing, corruption and harassment, whereas the Australian authorities seem to have acted proportionately and in good faith;

o    It cannot be discounted that Mr Mentink is seeking access to a developing country, with a poor infrastructure and where Australian authorities have had to work hard for local people to understand the concept of child-sex tourism, for the purpose of committing further paedophile offences. [redacted under s 47C, s 47E]

o    Further investigation of Mr Mentink’s allegations may be viewed as though you are assisting a convicted paedophile to enter a country known for its vulnerability for child-sex tourism. This may be viewed as inconsistent with Australian Government policy on the subject.

(Footnotes omitted)

100    In my view, Mr Mentink’s claims under this ground fall well short of meeting either of the abovementioned prerequisites to establish actual bias. Mr Mentink may well be personally offended by the views expressed by Mr Burge in his minute above, but he does not claim that they are factually inaccurate and, in any event, they were views that were expressed in 2011 to the Integrity Commissioner, not to any officer of the Department of the Attorney-General, nor, for that matter, to the Minister. There is therefore no basis for inferring that the Minister, or any officer of the Department of the Attorney-General, held the same, or similar, views in 2014 when the Minister came to make the 2014 decision. Apart from referring to this minute, Mr Mentink has not provided any other evidence for his claims. Finally, since there was no obligation imposed on the Minister to provide reasons for the 2014 decision (see at [88] above), I reject Mr Mentink’s claim that his failure to do so evidenced bias.

101    Mr Mentink’s claims of bias and conflict of interest are therefore entirely unsupported by any evidence, let alone evidence that firmly establishes them. For these reasons, Mr Mentink’s seventh ground of review is unmeritorious.

Ground 8 – Fraud and bad faith

102    In ground eight, Mr Mentink contended that several documents annexed to the affidavit of an officer of the Department of the Attorney-General and filed in the judicial review proceeding he began in 2012 were falsified. Specifically, he alleged that the letter sent to him by the Minister on 6 July 2012 (see at [25] above) was fabricated because the final two paragraphs of that letter differed from the draft letter attached to the Department’s submission to the Minister.

103    This ground can be rejected briefly. Even if there were support in the evidence for Mr Mentink’s allegation (and this should not be taken as suggesting there is), it would relate to the 2012 decision and, as has been pointed out a number of times above, that decision is not relevant to the 2014 decision which is the subject of this proceeding.

Conclusion

104    For these reasons, Mr Mentink has failed on all of his eight grounds of review. Mr Mentink’s originating application filed on 20 October 2014 must therefore be dismissed. I will hear the parties on the question of costs.

Associate:    

Dated:    19 June 2017