FEDERAL COURT OF AUSTRALIA

Goodwin v Commissioner of Police [2020] FCA 950

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application is dismissed.

2.    Unless an application resisting an order for costs is made by the applicant within 7 days hereof, the applicant pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    The applicant (“Mr Goodwin”) was appointed to the Australian Federal Police (“AFP”) in a policing role in January 2015. Mr Goodwin initially served at Melbourne Airport before being deployed to a protective role at the residence (“Camp Mountain”) of the Minister for Home Affairs (“Minister”) in Brisbane. In March 2018, five complaints were made to the Professional Standards unit of the AFP alleging that Mr Goodwin had engaged in offensive and inappropriate behaviour whilst on duty in or around Camp Mountain. By a letter dated 15 May 2019 (“termination letter”) a delegate (“delegate”) of the Commissioner for the AFP (“Commissioner”) terminated Mr Goodwin’s employment with the AFP for serious misconduct.

2    The delegate’s decision to terminate Mr Goodwin’s employment (“decision”) is the subject of this application for judicial review brought by Mr Goodwin under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”). There are some eight grounds set out in Mr Goodwin’s application, however, not all of those grounds were pressed. Relying on s 5(1)(a) of the ADJR Act, Mr Goodwin alleged that a breach of the rules of natural justice had occurred in connection with the making of the decision. Relying on s 5(1)(e) of the ADJR Act, Mr Goodwin alleged that the delegate had failed to take relevant considerations into account. Relying on s 5(1)(e) of the ADJR Act, Mr Goodwin alleged that the delegate had had regard to irrelevant considerations. Relying on s 5(1)(e) and s 5(2)(g) of the ADJR Act, Mr Goodwin asserted that the decision was an unreasonable exercise of power and, lastly, relying on s 5(1)(j) of the ADJR Act that the decision was otherwise contrary to law.

3    Mr Goodwin’s challenge to the decision is not made on the basis that the statutory processes required to have been followed in the making of the decision were not followed. It is necessary, however, in setting out a chronology of relevant events, to briefly refer to the scheme of the Australian Federal Police Act 1979 (Cth) (“AFP Act”) noting that a more detailed survey is provided by Griffiths J at [20]-[42] of Coutts v Close [2014] FCA 19.

4    Part III of the AFP Act deals generally with the staffing of the AFP. On behalf of the Respondent (“Commonwealth”), the Commissioner has all the rights, duties and powers of an employer in respect of employees of the AFP: AFP Act, s 23. Pursuant to s 24 of the AFP Act, the Commissioner may engage persons as employees. Pursuant to s 28 of the AFP Act the Commissioner “may at any time, by notice in writing, terminate the employment of an AFP employee”.

5    Part IV of the AFP Act deals with the Commissioner’s command powers. Under Part IV, the Commissioner may issue orders with respect to the general administration of, and control of the operations of, the AFP: s 38.

6    Part V deals with professional standards and AFP conduct and practice issues. Pursuant to the scheme, a complaint may be made in relation to the conduct of an AFP appointee: s 40SA. Div 3 of Part V deals with the action that may be taken in response to misconduct by an AFP appointee.

7    As earlier stated, five complaints were made against Mr Goodwin. The complainant was a female AFP appointee who worked with Mr Goodwin at Camp Mountain. Broadly stated, the complaints made fell into two categories. Four of the complaints asserted that Mr Goodwin had made inappropriate comments in the workplace. Numerous conversations were relied upon and the assertion that inappropriate remarks were made by Mr Goodwin were based on those remarks being offensive because of their sexist, sexualised or racist nature. The second category of complaint was labelled as an “unlawful traffic stop”. The complainant asserted that whilst on duty and in an unmarked patrol vehicle driven by Mr Goodwin, Mr Goodwin chased down another vehicle, required it to pull over and stop and pretended to conduct a license check of the driver. The “traffic stop” was asserted to have been done knowingly unlawfully – Mr Goodwin having no lawful authority to conduct a traffic stop in Queensland.

8    The complaints made against Mr Goodwin were the subject of a Professional Standards Investigation conducted pursuant to processes provided for under Part V of the AFP Act. After conducting interviews with Mr Goodwin and otherwise completing its investigation, the investigator prepared a report (“PRS Report”) which set out findings that the investigator proposed to make. On or around 31 October 2018, the PRS Report was provided to Mr Goodwin for his comment. Once Mr Goodwin’s response was received, the PRS Report was finalised. Each of the proposed findings of relevance to this judicial review application were confirmed.

9    Relevantly, the PRS Report made findings that:

(i)    Between 22 January 2018 and 20 March 2018, Mr Goodwin acted without courtesy and respect when he repeatedly made inappropriate comments, which offended others, whilst at Camp Mountain. This conduct was found to have seriously breached cl 8.4 of the AFP Code of Conduct (“Code of Conduct”), set out at paragraph [8] of the Australian Federal Police Commissioner’s Order on Professional Standards (CO2) (“Commissioner’s Order 2”). The conduct was categorised as “Category 3” conduct;

(ii)    In February 2018, Mr Goodwin failed to comply with Australian laws when the executed traffic stops without lawful authority while on duty. That conduct was found to have seriously breached cl 8.5 of the AFP “Code of Conduct”. That conduct was also found to have been “Category 3” conduct.

10    Clauses 8.4 and 8.5 of the Commissioner’s Order 2, under the heading “AFP Code of Conduct”, provide as follows:

8.4    An AFP appointee must act with fairness, reasonableness, courtesy and respect, and without discrimination or harassment, in the course of AFP duties.

8.5    An AFP appointee must comply with all Australian laws. For this purpose, Australian law means any:

•    act, or any instrument made under an “Act”;

•    law of a state or territory, including any instrument made under such a law.

11    The findings made that Mr Goodwin’s conduct fell within “Category 3” was made in the context of provisions found in Subdiv E of Div 1 of Part V of the AFP Act in which conduct is characterised, according to its seriousness, into four categories. Section 40RP relevantly characterises Category 3 conduct in the following terms:

(1)    The Commissioner and the Ombudsman may determine under subsection 40RM(1) that conduct of a particular kind is to be category 3 conduct for the purposes of this Act only if they are satisfied that:

(a)    conduct of that kind:

(i)    is serious misconduct by an AFP appointee; or

(ii)    raises the question whether termination action should be taken in relation to an AFP appointee; or

(iii)    involves a breach of the criminal law, or serious neglect of duty, by an AFP appointee; and

(b)    conduct of that kind does not raise a corruption issue.

(2)    Subparagraphs (1)(a)(ii) and (iii) do not limit subparagraph (1)(a)(i).

12    The nature of Category 3 conduct is further identified by the Australian Federal Police Categories of Conduct Determination 2013 made under Part IV of the AFP Act. It is not necessary to canvass the details of that determination other than to note that it states that a Category 3 issue “is serious misconduct as defined in Part V of the Act”: item 4. Whilst not abundantly clear, that reference to the definition of serious misconduct seems to have been an intended reference to the definition given to serious misconduct by s 4 of the AFP Act which in turn refers to the definition of “serious misconduct” given by s 40K as follows:

“serious misconduct” means:

 (a)    corruption, a serious abuse of power, or a serious dereliction of duty; or

(b)    any other seriously reprehensible act or behaviour by an AFP employee, whether or not acting, or purporting to act, in the course of his or her duties as an AFP employee.

13    On or around 8 January 2019, the finalised PRS Report was provided to the “Professional Standards Panel” (“Panel”) for its consideration as to an appropriate sanction. That Panel recommended that Mr Goodwin’s employment be terminated. The Chair of the Panel then wrote to Mr Goodwin on 31 January 2019 and advised that he was considering terminating Mr Goodwin’s employment pursuant to s 28 of the AFP Act. The letter was written on the assumption that the Chair of the Panel would also be the delegate of the Commissioner who would determine what sanction ought to be imposed.

14    To address the submissions made, it is necessary to record some of the remarks made in that correspondence, the most relevant of which are numbered and emphasised in the extract which follows:

(i)    At that time you were notified that as Category 3 issues had been established, the matters would be referred to the Professional Standards Panel for consideration and advice to me as the Delegate and Chair of the Panel regarding the appropriate action to be taken. As you may be aware, section 40TR of the AFP Act allows for a number of actions to be considered, including that your suitability for employment with the AFP be considered.

(ii)    The primary reason I am considering terminating your employment is that, as detailed above, a Professional Standards (PRS) investigation into alleged misconduct by you established that you have seriously breached section 8.4 of the AFP Code of Conduct (which states that an AFP Appointee must act with fairness, reasonableness, courtesy and respect, and without discrimination or harassment, in the course of AFP duties. And section 8.5 of the AFP Code of Conduct (which states an AFP Appointee must comply with all Australian laws.

As you are aware, it is a requirement of your employment that you comply with the AFP’s Professional Standards (see section 39 of the AFP Act) including the AFP Code of Conduct and the AFP Core Values. The AFP's Professional Standards are set out in the Australian Federal Police Commissioner's Order on Professional Standards (C02). The AFP ensures that all employees are aware of their obligations to comply with Commissioner's Orders.

As a result of the breaches of the AFP Code of Conduct you have committed I also have serious concerns about your ability to demonstrate the sound judgement required of an AFP appointee. This is an additional reason that I am considering terminating your employment.

(iii)    Prior to making my decision under section 28 of the AFP Act, I invite you to provide a written response to this letter. You have 14 days, from the date this letter is delivered to you or your representative, to respond to me via the Panel Secretariat, Professional-Standards-PanelOafp.gov.au. In reaching my decision, I will consider any submission you make. You are entitled to provide a maximum of four references; two personal and two official.

On the basis of the above evidence, and any submission you wish to make, I intend to proceed to make a decision on your employment with the AFP in the near future. At this stage, I stress that no decision has been made about your employment status.

15    By correspondence dated 13 March 2019 from Mr Goodwin’s solicitor, Mr Goodwin provided a response to the letter of 31 January 2019. That correspondence argued that Mr Goodwin should not be terminated from his employment for the various reasons set out therein. One of the reasons given was an asserted failure to afford Mr Goodwin the opportunity to address the suitability of a lesser sanction than the termination of his employment. That failure was said to be a denial of natural justice.

16    The solicitor’s response was followed by the termination letter. The author of that letter was not the Chair of the Panel. For reasons not made clear to me, the Commissioner delegated the exercise of his s 28 power to another officer who I have referred to as “the delegate”. The content of the termination letter was the subject of extensive submissions and it is appropriate to set it out in full. For ease of reference I have numbered each of the paragraphs within that letter and emphasised those passages which were the subject of submissions:

1.    I refer to the previous correspondence in this matter including my letter to you titled 'Consideration of Termination of Employment' dated 31 January 2019 (Show Cause Notice) and your response to me dated 10 March 2019 (your response).

Decision

2.    After carefully considering all of the materials before me, I have decided to terminate your employment pursuant to the provisions of section 28 of the Australian Federal Police Act 1979 (Cth) (the AFP Act) effective on the day you receive this notice. You will receive separate advice from Payroll Services regarding your entitlements.

Consideration

3.    I have formed the view that you have failed to comply with the Professional Standards of the AFP, specifically, your actions amount to serious misconduct given:

Between 22 January 2018 and 20 March 2018, Trevor Goodwin (AFP22201) acted without courtesy and. respect when he repeatedly made inappropriate comments, which offended others, while on the premises of the Minister for Home Affairs. This conduct seriously breached section 8.4 of the AFP Code of Conduct, Commissioner's Order on Professional Standards (C02).

Finding: ESTABLISHED

In February 2018, Trevor Goodwin (AFP22201) failed to comply with Australian laws when he executed traffic stops without lawful authority while on duty. This conduct seriously breached section 8.5 of the AFP Code of Conduct, Commissioner's Order on Professional Standards (C02).

Finding: ESTABLISHED

Concerns regarding Investigation

4.    Your legal representative's response claims the Professional Standards investigation was flawed because of a lack of particulars in the allegations and a lack of corroborating evidence. I disagree with these claims, and I am satisfied that the investigation properly established your conduct and gave you a fair opportunity to respond to the allegations against you. Your legal representative has suggested that there was insufficient evidence for a finding that you assaulted a member of the public. No finding of this type was made. It was found that you made offensive comments about supposed interactions with members of the public. I have again read your natural justice response, and nothing in it persuades me that the investigation was unsound. The allegations against you are supported by contemporaneous records from the complainant, who was considered a credible witness. Further, the evidence from your colleagues which suggests that you commonly made remarks of this nature weighs strongly against your outright denials.

Consideration of alternate sanctions

5.    Your legal representative's response also raises concerns about 'there being no reference to alternate, less severe sanctions as affording suitable punishment and/or deterrence to you'. I have given serious consideration to alternate sanctions that may be available, and while I am very aware that termination of employment is a very serious sanction, I am of the view that your conduct is incompatible with you remaining an AFP employee, and that the only appropriate option in this case is to terminate your employment.

Conclusion

6.    I have taken into account the information you provided in your response, particularly your work within your Melbourne airport role and assistance in successful jobs resulting in arrests, your references (including from your team leader. Detective Sergeant McLeod) and the impact that terminating your employment would have on you and your family.

7.    Despite this, I consider your breaches to be sufficiently serious for your employment to be terminated. Your conduct involved extremely vulgar and racist language and sexual harassment towards the only female and most junior member of your team, where she had asked you to stop on several occasions.

8.    You also deliberately conducted a traffic stop knowing that this was not within your authority. This falls far short of the expectations and requirements of AFP employees, and falls to demonstrate the sound judgment expected of an AFP employee. Respect is one of the AFP Core Values, but by your conduct, you have demonstrated a complete lack of respect for your colleague, for your team, and for the good reputation of the AFP. I am particularly concerned with the impact that the conduct could have had on your colleague, who should have been able to come to work and feel safe and free from harassment.

9.    I acknowledge your unblemished service with the AFP since 2015 and what it means to you to be a police officer; however this is lessened by the fact that you denied much of your behaviour in your response to the Show Cause Notice and during your Interviews with Professional Standards.

10.    I note that your response denies a number of the allegations against you. However, as stated above, I do not accept your response and will rely on the findings of the investigation. In light of your denials I do not accept your legal representative's claim that you have made "full and frank admissions" which is strong evidence of remorse and an assurance that you would be deterred from behaving inappropriately in future. Rather, I consider your failure to acknowledge any responsibility for your behaviour as another factor in favour of terminating your employment.

11.    In accordance with section 28 of the Australian Federal Police Regulations 2018 and section 18 of the Commissioner's Orders on Professional Standards, you are reminded that you must not discuss this investigation or anything relating to it with any AFP appointee or any other person unless the communication is approved by PRS. If sought, authorisation will normally be granted by the delegate to discuss your matter with immediate family or for the purposes of obtaining professional services such as counselling or legal advice. In order to obtain approval, however, you will need to contact the investigating officer and obtain a section 18.3 Authority to Disclose.

Support

12.    I understand that the contents of this letter will be difficult to come to terms with. The AFP Employee Assistance Program (EAP), a free, confidential counselling service is available to you and your family from the service date of this notice. If you would like to access the EAP, please contact Benestar directly on 1300 360 364.

was the decision made in breach of the rules of natural justice?

17    It is not in contest that Mr Goodwin was entitled to be accorded natural justice in the making of the decision. The rules of natural justice required that he be given an opportunity to be heard: see Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at [82]-[83] (French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ). Mr Goodwin contended that he was denied an opportunity to make submissions as to alternative sanctions to the termination of his employment. He contended that he was never invited to make submissions on that issue. Indeed, his complaint went further and contended that he was not allowed or permitted to make submissions on that issue.

18    The material before me does not demonstrate that Mr Goodwin was expressly denied an opportunity to be heard as to what sanctions may be imposed upon him short of dismissal. However, Mr Goodwin contended that the content of the letter of 31 January 2019 should be understood to have indicated that any consideration of a sanction other than termination was foreclosed. Such an indication was said to flow from the fact that when the Chair of the Panel referred to sanctions being considered, he referred only to the termination of Mr Goodwin’s employment.

19    The submission is unpersuasive. Fairly read, the letter of 31 January 2019 invited a response from Mr Goodwin on all issues including the appropriate sanction which ought to be imposed.

20    In circumstances where the most severe sanction – termination of Mr Goodwin’s employment – was an option under consideration including because it was the Panel’s recommendation, it was incumbent upon the Chair of the Panel to refer to that option in order to fully identify the range of sanctions under consideration. That a range of sanctions were available to be considered was expressly referred to in the Chair’s letter of 31 January 2019 at (i) of the extract from that letter set out at [14] above.

21    The remainder of the letter does not indicate that all sanctions short of termination were out of consideration. Whilst emphasis was given to termination as an available sanction under primary consideration, that emphasis did not suggest that all other options were foreclosed and the emphasis given to termination implicitly invited a response as to why the most severe sanction should not be imposed. The letter invited Mr Goodwin to respond and expressly stated that “any submission you wish to make” would be considered.

22    It is odd that the letter of 13 March 2019 from Mr Goodwin’s solicitors did not include submissions about alternative sanctions. The correspondence noted that there were “18 options less severe than termination”, but instead of arguing the case for a lesser sanction, the letter argued that Mr Goodwin had been denied an opportunity to be heard as to a lesser sanction. That approach may have been taken because the Panel Chair had indicated in his letter of 31 January 2019 that he was delegated to decide whether Mr Goodwin’s employment would be terminated. As the Panel Chair had already recommended termination, the solicitor’s complaint about a failure to provide an opportunity to be heard may have been implicitly directed to a failure to provide that opportunity at a time prior to the making of the recommendation by the Panel.

23    If the Panel Chair had been delegated to make the decision, a question may have arisen as to whether the decision that termination was the appropriate sanction was tainted by pre-judgment thereby engaging the apprehended bias limb of the principles of natural justice (see the discussion in Luck v Secretary, Department of Human Services (No 3) [2016] FCA 100 at [24]-[50] (Bromberg J). However, despite the earlier indication given by the Panel Chair to the contrary, the Panel Chair did not make the decision to terminate Mr Goodwin’s employment and, on this application, Mr Goodwin did not rely upon that earlier indication in support of his submission that his opportunity to argue for a lesser sanction had been foreclosed. Nor did he contend that the asserted breach of natural justice concerned the making by the Panel of its recommendation.

24    Mr Goodwin has not established that he was denied a proper opportunity to argue for a sanction short of dismissal and this ground of his application must be rejected.

25    Mr Goodwin’s written submissions also contended that natural justice had been denied to him because redactions made on the copy of the PRS Report initially provided to him denied him “proper particulars”. The submission made was insufficiently specific and, faced with the need to demonstrate how the lack of each particular relied upon brought about a practical injustice (Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [60] (Gageler and Gordon JJ)), the contention was not pressed.

were relevant considerations meaningfully considered?

26    Mr Goodwin’s written submissions contended that certain relevant considerations, relevant in the Peko-Wallsend sense (Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39 (Mason J) as considerations which the AFP Act required be considered, were not considered by the delegate. However, as was revealed by the oral submissions made, properly understood, the contention was really a contention that particular relevant considerations had not been meaningfully considered (see Minister for Home Affairs v Omar (2019) 373 ALR 569 at [39]), rather than that those considerations had not been considered at all.

27    The matters said to have been not meaningfully considered were identified by reference to the termination letter. There are four of them as follows:

(i)    that serious consideration had been given to “alternate sanctions” ([5] of the letter);

(ii)    Mr Goodwin’s prior work achievements, references provided by him and the impact of termination upon Mr Goodwin and his family ([6] of the letter);

(iii)    Mr Goodwin’s “unblemished service” ([9] of the letter); and

(iv)    that Mr Goodwin had failed to acknowledge any responsibility for his behaviour ([10] of the letter).

28    That each of those matters raised a relevant consideration (in the Peko-Wallsend sense) was not conceded by the Commissioner. I will presume that each matter did raise a relevant consideration as, despite the making of that presumption in Mr Goodwin’s favour, his case is nevertheless not established.

29    Mr Goodwin contended that I should accept, as a matter of fact, that no meaningful consideration was given by the delegate to the four matters detailed above. The fact contended for was said to be an available inference to be drawn from the absence of explanation or elucidation on each of those matters in the termination letter.

30    The difficulty with Mr Goodwin’s contention is that the failure of a decision maker to record or explain how a particular matter was meaningfully considered, does not establish (without more) that, as a matter of fact, no meaningful consideration was given to those matters when they were considered. Where a decision maker is obliged to give reasons for a decision, the absence of elucidation in the reasons provided may point to the absence of meaningful consideration. However, where that is not the case, the absence of an explanation may be no more than a consequence of the absence of an obligation to provide such an explanation.

31    As the High Court (French CJ, Bell, Keane and Gordon JJ) said in Plaintiff M64 of 2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at 25 (emphasis added):

It is well settled that in the context of administrative decision-making, the court is not astute to discern error in a statement by an administrative officer which was not, and was not intended to be, a statement of reasons for a decision that is a broad administrative evaluation rather than a judicial decision. It is possible that error of law on the part of the Delegate might be demonstrated by inference from what the Delegate said by way of explanation of his decision; but it must be borne in mind that the Delegate was not duty-bound to give reasons for his decision, and so it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate. Further, “jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power”; but here the plaintiff does not show that relevant material was ignored simply by pointing out that it was not mentioned by the Delegate, who was not obliged to give comprehensive reasons for his decision.

32    As Mr Goodwin accepted, there was no obligation on the part of the delegate to provide reasons for the decision he made. Little may be taken in support of Mr Goodwin’s contention, from the brief explanation for the decision that was provided in the termination letter. The content of the letter and the extent of explanation there given for the decision reached by the delegate was unexceptional. The delegate’s decision was effectively the third stage of a process in which matters had been extensively investigated and recorded including in the PRS Report, by the recommendation made by the Panel and in the extensive response provided by the letter from Mr Goodwin’s solicitors. The delegate recorded that he had “carefully considered all of the material before [him]”. Each of the matters impugned by Mr Goodwin are referred to in the termination letter. There is nothing to suggest that they were not meaningfully considered. Furthermore, the explanation given as to why Mr Goodwin’s employment was terminated is both clear and cogent. Although not determinative, clarity and cogency tend to indicate that the issues considered were the subject of an active, intellectual engagement.

33    There is, in my view, nothing to suggest, let alone sustain an inference that there was a failure by the delegate to meaningfully consider any of the matters relied upon by Mr Goodwin.

Did the delegate take into account any irrelevant considerations?

34    An irrelevant consideration is a consideration that is impermissible for a decision-maker to take into account: Aerocare Flight Support Pty Ltd v Transport Workers’ Union of Australia and Others (2018) 261 FCR 175 at [21] (Jagot, Bromberg and Rangiah JJ).

35    Mr Goodwin contended that the following observation set out at [10] of the termination letter demonstrates that the delegate took into account an irrelevant consideration:

Rather, I consider your failure to acknowledge any responsibility for your behaviour as another factor in favour of terminating your employment.

36    Mr Goodwin’s contention is without any merit. Even if the proper question was – whether that consideration is irrelevant (rather than impermissibly irrelevant) – the obvious answer is that it is not. A failure to acknowledge responsibility for misconduct is most obviously relevant to whether termination of employment is an appropriate sanction for an employee who has been found to have been involved in the prior misconduct. It is probative of whether or not the employee is likely to engage in future misconduct and is therefore relevant to whether or not the employment should be brought to an end.

37    The other observation that Mr Goodwin relied upon as demonstrating that an irrelevant consideration was taken into account is found in the Panel Chair’s letter to Mr Goodwin of 31 January 2019 (see at (ii) at [14] above). The Panel Chair there said that he had serious concerns about Mr Goodwin’s ability to demonstrate the sound judgment required of an AFP appointee and that that was an additional reason as to why he was considering terminating Mr Goodwin’s employment. That observation was not made by the delegate in the termination letter and it is not apparent that the Chair’s concern was taken into account by the delegate in making the decision to terminate Mr Goodwin’s employment. Nevertheless, even if that matter was taken into account by the delegate, it would not have involved the taking into account of an irrelevant consideration. The matter referred to was concerned with Mr Goodwin’s capacity to make sound judgments in carrying out his role. It was obviously relevant to whether or not Mr Goodwin could be trusted to continue in that role. It was not impermissible to take that matter into account in deciding that it was appropriate to terminate of Mr Goodwin’s employment with the AFP.

was the decision unreasonable/contrary to law?

38    These two grounds were effectively merged into the unreasonableness ground contended for by Mr Goodwin.

39    Section 5(2)(g) of the ADJR Act adopts the language of what is commonly referred to as “Wednesbury unreasonableness” (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223) – an exercise of power that is so unreasonable that no reasonable person could have so exercised the power. Whilst that formulation reflected the common law test for legal unreasonableness before the High Court’s judgment in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, the modern formulation for the test of legal unreasonableness is arguably different. The question whether s 5(2)(g) of the ADJR Act continues to align with the modern formulation of legal unreasonableness was the subject of consideration in SZVCP v Cho (2017) 250 FCR 225 at [30]-[40] (Markovic J). Like her Honour, I do not need to examine the scope of s 5(2)(g) of the ADJR Act because whether the Wednesbury formulation or the modern formulation of legal unreasonableness is applicable, legal unreasonableness has not been demonstrated by Mr Goodwin in relation to the decision which he seeks to impugn.

40    Relying on the modern formulation of legal unreasonableness, Mr Goodwin contended that the determination made by the delegate that his conduct constituted “serious misconduct” was arbitrary and capricious and therefore legally unreasonable.

41    Reasonable minds may differ as to whether or not particular conduct should be characterised as serious misconduct. However, for legal unreasonableness it is not sufficient to simply establish that reasonable minds might differ on the issue or that another decision-maker might reasonably have made a different decision: Sunshine Coast Broadcasters Pty Ltd v Australian Communications and Media Authority (2012) 209 FCR 518 at [123] (Kenny J). Mr Goodwin’s task carries a far higher burden. Whilst the modern formulation of legal unreasonableness is perhaps more helpful to Mr Goodwin it is nevertheless a “demanding standard”: TTY 167 v Republic of Nauru (2000) 362 ALR 246 at [24] (Gageler, Nettle and Edelman JJ). The threshold for legal unreasonableness was described in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [11] as requiring the decision to be:

sufficiently lacking rational foundation, or an evident or intelligible justification, or … being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power

42    Whether an employee has engaged in serious misconduct is usually heavily dependent on context and the concept of serious misconduct is not readily susceptible to being defined with precision. It is not abundantly clear which formulation of serious misconduct the delegate applied in making his decision. However, whether it was the definition contained in s 40K(3) of the AFP Act or a formulation as expressed under the general law (see North v Television Corporation Ltd (1976) 11 ALR 599 at 609 (Smithers and Evatt J), as an example), Mr Goodwin’s conduct was clearly capable of answering the description serious misconduct.

43    The delegate determined that Mr Goodwin’s actions amounted to serious misconduct given that the conduct “seriously breached” each of cl 8.4 and cl 8.5 of the AFP Code of Conduct. That view was based on the delegate’s acceptance that the investigation had properly established the conduct engaged in by Mr Goodwin as detailed in the PRS Report.

44    Mr Goodwin’s submission sought to gloss over the substance of the delegate’s acceptance that cl 8.4 of the Code of Conduct had been seriously breached by relying on the terms of cl 8.4 to say that acting “without courtesy and respect” could not reasonably be characterised as serious misconduct. The submission was disingenuous. Whilst not all discourteous or disrespectful conduct may amount to serious misconduct, conduct that falls within that description will amount to serious misconduct where it is sufficiently serious to warrant that characterisation. To discern whether or not that characterisation is justified requires the substance of the conduct to be examined and taken into account.

45    When that is done in relation to Mr Goodwin’s conduct, it is unsurprising that the highly offensive sexist, sexualised and racist remarks made with frequency by Mr Goodwin whilst on duty and in the sensitive environment in which those offensive remarks were made, were regarded as Category 3 conduct, a serious breach of cl 8.4, and designated as serious misconduct. The characterisation of that conduct was neither arbitrary nor capricious. It was cogent and fell well within the bounds of reasonableness.

46    In relation to the serious breach of cl 8.5, Mr Goodwin’s contention is even less tenable. The conduct here in question involved not only the traffic stop complained of by the police officer who brought complaints against Mr Goodwin, but a second similar incident involving a traffic stop that Mr Goodwin admitted to have engaged in. Mr Goodwin was found to have acted unlawfully in relation to both incidents. The nature of his conduct was serious. He acted knowingly and deliberately without lawful authority. He pulled over and detained innocent drivers on the pretence that he was authorised to do so. That conduct, engaged in by a police officer employed to uphold and enforce the law, was unquestionably capable of being characterised as serious misconduct.

conclusion AND COSTS

47    For all those reasons, Mr Goodwin’s application must be dismissed.

48    Given that Mr Goodwin’s application has failed, it follows, unless there is some good reason to the contrary, that he should be ordered to pay the Commissioner’s costs of the application. No submission as to costs were made. I will allow Mr Goodwin an opportunity to make a short written submission resisting a costs order if he chooses to do so, but in the absence of any such application, the orders I make will require Mr Goodwin to pay the Commissioner’s costs. Should such a submission be made, the Commissioner should make a short responding submission within seven days of receiving Mr Goodwin’s submission. I will then determine the question of costs on the papers.

Associate:

Dated:    8 July 2020