However, there can be no suggestion that Mr Bennett's decision was based on a contravention of that clause as supporting the discontinuance of services under cl 7.3(a)(xi) because he made no finding as to who was the "customer" or whether the "customer" had used, or suffered or permitted the use by another, of the relevant service in the proscribed way.
For these reasons, we are unable to uphold the contention of the appellants that the decision to disconnect the services was taken in exercise of a power conferred by s 47 of the Act. This is sufficient to dispose of the appeal but out of defence to the careful arguments advanced by Counsel in relation to the remaining grounds of appeal we shall proceed to consider those grounds.
The appellant's second attach concerns the finding that the decision-maker, Mr Bennett, failed to accord to Mr Kendall procedural fairness in arriving at the conclusion that the relevant telephone services had:
"... been advertised in connection with the provision of escort services which is a euphemism for prostitution."
The gravamen of the complaint is that Mr Bennett did not inform Mr Kendall of his intention to arrive at the conclusion or give Mr Kendall an opportunity to make submissions concerning the basis of it.
The learned trial judge held that the conclusion was such an important part of Mr Bennett's process of reasoning that procedural fairness required that it be communicated to Mr Kendall. It was not, his Honour said, self-evident.
The parties were not at issue on the relevant legal principles. It was agreed that the present was not a case where the common law doctrine of natural justice was excluded so that, to paraphrase the language of Mason J in Kioa v West (1985) 159 CLR 550 at 582, Mr Kendall was entitled to know the case sought to be made against him and to be given an opportunity of replying to it. As Mason J pointed out in the same decision (at 584-585):
"What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting."
Put in another way, the content of the obligation to afford procedural fairness must depend upon all of the circumstances of the case. It is clear that procedural fairness does not necessarily require a decision-maker to bring to the attention of a person affected the precise detail of all matters upon which he or she proposes to rely: McVeigh v Willarra Pty Ltd (1984) 6 FCR 587 at 600-601. However, as Kioa v West itself indicates,
a general and unfocussed invitation to make submissions will be inadequate.
Counsel for Mr Kendall specifically disavowed the proposition that procedural fairness required that copies of the relevant advertisements taken into account be forwarded to the solicitors for their comment. The gravamen of the case was that procedural fairness required that the solicitors to told that it was Mr Bennett's view that escort services were a euphemism for prostitution. Presumably the submission was put in that way because all of the advertisements in question were advertisements placed by Mr Kendall who presumably had to be aware of their contents. In part this is reinforced by the fact that the advertisements had been described (other than those in the Yellow Pages) in the statement of the plain clothes senior constable referred to earlier and there was no suggestion in the letter from the solicitors that they had any difficulty understanding the nature of the advertisements. Rather, the point being made was that there had not as such been any advertisement in relation to prostitution.
As has already been indicated, the learned trial judge took the view that the conclusion that the expressions "escort services" and "Relaxation Centre" were "euphemisms for prostitution" was an important part of Mr Bennett's process of reasoning. It was not communicated to the applicant to enable the applicant to make submissions and, in consequence, there had been a breach of the requirements of procedural fairness.
With respect to his Honour, once it is conceded that there was no need to forward a copy of the relevant advertisements because these were known to the applicant, the rules of procedural fairness do not require that the decision-maker communicate specifically the conclusions which the decision-maker may seek to draw from them. If those conclusions were so unreasonable that no reasonable decision-maker could draw them, then the decision would be subject to attack for that reasons, rather than for the reasons that the applicant was not afforded procedural fairness. In the present case,the applicant did not reply by making it clear that the advertisements themselves were not advertisements for the use of the telephone services for prostitution; in the solicitor's letter of 16 September 1992, referred to earlier in these reasons, it was asserted that "there was no evidence to indicate that the relevant telephone numbers have ever been advertised in relation to prostitution". The decision-maker, in forming his decision, took this into account, together with the other information contained in the copy letter from the Police and the solicitor's response. It follows that the applicants have not made out a case that the decision was vitiated for lack of procedural fairness.
The next attack was founded upon s.5(1)(e) of the ADJR Act, read in conjunction with s.5(2)(e), namely, that the decision was vitiated because it was an exercise of a discretionary power at the direction or behest of another person.
This matter was dealt with quite briefly in the judgment appealed against. His Honour said:
"Serious disputes of fact emerge in the material between the generalised letter of 2 August 1992 and the response on behalf of the applicant. No attempt was made to resolve these difficulties and I think on a fair reading of the reasons of Mr Bennett, his decision was based simply on the fact that he was told by the police that they had evidence in connection with the services and that was good enough for him. He did not independently address the question of whether telecommunications network or facilities were being used in relation to the commission of offences against a law of the state."
There is a fine line between saying that a decision-maker has taken into account as evidence what is said by another person in arriving at his or her conclusion and saying that the decision was one made at the direction or behest of another. What is encompassed by the ground referred to in s.5(2)(e) of the ADJR Act is the case where the decision-maker gives no real independent attention to the discretion which is conferred upon him or her, so that the exercise of discretion is really the exercise of that discretion by some other person. In the present case, the decision under challenge was the decision to disconnect the service. That was not a decision made by the Police; it was a decision made by Mr Bennett. In making that decision,
Mr Bennett took into account as a factor in the decision-making process what the Police said had been revealed by their investigations. He was entitled so to do. There was no obligation placed upon Mr Bennett to conduct an independent investigation into the use of the services for prostitution. He was entitled to take into account as evidence what he had been
told by the Police. He certainly did not act at the direction of the Police.
The word "behest" is defined in the Oxford English Dictionary, 2nd Ed, relevantly as "a command, injunction, bidding", stemming from middle English where its meaning was "to command".
This is consistent with its meaning as given in the Macquarie Dictionary, 2nd Revised Ed. of "bidding or injunction; mandate or command."
In the context in which it appears in the ADJR Act, the word "behest" can not simply be a substitution for request. Both words are used against the background of the ordinary administrative law principle that, for a discretion to be valid it must be a real exercise of discretion by the decision-maker, not a acceptance by the decision-maker of a direction by some other person to whom the making of the decision has not been entrusted: cf The Queen v Anderson; Ex parte Ipec-Air Pty Limited (1965) 113 CLR 177 at 189 per Kitto J. There is not evidence to suggest that this was other than a genuine exercise of discretion by Mr Bennett in the present case.
The final matter is whether the decision appealed against was correct in concluding that Mr Bennett:
"... improperly placed an onus on [Mr Kendall] to satisfy [Telstra] that the subject telecommunications services had not been used in or in relation to the commission of offences."
The apparent basis of the challenge was s.5(1)(f) of the ADJR Act, namely, that the decision involved an error of law.
With respect, the question is not one where the concept of onus has any relevance. There was material before Mr Bennett in the form of the statement from the Police officer from which the conclusion could be drawn that the telecommunication services in question were used for the purposes of prostitution. Properly Mr Bennett formed the view that he should afford to the applicant the right to put submissions in reply to the material from the Queensland Police Service. That reply having been given,
Mr Bennett was obliged to consider the whole of the material before him in forming a view whether the services were likely to be used in or in relation to the commission of offences. This he did and concluded, as he was entitled to do on the material, that they were. No error of law appears from his so doing.
As the decision was, however, one that Mr Bennett had no power to make relying upon s.47 of the Act, it follows that the appeal must be dismissed with cost.
I certify that this and the preceding eighteen (18) pages are a true copy of the reasons for judgment of the Court.
Associate:
Date:
Counsel for the appellant: Mr P A Keane QC
with Mr J Sheahan
Solicitors for the appellant: Mallesons Stephen Jaques
Counsel for the respondent: Mr D O'Gorman
Solicitors for the respondent: Robertson O'Gorman
Dates of Hearing: 9 November 1994 Brisbane
31 January 1995
Melbourne