Clement v Australian Bureau of Statistics

REASONS FOR JUDGMENT 1 Kristine Therese Clement is a former public servant who harbours deep-seated grievances against the Australian Bureau of Statistics (ABS) and Comcare. Over a number of years she has aired those grievances in serial applications in this Court, all without success. This time she seeks compensation under s 14 of the Public Interest Disclosure Act 2013 (Cth) (PID Act) because of reprisals she claims were taken against her following three "public interest disclosures" she claims to have made during the course of her employment in the International Accounts Branch of the Foreign Trade Section of the ABS.

Background 2 By an originating application filed on 4 April this year Ms Clement applied for compensation under the PID Act for (in her words): i. Injury resulting from reprisals [which were undefined] ii. Termination of her employment iii. Loss of her house iv. Exclusion of her from the workforce for life, in 1994 or before. v. Reduction in the quality of her life from 1991 3 The originating application was accompanied by an affidavit sworn by Ms Clement on 1 April 2016. 4 The PID Act "provides a means for protecting public officials, and former public officials, from adverse consequences of disclosing information that, in the public interest, should be disclosed; and ... provides for the investigation of matters that are disclosed": s 7. 5 Amongst other things, it grants immunity from "civil, criminal or administrative liability" to people making certain disclosures, described as "public interest disclosures", and civil remedies for those against whom "reprisals" are taken, including a right to compensation: see ss 10, 14. 6 "Reprisal" is defined in s 13(1) as a "detriment" caused to a person I shall call "A", by an act or omission of another person "B", if the act or omission occurs when B believes or suspects that A or another person made, may have made or proposes to make a public interest disclosure and that belief or suspicion is the reason or part of the reason for the act or omission. "Detriment" is defined in subs (2) to include any disadvantage, such as dismissal of an employee, injury of an employee in his or her employment, alteration of an employee's position to his or her detriment, and discrimination between employees of the same employer. 7 "Public interest disclosure" is defined in s 26(1) to mean a disclosure by a current or former public official to a person of a kind listed in column 2 of the table to the subsection provided that all the further requirements listed in column 3 to the relevant item are met. But s 26(2) states that a disclosure made before the commencement of s 26 is not a public interest disclosure. Section 26 commenced, with all but ss 1 and 2 of the Act, on 15 January 2014: PID Act, s 2(1). 8 According to the Explanatory Memorandum to the Public Interest Disclosure Bill 2013: The Bill would largely implement the Government's 2010 Response to the House of Representatives Standing Committee on Legal and Constitutional Affairs report Whistleblower Protection: a comprehensive scheme for the Commonwealth public sector.

The present application 9 By an interlocutory application filed on 27 May 2016, supported by an affidavit affirmed by their solicitor, Catherine Heather Mann, the respondents applied for summary judgment. 10 Section 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) entitles the Court in civil proceedings to give judgment before trial. It relevantly provides: 31A Summary judgment ... (2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospects of success. … 11 Shortly put, the respondents' contention is that the proceeding has no reasonable prospects of success because the disclosures upon which Ms Clement relies were all made in 1991, more than 20 years before s 26 of the PID Act commenced, and are therefore not public interest disclosures within the meaning of the Act. 12 On 10 June 2016, after the respondents' interlocutory application had been fixed for hearing, Ms Clement filed an interlocutory application of her own, seeking an order under r 9.05 of the Federal Court Rules 2011 (Cth) that the ACT Community Services Directorate be joined as a party to the proceeding so that she could seek injunctive relief against the Directorate under s 15 of the PID Act. Her ultimate purpose, the application indicates, was to prevent the Directorate from taking reprisals against her "under its belief or suspicion that she made, may have made or proposes to make a public interest disclosure" and to prevent Housing ACT, which I gather is a division of the Directorate, from evicting her. 13 I listed Ms Clement's interlocutory application for directions on the same day as the hearing. At the hearing I indicated that I would hear the respondents' application for summary judgment first and only make directions with respect to her joinder application if the respondents were unsuccessful.

The applicant's contentions 14 Ms Clement resists the respondents' application for summary judgment on three bases. 15 First, she submits that s 26(2) of the PID Act is an invalid exercise of the legislative power of the Commonwealth because, if applied on its terms, it would defeat the objects of the PID Act. 16 Second, she submits that s 26(2) is unconstitutional because it is "antithetical to the 'peace, order and good government of Australia' the Constitutional qualification of the Parliament's power to legislate" and, since this "defect" is "not curable by any interpretation", it is an invalid exercise of the legislative power of the Commonwealth and must be "struck down". This submission picks up the opening words of ss 51 and 52 of the Constitution. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: … 17 Third, she submits that s 31A of the FCA Act "may offend against both the exclusive investiture of the judicial powers of the Commonwealth in federal courts" under s 71 of the Constitution and the separation of powers provided for in the Constitution. 18 In the alternative, she submits that the matter is unsuitable for summary dismissal.

The invalidity point 19 As to the first point - the alleged invalidity of s 26(2) of the PID Act, Ms Clement relied on ss 15A and 15AA of the Acts Interpretation Act 1901 (Cth). 20 Section 15AA provides: 15AA Interpretation best achieving Act's purpose or object In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation. 21 The objects of the PID Act are set out in s 6. They are: (a) to promote the integrity and accountability of the Commonwealth public sector; and (b) to encourage and facilitate the making of public interest disclosures by public officials; and (c) to ensure that public officials who make public interest disclosures are supported and are protected from adverse consequences relating to the disclosures; and (d) to ensure that disclosures by public officials are properly investigated and dealt with. 22 Ms Clement submitted that, if s 26(2) were valid, it would defeat the objects of the Act, in removing protections from a group who have endured adverse consequences due to their having made public interest disclosures, in favour of provision of an immunity from liability for disclosable conduct, provide sanction for the past, present and future commissions of offences against persons who made public interest disclosures, enable evasion of accountability for the disclosable conduct that led to those disclosures, undermine the integrity of the Commonwealth public sector, discourage the making of public interest disclosures by public officials, ensure that significant public interest disclosures by public officials are not properly investigated, and would protect third parties that aid, abet, counsel or procure both disclosable conduct from Commonwealth public sector entities and reprisals against public interest disclosers. 23 The submission is misconceived. 24 First, s 15AA of the Acts Interpretation Act is only applicable where the provision in question admits of more than one interpretation. Section 26(2) of the PID Act does not. 25 Secondly, the objects of the Act are not defeated if s 26(2) is valid. Whether one provision of an Act conflicts with another provision of the same Act is a matter of statutory construction: Taniela v Minister for Immigration and Border Protection [2014] FCA 375 at [35] (Perry J) (appeal dismissed: Taniela v Minister for Immigration and Border Protection [2014] FCAFC 104). The meaning of s 6, like any statutory provision, must be determined "by reference to the language of the instrument viewed as a whole": Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320 (Mason and Wilson JJ). See, too, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] (McHugh, Gummow, Kirby and Hayne JJ). In Project Blue Sky their Honours went on to say at [70]: Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. 26 The reference to public interest disclosures in s 6 is to public interest disclosures as defined in the Act. By s 26(2) public interest disclosures made before 14 January 2014 are excluded from the definition in s 26(1). In other words, the Act and its objects are only concerned with public interest disclosures made on and from that date. 27 Thirdly, even if there were some incongruence between s 26(2) and the objects of the PID Act as they are expressed in s 6, that would not mean that s 26(2) was in excess of the Commonwealth's legislative power or was for any other reason invalid. That is not the effect of s 15AA. Nor is it the effect of s 15A, which provides: 15A Construction of Acts to be subject to Constitution Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power. 28 The effect of s 15A is not to render Commonwealth legislation invalid. It is to require that legislation be interpreted, where possible, in a manner that preserves its validity: see Victoria v Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 at 501-02. It therefore makes no sense to say, as Ms Clement did, that: interpretation of s 26(2) of the PID Act as being invalid, is the interpretation that complies with section 15A of the Acts Interpretation Act 1901 (Cth) and which meets the objects of the PID Act, as required by section 15AA of the Acts Interpretation Act 1901 (Cth). 29 The invalidity point is entirely without merit. 30 Ms Clement also referred to s 12 of the Acts Interpretation Act, which provides that every section of an Act shall have effect as a substantive enactment without introductory words. But no submissions were directed to it and its relevance is elusive.

The constitutional points 31 Section 78B of the Judiciary Act 1903 (Cth) imposes an obligation on a court not to proceed in a pending cause that "involves a matter arising under the Constitution or involving its interpretation ... unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court". No such notice was given in the present case. But the obligation does not arise in every case in which a constitutional point is taken and it did not arise in this case. A cause does not involve a matter arising under the Constitution or involving its interpretation merely on the say-so of a litigant (Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 at 74 per Toohey J) and it will not involve such a matter if the asserted constitutional point is frivolous or vexatious or is raised as an abuse of process (Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (1999) 95 FCR 292 at 296-8 per French J). See also Danielsen v Oneseteel Manufacturing Pty Ltd [2009] SASC 56; 253 ALR 661. 32 The constitutional points Ms Clement raised may properly be characterised as frivolous. They are certainly without substance. 33 The underlying premise of the first point - that s 26(2) of the PID Act is an invalid exercise of the legislative power of the Commonwealth because it is "antithetical to the 'peace, order and good government of Australia'" - is that the Court has the power to strike down legislation if it concludes that the legislation has this effect. Such a notion was emphatically rejected by all seven justices of the High Court in Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 10. 34 I now turn to the second constitutional point - that s 31A may be unconstitutional as it offends against the separation of powers in the Constitution. Presumably the allegation is that s 31A invests the Court with non-judicial powers. 35 Section 31A was inserted into the FCA Act by the Migration Litigation Reform Act 2005 (Cth). Its purpose was to give the Court greater flexibility in granting summary judgment. Contrary to Ms Clement's argument, the section does not violate the constitutional separation of powers. The power to order summary dismissal is neither legislative nor executive. It is a judicial power, which has been conferred on courts in this country for over a century: see, for example, Bayne v Baillieu (1908) 6 CLR 382. All that s 31A did was modify the more stringent test that had previously applied before the Court could make such an order. For this reason it was described in the Explanatory Memorandum to the Migration Litigation Reform Bill as "a useful addition to the Court's powers in dealing with unmeritorious proceedings". An amendment in identical terms was inserted into the Judiciary Act 1903 (Cth) and the Federal Magistrates Act 1999 (Cth) (renamed the Federal Circuit Court Act 1999 (Cth)) "to provide a uniform approach to summary judgment in the High Court, the Federal Court and the FMC". 36 Chief Justice Brennan pointed out in Nicholas v The Queen (1998) 193 CLR 173 at [23]: The judicial power of a court is defined by the matters in which jurisdiction has been conferred upon it. The conferral of jurisdiction prima facie carries the power to do whatever is necessary or convenient to effect its exercise. 37 Plainly, it is neither necessary nor convenient for the Court to apply its limited resources to hearing a dispute which has no reasonable prospects of success. 38 In general, legislation which purports to direct a court as to the manner and outcome of the exercise of its jurisdiction would tend to impair the character of a court as an independent and impartial tribunal: Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at [39]). But s 31A does no such thing. It merely lays down a general test for the Court to apply in particular cases. See Priestley v Godwin (No 3) (2008) 172 FCR 139 at [26] (Bennett J). Determining a question as between parties as to whether a general test is satisfied in a particular case is quintessentially a judicial function.

Are there no reasonable prospects of success? 39 The exercise of the power of summary dismissal "must always be attended with caution": Spencer v Commonwealth of Australia (2010) 241 CLR 118 (French CJ and Gummow J at [24], cf Hayne, Crennan, Kiefel and Bell JJ at [60]. 40 Chief Justice French and Gummow J observed at [22] that s 31A will apply to a variety of cases, including but not limited to: those which are frivolous or vexatious or an abuse of process; those in which the pleadings fail to disclose a reasonable cause of action and the deficiency is incurable; and those in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be advanced by a permissible amendment. 41 Where there are factual issues "capable of being disputed and in dispute", it will not be sufficient for the Court to conclude that the applicant is unlikely to succeed on the factual issue. Moreover, "[w]here the success of a proceeding depends upon propositions of law apparently precluded by existing authority", unless that authority is a binding decision of the High Court, summary dismissal will be inappropriate because it "must not be used to stultify the development of the law". See Spencer at [25] (French CJ and Gummow J). 42 Ms Clement submitted that summary dismissal was inappropriate in the present case because her application raises multiple issues of fact and law, including the constitutional validity of s 26(2); that the interpretation of the PID Act would aid the development of the law; and that the respondents have read down the grounds of her application. 43 These submissions must be rejected. 44 The application is not based on any contestable question of fact or law. If the respondents are right as to the disclosures upon which she sues, in the absence of any tenable constitutional challenge to s 26(2) Ms Clement cannot succeed. The respondents are undeniably correct in this respect. They have not read down her application. 45 At the hearing, Ms Clement suggested that it did not matter whether the disclosures she said she made were public interest disclosures as defined in the Act, because it is not the actual making of a public interest disclosure but a belief or suspicion regarding a public interest disclosure that is relevant to whether or not a reprisal has been taken under s 13. She said that "[m]ost of the people that take reprisals have never seen evidence that I actually have [made a public interest disclosure]" and the reprisals "are ongoing now". A similar submission was made in the first version of her written submissions but was omitted from the amended version she filed before the hearing. 46 Ms Clement is correct that what matters under s 13 is not the making of a public interest disclosure, but the belief or suspicion that a public interest disclosure has been made, may have been made, or is proposed to be made. But, despite her claim at the hearing that the "reprisals" she suffers are "ongoing", all of the acts and omissions she describes in her affidavit took place in or before 1994. As a matter of logic, these cannot have been motivated by a belief or suspicion that she made a disclosure in or after 2014. As a matter of common sense, it is inherently implausible that they were based on a belief or suspicion that she proposed to do so. Moreover, at no point did she allege that these were the kinds of beliefs or suspicions on which she relied. 47 In fact, her case was entirely based on three "public interest disclosures" she said she made while working as an Administrative Service Officer in the Economic Accounts Division, International Accounts Branch of the Foreign Trade Section of the ABS, which are described in the affidavit filed in support of her originating application. 48 The first consisted of a report in writing to her supervisor made on 30 January 1991 that "the sensitive national trade data holdings were not secured from unauthorised access". The second and third were made on 16 May 1991 and 25 July 1991. Both consisted of reports relating to "serious computer security defects". During oral argument Ms Clement confirmed that the only public interest disclosures with which the proceeding is concerned are those which she alleged occurred in 1991. By definition, then, none of them is a public interest disclosure for the purposes of the Act. 49 Regardless of whether detriment was caused to her or, as she alleged in oral argument, is continuing, she has no entitlement to compensation under the PID Act, which is the sole foundation for her claim. This is an "incurable deficiency" in the application. Even if the respondents were not to dispute her allegations, she would have no reasonable prospects of success. Indeed, she would be bound to fail. Consequently, judgment should be entered in the respondents' favour.

Costs 50 The respondents asked for costs should their application for summary judgment succeed. 51 Section 18 of the PID Act precludes an order for costs unless the Court is satisfied that the applicant instituted the proceeding vexatiously or without reasonable cause or that the applicant's unreasonable act or omission caused another party to the proceeding to incur the costs. 52 The determination of this question should also be approached with caution. 53 The respondents submit that the Court should be satisfied that Ms Clement instituted the proceeding without reasonable cause or, in the alternative, that she should pay the respondents' costs from the time she received their written submissions, if not their interlocutory application and supporting affidavit, because it should have been apparent to her at least at that time that she could not succeed. 54 There appears to be no authority on the operation of s 18 of the PID Act. But the section is in relevantly identical terms to s 570 of the Fair Work Act 2009 (Cth) and there is no reason why a different approach should be taken to proceedings under the PID Act. The relevant principles were summarised by the Full Court in Australian Workers' Union v Leighton Contractors Pty Ltd (No 2) (2013) 232 FCR 428 (Dowsett, McKerracher and Katzmann JJ), (AWU v Leighton). See also Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2) (2015) 230 FCR 337 (Logan, Bromberg and Katzmann JJ). 55 For present purposes it is sufficient to note the following matters. 56 First, the question is whether the proceeding was without reasonable cause at the time it was instituted, not with the benefit of hindsight. In other words, it is not enough that the applicant is ultimately unsuccessful. 57 Secondly, the question must be determined objectively. 58 Thirdly, where, on the applicant's own version of the facts, it is clear that the proceeding must fail, the proceeding will be without reasonable cause. 59 I am satisfied that, considered objectively, the proceeding was without reasonable cause at the time it was instituted. It is clear from Ms Clement's account of the facts, set out in the affidavit accompanying the originating application, that the action was based on public interest disclosures which were excluded from the PID Act on a plain reading of s 26(2). Consequently, it was doomed from the outset. The Full Court observed in AWU v Leighton that satisfaction that the proceeding was instituted without reasonable cause merely enlivens the costs discretion, but there is no reason, in the present case, why the discretion should not be exercised in the respondents' favour. Certainly, Ms Clement did not suggest otherwise. Indeed, she made no submissions on the question of costs, either in writing or orally.

Conclusion 60 For the above reasons, the originating application should be dismissed and Ms Clement should pay the respondents' costs, including the costs of its interlocutory application. In these circumstances, Ms Clement's interlocutory application must also be dismissed. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.