merits of the review application
38 By a further amended application for an order of review dated 20 April 2000, the applicant specified a number of grounds for review. These are considered below under the following headings:
(a) Failure to take into account relevant considerations;
(b) Taking into account irrelevant considerations;
(c) No evidence;
(d) Unreasonableness; and
(e) Procedural fairness.
39 The amendments that resulted in the current form of the application were made following the respondents' production, upon a notice to produce, of various documents, including the submission prepared for the Deputy Commissioner. The applicant should have leave to amend his review application, in order to permit him to raise directly the matters upon which he seeks to rely. The application to amend was not opposed by the respondents.
(a) Failure to take into account relevant considerations
40 Under the AD(JR) Act, the failure to consider a relevant matter is one instance of an improper exercise of power: see s 5(2)(b). This reflects the common law. The principles relating to a challenge on this ground to an exercise of a statutory discretion are set out in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 ("Peko-Wallsend"). To succeed, an applicant for review must show that the relevant decision-maker failed to take into account a consideration that he was bound to take into account in making the decision: Peko-Wallsend at 39. Where the statute does not expressly mention these factors, then they must be determined by implication from its subject-matter, scope and purpose. Moreover, even where a decision-maker fails to take into account a matter as he was bound to do, a court will not necessarily set aside the decision. A factor may be of such little importance that the court may decide that the failure to take it into account could not have materially affected the decision.
41 As already noted, the decision impugned in this case was made under s 26E(2) of the AFP Act. After an amendment effected by s 5 of the Crimes Legislation Amendment Act (No. 2) 1991 (Act No. 123 of 1991), s 26E(2) relevantly read:
Subject to this Act and the regulations, an appointment under section 25, 26 or 26B ends:
(a) when the term of the appointment ends; or
(b) if, before the end of the term, the Commissioner determines, in writing, that the appointment ends on a day specified in the determination, being a day earlier than the day on which the term ends, but not earlier than the day on which the determination was made - on the specified day.
The appointment mentioned in s 26E(2) was as a police officer. The applicant is taken to have been appointed to be a non-commissioned police officer under s 26(1)(a) of the AFP Act, pursuant to s 56(3) of the Australian Federal Police Legislation Amendment Act (No. 2) 1989 (Act No. 153 of 1989): see ss 4, 55(1)(c), 56(3) and 57(2). His appointment was for a fixed term. Fixed term appointments were introduced by Act No. 153 of 1989: see ss 57(2) and 57(4) and the AFP Act, s 26D. The functions of the AFP are described in s 8 of the AFP Act. They include "the provision of police services in relation to … laws of the Commonwealth": see s 8(1)(b)(i). The Commissioner is responsible for the "general administration of, and the control of the operations of" the AFP: see s 13(1). The Commissioner may delegate some of his powers to Deputy Commissioners: see s 15.
42 The applicant conceded that s 26E(2) of the AFP Act confers a comparatively wide discretion on the Commissioner. Any matters which the Commissioner is bound to take into account must be determined by implication from the subject-matter, scope and purpose of the AFP Act. In written submissions, the applicant contended, however, that:
[H]aving set an agenda covering a given range of factual issues, it is incumbent on the decision-maker to take into account evidence on both sides of a proposition forming part of the matters in issue, providing the evidence is not insignificant.
The applicant alleged that the Deputy Commissioner had failed in this duty.
43 Even accepting the premise, that "the decision-maker [must] take into account evidence on both sides of a proposition …", I do not think that it overcomes the primary difficulty faced by the applicant. This difficulty stems from the fact that the decision-maker has not made a statement of his reasons for decision available to him. As already noted, the decision-maker was not obliged to do so, since a decision of this kind does not attract an obligation to give reasons, pursuant to s 13 of the AD(JR) Act or otherwise. Further, save for the evidence referred to below, the respondents themselves did not adduce any evidence about the making of the decision. The Deputy Commissioner gave no evidence at all. For reasons that appear below, the applicant's case on this ground ultimately fails because he is unable to establish what matters the Deputy Commissioner in fact took into account and how much weight he gave them when he made his decision on 30 June 1998.
44 Assistant Commissioner Rodney Leffers deposed that it was the usual practice for him or his personal assistant to deliver to the Deputy Commissioner's personal assistant any submission prepared under the supervision of the Director of Employment Standards regarding a decision of the kind with which this case is concerned. Superintendent Clive Banson, who was the Director of Employment Standards between October 1997 and March 1999, deposed that a submission relating to the applicant ("the submission") was prepared under his supervision for the assistance of the Deputy Commissioner. Banson further deposed that, on 26 June 1998, he forwarded to Leffers the submission with its attachments A to N, under cover of a minute dated 26 June 1998 (mentioned above). I accept that the Deputy Commissioner had that minute together with the submission and its attachments at the time he made the decision under review.
45 The relevant consideration ground of review is predicated largely on alleged errors or omissions in the submission or its attachments. In effect, the applicant submits that, in the absence of evidence to the contrary, the court should conclude that these alleged mistakes were also made by the decision-maker. For the reasons stated below, I reject this submission.
46 I do not accept that, in the absence of evidence from the decision-maker, he is to be taken to have adopted, as his own, the entire contents of the submission that was prepared to assist him in making the decision. The submission made it clear that, in relation to a number of matters, there were different ways in which the Deputy Commissioner could properly evaluate the information before him. One cannot tell what way he chose. Further, there were, as we have seen, a multiplicity of matters discussed in the submission (and raised initially in the s 26E notice). The Deputy Commissioner may have chosen to give some matters no weight, some a little weight, and some a great deal. In the absence of any pertinent evidence, one simply cannot say what weight he gave to any particular matter. There may have been a number of different factors leading to the Deputy Commissioner's decision. There is simply no basis shown to justify the view that his decision was based more heavily on one factor than another. It is well recognised that, in excluding some decisions from the application of s 13 of the AD(JR) Act, the legislature has largely insulated those decisions from review: see Administrative Review Council, Review of the Administrative Decisions (Judicial Review) Act: Statements of Reasons for Decisions, Report No 33 (14 February 1991), pars 152, 175-178. It does not follow, of course, that, in the absence of evidence from the decision-maker, a decision can never be successfully challenged. It may be possible to infer that a decision was made on a particular basis where it is apparent that it could not reasonably have been made on any other. A court may conclude, for instance, that a decision-maker did not take into account relevant material that was not actually before him or drawn to his attention (although in the possession of subordinates).
47 With these considerations in mind, I turn to the first matter raised by the applicant under the relevant consideration ground. The applicant submitted that the decision under review was based on a finding, in connection with the 28 - 29 November 1993 incident, that "the applicant's measures to verify the accuracy of an address given to the AFP on the night of 29 November 1993 were inadequate". He further submitted that Sharp's report, on which the finding was based, ignored his "testimony to Internal Investigations as to the need for urgency in searching the address …". This testimony was, so he submitted, a relevant consideration which the decision-maker was bound to take into account.
48 Neither Sharp's 27 July 1994 report nor the submission prepared for the Deputy Commissioner in June 1998 referred to an asserted need for urgency. It does not follow from this, however, that the Deputy Commissioner failed to take the applicant's statements about urgency into account or that he erred if he did not. One simply cannot tell whether or not the Deputy Commissioner's decision was based, as the applicant would have it, on Sharp's conclusion that the applicant did not take adequate steps to verify the information given to the AFP. The relevant incident took place more than four and a half years before the Deputy Commissioner made the decision. In the interim, the applicant had been formally counselled about his role in it. For all one knows, the decision-maker may have considered that the November 1993 incident was of much less importance than conduct that was closer in time.
49 In any event, even if I were satisfied that the Deputy Commissioner did base his decision upon Sharp's conclusion, I would not accept that the Deputy Commissioner thereby erred as the applicant alleged. This is for three reasons. As already noted, the applicant's assertion, that there was a need to act with urgency, was set down in a record of conversation between him and Sharp on 19 January 1994 made in the course of the IID investigation. The record was attachment H to the submission. As it happened, the submission referred to specific parts of the record, although not to the point at which the applicant referred to the need for urgency. Had the Deputy Commissioner read the whole of the record, however, he would have read the applicant's statements regarding urgency.
50 The applicant submitted that it would be unsafe to assume that the Deputy Commissioner read the record, since the submission and its attachments were received in his office only a day before the decision was made. The fact is, of course, that the evidence does not permit the Court to make any finding as to whether or not the Deputy Commissioner in fact turned his mind to the 19 January 1994 conversation and the applicant's reference to urgency. At most the evidence shows that the Deputy Commissioner could have turned his mind to the matter. There is nothing to establish that he did not.
51 Even if the Deputy Commissioner did not consider the applicant's statement about the need for urgency, no error is shown. The submission and Sharp's July 1994 report (attachment A to the submission) indicated plainly enough what was sought in searching the flat on 28-29 November 1993 and the time-limits under which the AFP members were acting. Sharp's report referred to a "series of premises searches" conducted by the AFP on 28 November 1993; to the preparation of a further information for a search warrant for the flat "[e]ither late on 28 November 1993 or in the early hours of Monday 29 November 1993"; and to the execution of the warrant "[i]n the early hours of 29 November 1993". This partly reflected the applicant's statements in the 19 January 1994 conversation with Sharp that the decision to search the flat was made at about 10.30 pm on 28 November 1993 and the applicant's diary note that the warrant was not executed until 3.30 am the next day. This account differed from the June 1998 submission, which mentioned that the warrant had been executed at about 2.15 am on 29 November 1993. Nothing in this case turns on the discrepancy. It is apparent that sufficient information appeared in the documents before the Deputy Commissioner to acquaint him with the circumstances in which the warrant was sought and executed.
52 Moreover, the issue for Sharp in July 1994 was whether or not the applicant should have checked the AFP file to verify the address that he had been given. It is tolerably clear that there were two critical factors in Sharp's assessment: first, the AFP file contained a record of the actual address of the suspect's boyfriend; and, secondly, the applicant admitted to Sharp that he knew that the boyfriend was known to the police for his involvement in unlawful drug-related activities. Sharp concluded that the applicant "either knew of that record in [the AFP] file, or ought to have known of it". The circumstances were described in some detail at pars 30 to 32 of the submission. The submission specifically referred to a part of the record of the 19 January 1994 conversation that established the applicant's knowledge - knowledge that he did not subsequently deny. The applicant did not specifically allege that he would not have had time to check the file before the warrant was executed, although this claim may have been implicit in his reference to the need for urgency. The allegation would have been difficult to maintain, however, in light of the fact that there were some four or five hours between the decision to apply for a search warrant and its execution at the flat. Indeed, it may be implicit in Sharp's finding that the applicant took inadequate steps to check the boyfriend's address that Sharp considered there was enough time to have checked the file. It was plainly open to him (and the Deputy Commissioner) to take this view. The applicant raised many matters, including this one, in his conversation with Sharp, but Sharp was not obliged to refer specifically to every one. I reject the applicant's submission that, in the circumstances, the applicant's claim of urgency was a matter of the kind that the Deputy Commissioner was bound to take specifically into account in making the decision under review.
53 The next error alleged under the relevant consideration ground was the Deputy Commissioner's failure to consider the role of the case officer in relation to the prosecution of charges. The applicant submitted that the impugned decision was based on a finding that he "may have shown poor judgement and disregard for best practice" in connection with a charge for the possession of cannabis seized on 22 April 1994. In making this finding, the Deputy Commissioner did not, so the applicant submitted, take into account the case officer's responsibility for coordinating the prosecution of charges.
54 For the reasons already given, the material before the Court makes it very difficult to say whether the Deputy Commissioner's decision was based on a finding of the kind alleged. Even if it were, the submission provides no support for the claim that the role of the case officer was not taken into account. Paragraph 52 referred to the applicant's solicitors' contention that:
proper action was instituted given [the accused] was charged with possession of cannabis and the drugs were lodged with the Drugs Registrar. Our client further instructs us that it was not for him to pursue the cannabis issue and accordingly he sent the paperwork to the case officer for [the] Operation … .
The submission further stated that the applicant:
had explained during his II interview with FA Burnage that he had handed all the appropriate documentation to [the case officer] because, as the current Operation['s] case officer, he would have knowledge about the status of the case and when the seizure was able to be destroyed … .
The applicant's contention, that it was the case officer's responsibility to pursue charges and not his, was plainly before the decision-maker. There is nothing to indicate that the Deputy Commissioner did not take that contention into account.
55 The applicant deposed that, on 17 March 1995, he filed a charge against a person as a consequence of finding cannabis in that person's possession on 22 April 1994. Charge sheets and court records confirmed this. The submission stated, however, that "[i]nformation from FA Burnage indicates that [the suspect] was never charged in relation to the cannabis" and it invited the Deputy Commissioner to conclude that the applicant had neglected his duty.
56 In his 5 January 1998 minute, Burnage referred (at pp 19-20) to his interview (elsewhere referred to as a conversation) with the applicant on 4 September 1997, when the applicant said that he had filed charges but that he did not know if the court proceeding was completed. In the course of the conversation, the applicant also said that the case officer had responsibility for pursuing the prosecution. It was apparently because he made no inquiries and knew nothing about the subsequent proceeding that Burnage reached his conclusion that the applicant had "basically … ignored" and failed "to adequately monitor" the cannabis matter. As already noted, Burnage did not accept that this was not the applicant's concern.
57 Burnage did not specifically allege that the applicant had failed to file a charge and it is unlikely that he intended his minute to be read in this way since he in fact set out in his minute the applicant's statement that he had filed a charge as directed. Burnage apparently believed that the complaint about the applicant's inaction regarding the cannabis was substantiated because, although a charge was filed, the applicant had on his own admission completely failed to monitor the progress of the court proceeding. The author of the submission misread Burnage's minute in stating that the applicant had not filed a charge at all.
58 The entirety of Burnage's 5 January 1998 minute and the record of the 4 September 1997 conversation were attachments C and I to the submission. The minute specifically referred to parts of the September 1997 record that indicated that the applicant had initiated, but not monitored, a proceeding concerning the unlawful possession of cannabis. If the Deputy Commissioner read Burnage's minute for himself and the parts of the record to which it referred, he would have appreciated the nature of the applicant's default as Burnage saw it. Moreover, the applicant's solicitors' letter of 30 March 1998, which was attachment E to the submission, also stated that the applicant had laid a charge and identified the alleged default as the applicant's failure to pursue the matter further. There is nothing to show how much, if at all, the matter of the cannabis weighed in the Deputy Commissioner's mind. If it was among the matters that he took into account, there is nothing to show that he was not alive to the actual position, as confirmed by the applicant's solicitors' letter. The evidence before the Court does not justify the inference that the Deputy Commissioner proceeded in error.
59 Under the relevant consideration ground, the applicant also submitted that the decision was based on a finding, in connection with the 22 April 1994 incident, that he "may have shown poor judgement and disregard for best practice in relation to testing a firearm seized" on that day. In making that finding, the Deputy Commissioner did not, so the applicant submitted, take into account his "testimony to Internal Investigations as to the role of Regional Firearms Officer, Sergeant Eric Riley, in supervising the test; the fact that the two rounds used in the test were not necessary exhibits in their original state; or the fact that the applicant successfully gave the required evidence of the capability of the firearm" at a subsequent trial.
60 For reasons already outlined, I reject the submission that the Deputy Commissioner's decision can be shown on the evidence before the Court to be based on a finding that the applicant "may have shown poor judgement and disregard for best practice in relation to testing a firearm". In the absence of evidence, one simply cannot say whether the Deputy Commissioner acted on any such basis. Even if I were of the contrary view, I would reject the submission that it has been shown that the Deputy Commissioner did not take into account the applicant's statements regarding the role of the Regional Firearms Officer. The submission clearly sets out the applicant's claim that he discharged the firearm in the presence of the Firearms Officer. It referred to his response, as conveyed by his solicitors in their letter of 30 March 1998, as recorded in his conversation with Burnage on 4 September 1997, and as narrated by Burnage in his subsequent minute. The submission also related that the Regional Firearms Officer could neither confirm nor deny his presence. As already noted, the solicitors' letter, the record of conversation, and Burnage's minute were attachments to the submission. In these circumstances, I am unable to accept that the Deputy Commissioner failed to consider the applicant's account of the testing of the firearm.
61 The applicant also claimed that the Deputy Commissioner failed to consider that the ammunition rounds used by him in testing the firearm were not necessary exhibits in their original state, and that he successfully gave evidence of the firearm's capability during a subsequent trial. For reasons already given, the applicant cannot make out the premise upon which this submission depends, namely, that the impugned decision was based on a finding relating to the testing of the firearm. In any event, the submission specifically stated, in par 55, that, the applicant's "solicitor states that his client denies that the action of test firing the Tokarov pistol potentially destroyed evidence, being one of the rounds of ammunition that was seized with the pistol". The applicant's claim was therefore squarely before the Deputy Commissioner, and there is nothing to suggest that he did not take it into account.
62 For present purposes, I accept that the applicant successfully gave evidence concerning the firearm at a trial in May 1997. I do not accept, however, that this was a matter that the Deputy Commissioner was bound to take into account. The issue raised by the s 26E notice and before the Deputy Commissioner was whether the applicant had shown poor judgment and disregard for best practice in testing the firearm as he did. That he gave evidence about the capability of the firearm does not meet the criticism that the procedures adopted by him were not best practice.
63 Finally, under the relevant consideration ground, there was the matter of the Forensic Services Book. On 9 May 1997, the applicant gave evidence in criminal proceedings that he had test fired the pistol on 15 July 1994. The record of the 4 September 1997 conversation sets out the following exchange between Burnage and the applicant:
Q334 With respect to qualifications, I have a forensic services book in my possession, which talks about fire arms and ballistics procedures manual, in fact I was indicated by Mr pryor that, when I contacted him, that the procedures outlined in this manual were those that he followed with respect to testing the fire arms and the qualifications that he would possess. Have you ever seen this manual before?
A No, I have not.
Q335 Do you have any knowledge of what would be contained within this manual?
A No, I do not.
Q336 Did you follow any procedure with respect to when you tested the fire arm and by that, I mean, did you keep any notes or did you take any photographs?
A No, I did not.
64 The record indicated (at Q340) that the firearm was ultimately forwarded for testing again to an AFP member in Canberra by the name of Pryor. In his 5 January 1998 minute, Burnage stated (at p 41) that the applicant:
states that he did not take any notes nor record by any other means the procedure he followed with respect to the testing of the firearm. He also states that he has no knowledge of the 'Forensic Services Book' and in particular the chapter relating to firearms and ballistics procedures.
65 The submission set out (at pp 20-21) the conclusions reached by Burnage, stating:
As a result of his II investigation FA Burnage came to a number of conclusions with regard to [the applicant's] testing of the firearm himself, rather than following the usual procedure of sending it to the firearms section in Canberra. The investigation report states, '[the applicant] claims that his actions were under the express control of the Regional Firearms Officer Federal Agent Eric Riley … he did not take any notes nor record by any other means the procedures he followed with respect to the testing of the firearm. He also states that he has no knowledge of the 'Forensic Services Book' and in particular the chapter relating to firearms and ballistics procedures … the actions of [the applicant] on this occasion and in particular the destruction of evidence by utilising the seized ammunition in the pistol for testing purposes is not what would normally be expected of a senior and experienced Federal Agent. His actions on this occasion are found to be totally inexcusable (point 4.5 p.41 Annex C). FA Burnage was also able to establish that [the applicant] had apersonal interest in firearms and other AFP members interviewed proposed that this was his motivation for conducting the testing [sic] firing himself.
The submission concluded with the comment that:
On this matter you may conclude that [the applicant] should reasonably have known that it was the usual procedure for seized firearms to be tested in Canberra and a police statement obtained to prove the test firing and the result. Further, if [the applicant] was not familiar with this investigational procedure he should have consulted with FA Ashton, the operational commander who delegated the task to him, to ascertain the appropriate action to take. You may conclude, on the evidence above, that on this occasion [the applicant] has displayed poor judgement, a failure to conform to best practice and has further failed to exercise initiative in his approach to operational duties.
66 The applicant submitted that the Deputy Commissioner ought to have had regard to the fact that there was no Forensic Services Book in existence at the time the applicant test fired the pistol in July 1994. At the hearing, the applicant adduced evidence from a member of the AFP, who was attached to the firearms section at Regional Headquarters between late 1994 and 1999, that the Forensic Services Book on firearms and ballistics was not published until December 1995. The witness said in evidence that he had never seen any other procedures manual relating to firearms and ballistics, although he conceded in cross-examination that "[t]here were no tests carried out on firearms for court-related matters during the time I was in the firearms section", i.e., from late 1994 until 1999. He also said that "if anybody had any question about evidentiary matters concerning ballistics, they would go to the sergeant of the section and see what his recommendations were". In final address, the respondents' counsel handed up to the Court a copy of a document headed "General Order 9 Exhibits". The respondents had led no evidence touching the document, and its precise provenance and operation in July 1994 were not established.
67 The June 1998 submission referred to the "usual procedure" of sending firearms to the AFP in Canberra. There is no evidence to controvert the assumption made by the submission that this was the usual practice in July 1994. Further, the evidence that there was no firearms testing at the AFP's Regional Office from late 1994 is not inconsistent with this assumption (although statements by Riley in a record of conversation with Burnage on 12 November 1997 may be). As already noted, in reiterating what Burnage had said, the submission repeated his statement about the applicant's ignorance of the Forensic Services Book. The applicant never claimed that he had any knowledge of the book prior to Burnage's conversation with him in September 1997. His point was rather that this lack of knowledge could have no bearing on his conduct in July 1994, since the book had not been published by that date.
68 In questioning the applicant in September 1997, Burnage apparently referred to the Forensic Services Book as a source for appropriate testing procedure. As Q336 indicates, his focus was on the nature of the actual procedures used by the applicant, rather than on his lack of knowledge of the manual. It may be recalled that Burnage had initiated a discussion of this matter with the comment, "[t]he subsequent testing of the firearm …is of concern and is in complete contradiction of current AFP policy". Burnage's questions of the applicant and his subsequent minute do not warrant the conclusion that Burnage necessarily proceeded on the assumption that the applicant ought to have known about the book in July 1994, rather than in September 1997 when the applicant was interviewed. The critical fact was that Burnage regarded the applicant's procedure as unsatisfactory. The submission also focused on the unsatisfactory nature of the applicant's procedure and, specifically, his departure from what the author of the submission understood as the then usual procedure of sending fire arms to Canberra for testing. As already noted, there is little evidence before the Court as to what in fact was the usual procedure in July 1994. There was evidence that there was no firearms testing at the AFP's Regional Office from late 1994 and that it was usual to ask Sergeant Riley questions "about evidentiary matters concerning ballistics". The applicant has not established, however, that the usual practice at that time was other than as described in the submission. For the reasons already stated, one cannot say precisely what the Deputy Commissioner relied on in making the decision under review. If he took into account the applicant's procedure and the fact that it was not the usual one, it was open to him to do so. It was also open to him to accord these considerations such weight as he saw fit.