Dobie v Minister for Finance

The delegate's reasons 12 The delegate's decision of 24 March 2021 was, "not to authorise an act of grace payment in this instance". 13 The delegate stated he had had regard to the full contents of the Departmental file relating to his request, including the applicant's previous requests dated 14 February 2017, 1 August 2017 and 31 May 2019. 14 The delegate had regard to the guidelines in the Resource Management Guide No. 401, Requests for discretionary financial assistance under the Public Governance, Performance and Accountability Act 2013. The Delegate also had regard to the guidelines in the Resource Management Guide No. 409, Scheme for Compensation for Detriment Caused by Defective Administration. 15 The delegate noted that the applicant had sought a payment as compensation for a miscarriage of justice. The applicant relied on the conduct of the CDPP during the trial, specifically that a document had been placed before the jury that erroneously stated he had admitted he had not been engaged in a business of any kind during the period of 1 October 2006 and 30 September 2007, which contradicted his defence that he had accidentally claimed GST amounts which were actually owing to another business. The applicant also relied upon a misdirection by the District Court judge in relation to how the jury should consider his defence of mistake of fact. By the time the applicant's conviction was overturned, he had served 321 days in prison, had suffered loss of his business and had experienced a deterioration of his health. The applicant claimed he should be compensated for his losses as there was a presumption of innocence and he had not been convicted under any law. He also considered that his imprisonment and absence of compensation constituted a breach of his human rights. 16 The delegate made the following findings of fact: • You were charged with obtaining a financial advantage by deception contrary to section 134.2 of the Criminal Code. That charge related to your submission of Business Activity Statements to the ATO. • You entered a plea of not guilty, but on 25 November 2015, were convicted and sentenced to two years imprisonment. The sentence contained a direction that you be released after serving 12 months of that sentence on the condition that you give security by recognisance in the sum of $1,000, and be of good behaviour for a period of 2 years. • You appealed your conviction. On 7 October 2016, the Queensland Court of Appeal handed down a judgment R v Dobie [2016] QCA 250, in which the Court allowed your appeal, set aside your conviction and ordered a new trial. In doing so, the Queensland Court of Appeal found that in the original trial, the provision of incorrect documents to the jury, and the misdirection of the jury in relation to your defence of mistake of fact constituted a 'substantial miscarriage of justice'. • The Court of Appeal did not, however, conclude that you were innocent of the offence charged, that the prosecution should not have been commenced, nor that there was insufficient evidence for a jury to convict. In particular, Fraser JA concluded, at paragraph 29 of the judgement "that it was open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt that the applicant acted dishonestly by declaring to be true and correct amounts claimed in the BAS which he knew he was not entitled to claim in the BAS." The other justices of the Court of Appeal concurred with Fraser JA's conclusion. • You were released on bail on 7 October 2016, awaiting retrial. • On November 2016, the CDPP wrote to your lawyers to inform them that the CDPP would not continue the prosecution. A nolle prosequi was entered by the CDPP on 4 November 2016, concluding the prosecution. • In an undated letter signed by the Attorney General, which you provided to Finance, you were advised that you would not be paid compensation under the CDDA Scheme. That reasons for that decision as set out in that letter were that: • the CDDA Scheme does not apply to decisions made by an officer of the State of Queensland; • that the errors of the judge were not related to the conduct of the CDPP; and • that while it was accepted that the CDPP had erred in allowing the unauthorised document to be presented to the jury, that action did not cause your loss as the Appeal Court had found there was other evidence from which the jury could have found you guilty. 17 The delegate concluded: Having considered all the relevant material available to me, I do not consider there to be special circumstances that would make an act of grace payment to you appropriate. In forming that conclusion I note that it is the usual process that decsions of a court are open to appeal to a higher court. I note in your case that the errors of the CDPP and the misdirection by the Judge were remedied by the Queensland Appeals Court, which quashed your conviction. As this is part of the usual process of appeals within the court system I do not consider the outcome of your appeal to be a special circumstance. I also note and give considerable weight to the findings of Justice Fraser in that decision, who found that 'it was reasonably open to the jury ... to be satisfied beyond reasonable doubt that the appellant acted dishonestly [by claiming] amounts ... he was not entitled to.' I also note and give weight to the fact that the Court of Appeal did not acquit you, rather ordered that a new trial be conducted. I note that the CDPP have advised that the decision not to proceed with a retrial referred to as a nolle proseque, was made for 'public policy' reasons, not due to concerns about the sufficiency of the evidence. Those public policy reasons relate to the fact that you had already substantially served the sentence sought by the Commonwealth. While I note that the nolle proseque decision leaves open your assertion that your are innocent at law (and that your detention was unlawful), I consider that the decision by the CDPP is a normal and reasonable approach to the management of prosecutions, which balances the various objectives of the criminal justice system with the need to be prudent with Commonwealth expenditure and avoid waste of the time of the Court. I do not consider that special circumstances relevant to s 65(1) arise in the taking of the decision not to proceed with a retrial. I have had regard to whether Australia's Human Rights obligations under International Law could be considered 'special circumstances', and accept that a breach of your Human Rights in the absence of an alternate remedy, could be considered as constituting a 'special circumstance'. However, based on the information you have provided, I am unable to identify any specific breach of your Human Rights that might create a special circumstance relevant to s 65(1). I note that ICCPR subsection 14(6) does provide an obligation to compensate victims of miscarriage of justice, however that provision only applies to matters 'finally determined'. As your conviction was overturned by the Appeals Court, that provision does not apply to you. I also note that the Australian Human Rights Commission is the appropriate authority to review whether your human rights have been impacted by the Commonwealth and that it is open you to seek a determination in relation to your circumstances. Conclusion I have considered your claims seeking an act of grace payment, however I do not accept that there are special circumstances relevant to section 65 (1) of the PGPA Act. While I accept that the CDPP did provide an unauthorised document to the jury during your trial, and that Judge Wall did mislead the jury, those errors have been remedied by the the decision of the Queensland Court of Appeal. I do not consider that the decision by the CDPP not to proceed with the retrial ordered by the Queensland Court of Appeal gives rise to special circumstances. That decision was made on the basis of the usual public policy considerations, largely related to the fact that you had substantially served the sentence sought by the Commonwealth, and a judgement that there was little value served by proceding with a retrial. While I note your assertion that you should be regarded as innocent under law, and compensated for 'unlawful' imprisonment, I do not accept that the facts of this matter support a conclusion that the nolle proseque approach was unreasonable to the extent that an act of grace payment would be appropriate. (Errors in the original.)

Ground 1: Alleged misunderstanding or misapplication of s 65(1) of the Act 18 The first ground of the Amended Originating Application alleges that: 1. The delegate erred in misconstruing, misunderstanding and/or misapplying the statutory phrase "special circumstances" in s 65(1) of the PGPA Act and/or by conflating the consideration of whether "special circumstances" existed with the consideration of whether it was "appropriate" to make an act of grace payment. 19 The applicant argues that the first ground involves three categories of error. In respect of the first category, the applicant submits that s 65(1) of the Act requires a three-step process: first, the Minister must determine whether "special circumstances" exist; second, the Minister must then determine whether it is "appropriate" to make an act of grace payment; and third, the Minister must determine whether to authorise a payment in the exercise of his or her discretion. It is submitted that the issue of "appropriateness" does not arise until it is first determined that "special circumstances" exist. 20 The applicant submits that to properly undertake the task of evaluating whether "special circumstances" existed, the delegate was required to have regard to: (a) the degree of underperformance and culpability or accountability of the CDPP; and (b) the fact that the applicant was unable to obtain recompense against the Commonwealth for the CDPP's errors. It is submitted that the delegate's failure to undertake any examination of these matters, demonstrates a failure to properly understand, or apply, the statutory concept of "special circumstances". The applicant submits that examination of the "appropriateness" of a payment could only be lawfully conducted if the delegate first properly considered whether "special circumstances" existed. 21 As to the second category of error, the applicant submits that, whereas his case was that a number of circumstances cumulatively amounted to "special circumstances", the delegate only considered in isolation whether each circumstance was a "special circumstance". The applicant relies upon the judgment of White J in BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221 at [41]. 22 As to the third category of error, the applicant submits that the delegate did not appreciate that his decision-making task involved a stepped process, and conflated the first two steps. The third category is intertwined with the first. 23 The respondent submits that the text and purpose of s 65(1) of the Act make it clear that a multi-staged process is not required. The respondent submits that, in any case, matters such as the conduct of the CDPP and the applicant's lack of compensation were considered by the delegate. 24 Section 65(1) of the Act provides that: 65 Act of grace payments by the Commonwealth (1) The Finance Minister may, on behalf of the Commonwealth, authorise, in writing, one or more payments to be made to a person if the Finance Minister considers it appropriate to do so because of special circumstances. Note 1: A payment may be authorised even though the payment or payments would not otherwise be authorised by law or required to meet a legal liability. … 25 Section 65(1) replaced s 33 of the Financial Management and Accountability Act 1997 (Cth) (FMA Act). The provisions are not relevantly distinguishable. Section 33 of the FMA Act was considered in Toomer v Slipper [2001] FCA 981, where Weinberg J held at [31]: The statutory context in which the term "special circumstances" arises in the present case is one in which the Minister is given a discretion to authorise the making of act of grace payments where such payments "would not otherwise be authorised by law or required to meet a legal liability". There are any number of circumstances which may give rise to a claim for a payment of this type. It is impossible to anticipate the situations in which such payments may be warranted. The discretion vested in the Minister is obviously broad. 26 In Tomson v Minister for Finance and Deregulation (2013) 136 ALD 610; [2013] FCA 664, Rares J held at [33]: The discretion conferred on the Finance Minister by s 33(1) of the FMA Act is enlivened if she "considers it appropriate because of special circumstances" to authorise one or more payments to a person. Critically, the section authorises such a payment notwithstanding that it is not made under any law or to satisfy a legal liability. The Parliament did not circumscribe the breadth of the discretion it conferred on the Finance Minister in s 33(1) except to require her to consider that the making of the payment be "appropriate" because of "special circumstances"… 27 The Minister is conferred with a broad discretion to authorise payments if the Minister considers it appropriate to do so because of special circumstances. An object of the Act is, under s 5, to require the Commonwealth and Commonwealth entities to meet high standards of governance, performance and accountability, so what is generally (but not exclusively) contemplated under s 65(1) is authorisation of payments in appropriate cases where those standards are not met. A payment may be authorised even though the payment would not otherwise be authorised by law or be required to meet a legal liability. The Minister's function is to make a subjective judgment as to whether it is appropriate to authorise a payment because of circumstances that he or she considers special. The legislature has not otherwise circumscribed the scope of the Minister's evaluative judgment, as the full range of special circumstances that may make authorisation of payments appropriate is impossible to predict. 28 Having regard to the purpose of s 65(1) and the breadth of the evaluative judgment left to the Minister, it would be surprising if there were a legislative intention to prescribe that the Minister must apply a particular process of reasoning in making that judgment. 29 The phrase, "if the Finance Minister considers it appropriate to do so because of special circumstances", in s 65(1) of the Act envisages an interrelationship and interaction between the circumstances, their specialness and the appropriateness of authorising a payment. It contemplates a melange of those considerations, rather than some neat compartmentalisation or division between them. The provision does not require the Minister to approach the process of decision-making in any particular way. The language and purpose of the provision are inconsistent with any requirement that the Minister must engage in a staged process where it must be first determined whether the circumstances are special and only then whether those circumstances make it appropriate to authorise a payment. 30 Accordingly, the applicant's submissions that s 65(1) of the Act requires a staged process of decision-making, and that a failure to engage in such a process indicates a failure to properly understand or apply the concept of "special circumstances", must be rejected. 31 Further, the applicant's submission that the delegate was required to have regard to the degree of underperformance and culpability or accountability of the CDPP and that the applicant was otherwise unable to obtain recompense must be rejected. Section 65(1) of the Act confers a broad evaluative function on the Minister and the provision is not amenable to any construction requiring those specific matters to be taken into account. In any event, these matters were considered by the delegate. 32 I reject the submission that the delegate only considered the applicant's claims of special circumstances individually and not cumulatively. The delegate found: You have claimed that special circumstances arise from: • The conduct of the CDPP during your trial, • Misdirection of the jury by the trial judge, • Findings of the Queensland Court of Appeal that overturned your conviction, • The lack of compensation for time served in prison in light of your acquittal, and • You consider this situation constitutes a breach of your Human Rights. In short, you consider that you should be compensated by the Commonwealth as you were never been lawfully convicted of taxation offences, but suffered imprisonment, loss of your business and the capacity to earn an income, and due to detrimental impacts on your health during your imprisonment. Having considered all the relevant material available to me, I do not consider there to be special circumstances that would make an act of grace payment to you appropriate. 33 These passages demonstrate that the delegate was conscious that the applicant relied upon a number of circumstances as together constituting special circumstances, but did not consider them to amount to special circumstances that would make it appropriate to authorise a payment. The delegate went on to explain the basis for his conclusion by, in part, referring to each of the circumstances relied on by the applicant and considering whether they individually constituted special circumstances. However, the delegate's consideration of these circumstances coalesced into his conclusion that, "[h]aving considered all the relevant material available to me, I do not consider there to be special circumstances that would make an act of grace payment to you appropriate". In my opinion, that conclusion, considered in the context of the preceding passages, was made by reference to the whole of the relevant circumstances relied on by the applicant. 34 Each of the applicant's three categories of error encompassed in the first ground of review must be rejected.

Ground 2: unreasonable, illogical and irrational reasoning 35 The applicant's second ground of review is as follows: 2. The delegate engaged in unreasonable, illogical and irrational reasoning (and made unreasonable, illogical and irrational findings), and otherwise fell into an error of law, in: (a) giving "considerable weight" to the Queensland Court of Appeal's finding that it was "open" to the jury to have convicted the Applicant without having regard to the presumption of innocence; and (b) finding that the Commonwealth Director of Public Prosecutions' entry of a nolle prosequi "left open" the issue of whether the Applicant was innocent at law of the offence he had historically been charged with (in circumstances where the Applicant was presumed at law to be innocent of such an offence). 36 The delegate gave "considerable weight" to the findings of the QCA that it was "open" for the jury to convict the applicant. The applicant submits that it is difficult to see what reasonable, logical and rational basis exists for giving "considerable weight" to a conclusion that it was merely open to the jury to convict bearing in mind that "open" simply means that a reasonable person could have (but not necessarily would have) concluded that the applicant committed the offence. Further, the delegate made no mention of the presumption of innocence that the applicant was entitled to be afforded. The applicant relies on Briginshaw v Briginshaw (1938) 60 CLR 336 where Dixon J observed at 363, "…weight is given to the presumption of innocence and exactness of proof is expected…" The applicant submits that, whether or not Briginshaw represents a principle of law for administrative decision-making, reasonable, rational and logical decision-makers do not accept or give weight to allegations without giving weight to the presumption of innocence. To do so is to engage in a fact finding and reasoning process that no other reasonable, logical and rational decision-maker would engage upon. 37 The delegate also found, "I note that the nolle proseque [sic] decision leaves open your assertion that your [sic] are innocent at law". The applicant submits that was also wrong, as he is presumed at law to be innocent and the delegate's conclusion to the contrary involves a misunderstanding of the position at law. 38 The respondent submits that there is no requirement under s 65(1) of the Act to consider or apply the presumption of innocence and that the delegate's failure to do so does not make the decision unreasonable, illogical and irrational. 39 In Quintano v Minister for Finance and Deregulation [2014] FCA 531, Nicholas J held at [8]: It is apparent from the language of s 33, that the Minister may only authorise a payment under that provision if he or she considers it appropriate to do so because of "special circumstances". However, what constitutes special circumstances justifying the making of such a payment is for the Minister to determine having regard to any matter that he or she considers relevant consistent with the subject, scope and purpose of the Act. In exercising the discretion under s 33 the Minister must not make a decision that is unreasonable in the legal sense, by which I mean that it must not be capricious, plainly unjust, or otherwise involve an abuse of power… 40 It can be accepted that a decision under s 65(1) of the Act that is legally unreasonable, illogical or irrational involves an error of law. 41 It is necessary to consider the context for the delegate's statements that the findings of the QCA were that it was "open" for the jury to convict the applicant and that the nolle prosequi left open his assertion that he was innocent. The applicant's claim was essentially that he should be compensated because, owing to the errors of the CDPP and the trial judge, he had been wrongly imprisoned and suffered other losses despite never having been lawfully convicted. In considering whether there were special circumstances that made it appropriate for a payment to the applicant to be authorised, the delegate was entitled to consider any of the circumstances that could reasonably bear upon that assessment. Those circumstances included the strength of the case against the applicant apart from the erroneously admitted evidence. If it were clear that the prosecution was always doomed to fail and the applicant was innocent, that might have provided a strong case for compensation. On the other hand, if it was reasonable for the CDPP to have proceeded upon the strength of the properly admissible evidence, that could mitigate against the circumstances being sufficiently special to make authorisation of a payment appropriate. The delegate found that the CDPP had entered the nolle prosequi for public policy reasons as the applicant had already substantially served the sentence sought, not because the admissible evidence was too weak to secure a conviction. There was nothing unreasonable, illogical or irrational about the delegate's reasoning. 42 It may also be observed that the applicant's reliance upon the passage from Briginshaw (at 363) is misconceived. That case does not establish that in making an administrative decision, the decision-maker must always take into account that, under the criminal law, a person is presumed to be innocent of an alleged offence. Nor does it establish that an administrative decision that fails to take into account the presumption of innocence must be unreasonable, illogical or irrational. 43 Ground 2 must be rejected.

Ground 3: failing to properly consider whether the applicant's human rights had been breached 44 The applicant's third ground is that: 3. The delegate erred by failing to properly consider the issue of whether the Applicant's human rights had been breached or, further or alternatively, erred by making illogical and irrational findings (and engaging in illogical and irrational reasoning) connected with that issue. 45 The applicant asserted that a relevant circumstance was that his human rights had been breached. The applicant submits that the delegate accepted that it "was open" to find that the applicant's "detention was unlawful". The delegate accepted that, "Australia's Human Rights obligations under International Law could be considered 'special circumstances'", and that "a breach of your Human Rights in the absence of an alternative remedy, could be considered as constituting a 'special circumstance'". The delegate indicated that he was unable to identify any specific breach of the applicant's human rights, and referred specifically to Art 14(6) of the International Covenant on Civil and Political Rights (ICCPR). 46 The applicant submits that the delegate either failed to properly consider the ICCPR or, alternatively, construed the ICCPR illogically or irrationally. That is said to be apparent in circumstances where there was a provision of the ICCPR which fell precisely within the terms that the delegate indicated may give rise to special circumstances, namely, Art 9(5), which provides that, "[a]nyone who has been the victim of unlawful… detention shall have an enforceable right to compensation". 47 The applicant submits that the delegate made a finding, and engaged in reasoning, that was illogical or irrational. Further, it is submitted that the delegate failed to properly consider the materials before him. In this regard, the delegate was required to undertake the statutory function conferred on him with a proper consciousness and consideration of the materials before him, but he did not do so by not properly considering the terms of the ICCPR. The applicant also submits that the applicant had made a substantial, clearly articulated argument relying on established facts that an act of grace payment should be made to him in circumstances where there had been a breach of his human rights, and that failure to properly consider such an argument gave rise to procedural unfairness, relying on Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24]. 48 There are some obvious difficulties with the applicant's submission. 49 The applicant's submission mischaracterises the delegate's acceptance that the applicant's contention that his detention was unlawful was open as a finding that such detention was unlawful. The delegate reached no conclusion about the lawfulness of the detention. 50 The submission made by the applicant about his "human rights" was: The staff member needs to be aware of each person in Australia has the Human Rights to be protected and given the freedom equality and dignity of every person in Australia. Human rights protects each person in Australia with the Police and all federal and state governments and the organisations that the government do work for. This covers CDPP, ATO, FEDERAL POLICE. In Australia the Human Rights are drawn from the International Human Rights Law. I believe I have 7 Points from the HUMAN RIGHTS LAW that the staff member needs to take into consideration when making judgement on my case. 1. Recognition and equality before the law. 2. Right to life. 3. Protection from torture and cruel, inhuman or degrading treatment. 4. Freedom from forced work. 5. Freedom of movement. 6. Property rights. 7. Privacy and reputation. 51 The applicant's submission made no reference to Art 9(5) of the ICCPR. It made no reference to the ICCPR at all. There was no basis provided for any conclusion that the applicant's detention was unlawful. There was no substantial, clearly articulated argument relying upon established facts that Art 9(5) applied to the applicant's circumstances and should be considered. Accordingly, the passage from Dranichnikov at [24] has no application to the present circumstances. 52 The delegate's failure to consider Art 9(5) of the ICCPR was not irrational or illogical. There was no legal requirement for the delegate to consider that article. 53 Ground 3 must be rejected.

Ground 4: failing to consider or properly consider that the applicant had been the subject of a miscarriage of justice and/or had not been compensated for his wrongful conviction and imprisonment 54 The applicant's fourth ground is: 4. The delegate erred in failing to consider (or, alternatively, properly consider) the issue of whether "special circumstances" existed on the basis of, or by reference to, the fact that the Applicant had been the subject of a miscarriage of justice and/or had not been compensated for his losses associated with his wrongful conviction and associated imprisonment. 55 The delegate acknowledged that the factors the applicant advanced included that he had been subjected to a miscarriage of justice and he had not been compensated for his losses associated with his wrongful conviction and imprisonment. The applicant submits that, despite this, the reasons show that such circumstances were not considered in the context of evaluating whether special circumstances existed. The way the delegate structured his decision was to identify what he considered to be the potential "special circumstances" raised by the applicant's case and then evaluate whether or not he accepted that special circumstances arose in connection with such matters. It is submitted that the reasonable inference available from the structure of the reasons is that, if the delegate had considered the issue of whether or not these matters gave rise to special circumstances, he would have specifically dealt with this in his reasons. As he did not, that gives rise to an inference that such matters were not properly considered by the delegate. 56 As has been indicated, the delegate concluded that he did not consider there to be special circumstances that would make an act of grace payment appropriate. In reaching that conclusion, the delegate expressly took into account the conduct of the CDPP, the misdirection by the trial judge, the findings of the QCA and the absence of compensation. There is no basis for concluding that the delegate failed to consider that the applicant had been subjected to a miscarriage of justice and he had not been compensated for his losses in evaluating whether it was appropriate to authorise a payment because of special circumstances. Further, to the extent that the assertion is that the delegate failed to "properly consider" these matters, no error of law has been identified. 57 Ground 4 must be rejected.

Ground 5: Failing to consider or properly consider the accountability of Commonwealth entities and whether the applicant would be unable to recover compensation against the Commonwealth 58 The applicant's fifth ground is that: 5. In making his decision, the delegate erred in failing to consider (or, alternatively, properly consider): (a) the accountability of Commonwealth entities; and (b) whether the Applicant would be unable to recover compensation against the Commonwealth. 59 The applicant submits that the accountability of Commonwealth entities and whether or not an s 65(1) applicant would be able to recover compensation against the Commonwealth lie at the very heart of s 65(1). It is submitted that the legislature could not have considered that a decision could be made in disregard of such considerations and that such matters were mandatory relevant considerations that the delegate was required to take into account. 60 It is only necessary to observe that the delegate did consider the accountability of the CDPP, finding that its error had been remedied by the QCA, which quashed the conviction as part of the usual process of appeals, and did take into account the absence of compensation for the applicant's imprisonment and other losses. 61 Ground 5 must be rejected.

Conclusion 62 The applicant has not established any of the grounds of his application. The application must be dismissed. 63 The applicant should be ordered to pay the respondent's costs of the application. I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah.