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[1999] FCA 1551
Federal Court of Australia
1999-11-12
Higgins J, Weinberg J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 By application filed on 27 July 1999 the applicant, Colin George Dunstan, seeks review of a decision taken by the first respondent, Gregory Farr, as delegate of the Commissioner of Taxation. By that decision, which is said to have been made on 21 June 1999, Mr Farr refused the applicant a continuation of payment of his salary, as from 1 April 1999. 2 The applicant also seeks review of a decision taken by the second respondent, Michael Monaghan, also a delegate of the Commissioner of Taxation. By that decision, said to have been made on 7 July 1999, Mr Monaghan suspended the applicant from duty, and invited him to submit any matters which he might wish to have taken into account regarding payment of his salary on the ground of hardship resulting from his suspension.
Background to the present application 3 The present application is but the latest in a series of disputes between the applicant and his employer, the Australian Taxation Office ("the ATO"). 4 The applicant was born on 27 September 1955. He is a university graduate, and commenced working in the Commonwealth Public Service in 1982. He resides in the Australian Capital Territory. 5 The applicant harbours longstanding grievances relating to his employment, principally against officers of the ATO and the Human Rights and Equal Opportunity Commission. His grievances stem from his belief that those officers have failed throughout to deal properly with complaints of sexual harassment made by the applicant against a female fellow employee of the ATO. These complaints go back many years. The applicant's dissatisfaction with the manner in which his complaints have been treated has led him previously to institute proceedings in this Court, in 1997, to seek redress. He contends that he has been victimised by having been charged with misconduct under the Public Service Act 1922 (Cth) ("the Act") as a result of having initiated those earlier proceedings. 6 After the applicant was charged with misconduct, his salary was stopped. This occurred in November 1997. The applicant claimed that both he and his dependants were suffering hardship as a result of the decision to stop his salary, and a delegate of the Commissioner of Taxation, Ms Barbara Benson, determined in 1998 that he had demonstrated hardship pursuant to the relevant provisions of the Act. Ms Benson directed that he receive payment of part salary in an amount of $50,000 per annum commencing in June 1998, and continuing thereafter. That amount was subsequently increased to $60,000 per annum. The applicant continued to be paid his salary at that rate throughout the latter part of 1998, and until 1 April 1999. 7 On 4 December 1998 the applicant was arrested and charged with a number of offences after the reported explosion of what was said to be a letter bomb device at Fyshwick Mail Exchange, and the discovery of a number of other similar letters addressed to persons apparently connected to his past grievances. The addressees of those letters included a number of the applicant's fellow employees at the ATO. 8 The applicant was in custody until 19 March 1999 when he was granted bail, on strict conditions, by Higgins J in the Supreme Court of the Australian Capital Territory. The Director of Public Prosecutions for the Australian Capital Territory sought review of this decision. On 9 April 1999, the Full Court of the Supreme Court of the Australian Capital Territory (Miles CJ, Gallop and Crispin JJ) ordered that the applicant's bail be revoked. 9 The applicant was, subsequently, committed for trial on fifty-seven charges - one of breach of s 129(2) of the Crimes Act 1900 (ACT), twenty-eight of breach of s 19 and twenty-eight of breach of s 27(3)(e) of the same Act. He made no application to the magistrate for bail, and was remanded in custody. 10 The applicant's trial was initially fixed for hearing in the Supreme Court on 19 July 1999. On 24 May 1999 he filed a notice of motion seeking bail. On 2 June 1999 Miles CJ dismissed the motion and refused him bail. 11 At about that date, a draft indictment was finally prepared. A number of the charges originally laid against the applicant were withdrawn. Others were added. The most serious of the charges, that laid pursuant to s 129(2), was withdrawn. The number of charges under s 19 was reduced from twenty-eight to ten. The charges under s 27(3) were all withdrawn, and replaced by eleven charges under s 85X of the Crimes Act 1900 (Cth). 12 The applicant subsequently sought leave to appeal to the Full Court of the Federal Court from the decision of Miles CJ refusing him bail. That application was heard over two days on 28 June and 2 July 1999. On 7 July 1999 the Full Court (Whitlam, Madgwick and Gyles JJ) granted leave to appeal, allowed the appeal, set aside the decision of Miles CJ, and granted the applicant bail. In its reasons for judgment, the Full Court concluded that Miles CJ had fallen into error in several respects in refusing the applicant bail. One such error identified by the Full Court was Miles CJ's reliance upon the reasons given by the Full Court of the Supreme Court of the Australian Capital Territory when, on 9 April 1999, it had revoked the applicant's bail. The Full Court of the Federal Court concluded that the Full Court of the Supreme Court of the Australian Capital Territory had lacked jurisdiction to entertain the application to revoke the applicant's bail when it ordered that he be returned to custody. As a result of the decision of the Full Court of the Federal Court on 7 July 1999 the applicant was freed on bail. He has been on bail since that date. His trial has since been adjourned from 19 July 1999. It is now scheduled to take place in November of this year. 13 It can be seen, therefore, that the applicant was detained in custody between 4 December 1998 and 19 March 1999. He was then on bail until 9 April 1999. He was thereafter in custody once more from 9 April 1999 until 7 July 1999, and has been free on bail since that date. 14 In order to understand the nature of the applicant's present complaints, it is necessary to set out several provisions of the Act. 15 Section 63B of the Act deals with the consequences which flow from an officer having been suspended from duty. That section relevantly provides: "63B. (1) Where: (a) an officer has been charged with having committed a criminal offence; or … and the relevant Secretary is of the opinion that it would be prejudicial to the effective operation of the Service, to the interests of the public or to the interests of the officer or his fellow officers if the officer were to continue to perform the duties of his existing office pending the hearing and determination of the criminal charge … the relevant Secretary may, by notice in writing delivered to the officer: … (d) suspend the officer from duty. … (2) Except as provided by subsection (3), (4) or (5) or by section 63C, an officer who is suspended from duty under this section is not entitled to be paid salary in respect of the period during which he is so suspended." 16 Section 63C of the Act, which is referred to in s 63B(2), relevantly provides: "63C. … (2) Where an officer is suspended from duty under section 63B: (a) the relevant Secretary may: … (ii) if the relevant Secretary is satisfied that the officer is suffering or has suffered hardship … direct that the officer be paid the whole or part of the officer's salary for the whole or part of the period of the officer's suspension …" 17 Where an officer is in custody awaiting trial for an offence s 63B has no application. That situation is governed by s 63R of the Act which relevantly provides: "63R. (1) Where an officer is …in custody awaiting trial for an offence: (a) he shall be deemed, for the duration of his …custody, unless and until he is dismissed, to be on leave of absence without pay; … (2) Where an officer … is in custody awaiting trial for an offence, the relevant Secretary … may … if the relevant Secretary … is satisfied that the officer is suffering or has suffered hardship, direct, notwithstanding subsection (1), that the officer be paid the whole or part of the officer's salary for the whole or part of that period of … custody." 18 On 16 December 1998 Mr Farr wrote to the applicant informing him that by reason of the fact that he was in custody he was deemed, pursuant to s 63R of the Act, to be on leave without pay. 19 On 23 December 1998 the applicant's solicitor wrote to Mr Farr requesting that the applicant's salary, or at least part thereof, be paid upon the basis of hardship, as provided for in s 63R(2). 20 In an undated letter received by the applicant's solicitor on 22 January 1999 Mr Farr replied to this request indicating that he was "inclined" to refuse the hardship payment sought, but inviting a further submission in support of any such payment by 29 January 1999, at the latest. This prompted a further submission on behalf of the applicant on 26 January 1999. 21 It must be borne in mind that throughout the entire period after the applicant's arrest on 4 December 1998 the part payment of his salary which had been approved by Ms Benson in June 1998 continued at the rate of $60,000 per annum notwithstanding the fact that he was in custody. Strictly speaking, in that situation the question of hardship needed to be addressed afresh in the light of s 63R(2). 22 After the applicant was released on bail on 19 March 1999 as a result of the orders made by Higgins J, s 63R ceased to have any application. This was recognised by Mr Farr who, on that same date, suspended the applicant from duty pursuant to s 63B. In his letter informing Mr Dunstan of his suspension from duty, Mr Farr invited any submissions which Mr Dunstan might desire to make in support of a claim to hardship pursuant to s 63C(2)(a)(ii) of the Act. 23 The applicant and his solicitors evidently saw little point in writing again to the first respondent setting out once more, this time in relation to s 63C(2)(a)(ii) of the Act, the matters which the applicant had previously relied upon in his solicitor's letters of 23 December 1998 and 26 January 1999. Notwithstanding the fact that no further submission was forthcoming, the applicant's salary continued to be paid from 19 March 1999 to 1 April 1999 at the rate of $60,000 per annum. On that date, without any warning to the applicant, those payments ceased. 24 When the applicant was once again detained in custody on as a result of the decision of the Full Court of the Supreme Court of the Australian Capital Territory to revoke his bail, his suspension from duty pursuant to s 63B which had been activated on 19 March 1999 ceased. Thereafter the applicant was once again deemed to be on leave of absence without pay pursuant to s 63R of the Act. This meant that s 63R(2) again came into play. 25 On 2 May 1999 the applicant wrote to Mr Farr seeking an explanation as to why his salary had ceased to be paid from 1 April 1999. By letter dated 30 April 1999, but only sent on 3 May 1999, Mr Farr informed the applicant that by reason of his bail having been revoked on 9 April 1999 he was, once again, deemed pursuant to s 63R of the Act to be on leave without pay. Mr Farr invited the applicant yet again to make a further submission in support of his claim to hardship, this time pursuant to s 63R(2) of the Act. The applicant made no such further submission, but wrote to Mr Farr on 14 May 1999 requesting that he transfer responsibility for dealing with the applicant's claim to another officer on the grounds of Mr Farr's alleged bias. There was no immediate response to that letter. 26 On 21 June 1999 Mr Farr wrote to the applicant in the following terms: "… I accept that you are suffering hardship. I also accept that the non-payment of your salary is causing hardship to your wife and children." 27 He continued: "Notwithstanding the fact that I accept that you are suffering hardship, I propose not to exercise the discretion conferred upon me to direct that you receive some or all of your salary." 28 Mr Farr then identified the matters which he regarded as relevant to the exercise of his discretion. They were: · The fact that s 63R indicates that salary will not ordinarily be paid to an officer who is in custody pending trial. · The nature of the offences with which the applicant was charged, and the fact that those offences were not only serious but in some instances were also alleged to have been committed against ATO employees. · The strength of the evidence against the applicant, who was said to have admitted openly in court having sent the parcels in question to various addresses including those of ATO employees. · The effect of any decision to grant hardship payments to the applicant upon the standing and reputation of the public service in the eyes of fellow officers and in the eyes of the public. More particularly, the effect upon morale within the public service of any such payments being made. 29 Mr Farr indicated to the applicant that he proposed to give the "presumption of innocence", which the applicant called in aid, little or no weight. He indicated, however, that even if the "presumption of innocence" were to be given significant weight, the applicant had not made out a case on hardship grounds for part payment of salary. 30 Mr Farr, having expressed his views in these terms, then characterised his reasoning as "a proposed decision". He invited the applicant to make any further submissions in support of his hardship claim by 2 July 1999. He signified his intent to make a "final decision" on the basis of the material before him on that date. 31 No "final decision" was communicated to the applicant by Mr Farr until 5 August 1999. In the interim between Mr Farr's letter of 21 June 1999 and the "final decision", the applicant was released on bail as a result of the decision of the Full Court of this Court on 7 July 1999. The applicant's release on bail led to a new notice being issued under s 63B of the Act. That new notice, which was issued by Mr Monaghan, the second respondent, informed the applicant that he was once again suspended from duty from 7 July 1999. It invited yet another submission in support of any claim which the applicant might wish to make for a hardship payment of salary, this time pursuant to s 63C(2)(a)(ii) of the Act. Mr Monaghan stipulated that any such submission should be received within thirty days of 7 July 1999. 32 On 16 July 1999 the applicant wrote to Mr Monaghan in response to the notice of 7 July 1999 requesting yet again that his salary be paid on the grounds of hardship. He referred, in support of his request, to the finding made by Mr Farr on 21 June 1999 that he was suffering hardship and that the non-payment of his salary was causing hardship to his wife and children.
The application to this Court and subsequent events 33 On 27 July 1999 the applicant instituted the present proceedings seeking judicial review of the "decisions" identified above. Events soon overtook this application. As noted earlier, on 5 August 1999 Mr Farr made his "final decision" in relation to the applicant's claims. Mr Farr directed that salary payments be made to the applicant pursuant to s 63R(2) to the extent that those payments had already been received between December 1998 and March 1999. However he otherwise refused the applicant's request for payments pursuant to s 63R(2). The effect of this decision was that the applicant was permitted to retain the salary paid to him between 4 December 1998 and 1 April 1999 which might otherwise have had to be refunded to the ATO. However, the applicant would receive no salary for the period between 1 April 1999 and 7 July 1999. 34 Mr Farr set out in detail his reasons for this decision. He once again indicated that he accepted that the applicant and his dependants were suffering hardship by reason of non-payment of his salary. He stated that he took into account the fact that the Full Federal Court had, in its reasons for judgment, expressed the opinion that the decision of the Full Court of the Supreme Court of the Australian Capital Territory on 9 April 1999 revoking the applicant's bail had been made without jurisdiction, and that the applicant ought not to have been thereafter detained in custody. He pointed out, however, that this fact had little relevance since the applicant would, in any event, have been suspended under s 63B of the Act. The question of hardship would then have arisen pursuant to s 63C(2)(a)(ii), and the principles regarding payment pursuant to that provision would be essentially the same as those raised by s 63R(2). 35 The application to this Court was further overtaken by subsequent events when, on 28 September 1999, a few days before the hearing of this matter, Mr Monaghan finally wrote in response to the applicant's letter of 16 July 1999. Mr Monaghan informed Mr Dunstan that he had decided that he should receive a hardship payment pursuant to s 63C(2)(a)(ii) of the Act. Mr Monaghan determined that this should take the form of a part payment of salary fixed at $35,000 per annum. That part payment of salary would be paid after Mr Dunstan had used his leave credits. 36 Mr Monaghan attached to his letter of 28 September 1999 a statement of reasons for his decision dated 23 September 1999. In that statement of reasons Mr Monaghan noted that Mr Dunstan had been receiving a part salary of $60,000 per annum between 4 December 1998 and 1 April 1999, when his salary was terminated. That figure of $60,000 per annum had been based upon Ms Benson's findings of hardship in June 1998. Mr Monaghan also noted that the applicant had available to him two months of leave credits, and that it was normal ATO practice to require accrued leave credits to be taken before any hardship payments were made. 37 Mr Monaghan then observed that the Public Service and Merit Protection Commission ("PSMPC") Disciplinary Handbook provided that the seriousness of the charges confronting an officer ought not to be taken into account in determining whether hardship payments ought to be made. Finally, Mr Monaghan stated that he had taken into account the impact upon public servants, and the perception of the community, of making payments to the applicant from public funds in circumstances where the applicant had admitted sending through the post to public officers items which, in the circumstances, "could have caused them alarm". Mr Monaghan concluded, nonetheless, that the dependants of an officer suspended pursuant to s 63B of the Act should not be made to suffer undue hardship prior to any determination of guilt on the part of the suspended officer.
Conclusions 38 It seems clear that the applicant faces an immediate obstacle in seeking to have the decisions identified in his application of 27 July 1999 subjected to judicial review. 39 The "decision" taken by the first respondent on 21 June 1999 is not a "decision" of a kind which is amenable to review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). For a determination to be a reviewable decision it will generally, though not always, entail a decision required by or authorised by a statute which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration - Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337 per Mason CJ. The provisional view expressed by Mr Farr in his letter of 21 June 1999 may be regarded as a conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision, that ultimate decision not having been taken until 5 August 1999. That ultimate decision self evidently is not the subject of the application for review which was filed on 27 July 1999. 40 Nor can the "decision" taken on 21 June 1999 be regarded as "conduct engaged in for the purpose of making" a decision to which the ADJR Act applies. In Australian Broadcasting Tribunal v Bond (supra) Mason CJ observed at 341-2: "The distinction between reviewable decisions and conduct engaged in for the purpose of making such a decision is somewhat elusive. However, once it is accepted that "decision" connotes a determination for which provision is made by or under a statute, one that generally is substantive, final and operative, the place of "conduct" in the statutory scheme of things becomes reasonably clear. In its setting in s. 6 the word "conduct" points to action taken, rather than a decision made, for the purpose of making a reviewable decision. In other words, the concept of conduct looks to the way in which the proceedings have been conducted, the conduct of the proceedings, rather than decisions made along the way with a view to the making of a final determination. Thus, conduct is essentially procedural and not substantive in character. … It would be strange indeed if "conduct" were to extend generally to unreviewable decisions which are in themselves no more than steps in the deliberative or reasoning process." 41 As regards the "decision" taken by Mr Monaghan on 7 July 1999 (which is identified in the application for review as the second decision under challenge), it plainly lacks the characteristics of a decision which may be subject to review under the ADJR Act. It was not until 28 September 1999 that, arguably, a "decision" amenable to judicial review was first taken by Mr Monaghan. 42 It would be quite wrong, in my view, to deal with the applicant's complaint regarding the "decision" taken by Mr Monaghan on 7 July 1999 as though it amounted to a complaint pursuant to s 7 of the ADJR Act of failure to make a decision. Yet this is what the applicant submitted I should do in his submissions before me. Even if it were the case that Mr Monaghan had failed to make a decision which ought to have been made by 27 July 1999, when the application for review was initiated, that failure has now become moot. A decision has been made and there is little point in pursuing the question whether it was made in a timely manner. 43 I bear in mind, of course, that the applicant is unrepresented. The question whether his application for review should be dismissed in its entirety because it appears to have been made prematurely, and to have been overtaken by subsequent events, is, in one sense, difficult. Mr Monaghan's delay of over two months in responding to the applicant's request of 16 July 1999 is open to criticism. 44 The applicant sought leave during the course of the hearing to amend his application so as to encompass within its scope both the decision of Mr Farr taken on 5 August 1999, and also the decision of Mr Monaghan taken on 28 September 1999. 45 In my opinion Mr Farr has had ample time to meet the case advanced by the applicant in relation to his decision of 5 August 1999. I am satisfied that he is in no way prejudiced by my granting leave to Mr Dunstan to amend his application, and I propose to grant such leave. 46 As regards Mr Dunstan's application for leave to amend his claim to encompass the decision taken by Mr Monaghan on 28 September 1999, it is plain that that application must be rejected. It would be unfair to Mr Monaghan to permit Mr Dunstan to mount an attack upon the legality of Mr Monaghan's decision of 28 September 1999 in circumstances where there has been no evidence relevant to the lawfulness of that decision placed before the Court. Mr Monaghan has had no time to prepare his case in response to Mr Dunstan's complaints regarding that decision. 47 I turn then to Mr Dunstan's submissions in relation to Mr Farr's decision of 5 August 1999. In summary the applicant contends that Mr Farr erred in law: · by having regard to an irrelevant consideration, namely the seriousness of the offences allegedly committed by the applicant; · by having regard to an irrelevant consideration, namely the supposed strength of the case against the applicant; · by failing to have regard to a relevant consideration, namely the psychiatric evidence concerning the applicant which mitigated the seriousness with which his alleged offences should be viewed. 48 The principles which govern an alleged failure by a decision-maker to take into account relevant considerations, and an alleged taking into account by a decision-maker of irrelevant considerations, are set out in several well known passages from the judgment of Mason J, as his Honour then was, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-42. I need not repeat in detail what his Honour there stated. It is significant to note the substance of his Honour's statement of principles: · The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he or she was boundtake into account in making that decision. · What factors a decision-maker is bound to consider in making the decision will be determined by construction of the statute conferring the discretion. Where the relevant factors are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. · Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision. A similar principle applies where regard has been had to irrelevant considerations in the making of an administrative decision. · The limited role of a court reviewing the exercise of an administrative discretion must be borne in mind. It is not the function of the court to substitute its own decision for that of the decision-maker by exercising a discretion which the legislature has vested in the decision-maker. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned. 49 The applicant submitted that the fact that the PSMPC Disciplinary Handbook stated that the seriousness of the charges confronting an officer ought not to be taken into account in determining whether hardship payments ought to be made (as noted in the statement of reasons for Mr Monaghan's decision dated 23 September 1999) demonstrated that Mr Farr had taken into account an irrelevant consideration when he made his decision on 5 August 1999. Mr Farr had expressly acknowledged that he had regard to the seriousness of the offences alleged against the applicant when arriving at that decision. 50 I do not accept this submission. In my view, notwithstanding the generality of the language in which the direction in the PSMPC Disciplinary Handbook is expressed - that the seriousness of the charges confronting an officer ought not be taken into account in determining whether hardship payments ought to be made - that direction must be understood in context. It must at least be open to a decision-maker exercising the statutory functions conferred by s 63R(2) of the Act to have regard to the nature and characteristics of the offences alleged. So much was conceded by Mr Dunstan in argument. The offences were said to be have been committed against his fellow employees. That is highly relevant to the effect upon morale within the public service, and the perception of the wider community, of permitting the officer, while detained in custody pending trial, to continue to be paid his salary, or any part thereof. It is in this sense, in my opinion, that Mr Farr referred in his decision of 5 August 1999 to the "seriousness" with which these offences must be viewed. 51 In circumstances where considerations relevant to hardship are not spelt out in the Act, it is largely for the decision-maker, in the light of the matters placed before him by the parties, to determine which matters he regards as relevant, and the comparative importance to be accorded to those matters - Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375 per Deane J. 52 I reject Mr Dunstan's contention that Mr Farr was not entitled to have regard to the supposed strength of the case against him. Where the offences alleged against the applicant are of the type which have been described, and he is said to have admitted sending the items in question (though he has denied having committed the actual offences charged) the decision-maker is entitled to have regard to what is plainly a telling admission. 53 Finally, I reject the applicant's submission that Mr Farr failed to have regard to a relevant consideration when he did not give any weight, or any sufficient weight, to psychiatric evidence concerning the applicant's state of mind at the time of the alleged offences. While it is true that such evidence may be viewed as mitigating the gravity of the applicant's conduct in the event that he is convicted, it would only be of the most marginal significance to the decision which Mr Farr was required to take on 5 August 1999. 54 It follows that the application for review must be dismissed. The delay attending the second respondent's response to the applicant's request of 16 July 1999 makes it appropriate to modify the order for costs which would normally be made in consequence of the application for review being dismissed. The applicant should pay fifty per cent of the respondents' costs of this application. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.
Counsel for the Applicant: The applicant appeared in person
Solicitor for the Respondents: Australian Government Solicitor
Dunstan
Farr
(1990) 170 CLR 321
(1986) 162 CLR 24
(1981) 38 ALR 363