Goodwin v Commissioner of Police

was the decision made in breach of the rules of natural justice? 17 It is not in contest that Mr Goodwin was entitled to be accorded natural justice in the making of the decision. The rules of natural justice required that he be given an opportunity to be heard: see Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at [82]-[83] (French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ). Mr Goodwin contended that he was denied an opportunity to make submissions as to alternative sanctions to the termination of his employment. He contended that he was never invited to make submissions on that issue. Indeed, his complaint went further and contended that he was not allowed or permitted to make submissions on that issue. 18 The material before me does not demonstrate that Mr Goodwin was expressly denied an opportunity to be heard as to what sanctions may be imposed upon him short of dismissal. However, Mr Goodwin contended that the content of the letter of 31 January 2019 should be understood to have indicated that any consideration of a sanction other than termination was foreclosed. Such an indication was said to flow from the fact that when the Chair of the Panel referred to sanctions being considered, he referred only to the termination of Mr Goodwin's employment. 19 The submission is unpersuasive. Fairly read, the letter of 31 January 2019 invited a response from Mr Goodwin on all issues including the appropriate sanction which ought to be imposed. 20 In circumstances where the most severe sanction - termination of Mr Goodwin's employment - was an option under consideration including because it was the Panel's recommendation, it was incumbent upon the Chair of the Panel to refer to that option in order to fully identify the range of sanctions under consideration. That a range of sanctions were available to be considered was expressly referred to in the Chair's letter of 31 January 2019 at (i) of the extract from that letter set out at [14] above. 21 The remainder of the letter does not indicate that all sanctions short of termination were out of consideration. Whilst emphasis was given to termination as an available sanction under primary consideration, that emphasis did not suggest that all other options were foreclosed and the emphasis given to termination implicitly invited a response as to why the most severe sanction should not be imposed. The letter invited Mr Goodwin to respond and expressly stated that "any submission you wish to make" would be considered. 22 It is odd that the letter of 13 March 2019 from Mr Goodwin's solicitors did not include submissions about alternative sanctions. The correspondence noted that there were "18 options less severe than termination", but instead of arguing the case for a lesser sanction, the letter argued that Mr Goodwin had been denied an opportunity to be heard as to a lesser sanction. That approach may have been taken because the Panel Chair had indicated in his letter of 31 January 2019 that he was delegated to decide whether Mr Goodwin's employment would be terminated. As the Panel Chair had already recommended termination, the solicitor's complaint about a failure to provide an opportunity to be heard may have been implicitly directed to a failure to provide that opportunity at a time prior to the making of the recommendation by the Panel. 23 If the Panel Chair had been delegated to make the decision, a question may have arisen as to whether the decision that termination was the appropriate sanction was tainted by pre-judgment thereby engaging the apprehended bias limb of the principles of natural justice (see the discussion in Luck v Secretary, Department of Human Services (No 3) [2016] FCA 100 at [24]-[50] (Bromberg J). However, despite the earlier indication given by the Panel Chair to the contrary, the Panel Chair did not make the decision to terminate Mr Goodwin's employment and, on this application, Mr Goodwin did not rely upon that earlier indication in support of his submission that his opportunity to argue for a lesser sanction had been foreclosed. Nor did he contend that the asserted breach of natural justice concerned the making by the Panel of its recommendation. 24 Mr Goodwin has not established that he was denied a proper opportunity to argue for a sanction short of dismissal and this ground of his application must be rejected. 25 Mr Goodwin's written submissions also contended that natural justice had been denied to him because redactions made on the copy of the PRS Report initially provided to him denied him "proper particulars". The submission made was insufficiently specific and, faced with the need to demonstrate how the lack of each particular relied upon brought about a practical injustice (Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [60] (Gageler and Gordon JJ)), the contention was not pressed.

were relevant considerations meaningfully considered? 26 Mr Goodwin's written submissions contended that certain relevant considerations, relevant in the Peko-Wallsend sense (Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39 (Mason J) as considerations which the AFP Act required be considered, were not considered by the delegate. However, as was revealed by the oral submissions made, properly understood, the contention was really a contention that particular relevant considerations had not been meaningfully considered (see Minister for Home Affairs v Omar (2019) 373 ALR 569 at [39]), rather than that those considerations had not been considered at all. 27 The matters said to have been not meaningfully considered were identified by reference to the termination letter. There are four of them as follows: (i) that serious consideration had been given to "alternate sanctions" ([5] of the letter); (ii) Mr Goodwin's prior work achievements, references provided by him and the impact of termination upon Mr Goodwin and his family ([6] of the letter); (iii) Mr Goodwin's "unblemished service" ([9] of the letter); and (iv) that Mr Goodwin had failed to acknowledge any responsibility for his behaviour ([10] of the letter). 28 That each of those matters raised a relevant consideration (in the Peko-Wallsend sense) was not conceded by the Commissioner. I will presume that each matter did raise a relevant consideration as, despite the making of that presumption in Mr Goodwin's favour, his case is nevertheless not established. 29 Mr Goodwin contended that I should accept, as a matter of fact, that no meaningful consideration was given by the delegate to the four matters detailed above. The fact contended for was said to be an available inference to be drawn from the absence of explanation or elucidation on each of those matters in the termination letter. 30 The difficulty with Mr Goodwin's contention is that the failure of a decision maker to record or explain how a particular matter was meaningfully considered, does not establish (without more) that, as a matter of fact, no meaningful consideration was given to those matters when they were considered. Where a decision maker is obliged to give reasons for a decision, the absence of elucidation in the reasons provided may point to the absence of meaningful consideration. However, where that is not the case, the absence of an explanation may be no more than a consequence of the absence of an obligation to provide such an explanation. 31 As the High Court (French CJ, Bell, Keane and Gordon JJ) said in Plaintiff M64 of 2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at 25 (emphasis added): It is well settled that in the context of administrative decision-making, the court is not astute to discern error in a statement by an administrative officer which was not, and was not intended to be, a statement of reasons for a decision that is a broad administrative evaluation rather than a judicial decision. It is possible that error of law on the part of the Delegate might be demonstrated by inference from what the Delegate said by way of explanation of his decision; but it must be borne in mind that the Delegate was not duty-bound to give reasons for his decision, and so it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate. Further, "jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power"; but here the plaintiff does not show that relevant material was ignored simply by pointing out that it was not mentioned by the Delegate, who was not obliged to give comprehensive reasons for his decision. 32 As Mr Goodwin accepted, there was no obligation on the part of the delegate to provide reasons for the decision he made. Little may be taken in support of Mr Goodwin's contention, from the brief explanation for the decision that was provided in the termination letter. The content of the letter and the extent of explanation there given for the decision reached by the delegate was unexceptional. The delegate's decision was effectively the third stage of a process in which matters had been extensively investigated and recorded including in the PRS Report, by the recommendation made by the Panel and in the extensive response provided by the letter from Mr Goodwin's solicitors. The delegate recorded that he had "carefully considered all of the material before [him]". Each of the matters impugned by Mr Goodwin are referred to in the termination letter. There is nothing to suggest that they were not meaningfully considered. Furthermore, the explanation given as to why Mr Goodwin's employment was terminated is both clear and cogent. Although not determinative, clarity and cogency tend to indicate that the issues considered were the subject of an active, intellectual engagement. 33 There is, in my view, nothing to suggest, let alone sustain an inference that there was a failure by the delegate to meaningfully consider any of the matters relied upon by Mr Goodwin.

Did the delegate take into account any irrelevant considerations? 34 An irrelevant consideration is a consideration that is impermissible for a decision-maker to take into account: Aerocare Flight Support Pty Ltd v Transport Workers' Union of Australia and Others (2018) 261 FCR 175 at [21] (Jagot, Bromberg and Rangiah JJ). 35 Mr Goodwin contended that the following observation set out at [10] of the termination letter demonstrates that the delegate took into account an irrelevant consideration: Rather, I consider your failure to acknowledge any responsibility for your behaviour as another factor in favour of terminating your employment. 36 Mr Goodwin's contention is without any merit. Even if the proper question was - whether that consideration is irrelevant (rather than impermissibly irrelevant) - the obvious answer is that it is not. A failure to acknowledge responsibility for misconduct is most obviously relevant to whether termination of employment is an appropriate sanction for an employee who has been found to have been involved in the prior misconduct. It is probative of whether or not the employee is likely to engage in future misconduct and is therefore relevant to whether or not the employment should be brought to an end. 37 The other observation that Mr Goodwin relied upon as demonstrating that an irrelevant consideration was taken into account is found in the Panel Chair's letter to Mr Goodwin of 31 January 2019 (see at (ii) at [14] above). The Panel Chair there said that he had serious concerns about Mr Goodwin's ability to demonstrate the sound judgment required of an AFP appointee and that that was an additional reason as to why he was considering terminating Mr Goodwin's employment. That observation was not made by the delegate in the termination letter and it is not apparent that the Chair's concern was taken into account by the delegate in making the decision to terminate Mr Goodwin's employment. Nevertheless, even if that matter was taken into account by the delegate, it would not have involved the taking into account of an irrelevant consideration. The matter referred to was concerned with Mr Goodwin's capacity to make sound judgments in carrying out his role. It was obviously relevant to whether or not Mr Goodwin could be trusted to continue in that role. It was not impermissible to take that matter into account in deciding that it was appropriate to terminate of Mr Goodwin's employment with the AFP.

was the decision unreasonable/contrary to law? 38 These two grounds were effectively merged into the unreasonableness ground contended for by Mr Goodwin. 39 Section 5(2)(g) of the ADJR Act adopts the language of what is commonly referred to as "Wednesbury unreasonableness" (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223) - an exercise of power that is so unreasonable that no reasonable person could have so exercised the power. Whilst that formulation reflected the common law test for legal unreasonableness before the High Court's judgment in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, the modern formulation for the test of legal unreasonableness is arguably different. The question whether s 5(2)(g) of the ADJR Act continues to align with the modern formulation of legal unreasonableness was the subject of consideration in SZVCP v Cho (2017) 250 FCR 225 at [30]-[40] (Markovic J). Like her Honour, I do not need to examine the scope of s 5(2)(g) of the ADJR Act because whether the Wednesbury formulation or the modern formulation of legal unreasonableness is applicable, legal unreasonableness has not been demonstrated by Mr Goodwin in relation to the decision which he seeks to impugn. 40 Relying on the modern formulation of legal unreasonableness, Mr Goodwin contended that the determination made by the delegate that his conduct constituted "serious misconduct" was arbitrary and capricious and therefore legally unreasonable. 41 Reasonable minds may differ as to whether or not particular conduct should be characterised as serious misconduct. However, for legal unreasonableness it is not sufficient to simply establish that reasonable minds might differ on the issue or that another decision-maker might reasonably have made a different decision: Sunshine Coast Broadcasters Pty Ltd v Australian Communications and Media Authority (2012) 209 FCR 518 at [123] (Kenny J). Mr Goodwin's task carries a far higher burden. Whilst the modern formulation of legal unreasonableness is perhaps more helpful to Mr Goodwin it is nevertheless a "demanding standard": TTY 167 v Republic of Nauru (2000) 362 ALR 246 at [24] (Gageler, Nettle and Edelman JJ). The threshold for legal unreasonableness was described in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [11] as requiring the decision to be: sufficiently lacking rational foundation, or an evident or intelligible justification, or … being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power 42 Whether an employee has engaged in serious misconduct is usually heavily dependent on context and the concept of serious misconduct is not readily susceptible to being defined with precision. It is not abundantly clear which formulation of serious misconduct the delegate applied in making his decision. However, whether it was the definition contained in s 40K(3) of the AFP Act or a formulation as expressed under the general law (see North v Television Corporation Ltd (1976) 11 ALR 599 at 609 (Smithers and Evatt J), as an example), Mr Goodwin's conduct was clearly capable of answering the description serious misconduct. 43 The delegate determined that Mr Goodwin's actions amounted to serious misconduct given that the conduct "seriously breached" each of cl 8.4 and cl 8.5 of the AFP Code of Conduct. That view was based on the delegate's acceptance that the investigation had properly established the conduct engaged in by Mr Goodwin as detailed in the PRS Report. 44 Mr Goodwin's submission sought to gloss over the substance of the delegate's acceptance that cl 8.4 of the Code of Conduct had been seriously breached by relying on the terms of cl 8.4 to say that acting "without courtesy and respect" could not reasonably be characterised as serious misconduct. The submission was disingenuous. Whilst not all discourteous or disrespectful conduct may amount to serious misconduct, conduct that falls within that description will amount to serious misconduct where it is sufficiently serious to warrant that characterisation. To discern whether or not that characterisation is justified requires the substance of the conduct to be examined and taken into account. 45 When that is done in relation to Mr Goodwin's conduct, it is unsurprising that the highly offensive sexist, sexualised and racist remarks made with frequency by Mr Goodwin whilst on duty and in the sensitive environment in which those offensive remarks were made, were regarded as Category 3 conduct, a serious breach of cl 8.4, and designated as serious misconduct. The characterisation of that conduct was neither arbitrary nor capricious. It was cogent and fell well within the bounds of reasonableness. 46 In relation to the serious breach of cl 8.5, Mr Goodwin's contention is even less tenable. The conduct here in question involved not only the traffic stop complained of by the police officer who brought complaints against Mr Goodwin, but a second similar incident involving a traffic stop that Mr Goodwin admitted to have engaged in. Mr Goodwin was found to have acted unlawfully in relation to both incidents. The nature of his conduct was serious. He acted knowingly and deliberately without lawful authority. He pulled over and detained innocent drivers on the pretence that he was authorised to do so. That conduct, engaged in by a police officer employed to uphold and enforce the law, was unquestionably capable of being characterised as serious misconduct.

conclusion AND COSTS 47 For all those reasons, Mr Goodwin's application must be dismissed. 48 Given that Mr Goodwin's application has failed, it follows, unless there is some good reason to the contrary, that he should be ordered to pay the Commissioner's costs of the application. No submission as to costs were made. I will allow Mr Goodwin an opportunity to make a short written submission resisting a costs order if he chooses to do so, but in the absence of any such application, the orders I make will require Mr Goodwin to pay the Commissioner's costs. Should such a submission be made, the Commissioner should make a short responding submission within seven days of receiving Mr Goodwin's submission. I will then determine the question of costs on the papers. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.