Hussein v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs

(see Regulation 5.32A which commenced on 1 March 2006) 6 The effect of the new regulation would seem to be that detainees may lawfully perform work in detention centres whether for reward or otherwise provided that the detainee requests the allocation to him of the work. 7 By a Notice of Motion filed 20 October 2005 the Fifth Respondent sought an order that the Applicant's claim against him be dismissed pursuant to Order 20 rule 2 of the Federal Court Rules on the basis that the Applicant's claim as against the Fifth Respondent disclosed no reasonable cause of action, was frivolous and was an abuse of the process of the Court. 8 In the Application filed 6 October 2005 the Applicant sought an order directed to the Fifth Respondent 'to acknowledge my complaint and conduct an inquiry with respect to my complaint dated 05/September/2005 and to submit a report to the court and to serve the copy of that report to me within three months'. By the Amended Application filed 17 January 2006 the Appellant substituted a new claim for relief against the Fifth Respondent. The new claim sought an order requiring the Fifth Respondent:- 'a). to conduct or cause an investigation to be conducted with respect to my complaint dated 05/September/2005 and the matters raised in the subject matter in this application according to law; and b). to consider and determine according to law whether or not any person should be prosecuted for any offence disclosed by that investigation; c). to submit the investigation report to the court and to serve the copy of that report to me within three months;' By the Further Amended Application filed 16 March 2006 prepared by the Applicant with the assistance of counsel appearing pro bono, the claims for relief against the Fifth Respondent were further amended by substituting the following prayers for relief against the Fifth Respondent: '4. An order pursuant to s.39B of the Judiciary Act and in the nature of mandamus requiring the Fifth Respondent to consider according to law whether the applicant's allegations made on 9 September 2005 should be investigated. 4A. An order extending time pursuant to s 11 of the Administrative Decisions Judicial Review Act 1977 ("the ADJR Act") to allow the applicant to seek review pursuant to s 5 of the ADJR Act as set out in the Further Amended Statement of Claim. 4B. Pursuant to s. 16(1)(b) of the ADJR Act, an order that: (1) The matter to which the decision relates is referred to the Fifth Respondent for further consideration subject to such directions as the Court may consider fit; 4C. Further and in the alternative, pursuant to s. pursuant to s 16(1)(d) (sic) of the ADJR, an order that: (1) The Fifth Respondent is directed to consider according to law whether the applicant's allegations made on 9 September 2005 should be investigated." 4D. Further and in the alternative, pursuant to s. pursuant to 16(1)(d) (sic) of the ADJR an order that: (2) The Fifth Respondent is directed to investigate whether the applicant's allegations made on 9 September 2005 reveal an offence against a Commonwealth law by any of the persons named in the allegations.'

9 In the Statement of Claim as originally filed the short history of the Applicant's complaints to the Federal Police and the manner in which they had been dealt with were spelt out (see paragraphs 6, 8, 8 (the second number 8), 11, 12 and 13 of the 'PARTICULARS OF RELAVANT (sic) FACTS'). With a re-numbering to eliminate the duplication in respect of 8, these particulars have been repeated in the 'PARTICULARS OF RELEVANT FACTS' in the Further (Amended) Statement of Claim filed 16 March 2006. 10 On 5 September 2005 the Applicant forwarded a facsimile to the Federal Police (Crime Department) in which he expressed his concern about 'a very ill practice' done by GSL (intended as a reference to the Third Respondent) and DNCA (intended as a reference to the Fourth Respondent). In this facsimile the Applicant wrote:- '5. GSL and DNCA have employed lots of detainees to perform many jobs in detention including the kitchen work. For instance food preparation and serving, cleaning, librarian, hair cut, sports assistant, grass cutting, gardening or runner for visit or telephone, distributing of newspaper. These detainees have particular responsibilities of their jobs and they get paid weekly in phone cards or cigarettes.' 11 I might interpose that the Applicant contends that at an earlier point in time he performed work in this way but no longer does so. His mission is to do something about what he perceives to be a serious breach of the law by, most importantly, those who have been involved in or acquiescing in breaches of the law by detainees at the detention centre. 12 The Applicant's facsimile concluded with the words:- 'You are requested to kindly investigate this complaint and to take necessary actions against this criminal ring and stop this illegal work and tax cheating within the detention centre.' 13 In September 2005 Federal Agent Steven Fry was a team member of the Client Liaison team two of the Sydney Office Operations Monitoring Centre of the Australian Federal Police. That monitoring centre was responsible for recording all complaints received by the Australian Federal Police in New South Wales and making an assessment of what action should be taken in relation to each complaint. 14 On or about 6 September 2005 Federal Agent Fry provided Federal Agent Camille Sarah Chicheportiche with a copy of the Applicant's facsimile of 5 September 2005. 15 On 7 September 2005 Federal Agent Chicheportiche sent an email to Mr Hans Verschuur at the Department of Immigration and Multicultural and Indigenous Affairs in Canberra to which a copy of the Applicant's facsimile of 5 September 2005 was attached. Mr Verschuur was an officer of the Department in its Values and Conduct section. 16 The email from Federal Agent Chicheportiche to Mr Verschuur included the following:- 'A 3 page fax was sent to the AFP by Mr Motahar Hussein relating to alleged offences under Section 235(3) of the Migration Act 1958. Mr Hussein alleges that detainees in detention centres throughout Australia are performing work and receiving a reward (in the form of phone cards and cigarettes). Mr HUSSEIN alleges that this is an offence under S 235(3), Migration Act 1958. I understand this sort of allegation has previously been brought to the attention of DIMIA and it was decided that this was not in the nature or spirit of the legislation. Forwarded to Values and Conduct for their information and any action you deem necessary. …' (emphasis added) 17 On 8 September 2005 the Minister for Immigration and Multicultural Affairs issued a press release in the following terms:- 'System Allowing Volunteer Activities in Detention Centres Should Continue VPS 109/2005 Minister for Immigration, Senator Amanda Vanstone, has questioned media and union attacks on the current practice of allowing immigration detainees to engage voluntarily in useful and meaningful activity. "Allowing people to do something productive is a necessary response to the common human need to remain active - it's a good thing", Senator Vanstone said. "It would be a great shame if these ill-conceived attacks put this system at risk." Senator Vanstone said removing the capacity for people to voluntarily contribute to their own wellbeing and the wellbeing of other detainees "can only do harm". "The present system allows people to make a real contribution and receive some token reward for that contribution. It provides both an important outlet for willing participants and gives some recognition to those who choose to get involved." Senator Vanstone said people attacking the right of detainees to contribute should put themselves in the place of those detainees who take pleasure in their capacity to do something worthwhile. "This voluntary activity is not a substitute for paid employment. All basic services are expected to be maintained without the help of voluntary participants. The scheme has been put in place for the benefit of detainees not the contractors. My understanding is that it is quite popular."'

18 On 9 September 2005 the Applicant sent a further facsimile to The Commissioner (Federal Police) in which he said amongst other things:- 'On 05 September 2005 I sent a complaint through fax to the fax number (9286 4718) of the crimes branch of the federal police. My complaint was against the local DIMIA officials, which includes DIMIA manager for Villawood Immigration Detention Centre and DIMIA's contractor GSL and DNCA. This was a serious complaint against the aforesaid people for aiding and abetting activities which is declared as offence by the Migration Act 1958. … … It is strange that the federal police instead of investigating this matter and performing its duty as a law enforcement agency disclosed my complaint to the same department against whose officials I made a complaint of a serious nature. Since the primary function of the federal police is to investigate the crimes declared under Commonwealth law, I consider that it is the Federal police who should have investigated this matter. …'

19 By letter dated 21 September 2005 the Australian Federal Police wrote to the Applicant stating:- 'I am writing to you as per our phone conversation on 21 September 2005. Your request was in relation to correspondence that you faxed to the Sydney Office of the Australian Federal Police on 5 September 2005. Your correspondence was received and reviewed by the office of the Operations Monitoring Centre (OMC). Due to the content of the letter it was decided that it would be more appropriate to be dealt with by the Department of Immigration Multicultural and Indigenous Affairs for any action they deemed necessary.'

20 On 26 September 2005 the Australian Federal Police sent a further letter to the Applicant as follows:- 'I refer to your letter to the Commissioner of the Australian Federal Police (AFP) dated 9 September 2005 and advise you that I have been requested to answer your letter on behalf of the AFP. Your complaint regarding the activities at the Villawood Detention Centre being in breach of the Migration Act 1958 were reviewed by members of the Operations Monitoring Centre of the Sydney Office of the AFP. Using the AFP case prioritisation model it was determined the most appropriate method to deal with your allegations was the referral of the correspondence to the Commonwealth Department responsible for Villawood Detention Centre. This department is the Department of Immigration, Multicultural and Indigenous Affairs (DIMIA). DIMIA have within their Department an area charged with investigating complaints against Departmental officers and they will conduct any inquiries deemed necessary. If criminal conduct is disclosed they will notify the AFP of their investigation and the results. This information will then be reviewed by the AFP on its merit. Whilst you may have a contrary view the previous decision of the AFP not to investigate your allegations stands.' (emphasis added)

21 The Applicant now seeks relief in the nature of mandamus against the Fifth Respondent to compel the Australian Federal Police to investigate the Applicant's complaint in respect of offences against s 235(3) of the Act. He also seeks relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the ADJR Act'). 22 Whilst the Fifth Respondent undoubtedly has a very broad discretion in relation to the investigation of complaints of criminal activity there are situations in which mandamus will go to compel him to investigate matters.

23 Just as a Commissioner of Police has a duty to enforce the law, he or she also has a broad discretion as to the manner in which he or she chooses to fulfil the responsibilities of his or her office (per Emmett J in O'Malley v Keelty, Australian Federal Police Commissioner ('O'Malley')[2004] FCA 1688 at [6]; per Kenny J in Hinchcliffe v Commissioner of Police of the Australian Federal Police ('Hinchcliffe')[2001] FCA 1747 at [33] - [35] and per Lord Denning MR in Regina v Commissioner of Police of the Metropolis; Ex parte Blackburn ('Blackburn') [1968] 2 QB 118 at 136).

24 Where a member of the Australian Federal Police receives a complaint from a member of the public, the member of the Australian Federal Police would certainly discharge his or her duty to enforce the law if he or she gave due and proper consideration to the question of whether, and in what way, an initial enquiry into the complaint should be made, and then acted appropriately upon the view formed (per Emmett J in O'Malley at [6] and per Kenny J in Hinchcliffe at [37]). 25 The duty of the Fifth Respondent is to enforce the law. He or she must take steps to post police officers so that crimes may be detected and that honest citizens may go about their affairs in peace. But the Commissioner is not the servant of anyone save the law itself. Although the Commissioner is answerable to the law, there are nevertheless many fields in which the Commissioner will have a discretion with which the law will not interfere. It is for the Commissioner to decide in any particular case whether enquiries should be pursued. It must be for the Commissioner to decide on the disposition of the force and concentration of the resources available on any particular crime or area. No Court can or should give the Commissioner direction on such a matter (per Emmett J in O'Malley at [7], per Lord Denning MR in Blackburn at 136 and per Finn J in Rush v Commissioner of Police [2006] FCA 12 at [91]).

26 Notwithstanding the width of the discretion available to the Commissioner of the Australian Federal Police, he may not adopt policy decisions which would result in him failing in his duty to enforce the law. As was pointed out in Blackburn,if a Commissioner of Police issued a directive to his officers that no person should be prosecuted for stealing goods of a value less than a certain amount, the Court could countermand such a policy and grant relief by way of mandamus to compel the Commissioner to do his duty (per Lord Denning MR in Blackburn at 136; per Kenny J in Hinchcliffe at [33] and per Emmett J in O'Malley at [8]).

27 As Emmett J said in O'Malley:- '[8] … the Commissioner of Police is not beyond the law. If the police fail in the duties, however ephemeral it may be to describe them, a citizen is entitled to assistance in ensuring that the police do their duty. For example, if there was evidence of a dishonest refusal to investigate on the part of an investigating officer, or if the evidence suggests that an honest police officer acting reasonably could not properly come to the view that the matter was not capable of investigation there may be, and I emphasise may be, a basis upon which the Court could interfere.'

28 The Commissioner has the general administration and control of the operations of the Australian Federal Police (see s 37(1) of the Australian Federal Police Act 1979 (Cth) ('the AFP Act')). However, the Minister may in limited circumstances give written directions to the Commissioner with respect to the general policy to be pursued in relation to the performance of the functions of the Australian Federal Police (see s 37(2)). 29 The functions of the Australian Federal Police and the powers of members of the Australian Federal Police are to be found in ss 8 and 9 of the AFP Act. In relation to the provision of police services it is also appropriate to note the definition of 'police services' in s 4 of the AFP Act. 30 Whether, in the present case, the Applicant's proceedings against the Fifth Respondent should be summarily dismissed may well depend upon whether or not by entrusting the investigation of the Applicant's allegations to the Department of Immigration and Multicultural and Indigenous Affairs, the Australian Federal Police was abdicating responsibility for the matter in an impermissible way. The Australian Federal Police has indicated that they have an expectation that the Department will respond to the Applicant's allegations by investigating same and reporting back, it being the belief of the Australian Federal Police that the material provided by the Department could then be reviewed on its merit. 31 The Applicant's concern is that prior to referring his allegations to the Department, the Department had publicly declared its support for the performance by detainees of work within the Villawood Detention Centre thereby presenting a closed mind on whether or not offences were relevantly being committed by detainees and those administering the centre. 32 Furthermore, it is arguable that the email of Federal Agent Chicheportiche to Mr Verschuur forwarding a copy of the Applicant's complaint of 5 September 2005 was so expressed as to invite inaction rather than an investigation on the Department's behalf. 33 The parties are in agreement that the Fifth Respondent's motion of 20 October 2005 should now be addressed by reference to the claims made against the Fifth Respondent in the Further Amended Application filed 16 March 2006 and the Further (Amended) Statement of Claim filed 16 March 2006. 34 The Fifth Respondent submits that the Applicant's claims against him are manifestly groundless (see per Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129). In that case the Chief Justice proceeded to say at 130:- '… in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by his appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction [to set aside the initiating process] should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.'

35 In respect of the Applicant's claims for relief in the nature of mandamus against the Fifth Respondent and for relief under the ADJR Act, the Fifth Respondent submits that the Applicant lacks standing. In relation to the mandamus claim the Fifth Respondent submits that his exercise of discretion in respect of the investigation of complaints is, in the circumstances, uncontrolled. In relation to the ADJR Act claims, the Fifth Respondent submits that the Applicant is not a person who is aggrieved by a relevant decision within the meaning of the ADJR Act and further that the Fifth Respondent has made no relevant 'decision to which this Act applies' within the meaning of the ADJR Act. 36 The Applicant meets the last-mentioned submission by referring to the fact that in the letter of the Australian Federal Police of 26 September 2005 reference is made to a determination as to the most appropriate method to deal with the Applicant's allegations and to the previous 'decision' of the AFP not to investigate the Applicant's allegations. 37 In addition, the Applicant refers to paragraph 11 of the Fifth Respondent's original written submissions where the following appears: '11. In making the decision not to investigate the Applicant's claim the AFP has exercised its discretion in relation to deciding whether or not to investigate the Applicant's complaint. …'

38 Notwithstanding the references made by or on behalf of the Fifth Respondent to a decision having been made by the Fifth Respondent on the Applicant's request that his complaint be investigated, it seems clear to me that there has been no 'decision to which this Act applies' within the meaning of the ADJR Act. 39 In s 3(1) of the ADJR Act 'decision to which this Act applies' is defined as follows:- 'decision to which this Act applies means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition): (a) under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment; or (b) by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment; other than: (c) a decision by the Governor-General; or (d) a decision included in any of the classes of decisions set out in Schedule 1.'

40 In Hutchins v Commissioner of Taxation (1996) 65 FCR 269 the Court held that a decision by a Deputy Commissioner of Taxation to vote against a motion put at a meeting of creditors convened under Part X of the Bankruptcy Act 1966 (Cth) was not reviewable under the ADJR Act. Similarly, in Australian National University v Lewins (1996) 68 FCR 87, it was held that the rejection by the University of a lecturer's application for promotion made in accordance with a Statement on Policy and Procedures on academic promotions published by the University was not a decision under a section of the Australian National University Act 1991 (Cth). 41 In Australian National University v Lewins Lehane J, with whom Kiefel J agreed, rejected a submission that the decision refusing promotion was made under a section of the Australian National University Act 1991 (Cth) which conferred a range of powers on the University, including power 'to employ staff'. His Honour referred to Mason CJ's statement that a decision is 'made' under an Act if it is 'a decision which a statute requires or authorises' or 'one for which provision is made by or under a statute'(see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 336, 337) and said at 101:- '… a decision meets that test only if it is one for the making of which the relevant statute either expressly or impliedly provides and one to which the statute gives legal force or effect. It is clear, I think, that the general power to employ staff does not satisfy either limb of a test so expressed. That conclusion is required equally, I think, by the recent decision of the Full Court in Hutchins v Deputy Commissioner of Taxation …'

42 In Salerno v National Crime Authority ('Salerno')(1997) 75 FCR 133 the Court held that where a statute does no more than mark out in general terms the area of activity within which an organisation constituted under the statute can lawfully act, any activity of that body which is within power and which is capable of being described as a 'decision' will, nevertheless, not be a decision under that enactment for the purposes of the ADJR Act. Mere general authorisation is not sufficient to qualify a decision as one made under an enactment (per von Doussa, Drummond and Mansfield JJ at 139-40 and 144). 43 In Salerno the Full Court said at 143:- 'If a general authorisation in a statute for a decision by an organisation set up under that legislation is sufficient to make it a decision under the statute, and thus open to judicial review, every intra vires action of that organisation that has decisional effect and every kind of conduct engaged in by it for the purpose of making a decision will be examinable by the court. The potential for massive disruption of the organisation's activities that would be the consequence of such a conclusion is manifest.'

44 Consistent with the above authorities, it is clear that the action taken by the Fifth Respondent through Federal Agent Chicheportiche to refer the Applicant's complaint to the Values and Conduct section of the Department of Immigration and Multicultural and Indigenous Affairs and to refrain from investigating the Applicant's allegations itself, at least in the first instance, did not constitute a decision to which the ADJR Act applied. Accordingly the claims made by the Applicant against the Fifth Respondent in paragraphs 4A, 4B, 4C and 4D of the Further Amended Application should be dismissed. 45 This leaves for consideration the question of whether or not the Applicant's claim for relief in the nature of mandamus against the Fifth Respondent should also be summarily dismissed. It is not beyond argument that referral of a complaint to a department whose conduct is indirectly called into question in circumstances where it could be said that the Fifth Respondent knew that the department had a closed mind on the issue might constitute an abdication of responsibility by the Fifth Respondent. In such circumstances the Applicant ought not to be deprived of his opportunity to make out a case for relief in the nature of mandamus at the trial of his case by the Court. This, of course is subject to the question of the Applicant's standing to claim relief against the Fifth Respondent. 46 It will be appreciated that the rules relating to standing are designed to ensure that applicants only litigate their own business. For an applicant to have standing demands a connection between the applicant's interests and the relief sought. As a general rule the Court will not recognise busybodies who interfere in things that do not concern them. 47 In Australian Conservation Foundation Incorporated v The Commonwealth of Australia (1980) 146 CLR 493 Gibbs J, as his Honour then was, said at 526:- 'It is quite clear that an ordinary member of the public, who has no interest other than that which any member of the public has in upholding the law, has no standing to sue to prevent the violation of a public right or to enforce the performance of a public duty. There is no difference, in this respect, between the making of a declaration and the grant of an injunction. The assertion of public rights and the prevention of public wrongs by means of those remedies is the responsibility of the Attorney-General, who may proceed either ex officio or on the relation of a private individual. A private citizen who has no special interest is incapable of bringing proceedings for that purpose, unless, of course, he is a permitted by statute to do so.'

48 In considering what may constitute a special interest Gibbs J proceeded to say at 530-531:- '… an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it.' 49 To like effect, Mason J, as his Honour then was, said at 547:- 'I … agree with Gibbs J that … a person, whether a private citizen or a corporation, who has no special interest in the subject matter of the action over and above that enjoyed by the public generally, has no locus standi to seek a declaration or injunction to prevent the violation of a public right or to enforce the performance of a public duty.'

50 Whilst there may be serious doubt as to the standing of the Applicant to seek relief against the First, Second, Third and Fourth Respondents, there is at least an arguable case available to the Applicant for standing in relation to his claims against the Fifth Respondent given that he is the complainant whose request for investigation of alleged offences was made to the Fifth Respondent. 51 In Australian Conservation Foundation Incorporated v The Commonwealth of Australia Mason J said at 552:- 'Where there is an arguable case for standing, it may be preferable to have it determined along with other issues at the trial (Nova Scotia Board of Censors v. McNeil …).'

52 This is not a proper case for summary dismissal in respect of the Applicant's prayer for relief contained in paragraph 4 of the Further Amended Application. 53 In the light of the conclusions which have been reached, there should be no order as to costs in respect of the Fifth Respondent's notice of motion. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham .

Associate: Dated: 22 March 2006 The Applicant appeared in person on 6 December 2005

Counsel for the Applicant on 16 March 2006: S E J Prince

Solicitor for the Fifth Respondent on 6 December 2005: R Wood of the Australian Government Solicitor

Solicitor for the Fifth Respondent on 16 March 2006: S F Vorreiter of the Australian Government Solicitor

Date of Hearing: 6 December 2005 and 16 March 2006

Date of Judgment: 22 March 2006