Malupo v Minister for Racing, Gaming and Licensing [2002] NTSC 51

[3] At the time of the offences Mr Malupo was accompanied by a juvenile son of his marriage to the applicant.

[4] Upon the finding of guilt the motor vehicle was by force of the operation of s 51 of the Kava Management Act forfeited to the Territory upon the basis that it related to the offences.

[5] The consequence of forfeiture, provided for in s 52 of the Act is that the vehicle stood to be destroyed or disposed of in a manner determined by the Chairperson (being the person appointed under s 6 of the Northern Territory Licensing Commission Act 1999 (NT) (definition s 3)).

"Without limiting the generality of subsection (1), where the Minister approves, a vehicle that has been forfeited may be sold or returned to a person who immediately before the forfeiture of the vehicle had a legal or equitable interest in it and who, in the opinion of the Minister, was not knowingly involved in the act constituting the offence or alleged offence, and had no reason to suspect that it might be used in connection with the commission or alleged commission of the offence to which the seizure of the vehicle relates."

[7] By letter dated 28 January 2000 the legal representative of the applicant applied on her behalf for the respondent's approval for the return of the vehicle to her. It was asserted on her behalf that she was the sole owner of the vehicle and, in effect, that she was not knowingly involved in the act constituting the offences and had no reason to suspect that the vehicle might be used in connection with the commission of the offences. The letter concluded by indicating that should the respondent so require, the applicant would make herself available to give evidence and be heard on the matter.

[8] That letter was considered by the Chairperson who held his decision in abeyance until he had received more evidence to substantiate the applicant's submission. In a letter from an officer of the Minister's department to the applicant it was indicated that investigations made by it strongly suggested that Mr Malupo also had a claim of ownership and, indeed, was the sole user of the vehicle. The letter went on to indicate that the Northern Territory police had made a number of specified comments which appear to have been directly related to the question of the ownership of the vehicle. Those comments related to information received from employees at a service station at Nhulunbuy regarding Mr Malupo paying for fuel for the vehicle, and other material gathered by police showing that he had paid for repairs and other services related to the vehicle. The letter also provided details of the registration history of the motor vehicle, both in the Northern Territory and New South Wales. All of that was designed to cast doubt upon the applicant's assertion that she was the owner of it. In the end result, the departmental advice to the Minister did not turn on the issue of whether or not the applicant held any legal or equitable interest in the vehicle.

[9] In that letter there also appears the bald statement by the author, "I think it most likely that Mrs Malupo was aware of her husband's and son's activities and use of the vehicle". No grounds for such a finding are put forward. The applicant's reply included a reassertion that she had no knowledge of the offending, nor could it be reasonably suspected by her that the vehicle was to be used in the offending. Again, she sought the opportunity to give evidence on her oath and be cross-examined, "At any reasonable time and place nominated by the Minister ...". Reference was made to the provisions of s 52(2), especially in the context of the responsibility vesting in the Minister.

[10] An officer of the Liquor Commission sought legal advice and was informed that:

"The submissions made on behalf of Mrs Malupo come down to an assertion that she did not know of, nor could reasonably have suspected, the wrong doing. This is a difficult matter to prove or refute. However we reiterate that it is not for the Minister to possess evidence refuting the claim. The applicant must prove the claim so that the Minister can form the opinion that the person can not have known of the offence".

[11] The advice continued by suggesting facts that would cast some doubt on Mrs Malupo's claims, including that at the time and place of the offence her son was present, it being suggested that in those circumstances "... it can reasonably be expected that Mrs Malupo would know where her husband and especially her young son were, at this time on a school night." Attention was also directed to the use of the vehicle as between the applicant and her husband and it was suggested that if Mrs Malupo's version was accepted, then it might reasonably be expected that she would have taken a greater interest on the occasions when the vehicle was used by her husband. "It seems somewhat improbable that Mrs Malupo would not query why her husband wanted the car at such a time". It was also suggested that despite some previous marital difficulties between the applicant and her husband, they appeared to have remained together after the offences which suggested to the solicitor, "a degree of comfort in the actual knowledge of Mrs Malupo". All of that led to the solicitor suggesting that some doubt could be cast upon Mrs Malupo's denial of any knowledge.

[12] That advice, having put forward argument which it was said would cast some doubt on Mrs Malupo's claim, went on:

"We note that the above factors should not be expressed as any response to the submission made. These facts are put in support of a case that does not need to be made. The onus rests with Mrs Malupo and it is sufficient to say she has not discharged that onus".

[13] In conclusion the solicitors advise that there was "considerable discretion as to whether the vehicle should be returned" and that the Minister could ultimately refuse to return it by refusing his approval.

[14] The departmental memorandum to the Minister, provided for the purpose of suggesting that the Minister consider the application, contained the background information, a copy of the letter of application from the legal representative of the applicant and subsequent correspondence. Included in the briefing is the following passage:

"Police have been consulted and strongly oppose the return of the vehicle to Mrs Malupo. Police observations and enquiries in the Township of Nhulunbuy identify that Mr Malupo has sole possession and control of the vehicle including the responsibility for its maintenance. Police also advise that they have strong doubts that Mrs Malupo was not aware of, nor had no reason to suspect, the activities of her husband and the circumstances of the offence especially considering that the offence took place at Gapuwiyak at 1.41am in the presence of their son."

[15] Apart from the material earlier referred to going to the issue of ownership and use of the vehicle, nothing had been conveyed to the applicant concerning police attitudes regarding the return of the vehicle to her. The strong doubts said to have been expressed by the police, reflected in the briefing to the Minister, had not been conveyed to her. The most that had been said to her concerning her state of mind was that contained in the letter of 28 February 2000, "I find it most likely that Mrs Malupo was aware of her husband's and son's activities and use of the vehicle". No grounds were advanced to support that finding.

[16] Further, the briefing to the Minister included reference to the legal advice and the view that "There are a number of facts which cast, at the very least, some doubt on Mrs Malupo's claim". A copy of the legal advice was supplied to the Minister with emphasis under the heading "Conclusions":

"Our advice is that the Minister, on considering all matters, cannot be satisfied, nor form the opinion, that Mrs Malupo had no reason to suspect the vehicle might be used in connection with the commission of the offence. Accordingly, the Minister cannot approve the return of the vehicle."

[17] The solicitor appears to have adopted the role of telling the department what it should advise the Minister. The solicitor's advice was included in the briefing and the recommendation from the responsible officers to the Minister was that he not approve the application for the return of the vehicle.

[18] In his affidavit filed in these proceedings, Mr Allen, the Chairperson, said that the only material he had regard to in reaching his decision incorporated in the recommendation to the Minister was that to which reference had been made. At par 14 of the affidavit he said that:

"... matters which could be regarded as adverse to the Applicant including those matters alleged by the police, were expressly put to the applicant through her legal representatives".

[19] Reference is made to the letter of 28 February 2000. I have already indicated that a significant matter, which could be regarded as irrelevant, but nevertheless undoubtedly adverse to the applicant was not put to her at any stage, that is, the police opposition to the return of the vehicle and their strong doubts about the critical issue.

[20] It does not appear from the briefing to the Minister, but Mr Allen said in his affidavit, that at the time the Minister was briefed he had decided not to dispose of the vehicle by returning it to the applicant by handing it back to her. It also appears from that affidavit that Mr Allen was not satisfied that the applicant had no reason to suspect that the vehicle might have been used in connection with the offences:

"... it was inherently improbable that the applicant did not have reason to suspect that the forfeited vehicle might have been used in connection with the offence for which her husband was convicted ...". I have given more weight to the objective facts not challenged by the applicant such as the circumstances of the offence involving her husband and son, over her assertions of lack of relevant knowledge."

[21] Mr Allen also says that he gave the applicant a fair opportunity to make out her case and that he gave due and fair consideration to her representations. So far as Mr Allen was aware the only material that the Minister had regard to in reaching his decision was that referred to in the briefing.

[22] By his letter of 24 July 2000 the Minister informed the applicant's legal representative that he had considered the application and, "based on the available information I have determined that your client does not satisfy the necessary criteria." The letter concluded, "Consequently, I am not in a position to return the motor vehicle."

[23] It will be seen that there were two pieces of information before the Minister which could have operated adversely upon his mind in respect of the state of the applicant's mind at the time of the commission of the offences. The first, the views expressed by the police and the second, the views expressed by the solicitors. The applicant was unaware of either of those pieces of information and thus had no opportunity to make representations to the Minister in respect of them.

[24] I note that the function to be performed by the Minister in the exercise of powers under s 52(2) is not discretionary. Whether or not the Minister grants his approval is dependent solely upon whether or not he comes to the required opinion.

[25] In dealing with similar provisions in the Liquor Act in Ninnal v Minister for Racing, Gaming and Licensing [2001] NTSC 68; (2001) 162 FLR 330, par 9, I said:

"... the decision to sell or otherwise return a forfeited vehicle to the owner after it has been forfeited falls within the discretion of the Chairperson and can only be made by the Chairperson. The implementation of the decision, however, is conditioned upon the Chairperson first obtaining the approval of the Minister. The Ministerial approval is conditioned upon the Minister forming the requisite opinions going to the state of mind of the owner".

"The opinion of the Chairperson on the question of the owner's state of mind is of no effect in the statutory scheme. In the ordinary course of public administration, however, it is not likely that the Chairperson would be precluded from gathering and presenting to the Minister material, including any representations from the owner, upon which the requisite opinion of the Minister could be formed. But the only opinion countenanced by the legislature is that of a Minister."

[26] Earlier in the judgment, par 4, I noted that it had been agreed that the rules of procedural fairness came into play under the provisions in that case and so it is here. I added:

"The contexts of the rules in each case will depend upon the circumstances and nothing I say in the course of these reasons should be taken as indicating any direction in that regard".

[27] As to the role of those within a department advising a statutory decision maker, I refer to the following extract from the decision of Brennan J in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40; (1986) 162 CLR 24 at p 65 to p 66:

"Part of a department's function is to undertake an analysis, evaluation and precis of material to which the minister is bound to have regard or to which the minister may wish to have regard in making decisions. The press of ministerial business necessitates efficient performance of that departmental function. The consequence of supplying a departmental analysis, evaluation and precis is, of course, that the minister's appreciation of a case depends to a great extent upon the appreciation made by his department. Reliance on the departmental appreciation is not tantamount to an impermissible delegation of ministerial function. A minister may retain his power to make a decision while relying on his department to draw his attention to the salient facts. But if his department fails to do so, and the validity of the minister's decision depends upon his having had regard to the salient facts, his ignorance of the facts does not protect the decision. The parliament can be taken to intend that the minister will retain control of the process of decision-making while being assisted to make the decision by departmental analysis, evaluation and precis of the material relevant to that decision."

[28] I have already noted that the content of the requirements of procedural fairness and natural justice depend upon circumstances of the particular case (per Mason CJ, Dawson, Toohey and McHugh JJ in New South Wales v Canellis and Others [1994] HCA 51; (1994) 181 CLR 309 at 329). Their Honours proceeded:

"... what is required in an administrative enquiry is not to be equated to the requirements as they apply to the exercise of judicial power"

But, there is a fundamental rule that a statutory authority having power to effect the rights of a person is bound to hear him before exercising the power, per Mason J in FAI Insurance Limited v Winneke [1982] HCA 26; (1982) 151 CLR 342 at 360, and the cases there cited; see also Kioa and Others v West and Another (1985) 159 CLR 551 where Mason J put the proposition this way at p 582:

"It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which would deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it."

At p 583 his Honour noted that it had been said on many occasions that natural justice and fairness are to be equated and that it has been recognised that in the context of administrative decision-making, "it is more appropriate to speak of a duty to act fairly or to accord procedural fairness", see further at p 584. His Honour there notes and affirms what Kitto J said in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475 at p 503-4 that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends upon, "the particular statutory framework". What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the enquiry, the subject matter, and the rules under which the decision-maker is acting. At p 585 Mason J added:

"In this respect the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and are adapted to the circumstances of the particular case".

See also the judgment of Brennan J commencing at p 612.

[29] Two recent, and as yet, unreported decisions of the High Court of Australia also deal with some of the issues in this matter. In Muin v Refugee Review Tribunal (2002) HCA 30 par 123, McHugh J said:

"Natural justice requires that a person whose interests are likely to be affected by an exercise of power be given the opportunity to deal with matters adverse to his or her interests that the repository of the power proposes to take into account in exercising the power. This does not mean that the source and nature of all material that comes before the decision-maker must be disclosed. But " ... an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made." What is required to discharge this duty depends on the circumstances of the particular case."

[30] It is to be inferred that a decision maker will not take into account any information that is incredible, irrelevant or insignificant to the decision to be made and thus need not put it before the person whose interests are likely to be affected.

[31] Minister of Immigration and Multicultural Affairs v Rajamanikkam (2002) HCA 32 at par 25 referred to the established principle that a decision maker must base his decision on evidence whether a hearing is requested or not, and if one is requested he must fairly listen to the contentions of all persons who are entitled to be represented at the hearing. I would apply those remarks as much to a situation where there is no oral hearing, but one conducted upon written material.

[32] I note that under the statute here under consideration, there is nothing to indicate that the doctrine of natural justice or the duty to act fairly has been abrogated in any way. It is therefore necessary to consider what is required in the circumstances of the particular case. By that I do not mean all cases falling within the statute, but this particular case.

[33] It will be noted that the applicant twice sought to be heard personally by the Minister, or his delegate, and it is clear that no such opportunity was afforded her. However, as Kirby J remarked in Re Minister for Immigration and Multicultural Affairs; ex parte P T [2001] HCA 20; (2001) 75 ALJR 808 at 813 there is no universal rule that administrators making a decision affecting a person are bound to hold a hearing and conduct a face to face interview:

"Most administrative decisions are made without such a facility. To impose it unnecessarily would inflict a rule of inflexibility as well as one having significant economic cost".

It is not necessary for me to consider this further.

[34] At this point I think it may be helpful to return to examine the terms of the statute as applied in this case. It was not suggested that the applicant was knowingly involved in the act constituting the offences or either of them. What was being considered was whether she had no reason to suspect that the vehicle might be used in connection with the commission of the offences or either of them. That plainly indicates a state of mind prior to the commission of the offence. The task confronting the Minister therefore, in the light of the applicant's denial that she had any such suspicion, was to properly consider that assertion, by reference to circumstances shown to exist prior to the commission of the offence which suggested to the contrary and any proper inference which could be logically drawn from them. Given the use of the "opinion" I do not think it was intended by the parliament that the Minister must make a finding as to the required state of mind of an applicant as a certainty, a judgment or belief, short of that standard would suffice.

[35] The starting point in any consideration of the applicant's case must have been the assertion that she had no reason to suspect that the vehicle might be used in connection with the commission of the offence or offences. I assume that departmental officers considered that information should be gathered which might either support or not support what she had to say. To that end, they relied only upon advice from the police at Nhulunbuy. The first issue which came to be under consideration was whether or not the applicant had a legal or equitable interest in the vehicle. That is a question which can give rise to the need to make findings of fact and the application of sometimes difficult questions of law. It was not pursued. However the opposition of the police to the return of the vehicle on other undisclosed grounds was brought to bear upon the thinking of departmental officers, the solicitors advising the Minister, and, ultimately, the Minister. Nowhere are the grounds of the police opposition disclosed, and, in particular, it is not demonstrated that in consulting the police their minds were directed to the right question. There is no document evidencing the police opposition apart from the hearsay report.

[36] Furthermore, the applicant was not given the opportunity to respond to the arguments formulated by the solicitors advising the Minister. I do not propose to examine those for myself. They should have been put to the applicant for her response.

[37] In the recently published second edition of "Judicial Review of Administrative Action" by Aronson and Dyer under the heading "Disclosure" at p 413 appears the following:

"The duty of disclosure, like the requirement to give adequate notice, is of central importance, and for the same reasons. To receive evidence from one party behind the back of another, or to act on undisclosed documentary material or representations, not only effectively deprives a person of a hearing, but also reduces accountability, acceptability and informed decision making."

[38] Further, the authors note that disclosure can:

"act as an important safeguard against the use of inaccurate material or untested theories. It can also contribute to the efficiency of the hearing by directing argument and information to the relevant issues and materials".

I cannot think of any overriding public interest which would justify the departmental officers or the Minister withholding from the applicant the material to which I have referred. It is plain it caused the Minister to come to his decision which in its turn affects not only the legal or equitable interest of the applicant in the vehicle, but her personal reputation.

[39] The Minister adopted the views put to him in the briefing. The applicant had no opportunity to answer the arguments of the Chairperson and an inquiry of her as to whether she wished to reply to those views should have been made and, if she had replied, her reply should have been taken into account, Wulaign Association Incorporated v The Minister for Racing and Gaming (1991) 1 NTLR 118 per Asche J at p 121 with whom Kearney and Angel JJ agreed.

[40] Order in the nature of certiorari quashing the decision of the respondent and an order in the nature of mandamus requiring the Minister to hear and determine the application in accordance with law.