Supreme Court of the ACT|2014-05-07

Marsh v Australian Capital Territory [2014] ACTSC 81 (7 May 2014)

[2014] ACTSC 81 (7 May 2014)

ADMINISTRATIVE LAW - Judicial Review - Failure to observe required procedure at SAB hearing - Departure from procedure will not automatically render a decision invalid - Failure of Director-General to ensure an audio-visual recording of proceedings was made does not invalidate the decision - Ground dismissed

ADMINISTRATIVE LAW - Judicial Review - Conflict of interest - Claimed interests very generic - Interest must be identified - Interest must be material - No material interest - Ground dismissed

ADMINISTRATIVE LAW - Judicial Review - Failure to take account relevant material - Material information - Information to be considered must have some reasonable relevance to the decision - Evidence that SAB considered the medical information and gave it careful consideration - Ground dismissed

ADMINISTRATIVE LAW - Judicial Review - Whether SAB allowed applicant to make final submissions - Applicant asked if he would like to make submissions - Words "is there anything you would like to say" are plain English and not legalistic - Ground dismissed

ADMINISTRATIVE LAW - Judicial Review - Applicant not informed of his right to legal representation - A person may be legally represented at SAB hearing - Applicant had been represented on previous occasions and knew of this right to choose legal representation - Right to legal representation does not mean that legal representation must be provided - Ground dismissed

ADMINISTRATIVE LAW - Judicial Review - Failure to take account relevant considerations - Not all submitted material must be taken into account - Material must have some reasonable relevance to the decision - Flooding of applicant's home not relevant to SAB decision - Ground dismissed

ADMINISTRATIVE LAW - Judicial Review - Breach of natural justice - Failure to make appropriate enquiries - Failure to call a witness - Witness could not have given information of material advantage to the applicant - Ground dismissed

Peter W Young, Clyde Croft and Megan Louise Smith, On Equity (Lawbook Co: Sydney, 2009), p 537

European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (INT) done at Rome on 4 November 1950, ETS 5, Art 6

Aberdeen Railway Co v Blaikie Bros [1843-1860] All ER Rep 249

Australia and New Zealand Banking Group Ltd v Bangadilly Pastoral Co Pty Ltd [1978] HCA 21; (1978) 139 CLR 195

Bennetts v Board of Fire Commissioners of New South Wales (1967) 87 WN (Pt 1) (NSW) 307

British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 383

Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

Forman v ACT Planning and Land Authority [2013] ACTSC 167; (2013) 279 FLR 54

Graham v Baptist Union of New South Wales [2006] NSWSC 818

Hopkins v Smethwick Local Board of Health (1890) 24 QBD 712

Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41

Ingerson v Styles (Unreported, South Australia Supreme Court, Bollen J, 23 October 1987)

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

Lawal v Northern Spirit Ltd [2004] 1 All ER 187

Lewis v Chief Executive, Department of Justice and Community Safety (ACT) [2013] ACTSC 198; (2013) 280 FLR 118

Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288

Maher v Carpenter [2012] ACTSC 38

McGibbon v Linkenbagh (1996) 41 ALD 219

Miailhe v France (No 2) [1996] ECHR 42; (1996) 23 EHRR 491

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; (2009) 238 CLR 627

Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Moore v Guardianship and Administration Board [1990] VicRp 80; [1990] VR 902

Morro v Australian Capital Territory (2009) 4 ACTLR 78

Old St Bonifaci Resident's Association v Winnipeg City (1990) 75 DLR (4th) 385

Phipps v Boardman [1966] UKHL 2; [1967] 2 AC 46

Porter v Magill [2002] AC 257

Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Public Service Board of New South Wales v Osmond (1986) 159 CLR 656

Re Application for Bail by Islam (2010) 4 ACTLR 235

Re Broadcasting Boulting v Association of Cinemetograph, Television and Allied Technicians [1963] 2 QB 606

R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 456

R v Dhaimat (No 1) [2014] ACTSC 42

Re Mullen [1995] 2 Qd R 608

Station 2GB Ltd [1964-5] NSWR 1648

SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372; (2008) 104 ALD 22

Wilson v London Midland and Scottish Railway Co [1940] Ch 169

1. On 20 September 2011, Luke Marsh was sentenced in the ACT Magistrates Court to an effective term of fifteen months' imprisonment and the Court fixed a non-parole period to expire on 19 June 2012.

2. That was later extended, in circumstances I set out below, to 6 May 2013 and on 21 May 2013, a parole order was made.

3. On 23 December 2013, however, Mr Marsh's parole order was revoked and he now seeks judicial review of that decision.

4. As noted above (at [1]), Mr Marsh was sentenced, so far as these proceedings are concerned, on 20 September 2011 for an offence of obstructing a Territory official and three offences of common assault. The sentence totalling fifteen months imprisonment, was directed to commence on that day with a non-parole period to end on 19 June 2012.

5. On 22 September 2011, Mr Marsh lodged an appeal against the sentence, but on 5 December 2011, that appeal was dismissed.

6. In circumstances that I do not entirely understand, it was said that Mr Marsh was re-sentenced to an effective term of fifteen months' imprisonment, with a non-parole period to expire on 9 July 2012.

7. On 16 December 2011, again in circumstances I do not completely understand, Mr Marsh lodged an appeal against the re-sentence and he was granted bail by the Court pending the appeal.

8. On 7 March 2012, the Director of Public Prosecutions lodged an appeal against the Court's decision made on 16 December 2011 and on 1 August 2012, that appeal was dismissed.

9. Mr Marsh subsequently withdrew his appeal on 27 February 2013. On that day, he was re-sentenced to an effective term of fifteen months' imprisonment to commence on 29 July 2012. A non-parole period to expire on 28 April 2013 was set.

10. On 2 May 2013, Mr Marsh was sentenced to a term of nine months' imprisonment, to commence on 7 January 2013, for the offences of threat to endanger health and what was described as "Resist Own Detention". The Court ordered that the sentence be suspended after five months' imprisonment and made a good behaviour order.

11. That meant that Mr Marsh's earliest eligible release date was 6 May 2013.

12. On 5 March 2013, Mr Marsh made an application for parole. An enquiry was listed for 7 May 2013 and Mr Marsh was invited to make submissions.

13. On 30 April 2013, he made a submission which included the following:

I ask that I be given the opportunity to address my problems with alcohol, by granting me parole to complete the 8 week program at Arcadia House.

There are very little programs here in AMC and I am only able to participate in one course at a time (currently participating smart recovery program).

After completion of Arcadia House I will be getting continued support from Canberra Men's Centre - Anger Management, and Anxiety/depression Counselling, Winnunga Aboriginal Health Service - Men's group, alcohol and drug counselling, help with my PTSD from psychiatrist, Aboriginal Mental Health Service, CADA's and family. I am committed to completing the rehab and ask that if I am given the opportunity to turn my life around and granted parole that I will be given 2 to 3 days to clean my unit which was completely flooded in feb 2013 before signing into Arcadia House.

I receive very little support here and havent had one visit from family or friends here in AMC due to transportation issue's which is affecting my anxiety/depression/PTSD detrermentaly.

[sic]

14. By undated letter sent by fax on 11 May 2013, Directions ACT, the operator of Arcadia House Residential Services, noted that Mr Marsh had been accepted into the Arcadia House Transition Program. The position in the program would be held until the meeting of the Sentence Administration Board (the Board) to decide on his parole.

15. On 21 May 2013, the Board resolved to make a parole order authorising Mr Marsh's release on parole on 28 May 2013.

16. Curiously, I did not have a copy of the parole order in the material before me, but it seems there was no contest that it included a condition to complete the eight week program at Arcadia House in the following terms:

(r) you must enter and complete the Arcadia House Transition Program and not, without the permission of your Corrections Officer, discharge yourself from, nor cause yourself to be discharged from, that program.

17. At the hearing of the Sentence Administration Board, the Chair said to Mr Marsh:

So at the moment the order will be that the parole will take effect next Tuesday, 28th I think it is of May, and it's a condition of parole that you go directly to Arcadia House to undertaken [sic] the rehabilitation program. And it is a condition of your parole that you complete that program. Failure to do so will be considered a breach of the order and that will see you being brought back before this Board and dealt with it. If the breach is established, dealt with it accordingly.

They are the significant conditions. Your case manager will take you through the other conditions that are attached to your order in a quieter environment.

18. Mr Marsh was asked whether he understood that and he said, "Yes" and whether he accepted the conditions and he said, "Yes" and his lawyer said, "Yes, and he accepts that".

19. It appears that on 28 May 2013, Mr Marsh was released on parole and entered the Arcadia House Program the next day.

20. It is alleged that, on 1 June 2013, Mr Marsh discharged himself from the Arcadia House Program. In the proceedings before me, Mr Marsh conceded that he had left the Arcadia House Program without approval from his Corrections Officer.

21. By notice dated 19 June 2013, the Board notified Mr Marsh that it was alleged that he had breached that condition. In due course, an inquiry was held by the Board on 23 December 2013.

22. Mr Marsh attended the hearing in person. His Probation and Parole Officer and his mother were also in attendance.

23. At that hearing, the Board resolved to cancel Mr Marsh's parole order and he was, under s 161 of the Crimes (Sentence Administration) Act 2005 (ACT) (the Sentence Administration Act), ordered to be placed in the Director-General's custody to serve the balance of his period of imprisonment.

24. Mr Marsh has now sought judicial review of that decision.

25. As he has at all relevant times been unrepresented, the precise nature of the review has been, at times unclear.

26. In Maher v Carpenter [2012] ACTSC 38, I referred to what the Full Court of the Supreme Court of South Australia had distilled from the authorities as to the approach a Court must take to litigants in person. In that decision, Kenny v Ritter [2009] SASC 139; (2009) 52 MVR 360 at 365-6; [23], the Full Court said

In our view, the following principles emerge from the authorities discussed.

− A litigant has a fundamental right to appear in person. When faced with a litigant in person, the court is under a duty to give such assistance to that litigant as may be required to ensure that there is a fair trial.

The purpose of the assistance is to ensure that as far as possible, the disadvantage that litigants may suffer as a result of lack of representation is adequately addressed.

− Although the duties of the court in relation to self represented litigants are discussed by numerous authorities, it is difficult to ascertain a common approach as to the manner and form in which assistance is provided which can be applied in practice to all circumstances. This is unsurprising bearing in mind the myriad of circumstances in which litigants may appear in person. However, the authorities do provide general guidance as to principles which can be applied by the courts.

− Judicial assistance would include ensuring that unrepresented litigants are aware of their substantive and procedural rights, which in turn would depend upon the nature and circumstance of the case.

− The degree and form of the judicial assistance required depends upon several factors, including the overall knowledge and skills of the litigant and the particular circumstances of the case.

− Judicial assistance is to be limited to that which is necessary to diminish so far as possible the disadvantage that the unrepresented litigant will suffer when another party or parties are represented by a lawyer. It is a matter of redressing imbalance so far as possible but at the same time ensuring that the party who is represented is not thereby disadvantaged and thereby obtains less entitlements.

− In order to provide assistance to redress any imbalance or disadvantage which may arise by reason of lack of legal representation, the court should first assess the degree to which an unrepresented person may require assistance. This is not to be an automatic assumption.

− It is not part of the role of a judge to become an advocate for the unrepresented person; or stand in the shoes of counsel acting for that litigant; or unduly interfere with the conduct of the trial on the litigant's behalf. Instead, the court has the difficult task of striving to achieve a balance between these seemingly conflicting duties to ensure that there is a fair trial.

− The court at all times is under an obligation to maintain the appearance of impartiality and neutrality and not be seen to apply preferential rules to the self represented litigant to the disadvantage of the represented litigant.

27. I endeavoured, as best as possible, to comply with the general approach that the Court had there set out.

28. Associated with this issue is the question that Mr Marsh raised a number of times during the hearing. He submitted that I should arrange for legal representation for him or that I should grant him bail in order that he could seek to obtain legal representation for himself. He told me that he had applied for Legal Aid but Legal Aid had been provided only for a short consultation and, so far as I understood it, not for representation.

29. The Court has no power to provide legal representation to parties. It will, of course, facilitate any reasonable attempt to arrange for parties to be represented (see R v Dhaimat (No 1) [2014] ACTSC 42 at [13]), but that does not involve the Court providing, of its own initiative, legal representation to an unrepresented party.

30. It is clear that a Court can stay court proceedings against an accused person where the lack of legal representation amounts to a breach of the person's fundamental rights. See Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292. That, of course, is not the situation here. Mr Marsh is taking action himself and is not being prosecuted or sued in these proceedings. A stay would not be an appropriate remedy.

31. As to bail, it is relevant that Mr Marsh is, of course, a sentenced prisoner, serving a sentence that had been imposed lawfully by the Magistrates Court.

32. The only power to grant bail to a person sentenced to a period of imprisonment is under s 9E of the Bail Act 1992 (ACT). That is limited, however, to the circumstances where an appeal is pending in relation to the conviction or sentence which has led the person to be in prison. There was no pending appeal during the currency of these proceedings.

33. I understand that Mr Marsh applied for leave to appeal out of time from the original sentence but that application was dismissed on 7 February 2014.

34. So far as I could distil them from his submissions, Mr Marsh's grounds for challenging the validity of the decision of the Board cancelling his parole were as follows:

1. That there was no sound or audio-visual recording of the hearing on 23 December 2013 and a transcript of the hearing was not subsequently prepared and available to him.

2. A police officer, sitting as member of the Sentence Administration Board of the hearing on 23 December, failed to disclose a material interest in the matter being considered by the Board, namely a complaint that Mr Marsh had made against a certain (different) officer of ACT Policing.

3. The Board had placed insufficient or no weight on the medical, particularly psychiatric, evidence presented by Mr Marsh at the hearing.

4. Mr Marsh was not given the opportunity to make all the submissions he wished to make at the hearing.

5. Mr Marsh was not informed of his right to legal representation at the hearing.

6. The Sentence Administration Board failed to take into account that there were problems with Mr Marsh's flat which needed to be addressed.

7. The Sentence Administration Board failed to contact Mr Marsh's Parole Officer, Mr Anthony Nocka.

35. Mr Marsh asserted that these failures breached a number of obligations that he said were imposed on the relevant government authorities by the International Covenant on Civil and Political Rights (opened for signature 16 December 1966, 999 UNTS 171, entered into force 23 March 1976) and by the Human Rights Act 2004 (ACT).

36. The International Covenant is not in force in Australia as Australia has not enacted domestic legislation required to give it such force. See Morro v Australian Capital Territory (2009) 4 ACTLR 78 at 83; [13]. It is, however, the source of rights in the Human Rights Act, though not necessarily in identical terms. See Re Application for Bail by Islam (2010) 4 ACTLR 235 at 243; [18]. Thus, any rights on which Mr Marsh may wish to rely must be found in the Human Rights Act.

37. He listed seventeen such rights in argument before me. It is not helpful simply to list them here. Many seemed to me to be relevant only to issues that were not part of these proceedings. Where any such rights are relevant, I shall address them below.

38. Section 211 of the Sentence Administration Act requires the Director-General to ensure that a sound or audiovisual record is made of each hearing for an inquiry by the Board.

39. This provision appears within Pt 9.2 of the Sentence Administration Act. Section 195(9) of that Act provides that a "hearing by the board must be in accordance with part 9.2".

40. Section 202 of the Sentence Administration Act also requires the Board to keep a written record of proceedings at an inquiry.

41. Mr Marsh sought access to a transcript of the sound or audiovisual record of the inquiry at which his parole was revoked. He was told there was no transcript as no sound or audio visual record had been made.

42. The evidence was that on the day of the inquiry there had been power outages which meant that the hearing was, unfortunately, not recorded by sound or audio visually.

43. A record of the meeting was, however, in evidence before me and the Board also provided a statement of reasons for its decision.

44. In very helpful and comprehensive submissions prepared at short notice because of the urgency of the proceedings, Ms K Katavic, counsel for the Australian Capital Territory, submitted that this complaint would, if upheld, amount to a failure to observe a procedure required by law under s 5(1)(b) of the Administrative Decisions (Judicial Review) Act 1989 (ACT) (the Judicial Review Act).

45. While there is a procedure required by law, it is not, as Ms Katavic correctly submitted, a procedure that is, by law, required to be observed by the Board. The obligation is imposed on the Director-General.

46. It is also relevant that the obligation was not blatantly ignored; there were unavoidable technical faults which prevented compliance with it.

47. The question of whether a breach of ss 195(9) and 211 of the Sentence Administration Act renders the decision of the Board void and so to be set aside for non-compliance does not depend simply on non-compliance. In the High Court, McHugh, Gummow, Kirby and Hayne JJ identified the relevant test in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 390-1; [93] where their Honours said

A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute'.

(footnotes omitted)

48. Their Honours explained the application of this test at 388-9; [91] in the following way:

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.

49. This task is not an easy one in this context. Clearly one purpose of the relevant provisions is to ensure that there is a full record of the proceedings and this may be to ensure that there could be an appropriate level of review, such as by judicial review.

50. Proper procedures are also designed to ensure that a fair hearing is conducted and that natural justice (procedural fairness) is accorded to a person appearing before the Board. See the approach to procedural provisions in cases such as Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; (2009) 238 CLR 627 at 639-40; [33]- [35].

51. It must also be strongly arguable, as was found in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 349; [77], that these procedures, for recording the proceedings, are not procedures in connection with the making of the decision in question for it will play no part in the actual decision-making process, particularly if, as I suggest, one of its purposes is to facilitate review, which presupposes that a decision has been made.

52. While any departure from procedure is to be regretted, it does not mean that every such departure will render a decision invalid. There may, of course, be other consequences. If an allegation of a person before the Board about some matter as to what occurred is challenged, it may be more difficult to resist accepting the allegation, if otherwise soundly based, where the proper procedures would otherwise have made easy resolution of the dispute such as here by reference to the sound or audiovisual recording. That, however, does not invalidate the hearing.

53. Ms Katavic submitted further that the failure to follow this procedure could not have changed the outcome. That is true in a case such as this, but I am not convinced that this is a sound argument. It seems to me that while it may apply to assist to decide an application to set aside a decision where a breach of procedure would have been likely to have resulted in a decision different from that arrived at by compliance with proper procedures, the converse, however, may not be true. For example, failure to accord natural justice will almost always result in the setting aside of a decision even if the decision ultimately reached after provision of natural justice leads to the making of the same decision. Similarly, an egregious breach of procedure may result in the decision being set aside even if the likely result of a rehearing in accordance with correct procedures will be the same.

54. I do not consider that the Sentence Administration Act discloses an intention that should a sound or audio-visual recording of a hearing of the Board is not made, the Board's decisions at that meeting are invalidated.

55. I am satisfied that the requirement to make an audio or audio-visual recording of the hearings of the Board do not engage any right under the Human Rights Act.

56. In this case, however, I am satisfied that the failure on the Director-General to ensure that a sound or audiovisual recording was made of the proceedings of the Board involving Mr Marsh did not invalidate the decision.

57. Section 177 of the Sentence Administration Act provides

(1) If a board member has a material interest in an issue being considered, or about to be considered, by the board, the member must disclose the nature of the interest at a board meeting as soon as possible after the relevant facts have come to the member's knowledge.

(2) The disclosure must be recorded in the board's minutes and, unless the board otherwise decides, the member must not -

(a) be present when the board considers the issue; or

(b) take part in a decision of the board on the issue.

Example

Albert, Boris and Chloe are members of the board. They have an interest in an issue being considered at a board meeting and they disclose the interest as soon as they become aware of it. Albert's and Boris' interests are minor but Chloe has a direct financial interest in the issue.

The board considers the disclosures and decides that because of the nature of the interests:

Albert may be present when the board considers the issue but not take part in the decision
Boris may be present for the consideration and take part in the decision.

The board does not make a decision allowing Chloe to be present or take part in the board's decision. Accordingly, Chloe cannot be present for the consideration of the issue or take part in the decision.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s126 and s 132).

(3) Any other board member who also has a material interest in the issue must not be present when the board is considering its decision under subsection (2).

(4) In this section:

associate, of a person, means -

(a) the person's business partner; or

(b) a close friend of the person; or

(c) a family member of the person.

executive officer, of a corporation, means a person (however described) who is concerned with, or takes part in, the corporation's management (whether or not the person is a director of the corporation).

indirect interest, - without limiting the kind of indirect interest a person may have, a person has an indirect interest in an issue if any of the following has an interest in the issue:

(a) an associate of the person;

(b) a corporation with not more than 100 members that the person, or an associate of the person, is a member of;

(c) a subsidiary of a corporation mentioned in paragraph (b);

(d) a corporation that the person, or an associate of the person, is an executive officer of;

(e) the trustee of a trust that the person, or an associate of the person, is a beneficiary of;

(f) a member of a firm or partnership that the person, or an associate of the person, is a member of;

(g) someone else carrying on a business if the person, or an associate of the person, has a direct or indirect right to participate in the profits of the business.

material interest, - a board member has a material interest in an issue if the member has -

(a) a direct or indirect financial interest in the issue; or

(b) a direct or indirect interest of any other kind if the interest could conflict with the proper exercise of the member's functions in relation to the board 's consideration of the issue.

58. Allied to this is s 178 of the Act which relevantly provides

(2) The Minister must end the appointment of a board member -

(c) if the member fails to take all reasonable steps to avoid being placed in a position where a conflict of interest arises during the exercise of the member's functions.

59. Mr Marsh submitted that one of the Board members had a conflict of interest which brought these sections into play.

60. Ms Katavic submitted that this, if made out, would amount to a failure of procedural fairness by virtue of s 5(1)(a) of the Judicial Review Act because it would constitute apprehended bias. It seems to me that it may, however, also constitute a failure to observe a procedure required by law under s 5(1)(b) of the Act.

61. The question arose in this way. One of the members of the panel which constituted the Board for the hearing (see Lewis v Chief Executive, Department of Justice and Community Safety (ACT) [2013] ACTSC 198; (2013) 280 FLR 118 at 142; [136]- [137]) was Acting Superintendent M Corbitt, a member of the Australian Federal Police.

62. Mr Marsh submitted to the Board a letter from a firm of legal practitioners which had apparently acted for him. In that letter, reference is made to proceedings that Mr Marsh was pursuing against the Australian Federal Police. The letter stated, inter alia

I ... agree that indeed it appears as though you will be successful in a malicious prosecution case against the Australian Federal Police.

As I have pointed out to you on many occasions, there is a process that needs to be followed in order for this case to be successful. This includes awaiting the response from Police Professional Standards, which we are yet to receive.

...

... I have determined that it is not appropriate for me to represent you in this matter, as we seem to have a difference of opinion on how the matter should proceed.

As I feel you have an extremely strong case I would urge you to seek representation from a different solicitor.

63. Mr Marsh submitted that the existence of his complaint being considered by "Police Professional Standards" and his threatened malicious prosecution claim meant that Acting Superintendent Corbitt had a conflict of interest which required him to stand aside from the hearing by the Board. The failure of him to do so also meant that he was liable to have his appointment terminated by the Minister, which the Minister was required to do under s 178 of the Sentence Administration Act.

64. It was accepted by both parties that Acting Superintendent Corbitt was not the police officer against whom the complaint was made nor that, so far as could be determined, he was directly responsible for the officer against whom the complaint was made or had a personal or direct professional relationship with him.

65. A conflict of interest occurs where a person is in a situation where he or she faces a conflict between his or her interests and the duty which he or she is required to discharge. Thus, Sopinka J, with whom Wilson, Gonthier and McLachlin JJ agreed, said in the Supreme Court of Canada in Old St Bonifaci Resident's Association v Winnipeg City (1990) 75 DLR (4th) 385 at 408-9 of a member of a municipal council

It is not part of the job description that municipal councillors be personally interested in matters that come before them beyond the interest that they have in common with the other citizens in the municipality. Where such an interest is found, both at common law and by statute, a member of council is disqualified if the interest is so related to the exercise of public duty that a reasonably well-informed person would conclude that the interest might influence the exercise of that duty. This is commonly referred to as a conflict of interest ...

66. The avoidance of conflict of interest is one of the core obligations of a person in a fiduciary relationship with another and, in that context, the rule has been classically defined by Lord Cranworth in Aberdeen Railway Co v Blaikie Bros [1843-1860] All ER Rep 249 at 252 as follows:

[N]o one, having [fiduciary] duties to discharge shall be allowed to enter into engagements in which he has, or can have, a personal interest conflicting, or which may possibly conflict, with the interests of those whom he is bound to protect. So strictly is this principle adhered to that no question is allowed to be raised as to the fairness or unfairness of a contract so entered into.

67. It has been suggested by Peter W Young, Clyde Croft and Megan Louise Smith, On Equity (Lawbook Co: Sydney, 2009), p 537 that in this bold form the rule may be somewhat overstated as there will be circumstances where such a conflict is inevitable but without the consequences suggested.

68. In Phipps v Boardman [1966] UKHL 2; [1967] 2 AC 46 at 124, Lord Upjohn also commented on the correct approach, to the matter, especially the comment on the phase used, "possibly may conflict", where his Lordship said

In my view it means that the reasonable man looking at the relevant facts and circumstances of the particular case would think that there was a real sensible possibility of conflict; not that you could imagine some situation arising which might, in some conceivable possibility in events not contemplated as real sensible possibilities by any reasonable person, result in a conflict.

69. It is clear, therefore, that in assessing whether there is a conflict, it is important to identify the duty and the interest, without which clear identification, it is not possible to ascertain, in the way required by Lord Upjohn, whether there is in fact a "real sensible possibility of conflict".

70. As his Lordship further said in Boulting v Association of Cinemetograph, Television and Allied Technicians [1963] 2 QB 606 at 637-8

If [the conflict of interest rule] must be applied with common sense and with an appreciation of the sort of circumstances in which over the last 200 years and more it has been applied and thrived. It must be applied realistically to a state of affairs which discloses a real conflict of duty and interest and not to some theoretical or rhetorical conflict.

71. This approach has been adopted in Australia where Mason J in Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 at 103 described the test as one "in which there is a conflict or a real and substantial possibility of a conflict". See also the reference by Deane J in Chan v Zacharia [1984] HCA 36; (1984) 154 CLR 178 at 199 to "significant possibility of conflict".

72. Thus, for example, a director of a company which is proposing to enter into a contract with another entity was held not to have a conflict of interest merely because he is an employee of the entity remunerated by a salary in Wilson v London Midland and Scottish Railway Co [1940] Ch 169, affirmed [1940] Ch 393.

73. It is also relevant to note that, as a member of the Board, Acting Superintendent Corbitt has an overriding duty to it, notwithstanding his appointment as an officer of the Australian Federal Police. He was clearly appointed in the knowledge of his position as a police officer. His duty to the Board is set out in the well-known decision of Street J in Bennetts v Board of Fire Commissioners of New South Wales (1967) 87 WN (Pt 1) (NSW) 307 at 310. Indeed, as Jacobs J held in Re Broadcasting Station 2GB Ltd [1964-5] NSWR 1648 at 1662-3, there is no breach of the conflict of interest rule where a director votes on a matter in a way that is consistent with the interests of his nominator where those interests coincide with the best interests of the company of which he is a director and to which he owes the overriding duty.

74. In this case, Acting Superintendent Corbitt had a duty, as a member of the Board, to consider genuinely whether Mr Marsh had breached a condition of his parole order and, if so, to decide whether his parole order should be revoked.

75. As to the interests said to conflict with this duty, the identification and articulation is somewhat more difficult. Unsurprisingly, as an unrepresented litigant, Mr Marsh was not able to do so.

76. No doubt Acting Superintendent Corbitt would not wish the reputation of the Australian Federal Police, a force of which he was a senior member, to be brought into any kind of disrepute that may follow from a successful claim for malicious prosecution, though it cannot be assumed that he would take the view that no such claims could ever properly be made. Nor could it be assumed that he would regard a proper claim as one that should not be heard by the courts.

77. There was a suggestion that, as the Australian Federal Police was a disciplined force, Acting Superintendent Corbitt may have a particular feeling of affinity for the police officer, I believe a Constable, who may be the subject of the complaint and malicious prosecution proceedings.

78. Are these material interests (s 177(4))? They are certainly not direct or indirect financial interests. To be material, they must be direct or indirect unless of a kind that "could conflict with the proper exercise of the [Board] member's functions".

79. I find it hard to see how that could be in this case. The question of whether Mr Marsh had breached a condition of his parole order was straightforward; indeed, he acknowledged that he had done so.

80. As to whether his parole order should be revoked, it is also hard to see how that decision would be in conflict with either of the identified interests. The claimed interests are very generic and the possible action or complaint would not be affected by revocation of the parole order. That could not stop the complaint, which had already been made and was unlikely to prevent any proceedings under it from being taken. The complaint had already been made; it was being investigated and such investigation would not be stopped or probably hindered by revocation of Mr Marsh's parole.

81. Mr Marsh submitted that he would have difficulty in obtaining the different solicitor it was suggested he obtain were he to be incarcerated. That may be so, but he had not, at the date of the hearing, received a response from the Australian Federal Police Professional Standards and the balance of his custodial term would not extend beyond the limitation period for his claim, were it to be suggested that revocation of his parole would render impossible to any reasonable degree inhibit the prosecution of his claim.

82. It is relevant, too, that Acting Superintendent Corbitt in fact had no personal knowledge of the complaint, which the Statement of Reasons records. That is unsurprising given the confidentiality and secrecy provisions in relation to complaints found in the Australian Federal Police Act 1979 (Cth), ss 40ZA, 60A.

83. It is important that there was no evidence to suggest that the complaint was directly relevant to Acting Superintendent Corbitt. As I have noted, the complaint was not one about Acting Superintendent Corbitt on his conduct or the conduct of any officer for whom he was directly responsible. There was also no evidence to suggest that Acting Superintendent Corbitt would be making any kind of decision in respect of the complaint. These circumstances may have disclosed a conflict of interest. These issues put Acting Superintendent Corbitt in a not dissimilar position to a mere shareholder in a company rather than its directing mind, an important distinction made by Aickin J in Australia and New Zealand Banking Group Ltd v Bangadilly Pastoral Co Pty Ltd [1978] HCA 21; (1978) 139 CLR 195 at 225.

84. In my view, there was no material interest that Acting Superintendent Corbitt had in any issue to be determined by the Board which conflicted with his duty to the Board.

85. So far as the question of apprehended bias was concerned, Ms Katavic submitted that this was also not made out.

86. Apprehended bias is shown, the High Court held in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (Ebner) at 344; [6], in the case of a judge

if a fair-mind lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.

(Citation omitted)

87. That such principles apply to a tribunal such as the Board is clear from what was said in, for example, R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 456 at 553-4, and it was also there made clear that allegations of such apprehended bias must be "firmly established", not perhaps significantly different from the requirement that a conflict of interest must be a real and substantial possibility.

88. In Ebner, the judge hearing the claim disclosed to the parties that he was a director of a trustee of a family trust which held about 8,000 to 9,000 shares in the respondent Bank and that he was a contingent beneficiary of the trust. The Bank was not a party to the proceedings but had a pecuniary interest in the outcome of the proceedings. In other proceedings heard at the same time, the judge, after the hearing of the trial but before judgment, inherited 2,400 shares in the Bank which was the plaintiff. In both cases, the High Court held that the judge was not disqualified from hearing the proceedings.

89. The Court held at 345; [8] that the determination of the question whether there is such apprehended bias requires two steps

(1) the identification of what is said might lead the relevant person to decide the matter other than on its legal and factual merits; and

(2) the logical connection between that and the feared deviation from the course of deciding the matter on its merits.

90. The test is an objective one: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 493; [12]. It also assumes that the fair-minded lay observer, while not assumed to have a detailed knowledge of the law or the character or ability of the particular relevant person, will have a general understanding of the characteristics that may be attributed to the relevant person, who can be expected to approach the task of deciding the matter so as to ensure both the appearance and substance of fairness and impartiality: Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 299; Johnson v Johnson at 493; [13], 508; [53]. Fair-minded lay observers would also take the trouble to inform themselves to the extent necessary to make an informed judgement: British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 383 at 283; [47].

91. As was submitted by Ms Katavic, the letter from his former solicitors handed up by Mr Marsh showed that only the following could be concluded:

1. that Mr Marsh considers he has a strong malicious prosecution case against the AFP, a position his former solicitor appears to share; and

2. that the process needs to await the outcome of the Professional Standards investigation.

3. no reference is made to the precise details of the Professional Standards complaint or investigation;

4. the grounds for any malicious prosecution case are not disclosed; and

5. no specific evidence, circumstances or facts are stated in the letter.

92. There is no logical connection, as is required, between the fact of a complaint made and the likelihood that Acting Superintendent Corbitt might bring a biased view to the decision of the legal and factual matters before the Board. There must, however, be such a connection before the ground can be made out.

93. Clearly, there is a requirement for there to be no conflict of interest or bias as part of the Territory's discharge of its obligation under s 21 of the Human Rights Act to ensure that everyone has the right to a fair trial.

94. In Lawal v Northern Spirit Ltd [2004] 1 All ER 187 at 192-3; [14], Lord Steyn, delivering the considered opinion of the Privy Council, held that the test for apprehended bias, which was set out in Porter v Magill [2002] AC 257 at 494; [102]-[103] by Lord Hope of Craighead and unanimously endorsed in that case by the House of Lords, was identical with the requirements under Art 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (INT) done at Rome on 4 November 1950, ETS 5 (European Convention). The test set out in Porter v Magill requires the court to ask the following question

... whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.

95. That test seems to me to be so close to, if not identical with, the test as outlined by the High Court that I can rely on Lawel v Northern Spirit Ltd to hold that the test, if applied to show that there is no apprehended bias here in Acting Superintendent Corbitt remaining on the Board for the hearing of Mr Marsh's matter, will mean that it complies with the fair trial right under s 21 of the Human Rights Act which is in relevantly identical terms with Art 6 of the European Convention.

97. This ground is a complaint that the Board failed to take into account relevant considerations when making its decision.

98. It is always important to differentiate between the failure to take into account relevant considerations and merits review.

99. As I said in Forman v ACT Planning and Land Authority [2013] ACTSC 167; (2013) 279 FLR 54 at 74-5; [136]- [137]

[136] ... The question of whether a decision-maker has taken into account a relevant consideration is not to be used to undertake a merits review, as warned by the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274; (2001) 106 FCR 426 at [63]- [64]. Thus, although Gummow J in Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291 at 292 said that a decision-maker must give "proper, genuine and realistic consideration to the merits of the case", that is not a means of converting judicial review into merits review.

[137] Despite some controversy about the formulation articulated by Gummow J, and though some courts have followed it, it seems that such consideration falls under the principle that the weight accorded to relevant considerations are matters for the decision-maker, and not for the court, unless it shows that the decision is seriously irrational: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at 174-8; [23]- [39]. Further, a failure to respond to a substantial argument may amount to a breach of the rules of natural justice: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394; [24] (Gummow, Callinan JJ), [89] (Kirby J), [95] (Hayne J); Minister for Immigration and Citizenship v SZJSS at [35].

100. Mr Marsh handed up to the Board certain progress notes from the medical facility that he had attended, Winnunga Numnityjah Aboriginal Health Service, which he says were not taken into account. He said they were given insufficient or no weight.

101. The Sentence Administration Act does not confine the information or material that the Board may receive, but clearly it must have some reasonable relevance to the issue before the Board, in this case whether to cancel Mr Marsh's parole over which the Board has a wide and unconfined discretion.

102. Mere relevance may not be sufficient, as Mason J said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 40

In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard.

Later, his Honour made the additional point

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.

103. In the case of Mr Marsh's parole, however, the Board did take the records into account. The Statement of Reasons stated

Mr Marsh disclosed that he was experiencing mental health problems. The Board rejected the submission that the condition of Mr Marsh's mental health excused the breach. Relevantly, the sentencing court was aware of Mr Marsh's mental health when Mr Marsh was initially sentenced. Moreover, in terms of treatment, the Board was of the view that if Mr Marsh's parole order was cancelled, he would have access to consistent monitoring and medical care at the AMC.

The only other evidence supporting Mr Marsh's medical claim were patient summaries/medical progress notes from Winnunga dated 18 September 2013. The Board was not satisfied that these notes presented a reliable explanation for the breach. These notes mainly comprised the history provided by Mr Marsh to health professionals at Winnunga rather than the health professionals' medical opinions.

In addition, the Board was not satisfied of the probity of the claims made by Mr Marsh in the notes. In the notes, Mr Marsh suggested that he was unable to complete the Arcadia House Transition Program because he 'has fear and feels very anxious talking in public or even when more than 2 people are present'. The Board found that Mr Marsh's participation in similar programs at Winnunga undermined this claim.

104. It is clear that not only did the Board take the tendered notes into account, it gave them careful consideration. There can be no doubt that the Board gave them a "proper, genuine and realistic consideration". That they rejected the evidence does not gainsay that; indeed, it seems to me that it confirms it, for the Board gave careful and rational reasons for rejecting the evidence.

105. There is no basis for any suggestion that the Board's consideration of the notes was irrational in the sense referred to by the High Court in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at 174-8.

106. So far as any issue under the Human Rights Act is concerned, particular issues of evidence is not a matter that is regulated by the Act; what must be shown is that the proceedings as a whole are fair. See, for example, Miailhe v France (No 2) [1996] ECHR 42; (1996) 23 EHRR 491 at [43]. In this case, the receipt and consideration of the evidence meets any human rights issue involved.

108. Mr Marsh said that the Board "failed to give [him] the right to make submissions". The absence of a recording or a transcript makes this ground less easy to determine than is desirable. In that sense, I should accept more confidently the assertion made by Mr Marsh, for the reasons set out above (at [52]), unless there is countervailing evidence. In this case, there are some facts that are clear or are admitted which assist.

109. Section 209 of the Sentence Administration Act gives an offender appearing before the Board certain rights, including the right to "make submissions to the [B]oard about matters relevant to the inquiry".

110. Were that right denied, it would be a breach of the requirement to observe a procedure required by law to be observed. It would also be a breach of the right to be heard.

111. It is not necessary to dilate on the jurisprudence of these grounds for judicial review for there is no factual basis for such complaint.

Marsh v Australian Capital Territory [2014] ACTSC 81

At a glance

Court

Decision date

Source

Judgment (278 paragraphs)

Marsh v Australian Capital Territory [2014] ACTSC 81 (7 May 2014)

Parties

Legislation Cited (8)

Cases Cited (23)