Mentink v Commissioner for Northern Territory Police

1. The application for disqualification be dismissed.
2. The respondent file and serve the Court Book on or before 10 September 2021.
3. The applicant file and serve such amended originating application, if any, or, as the case may be, particulars of the grounds in respect of the originating application as filed, an outline of submissions of not more than 15 pages, and any affidavit material he intends to rely upon by 15 October 2021.
4. The respondent file and serve an outline of submission of not more than 15 pages and any affidavit material he intends to rely upon by 29 October 2021.
5. The proceeding be listed for hearing on the estimate of 1 day, in Darwin, in November, to a date to be fixed by the Court after consultation with parties. The mode of hearing may be varied by the Court depending on public health considerations.
6. Pursuant to r 4.12 of the Federal Court Rules 2011 (Cth), a referral certificate for pro bono legal assistance to the applicant be issued.
7. Costs be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 On 10 August 2021, Mr Wilfred Jan Reinier Mentink filed an application in the Court's Northern Territory district registry for the judicial review of a decision made by the Commissioner for Northern Territory Police (Commissioner) in the Commissioner's capacity as a competent authority pursuant to s 271A.1 of the Criminal Code 1995 (Cth) (Criminal Code) to refuse to permit him to leave Australia. 2 In the ordinary course of judicial administration, that judicial review application was allocated to my docket for an exercise of judicial power in respect of the hearing and determination of that judicial review application. Today is the day appointed for the first case management hearing in respect of that judicial review application. 3 On 25 August 2021, Mr Mentink filed an interlocutory application the essence of which is that I should disqualify myself in respect of the hearing and determination of the judicial review application on the basis that there exists a reasonable apprehension of bias. There is no doubt that such applications should be made promptly. It is therefore entirely proper for Mr Mentink to have made his application in respect of an apprehension of bias at the earliest possible opportunity after becoming aware of its allocation to my docket. It is convenient to determine that application today. 4 The principal basis for the application arises from my exercise of judicial power in respect of an earlier application by Mr Mentink for the judicial review of a decision made by the Queensland Police Commissioner, again in the capacity of a competent authority pursuant to s 271A.1 of the Criminal Code to refuse to permit him to leave Australia: see Mentink v Queensland Police Commissioner (No 2) (2020) 279 FCR 212. Mr Mentink particularly drew attention to a passage in that judgment in response to a submission made by him. In that case I dealt with the subject of an "RM2000 risk assessment tool". The passage to which Mr Mentink refers is at [114] and [115] of that judgment in which I stated: 114 The assessment of Mr Mentink as "high risk" using the "RM2000 risk assessment tool" is also referred to under this heading, at [44], as is a challenge made by Mr Mentink to its utility. Detective Superintendent Clark deliberately chose not to give the RM2000 assessment any weight, "given the significant amount of information available to me and my consideration of that material". Instead, all that he did was to note the assessment but to place weight "on my findings as to the Applicant's individual circumstances to determine the risk that the Applicant may pose". 115 The submissions made by Mr Mentink in relation to the RM2000 based risk assessment proceed upon the false premise that it was afforded weight in the decision-making process. Instead, as I have highlighted, that assessment was afforded no weight, merely noted, for the reason given by Detective Superintendent Clark. It is no part of the present proceeding to serve as a vehicle for the entertaining of a critique by Mr Mentink as to his perceived failings in the utility of that assessment tool. [emphasis added by Applicant in an affidavit relied upon] 5 I did have an earlier judicial involvement in a case concerning Mr Mentink in the Full Court: see Mentink v Registrar of the Australian Register of Ships [2015] FCAFC 150. But no aspect of that involvement grounded Mr Mentink's application. Another limb to Mr Mentink's application was that the necessary consequence of my having determined the earlier judicial review application was exposure to a range of material including material which went to past offending conduct which was before the Queensland Police Commissioner at the time of the decision under judicial review in that case. Such exposure, it was submitted, might give rise - or be thought reasonably to give rise, subconsciously, to bias. 6 For his part, the Commissioner recognised that the question was one for adjudication in the first instance, in any event, by the judge in respect of whom the disqualification application had been made. The Commissioner's submission was that there was not to be found in the settled principles in respect of disqualification occasion in this instance for disqualification on the basis of an apprehension of bias. 7 As I observed to Mr Mentink in the course of submissions, it is entirely understandable and certainly no basis for adverse criticism of him that a person in his circumstances, which include the dismissal of the earlier judicial review application and absence of formal legal training, might see occasion for judicial disqualification. 8 That such a view is understandable, and I have no doubt, genuinely felt, does not provide a basis in law for disqualification. The cases which establish the governing principles in respect of an application for disqualification on the basis of apprehension of bias are notably Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 and Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427. In substance, the question to be answered is when a fair-minded lay observer reasonably informed as to surrounding circumstances might reasonably apprehend that the judicial officer concerned might be biased. 9 The answering of that question must be tempered by the sentiment voiced by Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342, at 352. In short, judges have a sworn duty to discharge their commissions unless disqualified by law. The effect of that is that an application for disqualification must not be approached by a judicial officer as a way of avoiding sworn duty to decide cases without fair favour, affection or ill will. Such applications should not, therefore, too readily be upheld. 10 The application heard last year was for judicial, not merits review, of an administrative decision. The metes and bounds of that application were fixed according to legal error grounds. The resultant judgment entailed no assessment at all as to the merits of whether Mr Mentink should be permitted to leave Australia, must less did it entail any assessment as to his credibility. 11 Indeed, for reasons given in that judgment, it would have been outside the jurisdiction consigned to the Court to have made any such evaluation. The same may be said in respect of the present application. The metes and bounds of that application are fixed by the pleaded grounds of appeal in the amended application as to matters of law. The matters of fact are a given. The focus must be on the material before the Commissioner, the decision of the Commissioner and the reasons given by the Commissioner viewed in light of the alleged grounds of appeal. Once again, no assessment on the merits is entailed. 12 Mr Mentink also advanced, as I have mentioned, a submission as to subconscious bias. That, with respect, is a subject which perhaps is not often canvassed enough in relation to exercises of judicial power. As it happens, I had occasion earlier this year when sitting as a member of the Defence Force Discipline Appeal Tribunal, which is a body charged with the exercise administratively of an appellate jurisdiction in respect of convictions by courts martial and defence force magistrates to consider that subject in relation to a general court martial panel exposed to evidence which was inadmissible: see Howieson v Chief of Army [2021] ADFDAT 1 and the cases cited at [40] - [43]. 13 I do, therefore, respect the raising by Mr Mentink of that subject and have reflected upon that from the moment in which the filing of the interlocutory application was drawn to my attention. Having done that and heard the submission for Mr Mentink and also the Commissioner, the view I have reached is that the case is one which must be decided by me. Judges are expected to be quite clinical about the exercise of judicial power on judicial review. I intend to live up to that expectation. 14 The case is one which truly requires a very clinical approach indeed, conscious of both the separation of powers, unconcerned at all with past offending conduct but wholly concerned with whether or not the respondent Commissioner has, having regard to the grounds of review, discharged his duty according to law in respect of the application which Mr Mentink made. Whether or not that entails consideration of the role and reliability, if any, of the RM2000 risk assessment tool will be wholly dependent upon such use, if any, as the Commissioner made in respect of his decision. That is in no way dependent upon the outcome in the earlier proceedings concerning the Queensland Police Commissioner. 15 For these reasons, then, the application for disqualification is dismissed. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.