Consideration
38 Dr Verney's letter of 14 May 2012 and his statement of reasons both proceeded on the basis that the issues raised in the 2012 application had been fully considered by Senator Colbeck when he made his decision in 2006 to reject the 2005 application. Dr Verney identified that Senator Colbeck's earlier consideration was one reason why he had decided to exercise, what he termed, his discretion not to reconsider the request for an act of grace statement. The second basis which Dr Verney said he had for that exercise of discretion was that the information in the 2012 application "… did not represent new information that warranted reconsideration" (emphasis added). Dr Verney identified, as a matter that he had taken into account in that exercise of his discretion, a policy that generally a request for a payment under s 33(1) would not be reconsidered unless it could be shown that the decision-maker had made a serious mistake or relevant new information warranting reconsideration were provided.
39 It may be accepted that Senator Colbeck fully considered the 2005 application in arriving at his decision to decline to make a payment. However, that application was put on a very different basis to the 2012 application. Unlike the 2012 application, the 2005 application was unsupported by clearly articulated legal submissions, did not include any supporting medical evidence and was not made by Mrs Tomson. In addition, Mr Tomson had made the 2010 statutory declaration that was included in support of the 2012 application.
40 I reject the Minister's argument that the 2012 application did not go to what she characterised as the "core issue", namely that, so she contended, Custom's actions constituted special circumstances. The issue under s 33(1) is whether it is appropriate "because of special circumstances" for the Minister (or a delegate) to authorise an act of grace payment. In considering the 2005 and 2012 applications the actions of Customs necessarily would be part of the circumstances. But, the statutory language requires a decision-maker who has embarked on a consideration of an application for a payment under s 33(1) to look at the overall matrix of facts presented and to assess whether that scenario itself amounts to, or has characteristics that constitute, "special circumstances". The Minister's argument is itself a descent into a merits review analysis.
41 The actions of the Commonwealth referred to in an application could be unimpeachable both in law and, from its perspective, on the facts, yet they might create a situation because of their effect on an applicant in which there were "special circumstances" warranting the exercise of the discretion to authorise a payment under s 33(1). The section expressly contemplates that the payment might not be otherwise authorised by any law or required to meet a legal liability. For example, a person who suffered financial loss because of the lawful implementation of a legislative scheme might be compensated because he, she or it was unintentionally, or even intentionally, harmed by that action for which there was no legal remedy.
42 Full consideration by Dr Stone and Senator Colbeck of Mr Tomson's exaggerated and insupportable 2005 application for $108 million in losses claimed to flow from the interruption and cessation of the business of two small suburban shops is one thing. But, the 2012 application was made by two people, not one, on new facts, including Dr Klug's two reports on their medical conditions in late 2009 and a rational, articulated legal argument that sought to connect the claimed, but not insubstantial, damages of about $3 million to the facts. Those facts were also articulated and, of course, related to the actions of Customs in seizing the containers and subsequently prosecuting Mr Tomson.
43 However, the facts and reasons given in support of the new, much smaller, claim presented and relied on in the 2012 application were not the same on any reasonable construction as those in the 2005 application. There were common features for both applications, including the impugned actions of Customs. But, the question for Dr Verney, as delegate, in considering the 2012 application was whether that new, different, application by both Mr and Mrs Tomson, considered as a whole, raised special circumstances that warranted the exercise of the discretion to authorise a payment.
44 Moreover, Senator Colbeck's letter could not have been a full consideration of the much later 2012 application. Rather, that Minister rejected the request put through Mr Rodda to Senator Heffernan for reconsideration of Dr Stone's decision that had been based on consideration of the 2005 application's claim. Mr Tomson's losses were $108 million on that claim's merits. And, as appears to be common ground, that application provided no support for Mr Tomson's claim for $108 million. Similarly, the Government's response in 2006 to the Report made the point that Mr Tomson had not provided particulars that demonstrated a connection between the prosecution and any claimed losses. Senator Colbeck came to a similar conclusion.
45 There is some tension between Dr Verney's reasoning that, on the one hand, he was not satisfied that any medical condition or claimed economic loss suffered by Mr and Mrs Tomson was sufficiently connected to Customs' actions and, on the other hand, his exercise of his discretion not to "reconsider" their claim. His latter reasoning suggests that Dr Verney had not considered the claim made by Mrs Tomson at all, since she had never made a claim in 2005 or 2006 that could be "reconsider[ed]" in 2012. Yet, Dr Verney's earlier reasoning suggests that he gave her claim some consideration. Whatever degree of consideration he gave, it is evident that Senator Colbeck gave no, or no real, consideration to Mrs Tomson's position, because she never made a claim in the 2005 application. Hers was a claim that was new and raised for the first time in 2012, albeit that it was closely connected to her husband's claim.
46 In Li 297 ALR at 236 [24] per French CJ, 247 [67] per Hayne, Kiefel and Bell JJ and 257 [109] per Gageler J, the Court approved what Dixon CJ had said with the agreement of McTiernan and Windeyer JJ in Klein v Domus Pty Ltd (1963) 109 CLR 467 at 473 concerning judicial review of the exercise of an ill-defined or broadly expressed discretion conferred on a judicial or administrative decision-maker. Dixon CJ said:
"This Court has in many and diverse connexions dealt with discretions which are given by legislation to bodies, sometimes judicial, sometimes administrative, without defining the grounds on which the discretion is to be exercised and in a sense this is one such case. We have invariably said that wherever the legislature has given a discretion of that kind you must look at the scope and purpose of the provision and at what is its real object. If it appears that the dominating, actuating reason for the decision is outside the scope of the purpose of the enactment, that vitiates the supposed exercise of the discretion. But within that very general statement of the purpose of the enactment, the real object of the legislature in such cases is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case." (emphasis added)
47 As I have said, Dr Verney's reasons revealed that he had applied a policy in respect of the 2012 application that a request for an act of grace payment would not be reconsidered unless it could be shown that the previous decision-maker had made a serious mistake or relevant new evidence warranting reconsideration were provided. He exercised his discretion in accordance with that policy to refuse to "reconsider" the 2012 application without regard to its merits. So much is evident from his assertion that Senator Colbeck had fully considered the issues in 2006. That assertion revealed that Dr Verney did not give any consideration to whether "special circumstances" existed because of, individually or in some combination, the substantive new issues concerning Mrs Tomson, who had been no part of the 2005 application, the clearly articulated and very different basis of the claim for compensation, Mr and Mrs Tomson's reply to the Government's response to the Report, Mr Tomson's failed claim against his former lawyers, and the medical issues in Dr Klug's reports.
48 I am satisfied that Dr Verney failed to consider the whole of the relevant material in the 2012 application by giving "proper, genuine and realistic consideration to the merits of the case" and "be[ing] ready in a proper case to depart from any applicable policy": Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J; Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at 174-175 [26]-[30] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
49 As a general principle, an administrative decision-maker is required to make his or her decision on the basis of the material available to him or her at the time the decision is made: i.e. on the basis of the most current material available: Peko-Wallsend 162 CLR at 45 per Mason J; see too SZJTQ v Minister for Immigration and Citizenship (2008) 172 FCR 563 at 571-573 [27]-[42] where I discussed the principle.
50 Although Dr Verney had the 2012 application before him, he mistakenly asserted that all the issues that it raised had been fully considered years before in dealing with the 2005 application. Indeed, as Dr Verney's reasons showed, he only had Senator Colbeck's letter and the 2012 application itself before him. He did not have before him what Senator Colbeck had considered. Thus, he did not consider the parts of the 2005 application not reproduced in the 2012 application or Dr Stone's letter. Accordingly, he could not have been satisfied that Senator Colbeck, or for that matter, Dr Stone, had considered the substantive new material and the issues raised in the 2012 application.