Toomer v Slipper

Grounds of review 4 On 6 April 2001, the applicant filed the present application in this Court. The applicant seeks review of the decision of the respondent, made on 15 February 2000, to refuse to approve an act of grace of payment pursuant to s 33 of the FMA Act ("the first decision"), and the decision, made on 29 June 2000, to refuse to reconsider his decision of 15 February 2000 in light of additional evidence provided by the applicant ("the second decision"). 5 The application is supported by the following grounds in relation to the first decision: " (a) That a breach of the rules of natural justice occurred in connection with the making of the decision. PARTICULARS (i) The Respondent failed to give opportunity to the Applicant to provide further grounds for his application after his initial letter of 4 January 2000 and the opportunity to respond to the advice given to the Minister by his Department contained in a Ministerial Briefing (undated) signed off by the Minister on 15 February 2000 by Cath Tighe and a letter dated 5 February 2000 [sic] by Alan Doolan, Acting Merit Protection Commissioner. (ii) Failure by the Minister to inform the Applicant that if he was aggrieved by the decision of the Minister he could make application to the Federal Court pursuant to Section 5 of the Administrative Appeals (Judiciary) Review Act 1987 [sic]. (iii) Refusal by the Minister or his advisers to consider that there should be a mechanism for the Applicant or any other person who made an application pursuant to Section 33 of the Financial Management Accountability Act 1977 [sic] to ask for a review or reconsideration of the decision by the Minister and a provision by the Minister of reasons for reaching his decision. (b) That a breach of the rules of natural justice occurred in connection with the making of the decision in that there was pre‑judgment of the matters that were subject to and taken into account in the Minister's decision thereby giving a reasonable apprehension of bias against the Applicant. PARTICULARS (i) The decision of the Respondent had already been predicated by the decision of the Prime Minister Mr Howard by letter dated 6 July 1992 in which Mr Howard rejected the Applicant's complaint against the conduct, findings and recommendations of the Merit Protection and Review Agency (MPRA). His further response was also reflected in a letter of 28 April 1992 from Senator Cook. (c) The decision involved an error of law or was otherwise contrary to law.

PARTICULARS (i) The Minister in his letter dated 15 February 2000 misconstrued the term "special circumstances" and that he could only exercise his discretion when a decision of the Commonwealth led to an unintended or inequitable result to a particular individual and it was because of a moral obligation on the Commonwealth to redress the circumstances of the individual concerned. The Minister failed to consider that the term "special circumstances" could have a wider meaning that he intended to have and it could include a position where no fault could be attached to the resulting application of Commonwealth law. (d) That the person who purported to make the decision did not have the jurisdiction to make the decision. PARTICULARS (i) No evidence has been given of the instrument of delegation to the Respondent by the Minister of Finance to make decisions pursuant to Section 33 of the Financial Management & Accountability Act 1977. (e) The making of the decision was an improper exercise of power conferred by Section 33 of the Financial Management & Accountability Act 1977 PARTICULARS (i) The Minister relied on a Briefing Note (undated) prepared by an Officer of his Department, Catherine Tighe, which contains an unbalanced and unfair appraisal of the circumstances concerning the Applicant's downgrading from Senior Quarantine Officer in 1973. (ii) That undue weight is placed on the report prepared by the Merit Protection and Review Agency concluded in February 1991 which refused to accept the findings of the Administrative Appeals Tribunal constituted by Mrs J.R. Dwyer who made a decision on 12 April 1990. (iii) In the alternative that the MPRA report was ultra vires. (f) That the Respondent failed to take relevant considerations into account in the exercise of his power. (i) The potential conflict of interest between two Departments of State as the applicant, a Commonwealth Public Servant, was employed by the Department of Health as Senior Quarantine Inspector but also designated as a Senior Grains Inspector under the control of the Department of Primary Industry with both departments applying different standards to the conducting of ship inspections. (ii) That the Minister and his Officer relied on an assessment of the Applicant's case by Mr Alan Doolan, the Acting Merit Protection Commissioner dated 5th February 2000 [sic] on a report prepared by him when he was a member of the agency at the time of the original report. (iii) The Minister did not take into account in any detail the following reports which were favourable to the applicant:‑ (a) Investigation report undertaken by a Deputy Public Service Inspector in 1973. (b) Report by an independent psychiatrist examined the applicant as a result of his suspension and placement on sick pay. (c) Coombs [sic] Royal Commission on Australian Government Administration which commented on Mr Toomer's dismissal (d) A letter from the then Minister John Keran [sic] to then Prime Minister Mr Hawke on the 8th November 1988 recommending compensation. (e) The full findings of the Administrative Appeals Tribunal made on the 12th April 1990. by Mrs O'Dwyer. (f) The legal opinion of Castan QC dated 25th June 1991. (g) The opinion of Dwyer QC dated 30th April 1992 (h) The report of the 1995 Senate Select Committee on Unresolved Whistleblower Cases which expressed preference for AAT's findings against those of the MPRA report. (g) The decision was an exercise of power which no reasonable person could exercise the power. PARTICULARS See Particulars as set out in Paragraph C." 6 In relation to the second decision the following ground is relied upon: "(a) That a breach of the rules of natural justice occurred in connection with the making of the decision. PARTICULARS That the Minister failed to take into account the further evidence provided by the Applicant in a letter dated 13 May 2000 from Mr Potter requesting a review of his decision of 15 February 2000 and a further letter of 7 June 2000."

Breach of the rules of natural justice 7 It was submitted on behalf of Mr Toomer that in dealing with his request for an act of grace payment, the respondent had failed to accord him procedural fairness. In relation to the first decision, it was contended that the failure of the respondent to provide guidelines to persons seeking act of grace payments constituted a breach of the rules of natural justice. 8 No authority was cited in support of this contention. That is scarcely surprising. Whether or not a decision-maker in whom the legislature has reposed a statutory function provides "guidelines" to the exercise of that function is essentially a matter for the decision-maker, absent any indication in the legislation that such guidelines are required. In Attorney-General (NSW) v Quin (1990) 170 CLR 1 (at 33), Brennan J, as his Honour then was, said: "…If the power is conferred by statute but the statute prescribes no … criteria governing the exercise of the power, the power must be at large…" 9 In my opinion, the applicant's submission is devoid of merit. 10 It was then argued that the applicant had been denied procedural fairness because the respondent had failed to ensure that there was a mechanism for review available within the Department. It is difficult to see how such a mechanism could be put in place having regard to the fact that a decision under s 33 of the FMA Act is taken at the highest Ministerial level. In any event, that argument is also unsupported by authority and is plainly devoid of merit. 11 It was argued in the alternative that the respondent's decision was tainted because it did not advise the applicant of his right to seek judicial review pursuant to s 5 of the ADJR Act. The applicant referred generally to Kioa v West (1985) 159 CLR 550 and FAI Insurances Ltd v Winneke (1982) 151 CLR 342. He submitted that the factors that need to be taken into account in determining the content of procedural fairness depend upon the circumstances of each case, and the subject matter that is being dealt with. While that may be so, I am unable to accept the contention that the mere failure to inform a party aggrieved by a decision of the existence of particular rights of review constitutes a denial of natural justice. Even if I am wrong about that, the applicant has brought proceedings for review of each of the relevant decisions. It is plain, therefore, that he has not suffered any prejudice as a result of the failure to inform him of his rights of review. 12 The applicant submitted that he had been denied natural justice in relation to the making of the first decision because he had been denied the opportunity to respond to the advice given to the respondent by his Department in an "undated" briefing, and in a letter dated 5 February 2000 by the Acting Merit Protection Commissioner. 13 An affidavit of Ms Catherine Tighe, an Assistant Director in the Special Financial Claims Section, Financial Framework Group of the Department of Finance and Administration was read and relied upon by the respondent. Ms Tighe was the officer that prepared the "undated" briefing to the respondent in response to the letter of request. The briefing was in fact dated 9 February 2000. Her affidavit makes reference to the documents that were before the respondent when he made his first decision. These were: · The letter of request, including the documents attached to the letter, which comprised a file minute from Mr Dienhoff, relating to complaints from various shipping companies as described above, a summary of the effects which the alleged victimisation had on the applicant, a letter dated 2 March 1984 to Prime Minister Hawke from Doug Everingham, Federal Member for Capricornia, and an extract from Senate Hansard dated 10 March 1985, relating to the Australian Democrats' support for the Quarantine Amendment Bill, underlining Senator Jack Evans' comments in relation to Mr Toomer's case; · The briefing provided by Ms Tighe dated 9 February 2000, with a draft of the letter of denial; and · A letter to Ms Tighe from Alan Doolan, Acting Merit Protection Commissioner of the Office of the Merit Protection Commissioner ("the OMPC") (the body which replaced the MPRA in 1999), in fact dated 2 February 2000, responding to a request for information relating to the letter of request. 14 Additionally, in the statement of reasons, a number of other documents post dating the letter of denial were said to have been placed before the respondent, prior to his having written the letter of 29 June 2000, containing the second decision. These documents were: · A letter of 10 March 2000 from Mr Toomer to the Minister; · Ministerial Briefing dated 30 March 2000, in response to the letter of 10 March 2000; · Letter of 13 May 2000 from Mr Potter, on behalf of Mr Toomer; · Ministerial Briefing dated 25 May 2000, in response to the letter; · Letters from Mr Potter dated 7, 8 and 16 June 2000; · Letter to the Department of Finance and Administration from the OMPC dated 19 June 2000; and · Ministerial Briefing dated 20 June 2000 in response to the June letters from Mr Potter. 15 In my opinion, the applicant was given a full opportunity to be heard in relation to the making of the first decision. However, even if he was not, that decision was effectively subsumed by the decision of 29 June 2000 which was the final and operative decision: Dunstan v Farr [2001] 60 ALD 192. The applicant was given every opportunity to be heard before a "final decision" was taken. He was also provided with detailed and comprehensive reasons for that decision. It is plain that all of the letters written on his behalf by Mr Potter were taken into account by the respondent when he decided on 29 June 2000 not to reconsider the first decision. 16 The applicant's complaint that he was denied procedural fairness must be rejected.

Reasonable apprehension of bias 17 The applicant's submission in support of this ground was somewhat convoluted. As I understood the argument, the applicant had sought the intervention of John Howard, then Shadow Minister for Industrial Relations, Employment and Training, in 1992 on his behalf. Mr Howard had corresponded with the relevant Minister, Senator Peter Cook, who conveyed to him the government's view that the findings of the MPRA in respect of Mr Toomer should be upheld. It followed that this became government policy, binding not just upon the former Labor government but the Howard government as well. A decision on the part of the respondent to grant the applicant an act of grace payment would therefore be contrary to government policy, and according to the applicant, no Minister or Parliamentary Secretary could be expected to act in that way. It followed that the applicant was entitled to entertain a reasonable apprehension of bias on the part of Mr Slipper. 18 The respondent answered this contention by submitting that if apprehended bias was found to exist merely because a previous government had accepted the findings of the MPRA, no member of the present government would ever be in a position to consider the applicant's request. The Minister would be prevented from exercising the statutory power vested in him by s 33 of the FMA Act. That would render the scheme of the Act virtually unworkable. In my view, the respondent's submission is manifestly correct. 19 The applicant also submitted that the first decision should be set aside by reason of apprehended bias because the respondent had had regard to the report of the MPRA which contained material which should not have been placed before him. The first answer to this submission is that there is nothing to suggest that the respondent had the report of the MPRA before him. However, even if he did, it was the applicant himself who referred to the contents of the report when attacking the MPRA's findings in the letter of request. The applicant said in that letter: "The MPRA's report issued in February 1991. It comprised 339 pages plus a 210 page history, and was signed by all five MPRA members. They concluded that my competence was not an issue, that the fault was mine because I refused Dr Mathieson's lawful instruction to estimate rat numbers, that the rat numbers practice was valid at the material time, that I had responded inappropriately, that I was not victimised, and there was no impropriety. The report recommended against compensation, that my case be firmly closed, unless I might take action at my own expense. The Minister instantly announced Government acceptance of its recommendations. There had been no time for consideration by Cabinet." 20 In these circumstances, it is difficult to see how the applicant can complain that any use was made by the respondent of the assessment of his case by Mr Doolan.

Error of Law 21 In the letter of denial, the respondent wrote: "My power to approve act of grace payments under the FMA Act is only exercised where it is considered that the application of Commonwealth legislation has produced unintended, anomalous, or inequitable results, or where, because of its direct role in a particular situation the Commonwealth considers that it has a moral responsibility to redress the circumstances of the individual concerned." 22 The applicant submitted that the respondent had erred in law by adopting an unduly narrow interpretation of the term "special circumstances" in s 33(1) of the FMA Act. It was submitted that even if the respondent had been entitled to act upon the findings of the MPRA when he made the first decision, there existed special circumstances which warranted the making of an act of grace payment. 23 The respondent submitted that s 33(1) confers upon the Minister a broad discretion to decide whether or not to authorise an act of grace payment. The letter of denial had regard to the merits of the applicant's claims. The respondent concluded that there were several reasons why special circumstances had not been demonstrated, including: · it was the applicant's choice not to work under the direction of others; · that choice resulted in disciplinary action, demotion and transfer; · the applicant decided to accept retirement in 1980 on the grounds of ill-health; · the applicant was not victimised but was generally treated fairly and equitably; and · the Commonwealth bore no direct responsibility for the applicant's misfortune. 24 The applicant originally sought to challenge the correctness of each of these conclusions by pointing to material, and adducing evidence, which contradicted them. At one point he sought to file a lengthy affidavit setting out in detail his version of what had occurred throughout the period of his employment leading up to his retirement in 1980. The respondent objected to the reception of this material, and ultimately the affidavit was not received. 25 The applicant appeared to have some difficulty in grasping the nature of the proceedings before this Court, and in appreciating that an application under s 5 of the ADJR Act does not involve merits review. 26 This difficulty is reflected in submissions filed by leave on 19 July 2001, after the completion of the hearing of this matter, and prior to the final preparation of these reasons for judgment. In those submissions, the applicant sought to clarify his position on matters of fact contained within three paragraphs in the outline of written submissions filed on behalf of the respondent. Amongst other matters, the applicant objected to the respondent's conclusion that he had chosen not to work under the direction of others, and that this choice had resulted in disciplinary action, and subsequently his demotion, and transfer. 27 The applicant's contention that he had never refused to work under the direction of any officer, and his opinion as to the actual reasons for his demotion and transfer, are irrelevant to a review under the ADJR Act in this Court. So too are his opinions as to the circumstances surrounding his retirement, and his belief that the MPRA was prevented from considering matters which were relevant to his case. These are all matters which either go to the merits of the applicant's case, and are therefore beyond the purview of judicial review, or involve issues which are not relevant to the present application. 28 The expression "special circumstances" has been the subject of extensive judicial consideration. However, there does not appear to have been any occasion on which that expression has been considered in the context of s 33(1) of the FMA Act. 29 In Wu v Attorney General (1997) 79 FCR 303 at 307, Burchett J dealt with an interlocutory motion for the grant of bail in which the meaning of the expression "special circumstances" arose for determination. His Honour referred to Jess v Scott (1986) 12 FCR 187, a case involving an application to extend time in which to file a notice of appeal, in which the Full Court discussed a number of decisions concerning the terms "special circumstances", and "special reasons", terms which were treated as having essentially the same meaning. The Court said that "special reasons": "…is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served." 30 Burchett J went on to say: "The same principle was applied to the expression "special circumstances", in relation to an application for release from an implied undertaking, in Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576 at 578-579, where it was pointed out that the word "special" derives almost all of its meaning from its context. See also Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd (1994) 53 FCR 125 at 132-133…" 31 The statutory context in which the term "special circumstances" arises in the present case is one in which the Minister is given a discretion to authorise the making of act of grace payments where such payments "would not otherwise be authorised by law or required to meet a legal liability". There are any number of circumstances which may give rise to a claim for a payment of this type. It is impossible to anticipate the situations in which such payments may be warranted. The discretion vested in the Minister is obviously broad. 32 The respondent said in the letter of denial that the power to approve act of grace payments under the FMA Act was only to be exercised where it was considered that the application of Commonwealth legislation had produced unintended, anomalous, or inequitable results, or where because of its direct role in a particular situation the Commonwealth considered that it had a moral responsibility to redress the circumstances of the individual concerned. He concluded that none of these factors were present in Mr Toomer's case. That conclusion was plainly open upon the totality of the material before him. There is nothing in the formulation of "special circumstances" adopted by the respondent which strikes me as being too narrow, or otherwise erroneous in law. 33 Accordingly, the applicant has not made out this ground of review.

Improper exercise of power and failure to take into account relevant considerations 34 The applicant submitted that the respondent had exercised the power vested in him by s 33 of the FMA Act improperly by having relied upon the briefing prepared by Ms Tighe, and also by having had regard to the findings of the MPRA. The submission was that the respondent alone was entrusted with the exercise of the power, and should not have received advice from Ms Tighe, and should not have considered the findings of the MPRA. 35 The respondent submitted that the applicant's contention was misconceived. The respondent referred to a passage in the judgment of Wilcox J in Preston v Carmody (1993) 44 FCR 1, where his Honour said (at 13-14): "…There are many situations in which statutory decision makers receive advice, including recommendations, from individual officers or committees. In most cases, the very reason these people give advice is their prior involvement in the matter. They have information and opinions that may assist the decision maker. Inevitably, they will have views about the merits. The decision maker may receive conflicting advice from different people. He/She may choose what advice (if any) to accept." 36 In response to the applicant's contention that the respondent should not have had regard to the report of the MPRA, it was submitted that there was no basis for that argument. Reference was made to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (per Mason J, as his Honour then was) at 41: "It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power…" 37 His Honour set out the principles which govern the failure to take relevant considerations into account as a ground of judicial review (at 39-40): "What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive…If the relevant factors…are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act…By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act." 38 The applicant submitted that there were a number of matters relevant to his claim for an act of grace payment, to which he referred in the letter of request and which the respondent had not taken into account. These were: · the fact that the applicant had been working for two different departments, each of which had applied different standards to the conduct of ship inspection; · the fact that the Administrative Appeals Tribunal had made certain findings which were favourable to the applicant concerning his treatment at the hands of the Commonwealth when, on 12 April 1990, it reviewed a decision refusing to amend information contained in two letters written by Dr Mathieson in 1973 . · the fact that there were other reports or documents favourable to the applicant including an investigation report prepared by a Deputy Public Service Inspector in 1973, an independent psychiatric assessment which controverted earlier medical opinions, the findings of the Coombes Royal Commission, correspondence from Minister Kerin to Prime Minister Hawke dated 8 November 1988 recommending that compensation be paid, legal opinions of eminent senior counsel who had provided advice to the applicant, and the report of the 1995 Senate Select Committee on Unresolved Whistleblower Cases, in which favourable mention of Mr Toomer was made. 39 None of these matters was addressed by the respondent in the letter of denial. The applicant submitted that it should be inferred that the respondent had not personally considered them prior to the making of the first decision. 40 The respondent submitted that the applicant bore the onus of placing before him any material which the applicant regarded as relevant, and it was not incumbent upon him to seek out documents merely alluded to in the letter of request. The statement of reasons provided by the respondent dealt with a number of the matters said to be relevant and explained clearly why they were not thought to be decisive in the applicant's favour. 41 In my opinion, the weight to be accorded to the material placed before the respondent was a matter for the respondent, and not for this Court. A failure to take into account relevant considerations does not of itself mean that there has been an improper exercise of power. 42 In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at 21, the High Court referred to Craig v South Australia (1995) 184 CLR 163 at 179, saying, in speaking of an administrative tribunal, that if it: "… falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it." 43 The Court went on to say (at 21-22): ""Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision‑maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it." (footnote omitted) 44 Many of the matters relied upon by the applicant under this head were not matters which the respondent was bound to take into account, whether expressly or by implication. 45 The present application is one which fits comfortably within the description given by Kirby J in Abebe v Commonwealth (1999) 197 CLR 510 (at 587) to some applications for judicial review which are "thinly disguised attempts to procure judicial redeterminations of the facts or the merits". In Attorney-General (NSW) v Quin (supra), Brennan J said (at 35 -36): "The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone." 46 I am not persuaded that the respondent exercised his powers under the FMA Act improperly or that he failed to take into account relevant considerations to which he was bound to have regard.

Conclusion 47 The legislature has entrusted the power to make act of grace payments to the Minister. Such payments are not based upon any legal entitlement but are made in response to moral obligations assumed by the Commonwealth as a result of the actions of its employees or instrumentalities. The power to make such payments is, by its very nature, one which is particularly suited to be exercised by the Minister. The role of the Court is to ensure that the Minister exercises that power lawfully. Provided he does so, his decision cannot be impugned.

48 The application for review must be dismissed. The applicant must pay the respondent's costs. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Solicitor for the Respondent: Australian Government Solicitor