Carpenter and Comcare
[2003] AATA 665
•6 June 2003
CATCHWORDS – PRACTICE AND PROCEDURE –
issuing of summons – whether Tribunal can issue a summons requiring an officer of the Public Service and Merit Protection Commission to give or produce evidence in light of r. 7.6 of the Public Service Regulations or s. 84(5) of the Merit Protection (Australian Government Employees) Act 1984 – whether evidence obtained under summons relevant to the hearing of the matter – whether the issue of law should be referred to the Federal Court - Tribunal refuses to issue the summons.
Public Service Regulations r. 7.6
Merit Protection (Australian Government Employees) Act 1984 ss. 4, 39, 40, 45, 47, 48, 55, 57, 63 and 84
Administrative Appeals Tribunal Act 1975 ss. 3, 40, 40(1A), 40(1C) and 45
Public Employment (Consequential and Transitional) Amendment Act 1999 ss. 4 and 5
Public Service Act 1999 ss. 7, 33, 49, 50 and 79
Acts Interpretation Act 1901 s. 8
Racial Discrimination Act 1975
Administrative Decisions (Judicial Review) Act 1977
Migration Act 1958 s. 474
Commonwealth of Australia Constitution Act s. 75(v)
Safety, Rehabilitation and Compensation Act 1988 ss. 4 and 14
Trade Practices Commission v Arnotts (1989) 88 ALR 90
Ozzy Tyre & Tube Pty Ltd v Chief Executive Officer of Customs [2000] FCA 891
W.A. Pines Pty Ltd v Bannerman (1980) 30 ALR 559
Cosco Holdings Pty Ltd v Commissioner for Taxation and Anor [1997] FCA 1504
Murray v Forward and Merit Protection and Review Agency [1993] HREOCA 21
Kelson and McKernan v Forward (in her capacity as Director of the Merit Protection and Review Agency) No. ACT AG86 of 1994 FED No. 799/95
Merit Protection Commissioner v Nonnemacher [1999] FCA 562
Nonnemacher v Merit Protection Commissioner [1999] FCA 942
The Queen v Anthony Ernest Parish (2001) SADC 68
S157 of 2002 v The Commonwealth of Australia [2003] HCA 2
Westgate v Australian Telecommunications Commission (1987) 17 FCR 235
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Re Welsford and Commonwealth Banking Corporation (1984) 1 AAR 42
Rodriguez v Telstra Corporation Ltd [1999] FCA 1400
Lower and Comcare [2003] AATA 540
DECISION AND REASONS FOR DECISION [2003] AATA 665
ADMINISTRATIVE APPEALS TRIBUNAL )
) S2001/195
GENERAL ADMINISTRATIVE DIVISION )
Re GEOFFREY WALTER CARPENTER
Applicant
And COMCARE
Respondent
DECISION
Tribunal: Miss S A Forgie (Deputy President)
Date: 6 June, 2003
Place: Adelaide
Decision:The Tribunal refuses to issue a summons addressed to Ms Ingrid Chrichton, who is an Assistant Commissioner with the Public Service and Merit Protection Commission.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 11 March, 1991, a delegate of the respondent, Comcare, had accepted liability for a temporary aggravation of an underlying chronic anxiety. The delegate found that the date on which the applicant, Mr Geoffrey Walter Carpenter, had suffered that condition was 29 November, 1990. In a determination dated 13 August, 1991, a delegate of Comcare decided that, with effect from 10 July, 1991, Mr Carpenter was no longer entitled to compensation in respect of that condition. That decision was affirmed by a decision, known as the “reviewable decision”, on 7 May, 2001. Mr Carpenter sought review of that reviewable decision when he lodged an application on 7 June, 2001.
In a letter dated 9 May, 2003, Mr Carpenter asked the Tribunal to issue a summons addressed to Ms Ingrid Chrichton, who is an Assistant Commissioner with the Public Service and Merit Protection Commission (“the Commission”). If issued, the summons required Ms Crichton to attend the Tribunal to give evidence and to produce “All documents used for the preparation of your response, dated 21 June 2000, to G.W. Carpenter’s letter to the PSMPC dated 29 May 2000”.
As there were doubts as to whether Ms Crichton could be summonsed by the Tribunal, I held a directions hearing on 3 June, 2003. I adjourned further consideration to 6 June, 2003 to enable both parties to consider the matter further and to make submissions. Mr Carpenter lodged his written submissions on 6 June, 2003. After hearing oral submissions by Mr Carpenter and by Ms Hocking on behalf of the Commission, I considered whether or not I could issue a summons to Ms Crichton. I decided to refuse to issue the summons and outlined my reasons orally. Mr Carpenter has since requested written reasons for my decision and I set them out below.
THE ISSUE
There were two issues in this case. The first was whether I could issue a summons in light of the provisions of either r. 7.6 of the Public Service Regulations 1999 (“Regulations”) or s. 84(5) of the Merit Protection (Australian Government Employees) Act 1984 (“MPAGE Act”). The second only arose if r. 7.6 or s. 84(5) did not stand in the way of my issuing it. That was whether the evidence that could be given by Ms Crichton would be relevant to the hearing of the matter.
BACKGROUND
In a letter dated 29 May, 2000, Mr Carpenter wrote to the Commissioner the following letter:
“In the 1980’s I contacted the Merit Protection and Review Agency (MPRA) to resolve a victimization grievance between myself and the Bureau of Meteorology (BOM), after I had declined a 6 month transfer (because I was told I had been chosen because of my single marital status, as it was too expensive to send a married officer). I had recently returned from a 5 year interstate involuntary posting and should have been last on the list.
To date, despite several claimed attempts, the matter has not been settled according to law or with relevant consideration (or as you promote – neither fairly, impartially or quickly).
Whilst actively seeking justice in this matter and bringing it to the attention of the N.C.A. I suffered a major psychological injury. The cause INTER-ALIA CRIMINAL NEGLIGENCE BY THE MPRA.
Apart from a permanent disability, minimum loss of income to date is in excess of $0.65M. I now live on a single disability pension.
It is now time for me to step forward and go public, by actively promoting a well documented Web site dedicated to existing Australian Commonwealth Public Service corruption and victimization of whistleblowers (to ensure nobody suffers as much and for as long as I have). Contents to date are highly critical of the MPRA (and extremely emotive) – a series beyond reproach.
As per advice, before release of my Web pages, I request that you complete this inherited MPRA action (Carpenter/BOM) – this time according to law and with relevant consideration and (based on recent information) by an impartial adjudicator.
Should you require any files from the BOM in SA of VIC offices I would advise that they are seized. I refer to documentation from myself advising the director SA of evidence provided on his (The Chief Officer) behalf by Messrs Moncrief and Weaver that he would have known to be incorrect. Instead of correcting the matter it was referred and whitewashed.
A precis and time of your intended action (if any), to resolve this outstanding grievance would be appreciated and is required within 28 days from receipt of this correspondence.”
Ms Crichton’s reply dated 21 June, 2000 to Mr Carpenter’s letter read:
“I refer to your correspondence to the Merit Protection Commissioner dated 29 May 2000.
I have been able to locate some, but not all of our files relating to previous correspondence from you. Files of this age have normally been archived or destroyed under the provisions of the Archives Act 1983.. Nevertheless, sufficient information was able to be located for me to form a judgment that the investigations conducted at the time were thorough and complete, and that there was no further action which the then Merit Protection and Review Agency and Grievance Appeals Bureau could or should have taken on your behalf.
You may be aware that the Public Service Act 1999 was enacted on 5 December 1999, and that the Merit Protection (Australian Government Employees) Act 1984 was repealed as a result. The new legislation provides similar safeguards to public servants in terms of entitlements to review of actions which affect them as did the previous legislation. However in the new legislation, these rights are provided specifically for employees, and do not extend to ex-employees. It is therefore not possible for the Merit Protection Commissioner to accept an application from you now.
Your grievance is not in my view ‘outstanding’ as it was appropriately dealt with and finalised at the time, and I regret that the Merit Protection Commissioner is not able to be of further assistance to you.”
LEGISLATIVE BACKGROUND
The Administrative Appeals Tribunal Act 1975
In so far as it is relevant in this case, s. 40(1A) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) provides:
“Subject to subsection (1B), for the purposes of the hearing of a proceeding before the Tribunal, the member presiding at the hearing, the Registrar, a District Registrar or a Deputy Registrar may summon a person to appear before the Tribunal at that hearing:
(a)to give evidence;
(b)to give evidence and produce any books, documents or things in possession, custody or control of the person or persons named in the summons that are mentioned in the summons; or
(c)to produce any books, documents or things in the possession, custody or control of the person or persons named in the summons that are mentioned in the summons.”
Section 3(1) provides that the meanings of the word “proceeding” in relation to the Tribunal include:
“(a) an application to the Tribunal for review of a decision; and
(b)an application to the Tribunal under subsection 28(1AC); and
(c)an application to the Tribunal for review of a decision by the Registrar, a District Registrar or a Deputy Registrar taxing any costs ordered by the Tribunal to be paid; and
(d)an application to the Tribunal for a costs certificate under section 10A of the Federal Proceedings (Costs) Act 1981; and
(e)an application to the Tribunal under subsection 62(2) of the Freedom of Information Act 1982; and
(f)any other application to the Tribunal under this Act or any other Act;
(g)any matter referred to the Tribunal for inquiry and/or review under this Act or any other Act; and
(h)an incidental application to the Tribunal made in the course of, or in connection with, an application or proposed application, or a matter, referred to in a preceding paragraph.”
Legislation relating to grievances and merit protection
In the 1980s when Mr Carpenter first made his complaint to the Merit Protection Review Authority (“MPRA”), the MPRA was a body that had been established by the MPAGE Act. That Act has since been repealed by the Public Employment (Consequential and Transitional) Amendment Act 1999 (“the Amendment Act”) with effect from 5 December, 1999. Matters relating to merit protection are now one of the subjects covered by the Public Service Act 1999 (“the PS Act”). I will set out the relevant provisions of both pieces of legislation and the regulations made under them.
The Merit Protection (Australian Government Employees) Act 1984
The MPRA was constituted by the Merit Protection Commissioner (“the Commissioner”) and not more than four nor fewer than two other members appointed by the Governor General (MPAGE Act, s. 63). The object for which the MPRA was established was to:
“… to ensure that actions taken and decisions made in relation to a Commonwealth employee in relation to his or her employment as a Commonwealth employee are fair and equitable and are taken or made in accordance with sound personnel management practices and with due regard being had to:
(a)the efficiency of the relevant authority; and
(b)the need to ensure good relations between the relevant authority and its employees.” (s. 4(1))
A “relevant authority” is either the Australian Public Service or a Commonwealth authority according to the body by which the Commonwealth employee is employed (MPAGE Act, s. 4(2)).
The functions of the MPRA were to:
“(a) to arrange for the establishment of, and to ensure the proper and efficient operation of, Review Committees in accordance with Division 2;
(aa)to arrange for the establishment of committees under section 35A to perform functions pursuant to requests referred to in that section;
(b)to review decisions in accordance with Division 3;
(c)to investigate actions in accordance with Division 4;
(d)to conduct inquiries in accordance with Division 5;
(e)to provide advice in relation to grievances and appeals in accordance with Division 6;
(ea)to perform functions under section 57A pursuant to requests referred to in that section;
(f)to review promotions in accordance with section 50DAA of the Public Service Act 1922; (g) to provide to Secretaries of Departments, and chief executive officers of Commonwealth authorities, services in connection with the establishment, constitution and operation of Joint Selection Committees; and
(h)with the consent of the Minister, to enter into an arrangement with the Australian Capital Territory or an authority of the Territory under which the Agency will perform, for the Territory or the authority, as the case may be, functions conferred by an enactment and similar, or substantially similar, to functions performed by the Agency under this Act.” (MPAGE Act, s6. (1))
Division 3 of the MPAGE Act was concerned with the review of certain decisions specified in an enactment. An enactment could provide that certain decisions could be reviewed (MPAGE Act, s. 39) and a Commonwealth employee and a former Commonwealth employee were among those who could seek review (MPAGE Act, ss. 40 and 45). Division 4 was concerned with grievances. Section 47 provided that an enactment might provide that a person might apply to the MPRA for review of actions of a kind specified in the enactment. The persons who might apply included a Commonwealth employee (MPAGE Act, s. 48). An employee could also apply to the MPRA alleging that an action taken against him constituted harassment of him or her for having made an application to the MPRA under s. 47 or otherwise. Section 55 provided for applications to be made by former Commonwealth employees on the basis that he or she was deemed to continue to be a Commonwealth employee. Division 6 was concerned with advice given on appeal and grievance applications. The MPRA was required to give that advice pursuant to s. 57.
Section 84(5) of the MPAGE Act provided that:
“A person who is or has been an officer is not competent and may not be required, in any proceedings before a court (whether exercising federal jurisdiction or not) or before a person authorized by a law of the Commonwealth or of a State or Territory, or by consent of parties, to hear, receive or examine evidence, to disclose any information acquired by the person by reason of his or her being or having been an officer, being information that was disclosed or obtained under the provisions of this Act.”
This provision complemented the more general provision in s. 84(2) providing that:
“Subject to this section, an officer shall not, directly or indirectly, and either while he or she is, or after he or she ceases to be, an officer, make a record of, or divulge or communicate to any person, any information acquired by the officer by reason of his or her being an officer, being information that was disclosed or obtained under the provisions of this Act.”
There were exceptions to the prohibition on disclosure. So, for example, an officer might divulge information in the performance of his or her duties as an officer for the purpose of the exercise of powers and performance of duties of the MPRA under the MPAGE Act (MPAGE Act, s. 84(3)(a)). If the person providing it was an officer of a Department or authority, the principal officer of the Department or agency or responsible Minister could consent to the divulgence of the information (MPAGE Act, s. 84(3)(b)(i)). So too could a person who was not such an officer consent to the divulgence of the information (MPAGE Act, s. 84(3)(b)(ii)). In setting out the grounds for the conclusions and recommendations in a report made under the MPAGE Act, the MPRA might reveal such matters as it thought ought to be disclosed (s. 84(3)(4)). Sections 84(6) is expressed in more general terms. It provides that, subject to exceptions in ss. 84(7) and (8):
“… nothing in this Act shall be taken to preclude the Merit Protection Commissioner from disclosing information, or making a statement, to any person or to the public or a section of the public with respect to the performance of a function of the Agency under this Act if, in the opinion of the Merit Protection Commissioner, it is in the interests of any Department, Commonwealth authority or person, or is otherwise in the public interest, so to disclose that information or to make that statement.”
The qualifications to the exception to the general prohibition on disclosure are found in ss. 84(7) and (8), which provide:
“(7)The Merit Protection Commissioner shall not disclose information or make a statement under subsection (6) with respect to a particular review, investigation or inquiry where the disclosure of that information, or the making of that statement, is likely to interfere with the carrying out of that review, investigation or inquiry or of any other review, investigation or inquiry.
(8) The Merit Protection Commissioner shall not, in disclosing information or making a statement under subsection (6) with respect to a particular review or investigation, disclose the name of an applicant or any other matter that would enable an applicant to be identified unless it is fair and reasonable in all the circumstances to do so.”
The Public Service Act 1999
Division 1 of Part 6 of the PS Act, which came into operation on 5 December, 1999, also provides for the office of Merit Protection Commissioner. That office was established by s. 49(1) of the PS Act. The person who held the position of Commissioner under the MPRA Act held the office of Merit Protection Commissioner under the PS Act as if he or she had been appointed to that office under the PS Act (Amendment Act, s. 5(3)). The Public Service Commissioner is required to provide to the Commissioner the staff necessary to assist him or her (PS Act, s. 49(2)) and those staff must be persons engaged under the PS Act. In general terms, persons engaged in an Agency before the commencement of the PS Act were deemed to have been engaged in the corresponding agency after its commencement (Amendment Act, s. 5). An “Agency” means a Department, an Executive Agency and Statutory Agency (Amendment Act, s. 4 and PS Act, s. 7).
The Commissioner’s functions under the PS Act:
“… include the following functions:
(a)to inquire into reports made to the Merit Protection Commissioner (or to a person authorised by the Merit Protection Commissioner) as mentioned in section 16;
(b) to inquire into alleged breaches of the Code of Conduct by the Commissioner and report to the Presiding Officers on the results of such enquiries (including, where relevant, recommendations for sanctions);
(c) to inquire into an APS action, at the request of the Public Service Minister, and to report to the Public Service Minister on the results of the inquiry;
(d) such functions as are prescribed by regulations made for the purposes of section 33;
(e) such other functions as are prescribed by the regulations.
(2) The following provisions apply in relation to an inquiry under paragraph (1)(c) (with references to the Auditor-General being replaced by references to the Merit Protection Commissioner):
(a) sections 32, 33 and 35 of the Auditor-General Act 1997;
(b) any other provisions of the Auditor-General Act 1997, or of regulations under that Act, that are relevant to the operation of section 32, 33 or 35 of that Act.
(3) The regulations may authorise the Merit Protection Commissioner to charge fees (on behalf of the Commonwealth) for the performance of functions prescribed under paragraph (1)(e).
(4) In this section:
action includes a refusal or failure to act.
APS action means an action in relation to the employment of an APS employee, being an action by another APS employee or by an Agency Head.” (s. 50(1))
Section 33 of the PS Act provides:
“(1) An APS employee is entitled to review, in accordance with the regulations, of any APS action that relates to his or her APS employment. However, an APS employee is not entitled to review under this section of APS action that consists of the termination of the employee’s employment.
(2)The regulations may prescribe exceptions to the entitlement.
Note: For example, the regulations might provide that there is not entitlement to review if the application for review is frivolous or vexatious.
(3)Without limiting subsection (1), regulations made for the purposes of that subsection may provide for the powers available to the Merit Protection Commissioner, or any other person or body, when conducting a review under the regulations.
(4) Regulations for the purposes of subsection (1):
(a)may provide for an initial review to be conducted within the responsible Agency; and
(b)may provide that applications for review of particular kinds of APS action are to be made directly to the Merit Protection Commissioner; and
(c)must provide for an application for review to be referred to the Merit Protection Commissioner if the applicant is not satisfied with the outcome of an initial review within the responsible Agency; and
(d)in the case of a review following an application or referral to the Merit Protection Commissioner, must provide for the review to be conducted by a person nominated by the Merit Protection Commissioner or by a 3 member committee constituted in accordance with the regulations.
(5)A person or body that has conducted a review under this section may make recommendations in a report on the review but does not have power to make any binding decision as a result of the review, except as provided by the regulations.
(6) If the Merit Protection Commissioner is not satisfied with the response to recommendations contained in a report on a review under this section, the Merit Protection Commissioner may, after consulting the Public Service Minister, give a report on the matter to the Agency Minister of the responsible Agency and to either or both of the following:
(a) the Prime Minister;
(b)the Presiding Officers, for presentation to the Parliament.
(7) In this section:
action includes a refusal or failure to act.
APS action means action by a person in the capacity of an Agency Head or APS employee.
responsible Agency, in relation to APS action, means the Agency in which the person who did the action was at the time of the action.”
In addition to the specific provision for regulations made in ss. 33 and 50, s. 79 of the PS Act provides that regulations may be made “… for, or in relation to, … confidentiality of information obtained by persons performing, or assisting in the performance of, functions under section 33, … or paragraph 50(1)(a) or (c)” of the PS Act. Regulations have been made in relation to those matters.
Regulation 7.6(1) sets out the persons to whom the regulation applies. Among those people, is:
“(a) a member of the staff assisting the Commissioner;
(b)a person acting under the direction or authority of the Merit Protection Commissioner;
(c)a person acting under the direction or authority of the Merit Protection Commissioner;
(d)a person (other than an employee of the Agency) to whom the Merit Protection Commissioner has delegated any of his or her powers under section 78 of the Act;
(e)a member of a Review Committee established under paragraph 33(4)(d) of the Act;
(f)a member of an Independent Selection Advisory Committee;
(g)a person (other than the Merit Protection Commissioner) who is required to assist the Commissioner to investigate a complaint under regulation 7.2;
(h)a person (other than the Merit Protection Commissioner) who is required to assist the Commissioner to review action under regulation 7.3.”
A person referred to in r. 7.6(1):
“… must not, directly or indirectly, make a record of, or divulge or communicate to any other person, any information that was:
(a)acquired by the person while he or she was performing duties as a person described in subregulation (1); and
(b)disclosed or obtained:
(i)under section 33 or paragraph 50(1)(a) of the Act; or
(ii)during an investigation of a complaint under regulation 7.2; or
(iii)during the review of an action under regulation 7.3; or
(iv)while acting as a member of an Independent Selection Advisory Committee.
Penalty: 10 penalty units.” (PS Regulations, r. 7.6(2))
This prohibition applies both while the person is performing duties as a person described in r. 7.6(1) and after he or she ceases to perform those duties (r. 7.6(3)). It does not prohibit a person from making a record of, or divulging or communicating to any other person, information acquired by the person in the circumstances described in r. 7.6(4). Those circumstances include those in which the person who gave the information was not a person giving it as an employee of the Australian Public Service (“APS employee”) in the performance of his or her duties as an APS employee and in which he or she consents to the information’s being divulged or communicated (r. 7.6(4)(c)). The regulation does not prevent the Commissioner from disclosing information, or making a statement, to any person or to the public with respect to the performance of his or her function under the PS Act if he or she is of the opinion that it is in the interests of any person or agency to disclose the information or make the statement or it is otherwise in the public interest to do so (PS Regulations, r. 7.6(7)).
CONSIDERATION
May the Tribunal issue a summons to the Commissioner?
In providing that a summons may only be refused if the refusal is authorised by a presidential member or a senior member of the Tribunal (AAT Act, s. 40(1C)), it is apparent that the Tribunal has power to refuse to issue a summons. Its power to refuse cannot, however, be read as an unfettered power. That follows from the fact that the power to issue a summons has been given to call a person before the Tribunal and to produce evidence in one form or another “for the purposes of the hearing of a proceeding before the Tribunal” (AAT Act, s. 40(1A)). Given the context of the AAT Act and the meaning of “proceeding” to which I have referred above, a summons may only be issued if it is required for the purposes of hearing an application to review a decision or one of the matters specified in paragraphs (b) to (g) of the definition of “proceeding” in s. 3 of the AAT Act or for purposes incidental to reviewing a decision or in connection with such an application or proposed application. It follows that a summons may be refused if it is sought for a purpose other than those of the hearing of a proceeding.
Inherent in an enquiry as to whether it is sought for that purpose is an enquiry as to whether it is relevant to the issues that must be considered. Relevance was a matter considered by Beaumont J in Trade Practices Commission v Arnotts (1989) 88 ALR 90 in the context of a request to issue a subpoena. Arnotts had submitted that the documents that were the subject of the subpoena could reasonably be expected to throw light on the definition of the relevant market in the principal proceedings and upon the suggestion, that it denied, that it dominated the market after it had acquired Nabisco. Beaumont J said:
“… Does the material sought have an apparent relevance to the issues in the principal proceedings, ie, is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? This involves a consideration of the matter from the standpoint of Arnotts.” (page 103)
The issue of relevance was considered in greater detail by Hely J in Ozzy Tyre & Tube Pty Ltd v Chief Executive Officer of Customs [2000] FCA 891 in the context of whether evidence sought under a warrant was relevant to the offence. His Honour said:
“31 A thing is relevant to an offence if it bears upon or is connected with the offence in the sense that it will assist, directly or indirectly, in disclosing that an offence has been committed, or in establishing or revealing the details of the offence, the circumstances in which it was committed, the identity of the person who committed it, or any other information material to an investigation of those matters: George v Rockett at 120. In the context of discovery, in Commonwealth of Australia v Northern Land Council (1991) 30 FCR 1 at 23 it was said that a document relates to a matter in question between the parties if it is ‘reasonable to suppose’ that the document contains information which may either directly or indirectly enable a party to advance his own case or damage that of his adversary. It is the Peruvian Guano test (The Compagnie Financiere et Commerciale du Pacifique v The Peruvian Guano Co (1882) 11 QBD 55, at 60, 63). Material which has apparent relevance or which could reasonably be expected to throw light on an issue is adjectively relevant to that issue: Cosco Holdings Pty Ltd v Federal Commissioner of Taxation (1997) 37 ATR 432 per Spender J at 439-440.
32 If there are reasonable grounds for suspecting that a thing will afford evidence as to the commission of an offence, then the thing has an apparent relevance to that offence. The existence of the reasonable grounds for suspicion provides the requisite nexus between the thing and the offence to satisfy the requirement of relevance. In my view there is no material difference between the notion that there are reasonable grounds for suspecting that a thing will afford evidence as to the commission of an offence and concepts of apparent or adjectival relevance. Bearing in mind that a function of a search warrant is as an aid to an investigation, a thing relevant to the offence must include a thing which is adjectively relevant, as well as things which are of substantive relevance.”
There are cases in which the courts must consider a subpoena in which it is submitted that it has been issued as a mere “fishing expedition” in the sense that a party seeks documents in the hope that he or she will make a case once he or she has access. Such expeditions are not permitted (e.g. W.A. Pines Pty Ltd v Bannerman (1980) 30 ALR 559 (Bowen CJ, Brennan and Lockhart JJ) per Brennan J at 567.
Also relevant is the impact that a subpoena has upon the person required to respond to it. Beaumont J said in Trade Practices Commission v Arnotts:
“ The general test for present purposes is well settled. The issue of a subpoena will be an abuse of process if is not used for a legitimate forensic purpose: see Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100-1. But, as Deane and Gaudron JJ observed in Hamilton v Oades (1989) 85 ALR 1 at 11, the court’s general powers in this area have a dual aspect. ‘The inherent power of a court to control and supervise proceedings includes the power to take appropriate action to prevent injustice...[This] power...is not restricted to defined and closed categories...In this context injustice is not simply a question of the purpose or motive for which the relevant proceedings were instituted but includes a consideration of the consequences of the proceedings for the person invoking the power. The terms “oppressive” and “vexatious” are often used to signify those considerations which justify the exercise of the power to control proceedings to prevent injustice, those terms respectively conveying, in appropriate context, the meaning that the proceedings are “seriously and unfairly burdensome, prejudicial or damaging” and “productive of serious and unjustified trouble and harassment”: Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 62 ALJR 389 per Deane J at 411; 79 ALR 9 at 45.’
In other words, the present inquiry is not limited to an analysis of the true purpose of Arnotts in procuring the issue of the subpoena. It is also material to look at the impact of the subpoena upon Mattingly.” (page 102)
It is apparent from the judgement of Spender J Cosco Holdings Pty Ltd v Commissioner for Taxation and Anor (1997) 37 ATR 432 that the general principles relating to the issue of a subpoena in a court are equally applicable to the issue of a summons in the Tribunal. Those general principles have been developed as part of the common law and can be set aside by the provisions of an enactment passed by Parliament or by those of regulations made pursuant to such an enactment. Section 84(5) of the MPAGE Act is such a provision.
Section 84(5) was in force in the 1980s when Mr Carpenter contacted the MPRA to resolve a grievance between him and the Bureau of Meteorology (“the Bureau”). Among others, it prevented a person authorised by a law of the Commonwealth to hear, receive or examine evidence from requiring an officer to disclose any information that the officer acquired by reason of his or her being an officer and being information that was disclosed or obtained under the provisions of the MPAGE Act. Is the Tribunal a person who is authorised to hear, receive or examine evidence? The Tribunal is for s. 40(1)(a) of the AAT Act provides that, for the purpose of reviewing a decision, the Tribunal may take evidence on oath or affirmation and I have already set out the provisions of s. 40(1A) providing that the Tribunal may summons a person to give evidence, to produce evidence or to do both.
Was the information sought in the summons, information that was information that was acquired by the person by reason of his or her being an officer and being information that was disclosed or obtained under the provisions of the MPAGE Act? It is apparent from Ms Crichton’s letter of 21 June, 2000 in response to Mr Carpenter’s letter that the documents to which she refers relate to the investigations undertaken into the grievance he had previously lodged under the MPAGE Act. Information obtained as a result of those investigations would have been information that was disclosed or obtained under the provisions of that legislation as the functions of the MPRA included those in relation to the review of certain actions under Division 3, of grievances under Division 4 and providing advice in relation to grievances and appeals in accordance with Division 6 of the MPAGE Act.
Section 84(5) has, however, been repealed and it cannot be said that the information is subject to the protection from disclosure in r. 7.6(2) of the PS Regulations. It is not subject as it was not disclosed or obtained under the provisions of the PS Act or PS Regulations and r. 7.6(2) does not extend beyond their boundaries. Does s. 84(5) continue to have any relevance?
That brings me to s. 8 of the Acts Interpretation Act 1901 (“AI Act”) which provides that:
“Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not:
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b)affect the previous operation of any Act so repealed, or anything duly done or suffered under any Act so repealed; or
(c) affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; or
(d) affect any penalty forfeiture or punishment incurred in respect of any offence committed against any Act so repealed; or
(e) affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid;
and any such investigation legal proceeding or remedy may be instituted continued or enforced, and any such penalty forfeiture or punishment may be imposed, as if the repealing Act had not been passed.”
Section 8(c) of the AI Act is relevant in this case. The provisions of s. 84(5) imposed an obligation upon a body such as the Tribunal not to require information to be given to it. The effect of s. 8(c) is that, unless there is a contrary intention, that obligation continues to restrict the powers of the Tribunal. Section 8 does not specify where one looks to ascertain whether the “contrary intention appears” but there would seem to be two or three places that may be relevant. One is the repealed legislation itself and the scheme it put in place. Another is any legislation that addresses the same issues as the repealed legislation and replaces, as it were, the repealed legislation. Yet another comprises any transitional provisions appearing in the new legislation or in a separate transitional piece of legislation.
In this case, it seems to me that all three places are relevant. The MPAGE Act established a system for, among others, the review of grievances and for the protection of information gained in the process. On its face, there would seem to be no reason why information that Parliament saw fit to protect while the MPAGE Act was in force should no longer be protected. The scheme set out in the PS Act for the review of grievances continues to provide a similar protection even though it does it through the PS Regulations rather than through the PS Act itself. That it is done in that way does not lessen the protection that is offered under the current regime. The continuation of the protection suggests that the protection given under the repealed MPAGE Act and the obligations by which it achieves that protection are intended to continue. The Amendment Act reinforces that suggestion for it provides for the person who was the Commissioner under the repealed legislation to become the Commissioner under the PS Act. Having regard to all of these matters, I concluded that the provisions of s. 84(5) of the MPAGE Act continue to impose an obligation in relation to information obtained under that legislation. Consequently, I must refuse to issue a summons under s. 40 of the AAT Act to require the production of that information.
Before I leave this aspect of the matter, I refer to Mr Carpenter’s submission that the MPRA and the Commissioner have previously appeared in court as either an applicant or a respondent and given evidence. He referred to Murray v Forward and Merit Protection and Review Agency [1993] HREOCA 21, Kelson and McKernan v Forward (in her capacity as Director of the Merit Protection and Review Agency) No. ACT AG86 of 1994 FED No. 799/95, Merit Protection Commissioner v Nonnemacher [1999] FCA 562 (and see also Nonnemacher v Merit Protection Commissioner [1999] FCA 942). The first case concerned a complaint under the Racial Discrimination Act 1975 and the last two under the Administrative Decisions (Judicial Review) Act 1977.. All of the cases were concerned with the manner in which the MPRA or the Commissioner performed its or his or her functions. It would seem that evidence was given on behalf of the MPRA and the Commissioner. I have been unable to locate the case of The Queen v Anthony Ernest Parish (2001) SADC 68 but presume that it is also a case in which such evidence was given. It is clear from the provisions of s. 84(6) of the MPAGE Act and from r, 7.6(7) of the PS Regulations that the MPRA or the Commissioner had the power to do so if disclosure met the requirements of those provisions. Even though they have the power to do so, this Tribunal does not have the power to make them decide to consider whether or not they should exercise the power and certainly cannot require them to decide to exercise it.
Relying on the case of S157 of 2002 v The Commonwealth of Australia [2003] HCA 2, Mr Carpenter submitted that s. 84 denies the right of a person to have access to a court and so is unconstitutional. In that case, the High Court considered s. 474 of the Migration Act 1958 which provided, in effect, that certain decisions were final and conclusive and could not be reviewed or the subject of any prerogative proceedings in a court. It decided that s. 474 would be invalid if it purported to oust the Court’s jurisdiction under s. 75(v) of the Commonwealth of Australia Constitution Act but that it did not apply to the application that had been brought before it. Gleeson CJ said in his judgement:
“The Parliament cannot abrogate or curtail the Court's constitutional function of protecting the subject against any violation of the Constitution, or of any law made under the Constitution. However, in relation to the second aspect of that function, the powers given to Parliament by the Constitution to make laws with respect to certain topics, and subject to certain limitations, enable Parliament to determine the content of the law to be enforced by the Court.” (paragraph 6)
It is apparent from this passage that there is a distinction between a provision that seeks to abrogate or curtail a court’s jurisdiction and a provision that determines the content of the law to be enforced. Provisions such as s. 84(5) and r. 7.6(2) do not seek to curtail jurisdiction but do limit the tools that are available to a court or a tribunal in exercising its jurisdiction. They are not beyond the powers of Parliament to enact. The fact that they prevent the Tribunal from using the tool of a summons in this case does not limit the rights of review given to Mr Carpenter under the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”). That is the legislation under which the reviewable decision was made and which both gives him rights of review and defines the boundaries of the Tribunal’s jurisdiction.
Are the documents sought in the summons relevant to the issues in this case?
Should I be incorrect in reaching this conclusion, I also considered whether the documents sought are relevant to the proceedings in this case. It seems to me that they would not be. The issue that must be resolved in reviewing the reviewable decision is whether Mr Carpenter was continuing to suffer from a temporary aggravation of an underlying chronic anxiety for which Comcare had accepted liability.
Pursuant to s. 14(1) of the SRC Act, Comcare is liable to pay compensation in accordance with that legislation in respect of an injury suffered by an employee if the injury results in, among other matters, incapacity for work or an impairment. An “injury” is defined in s. 4(1) to mean:
“(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”
In general terms, a reference to an “incapacity for work” is a reference to an incapacity suffered by an employee as a result of an injury being an incapacity to engage in any work or to do so at the same level at which he or she was engaged by the Commonwealth in that work or any other work immediately before the injury happened (SRC Act, s. 4(9)).
The reasons given by the delegate for his reviewable decision state that the “… crucial issue in this matter is whether the claimant still suffers from the effects of the injury sustained in Commonwealth employment on 29 November 1990 (T documents, page documents, page 90). The delegate went on to refer to Mr Carpenter’s statement accompanying his claim in December, 1990. In that statement, Mr Carpenter was said to have referred to two work factors contributing to his stress. One was his grievance related to his employment with the Bureau and the other was his redeployment to the finance area of the Australian Construction Services (“ACS”). The delegate considered whether Mr Carpenter’s condition was compensable in light of its arising from a grievance against the Bureau. He considered that it related to a failure to obtain a benefit in connection with his employment and that benefit was a permanent transfer to Edinburgh. Conditions arising in those circumstances, the delegate continued, are excluded from being an injury within the meaning of the SRC Act and so are not compensable (T documents, page 91). Even if Mr Carpenter’s condition were not excluded on that basis, he said, there is no evidence to corroborate Mr Carpenter’s statements that the grievance was concerned about victimisation and illegal acts committed by his supervisors. In so far as the redeployment to the ACS was concerned, the delegate found that the work related stressors were effectively addressed by the rehabilitation programme and that Mr Carpenter’s ongoing problems were related to his “…basic personality which is one of insecurity and confusion when under prolonged stress” (T documents, page 92).
The upshot of a consideration of the delegate’s reasons is that they are partially directed to a decision that Mr Carpenter never suffered from an injury within the meaning of s. 4(1) of the SRC Act. That follows from his consideration of events at the Bureau. At the same time, the reasons are partially directed to a decision that Mr Carpenter was no longer suffering from the effects of the condition for which liability was previously accepted by Comcare. That is the effect of the consideration of matters at the ACS. The decision, however, was not a decision that Mr Carpenter had never been entitled but a decision that he was no longer entitle to compensation for a temporary aggravation of an underlying chronic anxiety. It was a decision affirming the earlier determination that Mr Carpenter was no longer entitled to continuing compensation.
Assuming that it is acceptable for Comcare to make a reviewable decision “ceasing ongoing liability” on the basis that it should never have accepted liability in the first case as well as on the basis that Mr Carpenter is no longer suffering from the condition for which liability was accepted, it is understandable why Mr Carpenter wants access to the information held by the former MPRA. He wants it to establish the nature of his grievance, that it was not about his failure to obtain a transfer in connection with his employment but was about victimisation, the requirement imposed upon him that he transfer (rather than a failure to obtain a transfer) and the rights and wrongs of what happened to him. Without the information from the MPRA, the only evidence is from sources outside the MPRA and one of those sources is necessarily Mr Carpenter.
What happened at the MPRA is, however, irrelevant in resolving whether or not Comcare has an ongoing liability to Mr Carpenter. What is relevant to consider is whether Mr Carpenter continued to suffer from an aggravation of an underlying chronic anxiety after 10 July, 1991 and, if so, the length of time for which he continued to suffer that aggravation and, indeed, whether he still suffers from that aggravation. That requires a consideration of whether his employment continued to contribute in a material way to that aggravation. Provided it does so, it is not relevant to consider whether anyone in the Bureau or the ACS was at fault and nor is it relevant to consider whether Mr Carpenter’s reaction to what happened to him in the course of his employment was irrational (Westgate v Australian Telecommunications Commission (1987) 17 FCR 235 per Davies J at 240-242). His employment will contribute in a material way if there is a factor arising out of, or in the course of, his employment and contributing to the aggravation of Mr Carpenter’s underlying chronic anxiety even if there are other factors that also contribute to its aggravation (see, for example, Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 641-643 per Windeyer J and Re Welsford and Commonwealth Banking Corporation (1984) 1 AAR 42 per Davies J at 43 and see generally Rodriguez v Telstra Corporation Ltd [1999] FCA 1400, Spender J). It follows that the evidence that will be relevant will be what happened to Mr Carpenter in his employment and its effect on him. Relevant evidence will include that of Mr Carpenter himself and of medical witnesses including Dr Ewer as well as officers with whom Mr Carpenter worked. It will not include evidence of the conclusions reached by the MPRA as to what happened to him. It will not include evidence directed to whether what the MPRA thought was right or wrong because, provided it is a factor arising out of, or in the course of, Mr Carptenter’s employment that has had a material contribution to the continuing aggravation of his condition, it does not matter whether the Bureau or ACS acted reasonably or not.
In his statement attached to the notification of his injury and lodged with ACS on 14 December, 1990, Mr Carpenter also referred to the stress that he had encountered in his dealings with the MPRA and its contribution (T documents, page 11). No submissions were made regarding whether Mr Carpenter’s dealings with the MPRA can be regarded as part of his employment but I have, for the purposes of this aspect of the case, assumed that they can be. Again, it is not necessary to establish what happened in the MPRA proceedings for Mr Carpenter’s case turns on the effect of his dealings. Evidence relevant to that includes his evidence as to its effect and medical evidence but the rights and wrongs of what happened and whether the MPRA should have done something other than what it did do are not relevant in these proceedings. These proceedings are limited to a consideration of Mr Carpenter’s entitlement to compensation under the SRC Act and cannot be used as a vehicle to consider what he believes are serious shortcomings in the MPRA’s handling of his case and in the subsequent handling of his complaints by the Commissioner.
Should the issues in this case be referred to the Federal Court pursuant to s. 45 of the AAT Act?
Finally, I will consider the submission that I should use my power under s. 45 of the AAT Act to refer a question of law to the Full Court of the Federal Court. In a recent decision of Lower and Comcare [2003] AATA 540, I set out the general principles that seem to be applicable to the consideration of such a request:
“28. The issue of when a question of law should be referred to the Federal Court is not one in relation to which there are hard and fast guidelines. It was touched upon by Bowen CJ in Brian Lawlor [Collector of Customs v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307] when he said:
‘… As I have said, in my opinion an applicant to the Tribunal has standing and the Tribunal has jurisdiction provided there is a decision in fact and provided further that the decision purports to have been made in exercise of powers conferred by an enactment whether or not as a matter of law it was validly made and whether or not action on the basis there was power to make the decision was right or wrong.
It may be that the nature of the legal question raised will be such that the Tribunal, although it has jurisdiction, may consider it proper that the applicant should first approach a court for decision of the question. It may, in its discretion, decide to defer hearing the application until this is done. An appeal involving a constitutional question might well be such a case. However, this would not be because the Tribunal lacked jurisdiction.’ (page 317)
29. In Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services [Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225] the Full Court made reference to the second paragraph of his passage and referred also to the following passage from the judgement of Deane J and expressed its view:
‘Deane J, who dissented as to the precise question involved in that case, remarked (at 378):
“An administrative tribunal will ordinarily have no authority to transcend the limits of the jurisdiction conferred upon it by hearing an application aimed not at invoking the jurisdiction which it possesses, but at securing an authoritative determination of questions of fact or law anterior to the existence of that jurisdiction.”
Where a question arises of the kind raised by the present matter, it may well be appropriate for the Tribunal to follow the suggestion made by Bowen CJ, or alternatively to refer a question of law the court under s 45 of the Administrative Appeals Tribunal Act.’ (page 233)
30. There is nothing in the Full Court’s judgement that suggests that a question of law should be referred to the Federal Court every time the Tribunal’s jurisdiction is called into question. Taken in their context, the flavour of the Full Court’s comments suggest that there are two sorts of issues that may be worthy of referral. One is an issue which the Tribunal has jurisdiction to consider but is of such complexity that it transcends the normal range of issues considered by the Tribunal. Such an issue might be a constitutional issue. Another example is found in the case of Re Zimmax Trading Co Pty Ltd and Collector of Customs, New South Wales (1979) 2 ALD 120 (Senior Member Hall and Mr Skermer and Mr Stock, Members). The other sort of issue concerns questions that precede the existence of the Tribunal’s jurisdiction and that would require the Tribunal to make an authoritative determination of law or fact.
31. Although, for the reasons that I gave in Re Davina and Defence Force Retirement and Death Benefits Authority (1996) 43 ALD 761, I do not consider that I am bound to refer a question of law when requested to do so, there are matters that I should take into account in considering whether or not to exercise that discretion. Those matters were summarised by Gallop J in Mitchell v Noble (1981) 7 NTR 19 when he said:
‘... in considering whether to accede to the application, the court should consider whether:-
(1)the question is of general importance and involves a substantial argument fit for consideration by the Supreme Court (R v Industrial Court; Ex parte Hunkin [1934] SASR 208 at 210);
(2)the answer to the question will determine or ought to determine the issue between the parties (Collins v Munroe (1887) 14 VLR 1); and
(3)the course of stating the case is preferable on the grounds of expense or otherwise to deciding the question of law and disposing of the case in the ordinary way.’ (page 22)
….”
Having regard to these general principles and the matters required to be considered in this case, I do not consider that the case raises questions of law that make it an appropriate case to be referred to the Federal Court under s. 45 of the AAT Act. The legislative provisions are no more complex than those regularly facing the Tribunal. They are interim, rather than substantive, issues and it would seem more appropriate that they form part of the whole case that is considered by the Federal Court once the Tribunal has reviewed the reviewable decision and once any appeal or application for review has been lodged in the Federal Court. As I indicated at the directions hearing, I will refer the matter to Deputy President Jarvis, who will preside at the hearing of Mr Carpenter’s application, for his consideration.
For the reasons I have given, I refused to issue a summons addressed to Ms Ingrid Chrichton, who is an Assistant Commissioner with the Public Service and Merit Protection Commission.
I certify that the forty-eight preceding paragraphs are a true copy of the reasons for the decision herein of
Miss S A Forgie (Deputy President)
Signed: ................................................................
P. Paczkowski Associate
Dates of Telephone Directions Hearing 3 and 6 June, 2003
Date of Decision 6 June, 2003
Written Reasons 14 July, 2003
For the Applicant self representedFor the Respondent Ms S Hocking
Solicitor for the Respondent Thomson Playford
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