Chapman, E.M.M. v Reilly, J.D
[1985] FCA 185
•14 MAY 1985
Re: EARNEST MAX McLEOD CHAPMAN
And: JOHN DANIEL REILLY and THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
No. ACT G 88 of 1983
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.
CATCHWORDS
Administrative Law - Judicial review - Police - Review of decision declining to appoint applicant as a constable - Whether decision-maker bound to observe rules of natural justice - Legitimate expectation - Whether rules of natural justice observed.
Administrative Decisions (Judicial Review) Act 1977, s.5
Australian Federal Police Act 1979, s.26(1)(a)
Australian Federal Police Regulations, reg.6
HEARING
CANBERRA
#DATE 14:5:1985
ORDER
The application be dismissed.
The applicant pay the respondents' costs of the application.
Note: Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.
JUDGE1
This is an application by Earnest Max McLeod Chapman ("the applicant") for an order of review under section 5 of the Administrative Decisions (Judicial Review) Act 1977. What, according to the amended application filed herein, is sought to be reviewed is "the decision and conduct of John Daniel Reilly, Assistant Commissioner of the Australian Federal Police Force, in withdrawing the offer of appointment to the said Police Force previously made to the applicant and in refusing to appoint the applicant".
The Australian Federal Police is established by the Australian Federal Police Act 1979. At all times material to the resolution of the issues that arise in this proceeding, paragraph 26(1)(a) of that Act provided that, subject to the Act, the Commissioner of Police might, by instrument in writing, appoint a person to be a non-commissioned officer in a component of the Australian Federal Police, being an appointment to a rank that the person was, in accordance with the regulations, competent and qualified to hold. As regulation 5 of the Australian Federal Police Regulations did not apply in the case of the applicant, the relevant provision in those regulations was sub-regulation 6(1) which provided -
"6.(1) Except where regulation 5 applies, a person is, for the purposes of paragraph 26(1)(a) or 26(1)(c) of the Act, competent and qualified to hold the rank of Constable in the Australian Federal Police if the person -
(a) is an Australian citizen;
(b) except in the case of a person in respect of whom the Commissioner has made a determination under sub-regulation (4), has attained the age of 18 years but has not attained the age of 31 years;
(c) unless the Commissioner otherwise decides, is not less than -
(i) in the case of a male person - 175 centimetres in height; or
(ii) in the case of a female person - 160 centimetres in height;
(d) has been certified by a medical practitioner approved by the Commissioner to be in good health, of sound constitution and fit both physically and mentally to perform the duties of a Constable;
(e) has produced evidence, to the satisfaction of the Commissioner, of his good character and reputation and, where the person has, at any time, been -
(i) a member of the Defence Force, an existing Police Force, or the police force of a State or the Northern Territory; or
(ii) an officer or employee of the Australian Public Service or the public service of a State or the Northern Territory,
of his good conduct while he was such a member, officer or employee; and
(f) has passed, at such level as the Commissioner determines, such written or oral examinations or tests as the Commissioner determines, being examinations or tests for the purpose of ascertaining whether the person is sufficiently educated, and has the necessary intelligence and aptitudes, to perform duties of the kind performed by a Constable, or has undertaken, to the satisfaction of the Commissioner, such training course or courses as the Commissioner determines."
In May 1983 the applicant applied for appointment to the Australian Federal Police, submitting a form of application containing his personal particulars, details of his education, previous experience and employment history and other general information. The applicant was at that time a serving member of the New South Wales Police Force, having served with that Force since 1967. He was stationed at Queanbeyan, N.S.W. and held the rank or grade of Detective Senior Constable.
It was accepted, in terms of paragraph 6(1)(a) of the regulations, that the applicant was an Australian citizen. Being 39 years of age he did not satisfy the requirements as to age in paragraph 6(1)(b) and his acceptance for appointment depended upon a determination being made under sub-regulation 6(4) that paragraph 6(1)(b) was not to apply to him. He satisfied the requirement as to height (paragraph 6(1)(c)) and on 17 June 1983 a medical practitioner approved by the Commissioner certified that he was in good health, of sound constitution and fit both physically and mentally to perform the duties of a constable (paragraph 6(1)(d)). With his application the applicant had submitted references as to his character and reputation (paragraph 6(1)(e)).
The applicant was interviewed by Station Sergeant Sweeny of the Australian Federal Police. By the time that interview took place, the applicant had passed satisfactorily the examination for entrance to the Australian Federal Police as a constable (paragraph 6(1)(f)). Station Sergeant Sweeny rated the applicant as "well above average". He recorded that the applicant was leaving the New South Wales Police Force "because his family are not prepared to travel away from Canberra for the present time until his children have completed their education".
According to the applicant Inspector M.J.M. Vincent of the Personnel Division of the Australian Federal Police informed him by telephone "at the beginning of June 1983" that his application had been accepted and he would receive written confirmation shortly. During the course of this conversation Inspector Vincent enquired whether the applicant had resigned from the New South Wales Police Force. Upon being told that the applicant had not done so and that he was proceeding on leave, Inspector Vincent accepted that the applicant would delay the submission of his resignation until he returned "about the middle of the month". The basis upon which Inspector Vincent made such a telephone call early in June 1983 is not apparent from the evidence before me as that evidence discloses that a decision that the applicant was suitable for appointment was not made until 27 June 1983 and there is a notation dated 9 June 1983 that no offer of appointment was to be made to the applicant pending inquiries of the Internal Investigation Division of the New South Wales Police Force.
Be that as it may, the applicant submitted his resignation from the New South Wales Police Force on 17 June 1983 to take effect at the close of business on 15 July 1983. The applicant informed Mr Spurling of the Australian Federal Police to that effect.
On 27 June 1983 Inspector Vincent wrote to the applicant in the following terms -
"I refer to your application for employment with the Australian Federal Police, as a Constable in the General Policing Component, and I am pleased to advise that the application has been successful, and accordingly, you are offered appointment at that rank.
If you wish to accept this offer of employment you should sign the attached 'Acceptance of Offer' document and return it to me within seven (7) days. Before signing the document please read it carefully so that you understand the terms under which you are being offered employment with the Australian Federal Police.
Should you not wish to accept this offer please notify Mr Vincent as soon as possible in writing or by telephoning the Recruiting Office, (062) 451211.
You should report to the Officer-in-Charge, Australian Federal Police Recruiting Unit, Havelock House, Northbourne Avenue, Turner, ACT at 8.00 am on Monday 18 July 1983.
At the conclusion of your appointment procedures you will be posted to a Division in the Australian Capital Territory. After that initial posting it is possible to seek a transfer to another Division of your own choice as and when vacancies occur and are advertised in the Australian Federal Police Gazette. You must understand, however, that such vacancies do not occur often and any application you do make will be considered together with all other applications from serving members.
For the first twelve (12) months of your service you will be on probation and at the conclusion of that time, subject to your work assessments, your appointment will be confirmed or annulled or your probationary period extended.
Should you have any questions regarding this offer of appointment, please contact the Recruiting Unit at the above address or telephone number.
As you may be aware, as you are currently a serving member of a State Government Department your long service leave entitlements will be carried over to the Commonwealth."
The document headed "Acceptance of Offer" referred to in the above letter and which the applicant subsequently signed and returned as requested read as follows -
"I Earnest Max MacLeod CHAPMAN hereby accept the offer of appointment as a Constable with the Australian Federal Police.
I understand and accept that my initial appointment will be in an ACT based Division and further I am prepared to serve in that area. I will attend at the location specified in the attached letter at the time and date nominated.
I understand that should, as yet, incomplete character checks concerning my application for appointment to the Australian Federal Police reveal any adverse matter not already disclosed by myself in that application, my appointment may be annulled.
I am aware that as vacancies occur in Divisions outside the Division of my initial appointment, they are advertised in the Australian Federal Police Gazette and I am at liberty to apply for transfer to those vacancies and to be considered along with all other applicants for those vacancies, however, I have been told that no guarantee can be given that I will be able to transfer to a given location at any specific time.
I am also aware that I may be required to serve in other locations as required by the needs of the Australian Federal Police."
Although Inspector Vincent had written to the applicant on 27 June 1983 in the terms set out above it was not until 29 June 1983 that a determination was made that paragraph 6(1)(b) of the Australian Federal Police Regulations was not to apply to the applicant. The basis of the determination, which was made by Chief Superintendent J. Fletcher as a delegate of the Commissioner, was, in terms of sub-regulation 6(4), that Chief Superintendent Fletcher was of opinion that the applicant should be appointed to be a member of the Australian Federal Police.
On 12 July 1983 Inspector Vincent requested the applicant to attend an interview with Mr Reilly ("the first respondent") that day and this he did. The affidavit sworn by the first respondent on 5 December 1983 and filed in this proceeding sets out his recollection of the material parts of the conversation that took place at that interview between himself and the applicant. Except in relation to certain matters to which it will be necessary to refer, the applicant did not, in the affidavits sworn by him or in his oral evidence, dispute the accuracy of the first respondent's recollection of what took place.
The applicant, in an affidavit sworn on 7 November 1983, had set out part of the conversation he had with the first respondent on 12 July 1983. The first respondent, in his affidavit, said that the matters concerning that conversation dealt with by the applicant in his affidavit were substantially correct.
In answer to the question addressed to him at the interview by the first respondent why a man with fifteen years' service in the New South Wales Police Force would resign and start again in another police force, the applicant said that he had been transferred to the metropolitan area (of Sydney) and, apart from the financial problems in changing houses, he did not wish to live in Sydney and his family did not want to go. In the course of further conversation the applicant said he had "run foul of Detective Sergeant Cullen, the District Detective Sergeant at Goulburn". When asked what he meant, the applicant, according to the first respondent, said:
"When I first went to Queanbeyan as a Detective it took me a while to go and do my detective's course. I was running a business, a piggery, and had about 300 pigs. Cullen and his mates used to go for a beer after work. I don't drink much anyway I am only a social drinker. Besides that I had too much to do. I never went with him. I never sort of got off to a good start with them. I noticed that the Detectives seemed to give me the cold shoulder. It had got to the stage where I was not told of anything that was happening particularly in relation to drug matters. One of the other detectives said that he had been given an order by Cullen not to discuss or give out any information on drugs, that I had these Italian mates they were probably growing the stuff and I wasn't to be trusted. None of it is true. I know Jimmy Santos and some other names I cannot remember. I have gone shooting with a number of people of Italian background and as far as I am concerned they are all good fellows. They are good hard-working blokes but Cullen reckons that they are a lot of bloody crooks and they just wouldn't talk to me.
My name was found in a telephone book or a diary of Mr Ianelli when his house was raided on a drug matter. Cullen reckons that was further evidence that I was a crook. The truth of the matter is after I got rid of the piggery my mate and I were going to buy a Pet Food business. We were going to set up a quality place and sell kangaroo and pig meat for pet food. Ianelli had the shop and we were negotiating with him to lease it, and I had to get in touch with him at home as to whether it was going to become available and whether I wanted to go ahead with it. Anyway the deal fell through. We did not go ahead with that shop but that is how my name got in Ianelli's book.
Jimmy Santos a businessman of Queanbeyan rang me at the Detective's Office in Queanbeyan on Saturday morning and said that some of his mates had gone to Canterbury Race Course to back a good thing. They took along with them Rodney De Smet. He used to be a jockey in these parts, who was to put on the money. The horse duly won and they stood to collect some $35,000 or $40,000. They were standing around after the horse had won and Rodney De Smet was found not to be present. Mr Santos and his friends made some enquiries and found that De Smet had attempted to collect the stake and winnings of $35,000 but the bookmaker had refused to pay the winnings. They said the bookmaker said 'It would have to be by cheque on settlement day but De Smet then asked for payment in cash of the stakes of the $7,000 being the bet placed'. The bookmaker had given De Smet the money. Mr Santos and his friends had made some further enquiries which showed that De Smet had obtained a flight from Sydney to Brisbane and was believed to be in Queensland. I was asked would I see what I could do about getting the money back.
I thought about it and I asked the boss Trevor Gore, he is the Sergeant, what we should do about it. Was it a Police matter or was it a Civil matter and we thought that it was not a Police matter at that stage but that I should go over to Narrabundah and see the De Smet family.
I went to the De Smet family. Rodney's sister was there. His mother started to kick up a lot of noise and said 'I told Rodney not to get involved with those bloody wogs. He would only end up in trouble.'
De Smet's sister said, she wanted nothing to do with it. It was none of her problem but she knew Rodney was in Sydney, in Brisbane or in Queensland. I'm not sure. I think she said in Queensland and that she would contact him and pass on the message that I wanted to get in touch with him. I was at the Detective Office when De Smet rang from Queensland and said 'What's this all about. What do you want to see me about or talk to me about.' I replied to him 'Jimmy Santos said you shot through with $7,000 of his money'. De Smet told me that he believed some of the money was his, as he had put some money on of his own and he felt that he was entitled to $1,000 and would Santos accept $6,000. I told him that I would go and talk to Santos and for him to ring me back later. I spoke to Mr Santos who said he would settle for $6,000. De Smet rang back to the Detective's Office and I said Jimmy would take the $6,000. De Smet said he would send it down. I said 'I don't want anything to do with cash. Send a Bank Cheque'. De Smet's sister rang me at the Detective Office on Monday morning and said that the Bank Cheque was there. I went over to Narrabundah picked up the Bank Cheque for $6,000 and gave it to Jimmy Santos. I didn't get anything out of it. That is why I insisted that De Smet send a Bank Cheque. I would not handle the cash. But some people claim that I could have got a quid out of it. I see that Cullen has tried to make trouble for me over it. A mate of mine told me or showed me that De Smet's sister had made a Statutory Declaration making allegations about me that I had said Jimmy's mate would break his bloody legs if he didn't pay the money back. That is not true. I didn't say anything like that. I have told your officers all about this matter when they interviewed me concerning various drug matters in New South Wales. That was an interview arranged due to Mr Hatton the local Member for the South Coast. It was taped and I was given a copy and your officers kept a copy."
The matters in relation to which the applicant disputed the accuracy of the first respondent's recollection of what took place at the interview may now be stated. The applicant said that he did not use the following words attributed to him by the first respondent -
(a) "... it took me a while to go and do my detective's course. I was running a business, a piggery, and had about 300 pigs."
(b) "... I never sort of got off to a good start with them (that is other police officers at Queanbeyan)."
(c) "The truth of the matter is after I got rid of the piggery my mate and I were going to buy a Pet Food business. We were going to set up a quality place and sell kangaroo and pig meat for pet food. Ianelli had the shop and we were negotiating with him to lease it."
(d) "... we thought it was not a police matter."
(e) "De Smet's sister said she wanted nothing to do with it."
(f) "... I went over to Narrabundah picked up the Bank Cheque for $6,000.00."
(g) "But some people claim that I could have got a quid out of it."
In relation to the above matters the applicant said -
(a) He told the first respondent that he did not do his detectives course until 1979: he had a few pigs at a friend's place. At no stage did he have 300 pigs or any number like it.
(b) It was only approximately in the last month of his work at Queanbeyan that he had any difficulty with any other police officers.
(c) He told the first respondent that he got rid of the pigs in 1979 when he went to do his detectives course and that subsequently the negotiations referred to relating to a pet food business took place on the basis that a friend was interested in going into such a business with the applicant's wife: that he, the applicant, assisted in making enquiries but that nothing came of the proposal.
(d) He told the first respondent that Detective Sergeant Gore and he "were not sure whether it was a police matter or not".
(e) He told the first respondent that Mr De Smet's sister told him, the applicant, that she would get in touch with her brother and get him to contact the applicant.
(f) He told the first respondent that Mr De Smet's sister brought the cheque to the police station in an envelope and that he, the applicant, took it to Mr Santos and gave it to him at his shop.
(g) He told the first respondent that he would not handle the cash in case anyone could infer that he received some part of the money.
He also said he told the first respondent that he had been told that Mr De Smet's sister had made a statement, that the statement was in Detective Sergeant Cullen's words and that it was not true.
The first respondent gave oral evidence in the proceedings. In his evidence in chief he affirmed the truth of the contents of the affidavit sworn by him on 5 December 1983 and added that during the conversation with the applicant on 12 July 1983 he asked the applicant what his sergeant thought of the De Smet matter. He said that the applicant replied:
"Well, he wasn't sure. When the matter had been resolved I had spoken to Sergeant Gore again about it and with the inspector and the inspector said words to the effect: 'You're a silly bugger to have got involved in it.'"
The applicant denied that he had so informed the first respondent. He also denied that he had been questioned or cautioned over the De Smet matter.
It is common ground that at the conclusion of the interview on 12 July 1983 the applicant was informed that he would not be commencing duty with the Australian Federal Police on 18 July 1983 and that the first respondent would let him know what the position was later that day or the next.
On 13 July 1983 the first respondent submitted to the Commissioner of the Australian Federal Police ("the second respondent") a minute in the following terms -
"Having interviewed Detective Senior Constable CHAPMAN yesterday and from my examination of all relevant facts, I propose to withdraw the offer of appointment to him. The offer, conveyed to him on 27 June and acknowledged by him by signature, was contingent upon the satisfactory completion of character checks. I believe there is adequate grounds of adverse matters which preclude his appointment. These do not include matters in dispute following his discussions with Mr HATTON.
He admitted to me that he had acted 'as an agent' to ensure the return of six thousand dollars to a group of persons in Queanbeyan. This was the result of a gambling debt and he had no role as a police officer to intervene in the matter. His actions were not warranted and not fit and proper for a police officer.
There are a number of other factors which mitigated against his appointment and which I shall detail and place on file. These relate to his admitted engagement in business while a police officer and his reluctance to move from the ACT area. At age 39 his main 'asset' to AFP was the experience as a detective and it is in areas outside of Canberra that we could best utilise his talents. We already have sufficient experienced detectives in the ACT."
It appears that the Mr Hatton referred to in the minute was a Member of the New South Wales Parliament with whom the applicant had had discussions during which he, the applicant, made allegations against members of the New South Wales Police Force.
The file note above referred to was in the following terms -
"Earnest Max MacLeod (Max) CHAPMAN, age 39, service with NSW Police since 1967.
2. I advised him that I was reviewing his application as I was surprised to find a NSW police officer with 15 years service, a designated detective and who ordinarily might be expecting promotion to Sergeant, applying for a position of Constable. This had led me to make enquiries as to why he might be wishing to leave NSW Police and that certain information I'd received required further investigation and that I could not guarantee his offer of employment to start on 18 July.
3. He stated that his application arose from a directive on 29/12/82 that he transfer to Sydney. While initially told that the reason was that there were too many experienced detectives in the Goulburn sub-district, he stated he was satisfied it was due to his conflict with Detective Sergeant CULLEN at Goulburn and had been advised on a confidential basis that this was so. He further stated that as both he and his wife were from the country, the prospect of living in Sydney, coupled with the high cost of housing there, had caused him to decide to resign rather than go to Sydney where, in any event, he felt his career as a detective would finish as Sergeant CULLEN had friends in high positions who would get him transferred to uniform duties.
4. He then detailed a series of allegations and counter allegations between himself and CULLEN; then the Detective Sergeant at Queanbeyan. Admits when first transferred to Queanbeyan he had outside 'business' interests (pig farm) and after ceasing this, looked at another business (pet food shop) and negotiated with Tony IANELLI for a shop (this later fell through). This is his explanation for the finding of his name and telephone number in later raid on IANELLI. Bad blood developed between himself and CULLEN, culminating in him being ostracised by other detectives and omitted from any exchange of information concerning drugs and that it was alleged he was 'crook' and associated with Italians involved in criminal activity. Admits association with small group of Italians who are, he claims, businessmen of integrity.
5. Disregarding all these allegations and counter allegations, the matter of greatest concern to me was his voluntary admission of his role in the collection of a debt. This related to an incident several months ago when a group of Italian descent men in Queanbeyan went to Sydney ('to Canterbury I think it was' were his actual words) to back a mate's horse. They took Rodney De Smet, an ex jockey, with them and he was given $7000 to put on. When the horse won, Rodney was missing. Enquiries revealed he had tried to collect the $35,000 ('I think it was that much') but the bookmaker refused, stating settlement would be by cheque several days later. De Smet however was given $7,000 (the stake money) by the bookmaker and decamped to Queensland.
6. CHAPMAN then stated he had contacted and visited De Smet family in Narrabundah and ultimately arranged the transmission of a bank cheque for $6,000 from De Smet, collected this from his sister and gave it to Jimmy SANTOS. CHAPMAN said De Smet kept $1,000 as his winnings or share. I am advised that other people claim that CHAPMAN took $1,000 as his commission and that CHAPMAN threatened De Smet's sister that her brother would be assaulted if the money was not repaid. No matter which version is true, his actions in recovering this money (are), in my opinion, such to render him unfit for appointment to AFP. CHAPMAN stated some of his senior officers were aware of his actions and had counselled him on his part. He has made no mention of this in his application (on page 3, answer 'NO' to question 'have you ever been spoken to or cautioned by any member of a Police Force in connection with any incident or offence').
7. There is the additional matter from his other admissions of previously engaging in outside business interests that he would probably only use AFP as a means of income while he launched another business which, if successful, would probably result in his early resignation from AFP.
8. I advised him that in view of all further information that had come into my possession, I would review his offer of appointment and make further enquiries. I drew his attention to para. 3 of his offer of employment and his acknowledgment that the offer of employment was contingent upon satisfactory completion of character checks.
9. I advised him that, should I decide not to offer him appointment, I would let him know by c.o.b. on 13 July. Even if this were not the case, that it was most unlikely he would start on 18 July as originally advised. In either event, he would be in a position to defer his resignation from the NSW Police if he so wished. He said he had submitted his resignation only after getting his offer of employment and he doubted if he would be permitted to withdraw his resignation.
10. Notwithstanding this, on the basis of matters detailed above in para. 5-7, I decided his application should be deemed as unsuccessful and his previous offer of employment should be withdrawn. He was advised accordingly by letter delivered personally to him at his home at 5.30pm Wednesday 13 July 1983."
On the same day a letter bearing that date was signed by the first respondent and delivered to the applicant. The letter read -
"I refer to a letter dated 27 June 1983 from Inspector VINCENT offering you appointment as a Constable with the Australian Federal Police. Your reply of acceptance, in paragraph three, acknowledged that the offer was conditional upon the satisfactory completion of other matters and that the disclosure of new information could lead to annulment of your appointment.
As the result of information which has come to my attention, including that provided by you during our meeting of 12th July, I have decided because of matters not disclosed in your original application or at your subsequent interview with the recruiting officer, that the offer of appointment to the Australian Federal Police previously made to you is withdrawn. Accordingly, you will not be required to report to the Officer in Charge, Recruiting Branch on Monday 18 July 1983 as previously arranged."
By memorandum dated 14 July 1983 the applicant requested that he be permitted to withdraw his resignation from the New South Wales Police Force. That request was refused.
The first respondent was cross-examined at length in relation to what took place at the interview with the applicant on 12 July 1983, the minute to the second respondent dated the following day and the file note referred to therein.
Accepting, as I do, the evidence of the first respondent, I find that his decision not to appoint the applicant to the Australian Federal Police was based upon what the applicant had told him at the interview on 12 July 1983 in relation to what has been referred to as the De Smet matter. I further find that the other matters to which reference was made in his minute dated 13 July 1983 to the second respondent and in the file note dated 13 July 1983 were subsidiary matters which but added further imbalance to the scales which were, by reason of the first respondent's assessment of the role of the applicant in the De Smet matter, no longer in a state of equilibrium but tilted significantly against making the appointment.
I also find that, in making his decision, the first respondent did not give credence to the allegations which he was informed had been made against the applicant by Detective Sergeant Cullen. I accept the first respondent's evidence that, as he was in no position to test the veracity either of the allegations made by Detective Sergeant Cullen or the counter allegations made by the applicant, they were given no place in his deliberative process.
The first respondent clearly took the view that the applicant had not, in relation to the De Smet matter, taken what he, the first respondent, regarded as the correct steps to set in train the investigative process which should have followed if the circumstances as recounted to the applicant by Mr Santos were thought to involve a criminal offence; and whether or not those circumstances suggested the commission of a criminal offence, it was not a proper function for the applicant to undertake to set about, as in the first respondent's view he did, the collection of the money from De Smet and the handing of it to Mr Santos. It is also clear that the first respondent's view of the applicant's role in the matter did not depend upon whether or not what the applicant was doing was known to the sergeant to whom he was responsible.
The question does not arise in these proceedings whether the Court would, on the material that was before the first respondent, have reached the same conclusion as he did. That was a matter peculiarly within the province of the first respondent as the person charged by the second respondent with determining whether or not the applicant should be appointed. Subject to the questions whether the applicant was entitled to be treated in accordance with the principles of natural justice and, if so, whether those principles were observed, it is established to my satisfaction that the first respondent considered in good faith that the applicant was not fit to occupy the office of constable in the Australian Federal Police and as Gibbs C.J. remarked in O'Rourke v. Miller (High Court - 28 March 1985 - unreported):
"It is of great importance to the public that persons whose conduct or character is doubtful should be kept out of the police force ..."
The principal ground upon which the applicant relied was that expressed in paragraph 5(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 namely that a breach of the rules of natural justice occurred in connection with the making of the decision by the first respondent not to appoint the applicant to the Australian Federal Police. The breach of those rules which the applicant asserted had occurred consisted in the alleged failure of the first respondent to inform the applicant of the matters adverse to him which the first respondent proposed to take into account in reaching his decision and to afford him an opportunity to produce further material to refute those adverse matters. The argument went so far as to suggest that a breach of the rules of natural justice had occurred by reason of the failure of the first respondent to undertake enquiries of other persons to ascertain the truth or otherwise of certain allegations against the applicant of which the first respondent had been made aware.
The argument advanced on behalf of the applicant conceded that, in the generality of cases, neither the Commissioner nor a delegate of the Commissioner, in making an appointment to the Australian Federal Police pursuant to paragraph 26(1)(a) of the Australian Federal Police Act 1979, is under a duty to observe the rules of natural justice. It was argued, however, that in the particular and special circumstances of the applicant's case, circumstances arising from the conduct of Inspector Vincent in informing him "at the beginning of June 1983" that his application had been accepted and in writing to him in similar vein on 27 June 1983, the applicant had a "legitimate expectation" that his appointment would not be denied without his being given an adequate opportunity to place material before the decision-maker as to why that decision should not be made.
There are thus three questions to be addressed. The first is whether the first respondent was under a duty to observe the rules of natural justice. If the answer to that question is in the affirmative, the second question arises, namely what did those rules require of the first respondent. The final question, if it arises, is whether the conduct of the first respondent fell short of complying with that requirement.
As I understand what has been said on the subject by the High Court, the first question is to be resolved as a matter of statutory construction, the statute being construed against the background of the relevant common law principles. In Twist v. Randwick Municipal Council (1976) 136 CLR 106 at pp 109-110 Barwick C.J. expressed the matter thus -
"The common law rule that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power is both fundamental and universal: see Cooper v. Wandsworth Board of Works (1863) 14 C.B. (N.S.) 180 (143 ER 414) and R. v. Electricity Commissioners; Ex parte London Electricity Joint Committee Co.
(1920) Ltd. (1924) 1 KB 171, at p 205. But the legislature may displace the rule and provide for the exercise of such a power without any opportunity being afforded the affected person to oppose its exercise. However, if that is the legislative intention it must be made unambiguously clear. In the event that the legislation does not clearly preclude such a course, the court will, as it were, itself supplement the legislation by insisting that the statutory powers are to be exercised only after an appropriate opportunity has been afforded the subject whose person or property is the subject of the exercise of the statutory power. But, if the legislation has made provision for that opportunity to be given to the subject before his person or property is so affected, the court will not be warranted in supplementing the legislation, even if the legislative provision is not as full and complete as the court might think appropriate. Thus, if the legislature has addressed itself to the question whether an opportunity should be afforded the citizen to be relevantly heard and has either made it clear that no such opportunity is to be given or has, by its legislation, decided what opportunity should be afforded, the court, being bound by the legislation as much as is the citizen, has no warrant to vary the legislative scheme. But, if it appears to the court that the legislature has not addressed itself to the appropriate question, the court in the protection of the citizen and in the provision of natural justice may declare that statutory action affecting the person or property of the citizen without affording the citizen an opportunity to be heard before he or his property is affected is ineffective. The court will approach the construction of the statute with a presumption that the legislature does not intend to deny natural justice to the citizen. Where the legislation is silent on the matter, the court may presume that the legislature has left it to the courts to prescribe and enforce the appropriate procedure to ensure natural justice. In my opinion, this statement of relevant principal is in accord with the authorities, including particularly the case of Wiseman v. Borneman (1971) AC 297."
In the same case the other members of the Court, Mason and Jacobs JJ., also clearly identified the question in issue as being whether the legislature had clearly indicated an intention that, in exercising the statutory power conferred, the decision-maker was to be under no duty to give to the person to be affected by the decision an opportunity to present his case before the power was exercised.
In Salemi v. MacKellar (No.2) (1977) 137 CLR 396 Barwick C.J. supplemented what he had said in Twist v. Randwick Municipal Council (supra) in the following passage (at pp 400-1) -
"The courts in construing a statute may make express what is implicit in it. Thus they may decide that the statute requires those whom it vests with a power of decision affecting the rights and property of others to adopt procedures which, in the opinion of the courts, are necessary to ensure natural justice. Those procedures are various and stem from the particular statutory situations with which the courts have to deal, and at times from the particular situation of a person likely to be affected by the decision. It is in this connexion that the concept of fairness is relevant: that is, once it is concluded that the power of decision or action is dependent on the observance of natural justice, fairness in the particular circumstances will determine what must needs be done to satisfy natural justice. The fairness is what is required of a repository of power when on the proper construction of the statute that power is qualified by the need to accord natural justice. But the basic question is whether the statutory power is so qualified. Whether it is to be so qualified is a matter for the Parliament. It is for the courts to decide in point of construction what the Parliament has relevantly enacted, both expressly and implicitly. The courts by construction of the statute educe and make express the qualification of the granted power inherent in the statute. Having decided that the statute makes the exercise of the power contingent on the observance of natural justice, the courts then decide what is required in the particular circumstances to satisfy the statute so construed. But it is fundamental that what the courts do in qualifying the powers is no more than to construe the statute. Failure to meet the qualification of the power, that is to accord natural justice in the manner which the courts decide is required in the circumstances, results in invalidity of the decision or act, because neither is authorized by the statute as construed by the courts."
Gibbs J. (as the present Chief Justice then was) also approached the issue that arose in Salemi v. MacKellar (No.2) (supra) as one of statutory construction. His Honour, in a judgment in which Aickin J. agreed, said at p 419 -
"The question whether the principles of natural justice must be applied, and if so what those principles require, depends on the circumstances of each case. In the case of a statutory power, the question will depend on the true construction of the statutory provision in light of the common law principles (cf. Durayappah v. Fernando (1967) 2 AC, at p 350)."
A similar approach was taken by the other Justices (Stephen, Jacobs and Murphy JJ.) who constituted the Court in that case, though with differing results as to the discerned legislative intention.
The view that the matter was one of ascertaining the legislative intention was also taken in The Queen v. MacKellar; Ex parte Ratu (1977) 137 CLR 461 (see, for example, at p 475 per Mason J. who did not participate in Salemi v. MacKellar (No.2) (supra)), in Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 CLR 487, in Bread Manufacturers of New South Wales v. Evans (1981) 38 ALR 93 (see, for example, per Mason and Wilson JJ. at p 117) and in F.A.I. Insurances Ltd. v. Winneke (1982) 151 CLR 342 (see, for example, per Brennan J. at pp 407-410). In the latter case Brennan J. summarised the position at pp.409-410 in the following terms -
"The cases earlier cited show legislative intention to be the foundation upon which a requirement to apply the principles of natural justice rests. Indeed, if a statute were to confer a power in terms which, upon their true construction, did not require the observance of a rule of natural justice, an exercise of the power in accordance with the statute would be effective although the rule were not observed: see Twist (1976) 136 C.L.R., at p.109; Salemi (1977) 137 C.L.R., at pp.401, 422, 451.
The construing of a statute with a view to determining whether the principles of natural justice are to be applied requires more than mere exegesis of the statutory text; the common law attributes to the statute an operation which accords as closely as may be with the requirements of justice. The common law attributes to the legislature an intention that the principles of natural justice be applied in the exercise of certain statutory powers, and the legislature's intention provides the sole and sufficient warrant for judicial review of the exercise of those powers when an applicable rule of natural justice is not observed. And so, where a challenge to the validity of an exercise of a statutory power is made on the grounds that a rule of natural justice has not been observed, the true foundation for the challenge is that a condition imposed by the statute upon the exercise of the power, albeit an implied condition, is not fulfilled and that an exercise of the power is not efficacious unless the condition is fulfilled.
The subjects of statutory powers are so various, the repositories of power so differently constituted and the language of statutes so diverse that the conditions to be implied are not - indeed cannot be - constant from statute to statute. In each case it is necessary to infer the true intention of the legislature by examining both the text of the statute and those extrinsic matters to which reference might properly be made in aid of interpretation. That examination is no longer impeded by drawing a rigid distinction between powers to be exercised judicially and powers to be exercised ministerially. The rigidity of that distinction has given way to a consideration of the functions to be performed as an aid in ascertaining the legislature's intention. The concepts of natural justice and fairness, for all their imprecision, have illuminated the perception of the legislature's intention by the courts.."
It must also be taken as established that the circumstance that the exercise of the statutory power will not affect rights in the strict sense is not, of itself, sufficient to warrant the conclusion that the rules of natural justice have no application: Banks v. Transport Regulation Board (Vict.) (1968) 119 CLR 222; Heatley v. Tasmanian Racing and Gaming Commission (supra); F.A.I. Insurances Ltd. v. Winneke (supra) per Brennan J. at p 412. Thus the power to renew or revoke a licence may be subject to compliance with those rules even though the power initially to grant or refuse such a licence may not be so subject. It is in this context that the references to a "legitimate" or a "reasonable" or a "settled" expectation can be readily understood.
If it be accepted, as I think it must, that the statutory provisions relating to the appointment of members of the Australian Federal Police disclose a legislative intention that the principles of natural justice are not to apply (the contrary not being argued), the issue raised in the present case is whether that legislative intention is to be regarded as qualified so that the principles of natural justice are excluded except in an individual case where a court, examining the particular circumstances of that case, concludes that the person had a "legitimate" or "reasonable" or "settled" expectation that he would not be refused appointment without the principles of natural justice being observed.
In Salemi v. MacKellar (No.2) (supra) Barwick C.J. answered the similar question that arose in that case with an emphatic negative. In a statement clearly referable to the alternative submission that was put in that case that, even if the Minister was not bound universally to afford natural justice in exercising the power to deport under section 18 of the Migration Act 1958, he was bound to do so in relation to the plaintiff Salemi because of the Minister's public offer of amnesty and the plaintiff's situation in relation thereto, the Chief Justice said (at p.401) in a passage which follows immediately upon that already cited -
"The obligation to accord natural justice thus disclosed on the proper interpretation of the statute is universal and not particular to some individual or his circumstances: the power is a qualified power. As I have said, the exercise of the power in any circumstances without having accorded natural justice appropriate to the circumstances may be set aside by the courts as beyond the power given by the statute. I have emphasized that what will suffice to perform or satisfy the obligation to accord natural justice will be particular to the circumstances which obtain. But the obligation to accord natural justice does not itself spring from these circumstances: it springs from the construction by the courts of the statute, in particular of the terms in which the power is granted, the nature of the power of decision or action, the identity of the donee of the power and of its subject matter."
The Chief Justice reaffirmed that view in The Queen v. MacKellar; Ex parte Ratu (supra) at p 465.
Gibbs J., with whose judgment Aickin J. agreed, took a similar view. At p.422 Gibbs J. said -
"Once it is concluded that the Act, so construed and understood, does not impose a duty to act in accordance with the principles of natural justice, it is not relevant that statements made by the Minister may have led the plaintiff to expect that he would not be deported; the fact that the plaintiff had acted on the faith of the Minister's statements would then only be relevant if there arose an estoppel or some contractual obligation binding the Minister, and this is not suggested. In other words, if the Act confers a power which may be exercised without regard to the principles of natural justice, the Minister is entitled to exercise that power even if the exercise of it appears to be unfair, and to defeat expectations which his statements have raised. On the other hand, if the conclusion had been reached that the Act did require the Minister to act in accordance with the principles of natural justice, it might be relevant, in deciding whether or not he had discharged his duty, to consider the statements he had made and the manner in which the plaintiff had acted in reliance on them."
His Honour also adverted to the matter in The Queen v. MacKellar; Ex parte Ratu (supra) at p 470.
Stephen J. left open the question whether, apart from the amnesty, section 18 of the Migration Act 1958 required the Minister to act in accordance with the principles of natural justice. But his Honour found it to be not inconsistent with or destructive of the apparent purpose of the legislation to hold that the rules of natural justice applied at least where the decision-maker had fettered the manner of the exercise of his discretion by expressly promising to a class of prohibited immigrants to which the plaintiff belonged lawful residential status in Australia so long as, by the due date, their whereabouts was disclosed and appropriate application made.
Jacobs J., while recognising that the question was whether the legislature had manifested an intention to negate the necessity in any circumstances for the Minister, in taking action under section 18, to observe the principles of natural justice, concluded that the legislature, by using the general language of that section, had left it to the courts to decide when and how the principles of natural justice should be applied in the exercise of the executive power of deportation (see pp.451-2 of the report).
Murphy J. concluded that the rules of natural justice were universally applicable to all decisions under section 18.
The question has not again arisen for determination in the High Court but was discussed by Brennan J. in F.A.I. Insurances Ltd. v. Winneke (supra) where his Honour said (at p 412) -
"For my part, I have difficulty in understanding how the expectation of a particular applicant is capable of aiding in the ascertainment of the legislature's intention as to the application of the principles of natural justice by a repository of a statutory power. The aptitude of the exercise of the power to affect proprietary or financial interests or reputation furnishes a surer ground for implying that the principles of natural justice are to be applied in its exercise. Although the implication does not, in my view, depend upon the expectations of a particular applicant, those expectations may be relevant to the way in which a repository who is bound to observe a rule of natural justice must exercise his power in a particular case."
I share, if I may say so with respect, his Honour's difficulty. Is it to be imputed to the legislature that, in the exercise of the power of appointing persons to be members of the Australian Federal Police, the rules of natural justice are not to apply except in relation to each individual case in which a court, after the power has been exercised, concludes that it was in the circumstances unfair not to act in accordance with those rules. So to construe the legislation would introduce a new uncertainty into administrative decision-making. It would mean that an appointment made by the Commissioner, or his delegate, from amongst a number of applicants would be liable to be set aside if the court were to conclude, upon an examination of the circumstances of an unsuccessful applicant, that that applicant should have been treated differently from the remainder. Further, the circumstances relied upon may be circumstances of which the decision-maker was unaware - or is the decision-maker's knowledge or assumed knowledge to be treated as relevant in determining whether the rules of natural justice are to apply? If such be the intention to be attributed to the legislature, a prudent decision-maker would perhaps find it necessary to conduct himself in such a way as if, contrary to the hypothesis upon which this discussion is proceeding, the statutory provision required the universal application of the rules of natural justice.
With these considerations in mind and reading paragraph 26(1)(a) of the Australian Federal Police Act 1979 in its context, I would conclude that the intention to be attributed to the legislature is that the rules of natural justice have no application to the exercise of the power given by that paragraph. Counsel for the applicant, however, relied upon the decision of a Full Court of this Court in Cole v. Cunningham (1983) 49 ALR 123 and to that decision I must now turn.
That case concerned a decision of a delegate of the Public Service Board not to re-appoint the respondent (Cunningham) to the Australian Public Service under section 47B of the Public Service Act 1922. The Court accepted that the relevant sections of that Act did not require the Public Service Board in making appointments or re-appointments to observe the rules of natural justice. Their Honours said, at p.128 -
"An applicant for appointment or re-appointment to the Public Service is not entitled to natural justice because he, being outside the service, has no legitimate expectation, let alone right, which can be disappointed or affected by a refusal to appoint him."
Nonetheless the Court concluded that, in the very special facts and circumstances of the respondent's case, the Board was obliged to observe the rules of natural justice. Those very special facts and circumstances were held to give rise to a legitimate or reasonable expectation in the respondent that his application for re-appointment to the public service would not be refused on the ground of prior misconduct without his being given an adequate opportunity to answer allegations of misconduct made against him.
In the final analysis the Court appears to have adopted a different approach to that of the High Court in the cases cited and to have treated the question as not being one of ascertaining the intention of the legislature. Thus their Honours said, at p.130 -
"The gate being ajar, the FAI case (F.A.I. Insurances Ltd. v. Winneke (supra)) does not decide that the only path to relief is that ultimately involving the construction of the statute which confers the power, the exercise of which is in question."
The decision appears to me to rest on the view that, in the absence of express statutory provision requiring a contrary conclusion, the very special or, perhaps one should say exceptional, circumstances of a particular case may give rise to a legitimate expectation in the person whose interests are to be affected and thus warrant the importation of a requirement that the decision-maker, in exercising his statutory power in relation to that case, observe the rules of natural justice by affording the person concerned an opportunity to answer the allegations made against him.
I am, of course, bound by the decision of the Full Court of this Court in Cole v. Cunningham (supra). The statutory provisions now under consideration are not, I think, distinguishable in any material respect from those before the Court in that case. Nor is there to be found in the provisions of the Australian Federal Police Act 1979 a stronger indication of the legislature's intention to exclude the rules of natural justice than their Honours found in the relevant provisions of the Public Service Act 1922.
I am, therefore, in accordance with my understanding of that decision constrained to consider whether the circumstances of this case were of such a special or exceptional character as to give rise to a legitimate expectation in the applicant that he would not be refused appointment to the Australian Federal Police without his being informed of the matters adverse to him which the first respondent proposed to take into account and without an adequate opportunity for him to be heard thereon.
To support the proposition that the applicant had a legitimate expectation in the relevant sense, counsel for the applicant relied upon a number of matters. He pointed to the assurance which the applicant had received from Inspector Vincent, a senior officer of the Australian Federal Police, that his application had been accepted, this assurance being given both orally and by letter; to the request, with which he complied, that he sign a form of acceptance of the offer of appointment; to the conversation with Inspector Vincent concerning his resignation from the New South Wales Police Force which was followed by the applicant tendering his resignation from that Force on the faith of the assurance given as to his appointment to the Australian Federal Police; and to the conversations concerning the date upon which he was to commence duty with the latter body.
Counsel for the respondents submitted to the contrary. He argued that, in order to establish a legitimate expectation in the relevant sense, the applicant must show that the special or exceptional circumstances on which he relies existed at the time of his application to join the Australian Federal Police and that he made his application relying on those circumstances. The fact that at the time the applicant applied to join the Australian Federal Police there was nothing relevantly to differentiate his application from that of any other person was said to distinguish this case from Cole v. Cunningham (supra) and the other cases in which such a question has been discussed including the decision of the Privy Council in Attorney-General of Hong Kong v. Ng Yuen Shiu (1983) 2 AC 629.
I am unable to accept this submission. I can see no reason in principle why, if the special or exceptional circumstances of a particular case can give rise to a legitimate expectation of the kind of which we are speaking, the Court is limited to a consideration of those circumstances which existed prior to the application being made. The Court is entitled, in my view, to look at all the relevant circumstances as they existed up to the time when the statutory power in question was exercised.
In my opinion the circumstances above referred to which were relied upon by counsel for the applicant were sufficiently special or exceptional as to give rise to a legitimate expectation in the applicant that his appointment would not be refused without his being given an opportunity to answer the matters adverse to him which the decision-maker proposed to take into account. I should, however, add that I am unable to accept the alternative submission put by counsel for the applicant that the applicant had such a legitimate expectation because the circumstances gave rise to a contract, albeit an unenforceable one: see Sellars v. Woods (1982) 45 ALR 113; Chapman v. Commissioner, Australian Federal Police (1983) 50 ACTR 23.
It remains to consider whether there was a failure on the part of the first respondent to observe the rules of natural justice appropriate in the circumstances. That question must be approached on the basis that the applicant had no right to appointment; he had no right beyond the right to expect a bona fide decision by the first respondent, as delegate of the second respondent, on his suitability to be a member of the Australian Federal Police with the proviso that, if any material on which that decision was to be based were adverse to him, then the substance of that material would be made known to him and an opportunity given to him to make his response.
In the light of the findings I have made as to the basis upon which the first respondent reached his decision, I am satisfied that there was no failure on his part to observe the principles of natural justice.
The first respondent, upon being made aware that doubts had arisen concerning the applicant's suitability for appointment to the Australian Police Force and upon being informed generally of the basis of those doubts, determined that the appropriate course was to interview the applicant in order to give him an opportunity to speak to his application. A lengthy interview then took place. It is clear that the applicant was aware that his suitability for appointment to the Australian Federal Police was in question and that he was being invited to deal with matters as a result of which, to use his own words he had "run foul of Detective Sergeant Cullen, the District Detective Sergeant at Goulburn".
This is not a case where the decision-maker has relied on matters adverse to the person affected by the decision which were not made known to him and which he had no adequate opportunity to meet. Here the first respondent based his decision squarely upon what had been told to him by the applicant when asked to explain what had given rise to his difficulties with Detective Sergeant Cullen. In essence, the applicant's complaint was that the matters which he disclosed at the interview did not justify the conclusion which the first respondent reached: the first respondent was said to have been mistaken in the view he took as to the applicant's conduct of the De Smet matter. But the conclusion to be drawn from that material was, as I have already said, peculiarly a matter for the first respondent and the circumstance that a court may have reached a different conclusion had the question been one for it provides no basis for setting aside the decision. In my opinion the applicant was given an adequate opportunity to put his case to the first respondent. The further submission that it was incumbent on the first respondent, before reaching a decision, to make further enquiries into the De Smet matter cannot, in my opinion, be sustained. It may be that the first respondent would have been assisted in reaching his decision by what such further enquiries may have revealed but it was a matter for him to determine whether to make further enquiries: there was no obligation upon him to do so.
The applicant has also not satisfied me that the first respondent failed to take into account relevant matters or took into account irrelevant matters. Nor, in my opinion, would it be correct to conclude that the exercise of the power by the first respondent was so unreasonable that no reasonable person could have so exercised it.
In the result, the application should be dismissed. The applicant should pay the respondents' costs.
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