D'Amore v Independent Commission Against Corruption
[2013] NSWCA 187
•21 June 2013
This decision has been amended. Please see the end of the decision for a list of the amendments.
Court of Appeal
New South Wales
Case Title: D'Amore v Independent Commission Against Corruption Medium Neutral Citation: [2013] NSWCA 187 Decision Date: 21 June 2013 Before: Bathurst CJ at [1];
Beazley P at [2];
Basten JA at [194]Decision: (1) Grant leave to appeal;
(2) Appeal dismissed with costs.[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: ADMINISTRATIVE LAW - jurisdictional error - jurisdictional fact - sitting day relief entitlements - corrupt conduct - relevant considerations - scope of duty to provide reasons Legislation Cited: Civil Liability Act 2002
Constitution Act 1902
Independent Commission Against Corruption Act 1988
Migration Act 1958 (Cth)
Parliamentary Remuneration Act 1989
Supreme Court Act 1970Cases Cited: Allianz Australia Insurance Ltd v Roads and Traffic Authority of NSW [2010] NSWCA 328
Amaba Pty Ltd v Booth [2010] NSWCA 344
Applicant M31 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 533
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Associated Provincial Pictures Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Attorney General (NSW) v Quin [1990] HCA 21; 170 CLR 1
Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321
Azzopardi v Tasman UEB Industries Ltd (1985) 5 NSWLR 139
Balog v Independent Commission Against Corruption [1990] HCA 28; 169 CLR 625
Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430
Brennan v New South Wales Land and Housing Corporation [2011] NSWCA 298
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Buck v Bavone [1976] HCA 24; 135 CLR 110
Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748
Craig v South Australia [1995] HCA 58; 184 CLR 163
Dranichinikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389
Fox v Percy [2003] HCA 22; 214 CLR 118
Goodwin v Commissioner of Police [2012] NSWCA 379
Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125
House v The King [1936] HCA 40; 55 CLR 499
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
Karger v Paul [1984] VR 161
Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291
Kirk v Industrial Relations Commission [2010] HCA 1
Kostas v HIA Insurance Services Pty Ltd [2010] HC 32; 241 CLR 390
Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340; 141 FCR 346
M70/2011 v Minister for Immigration and Citizenship; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24
Minister for Immigration and Citizenship v Li [2013] HCA 18; 87 ALJR 618
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611
Minister for Immigration and Multicultural Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; 67 ALJR 170
Paul v Minister of Immigration and Multicultural Affairs [2001] FCA 1196; 113 FCR 396
R v Australian Stevedoring Industry Board; Ex Parte Melbourne Stevedoring Co Ld [1953] HCA 22; 88 CLR 100
R v Connell; Ex parte The Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165
Refugee Review Tribunal, Re; Ex parte Aala [2000] HCA 57; 204 CLR 82
SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545
Sneddon v State of New South Wales [2012] NSWCA 351
State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In liq) [1997] HCA 3; 160 ALR 588
Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141
Suvaal v Cessnock City Council [2003] HCA 41; 77 ALJR 1449
The Queen v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407
Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816
Watson v Foxman (1995) 49 NSWLR 315
Weal v Bathurst City Council [2000] NSWCA 88Texts Cited: Aronson and Groves, Judicial Review of Administrative Action (5th ed, 2013) Category: Principal judgment Parties: Angela D'Amore (Appellant)
Independent Commission Against Corruption (Respondent)Representation - Counsel: Counsel:
J K Kirk SC; R Tripodi (Appellant)
T A Alexis SC; A M Mitchelmore (Respondent)- Solicitors: Solicitors:
W G McNally Jones Staff (Appellant)
The Crown Solicitor's Office (Respondent)File Number(s): CA 2012/181698 Decision Under Appeal - Court / Tribunal: Supreme Court - Before: McClellan CJ at CL - Date of Decision: 14 May 2012 - Citation: D'Amore v Independent Commission Against Corruption [2012] NSWSC 473 - Court File Number(s): SC 2011/138619
HEADNOTE
[This headnote is not to be read as part of the judgment]
The appellant, who was a member of the New South Wales Legislative Assembly, was investigated by the Independent Commission Against Corruption ("ICAC") regarding allegations of false claims in relation to sitting day relief entitlements. ICAC found that the appellant had engaged in corrupt conduct.
The appellant brought proceedings in the Supreme Court for judicial review of ICAC's decision, pursuant to the Supreme Court Act 1970, s 69. McClellan CJ at CL refused to make a declaration that a finding by ICAC of "corrupt conduct" within the meaning of the Independent Commission Against Corruption Act 1988 ("the Act") was not made in accordance with law.
The appellant sought leave to appeal. The application for leave and the appeal were heard concurrently.
The question in issue in the Court of Appeal was whether ICAC's finding that she had engaged in corrupt conduct within the meaning of the Act was infected by jurisdictional error, given:
(i) The absence of probative evidence sufficient to support the finding
(ii) The irrationality and illogicality of the reasoning in support of the finding
(iii) The absence of a reasonable basis for the finding in the material before ICAC.The Court granted leave to appeal and dismissed the appeal with costs.
Held per Beazley JA (Bathurst CJ agreeing); Basten JA agreeing in separate judgment:
1. ICAC's state of satisfaction that the appellant had engaged in corrupt conduct had to be reasonable in the sense that it was a state of satisfaction that could be reached by a person with an understanding of the nature of the statutory function being performed: [91].
Discussed and applied: Minister for Immigration v Eshetu [1999] HCA 21; 197 CLR 611; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; Minister for Immigration and Citizenship v Li [2013] HCA 18; 87 ALJR 618; R v Connell; Ex parte The Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407.
2. The appellant's evidence that she was busy at the time was a relevant consideration. However, it was not necessary that ICAC state, in its report, the details of that busyness. ICAC did not fail to consider adequately the appellant's reasons for not reading the Determination in respect of the Sitting Day Relief Entitlement: [110]-[111].
3. The appellant's contention that ICAC failed to deal with evidence that was exculpatory of her failed. As the primary judge pointed out, there was persuasive evidence that the appellant had read the Determination in respect of the Sitting Day Relief Entitlement. Accordingly, the appellant was not deprived of the possibility of a successful (that is favourable to the appellant) outcome of the investigation: [144].
Applied: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24, Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340; 141 FCR 346.
4. ICAC did not fall into jurisdictional error for failing to consider the relevance of the prospective filling of the forms to appellant's actual state of mind, where ICAC had made a factual finding against the appellant on the issue. There is no requirement for a decision maker to deal with an argument dependent on findings of fact contrary to those found: [169].
5. There was no error in the manner in which ICAC made findings of fact in relation to the credit of the appellant: [176]-[178].
6. ICAC did not cast a legal or evidentiary onus on the appellant: [183].
7. ICAC did not take into account an irrelevant consideration in having regard to the appellant's background in industrial relations in the assessment of her evidence as to whether she had read the terms of the Determination in respect of the sitting day relief entitlement: [185].
8. Consideration of ICAC's duty to give reasons: [98]-[113].
Considered: Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125; Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259; Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430.
Basten JA: (Bathurst CJ agreeing) jurisdictional error not established.
JUDGMENT
BATHURST CJ: For the reasons given by Beazley P and the additional reasons given by Basten JA, I agree that the appeal should be dismissed with costs.
BEAZLEY P: This is an application for leave to appeal from the refusal of McClellan CJ at CL to make a declaration that a finding of "corrupt conduct" within the meaning of the Independent Commission Against Corruption Act 1988 (the Act) against Angela D'Amore was not made in accordance with law. The appellant's application before his Honour was brought pursuant to the Supreme Court Act 1970, s 69.
The summons for leave to appeal and the appeal has been listed for concurrent hearing. As the matter is of general public importance, leave to appeal should be granted. Accordingly, in these reasons, Ms D'Amore will be referred to as the appellant.
The appellant, who was a member of the New South Wales Legislative Assembly, was investigated by the Independent Commission Against Corruption (ICAC) in the second half of 2010. The central allegations of corrupt conduct alleged against the appellant were that she:
"...
(i) knew that the entitlement to sitting day relief payments depended on the sitting day relief officer working at the electorate office when the electorate officer worked at Parliament House on sitting days;(ii) possessed of that knowledge, instructed or authorised Ms Harbilas and Ms La Manna to falsely represent on claim forms that Mr Nicoletti had worked at Parliament House;
(iii) signed the Member's Declaration on the sitting day relief claim forms knowing that the forms contained false representations and, in doing so, falsely certified that the conditions of sitting day relief entitlement had been met;
(iv) engaged in the conduct described in (ii) and (iii) with the intention of causing parliamentary officers to approve the claims for payment under the false belief that the conditions of the entitlement had been met; and
(v) caused Parliament to make payments of sitting day relief on the strength of the misrepresentations contained in the forms." (at judgment [29])
ICAC released its report entitled "Investigation into the submission of false claims for sitting day relief entitlement by Angela D'Amore MP and some members of her staff" in December 2010 (the Report). ICAC concluded that the appellant had engaged in corrupt conduct in two specific respects. The first was that the appellant had engaged in conduct that amounted to the common law criminal offence of misconduct in public office within the meaning of s 9(1)(a) of the Act. The second was that the appellant had engaged in conduct that constituted a substantial breach of the Parliamentary code of conduct, in that she had deliberately made a false representation to Parliament and had instructed her staff members to also make a false representation to Parliament, within the meaning of s 9(1)(d) of the Act.
These findings of corrupt conduct involved an acceptance that the allegations of corrupt conduct referred to at [4] above had been proved to the requisite standard, namely, on the balance of probabilities in accordance with the principles in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at 361-362. This required ICAC to be satisfied that given the seriousness of any finding of corrupt conduct and the gravity of the consequences of making such a finding, there was "clear or cogent or strict proof", assessed on the balance of probabilities, that the appellant had been guilty of corrupt conduct as defined in the Act. See also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; 67 ALJR 170 at 171.
The appellant brought proceedings in the Supreme Court for judicial review of ICAC's decision. The central challenge to ICAC's finding was the absence of a necessary jurisdictional fact, namely, ICAC's satisfaction of the matters specified in s 13(3A) and s 9(5) of the Act. (This challenge involved both the construction of these provisions and the determination of whether the relevant jurisdictional fact existed.) McClellan CJ at CL, at [43], identified the relevant jurisdictional fact so raised in the following terms:
"[Whether] it was reasonably open to the decision-maker, on the available evidence, to conclude that the conduct of the person under investigation constitutes or involves a criminal offence, or a breach of an identified law, and the decision-maker so concluded"
His Honour restated the matter in issue as being whether:
"... it was reasonably open to [ICAC] to find, and [whether ICAC] did find, that the [appellant] knew of the conditions of the sitting day relief entitlement, and knew that she had not satisfied them, but nevertheless signed the claim forms, thereby committing the common law offence of misconduct in public office."
The primary judge dismissed the summons for judicial review. The appellant's summons for leave to appeal and appeal is from that dismissal.
Grounds of appeal
The appellant contended that ICAC's finding that she had engaged in corrupt conduct within the meaning of the Act was infected by jurisdictional error, given:
(a) The absence of probative evidence sufficient to support the finding (the evidence ground);
(b) The irrationality and illogicality of the reasoning in support of the finding (the irrationality ground); and
(c) The absence of a reasonable basis for the finding in the material before ICAC (the reasonableness ground).
(Ground 1 of the amended notice of appeal)
In her amended notice of appeal, the appellant contended that the primary judge should have found jurisdictional error given a number of particularised circumstances. In particular, the appellant alleged that ICAC gave insufficient attention to two exculpatory matters. The first was the fact that the appellant was very busy at the time that the Sitting Day Relief Determination was made. The second was that ICAC failed to consider the complete gist of the conversation between Ms Harbilas and the appellant which could have caused the appellant to misunderstand the information to be inserted in the sitting day relief forms. (Ground 2 of the amended notice of appeal)
The appellant accepted that if she failed to establish any one of her grounds of appeal, her conduct would fall within s 8 and s 9 would otherwise apply.
Notice of contention
ICAC filed a notice of contention in which it contended that it:
"... was not required to have regard to the possibility that statements made by Ms Harbilas, on her evidence, may have given the appellant the mistaken impression that the sitting day relief claim forms were asking solely for the name of the Electorate Officer Grade 2 (EO2) rather than the electoral officer present at Parliament House on the relevant sitting days, in circumstances where:
a. [the appellant] did not submit to [ICAC] that Ms Harbilas gave evidence to that effect;
b. Ms Harbilas did not give evidence to that effect to [ICAC];
c. at most, [the appellant's] counsel raised before [ICAC] a speculative possibility that there could have been an innocent conversation, but on the basis that neither Ms Harbilas nor [the appellant] had given evidence of an actual recollection of its content;
d. it was open to [ICAC] to find that Ms Harbilas did have a recollection of the conversation, and in the terms found in the Report."
The legislation
"Corrupt conduct" is defined for the purposes of the Act in s 7 as follows:
"7 Corrupt conduct
(1) For the purposes of this Act, corrupt conduct is any conduct which falls within the description of corrupt conduct in either or both of subsections (1) and (2) of section 8, but which is not excluded by section 9.
(2) Conduct comprising a conspiracy or attempt to commit or engage in conduct that would be corrupt conduct under section 8 (1) or (2) shall itself be regarded as corrupt conduct under section 8 (1) or (2).
(3) Conduct comprising such a conspiracy or attempt is not excluded by section 9 if, had the conspiracy or attempt been brought to fruition in further conduct, the further conduct could constitute or involve an offence or grounds referred to in that section."
The general nature of corrupt conduct is defined, relevantly, in s 8, as follows:
"8 General nature of corrupt conduct
(1) Corrupt conduct is:
(a) any conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly, the honest or impartial exercise of official functions by any public official, any group or body of public officials or any public authority, or
(b) any conduct of a public official that constitutes or involves the dishonest or partial exercise of any of his or her official functions, or
(c) any conduct of a public official or former public official that constitutes or involves a breach of public trust ...
(2) Corrupt conduct is also any conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly, the exercise of official functions by any public official, any group or body of public officials or any public authority and which could involve any of the following matters:
...
(e) fraud,
...
(x) matters of the same or a similar nature to any listed above ..."
Section 9 specifies certain limitations on the nature of corrupt conduct, relevantly, as follows:
"9 Limitation on nature of corrupt conduct
(1) Despite section 8, conduct does not amount to corrupt conduct unless it could constitute or involve:
(a) a criminal offence, or
...
(d) in the case of conduct of a Minister of the Crown or a member of a House of Parliament - a substantial breach of an applicable code of conduct.
...
(4) Subject to subsection (5), conduct of a Minister of the Crown or a member of a House of Parliament which falls within the description of corrupt conduct in section 8 is not excluded by this section if it is conduct that would cause a reasonable person to believe that it would bring the integrity of the office concerned or of Parliament into serious disrepute.
(5) Without otherwise limiting the matters that it can under section 74A (1) include in a report under section 74, the Commission is not authorised to include a finding or opinion that a specified person has, by engaging in conduct of a kind referred to in subsection (4), engaged in corrupt conduct, unless the Commission is satisfied that the conduct constitutes a breach of a law (apart from this Act) and the Commission identifies that law in the report ..."
The principal functions of ICAC are specified in s 13:
"13 Principal functions
(1) The principal functions of the Commission are as follows:
(a) to investigate any allegation or complaint that, or any circumstances which in the Commission's opinion imply that:
(i) corrupt conduct, or
(ii) conduct liable to allow, encourage or cause the occurrence of corrupt conduct, or
(iii) conduct connected with corrupt conduct,may have occurred, may be occurring or may be about to occur,
...
(3) The principal functions of the Commission also include:
(a) the power to make findings and form opinions, on the basis of the results of its investigations, in respect of any conduct, circumstances or events with which its investigations are concerned, whether or not the findings or opinions relate to corrupt conduct, and
(b) the power to formulate recommendations for the taking of action that the Commission considers should be taken in relation to its findings or opinions or the results of its investigations.
(3A) The Commission may make a finding that a person has engaged or is engaging in corrupt conduct of a kind described in paragraph (a), (b), (c) or (d) of section 9 (1) only if satisfied that a person has engaged in or is engaging in conduct that constitutes or involves an offence or thing of the kind described in that paragraph.
(4) The Commission is not to make a finding, form an opinion or formulate a recommendation which section 74B (Report not to include findings etc of guilt or recommending prosecution) prevents the Commission from including in a report, but section 9 (5) and this section are the only restrictions imposed by this Act on the Commission's powers under subsection (3)."
Section 74 of the Act provides:
74 Reports on referred matters etc
(1) The Commission may prepare reports in relation to any matter that has been or is the subject of an investigation.
(2) The Commission shall prepare reports in relation to a matter referred to the Commission by both Houses of Parliament, as directed by those Houses.
(3) The Commission shall prepare reports in relation to matters as to which the Commission has conducted a public inquiry, unless the Houses of Parliament have given different directions under subsection (2).
(4) The Commission shall furnish reports prepared under this section to the Presiding Officer of each House of Parliament.
...
(7) A report required under this section shall be furnished as soon as possible after the Commission has concluded its involvement in the matter.
(8) The Commission may defer making a report under this section if it is satisfied that it is desirable to do so in the public interest, except as regards a matter referred to the Commission by both Houses of Parliament."
Section 74B of the Act provides that:
"74B Report not to include findings etc of guilt or recommending prosecution
(1) The Commission is not authorised to include in a report under section 74 a statement as to:
(a) a finding or opinion that a specified person is guilty of or has committed, is committing or is about to commit a criminal offence or disciplinary offence (whether or not a specified criminal offence or disciplinary offence), or
(b) a recommendation that a specified person be, or an opinion that a specified person should be, prosecuted for a criminal offence or disciplinary offence (whether or not a specified criminal offence or disciplinary offence).
(2) A finding or opinion that a person has engaged, is engaging or is about to engage:
(a) in corrupt conduct (whether or not specified corrupt conduct), or
(b) in specified conduct (being conduct that constitutes or involves or could constitute or involve corrupt conduct),
is not a finding or opinion that the person is guilty of or has committed, is committing or is about to commit a criminal offence or disciplinary offence.
(3) In this section and section 74A, criminal offence and disciplinary offence have the same meanings as in section 9." (emphasis in original)
Parliamentary Code of Conduct
As the appellant was a member of Parliament, she was required to observe the provisions of the Parliamentary Code of Conduct for Members, which was a Sessional Order in the Legislative Assembly. In the preamble to the Parliamentary Code of Conduct for Members, Members of Parliament acknowledge their responsibility to:
"... maintain the public trust placed in them by performing their duties with honesty and integrity, respecting the law and the institution of Parliament, and using their influence to advance the common good of the people of New South Wales."
Clause 4 of the Code provided that Members of Parliament must apply public resources granted to them in accordance with any guidelines or rules about the use of those resources. Guidelines and rules governing the use of such resources were contained in the determinations of the Parliamentary Remuneration Tribunal, Parliamentary policies and procedures and the New South Wales Legislative Assembly Members Handbook.
Background facts and ICAC's findings
The appellant was a member of the New South Wales Legislative Assembly from March 2003 until March 2011. At the time of the conduct subject of the ICAC investigation, Government and Opposition Members of the Legislative Assembly were entitled to two full time electorate officers.
In July 2006, the Parliamentary Remuneration Tribunal determined that sitting members were entitled to payment for a temporary officer in the member's electorate office on sitting days when a member brought one member of staff from the electorate offices to Parliament House. This entitlement became known as the "Sitting Day Relief Entitlement".
Following the introduction of the sitting day relief entitlement scheme, the appellant engaged two temporary staff officers, Ms Harbilas and Ms La Manna, who worked at different times for the appellant at Parliament House. This arrangement was not in accordance with the "Sitting Day Relief Entitlement". The entitlement was only payable where, on a sitting day, the member deployed a permanent electorate staff member in Parliament House and engaged a temporary staff officer to work at a member's electorate office.
The evidence before ICAC was that, in respect of the days that Ms Harbilas and Ms La Manna worked at Parliament House, each completed a pro forma "SITTING DAY RELIEF - Claim and Payment Form" and submitted the forms to the appellant for her signature. Ms Harbilas filled in two forms relating to six sitting days, three in October and three in November 2006. Ms La Manna filled in three forms in respect of 11 days in June 2007.
In each case, the forms stated that the name of the electorate officer working at Parliament House was David Nicoletti. That was incorrect. On the dates specified on the forms, Mr Nicoletti, who was a permanent staff member, worked in the appellant's electorate office and Ms Harbilas or Ms La Manna worked at Parliament House.
The appellant had been aware that a submission had been made to the Tribunal for additional staffing and had personally wished to obtain additional staffing on sitting days. In her evidence before ICAC, the appellant accepted that she had a responsibility to acquaint herself with restrictions applying to members' entitlements. She had also accepted in her cross-examination before ICAC that "she may have" read the Determination. However, quite apart from this qualified response, ICAC concluded, from email communications to the appellant from the Financial Controller of the Legislative Assembly and the Manager of Employee and Corporate Services respectively, that the appellant had been informed of the determination of the Parliamentary Remuneration Tribunal and of the 'draft arrangements' in relation to sitting day entitlements.
ICAC was satisfied, having regard to a telephone conversation the appellant had with the Manager of Employee and Corporate Services, three days after receipt of the emails from her, that the appellant was aware of the emails. It should be noted that the 'draft' status of the arrangements referred to in these email communications related only to their implementation prior to the Speaker's formal approval of the administrative arrangements necessary to give effect to the Determination.
Ms Harbilas gave evidence that on the first occasion that she filled in a sitting day relief form, she had been instructed by the appellant to complete the form by inserting Mr Nicoletti's name on the form instead of her own. In particular, Ms Harbilas gave evidence of the "gist" of the conversation in which that instruction had been given. ICAC found that the "gist" of the conversation was consistent with the appellant having an understanding of the nature and terms of the sitting day relief entitlement. The detail of this conversation is important and is discussed below.
Ms La Manna denied that the appellant had given her any instruction as to how to fill in the form. She said that she had copied an earlier form that had Mr Nicoletti's name on it. Further reference to Ms La Manna's evidence is also made below.
The appellant's evidence was that she could not recall giving any such instructions to either Ms Harbilas or Ms La Manna. ICAC did not accept that the appellant's evidence was reliable.
ICAC's finding that the appellant knew the terms of the sitting day relief entitlements
ICAC concluded that the appellant knew that the entitlement to sitting day relief depended upon the electorate officer working at Parliament House and the relief officer working in the electorate office, having regard to the following matters:
(i) Email dated 21 July 2006, from Mr McGill, Financial Controller of Legislative Assembly;
(ii) Memorandum dated 18 August 2006, from Ms Schofield, Manager, Corporate Services, Parliament House;
(iii) Telephone call from appellant to Ms Schofield on 21 August 2006;
(iv) The appellant's interest and experience in industrial matters;
(v) The evidence of Mr Nicoletti, the appellant's electorate officer;
(vi) The appellant's signature on the form; and
(vii) The evidence of Ms Harbilas.
A brief reference to each of these matters follow.
Mr McGill's email attached the Tribunal's 2006 Report and Determination which contained the condition relating to sitting day relief entitlement that is the subject of the allegations in this matter. The email was opened on the appellant's computer approximately 30 minutes after it was sent. The appellant also received a hard copy of the Determination. The appellant initially said she had not read the Determination and advanced reasons for her failure to do so, namely that she was busy at that time, she was not following the issue of additional staffing closely, that she may not have occurred to her to do so at the time and she relied upon a ledger sent to her at the commencement of each financial year setting out the allowances to which she was entitled. Apart from this summary, ICAC did not deal in any more detail with this explanation.
ICAC also noted that the appellant later said she may have read the Determination and, if she had, she would have appreciated the conditions governing the engagement of sitting day relief staff. It is convenient at this point to also note that the appellant advanced an argument before ICAC that the Sitting Day Relief Determination permitted relief staff to work in Parliament House. ICAC rejected this construction of the Determination and found that the appellant knew that the Determination required that the relief staff work at the electorate office.
Ms Schofield's evidence was that on 18 August 2006, she had emailed a copy of the draft of the Legislative Assembly's Policy and administrative practices relating to sitting day relief entitlements to all members of Parliament, including the appellant. The evidence established that the email to the appellant was opened on 19 August, a day the appellant was not in her electorate office. The appellant's staff members denied that they had opened the email. The appellant said that had she opened the email by using her Blackberry, which was linked to her email and which she used on 19 August, she would not have opened the attached memorandum.
Ms Schofield also gave evidence of a telephone call from the appellant on 21 August 2006, of which she made a contemporaneous note. The note referred to a discussion about computers. However, Ms Schofield gave unchallenged evidence that the discussion had arisen in the "context of the sitting day relief entitlement". The appellant agreed that this was the context of the conversation, although somewhat paradoxically, she did not recall speaking to Ms Schofield. On the same day, Ms Schofield sent the following email to Ms Schofield's staff:
"We have had representations now from two members regarding computer facilities at Parliament House next week for the electorate officer who will work at Parliament House on sitting days. Two members had made enquiries, specifically that they are willing to buy additional computers from their LSA if this is Approved by the Legislative Assembly. Generally the representations are that members will want these staff to have computer access and network access to allow them to work at Parliament House."
Ms Schofield said that the appellant was one of the two members referred to in the email. In discussing this evidence, ICAC also referred to the draft policy and administrative arrangements that had been emailed to Ms D'Amore on 18 August relating to computer equipment at Parliament House and which stated that the Legislative Assembly had no funding for additional computer equipment in the short term.
ICAC considered the alternative explanation given by the appellant for her conversation with Ms Schofield on 21 August, but did not accept that explanation. It gave reasons for so finding, including that Ms Schofield's file note was consistent with the appellant having read the draft policy and administrative arrangements relating to computer equipment.
ICAC also rejected the appellant's evidence of not having read the terms of the Determination and her explanations for that. In doing so, one of the matters it relied upon was that the appellant had both an interest and experience in industrial matters and was familiar with industrial awards. It was also relevant to ICAC's rejection of her evidence on this point that the appellant was aware that submissions had been made to the Tribunal for additional staffing and was herself keen to obtain an additional staff member on sitting days. In regard to the latter point, Mr Nicoletti gave evidence that the appellant wanted an additional staff member at the electorate office on sitting days and the possibility of the sitting day relief entitlement to enable her to do so was of some importance to the appellant and to the staff officers who worked at Parliament House.
ICAC also relied upon the fact that the appellant signed the forms and on Ms Harbilas' evidence that the appellant instructed her to put Mr Nicoletti's name on the form. As to the appellant having signed the forms, ICAC considered that it was unlikely that a Member of Parliament would not notice the details set out on the sitting day relief forms that were presented to the appellant for her signature.
There was other evidence of the appellant of which ICAC was unpersuaded. In addition, ICAC made a general credit finding that the appellant was at times evasive and unresponsive in her evidence, including in critical respects. ICAC's overall assessment of the appellant's credit was that she "did not impress as a reliable witness".
As Ms Harbilas' evidence was the subject of one of the central attacks that the appellant made in seeking to establish jurisdictional error, it is considered in more detail below.
ICAC's finding of corrupt conduct
ICAC's principal findings in respect of the forms completed by Ms Harbilas were as follows:
"1. Ms D'Amore instructed Ms Harbilas to falsely represent on the sitting day relief claim form for the period 24 to 26 October 2006 that Mr Nicoletti had worked at Parliament House.
2. Prior to giving this instruction, Ms D'Amore knew that Ms Harbilas' entitlement to be paid sitting day relief depended on her working at the electorate office when an electorate officer worked at Parliament House on sitting days.
3. As a result of the instruction given to her by Ms D'Amore, Ms Harbilas falsely represented on the first form that Mr Nicoletti had worked at Parliament House and that she had worked at the electorate office, and made the same false representation on the second form for the period 14 to 16 November 2006, in accordance with the earlier instruction she received from Ms D'Amore.
4. On 26 October 2006 and 16 November 2006, Ms D'Amore signed the claim forms completed by Ms Harbilas, knowing that they contained false representations about the location of Mr Nicoletti and Ms Harbilas.
5. Ms Harbilas submitted the claim forms to Parliament for approval, knowing that they contained false representations about her location and Mr Nicoletti's on the sitting days claimed.
6. Ms D'Amore engaged in the conduct described in findings of fact (1) and (4), and Ms Harbilas engaged in the conduct described in findings of fact (3) and (5), for the purpose of causing parliamentary officers to falsely believe that the conditions of the entitlement had been met, when they knew that they had not.
7. Ms D'Amore and Ms Harbilas caused Parliament to make payments of sitting day relief to Ms Harbilas on the strength of the misrepresentations contained in both claim forms."
ICAC found that the appellant's conduct in instructing Ms Harbilas to make the false representation on the claim form for the period 24 to 26 October 2006, that Mr Nicoletti had worked at Parliament House on the sitting days claimed, was corrupt in that she signed the form knowing it claimed a false representation as to where Mr Nicoletti and Ms Harbilas were located on the claimed days. ICAC made the same finding in respect of the period 14 to 16 November 2006.
ICAC found that this conduct fell within s 8(1)(a), s 8(1)(b), s 8(1)(c), s 8(2)(a) and s 8(2)(e). ICAC also found that the appellant's conduct fell within s 9(1)(a), s 9(1)(d), s 9(4) and s 9(5).
ICAC recognised that there was a fundamental difference between the evidence tending to establish that Ms D'Amore instructed Ms Harbilas to falsify the first claim form and the evidence tending to establish that Ms D'Amore instructed or authorised Ms La Manna to do likewise in respect of the June 2007 forms. ICAC noted that Ms Harbilas' evidence directly implicated Ms D'Amore, whilst Ms La Manna denied that the appellant had given her any such instruction. Nonetheless, ICAC was satisfied, "as a matter of probable inference", that Ms D'Amore had given the same instruction to Ms La Manna, namely, to write Mr Nicoletti's name on the June 2007 claim forms. ICAC found it was satisfied that:
"1. Ms D'Amore instructed or authorised Ms La Manna to falsely represent on the three June 2007 sitting day relief claim forms that Mr Nicoletti had worked at Parliament House.
2. Prior to giving this instruction or authority, Ms D'Amore knew that Ms La Manna's entitlement to be paid sitting day relief depended on her working at the electorate office on sitting days, while a permanent electorate officer worked at Parliament House.
3. As a result of this instruction or authority, Ms La Manna falsely represented on each of the three June 2007 claim forms that Mr Nicoletti had worked at Parliament House and that she had worked at the electorate office.
4. Ms La Manna submitted the claim forms to Parliament for approval knowing that they contained false representations about her location and the location of Mr Nicoletti.
5. On 5, 19 and 22 June 2007, Ms D'Amore signed the three claim forms completed by Ms La Manna, knowing that they contained false representations about the location of Mr Nicoletti and Ms La Manna on the sitting days claimed.
6. Ms D'Amore engaged in the conduct described in findings of fact (1) and (5), and Ms La Manna engaged in the conduct described in findings of fact (3) and (4), for the purpose of causing parliamentary officers to believe that the conditions of the entitlement had been met, when they knew that they had not.
7. Ms D'Amore and Ms La Manna caused Parliament to make payments of sitting day relief to Ms La Manna on the strength of the misrepresentations contained in the claim forms."
On the basis of these findings, ICAC concluded that the appellant's conduct relating to Ms La Manna also fell within s 8(1)(a), s 8(1)(b), s 8(1)(c), s 8(2)(a) and s 8(2)(e). ICAC also found that the appellant's conduct fell within s 9(1)(a), s 9(1)(d), s 9(4) and s 9(5).
It is important to note that ICAC's finding of corrupt conduct included a finding that, to the appellant's knowledge and understanding, the information on the forms that she signed was false.
Reasons of the trial judge
The appellant argued before the primary judge that ICAC acted without jurisdiction by making its findings for which there was no evidence, or no rationally probative evidence. The primary judge dismissed the appellant's claim that ICAC's finding of "corrupt conduct" was infected by jurisdictional error.
The primary judge held, at [75], that ICAC's power to make findings under s 9(5) and s 13(3A) of the Act was conditioned upon the formation of a state of satisfaction that the conduct of the person under investigation constituted an offence. His Honour held that the existence of that state of satisfaction was a jurisdictional fact: see Minister for Immigration v Eshetu [1999] HCA 21; 197 CLR 611 and M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; 85 ALJR 891. See also Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] FCA 30; 77 ALJR 1165 at [54]. The appellant accepted that the primary judge's approach in this regard was correct. The respondent did not contend to the contrary.
His Honour, at [74], observed that the factual criteria in s 13(3A) and s 9(5) involved a "complex of elements" comprising: fact finding in assessing what the person did; legal analysis in determining what law was breached by that conduct; and an evaluative task in determing whether the facts as found satisfied the elements of a criminal offence, or constituted a breach of an identified law. His Honour commented that reasonable minds might reach different conclusions on these matters, particularly in respect of the evaluative tasks. His Honour had earlier observed, at [69], that a jurisdictional fact involving a state of mind will often involve an element of "evaluative judgment".
His Honour identified, at [75], that the jurisdictional facts created by s 13(3A) and s 9(5) would be found to exist where ICAC formed, in good faith, an evaluative judgment that the person subject of the investigation had committed an offence or a breach of an identified law. His Honour continued that ICAC would fail to have the requisite evaluative state of satisfaction if it identified a wrong issue, asked a wrong question, ignored relevant material, or relied on irrelevant material in a way that affected the exercise of power: see M70/2011 v Minister for Immigration and Citizenship; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323. His Honour noted at [76], that the necessary state of satisfaction required by the legislation could not be formed if there was no evidence to support it: R v Australian Stevedoring Industry Board; Ex Parte Melbourne Stevedoring Co Ld [1953] HCA 22; 88 CLR 100 at 118, 120.
His Honour concluded, at [88], that ICAC's satisfaction of the appellant's guilt was not based on "irrational or illogical reasoning". Rather:
"[ICAC] inferred from the circumstantial evidence, considered as a whole, that [the appellant] knew of the conditions of the sitting day relief entitlement when she signed the claim forms and instructed her staff in how the forms ought to be completed. The drawing of inferences from circumstantial evidence is a logical and familiar method of reasoning in forensic contexts ... [ICAC] positively satisfied itself of [the appellant's] guilty knowledge on the basis of the claim forms themselves, the emails relating to sitting day relief that were sent to [the appellant] and accessed from her account, [the appellant's] knowledge of and interest in industrial relations matters, and the statements [the appellant] made in her phone call to Ms Schofield. There was certainly a 'logical connection' between these aspects of the evidence and the conclusions [ICAC] drew from them: SZMDS at [135] (Crennan and Bell JJ)." (citations omitted)
In her arguments to the primary judge, the appellant had contended that ICAC had failed to take into account certain relevant considerations, namely the various "distractions" the appellant had at the time, particularly given the busy time she was having when she received the email of 21 July 2006. In attacking the determination, the appellant had contended that ICAC had acted irrationally and inverted the onus of proof in that it had assumed the appellant was guilty and then put her to proof of the contrary. She also argued that Ms Harbilas' evidence relating to "the other EO2" may have given the appellant the mistaken impression as to what information was required on the forms. The appellant contended that, on that basis, her instruction to Ms Harbilas was due to a misunderstanding and was not fraudulent.
The trial judge rejected each of these contentions. His Honour stated, at [90], that there was no force in the appellant's first submission. His Honour correctly noted that "simple advertence" was not sufficient to constitute genuine consideration of relevant matters: see Weal v Bathurst City Council [2000] NSWCA 88 at [13], per Mason P. His Honour observed, at [9], that ICAC's expressed reasons may have dealt with this aspect of the evidence inadequately. However, that was not sufficient to establish error: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 because it was clear from the Report as a whole, and ICAC's findings as to the appellant's credit, that ICAC had considered the appellant's explanation, but had rejected it.
His Honour, at [91], rejected the second submission that ICAC had inverted the onus of proof. His Honour found that ICAC had correctly considered the claim forms and other evidence and formed the view that the appellant had a case to answer, but did not commence the inquiry with a preconceived view that the appellant was guilty of the offence of misconduct in public office. Rather, ICAC had commenced the inquiry on the basis that there was a case to answer and that by the time the appellant gave her evidence, the 'evidential onus' had shifted to her. His Honour considered that this was neither unreasonable nor irrational, given ICAC's consideration of the circumstantial evidence.
At [92], his Honour accepted that there was some substance in the third argument that the statements Ms Harbilas made to the appellant may have given the appellant the mistaken impression that the claim forms were asking for the name of the person employed at the level of Electorate Officer Grade 2 (EO2), rather than the name of the electorate officer present at Parliament House on the sitting days for which the allowance was claimed. The relevance of this was that Mr Nicoletti, who was the permanent officer who, in fact, worked at the electorate officer on the days in question, was employed at that level. If the appellant had understood that the forms required the name of the officer on her permanent staff employed at that level, her instruction to Ms Harbilas may have been based upon a misunderstanding.
His Honour, at [92], accepted that this aspect of the evidence, was relevant to the extent that is supported an inference that the appellant misunderstood the requirements of the form. However, his Honour considered that, even on the assumption that evidence was a mandatory relevant consideration, the absence of any reference to it by ICAC in its report was not a failure to consider a relevant matter of an order that could have materially affected the outcome: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at [15], [23].
The primary judge, at [92], identified three matters that led him to this conclusion, none of which relied upon Ms Harbilas' evidence. First, ICAC had drawn an adverse inference from the claim forms themselves. Secondly, the appellant had an interest in having an additional staff member for sitting days. Thirdly, the terms of the appellant's telephone conversation with Ms Schofield was evidence that she had understood the terms of the sitting day relief entitlement. Further, any "innocent explanation" for the appellant making the claims was not consistent with the appellant's evidence that she had never had a conversation with Ms Harbilas as to whose name should be inserted on the form. His Honour therefore concluded, on the assumption that ICAC had overlooked the statements made by Ms Harbilas that may have given the appellant a mistaken understanding as to what information was required to be filled in on the form, that the appellant had not been deprived of the possibility of a successful outcome: Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340; 141 FCR 346, at [64], per Sackville J.
The next issue considered by his Honour was whether there was any illogicality in ICAC relying upon Ms Schofield's email of 19 September 2007 to support an inference that the appellant was guilty of the offence of misconduct in public office. The argument in that regard had been directed to the date of the email, some 15 months after the initial alleged offending conduct. However, his Honour accepted that ICAC had only relied upon this material to the extent it reflected upon the appellant's credit. His Honour concluded, therefore, that ICAC had not drawn an illogical inference that the contents of that email were relevant to determining whether, as at the time the appellant signed the forms, she knew the requirements of the sitting day relief entitlement.
The primary judge concluded, at [95], that ICAC's findings under s 13(3A) and s 9(5) were not irrational or illogical. It followed, in his Honour's view, that ICAC's findings as to the relevant jurisdictional fact were based on rationally probative evidence: see at [96]. This meant that that the appellant's challenge to the decision on the no evidence ground also failed. His Honour, at [97], concluded that the challenge to ICAC's decision, that is, that it was not made in accordance with law, failed.
Operation of the Act
The appellant submitted that insofar as s 8 and s 9 of the Act were relevant to her, they operated as follows. Section 8 specified what constitutes "corrupt conduct". The conduct specified in s 8(1) required a determination that, broadly understood, was evaluative in nature. Section 8(2) then specified particular conduct which was corrupt conduct for the purposes of the Act. The conduct under s 8(2) relevant to this case was fraud: s 8(2)(e), or conduct of a similar nature to fraud: s 8(2)(x).
Section 9(1) operated as a limitation or constraint on the width of s 8, as it provides that conduct does not fall within s 8 unless it could constitute one of four categories of specified conduct. As relevant to this case, that was conduct that was a criminal offence: s 9(1)(a); or a substantial breach by a Minister or a member of Parliament of a code of conduct: s 9(1)(d).
Pursuant to s 9(4) conduct was not excluded from falling within s 8 if it would cause a reasonable person to believe it would bring the integrity of Parliament into serious dispute. In such a case, it was not necessary that such conduct fall within s 9(1).
Section 9(4) is subject to s 9(5). Section 9(5) applies to a case falling within s 9(4) and precludes a finding that conduct within s 9(4) was corrupt conduct unless ICAC was "satisfied that the conduct constitutes a breach of the law" and the law is identified in the report. The appellant submitted that the "satisfaction of ICAC" within this provision must be on the material before the Commission.
The appellant next referred to s 13, which identifies the principal functions of ICAC. She drew attention to s 13(3), which includes a power to make findings and form opinions on the basis of the results of its investigations. The appellant submitted that s 13(3A), in providing that a finding of corrupt conduct of the kind specified in s 9(1)(a), (b), (c) and (d) can only be made if ICAC is "satisfied" that such conduct constitutes or involves an offence, requires ICAC to report on the conduct and the offence which is said to be constituted by such conduct. Section 13(4) contains a further restriction in that it specifies that ICAC is not to make a finding, form an opinion or formulate a recommendation that s 74B prevents it from including in the report. Section 13(4) further provides that its provisions and s 9(5) are the only restrictions on ICAC's powers under s 13(3).
Section 74(3) of the Act places an obligation upon ICAC to prepare a report in circumstances where it has conducted a public enquiry, as occurred in this case. The content of a report given pursuant to s 74 is governed by s 74A. The appellant submitted that s 74A uses the language of authorisation and the combination of s 74A(1)(a) and (b), together with the provisions of s 9 and ICAC's prescribed functions in s 13(3), was such as to impose upon ICAC a duty to give reasons. That is, any report must sufficiently refer to the material upon which its conclusions are based, as well as articulating its conclusion and the reasons for it. In summary, ICAC's findings and opinions must be contained in a "reasoned report".
Relevant legal principles
The appellant's emphasis in outlining the manner in which these provisions operated was to focus attention upon the requirement of ICAC's satisfaction in the relevant respects of the matters specified in s 9(5) and s 13(3A). The appellant submitted that the requirement that ICAC be so satisfied was a jurisdictional fact: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165. In seeking a review of ICAC's determination the appellant submitted that it was not a matter for the Court to determine whether the appellant's conduct was corrupt. The question involved a lower level of review, namely, whether ICAC's satisfaction or opinion, that the conduct in question was corrupt, could reasonably be held.
These matters are uncontroversial and do not require further elaboration. However, it is to be noted that the appellant's submission emphasised the appellant's principal reliance on the third basis upon which she alleged jurisdictional error. In this regard, the appellant contended that having regard to the statutory powers under which ICAC was operating, the requirement that ICAC have a certain state of satisfaction was one that had to be reached logically, rationally and taking account of all the material before it: see Balog v Independent Commission Against Corruption [1990] HCA 28; 169 CLR 625. The appellant submitted that this followed given the seriousness of a finding of corrupt conduct by ICAC. It was said that this flowed from the rule of construction that fundamental rights were not to be taken to have been affected in the absence of clear words: see Balog v ICAC.
Where legislation requires a person to be satisfied of a specified matter, the person being so satisfied is a jurisdictional fact: see Minister for Immigration v Eshetu; M70/2011 v Minister for Immigration and Citizenship; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12. In this regard, irrationality and illogicality in decision making, including in the formation of a state of satisfaction, may constitute jurisdictional error. However, as indicated, the appellant contended that the question whether the formation of a state of satisfaction that was unreasonable may constitute jurisdictional error.
The appellant's challenge to the trial judge's determination was principally based upon the contention that there was an absence of a reasonable basis for the finding of corrupt conduct in the material before ICAC. The emphasis on this challenge raised the important question as to whether the absence of a reasonable basis or unreasonableness of the decision constituted jurisdictional error. This in itself raises the question of what is meant by unreasonableness. Two related questions arise in answering this question. First, is unreasonableness the antonym of reasonableness? Secondly, and more particularly, does unreasonableness have a meaning different from irrationality and illogicality? The courts have been grappling with this question for a long time.
A useful starting point for a consideration of the question is the statement of Latham CJ in R v Connell; Ex parte The Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407. The Chief Justice stated, at 430, in respect of the requirement of a decision maker to have an opinion or to reach a state of satisfaction:
"[W]here the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable [person] who correctly understands the meaning of the law under which [the person] acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist."
Latham CJ added, at 432:
"It should be emphasized that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide." (emphasis added)
See also Minister for Immigration v Eshetu at [133] per Gummow J.
A decision which has no basis in the evidence or which is contrary to the overwhelming weight of the material will also involve jurisdictional error: see Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 at 776-777, cited in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [23] and [24] per Gummow ACJ and Kiefel J.
In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB, Gummow and Hayne JJ stated, at [37]-[38]:
"The satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a 'jurisdictional fact' or criterion upon which the exercise of that authority is conditioned ...
The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith." (emphasis added; citations omitted)
This passage was quoted with approval in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 by Gummow ACJ and Kiefel J at [40] and Crennan and Bell JJ at [102]. Crennan and Bell JJ, at [103], noted that the portion emphasised in the passage had been foreshadowed in Minister for Immigration v Eshetu by Gummow J, at [147], in his reference to "findings or instances of facts which were not supported by some probative material or logical grounds". Gleeson CJ had adopted a similar approach in S20/2002, at [4], where his Honour had observed that a ground of challenge to the Tribunal's decision in that case was that it "was illogical, irrational, or was not based on findings or inferences of fact supported by logical grounds".
Even a person who had no prior knowledge of the conditions of the entitlement, upon reading the claim form could have been in little doubt as to the requirement that the relief officer work at the electorate office because the electorate officer was in Parliament House. The applicant gave evidence that she did not read the forms prior to signing them. Although she signed in the box marked "Member's declaration" she gave evidence that she attached no significance at all to the words "Member's declaration" and did not ever read them. The Commission set out an extract from her evidence (Report, p 20-21) and concluded at 21:
"In the Commission's view, Ms D'Amore's responses in the above exchange are unconvincing. In the commission's view, it is highly unlikely that Ms D'Amore would not have read the words 'Member's Declaration' when signing the forms."
The reasoning, based on the evidence given and the language of the forms covered pp 20-23 of the Report.
The forms relating to Ms Harbilas were signed on 26 October 2006 and 16 November 2006. She was on maternity leave up to 24 October 2006 and thereafter was caring for her newborn child both in Parliament House and in her electorate office.
It was open to the Commission to find that her explanations with respect to signing the claim form were unconvincing. In addition to the simple language of the declaration being made, the Commission noted that immediately above her signature was the statement of Mr Nicoletti as the name of the electorate officer working at Parliament House. The Commission stated at p 23:
"The Commission has had careful regard to the forms in question and Ms D'Amore's evidence in regard to Mr Nicoletti's name on them, but is unconvinced by Ms D'Amore's explanation. It is unlikely that a Member of Parliament, signing sitting day relief forms filled out, as were the forms signed by Ms D'Amore, would not notice that Mr Nicoletti's name had been inserted in them as being the name of the electorate officer attending Parliament House on the days for which sitting day relief was being claimed.
Had Ms D'Amore noticed Mr Nicoletti's name on the forms in the box headed 'Name of electorate officer working at Parliament House' (and the Commission finds that it is probable that she did notice Mr Nicoletti's name in that box), she must immediately have realised that the representation that Mr Nicoletti had worked at Parliament House was false.
Accordingly, the format and the make-up of the forms, the words printed on them, and the way they had been completed before being presented to Ms D'Amore for signature, render Ms D'Amore's denial that she was aware of the details contained in them improbable."
Counsel for the applicant, both in written submissions and orally, placed weight on the Commission's findings with respect to the evidence of Ms Harbilas. However, the use to be made of her evidence with respect to the applicant's knowledge of the conditions of the entitlement must be seen in context. The several bases for accepting that the applicant had such knowledge arose prior to the period in October 2006 when Ms Harbilas was employed.
Ms Harbilas and the applicant had a conversation one or two weeks prior to Ms Harbilas starting work as a sitting day relief officer at Parliament House. Although there were elements of disagreement as to the terms of the conversation, the Commission was satisfied that the arrangement was that Ms Harbilas would work at Parliament House, as in fact she did: Report, p 14. The Commission noted:
"Ms Harbilas said that she understood from reading the form that an electorate officer was required to work at Parliament House and that her entitlement to be paid by Parliament as a sitting day relief officer depended upon her working at the electorate office. It is plain from the form that Ms Harbilas' understanding was correct."
She stated that the applicant had told her to fill out the form by inserting Mr Nicoletti's name. She said that she thought she was "doing the wrong thing", evidence which, in the view of the Commission, had "the ring of truth": Report, p 15.
There was no doubt that Ms Harbilas' credibility was under challenge. When first approached by investigators for the Commission, she denied that she had worked at Parliament House and claimed she had worked at the electorate office. She later changed that evidence and agreed that she had given her earlier answers "in order to protect Ms D'Amore and stop the investigation": Report, p 15. There was also a dispute in relation to the content of a telephone conversation between the applicant and Ms Harbilas during the time of the Commission's investigation. Further, in her evidence to the Commission, she accepted at one point that she had "no independent recollection" of the applicant's instruction to write Mr Nicoletti's name on the form and later stated that she did not know who Mr Nicoletti was.
In respect of the absence of independent recollection, the Commission was satisfied that she was intending to indicate that she had no recollection of the specific words used but remembered the "gist" of the conversation. With respect to the denial of knowledge of Mr Nicoletti, the Commission accepted that her answer was made "in an argumentative way, in response to questioning that was imputing dishonesty on her part": Report, p 16.
The applicant accepted in her written submissions that the Commission had given "lengthy reasons for preferring the credibility of Ms Harbilas over the applicant". Counsel for the applicant took the Court in some detail through the evidence given by Ms Harbilas and the applicant. However, it was undoubtedly open to the Commission to accept Ms Harbilas' evidence that the applicant had told her to place Mr Nicoletti's name on the form in the box provided, although he had not attended at Parliament House and she, Ms Harbilas, had not worked in the electorate office. The applicant was cross-examined in respect of that evidence by counsel assisting (Tcpt, 8/10/2010, p 414):
"Now, you've heard what Ms Harbilas said, haven't you? - Yes, I have.
You've heard that she said to you, 'Whose name do I put there?' - Yes, I've heard her say that.
Right. And, and she said that you said, 'Put David Nicoletti's name.' And that's what she appears to have done? - I did not tell her, I do not remember at all telling her or giving her instructions on how to fill out this form.
THE COMMISSIONER: It's, Ms D'Amore, it's of genuine concern to me to really try and understand how it could come about that Ms Harbilas would put the name David Nicoletti down on this form of her own accord, out of the blue, as it were. Can you offer any suggestion for that? - Commissioner, unfortunately I can't and I can't speculate how that occurred either.
There seems to be no motive that I can think of for her deliberately to put Mr Nicoletti's name on the form when she of all people would know that that was completely false. Can you? - Commissioner I have no idea. I cannot answer that question."
The applicant criticised an opening statement of the Commission, in a section entitled "Overview", where the Commission stated that the applicant had "vigorously denied any such conversation and that she had given Ms Harbilas any such instruction": Report, p 12. The complaint is that she was merely denying any recollection of the conversation and not denying that the conversation had occurred at all, let alone vigorously. The complaint is of little substance: the evidence did appear to be a denial of the instruction, followed by a denial of recollection of the conversation. It may well have been a vigorous denial. It is outside the role of this Court to assess such complaints.
The remainder of the complaints concern the uncertainty as to the context in which the conversation occurred and as to the part of the form upon which Mr Nicoletti's name was to be placed. Viewed in the abstract, the evidence was ambiguous. However, there was no reason to view the evidence in the abstract: the Commission had made findings as to the existing state of the applicant's knowledge as to what the entitlement required; the form completed by Ms Harbilas was then signed by the applicant. If, as the Commission accepted, the applicant was aware of the information immediately above the declaration she signed, her failure to correct the information was consistent with it being in accordance with her instruction.
Conclusion
In the course of oral submissions, counsel for the applicant called in aid the statement of Gummow J (then on the Federal Court) as to the need for a decision-maker to give "proper, genuine and realistic consideration" to the material relevant to the resolution of a dispute: Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; 14 ALD 291. That language derives from the statement of principles applicable to judicial review of the exercise by a trustee of an unfettered discretionary power: see, eg, Karger v Paul [1984] VR 161 at 163 (McGarvie J). However, as counsel accepted, this language was not a licence for impermissible review of the merits of the case: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [30]. As the Court further stated:
"34 It has been recognised that to describe reasoning as irrational or unreasonable may merely be an emphatic way of disagreeing with it. In referring to 'any rational, reasonable approach to the evaluation' and the need for 'a proper, genuine or realistic evaluation' of the letters, the Federal Court was registering emphatic disagreement with the Tribunal's assessment of the factual matters to which the letters were relevant. ...
...
36 The conclusion that the Tribunal erred in giving 'no weight' to the letters, with the implication that it should have given different, presumably determinative, weight to them, depended on the Federal Court reviewing the factual findings of the Tribunal rather than the process by which it arrived at its conclusions."
The invitation by the applicant in the present case to review the detailed and thorough reasoning of the Commission smacks of a similar exercise. The primary judge did not express disagreement with the conclusion reached by the Commission, let alone describe it as irrational or unreasonable. He was correct not to do so. There is no reason to doubt that the Commission gave adequate attention to all of the material before it and expressed its reasons for accepting certain evidence, rejecting the evidence of the applicant in large part and making adverse findings.
The objective information available to the applicant, by way of documents supplied to her and the claim forms signed by her, gave an ample basis for the conclusion that she had indulged in corrupt conduct in the way the Commission found. A contrary conclusion required acceptance of critical aspects of the applicant's own evidence. The Commission held (Report, p 16):
"She was often unwilling to answer difficult questions candidly, and inclined to evade questions by using carefully chosen words that were intended to place her version of events in a better light. At some points in her evidence, Ms D'Amore simply refused to provide responsive answers to questions, despite being repeatedly asked to do so. She did not impress as a reliable witness."
Without the benefit of having observed and heard the evidence being given, the transcript of the applicant's evidence indicates that such findings were not only open, but unremarkable.
The attempt to have this Court revisit factual findings in the absence of legal error was, in effect, an attempt to conduct an appeal by way of rehearing. That exercise was not available to the applicant, the Court being limited to the restricted role provided by the supervisory jurisdiction under s 69 of the Supreme Court Act.
It follows that the primary judge was correct to dismiss the summons. The appeal from that judgment should be dismissed. No objection was taken to the role played by the Commission in this Court (or before the primary judge); accordingly, the applicant must pay the Commission's costs in this Court.
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Amendments
18 Jul 2013 Orders on coversheet and at [193] amended pursuant to UCPR, r 36.17Typographical errors at [69], [224] and [237] corrected Paragraphs: Coversheet, [69], [193], [224], [237]
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