Fisher, William Norman v Gaisford, Alastair John
[1997] FCA 590
•26 JUNE 1997
CATCHWORDS
ADMINISTRATIVE LAW - Natural justice - Interim decision sufficient to give rise to requirement of decision-maker to give the respondent proper opportunity to state his case before decision made - decisions to temporarily suspend respondent’s security clearance and suspend him from duty - opportunity for respondent to ameliorate the impact on him of the decisions not sufficient to nullify deficiencies by way of want of natural justice.
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Cases Referred To
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Hodgkinson v Companies Auditors and Liquidators Disciplinary Board (1994) 50 FCR 504
Dixon v Commonwealth of Australia (1985) 61 ALR 173
Kioa v West (1985) 159 CLR 550
Johns v Australian Securities Commission (1993) 178 CLR 408
WILLIAM NORMAN FISHER & ORS v ALASTAIR JOHN GAISFORD
AG 2 OF 1997
O'LOUGHLIN, DRUMMOND AND GOLDBERG JJ
26 JUNE 1997
CANBERRA
IN THE FEDERAL COURT OF AUSTRALIA AG 2 of 1997
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ON APPEAL FROM A JUDGE
OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:WILLIAM NORMAN FISHER
First Appellant
AND:CLIVE RAYMOND JONES
Second Appellant
AND:PHILIP JAMES FLOOD
Third Appellant
AND:ALASTAIR JOHN GAISFORD
Respondent
CORAM:O'Loughlin, Drummond and Goldberg JJ
DATE:26 June 1997
PLACE:Canberra
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The appeal is dismissed.
The appellants pay the respondent's costs of and incidental to the appeal, to be taxed in default of agreement.
NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA AG 2 of 1997
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ON APPEAL FROM A JUDGE
OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:WILLIAM NORMAN FISHER
First Appellant
AND:CLIVE RAYMOND JONES
Second Appellant
AND:PHILIP JAMES FLOOD
Third Appellant
AND:ALASTAIR JOHN GAISFORD
Respondent
CORAM:O'Loughlin, Drummond and Goldberg JJ
DATE:26 June 1997
PLACE:Canberra
REASONS FOR JUDGMENT
DRUMMOND J:
This is an appeal from a decision of Finn J in proceedings brought by Mr Gaisford under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for the review of a number of decisions adverse to him which were made by senior officers of the Department of Foreign Affairs and Trade (DFAT) in which Mr Gaisford is an employee. Finn J recorded that the case was fought on the basis that the parties have accepted that two decisions of 1 March 1996, ie, to suspend the security clearance, made by Mr Fisher, and to suspend Mr Gaisford from duty, made by Mr Jones, were at the heart of the matter. His Honour said that if these were invalid, the subsequent decisions could not stand. His Honour added, correctly, in my opinion: "that, for practical purposes, it is the security clearance decision which is the one of crucial importance".
The clearance suspension decision was challenged by Mr Gaisford on three grounds. The only one on which he succeeded was that Mr Fisher, in making it, denied him natural justice. His Honour concluded:
"The conclusion is irresistible that Mr Gaisford was denied procedural fairness. The consequence of this, as the parties accept, is that not only Mr Fisher's decision but all of the subsequent decisions impugned cannot stand."
His Honour, however, deferred making the final orders sought by the applicant, at the respondent's request, and adjourned the hearing for the purpose of submissions on the appropriate orders to be made. It is not clear whether the further hearing contemplated took place. In any event, the only formal order made by Finn J, apart from a costs order, is a declaration that before making the decision to suspend the applicant's security clearance on 1 March 1996, the first respondent, ie, Mr Fisher, denied the applicant procedural fairness. Mr Fisher and the other two appellants appeal that declaration on 13 grounds of error by Finn J, most of which are expanded by detailed particulars.
In my opinion, there is no substance in the appeal. His Honour was not in error in holding that Mr Gaisford was entitled to natural justice and, in particular, to a proper opportunity to answer Mr Fisher's concerns which Mr Fisher says were generated for him by a number of matters that suggested that Mr Gaisford might be a threat to national security. On this aspect of the case Finn J held that Mr Fisher was bound to give Mr Gaisford an opportunity to make his answer to the matters Mr Fisher intended to raise, saying:
"Perhaps the most telling indication that the circumstances were ones requiring some level of procedural fairness was that the Department itself arranged - and prepared Talking Points for - an interview at which an opportunity was to be given to Mr Gaisford to respond to the matters of concern."
His Honour added:
"I regard the age of many of the 'matters of concern' relied upon by Mr Fisher and the measured (ie unhurried) response of the Department in having resort to the security clearance process, as providing no little confirmation of my view."
It is plain, in my opinion, that his Honour was correct. It is sufficient to refer to some of the considerations that show this to be so.
Firstly, Mr Fisher was only concerned on 1 March 1996 with determining whether to suspend Mr Gaisford's security clearance temporarily while he reviewed Mr Gaisford's suitability to hold that clearance, he having immediately before the meeting with Mr Gaisford determined that such a review should be undertaken.
The appellants characterise the decision made by Mr Fisher as a temporary suspension of Mr Gaisford's security clearance, pending consideration of any further information that Mr Gaisford might provide. It is said that Finn J wrongly treated that decision as one that was to operate until the security review was complete. Reference was made to Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 and, in particular, to this passage at 578:
"It is not in doubt that, where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if 'the decision-making process, viewed in its entirety, entails procedural fairness'."
In my opinion, the suspension decision of 1 March, albeit interim or preliminary, was one which cannot be regarded as being merely a stage in a decision-making process. Nor can it be properly characterised as the appellants would have it. Mr Fisher and Mr Jones agreed that the suspension decision itself was a serious matter for Mr Gaisford because of its consequences to him with respect to his employment, as the learned trial judge noted. Moreover, the decision completely achieved the Department's objective for which it was taken: the decision-maker did not need to take any further action to achieve that objective, ie, the denial to Mr Gaisford to all sensitive information held by the Department until completion of the contemplated security review with respect to him. It therefore matters not that the decision itself incorporated an opportunity to Mr Gaisford, if he chose to exercise it, to try to obtain an amelioration of the impact on him of the decision. Given the nature of this decision, including its impact upon Mr Gaisford's interests, that opportunity cannot nullify deficiencies by way of want of natural justice in the making of the decision.
It is, moreover, fundamental, in my opinion, that where a decision-maker is required to give natural justice to a person who will be affected by a decision adverse to him, the decision-maker does not remedy his own breach of the rules of natural justice in making such a decision by inviting the target of the action do something to nullify that breach. In Hodgkinson v Companies Auditors and Liquidators Disciplinary Board (1994) 50 FCR 504, I said at 507:
"… where the rules of natural justice apply, the obligation is on the decision-maker, ie, the Board here, to ensure that those requirements have been observed; that obligation is not one resting on other parties involved in the matter."
I will continue to list further matters which entitled the learned trial judge to take the view he did as to the nature of the obligation resting on Mr Fisher to give natural justice to Mr Gaisford.
The second of those matters is that it is apparent that Mr Fisher took considerable trouble to set up, on advice from the Australian Government Solicitor, the interview with Mr Gaisford on 1 March 1996 in a way that can only have been designed to show that Mr Gaisford was being given proper opportunity to answer Mr Fisher's concerns. Early in the interview, Mr Fisher said to Mr Gaisford:
"… before moving to determine whether I should suspend your clearance, I want to give you the opportunity to put forward anything you wish me to take into consideration in reaching a decision on this question."
He then proceeded to list the seven matters of concern to which I will later refer and this exchange took place shortly after. Mr Gaisford said to Mr Fisher: "Have you made up your mind already?" Mr Fisher replied: "No, I haven't made up my mind. I'm telling you the matters that I propose to take into account in so doing. You will then have a chance to make a response."
Finally, the seven matters to which I have referred are listed in Mr Fisher's reasons for decision, which he gave Mr Gaisford sometime after the 1 March 1996 suspension decision was made. The first involved Mr Gaisford's suspected involvement in leaking information to newspapers in Sydney, Melbourne and Brisbane. This information was the subject of a total of six articles published in these newspapers between October 1994 and October 1995. The other six matters of concern to Mr Fisher turned on Mr Gaisford's involvement or possible involvement in activities ranging from the making of what are said to be false allegations of fraud by certain DFAT officers, false allegations of paedophile activity by certain other DFAT officers (both of which matters were under investigation by the Australian Federal Police); the giving of false information concerning what he claimed to have said to the Minister about those paedophile activities and certain activities of Mr Gaisford himself in Phnom Penh and, later on, in Canberra.
The mere description in summary form of the diverse range of matters Mr Fisher said he intended to raise with Mr Gaisford and to give Mr Gaisford an opportunity to answer, in order to decide whether Mr Fisher should temporarily suspend Mr Gaisford's security clearance, is sufficient, in my opinion, to show that if Mr Fisher had thought about it for a moment, he could not have expected Mr Gaisford to be in a position, when confronted with this litany of concerns at 4.45 pm on the Friday afternoon, to marshal his thoughts on the spot, to consider whether he needed to gather information to put before Mr Fisher in response to the opportunity Mr Fisher told him he was then and there being given, to gather any such information and, finally, to formulate his answers to Mr Fisher's concerns.
The appellants referred to authorities to the effect that the content of natural justice to which a person may be entitled in particular circumstances may be minimal or even non-existent. Those authorities include Dixon v Commonwealth of Australia (1985) 61 ALR 173 at 182; Kioa v West (1985) 159 CLR 550 at 615 and Johns v Australian Securities Commission (1993) 178 CLR 408 at 472. It was then said that, given the exigencies of national security, the content of any natural justice opportunity to be heard to which Mr Gaisford was entitled on 1 March was a minimal one and that Mr Fisher gave him such an opportunity.
However, in Kioa v West, Mason J, at 583, explained that conduct by the decision-maker himself can, in appropriate circumstances, be capable of giving the target of the action, which the decision-maker is considering taking, an expectation, enforceable by public law remedy, that the target will have a proper opportunity both to know the case against him and a proper opportunity to put his answer to that case before any decision adverse to him is made. Mason J said:
"The expectation may be based on some statement or undertaking on the part of the authority that makes the relevant decision … The expectation may be that a right, interest or privilege will be granted or renewed or that it will not be denied without an opportunity being given to the person affected to put his case."
Finn J was therefore correct in holding that Mr Gaisford was entitled to expect a proper opportunity to be heard before the action Mr Fisher had in mind was taken against him, if it is assumed that Mr Fisher meant what he said when he repeatedly told Mr Gaisford that he would have an opportunity to put forward anything he wanted Mr Fisher to consider before a decision was made with respect to his security clearance and that Mr Fisher had not already made up his mind.
The appellants, as I have mentioned, say in effect that the exigencies of national security were such as to require that Mr Gaisford have nothing other than the most minimal opportunity to make such answer as he could, on the spot, to Mr Fisher's multifarious concerns. Finn J, in my opinion, correctly identified the legal issue raised by this submission when he said:
"Having come to the conclusion that procedural fairness was required, the remaining question is whether Mr Fisher adopted 'fair procedures which [were] appropriate and adapted to the circumstances of the particular case'."
His conclusion was that Mr Fisher had failed to do that. His Honour also said that the adjournment of the interview that Mr Fisher had required Mr Gaisford to attend on the afternoon of 1 March 1996, which Mr Gaisford then sought, "was what the circumstances cried out for". His Honour's conclusions here are plainly correct too.
It is said by the appellants that Finn J made a critical error in characterising what Mr Fisher did in the course of the interview as constituting a denial of opportunity for an adjournment and was wrong in holding that Mr Fisher did not consider the question at all.
The DFAT file note of the interview records this sequence of events: after Mr Fisher informed Mr Gaisford why he was being brought before Mr Fisher and Mr Jones, and after telling him that he would have an opportunity to put forward anything he wished Mr Fisher to take into consideration before deciding whether or not to suspend his security clearance, Mr Gaisford turned to Mr Howe, the Australian Government Solicitor officer who had been advising the DFAT officers, and asked whether he was entitled to legal advice. Mr Howe's response was that he could not provide Mr Gaisford with any legal advice. There was silence in response to Mr Gaisford's inquiry on the part of both Mr Fisher and Mr Jones. When Mr Gaisford asked the reason for Mr Howe's presence, Mr Fisher responded: "He's here as an observer." After Mr Gaisford made a comment about that, Mr Jones said: "This is an internal Departmental process. We should proceed."
Mr Jones was determined to press the interview with Mr Gaisford to a conclusion.
Mr Fisher then outlined the list of matters of concern to him and was interrupted by Mr Gaisford, who said: "We should terminate this interview." Mr Jones intervened to say: "No, we should go ahead."
Mr Jones was not going to brook any interruption by Mr Gaisford to the continuation and conclusion of the interview.
After the exchange to which I have already referred in which Mr Fisher denied having already made up his mind, Mr Gaisford said: "Well, I think I should have legal representation." That produced this response from Mr Fisher: "Why don't you just let me tell you the points which I will be taking into account?"
Mr Fisher, it might be thought, did not want things to be complicated by proceedings being adjourned and Mr Gaisford turning up with his own lawyer.
It was at that point that Mr Gaisford stood up and left the room. Mr Jones gave him an oral direction, as he was doing that, to stay until completion of the discussion. Mr Gaisford ignored a repetition of that direction and left the interview room. Mr Jones did not let Mr Gaisford's departure prevent the carrying through to a conclusion of the interview that the Departmental officers had determined to conduct and complete that afternoon.
After reassuring advice from Mr Howe that this man, who Finn J said was entitled to react angrily to what he saw as an ambush and to refuse to co-operate at the interview, had been given sufficient natural justice, Mr Fisher signed an instrument suspending Mr Gaisford's security clearance on an interim basis. This instrument appears in the Appeal Book at page 137. It would appear to have been typed up, in anticipation of its being required, prior to the interview commencing.
These considerations show that the criticism that Finn J misunderstood the evidence as to the adjournment is devoid of any substance.
I have already mentioned what Finn J said about DFAT's "unhurried" conduct giving the lie to its claims that pressing considerations of national security dictated the action that Mr Fisher so quickly took on the afternoon of 1 March 1996. His Honour also said of this:
"… it is appropriate in this context to have regard both to the age of the bulk of the material which founded Mr Fisher's concerns and the 'unhurried rush' to institute a review once security clearance concerns had been aroused. These suggest that, with or without added safeguards, a short additional period for an adjournment to allow a response to the proposed security suspension was far from inappropriate."
The DFAT's lack of urgency in moving against Mr Gaisford is, as his Honour considered, significant in justifying rejection of the proposition that national security concerns required that Mr Gaisford should not be given any meaningful opportunity to take advantage of Mr Fisher's considered invitation to him to make his answer to the matters of concern to Mr Fisher. His Honour had earlier commented, in the course of rejecting one of Mr Gaisford's other challenges to the suspension decision:
"In December 1995 Ms McLean requested Mr Fisher to defer consideration of Mr Gaisford's suitability to hold a security clearance until the then current AFP investigations were completed. He acceded to this. Those investigations concluded in mid-February. He acted at the beginning of March. The latter delay may suggest that the level of risk to security interests was not of great magnitude."
His Honour's comments show considerable restraint. The unchallenged evidence before Finn J shows, understandably, that very great harm can be done if national security is compromised. I regard it as inconceivable, if Mr Gaisford was truly considered a possible threat to national security, rather than merely an embarrassment to DFAT because of his suspected propensity to leak information to the media that DFAT would have preferred to have kept in-house and to make allegations adverse to some in the Department, that the Department would not have acted to remove his security clearance long before 1 March 1996 and would have suspended his security clearance immediately Mr Gaisford was considered to be a possible risk to security, without going through the exercise of interviewing him.
That Mr Fisher was prepared, on the recommendation in December 1995 of Ms McLean, who was then very well informed of Mr Gaisford's suspect activities, to defer taking such action against Mr Gaisford for as long as three months merely to permit the Australian Federal Police investigations into the paedophile and fraud allegations to be completed, reveals, in my opinion, the true measure of the concern by Mr Fisher and the Department at Mr Gaisford's potential for harming national security.
It was argued, on behalf of the appellants, that Finn J was wrong in saying that he had no acceptable evidence from the Department that there was a significant risk to national security. It is true that his Honour had general evidence of the range of sensitive material to which access is allowed by an unrestricted security clearance of a kind Mr Gaisford held and of the sort of considerations that can arise if that kind of sensitive material falls into the hands of people who should not have it. But, in my opinion, the relevant question for Mr Fisher, in deciding what opportunity to answer he should give Mr Gaisford, was whether Mr Gaisford presented a possible risk, by reason of his own access to highly sensitive information, to national security. It was that question to which his Honour's comments, the subject of criticism by the appellants, can only be taken as referring.
While his Honour had general evidence of the kind I have referred to from Mr Cousins, a First Assistant Secretary of the Department and from Mr Jones, a Deputy Secretary of the Department, neither gave any evidence that he considered that Mr Gaisford, by reasons of his access to sensitive material, posed any risk at all to national security. Given the submissions made by the appellants, it is surprising that there is an absence of such evidence. Mr Jones, who, unlike Mr Cousins, knew a little about the matters of concern to Mr Fisher, gave this evidence:
"Now, in relation to those matters which you had some awareness that you have just told his Honour about, would you agree that the allegations that were made there were matters that could considerably amount to misconduct on the part of Mr Gaisford?‑‑‑Misconduct in what terms?
Disciplinary and misconduct?‑‑‑They may have, though I would really want to take advice of experts if I were in a position of having to make a judgment on that."
If Mr Jones had any genuine unease about Mr Gaisford's access to sensitive material posing a risk to national security interests, he had opportunity then to say something about it. But he was content to leave matters rest there.
I do not accept that merely because Mr Gaisford was fairly regarded as a disgruntled employee and because a decision, not challenged by Mr Gaisford, was taken to review his security clearance prior to the interview when the decisions under challenge were made, the inherently flexible concept of natural justice becomes rigid once it is said that national security might be at risk and that necessarily dictates that the target of the contemplated action can expect only minimal opportunity to answer the case against him, even though there is no acceptable evidence that the employee, though disgruntled, is likely to be a risk to national security interests.
It was said by the appellants that Finn J found that Mr Fisher's decision that there was a risk that Mr Gaisford might compromise security was soundly based; it was then said that Mr Gaisford could, in view of this finding, properly have been regarded as a risk to national security. But the only finding Finn J made in that regard was that Mr Fisher's decision to suspend Mr Gaisford's clearance, based as it was on concerns that Mr Gaisford might have engaged in misconduct of one or more of the seven kinds which Mr Fisher drew to Mr Gaisford's attention on 1 March, could not be said to be unreasonable in the Wednesbury sense. The finding the subject of the appellants' submissions here does not purport to be, and cannot be tortured into, a finding that Mr Gaisford was, in fact, considered by Mr Fisher to be a possible risk to national security.
In any event, the evidence of Mr Fisher's actions in that regard must also be evaluated against his conduct in not taking action against Mr Gaisford for so long after he was aware of the matters that he considered threw suspicion on Mr Gaisford's fitness to hold a security clearance, if it is suggested that those actions support the finding of a kind contended for. In considering whether Mr Gaisford presented such a risk as would have entitled Mr Fisher to adopt the procedures he did on 1 March 1996, his Honour was also entitled to have regard to the assessments of the risk Mr Gaisford presented in that respect by such well-informed and senior officials of DFAT as Ms McLean and Mr Costello. In the light of that evidence, to which I will refer later on, his Honour's comment is unimpeachable.
His Honour said that, save for two of the seven matters of concern to Mr Fisher which he raised with Mr Gaisford (which were themselves both related to Mr Gaisford's allegations of fraud by Departmental officers in connection with a particular aid program), all those matters related to events which were months, if not up to two years, old.
His Honour here took a view of the uncontradicted evidence more favourable to the Department than I think is warranted. His Honour found that throughout 1995 Ms McLean kept Mr Fisher informed of information she had from time to time about these matters. His Honour said:
"… on several occasions in 1995 [Mr Fisher] had discussions with Ms McLean that related to concerns they both had as to Mr Gaisford's suitability to hold a security clearance."
Ms McLean was, at all relevant times, the senior officer of the Department responsible for its audit, evaluation, fraud prevention and investigation program. Her own evidence shows she was, well prior to 1 March 1996, aware of all seven of the matters which Mr Fisher decided to raise with Mr Gaisford on 1 March 1996. Her own evidence shows the following to be the position.
She acquired detailed information with respect to the first of these matters, identified as that in paragraph 3(a) of Mr Fisher's reasons for a decision, between February and 6 December 1995. She was in the same position with respect to the second matter, paragraph 3(b), by November 1995. That was her position also in relation to the third matter, paragraph 3(c). With respect to the fourth matter, paragraph 3(d), in December 1995 she referred Mr Gaisford's allegations that were bound up with that matter to the AFP for investigation on 11 January 1996. The report from the AFP was received on 14 February. With respect to the fifth matter, paragraph 3(e), she was in possession of detailed information about that by late 1994/early 1995. It should be noted here in relation to this particular matter that Mr Gaisford was ordered to be transferred from Phnom Penh in early January 1995, but did not return to Australia for some months. So far as the sixth matter, paragraph 3(f), is concerned, Ms McLean was in possession of detailed information by June 1995, and, with respect to the final matter, paragraph 3(g), which is related to the fourth matter, she was in possession of detailed information by 9 February 1996.
Ms McLean said:
"In the period from December 1994 (when I took up the position of Assistant Secretary, Corporate Evaluation Branch) until 1 March 1996 I became increasingly concerned about Mr Gaisford's adherence to the department's security standards."
But she identified the source of those concerns as the information I referred to, with one exception. She was well aware of all that information by December 1995. The exception is this: the only information adverse to Mr Gaisford that Ms McLean obtained after December 1995 was the AFP report of 14 February 1996 that I have referred to; it told against the reliability of Mr Gaisford's December 1995 allegations of fraud on the part of Departmental officers with respect to an overseas aid program. But it was not suggested that that report revealed that Mr Gaisford, a man about whom Ms McLean, Mr Fisher and other senior officers of the Department had long harboured concerns, was, in truth, a possible threat to national security.
Ms McLean also said:
"Toward the end of 1995 I sought legal advice from the Australian Government Solicitor in relation to options available under the Public Service Act 1922 for addressing the concerns held by me in relation to Mr Gaisford. At that time, I also had discussions with Mr Costello [who was then the Permanent Head of the Department] in relation to my concerns. In particular, I discussed with Mr Costello the possibility of reviewing Mr Gaisford's security clearance and/or pursuing disciplinary action against him under the Public Service Act 1922. Mr Costello advised me that he was opposed to the taking of disciplinary action … Mr Costello advised me that the outcome of disciplinary action was unlikely to resolve the concerns I held in relation to Mr Gaisford's suitability to hold a security clearance."
And she added a little later:
"Mr Costello advised me that he believed that it was appropriate for consideration to be given to the commencement of a review of Mr Gaisford's security clearance."
This measured approach, as the learned trial judge described it, to resolving concerns apparently held at the highest levels in the Department towards the end of December 1995 about Mr Gaisford's suitability to hold a security clearance, does not suggest that the information that had given rise to those concerns was considered by the very senior and responsible officers involved to be sufficient to show that Mr Gaisford might be a possible threat of any significance to national security.
His Honour was fully entitled, in my opinion, to say that the conclusion is inevitable that Mr Gaisford was denied procedural fairness.
The declaration should stand and the appeal should be dismissed.
O'LOUGHLIN J: I agree. There is nothing further I wish to add.
GOLDBERG J: I agree and there is nothing further I wish to add.
I certify that this and the preceding 17
pages are a true copy of the reasons
for judgment herein of the Court.
Associate:
Date:26 June 1997
Counsel for the appellants: A Robertson QC and T Howe
Solicitor for the appellants: Australian Government Solicitor
Counsel for the respondent: D M J Bennett QC and W Wodrow
Solicitor for the respondent: Porter Pilkinton & Bradfield
Date of hearing: 26 June 1997
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