Goodwin and Minister for Foreign Affairs and Trade

[2007] AATA 1159

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1159

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2006/221

GENERAL ADMINISTRATIVE  DIVISION		)
Re		HARVEY GOODWIN

Applicant

And MINISTER FOR FOREIGN AFFAIRS

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date22 March 2007

PlaceCanberra

Decision The decision under review is affirmed.

..............................................

Mr S. Webb, Member

Administrative

Appeals

Tribunal

 

ADMINISTRATIVE APPEALS TRIBUNAL      )

)A2006/221

GENERAL ADMINISTRATIVE DIVISION		)
Re		HARVEY GOODWIN

Applicant

And MINISTER FOR FOREIGN AFFAIRS AND TRADE

Respondent

DIRECTION [2007] AATA 1159

Tribunal Mr S.Webb, Member

Date28 March 2007

PlaceCanberra

Direction

The Tribunal directs the Registrar, pursuant to sub-s.43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application:

1.    at lines two and ten of paragraph eleven delete the word “not”.

  .................................
  Mr S.Webb, Member

CATCHWORDS

PASSPORT – Cancellation – Refusal to issue – Competent authority – Arrest – Serious foreign offence – Charges subsequently dismissed – Effect of transitional and savings provisions – Decision affirmed.

Australian Passports Act 2005 ss 6, 13, 18, 22, 48

Australian Passports (Tansitionals and Consequentials) Act 2005 s 5

Passports Act 1938

Criminal Code Act 1974 (Papua New Guinea) ss 300, 355

Ward v Williams (1955) 92 CLR 496; [1955] HCA 4

Samad v District Court of New South Wales (2002) 209 CLR 140; [2002] HCA 24

REASONS FOR DECISION

22 March 2007 Mr S. Webb, Member         

1.      Harvey Goodwin was charged with offences in Papua New Guinea.  His Australian passport was cancelled and a decision made that he would not be issued with an Australian passport pending the outcome of the legal proceedings against him.  Mr Goodwin has applied for review of these decisions.  Subsequently the charges against him were dismissed and he was issued with a new Australian passport. 

2. Pursuant to section 34J of the Administrative Appeals Tribunal Act 1975 by consent of the parties this matter is decided on the papers.

3.      The relevant facts are as follows.  On or about 31 January 2005, Mr Goodwin was arrested on the charge of deprivation of liberty pursuant to subs 355(a) of the Criminal Code Act 1974 (PNG).[1]  Subsequently, on or about 7 December 2005 he was arrested in Port Moresby on the charge of murder pursuant to s 300 of the PNG Criminal Code.[2]  Mr Goodwin’s Australian passport was seized and bail was granted.[3]  While the specific terms of bail are not in evidence it is plain that in order to travel from the National Capital District in Port Moresby under any circumstances Mr Goodwin required the approval of the Court.[4]  On 27 February 2006 committal proceedings in the National Court of Justice at Waigani were stayed pending judicial review (set down for 14 March 2006, and subsequently 21 March 2006).[5]  Mr Goodwin’s proceedings in the District Court were adjourned.  On 3 March 2006 Mr Goodwin’s bail variation application was granted and he was given leave to return to Australian for a short period following the death of his father.[6] On 17 March 2006, pursuant to s 13 of the Australian Passports Act 2005 (Passports Act 2005) Ms A. Harrap requested cancellation of Mr Goodwin’s Australian passport and that no further passport be issued to him as he had been arrested “for the serious offence of murder”.[7]  On 28 March 2006 the Respondent Minister cancelled Mr Goodwin’s passport pursuant to subp 22(2)(d) of the Passports Act 2005 and refused to issue a further passport pending the outcome of the legal proceedings against him in Papua New Guinea.[8] On 7 April 2006 pursuant to s 13 of the Passports Act 2005 Mr M. Potts requested that Mr Goodwin not be issued with a further passport as he had been arrested “for the serious offences of abduction and deprivation of liberty”.[9]  On 13 April 2006 the Respondent Minister agreed to that request.[10]  On 29 June 2006 the National Court entered orders in the nature of certiorari, quashing the proceedings against Mr Goodwin.[11]  Subsequently on 11 October 2006 the District Court dismissed the charge of deprivation of liberty against Mr Goodwin and ordered that Mr Goodwin have restored to him bail surety, his passport and his firearm.[12] On 27 October 2006 pursuant to s 13 of the Passports Act 2005 Mr Potts requested the Respondent Minister rescind his previous decision not to issue a further passport to Mr Goodwin, and to approve the issue of a passport subject to normal requirements.[13]  Mr Goodwin was subsequently issued with an Australian passport.[14]

[1] Orders of the Committal Court at Waigani dated 11 October 2006 and Applicant’s letter dated 27 February 2007, Attachment.

[2] Documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), T3.

[3] T5 and T6.

[4] T9.

[5] T14.

[6] T13.

[7] T15.

[8] T16.

[9] T18.

[10] T19.

[11] T22.

[12] T24.

[13] T27.

[14] T28.

4.      The issues for determination are whether the Minister’s decisions to cancel Mr Goodwin’s Australian passport and to refuse to issue him with a further Australian passport were the correct or preferable decisions in the circumstances at the time.

5.      Mr Goodwin asserts that the charge of murder is not relevant to these proceedings and that the charge of deprivation of liberty is not an indictable offence, being a misdemeanour in Papua New Guinea.  He says that that offence is not a ‘serious offence’ in Papua New Guinea.  Mr Goodwin maintains that he was not charged with the offence of abduction and ultimately was not found to be guilty of any offence.  He asserts that he was not subject to court orders that prevented him from travelling internationally.  In his submission the Passports Act 2005 commenced in July 2005 and has no retrospective effect in terms of the charge levelled against him in January 2005.  In sum Mr Goodwin submits that the refusal/cancellation decisions were incorrect and “should be quashed and rendered null and void”.[15]

[15] Applicant’s letter dated 27 February 2007.

6.      As will appear I do not agree.

7.      Australian passports issued under the Passports Act 1938 are taken to have been issued under the Passports Act 2005 from the commencement date (1 July 2005).[16]  Under the Passports Act 2005 the Minister may cancel an Australian passport if a competent authority makes a refusal/cancellation request in relation to the person.[17]  A competent authority is defined to include a member of the diplomatic staff of an Australian mission or a consular officer of an Australian consulate (but not an honorary consular officer) within the meaning of the Vienna Convention on Consular Relations.[18]  A refusal/cancellation request to the Minister may be made if the competent authority believes on reasonable grounds that a person is the subject of an arrest warrant in a foreign country in respect of a serious foreign offence, or if in relation to a serious foreign offence a person is prevented from travelling internationally by order of a court or by condition of bail.[19]  The term ‘serious foreign offence’ is defined to include an offence against the law of a foreign country for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than 12 months.[20]

[16] Subsection 5(1) Australian Passports (Transitionals and Consequentials) Act 2005 (Cth).

[17] Section 22.

[18] Section 6.

[19] Section 13.

[20] Subsection 13(3).

8.      As can be seen from these provisions the word ‘may’ implies the existence of discretionary power.[21]  However, mere use of the word may not be conclusive of the existence of a discretion and it may instead impose a duty to act.[22]  The question whether the decision maker is bound to use the power given, is to be solved by reference to the legislative context, the particular provisions and the general scope and object of the enactment conferring the power.  In the case of the Passports Act 2005 the intention of the legislation is to provide for the issue and administration of Australian passports, to be used as evidence of identity and citizenship by Australian citizens who are travelling internationally.[23] Section 13 and 18 are set in the legislative context of provisions concerning the Minister’s powers to refuse to issue Australian travel document in certain circumstances. The power is expressed in mandatory terms at subs 12(2): “…the Minister must not…”. By contrast the powers conferred by subs 13(2) and subs 14(2) are expressed in discretionary terms: “…the Minister may…”.  In each of these provisions the Minister’s power is only enlivened if the preconditioning factors exist.  Section 19 sets out the circumstances in which the Minister “must not” act on a refusal/cancellation request.  Section 22 is cast in discretionary terms and is set in the context of provisions concerning the circumstances in which an Australian travel document ceases to be valid.  Considering the scope and purpose of the provisions in the context of the Act the use of the word ‘may’ does not impose a duty to act, but confers discretion that may or may not be exercised in the particular circumstances.  It is plain enough the discretion exists to enable the particular decision-maker to respond to circumstances that may be fluid and variable, requiring therefore the exercise of judgement about whether or not it is reasonable and appropriate to exercise power if the preconditioning factors exist.[24] 

[21] Subsection 33(2A) Acts Interpretation Act 1901(Cth).

[22] Ward v Williams (1955) 92 CLR 496 at 505; Samad v District Court of New South Wales (2002) 209 CLR 140.

[23] Section 3.

[24] See for example subs 19(b).

9.      I am satisfied that Ms Harrap in the position of Acting Head of Mission in Port Moresby and Mr Potts in the position of Head of Mission in Port Moresby were competent authorities within the meaning of that term as defined.  There are reasonable grounds to believe that Mr Goodwin was arrested on the charges of deprivation of liberty (on or about 31 January 2005) and murder (on or about 7 December 2005).  The charge of deprivation of liberty is pursuant to section 355 of the PNG Criminal Code.  Deprivation of liberty is a misdemeanour, the maximum penalty for which is imprisonment for a term of up to three years.  Under subsection 3(2) of the PNG Criminal Code a misdemeanour is an indictable offence.  The maximum penalty for the charge of murder pursuant to section 300 of the PNG Criminal Code is life imprisonment.  That being so, I am satisfied and find that these offences are ‘serious offences’ for present purposes.

10.     Thus it can be seen that the refusal/cancellation request Ms Harrap made on 17 March 2006 in relation to Mr Goodwin’s arrest on the charge of murder and the request Mr Potts made in relation to Mr Goodwin’s arrest on the charge of deprivation of liberty were well-founded at the time.  That is to say nothing about any delay concerning the making of those requests, which were substantial in the case of the deprivation of liberty matter.  It follows that the Minister’s decision to cancel Mr Goodwin’s passport and to refuse to issue him with a further passport were within power on the facts at that time.

11.     The real question raised by Mr Goodwin in this review is whether it was appropriate in the particular circumstances for the Minister not to exercise the discretion conferred by subsection 13(2) and section 22 of the Passports Act 2005, and relatedly whether it was appropriate for Ms Harrap and Mr Potts to exercise the discretion conferred on them, as competent authorities, to make the refusal/cancellation requests they did.  Mr Goodwin alleges some form of conspiracy against him.  That allegation is not supported by objective evidence.  On that basis and in the particular circumstances pertaining at the time I am satisfied the Minister’s decisions were properly preconditioned and it was appropriate and reasonable for him not to exercise the discretion vested in him by the applicable provisions to which I have referred.

12.     Finally, while the charges in this case were indeed serious foreign offences, the length of time between the preconditioning arrests and the requests made to the Minister, the status of proceedings against Mr Goodwin at the time the requests were made and the absence of evidence of risk that Mr Goodwin would commit harm or abscond may have been matters of relevance that could have been taken into account at the time.  There is not sufficient evidence before me to establish that taking those matters into account that the Minister’s decisions should not have been made or the discretionary power vested in the Minister should have been exercised differently.

13.     It follows that Mr Goodwin’s case is not made out and the decisions under review will be affirmed.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

Signed:         .....................................................................................
  Joe Meagher, Associate

Date/s of Hearing  15 March 2007

Date of Decision  22 March 2007
Representative for the Applicant     Self
Solicitor for the Respondent            Minter Ellison