FEDERAL COURT OF AUSTRALIA
Griffiths v Rose [2011] FCA 30
Citation: Griffiths v Rose [2011] FCA 30 Parties: JOHN FRANK LEWIS GRIFFITHS v JO-ANN ROSE, COMMONWEALTH OF AUSTRALIA and KEN PETTIFER File number(s): ACD 9 of 2010 Judge: PERRAM J Date of judgment: 31 January 2011 Corrigendum: 2 February 2011 Catchwords: INDUSTRIAL LAW – Termination of employment – Breach of Australian Public Service Code of Conduct – Unauthorised use of computer equipment – Whether certain prohibitions upon use contrary to right of privacy – Whether evidence of unauthorised use collected contrary to right of privacy – Privacy Act 1988 (Cth) s 16 – International Covenant on Civil and Political Rights Art 17 Legislation: Evidence Act 1995 (Cth) s 138
Financial Management and Accountability Act 1997 (Cth) s 44
Human Rights (Sexual Conduct) Act 1994 (Cth) s 4
Privacy Act 1988 (Cth) ss 14, 16
Public Service Act 1999 (Cth) ss 10, 13, 15, 38European Convention on Human Rights Art 8
International Covenant on Civil and Political Rights Arts 17, 28Cases cited: ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 cited
Associated Provincial Pictures Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 cited
Attorney-General (NSW) v Quin (1990) 170 CLR 1 cited
Breen v Williams (1996) 186 CLR 71 cited
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 cited
ReRefugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 cited
Halford v United Kingdom (1997) 24 EHRR 523 cited
Kruger v Commonwealth (1997) 190 CLR 1 cited
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 cited
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 cited
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 cited
Potter v Scottish Ministers [2010] CSOH 85 cited
Short v Poole Corporation [1926] Ch 66 cited
Toonen v Australia (Human Rights Committee Communication No 488/1992 (1994)) citedDate of hearing: 24 November 2010 Date of last submissions: 24 November 2010 Place: Sydney (by video link to Canberra) Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 54 Counsel for the Applicant: Mr C Erskine SC with Ms C Carnell Solicitor for the Applicant: Williams Love & Nicol Counsel for the Respondents: Ms K Stern Solicitor for the Respondents: Clayton Utz FEDERAL COURT OF AUSTRALIA
Griffiths v Rose [2011] FCA 30
CORRIGENDUM
1.The numerical listing of the respondents in this judgment should be as follows:
1.Jo-Ann Rose
2.Ken Pettifer
3.Commonwealth of Australia
2.In Order 2, the reference to the second respondent should be a reference to the third respondent.
I certify that the preceding two (2) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Perram. Associate:
Dated: 2 February 2011
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 9 of 2010
BETWEEN: JOHN FRANK LEWIS GRIFFITHS
ApplicantAND: JO-ANN ROSE
First RespondentCOMMONWEALTH OF AUSTRALIA
Second RespondentKEN PETTIFER
Third Respondent
JUDGE:
PERRAM J
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- Griffiths v Rose [2011] FCA 30
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- [2011] FCA 30
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CaseChat Overview and Summary
The legal issues before the court involved the interpretation of the Public Service Act 1999, specifically the scope of the considerations that a decision-maker must take into account when determining an appropriate sanction. Mr Griffiths argued that Mr Pettifer should have taken into account his early and frank admission of accessing inappropriate material. The court examined whether the statute impliedly required the decision-maker to consider such admissions and found no such implication. Additionally, the court considered whether the decision was so unreasonable that no reasonable decision-maker could have made it, a threshold that the court found was not met in this case.
The court's reasoning was that the considerations to be taken into account by the decision-maker are determined by the statute conferring the discretion, and where these considerations are not expressly stated, they must be implied from the subject matter, scope, and purpose of the Act. The court concluded that the statute did not imply that the decision-maker should consider Mr Griffiths' initial admission. The court also held that the decision was not so unreasonable that no reasonable decision-maker could have arrived at it. The implied limitations on Parliament’s remit were not transcended, and thus, the decision was not subject to judicial review.
The final orders of the court were to dismiss the application and for the applicant to pay the second respondent’s costs.
Orders
Orders of the court
1. The application be dismissed.
2. The applicant pay the second respondent’s costs.
Note:
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Mr Griffiths submits that Mr Pettifer’s authority to make his decision would not arise if Ms Rose’s determination was vitiated by legal error. I have concluded that none of the attacks on her decision succeed. Accordingly, this question does not arise.XIRelevant considerations Mr Griffiths contends that since Mr Pettifer had taken into account his apparent lack of candour in responding to the inquiry he should also have taken into account his early and frank admission that he had accessed inappropriate material. What factors a decision-maker is bound to take into account in making a decision under a statutory power are “determined by construction of the statute conferring the discretion” (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 per Mason J) and where, as here, those considerations are not expressly stated “they must be determined by implication from the subject-matter, scope and purpose of the Act” (Peko at 39-40). The relevant power being exercised by Mr Pettifer was the power to determine an appropriate sanction under s 15(1) of the Public Service Act 1999. I am unable to discern from the subject-matter, scope or purpose of that Act any implication that required Mr Pettifer to take into account Mr Griffiths’ initial admission. Accordingly, I reject the argument.XIIThe reasonableness issue The decision under s 15(1) was for Mr Pettifer and not this Court to make. This is so because this Court is not structured for, and has little experience with, the day-to-day business of administrative decision making. Nor is it politically responsible for making administrative decisions. Despite that, it is accepted that an exercise of power which is so unreasonable that no reasonable decision-maker could possibly have arrived at it may be set aside: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB at 229. In this country it is also accepted, at least at the Federal level, that when a discretionary power is statutorily conferred upon a repository “the power must be exercised reasonably for the legislature is taken to intend that the discretion be so exercised”: Kruger v Commonwealth (1997) 190 CLR 1 at 36 per Brennan J cited with approval in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [126] per Gummow J. The consequence is likely to be that prohibition (and ancillary certiorari) is available in the face of such an exercise of power: ReRefugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [40]-[41] per Gaudron and Gummow JJ. The threshold erected by this ground is necessarily high. In exercising it is important not to be drawn into a review of the merits of the matter for the question is not whether this Court agrees with the decision but rather whether the decision is one at which any decision-maker could have arrived. This entails that the ground is not available where there is mere, or even strong, disagreement with the decision in question. The power is enlivened only when the implied limitations on Parliament’s remit are transcended and that occurs when a level of unreasonableness is reached which, in essence, permits of no contrary view. In Wednesbury itself Lord Greene MR said (at 230) that “to prove a case of that kind would require something over-whelming”. In Short v Poole Corporation [1926] Ch 66 at 91 Warrington LJ instanced as an example of this kind of case the sacking of a teacher because of her red-hair. More recently, in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [23], a unanimous High Court has accepted as correct the statement of Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36:[t]the merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.