Hanes v Human Rights and Equal Opportunity Commission
[2007] FCA 751
•21 May 2007
FEDERAL COURT OF AUSTRALIA
Hanes v Human Rights and Equal Opportunity Commission [2007] FCA 751
JUDICIAL REVIEW: Decision not to inquire into the complaint that the scheduling of substance by Commonwealth agency constituted a breach of the applicant’s human rights; Whether decision of HREOC involved an error of law; Breach of Natural Justice; No Evidence; Procedural Failures.
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief
Drugs, Poisons and Controlled Substances (Commonwealth Standard) Regulations 2001 (Vic)
Drugs, Poisons and Controlled Substances Act 1981 (Vic)
Drugs, Poisons and Controlled Substances Regulations 2006 (Vic)
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
International Covenant on Civil and Political Rights
Therapeutic Goods Act 1989 (Cth)
Therapeutic Goods Regulations 1990 (Cth)Attorney-General (NSW) v Quin (1990) 170 CLR 1 ref to
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 cited
Collector of Customs v PozzolanicEnterprises Pty Ltd (1993) 43 FCR 280 ref to
Eshetu v Minister for Immigration and Ethnic Affairs (1997) 71 FCR 300 ref to
Gonzales v O Centro Esprita Beneficente Uniao do Vegetal 546 US 2006 ref to
Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 38 cited
House v The King (1936) 55 CLR 499 cited
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 cited
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited
Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 cited
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 80 ALJR 367 cited
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 cited
Waterford v Commonwealth (1987) 163 CLR 54 cited
Williams v Williams Pty Ltd [1971] 1 NSWLR 547 citedKARL RICHARD HANES v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION AND COMMONWEALTH OF AUSTRALIA
VID 1342 OF 2006GORDON J
21 MAY 2007
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 1342 OF 2006
BETWEEN:
KARL RICHARD HANES
ApplicantAND:
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
First RespondentCOMMONWEALTH OF AUSTRALIA
Second Respondent
JUDGE:
GORDON J
DATE OF ORDER:
21 MAY 2007
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The Application be dismissed.
2. The applicant pay the respondents’ costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 1342 OF 2006
BETWEEN:
KARL RICHARD HANES
ApplicantAND:
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
First RespondentCOMMONWEALTH OF AUSTRALIA
Second Respondent
JUDGE:
GORDON J
DATE:
21 MAY 2007
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
INTRODUCTION
The applicant, Dr Karl Richard Hanes, who describes himself as a scientist and a practising neo-pagan has, since December 1999, been using a plant salvia divinorum (“the plant”). The plant, he says, facilitates his ability to have a deep experience of communion with Nature and the Spirit of the Earth.
In November 2001, the National Drugs and Poisons Schedule Committee (“NDPSC”), established under s 52B of the Therapeutic Goods Act 1989 (Cth) (“the TG Act”), included the plant in Sch 9 of the Standard for the Uniform Scheduling of Drugs and Poisons (“the Poisons Standard”) with effect from 1 June 2002. The possession, sale, supply or use of substances listed in Sch 9 of the Poisons Standard is, in fact, regulated by State or Territory legislation: for example, the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (“the DPCS Act”), reg 4 of the Drugs, Poisons and Controlled Substances (Commonwealth Standard) Regulations 2001 (Vic) and the Drugs, Poisons and Controlled Substances Regulations 2006 (Vic).
At the outset, it should be made clear that the Commonwealth legislation and statutory instruments establish the NDPSC, prescribe the functions of the NDPSC and regulate the performance of the functions of the NDPSC (see the TG Act Ch 6 Part 6-3 and the Therapeutic Goods Regulations 1990 (Cth) Part 6 Div 3A). The Commonwealth legislation and statutory instruments do not limit the possession, sale, supply or use of scheduled substances. The effect of a decision by the NDPSC to place the plant in Sch 9 of the Poisons Standard is to specify the Commonwealth standard which may, or may not, be adopted at the State level. In Victoria, it is the DPCS Act and relevant regulations which prescribe the legal controls, if any, on the use in that State of substances which have been placed in Sch 9 of the Poisons Standard.
The DPCS Act restricts the distribution of the plant for non-therapeutic use by confining the categories of persons who are authorised to possess and to use, sell or supply it (See Part II Div 2 s 13, and the definition of “poison or controlled substance” in s 4). The DPCS Act authorises medical professionals to possess and to use, sell or supply, for certain purposes and in certain circumstances, defined poisons and controlled substances, including Sch 9 substances. Significantly, the DPCS Act does not make possession and use of Sch 9 substances by a non authorised individual an offence (see s 46). Nor is the possession or use of the plant an offence under Part V, ss 73 and 75 of the DPCS Act, as it is not listed in Sch 11 of the DPCS Act as a drug of dependence. Dr Hanes’ ability to purchase the plant for non-therapeutic use is restricted by the DCPS Act but his possession and use of it is not a criminal offence.
Dr Hanes’ complaint is that action by a Commonwealth agency (the NDPSC) has restricted the possession, use, sale and supply of the plant and that manifests a restriction on his human rights. At best, that is a compressed description of a more complex interaction between federal and state law. It may be that it is a description that assumes premises that are open to doubt. Those premises were not challenged by the respondents and, for the reasons that follow, it is unnecessary to examine their content or their validity.
SUMMARY OF APPLICATION
This is an application for review under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) of the decision made on 14 November 2006 by the Human Rights and Equal Opportunity Commission (“HREOC”) under ss 20(2)(a) and (c)(ii) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the “HREOC Act”) not to continue to inquire into a complaint made by the applicant that an act or practice was inconsistent with or contrary to any human right (the “decision”).
It is common ground that the applicant is a person aggrieved by the decision and that the decision is one to which the ADJR Act applies: s 5 of the ADJR Act. The applicant appeared in person. The First Respondent, HREOC, filed a submitting appearance. The Second Respondent, the Commonwealth of Australia, appeared by Counsel.
Relevant Statutory and other Provisions
Section 11 of the HREOC Act lists the functions of HREOC. One function of HREOC under s 11(1) is:
“(f)to inquire into any act or practice that may be inconsistent with or contrary to any human right, and:
(i)where the Commission considers it appropriate to do so – to endeavour, by conciliation, to effect a settlement of the matters that gave rise to the inquiry; and
(ii)where the Commission is of the opinion that the act or practice is inconsistent with or contrary to any human right, and the Commission has not considered it appropriate to endeavour to effect a settlement of the matters that gave rise to the inquiry or has endeavoured without success to effect such a settlement – to report to the Minister in relation to the inquiry.”
The circumstances in which HREOC performs the functions referred to in s 11(1)(f) are set out in s 20 of the HREOC Act in the following terms:
(1)Subject to subsection (2), the Commission shall perform the functions referred to in paragraph 11(1)(f) when:
(a)the Commission is requested to do so by the Minister;
(b)a complaint is made in writing to the Commission alleging that an act or practice is inconsistent with or contrary to any human right; or
(c)it appears to the Commission to be desirable to do so.
(2)The Commission may decide not to inquire into an act or practice, or, if the Commission has commenced to inquire into an act or practice, may decide not to continue to inquire into the act or practice, if:
(a)the Commission is satisfied that the act or practice is not inconsistent with or contrary to any human right;
…
(3)Where the Commission decides not to inquire into, or not to continue to inquire into, an act or practice in respect of which a complaint was made to the Commission, the Commission shall … forthwith give notice in writing to the complainant of that decision and of the reasons for that decision.”
The ‘act or practice’ the subject of the applicant’s complaint was said to be the inclusion of the plant in Sch 9 of the Poisons Standard by the NDPSC. The ‘human right’ that the applicant alleged the ‘act or practice’ was inconsistent with, or contrary to, was described by him as those rights protected by Art 18(1) of the International Covenant on Civil and Political Rights (“the ICCPR”). The term “human rights” is defined in s 3 of the HREOC Act to mean “the rights and freedoms recognised in the Covenant, declared by the Declarations or recognised or declared by any relevant international instrument.” “Covenant” is defined in s 3 of the HREOC Act to mean the ICCPR, a copy of which is set out in Sch 2 to that Act, as the ICCPR applies in relation to Australia.
Article 18 of the ICCPR provides:
“1.Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2.No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
3.Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.
4.The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.”
For present purposes, Arts 18(1) and (3) are relevant.
FACTUAL BACKGROUND TO THE APPLICATION
Set out below is a summary of the factual background to the application. The summary is more detailed than would otherwise be necessary so as to include, in chronological order, some of the facts relied upon by the applicant as evidence of one or more of his grounds of review.
On 10 August 2005, the applicant made a written complaint to HREOC. The complaint alleged that the applicant’s human rights had been breached by the decision made by NDPSC in November 2001 to place the plant in Sch 9 of the Poisons Standard. On 15 September 2005, pursuant to s 20(2) of the HREOC Act, a delegate of the President of HREOC decided not to inquire into the applicant’s complaint. On or about 10 October 2005, the applicant applied to the Federal Court seeking judicial review of the delegate’s decision. On 26 October 2005, consent orders were made allowing the application, setting aside the delegate’s decision and remitting the matter to HREOC for further consideration according to law.
On 8 November 2005, the applicant made further submissions to HREOC in relation to the complaint. On 15 December 2005, HREOC wrote to the Secretary of the Department of Health and Ageing (“the Department”) seeking the Department’s written comments on the complaint and seeking specific information. A copy of HREOC’s letter to the Department was provided to the Applicant on or about 15 December 2005. The Principal Medical Adviser, Therapeutic Goods Administration (“the TGA”) of the Department responded to HREOC on 25 January 2006. A copy of the response was provided to the applicant on or about 10 April 2006.
On 11 April 2006, Ms Farrer, the Investigation/Conciliation Officer from HREOC forwarded a memorandum to Ms Gonzalez, the Principal Investigation/Conciliation Officer. Ms Farrer’s memorandum summarised the complaint and the response from the Department, identified the relevant legislation, listed the issues to be considered and contained the officer’s analysis of the complaint. The officer expressed the preliminary view that:
“At this stage I am not satisfied that there is enough evidence before me to establish that the plant poses such a significant risk to public health and safety that its placement into schedule 9, the most restrictive category, was reasonable and proportionate to any perceived risk…
…
I recommend that further submissions be obtained from both parties in relation to the health and safety risks of the plant, both in relation to individual users, as well as the wider community. In addition, I recommend that the parties provide further submissions on the plant’s potential for abuse including an assessment of whether it has addictive properties and a street value. Finally, I recommend that [the applicant] be asked to provide further information regarding his Nature Philosophy and, in particular, to indicate whether there are other adherents to this philosophy.”
On or about 26 April 2006, Ms Jodie Davis was appointed Acting Principal Investigation and Conciliation Officer. Some time after her appointment, Ms Davis provided Ms Farrer with a document headed “Hanes v TGA” which was in the following terms:
“Decline:
·Unlikely to be a religion, arguable it is a belief and that using the drug is a manifestation of that belief.
·Appears prohibition impairs manifestation of the belief.
·Appears article 18 is broad enough to cover belief and the consumption of the drug as a manifestation of the belief.
·However, note that the TGA made its decision based on relevant evidence, it was a considered decision, it is the appropriate body with relevant expertise to make such decisions, did not do any (sic) unlawful or discriminatory in making its decision.
·Commission can determine proportionality but not appropriate for the Commission to make a decision on the evidence itself or second guess TGA’s expertise in making the decision. Only to take into account whether the TGA relied upon relevant evidence in making its decision and whether it breached C’s human rights in making its decision by discriminating etc. Appears it did not, therefore, not unlawful, no breach of human rights.
For pre-decline:
·Note points I-V. Address points I-IV: does not appear that these are matters into which the Commission may inquire but invite your submissions on this.
·Note TGA response. Appears that it is based upon relevant evidence etc. Therefore may not constitute a breach of human rights. Invite your submission on this.”
On 9 August 2006, a HREOC Investigation / Conciliation Officer wrote to the applicant. The letter summarised the complaint, summarised the response from the Department, the TGA and the NDPSC and advised that, “[a]t this stage, based on the evidence before [HREOC], it appears that in deciding to place [the plant] into Schedule 9, the NDPSC did not breach article 18(1) of the ICCPR, as its decision was based on issues of public health and safety and these considerations are provided for in article 18(3) of the ICCPR…”. The letter informed the applicant that if he wished to make any submissions on the matters raised in the letter or any other comments, he should forward them to the HREOC officer within 14 days.
On 21 August 2006, the applicant provided further submissions to HREOC in relation to the complaint. It will be necessary to return to consider the substance of the applicant’s response in further detail later in these reasons.
On 14 November 2006, the President of HREOC wrote to the applicant informing him of his decision not to continue to inquire into the complaint on the basis that the decision by the NDPSC was not an act or practice that was inconsistent with or contrary to any human right. In general terms, the President of HREOC:
(1)accepted that for the purposes of Art 18(1) of the ICCPR, the “Nature Philosophy” practised by the applicant could be considered a belief (without deciding whether it constituted a ‘religion’);
(2)accepted that the applicant’s use of the plant “to facilitate a communion with Nature and the Spirit of the Earth” constituted a manifestation of his religion or belief;
(3)noted that under Art 18(3) of the ICCPR, the freedom to manifest one’s religion or belief may be subject to such limitations “as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others”;
(4)stated that, after carefully considering all of the evidence provided by the applicant and the Department and their respective submissions, the decision to place the plant into Sch 9 of the Poisons Standard:
(a)was “proportionate to the potential risks associated with the use of the plant”;
(b)was a “lawful limitation pursuant to the TGA Act and was made in order to protect public health and safety”.
The President concluded in the following terms:
“…The decision was made in accordance with the relevant provisions of the TGA Act and was made by the appropriate body under this Act. The NDPSC has the experience and expertise to make these decisions and I accept that in this case, the decision to prohibit [the plant] was based upon considerations of public health and safety, as the Department has outlined in its response. I am therefore of the view that in deciding to place [the plant] into Schedule 9, the NDPSC acted lawfully in order to protect public health and safety. Article 18(3) provides that the manifestation of one’s religion or belief may be subject to limitations prescribed by law and which are necessary to protect public health and safety. I am therefore of the view that the NDPSC’s decision to place the plant in Schedule 9 does not constitute a breach of Article 18 of the ICCPR.
I have also taken into account that pursuant to Article 18(3) any limitation upon the manifestation of an individual’s religion or belief must be reasonable and proportionate to the purpose of the limitation. This is in keeping with the [Human Rights Commission’s] jurisprudence on Article 18(3) and, in particular, Comment 22 in which the [Human Rights Commission] stated:
Limitations may be applied only for the purposes for which they are prescribed and must be directly related and proportionate to the specific need on which they are predicated. Restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner.
You maintain that the NDPSC’s action of placing [the plant] into Schedule 9 was not necessary or in proportion to any potential or actual risk the plant could potentially pose to public health and safety and as such was a breach of Article 18 of the ICCPR. In this respect I note that you maintain the warnings associated with [the plant] do not justify its placement into Schedule 9 and that the NDPSC had options that were less restrictive and posed less of a burden to religious users of the plant such as allowing it to remain unscheduled, exempting religious use of the plant or placing it into a less restrictive category.
I have considered your submissions as well as those of the Department. I accept the Department’s assertion that the plant was placed into Schedule 9 for the purpose of protecting public health and safety. I have considered the Department’s reasons for placing the plant into Schedule 9 and I accept its decision that this level of restriction is proportionate to the potential risks associated with the use of the plant. I am also of the view that there is no evidence to suggest that the NDPSC imposed or applied this restriction in a discriminatory manner. I am therefore of the view that the decision to place [the plant] into Schedule 9 was a lawful limitation on [the applicant’s ] right to manifest [his] religion or belief and that this limitation was necessary to protect public health and safety. I have therefore decided that I will not continue to inquire into [the] complaint pursuant to section 20(2)(a) of the HREOC [Act] on the basis that I am satisfied that the NDPSC’s placement of [the plant] into Schedule 9 is not an act or practice that is inconsistent with or contrary to any human right. …”
The applicant had also sought to rely upon the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. Despite being asked by HREOC to explain how his right to use the plant was protected by that Declaration, the applicant did not identify any human rights contained within that instrument that the Department was alleged to have breached. The President decided, pursuant to s 20(2)(c)(ii) of the HREOC Act, not to continue to inquire into that complaint on the basis that it was lacking in substance.
SUMMARY OF THE APPLICATION AND RELEVANT PRINCIPLES
The applicant seeks orders, under the ADJR Act, for the matter to be remitted to HREOC for further consideration. He summarised his complaints in the following terms:
“(i) the decision involved an error of law;
(ii)a breach of natural justice occurred in connection with the making of the decision; and
(iii)there was no evidence or other material to justify the making of the decision;
(iv)procedures required by law to be observed were not observed; and
(v)taking an irrelevant consideration into account in the exercise of a power”.
Each of the five complaints was developed in considerable detail in both the applicant’s written and oral submissions. Although there was a substantial overlap between the matters relied upon under each of these headings, it is convenient to deal with the complaints made by reference to the headings the applicant himself used in his submissions.
In considering the applicant’s various grounds of complaint, it is of the first importance to restate some of the well-established principles in this field. First, this is not a reconsideration of the merits of the decision. As was said by Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36:
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. 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.”
See also NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 80 ALJR 367 at [14]-16] and Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 (per Gummow J).
Secondly, where, as here, HREOC decided not to continue to inquire into an act or practice in respect of which a complaint was made to it, HREOC was required “forthwith [to] give notice in writing to the complainant of that decision and of the reasons for that decision”: s 20(4) of the HREOC Act. It did so. Those reasons “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Collector of Customs v PozzolanicEnterprises Pty Ltd (1993) 43 FCR 280 at 287. Moreover, the reasons are not required to refer expressly to every argument and all the evidence that might be relevant to its determination of factual issues: cf Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 38 at 52-53.
Thirdly, there is no error of law simply in a decision-maker making a wrong finding of fact: Waterford v Cth (1987) 163 CLR 54 at 77 (per Brennan J). Where different conclusions are reasonably open on the facts, the determination of which is the correct conclusion is a question of fact, not law: Williams v Williams Pty Ltd [1971] 1 NSWLR 547 at 557 (per Mason JA).
To a significant extent, the applicant’s written and oral submissions proceeded, or at least appeared to proceed, on two premises: that the question for the Court was whether the decision of the NDPSC was inconsistent with or contrary to Art 18 of the ICCPR and, further, that it was open to him to seek to re-agitate in this Court the various arguments that the applicant presented to HREOC. Neither premise is correct.
Before proceeding to consider the applicant’s various grounds of complaint it is important to identify certain facts and matters which are not in dispute. First, for the purposes of Art 18(1) of the ICCPR, the “Nature Philosophy” practised by the applicant could be considered a belief. Secondly, the applicant’s use of the plant “to facilitate a communion with Nature and the Spirit of the Earth” constituted a manifestation of his religion or belief and, finally, under Art 18(3) of the ICCPR, the freedom to manifest one’s religion or belief may be subject to such limitations “as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.”
GROUND (1): ERROR OF LAW: S 5(1)(F) OF THE ADJR ACT
The applicant alleged that HREOC had made an error of law in that it had “incorrectly applied the established … norms of Art 18” of the ICCPR. In particular, he asserted that HREOC had incorrectly applied the “principles of proportionality and necessity”. This, he said, followed from the fact that the NDPSC had “numerous alternatives” open to it, short of the steps it took. It could, for example, have decided to include the plant in Sch 4 of the Poisons Standard, a less restrictive regime for regulation.
The short answer to this contention is that the decision under review is the decision of HREOC and not that of the NDPSC. The decision under review expressly records that it proceeded on the basis that “pursuant to Article 18(3) any limitation upon the manifestation of an individual’s religion or belief must be reasonable and proportionate to the purpose of the limitation” (emphasis added). The decision refers to what it describes as the jurisprudence on this article and to General Comment 22 on Art 18 published by the Human Rights Committee established under the ICCPR (Art 28) to monitor state compliance with the it (Arts 41 and 42). Moreover, the decision goes on to record that the President of HREOC accepted the decision of NDPSC that the chosen “level of restriction is proportionate to the potential risks associated with the use of the plant” and that “there is no evidence to suggest that the NDPSC imposed or applied this restriction in a discriminatory manner”. It is clear that HREOC asked itself the right question and considered the issues that were presented by that question. There was no error of law.
The complaints made by the applicant under this ground of review were, in the end, directed to challenging the particular assessment made by NDPSC of what it considered to be the necessary response to the dangers presented by the plant. He contended that HREOC did not, for itself, make an assessment of what the proportionate response should be. But once it is recognized that HREOC asked itself the correct legal question and considered the issues presented by that question, the complaint of error of law must fail. It was neither necessary nor appropriate for HREOC to review any factual assessment by NDPSC of the nature or magnitude of the risks presented by the unrestricted availability of the plant. What HREOC had to decide was whether placing the plant in Sch 9 was not inconsistent with or contrary to any human right (s 20(2)(a)). This is what HREOC did when it decided that:
“I have considered your submissions as well as those of the Department. I accept the Department’s assertion that the plant was placed into Schedule 9 for the purpose of protecting public health and safety. I have considered the Department’s reasons for placing the plant into Schedule 9 and I accept its decision that this level of restriction is proportionate to the potential risks associated with the use of the plant. I am also of the view that there is no evidence to suggest that the NDPSC imposed or applied this restriction in a discriminatory manner.”
It is unnecessary, in these circumstances, to embark upon the larger and more difficult question presented by the Commonwealth’s submission that the construction of Art 18(3) of the ICCPR presents no question of law but presents only a question of fact. The corollary of the Commonwealth’s submission was said to be that the proper construction of Art 18 was a matter for HREOC, was a question of fact which was at large and was therefore not a matter which was subject to judicial review under this ground of review. The correctness of that submission is not self-evident. Resolution of it would require examination and consideration of what question or questions of law are presented by the construction of s 20 of the HREOC Act when that section takes as its point of reference a human right as defined in the text of an international instrument, the ICCPR, set out in the Schedule to the Act and which, on the present state of the authorities, is not incorporated into municipal legislation: cf Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at [34]-[38] and Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 286-287 (per Mason CJ and Deane J).
These questions need not be decided in the present matter because, even if the submission is wrong, the decision under review does not reveal that HREOC failed to ask the question which Art 18(3), on the construction urged by the applicant, required to be asked. Article 18(3), as interpreted in General Comment 22, para 8, directs attention to whether the restriction or limitation was applied only for the purposes of public health and safety, whether the restriction or limitation was directly related and proportionate to the specific need upon which it was predicated, and was not imposed for discriminatory purposes. The applicant sought to say that because “proportionate” in the present context was to be understood as the “least restrictive” interference with freedom of religion, the conclusion reached by HREOC necessarily revealed that it had made an error of law.
HREOC has not amplified what it meant by the reference, in its decision, to the level of restriction adopted by NDPSC being “proportionate to the potential risks associated with the use of the plant”. However, what HREOC said in its reasons is in no way inconsistent with it applying what the applicant says is the proper construction of Art 18(3) and, in particular, giving that article the meaning described in General Comment 22 by reference to the notion of the restriction being “directly related and proportionate”. It follows that, to make good his complaint of error of law, the applicant must seek to argue from the actual conclusion reached by HREOC that it must have understood the relevant legal test incorrectly. It may be accepted that there may be cases in which such reasoning is permissible. (It is reasoning of a kind that may be said to be analogous to the last category of cases described in House v The King (1936) 55 CLR 499 at 505 as warranting appellate intervention in a discretionary decision.) But it is reasoning that is available only if no answer to the relevant question is possible except the answer for which the applicant contends – that total prohibition of use of the plant cannot be said to the “least restrictive” interference with the use of the plant that is consistent with the object of public health and safety. The premise was not made good.
Under this heading, the applicant also referred the court to a number of events which he described as evidence “raising the possibility of interference by organisations or individuals with knowledge of the plant” and which occurred on or about the same time as the plant was placed into Sch 9 of the Poisons Standard. The events identified by the applicant were the correction to the spelling of the scientific name of the plant in the applicant’s medical records and the circumstances of his medical detention on 10 May 2001 the fact that the first known official reference to the plant in Australia was in a minute prepared by an officer of the TGA on 11 April 2001, the fact that the applicant was waiting for his paper entitled “Antidepressant effects of the herb salvia divinorum” to be published in the Journal of Clinical Psychopharmacology and a conversation the applicant had with a “US journalist”. The coincidence of the timing of these events was said by the applicant to provide evidence that the plant was placed into Sch 9 for reasons other than health and safety. The complaint on this basis is entirely misconceived. In substance and in form, it seeks a review of the decision of the NDPSC. That is not open. Insofar as the applicant seems to suggest that HREOC took into account irrelevant considerations or was motivated by improper purposes, there is nothing to support the applicant’s assertion that any of these events taken singularly or cumulatively motivated HREOC or, for that matter, the NDPSC.
The complaint of error of law fails.
GROUND (2): BREACH OF NATURAL JUSTICE: S 5(1)(A) OF THE ADJR ACT
In Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 Burchett J accepted the definition of natural justice to be commensurate with the statement of principle in Butterworths Legal Dictionary (ed P Nygh and P Butt):
“The right to be given a fair hearing and the opportunity to present one’s case, the right to have a decision made by an unbiased or disinterested decision maker and the right to have the decision based on logically probative evidence. . . .”
The Applicant did not seek to submit that these circumstances (or any other feature of the matter) founded a case of actual or apprehended bias and expressly disavowed any contention to that effect.
Instead, the applicant sought, impermissibly, to use this ground to re-agitate the merits of the decision by reference to two headings: an invalid basis for HREOC’s decision and the weight of evidence presented. The second matter, the weight of evidence presented, is addressed in Ground (3) below. In relation to the first heading, the applicant sought to identify the invalid basis for HREOC’s decision by reference to what the applicant described as “main considerations” and “additional considerations”. None of the considerations raised by the applicant demonstrated that the decision of HREOC was invalid. Many of the considerations raised by the applicant were, in fact, an attack on the merits of the decision of the NDPSC and were in relation to facts and matters about which the NDPSC and the applicant held different views. That is not a proper basis for review under this ground.
During the course of his oral submissions, the applicant expanded the matters sought to be relied upon under this ground of review to include:
(1)what he described as the “unexplained shift” in position of HREOC from the view expressed by Ms Farrer, the Investigation/Conciliation Officer in a memorandum to Ms Gonzalez, the Principal Investigation/Conciliation Officer in April 2006 to the decision of the President of HREOC. This is misconceived for the reasons set out under Ground (3) below;
(2)the alleged lack of expertise in the NDPSC. This fails for the reasons set out under Ground (4) below;
(3)an alleged lack of review of the evidence by the President of HREOC. This is not made out for the reasons set out under Grounds (3) and (4) below;
(4)the matters identified in para [35] above. For the reasons there set out, those matters do not provide a basis for review under this ground.
GROUND (3): NO EVIDENCE OR OTHER MATERIAL TO JUSTIFY THE MAKING OF THE DECISION: S 5(1)(H) AND 5(3) OF THE ADJR ACT [#51 OF A’S SUBS]
To establish this ground the applicant must show that there was no evidence or other material upon which the President of HREOC could reasonably be satisfied that the decision of the NDPSC was not inconsistent with or contrary to any human right: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 357-358 (per Mason J).
The applicant properly and candidly conceded that on the evidence and material before HREOC, it was open for different people to reach different conclusions. So much was conceded in his written submissions when he stated that “the preponderance of detailed evidence presented in this case favours the position of the applicant.” Where the preponderance of evidence lies is not a question for the Court to resolve. The question for the Court is whether there was evidence or other material to justify the decision made by HREOC. There clearly was. That is reason enough to conclude that the asserted ground is not made out.
As set out in the written and oral submissions of the applicant, his complaints under this ground were, in the end, directed at identifying what he described as ‘omissions’ from HREOC’s decision: (i) the absence of any reference to case law, (ii) the failure of HREOC to refer to the principle of ‘least interference’, (iii) the failure of HREOC to refer to the decision of the Supreme Court of the United States in Gonzales v O Centro Espirita Beneficente Uniao do Vegetal 546 US 2006 and, finally, (iv) what he described as the “unexplained shift” in position of HREOC from the view expressed by Ms Farrer, the Investigation/Conciliation Officer in a memorandum to Ms Gonzalez, the Principal Investigation/Conciliation Officer in April 2006 to the decision of the President of HREOC. None of the matters identified by the applicant provide any basis for review under this ground. The question posed by this ground of review is whether there was evidence or other material to justify the decision made by HREOC. There clearly was.
In any event, as set out earlier in these reasons for decision, it is neither necessary nor appropriate to analyse the reasons for decision of HREOC in the manner contended for by the applicant. HREOC’s reasons are meant to inform; they “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. The failure of HREOC to refer to any one of the matters identified by the applicant does not, of itself, identify error.
The contentions also fail for other reasons. First, the question to be considered and answered by HREOC was a question posed by the HREOC Act but it was also a question, when correctly posed, which was to be determined on the particular facts before it. The failure to refer to case law or a particular decision is only relevant if it records a principle of general application which was required to be applied by HREOC which it can be shown HREOC failed to apply or act in accordance with. None are identified.
Secondly, there is the absence of reference, in the decision of HREOC, to the decision of the United States Supreme Court in Gonzales. As Counsel for the Commonwealth submitted, although the Supreme Court of the United States was considering a decision to schedule a sacramental tea plant from the Amazon region under the Controlled Substances Act (US) because of its hallucinogenic properties, the decision is of no assistance to the issues in the present case. The statutory provisions were different, the onus provisions were different and the nature of the proceedings was different. In general terms, the Controlled Substances Act (US) prohibited the Federal Government from substantially burdening a person’s exercise of religion unless the government demonstrated that the application of the burden to the person represented the least restrictive means of advancing a compelling interest. The Court did not reach the least restrictive means issue. The injunction against the prohibition was granted because the government had failed to discharge its burden of proof of advancing a compelling interest.
Thirdly, the applicant’s reference to what he described as the “unexplained shift” in position of HREOC from the view expressed by Ms Farrer, the Investigation/Conciliation Officer in a memorandum to Ms Gonzalez, the Principal Investigation/Conciliation Officer in April 2006 to the decision of the President of HREOC is misconceived on three bases: it fails to take account of the decision; it fails to take account of the record of the decision making process and it reflects a misunderstanding of that process.
The decision making process of the President was recorded in the following terms:
“I have considered the reasons set out in the letter to Dr Hanes. I agree the complaint should be declined. I have signed the letter to Dr Hanes and the letter to Mr Holton. JvD 14/11/06”
It was the decision of the President of HREOC. The HREOC Act required it to be so. The views of officers within HREOC were ultimately irrelevant. It cannot be said that the President simply adopted the view of a subordinate. None of those officers was the decision maker. Moreover, there was nothing unusual or untoward in the process adopted by HREOC. It is common practice for administrative decision makers to have officers prepare memoranda and drafts of a decision for the consideration and approval of the decision maker. The applicant’s reference to the expression of different views by officers of HREOC, who were not the decision maker, does not provide any basis for review.
GROUND (4): PROCEDURES REQUIRED BY LAW NOT OBSERVED: S5(1)(B) OF THE ADJR ACT
Section 5(1)(b) of the ADJR Act provides that a decision may be reviewed on the ground that “procedures that were required by law to be observed in connection with the making of the decision were not observed”. This ground of review has been described as ‘procedural ultra vires’. It is concerned with determining the validity of an act done in breach of a statutory provision. Any distinction between directory and mandatory requirements is not relevant: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390-391. The acts to which this ground of review is directed are usually requirements laid down by an Act to reach a decision within a certain period of time or after a period of consultation.
The applicant has not identified a procedure prescribed by the HREOC Act which HREOC has not observed. Instead, under this heading, the applicant asserts that HREOC failed to perform its functions under ss 11(1)(f) and 20(1) of the HREOC Act in that it failed to give proper consideration to the evidence before it. In support of that contention, the applicant referred to what he described as 10 matters of “key evidence” that the President of HREOC had failed to consider. The matters were said by the applicant to be:
(1)the plant was non addictive;
(2)the plant was non toxic;
(3)there were no health warnings in relation to the plant;
(4)the lack of experience and expertise in the Department;
(5)the Department breached s 52E(1)(b) of the TGA in that the Department failed to take into account “the risks and benefits associated with the use of a substance”;
(6)the Department placed the plant into Schedule 9 for reasons other than public health and safety
(7)possible bias in HREOC’s decision making process. At the hearing, the applicant disavowed any suggestion that HREOC was biased;
(8)the NDPSC was motivated by improper purposes including “religio-political factors”;
(9)evidence of “behind the scenes” discussions. Three examples were provided. First, an internal review document provided by the TGA in which a Dr P Chipman stated that “Customs might have expressed concern to the TGA by way of telephone calls and it is possible that telephone discussions between the two agencies may not have been filed”. The second example provided as evidence of possible collusion or interference in the decision making process was the “surprisingly prompt knowledge by the NDPSC … of US Congressional Bill HR 5607 at the 15-17 October, 2002 meeting of the NDPSC, which Bill had only been introduced into Congress on the 10th October 2002”. The third example was an assertion by the applicant that he “was advised by a US journalist that information pertaining to Australia’s prohibition of [the plant] may have been leaked to the US Drug Enforcement Agency” and “[t]his may have occurred just prior to the unsuccessful US Bill HR 5607 which sought to prohibit [the plant] in that country”;
(10)the concern expressed in the Australian Parliament by Lindsay Tanner that the TGA was unable to identify an authorative scientific source for the plant when considering whether it should be included in Sch 9 and the fact that this was not referred to by HREOC in its decision.
The applicant’s contention that HREOC failed to perform its functions under ss 11(1)(f) and 20(1) of the HREOC Act in that it failed to give proper consideration to the matters listed in the preceding paragraph establishes no basis for review under this heading. Neither the general allegation nor any of the specific matters identified by the applicant concerns a procedure prescribed by the HREOC Act which HREOC has not observed. That is reason enough to conclude that the asserted ground is not made out.
Further, the factual bases for the applicant’s contention were not established. First, the record of the decision, on its face, summarised the applicant’s complaint, the Department’s response to the complaint and the applicant’s comments on the Department’s response. The decision records that HREOC considered the key elements of the matters listed by the applicant. In particular, the decision refers expressly to such matters as the applicant’s contention that the plant is not addictive and is not toxic, his contentions about the lack of health warnings, and his contentions about the expertise of the Department. The decision expresses conclusions about the bases upon which the NDPSC acted in reaching the conclusion that it did.
Secondly, HREOC’s reasons for decision are not required to deal with every aspect of the material provided by the Department or the applicant: Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 38. It follows that, even if the applicant had been able to show that the decision did not make express reference to some aspect of the material that he had advanced, this, standing alone, would not establish that HREOC had not observed the procedures required of it by law.
Thirdly, HREOC’s decision was a decision clearly open to it on the material before it. Much of the applicant’s complaints, both in respect of the complaint about failure to comply with procedures and more generally, proceeded from the position that it was enough for him to demonstrate reviewable error to show that HREOC had accepted the NDPSC’s view, and thereby rejected the applicant’s view, of the plant. That premise is not right. In general terms, the NDPSC considered that the plant, as a known hallucinogenic substance with potential hazards and risks both to users and the wider community, posed a serious risk to public health and safety. The applicant held a contrary view. He claimed that there was no evidence that the plant was a risk to national security, public safety, health or morals; that it had not been demonstrated that the plant was a hallucinogen; that no deaths, injuries, hospitalisation or serious complications had been linked to the plant and that there was no evidence that the plant could become a substance of abuse through its importation into Australia. The question for HREOC was not which of these views was to be preferred. The immediate question, as pointed out earlier in these reasons, was whether to continue to inquire into the complaint. That, in turn, invited attention to whether the decision of NDPSC was inconsistent with or contrary to a human right. That was the question that HREOC considered and determined.
Many of the matters relied upon by the applicant were cast in terms that appeared to be directed to seeking a review of the merits of the decision made by HREOC but, on further analysis, were directed to challenging the initial decision of the NDPSC to place the plant into Sch 9 of the Poisons Standard. Merits review of any decision is beyond the duty and jurisdiction of this Court in the exercise of its judicial review power. In the present case, the position is further removed - the applicant, in substance if not in form, seeks merits review of a decision that is not before the Court. That is not permitted or possible.
Some of the matters raised by the applicant appeared to be a complaint that HREOC took into account irrelevant considerations or that HREOC was motivated by improper purposes. These matters may raise other and different grounds of review, namely s 5(1)(e), (2)(a) and 2(c) of the ADJR Act. However, these matters may be put to one side. There is nothing to suggest that HREOC exercised its power to not to continue to inquire into the complaint made by the applicant under s 20(2)(a) of the HREOC Act for a purpose other than that for which it was conferred. Further, there is no evidence that HREOC was motivated by “factors other than legal factors, such as the time-consuming nature and complexity of this case, the lack of prospects for a reasonable settlement and a desire to remove the case from the Commission’s ongoing commitments” or that NDPSC was motivated by improper purposes including “religio-political factors”.
GROUND (5): HREOC TOOK INTO ACCOUNT AN IRRELEVANT CONSIDERATION IN THE EXERCISE OF THE POWER: S 5(1)(E) AND 5(2) OF THE ADJR ACT
The applicant contended that HREOC took into account an irrelevant consideration. The ‘irrelevant consideration’ was described by the applicant as the ‘slippery slope’ argument. That assertion fails at the outset.
HREOC addressed the ‘slippery slope’ argument by summarising the positions adopted by NDPSC and the applicant in relation to the matter in the following terms:
“The Department states that in addition to being a consideration that is not currently required under the TGA Act and the Regulations in the scheduling of substances in the Poisons Standard, the result would be catastrophic if, despite the strict scheduling of substances (such as Schedule 9 substances), individuals would be allowed to use hallucinogenic substances such as LSD and cannabis for religious reasons or beliefs, despite the known health and safety risks of these substances. The Department maintains that an individual would not only risk harm, injury or death to himself, but to other members of the public as well.
…
[The applicant denies] that if the plant were made available for religious purposes that this would contribute to a ‘slippery slope’ whereby ‘others could seek the de-scheduling of other hallucinogenic substances.’”HREOC considered the parties’ respective position as part of its evaluation of the information provided to it. At its highest, the argument was a factor put to HREOC by the NDPSC to which the applicant responded. HREOC’s treatment of the ‘slippery slope’ argument does not reveal that it took into account an irrelevant consideration in the exercise of its power.
Accordingly, this ground also fails.
DISPOSITION
The application should be dismissed with costs.
ORDER
1. The application be dismissed.
2. The applicant pay the respondents’ costs of the application.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon. Associate:
Dated: 21 May 2007
Counsel for the Applicant: In person Counsel for the First Respondent The First Respondent did not appear Counsel for the Second Respondent: Mr C Horan Solicitor for the Second Respondent: Australian Government Solicitor Date of Hearing: 1 May 2007 Date of Judgment: 21 May 2007
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