Keach v Minister for Health and Human Services

[2006] TASSC 28

[2006] TASSC 28

CITATION:              Keach v Minister for Health and Human Services [2006] TASSC 28

PARTIES:  KEACH, Anthony Charles
  v
  MINISTER FOR HEALTH AND HUMAN SERVICES

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  LDR M81/2005
DELIVERED ON:  21 April 2006
DELIVERED AT:  Hobart
HEARING DATE:  30 March 2006
JUDGMENT OF:  Underwood CJ

CATCHWORDS:

Administrative Law – Judicial review – Grounds of review – Relevant considerations – Whether failure to take into account relevant consideration.

Judicial Review Act2000 (Tas), ss17(2)(e), 20(b).

Aust Dig Administrative Law [1035].

Administrative Law – Judicial review – Grounds of review – Error of law – Whether any evidence of certain findings of fact.

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, applied.
Judicial Review Act2000 (Tas), s17(2)(f).

Aust Dig Administrative Law [1030].

Administrative Law – Judicial Review – Generally – Discretion to refuse relief even if error established – When to refuse relief – Exercise in futility.

Adelaide Bay Seafoods Pty Ltd v Chief Magistrate A G Shott [2005] TASSC 30, followed.

Judicial Review Act 2000 (Tas) , s27.

Aust Dig Administrative Law [1001].

REPRESENTATION:

Counsel:
             Applicant:  S B McElwaine
             Respondent:  T J Ellis SC
Solicitors:
             Applicant:  S B McElwaine
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2006] TASSC 28
Number of paragraphs:  28

Serial No 28/2006
File No LDR M81/2005

ANTHONY CHARLES KEACH
v
MINISTER FOR HEALTH AND HUMAN SERVICES

REASONS FOR JUDGMENT  UNDERWOOD CJ

21 April 2006

Introduction

1. The Poisons Act 1971 ("the Act"), s52, makes it an offence to grow a plant of the species Papaver somniferum (opium poppy) without a licence from the Minister. The Act, s53, provides:

"The grant or refusal of a licence under this Part lies in the discretion of the Minister."

1. The applicant, trading as Keach Pastoral Company, applied for a licence pursuant to s53. The Act, s24, empowers the Minister to delegate to the persons identified in subs(1), the discretion he or she has to grant a licence to cultivate opium poppies. The applicant made an application to the Minister for a licence. The Minister delegated the exercise of the discretion to Mr Richard Bingham ("the delegate").

1. On 20 October 2005, the delegate declined to issue a licence to the applicant for the 2005 - 2006 poppy growing season.  The applicant now seeks a review of that decision in accordance with the Judicial Review Act 2000, s17(1). The application contains seven grounds, but one was abandoned at the hearing.

Some background material

1. There is a group of people known as the Poppy Advisory Control Board ("the Board").  The Board is described in these terms by the delegate in par1.1 of his decision:

"The [Board] is simply an administrative arm of Government.  It has no statutory existence, nor any formal role in the issue of licences under the Poisons Act 1971, but it oversees for practical purposes the development and control of Tasmania's poppy industry."

1. The Board recommended to the Minister that the applicant not be granted a licence.  The applicant held a licence in the 2004 - 2005 year, together with a contract with Tasmanian Alkaloids Pty Ltd, to grow poppies in accordance with that licence.  In return, Tasmanian Alkaloids agreed to buy the crop when it was harvested.  The Board alleged to the Minister that in the 2004 - 2005 year, the applicant grew 11.4 hectares of poppies in excess of that authorised by the licence and the agreement with Tasmanian Alkaloids, and that he did so in order to acquire a financial advantage.  The Board's advice to the Minister refers to the applicant's conduct as having a tendency to impact adversely on the Tasmanian and Australian licit opiates industry and internationally.  The advice expresses the view that the applicant is not a fit and proper person to hold a licence.

1. The applicant disputes that he grew 11.4 hectares of poppies in excess of the area authorised by the licence and the agreement, and denies that he is not a fit and proper person to hold a licence.

The delegate's decision

1. The material before the delegate and the Court includes the applicant's 2004 - 2005 application for a licence to grow 38 hectares and a supplementary application for 16 hectares, expressed to be a replacement for lost hectares from "Pine-One".  By use of grid references, the licence identifies two properties at Cressy owned by the applicant.  The contract with Tasmanian Alkaloids describes the areas as being that "on which it has been agreed between the parties that the poppy crop is or will be sown as detailed in the licence".  It is apparent from the documentation that a necessary prerequisite to obtaining a licence is a contract with one of the two processors in Tasmania.  It is a term of the contract that the contract comes to an end if a licence is not granted.  The licence for 2004 – 2005 does not describe any area.  However, the advice from the Board refers to other documentation from which it may be concluded that the application for 16 hectares was not additional to the 38 hectares. 

1. However, it is not necessary to investigate this dispute any further because the delegate did not inquire into whether the Board was right or whether the applicant was right.  He said in his decision, par2.1, that:

"It is not my task to resolve contested factual issues, nor to investigate the contractual dispute between your clients and Tasmanian Alkaloids.  My task is to consider whether a licence should be granted to Mr Keach for the 2005-06 growing season." [The reference to "your clients" is a reference to the applicant.]

1. The delegate's consideration of this question led him to make his own inquiry into the applicant's conduct during the 2004 – 2005 growing season. 

1. Although there was controversy between the applicant and the Board about this matter, the delegate accepted the applicant's statement that regardless of the documentation, he had an oral agreement with Tasmanian Alkaloids to grow 41 hectares of poppies in the 2004 – 2005 season.  In his reasons, the delegate referred to the different methods of measuring the area sown.  One method is by a meter reading, taken from a drill area meter fixed to a seed drill.  I do not pretend to understand how this works, but it is not necessary for me to do so in order to determine the legal issues raised by this application.  Another method of measuring the area sown is to conduct a "crop perimeter survey" by the use of a GPS or by other accepted surveying methodology.  As I understand it, this method does not take into account all the areas inside the perimeter in which no seed was planted for various reasons.

1. The applicant maintained that the drill area meter showed that 41 hectares had been sown.  Three other surveys were undertaken.  The one that was most favourable to the applicant's contention  was commissioned by him.  The applicant pressed upon the delegate detailed reasons why the surveys should not be taken at face value and detailed deductions should be made from them.  The delegate accepted these deductions.  He concluded that after accepting the applicant's explanations and calculations, the extent of error between the drill area meter reading and the surveys varied from 7 per cent to 25 per cent, depending on the survey used.  He also found, "even applying [the applicant's] own survey and explanations on these issues an area of 43.84 hectares was sown."  In the course of his submissions, Mr McElwaine, who appeared as counsel for the applicant, contended that on the face of the decision there was a small error in that figure, but I am not sure that this is right.  In any event, that is not material to a determination of the application.  The delegate reached the conclusion that more than the agreed area had been sown, but he was unable to reconcile the difference between the 41 hectares that the applicant said was recorded by the meter and the various surveys, even after taking into account the deductions from those surveys that the applicant pressed upon the delegate.  There was ample evidence entitling him to so conclude.

1. Having made these observations and findings, the delegate said, at par2.4 of his reasons for decision:

"Your client says that the variation evidenced by his figures is within industry limits given the well known differences between GPS surveys and drill area metre [sic] readings, and I accept that it may well be that similar variations have occurred in the past.  However, given the standard which I believe should apply to these matters, I conclude that Mr Keach must either have been careless or negligent in sowing an area greater than that agreed with Mr Lindsay [of Tasmanian Alkaloids], or must have intended to deceive Tasmanian Alkaloids so he could receive payment for a greater amount of poppy material than he was originally contracted to provide."

1. The nub of the applicant's complaint lies in this paragraph.  First, Mr McElwaine complained that the descriptors of the conduct, careless or deceitful, were made "in a vacuum".  However I do not think this is right.  The delegate found that in fact an area greater than that agreed and licensed was in fact sown, and he was entitled to conclude that the over-sowing was a result of either carelessness or deceit.  Carelessness is a relative word, its quality being determined by the standard which is prescribed.  Second, and more importantly from the perspective of judicial review, Mr McElwaine submitted that the delegate apparently accepted that often there were differences between the drill area meter readings and GPS surveys, and that variations similar to the one he detected in this case had occurred, inferentially, without demur, in the past.  The submission was that notwithstanding this, the delegate went on to find that by over-sowing, the applicant had been either careless or deceitful, given the standards the delegate believed should be applied in these cases.  Mr McElwaine contended that in reaching this conclusion, the delegate must have overlooked some material provided to him by the "Manager" of the Board after the former had circulated a draft of his decision to interested parties and invited comment.  This material appears in the following paragraph of a letter from the manager of the Board dated 19 October 2005, as follows:

"Because alkaloid poppies are a large-scale agricultural crop in Tasmania it is neither practical nor efficient to be limiting the extent of a licence on a per plant basis.  The method in use now and for the past 30 plus years is area, measured in hectares or part thereof – of crop sown (as measured by a normal farm sowing drill area meter).  It has not nor ever has been the area of a farm or the area of a paddock (fence to fence) or any other variation you can think of.

This is the standard expected from all applicants for poppy licence and any proven new technology is welcomed by the Board and will be taken into account."  [Emphasis added.]

1. The letter concludes with this paragraph:

"While [the Board] may sometimes check measure areas, it is somewhat rare and not seen as particularly relevant to maintaining security.  What is important is observance of the company – grower 'growing agreement' (contract) by all parties."

1. On behalf of the applicant, Mr McElwaine submitted that had the delegate had regard to the foregoing statements describing the industry standard, he would not have described the applicant's conduct as either careless or deceitful, and would not have concluded, as he did, in his decision, par3:

"I find that it is desirable that a high standard of competence and probity should apply to participants in the contract and regulatory regime for a crop which is otherwise illegal, and for an industry which depends for its continued existence on the maintenance of the confidence of the International Narcotics Control Board established under the Single Convention for the Control of Narcotic Drugs.

I find that on balance Mr Keach's actions in the 2004 – 05 growing season did not meet the standard which should be required of those farmers who choose to participate in Tasmania's poppy industry.

I find that in that season, Mr Keach sowed an area between 7 and 25 per cent larger than that for which he was contracted, and in doing so he must have either been careless or negligent or he must have intended to deceive Tasmanian Alkaloids and [the Board] presumably so he could receive payment for a greater amount of poppy material than he was contracted to provide.

The general conditions applying to the industry in the 2004 – 05 growing season were such as to require substantial reductions in growing areas sown, due to over supply in previous seasons.  This situation was well known to Mr Keach as a long standing participant in the industry.  His actions were thus more culpable than would have been the case in the situation where the industry was expanding."

The grounds of review

1. The first ground of review alleges that the delegate failed to take into account a relevant consideration, namely the evidence that the accepted method for measuring an area of land sown is the farm sowing drill area meter which, in this case, recorded the area sown as 41 hectares. 

1. This ground relies upon the Judicial Review Act, s17(2)(e), that there was an improper exercise of power, and s20(b), failing to take a relevant consideration into account in the exercise of the power. In my view, this ground is not made out. First, the statement made by the Board was amongst the material that was before the delegate prior to making his final decision and there is nothing written by the delegate to indicate that he did not read it and take it into account. Second, and more importantly, the delegate's acceptance that similar variations between GPS surveys and drill area meter readings had occurred in the past, indicates that he was well aware that the standard expected by the Board was compliance with the drill area meter reading. It is clear that the delegate took the view that this was simply not good enough, having regard to the nature of the crop, the international standing of Tasmania with respect to this industry, and the need to maintain the highest standards of probity. It must not be overlooked that the delegate was exercising the discretion of the Minister. It is for the Minister, when he or she is exercising a discretion under the Act, s53, not the Board, to set the standards with which a participant in the poppy growing industry must comply. The delegate, exercising the ministerial discretion, made it quite clear that, in his view, the "near enough is good enough" standard that satisfied the Board, was not a sufficiently high standard for the Minister. This is apparent from the delegate's reference to "the standard which I believe should apply" immediately after the reference to variations that had occurred in the past. There is no basis for concluding that there had been an improper exercise of power in that the delegate failed to take a relevant consideration into account in the exercise of the power.

1. Mr McElwaine conceded that the following four grounds of appeal restated the first argument a in different way and that the same principles were applicable. He accepted that it was not an error of law to exercise the discretion conferred by the Act, s53, against an applicant who did not have high standards of competence and/or probity or was unreliable, but by ground 5, submitted that error occurred in that the delegate failed to apply any appropriate test against which to measure whether the applicant had been either careless or dishonest. I am uncertain how this argument fits with the grounds of review set out in the Judicial Review Act, s17(2), but the argument fails because the delegate made it quite clear that he found that the area sown was in excess of that agreed, and that there was an obligation on a licence holder to make sure that this did not occur. Hence, he concluded that as it did occur, it could only have occurred through negligence and/or deceitfulness. In so concluding, he made it clear that an industry standard that accepted that the area sown could be measured by a means which might result in sowing more than 7 per cent and 25 per cent of the area licensed was not appropriate.

1. The remaining ground of appeal asserts that there was an error of law in that the delegate concluded that the applicant must have been careless or deceitful:

·   without making a finding how a reasonable person would have measured the area sown; and

·   by failing to take into account the evidence, relied upon by the applicant, of the reading of the drill area meter, being an industry accepted method of measurement.

1. The delegate did take into account evidence of the meter reading relied upon by the applicant.  He expressly referred to it in par2.4 of his reasons when he said, "[The applicant] says that both the amount of seed provided by Tasmanian Alkaloids, and the drill area meter reading confirmed that a total of 41 ha was sown."  However, he did not accept that as accurate evidence of the fact because he said, also at par2.4, "Whilst your client maintains that no more than the licensed 41 ha was sown, the conclusion seems inescapable that a larger area was sown."  It is of course, not for this Court to determine whether that was an appropriate conclusion to reach, absent legal error specified by the Judicial Review Act, s17(2).

1. It is difficult to relate this ground to any of the grounds upon which the applicant is entitled to rely by virtue of that subsection.  The law imposed no obligation on the delegate to make a finding of how a reasonable person would have measured the area sown.  He was not making a decision about the tort of negligence which would have called for a determination of the standard of care of a reasonable person in the circumstances of the applicant.  He was simply using alternative adjectives to describe the applicant's conduct which he found included sowing a greater area than that for which he was licensed.  For the reasons already given it is clear that the delegate did have regard to the industry standard and clearly found it wanting. 

1. Mr McElwaine submitted that such a conclusion reflected an error of law in the sense that there was absolutely no evidence upon which to base it.  The grounds of appeal upon which the applicant may rely are limited by the Judicial Review Act, s17(2). Although s17(2)(h) provides a ground of appeal that "there was no evidence or other material to justify the making of the decision", that ground is limited by the provision of s21 which provides that:

"The ground mentioned in section 17(2)(h) … is taken not to be made out ¾  

(a)unless ¾

(i)the person who made, or proposed to make, the decision was required by law to reach the decision only if a particular matter was or is established; and

(ii)there was no evidence or other material (including facts of which the person was or is entitled to take notice) from which the person could or can reasonably be satisfied that the matter was or is established; or

(b)unless ¾

(i)the person who made, or proposes to make, the decision based, or proposes to base, the decision on the existence of a particular fact; and

(ii)the fact did not or does not exist."

1. Mr McElwaine did not submit that the conditions prescribed by that section could be made out on this appeal, but relied upon the Judicial Review Act, s17(2)(f), namely, that the decision involved error of law in that there was no evidence that the applicant intended to deceive or was careless. There has been some recent debate in the High Court about whether this ground, which originated in the common law, has survived the enactment of the Judicial Review Act, s17(2)(h), and its equivalent in other jurisdictions. See Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222 and Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59. However, as I held in Lark v Nolan [2006] TASSC 12, I think that the law is still as stated by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. In that case his Honour set out some authorities for the proposition that whether there is any evidence of a particular fact is a question of law and went on to say that the same proposition applied to whether a particular inference could be drawn from facts found or agreed. He said at 355 :

"This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150, at pp 155, 157, 160. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v Maryborough Mining Warden (1975) 132 CLR 473, at pp 481, 483.

But it is said that '(t)here is no error of law simply in making a wrong finding of fact':  Waterford v The Commonwealth (1987) 163 CLR 54, per Brennan J at p 77. Similarly, Menzies J observed in Reg v The District Court; Ex parte White (1966) 116 CLR 644, at p 654:

'Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record.  To establish some faulty (eg illogical) inference of fact would not disclose an error of law.' 

Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law.  So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place."

1. It could not be said in this case that a finding that the applicant was either careless or deceitful was an inference or conclusion for which there was no evidentiary basis.  The fact, based upon the survey evidence and found, was that in 2004 – 2005 the applicant sowed an area in excess of that for which he was licensed.  The delegate was entitled to conclude that this was due to carelessness or deceit.  Even if it might be said that that conclusion is wrong, or one upon which minds might differ, as Mason CJ observed, "there is no error of law in making a wrong finding of fact".  Nor for the same reasons can it be said that the delegate's decision was one that no delegate, acting reasonably, could have made.  Ground 6 is not made out. 

1. In making submissions in reply, Mr McElwaine submitted that the delegate's decision reflected unequal treatment and was therefore erroneous.  The argument put was that the standard imposed upon the applicant was more stringent than that imposed on other licence holders, and this unequal treatment constituted reviewable error.  Mr McElwaine did not identify which paragraph of the Judicial Review Act, s17(2), applied to this argument, but there are suggestions in the authorities that a decision reflecting unequal treatment could be an improper exercise of power within the meaning of s17(2)(e) in that it was a decision that no reasonable person would have made. See Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Live-Stock Corporation (1990) 96 ALR 153 at 167 – 168. There are also suggestions in some cases that unequal treatment might fall within ss17(2)(e) and 20(i) as being an abuse of power. See Sunshine Coast Broadcasters Ltd v Duncan (1988) 83 ALR 121 at 130 – 131. However, as is acknowledged in Aronson, Dyer and Groves, Judicial Review of Administrative Action (3 ed) at 348, presently, there is no more than "a move towards recognising 'unequal treatment' as a review ground in its own right."  In any event, there is no material upon which to base a claim of unequal treatment other than the statement by the Board, which I have set out at the end of par13 of these reasons for judgment.  There was no material before the delegate to show what standards the Minister or his or her delegates had in fact imposed upon other applicants for a licence, or indeed, whether the Minister or a delegate, as opposed to the Board, had previously considered this issue at all.

Futility

1. Although I have dealt with the submissions made on behalf of the applicant, the short answer to the application for review is, as was submitted by Mr Ellis SC on behalf of the respondent, even if there has been a reviewable error, as the 2005 – 2006 growing season has now passed, it would be an exercise in futility to grant any relief.  With respect to the discretionary refusal of relief, I venture to repeat what I said in Adelaide Bay Seafoods Pty Ltd v Chief Magistrate A G Shott [2005] TASSC 30 at pars28 – 30:

"The applicant seeks an order that the decision of the learned Chief Magistrate to cancel the fishing licence (abalone dive) be quashed. For the respondent, Mr Turner submitted that even if the applicant established that error vitiated the decision to quash the licence, the Court has a discretion whether or not to grant any relief pursuant to the powers conferred by the Review Act. Mr Turner further submitted that in the circumstances of this case, the Court should decline to make any order.

The power to make the order that the applicant seeks is enacted by the Review Act, s27(1) in discretionary terms, as being an order that the Court 'may make'. Prima facie, such permissive statutory expression 'operates according to [its] ordinary natural meaning', per Ward v Williams (1955) 92 CLR 496 at 505; see also Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 138.

Although the Commonwealth equivalent to the Review Act, s27, the Administrative Decision (Judicial Review) Act 1977, s16, carries the additional permissive words 'in its discretion' after the word 'may', the reasoning of the Full Court of the Federal Court in Lamb v Moss (1983) 49 ALR 533 at 546 - 549 is apposite to the Review Act, s27(1). This reasoning supports the proposition that the grant of relief conferred by the Review Act, s27(1), is discretionary. See also Visy Board Pty Ltd v Attorney-General (Commonwealth) (1983) 51 ALR 705 at 712."

1. Even if reviewable error could be identified, it would not be appropriate to grant any relief, for such relief would have no effect.  The growing season in respect of which a licence was sought has passed.  No order of this Court can change that state of affairs.  No order of this Court could result in the applicant obtaining a licence to grow poppies for the 2005 – 2006 season.  Mr McElwaine submitted that I could exercise the power conferred by the Judicial Review Act, s27(1)(c), and declare the rights of the applicant. For the reasons I have given, the applicant has no rights in respect of which a declaration should be made.

1. The application is dismissed.