Lusk v Tong, Delegate of the Commonwealth Ombudsman
[2019] FCCA 1335
•22 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LUSK v TONG, DELEGATE OF THE COMMONWEALTH OMBUDSMAN | [2019] FCCA 1335 |
| Catchwords: ADMINISTRATIVE LAW – Challenge to a decision of a delegate – whether the proper respondent to the proceeding is the decision-maker who exercised delegated authority to make the decision in question or the repository of the power who delegated the power to the person who made the decision – operation of s.34AB of the Acts Interpretation Act 1901. |
| Legislation: Acts Interpretation Act 1901, s.34AB Administrative Decisions (Judicial Review) Act 1977, ss.3, 5, 11, 13, 13A Evidence Act 1995, s.190 |
| Cases cited: Ansett Transport Industries (Operations) Pty Ltd & Anor v Wraith & Ors (1983) 48 ALR 500 Giddings v Australian Information Commissioner (2017) 156 ALD 601 |
| Applicant: | MICHAEL ANDREW LUSK |
| Respondent: | SHIRLEY TONG, DELEGATE OF THE COMMONWEALTH OMBUDSMAN |
| Other Party | COMMONWEALTH OMBUDSMAN |
| File Number: | SYG 1354 of 2017 |
| Judgment of: | Judge Cameron |
| Hearing date: | On the papers |
| Date of Last Submission: | 25 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 22 May 2019 |
REPRESENTATION
| The Applicant in person |
| Solicitors for the Respondent: | Australian Government Solicitor |
| Solicitors for the Other Party: | Australian Government Solicitor |
ORDERS
The Commonwealth Ombudsman replace Shirley Tong as respondent.
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1354 of 2017
| MICHAEL ANDREW LUSK |
Applicant
And
| SHIRLEY TONG, DELEGATE OF THE COMMONWEALTH OMBUDSMAN |
Respondent
| COMMONWEALTH OMBUDSMAN |
Other Party
REASONS FOR JUDGMENT
INTRODUCTION
By an application filed on 28 April 2017 the applicant seeks an order under the Administrative Decisions (Judicial Review) Act 1977 (“ADJR Act”) that the respondent (“Delegate”) furnish an additional statement of reasons in respect of:
a)her decision made on 31 March 2017 to not investigate his complaint about the Department of Health (“Department”); and
b)her finding that it was reasonable for the Department to administer the Therapeutic Goods Act 1989 (“TG Act”) on the basis that artificially fluoridated reticulated drinking water was not “therapeutic goods” as defined in that Act.
He also seeks a consequential order for an extension of time in which to apply for judicial review of the Delegate’s decision to a period of 28 days after the additional reasons have been furnished or, if unsuccessful in the present application, to 28 days after judgment.
The parties agreed that pursuant to r.15.03 of the Federal Circuit Court Rules 2001, the matter would be determined without an oral hearing. No express agreement was articulated concerning how the various documents referred to by the parties in their submissions should be treated in an evidentiary sense. In circumstances where no party objected to another’s expressed reliance on a particular document or filed affidavit and where one of the purposes of a decision on the papers is the avoidance of expense, I consider it appropriate to dispense pursuant to s.190(3) of the Evidence Act 1995 with the application to this case of the provisions of divs.3, 4 and 5 of pt.2.1 and pts.2.2 and 2.3 of the Evidence Act in relation to the documents and affidavits relied on by the parties and to treat them as if they had been adduced into evidence.
RELEVANT LEGISLATION
ADJR Act
Section 5(1) of the ADJR Act enables a person who is aggrieved by a decision to which the ADJR Act applies to make an application to this Court for an order of review in respect of that decision.
Pursuant to ss.13(1) and (2) of the ADJR Act, a person who is entitled to make an application under s.5(1) is also entitled to a written statement setting out the decision-maker’s finding and reasons. That section relevantly provides:
13 Reasons for decision may be obtained
(1) Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Federal Court or the Federal Circuit Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him or her to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.
(2) Where such a request is made, the person who made the decision shall, subject to this section, as soon as practicable, and in any event within 28 days, after receiving the request, prepare the statement and furnish it to the person who made the request.
The Court may order a person who has provided such a statement to furnish an additional statement or statements containing further and better particulars if the initial statement of reasons is inadequate. In this regard, s.13(7) of the ADJR Act provides:
(7) If the Federal Court or the Federal Circuit Court, upon application for an order under this subsection made to it by a person to whom a statement has been furnished in pursuance of a request under subsection (1), considers that the statement does not contain adequate particulars of findings on material questions of fact, an adequate reference to the evidence or other material on which those findings were based or adequate particulars of the reasons for the decision, the court may order the person who furnished the statement to furnish to the person who made the request for the statement, within such time as is specified in the order, an additional statement or additional statements containing further and better particulars in relation to matters specified in the order with respect to those findings, that evidence or other material or those reasons.
Section 11(1)(c) of the ADJR Act provides that an application to the Court for an order for review shall be lodged within the prescribed period or within such further time as the Court allows. An extension of time can be granted before or after the expiration of the prescribed period. Section 11(3) relevantly provides:
11 Manner of making applications
…
(3) The prescribed period for the purposes of paragraph (1)(c) is the period commencing on the day on which the decision is made and ending on the twenty‑eighth day after:
(a) if the decision sets out the findings on material questions of fact, refers to the evidence or other material on which those findings were based and gives the reasons for the decision—the day on which a document setting out the terms of the decision is furnished to the applicant; or
(b) in a case to which paragraph (a) does not apply:
(i) if a statement in writing setting out those findings, referring to that evidence or other material and giving those reasons is furnished to the applicant otherwise than in pursuance of a request under subsection 13(1) not later than the twenty‑eighth day after the day on which a document setting out the terms of the decision is furnished to the applicant—the day on which the statement is so furnished; …
Ombudsman Act
Section 6(1)(b)(iii) of the Ombudsman Act 1976 provides that the Ombudsman may decide not to investigate the action if, in his or her opinion:
… an investigation, or further investigation, of the action is not warranted having regard to all the circumstances.
Acts Interpretation Act
Section 34AB of the Acts Interpretation Act 1901 relevantly provides:
34AB Effect of delegation
General
(1) Where an Act confers power on a person or body (in this section called the authority) to delegate a function, duty or power:
…
(c) a function, duty or power so delegated, when performed or exercised by the delegate, shall, for the purposes of the Act, be deemed to have been performed or exercised by the authority …
BACKGROUND
Correspondence with the Department of Health
On 11 April 2014 the Therapeutic Goods Administration (“TGA”), an Australian regulatory authority which is part of the Department, published a “Behind the news” article on its website entitled “Fluoride in drinking water”. That article relevantly stated that fluoridation of drinking water in Australia was intended to prevent and repair dental caries and that water fluoridation was regulated by the states and territories. It also stated:
Fluoridated drinking water is not therapeutic goods within the definition of that term in the Therapeutic Goods Act 1989. The Therapeutic Goods Administration thus has no role in regulating fluoridated drinking water.
Mr Lusk deposed that he had conducted his own researches and had concluded that there were reasonable grounds to doubt that fluoridation of public water supplies in Australia was a public health intervention directed at reducing the prevalence of dental caries. He suspected that it had “some other purpose”.
Nevertheless, Mr Lusk deposed that it was his opinion that fluoridated reticulated drinking water fell within the definition of “therapeutic goods” under the TG Act and should be regulated accordingly. He deposed that he wished to know why it was the Department’s policy, apparently contrary to the TG Act, not to regulate fluoridated water as therapeutic goods.
On 18 December 2015 Mr Lusk wrote to the Secretary of the Department requesting, on public interest grounds, that he make a declaration pursuant to s.7 of the TG Act that substances used in the treatment of drinking water are “therapeutic goods” if they are used, advertised or presented for supply in association with claims for therapeutic use.
On 12 January 2016 the Acting Secretary of the Department advised Mr Lusk that the declaration he sought could not be made unless the Secretary was satisfied that fluoridated water was “therapeutic goods”. As the Department’s position as stated on the TGA website remained unchanged, she was unable to make such a declaration.
Mr Lusk sent further correspondence to the Department but was ultimately unsatisfied with its replies and ultimate lack of response.
Correspondence with the Ombudsman
On 26 January 2017 Mr Lusk lodged a complaint with the Commonwealth Ombudsman (“Ombudsman”) about the Department’s position in relation to fluoridated water. In his complaint, Mr Lusk requested that:
1. your Office investigate the Department’s failure or refusal to regulate the manufacture and use of fluoridated water in accordance with the TG Act; and, further to that investigation
2. you exercise your power pursuant to s.10A(1) Ombudsman Act 1976 (“Ombudsman Act”) to refer the following question to the AAT for an advisory opinion:
“Is the Commonwealth Department of Health required to regulate artificially fluoridated reticulated drinking water as ‘therapeutic goods’ pursuant to the Therapeutic Goods Act 1989?”.
On 10 February 2017 the Delegate, in her capacity as an Acting Director within the Ombudsman’s office, wrote to Mr Lusk and informed him that an investigation into his complaint was not warranted. She stated:
As you are aware, in 2013/2014, our office investigated a similar complaint about the department’s position that fluoridated water is not ‘therapeutic goods’. The department provided our office with information and documents about its position. Having considered that information, we decided the department’s position was reasonable and open to it.
Having had another look at the information provided by the department, I believe our decision was correct. Ultimately, the question of whether or not fluoridated water falls within the meaning of ‘therapeutic goods’ under the Act can only be resolved by a court. Nevertheless, in my view, the department demonstrated it has sufficiently turned its mind to the issue and its decision was reasonable.
…
In summary, I believe the department’s position that fluoridated water is not ‘therapeutic goods’ is reasonably open to it. … For these reasons, I have decided not to investigate your complaint.
On 24 February 2017 Mr Lusk wrote to the Delegate requesting that she reconsider her decision and, if she did but decided it was correct, that she furnish an additional statement of reasons setting out her findings on material questions of fact, as well as any evidence or materials relied on, pursuant to s.13 of the ADJR Act.
On 31 March 2017 the Delegate, now a Director within the Ombudsman’s office, affirmed her earlier decision and provided
Mr Lusk with a “Statement of reasons” for the purposes of s.13 of the ADJR Act which essentially repeated the reasons she had given earlier. Her statement of reasons also contained the following paragraph:
As you are aware, in 2013/2014, our office investigated a similar complaint about the department’s position that fluoridated water is not ‘therapeutic goods’. The department provided our office with information about its position. Having considered that information, we decided the department’s position was reasonable and open to it. That information was provided to this Office in confidence and is not required to be disclosed in these reasons.
On 4 April 2017 Mr Lusk wrote to the Delegate and requested “a supplementary statement of reasons which contains actual reasons”. The Delegate responded on 11 April 2017, indicating that she considered her statement of reasons provided on 31 March 2017 satisfied the requirements of s.13 of the ADJR Act and that she would not be providing a further statement.
On 28 April 2017 Mr Lusk commenced this proceeding.
APPLICATION
Grounds
In his application for review, Mr Lusk pleaded the following grounds:
1.A statement of reasons pursuant to s.13(1) Administrative Decisions (Judicial Review) Act 1977 must state:
(a)the decision-maker’s understanding of the relevant law;
(b) the facts on which the decision and any relevant findings depend; and
(c) the decision-maker’s reasoning processes leading to relevant findings and the decision,
subject to the decision-maker’s privilege not to include certain information as provided by s.13A Administrative Decisions (Judicial Review) Act 1977.
2. The statement of reasons furnished by the respondent under her letter dated 31 March 2017 does not contain adequate particulars of the respondent’s reasons in relation to either of:
(a) her finding that the Department of Health’s position that artificially fluoridated reticulated drinking water is not “therapeutic goods” within the definition of that term in the Therapeutic Goods Act 1989 is a “reasonable” position; or
(b) her decision not to investigate the applicant’s complaint about the Department of Health, and hence not to refer to the Administrative Appeals Tribunal for an advisory opinion under s.10A Ombudsman Act 1976 the question whether the Department of Health is required to regulate artificially fluoridated reticulated drinking water as therapeutic goods pursuant to the Therapeutic Goods Act 1989,
for the purposes of s.13(1) Administrative Decisions (Judicial Review) Act 1977.
3. The respondent’s privilege under s.13A Administrative Decisions (Judicial Review) Act 1977 not to include certain information in the statement of reasons furnished under s.13(1) of the same Act relevantly protects information contained in documents supplied in confidence by the Department of Health to the Commonwealth Ombudsman in relation to a past Ombudsman investigation. However, that privilege protects neither the respondent’s understanding of the relevant law nor the respondent’s reasoning processes.
4. The respondent’s finding and the respondent’s decision as indicated at paragraph 2, above, must follow from the respondent’s understanding of the relevant law and the respondent’s reasoning processes in light of the relevant facts. The respondent’s understanding of the relevant law and the respondent’s reasoning processes must be separate and independent from information the Department of Health supplied in confidence to the Ombudsman, otherwise the respondent would fail to act with the independence required (a) properly to perform the functions, or (b) properly to exercise the powers, conferred by the Ombudsman Act 1976, or (c) properly to determine whether it is appropriate to perform those functions or to exercise those powers.
5.Even if the respondent’s understanding of the relevant law or the respondent’s reasoning processes are substantially identical to an understanding of the relevant law or to reasoning processes specified in information the Department of Health supplied in confidence to the Ombudsman, that would not mean that the respondent’s understanding of the relevant law and the respondent’s reasoning processes thereby become “information ... supplied in confidence”. That is so because the respondent’s understanding of the relevant law and the respondent’s reasoning processes must, by virtue of the nature of the functions and powers conferred by the Ombudsman Act 1976, be separate and independent from the Department’s (or the Department’s legal advisors’) understanding of the relevant law and the Department’s (or the Department’s legal advisors’) reasoning processes.
Relief sought
Although the application included prayers for relief, what Mr Lusk sought was better and more fully articulated in his written submissions and was:
1.The Respondent within 28 days furnish the Applicant additional statements containing particulars of the reasons for the Respondent’s:
(a)finding that it is “reasonable” for the Department of Health to administer the Therapeutic Goods Act 1989 on the basis that artificially fluoridated reticulated drinking water is not “therapeutic goods” as defined in that Act; and
(b)decision not to investigate the Applicant’s complaint about the Department of Health,
such additional statements respectively to comprise a statement of the Respondent’s understanding of the relevant law, a statement of Respondent’s reasoning processes leading to the finding and to the decision, respectively, and, subject to the Respondent’s privilege pursuant to s. 13A of the Administrative Decisions (Judicial Review) Act 1977 not to include information supplied in confidence by the Department of Health to the Commonwealth Ombudsman, a statement of the evidence or other material on which the finding and the decision, respectively, depend.
2.The Applicant be allowed further time to apply to the Court for an order of review in respect of the decision mentioned at subparagraph 1(b), above; such further time to be allowed as follows:
(a)if the relief sought at paragraph 1, above, is granted – twenty eight days after the day on which the Respondent furnishes to the Applicant the additional statements of reasons; or alternatively
(b)if the relief sought at paragraph 1, above, is not granted – twenty eight days after the day on which the Court makes the order allowing further time.
3.The Commonwealth Ombudsman pay the Applicant’s costs of this proceeding.
RESPONSE
The Ombudsman opposed the application on the basis that Mr Lusk had been provided with adequate reasons. He sought an order that the application be dismissed with costs as well as an order for the removal of the Delegate as a party to the proceeding.
The Ombudsman also alleged that Mr Lusk’s request for an extension of time was unnecessary as, if Mr Lusk was successful in obtaining an order for additional reasons to be furnished, he would have 28 days from the date of the provision of those additional reasons in which to seek judicial review: s.11(3)(a) of the ADJR Act.
In his written submissions the Ombudsman also opposed, in the context of the Court refusing to order additional reasons, an extension of time within which Mr Lusk could seek review of his office’s decision not to investigate his complaint about the Department on the basis that such an application would lack merit.
REPLY
In his reply, Mr Lusk alleged that the Delegate’s statement of reasons was inadequate because it contained no particulars of her reasons in relation to:
a)her finding that the Department’s position was a reasonable one; or
b)her decision not to investigate his complaint about the Department.
APPLICANT’S SUBMISSIONS
Adequacy of the statement of reasons
Relying on the decision of the Federal Court in Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500, Mr Lusk submitted that a statement of reasons furnished for the purposes of s.13 of the ADJR Act had to set out the decision-maker’s understanding of the relevant law, the facts on which the decision-maker’s findings depended, and the reasoning process which led the decision-maker to make those findings.
Mr Lusk submitted that the Delegate’s statement of reasons did not contain adequate particulars of these matters and suggested that this was because she had considered non-disclosable information which had been supplied in confidence to the Ombudsman. He submitted that this was an issue which had been raised by implication in the Delegate’s statement of reasons, presumably a reference to the passage quoted above at [18], and expressed it as being:
… whether the Respondent is entitled to furnish the Applicant with a statement of reasons containing no real reasons because, prior to making her decision not to investigate the Applicant’s complaint about the Department of Health, she considered information supplied in confidence by the Department of Health to the Commonwealth Ombudsman.
Mr Lusk submitted (in his reply) that while s.13A of the ADJR Act meant that the Delegate was not required to disclose in her statement of reasons information which had been supplied in confidence, that privilege protected neither her understanding of the relevant law nor her reasoning process. He submitted that this was because s.13 of the ADJR Act required a decision-maker to set out his or her own actual reasons for the relevant decision.
Mr Lusk submitted that the Delegate’s statement of reasons was inadequate because she failed to state:
a)her own understanding of the relevant law; or
b)the non-confidential facts on which her relevant findings depended, particularly her finding concerning the Department’s position that fluoridated water was not “therapeutic goods” for the purposes of the TG Act; or
c)the reasoning processes which led her to make those findings.
Proper respondent to the application
Although Mr Lusk acknowledged that the Delegate’s decision is deemed to have been made by the Ombudsman because the Delegate was exercising powers conferred upon her by an instrument of delegation, he submitted that the same could not be said of her duty to furnish a statement of reasons because that had been wholly dependent upon the request he had made under s.13 of the ADJR Act. He argued that in addressing his request the Delegate had been exercising power conferred directly upon her by the AJDR Act, not delegated power given by an instrument of delegation made by the Ombudsman. Mr Lusk submitted that the Delegate was therefore the proper respondent to the application.
Mr Lusk also submitted that the Delegate was the proper respondent to the application because she was “the person who furnished the statement [of reasons]” within the meaning of s.13(7) of the ADJR Act.
Extension of time
Mr Lusk submitted that if he were to be successful in the present application, an extension of time would be required because the provision of the additional statement of reasons would not trigger a fresh prescribed period for the purposes of s.11(1)(c) of the ADJR Act. He submitted that this was because the statement of reasons would not constitute “a document setting out the terms of the decision” for the purposes of s.11(3)(a) of that Act.
Mr Lusk also submitted that it was not clear whether the provision of an additional statement of reasons would trigger an extension of the existing prescribed period because the statement would have been furnished in obedience to an order made under s.13(7) of the ADJR Act and not in response to a request made pursuant to s.13(1).
OMBUDSMAN’S SUBMISSIONS
Adequacy of the statement of reasons
The Ombudsman submitted that the substantive issue in the present proceeding was a straightforward one, namely, whether the statement of reasons provided to Mr Lusk was adequate. It was submitted that the Ombudsman had discharged his obligation under s.13 of the ADJR Act by virtue of the Delegate’s letters of 10 February 2017 and 31 March 2017 which, together, adequately set out the particulars of the reasons for her decision not to investigate Mr Lusk’s complaint. In particular, the statement of reasons which was enclosed with the Delegate’s letter of 31 March:
a)outlined the limited role of the Ombudsman, highlighting the principles guiding investigations by him and explaining that not every complaint was investigated;
b)summarised the basis of Mr Lusk’s complaint, highlighting the relevant communications between him and the Department; and
c)detailed the reasons why an investigation into Mr Lusk’s complaint against the Department was not warranted in the circumstances.
It was submitted that contrary to Mr Lusk’s assertions, the Ombudsman’s task was not to consider the relevant provisions of the TG Act or to decide the legal correctness of the Department’s position that fluoridated water was not “therapeutic goods” for the purposes of the TG Act. Rather, the Ombudsman’s task was confined to whether or not he should exercise his discretion under s.6 of the Ombudsman Act to investigate the complaint. It was submitted that the Delegate’s reasons for deciding not to investigate Mr Lusk’s complaint were clearly and adequately explained in her letters and in her statement of reasons. Consequently, s.13 of the ADJR Act had been complied with and no order requiring supplementary reasons was warranted.
Proper respondent to the application
The Ombudsman submitted that the proper respondent to a proceeding concerning the exercise of delegated power is the delegator, not the delegate: Giddings v Australian Information Commissioner (2017) 156 ALD 601.
It was further submitted that the Delegate had not been acting in a personal capacity when she decided not to investigate Mr Lusk’s complaint but had been acting as a delegate of the Ombudsman. It was submitted that the Ombudsman was thus the proper respondent to the application.
It was also submitted that the naming of the delegator as the respondent did not disadvantage Mr Lusk in any way.
CONSIDERATION
Proper respondent
It can be accepted that the Delegate signed the two material letters, respectively dated 10 February 2017 and 31 March 2017, which were sent from the Ombudsman’s office to Mr Lusk. In this regard, the parties seemed to be in agreement that the Ombudsman had delegated to the Delegate power under the Ombudsman Act to decide not to investigate Mr Lusk’s complaint.
The present question is whether, for the purposes of s.13(7) of the ADJR Act the Delegate was also “the person who furnished the statement” of 31 March 2017, and so the appropriate respondent to this proceeding.
Mr Lusk’s submissions on this point were summarised earlier but it is useful to set out his argument more fully, as he put it in correspondence to the Ombudsman’s solicitors on 12 July 2017:
(c)Ms. Tong’s power to furnish me with a statement of reasons in relation to the Decision (“Statement of Reasons”) [is derived from] s.13 of the Administrative Decisions (Judicial Review) Act 1977 (“ADJR Act”). Her corresponding duty to furnish me with an adequate Statement of Reasons depends wholly upon the request I made to her pursuant to s.13(1) of the ADJR Act. In exercising the aforementioned power in purported fulfilment of her corresponding duty, Ms. Tong exercised a power conferred directly upon her by operation of the ADJR Act, not a power conferred indirectly upon her by operation of an instrument of delegation made by the Commonwealth Ombudsman; therefore
(d)it would be entirely wrong to suggest – and I note that you do not actually do so – that s.34AB(1)(c) of the [Acts Interpretation] Act deems the Commonwealth Ombudsman to have furnished the Statement of Reasons. In fact and in law, Ms. Tong furnished the Statement of Reasons. (emphasis in original)
The answer to Mr Lusk’s argument appears to lie in the case cited by the Ombudsman, Giddings v Australian Information Commissioner. In that case, which relevantly dealt with the delegation of powers, Tracey J said:
It has been said that, where a decision-maker is exercising delegated power, he or she may validly exercise that power in his or her own name … The delegate could, therefore, be an appropriate respondent.
...
In the context of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act), the appropriate respondent to an application for judicial review is, prima facie, the decision-maker under the relevant enactment …
…
In my view, it is better that the statutory office holder be named as the respondent in such circumstances. This renders less personal the litigation … It is also generally consistent with the view that, when naming a party, it is appropriate to refer to a person’s office, rather than the name of the person who held that office at the time the decision was made … It also facilitates the easier recognition, from the title of the case, of the general class of case to which the litigation relates. The applicant is in no way disadvantaged by this course being adopted. (at 602-603 [3], [5], [7])
Mr Lusk advanced arguments which were to the effect that logic required the Delegate to be joined personally. However, in circumstances such as the present, where the Delegate was doing no more than acting on the Ombudsman’s behalf, the considerations identified by Tracey J are compelling. Consequently, there will be an order that the Ombudsman be substituted as respondent.
But, the logic of the particular statutory situation also appears to lead to that outcome.
The rights which Mr Lusk seeks to vindicate are based on s.3(1) of the ADJR Act, which relevantly provides that the ADJR Act applies to a decision of an administrative character made under a Commonwealth Act, and s.5 which, as noted earlier, permits a person who is aggrieved by a decision to which the ADJR Act applies, to apply to this Court for an order of review in respect of that decision. Those provisions focus attention on the decision in question, not on the personality who made the decision. In this case the relevant decision was that of the Delegate on 31 March 2017 which affirmed her decision of 10 February 2017 to not investigate Mr Lusk’s complaint.
The relevant power, to decide not to investigate, was conferred by the Ombudsman Act on the Ombudsman, not on the Delegate. The only power which the Delegate could exercise relevant to that matter was that which had been delegated to her by the Ombudsman and included the delegated authority to decide not to investigate Mr Lusk’s complaint. Because the decision in question was a decision under the Ombudsman Act which was taken by a delegate of the Ombudsman, it is, for the purposes of the Ombudsman Act, deemed to have been performed or exercised by the Ombudsman because s.34AB(1)(c) of the Acts Interpretation Act has that effect: Giddings v Australian Information Commissioner (at 603 [5]).
Section 13 of the ADJR Act operates subject to that arrangement. For instance s.13(1), under which Mr Lusk first sought reasons for the Delegate’s decision, provides:
Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Federal Court or the Federal Circuit Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him or her to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision. (emphasis added)
The section goes on to define “decision to which this section applies” as a decision to which the ADJR Act applies, subject to presently irrelevant exceptions.
Because the decision to not investigate is deemed to have been the Ombudsman’s, Mr Lusk’s request for reasons could only have been made pursuant to s.13(1) of the ADJR Act if it were made to the Ombudsman, not to the Delegate, and any reply under s.13(1) would also be from the Ombudsman as “the person who made the decision”. In any event, the 31 March 2017 reply which the Delegate made to Mr Lusk’s request of the Ombudsman was so linked with the decision made under delegated power, not least because it explained why the Ombudsman by the Delegate had decided as he did, that it should be understood to have been an act incidental to the original exercise of the power. As such the 31 March 2017 reply was, itself, authorised and empowered by the delegation and therefore for that additional reason an act of the Ombudsman not the Delegate.
Section 13(7) has been set out earlier in these reasons but it is useful to set it out here as well. It provides:
If the Federal Court or the Federal Circuit Court, upon application for an order under this subsection made to it by a person to whom a statement has been furnished in pursuance of a request under subsection (1), considers that the statement does not contain adequate particulars of findings on material questions of fact, an adequate reference to the evidence or other material on which those findings were based or adequate particulars of the reasons for the decision, the court may order the person who furnished the statement to furnish to the person who made the request for the statement, within such time as is specified in the order, an additional statement or additional statements containing further and better particulars in relation to matters specified in the order with respect to those findings, that evidence or other material or those reasons. (emphasis added)
Consequently, because the statement of reasons furnished in accordance with s.13(1) was supplied by the Ombudsman, any order which the Court might make under s.13(7) would be directed to the Ombudsman, not Ms Tong.
Further, it is worth observing, although the parties did not advert to it, that s.12 of the Ombudsman Act provides:
12 Complainant and Department etc. to be informed
(1)Where the Ombudsman does not, for any reason, investigate … action taken by a Department or by a prescribed authority in respect of which a complaint has been made to him or her, the Ombudsman shall, as soon as practicable and in such manner as the Ombudsman thinks fit, inform the complainant … of his or her decision and of the reasons for his or her decision.
The subpoenaed documents reveal that the Delegate had been delegated power under that subsection. It therefore appears that her letter to Mr Lusk of 10 February 2017, advising that an investigation into his complaint was not warranted, should be deemed to have been a letter from the Ombudsman, which would reinforce the opinion expressed earlier that the letter of 31 March 2017 was the Ombudsman’s too, being a continuation of that correspondence.
Adequacy of statement of reasons
Mr Lusk alleged that the Delegate’s decision was flawed in three respects in that she failed to state:
a)her understanding of the relevant law;
b)the facts on which her relevant findings depended; and
c)her processes of reasoning.
Those elements of a proper decision are derived from the decision of Woodward J in Ansett Transport Industries (Operations) Pty Ltd v Wraith, where his Honour said at 507 that the ADJR Act:
… requires the decision-maker to explain his decision in a way which will enable a person aggrieved to say, in effect: “Even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging.”
His Honour went on to say that this obligation:
… requires that the decision-maker should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions. He should do so in clear and unambiguous language, not in vague generalities or the formal language of legislation. (at 507)
However, with respect, those latter comments do not mandate an inflexible standard or template against which an administrator’s reasons are to be judged. Of specific relevance for this case, what s.13(7) of the ADJR Act requires of the Court is a finding on whether the Delegate’s statement of reasons did not contain:
a)adequate particulars of findings on material questions of fact;
b)adequate reference to the evidence or other material on which those findings were based; or
c)adequate particulars of the reasons for the decision.
When considering those matters it is to be kept in mind that the decision which the Delegate reached was that action by the Ombudsman was not warranted and that it was not warranted because:
a)the Ombudsman was not obliged to investigate the complaint and his office’s guiding principle was to examine whether administrative action was unlawful, unreasonable, unjust, improperly discriminatory, factually deficient or otherwise wrong;
b)the Department had provided the Ombudsman’s office with information which indicated that the former’s position on the fluoridation of water was open and reasonable. That conclusion was based on information which had been provided to the Ombudsman’s office in confidence and so did not have to be disclosed to Mr Lusk;
c)in any event, the issue which Mr Lusk had raised was not one which was going to be resolved by administrative intervention by the Ombudsman and needed a court decision for there to be certainty on the point; and
d)the action Mr Lusk sought from the Department was discretionary in any event, the implication being that the Ombudsman could not require the Department to take the action he sought.
Those reasons are clear enough. An administrator’s reasons are not to be analysed with an eye keenly attuned to the perception of error.
Finally, judging from his correspondence with the Ombudsman’s office, it appears that Mr Lusk believes that the Delegate had to arrive at her own view as to whether the Department’s views about water fluoridation were right. That is not correct. The ultimate issue was whether an investigation was not warranted, not whether the Department had been correct. The Delegate concluded that an investigation was not warranted, partly because the Department’s decision had, in her view, been open and reasonable. The Delegate’s reasons for arriving at that view were Delphic and so suggest a need for elucidation but it is to be remembered that her decision on that question was based on confidential information which could not be included in the statement of reasons: see s.13A(1)(b)(i) and (2) of the ADJR Act. There was, in the circumstances, no deficiency in the Delegate’s explanation as far as it related to this point, which is the relevant issue.
Extension of time
Given the findings I have reached the only remaining question is whether Mr Lusk should be given an extension of time within which to bring an application for review of the Delegate’s decision.
While the delay in seeking such a review and in making an application for an extension of time are adequately explained by the pendency of the present proceeding, it has not been demonstrated that a proceeding for review of the Delegate’s decision would have sufficient merit that justice requires that the Court should entertain it at trial. I consider that the criteria against which such an application would be considered are, absent any submissions to the contrary, those which are found in s.5 of the ADJR Act, which is too lengthy to set out here, especially as no particular reliance has been placed on any element of it. However, no submissions were addressed as to how a case addressing at least one of the criteria for review set out in that section might be made. Nor were any submissions made which addressed the considerations potentially relevant to such an application identified in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 and similar authorities.
In the circumstances, the application for an extension of time to bring proceedings under the ADJR Act for review of the Delegate’s decision will be dismissed.
CONCLUSION
Mr Lusk has not made out an entitlement to the relief he sought.
Consequently, the application will be dismissed.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Date: 22 May 2019
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