Schokker, Hank Bernard v Commissioner, Australian Federal Police

[1997] FCA 161

CATCHWORDS

ADMINISTRATIVE LAW - judicial review - person aggrieved - applicant seeking to review decision not to investigate complaint - whether applicant has standing - possibility investigation could establish evidence illegally obtained - possibility it could affect applicant's personnel record - whether such possibilities too remote

Administrative Decisions (Judicial Review) Act 1977 (Cth), s3, s5, s13

Australian Federal Police Act 1979 (Cth), s8, s9

Commonwealth Crimes Act 1914 (Cth), s70

Crimes Act 1914, s29B

Freedom of Information Act 1982 (Cth)

Income Tax Assessment Act 1936 (Cth), s16

Public Service Act 1922 (Cth)

Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493

Australian Foreman Stevedores Association v Crone (1988) 20 FCR 377

Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124

Broadbridge v Stammers (1987) 76 ALR 339

Bunning v Cross (1978) 141 CLR 54

Commissioner of Taxation v Schokker (Full Court, 17 October 1996, unreported)

Oatmont Pty Ltd v Australian Agricultural Co Ltd (1991) 75 NTR 1

Ogle and Anor v Strickland and Ors (1987) 71 ALR 41

Onus v Alcoa of Australia Ltd (1982) 149 CLR 27

R v Inland Revenue Commissioner; ex parte National Federation of Self‑Employed and Small Businesses Ltd [1982] AC 617

Smiles v Federal Commissioner of Taxation (1992) 107 ALR 439

Smiles v Federal Commissioner of Taxation (1992) 109 ALR 449

Rice Growers Co‑operative Mills Ltd v Bannerman and Anor (1981) ATPR 40‑262

Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50

Tooheys Limited v The Minister for Business and Consumer Affairs (1981) 36 ALR 64 at 79

HANK BERNARD SCHOKKER v COMMISSIONER, AUSTRALIAN FEDERAL POLICE

NO WAG 171 OF 1996

R D NICHOLSON J

PERTH

12 MARCH 1997

IN THE FEDERAL COURT OF AUSTRALIA )

WESTERN AUSTRALIA DISTRICT REGISTRY)

GENERAL DIVISION ) NO WAG 171 OF 1996

B E T W E E N:HANK BERNARD SCHOKKER

Applicant

and

COMMISSIONER, AUSTRALIAN FEDERAL POLICE

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER:R D NICHOLSON J

DATE OF ORDER:12 MARCH 1997

WHERE MADE:PERTH

THE COURT ORDERS THAT:

1.The respondent's motion for dismissal be refused.

2.The respondent pays the applicant's costs on the motion.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

WESTERN AUSTRALIA DISTRICT REGISTRY)

GENERAL DIVISION ) NO WAG 171 OF 1996

B E T W E E N:HANK BERNARD SCHOKKER

Applicant

and

COMMISSIONER, AUSTRALIAN FEDERAL POLICE

Respondent

CORAM:R D NICHOLSON J

DATE:12 MARCH 1997

PLACE:PERTH

REASONS FOR JUDGMENT

The respondent brings a notice of objection of competency to this Court's jurisdiction to hear the applicant's application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). The ground of the objection is the applicant does not have standing as "a person who is aggrieved by a decision" under s5 of the ADJR Act.

The application seeks review of a decision ("the decision") of the Director Operations, Western Region, Australian Federal Police ("AFP") made on 23 October 1996 that no investigation would be undertaken of the applicant's complaint. The applicant's supporting affidavit sets out the significance of that decision as follows.

The Australian Taxation Office ("ATO") employed the applicant for over twenty five years, primarily in the office's investigation area. In February 1995, consequent on advice from the Western Australian State Police ("the State Police"), the ATO commenced an audit into the applicant, the applicant's income tax affairs and those of his wife and daughter.

On 14 March 1995 the State Police executed a search warrant on the applicant seizing several documents, including five unused blank medical certificates. These were, on the applicant's account, handed to the ATO. The ATO conducted a personnel inquiry to determine whether the applicant had wrongly used the medical certificates and whether he enjoyed unauthorised absences from work or engaged in illegal activities in relation to his employment. The applicant maintains he was not given the opportunity by the ATO of explaining the possession of the certificates which he claims has a valid explanation.

In March 1995 the applicant was suspended from work pending determination of what he describes as "charges" laid against him. The applicant's case does not bring evidence of more than one charge, namely, one count of imposition under s29B of the Crimes Act 1914 (Cth).

In October 1995, exercising rights under the Freedom of Information Act 1982 (Cth), the applicant obtained documents from the ATO personnel inquiry files and the income tax audit files relating to him. He found his personnel file contained confidential tax information concerning him as well as his wife and daughter. His case is that the passing of this confidential information was a breach of s16 of the Income Tax Assessment Act 1936 (Cth) and s70 of the Commonwealth Crimes Act 1914 (Cth).

On 2 January 1996 the applicant wrote to the Commissioner of Taxation complaining of the alleged breach. On 10 April 1996 the Commissioner replied that he refused to take any prosecution action. In a further letter dated 8 May 1996 the Commissioner advised he found the allegations unsubstantiated and would not refer the matter to the Director of Public Prosecutions.

That decision of the Commissioner of Taxation was the subject of an application for review in matter number WAG 46 of 1996. In a decision of the Full Court - Commissioner of Taxation v Schokker (Full Court, 17 October 1996, unreported) - it was ordered that the principal application, to the extent it alleges the Commissioner of Taxation made a decision not to exercise a power to prosecute, be struck out. In action WAG 46 of 1996 the applicant seeks to have the remainder of that application heard in conjunction with the application in this proceeding. The motion for joinder is held over pending resolution of the notice of objection to competency.

On 12 October 1995 the applicant and his wife delivered a letter dated 13 October 1995 to the officers of the respondent requesting an investigation into a complaint. The complaint was to the effect that the officer undertaking the personnel inquiry had engaged in illegal activities by breaching the secrecy provisions of s16 of the Income Tax Assessment Act. The applicant's wife joined in the making of the complaint information in her tax file concerning the dates on which she privately acquired motor vehicles was not information which the ATO should possess in its Public Service employer role.

On 5 December 1995 the General Manager, Western Region of the AFP wrote to the applicant and advised "that based on the legal advice received from the Director of Public Prosecutions, there will be no AFP investigation of your complaint". Similar advice was given by the same officer to the applicant's wife.

In the months of January to May 1996 the applicant wrote numerous letters to the respondent, the Director of Public Prosecutions and the Ombudsman and made freedom of information requests. As a result of these, he ascertained that the Director of Public Prosecutions thought the exemption provisions of s16(4)(a) of the Income Tax Assessment Act 1936 (Cth) provided a complete exemption to the ATO staff for their actions in using the confidential tax information for personnel purposes. However, he was also advised by the Commonwealth Ombudsman that those exemption provisions did not apply to ATO personnel staff because the Public Service Act 1922 (Cth) was administered by the Department of the Prime Minister and Cabinet. On the applicant's account this resulted in correspondence between the Ombudsman and the Director of Public Prosecutions leading to the latter accepting that "there may be some instances where an ATO officer's actions might constitute a breach of the relevant secrecy provisions of the Act".

The applicant then states the letters of complaint were "revived" in the office of the respondent as a result of which the Director Operations wrote to him in May 1996 advising him the issues had again been referred to the Director of Public Prosecutions for advice.

On 17 October 1996 the applicant requested the Director Operations of the respondent to delay making a decision whether to conduct an investigation until after the application for review in WAG 46 of 1996. On the same date the applicant wrote to the Ombudsman expressing concern that details of the complaint to the respondent and progress of the complaint had been advised to the ATO, the subject of the complaint. In a response dated 21 October 1996 the senior investigation officer of the Ombudsman's office advised he was unable to agree with the contention for the applicant that the respondent was "actively support(ing) the Australian Government Solicitor in trying to terminate the ADJR application".

On 23 October 1996 the Director Operations wrote to the applicant and his wife advising he was of the view "that no criminal offences have been disclosed and as such there will be no investigation undertaken by this office". He stated "all of the allegations relate to the internal use of the information by the ATO and not to any external disclosure or suggestion of official corruption". In his opinion the allegations could be appropriately pursued through the administrative review process.

Legal basis for decision

Section 9(1)(c) of the Australian Federal Police Act 1979 (Cth) ("the AFP Act") provides that:

"9(1)In addition to any other powers and duties, a member has:

(a)the powers and duties that are conferred or imposed on a constable by or under a law of the Commonwealth; and

...

(c)in relation to:

(i)the laws of the Commonwealth;

(ii)matters in connection with property of the Commonwealth or of an authority of the Commonwealth;

(iii)matters arising on or in connection with land or premises owned or occupied by the Commonwealth or an authority of the Commonwealth; and

(iv)the safeguarding of Commonwealth interests;

the powers and duties that are conferred or imposed on a constable, or on an officer of police, of the rank that is, or is declared by the regulations to be, equivalent to the rank that the member holds in the Australian Federal Police, in the place in which the member is acting."

It is said for the respondent the decision was made in exercise of these powers.

The AFP Act establishes the Australian Federal Police and provides for its functions and powers. Section 8 of the Act provides those functions include the provision of police services in relation to laws of the Commonwealth: s8(1)(b).

Requirements of ADJR Act as to standing

Section 5(1) of the ADJR Act provides for a person "who is aggrieved by a decision to which this Act applies" to have a right to apply to the Court for an order of review. It is accepted on behalf of the respondent that the decision is one to which the ADJR Act applies. Schedule 1 of the Act includes in the classes of decisions that are not decisions to which the Act applies "(x) decisions under subsection 60A (2B) of the Australian Federal Police Act 1979". It is not contended the decision in this case can be so characterised.

Schedule 2 of the Act provides that decisions relating to the administration of criminal justice and, in particular "(i) decisions in connection with the investigation or prosecution of persons for any offences against a law of the Commonwealth or of a Territory" are not decisions to which s13 applies. However, that has the effect only of excluding such decisions as ones in relation to which the obligation to provide reasons under s13 arises.

Section 3(4) of the ADJR Act provides that a reference to "a person aggrieved by a decision" includes (inter alia) a reference to "a person whose interests are adversely affected by the decision".

The manner in which these provisions should be applied is not in dispute as their meaning has been explained in a number of decisions. It is clear a person will be aggrieved if that person can show a grievance which will be suffered as a result of the decision beyond that of an ordinary member of the public: Rice Growers Co‑operative Mills Ltd v Bannerman and Anor (1981) ATPR 40‑262 at 43,335 per Bowen CJ and Franki J; cf Tooheys Ltd v The Minister for Business and Consumer Affairs (1981) 36 ALR 64 at 79 per Ellicott J. Direct professional and vocational interest may establish a grievance: Ogle and Anor v Strickland and Ors (1987) 71 ALR 41. The critical question is the extent to which the interest of the applicant rises above that of an ordinary member of the public: Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124 at 132 per Gummow J. That interest may be established where "... there flows from the decision... a danger and peril to the interests of the [applicant] that is clear and imminent rather than remote, indirect or fanciful, and the [applicant] has an interest in the matter of an intensity and degree well above that of an ordinary member of the public": Broadbridge v Stammers (1987) 76 ALR 339 at 341 adopting the language of Gummow J in Australian Institute at 82.

The approach to the interpretation of the statutory provisions is to be considered in the context of the decisions of the High Court in relation to the question of standing generally. From the reasons of the High Court in Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493, particularly at 530‑1, 539 and 547, an interest does not mean a mere intellectual or emotional concern so that the person seeking to establish standing voices a particular concern and regards the actions of another as injurious to the object of that concern. Standing to bring an action to prevent the violation of a public right will not exist if the plaintiff has no interest in the subject matter beyond that of any other member of the public - he or she must have a special interest in the subject matter of the action: Onus v Alcoa of Australia Ltd (1982) 149 CLR 27 at 35‑6 citing Australian Conservation Foundation v The Commonwealth. In Onus at 75 Brennan J said:

"At least the plaintiff must be able to show that success in the action would confer on him - albeit as a member of class - a benefit or advantage greater than the benefit or advantage thereby conferred upon the ordinary member of the community; or alternatively that success in the action would relieve him of a detriment or disadvantage to which he would otherwise have been subject - albeit as a member of a class - to an extent greater than the ordinary member of the community."

The question whether an applicant has shown a sufficient interest in a particular case is a question of degree and not of discretion: Onus at 75 per Brennan J adopting R v Inland Revenue Commissioner; ex parte National Federation of Self‑Employed and Small Businesses Ltd [1982] AC 617 at 631 per Lord Wilberforce. The result is that "there is a point, which must be fixed as a matter of judgment in each case, beyond which the Court must hold that the interests of those affected are too indirectly affected to be recognised": Australian Foreman Stevedores Association v Crone (1988) 20 FCR 377 at 382 per Pincus J. There is therefore the necessity for "a curial assessment" of the sufficiency of the interest: Oatmont Pty Ltd v Australian Agricultural Co Ltd (1991) 75 NTR 1 at 4 per Angel J.

In assessing the sufficiency of that interest the Court must identify the enactment under which the decision was made and consider standing in the context of the enactment: Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50 at 84-85 per Gummow J.

The applicant's grievance

The applicant describes his grievance in three ways. The first is that "justice is being denied". This is developed as a reference to the alleged use by the ATO staff of confidential tax information for personnel purposes resulting in charges being laid against the applicant. Secondly, there is a claim of personal and public interest in the serious nature of the offence and it being thoroughly investigated. Thirdly, it is said that the applicant and his family have suffered extensive bias at the hands of the Commissioner of Taxation resulting in stress and aggravation suffered by the applicant and his family.

In written submissions the applicant develops the nature of the grievance further in the following terms:

"1.The actions of the ATO Staff have been detrimental to my and our psychological and emotional well‑being. Our privacy has been abused and we are victims of their criminal actions.

2.The fact that the ATO are not taking any action on the misinformation and lies told by the accused is being litigated. It is detrimental to that case (No 46 of 1996 in this jurisdiction) that the AFP decision has an adverse effect on my Court action. I am aggrieved by the decision.

3.The decision denies me natural justice in having allegations of criminal actions not investigated leaving me with no recourse for satisfaction.

4.In any action for criminal compensation there is a greater success rate if the offenders have been charged and found guilty of their crimes.

5.Civil proceedings are simplified where evidence is previously exposed during criminal proceedings.

6.The actions of the ATO in conducting the illegal personnel enquiry, and the obtaining of tainted evidence (a medical certificate), referred on to the State Police is a voir dire, a persecution of me. I need to have a investigative body inside the ATO, conduct an investigation confirming the victimisation of me. This refusal to investigate grieves me far more than a member of the public.

7.As a public servant, an employee of the ATO, I am a part of a select group of people whose employment conditions are being eroded. The AFP in refusing to investigate are effectively allowing the ATO to selectively breach the income tax secrecy provisions, of their staff. This group persecution should be exposed and as a member of the group I have a specific interest in the outcome of the investigation. Staff morale is also an issue, in the outcome of these actions.

8.I have been a dedicated staff member of the ATO for over 25 years. I had made the ATO my career. This is now lost to me by the actions of the ATO and the AFP.

My standing and credibility are at risk if my allegations are ignored and no investigation is undertaken. I will be seen as a guilty person, a loser, and a liar and have no effective future in the ATO.

My personal safety may be at risk if I returned to that Office without exonerating myself. If the allegations made are not investigated and proven, then in the future I may be tripped at work or shoved down the stairs. The people complained of, are, after all, very senior and powerful men in the Cannington ATO. They have many friends.

9.The effect this has to my standing at work, my employment conditions, and whether I still have a job there, has a large effect on my personal life. I am concerned for the present and long term financial and emotional security of my wife and our family."

In oral submissions the applicant submitted that these effects were not indirect, remote or fanciful and in particular could not be said not to flow from the decision only because some of them may be dependant on the successful outcome of an investigation. He stressed that if the outcome of an investigation was successful it would effect him in two direct ways. The first was that the charges brought by the State Police "would be dropped" because the evidence on which they were based would be shown to be illegally obtained. The second was that his standing in the Tax Office would be affected because if evidence on his personnel file was illegally obtained the removal of it would restore him to good standing in that office. He therefore had a possible direct financial benefit in the outcome of an investigation and an interest in the conduct of an investigation greater than any member of the public and exceeding only an emotional interest. Additionally, the applicant contends there is a prima facie case of breach of the secrecy provisions so that his interest in the outcome of investigation does not arise in circumstances where the outcome of an investigation is purely conjectural.

Respondent's contentions

For the respondent it is accepted the applicant has an interest above that of an ordinary member of the public. However, it is contended for the respondent the interest which the applicant has is not sufficient to qualify him to have standing in the matter. Principally it is said that this is due to the nature of the interest being remote. This submission is developed in a number of ways.

Firstly, it is said the interest claimed by the applicant is one of emotional concern. Of the nine points contained in the applicant's written submissions items 1, 3, 6, 7, 8 and 9 are said to be open to characterisation in this way.

Secondly, the alleged effects on the applicant are derivative from the alleged conduct of the ATO rather than the decision - see in particular items 1, 6 and 8 of the applicant's list.

Thirdly, the decision brings no disadvantage to the applicant in his quest to have the Commissioner of Taxation reconsider his decisions of 10 April and 8 May 1996. As a consequence it is submitted the interests of the applicant in having the actions in the ATO reversed have not been adversely affected.

Fourthly, any adverse affect which the decision may have on the applicant, even if not in the character of an emotional impact, is too remote, indirect and fanciful to create standing for him. In this respect reference is made to items 4, 5 and 8 in the applicant's list.

Fifthly, it is contended the matters relied upon by the applicant do not flow from the decision but only from the conclusion of an investigation establishing that ATO staff committed an offence. They are matters which are posited on the assumption the investigation will be successful. It is fanciful to assume such success when it is not shown how success can be assumed. It is therefore indirect and remote because it flows from events subsequent: see in particular the applicant's item 7.

Sufficiency of interest

Save in the two respects stressed by the applicant in his oral submissions I do not consider it can be concluded in favour of the applicant success in the application for review of the decision would relieve him of a detriment or disadvantage to which he would otherwise have been subject to an extent greater than the ordinary member of the community. In other words, the grounds relied upon for the respondent are, save in those two respects, open to the objections raised on the respondent's case.

The first of those respects, is the applicant's wish to have the use of the confidential tax information in his personnel file found to be illegal so that the evidence deriving from the illegal act will play no future part in the charge brought against him.

When the applicant assumes the finding of an investigation that ATO staff had acted illegally would be conclusive to exclude the evidence obtained by them from use against him in criminal proceedings, the applicant acts on an incorrect premise. The authorities on the admissibility of evidence procured in consequence of an illegal search or other unlawful act are uniformly in favour of its reception: Cross on Evidence, 5th Australian ed, Butterworths 1996 at 768-769. Where evidence has been obtained unfairly or illegally a discretion arises in the Court based on public policy giving the judge a discretion to reject the evidence: Bunning v Cross (1978) 141 CLR 54. Two things follow from this. The first is, even if an investigation resulted in the findings sought by the applicant, it would not be conclusive of the use against him of any evidence which he says has been obtained unfairly or illegally. Second, the issue will be open to be argued by the applicant on the hearing of the charges brought against him. It is not necessary for him to go to that hearing armed with the outcome of investigation by the respondent. However, the outcome would be a relevant consideration to the exercise of the Court's discretion.

What remains is the second aspect of the applicant's oral submissions, namely, whether the alleged continued presence of the confidential tax information on the applicant's personnel record assists him to establish standing. In my opinion it does so. The applicant is under suspension. The suspension allegedly followed the provision of the confidential tax information. If the information was provided illegally it would be open to the applicant to argue he should not suffer prejudice because of that information.

I do not consider it can be said the applicant's interest in the commencement of an investigation is too remote because the outcome of the investigation may not necessarily find any illegal usage of confidential tax information. Whether or not the outcome disclosed illegality, the commencement of an investigation would yield a result relevant to the legality of the use of the confidential tax information and the applicant's employment. He therefore has an interest in an investigation beyond any other member of the public. He therefore has standing.

Courts will not interfere by way of judicial review in the ordinary processes of a prosecution except in most limited circumstances: see for example Smiles v Federal Commissioner of Taxation (1992) 107 ALR 439 at 442‑3 from which an appeal was dismissed: Smiles v Federal Commissioner of Taxation (1992) 109 ALR 449. Those considerations will arise on the review and are not factors determining standing to review a decision which is accepted as being a judicially reviewable decision.

Conclusion

For these reasons I consider the respondent's objection to competency should be refused.

I certify that this and the preceding 10 pages are a true copy of the Reasons for Judgment of his Honour Justice R D Nicholson.

Associate:

Date:12 March 1997

APPEARANCES

The applicant appeared in person.

Counsel for the Respondent:Mr R J Morgan

Solicitors for the Respondent:Australian Government

Solicitor

Date of Hearing:7 February 1997

Date of Judgment:12 March 1997