Schokker v Commissioner of Taxation
[1998] FCA 222
•18 MARCH 1998
FEDERAL COURT OF AUSTRALIA
ADMINISTRATIVE LAW - judicial review - jurisdiction - alleged decision not to refer complaint to prosecuting authority - whether “decision” - whether made “under an enactment” - whether Disciplinary Handbook an “instrument”
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, followed
Burns v Australian National University (1982) 40 ALR 707, distinguished
Chittick v Ackland (1984) 53 ALR 143, followed
Hutchins v Deputy Commissioner of Taxation (1996) 136 ALR 153 , followed
Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290, distinguished
Salerno v National Crime Authority (1997) 144 ALR 709, followed
HANK BERNARD SCHOKKER v COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA
WAG 46 of 1996
R D NICHOLSON J
PERTH
18 MARCH 1998
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAG 46 of 1996
BETWEEN:
HANK BERNARD SCHOKKER
ApplicantAND:
COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA
RespondentJUDGE:
R D NICHOLSON
DATE OF ORDER:
18 MARCH 1998
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
The respondent’s motion is allowed.
The application is dismissed.
The applicant pay the respondent’s costs of the application.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAG 46 of 1996
BETWEEN:
HANK BERNARD SCHOKKER
ApplicantAND:
COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA
Respondent
JUDGE:
R D NICHOLSON
DATE:
18 MARCH 1998
PLACE:
PERTH
REASONS FOR JUDGMENT
HIS HONOUR: The respondent brings a motion seeking the dismissal of the application. Two grounds are given for this. The first is the application for an order of review is not competent as the Court lacks jurisdiction to hear and determine a review of the alleged decision of the respondent under the Administrative Decisions (Judicial Review) Act 1977(Cth) (“the ADJR Act”), because the alleged decision of the respondent is not a decision to which the ADJR Act applies: see ADJR Act, s 3(1). Alternatively, the motion seeks the application be dismissed or set aside pursuant to O 20 r 2 of the Federal Court Rules (“FCR”).
This is the second occasion on which the respondent has brought such a motion. On 30 August 1996 the first motion was refused. An appeal from that decision was allowed on 17 October 1996 and the principal application, to the extent it alleged the respondent made a decision not to exercise a power to prosecute, was struck out. In the course of their reasons the Full Court (Black CJ, Lee and Carr JJ, Federal Court of Australia, 17 October 1996, unreported) said (at 4-5):
“This does not, however, dispose of the appeal. Mr and Mrs Schokkers’ application to the Court raised issues wider than the issue we have so far considered. There is, as a live issue in their application, the question whether the Commissioner’s decision not to refer the matters complained of to a prosecuting authority, being matters concerning the administration of the Australian Taxation Office, is reviewable under the ADJR Act. This is an issue that was not, it appears to us, argued on the motion for dismissal and although it is obvious that the respondents’[the applicant in this application] case on that issue will face substantial hurdles, it is not open to this Court on the hearing of this appeal to dismiss the proceeding in relation to that issue. We emphasise that the power to dismiss matters summarily is one that must be exercised with exceptional caution. Such applications should not be embarked upon lightly.”
In the reasons of the Full Court the circumstances of the application were described (at 1-2) as follows:
“The principal application was filed by the respondents on 7 May 1996 and was described simply as an ‘application for an order of review’. The application was prepared and filed by the respondents in person and it lacked the precision to be expected of an application prepared by a competent legal practitioner who had the opportunity of distilling a client’s instructions.
At all material times, the male respondent, Mr Schokker, was employed in the Australian Taxation Office. On 2 January 1996 the respondents wrote to the Commissioner making various allegations, the principal of which was as follows:
‘I am being persecuted by the illegal activities of the senior members of the ATO in Cannington. There are at least 5 senior officers at the Cannington ATO who have committed several separate breeches (sic) of secrecy provisions in relation to my, my wife’s and my daughter’s income tax affairs, and used this information and the misuse of ITAA access provisions to conduct an enquiry into my personnel file.’
... [t]wo principal categories of breach of secrecy were alleged in the letter. The first was the use by the special audit manager, in a personnel inquiry, of information concerning possession by Mr Schokker of blank medical certificates when the information was said to have come into his possession in consequences of a notice served pursuant to s264 of the Income Tax Assessment Act 1936 (Cth) (‘the ITA’) on the Western Australia Police. Secondly, it was alleged that the auditor also made extensive use of confidential and personal information concerning Mr and Mrs Schokker and their daughter’s income tax audits to conduct a personnel evaluation of the leave entitlement of Mr Schokker under the Public Service Regulations.
In substance, the application filed in the Court alleged that in response to this complaint the Commissioner had decided that ‘no prosecution action against audit staff for these alleged breaches will be instituted’. ...”
The decision of which review was sought was that said to be contained in a letter dated 10 April 1996 to the applicant from Mr Peter Dawson, Director of the Fraud Prevention and Control Unit of the Australian Taxation Office, Canberra. The letter read:
“In reference your correspondence alleging breaches of the secrecy provisions on the part of audit staff at the Cannington Branch of the Tax Office. Investigations were conducted by Fraud Prevention and Control staff into these allegations. Material was subsequently forwarded to the Director of Public Prosecutions in Perth for his consideration and adjudication.
We have received advice from the Director, Mr I. R. Bermingham, in which he states inter alia, ‘The Deputy Commissioner is entitled to refer information relating to the possible commission of an offence by the employee to the police for investigation.’ and ‘I can see nothing wrong whatsoever with the Deputy Commissioner having done so or with the referral of the matter to the Western Australian police (with advice to the AFP or the fact)’.
In light of this advising, no prosecution action against audit staff for these alleged breaches will be instituted.”
The application referred only to this letter. However, leave was given to the applicant to amend the application to identify the reviewable decision as that made by Mr Peter Dawson and set out in his letter dated 8 May 1996. Although no such application was made, appropriate leave to amend was given during the hearing and the case conducted on the basis the relevant decision was contained in either or both of the letters of 10 April 1996 and 8 May 1996.
In his letter of 8 May 1996 Mr Dawson said:
“I refer to your letter of 23 April, 1996 in which you again seek a statement of reasons pursuant to Section 13 of the AD(JR) Act as to my decision not to take further action in referring the matters, the subject of your allegations, to the Director of Public Prosecutions.
There are two aspects to the matters to which you refer. The first aspect involves matters of fact and the second involves matters of law.
In relation to the facts of the matter, inquiries conducted by my Section have established that the allegations of breaches of Section 16 of the Income Tax Assessment Act made by you and your wife are unsubstantiated.
Briefly, in relation to the Section 16 breaches, you and your wife have alleged:
1. that Lund and Scanlan unlawfully provided Ross and Meakin with taxation information obtained from an audit they were conducting on the taxation affairs of you and your wife.
2. that Ross and Meakin unlawfully used taxation information relating to the tax affairs of you and your wife which was unlawfully obtained from Lund and Scanlan for the purposes of conducting inquiries into you (sic) personal attendances etc.,
3. that Nicholls participated in the unlawful activities of Ross, Meakin, Lund and Scanlan described in 1. and 2. above in that he directed their activities.
The inquiry established the information obtained by Ross and Meakin was sourced to personnel records, an authorised dump of your personal directory on the Taxlan computer system and inquiries made of motor dealers. The information was not obtained from Lund and Scanlan as you have surmised.
In relation to the second aspect of a matter of law, our inquiries have established that you referred the above allegations to the Australian Federal Police for investigation. The AFP, on the basis of legal advice provided by the Director of Public Prosecutions, declined to investigate your allegations. The DPP stated that paragraph 16(4)(a) provided a complete defence to your allegations of illegality divulging information.
While I am aware the Ombudsman holds a contrary view to the DPP on this issue of legal interpretation, the fact is the DPP is the determinative authority on whether a prosecution is to be commenced. There is no point in presenting a case, given one exists, to the DPP for consideration of a prosecution in circumstances such as this.
In relation to your allegation against the Deputy Commissioner. Our inquiries established this allegation to be unsubstantiated. Even if the contrary was established, it is clear form the DPP’s advising to the AFP that such actions would not be unlawful because of the ‘complete defence’ provisions of Section 16(4)(a) of the ITAA.”
Was there a “decision”?
Before the jurisdiction for judicial review can be invoked under the ADJR Act the letters of 10 April 1996 and 8 May 1996 from Mr Dawson to the applicant must amount to a decision of an administrative character made or required to be made “under an enactment”: see the definition of “decision to which this Act applies” in s 3(1) of the ADJR Act. For the respondent it is submitted no “decision” under an enactment was made or required to be made by the respondent.
In the case of the letter of 10 April 1996 it was argued for the respondent the last sentence is referable to that portion of the applicant’s claim as was struck out by the Full Court. To the extent the sentence alleges the respondent made a decision not to exercise a power to prosecute that is correct. However, excluding that and reading the sentence in its context, it is capable of carrying the additional meaning the respondent had made a decision not to refer the matters complained of to a prosecuting authority. The sentence is to be read in that manner. I do not accept the submission for the respondent the sentence is to be understood only as an expression of opinion that the facts did not disclose any breach of the law based on what occurred before the letter was written.
The respondent’s argument is in two parts. The first is the respondent did not make a “decision” not to refer the matters complained of to a prosecuting authority. This is a question of factual characterisation of what was done.
In the case of the letter of 10 April 1996 it is submitted it was an interim response only.
In the case of the letter of 8 May 1996 it is likewise submitted for the respondent the comments in it that the allegations were unsubstantiated do not amount to a “decision” not to refer. It is contended that only where a finding is made to the effect that allegations are substantiated in a particular case is a “decision” made whether or not to refer the papers. Where a finding is allegations are not substantiated, it is said no question of making such a decision arises.
The facts relied upon for these contentions are addressed in affidavit evidence of the Director of the Fraud Prevention and Control Section (‘the Section’) of the Internal Assurance Branch of the ATO (Mr Dawson). He stated concerning the usual practice on the receipt of a complaint such as that made by the applicant is as follows. If the investigations of the Section establish the allegations are not substantiated, no further action is taken. If those investigations reveal there is reasonable substantiation for the allegations of criminal offences or serious misconduct, then the Section:
“(i) forwards our report and statements in support to management with a recommendation that an authorised officer for the purposes of section 61 of the Public Service Act 1922 be appointed to consider whether misconduct has occurred and the officers concerned should be charged for the purposes of that Act; and
(ii)a brief of evidence is forwarded to the Commonwealth Director of Public Prosecutions for consideration.”
These submissions fall to be considered in the context of the provisions of subs 3(2) of the ADJR Act which provides a reference to “the making of a decision” includes reference to a number of matters. These include a refusal or failure to make a decision. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337 Mason CJ said the reference to refusing to do any act or thing should be read as referring to the refusal to exercise a substantive power. Additionally, subs 3(3) provides where provision is made by an enactment for the making of a report or recommendation before a decision is made and in the exercise of a power under that enactment or under another law, the making of such is deemed to be the making of a decision. The effect of these provisions is to demonstrate a legislative intent the word “decision” is not to be construed narrowly or pedantically.
That leads me to the primary view the statements in either of the letters are not merely a reference to a pre-existing state of fact. They are each in their terms a reference to a pre-existing state of fact and to the consequence of it, namely “no prosecution action...will be instituted” or “there is no point in presenting a case...”. They are each a refusal to refer
because of the pre-existing state of fact. I therefore reject the submission there was no relevant “decision”.
The evidence of Mr Dawson is the Internal Assurance Branch of the Australian Taxation Office (“the Branch”), including the Fraud Prevention and Control Section, was established by the respondent pursuant to his powers and responsibilities under subs 25(2) and (4) of the Public Service Act 1922 (Cth) (the “PS Act”), s 8 of the Income Tax Assessment Act 1936 (Cth) (the “ITA Act”) and s 3A of the Taxation Administration Act 1953 (Cth) (the “TA Act”). The function of the Branch is to assist the respondent in ensuring the object set out in s 6 of the PS Act and the Australian Taxation Office’s practices for handling confidential information are met in the Office.
His further evidence was the usual practice of the Branch in cases such as that raised by the applicant’s complaint of 2 January 1996 is identical to that of the Section as outlined previously, with the addition that if the investigations establish the allegations are not substantiated, no further action is taken.
The provision for appointment of an authorised officer is contained in s 61(2) which provides:
“61(2) Where an officer authorized by the relevant Secretary for the purposes of this subsection is of the opinion that an officer may have failed to fulfil his duty as an officer, the authorized officer shall, as soon as practicable, decide whether he should be charged and:
(a)if he decides that the officer should not be charged - may counsel the officer or cause a supervisor of the officer to counsel the officer; or
(b)if he decides that the officer should be charged - shall, by writing under his hand delivered to the officer, charge the officer with the failure.”
Section 62 makes provision for the conduct of an inquiry when an officer is charged with misconduct and provides for the remedies applicable in the event the misconduct is established. Subsection 62(6) sets out the powers of the officer inquiring in the event of a finding of failure to fulfil duty. These do not include a power to refer the matter to a prosecuting authority. Section 63 sets out the procedures to be followed in the case of a criminal conviction in respect of an officer.
Both subs 61(2) (and the provisions of the Handbook referred to later in these reasons) support the primary view which I have that there was a decision relevantly made in respect of the applicant. The step of taking “no further action” is a step involving a “decision” that no such action will be taken because of the lack of substantiation of the complaint. That is relevantly a “decision” in the sense that something was decided.
There is a further characteristic which must be found before that “decision” can qualify as such under the ADJR Act. In Bond at 337 Mason CJ , with whom Brennan J (at 365) and Deane J (at 369) agreed, said “another essential quality of a reviewable decision is that it be a substantive determination.” It is submitted for the respondent if there was a decision not to refer the applicant’s complaint to a prosecuting authority, that decision was not of that character. This is supported by submissions it is the Australian Federal Police which has the ultimate power to decide whether to conduct a criminal investigation and the Director of Public Prosecutions who has the ultimate power to decide whether to prosecute alleged breaches of s16 of the ITA Act. It is therefore submitted the decision was no more than a “mere step taken on the way” to the possible making of an ultimate decision to investigate and prosecute to be made by those bodies.
For the applicant it is contended nothing could be more determinative of the applicant’s rights than the decision not to refer his complaints to the prosecuting authority because that ended the matter for him. It is submitted the decision was both substantive and final.
In Bond at 337 Mason CJ also said a reviewable decision “will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration.” It is relevant to note the emphasis on practicality rather than legality. He continued to the effect a conclusion reached “as a step along the way in a course of reasoning leading to an ultimate decision” would not ordinarily amount to a reviewable decision.
On the evidence it is apparent the decision was not interim in character. It was, in a practical sense, a final determination of the complaints. It was not a step along the way in the course of reasoning but rather the ultimate decision on the disposition of the complaint because, as a consequence of it, the complaint went no further. In my view the decision has the character of a substantive determination.
Whether decision was “under an enactment”
Respondent’s case
For the respondent it is not disputed certain provisions in enactments authorised in a general way the establishment of an internal investigation and the determination made by those investigating that the allegations were unsubstantiated. Further it is not disputed that, if the respondent’s authorised officer had been satisfied the allegations had been substantiated, those provisions may have implicitly authorised a further decision to refer the matter to the Australian Federal Police for investigation or to the Director of Public Prosecutions to determine whether a prosecution should be instituted. However, it is submitted those powers are general ones of administration and not the source of a power by which the respondent is required to determine whether or not he should refer the applicant’s complaint to a prosecuting authority so that the decision was not made under an enactment.
This submission is supported by reference to a number of authorities. In Bond at 337 Mason CJ said “...a reviewable ‘decision’ is one for which provision is made by or under a statute.” At 377 Toohey and Gaudron JJ said “a decision under an enactment may be expressly or impliedly required or authorised.” An implied authority will be found where the determination upon which the legislative provision operates is a determination to be made for the purposes of the particular provision and, at a time when and in the circumstances in which the provision is called upon to operate, it would be without effective content if no authority to make the requisite determination exists: Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 at 302-303 per Mason, Deane and Dawson JJ.
However, it is also the case that if a decision is neither expressly nor impliedly required by an enactment and, although authorised, is authorised by an enactment only in a very general way, it is unlikely to have the character of a decision for which “provision is made under an enactment”. In Hutchins v Deputy Commissioner of Taxation (1996) 136 ALR 153 Black CJ (at 155) accepted there may be a decision under an enactment notwithstanding the enactment concerned does not expressly require or authorise the decision in question but does so impliedly. He continued (at 156):
“Where, however, the authorisation is very general it is difficult to see how an enactment may be said ‘to make provision’ for a decision in the sense in which that expression was used by Mason CJ in Bond ...It seems to me that Mason CJ contemplated that there might be acts, capable of being called decisions, that were authorised in the sense of being within the general scope of powers conferred by an enactment but as to which the enactment could not be said to make provision, and which would therefore not be decisions under the enactment. Thus, a decision for which ‘provision is made’ by or under an enactment ‘will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for determination’.”
It will be noted the final sentence of this statement of Black CJ links the issues of determinative character and whether a decision is made under an enactment. At 160 Lockhart J accepted decisions may be expressly or impliedly required or authorised by an enactment. At 162 Spender J said:
“The fact that a decision is made within power, ie is not ultra vires a particular statute, does not in my opinion necessarily mean that the decision is a decision made under that enactment. There is no identity between decisions made within power and decisions made under an enactment.”
Black CJ concluded (at 156-157) “a decision that is neither expressly authorised or required, nor impliedly required, by an enactment but which has as its sole source of authority general powers of administration conferred by an enactment is unlikely to be one that is given force or effect by an enactment or by a principle of law applicable to the enactment.”
In Hutchins the applicant sought judicial review of a decision by the Commissioner of Taxation to vote against a motion for composition put to a creditors’ meeting pursuant to Pt X of the Bankruptcy Act 1966 (Cth). The applicant in that proceeding contended the decision was made by the Commissioner “under” one or more of ss 8, 208 and 209 of the ITA Act. Section 8 provides:
“8. The Commissioner shall have the general administration of this Act.”
Section 208 provides for income tax, when due and payable, to be a debt due to the Commonwealth. Section 209 provides a power to recover unpaid tax.
Black CJ held (at 157) s 8, standing on its own, did not give any force or effect to the decision to vote at the meeting of creditors and was far too general in its terms for it to be concluded it makes provision for that decision. He also held the combination of that section and s 208, although authorising the decision in question, did not “make provision” for it in the sense in which that expression was used by Mason CJ in Bond. The addition of s 209 to the combination was even more remote and non-specific. Spender J was also of the view the decision was not made under an enactment. Lockhart J reached his decision on the ground the decision, having no nexus in law between it and the practical outcome of the meeting of creditors as its import was uncertain when made, was not final, operative, or determinative.
The case for the respondent relies on a number of other cases which it is said support the proposition a decision made for the better administration of an Act is not one made under an enactment. In Chittick v Ackland (1984) 53 ALR 143 at 153 Lockhart and Morling JJ approved a passage from the judgment of Ellicott J in Burns v Australian National University (1982) 40 ALR 707 at 716-717, which had earlier been approved by Bowen CJ and Lockhart J on appeal, in which Ellicott J said:
“the Act should not be confined to cases where a particular power is precisely stated. In each case the question to be asked is one of substance, whether, in effect, the decision is made ‘under an enactment’ or otherwise.”
Forster J in Taranto (1980) Pty Ltd v Madigan (1988) 15 ALD 1 at 5 held that even if the decision in issue could be justified as an exercise of general administrative power by the Commonwealth to make arrangements for the proper carrying out of its functions, that would not qualify it as a decision “under an enactment.” That was applied by Lee J in Merman Pty Ltd v Comptroller-General of Customs (1988) 16 ALD 88 at 92 where a decision to conduct an inquiry into the elements of dumping allegations raised in complaints was held to be a decision of this type.
These principles have been again considered and applied in Salerno v National Crime Authority (1997) 144 ALR 709. There the appellant sought to review a decision of the National Crime Authority (“the NCA”) to raid his premises utilising a general warrant under s 67 of the Summary Offences Act 1953 (SA) as a step in a wider investigation authorised pursuant to s 11 of the ADJR Act. The Full Court (von Doussa, Drummond and Mansfield JJ) held the determination by the NCA to raid the premises by utilising the general warrant had the necessary qualities, including its effect on the appellant’s legal rights and the character of finality, to enable it to be regarded as a reviewable decision. On the question whether the determination qualified as “made under an enactment”, the Court applied the majority decision in Hutchins, referring extensively to the reasons for judgment of Black CJ at 156‑157, and the Full Court in Australian National University v Lewins (1996) 138 ALR 1 in which support for Hutchins was expressed. The Court also stated the distinction drawn by the Black CJ in Hutchins between decisions authorised only in a general way by an enactment and those which are expressly or impliedly required by an enactment or which are given force or effect to by the enactment gives proper effect to balancing the two competing policy considerations referred to by Mason CJ in Bond at 336-337, namely the need for a convenient and effective means of redress for persons aggrieved by administrative decision-making and the risk to the efficient administration of government. Applying Hutchins, the Full Court in Salerno held the determination of the NCA not to be reviewable.
In Lewins the issue was whether a lecturer, whose application for promotion made in accordance with the statement on policy and procedures on academic promotions published by the university was rejected, was entitled, pursuant to s 13 of the ADJR Act, to a statement of reasons for the decision. At 14 Lehane J, with whom Kiefel J agreed, rejected a submission the decision refusing promotion was one made under a section of the Australian National University Act 1991 (Cth), which conferred a range of powers on the university, including power “to employ staff.” Lehane J characterised this as a general power requiring the application of Hutchins.
Hutchins and Salerno have recently been applied by Sundberg J in Knuckeyv FC of T 97 ATC 4911 at 4918-4919 in holding a decision by the Commissioner to establish a “Work Related Expenses Audit Program” and to include the applicant in it was authorised but only generally by s 8 of the ITA Act and accordingly was not reviewable.
Applicant’s case
The case for the applicant commences by accepting there is no express statutory authority for the decision. It also accepts s 8 of the ITA Act, on the authority of Hutchins, is insufficient on its own to qualify the decision for review. The case relies upon the PS Act as the material statute. Subsection 25(2) of that Act provides for the Secretary of the Department, under the Minister, to be responsible for “its general working, and for all the business thereof...”. It is conceded this subsection is to similar effect as s 8 of the ITA Act. However, it is contended the respondent’s decision was made pursuant to and under the disciplinary provisions in the PS Act contained in Pt III, Div 6 and in particular subdiv C which contains provisions relating to officers other than Secretaries of Departments.
That subdivision includes subs 61(2) which as has already appeared, requires an officer conducting an inquiry to be authorized by the relevant Secretary. Mr Dawson’s evidence is he is not an authorized officer for that purpose and was not so authorized when making the decision in relation to the applicant’s complaint.
The case for the applicant contends this is of no account because subs 61(2) requires an authorised officer to form an opinion whether an officer may have failed to fulfil a duty. This, it is submitted, has the consequence the decision made by Mr Dawson on behalf of the respondent was part of the process of the decision ultimately required by the authorised officer pursuant to that subsection.
In support of this submission the applicant’s case places reliance upon Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 at 302-303. It was there held s 6A of the Migration Act 1958 (Cth) impliedly conferred on the Minister the function of determining whether an applicant under the section has the “ status of a refugee” so that such determination was made “under an enactment.” The section provided that an entry permit should not be granted to a “non-citizen” after entry into Australian unless certain conditions were fulfilled. One such condition was that the Minister had so determined. Mason, Deane and Dawson JJ reached that decision (at 303) partly on the context of the Act, in which there where a number of other provisions appearing impliedly to confer upon the Minister or another official the function of making the determination or decision upon which the particular provision operated.
Founded on this, the case for the applicant submits it can be implied from the terms of s 61 that as part of the authorised officer’s decision, a prior decision must have been reached. In the present case that decision was that no action be taken. It is submitted this latter decision is properly to be seen as having been impliedly made under s 61(2).
This submission is put in another and supplemental way. It is submitted the decision has a sufficiently close connection with the legislative provision (subs 61(2)) to make it appropriate to speak of it as having been made “under” that provision. This is supported by reference to Burns at 173 where Bowen CJ and Lockhart J agreed with Fox ACJ in Evans v Friemann (1981) 53 FLR 229 at 238 that the word “under” in this context connotes “in pursuance of” or “under the authority of.” Additionally the applicant’s case refers to the statement by Neaves J in Emanuele v Cahill (1987) 18 FCR 304 at 315 (cited in Burns at 173) that “the question is whether, as a matter of substance, the decision has a sufficiently close connection with the legislative provision to make it appropriate to speak of it as having been made “under” that provision in the sense in which that word was understood”.
Furthermore, it is submitted for the applicant the policy considerations adverse to having the decision reviewable are not applicable in this case.
I do not consider the decision by Mr Dawson can properly be characterised as having been made “under” subs 61(2). Nor was his decision “in pursuance of” or “under the authority of” that subsection. There is no sufficiently close connection of the decision with the subsection because the effect of the decision was no action pursuant to the subsection was required.
I consider the decision falls within the general powers of administration conferred by the PS Act. Adopting the words of Black CJ in Hutchins (at 156) the decision was “authorised in the sense of being within the general scope of powers conferred... but as to which the enactment could not be said to make provision”. This conclusion is relevant to the policy considerations mentioned by Mason CJ in Bond (at 336-337). As was said by the Full Court (von Doussa, Drummond and Mansfield JJ) in Salerno (at 718‑719), “[i]f a general authorisation in a statute for a decision ... is sufficient to make it a decision under the statute ...every intra vires action of that organisation that has decisional effect and every kind of conduct engaged in by it for the purpose of making a decision would be examinable by the court.”
Furthermore, I do not consider the subsection implies any authority for the decision of Mr Dawson so that his decision becomes authorised by the subsection. What the subsection does is to (expressly) provide the Secretary must authorise an officer in terms of the subsection. That implies only there are before the Secretary circumstances making appropriate the grant by him or her of such an authorisation to enable the facts to be properly found. This is an entirely distinguishable case from that in Mayer where a decision (and not only the existence of circumstances) on refugee status was a pre-condition to the subsequent decision. The decision has no point of reference in the subsection nor are there other sections said to point to the implication contended for.
Disciplinary Handbook as an “instrument”
The definition of ‘enactment’ in s 3(1) of the ADJR Act includes in its meaning an instrument (including rules, regulations or by-laws) made under an Act or under an Ordinance. In this matter there is a Disciplinary Handbook (third ed, June 1988), being part of a Personnel Management Manual, vol 3, published by the Australian Government Publishing Service (“the Handbook”). So far as portions of the Handbook are exhibited, it comprises Ch 4 on “misconduct” and Ch 6 on “cases involving both misconduct and breaches of the criminal law.” The former has as its objective a discussion of the nature of misconduct and provision of guidance on the initial investigation of possible misconduct, the laying of charges, and the holding of inquiries into charges. Both chapters purport to consider inter alia the application of ss 61 and 62 of the PS Act. The former chapter seeks to explain the nature of misconduct and wilful disobedience. The latter addresses considerations involved in distinguishing misconduct from criminal conduct. Paragraph 6.3 describes ss 61 and 62 as setting out procedures to be followed.
The case for the respondent is the Handbook is not an instrument so that, if any decision was made under it, it was not a decision made under an enactment.
In Chittick at 153 Lockhart and Morling JJ held for a document to qualify as such an instrument it must not only be a document under a relevant enactment by which decisions of an administrative character may be made, but which also has the capacity to affect legal rights and obligations. There a document embodying the formal statement of terms and conditions of employment to apply to all employees issued by the Health Insurance Commission pursuant to an express power to determine such conditions contained in the relevant Act was found to be an instrument. In Merman at 93 Lee J found a notification of investigation issued by the Australian Customs Service was not issued pursuant to any authority in the relevant Act but rather the executive power of the Commonwealth, so that it could not qualify as an instrument.
The portions of the Handbook upon which reliance is placed in evidence do not found a finding the Handbook is an instrument in the required statutory sense. In its terms it does not seek to affect legal rights and interests. It provides no foundation for the decision. Rather it seeks to provide guidance to administrators and accepts the relevant procedures are to be found in the PS Act.
In any event, the Handbook as exhibited relies for its efficacy on the application of s 61 of that Act. I have found that section does not have an application in the manner contended to the decision of Mr Dawson.
Nothing is added to the force of the submissions for the applicant in relation to the Handbook by reference to the obligation cast on an officer pursuant to regs 8A(b) and (d) of the Public Service Regulations. The former obliges an officer to comply with departmental instructions applicable to the performance of duties. The latter requires an officer to have regard to any official guidelines or recommendations applicable to the performance of duties.
I therefore conclude the decision was not made “under an enactment.”
It is accordingly unnecessary to consider the further submissions for the respondent that the application be dismissed pursuant to O 22 r 2 of the FCR.
For these reasons I would allow the respondent’s motion for dismissal.
I certify that this and the preceding sixteen (16) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice R D NICHOLSON
Associate:
Dated: 18 March 1998
Counsel for the Applicant: R Davis Solicitor for the Applicant: None on record Counsel for the Respondent: S Owen‑Conway QC Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 11 December 1997 Date of Judgment: 18 March 1998
25
0
0