Skiba v Commonwealth Ombudsman
[2022] FedCFamC2G 216
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Skiba v Commonwealth Ombudsman [2022] FedCFamC2G 216
File number(s): SYG 1408 of 2021 Judgment of: JUDGE CAMERON Date of judgment: 1 April 2022 Catchwords: ADMINISTRATIVE LAW – whether administrative action by Commonwealth Ombudsman affected the applicant’s legal rights and obligations – whether Administrative Decisions (Judicial Review) Act 1977 applies to the Commonwealth Ombudsman – whether s.4 of the Administrative Decisions (Judicial Review) Act 1977 derogates from s.33 of the Ombudsman Act 1976. Legislation: Acts Interpretation Act1901 (Cth) s.34AB(1)(c)
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss.3, 4, 6, 7, 10
Ombudsman Act 1976 (Cth) ss.5, 6, 33
Ombudsman Amendment Act1983 (Cth) s.24
Prime Minister and Cabinet Legislation Amendment Act 1991 (Cth) sch.1
Law Enforcement (AFP Professional Standards and Related Measures) Act 2006 (Cth) item 60 sch.3
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 r.27.06
Cases cited: Griffith University v Tang (2005) 221 CLR 99
NAKF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 210
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749
Courtice v Australian Electoral Commission (1990) 21 FCR 554
Black v Director-General of Education [1982] 2 NSWLR 714
Maybury v Plowman (1913) 16 CLR 468
South-Eastern Drainage Board v Savings Bank of South Australia (1939) 62 CLR 603
Division: General Number of paragraphs: 39 Date of hearing: 22 March 2022 Place: Sydney Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Ms C. Winnett ORDERS
SYG 1408 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ZOFIA SKIBA
Applicant
AND: COMMONWEALTH OMBUDSMAN
Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
1 APRIL 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
INTRODUCTION/BACKGROUND
On 18 June 2021 the applicant, Ms Skiba, filed an originating application in the Federal Court of Australia. In it she sought judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”) of certain conduct of the respondent (“Ombudsman”) through persons who may be presumed to be his delegates and for whose acts he is responsible under s.34AB(1)(c) of the Acts Interpretation Act1901 (Cth). The acts in question were said to be the Ombudsman’s refusals to process and make decisions with respect to Ms Skiba’s complaints to him under the Ombudsman Act 1976 (Cth) (“Ombudsman Act”) dated 15 October 2020 (“First Complaint”) and 8 December 2020 (“Second Complaint”) (“Complaints”) . The matter was transferred to this Court by order dated 26 July 2021. On 4 August 2021 Ms Skiba filed an amended application.
The Ombudsman has, under r.27.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (“FCFCOA Div 2 GFL Rules”), filed a notice of objection to competency. The matter has come before the Court at this stage to determine that interlocutory issue.
Rule 27.06 of the FCFCOA Div 2 GFL Rules states that an applicant carries the burden of establishing the competency of an application.
FACTUAL BACKGROUND
First Complaint – 15 October 2020
In 2019 Ms Skiba submitted a complaint to the Ombudsman regarding the conduct of the Department of Employment (“DoE Complaint”) and on 15 May 2020 the Ombudsman notified her that he had decided to not to investigate it. Ms Skiba and the Ombudsman exchanged further correspondence in which Ms Skiba requested an internal review, providing additional evidence in support of her complaint, but the Ombudsman declined her request.
Ms Skiba did not accept that the Ombudsman had considered the additional information she had provided and so on 15 October 2020 she submitted the First Complaint which concerned his treatment of the DoE Complaint. In the First Complaint’s complaint form she said:
I wish to make a complaint about the Commonwealth Ombudsman Office for performing administrative actions that are factually, procedurally, and legally deficient. This includes deliberate refusal to consider evidence regarding a case and making decisions on grounds that contradict evidence.
A letter that was submitted in support of the First Complaint said, amongst other things:
…
Summary
There is no decision made under the Ombudsman Act, which was made after I provided the additional evidence, and the CO will not respond to my complaint supported by the additional evidence. In this way the additional evidence was banned from being considered in making a decision under the Ombudsman Act (and consequently, banned from being judicially considered).
My expectation about the outcome of this complaint
I want the CO to re-open the complaint 2019-713816 and make a decision under the Ombudsman Act which includes references to the new evidence provided on 29 July 2020.
…
On 6 November 2020 the Ombudsman wrote to Ms Skiba advising that he had decided to review his handling of the DoE complaint. On 22 January 2021 the Ombudsman wrote again to Ms Skiba advising that following further consideration, including of material supplied by her, he had decided to reopen her DoE complaint and conduct an investigation. Between those dates, on 20 November 2020, the Ombudsman closed his file on the First Complaint for the reason that the action it sought had been taken. On 8 April 2021 the Ombudsman wrote to Ms Skiba advising her that his investigations had not substantiated her allegations and, following further correspondence with her, on 19 April 2021 advised her by email that the file on the DoE Complaint would be closed.
It was not until his email of 23 April 2021, referred to later in these reasons, that the Ombudsman advised Ms Skiba that he had closed the file on the First Complaint when he decided to reopen the DoE Complaint file.
Second Complaint – 8 December 2020
In her affidavit sworn 18 June 2021, Ms Skiba deposed that on 13 January 2020 and 17 February 2020 she had made complaints to the Ombudsman:
… in which I expressed my … dissatisfaction with OCO dishonest practices towards complainants.
In response to a further complaint of Ms Skiba dated 15 March 2020, the Ombudsman advised her in an email dated 2 April 2020 that he informed complainants that Centrelink cancellation decisions made by computer were reviewable by Authorised Review Officers and by the Administrative Appeals Tribunal.
On 8 December 2020, Ms Skiba submitted the Second Complaint. In it she alleged that the Ombudsman’s 2 April 2020 statement regarding Centrelink reviews, which she argued was incorrect, amounted to engaging in “deceptive activities towards complainants”. Ms Skiba relevantly requested of the Ombudsman that a decision regarding the Second Complaint be made “under the Ombudsman Act”.
The Ombudsman responded to the Second Complaint by a letter to Ms Skiba dated 28 May 2021. It stated that he was satisfied that the information provided on 2 April 2020 was correct. The Ombudsman closed the Second Complaint file on 28 May 2021.
APPLICATION
Ms Skiba’s amended application in this proceeding states:
The Applicant applies to the Court to review Respondent's conduct of refusal to process and decide under the Ombudsman Act 1976 (Ombudsman Act) Applicant's complaints dated 15 Oct 2020 and 8 Dec 2020 regarding administrative actions of the Office of the Commonwealth Ombudsman.
Details of claim
The Applicant is aggrieved by the conduct because:
1. The Respondent failed to fulfil its obligations under the Ombudsman Act.
2.The Respondent is the only entity that can investigate the complaints
Grounds of application
·The Respondent erred in respect of section 6(1)(b) of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act), or alternatively, the Respondent fell into jurisdictional error by refusing to process and decide Applicant's complaints under the Ombudsman Act.
...
·The Respondent exercised a discretionary power in bad faith within the meaning of sections 6(1)(e) and 6(2)(d) of the ADJR Act.
…
·Alternatively. if that the Court determines that refusal to process and decide Applicant's complaints under the Ombudsman Act is more appropriately to be considered as failure to make decisions the Respondent erred in respect of section 7(1) of the ADJR Act.
The amended application stated in relation to the first ground of application that the Ombudsman had been “obliged to process and decide [her] complaints under the Ombudsman Act”. It stated in relation to the second ground of application that the Ombudsman had erred by stating “that decisions of the Commonwealth Ombudsman cannot be considered to be decisions for the purpose of the ADJR Act, and therefore cannot be reviewed externally”. Ms Skiba repeated in the context of the third ground the points she raised in relation to the first.
OBJECTION TO COMPETENCY
In his notice of objection to competency the Ombudsman contended:
1.The conduct which the applicant seeks review of, being the refusal to process the Applicant’s complaints dated 15 October 2020 and 8 December 2020, is not conduct reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) as the conduct does not arise in connection with a “decision to which” the ADJR Act applies. Specifically, there is no decision the Respondent could make which would confer, alter or otherwise affect legal rights or obligations: Griffith University v Tang (2005) 221 CLR 99 at [80], [89].
2.Further or in the alternative, the proceeding is barred by s 33 of the Ombudsman Act 1976 (Cth) which provides that the Respondent is not liable to any action, suit or proceeding for or in relation to an act done in good faith in exercise or purported exercise of any power conferred by the Ombudsman Act 1976 (Cth).
LEGISLATION
The Ombudsman Act relevantly provides:
5 Functions of Ombudsman
(1) Subject to this Act, the Ombudsman:
(a)shall investigate action, being action that relates to a matter of administration, taken either before or after the commencement of this Act by a Department, or by a prescribed authority, and in respect of which a complaint has been made to the Ombudsman; and
…
6 Discretion not to investigate certain complaints
…
(3)Where the Ombudsman is of the opinion that a complainant has or had a right to cause the action to which the complaint relates to be reviewed by a court or by a tribunal constituted by or under an enactment but has not exercised that right, the Ombudsman may decide not to investigate the action or not to investigate the action further, as the case may be, if he or she is of the opinion that, in all the circumstances, it would be reasonable for the complainant to exercise, or would have been reasonable for the complainant to have exercised, that right.
…
33 Ombudsman not to be sued
(1)Subject to section 35, neither the Ombudsman nor a person acting under his or her direction or authority is liable to an action, suit or proceeding for or in relation to an act done or omitted to be done in good faith in exercise or purported exercise of any power or authority conferred by this Act or Division 7 of Part V of the Australian Federal Police Act 1979.
(2)A reference in this section to the Ombudsman includes a reference to a Deputy Ombudsman or a delegate of the Ombudsman.
Section 35 is not relevant to this case.
The ADJR Act relevantly provides:
3 Interpretation
(1)In this Act, unless the contrary intention appears:
…
"decision to which this Act applies" means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition):
(a) under an enactment referred to in paragraph (a), (b), (c), (d) or (e) of the definition of enactment ; or
(b)by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca), (cb) or (f) of the definition of enactment
…
4 Act to operate notwithstanding anything in existing laws
This Act has effect notwithstanding anything contained in any law in force at the commencement of this Act
…
6 Applications for review of conduct related to making of decisions
(1)Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the conduct on any one or more of the following grounds:
(a)that a breach of the rules of natural justice has occurred, is occurring, or is likely to occur, in connection with the conduct;
(b)that procedures that are required by law to be observed in respect of the conduct have not been, are not being, or are likely not to be, observed;
…
(e)that the making of the proposed decision would be an improper exercise of the power conferred by the enactment in pursuance of which the decision is proposed to be made;
…
(2)The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:
...
(d) an exercise of a discretionary power in bad faith;
…
7 Applications in respect of failures to make decisions
(1) Where:
(a)a person has a duty to make a decision to which this Act applies;
(b)there is no law that prescribes a period within which the person is required to make that decision; and
(c) the person has failed to make that decision;
a person who is aggrieved by the failure of the first‑mentioned person to make the decision may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the failure to make the decision on the ground that there has been unreasonable delay in making the decision.
…
10 Rights conferred by this Act to be additional to other rights
(1)The rights conferred by sections 5, 6 and 7 on a person to make an application to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) in respect of a decision, in respect of conduct engaged in for the purpose of making a decision or in respect of a failure to make a decision:
…
(b)shall be disregarded for the purposes of the application of subsection 6(3) of the Ombudsman Act 1976 and section 40TF of the Australian Federal Police Act 1979.
…
DISCUSSION
Ms Skiba’s submissions
Ms Skiba submitted that the Complaints concerned administrative actions taken by the Ombudsman’s office and that, despite her explicit request that they be processed under the Ombudsman Act, he processed them as service delivery complaints “without legal backing or authority”, the point being that the Ombudsman had advised her that the consideration of “service delivery complaints” was not something provided for under the Ombudsman Act. She referred in that regard to the Ombudsman’s email to her of 23 April 2021, concerning the First Complaint, which stated:
On 15 October 2020, we received the attached online complaint form from you, plus several attachments. We registered this on our case management system with reference 2020-712730. You complained about how we handled the complaint you lodged to us on 26 November 2019 (our ref: 2019-713816). That was a complaint about the Department of Employment, Skills, Small and Family Business.
We cannot investigate ourselves under the Ombudsman Act 1976. We treated 2020-712730 as a service delivery complaint. Service delivery complaints are an internal administrative practice - they have no legal backing or authority. We do them as a matter of best practice.
To address your service delivery complaint, we reopened 2019-713816 and investigated it under the Ombudsman Act. When we decided to reopen 2019-713816, we closed 2020-712730. I apologise for not specifically telling you this. I hope this email addresses your query.
Ms Skiba argued that the Ombudsman had rejected the Complaints upon receipt, without attempting to determine whether the Ombudsman Act authorised him to investigate them.
In an affidavit filed on 9 September 2022 and verified at the interlocutory hearing on 22 March 2022, Ms Skiba deposed that the “Commonwealth Ombudsman Work Practices Manual for Complaint Management” (“WPM”) explained that:
… complaints related to actions which are within the Respondent’s service standards are not service delivery complaints.
She submitted in that affidavit that the Complaints were not “service delivery complaints” but concerned administrative actions “delivered within the [Ombudsman’s] service standards” which the Ombudsman Act obliged the Ombudsman to process and decide under that Act.
What the WPM relevantly states is that:
A service delivery complaint is an oral or written expression of dissatisfaction with an aspect of the services provided by the office, other than the decisions made in relation to an approach. …
This may include allegations of inappropriate conduct by staff, our responsiveness to an approach, rudeness by a particular officer, conflict of interest, undue delay, or even corruption. Service delivery complaints may also relate to access to phone services or services provided through our website.
…
Complaints about the decisions we make in relation to approaches to the office, such as deciding not to investigate an approach or not to investigate further, are not service delivery complaints, but rather are managed through the internal review process … .
The WPM describes an “approach” as:
… a contact with the office about a new matter regarding one of our core business functions.
We receive and consider approaches from members of the public, including complaints from people who believe they have been treated unfairly or unreasonably by an Australian Government department or agency.
A complaint can be defined as an expression of dissatisfaction or a grievance with an organisation's policies, procedures, charges, employees, agents, quality of service or product sold or provided.
The WPM also states:
Right to review
Although people have no statutory right to seek internal review of our decisions, we do offer them a review if they remain dissatisfied after an IO has reconsidered their decision not to investigate or not to investigate further.
In some circumstances they may also have external avenues of review or complaint. Our internal review process provides dissatisfied complainants with an opportunity to seek a fresh evaluation of a decision made by our office. For example, complainants may seek review of a decision to decline to investigate an approach, or a review of the outcome of an investigation (where the complainant is not satisfied with the remedies achieved and/or the decision not to investigate further).
…
A review is not a re-investigation of a complaint, but looks at the process adopted by the IO and the merits of the IO’s conclusion. When requesting a review, complainants should be advised to clearly identify why they consider the original decision was wrong and, where possible, provide information or evidence in support of their view.
In relation to external review, the WPM relevantly states:
4.5 External reviews
Complainants have the right to:
· request, under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act), a statement of reasons for a decision we have made about a complaint
· apply to the Federal Court or Federal Circuit Court for a review of a decision we have made about a complaint. …
…
Review by the Federal Court or Federal Circuit Court
Section 5 of the ADJR Act enables a person who is aggrieved by a decision to apply to the Federal Court or the Federal Circuit Court for a review. …
Conditions precedent to ADJR Act reviews
Ms Skiba seeks relief by way of review under ss.6 and 7 of the ADJR Act. Those sections are concerned with decisions or potential decisions “to which this Act applies”. That expression is relevantly defined in s.3(1) of the ADJR Act as a “decision of an administrative character made … under an enactment” which, in turn has been held to refer to a decision expressly or impliedly required or authorised by a statute and which affects legal rights and obligations: Griffith University v Tang (2005) 221 CLR 99 per Gleeson CJ at 107 [10], Gummow, Callinan and Heydon JJ at 128 [78], [80].
Decision authorised by a statute and which affects legal rights and obligations
It is convenient to deal first with the second limb of the Griffith University v Tang test.
Affecting legal rights and obligations
In her submissions in reply, Ms Skiba argued that the Ombudsman’s decisions on the Complaints affected her legal rights because those decision gave her “the legal right to apply for judicial review of the decisions”. The argument is a circular proposition because Griffith University v Tang states that a decision will not be a “decision of an administrative character made … under an enactment” unless it affects legal rights and obligations. The relevant legal right is the right that is affected by the decision in issue, not the right to judicial review that may consequentially arise from the making of the decision.
That conclusion arises out of the question asked by the plurality in Griffith University v Tang:
What is it, in the course of administration, that flows from or arises out of the decision taken so as to give that significance which has merited the legislative conferral of a right of judicial review upon those aggrieved? (at 128 [79])
and their Honours’ response:
The answer in general terms is the affecting of legal rights and obligations. Do legal rights or duties owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement? To adapt what was said by Lehane J in Lewins, does the decision in question derive from the enactment the capacity to affect legal rights and obligations? Are legal rights and obligations affected not under the general law but by virtue of the statute? (at 128 [80]) (references omitted)
Once it is understood that the right to judicial review relevantly requires there to have been a decision that concerned legal rights or obligations, attention turns to whether the decisions to decline to consider Ms Skiba’s Complaints under the Ombudsman Act were of that sort. The Ombudsman submitted in that regard that:
… Even if that conduct took place “under an enactment”, the Ombudsman office’s review of its own activities in dealing with or responding to a complaint, necessarily undertaken outside the framework of the Ombudsman Act, cannot alter any person’s legal interests one way or another.
The result is no different even if … the Ombudsman can investigate his or her own actions under the Ombudsman Act. A decision by the Ombudsman not to commence or continue an investigation that is open to the Ombudsman to conduct (ss 5(1), 6(1), 12(1)) cannot affect legal rights and liabilities for the same reason that a decision to investigate a complaint cannot affect legal rights and liabilities. In the exercise of powers under ss 5, 6 and 12, the Ombudsman’s function is only to investigate complaints and to make recommendations to agencies and members of the government. In other words, his or her role is to “persuade not adjudicate”. … (references omitted)
I do not agree that the Ombudsman’s review of his own activities is “necessarily undertaken outside the framework of the Ombudsman Act”, but otherwise accept the correctness of that passage.
Consequently, because the Ombudsman’s decisions in relation to the Complaints did not affect any of Ms Skiba’s legal rights or obligations in the sense identified in Griffith University v Tang, they are not reviewable decisions for the purposes of the ADJR Act. Further, Ms Skiba did not point to any other right or obligation that was allegedly affected by the Ombudsman’s actions. She has therefore not satisfied the second part of the Griffith University v Tang test. Relevantly, I find that the Ombudsman’s decisions on the Complaints are not decisions reviewable under the ADJR Act.
Decision made under an enactment
In light of my conclusion that because they did not affect her legal rights or entitlements the Ombudsman’s decisions on Ms Skiba’s complaints are not reviewable under the ADJR Act, it is not necessary to consider whether they were decisions “made under an enactment”. However, because the point was argued, I make the following comments.
Section 5 of the Ombudsman Act relevantly empowers the Ombudsman to investigate administrative action taken “by a Department, or by a prescribed authority”. The definition of “prescribed authority” in s.3 of the Ombudsman Act would ostensibly comprehend the Ombudsman on the basis that he is a “person holding, or performing the duties of, an office established by an enactment”, with the consequence that he could investigate himself and his office. The distinction drawn by the Ombudsman between “approaches”, which the WPM says in its para 4.5 are subject to ADJR Act review, and “service delivery complaints”, which his email of 23 April 2021 implies are not, is difficult to understand. If the ADJR Act applies to the Ombudsman, in the absence of any detailed argument on the point there seems no reason to believe that its operation is limited to reviewing his decisions on “approaches”. The obligation to investigate administrative action found in s.5(1) of the Ombudsman Act is not, in terms, limited to investigation of others’ actions. The Ombudsman’s office takes its own administrative action, including in the way it handles complaints and, subject to the following discussion, that sort of activity would appear to fall within the scope of s.5(1) and be reviewable under the ADJR Act.
The Ombudsman submitted that he did not have a duty to investigate himself. Reference was made in submissions to:
·s.6(1A), (1B), (1C);
·s.7A;
·s.8(1), (5);
·s.12(1), (3), (4), (5);
·s.15;
·s.16;
·s.17; and
·s.18 of the Ombudsman Act,
all of which are drawn in terms that indicate that Parliament did not intend the Ombudsman to investigate himself. If he were intended to, those provisions would have an absurd operation.
It seems unlikely that a statute would be so clumsily drawn that the inapplicability to the Ombudsman of s.5 of his own Act would have to be inferred from such apparent drafting infelicities. The better inference would appear to be that any inability of the Ombudsman to investigate himself finds its source elsewhere. The explanatory memorandum to the Ombudsman Bill 1976 may point the way. Relevantly, it states:
“prescribed authority”:
(A)The concept of ‘prescribed authority’ is of particular significance in giving the Ombudsman a wide jurisdiction over persons responsible for carrying out administrative functions of government on behalf of the Commonwealth. … the definition of prescribed authority is intended to include all of the agencies, other than Departments of the Public Service, by which administrative functions of the Commonwealth Government are performed, and to bring them within the jurisdiction of the Ombudsman.
It is apparent from that passage that the Ombudsman Act was intended to provide the Ombudsman with jurisdiction “over” persons and entities. That seems to be an outward looking power, not one which implies self-investigation in the form of the Ombudsman submitting himself to the jurisdiction of himself. If that is so, Ms Skiba’s Complaints were not made to a prescribed authority susceptible to investigation by the Ombudsman with the consequence that his decisions made in relation to them were not decisions under the Ombudsman Act or, for that reason, decisions reviewable under the ADJR Act.
Before passing from this topic, it should be noted that Ms Skiba referred in her written submissions to s.10(1)(b) of the ADJR Act but that provision is not relevant to this case as it does not indicate, as she contends, that decisions under the Ombudsman Act are “considered to be reviewable under the ADJR Act”. Rather, it permits the Ombudsman to investigate administrative action which would otherwise be prevented by s.6(3) of the Ombudsman Act because a right of review was also available under the ADJR Act in respect of it.
Application barred by s.33 of the Ombudsman Act
The Ombudsman submitted the bringing of this proceeding is precluded by the immunity from suit conferred by s 33 of the Ombudsman Act. For her part, Ms Skiba submitted that by refusing to fulfil his obligations under the Ombudsman Act the Ombudsman had failed to act in good faith with the consequence that s.33 did not apply to protect him from liability in this case. She further submitted that the ADJR Act overrode s.33 of the Ombudsman Act because its s.4 states:
This Act has effect notwithstanding anything contained in any law in force at the commencement of this Act.
In light of my earlier findings it is also not necessary to reach a decision on this issue but I make the following observations.
At the outset, it should be recorded that Ms Skiba did not submit that s.33 would not apply and consequently bar this action if her two particular arguments were unsuccessful. In relation to the first of those arguments, Ms Skiba’s allegation that the Ombudsman’s decisions on the Complaints could not “be considered to be an act done in good faith” is, in substance and effect, an allegation that the Ombudsman acted in bad faith: NAKF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 210 at 217 [16]. Further, as the Full Court of the Federal Court said in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at 756 [43] to [46]:
(a)an allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker;
(b)the allegation is not to be lightly made and must be clearly alleged and proved;
(c)the presence or absence of honesty will often be crucial;
(d)the circumstances in which the Court will find an administrative decision-maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review;
(e)mere error or irrationality does not of itself demonstrate lack of good faith. Bad faith is not to be found simply because of poor decision-making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision-maker did not undertake their task in a way which involves personal criticism;
(f)errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness;
(g)the Court must make a decision as to whether or not bad faith is shown by inference from what the decision-maker has done or failed to do and from the extent to which the reasons disclose how the decision-maker approached their task; and
(h)it is not necessary to demonstrate that the decision-maker knew the decision was wrong. It is sufficient to demonstrate recklessness in the exercise of the power.
Ms Skiba has failed to identify what it was about each of the decisions on her Complaints that amounted to a failure to act in good faith, as that term is understood in light of the authorities, rather than to them simply being decisions with which she disagreed.
In relation to Ms Skiba’s second point, s.4 of the ADJR Act does appear to create a presumption in favour of amendment or repeal of earlier laws: Courtice v Australian Electoral Commission (1990) 21 FCR 554 at 555. In support of the proposition that it does not create such a presumption, the Ombudsman submitted that s.4 is a more general provision and s.33 is a more specific provision and so, notwithstanding that s.4 was enacted later in time, it does not affect s.33: generalia specialibus non derogant.
However, the existence of the Ombudsman was referred to by the Attorney-General in his 28 April 1977 second reading speech on the Administrative Decisions (Judicial Review) Bill 1977, in terms including the following:
… The Bill is a further step in the on-going review of Commonwealth administrative law that began with the establishment of the Administrative Review Committee - the Kerr Committee - in 1968 by the then Attorney-General. The proposals by that Committee have so far resulted in the establishment of the Administrative Appeals Tribunal and the Administrative Review Council and the enactment of the Ombudsman Act. …
…
It will thus be seen that the 3 avenues of review, appeal on the merits to the Administrative Appeals Tribunal, investigation by the Commonwealth Ombudsman, and judicial review by the Federal Court of Australia, provide different approaches to the remedying of grievances about Commonwealth administrative action. Each has its own place in a comprehensive scheme for the redress of grievances. (Second Reading Speech for the Administrative Decisions (Judicial Review) Bill 1977 (Cth), Parliamentary Debates (House of Representative), Hansard, 28 April 1977 at pp.1934, 1935)
In a situation rather the reverse of Black v Director-General of Education [1982] 2 NSWLR 714 at 718, referred to by the Ombudsman in submissions, it is apparent by its terms and by the fact that the Attorney-General referred to the Ombudsman in his second reading speech, that s.4 was intended to cover the field and sufficiently clearly displaces the presumption that Parliament did not intend provisions such as s.33, wherever found, to be unaffected by its enactment: cf. Maybury v Plowman (1913) 16 CLR 468 at 473-474 per Barton ACJ. Section 4 of the ADJR Act operates according to its meaning and must be given effect, potentially at the expense of s.33 of the Ombudsman Act: South-Eastern Drainage Board v Savings Bank of South Australia (1939) 62 CLR 603 per Dixon J at 625. It is true, as the Ombudsman submitted, that s.33 has been amended since 1977 but there is nothing about the amendments that suggests an intention to derogate from s.4 of the ADJR Act: s.24 of the Ombudsman Amendment Act1983 (Cth) inserted “or a delegate of the Ombudsman” at the end of s.33(2); sch.1 of the Prime Minister and Cabinet Legislation Amendment Act 1991 (Cth) inserted “or her” after “his” in s.33(1); and item 60 of sch.3 to the Law Enforcement (AFP Professional Standards and Related Measures) Act 2006 (Cth) added “or Division 78 of Part V of the Australian Federal Police Act 1979” to the end of s.33(1).
That is not the end of the matter, however. If the Ombudsman is not subject to the ADJR Act, because he is neither a department nor, more relevantly, a prescribed authority, s.4 could have no work to do in the context of s.33 of the Ombudsman Act. Such an understanding - that the ADJR Act does not apply to the Ombudsman - is not inconsistent, particularly as the two Acts had their genesis in the same review of administrative law, with the absence in the 45 years since 1977 of any amendment of s.33 addressed to derogating from the operation of s.4.
CONCLUSION
I find that the application to the Court is not competent and must be dismissed.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 1 April 2022
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