Wang and Australian Federal Police
[2005] AATA 908
•16 September 2005
CATCHWORDS – PRACTICE AND PROCEDURE – jurisdiction – decisions by Australian Federal Police not to investigate allegations made by applicant – whether reviewable decisions – whether Tribunal required to order transcript on applicant’s behalf – no jurisdiction.
Administrative Appeals Tribunal Act 1975 ss. 3 and 25
Administrative Decisions (Judicial Review) Act 1977 ss. 3 and 5
Australian Federal Police Act 1979 ss. 8, 9 and 37
Judiciary Act 1903 s. 39B
O’Malley v Keelty, Australian Federal Police Commissioner [2004] FCA 1688
DECISION AND REASONS FOR DECISION [2005] AATA 908
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2005/635 & V2005/637
GENERAL ADMINISTRATIVE DIVISION )
Re NAN WANG
Applicant
AndAUSTRALIAN FEDERAL POLICE
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 16 September 2005
Place: Melbourne
Decision:The Tribunal does not have jurisdiction to review the respondent’s decisions dated 5 and 14 July 2005.
S A FORGIE
Deputy President
REASONS FOR DECISION
Mr Nan Wang has asked the Tribunal to review two decisions of the Australian Federal Police (“AFP”). They are decisions not to investigate two allegations he has made. At the hearing, I told Mr Wang that I had decided that I cannot review the AFP’s decisions because the Tribunal does not have the authority or power, and so the jurisdiction, to do so. Mr Wang has asked for me to give him written reasons for my decision.
THE ISSUE
The issue in this case is whether the Tribunal has the authority or power, and so jurisdiction, to review decisions made by the Australian Federal Police.
CONSIDERATION
Legislative framework
The Tribunal cannot review any decision that is made by a Commonwealth authority or agency. It can only review those decisions that the Commonwealth Parliament has said that it may review. This comes about because the Tribunal is a body that has been created by an Act of the Commonwealth Parliament. A body created by an Act only has the power that the Commonwealth Parliament gives it. The Commonwealth Parliament may choose to give the power in the Act that creates it or in another Act that refers to that body.
The Act that created the Tribunal is the Administrative Appeals Tribunal Act 1975 (“AAT Act”). Section 25(1) of the AAT Act provides that:
“(1) An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.”
The effect of this section is that a person will only be able to apply to the Tribunal for review of a particular decision if an enactment provides that an application may be made for review of that decision. If there is such an enactment, the Tribunal has power to review that decision. That is the effect of s. 25(4) of the AAT Act. That section provides that the “… Tribunal has power to review any decision in respect of which application is made to it under any enactment.”
There are three matters that require further explanation. The first is that the Tribunal does not have any power beyond the limits I have described in the previous paragraph. It may only review a decision if an enactment specifically says that it may. In this regard, it is quite unlike the Federal Court or the Federal Magistrates Court when exercising the jurisdiction conferred on them by the Administrative Decisions (Judicial Review) Act 1977 (“ADJR Act”). They may review a “decision to which this [ADJR] Act applies”.[1] In summary, that is “… a decision of an administrative character made … under an enactment … other than … a decision by the Governor-General … or a decision included in any of the classes of decisions set out in Schedule 1” to the ADJR Act.[2] This means that the Federal Court and the Federal Magistrates Court may review any decision of an administrative character made under an enactment unless an enactment specifically states that they may not do so.
[1] ADJR Act, s. 5(1)
[2] ADJR Act, s. 3(1)
The second matter that requires further explanation is the meaning of an “enactment”. An “enactment” includes an Act or an instrument, such as regulations or by-laws, made under an Act.[3] The AAT Act itself is not such an enactment. That is because s. 25(1) simply provides that other enactments may make such a provision. The third matter is the meaning of a “decision”. It is broadly defined in s. 3(3) of the AAT Act[4] and is wide enough to cover the matters raised by Mr Wang.
[3] AAT Act, s. 3(1)
[4] Section 3(3) provides that the word “decision” includes a reference to:
The AFP’s decisions
On 17 June 2005, Mr Wang and Ms Qian Xiao wrote to the AFP alleging that three people had committed perjury when giving evidence in proceedings in the Australian Industrial Relations Commission (“AIRC”). Those three people were employed by a company which had once employed Mr Wang and Ms Xiao. Mr Wang and Ms Xiao had taken proceedings in the AIRC seeking reinstatement. Mr Wang supported his allegation with copies of a large number of documents.
On 5 July, the AFP wrote to Mr Wang and Ms Xiao:
“The Australian Federal Police (AFP) has the primary law enforcement responsibility for investigating criminal offences against Commonwealth laws. As you will appreciate, the number of such offences reported far exceeds the capacity of the AFP to investigate. The AFP must ensure that its limited resources are directed to matters of the highest priority and the decision to accept or reject matters for investigation is based on this precept. Inevitably, this means that the AFP cannot investigate some criminal conduct.
In making the decision to accept or reject a matter for investigation, the AFP has regard to the nature of the alleged crime, the impact of the criminality involved, and the resources required for the AFP to investigate the matter. Each reported matter is balanced against all other newly reported matters and also against other ongoing investigations. Often the decision to investigate a particular matter necessarily involves the cessation of a previously resourced investigation. Such decisions are not taken lightly.
Unfortunately due to competing operational priorities within this office, the AFP finds itself in a position where we are unable to devote resources to investigate this matter.”[5]
[5] Letter filed with the application for review in AAT proceedings V2005/635
On 7 July 2005, Mr Wang and Ms Xiao wrote to the AFP regarding the transcript that Auscript Australasia (“Auscript”) had produced of proceedings held in the AIRC on 4, 5, 6 and 24 August 2004. They considered that the transcript was unreliable and had wanted to check it against Auscript’s taped recording of the proceeding. In their letter, they told the AFP that they understood that the tapes of the proceedings on 24 August 2004 had been lost and were unlikely to be recovered. Mr Wang and Ms Xian asked the AFP to intervene in the matter, to investigate it and to prosecute any person if necessary. In their view, Auscript’s conduct had been criminal in nature.
In a letter dated 14 July 2005, the AFP replied:
“The Australian Federal Police (AFP) has the primary law enforcement responsibility for investigating criminal offences against criminal Commonwealth laws. The information you have provided to the AFP does not indicate that a criminal Commonwealth offence has been committed.
I suggest you forward any complaints you have directly to Auscript Australasia.”[6]
[6] Letter filed with the application for review in AAT proceedings V2005/637
Mr Wang’s submissions
The essence of Mr Wang’s submissions is that the AFP has not followed the “correct channels” in investigating the complaints he and Ms Xia have made to them. When asked what he meant by the expression “correct channels”, Mr Wang said that the matter should have been referred to a Task Force and there should have been a decision within two weeks. The matters should not have been treated as complaints. He wanted to give the AFP an opportunity to correct their approach to the matters. If he has to go to the Federal Magistrates’ Court about the matters, the AFP will be caused some trouble and the whole of Australia will know about it. Mr Wang wants the AFP to avoid that trouble for themselves and to avoid having the whole of Australia know about it.
My decision
The AFP is a body that was established by an Act of Parliament: the Australian Federal Police Act 1979 (“AFP Act”). Therefore, its functions and powers must be conferred by that Act of Parliament or by another Act. In so far as its functions are concerned in the context of this case, s. 8(1)(b)(i) of the AFP Act provides that the AFP’s functions include the provision of police services in relation to the laws of the Commonwealth. Section 9 of the AFP Act sets out the general powers of a member of the AFP. In general terms and in so far as it is relevant to this case, s. 9(1) provides that “… a member has … the powers and duties that are conferred or imposed by or under a law of the Commonwealth on … a constable”[7] or, in certain circumstances, “… a constable of a particular rank …”. In “… relation to… the laws of the Commonwealth”, a member has “… the powers and duties that are conferred or imposed, in the place in which the member is acting, on … a constable or an officer of police ...”.[8]
[7] AFP Act, s. 9(1)(a)(i)
[8] AFP Act, ss. 9(1)(c)(i) and (v)
Emmett J considered the scope of the powers and duties in O’Malley v Keelty, Australian Federal Police Commissioner.[9] His Honour said:
“… The functions of the Australian Federal Police include the prevention of crimes and associated activities such as the investigation of complaints about the commission of crimes with a view to the identification of offenders.”[10]
[9] [2004] FCA 1688
[10] [2004] FCA 1688 at [5]
It is the AFP’s power of investigation that Mr Wang has relied on. In his view, it should have exercised it to investigate the matters he raised. There is, however, a big difference between having a power that a person may choose to use and having a power that a person must exercise. Section 9 only gives the AFP the power to investigate a matter. It does not oblige it to exercise it. Speaking of the powers of one of the officers of the AFP, the Commissioner, Emmett J said:
“Generally speaking, the Commissioner[[11]] must act so as to facilitate the performance by the Australian Federal Police of its statutory functions. However, whilst a Commissioner of Police has a duty to enforce the law, he or she also has a broad discretion as to the manner in which he or she chooses to fulfil the responsibilities of office. Where a member of the Australian Federal Police receives a complaint from a member of the public, the member of the Australian Federal Police would certainly discharge his or her duty to enforce the law if he or she gives due and proper consideration to the question of whether, and in what way, an initial enquiry into the complaint should be made, and then acts appropriately upon the view formed: see Hinchcliffe v Commissioner of Police of the Australian Federal Police [2001] FCA 1747 at [31]-[36].)
The duty of the Commissioner is to enforce the law. He or she may take steps to post police officers so that crimes may be detected and that honest citizens may go about their affairs in peace. But the Commissioner is not the servant of anyone save the law itself. Although the Commissioner is answerable to the law, there are nevertheless many fields in which the Commissioner will have a discretion with which the law will not interfere. It is for the Commissioner to decide in any particular case whether inquiries should be pursued. It must be for the Commissioner to decide on the disposition of the force and concentration of the resources available on any particular crime or area. No court can or should give the Commissioner direction on such a matter: see R v Metropolis Police Commissioner; Ex parte Blackburn [1968] 2 QB 118 at 136.”[12]
[11] The Commissioner had the general administration and the control of the operations of the AFP: AFP Act, s. 37
[12] [2004] FCA 1688 at [6] - [7]
It is clear from this passage of his Honour’s judgment that the Commissioner of the AFP, and so the AFP, does not have to investigate every matter that is drawn to his or its attention. They have a discretion whether they will investigate or not but it is not a discretion without limits. This was also a matter that Emmett J considered:
“… If the police fail in the duties, however ephemeral it may be to describe them, a citizen is entitled to assistance in ensuring that the police do their duty. For example, if there was evidence of a dishonest refusal to investigate on the part of the investigating officer, or if the evidence suggests that an honest police officer acting reasonably could not properly come to the view that the matter was not capable of investigation there may be, and I emphasise may be, a basis upon which the Court could interfere.”[13]
Emmett J then went on to consider whether, relying on s. 39B of the Judiciary Act 1903 (“Judiciary Act”), there was a basis on which the Federal Court could interfere. He concluded that there was none.
[13] [2004] FCA 1688 at [8]
I cannot consider whether there is any such basis in this case because the Tribunal cannot exercise jurisdiction under s. 39B of the Judiciary Act. That jurisdiction is limited to the courts just as the powers to review decisions given by the ADJR Act are given to the courts.
Both of the AFP’s decisions are made under an enactment but there is no provision in the AFP Act that gives the Tribunal power to review them. There is no provision in any other enactment that gives the Tribunal that power. I have explained above why the Tribunal cannot have the power unless there is such a provision in an enactment. Therefore, the Tribunal does not have jurisdiction to review the AFP’s decisions.
Mr Wang’s request that the Tribunal order and pay for transcript for him
At the end of the hearing, Mr Wang asked that I order a transcript of the proceedings. I declined on the basis that I did not require the transcript and I very rarely order transcript. More recently, Mr Wang renewed his request in a letter dated 2 September 2005. He based his request on four grounds:
“1. Fair Trial
I am of foreign background and English is my second language, the Transcript is essential for me to understand the comments made in the proceedings, and I can only accept the AAT decision provided that I have understood the arguments in the proceedings.
2.Future Reference
In the event that I am not satisfied by the outcome, I wish to appeal to a legal authority of a higher level. Without the Transcript, I will be unable to make submissions in reference to these proceedings in the future.
3.Humanitarian Grounds
I rely on social security payments for daily expenditure, to order and pay for Transcript of this proceeding is not a realistic option at all. I have no choice but to ask the AAT to order a copy.
4.Public Interest
In this matter, I think it will be in the public interest for Transcript to be produced, to ensure that both parties have received a fair outcome, and to ensure that no one of foreign background was punished for their deficiencies in the English language.”
I appreciate that the cost of the transcript could well be prohibitive for Mr Wang. It is not, however, the Tribunal’s practice to order transcript for the parties or for any one of them. If it did not have that practice, the cost of transcript would become prohibitive for the Tribunal. Cost considerations are the basis for my own practice to order transcript only very occasionally. I had no need for a transcript in this case and I do not consider that there are any exceptional circumstances that would justify my committing the Tribunal to fund its purchase.
I do not accept that, without the transcript Mr Wang will be unable to understand the comments made in the proceedings or be unable to make appropriate submissions should he choose to lodge an appeal to the Federal Court. I have given my reasons in writing and they are intended to cover the main points raised by the parties at the hearing. If I have made an error of law in them, it will be apparent from them. If I made any error during the course of the proceedings, the Federal Court may decide to direct that the transcript be obtained but that is a decision to be made at a later time. The Tribunal’s providing, without charge, an interpreter to Mr Wang and Ms Xiao during the course of the hearing ensures that they are not, to use his words, “punished for their deficiencies in the English language”.[14] Taking all of the matters that Mr Wang has raised, I do not consider that they justify my making an exception to the Tribunal’s normal practice in this case. Therefore, I confirm my earlier decision not to order transcript in this case.
[14] Letter dated 2 September 2005
The decision
For the reasons I have given, I decide that the Tribunal does not have jurisdiction to review the respondent’s decisions dated 5 and 14 July 2005.
I certify that the twenty-one preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ....(sgd. N. Wills).....................................
Nathaniel Wills Associate
Date of Jurisdiction Hearing 2 September 2005
Date of Decision 16 September 2005
For the Applicant self representedSolicitor for the Respondent Ms V. Kanellopoulos
State & Federal Police - Legal
“(a) making, suspending, revoking or refusing to make an order or determination;
(b)giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article; or
(g) doing or refusing to do any other act or thing.”
2
0