FEDERAL COURT OF AUSTRALIA Sherston v Chief of Navy [2004] FCA 110 ADMINISTRATIVE LAW – whether decision reviewable by Court – decision of delegate of Governor-General – whether decision a decision of Governor-General ADMINISTRATIVE LAW – decision to issue termination notice to serviceman – prior criminal charges not proceeding – invitation to give written reasons why service should not be terminated – whether interlocutory injunction should be granted – relevance of possible criminal proceedings – refusal to divulge documents – whether bias – whether Court should look at inadmissibility or content of evidence against serviceman Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3 Telecommunications (Interception) Act 1979 (Cth) Defence (Personnel) Regulations 2002 (Cth) regs 85, 119 PHILIP JOHN SHERSTON v CHIEF OF NAVY TAD 1 OF 2004 GRAY J 16 JANUARY 2004 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY TAD 1 of 2004 BETWEEN: PHILIP JOHN SHERSTON APPLICANT AND: CHIEF OF NAVY RESPONDENT JUDGE: GRAY J DATE OF ORDER: 16 JANUARY 2004 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application for interlocutory orders be dismissed. 2. The applicant pay the respondent's costs of the application for interlocutory orders. 3. The proceeding be listed for directions on a date to be fixed by Heerey J. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY TAD 1 of 2004 BETWEEN: PHILIP JOHN SHERSTON APPLICANT AND: CHIEF OF NAVY RESPONDENT JUDGE: GRAY J DATE: 16 JANUARY 2004 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 In this proceeding the applicant has sought interlocutory orders, in effect restraining the respondent from proceeding with a process, in which the respondent proposes to consider whether to terminate the applicant's commission in the Royal Australian Naval Reserve. The application for interlocutory orders raises a number of points. The substantive proceeding is an application for an order of review filed in the Tasmania District Registry of the Court on 5 January 2004. The applicant seeks to review the decision of the respondent, as delegate of the Governor-General, to issue to the applicant a termination notice, dated 1 December 2003, and to review conduct in which the respondent proposes to engage, as a delegate of the Governor-General, in terminating the applicant's service in the Royal Australian Navy. 2 The relevant termination notice is dated 1 December 2003. According to the material before the Court, it was served on the applicant on 19 December 2003. In its terms, it invites him to give a written statement of reasons why his service in the Defence Force should not be terminated and to give that statement of reasons within 28 days from the receipt of the notice. The 28-day period expires today. The particulars of the facts and circumstances relating to the reason for terminating service involve allegations of: access of child pornography on board a naval vessel, using a Commonwealth computer; disobedience of a lawful command not to access the internet on board that vessel; and knowing possession of child pornography. 3 The notice is given pursuant to reg 85(2) of the Defence (Personnel) Regulations 2002 (Cth) ('the Defence Personnel Regulations'). That regulation provides: 'The Governor-General may give the officer a termination notice: (a) stating that it is proposed to terminate the officer's service in the Defence Force; and (b) stating the reason for terminating the service; and (c) setting out particulars of the facts and circumstances relating to the reason for terminating the service that is [sic] sufficient to allow the officer to prepare a statement of reasons why the service should not be terminated; and (d) inviting the officer to give the Governor-General a written statement of reasons why the service should not be terminated; and (e) specifying a period of at least 28 days after the date of the notice as the period in which the officer may give the statement of reasons.' 4 By subreg (3), if the officer does not give the Governor-General a statement of reasons in the specified period, and the Governor-General is of the opinion that the reason for terminating the officer's service has not been affected by a change in circumstances, the Governor-General must terminate the officer's service. By subreg (4), if a statement of reasons is given in the specified period the Governor-General is required to consider it, and to consider whether the Governor-General forms the opinion that the reason for terminating the officer's service has been established and has not been affected by a change of circumstances. If that opinion is formed, the Governor-General must terminate the officer's service. 5 By means of this proceeding, the applicant attempts to attack the decision to serve a termination notice on him and also attempts to attack in advance the process that would be consequent upon the giving of that notice. Having regard to the nature of the process, there is a real question whether an attack of that kind, at this stage, is appropriate. I shall return to that issue later. 6 At the outset of the hearing counsel for the applicant properly raised a matter that counsel for the respondent had indicated that he was intending to raise. That is the question whether the decision to issue the termination notice, or any decision that may be made consequent upon it, is capable of being challenged in court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the ADJR Act'). 7 In s 3(1) of the ADJR Act, there appears a definition of the term 'decision to which this Act applies', in the following terms: '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) or (d) 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) or (cb) of the definition of enactment; other than: (c) a decision by the Governor-General; or (d) a decision included in any of the classes of decisions set out in Schedule 1.' Having regard to the fact that reg 85 of the Defence Personnel Regulations gives powers to the Governor-General, the question arises whether the exception in par (c) of the definition is applicable. This question is complicated by the fact that reg 119(1) of the Defence Personnel Regulations empowers the Governor-General to delegate any of the Governor-General's powers to certain officers. Counsel for the applicant indicated to me that the respondent is an officer to whom delegation of the Governor-General's powers is possible under that provision and I act, as counsel for the applicant acts, on the assumption that a delegation of the requisite power has in fact been made. 8 The question, then, is whether a decision by a delegate of the Governor-General, exercising such delegated power, is to be regarded as a decision by the Governor-General. There appears to be little or no authority to guide the resolution of that question. At least, the researches of counsel for both parties in this case have not uncovered authority that suggests a ready answer. 9 In the terms of the ADJR Act itself, I note the provisions of s 3(8)(a), which are in the following terms: 'For the purposes of a Schedule to this Act: (a) a decision made, proposed to be made, or required to be made, as the case may be, by a person acting as the delegate of another person, or by a person otherwise lawfully authorized to act on behalf of another person, shall be deemed to be a decision by that other person'. That provision does not apply to the exception in par (c) of the definition of 'decision to which this Act applies'. Section 3(8)(a) applies only to the classes of decisions in the exception in par (d) of that definition. The fact that such a deeming provision has been included in relation to those classes of decisions does suggest, however, that the legislature took the view that it was necessary. That is to say, the legislature took the view that, without such a deeming provision, a decision by a delegate would not necessarily be regarded as a decision of the person whose decision could not be open to challenge. 10 The absence of such a deeming provision in relation to the exception in par (c) suggests to me that a decision of a delegate of the Governor-General is not necessarily to be regarded as a decision of the Governor-General himself or herself. It is perhaps also possible to recognise the existence of sound policy reasons for excluding from review a decision of the Governor-General, made on the advice of ministers, but not to exclude from review a decision of a delegate exercising a delegated power from the Governor-General. At all events, for present purposes, I am prepared to proceed on the assumption that the decision is one capable of being reviewed by this Court under the ADJR Act. 11 The question, then, is whether the applicant has made out a sufficient case for the granting of interlocutory orders. The application for an order of review contains a significant number of grounds, both in relation to the decision to issue the termination notice and the proposed decision to proceed with the termination. The grounds raise the possibility that prosecutions could still be carried out against the applicant with respect to the matters the subject of the termination notice. I note that a significant number of charges were laid against the applicant in relation to the matters the subject of the termination notice. The charges themselves have been the subject of an opinion of the Director of Military Prosecutions, as to the adequacy of the evidence to support them, and also of the Director of Public Prosecutions as to the likelihood of their success in court. In consequence of the first opinion, a decision was made to refer the matter to the Director of Public Prosecutions. In consequence of the opinion of the Director of Public Prosecutions, it appears that there is virtually no likelihood that proceedings will ever come to court in relation to the charges against the applicant. Counsel for the applicant properly conceded that the continuance of criminal prosecutions against the applicant is unlikely. 12 Although the charges remain extant, in the sense that they have not been withdrawn or dismissed, and it is therefore still open to the authorities to proceed with them, or perhaps with some of them, that does not necessarily mean that there is any difficulty about the applicant being called upon to provide a statement of reasons to the respondent as to why his commission should not be terminated. I am aware that there is authority suggesting that the presence of pending criminal prosecutions does not necessarily require the staying of civil proceedings and does not necessarily require that a person should not be requested in civil proceedings to divulge what might be part of that person's defence to criminal prosecutions. In these circumstances, having regard to the unlikelihood of continuing prosecutions, I do not think there is a serious question to be tried that the applicant would be prejudiced by having to make a statement in accordance with the notice of termination. 13 The next major ground concerned the question of bias. It was said that the respondent was biased in making the decision to issue the termination notice, and was likely to bring a biased mind to the question whether he could form the necessary opinion to act under reg 85(4) and terminate the service of the applicant. The bias was said to be shown on the material largely by evidence of the fact that communications had been made to the respondent about the substance of the matter and that those communications had not been subsequently revealed to the applicant. 14 On 14 July 2003, the respondent signed a memorandum stating that he had received the brief relating to the applicant and had decided to forward the applicant's case to the Director of Military Prosecutions for review. It may be assumed from that that he had read the brief. In a subsequent memorandum, the Director of Military Prosecutions suggested that the 'NHQ', which counsel for the applicant invited me to assume was the respondent's office, had not only requested that the Director of Military Prosecutions review the matter but had also requested that it provide a prosecution brief to the relevant authority. On the basis of this, counsel for the applicant speculated that the respondent had not only requested a review, but in his own mind had concluded that a prosecution was appropriate. I do not think that such a conclusion can readily be drawn from the evidence. 15 As to the refusal to release to the applicant unedited copies of communications between the Inspector-General of the Australian Defence Force and the respondent, the material discloses that there is a current application to the Administrative Appeals Tribunal in respect of a freedom of information request. It also discloses that, in response to a direct request to him, the respondent has released some, but not all, of the material that might be relevant to the proceeding. Again, I am of the view that it is speculation to assume that the refusal to release material to the applicant is based upon the fact that the material contains evidence of bias on the part of the respondent. There may be many other legitimate, or illegitimate, reasons for that refusal. 16 In the result, I am far from convinced that a serious question to be tried exists as to whether there is bias on the part of the respondent. In order to decide to issue a termination notice, the respondent must look at material relating to a particular case and decide whether to regard that material as sufficiently serious, possibly to justify termination. I cannot find anything to suggest that the respondent has not done that properly, or that the respondent is approaching the question of a final determination of the issue with anything other than an open mind. I do not think a ground exists for saying that a reasonable, informed bystander would regard the respondent as having a closed mind on any of the issues. 17 In addition to those grounds, counsel for the applicant sought to agitate today the content of the material on which the decision to issue the termination notice was based. That material accompanied the termination notice, in the form of documents contained in an evidence pack already held by the applicant's legal adviser, which evidence pack had been material considered by the respondent. There was also a recommendation from another officer as to the issuing of the termination notice. In effect, counsel for the applicant says that much of the material that was relied on could not have been considered and could not be considered by the respondent because it is inadmissible by reason of the Telecommunications (Interception) Act 1979 (Cth). The basis for this argument is that there is a statement in the material as to how the relevant communications were intercepted and there is an opinion of the Director of Military Prosecutions that the material would be inadmissible because of unlawful interception under that Act. In addition to that, counsel for the applicant took me to what he said was the other material relating to the charges and endeavoured to submit that there was no evidence that the applicant actually had in his possession child pornography at any relevant time. 18 I consider that the attempt to raise these matters at this point in the process is an attempt to involve the Court in the merits of the issue. It may be that the applicant is correct and that there is no material that would justify the formation of the requisite opinion upon which the termination of service depends. The purpose of the process of issuing a termination notice, and allowing the making of a statement of reasons as to why termination should not occur, is to permit those submissions to be made to the relevant decision-maker. If the relevant decision-maker takes into account material that cannot be taken into account, and the consequence of that is that the decision is affected, then application can be made to the Court on that ground. In my view it is quite wrong to come to the Court at an early stage of the process, under the guise of endeavouring to set aside the decision to issue the termination notice, and under the guise of attempting to pre-empt the balance of the termination process from being carried out by the respondent, on the basis of material of this kind. The effect would be to remove from the respondent responsibility for examining the material and making a decision, and to invite the Court to do that. It would be necessary for the Court to make findings of fact that the interception of the material did occur in the manner suggested, and to make findings of fact as to what the evidence in fact showed about the applicant's possession of child pornography. The Court should not be making those findings of fact. They are matters within the field of responsibility of the respondent and should be left to him. Again, I say if the respondent should form the necessary opinion and should terminate the service of the applicant, it will be open to the applicant to challenge that decision on any ground in the ADJR Act, subject to the final resolution of the question whether the decision itself is a decision of the Governor-General. It goes without saying that, if the requisite opinion cannot be formed and the applicant's service is not terminated, there will be no need to invoke the processes of the Court at all. 19 In the application for an order of review there appear a number of other grounds, which were not pursued in argument today. I am bound to say that, having looked at them, I am not confident that some of them will succeed. For instance, it is suggested that there was a denial of natural justice because the respondent failed to seek the opinions, views or comments of the applicant prior to issuing the termination notice. As I have said, the whole point of issuing a termination notice is to give the applicant an opportunity to make his case to the respondent before a final decision is made. It would be hard to justify the proposition that the applicant had a right to be heard on whether a termination notice should issue. There is also a ground raised as to whether the issue of the termination notice was improper while the proceeding in the Administrative Appeals Tribunal is pending, and concerning the failure to provide details of communications. I am by no means sure that this ground has any substance either. An attempt was made also to suggest that the time allowed for a response was unreasonably short. That ground was not pursued today and appears to be without substance, especially in the light of the express terms of reg 85. 20 Other grounds involve the taking into account of irrelevant considerations, when those are the very material that needed to be considered in order to decide whether a termination notice should issue. There is a suggestion of failure to take relevant considerations into account, but there is no reason why, if the considerations referred to are relevant considerations, they would not be taken into account at the final stage. An attempt was made to suggest that the respondent exercised a personal discretionary power at the behest of another, and two others were specified. I suspect that the reason that was not expressly pursued today is that it is such a manifestly weak ground. The Wednesbury unreasonableness ground also appears to have been invoked for the sake of it. There is a suggestion that a denial of natural justice will occur, when it is quite impossible to predict that that will be the case. The relevant and irrelevant considerations grounds, the behest of another ground and the unreasonableness ground are also raised in advance in relation to a possible future decision. In short, the application makes the error of concealing possible good points among a multitude of obviously bad points, something that is not necessarily a tactically advisable course. 21 For all of these reasons, I think it would be wrong for the Court to intervene in the process at the present stage. The applicant has an opportunity to make submissions as to why his service should not be terminated. There is no reason to suppose that the respondent will exercise the power reposed in him capriciously and will not give consideration to the submissions made. There is no reason to suppose that the applicant will be necessarily unsuccessful and will have his service terminated. Indeed, if there is strength in the arguments about the nature of the evidence, then there is every reason to suppose that the applicant will retain his commission. 22 I am therefore of the view that the application for interlocutory orders must be dismissed. 23 The orders I make are: 1. The application for interlocutory orders be dismissed. 2. The applicant pay the respondent's costs of the application for interlocutory orders. 3. The proceeding be listed for directions on a date to be fixed by Heerey J. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate: Dated: 18 February 2004 Counsel for the Applicant: C Gunson Solicitor for the Applicant: Phillips Taglieri Counsel for the Respondent: P Bowen Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 16 January 2004 Date of Judgment: 16 January 2004