RELEVANT CASE LAW

Whistleblowers, before or after making their PIDs, will inevitably find themselves wrestling with the law over this large and treacherous landscape of official corruption. The issues will arise from whether or not the matters disclosed were indeed unlawful, to whether or not the authority itself may be acting – or did act – lawfully in handling those PIDs.

For example, it won’t take long before a whistleblower will run into what is commonly known as “statutory discretion”. This is when the decision-maker decides either that sufficient evidence does not exist to substantiate the allegation, or that the PID does not meet the threshold of reasonable suspicion of official misconduct for a range of reasons. These decisions may have been stained by such factors as:

1. the offending agency and/or public official(s) claiming to have acted on legal advice in good faith, notwithstanding that the legal advice is erroneous advice;
2. evidence known to exist is claimed to be missing or destroyed;
3. undeclared conflicts of interest held by the decision-maker;
4. wilful breaches of the doctrine of the separation of powers;
5. wilful blindness by the decision-maker;
6. the authority dishonours an agreement with or promise to the whistleblower, say, by claiming that the authority secretly changed its mind about that agreement or promise

A decision is then taken to do nothing further.

If there is one thing that drives most whistleblowers in making their PIDs, it is that they desire the law to be applied consistently, reliably and equally. Double standards are an anathema to whistleblowers. The instrument of “statutory discretion”, however, in the hands of unethical decision-makers, can stand in the way of that happening. Where the PID is more serious with respect to its impact on the higher levels of government, the more likely it may be for double-standards in the law to be applied to the advantage of the government … this is the experience of many whistleblowers.

The following are principles of relevant case law that should be incorporated into legislation, so as to reinforce their application in the practice of law pertaining to whistleblowers and to their rights under legislation.

A.      THE PROPER EXERCISE OF A “STATUTORY DISCRETION”

While QWAG accepts that it is lawful for decision-makers to exercise their “statutory discretion” on occasions, they may not do so in a manner which is not honest in the prevailing circumstances. At all times, a statutory decision-maker is obliged to act ethically, impartially and in the public interest, otherwise such conduct may be considered to be “dishonest”. If this were to be proven, the decision  would be open to challenge, as would the conduct be open to potential adverse legal ramifications for the decision-maker himself /herself. (See section 329 of the Crime and Corruption Act 2001).

Also the Queensland Criminal Code and the Commonwealth Criminal Code have provisions for punishing public officers acting dishonestly. These provisions, however, are rarely, if ever, applied.

In Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013) at 24 French CJ cited Kitto J words in R v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177 (28 May 1965) at 89 who, in turn, referred to Sharp v Wakefield [1891] AC 173: (Quote)

 “…a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion, according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself”.

B.      THE IMPORTANCE OF THE PUBLICATION OF INFORMATION ABOUT THE CONDUCT OF GOVERNMENT IN A DEMOCRACY

On too many occasions, QWAG has found that governments, along with their law enforcement authorities, attempt to censor information concerning their activities, so as to prevent it becoming known to the public. This unacceptable practice denies the people their democratic right to know what their governments are up to, especially when it concerns information relating to PIDs.

QWAG believes that government secrecy is incompatible with openness and transparency in governments purportedly functioning in accordance with the rule of law.

In Australian Capital Television Pty Ltd and Ors & State of New South Wales v the Commonwealth of Australian and Ors (1992) 177 CLR at 38 [No.2] Mason CJ, in the context of the freedom of communication, said that the supply of government information to the people was an indispensable part of representative democracy. He observed:

 “…Indispensable to that accountability and that responsibility is freedom of communication, at least in relation to public affairs and political discussion. Only by exercising that freedom can the citizen communicate his or her views on the wide range of matters that may call for, or are relevant to, political action or decision. Only by exercising that freedom can the citizen criticise government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives. By these means the elected representatives are equipped to discharge their role so that they may take account of and respond to the will of the people. Communication in the exercise of this freedom is by no means a one-way traffic, for the elected representatives have a responsibility not only to ascertain the views of the electorate but also to explain and account for their decisions and actions in government and to inform the people so that they may make informed judgements on relevant matters. Absent such a freedom of communication, representative government would fail to achieve its purpose, namely, government by the people through their elected representatives; government would cease to be responsive to the needs and wishes of the people and, in that sense, would cease to be truly representative.”

In Lange v Australian Broadcasting Corporation (“Political Free Speech case”) [1997] HCA 25; (1997) 189 CLR 520; (1997) 145 ALR 96; (1997) 71 ALJR 818 (8 July 1997), the High Court found: (Quote)

“… this Court should now declare that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is simply the correlative of the interest in receiving it. The common convenience and welfare of Australian society are advanced by discussion – the giving and receiving of information – about government and political matters. The interest that each member of the Australian community has in such a discussion extends the categories of qualified privilege. Consequently, those categories now must be recognised as protecting a communication made to the public on a government or political matter.”

C.      CONDUCT WHICH MAY BE UNCONSCIENABLY FALSE AND DECEPTIVE

It is quite clear that conduct by any statutory decision-maker which is knowingly false and deceptive in character and content cannot be acceptable in a democracy governed by the rule of law.

That is, those who rely on and seek lawful assistance and relief from government and its agency in respect of examining their grievances, including PIDs, may not be knowingly deceived into a false state of things to their known disadvantage.

The law does not normally permit government to “opt out” of its fiduciary duty to be honest in all its activities, unless unequivocally stipulated in law.

Of particular relevance to whistleblowers, in matters concerning the conduct of the Queensland Government, CCC or PCCC, no ‘opting out’ provision exists under the Crime and Corruption Act 2001, or the Criminal Code 1899 (Qld) from acting honestly, impartially and in the public interest. These Acts specifically bind the Crown in all its different emanations because they do not specify otherwise.

It is possible to commit a fraud against the administration of justice through false and deceptive conduct by a party to an understanding involving a course of justice. In Lazarus Estate Ltd v Beasley [1956] 1 QB 702, [1956] 1 All ER 341, Lord Denning said: (Quote)

“No Court in this land will allow a person to keep an advantage he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever…”

In Bropho v Western Australia (1990) 71 CLR 1 at 18, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ. pointed out that the rationale against the presumption against the modification or abrogation of fundamental rights (e.g. for government to opt out from fundamental principles et al) is to be found in the assumption that it is:

“…in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.”

Deane J in A v Hayden (1984) CLR 532 said: (Quote)

 “…neither the Crown nor the Executive has any common law right or power to dispense with the observance of the law or to authorise illegality.”

D.      THE OFFENCE OF DESTROYING EVIDENCE

It should be remembered that, when dealing with PID’s, it not only inevitably involves the existence of public records, but involves also their continuing existence. These records, as a first priority, are protected under the Public Records Act 2009. They may not be destroyed without the prior approval of the State Archivist, otherwise an offence will have been committed.

This “whole of government” Act also recognises, under its published relevant disposal/retention guidelines, the twin protection of public records under the Criminal Code 1899 (Qld), as well as the Discovery/Disclosure Rules of the Supreme Court of Queensland. These protections apply to public records, when the public records are known to be required as evidence for either pending or impending/anticipated judicial proceedings. Impending / anticipated judicial proceedings include proceedings for which there is a realistic possibility in the future.

The best authority on this offence against the administration of justice is found in R v Ensbey; ex parte A-G (Qld) [2004] QCA 335 on 17 September 2004. It has relevance to proceedings which fall within the definition of “judicial proceedings” found in Chapter 16 – Offences relating to the administration of justice – section 119 of the Criminal Code 1899 (Qld) which says:

“In this chapter – ‘judicial proceeding’ includes any proceeding had or taken in or before any tribunal, or person, in which the evidence may be taken on oath.”

In other words, if destruction of evidence were to occur regarding a whistleblower’s PID lodged with the CCC and perpetrated by a government department and/or official for the purposes of preventing any such book, document or thing being used as evidence, it would enliven section 129 of the Criminal Code 1899 (Qld) which states:

“Damaging evidence with intent

A person who, knowing something is or may be needed in evidence in a judicial proceeding, damages it with intent to stop it being used in evidence commits a misdemeanour. Maximum penalty—7 years imprisonment.”

In Ensbey at 15, Their Honours , Davies, Williams and Jerrard JJA, relevantly said: (Quote)

“…It was not necessary that the appellant knew that the diary notes would be used in a legal proceeding or that a legal proceeding be in existence or even a likely occurrence at the time the offence was committed. It was sufficient that the appellant believed that the diary notes might be required in evidence in a possible future proceeding against B, that he wilfully rendered them illegible or indecipherable and that his intent was to prevent them being used for that purpose.”

Their Honours in Ensbey confirmed the legal correctness of Judge Samios’ direction to the District Court jury (which found Pastor Ensbey guilty of the crime of destroying evidence some 6 years BEFORE the relevant judicial proceedings commenced) which was as follows:

“…Now, here, members of the jury, the words, ‘might be required’, those words mean a realistic possibility. Also, members of the jury, I direct you there does not have to be a judicial proceeding actually on foot for a person to be guilty of this offence. There does not have to be something going on in this courtroom for someone to be guilty of this offence. If there is a realistic possibility evidence might be required in a judicial proceeding, if the other elements are made out to your satisfaction, then a person can be guilty of that offence.”

E.       THE CONSEQUENCES OF ACTING ON ERRONEOUS ADVICE, INCLUDING LEGAL ADVICE EMANATING FROM THE CROWN AND ITS VARIOUS EMANATIONS

The most recent authoritative High Court of Australia case on “ignorance of the law not being an excuse“, is found in Ostrowski v Palmer [2004] HCA 30 (16 June 2004). This concerned a Western Australia crayfisherman who obtained advice from the Western Australia Fisheries Department, acted on it but which was later found to be erroneous. He was charged and found guilty of the relevant offence. Their Honours Callinan and Heydon JJ said: (Quote)

“…A mockery would be made of the criminal law if accused persons could rely on, for example, erroneous legal advice, or their own often self-serving understanding of the law as an excuse for breaking it…”

In R v Cunliffe [2004] QCA 293, McMurdo P, McPherson JA, Mackenzie J state this: (Quote)

“…Misinterpretation of the law equates to ignorance of the law and is not an excuse.”

F.       THE IMPORTANCE OF THE AVOIDANCE OF APPREHENDED BIAS IN AUTHORISED DECISION MAKERS

If and when a concern, regarding a perception and/or reality of apprehended bias in respect of the impartiality/independence of the decision-maker, exists in the mind of a whistleblower, it should be raised by the whistleblower as a matter of first priority.

Furthermore, an ethical/legal requirement rests on official decision-makers, particularly under the Crime and Corruption Act 2001 (CC Act), to declare any conflict of interest, even by perception, to the complainant, as he/she (i.e. the decision-maker) knows might exist before proceeding with the examination and report as the decision-maker.

That is to say, all CCC officials (whether permanent or pro-temporary) are obliged to act in an ethical, impartial and honest manner in the course of the duties. Deceit has no place in such proceedings. A failure to declare may be seen as a major breach of the CC Act, and of procedural fairness. At the very least, this may render any judgement null and void.

If the concern is raised at a tribunal, the application and submissions are normally heard in public and the decision is made public. Such a decision would normally be open to judicial review.

Amongst other considerations, public confidence in our justice system is best and long founded and sustained when played out in public. The perception of apprehended bias is judged against what an ordinary person in the street, acquainted with the facts, might reasonably believe about the impartiality of the decision-maker.

By majority decision, Their Honours, Gleeson CJ, McHugh, Gummow and Hayne JJ of the High Court of Australia in Ebner v The Official Trustee in Bankruptcy  [2000] HCA 63; (2000) 205 CLR 337, reaffirmed the principles to be applied in matters associated with apprehended bias in a decision-maker: (Quote)

“…Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), the governing principle is that, subject to qualifications relating to waiver or necessity, a judge is disqualified if a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.”

The High Court in Ebner laid down a method of applying the apprehension of bias principle which involves three steps:

• First, one must identify what it is said might lead a judicial officer to decide a case other than on its legal or factual merits. For example, “the judge has shares in the respondent bank” or “the judge has a brother who is a partner of the solicitor acting for the respondent”.
• Second, there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. This articulation of the logical connection is essential because only then can the reasonableness of the asserted apprehension of bias be assessed.
• Third, an assessment must be made whether, having regard to the identified matter and its logical connection with the case being decided other than on its merits, a fair-minded observer might reasonably apprehend that the case might not be decided impartially.

In Vakauta v Kelly (1989) 167 CLR 568 F.C. 89/040 Dawson J said:

“…The relevant principle is that laid down in Reg. v. Watson; Ex parte Armstrong (1976) 136 CLR 248, at pp 258-263, and applied in Livesey v. New South Wales Bar Association (1983) 151 CLR 288, at pp 293-294, namely, that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.”

The bias rule is subject to the doctrine of necessity (i.e. no other more suitable decision-maker is available) but its applicability in matters concerning the handling of PIDs would be very rare. The interests of impartiality service the administration of justice in a manner which instils public confidence in the process and in the outcome, and these are always prime considerations.

It does not necessarily follow, however, that the decision-maker will instantly accede to any recusal application and stand aside. In fact, she or he may not disqualify herself or himself.

Be that as it may, it is always important that any such application is lodged on sound grounds and is not done capriciously. The important point to remember is that, if and when sufficient grounds exist, then a concern about the suitability of the decision-maker hearing the matter should be raised immediately.

Not only will this save time and money for all the parties concerned, the concern will be publicly recorded even if the application is eventually rejected.

Normally, the decision-maker sets out his/her reasons in a public record for not standing aside. But, to re-emphasise, any such application should be raised as soon as possible once the apprehension is known.

QWAG strongly suggests that it must not be done during the course of the inquiry just because the decision-maker is suddenly disliked, because it will inevitably fail. This is a matter to be raised as first priority once the decision-maker is known, or, a prejudicial utterance by the decision-maker during examination could lead a reasonable person to believe that he/she is biased, for example, with an attitude of prejudgement. Equally, the decision-maker, once he/she knows the matter on which his/her impartial decision is expected in the public interest according to law and sound ethics, must disclose any potential conflict of interest immediately.

Case Study. A whistleblower initiated legal proceedings which included allegations that documents important to the proceedings had been destroyed and disposed of post the initiation of legal proceedings and prior to expansion of the scope of those proceedings for more recent events. Separately, the whistleblower, through his lawyer, made application in general terms that the Chief and one member of that Court not be appointed to hear the proceedings. The detailed basis for this application was the alleged involvement of the Chief and one member of that Court in the government’s response to the Heiner Affair, when both were lawyers before their appointment to that Court. The whistleblower was concerned that the whistleblower’s proceedings involved similar fact allegations to the destruction of documents allegations at the centre of the Heiner Affair. The member of the Court objected to by the whistleblower was appointed to hear the whistleblower’s proceedings. On the date of the hearing through his barrister, the whistleblower raised the application (that that member of the Court not be given that appointment and stand aside) made prior to the appointment of that member of the Court to hear the proceedings. The member of the Court asked for the reasons. The whistleblower’s barrister explained the prior involvement by the member of the Court in the government’s response to the Heiner allegations. Consequent upon this explanation, the member of that Court recused himself from hearing the whistleblower’s proceedings.

G.     CONDUCT WHICH MAY CONSTITUTE WILFUL BLINDNESS

QWAG has long been concerned about the “limited” view investigative bodies like the CCC and Ombudsman may take in considering allegations captured in PIDs. The PIDs, at the time of their lodging by the whistleblower, may not have the benefit of all the available evidence having been accessed by the whistleblower, because the capacity to do so was not present. The point of significance is that those authorities are not restricted from accessing all the relevant evidence, and to follow leads. Often times, PID’s point the direction towards even greater alleged wrongdoing or to where the evidence might be found.

This type of conduct is more commonly known as “wilful blindness” on the part of inquirers-cum-decision makers. Insofar as the authorities might like to believe that a “discretion” exists permitting them to only investigate in a PID what has been put before them, QWAG suggests that to exercise a “statutory discretion” in such a limited manner may not be considered honest.

QWAG believes that unless ‘turning a blind eye’ is highlighted or not allowed to go unchecked, it seriously disadvantages whistleblowers and the community at large from knowing the whole truth of a matter, instead of just the half-truths which can be quite misleading and deceptive.

The law has long had something to say about this type of conduct. Lord Edmund-Davies in Reg. v. Caldwell [1982] A.C. 341 at 358 relevantly said: (Quote)

“…A person cannot, in any intelligible meaning of the words, close his mind to a risk unless he first realises that there is a risk; and if he realises that there is a risk, that is the end of the matter.”

The High Court of Australia in R v Crabbe (1985) 156 CLR 464 at 470 observed: (Quote)

“…When a person deliberately refrains from making inquiries because he prefers not to have the result, when he wilfully shuts his eyes for fear that he may learn the truth, he may for some purposes be treated as having the knowledge which he deliberately abstained from acquiring.“

H.     THE STATE ACTING IN ACCORDANCE WITH ‘MODEL LITIGANT PRINCIPLES’ AT ALL TIMES.

Sir Samuel Griffith CJ of the High Court of Australia, in Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 at 342, said:

“The point is a purely technical point of pleading, and I cannot refrain from expressing my surprise that it should be taken on behalf of the Crown. It used to be regarded as axiomatic that the Crown never takes technical points, even in civil proceedings, and a fortiori not in criminal proceedings.

“I am sometimes inclined to think that in some parts – not all – of the Commonwealth, the old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects, which I learned a very long time ago to regard as elementary, is either not known or thought out of date. I should be glad to think that I am mistaken.”

The Queensland Government purports to operate in litigation as “the model litigant.” This is a bold claim. On the Queensland Department of Justice and Attorney-General webpage, it provides this public undertaking which was last revised on 4 October 2010:

“These principles have been issued at the direction of Cabinet. The power of the State is to be used for the public good and in the public interest, and not as a means of oppression, even in litigation. However, the community also expects the State to properly use taxpayers’ money, and in particular, not to spend it without due cause and due process. This means that demands on the State for compensation for injury or damages should be carefully scrutinised to ensure that they are justified.”

Out of an abundance of caution, QWAG warns whistleblowers who may feel that their route to justice is best achieved through litigation, that what the Queensland Government promises against what it actually delivers can turn out to be two different things.

For example, the recorded propensity for evidence (i.e. public records) to be either deliberately destroyed or disappear without trace in clear contravention of the relevant provisions of the Public Records Act 2009, Criminal Code 1899 (Qld) and the Discovery/Disclosure Rules of the Supreme Court of Queensland are salutatory lessons which ought not to be ignored by any reasonable person, especially whistleblowers. This alleged propensity may be information tending to show a prima facie example of the lack of respect held by the Executive for the doctrine of the separation of powers.

Notwithstanding one’s own legal costs, if unsuccessful in the court action, the additional (highly probable) imposition covering the Crown’s costs can be highly debilitating, if not totally crippling.

But, of course, all litigation is problematic even in the best of circumstances. It is, however, always highly stressful.

While QWAG does not, and would not advise anyone from not embarking on their respective course of justice through the courts, it ought not to be entered into with an expectation that the government or its agencies will act reasonably or fairly as so-called ‘model litigants’.

In conclusion, QWAG strongly suggests to whistleblowers and would-be whistleblowers to take heed of the best available advice before commencing legal action against the State, including against bodies such as the CCC. Their resources come from a bottomless public purse, not their own pockets, and their timeline can be endless, now 26 years for the Dillon, Heiner and Leggate cases.

Whistleblower experience shows that they will exploit these advantages ruthlessly.

On the other side though, truth and the public interest are always powerful allies. 

[1] Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd v Australia and New Zealand Banking Group Ltd (2000) 205 CLR 337; and R v Sussex Justices; Ex Parte McCarthy [1924] 1 KB 256 at 259 per Lord Hewart CJ