Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: referred to
Particular A of the third and fourth grounds of challenge is that the second respondent failed to take into account four matters. First, it is alleged he failed to take into account "the full requirements of the applicant's duties". It was certainly relevant for the second respondent to take into account the nature of the applicant's duties and, in my opinion, he clearly did that. The applicant did not identify the duties he alleges he was required to carry out which were not taken into account by the second respondent and even if the applicant went beyond his duties the evidence went nowhere near establishing that this would explain all of the system violations. Secondly, it is alleged that the second respondent failed to take into account the fact that the applicant reported to the ATO's Director of Computer Security that a serious weakness existed in the security of ATO taxpayer data. I refer to my findings in [62] above. I do not think it is a relevant consideration or, if it is, in my opinion it is "so insignificant that the failure to take it into account could not have materially affected the decision": Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 46 per Mason J (as he then was). Furthermore, the second respondent said in his reasons that he could not make a finding as to the applicant's motive. Thirdly, it is alleged that the second respondent failed to take into account the fact that at no time did the applicant breach ATO security. The second respondent took into account the fact that the system violations were attempted breaches of security. Having regard to the decision he was required to make, he was not required to go any further. Fourthly, it is alleged that the second respondent failed to take into account that the applicant's use of the ATO computer facilities during the period December 1996 to April 1997 was not qualitatively different from the use made of those computer facilities by other ATO officers during that period. As I said earlier, the asserted fact was not established and, indeed, the contrary was established. 130 Particulars B, C and D can be dealt with together. Particular B is an allegation that the second respondent improperly took into account the assertion that taxpayer data could have been improperly accessed if the applicant succeeded in accessing the computer facilities when the computer facilities accessed did not contain any taxpayer data. This seems to me to contain two allegations: first, that there was an error of fact and the computer facilities to which access was attempted did not contain taxpayer data and, secondly, assuming that fact it would be irrelevant. Particular C is an allegation that the second respondent improperly took into account that "with further work" the applicant could have gained the ability to gain access to production taxpayer data, sensitive ATO staff record data and access to computer systems which would put at risk the ability of ATO core business systems to continue to function. Particular D is an allegation that the second respondent improperly took into account the assertion that the applicant was seeking to access production taxpayer data or sensitive ATO staff record data without verifying the assertion. I have already referred to the second respondent's reasons (at [56] above). There was ample evidence in support of the second respondent's conclusions and they were proper matters for him to take into account. 131 Particular E is an allegation that the second respondent improperly took into account the assertion that the applicant had comprehensively responded to the allegations put to the applicant by the third respondent and the assertion that the applicant did not wish to discuss the matter with him when the applicant had in fact requested that a meeting be arranged. As I read the second respondent's reasons he did not take this into account as a consideration and it is no more than a statement of what had happened. Insofar as it is an allegation of a breach of the rules of natural justice, I reject it for the reasons previously given.