Case: Tooheys Ltd v Minister for Business and Consumer Affairs [1981] FCA 121 ; (1981) 36 ALR 64
Outcome: cited
25 September 2007 Mr Priestley wrote to Mr Budak again, requesting that Mr Budak provide a statement of reasons pursuant to s 13 of the ADJR Act for: [T] he refusal to accept my report of 27 August 2007 pursuant to paragraph 1(b), and [subclauses] (2) and (3) of clause 2.4.3 of [the Determination] ; [T] he failure to investigate the alleged breaches of the Code of Conduct by the [Parliamentary Service Commissioner] ; and [T] he failure to refer the report concerning alleged breaches of the [Code of Conduct] by the former Merit Protection Commissioner to the relevant office holder. By covering letter bearing the date 22 September 2007, Mr Budak provided to Mr Priestley a document entitled "Statement of Reasons under Section 13 of Administrative Decisions (Judicial Review) Act 1977 ". In that statement Mr Budak set out his decision and findings on material questions of fact. The statement of reasons was dated 17 October 2007. It is accepted that the September date on the covering letter was incorrect. In relation to the first two matters for which Mr Priestley requested reasons, Mr Budak stated that, while he considered the letter of 27 August 2007 ' as potentially being ' a whistleblower's report, as a report pursuant to paragraph (1)(b) of clause 2.4.3 of the Determination, he did not consider that the matter warranted further investigation. Mr Budak also set out the findings which formed the basis of his decision that the matter did not warrant further investigation. In a further letter to Mr Budak dated 19 November 2007, Mr Priestley accepted that Mr Budak had furnished a statement as required by s 13(2) of the ADJR Act. However, he added that: ' You correctly concluded that my letter of 27 August 2007 was a whistleblower's report as it was intended by me and as I had indicated in the letter. In consequence, therefore, you were obliged to reconsider the issue and in so doing [you] came to a new decision and refused to make a decision '. He requested a statement of reasons pursuant to s 13(1) of the ADJR Act for the alleged further decisions, which he described as decisions: [T] o make no further inquiry into the alleged breaches of the Parliamentary Service Code of Conduct by [the Parliamentary Service Commissioner] ; and [T] o receive and not refer the alleged breaches of the Parliamentary Service Code of Conduct by [the former Merit Protection Commissioner] to the appropriate office holder. Mr Priestley also requested a statement of reasons for what he asserted was a refusal to investigate an alleged separate breach of the Code of Conduct by the Parliamentary Service Commissioner, namely, that she did not refer allegations made against the former Merit Protection Commissioner to the Presiding Officers. It is apparent from the detailed submissions and assertions in his letter of 19 November 2007 that Mr Priestley considered that there had been a variation or revocation of the original decision. He asserted that the terms of the original decision showed that there had been a ' fundamental procedural failure ' to consider his letter of 27 August 2007 in accordance with s 48(1) of the Parliamentary Service Act and clause 2.4.3 of the Determination. It followed, he said, that Mr Budak had been obliged to revisit the issue and in so doing had come to a new decision and refused or failed to make a decision. Ms Godwin submits that, if there were a decision for the purposes of s 13 of the ADJR Act, Mr Priestley is not a person aggrieved by that decision. She submits that there is nothing in Mr Priestley's application which indicates the manner in which Mr Priestley alleges his interests were affected, adversely or otherwise, by the decisions he alleges Mr Budak made on 17 October 2007. Accordingly, she submits, Mr Priestley is not a person aggrieved within the meaning of s 3(4)(a)(i) of the ADJR Act for the purposes of ss 5 and 13 of that Act. Ms Godwin submits that Mr Priestley has no special interest as described in Australian Conservation Foundation Incorporated v The Commonwealth of Australia (1980) 146 CLR 493 at 530-531. She submits that, as the High Court pointed out, a belief that particular conduct should be taken or prevented is not sufficient to give the possessor of that belief locus standi . Mr Priestley is not, she says, a person interested, in that he is not likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest. Ms Godwin submits that Mr Priestley cannot demonstrate and has not demonstrated an interest in Mr Budak's alleged decision beyond an interest being held by virtue of being a member of the public, albeit a public linked to Parliamentary Service employees ( Tooheys Ltd v Minister for Business and Consumer Affairs [1981] FCA 121 ; (1981) 36 ALR 64).