As I have written before on this blog, a frustrating trend has developed in Australian administrative law in which courts and litigants fail to distinguish between judicial review for ‘unreasonableness’ in the exercise of a discretionary power and judicial review for ‘irrationality’ in the making of a finding of fact. The recent judgment of the Victorian Court of Appeal in Chief Commissioner of Police v IHF illustrates why it is so important to distinguish between the two grounds of review and how failing to do so can make it difficult for a court to identify the real issues in a judicial review application and apply the correct legal principles to the case.
Irrationality vs unreasonableness
Before turning to the facts of IHF, it is important to set out the difference between ‘irrationality’ and ‘unreasonableness’ as grounds of judicial review. In ordinary speech, ‘irrationality’ and ‘unreasonableness’ are related, but distinct concepts. Say two housemates have a pet cat. In one scenario, housemate A refuses to clean the cat’s litter box because she believes that exposure to cat litter causes schizophrenia; so she offers to do all of the other household chores, provided housemate B cleans the litter box. In this scenario housemate A is being irrational (while exposure to cat faeces in childhood may have some correlation with the later onset of schizophrenia, there is no evidence that it causes mental health problems in adults), but reasonable (the result of her offer is a division of labour that, if anything, is overly fair to housemate B). In a second scenario, housemate A refuses to do any chores at all, and threatens to run the cat over with her car unless housemate B agrees to do all of the housework. In this scenario, housemate A is being manifestly unreasonable (housemate B should not have to do all of the household chores), but coldly rational (she reasons, probably correctly, that household B will give in to her demands rather than let her murder a defenceless cat).
And the position is the same in administrative law. When a person whose interests are affected by an administrative decision seeks judicial review on the grounds of irrationality, what they are alleging is that some factual finding on which the decision was based was not ‘grounded in probative material’ and was instead grounded in ‘speculation or guesswork, or (worse) assumptions based on material incapable of supporting those assumptions.’ A person who seeks judicial review on the grounds of unreasonableness, on the other hand, says that the result of some exercise of discretion by the decision maker was outside the area of ‘decisional freedom’ afforded to the decision maker by the relevant statutory scheme operating in the context of the factual findings made by the decision maker. Judicial review on the grounds of unreasonableness is ‘directed at the decision itself’, and should be ‘kept quite separate’ from judicial review on the grounds that the exercise or non-exercise of a discretionary power was tainted by some more specific error. As Derrington J has explained, the principles relevant to judicial review for irrationality ‘seek to ensure that the state of mind which is a pre-condition for the exercise of power is formed in the manner implicitly prescribed by the Parliament’, while the principles of unreasonableness ‘seek to ensure the subsequent exercise of power is lawful and within the limitations which the Parliament imposes.’ Returning to my earlier hypothetical, the question whether cleaning a cat’s litter tray poses a risk of causing schizophrenia in an adult is a question of fact on which a conclusion can only be reached on the basis of evidence; the question of what constitutes an equitable distribution of housework is a value judgment on which different minds can, within certain parameters, reach different views. The first question is one of rationality; the second is one of reasonableness.
Unfortunately, not every court in Australia has approached the unreasonableness/irrationality dichotomy with the intellectual precision of Derrington J. Instead, Australian administrative law is replete with cases in which courts – including intermediate appellate courts – have viewed complaints about fact finding through the lens of ‘unreasonableness’. This is not a mere problem of nomenclature. As IHF demonstrates, failing to keep in mind the distinction between findings of fact (which are open to review where they lack an objective evidentiary foundation or a basis in common human experience) and discretionary judgments (which are open to review where they fall outside the range of value judgments that a reasonable person could make in the relevant factual context) can result in imprecise thinking and in a failure to properly consider what aspects of an administrative decision are amenable to review on what basis. Maintaining a linguistic distinction between ‘irrationality’ and ‘unreasonableness’ can help to ensure that this does not occur.
The facts in IHF
In IHF, the respondent was a police officer. In March of 2017, he attended at a day spa for a ‘speedo wax’. The day spa therapist who performed this procedure alleged that during the course of the consultation, IHF had deliberately exposed his erect penis to her. More specifically, the therapist alleged that IHF had ‘asked if I could go a little further and lifted the towel to reveal that his penis was erect. He was staring at me strangely and I felt disgusted, I said “No” and turned my back on him towards the waxing pot for a few seconds hoping he would put the towel back. When I turned around again a few seconds later he was still exposed. I pulled the towel back over him. He said “ok”.’
A delegate of the applicant Chief Commissioner charged IHF with a breach of discipline under s 127 of the Victoria Police Act 2013 (Vic) (the Act). Another delegate of the Chief Commissioner inquired into the charge. During the course of the inquiry, IHF denied that his penis had been exposed during the waxing and denied that he had had an erection. More particularly, IHF stated that during the entire course of the therapy session, he had been holding a towel firmly against his genital area (as he had been instructed to do by the therapist), and described the therapist’s allegations as ‘false, malicious, derogatory and defamatory’. However, the Chief Commissioner’s delegate accepted the day spa therapist’s account of events, found that IHF was guilty of disgraceful conduct, and determined that IHF should be dismissed from the police force.
IHF then applied to the Police Registration and Services Board (the PRS Board) under s 146(1) of the Act for review of the Chief Commissioner’s decision. The PRS Board’s functions and powers on such a review are prescribed by Pt 8, Divs 2 and 3 of the Act. Thus s 151 of the Act provides that in conducting a review, the PRS Board must (in addition to any other matters it considers relevant) take into account the public interest and the interests of the applicant for review. Where an application for review relates to a decision to terminate the appointment of a police officer, s 152(2) provides that the PRS Board must affirm the decision unless it is satisfied that the decision is harsh, unjust or unreasonable – if it is so satisfied, it may set aside the decision and substitute a new decision or remit the matter to the Chief Commissioner to be redetermined in accordance with any directions or recommendations it makes. Importantly, s 160 of the Act provides that the PRS Board has power to issue a summons requiring a person to attend before the PRS Board and give evidence.
On review, the PRS Board expressed concern that the therapist’s account of events had not been explored sufficiently by the delegate. However, when the Chief Commissioner requested that the PRS Board exercise its power to summons the therapist to give further evidence, the PRS Board refused to do so. The PRS Board then proceeded to find that ‘the evidence as a whole [was] capable of supporting an account of events which involves inadvertent and unknowing exposure’. That is, the PRS Board considered that it was reasonably possible that ‘a part of [IHF’s] penis was exposed to [the day spa therapist] unintentionally, without his knowledge, as he lay on his back’ and that the therapist had wrongly (but honestly) believed IHF had an erection. Based on this, the PRS Board concluded that the therapist ‘did see at least a part of [IHF’s] penis during the waxing treatment and was distressed by this’, but it was not satisfied that IHF had had an erection or that he had knowingly exposed his penis to the day spa therapist. It therefore considered that the decision to dismiss IHF from the police force had been harsh, unjust or unreasonable and ordered that the decision be set aside.
Judicial review application and appeal
The Chief Commissioner sought judicial review of the PRS Board’s decision. The essence of the Chief Commissioner’s complaint was that the PRS Board had made findings of fact based on an ‘inadvertent exposure hypothesis’ that neither IHF nor the day spa therapist had advanced and that the PRS Board had failed to call the therapist to give evidence on the interrelated questions of whether IHF might have inadvertently exposed his penis to her and whether her belief that he had had an erection might have been mistaken. Unfortunately, the way in which these grounds were enunciated was somewhat convoluted. This is not a criticism of the Chief Commissioner’s legal representatives. Rather, the way in which the case was put reflects the way in which the irrationality and unreasonableness grounds of review have too often been conflated by Australian courts.
If one applies the unreasonableness/irrationality dichotomy in the manner advocated for by Derrington J, it becomes clear that the PRS Board’s conduct of proceedings and its findings of fact implicated both principles. First, by finding that IHF had inadvertently exposed his penis to the therapist, the PRS Board arguably made a finding of fact for which there was no evidence at all, and that was in fact entirely inconsistent both with the therapist’s evidence that IHF had lifted his towel and stared at her while his penis was exposed and with IHF’s evidence that he had had a towel pressed firmly over his genital area throughout the procedure. Second, by finding that it was reasonably possible that the therapist had somehow mistakenly perceived that IHF had an erection, it arguably made a finding that was contrary to ordinary human experience and for which there was no evidence (it is, at the very least, somewhat infantilising to conclude that a person who alleges that they have been the victim of a sexual offence may just not know what an erect penis looks like – one would think some evidentiary basis would be necessary before it could rationally be concluded that an adult had made a mistake about such a basic matter of human anatomy). Finally, the PRS Board had arguably erred by failing to exercise its discretionary power to summons the therapist to give evidence in circumstances where, on the basis of conjecture on its part about matters that were not raised before the Chief Commissioner’s delegate, it had formed the view that her evidence was inadequate. Properly understood, the first two of these errors implicate the principle of irrationality, while the third implicates the principle of unreasonableness. However, because Australian courts have not always drawn a sharp distinction between the two grounds, all of the PRS Board’s potential errors became grouped in the Chief Commissioner’s submissions under the heading of ‘unreasonableness’ (the PRS Board’s failure to summons the therapist was also the subject of a separate ground of review by which the Chief Commissioner alleged that the PRS Board had failed to comply with the rules of procedural fairness, but I will not deal with that ground of review in this post).
The trial judge dismissed the Chief Commissioner’s application for judicial review. On appeal, the Court of Appeal considered that ‘given the assessment of the day spa therapist’s evidence as imprecise and lacking in clarity’, it was open to the PRS Board to conclude that IHF had inadvertently exposed his penis to her (although it did not really deal with how the PRS Board could, in the absence of any evidence at all on this issue, have rationally reached the conclusion that the therapist might have mistakenly believed that IHF had an erection). Insofar as the PRS Board’s refusal to call further evidence from the day spa therapist was concerned, the Court concluded that it would have been unfair to IHF to call the therapist because it was ‘too late to “fill the gaps” in the evidence without causing significant procedural unfairness to IHF.’ The only authorities on unreasonableness and irrationality referred to by the Court were Minister for Immigration and Citizenship v Li – which, while it is arguably still the leading authority on procedural unreasonableness, has to be read in light of the more recent judgment of the High Court in ABT17 v Minister for Immigration and Border Protection – and Minister for Immigration and Citizenship v SZMDS – a judgment that has largely been superseded by the lengthy series of Federal Court judgments that have expanded upon it and explained its meaning over the past decade. Those authorities were dealt with together under the rubric of ‘unreasonableness’, rather than viewed through the prism of the irrationality/unreasonableness dichotomy. The Court concluded, without a great deal of explanation, that there was ‘no similarity between the conduct of the [Refugee Review] Tribunal in Li and that of the Board in this case.’ With respect to the principles enunciated in SZMDS, the Court concluded that because it was open to the PRS Board not to be satisfied on the basis of the totality of the evidence that IHF had deliberately exposed his penis to the day spa therapist, its ultimate decision was one that was reasonably open to it.
With the utmost respect to the Court of Appeal and to everyone who appeared in the case, the judgment in IHF seems to me to be somewhat unsatisfactory. At least in my opinion, the problems in the judgment arise from a conflation of the concepts of unreasonableness and irrationality and from a failure to properly consider and have regard to the most recent authorities on those grounds of review. Instead of considering the question of procedural unreasonableness in light of the recent judgment in ABT17 and separately considering the question of irrationality in light of the Federal Court’s highly developed jurisprudence on that ground of review, the Court of Appeal dealt with all of the Chief Commissioner’s complaints as though they implicated the same set of legal principles.
When the PRS Board’s failure to call the therapist is considered in light of ABT17, it seems to me that there was much to commend the Chief Commissioner’s argument that that failure was procedurally unreasonable. In this regard, it was the PRS Board’s conjecture as to the possibility that IHF might have inadvertently exposed his penis to the day spa therapist – not some argument put by IHF or something arising from the therapist’s evidence – that resulted in the therapist’s evidence being deficient (in the sense that it did not deal with an issue that arose in the case). In those circumstances, the PRS Board’s approach to the evidence created (to use the language of the majority in ABT17) an ‘informational gap’ in the case. That gap could have been plugged if the PRS Board had simply acceded to the Chief Commissioner’s request that it summons the therapist to give further evidence. In these circumstances, it seems to me that the Chief Commissioner’s argument that the PRS Board had acted unreasonably by declining to exercise its power to summons the therapist was substantially stronger than the Court of Appeal acknowledged.
Similarly, it does not seem to me that it was enough to dispose of the Chief Commissioner’s case for the Court of Appeal to say that, having regard to the totality of the evidence before the PRS Board, a reasonable decision maker could have reached the conclusion that it was not satisfied that IHF had deliberately exposed himself to the day spa therapist. Rather, the PRS Board’s path of reasoning and the intermediate findings of fact (both explicit and implicit) that comprised that path had to be analysed. Such an analysis reveals some problematic reasoning on the part of the PRS Board. First, it is exceedingly difficult to see how the PRS Board could rationally conclude that IHF had inadvertently exposed himself to the therapist when his evidence was that he had had a towel pressed against himself throughout the consultation, while the therapist’s evidence was that he had lifted his towel and stared at her, then kept his penis exposed until she placed the towel back over him. And second, the PRS Board does not seem to have had any basis for concluding that the therapist – a young adult woman working in an occupation that requires frequent contact with people’s genital areas – might have mistakenly perceived that IHF had erection.
None of this is to say that IHF was in fact guilty of the allegations made against him. It is possible that, as he alleged, the therapist’s account of events was fabricated. Similarly, it is possible that the therapist confused IHF with another client (a possibility that was not raised in the case at all and that clearly could not have been accepted without some evidence and without hearing what the day spa therapist had to say about it). And it is also possible that – as the PRS Board found – the whole affair was a horrible misunderstanding. But the PRS Board’s theory of the case involved engaging in conjecture and making findings about matters that were not raised by the evidence before it, that had not been addressed by the therapist, and that were (at least in my view) contrary to ordinary human experience. It therefore seems to me that there was, at the very least, a much stronger argument than the Court of Appeal acknowledged that the PRS Board had acted irrationality by making findings of fact on issues where there was a significant informational gap, and that it had acted unreasonably by failing to take steps that were readily available to it to plug that gap. It will be interesting to see whether IHF is the subject of a special leave application, as one can imagine that it might make a good vehicle for the High Court to consider the distinction between the irrationality and unreasonableness grounds of review, and for it to give close consideration to the way in which the Federal Court has shaped the irrationality ground during the decade since SZMDS was handed down.