Taciak A. v Commissioner of Australian Federal Police [1995] FCA 650

CATCHWORDS

ADMINISTRATIVE LAW - Error of Law - Whether the Telecommunications (Interception) Act 1979 (Cth) permitted the respondent to use lawfully obtained intercept information in deciding not to reappoint a member of the Australian Federal Police - not a purpose "connected with" an "investigation" or "inquiry" - respondent not permitted to use the intercept information - construction of exceptions to statutory prohibition on infringement of privacy.

WORDS AND PHRASES - Telecommunications (Interception) Act 1979 (Cth), s 5 "Permitted purpose" - "investigation", "inquiry", "connected with".

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 6.

Judiciary Act 1903 (Cth), s 39B.

Telecommunications (Interception) Act 1979 (Cth), ss 5 "permitted purpose", 67.

Australian Federal Police Act 1979 (Cth), s 26.

Australian Federal Police Regulations (Cth), reg 5(1).

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280.

Commissioners of Customs and Excise v Top Ten Promotions Ltd [1969] 3 All ER 39; [1969] 1 WLR 1163.

Edelsten v Investigating Committee of New South Wales (1986) 7 NSWLR 222.

R. v Edelsten (1990) 21 NSWLR 542.

Coco v The Queen (1994) 179 CLR 427.

Morris v Beardmore [1981] AC 446.

Malone v Metropolitan Police Commissioner [1979] Ch 344.

Plenty v Dillon (1991) 171 CLR 635.

ALAN TACIAK v COMMISSIONER OF AUSTRALIAN FEDERAL POLICE

NG 476 of 1995

Sackville J.

Sydney

24 August, 1995

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY) No. NG 476 of 1995

GENERAL DIVISION )

BETWEEN:

ALAN TACIAK

Applicant

AND:

COMMISSIONER OF AUSTRALIAN

FEDERAL POLICE

Respondent

CORAM: SACKVILLE J.

PLACE: SYDNEY

DATE: 24 AUGUST 1995

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The decision made by the respondent, on or about 20 June 1995, not to reappoint the applicant as a member of the Australian Federal Police, be set aside and that the matter be remitted to the respondent for determination in accordance with these reasons.

2. The respondent pay the applicant's costs of these proceedings.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY) No. NG 476 of 1995

GENERAL DIVISION )

BETWEEN:

ALAN TACIAK

Applicant

AND:

COMMISSIONER OF AUSTRALIAN

FEDERAL POLICE

Respondent

CORAM: SACKVILLE J.

PLACE: SYDNEY

DATE: 24 AUGUST 1995

REASONS FOR JUDGMENT

The Proceedings

Until 1 July 1995 the applicant held a position as a non-commissioned officer with the Australian Federal Police ("the AFP"). In these proceedings he applies under ss.5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) or, alternatively, under s.39B of the Judiciary Act 1903 (Cth), for review of a decision by the respondent ("the Commissioner") not to reappoint the applicant as a member of the AFP upon the expiry of his term of office on 1 July 1995.

The proceedings raise a narrow question of law, namely, whether the Telecommunications (Interception) Act (Cth) 1979 ("the Interception Act") permits the Commissioner to use information lawfully obtained under that Act for the purpose of deciding not
to reappoint the applicant as an officer of the AFP. There is no dispute that the Commissioner did use information of that kind in making his decision not to reappoint the applicant. There is also no dispute between the parties that, if the Commissioner was not entitled to use that information, the appropriate order is that the decision should be set aside and the applicant's request for reappointment should be considered further by the Commissioner in accordance with law.

The Facts

The parties prepared an agreed statement of facts. The following is based on that statement, with some additional material derived from an agreed bundle of documents.

1. The applicant was first appointed as a member of the AFP on 24 June 1980.

2. By virtue of a determination by a delegate of the respondent made pursuant to s.57(1)(a) of the Australian Federal Police Legislation Amendment (No.2) Act 1989 (Cth), the applicant held a position as a non-commissioned police officer for a term commencing on 2 July 1990 and concluding on 1 July 1995. Section 56(3) of that Act provided that the applicant was taken to have been appointed under s.26 of the Australian Federal Police Act 1979 (Cth) ("the AFP Act") to his position.

3. On 17 May 1994 the applicant elected in writing to be considered for reappointment.

4. By letter dated 29 December 1994 from the Deputy Commissioner (Administration), the applicant was advised that consideration was being given to not reappointing him at the expiry of his term of appointment.

5. By letter to the applicant dated 29 March 1995, the Assistant Commissioner (Investigations) provided details of the matters to which he proposed to have regard in any decision as to whether or not the applicant would be reappointed. The details included the following:

"1. Your alleged conduct and actions which are the subject of a summons issued by New South Wales Police on 29 March 1995 in respect of an offence of 'pervert the course of justice' under s.319 of the Crimes Act 1900 (NSW);

2. Your agreement in a telephone conversation with [X (a relative of a registered informant)] on 29 September 1994 to obtain and provide information to him in relation to [Y] (which action you subsequently admitted in a Record of Interview with Detective Acting Superintendent Drennan on 22 March 1995);

3. ...

4. Your action on 29 September 1994 in releasing to [X] information in relation to [Y] (which action you subsequently admitted in a Record of Interview with Detective Acting Superintendent Drennan on 22 March 1995)...".

Each of the matters referred to in paragraphs 1, 2 and 4 was based on telephone conversations which had been intercepted in accordance with the provisions of the Interception Act.

6. On 5 April 1995 the Deputy Commissioner (Operations) notified the applicant that he was suspended from duty, with pay, pursuant to reg.20(1)(c) of the Australian Federal Police (Discipline) Regulations. The ground given was that the applicant may have committed a disciplinary offence in that, in March 1994, he communicated with X with intent to pervert the course of justice, in breach of s.319 of the Crimes Act 1900 (NSW).

7. By letter dated 29 May 1995, Deputy Commissioner (Administration) J.D. Allen, a delegate of the respondent, advised the applicant of his decision not to reappoint the applicant at the expiry of his term on 1 July 1995.

8. In accordance with guidelines adopted by the respondent, the applicant requested a review of the decision not to reappoint him and the matter was referred to the AFP Review Panel. The applicant, through his solicitors, made a written submission to the Review Panel on 6 June 1995.

9. The Review Panel recommended to the Commissioner, by majority, that the applicant not be reappointed.

10. In June 1995 the Commissioner considered whether he should appoint the applicant as a non-commissioned officer of the AFP. For this purpose, the Commissioner had regard to the material considered by Deputy Commissioner Allen, the applicant's submission to the Review Panel and the
recommendation of the Review Panel. The material to which the Commissioner had regard included material communicated to or obtained by the Commissioner under the provisions of the Interception Act ("the subject material").

11. Part of the subject material was obtained by New South Wales authorities under the Interception Act. This part of the subject material was communicated by the New South Wales authorities to the Commissioner pursuant to s.68(c)(ii) and (iii) of the Interception Act. The balance of the subject material was obtained by the Commissioner under the Act.

12. The subject material was lawfully obtained and (to the extent it was communicated) lawfully communicated to the Commissioner.

13. The Commissioner took into account the subject material in determining the applicant's suitability for appointment as a non-commissioned officer of the AFP.

14. The criminal charges against the applicant have not yet been determined.

The AFP Act and Regulations

Section 26 of the AFP Act provides, relevantly, as follows:

"26(1) Subject to this Act, the Commissioner may, by writing signed by him:

(a) appoint a person to be a non-commissioned police officer, being an appointment to a position within a non-commissioned rank that the person is, in accordance with the regulations, competent and qualified to hold."

The Australian Federal Police Regulations, reg.5(1) provides that, for the purposes of s.26(1), a person is competent and qualified to hold a position, if the person, inter alia,

"(d)is of good character and reputation;

(e)possesses the experience, qualifications and training specified in the selection criteria relating to the position as being required for the effective performance of the duties of that position; and

(f)having regard to any other factors that are relevant to the discharge of the duties of the position, is suitable for appointment or promotion to the position, as the case may be."

It was common ground that s.26(1) applied to the reappointment of an officer in the same way as it applied to an initial appointment.

The Interception Act

The Interception Act prohibits a person intercepting, or authorising the interception of, a communication passing over a telecommunications system: s.7(1). This prohibition is subject to a number of exceptions, of which the most significant is the interception of a communication under a warrant: s.7(2)(b). Part VI of the Interception Act sets out in detail the procedure to be followed and the criteria to be applied on an application for a warrant.

The starting point for the issue presented by this case is s.67 of the Interception Act:

"67. An officer of an agency may, for a permitted purpose, or permitted purposes, in relation to the agency, and for no other purpose, communicate to another person, make use of, or make a record of, lawfully obtained information...".

This section is of considerable importance to the scheme of the legislation, since it permits an officer of an agency to use or communicate lawfully obtained information (to which I refer as "intercept information") for a "permitted purpose", but for no other purpose. The key phrase in s.67 is "permitted purpose", which is separately defined. I shall return to the definition shortly.

The authority for a State agency to communicate information to the Commissioner is conferred by s.68:

"68. The chief officer of an agency (in this section called the "originating agency") may, personally, or by an officer of the originating agency authorised by the chief officer, communicate lawfully obtained information that was originally obtained by the originating agency:

...

(i) ...;

(ii)an act or omission by a member of the Australian Federal Police that may give rise to a proceeding against that member, or to which a proceeding against that member relates, being a police disciplinary proceeding; or

(iii)misbehaviour or improper conduct of an officer of the Commonwealth;

and the originating agency is not the Australian Federal Police - to the Commissioner of Police ...".

The term "lawfully obtained information" is defined in s.6E of the Interception Act. However, there is no need to consider that definition for the purposes of these proceedings since there was no dispute that the subject information in this case was lawfully obtained.

An "agency" for the purposes of Part VII of the Interception Act (which includes ss.67 and 68) means the Australian Federal Police, the National Crime Authority and an "eligible authority of a State": s.5. An "eligible authority of a State" is defined to include the Police Force of a State, the New South Wales Crime Commission and the Independent Commission Against Corruption of New South Wales: s.5.

The term "proceeding", which is used in s.68(c)(ii), is defined in s.5 as follows:

"(a)a proceeding or proposed proceeding in a federal court or in a court of a State or Territory;

(b) a proceeding or proposed proceeding, or a hearing or proposed hearing, before a tribunal in Australia, or before any other body, authority or person in Australia having power to hear or examine evidence; or

"Permitted Purpose"

The definition of permitted purpose is also contained in s.5 of the Act:

"permitted purpose", in relation to an agency, or an eligible authority of a State, means a purpose connected with:

(a) in any case:

(i) an investigation by the agency or eligible authority of a prescribed offence;

(ii)the making by an authority, body or person of a decision whether or not to begin a relevant proceeding in relation to the agency or eligible authority;

(iii)a relevant proceeding in relation to the agency or eligible authority;

(i) the exercise by the chief officer of the agency or eligible authority of the powers conferred by section 68; or

(v) the keeping of records by the agency under Part VIII....

(b) in the case of the Australian Federal Police:

(i) an investigation of, or an inquiry into, alleged misbehaviour, or alleged improper conduct, of an officer of the Commonwealth, being an investigation or inquiry under a law of the Commonwealth or by a person in the person's capacity as an officer of the Commonwealth;

(ii)a report on such an investigation or inquiry;

(iii)the tendering to the Governor-General of advice to terminate, because of misbehaviour or improper conduct, the appointment of an officer of the Commonwealth; or

(iv)deliberations of the Executive Council in connection with advice to the Governor-General to terminate, because of misbehaviour or improper conduct, the appointment of an officer of the Commonwealth;

(i) an investigation of, or an inquiry into, alleged misbehaviour, or alleged improper conduct, of an officer of that State, being an investigation or inquiry under a law of that State or by a person in the person's capacity as an officer of that State;

(ii)a report on such an investigation or inquiry;

(iii)the tendering to the Governor of that State of advice to terminate, because of misbehaviour or improper conduct, the appointment of an officer of that State...".

In construing the definition of "permitted purpose" a number of other definitions are relevant. These are the definitions relating to

l "investigation by an agency, or by an eligible authority of a State, of an offence" (s.6A(1));

l "prescribed offence" (s.5);

l "relevant proceeding" (s.6L(1)); and

l "officer" (s.6G(1)).

These definitions are as follows:

"6A(1) A reference in this Act to the investigation by an agency, or by an eligible authority of a State, of an offence is a reference to:

(a) in the case of the Australian Federal Police - an investigation of that offence, in the course of the performance by the Australian Federal Police of its functions, by members of the Australian Federal Police;

(b) in the case of a Police Force of a State - an investigation of that offence, in the course of the performance by that Police Force of its functions, by officers of that Police Force; or

"prescribed offence" means

"(a)a serious offence;

(b)an offence against subsection 7(1) or section 63 [which relate to unauthorised interceptions or dealings in such interceptions].

(c)an offence against a provision of Part VIIB of the Crimes Act 1914;

(d)any other offence punishable by imprisonment for life or for a period, or maximum period, of at least 3 years; or

(e)an ancillary offence relating to an offence of a kind referred to in paragraph (a), (b), (c) or (d) of this definition."

"6L(1) A reference in this Act, in relation to an agency, or an eligible authority of a State, to a relevant proceeding is, in the case of the Australian Federal Police or a Police Force of a State, a reference to:

(a) a proceeding by way of a prosecution for a prescribed offence that is an offence against a law of the Commonwealth, or of that State, as the case may be;

(b) a proceeding under a law of the Commonwealth, or of that State, as the case may be, for the confiscation or forfeiture of property, or for the imposition of a pecuniary penalty, in connection with the commission of a prescribed offence;

(d) a proceeding for the extradition of a person...;

(e) a police disciplinary proceeding that is a proceeding against a member of the Australian Federal Police, or of that Police Force, as the case may be; or

(f) any other proceeding (not being a proceeding by way of a prosecution for an offence) in so far as it relates to alleged misbehaviour, or alleged improper conduct, of an officer of the Commonwealth, or of that State, as the case may be."

"6G(1) A reference in this Act to an officer, in relation to the Commonwealth, includes a reference to:

(a) a person holding, or acting in, an office (including a judicial office) or appointment, or employed, under a law of the Commonwealth;

(b) a person who is, or is a member of, an authority or body established for a public purpose by or under a law of the Commonwealth, or is an officer or employee of such an authority or body; and

Evidence in an Exempt Proceeding

In general, "[w]here a communication passing over a telecommunications system has been intercepted, whether or not in contravention of [the Interception Act], then...neither information, nor a record, obtained by the interception is admissible in evidence in a proceeding...": s.77(1)(a). However, subject to a presently irrelevant exception, a person may give lawfully obtained information in evidence in an "exempt proceeding": s.74. An "exempt proceeding" is defined by s.5B to include

"(a)a proceeding by way of a prosecution for a prescribed offence;

...

(e)a police disciplinary proceeding;

(f)any other proceeding (not being a proceeding by way of a prosecution for an offence) in so far as it relates to alleged misbehaviour, or alleged improper conduct, of an officer of the Commonwealth or of a State...".

"Police disciplinary proceeding" means "a disciplinary proceeding, before a tribunal or body that is responsible for disciplining members of the Australian Federal Police or officers of a Police Force of a State...": s.5. In the case of the AFP, the tribunal responsible for disciplining members is the Federal Police Disciplinary Tribunal established by Part VI of the Complaints (Australian Federal Police) Act 1981 (Cth).

Submissions

Mr Aldridge, who appeared for the applicant, argued that the definition of "permitted purpose" was exhaustive of the circumstances in which the Commissioner could use the subject information. The fundamental policy underlying the prohibition contained in s.67, was that intercept information was to be used for strictly limited purposes, carefully defined in the Intercept Act itself. Otherwise its use was forbidden.

Mr Aldridge submitted that paragraph (b)(i) of the definition of "permitted purpose" was not satisfied in the present case, because a decision not to appoint or reappoint an officer was different from an investigation or inquiry into alleged misbehaviour or alleged misconduct. The use of the subject material in making that decision was not use for "a purpose connected with...an investigation of, or an inquiry into, alleged
misbehaviour, or alleged improper conduct".

Mr Robberds QC, who appeared with Mr Howe for the Commissioner, accepted that the effect of s.67 of the Interception Act was that the Commissioner had to demonstrate that he had made use of the subject material for a "permitted purpose" as defined. As Mr Aldridge had anticipated, Mr Robberds relied principally upon paragraph (b)(i) of the definition of "permitted purpose" to support the submission that the subject material had been used for a permitted purpose. He submitted that, in considering whether the applicant should be appointed (or reappointed) as a non-commissioned officer, the Commissioner had conducted an inquiry into alleged misbehaviour or alleged improper conduct of the applicant. The letter of 29 March 1995 had identified the details of the alleged wrongdoing. This inquiry was undertaken by the Commissioner in his capacity as an officer of the Commonwealth and, accordingly, was within paragraph (b)(i) of the definition of "permitted purpose".

Mr Robberds argued that the Commissioner was required to makeuse of the subject material because the possibility of misbehaviour or alleged improper conduct was a factor relevant to the discharge of his responsibilities under s.26(1)(a) of the AFP Act and under the AFP Regulations. Mr Robberds also contended that a contrary construction of the definition of "permitted purpose" would lead to absurd results. This was because theCommissioner, in deciding whether or not to reappoint an officer, would have to disregard lawfully obtained information of which he was aware.
The Commissioner might therefore be required to make a judgment as to an officer's suitability for reappointment, totally at odds with the opinion he had formed on the basis of information lawfully obtained by him or communicated to him.

"Investigation" and "Inquiry"

The words "investigation" and "inquiry", as employed in paragraph (b)(i) of the definition of "permitted purpose", are not defined in the Interception Act. (Section 6A defines "investigation by an agency...of an offence", but the definition does not assist in the present context.) These words, taken in their context, do not suggest that the legislation was intended to authorise the use of intercept information for the purpose of making a decision to take action against an officer who is, or has been, the subject of an investigation or inquiry.

The dictionary definition of "inquiry" is

"1. an investigation, as to a matter.

2. the act of inquiring, or seeking information by questioning, interrogation." (Macquarie Dictionary.)

"Investigation" means

"1. the act or process of investigating.

2. a searching inquiry in order to ascertain facts; a detailed and careful examination". (Macquarie Dictionary.)

An authorisation or direction to conduct an inquiry or investigation into the conduct of a person would not, without more, ordinarily carry with it the authority or duty to decide whether the person's employment should be terminated, nor whether the person should be offered an appointment or reappointment to a position. A searching inquiry to ascertain the facts is one thing; a decision as to the action to be taken on the basis of the facts so ascertained is another.

Of course, the language employed in legislation must take its meaning from the context. In my view the distinction to which I have referred is reinforced by the definition of "permitted purpose". That definition clearly distinguishes two cases. The first is where information is used for a purpose connected with an investigation or inquiry. The second is where it is used for a purpose connected with a decision affecting the interests of a person who is the subject of the investigation or inquiry. As has been seen, paragraph (b)(i) of the definition, when taken in conjunction with s.67, authorises the AFP to use intercept information for a purpose connected with an investigation of, or an inquiry into, alleged misbehaviour or improper conduct of an officer of the Commonwealth. Likewise, paragraph (a)(i) of the definition authorises the use by an agency or eligible authority (including the AFP) of intercept information for a purpose connected with an investigation by the agency or eligible authority of a "prescribed offence", a term defined by s.5 to mean certain kinds of serious criminal offences.

But paragraph (a)(ii), again read in conjunction with s.67, specifically authorises the use by an agency or eligible authority of intercept information for a purpose connected with the making by an "authority, body or person of a decision whether or not to begin a relevant proceeding in relation to the agency or eligible authority". A "relevant proceeding" includes a police disciplinary proceeding against a member of the AFP, as well as a prosecution for a prescribed offence: s.6L(1)(a),(e).

In other words, the legislation is framed on the basis that authorising the use of intercept information for a purpose connected with an investigation or inquiry into alleged misbehaviour or alleged improper conduct is insufficient, of itself, to authorise the use of that information for a purpose connected with the making of a decision whether or not to begin a police disciplinary proceeding or other "relevant proceeding".

It may be that the distinction drawn by the definition reflects, at least in part, the fact that the agency or eligible authority responsible for an investigation, especially of a criminal offence, is not necessarily the "authority, body or person" responsible for deciding whether or not to begin a relevant proceeding such as a criminal prosecution. If anything, this reinforces the view that the reference to an "investigation" or "inquiry" in the definition of "permitted purpose" is not intended to extend to a decision to take action against a person who is the subject of the investigation or inquiry.

In my opinion, this approach to the construction of the definition is further supported by the relationship between paragraphs (b)(i) and (b)(ii). The definition proceeds on the assumption that it is necessary to authorise specifically the use of intercept information for a purpose connected with a report or an investigation or inquiry of the kind referred to in paragraph (b)(i). Had it been intended to give the terms "investigation" or "inquiry" in paragraph (b)(i) a broad meaning, it is difficult to see why paragraph (b)(ii) was necessary.

"Connected With"

In the course of oral argument, Mr Robberds contended that, even if a decision not to reappoint a member of the AFP is not within the terms "investigation" and "inquiry", as employed in paragraph (b)(i) of the definition, the use of intercept material to support such a decision is a purpose "connected with" the investigation or inquiry.

In Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 (FCA/FC), at 288, the Full Court said this:

"The words 'connected with' are capable of describing a spectrum of relationships ranging from the direct and immediate to the tenuous and remote. As Sheppard and Burchett JJ. observed in Australian National Railways Commission v Collector of Customs (SA) [(1985) 8 FCR 264, at 275] the meaning of the word 'connection' is wide and imprecise, one of its common meanings being 'relation between things one of which is bound up with, or involved in, another': Shorter Oxford English Dictionary."

(In the Australian National Railways Case, Sheppard and Burchett JJ. were quoting the comments of the Court in Collector of Customs v Cliffs Robe River Iron Associates (1985) 7 FCR 271 (FCA/FC), at 275.) The question remains in a particular case
what kind of relationship will suffice to establish the connection contemplated by the statute. This requires, to use the language in Pozzolanic, at 289, a "value judgment about the range of the Act".

The value judgment required is more likely to depend on the statutory context than on dictionary definitions. In Commissioners of Customs and Excise v Top Ten Promotions Ltd [1969] 3 All ER 85; [1969] 1 WLR 1163 (HL), the House of Lords considered the phrase "activities ancillary thereto or connected therewith". Lord Upjohn said this about the use of "simple, non-technical language" of this kind (All ER at 90; WLR at 1171):

"It is highly dangerous, if not impossible, to attempt to place an accurate definition on a word in common use; you can look up examples of its many uses if you want to in the Oxford Dictionary but that does not help on definition; in fact it probably only shows that the word normally defies definition. The task of the court in construing statutory language such as that which is before your Lordships is to look at the mischief at which the Act is directed and then, in that light, to consider whether as a matter of common sense and every day usage the known, proved or admitted or properly inferred facts of the particular case bring the case within the ordinary meaning of the words used by Parliament."

I do not doubt that the opening words of the definition of permitted purpose give the definition a broader scope than otherwise would be the case. To use an example relevant to the present case, the use of intercept information in making a decision to suspend an officer, pending the conduct of a "relevant proceeding", may not be for the purpose of the proceeding itself (paragraph (a)(iii)). However, it is likely
to be for a purpose connected with the proceeding, since the suspension is closely linked to, and dependent upon, the proceeding itself.

But even though the introductory words of the definition of "permitted purpose" expand its scope, I do not think that the use of intercept material in making a decision not to reappoint an officer is "a purpose connected with" an investigation of, or an inquiry into, alleged misbehaviour or improper conduct. The fact remains that the sub-paragraphs of the definition of "permitted purpose" clearly distinguish between an inquiry or investigation and a decision to take proceedings against an individual in consequence of such an inquiry or investigation. The opening words of the definition, in my opinion, cannot expand the scope of individual sub-paragraphs to the point where they render redundant other sub-paragraphs specifically authorising the use of intercept information. A fortiori the words cannot expand paragraph (b)(i) to the point where it authorises the use of intercept material for a purpose quite distinct from the investigation or inquiry. In particular they cannot authorise the use of intercept material for the purpose of deciding to act on the results of an investigation or inquiry by deciding not to reappoint a member of the AFP for a further term.

Mr Robberds did not suggest that any other sub-paragraph of the definition authorised the Commissioner to use the intercept information for the purpose of making a decision not to reappoint an officer of the AFP for a further term. It follows that s.67
of the Interception Act precludes the use of intercept information for this purpose.

Policy Considerations

It seems to me that, contrary to Mr Robberds' submissions, there is nothing absurd in this construction of the legislation. Under the Interception Act, an "originating agency" is entitled to communicate lawfully obtained intercept information to the AFP if (inter alia) the information relates or appears to relate to

l an act or omission of a member of the AFP that may give rise to a "proceeding" (including one before the Federal Police Disciplinary Tribunal) (s.68(c)(ii)); or

l misbehaviour or improper conduct of an officer of the Commonwealth (s.68(c)(iii)).

(An issue may arise as to whether s.68(c)(ii) and s.68(c)(iii) are intended to be mutually exclusive. However, the question was not explored in argument and I say nothing about it.)

Having received the intercept information, the AFP is entitled to use it for a purpose connected with an investigation of, or an inquiry into, alleged misbehaviour or alleged misconduct by a member of the AFP as an officer of the Commonwealth (s.67 and sub-paragraph (b)(i) of the definition of "permitted purpose"). If the inquiry reveals that the misbehaviour or improper conduct has taken place, the Commissioner may use the intercept
information for a purpose connected with making a decision whether or not to begin disciplinary proceedings (s.67 and sub-paragraph (a)(ii)). The intercept information also may be used for a purpose connected with the disciplinary proceeding itself, since it constitutes a "relevant proceeding" for the purpose of sub-paragraph (a)(iii): s.6L(e). As Mr Aldridge pointed out, this ties in with s.74 of the Interception Act, which provides that lawfully obtained information may be given in "exempt proceedings", including a police disciplinary proceeding: s.5B(e).

The policy underlying this statutory scheme is that intercept information can be used against an AFP officer, but only in proceedings (whether criminal, quasi-criminal or disciplinary) in which the officer is afforded the procedural protection of a formal hearing in a court or tribunal. The Commissioner is far from powerless in relation to an AFP officer suspected of misbehaviour or improper conduct by reason of intercept information. It is true that, on the construction I consider to be correct, the Commissioner cannot refuse to reappoint the member on the basis of the intercept information, since that is not a "permitted purpose". But the Commissioner may institute a disciplinary proceeding which, if a serious disciplinary offence is shown to have occurred, may result in the dismissal of the AFP member. Furthermore, as this case shows, the Commissioner has power under the Australian Federal Police (Discipline) Regulations, reg. 20(1) to suspend the member if

"(a)it appears to the Commissioner that a member or staff member may have committed a disciplinary offence; and

(b)the Commissioner considers that the disciplinary offence is of such a nature that the member or staff member should not continue to perform his or her duties until proceedings in relation to the disciplinary offence have been determined".

Neither Mr Robberds nor Mr Aldridge suggested that the suspension was not a purpose connected with the disciplinary proceeding. Thus neither disputed that, if necessary and appropriate, the intercept information could be used in making the judgment required by reg.20(1) (as, indeed, was presumably done in the present case).

It is relevant to note that there is nothing in the definition of "permitted purpose" which authorises the Commissioner to use intercept information for a purpose connected with alleged misbehaviour or alleged improper conduct of an applicant for a position with the AFP (assuming the applicant is not already with the AFP). Clearly, paragraph (b)(1) does not apply to such a case, since the applicant (let it be assumed) is not an officer of the Commonwealth. Thus the position concerning an applicant for reappointment, as far as the use of intercept information is concerned, is the same as that relating to an applicant for a fresh appointment.

Approach to Construction

I have not found it necessary to decide whether a restrictive approach should be adopted to the construction of the definition of "permitted purpose". In my view, the conclusion I have expressed follows, even if such an approach is not adopted. However, if it were necessary to do so, I would apply a restrictive approach to the construction of legislation authorising the use of intercept information for specific purposes.

The fundamental objective of the Interception Act is to protect the privacy of communications passing between users of telecommunications systems: Edelsten v Investigating Committee of New South Wales (1986) 7 NSWLR 222 (NSW SCt/Lee J.), at 229; R. v Edelsten (1990) 21 NSWLR 542 (NSW CCA), at 549. This is achieved, in substantial measure, by the prohibition in s.7(1) on the interception of a communication passing over a telecommunications system. As I have noted, the prohibition is subject to the carefully defined exceptions in s.7(2), of which the most important for present purposes is the interception of a communication under a warrant issued pursuant to the Interception Act itself. The criteria to be applied by an eligible judge, in determining whether to issue a warrant, include, in the case of a warrant in relation to "class 2 offence"

"how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant communications made to or from the [telecommunications] service" (s.46(2)(a)).

As has been seen, the Act does not merely restrict the circumstances in which a communication may be intercepted, it also restricts the use that can be made of lawfully obtained intercept information. Section 67 protects individuals against the use of such information, except in the specific circumstances identified in the definition of "permitted purpose", thereby reinforcing the statutory recognition of privacy as a basic community value.

It is well established that the courts should not impute to the legislature an intention to interfere with fundamental rights, freedoms or immunities; such an intention must be clearly manifested by clear and unmistakable language: Coco v The Queen (1994) 179 CLR 427, at 436-437. In that case the High Court held that the Invasion of Privacy Act 1971 (Qld), s.43(2)(c), which authorised the use of listening devices in certain circumstances, did not confer power on a judge to authorise entry on to premises for the purpose of installing and maintaining a listening device, where to do so would otherwise constitute a trespass.

The close link between the fundamental right to be secure against trespass and the right to privacy is illustrated by the observations of Lord Scarman in Morris v Beardmore [1981] AC 446. There the House of Lords refused to read general language in the Road Traffic Act 1972 as sufficient to authorise the police to enter the home of a person involved in an accident and require that person to submit to a breath test. Lord Scarman (at 465) saw the appeal as

"concerned exclusively with the suspect's right to the privacy of his home.... The appeal turns on the respect which Parliament must be understood, even in its desire to stamp out drunken driving, to pay to the fundamental right of privacy in one's own home, which
has for centuries been recognised by the common law."

See also Plenty v Dillon (1991) 171 CLR 635, at 647, where Gaudron and McHugh JJ. referred to "the policy of the law [being] to protect the possession of property and the privacy and security of its occupier". In that case the High Court held that neither the common law nor the general words of a South Australian statute authorised a police officer, without the consent of the person in possession of land, to enter the land in order to serve a summons.

The circumstances of the present case differ from those in Coco v The Queen, Morris v Beardmore and Plenty v Dillon. So far as the evidence reveals, the intercept information was not obtained in consequence of what otherwise would have been a trespass. In any event, the intercept information was lawfully obtained. Moreover, in Malone v Metropolitan Police Commissioner [1979] Ch. 344 (Ch.D/Megarry V-C) at 372-375, Megarry V-C held that the common law does not recognise either a general right to privacy, nor a more limited right to privacy for telephone communications.

Yet in that case, Megarry V-C, while holding that there was no common law remedy for telephone tapping, said (at 381) that he

"would have thought that in any civilised system of law the claims of liberty and justice would require that telephone users should have effective and independent safeguards against possible abuses. The fact that a telephone user is suspected of crime increases rather than diminishes this requirement: suspicions, however reasonably held, may sometimes prove to be wholly unfounded."

The Interception Act (and similar State legislation relating to listening devices) establishes safeguards of the kind referred to by Megarry V-C, by prohibiting the interception of communications, except in defined circumstances, and by prohibiting the use of the intercept information, except for defined permitted purposes. Parliament itself has therefore recognised, in the context of telecommunications, the fundamental importance of protecting individual privacy, although also recognising that the value of privacy can be overridden where it conflicts with other significant community values, provided that detailed safeguards are observed.

The recognition and protection of privacy in the Intercept Act, in my view, justifies a restrictive approach to the construction of the statutory exceptions to the prohibitions on the interception of telecommunications and on the use of lawfully obtained intercept information. There is room for argument as to whether the principle of construction articulated in Coco v The Queen should be applied, with all its rigour, to the definition of "permitted purpose" in the Interception Act. But where there is genuine doubt as to whether the statutory language authorises the use of intercept information for a particular purpose, that doubt should be resolved in favour of a narrow, rather than a broad construction of the statutory authorisation. It is perhaps unnecessary to add that, should a policy judgment be made that the ability to use intercept information for appointments or reappointments to the AFP outweigh the value of privacy, it is open to Parliament to amend the legislation to
give effect to that judgment.

Other Matters

Two further points should be mentioned. First, both Mr Robberds and Mr Aldridge accepted that no assistance could be derived from the successive Second Reading Speeches relating to the Interception Act and its various amendments. Accordingly, I have made no reference to that material.

Secondly, Mr Aldridge advanced an argument that, even if paragraph (b)(i) of the definition is capable of applying to a decision not to reappoint a member of the AFP, the Commissioner or his delegates, in the present case, did not undertake an investigation of, or an inquiry into, alleged misbehaviour or alleged improper conduct of the applicant. This submission was based on the absence of definitive findings in the recommendations made to the Commissioner and on the fact that the options outlined to the Commissioner did not require him to determine whether the applicant had misbehaved or acted improperly. Having regard to the conclusions I have reached I do not need to resolve this argument.

Conclusion

For the reasons I have given, the Commissioner was not entitled, under the Interception Act, to use the intercept information in the present case for the purpose of deciding not to reappoint the applicant as a non-commissioned officer with the AFP. It was agreed that the Commissioner had used the intercept information for this purpose. In these circumstances, the appropriate order is that the Commissioner's decision should be set aside and he should be ordered to consider further the applicant's request for reappointment in accordance with law. The Commissioner should pay the applicant's costs.

I certify that this and the preceding 28 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.

Associate:

Dated: 24 August, 1995

Heard: 14 August, 1995

Place: Sydney

Decision: 24 August, 1995

Appearances: Mr M.R. Aldridge, instructed by Baird & Associates, Solicitors, appeared for the applicant.

Mr L. Robberds QC, with Mr T. Howe, instructed by Australian Government Solicitors, appeared for the respondent.

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