FEDERAL COURT OF AUSTRALIA

Day v Commissioner of Australian Federal Police [2000] FCA 398

POST & TELECOMMUNICATIONS – intercepted telecommunications – whether disclosure by the Australian Federal Police to another Commonwealth agency of lawfully intercepted telecommunications to assist the conduct of disciplinary proceedings is a permitted use of the information within and pursuant to the Telecommunications Interception Act 1979 (Cth)

employment LAW – PUBLIC SERVICE – whether use by one Commonwealth agency of the contents of telecommunications lawfully intercepted by another agency to commence or continue disciplinary proceedings against an employee is a permitted use of the information within and pursuant to the Telecommunications Interception Act 1979 (Cth)

Judiciary Act 1903 (Cth) s 39B

Public Service Act 1922 (Cth)

Telecommunications Interception Act 1979 (Cth) ss 5, 5B, 6G(1), 63(1), 67, 68, 74(1), 105, 107A

John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81, referred to

Taciak v Commissioner of Australian Federal Police (1995) 131 ALR 319, distinguished

SHANE ANTHONY DAY v COMMISSIONER OF AUSTRALIAN FEDERAL POLICE, THE COMMONWEALTH OF AUSTRALIA, KAREN SUZANNE WILLIAMS & PETER THOMSON

N 830 OF 1999

EINFELD J

31 MARCH 2000

SYDNEY

THE COURT ORDERS THAT:

1.             the applicant’s amended application of 13 October 1999 be dismissed

2.             the applicant pay the respondents’ costs

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

REASONS FOR JUDGMENT

Introduction

1                     The applicant is employed by the second respondent as an officer of the Australian Customs Service (Customs).  On 22 March 1999 seven charges of misconduct under and within the meaning of the Public Service Act 1922 (Cth) (the PS Act) were laid against him by the third respondent as the Customs Officer authorised for the purpose.  He was suspended without pay.  The fourth respondent, also a Customs Officer, has been appointed under the PS Act to inquire into the charges.

2                     Prior to the commencement of the inquiry, it became clear that officers of the Australian Federal Police (AFP) had under warrant been intercepting the applicant’s home and work telephone calls as part of a criminal investigation.  Information obtained from those interceptions were, at the request of Customs, subsequently conveyed by the first respondent’s officers to Customs officers including the third respondent who used the information in deciding whether to lay the PS Act charges against the applicant.

3                     As a consequence, the applicant commenced proceedings on 24 August 1999 which were replaced on 13 October 1999 by an amended application seeking judicial review, and orders under section 39B of the Judiciary Act 1909 (Cth) and section 107E of the Telecommunications Interception Act 1979 (Cth) (TI Act).  This reference to section 107E was presumably intended to be to section 107A.  In any event, the applicant sought to have the charges set aside, the inquiry aborted, and a declaration that the communication of the intercepted information was unlawful.  He also sought damages under section 107A(4) of the TI Act.

4                     The fundamental question raised by these proceedings is whether the first respondent was entitled to release the information lawfully intercepted under the TI Act to the other respondents for their use in disciplinary proceedings against the applicant under the PS Act.  Only if that question is answered in the negative will it be necessary to consider whether the circumstances of this case are such that the applicant is entitled to damages.    

TI Act

5                     The scheme of Part VII of the TI Act is to generally prohibit dealing in authorised intercepted information except in prescribed circumstances: John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81 at 86.  The general prohibition is contained in section 63(1) of the TI Act, which provides:

Subject to this Part, a person shall not, after the commencement of this Part:

(a)      communicate to another person, make use of, or make a record of; or

(b)      give in evidence in a proceeding;

lawfully obtained information or information obtained by intercepting a communication in contravention of subsection 7(1).

6                     The contravention of this provision is made a criminal offence by section 105.  The transfer of intercepted information is permitted only in limited circumstances including within the intercepting organisation, to certain other government agencies and authorities, and for certain telecommunications purposes.  In this connection, section 67 states:

An officer or staff member 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 the following:

(a)     lawfully obtained information other than section 11A information;

(b)     designated warrant information.

“Permitted purpose” is relevantly defined in section 5 as:

……

            (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.

       ……

“Agency” is defined in the same section to include “a Commonwealth agency”, which in turn is defined as the AFP or the National Crime Authority (NCA).

7                     Section 6G(1) defines an officer of the Commonwealth as:

(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.

8                     Section 68 sets out certain circumstances in which communication of intercepted information is permitted by the agency which originally intercepted the information:

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 or designated warrant information:

……

(c)   if the information relates, or appears to relate, to:

……

(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.

……

9                     Section 73 provides relevantly:

A person to whom information has, in accordance with … section 67 … been communicated for a purpose, or for two or more purposes, may, for that purpose, or for one or more of those purposes … communicate to another person, make use of, or make a record of, that information.

10                  A letter of 19 July 1999 from the fourth respondent to the applicant’s solicitor established that the fourth respondent regarded sections 67 and 73 as justifying the release by the AFP of the interception transcripts to Customs and their use by the third respondent and himself.

The argument

11                  The applicant contended that section 67 relates to intra agency, not inter agency, communications, and does not permit the disclosure by an intercepting agency of interception transcripts to another Commonwealth body or one of its officers, including Customs.  The applicant further contended that section 68, whilst providing circumstances in which an intercepting agency may release intercepted information to persons external to the agency, did and does not authorise the release of information intercepted by the AFP, to the second, third and fourth respondents in that the permitted circumstances for disclosure do not include disclosure for the purposes of the investigation and charging of a Customs officer for offences against the PS Act.  Indeed, according to the applicant, sections 63 and 68 specifically prohibit such communication and use.

12                  The applicant placed particular reliance on the judgment of Justice Sackville in Taciak v Commissioner of Australian Federal Police (1995) 131 ALR 319. That case involved an application challenging the right of the AFP Commissioner to use information lawfully obtained under the TI Act for the purpose of deciding not to reappoint the applicant as an officer of the AFP.  In denying the existence of such a right on the part of the Commissioner, Justice Sackville said at page 326:

The words “investigation” and “inquiry”, as employed in para (b)(i) of the definition of “permitted purpose”, are not defined in the Interception Act… 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.

13                  The applicant said that subsections (4) and (7)(b) of section 107A permit this Court to order damages for communication of intercepted information rendered unlawful by section 63.

Conclusions

14                  I reject the applicant’s suggested construction of the TI Act.  In my opinion, section 68 is irrelevant to this case.  It permits the communication to the first respondent of information intercepted by an agency other than the AFP, presumably the NCA.  That is not this case.  On the other hand, section 67 permits communication by an officer of ‘an agency’ to ‘another person’ for a ‘permitted purpose … in relation to the agency’.  In the case of the AFP, such a purpose includes, by paragraph (b)(i) of the s.5 definition, an investigation or inquiry under the PS Act into alleged misconduct of a Commonwealth officer.  It is difficult to see what this definition covers if not an investigation into the activities of a Customs officer such as the applicant is facing.  As such investigations will not, other than as involve the police themselves, normally be undertaken by the first respondent’s officers, the communication will mostly be to officers of other agencies.  The manifest purpose of this provision is to permit the AFP to communicate lawfully intercepted information to assist the purposes referred to.  That this must be so can also be seen from the use in the ‘permitted purpose’ definition (s.5) of the words “by a person in the person’s capacity as an officer of the Commonwealth”, which includes by section 6G(1)(a) a person employed by or under Commonwealth law to conduct an investigation or inquiry of the kind entrusted to the fourth respondent.

15                  The scheme of the Act also support this view.  For example, the provision in section 74(1) that persons may disclose information from lawfully obtained interceptions in an exempt proceeding, defined in section 5B to include for example an appeal from the results of the proposed inquiry of the applicant by the fourth respondent, is particularly instructive.  It is difficult to see how such evidence could be known unless there had been prior disclosure to the inquiry officer.  So do its apparent legislative purposes.  The parliamentary and other pre-legislative public considerations of this legislation show that its intention was to permit the use of lawfully obtained interceptions in a broad category of law enforcement, including inquiries of the kind required of the fourth respondent.

16                  Taciak is not relevant to this case.  It concerned the use of lawfully obtained information within the AFP, being the agency that intercepted the information, rather than the right of the AFP to disclose the intercepted information to another Commonwealth authority and the right of that authority then to use the information it received, as is at issue here.  Even were that not the case, Justice Sackville’s view that the Commissioner of the AFP was not entitled to consider lawfully intercepted material in deciding whether to reappoint an officer does not assist the applicant in any way.  The present case concerns the use of intercepted information at the earlier stage of investigation and inquiry.  His Honour was understandably and, if I may say so respectfully, rightly anxious to narrow the permitted invasion of privacy to the circumstances unambiguously prescribed by the statute which is the investigation or inquiry itself, and not to read into the words “a purpose connected with” the investigation and inquiry, a decision on reappointment which is something quite different.

17                  The amended application is dismissed with costs.

Associate:

Dated:              31 March 2000