FEDERAL COURT OF AUSTRALIA

Day v Commissioner, Australian Federal Police [2000] FCA 1272

POST & TELECOMMUNICATIONS - telephonic interceptions conducted by first respondent in course of criminal investigation into conduct of officer of Australian Customs Service – transcripts of recorded conversations forwarded to Australian Customs Service for use in possible disciplinary action against appellant – whether primary judge erred by failing to deal with an argument advanced by the appellant below – whether the information was communicated for a ‘permitted purpose’ pursuant to the Telecommunications (Interception) Act 1979 (Cth) - whether, at the time of communication, there was an investigation or inquiry into appellant’s alleged misconduct, under a law of the Commonwealth – whether an ‘investigation or inquiry’ in the relevant sense can exist unless and until a charge is laid under s 61(2) Public Service Act 1922 (Cth) - whether the information was communicated for a purpose ‘connected with’ a relevant investigation or inquiry

WORDS AND PHRASES – investigation, inquiry

Telecommunications (Interception) Act 1979 (Cth) ss 5, 63, 67, 107A(4)

Public Service Act 1922 (Cth) ss 61(2), 62, 62(2)(b), Part 3 Division

Coulton v Holcombe (1986) 162 CLR 1 cited

Taciak v Commissioner of Australian Federal Police (1995) 59 FCR 285 distinguished

Health Insurance Commission v Freeman (1998) 158 ALR 267 cited

Clough v Leahy (1904) 2 CLR 139 cited

SHANE ANTHONY DAY v COMMISSIONER, AUSTRALIAN FEDERAL POLICE & ORS

N 378 OF 2000

BLACK CJ, TAMBERLIN & HELY JJ

11 SEPTEMBER 2000

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

1                     The appellant is an officer of the Australian Customs Service (“Customs”).  At some stage in the period 1997-1999, members of the Australian Federal Police (“AFP”) and officers of the Internal Affairs Unit of Customs, were engaged in a joint criminal investigation.  In the course of that investigation, AFP officers carried out telephonic interceptions of the telephones used by the appellant at both his place of work, and at his home, pursuant to one or more warrants issued under the Telecommunications (Interception) Act 1979 (Cth) (“the TI Act”).  Ten telephone conversations occurring between 9 December 1997 and 12 June 1998 were intercepted.

2                     The appellant does not challenge the lawfulness of the warrant(s) or the telephonic interception carried out pursuant thereto.  He accepts, therefore, for the purpose of the present case, that the product of such telephonic interception is “lawfully obtained information” within the meaning of s 6E of the TI act (“the TI product”).

3                     Customs requested AFP to release transcripts of the TI product for use in connection with possible disciplinary action against the appellant.  AFP agreed to that request, in reliance upon s 67 of the TI Act.

4                     Disciplinary action against officers of the Public Service was, at the relevant time, regulated by Division 6 of Part 3 of the Public Service Act 1922 (Cth) (“the 1922 Act”).  That Act has since been repealed, and replaced by the Public Service Act 1999 (Cth), but it is common ground that the repeal is of no relevance to the present proceedings (see Regulation 2.21 of the Public Employment (Consequential and Transitional) Regulations 1999 (Cth)). 

5                     Section 61(2) of the 1922 Act provides that if an authorised officer is of the opinion that an officer of the Public Service may have failed to fulfil his duty as an officer, the authorised officer shall decide whether he should be charged.  The third respondent (“Ms Williams”) was, at the relevant time, an authorised officer for the purposes of s 61(2) of the 1922 Act.  She was given the TI product for the purpose of deciding whether the appellant may have failed to fulfil his duty as an officer, and whether he should be charged under s 61(2).  On 22 March 1999 Ms Williams charged the appellant with seven charges under s 61(2) of the 1922 Act.

6                     Under s 62 of the 1922 Act, where an officer is charged with misconduct under s 61, “an inquiry” shall be held into the charge.  The inquiry officer cannot be the charging officer: 1922 Act, s 62(2)(b).  The fourth respondent (“Mr Thompson”) was appointed as the inquiry officer.  The TI product was supplied to Mr Thompson, in his capacity as inquiry officer, following the laying of disciplinary charges against the appellant at the instigation of Ms Williams.

7                     Section 63 of the TI Act prohibits use or communication of lawfully obtained information except as otherwise provided by the TI Act.  Section 67 of the TI Act permits an officer of an agency (in this case, the AFP) for a “permitted purpose ... in relation to the agency” to communicate lawfully obtained information to another person.  “Permitted purpose”, in relation to an agency, is defined in s 5 of the TI Act.  Relevantly, and in relation to the AFP, it includes a purpose connected with:

“(a)(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;

(b)(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.”

8                     At first instance the appellant sought to have the charges against him set aside, the inquiry under s 62 stayed and a declaration made that the communication of the TI product by AFP to Customs was unlawful.  He also sought damages under s 107A(4) of the TI Act.  The primary judge dismissed the application.  A reading of his Honour’s judgment suggests that the only ground advanced in support of the application was a contention that s 67 of the TI Act relates only to intra-agency communications, and does not permit the disclosure by AFP of TI product to another Commonwealth body or one of its officers, including Customs.  The primary judge rejected that contention.  The correctness of the primary judge’s conclusion in this respect has not been put in issue in this appeal.  Rather, the appellant contends that the primary judge did not deal with an argument which the appellant had advanced below, namely that at the time the TI product was communicated to Customs and to Ms Williams, there was no investigation of, or inquiry into, alleged misbehaviour, or alleged improper conduct on the part of the appellant under a law of the Commonwealth as, under the 1922 Act, there could be no such investigation or inquiry unless and until the charge was laid under s 61(2) of the 1922 Act.  It is only, it was said, subsequent to the laying of charges that such investigation or inquiry occurs.

9                     As we have indicated, the primary judge did not deal with this argument in his reasons for decision.  The respondent does not concede that the argument was put to the primary judge.  The transcript of the proceedings at first instance is not before us.  There is no controversy as to the facts, the argument raises a pure question of construction and was within the ambit of the application for judicial review.  In those circumstances, we think that it is expedient to deal with the argument without embarking upon an enquiry as to whether it was or was not put, or whether it was clearly articulated at first instance: cf Coulton v Holcombe (1986) 162 CLR 1 at 8.

10                  As Sackville J pointed out in Taciak v Commissioner of Australian Federal Police (1995) 59 FCR 285 at 294, the words “investigation” and “inquiry” are not defined in the TI Act.  In its ordinary meaning “investigation” is the act or process of searching or enquiring in order to ascertain facts: Health Insurance Commission v Freeman (1998) 158 ALR 267, 272-273.

11                  Ms Williams’ role as an officer authorised for the purposes of s 61(2) of the Act was to decide whether a person in the position of the appellant should be charged with failure to fulfil his duty as an officer.  It may or may not be necessary for an authorised officer in the position of Ms Williams to undertake an investigation, in the ordinary meaning of that term, before deciding whether or not to lay the charges in question.  Any such investigation would be conducted as an internal public service matter without any coercive powers.  Contrast, eg Division 1 of Part 3 of Australian Securities and Investments Commission Act 1989 (Cth).  Investigation or inquiry commonly precedes the laying of a charge.  The power of inquiry, of asking questions, does not require statutory foundation, but, statute apart, the person making the inquiry cannot compel an answer: cf Clough v Leahy (1904) 2 CLR 139 at 156-157.

12                  Paragraph (b)(ii) of the definition of “permitted purpose” refers to two types of investigation or inquiry into alleged misbehaviour or alleged improper conduct of an officer of the Commonwealth, as being within the scope of the paragraph, namely:

(i)                  an investigation or inquiry under a law of the Commonwealth; or

(ii)                an investigation or inquiry by a person in the person’s capacity as an officer of the Commonwealth.

13                  The fallacy in the appellant’s argument lies in the proposition that investigation of, or inquiry into, alleged improper conduct can only commence after charges have been laid under s 62.  Investigation of and enquiry into the alleged improper conduct might begin at a much earlier point in time as part of the process of deciding whether a charge should be laid.

14                  The evidence filed by the appellant establishes that the charges against the appellant were laid as a result of a consideration by Ms Williams of the TI product.  Customs sought the TI product from AFP for use in connection with “possible disciplinary action” against the appellant, which necessarily encompasses the making by Ms Williams of a decision whether to lay charges against the appellant, that being the first step in the disciplinary process.

15                  The appellant did not establish that the TI product was communicated to Ms Williams for a purpose other than one connected with an investigation or inquiry being undertaken by her in her capacity as an officer of the Commonwealth, as part of the process of determining whether charges under the 1922 Act should be laid against the appellant.  The onus of establishing that the power was improperly exercised was, of course, on the appellant.  On that basis the appellant’s claim must fail.

16                  On the construction advanced by the appellant, an inquiry officer, such as Mr Thompson, could have access to the TI product after a charge is laid, but the person considering whether to lay the charge, such as Ms Williams, could not.  It is unlikely that the legislature intended to produce so capricious a result.  The conclusion which we have reached avoids that consequence.

17                  The respondent put an alternative case that the disclosure of the TI product to Ms Williams was “connected with” an investigation or inquiry by Mr Thompson under s 62 of the 1922 Act, inasmuch as the disclosure led to the charges which in turn led to the inquiry by Mr Thompson.

18                  In view of the conclusion which we have reached, it is not necessary for us to form a view on this alternative argument.

19                  Paragraph (a)(ii) of the definition of “permitted purpose” refers specifically to the making of a decision whether or not to begin a relevant proceeding.  The proceeding under s 62 of the 1922 Act is not a relevant proceeding.  Paragraph (a)(ii) is thus not applicable to the circumstances of the present case, and par (b) of the definition does not contain any corresponding provision.

20                  However, there is no implication flowing from par (a)(ii) of the definition which indicates or requires any different conclusion from the conclusion which we have reached.  Nor does anything said by Sackville J in Taciak indicate or require a different conclusion.  Taciak was concerned with a very different question.

21                  We should mention one other matter.  In the course of his submissions, counsel for the appellant sought to rely on an alleged unlawful communication of either designated warrant information (TI Act, s 6EA) or other information which is said to have occurred in the course of Customs obtaining legal advice about the use of the TI product prior to the communication of the TI product to Ms Williams.  Counsel accepts that there is no reference to this point in his written submissions, and, in our view, it is not raised by the Application for an Order of Review, or by the Notice of Appeal.  Counsel made some reference to the point in his address before the primary judge.  His Honour does not deal with the point in his reasons.  However, counsel for the respondent informed the Court that if the point had been raised by the Application, a different course would have been followed in terms of the evidence adduced at the trial.  In those circumstances, we must refuse leave for the issue to be raised for the first time on appeal.

22                  The appeal is dismissed with costs.

Associate:

Dated:              11 September 2000