FEDERAL COURT OF AUSTRALIA

O’Malley v Keelty, Australian Federal Police Commissioner [2004] FCA 1688

Australian Federal Police Act 1979, s 37

Judiciary Act 1903 (Cth), s 39B

Telecommunications (Interception) Act 1979

Hinchcliffe v Commissioner of Police [2001] FCA 1747

R v Metropolis Police Commissioner; Ex parte Blackburn (1968) 2 QB 118

PATRICK GERARD O’MALLEY v MICHAEL KEELTY, AUSTRALIAN FEDERAL POLICE COMMISSIONER

ACD 31 OF 2004

EMMETT J

18 OCTOBER 2004

CANBERRA

THE COURT ORDERS THAT:

1.      The application be dismissed. 

2.      The applicant pay the respondent's costs of the proceeding. 

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

REASONS FOR JUDGMENT

1                     The applicant, Mr Patrick Gerard O’Malley, seeks relief under s 39B of the Judiciary Act 1903 (Cth) against the respondent, the Australian Federal Police Commissioner.  Mr O'Malley claims that the Commissioner is in breach of his duty to investigate all aspects of an offence which Mr O’Malley believes may have been committed in relation to his home.  Mr O'Malley is concerned that there may have been an offence committed against s 7 of the Telecommunications (Interception) Act 1979 (Cth), which provides that a person must not intercept or do any act or thing that will enable him or her or another person to intercept the communication passing over a telecommunications system.

2                     Mr O'Malley’s concern is that somebody, in contravention of that provision, may have connected an interception wire to his private telephone lines.  There is no doubt that the principle behind s 7 is a very important one.  Any member of the community is entitled to his or her privacy and is entitled to ensure that people do not unlawfully listen in to their communications by telephone.  However, that is not the question before me.  The question is whether or not the Commissioner of Police is in breach of his duty in failing to investigate further concerns of Mr O’Malley that there may have been an offence committed.

3                     The Commissioner has the general administration and the control of the operations of the Australian Federal Police, pursuant to s 37 of the Australian Federal Police Act 1979 (Cth).  Under s 6 of that Act the Australian Federal Police consists of the Commissioner, any Deputy Commissioner, employees of the Australian Federal Police, and special members appointed pursuant to s 40E.  Relevantly, the functions of the Australian Federal Police are, pursuant to s 8(1)(a) and s 8(1)(b)(i), the provision of police services in relation to the Australian Capital Territory and the provision of police services in relation to laws of the Commonwealth, of which the Telecommunications (Interception) Act is one.  ‘Police services’ is a term defined in s 4 of the Australian Federal Police Act, as including services by way of the prevention of crime and the protection of persons from injury or death, and property from damage, whether arising from criminal acts or otherwise. 

4                     Section 9 of the Australian Federal Police Act confers upon members of the Australian Federal Police the powers and duties that are conferred or imposed by or under law of the Commonwealth on a constable, and, when performing functions in the Australian Capital Territory, the powers and duties conferred or imposed on a constable or an officer of police by or under any law, including the common law of the Territory, and in relation to laws of the Commonwealth, the powers and duties that are conferred or imposed on an officer of police. 

5                     The language of the Act is not particularly helpful.  There is, however, no real dispute between the parties as to the nature of the duties of members of the Australian Federal Police.  The functions of the Australian Federal Police include the prevention of crimes and associated activities such as the investigation of complaints about the commission of crimes with a view to the identification of offenders.

6                     Generally speaking, the Commissioner must act so as to facilitate the performance by the Australian Federal Police of its statutory functions.  However, whilst a Commissioner of Police has a duty to enforce the law, he or she also has a broad discretion as to the manner in which he or she chooses to fulfil the responsibilities of office.  Where a member of the Australian Federal Police receives a complaint from a member of the public, the member of the Australian Federal Police would certainly discharge his or her duty to enforce the law if he or she gives due and proper consideration to the question of whether, and in what way, an initial inquiry into the complaint should be made, and then acts appropriately upon the view formed:  see Hinchcliffe v Commissioner of Police of the Australian Federal Police [2001] FCA 1747 at [31]–[36].) 

7                     The duty of the Commissioner is to enforce the law.  He or she must take steps to post police officers so that crimes may be detected and that honest citizens may go about their affairs in peace.  But the Commissioner is not the servant of anyone save the law itself.  Although the Commissioner is answerable to the law, there are nevertheless many fields in which the Commissioner will have a discretion with which the law will not interfere.  It is for the Commissioner to decide in any particular case whether inquiries should be pursued.  It must be for the Commissioner to decide on the disposition of the force and concentration of the resources available on any particular crime or area.  No court can or should give the Commissioner direction on such a matter: see R v Metropolis Police Commissioner; Ex parte Blackburn [1968] 2 QB 118 at 136.

8                     Nevertheless, the Commissioner of Police is not beyond the law.  If the police fail in the duties, however ephemeral it may be to describe them, a citizen is entitled to assistance in ensuring that the police do their duty.  For example, if there was evidence of a dishonest refusal to investigate on the part of an investigating officer, or if the evidence suggests that an honest police officer acting reasonably could not properly come to the view that the matter was not capable of investigation there may be, and I emphasise may be, a basis upon which the Court could interfere. 

9                     Mr O'Malley says that such circumstances have been demonstrated in this case.  In order to consider his claim it is necessary to examine the material that he has put before the Court.  The material consists entirely of correspondence, some of which I rejected as having no relevance.  So far as communication between Mr O'Malley and the Commissioner is concerned, the story begins on 11 September 2003 when Mr O'Malley wrote to the Commissioner attaching a copy of a letter of 8 September 2003 to the Federal Minister for Regional Services, Territories and Local Government, which included copies of letters from Mr O'Malley to the Inspector-General of Intelligence and Security, and a response to that letter.  In his letter of 11 September Mr O'Malley said that the correspondence:

‘deals with an inactive intercept wire found on my telephone line.’

10                  The letter goes on relevantly to say as follows:

‘Also attached is a copy of letter of 8 September 2003 from Mr Blick where he advises me to refer this matter to the police.

…

Also note that within three months, March–June ‘93 (best guess) of moving into our new home the telephone line went dead.  Two Telstra technicians attended to the problem.  When one of the technicians was coming off the ladder from the pole, he placed his finger in an upright position over his lips in a gesture that amounted to keep quiet or don't ask questions.

…

Other information, which may or may not be relevant, and which you would not have at your fingertips is that some house on this street is already under surveillance by either the AFP or another Agency. 

I await your advice in due course.’

11                  The enclosures involving the Minister for Regional Services, Territories and Local Government consisted of a photograph of a computer screen.  In his letter of 8 September 2003 to that Minister, Mr O’Malley said:

‘I am also attaching for your deliberation a photograph which demonstrates my computer at the old Department of Industry Science & Technology was systematically hacked in 1994.  Various versions of this photograph exist.’

12                  The photograph is said to demonstrate that within minutes the computer was logged on to different servers.  That is certainly not self-evident and I am unable to see how the photograph demonstrates that Mr O'Malley’s computer was systematically hacked in 1994.

13                  In his letter to Mr Blick, the Inspector-General of Intelligence and Security, of 8 September 2003, Mr O’Malley said as follows:

‘On Thursday 4 September, Mr Kurt Hippe of Advanced Investigations, Blacktown, Sydney conducted a debugging exercise at the above address.  Within the telegraph pole, Mr Hippe found an intercept wire which should not have been there and which was severed inside the last six months. 

He is of the view that this wire explains why the Telstra technician who had come to put a second line into my home in October/November 1998 had to call out the area manager to get clearance to do the job.  The technician at the time said the job was too big and required clearance.  Note the wiring for the second line would be approximately the same length if not less than the wiring for the first line.  Wiring for the first line would have been installed during the construction phase of my home before the gyprocking and this would have been in December 1992. 

After phoning Mr Hippe’s office twice this morning to discuss his report I was unable to speak to him. … I decided to advise you immediately rather than wait for his report. 

Could you please advise did your office sanction an intercept to be put on my line as far back as December 1992 during the initial pre-wiring phase, and if so, please advise of the reasons.  If not, please advise what investigations you intend conducting to determine why this intercept was placed on my line.’

14                  It is significant that in that letter, Mr O'Malley was inquiring of the Inspector-General as to whether his office had sanctioned an intercept and whether that office intended to conduct any investigations.  The response came on the same day, a matter to which Mr O’Malley attaches significance in comparing the response from the Commissioner to the letter of 11 September.  The letter from Mr Blick relevantly said:

‘This office has no authority to sanction the interception of people's telephones. 

The intelligence agency that may, under certain circumstances, obtain a warrant from the Commonwealth Attorney-General to intercept domestic telecommunications is the Australian Security Intelligence Organisation (ASIO).

…

Perhaps more relevant to your concerns, however, is that the technology that allows ASIO to intercept telephone services does not involve the use of intercept wire in telegraph poles or, indeed, any direct access to the premises of the subscriber or their immediate location. 

There must, therefore, be some other explanation for the presence of the wire that Mr Hippe has discovered.  If, when you receive his report, you still believe that someone has illegally tapped your telephone, I would recommend that you provide the police with the report and any other evidence you may have.’

15                  Having received no response to his letter of 11 September to the Commissioner, Mr O’Malley wrote again on 18 September, relevantly saying:

‘I refer to my letter of 11 September which was delivered in person to an officer from your Office at approximately 3.35 pm on 11 September which dealt with an intercept wire found on my telephone line among other things. 

The delay from your Office in responding to this letter is at the least very strange, is most perplexing and indeed somewhat incomprehensible given the gravity of the criminal offence that the letter referred to.  This delay is in stark contrast to the immediate response from Mr Blick, the Inspector-General of Intelligence and Security, given that my letter to him of 8 September was handed to his secretary at 4.00pm of the 8 September.  A copy of his letter was attached to my letter to you of 11 September.’

16                  The response ultimately received by Mr O’Malley to his correspondence was a letter dated 9 October 2003 from a federal agent described as ‘Co-ordinator OMC’.  After apologising for the delay in responding to the earlier letter, the letter of 9 October 2003 said:

‘I have noted in your letter to other departments and Ministers that you have mentioned an “intercept wire” connected to your home.  With reference to the letter you received from Mr Blick of the Inspector-General of Intelligence and Security Office dated 8 September 2003, I can confirm that the AFP (like ASIO), do not use “Intercept Wires” as part of our investigational methodologies.  Because of this I am unable to help you further with this matter. 

If you have any further concerns regarding this issue, I am of the understanding that Telstra would be able to assist you in ascertaining exactly what telephone lines and associated technologies are connected with your residence.’

17                  It may be a fair observation that the letter of 9 October 2003 does not fairly respond to the letter of 18 September 2003.  In that latter letter reference was made to the gravity of the criminal offence that the earlier letter referred to.  That may indicate to a reader that Mr O’Malley was in fact complaining about an offence.  The letter of 9 October 2003 appears to be a response on the basis that Mr O’Malley was inquiring as to whether the Australian Federal Police were responsible for the intercept wires.  However, Mr O’Malley did not respond to the letter of 9 October 2003 to point out that there had been a failure to respond to his complaint about the possible commission of an offence.  Nor did Mr O’Malley take up the suggestion of inquiring of Telstra as to how the intercept wires might have been left on the telegraph pole.

18                  What Mr O'Malley did was to commence a proceeding in this Court.  By an application filed on 3 October 2003, Mr O'Malley claimed an order ‘[t]hat the Court direct the AFP Commissioner to immediately commence investigation into a 10 year continuous breach of the Telecommunications (Interception) Act’.  Attached to and filed with the application was a document entitled ‘Statement of Claim’ which did not comply with the Federal Court Rules.  Mr O’Malley, however, attaches significance to the fact that the correspondence to which I have referred, and correspondence with Advanced Investigations was annexed to that document.  That correspondence is of some importance and I shall say something about it.

19                  On 19 September 2003, Mr O’Malley wrote to Advanced Investigations, relevantly saying:`

‘I refer to your phone call on Wednesday afternoon of 10 September 2003 in which you advised that you had completed your Report with much detail on the intercept wire found on my telephone line for the debugging investigation you conducted at my home on 4 September 2003.  In our very brief conversation you inferred you were about to forward it on to me as I requested that you also attach tax invoice to same Report.

…

You have failed to deliver on the Report as advised per your telephone conversation of last week.

…

Given the aforementioned, I am compelled to inform you that unless I receive a full Report from you by cob 26 September 2003 with respect to the intercept wire, the humming noise from the Telstra box and confirmation that my home is clear of bugs, or else, full reimbursement of my costs …, I will immediately initiate legal proceedings to recover my costs in this matter.’

20                  On 22 September 2003, Mr O’Malley received a report from Advanced Investigations.  The report is, in fact, dated 9 September 2003 and was sent in an envelope post marked 6 pm, 19 September 2003.  The report of 9 September 2003 relevantly said, as follows:

‘As discussed arrangements were made to conduct an electronic sweep and debug of the private premises ...

…

A search of the telephone line where it enters the property at the rear fence found no visible interference with the existing phone line except the different coloured connectors for the additional fax/modem phone line. 

On viewing the connector where the phone line enters the office area an usually large junction box the said application was in place and it was filled with a water proof sealer.  There were no visible signs that the junction box of the phone line wiring has been interfered with. 

An inspection was carried out of the telephone wiring where it comes into the property at the roof level found there were no signs of any recent activity in this area with the original saring being in place.

A close inspection of the power pole where the telephone wiring was also connected found no recent activity as within the last 6 months or more with spider webs and spiders being well established.  At this time I located a length of four core multi coloured telephone cables covered with the normal black sheath.  The wire was some two to three metres in length one end was located within 10mm of the phone cable connection that runs to your premises.

Further inspection reveals the other end of the cable was running to the inside of the cement pole and came out the other side…

…

It appeared that the cable was problely [sic] cut by someone reaching around the pole and as a portion of slack cable was inside the pole it was difficult to pull out and remove from the access point at the rear and not so difficult from your side of the property. 

One could come to a number of conclusions as to why this cable was where it was but there appears to be a high likelihood that the cable was at some staged [sic] involved with a connection to your phone line given the fact that where it was positioned was immediately next to your telephone line connectors and did not involve any other telephone connections. 

The only explanation that I could see is that a new cable had been run to your connection, if this was the case why would the old cable be left in place when it is usually pulled out to make room for the new cable and or used to pull the new cable though [sic] for the new connection.

Anyway there are more questions than answers, in my opinion.  There was an indication of interference with the telephone but to prove it was sinister, there would need to be more evidence than that was found on the day.’

Mr O’Malley replied on 24 September 2003, relevantly saying:

‘I refer to your report regarding the above matter dated 9 September 2003.

…

…I refer you to my letter … of 19 September 2003 and given your report and my letter were in transit, I extend my deadline to cob Friday 3 October 2003 for a full comprehensive final report on the issues addressed in that letter.

I will also expect an explanation in this final report why you have revised your initial explanation to my son and I, when you advised us based on the corrosive weathering of the copper tipped wiring that was found within the pole that the wiring was cut no more than five/six months ago.  In your report you suggest that it was longer than six months when this cutting took place based on a spider web theory.  Please note that the wattle tree surrounding this pole had been cut to facilitate easier access for you, though this was not necessary. 

Given your fee and expenses were all paid for in advance, nothing less than a full comprehensive report or full reimbursement of costs is required …’

21                  There is no evidence that Mr O’Malley enforced his requirement that a full report be obtained.  The significance of the correspondence between Mr O’Malley and Advanced Investigations is, Mr O’Malley says, that it was attached to the application and statement of claim filed in this Court, which was served on the Commissioner on 3 October 2003.  However, nothing appears to have come of the proceeding.  It appears that the Australian Government Solicitor, at a directions hearing, indicated that it proposed to move to strike out the proceeding.  At further directions hearings, Mr O’Malley said that he was awaiting legal advice before he could pursue the matter.  Finally, on 12 March 2004, the matter came before Stone J.  A transcript of the proceeding records that her Honour said:

‘Mr O'Malley, last time you were before the court and, I think, the time before that, I raised the matter with you as the statement of claim.  I note that you have sent a letter to the registrar of the court indicating you've had some difficulty in getting legal advice and that you hoped by today to have some more information on that matter.’

And later, her Honour said:

‘Mr O'Malley … The statement of claim that you've put in is not a statement of claim which in my view is capable of revision so as to make it an appropriate statement of claim.  … the difficulty is, … it's impossible to work out really what the claim is, or get any idea of the merits. …  I’m inclined to strike this matter out. … that involves no determination of the merits and it doesn't stop you were you to get legal advice and were able to formulate a cogent claim of commencing again.’

22                  Her Honour then ordered that the proceeding be dismissed generally, pursuant to O 20 r 2.  It is significant that her Honour was unable to glean precisely what claim was being made by Mr O’Malley in the proceeding that he commenced in October 2003.  It is fair to conclude, therefore, that the Commissioner and those advising him would also have been unable to glean precisely what the complaint was that was being made by Mr O’Malley. 

23                  In any event, nothing further was done by Mr O’Malley so far as the evidence goes, until 5 April 2004 when it appears that he distributed in and around his home a flyer, which relevantly said:

‘$50,000 REWARD

For information leading to the apprehension and conviction of the criminals that installed an ‘Intercept Wire’ on the family telephone line in 1992 and to the apprehension and conviction of the criminals engaged in recording family telephone conversations since 1993 until March 2003, as well as, the apprehension and conviction of those criminals involved in intercepting emails from the family’s second telephone line (Internet Dedicated) from November 1998 until March 2003. 

Expert advice confirms these criminals operated within a 500 metre radius of this property. 

All written information will be treated in the strictest of confidence. 

This notice is now posted on the family property.’ 

24                  I have not been furnished with any material concerning the assertion that criminals operated within a 500 metre radius of Mr O’Malley’s property.  In any event, that flyer prompted a letter from the Australian Federal Police of 4 May 2004.  The letter was signed by a detective sergeant of Fraud Intelligence, ACT Policing, and relevantly said as follows:

‘Re:  flyer relating to phones being tapped

Police have received information relating to flyers being dropped in your name with the heading “$50,000 reward”.  Some of these flyers were dropped in letterboxes outside the 500 metre radius mentioned in your letter. 

As the information you have provided in your letter raises potentially criminal actions, I would like to speak to you further about this matter.’ 

25                  The letter then invited Mr O’Malley to ring on a telephone number in Canberra.  The reference to ‘your letter’ appears to be a reference to the flyer of 5 April 2004.  Mr O’Malley did not take up the invitation contained in the letter of 4 May 2004 to contact the author of the letter.

26                  Rather, on 11 May 2004 he forwarded to, among others, the Minister for Justice and Customs, a copy of the flyer.  In the letter, reference was made to the Hansard report of proceedings of the House of Representatives in December 1990.  The letter to the Minister for Justice and Customs prompted a response of 19 July 2004 from the Minister, relevantly saying as follows:

‘Thank you for your letter of 11 May 2004 in relation to your concerns that your home telephone lines were intercepted between 1992 and 2003. 

I am advised you brought this matter to the attention of the Australian Federal Police (AFP) and that on 9 October 2003 you were notified in writing that this matter would not be investigated.  The technology depicted in the photographs that you sent to the AFP is not consistent with technology used by the AFP. 

You have said in your letter that this matter was the subject of a Federal Court action.  I am advised that the Federal Court dismissed this matter on 12 March 2004. 

I am further advised that the AFP wrote to you on 4 May 2004 inviting you to contact ACT Policing to discuss your concerns.  I encourage you to contact ACT Policing to discuss the issues you have raised.’

27                  Mr O’Malley’s only response was to commence this proceeding on 24 August 2004.  By the proceeding Mr O’Malley claims the following orders:

‘1.        An order that a writ of mandamus be issued compelling the Australian Federal Police Commissioner to perform his duty according to the functional provisions of the Australian Federal Police Act 1979 by immediately investigating all aspects (both directly and indirectly) related to the unauthorised Intercept found on the family’s telephone line which constitutes a fifteen 15 year breach of the Telecommunications (Interception) Act. 

 2.        An order that a [writ] of mandamus be issued compelling the Australian Federal Police Commissioner to provide detailed fortnightly progress reports to the applicant once the [writ] at paragraph (1) has been enforced.’

28                  There is no real dispute as to the nature of the duty of the Federal Police as described in the authorities to which I have referred.  Mr O’Malley, however, also sought to gain some additional assistance from the definitional provisions of the Telecommunications (Interception) Act.  He referred the Court specifically to s 6A(1) and s 6A(2).  However, he was unable to refer to any substantive provision of that legislation that imposed any duty on the Australian Federal Police.  It is clear that the definitions are for use in connection with the substantive provisions of the Act, whereby there are exceptions to s 7 prohibiting intercept of communications passing over telecommunication systems.

29                  There are certain circumstances where in the course of an investigation by an agency of an offence, intercept can be authorised.  I do not consider that Mr O’Malley derives any assistance at all from the provisions of the Telecommunications (Interception) Act so far as the duties of the Federal Police are concerned, but he places great store on the prohibition contained in that Act, of interception other than in the circumstances permitted.  There is no suggestion that the Australian Federal Police have engaged in any unlawful conduct or that there is any impropriety involved in the failure to take any further steps to investigate the complaints that Mr O’Malley makes.

30                  It is significant, in my view, that Mr O’Malley has failed to take up several invitations that may or may not have resulted in further information as to commission of an offence.  First, he did not take up the suggestion made by the Australian Federal Police to inquire of Telstra as to how the intercept wire may have been placed on the telephone line.  Secondly, he did not carry out, so far as the evidence is concerned, any further inquiry of Advanced Investigations concerning the asserted inconsistency between oral advice and the report of 9 September 2003.  He did not pursue the proceeding that was commenced in October 2003 against the Australian Federal Police, seeking relief similar to that being sought in this proceeding.  He did not take up the invitation from the Fraud Intelligence Section of ACT Policing to discuss the allegations made in his file. 

31                  I am not persuaded on the material before me that there has been any failure on the part of the Australian Federal Police to discharge the duties which they have under the Australian Federal Police Act 1979 (Cth).  I do not consider that the evidence before me suggests that an honest police officer acting reasonably could not properly come to the view that there is insufficient material of substance to warrant further investigation, particularly when coupled with the failures of Mr O’Malley to which I have referred.  Those failures are also matters to be taken into account by the Court in considering whether it should exercise its discretion in any event.

32                  Having regard to the view I have formed that there has been no breach of duty, it is not a question of my refusing relief on the discretionary ground.  However, had there been evidence of even a minor breach, I would have expected Mr O’Malley to have taken greater steps to pursue the matter than he has.  I do not consider that Mr O’Malley is entitled to any relief at this stage, and accordingly I consider that the proceedings should be dismissed.

Associate:

Dated:              11 January 2005