Day v Commissioner, Australian Federal Police & Ors S247/2000 [2001] HCATrans 341 (10 August 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S247 of 2000

B e t w e e n -

SHANE ANTHONY DAY

Applicant

and

COMMISSIONER, AUSTRALIAN FEDERAL POLICE

First Respondent

THE COMMONWEALTH OF AUSTRALIA

Second Respondent

KAREN SUZANNE WILLIAMS

Third Respondent

PETER THOMPSON

Fourth Respondent

Application for special leave to appeal

GLEESON CJ

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 AUGUST 2001, AT 2.42 PM

Copyright in the High Court of Australia

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MR S. J. GAGELER, SC: If the Court pleases, I appear for the applicant. (instructed by Leitch Hasson Dent)

MR H.C. BURMESTER, QC: I appear with MR T.M. HOWE for the respondents. (instructed by the Australian Government Solicitor)

GLEESON CJ: Yes, Mr Gageler.

MR GAGELER: If the Court pleases, the special leave question, your Honours, is whether the Australian Federal Police, having obtained telephone interception information under a warrant and therefore necessarily in connection only with the investigation of a serious criminal offence, can then lawfully hand that information over to another Commonwealth body for the purpose of allowing that other body to investigate the possibility of civil misbehaviour on the part of a Commonwealth officer. That investigation, having no connection whatsoever, with the Australian Federal Police.

Your Honours, if the answer to that question is "no", then there has been, in the circumstances of this case, and may well be again, a serious error at the very least of public administration, a very serious breach of personal liberty, and conduct amounting to the commission of a criminal offence under section 105 of the Telecommunications (Interception) Act on the part of both the Australian Federal Police and the Australian Customs Service.

HAYNE J: It will then all turn on what meaning is to be given to paragraph (b)(i) of the relevant part of the definition in section 5?

MR GAGELER: More precisely, your Honour, what meaning is to be given to section 67, which is the permissive provision of the Telecommunications Act when read in conjunction with that provision, and if I can your Honour to look at the

terminology of section 67, your Honours can see it set out at page 32 of the application book. What your Honours will see that it is an exception to the otherwise blanket prohibition in section 63, that allows an officer or staff member of an agency, for a permitted purpose in relation to the agency, and for no other purpose, to communicate lawfully obtained telephone interception information.

Now, your Honour, my point is this. In a context where only an agency can obtain, lawfully, telephone interception information pursuant to a warrant, in a context where the only basis for obtaining that information is the investigation by that agency of a serious criminal offence, where the only Commonwealth agencies able to do that, the only bodies who are Commonwealth agents for the purpose of this Act are the Australian Federal Police and the National Crime Authority, and in a context where section 68, the very next section, which is mentioned at page 32 at line 40, permits communications of intercepted information between agencies, but only in very defined circumstances and only between agency heads. In that context, the words "in relation to the agency" in section 67, must be read as words of limitation, that they must be read as words of limitation which have an operation separately from the defined expression "permitted purpose".

HAYNE J: Why, when the definition begins "permitted purpose, or permitted purposes, in relation to the agency", means a purpose connected with? What is the limitation that is injected then by the use of "in relation to"?

MR GAGELER: Well, your Honour, if the definition is read as a definition for the purposes of section 67, of both the words "permitted purpose" and the words "in relation to the agency", then my point is not good. If, however, the definition is properly read as a definition of the embolded words "permitted purpose" which can have different meanings depending on the agency with which one is concerned, then the words "in relation to the agency" in section 67 have significant work to do. So, what is defined - - -

GLEESON CJ: What is that in relation - do you mean investigation by federal police of police misconduct.

MR GAGELER: Police misconduct, or misconduct on the part of officers of the Commonwealth who have a connection with police, in a shorthand way, connection with the administration of justice.

HAYNE J: Well, how can that be when "permitted purpose" - discards the question of "in relation to" - in the case of AFP is an investigation of, or inquiry into, alleged misbehaviour or alleged improper conduct of an officer of the Commonwealth.

MR GAGELER: Yes. Well, your Honour, the investigation or inquiry into that subject matter must be in relation to the Australian Federal Police. The words "in relation to" simply requiring a connection with the Australian Federal Police pertaining to the status, functions, powers of the Australian Federal Police, and it has a great deal of work to do, your Honour. It allows - - -

HAYNE J: That is, "officer of the Commonwealth" is not be read with the generality one would read it, for example, in section 75(v).

MR GAGELER: Not at all, no. One reads "officer of the Commonwealth" which, your Honour, is a defined expression in section 6G of the Act, but the definition does not particularly matter. What it covers is any statutory office holder or employee. What one is concerned with is an investigation into improper conduct of a person having that status but, coming back to the language of section 67, such an investigation being in relation to the agency, that is, pertaining to, connected with, the Australian Federal Police. That gives a very sensible and substantive operation to the provision in that it allows the Australian Federal Police to investigate the conduct of police officers, of staff members, and of persons connected in any way with the Australian Federal Police.

HAYNE J: Not, in this case, an officer or person in the Customs.

MR GAGELER: No. Your Honour, if the answer to the special leave question is as Justice Einfeld would have it at first instance, and what it means is that lawfully intercepted telecommunications, the lawful interception being necessarily only in connection with the investigation of a serious criminal offence against Commonwealth law relevantly, can ultimately be used by a middle-ranking officer in the Department of Finance to bring disciplinary proceedings against a junior clerk who has misused paper clips.

Now, I take an extreme example, but its not a long way from the nature of the charges which my client faces. He faces charges of having cheated on his time sheets, and he faces charges of having wrongfully used a Commonwealth car for a private purpose. That is what the telephone interception information, in this case, has been used for.

Your Honour, if Parliament intends the information to be used for that purpose, then so be it. One would expect that intention to be manifested with unmistakable clarity, and the words "in relation to" in section 67 are, in my submission, properly read, naturally read, as words of limitation, and they should be - - -

HAYNE J: On that construction, would an officer of AFP who had cheated on time sheets and misused a federal police motor car, be within its reach?

MR GAGELER: Yes, the answer is yes. The policy reason for that emerges if one has regard to the legislative history, and the legislative history is here common ground, that is, that the provisions with which we are concerned were introduced in 1987 as a result of the government's consideration of a joint select committee report in 1986, part of the text of which your Honours will find at page 46. Page 46 is in my learned friend's written submissions, and your Honours will see paragraph 22 refers to advice provided to the joint select committee by the Attorney-General, and referring to earlier provisions of a similar nature in an earlier Bill that was not proceeded with. What is said by the Attorney-General at about line 38, is the intention was that the provisions - we will not worry about the precise sections:

would allow the admission of intercepted information in non-criminal proceedings for misbehaviour or improper conduct against other public officers involved in the administration of justice - - -

Now, that limitation, in my submission, worked its way out in the words "in relation to the agency".

GLEESON CJ: If you take an example that he gave there of the judiciary, how is that in relation to the agency?

MR GAGELER: Your Honour, that did not work its way out in any way in the legislation. Nor would the judiciary, in my submission, fall within the definition of "an officer of the Commonwealth" under section 6G.

Your Honours, that is part of the legislative history. The other part of the legislative history is that at the time of the enactment of this amending legislation in 1987, staff of the Australian Federal Police were appointed under the Public Service Act. So again, these provisions have very sensible work to do in relation to both members of the Australian Federal Police and staff of the Australian Federal Police appointed under the Public Service Act.

Your Honours, all that is without reference to the principle of statutory interpretation which emerges from a decision of this Court in Coco v The Queen, which was applied in this context, that is in the context of what are permitted purposes for the purpose of this Act, by his Honour Justice Sackville in Taciak v Commissioner of Australian Federal Police which your Honours will find behind tab 3 of my learned friend's bundle of authorities. At page 297 his Honour refers, just below letter F, to the approach to construction. That discussion then continues over the next couple of pages. At page 298C, his Honour refers to the principle in Coco where it said:

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:

His Honour then goes on to discuss the application of that principle to this Act, and comes to a conclusion a page 299, where it said just below the letter C:

The recognition and protection of privacy in the Interception 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.

Now, in my submission, your Honours, there is room for argument and my argument is that in this context Coco should be applied with all its rigour, but even without that, there must be here at the very least, genuine doubt which would give rise to the application of the principle to which his Honour referred, a somewhat lesser or a less rigorous principle than Coco. If your Honours please.

GLEESON CJ: Thank you, Mr Gageler. We do not need to hear you, Mr Burmester.

The Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave and the application is dismissed with costs.

AT 2.58 PM THE MATTER WAS CONCLUDED