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High Court of Australia Transcripts |
Re HELEN BIENSTEIN
Summons for directions
Office of the Registry
Melbourne No M87 of 2001
In the matter of -
An application for Mandamus against MICK KEELTY, AFP Commissioner
Respondent
Ex parte -
HELEN BIENSTEIN
Applicant
McHUGH J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
FROM MELBOURNE BY VIDEO LINK TO CANBERRA
ON WEDNESDAY, 3 OCTOBER 2001, AT 4.45 PM
Copyright in the High Court of Australia
DEPUTY REGISTRAR: That is correct, your Honour.
HIS HONOUR: Could the matters be called three times outside the Court.
DEPUTY REGISTRAR: I will do that now, your Honour. Both matters have been called outside the courtroom three times and there is no appearance.
HIS HONOUR: Very well. This matter, that is No C4 of 2001, was listed for hearing at 4.30 pm in Canberra by video link, it being expected that the applicant, Mrs Helen Bienstein, would appear in Melbourne in support of the summons. It is now 4.47 pm, the matter has been called three times outside the Court, and there has been no appearance by Mrs Bienstein. In the circumstances, I think that the most appropriate order that I can make is to adjourn this summons to 9.30 am on Friday of this week to be heard by the Full Court, which will be hearing the other two matters on that day.
Also to be heard today was an application for a writ of mandamus directed to Mr Keelty, the Australian Federal Police Commissioner, that is matter No M87 of 2001. That matter has also been called outside the Court
and there has been no appearance by Mrs Bienstein, who was expected to appear in Melbourne and conduct the case by means of a video link. Again, I think the most appropriate order to make is to adjourn that application to 9.30 am on Friday before the Full Court which will hear the other two matters in the matter.
Ms Musolino, is there anything further required at this stage?
DEPUTY REGISTRAR: No, your Honour.
HIS HONOUR: No. I would direct that copies of the processes in each of the two matters before me today also be given to the Justices of the Full Court who will be sitting on Friday. I will now adjourn these summonses until 9.30 am on Friday. Perhaps I should add, I also direct that Mrs Bienstein be informed that both summonses have been adjourned by my direction until 9.30 am on Friday, 5 October 2001. Yes, adjourn the Court.
AT 4.50 PM SHORT ADJOURNMENT
UPON RESUMING AT 4.53 PM
MRS H. BIENSTEIN appeared in person.
HIS HONOUR: I revoke the orders that I made in these matters a short while ago. Are you now ready to proceed, Mrs Bienstein?
MRS BIENSTEIN: Yes, your Honour Justice McHugh, I am, and I apologise to the Court for my late coming. It was because, as I was leaving someone from the Australian Federal Police rang and transmitted some documents by fax that might be relevant.
HIS HONOUR: Right, well, there is no need to apologise, I understand. Let us get on with it. The first matter I will deal with is matter C4 of 2001.
MRS BIENSTEIN: Yes. In that matter, I speak, firstly, that the Full Court not hear that matter on Friday but adjourn it to a later date because I cannot present two very extensive matters in the one day. I just cannot do that.
HIS HONOUR: Mrs Bienstein, there seems to me very serious questions as to whether or not there is any judicial order which can be made the subject of an appeal, as opposed to it being merely an administrative direction. Even if it is a judicial order, arguably, it is a matter that requires leave. In the circumstances, I have read your affidavit and I raise these matters for you. What would you like to say about those points that I have just made to you?
MRS BIENSTEIN: Well, they are relevant to today's proceedings because I am also asking that the title of the matter refer back to what it used to be before October, that is, "In a matter of an appeal by Helen Bienstein".
HIS HONOUR: I am far from convinced that it is an appeal and - - -
MRS BIENSTEIN: Yes. That is why I say it is relevant to today's hearing before your Honour.
HIS HONOUR: What I have in mind - - -
MRS BIENSTEIN: But otherwise, I would say it is just something that I would be prepared to argue before the Full Court, as part of the - what I call - - -
HIS HONOUR: You would be prepared to? I think you have a - - -
MRS BIENSTEIN: Yes, but I am prepared to put this in effect now, because it is obviously relevant to the title as well. So, I will talk to that. Would that be all right?
HIS HONOUR: What I have in mind - I think that you probably have a good point when you say that the title now given to it does not reflect the nature of the proceedings. It is my present inclination, subject to what you say, to direct that it be listed under the name "In the matter of Helen Bienstein" and that is a neutral - - -
MRS BIENSTEIN: Without the word "appeal"?
HIS HONOUR: Without the word "appeal". That is a neutral - - -
MRS BIENSTEIN: But just "In the matter of Helen Bienstein"?
HIS HONOUR: Yes.
MRS BIENSTEIN: Is that your proposal? Well, I think I would argue that - - -
HIS HONOUR: Then these matters can be argued before the Full Court as to whether it is an appeal, whether it is an administrative direction, whether it is interlocutory, and it overcomes your problems. I am quite - - -
MRS BIENSTEIN: Yes, it does to a large extent, your Honour, overcome my problems and I think, yes, I think I would be prepared to settle for that.
HIS HONOUR: Yes, very well.
MRS BIENSTEIN: So we can do away with the questions as to whether I - - -
HIS HONOUR: Yes, well, that is the main - - -
MRS BIENSTEIN: - - - I need leave, et cetera. I can argue that before the Full Court.
HIS HONOUR: Yes. The second order is that the management of this matter be kept separate from all the other Bienstein matters. The fact is that the matters have not been consolidated, so they are separate matters. Administratively they are kept in separate files but there does appear on one occasion to have been a letter sent to Mr Simon Bienstein which referred to both M140 of 2000 and C4 of 2001. That letter should not have had the C4/2001 subject heading.
MRS BIENSTEIN: Do you have a date for that letter, your Honour, because I had two letters from the Court with the title being in both matters. The Court never tells me on the letterhead, as it usually does in other courts, as to whether or not they have sent it to other people, so I do not know what else has been sent to Simon Bienstein. I have had a few letters from the Court entitled "Bienstein versus Bienstein, M140 of 2000. In the matter of an application by Helen Bienstein for leave to issue proceedings, C4/2001".
HIS HONOUR: I think that is the letter that I have seen somewhere in the file.
MRS BIENSTEIN: Yes, okay. I would really like, and I think I deserve to know, when correspondence comes to me, whether that same correspondence was also addressed to another person. That really should be at the top of the letter.
HIS HONOUR: Mrs Bienstein, this is a summons for directions and I am not going to get involved in the management of the High Court Registry. There are separate files kept. The letter that was forwarded to Mr Bienstein was dated 26 July 2001.
MRS BIENSTEIN: I also have one for 4 September 2001 which is also under the same heading addressing both matters in the same letter, so obviously it was not an omission, it is something that - - -
HIS HONOUR: Now that it has been brought to the attention it will not occur again. Administratively what - - -
MRS BIENSTEIN: Thank you very much.
HIS HONOUR: Yes. Now, the other - - -
MRS BIENSTEIN: Thank you, so we have settled two things.
HIS HONOUR: You ask that official correspondence about other Bienstein matters be separated from correspondence. I think we have taken care of that.
MRS BIENSTEIN: Yes.
HIS HONOUR: You want no correspondence about this matter be sent to Simon Bienstein. I think, again, we have taken care of that. The final matter is, I think, that you wanted the hearing date for this matter to be vacated and a full day hearing being allocated expeditiously. I am not prepared to vacate the date. You should be prepared to argue the question of leave as to whether it is an appeal. If you are right and you have got a full appeal then what will probably happen is that the matter would go before a Full Court of five Justices but there seems to me, at the moment, serious questions as to whether or not this is a judicial order.
In the past the view has been taken, rightly or wrongly, that these are administrative directions by a judge and that there is not a judicial order because it does not determine any rights between parties. The procedure is for you or a person in your position to move a judge for leave to issue the writ. If the judge refuses then you have an appeal, by way of leave, I think, or as of right.
MRS BIENSTEIN: Yes, so - - -
HIS HONOUR: So that is the way it is ordinarily done, but those matters could be argued by you before the Full Court on Friday.
MRS BIENSTEIN: Well, if we can reach that stage, because the other matter that is also set down for hearing will occupy more than a day, and I have informed the Registry about that and explained the situation and they will not allocate more than one day for the two combined.
HIS HONOUR: Well, Mrs Bienstein, you have to understand that courts have to control their own proceedings in terms of hearing cases. The days when counsel or litigants could come to court and argue cases for as long as they could think of something to say have long gone. The United States Supreme Court only allows half an hour of argument in most cases, one hour exceptionally for a very important case. But all I can say is that the matters will be listed together, they will not be heard together, they will be heard one after the other, and we will deal with the matter and see what happens. If at the end of the day there is not sufficient time to deal with it, then the matter will have to be adjourned to some other date.
MRS BIENSTEIN: All right, I accept that. That will have to be enough, because I cannot see that I can change your mind on it. I mean, I could say in the interests of justice I should have enough time to actually present my argument and in the interests of justice I should not have to prepare two big cases for the one day representing myself, whilst being ill and whilst looking after a very ill daughter, but I do not know that I will sway you.
HIS HONOUR: I understand your problems, but both matters have been listed for hearing and the Full Court can deal with them on that particular day. But I think you should also be prepared to argue the question whether or not you require leave in the matter from Justice Hayne as well.
MRS BIENSTEIN: Yes, I have that prepared, so I know what I am saying about that on - - -
HIS HONOUR: The other thing that you may give consideration to is to try and put as much of your argument in writing as you can.
MRS BIENSTEIN: Yes, I am doing that as well, as much as I can. I have had an injured arm for the last week or two and so that has made things very much more difficult as well. But, yes, I am getting on to that and I must say I wanted, of course, to comply with the requirement that the written arguments be before the Court 10 days before but I have not been able to do it even by today.
HIS HONOUR: Yes.
MRS BIENSTEIN: So I have these things that were also on my plate. So I will definitely do as much as I can in written form because I find that is a very expeditious way to do it and saves everybody a lot of time.
HIS HONOUR: Right. Mrs Bienstein, I think we have just about canvassed all the issues in C4 of 2001. If we have, I would just like to give a short judgment giving some directions about the particular summons.
MRS BIENSTEIN: Could I just ask one question about it before we do that?
HIS HONOUR: Yes.
MRS BIENSTEIN: I did consider putting into my arguments that if my submissions in regard to whether I have an appeal as of right is rejected, then that the Court immediately consider leave to appeal at - - -
HIS HONOUR: Yes, certainly.
MRS BIENSTEIN: Would I be able to do that?
HIS HONOUR: Yes, most certainly, yes.
MRS BIENSTEIN: Okay, that would be great, I will do that. Thank you.
HIS HONOUR: In matter C4 of 2001, Mrs Bienstein has sought five orders and directions. The first is that the title of the proceedings be amended to reflect the fact that it is an appeal from a direction of a single Justice of the High Court. Her argument on this point is simple and straightforward: the matter has been given the title "In the matter of an application by Helen Bienstein for leave to issue a proceeding". Mrs Bienstein points out that she has not applied for leave to issue a proceeding; there is no application by her for leave to issue a proceeding. Accordingly, the title does not reflect the actual nature of the proceedings.
Her point is, in my view, well taken. There may and I think there do arise questions as to whether or not there is a judicial order which can be the subject of appeal, either as of right or by leave under section 34 of the Judiciary Act 1979 and section 73 of the Constitution. But the most appropriate course, I think, is for the matter to be entitled "Re Helen Bienstein". I so direct that it be entitled under that name.
In respect of the other four matters in respect of which Mrs Bienstein seeks orders and directions, in discussion I have pointed out to her that on one occasion a letter has been wrongly sent to Mr Simon Bienstein. Mrs Bienstein points out to me that there is not only that letter, which is a letter of 26 July 2001, but another letter dated September 2001. It appears that those letters should not have been sent. Mr Bienstein is not a party in C4 of 2001. It was a mistake to send those letters, and it should not occur again.
She asks also that the management of C4 of 2001 be kept separate from all the other Bienstein matters. That is already the case. These matters are not consolidated. They have separate files, separate numbers and, although two matters are to be listed on Friday, they are separate matters and will be argued separately.
Mrs Bienstein asks also for an order that no correspondence about C4 of 2001 be sent to Mr Simon Bienstein. It is clear from what I earlier said that that ought not to occur again.
Finally, she asks for the hearing date to be vacated and a full day hearing be allocated for C4 of 2001. However, as I pointed out to her during discussion, there are a number of issues that arise in the matter. The matter, on one view, may be quite short; on the other hand, if she is successful in her arguments, the matter may need to be adjourned. But it is more appropriate for these matters to be dealt with on Friday by the Full Court, rather than deal with them by way of any order of mine at the present time.
That is sufficient to dispose of the matters raised in C4 of 2001.
HIS HONOUR: Mrs Bienstein, we will now move on to the Keelty matter in which you seek order nisi against the Australian Federal Police Commissioner. Perhaps that matter can be formally called.
MRS BIENSTEIN: Thank you, your Honour. In fact, I do not only have an order nisi which was amended recently, but I also at that time asked for orders absolute in the first instance.
HIS HONOUR: I noticed that.
MRS BIENSTEIN: So I would like to just go to that order absolute in the first instance that I seek.
HIS HONOUR: Ordinarily that can only be obtained if a judge thinks that it is a matter of urgency, does it not? There is a particular rule that deals with that. Ordinarily, if you get an order nisi, it goes before the Full Court but there is a rule which provides that - - -
MRS BIENSTEIN: I think the rule only provides that an order can be made for it to be returnable before a single Justice in the case of urgency.
HIS HONOUR: That is so.
MRS BIENSTEIN: But there is nothing in the Rules about an order absolute in the first instance, although I notice in previous cases that it has happened.
HIS HONOUR: Yes, well it is a very rare procedure. Ordinarily if an order nisi is granted, it goes to the Full Court for hearing and - - -
MRS BIENSTEIN: Yes. May I explain why this is rather urgent and it should really happen before I could argue the other matters?
HIS HONOUR: I do not want to take up your time on this point, but if I thought that you had an arguable case sufficient for an order nisi, then the matters that you raise would be too important to be dealt with by a single Justice of this Court and it would be a matter that ought to go before the Full Court. It is not a matter - if there are duties of the kind which you rely on, then the Full Court should rule on those matters and - - -
MRS BIENSTEIN: And I do not doubt that, but all that I am asking - I agree I am raising some very, very important issues and it should go to a Full Court, but what I am asking for orders absolute at this stage is for the Commissioner to actually send to me material that he had promised to send and that the Attorney-General has asked him to send to me, and without those materials being sent to me, I really am at a loss to argue points in the rest of the application, because there has been absolute silence from the Commissioner to my repeated requests for his reasons and information, et cetera.
HIS HONOUR: Well, you are probably aware in your preparation of this case that mandamus will only lie where there is some statutory, regulatory or common law duty imposed upon a person and that person has breached it and what you have to persuade me this afternoon is that you have at least an arguable case that there is a statutory, regulatory or common law duty to do each of the seven matters to which you refer in your application for an order nisi and so that is the first issue that you have got to deal with, I think, Mrs Bienstein.
MRS BIENSTEIN: Well, I think there is a clear legal duty for an officer of the Commonwealth to abide by a request of the Attorney-General.
HIS HONOUR: But where do you find that legal duty? What statute can you point to that indicates that that is a duty?
MRS BIENSTEIN: You have got me there.
HIS HONOUR: Well, that is the problem.
MRS BIENSTEIN: So I need to find something in some Act or another that says that if the Attorney-General's Department - - -
HIS HONOUR: Or regulation or common law rule and - - -
MRS BIENSTEIN: Would that not be a common law rule, that if the responsible Minister or his Department directs that an officer take a particular action which is not contrary to law, that that be done?
HIS HONOUR: It is a question whether it is an enforceable common law duty and I know of no such duty. The other matter that you have to look at or consider is the question of discretion. It has been held on a number of occasions by courts of the highest authority that people in the position of the Commissioner of Police have a discretion, in certain circumstances, even about upholding the law. If, for example, by reason of their resources, lack of manpower, they decide that a matter should not be given priority or that police officers should not be directed to do something, well, the courts will not interfere. The courts have said on a number of occasions that you have to be very careful in interfering with the administration by people such as the Commissioner of Police with the conduct of their office.
MRS BIENSTEIN: Yes, I do read that and I have included those sorts of statements of policy in the material that is annexed to the affidavit.
HIS HONOUR: Yes.
MRS BIENSTEIN: I am quite well aware that they say that there is a priority on what they will or will not look at and deal with, but that is in the material that I have annexed to the original affidavit, so I am quite aware that that is so but I am not arguing that because that does not come into issue here. All that I am arguing is that the Federal Police, as a government agency, has a responsibility which is an enforceable - has a duty which is enforceable - in common law I do not know whether there are statutes regarding it - for them to be accountable for their decisions to members of the public and to respond to well-grounded questions that are put to them about their actions or inactions and basis for it.
For instance, the Commissioner could have - or anyone in the AFP could have responded to my questions and said, "We don't consider that your measure is urgent enough and we don't have enough resources", but they have not. They have not given me any reasons.
HIS HONOUR: They have, in one sense, have they not? The reason they have given is a reason you do not accept.
MRS BIENSTEIN: Which is what?
HIS HONOUR: They say that there is nothing for them to investigate.
MRS BIENSTEIN: Yes, but that is a different question. I am talking about the order 2 that I am referring to in the order absolute in the first instance.
HIS HONOUR: That is to ensure all correspondence "is thoroughly considered in the light of that person's full file", is that the point?
MRS BIENSTEIN: No, no:
That within seven (7) days of this order the respondent comply with requests from the Attorney-General's Department dated 22 August 2001 to forward to the applicant information about the provision of education and training of Australian Federal Police personnel that may be involved in people's arrest and detention, which is required by Articles 10 and 11 of the Convention Against Torture -
and the affidavit which goes with that has annexed to it the letter that was sent to the Federal Police from the Attorney-General's Department and a copy of it was sent to me telling me that they will respond, and they have not.
HIS HONOUR: Yes, but these are not duties - there are no public duties enforceable by the courts. In the whole history of the common law no such direction has ever been made or even hinted at in any of the textbooks.
MRS BIENSTEIN: If we have responsible government, and the laws are made for the good government and welfare of the people in this country, then we cannot have, surely, unenforceable rights to have information provided about - - -
HIS HONOUR: That assumes that you have a right, you see, and unless some statute gives it to you, then - - -
MRS BIENSTEIN: Or the common law.
HIS HONOUR: And the common law does not give you a right. You can ask some government official to give you information, and unless there is a statutory requirement that they give it to you, they can refuse to do it. That was why Freedom of Information - - -
MRS BIENSTEIN: But they have not even refused. They just have not written back.
HIS HONOUR: You may - - -
MRS BIENSTEIN: They have not. They have taken no notice of the Attorney-General Department's letter.
HIS HONOUR: Well, you may regard that as bad manners, they may be in breach of some relationship with the Attorney-Generals' Department, but it is not an enforceable duty.
MRS BIENSTEIN: All right. I will not press that any further, because I understand where you are coming from, and I presume - and you can correct me on this, if I am wrong - that really, I would have a better chance of enforcing my right to this information against the Attorney-General's Department than I would against the Australian Federal Police Commissioner.
HIS HONOUR: I do not know, but it is a question of - the Ombudsman can deal with these matters. That is one of the reasons we have to have legislation setting up ombudsmen, because the courts just do not have the powers to rectify administrative wrongs and errors.
MRS BIENSTEIN: Okay. So that is a second way that I might be able to approach it. Thank you. I will leave that particular part out of it. Now, the other part in my order absolute was also, according to you, probably not going to be enforceable either:
That within seven (7) days of this order the respondent forward to the applicant the previously promised legal advice concerning the applicant's avenues for pursuing her criminal complaints against Justice Paul Guest.
I have a letter from the Australian Federal Police promising that they are now seeking legal advice and will forward it to me, and they have not done so. Do I have an enforceable right against them in that regard?
HIS HONOUR: I do not know of any and, unless you can point to something, if you can point to some law which requires them to do it, then I am sure this Court would not hesitate in an appropriate case to issue a writ of mandamus, but until - I had a good look at this matter and I have been unable to find anything that would support your case and, unless you can refer me to something - - -
MRS BIENSTEIN: All right, I will look at that further and take on board what you have said today to me. Looking at the order nisi that I seek amended, whether I have an arguable case here is the question, is it not?
2. Ensure that all correspondence from members of the public -
generally, and from the applicant in particular -
is thoroughly considered in light of that person's full file and the applicable law, that issues raised are properly researched and that a comprehensive and unambiguous response is provided without undue delay -
Again, I do not have the authorities behind that to make it an enforceable right and I do not know whether this is common law or not.
HIS HONOUR: You may find it in some regulation. You might find it in a statute. You will not find it in the Australian Federal Police statute. You will not find it - - -
MRS BIENSTEIN: No, I looked for it there. There is nothing - - -
HIS HONOUR: Yes, it is not there.
MRS BIENSTEIN: I mean, there is the undertaking though - there is a charter in which they say, "We will answer questions, we will provide unambiguous answers, we will be consistent and just and fair", but that is in their charter and in goals that they have. It is not in government regulations or statutes that forces them to do it. They have undertaken to do that in their charter.
HIS HONOUR: Yes. Well, if they do not do it, at the moment I cannot see how you have any enforceable right, although it may be that - - -
MRS BIENSTEIN: So it does not then become common law, that if they say that they will do it that I have a right to get them to do it?
HIS HONOUR: No, it does not.
MRS BIENSTEIN: I do not know enough about common law to - - -
HIS HONOUR: You have to find a public duty. Now, I think I understand your case. I have studied your papers but I do not think you can take the matter much further, Mrs Bienstein.
MRS BIENSTEIN: Well, I think that it is very important that I go through the separate parts of this because to provide a clear channel for members of the public including the applicant to lodge criminal complaints with the agency, I think I can argue on common law grounds and constitutional grounds.
HIS HONOUR: I know of no common law rule to that effect.
MRS BIENSTEIN: Okay. Well, I know that - I do not even have the case before me - that it was said that a police force is not part of the judiciary because it is not mentioned specifically in the Constitution. So it does not need to have the same degree of independence and is not as accountable for their actions and bias, et cetera, as the judiciary would be, but it is the first step towards invoking the power of the judiciary in criminal matters and, therefore, they do have a duty to act impartially and independently of government or any other interested groups. That they are completely independent and they serve the law rather than the Executive Government.
HIS HONOUR: There is no doubt that the respondent, as does every constable of police, have a public duty to uphold the law but - - -
MRS BIENSTEIN: Also, to make their services equally available to all, not to discriminate between persons or organisations and not to simply provide their services against some people and not against others. They have to be fair in the provision of their services and access to their services. Now, I do have that, but I have not got it with me today, so that is actually a case that I did find and it is sitting there somewhere amongst all the other cases on my desk, which I am prepared to bring up and perhaps, if you are not going to - because I can understand if you say to me that you do not have it before me now and therefore I cannot accept it, you might have to bring that up a second time to the Court.
3. Accept criminal complaints from all sources without distinction;
At the moment there is conflicting advice from the AFP. On the one hand, some of the members have told me that they have a policy that they only accept references from the government and government agencies, which would be contrary to their public duty, definitely, and others - - -
HIS HONOUR: That raises the question I put to you earlier as to whether or not their resources are such that they have a discretion as to what matters that they deal with and as to whether or not - - -
MRS BIENSTEIN: But they have not said that.
McHUGH J: Well, they may not have, but the other thing that you must - - -
MRS BIENSTEIN: Some of them have said that they - - -
HIS HONOUR: Mrs Bienstein, the other matter that you have to bear in mind is that what a particular police officer tells you is not evidence against the Commissioner himself. One of the real difficulties you have in this case is to point to the respondent owing you these duties - - -
MRS BIENSTEIN: Yes.
HIS HONOUR: - - - as opposed to a particular police officer.
MRS BIENSTEIN: Yes, I take your point, and perhaps - I have some authorities that I have sort of prepared and I do not know whether you have those in front of you?
HIS HONOUR: Are they the ones you sent up today?
MRS BIENSTEIN: Yes, I think today, it could have been - - -
HIS HONOUR: Yes, I had a look at those.
MRS BIENSTEIN: The Constitution covering clause 5 and - - -
HIS HONOUR: That only makes the Constitution binding on all the courts - - -
MRS BIENSTEIN: On all people.
HIS HONOUR: Yes, but you have to find something in the Constitution which would impose a public duty on - - -
MRS BIENSTEIN: Okay, yes:
and all laws . . . shall be binding on -
all people, right?
HIS HONOUR: Yes.
MRS BIENSTEIN: The Constitution and
all laws made by Parliament . . . shall be binding on the courts, judges and people -
right? So let us establish that.
HIS HONOUR: Yes.
MRS BIENSTEIN: The Australian Federal Police Act, let me just turn to that, that is towards the end:
Constitution of the Australian Federal Police . . .
Commissioner and Deputy Commissioner -
will be there -
appointed by the Governor-General . . .
Commissioner's command powers
(6) The Commissioner has the general administration of, and the control of the operations of, the Australia Federal Police. Part IV is mainly about the Commission's command powers. For example, the Commissioner may determine the duties of AFP employees and where those duties are to be performed. Other topics covered by that Part include secondment and drug testing.
Well, if the Commissioner had "the general administration of, and the control of the operations", then the Commissioner is responsible, if he is informed, to address the problems in that his officers are giving conflicting advice.
HIS HONOUR: That is what you say, but it is a matter for the Commissioner as to how he runs his matter. This Court has no general supervisory jurisdiction over the administration of the Australia Police Force or, for that matter, any other police force. But if you can point to some clear - - -
MRS BIENSTEIN: But if I can show you that the Commissioner has power to do it, and with the power comes a duty - - -
HIS HONOUR: No, it does not. No, that is a serious mistake to think that merely because somebody has a power - there are many bodies. The Parliament has power to make all sorts of law; it has no duty to make them. The same with local government councils. Many people have powers; they do not have duties to exercise them.
MRS BIENSTEIN: I thought that I included - "duties includes responsibilities". "Interpretation", Part IV, on the same page just under what I have read, section 4:
duties includes responsibilities . . .
member of the Australian Federal police means any of the following . . .
police services includes 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.
powers includes authorities, rights, privileges and immunities.
Would that be sufficient for me to say that this power - - -
HIS HONOUR: No, that is not sufficient. If a question arose as to whether or not the Commissioner did something, then a question would arise whether that authorised the doing of it, but it is another proposition altogether to say that he has a duty to do it. For instance, if his officers start giving legal advice to applicants, the question might arise whether that is authorised by the Australian Federal Police Act, but it is another question as to whether he has a duty to provide legal advice to members of the public.
MRS BIENSTEIN: Okay, I take your point. Now, if his officers refuse to accept for assessment as to whether a crime has been committed material that I sent to them - - -
HIS HONOUR: It is a question for their judgment. This is an application for - - -
MRS BIENSTEIN: But they cannot make a judgment until the accepted processment. They refused to accept the complaints because they say that they do not "accept complaints about people like you".
HIS HONOUR: Well, that may be, but that does not mean that they are in breach of any particular duty. Constables have a discretion, just as the Commissioner of Police has, and because constables - - -
MRS BIENSTEIN: That is not what they said. They said there is a long-standing policy.
HIS HONOUR: Just a moment, Mrs Bienstein. Just because any constable of police has a discretion, the law is that their employers cannot be made responsible for their acts.
MRS BIENSTEIN: No, but their employers can be made to correct their acts if they are not - - -
HIS HONOUR: Provided the employer has some duty imposed on it by law, and that is where there is a deficiency in what you are putting. You have not yet been able to point to me - - -
MRS BIENSTEIN: Okay, well, let me - all right, so you might be saying to me I should not be taking an action against the Commissioner of the Police; I should be taking the action against, perhaps, the responsible Minister, because then we go through - - -
HIS HONOUR: Well, that would be an even harder task, to get any relief against the Minister.
MRS BIENSTEIN: Well, if we move on to Part II, functions and powers - - -
HIS HONOUR: What people should do as a matter of fairness and what they are legally obliged to do are two very different things.
MRS BIENSTEIN: Yes.
McHUGH J: Law and politics, law and administration do not coincide.
MRS BIENSTEIN: Yes, right.
McHUGH J: That is why you have ombudsmans, to correct matters that law cannot, or the courts - - -
MRS BIENSTEIN: But I do not know that that is so, that the law cannot. If we look at "Functions":
Subject to subsection (2C) -
which has nothing to do with this -
the functions of the Australian Federal Police are:
(b) the provision of police services in relation to:
(i) laws of the Commonwealth;
HIS HONOUR: Yes.
MRS BIENSTEIN: Now, if that is so, then they have a function which they are refusing to actually execute in relation to particular people.
HIS HONOUR: You might have an argument if they said, "Well, we are not going to carry out any functions whatever. We are not going to exercise any powers. We are not going to exercise any duties". You would be probably be in sound territory - - -
MRS BIENSTEIN: In relation to the Crimes Act?
HIS HONOUR: But, Mrs Bienstein, when they say that they do not think there is a case or they are not going to investigate this, you have to point to some statute which says that they have to do it.
MRS BIENSTEIN: No, no, no. I am not up to that yet.
HIS HONOUR: But these are motherhood - - -
MRS BIENSTEIN: I am only up to them expecting - - -
HIS HONOUR: In effect, these are motherhood statements. They say, "This is what you have got to do. The police force have got to perform the functions, they have got to carry these - - -"
MRS BIENSTEIN: Yes. Is that an enforceable right of mine that they must accept? If I put to them a complaint that a crime has been committed against me by a particular person, can they turn around, legally, and say to me, "We won't look at that because we think that this person is above the law. It is not a matter for us to consider."
HIS HONOUR: They have never said to you that they are above the law, have they?
MRS BIENSTEIN: Well, they have. They have said to me that they have a longstanding - in writing, that they have a longstanding policy - consistent policy not to investigate judges, that that matter can only be dealt with by the Attorney-General's Department. They Attorney-General's Department says that is untrue and that they do have a duty to investigate complaints, or accept them for assessment to see whether they involve a criminal action, from all members of the public regardless of who the alleged offender is, that they have a duty in law to accept that for assessment.
HIS HONOUR: They have assessed your case and they say it does not fall within their guidelines.
MRS BIENSTEIN: They have not assessed my case. What they have said is, "You have had advice from the Chief Justice of the Family Court who says this, you have had advice from another judge of the Family Court who says that, you have had advice from the Commonwealth Ombudsman and therefore we are not going to look at that". And, they have a responsibility and a duty to the public to exercise their functions independently of what other people say.
HIS HONOUR: No. You assert that. They have limited resources, as does almost every other organisation and person in this country. If they come the view that they are not going to investigate a certain complaint after it has been investigated by the Ombudsman, or somebody like that, they are entitled to do it.
MRS BIENSTEIN: All right.
HIS HONOUR: Now, Mrs Bienstein, I have been very patient - - -
MRS BIENSTEIN: But I need to move on to the next part of my argument, because that was the first initial part that I found great difficulty with, they refused to accept it. Then they said, "All right, we wont re-open it because it has already been assessed there was no crime". Okay, I take issue with that. But then there is no avenue for me to put further complaints to them. There is no method by which I can put other complaints for assessment to determine whether they have any criminal element in them.
I have written to the Commissioner of Police on several occasions for him to tell me how I can go about making such complaints and I have been given no information at all. On their pages on the internet they only provide information for government agencies to be able to tell them, "We have a complaint that we want you to investigate". They have no avenue for members of the public to do so. Now, it must be contrary to their duty, which is an enforceable right. They cannot withhold their services from the public if they have the function of providing police services to the laws of the Commonwealth.
HIS HONOUR: They do not say any such thing in their - they say that their priorities are set through ministerial directions, there are areas of focus including handling special references from the government and combating organised crime, et cetera, et cetera.
MRS BIENSTEIN: I understand what you are saying that they have priorities, but one of their top priorities, in fact, is to the laws of the Commonwealth to investigate crimes against those, and this is - - -
HIS HONOUR: It is one of the things they have to do.
MRS BIENSTEIN: Yes, they have to, not that they can if they want to, they have to.
HIS HONOUR: They have a general duty in relation to the laws of the Commonwealth, but whether they want to - - -
MRS BIENSTEIN: No, they have a general duty to provide for the provision of police services in relation to the laws of the Commonwealth and the provision of services in accordance with the arrangements entered into a particular - - -
HIS HONOUR: What section do you refer to? Section 8?
MRS BIENSTEIN: This is "Functions". Section 8: "Functions", that is right.
HIS HONOUR: It says: "the functions of the Australian Federal Police". Now, the Australian Federal Police is not even a legal entity.
MRS BIENSTEIN: It is not a legal entity?
HIS HONOUR: It is not a legal entity.
MRS BIENSTEIN: It is a Commonwealth authority, listed so.
HIS HONOUR: Your application is not against the Australian Federal Police; it is against an individual.
MRS BIENSTEIN: So can I make the application against the Federal Police rather than the individual? Because I thought that it always had to be against an individual.
HIS HONOUR: No, because the Federal Police is not an entity. Now, Mrs Bienstein, I have been quite patient with you. It is very clear to me that there is no statutory or regulatory rule, or common law rule, that you have been able to point to. And I have - - -
MRS BIENSTEIN: Okay. I agree that I have not got it in front of me, that I have got "Functions", and you say it does not create an enforceable right. If that is so, then I have to go further and look further for my source of self power, because if you - I mean, I can hardly believe that if they had a function to provide investigative services in relation to crimes against Commonwealth law, then that is not an enforceable right that they actually assess complaints that there has been a crime committed against Commonwealth law. It is unbelievable to me that that can be true - - -
HIS HONOUR: Well, whether it is or whether it is not, there is no - - -
MRS BIENSTEIN: - - - but if that is so, then I will go and see whether I can dig up cases and bring on this application when I have more authority behind it.
HIS HONOUR: Yes. Well, now, is there anything further that you want to say?
MRS BIENSTEIN: No, your Honour, I think we have covered everything very thoroughly, and I thank you for your indulgence.
HIS HONOUR: Thank you, Mrs Bienstein. I must give a judgment in this matter.
MRS BIENSTEIN: Of course.
HIS HONOUR: This is an application for an order nisi to be made absolute in certain respects, which is brought by Mrs Helen Bienstein, whom I shall call the applicant. She seeks to compel the Commissioner of the Australian Federal Police, Mr Keelty, to carry out the duties of his public office in relation to her and to the community generally as opposed to, as she puts it, "unlawfully guarding the interests of the powerful", see paragraph 7 of her affidavit sworn on 15 August 2001.
In particular, Mrs Bienstein seeks a writ of mandamus directing the respondent to:
1. Forward legal advice to the applicant without delay;
2. Ensure that all correspondence from members of the public . . . is thoroughly considered in light of that person's full file and applicable law, that issues raised are properly researched and that a comprehensive and unambiguous response is provided without undue delay;
3. Provide a clear channel for members of the public, including the applicant, to lodge criminal complaints with the agency;
4. Accept criminal complaints from all sources without distinction;
5. Ensure that criminal complaints lodged by members of the public will be handled with the same level of informed, helpful, open and courteous professionalism as are references from Commonwealth Government Agencies, other "partners" and "stakeholders";
6. Accept criminal complaints irrespective of the position held by the alleged offender, including complaints about judges and ministers;
7. Apply the same law to all without distinction;
She also seeks a mandamus:
1. That within seven (7) days of this order the respondent forward to the applicant the previously promised legal advice concerning the applicant's avenues for pursuing her criminal complaints against Justice Paul Guest;
2. That within seven (7) days of this order the respondent comply with requests from the Attorney-General's Department dated 22 August 2001 to forward to the applicant information about the provision of education and training of Australian Federal Police personnel that may be involved in people's arrest and detention, which is required by Articles 10 and 11 of the Convention Against Torture;
The Commissioner of Police is an officer of the Commonwealth for the purposes of s 75(v) of the Constitution - see, for example, Brewer v Castles (No 1) (1984) 52 ALR 571. There is no doubt that in an appropriate case, mandamus will lie against the Commissioner for Police and, for that matter, any other police officer of the Commonwealth.
The applicant's grievances with the respondent arise, as the terms of her order nisi indicate, from the perceived inactivity of the Australian Federal Police in relation to a number of matters and, in particular, in relation to one matter in which she was placed in custody in the Family Court of Australia. Subsequently on appeal, it was held that the judge had denied her procedural fairness in placing her in custody. She seeks some form of relief against that detention, either with the assistance of the police, or perhaps otherwise.
In my view, however, Mrs Bienstein does not have an arguable case for the order nisi which she seeks. She has not pointed to any statute, regulation or common law rule that would impose on the respondent any legal duties in the terms that she seeks to enforce. No doubt the respondent has a public duty to uphold the law. But even then, that duty is subject to a wide discretion on the part of the respondent as to how and in what circumstances that duty should be enforced.
In Harris v Sheffield United Football Club Ltd, which is reported in [1998] QB 77 at 95, Lord Justice Balcombe said:
In deciding how to exercise his public duty of keeping the peace, a chief constable has a discretion, which he must exercise even-handedly. Provided he acts within his discretion, the courts will not interfere.
Lord Justice Balcombe went on to say that:
In exercising that discretion a chief constable must clearly have regard to the resources available to him -
Those statements of the Lord Justice were approved by some of their Lordships in the House of Lords in R v Chief Constable of Sussex, Ex parte International Trader's Ferry Ltd [1998] UKHL 40; [1999] 2 AC 418, where their Lordships pointed out that circumstances may even arise where by reason of the manpower and financial resources available to a chief constable he or she would be justified in limiting the officers used to prevent breaches of the peace even though in a particular case that will fail to prevent all breaches of the peace or the law.
This Court has no general jurisdiction to supervise the administration of the Australian Police Force. It can only act where it is proven that the respondent or other federal police officer has breached some specific duty that is imposed on him by statute, regulation or common law. There is nothing before me that suggests that the respondent has breached any duty imposed on him.
Mrs Bienstein, in her argument today, has laid much weight on the provisions of section 8 of the Australian Federal Police Act, which declares that the functions of the Australian Federal Police are, among other matters, the provision of police services in relation to the laws of the Commonwealth. However, as I pointed out to her in argument, the fact that that is a function of the Australian Federal Police Force, does not mean that there are duties imposed on the respondent in the terms that Mrs Bienstein argues for.
Indeed, there is nothing to suggest that any individual officer of the Australian Federal Police Force, as opposed to the Commissioner himself, has breached a specific duty imposed on him or her by statute, regulation or common law rules. At all events, Mrs Bienstein has not been able to point out to me any such statutory, regulatory or common law duty. All that really appears, I am afraid, is that Mrs Bienstein is dissatisfied with the way that certain Federal Police Officers have handled her matter. But even if it was proved that an officer was in breach of a specific statutory, regulatory or common law duty, the remedy would be against that officer not against the respondent.
In my view, Mrs Bienstein has failed to make out a case for the issue of an order nisi for mandamus. Accordingly, I must dismiss her application. Thank you, Mrs Bienstein. Adjourn the Court.
AT 5.53 PM THE MATTER WAS CONCLUDED
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