Baker v Commissioner of the Australian Federal Police

statutory provisions 21 The relevant provisions of the AFP Act are as follows: "23 Employer powers etc of Commissioner (1) The Commissioner, on behalf of the Commonwealth, has all the rights, duties and powers of an employer in respect of AFP employees. (2) Without limiting subsection (1), the Commissioner has, in respect of AFP employees, the rights, duties and powers that are prescribed by the regulations. 28 Termination of employment by Commissioner The Commissioner may at any time, by notice in writing, terminate the employment of an AFP employee.… 38 Commissioner's Orders In the exercise of his or her powers under section 37, the Commissioner may, by writing, issue orders with respect to the general administration of, and the control of the operations of, the Australian Federal Police. 39 Compliance with Commissioner's Orders An AFP employee or a special member must comply with Commissioner's Orders. 40 Compliance with specific directions, instructions or orders An AFP employee or a special member must not: (a) disobey; or (b) fail to carry out; a lawful direction, instruction or order, whether written or oral, given to him or her by: (c) the Commissioner; or (d) a Deputy Commissioner; or (e) the AFP employee or the special member under whose control, direction or supervision he or she performs his or her duties. 40A Self-incrimination (1) If an AFP employee or a special member is required under section 39 or 40 to give information, answer a question or produce a document, he or she is not excused from giving the information, answering the question or producing the document on the ground that the information, the answer to the question or the production of the document might tend to incriminate him or her or make him or her liable to a penalty. (2) However, any information or answer so given or any document so produced is not admissible in evidence against the employee or special member in any proceedings, other than proceedings for a disciplinary offence under the Australian Federal Police (Discipline) Regulations. (3) Subsection (2) does not apply to any information or answer so given, or any document so produced, that is relevant to conducting a test under section 40M or 40N (about testing for alcohol or prohibited drugs) … 40K Termination of employment for serious misconduct (1) If the Commissioner terminates the employment of an AFP employee under section 28 because the Commissioner believes, on reasonable grounds, that the employee's conduct or behaviour, or any part of it: (a) amounts to serious misconduct by the employee; and (b) is having, or is likely to have, a damaging effect on: (i) the professional self-respect or morale of some or all of the AFP employees; or (ii) the reputation of the Australian Federal Police with the public, or with any section of the public, or with an Australian or overseas government or law enforcement agency; the Commissioner may make a written declaration to that effect. Timing of declaration etc (2) Any declaration under subsection (1) must be made within 24 hours of the Commissioner's decision to terminate the employment of the AFP employee. The Commissioner must give a copy of the declaration to the AFP employee. Definition (3) In this section: serious misconduct means (a) corruption, a serious abuse of power, or a serious dereliction of duty; or (a) any other seriously reprehensible act or behaviour by an AFP employee, whether or not acting, or purporting to act, in the course of his or her duties as an AFP employee." 22 I was told that a declaration pursuant to s 40K has significant adverse implications for the employee involved, which it is unnecessary to explore for the purposes of this case. 23 The relevant portions of s 7 of the Complaints Act are as follows: "(5) A member of the Investigation Division may, for the purposes of the investigation of a complaint or matter, direct an AFP appointee to furnish information, produce a document or other record, or answer a question, that is relevant to the complaint or matter, as the case may be. … (6) Where an AFP appointee is directed under subsection (5) to furnish information, produce a document or record or answer a question, the appointee is not excused from complying with the direction on the ground that: (a) the furnishing of the information, the production of the document or record or the answering of the question: (i) would be contrary to the public interest; or (ii) might make him or her liable to a penalty; or (b) the information, the production of the document or record or the answer to the question might tend to incriminate him or her; or on any other ground, but the information, the production of the document or record or the answer to the question is not admissible in evidence against him or her in any civil or criminal proceedings other than proceedings for an offence against subsection (8) or for or in relation to a breach of discipline. (7) Nothing in subsection (6) shall be taken to affect the admissibility in evidence, in any civil or criminal proceedings, of: (a) any information furnished by an AFP appointee to a member of the Investigation Division; (b) the production of a document or other record by a member of the Australian Federal Police to a member of the Investigation Division; or (c) an answer given by a member of the Australian Federal Police to a question put to him or her by a member of the Investigation Division; where the appointee has not been expressly directed, under subsection (5), to furnish the information, produce the document or record or answer the question." 24 "Breach of discipline" means an offence that is a disciplinary offence for the purposes of the prescribed Regulations (s 3(1)).

issues 25 Each applicant is in this dilemma: if he does not respond to the invitation to defend himself against dismissal and a s 40K declaration, then he may well be dismissed and a declaration made, but if he does defend himself, whatever he says may be used against him in the forthcoming criminal proceedings. They say that the respondent is not just an employer - he is also responsible for criminal prosecutions. The applicants contend that their right to silence is effectively being affected or negated by actions on behalf of the respondent and that that action is both an abuse of the power which is conferred by s 28 and s 40K of the AFP Act and an interference with the proper conduct of the criminal proceedings. The applicants contend that the foreshadowed decisions will be invalid by reason of ss 6(1)(a),(b),(c),(d),(f) and (j) and (2)(c),(g) and (j) of the ADJR Act. 26 The respondent answers by submitting that the statutory provisions are subject to no express or implied limitations, and that even if there were any implied prohibition on affecting the applicants' right to silence, then to afford the applicants an opportunity to offer an explanation or defence does not relevantly affect the right to silence. It is further put on behalf of the respondent that an examination of the history of the legislation makes it clear that there is no inhibition upon exercising the powers granted by ss 28 and 40K of the AFP Act during the pendency of criminal proceedings arising out of the same facts as led to the dismissal. It is contended for the applicants that there is no occasion to, and it is not appropriate to, take the legislative history into account.

decision 27 It is clear that neither s 28 nor s 40K of the AFP Act abrogate the right to silence by compelling the employee to speak, such as is the case with, for example, ss 39, 40 and 40A of the AFP Act and s 7(5) and (6) of the Complaints Act. Put another way, neither of the applicants is obliged to incriminate himself by reason of the opportunity afforded to him. It is argued for the respondent that the dilemma in which the applicants find themselves is no worse in principle than that facing parties in concurrent criminal and civil litigation. There is a long line of authority which establishes that the granting of a stay of civil proceedings in those circumstances is discretionary in the civil court and that the choice of either fully pursuing a civil claim or a defence to a civil claim or not doing so to avoid the risk of self-incrimination is not sufficient in itself to warrant a stay. This line of authority, which is generally seen as commencing with McMahon v Gould (1982) 7 ACLR 202 and, in this Court, Cameron's Unit Services Pty Ltd v Kevin R Whelpton & Associates (Australia) Pty Ltd (1984) 4 FCR 428, has been applied in this Court as recently as the decisions in Chambers v Commissioner of Taxation [1999] FCA 163 and Golden City Car & Truck Centre Pty Ltd v Deputy Federal Commissioner of Taxation (1999) ATC 4779. 28 The general principles applicable in those cases have been held applicable to disciplinary proceedings - Edelsten v Richmond (1987) 11 NSWLR 51, although it needs to be noted that the legislation in question there included s 32W of the Medical Practitioners Act 1938, which provided: "A complaint may be referred to a Committee or the Tribunal, and dealt with by the Committee or Tribunal, even though the registered medical practitioner about whom the complaint is made is the subject of proposed or current criminal or civil proceedings relating to the subject-matter of the complaint." 29 Indeed, Hope JA in Edelsten (in a judgment agreed with by Clarke JA and generally agreed with by Priestley JA) at 59E referred to the following statement by McHugh JA (in a judgment agreed with by the other members of the Court) in Herron v McGregor (1986) 6 NSWLR 246 at 266: "No doubt it is only proper that, while criminal proceedings are pending, disciplinary proceedings should not be brought on for hearing. But this does not dispense with the obligation of the complainant, in the interests of a fair hearing and the public interest, to lodge his complaint. In a proper case it may also be desirable to lodge a complaint with the Board so as to initiate a fitness inquiry under s 30. I see nothing to prevent the Medical Board in an appropriate case from temporarily suspending a practitioner while criminal proceedings are pending if, after hearing him, it thinks that he is not fit to practise. The hearing need not be a full hearing. The rules of natural justice are flexible enough to deal with this situation: Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 at 514-516." Whilst, as Hope JA pointed out in Edelsten at 64B, this passage does not deny the existence of a discretion, it is a significant statement in a situation such as the present. 30 It was put on behalf of the respondent that there is, generally speaking, no inhibition upon an employer dismissing an employee in relation to conduct which is also the subject of incomplete criminal proceedings (Re Locke & Ors; ex parte Commissioner for Railways [1968] 2 NSWR 197; R v British Broadcasting Commission; ex parte Lavelle [1983] 1 WLR 23) and that s 23 of the AFP Act gives to the Commissioner the rights, duties and powers of an employer. The support given for the first proposition in the cases cited is only indirect, but sufficient, in the absence of any countervailing authority, to establish it. These cases, however, also establish that prejudice to the employee by reason of the existence of cognate criminal proceedings is a factor to be considered by an employer in deciding whether to dismiss. Walsh J in Ex parte Commissioner for Railways (supra) at 203 makes clear that the practical rather than the legal position is to be considered. His Honour said: "If such evidence were given in the appeal, then, in a practical sense, Clatworthy could not hope to succeed in his appeal unless he gave evidence. If he did, he would no doubt be cross-examined. It is said that it would have been open to him to refuse to answer any question, the answer to which might incriminate him. So he could, but he could scarcely hope to win his appeal if, by exercising this right, he refrained from giving in full his version of what had taken place." Although said in the context of a merits appeal against dismissal, this statement is apt to apply to an employer's decision whether to dismiss. 31 It was also put that the special nature of employment of a police officer as a member of a disciplined service has often been recognised by the courts - a recent example is the decision of Finn J in Anderson v Sullivan & Ors (1997) 148 ALR 633. This, however, is only a consideration to be taken into account in the exercise of the discretion to dismiss. 32 The applicants rely upon the decision of the High Court in Reid v Howard (1995) 184 CLR 1 to suggest that the line of authority commencing with McMahon v Gould (supra) has given insufficient weight to, and has not fully appreciated the extent of, the privilege against self-incrimination. There is no doubt that Reid v Howard does re-affirm the importance of the privilege against self-incrimination, and does not give any encouragement to think that any devaluation of the principle which may apply in the United Kingdom will be applied in Australia. Toohey, Gaudron, McHugh and Gummow JJ said at 14 (omitting citations): "There is simply no scope for an exception to the privilege, other than by statute. At common law, it is necessarily of general application - a universal right which, as Murphy J pointed out in Pyneboard Pty Ltd v Trade Practices Commission, protects the innocent and the guilty. There is no basis for excepting any class or category of person whether by reference to legal status, legal relationship or, even, the offence in which he or she might be incriminated because, as already indicated, its purpose is the completely general purpose of protecting against "the peril and possibility of being convicted as a criminal". For the same reason, there can be no exception in civil proceedings, whether generally or of one kind or another. Moreover, it would be anomalous to allow that a person could refuse to answer questions in criminal proceedings or before investigative bodies where the privilege has not been abrogated if that person could be compelled to answer interrogatories or otherwise make disclosure with respect to the same matter in civil proceedings." Furthermore, as pointed out by Deane J at 6-7, the privilege extends not only to the risk of incrimination by direct evidence, but also by indirect or "derivative" evidence - evidence obtained by using the disclosed material as a basis of investigation. However, Reid v Howard is distinguishable from the present case because it dealt with the compulsory process of discovery in course of civil proceedings. 33 It was also submitted on behalf of the applicants that the McMahon v Gould line of authority does not sufficiently, if at all, take account of the long line of cases in the High Court and elsewhere concerning interference with the course of justice where matters the subject of a criminal charge are also the subject of a parallel inquiry such as a Royal Commission - see, for example, Hammond v The Commonwealth (1982) 152 CLR 188. 34 In my opinion, there is some merit in the submission that there should be reconsideration of the manner in which the McMahon v Gould line of authority is now applied so as to decide whether too little weight is given to the practical as well as legal prejudice to the accused and to the primacy of criminal proceedings in our justice system. The decision in Reid v Howard (supra) adds force to remarks to this effect by Kirby P (as he then was) in Yuill v Spedley Securities Ltd (1992) 8 ACSR 272 at 274-5. 35 However, any such reconsideration would need to be undertaken either by a Full Court of this Court or the High Court. In any event, it would be unlikely to avail the applicants here. The staying or control of proceedings by a court involves a decision by a court, subject to appeal. Here, the substantive decision is committed by legislation to the respondent, and involves the exercise of a discretion. The weighting to be given to a consideration in the exercise of that discretion is not a matter for a court examining that decision on judicial review. Furthermore, the question of proceedings to restrain contempt of, or interference with, the criminal proceedings does not arise directly in this kind of judicial review application. 36 The only presently operable decision is that to afford the applicants natural justice before the substantive decisions are made. The submissions on behalf of the applicants make clear that the breaches of s 6 of the ADJR Act which are alleged depend upon their establishing the proposition that the use of the substantive power given to the respondent by ss 28 and 40K of the AFP Act in the circumstances here would override the applicants' right against self-incrimination. In my view, that proposition is inconsistent with authority which binds me. In those circumstances, the grounds alleged are not made out. I should indicate that there is nothing in the evidence to establish that the respondent will not take the existence of the criminal proceedings, and their direct and indirect effects, into account in making the substantive decisions in question. Further, there is no sound basis for the argument that the substantive decisions will be unreasonable in the requisite sense. 37 In view of my decision, it is unnecessary to consider whether it would be legitimate to consider the legislative history. It is also unnecessary that I express any view as to the use which can be made of such answers as have been given already by the applicants to the respondent's officers. 38 The application is dismissed, with costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Solicitor for the Applicant: Porter Parkinson & Bradfield

Solicitor for the Respondent: Australian Government Solicitor