Boyce, The Ombudsman v Owen [2000] NTCA 7

[2]

The respondent is a Superintendent of Police. In September 1999 the appellant issued and served a summons upon the respondent to give evidence before the appellant in relation to an investigation which the appellant had commenced into the propriety of the respondent's conduct. The summons indicated that the conduct being investigated involved a police investigation into a suspect which resulted in the issue and execution of a search warrant, in circumstances where the respondent may have been placed in a position of conflict of interest by virtue of a prior association with the suspect and other members of the suspect's family. It was asserted in the summons that the investigation was being conducted pursuant to s16 of the Ombudsman (Northern Territory) Act (the Act) and that the investigation had already been referred to the appellant by the Commissioner of Police.

[3]

The respondent brought proceedings in the Supreme Court pursuant to s30(1) of the Act seeking:

(1) declarations to the effect that the appellant had no jurisdiction to conduct any investigation into that matter;

(2) orders to permanently stay the investigation; and

(3) setting aside the summons.

The matter was heard by Martin CJ who made declarations to the effect that the appellant had no jurisdiction to conduct an investigation into the matter. From that decision, the appellant has appealed to this Court.

[4]

On 1 June 1999, Nikki Voss, the Chief of Staff of the Northern Territory News, sent a facsimile to the Commissioner of Police. The facsimile cover sheet was on the letterhead of the newspaper and read:

Questions in relation to a story we are running.

The second page of the facsimile read (omitting formal parts):

We understand the professional responsibility group has begun an investigation into allegations against police Superintendent George Owen. We understand it relates to him tipping off the subject of a search warrant after signing the search warrant himself.

Can you confirm the incident?

Can you explain what action you are taking and has the officer been suspended?

Please explain the process of the investigation.

Is it dealt with internally or as a criminal offence?

We would like a response to these questions today.

[5]

At the same time a copy of the facsimile was sent by Ms Voss to Jane Munday of the Northern Territory Police Media Section. It is common ground that Ms Munday was employed by the Northern Territory Police Department but is not a police officer. The cover sheet read:

Jane

Questions in relation to a story we are running. This is the talk of town and we have had four calls just this morning on the matter.

Thought I'd save time by sending through questions.

I hear you and Mr Bates are expecting media enquiries.

[6]

On the same day, Ms Munday sent the following response by way of a document headed "Media Release":

RESPONSE TO NT NEWS

From Deputy Commissioner John Valentin.

In reply to your faxed message of 1 June, in which you raise serious allegations relating to the conduct of a Superintendent, Deputy Commissioner John Valentin said this evening that the allegations had not previously been raised and no complaint has been made to the Police Professional Responsibility Unit.

However, Mr Valentin has directed that an enquiry be conducted immediately into the allegations. The Ombudsman will be advised and the results of the inquiry will be the subject of a report to the Ombudsman as soon as possible. Mr Valentin said it would be inappropriate to make further comment until the inquiry is completed.

[7]

On 2 June the Northern Territory News published the following report under the headline "Drug raid tip-off: top cop probed":

Police ordered an enquiry last night into allegations a senior Darwin police officer tipped off a woman that her home was to be raided to search for drugs.

Police ordered the investigation after the Northern Territory News put questions to the NT Police Commissioner Brian Bates raised by police officers and members of the public. It is understood the senior police officer has been accused of contacting the woman after he was asked to sign a drug squad warrant to search the house.

The incident allegedly happened during the past 10 days. Deputy Police Commissioner John Valentin denied last night the police internal affairs squad, the Professional Responsibility Unit, had begun an investigation after disgruntled police made a complaint.

But Mr Valentin later responded to the Northern Territory News by fax, saying he had "directed that an inquiry be conducted immediately into the allegations".

The officer allegedly involved could not be contacted yesterday.

Mr Bates and Mr Valentin refused to explain the process of an investigation.

[8]

On 4 June 1999, the Acting Commander of the Police Professional Responsibility Unit, Acting Commander Manison, formally instructed Acting Superintendent Rennie to investigate the matter which is described in a written memorandum of instruction as a "Complaint Against Police - Northern Territory News". However it appears that Acting Superintendent Rennie began to conduct an investigation into the matter as early as 2 June 1999. On 4 June, an internal document headed "Complaint against Police" was raised about the alleged complaint lodged by Nikki Voss on behalf of the Northern Territory News. According to that document, the "complaint" is alleged to have been received by Senior Sergeant K Colebrook. It has not been suggested that this was in fact the case and the history of the matter to that date makes it clear that this was not in fact the case.

[9]

On 7 June 1999, Acting Superintendent Rennie conducted an interview at the boardroom of the Northern Territory News with Ms Voss, the Managing Director Mr Kennedy, and the Editor Mr Corey. Rennie told those present that he was there "on behalf of the Ombudsman, not the Northern Territory Police, to investigate this matter as a possible criminal offence". It is clear that the Ombudsman had not asked Rennie to conduct that investigation and that in fact, his instructions came from Manison whose instructions came from Valentin. Rennie had no authority to conduct any investigation on behalf of the appellant. Manison had, on 5 June 1999, written to the Acting Ombudsman sending copies of the papers and saying "I do not consider this matter warrants oversight by the Joint Review Committee". On 10 June, the Ombudsman replied accepting that position. The Joint Review Committee consists of a representative of the Ombudsman and the Commissioner of Police and one of its principal functions is to oversee and review certain investigations (but not all) made by the police into complaints against the police. Rennie told those at the meeting that "the NT News had been made the complainant in this matter with the Ombudsman". No comment was made about this by those present. The evidence is that to this point no complaint had been made to the appellant. Rennie sought information from those present as to the persons who supplied the story to the newspaper and whether any further information had come to hand. Those present gave no useful information to him. I should add that Rennie's investigation with police members other than the respondent had so far revealed that the matter which led to the issue of a search warrant related to a police investigation into the involvement of a juvenile into a number of breaking and enterings; that the investigation began at the instigation of the juvenile's mother who had contacted the respondent, and that the respondent rang the mother to make sure that she was home when the search was conducted. The respondent's version was slightly different. According to his account, the child's mother was a family friend. He heard that the child's name had been mentioned by other juvenile offenders as being involved in house break-ins. He asked the child's mother if the child had been behaving differently or had been in the company of anyone she did not know. She indicated to him that she was not aware of any problems. He passed the information he had to Sergeant Sidoli, who is in charge of the Special Crimes Unit. Subsequently he was asked to approve a search warrant on the child's home. He rang the child's mother to inform her that the police wanted to speak with the child and arranged for her to go home for this purpose. He did not mention to her that the police had obtained a search warrant. The mother, who was also interviewed, gave a similar account to that of the respondent.

[10]

On 18 June 1999, Deputy Commissioner Valentin wrote to the Deputy Ombudsman advising him that the investigation had been completed and enclosing copies of all the statements obtained. He wrote:

It is my view...that the allegation as made by the Northern Territory News is without foundation...

However...I would be grateful for your independent consideration of the attached material...[and] for your earliest advice on whether or not you consider the particular allegation can be sustained. I would be also keen for any advice you may be able to provide on publishing the outcome of your review...

[11]

On 3 September 1999, Superintendent Svikart informed the respondent that the matter had been referred to the appellant for review; that the appellant had decided that the matter needed further investigation and that the witnesses, including the respondent, would be re-interviewed. Subsequently, the respondent indicated through the Northern Territory Police Association that the Ombudsman had no jurisdiction to investigate the matter, and that he did not intend to attend any interview. Concerns were also expressed as to whether natural justice was being afforded to the respondent. This led to the issue of the summons mentioned in paragraph [1] above, which was served on the respondent, together with an accompanying letter to the effect that:

(1) the request to re-interview was made pursuant to the Ombudsman's discretion to conduct informal inquiries for the purpose of determining whether the matter could be resolved without the need for an investigation pursuant to s17(A) of the Act;

(2) as the respondent had declined to be re-interviewed, the Ombudsman had decided to invoke his formal investigative functions under s16 of the Act.

[12]

The jurisdiction and functions of the Ombudsman are contained in Part III of the Act. Section 13 provides that subject to the regulations, the Act applies to "all departments and authorities". We were not referred to any regulations affecting this matter. The word "department" is defined by s3(1) to include the Police Force of the Northern Territory. Section 3(3) provides that references to a department includes "references to the principal officer and other officers, members and employees thereof".

[13]

Section 14 of the Act provides (relevantly):

(1) Subject to this Act, the functions of the Ombudsman are -

(a) to investigate any administrative action taken by, in or on behalf of any department or authority to which this Act applies; and

(b) to investigate any action taken, or refusal or failure to take an action, by a member of the Police Force of the Northern Territory, whether or not that action was an administrative action, where that action was, or was purported to be, for or in connection with or incidental to the exercise or performance of that member's powers, duties or functions as a member of the Police Force.

(2) The Ombudsman shall not investigate a matter in pursuance of subsection (1)(b) unless that matter -

(i) not made by a member of the Police Force or by a person who is, within the meaning of the Public Sector Employment and Management Act, an employee under the direct control of the Commissioner of Police;

(ii) made, subject to section 17(3), by the person aggrieved to a member of the Police Force;

(iii) concerning a member of the Police Force other than the member to who it is made; and

(iv) referred to the Ombudsman by the Commissioner of Police;

(b) is or is alleged to be an action taken by a member of the Police Force in consequence of such a complaint so referred; or

(c) is the subject of a complaint concerning a member of the Police Force made direct to the Ombudsman.

(3) As soon as practicable after a complaint about an action referred to in subsection (1)(b) is made to a member of the Police Force, that member shall refer the complaint to the Commissioner of Police who shall, as soon as practicable, refer it to the Ombudsman.

(3A) Where a complaint concerning a member of the Police Force is made direct to the Ombudsman, the Ombudsman shall, before carrying out an investigation, refer the complaint to the Commissioner.

(3AA) Subject to subsection (4), if the Ombudsman and the Commissioner of Police have agreed on administrative arrangements relating to the manner in which complaints referred to the Ombudsman pursuant to subsection (3) may be dealt with, any complaint referred to the Ombudsman in pursuance of that subsection shall be dealt with in accordance with those arrangements.

(4) Where the Ombudsman investigates a matter in pursuance of this section -

(a) his power to investigate the complaint referred to him by the Commissioner of Police includes a power to investigate any action taken by a member of the Police Force in consequence of that complaint; and

(b) for the purposes of the application of this Act, he shall investigate the matter as though -

(ii) the complaint referred to him by the Commissioner of Police was a complaint made by the complainant to the Ombudsman under this Act and received by the Ombudsman on the date on which it was received by the member of the Police Force to whom it was made, but the Ombudsman is not required, in pursuance of section 19(1)(a), to inform the Commissioner of Police of his intention to conduct the investigation.

[14]

The word "complaint" is not defined, but "complainant" is defined by s3(1) to mean:

the person or body who or which makes a complaint under this Act and includes the person or body aggrieved where the complaint is not made by the person or body aggrieved.

[15]

Section 16 deals with "Other Investigations" and provides:

(1) Any investigation that the Ombudsman is authorized to conduct under this Act, other than pursuant to section 15, may be conducted either of his own motion or on a complaint made in accordance with section 17 or referred to him by the Commissioner of Police pursuant to section 14(3).

(2) An investigation of a complaint made under this Act relating to an action of a department or authority to which this Act applies may proceed, notwithstanding that the complaint may not on its face appear to be in respect of any administrative action taken by that department or authority, if, in the opinion of the Ombudsman, there is a likelihood that the cause for complaint arose from or as a result of such an administrative action.

[16]

Section 17 provides:

(1) Subject to this section, any person or body, whether incorporated or unincorporated, may make a complaint to the Ombudsman under this Act.

(2) A complaint that could be investigated under this Act shall, if the Ombudsman so directs, be made in writing by the person or body aggrieved but no special form shall be required to make a complaint.

(3) Where the person by whom a complaint might have been made (being a complaint that could be investigated under this Act) has died or is, in the opinion of the Ombudsman, unable to act for himself, the complaint may be made on his behalf by his personal representative or by any other person who is, in the opinion of the Ombudsman, suitable to represent him.

(4) The provisions of any law now or hereafter in force in the Territory prohibiting or restricting or authorizing or requiring the imposition of prohibitions or restrictions on communication between any person and any other person shall not apply to any communication or to any proposed communication between any person and the Ombudsman for the purpose of making a complaint under this Act and any person having the right or being under a duty to keep in custody or to detain in any place a person who desires to make a complaint under this Act shall take all necessary steps to facilitate the making of the complaint.

Was there a "complaint" made by an "aggrieved person" to a member of the Police Force?

[17]

The first matter raised by the appellant was that the learned Chief Justice was wrong in fact and in law in deciding that there was no valid complaint made by an aggrieved person to a member of the Police Force and that consequently, there was no power in the Ombudsman to investigate this matter.

[18]

I accept that a complaint, to be valid, need not be in writing. The appellant asserts that the Northern Territory News, or Nikki Voss, or both, lodged a "complaint". I am unable to accept this contention. I consider that the word "complaint" is used in the sense "to state a grievance or make a formal accusation". (see The Macquarie Dictionary, 3rd Edn., 1997, "complain".) I agree with Martin CJ that none of the material emanating from the Northern Territory News stated a grievance or made a formal accusation. As his Honour put it:

All the material is predicated upon an allegation made by an unidentified person or persons to the reporter; the reporter makes no allegations. To use the newspaper vernacular, the reporter had received a "tip-off" that something was a fact and she made enquiries for the purposes of the newspaper, the police responded by commencing an internal investigation, but not in response to a complaint within the terms of the Act.

[19]

It was suggested by Ms Layton QC for the appellant, that there was a complaint made to the Ombudsman when Acting Superintendent Rennie interviewed the Northern Territory News staff. As Rennie had no authority to act for the appellant, this contention is unsound. In any event, the statement made by Rennie was not responded to. There is nothing to indicate that the staff wanted to make a complaint to anybody. I do not consider that in the circumstances of this case that it can be inferred from the silence of the staff that they wished to make a complaint as the matter was put to them by Rennie as a fait accompli.

[20]

I also agree with Martin CJ that neither the Northern Territory News nor any of its staff were a "person aggrieved". Section 17(3) of the Act recognises one situation where a complaint may be made by someone other than the person aggrieved, but that is not this case. Clearly, whatever meaning is given to "person aggrieved", that person must have an interest in the subject matter of the complaint beyond that of any ordinary member of the public: see Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health and Another [1995] FCA 1060; (1995) 128 ALR 238 at 251-2 per Lockhart J; North Coast Environment Council Inc v Minister for Resources [1994] FCA 1556; (1994) 55 FCR 492 at 506-7, per Sackville J. There is nothing to show that the alleged complainants had any interest in the matter other than to get a good story and publish it to the world. Newspapers and journalists have never been held to have an interest higher than that of ordinary members of the public merely because they are newspapers or journalists. It is well known that journalists are bound by the ethics of their profession to protect their sources, and that many journalists have refused to divulge their sources even when compelled by courts to do so. What would be the point of a police investigation of a complaint from an anonymous source if the true complainant could not be identified?

[21]

Part of Ms Layton QC's interesting argument was predicated upon an argument that anybody could have made a complaint direct to the Ombudsman pursuant to s17(1) of the Act, relying on the jurisdiction contained in s14(1)(a) or (b) of the Act: see s17(1) and s14(2)(b). There is nothing to be gained by trying to give the expression "person aggrieved" a meaning which is so broad that any member of the public could complain about an alleged serious wrong-doing by a member of the Police Force merely because the wrong-doing is allegedly serious. Clearly there are policy reasons why complaints made to the Ombudsman about individual members of the Police Force can be made by anybody, whilst complaints made to the Police can only be made by aggrieved persons, and one reason why this is so is that the Ombudsman has wide coercive powers of inquiry, including the power to compel any person (whether a public servant, police officer, or ordinary member of the public) to give evidence and produce documents: see s20(1) of the Act, whereas police have no such coercive powers. The policy of the Act would seem to be, however, that if a complaint is made direct to the Ombudsman, it must in the first instance be referred to the Commissioner vide s14(3A), presumably so that it can, in the first instance, be investigated by the police. If the result of that investigation reveals the need for the coercive powers of the Ombudsman to be used, the Ombudsman may investigate the matter himself. The Act does not deal with informal complaints or information coming to the notice of the police which is not a "complaint", but there is nothing to prevent the police from investigating any matter internally no matter how it comes to their notice.

Was there power to investigate under section 17?

[22]

The short answer is that no complaint of any kind was, on the facts of this case, made to the Ombudsman. The procedures adopted by the Police, in involving the Ombudsman, did not amount to the making of a complaint to the appellant. Clearly the reason for involving the Ombudsman was because either the Police thought they were obliged to consult the appellant, or at least keep him informed because of the provisions of paragraph 2.4 of the Joint Review Committee's Administrative Guidelines, or perhaps because of a mistaken view that s14(2)(iv) of the Act applied, or perhaps for their own reasons not connected with the Act at all. Further, there is no evidence that the Ombudsman complied with s14(3A) of the Act.

Was there power to investigate under section 16?

[23]

The Chief Justice had held that the power of the appellant to conduct investigations of his own motion under s16(1) does not give jurisdiction to investigate matters which the Ombudsman cannot investigate because of s14(2). The argument of Ms Layton for the appellant is that the words in s16 "any investigation that the Ombudsman is authorized to conduct under this Act..." includes investigations under both s14(1)(a) and s14(1)(b). This is undoubtedly correct. However, the power to investigate matters under s14(1)(b) is limited by the provisions of s14(2). Ms Layton QC's submission was that s16(1) was an additional source of power and should not be read down as being subject to the limitations provided by s14(2). She submitted that whether there was an investigation under s14(1) or s14(2) there was a requirement for there to be a complaint, and there was no logical reason why s16(1) should be read down because of s14(2). Alternatively, it was put that s14(2) was merely a directory provision.

[24]

I am unable to accept either of these propositions. First, in my opinion s14(2) is not a directory provision. It is a provision which clearly provides a jurisdictional limitation to the Ombudsman's investigative powers. The words "the Ombudsman shall not investigate a matter..." in s14(2) cannot be read as merely directory. Whilst "shall" can have many different meanings, "shall not..unless" is perfectly clear. Further, the power to investigate under s14(1)(a) or (b) is "subject to this Act", i.e. subject to s14(2). If added support were necessary that s14(2) provides a limitation on jurisdiction, s14(1) and s14(2) are contained in Part III of the Act which is headed "Jurisdiction and Functions of the Ombudsman".

[25]

I agree with the conclusion reached by the Chief Justice that s16(1) must be read subject to s14(2). Clearly the Act has special provisions dealing with complaints against the Police which do not apply in the case of other complaints. It is a well known rule of construction of a statutory instrument that generally speaking, a general provision must be read subject to a special provision: generalia specialibus non derogant: see the discussion in Pearce & Geddes, Statutory Interpretation in Australia, 4th Edn., para 4.24. It would be inconsistent with s14(2) to interpret s16(1) in such a way as to permit an "own motion" investigation into a matter in respect of which the Ombudsman has no jurisdiction because of s14(2).

[26]

In conclusion, I consider that the Chief Justice was correct and I would dismiss the appeal with costs.

[27]

I agree with the judgment of Mildren J in this matter and have nothing further to add.