Bradley v The Commonwealth

After a detail of certain charges said to have been laid against persons, the names of which had been obliterated, the following appeared: "During all the telephone calls girls were offered for incalls and outcalls. The location of the premises was given over the phone along with the charges that apply. During investigations by police it has been established that persons who that address or that ring up for an outcall receive sexual favours for a sum of money.

The solicitors responded in a letter dated 16 September 1992. The letter said, inter alia: "The following factors should be considered, on the information currently provided by you: 1. There is not indication that our client is aware of the relevant premises being used for the purpose of prostitution or that he is aware of the relevant telephone services being advertised and/or utilised in connection with prostitution related offences. 2. On our understanding of the Prosecution case in relation to imminent committal proceedings, no one was interviews by members of the Queensland Police Service at the time that they executed the search warrant at 167 Logan Road, Buranda on the 24th July 1992. 3. There is no evidence to indicate that the relevant telephone numbers have ever advertised in relation to prostitution. 4. Our client has not been convicted of any offence relating to prostitution at the relevant address. 5. At the time of the execution of the relevant search warrent no telephones were taken possession of by the police from the premises at 167 Logan Road, Buranda. I also refer to the 'information provided by Queensland Police to (Telecom) on 4 August 1992'. At page 2 and in the third paragraph that begins 'On the 24th of July 1992...', reference is made to the premises being 'suspected' of being used for the purpose of conducting prostitution businesses. We would request that you provide us with the information on which such suspicion has been based. On the same page of that document in the paragraph beginning 'As a result of this investigation...', reference is made to 'evidence of prostitution related activities' being gained. We would request you to inform us of the alleged evidence that was gained. Until this addition material is provided we cannot properly show cause as requested by you. We have done the best we can in the absence of such information but request that you do provide the information referred to above. Finally, we are instructed that no person has been convicted of any prostitution related activity at the premises at 167 Logan Road, Buranda." The decision to disconnect was thereafter made.

On 14 April 1993, Mr Bennett furnished a statement of reasons for his decisions to disconnect the telecommunications services from the premises. That statement included the following findings of fact: "Findings on Material Questions of Fact 1. that the telecommunications services listed above were connected to the premises located at 167 Logan Road. 2. that those premises had been found by Police to be in use for the provision of prostitution. 3. that it was therefore likely that those telecommunications services had been in use in connection with the provision of prostitution. 4. that those telecommunications services had been advertised in connection with the provision of "escort services" which is a euphemism for prostitution. 5. that it was probably that the telecommunications services would be used in the future in connection with the provisions of prostitution. 6. that the provisions of prostitution in Queensland is likely to be or to involve the commission of an offence against the laws of Queensland. 7. that Telecom could only prevent the telecommunications services from being used in or in relation to the commission of such offences in the future by disconnecting the telecommunications services." The statement continued by advancing these reasons: "I considered that the information provided by the Queensland Police in their document of 4th August 1992 was, prima facie, a basis for exercising the power under section 47 of the Telecommunications Act 1991 to disconnect the services. ... In reaching my decision which was communicated to Robertson O'Gorman on 29 March 1993 I had regard to the information and request received from the Queensland Police Service on 4 August 1992 and the factors referred to in the correspondence from Robertson O'Gorman dated 16 September 1992. I have not caused any investigations to be carried out to corroborate the allegations contained in the information provided by the Queensland Police in their document of 4th August 1992. In relation to the factors raised by Robertson O'Gorman in their correspondence dated 16 September 1992, I determined that this information was insufficient to persuade me that the telephone services were not being used in, or in relation to, the commission of offences related to prostitution. Specifically, I am aware, in my experience with Telecom Protection Services, that terms such as "Relaxation Centre" and "escort services", as used in the advertisements pertaining to these telephone services, are frequently euphemisms for establishments which provide prostitution services."

Mr Bennett's statement then went on to indicate that he had taken into account that "no particular innocent use of the telecommunications services by Kendall was alleged" and that he did not consider the respondent's allegation that no person had been convicted of a prostitution-related offence in connection with the premises or the telephone services to be determinative of the question which he had to resolve. There statement of reasons then concluded: "I conclude that the information by the Queensland Police was sufficient to allow me to form a belief that the telephone services had probably been used in, or in relation to, the commission of offences against the laws of Queensland. On the basis of the Yellow Pages and newspaper advertisements which listed the telephone numbers in association with escort type services, I concluded that, had the services been used in, or in relation to, the commission of such offences in the past, they were likely to be used in, or in relation to, the commission of similar offences in the future. I interpret Section 47(1) of the Telecommunications Act 1991 to impose an obligation upon all carriers, including Telecom to prevent the network or facilities being used in, or in relation to, the commission of offences against the Commonwealth, States or Territories. This obligation requires Telecom to disconnect any service if it appears on the balance of probabilities that, unless the service is disconnected, it will be used in or in relation to the commission of offences against the laws of the Commonwealth, a State or Territory. It is not necessary that it be used only for that purpose by any particular person, or necessarily by the person who would commit the offence. I considered that, as the telecommunications services were still being advertised in relation to "escort services", and as there was no suggestion in the submission received that there had been any change in the use of the premises since the occasion when they were visited by the Police, it was probable that, unless they were disconnected, the services would be used in the future in relation to the provision of prostitution other then by individual prostitutes working alone. I understand that is likely to involve the commission of an offence or offences against the laws of Queensland. I did not identify any particular offence which was likely to be committed by any particular person, and did not consider that it was necessary for me to do so. I believed that the only means available to prevent such use of the network or its facilities in this case was to disconnect the specified telephone services. On 29th March 1993, I determined to take that course of action and notified the subscriber accordingly."

In an affidavit filed in the proceedings, Mr Bennett said that he was aware that the relevant telecommunications services were listed in both the 1991 and the 1992 editions of Telecom's Yellow Pages in connection with the provision of escort services. Prior to the decision being made he had been furnished with extracts from a copy of the Melbourne Truth Newspaper of 6 June 1992 in which the telephone services were advertised in association with the provision of escort services. He said, in his affidavit, that he believed, based on his experience at Telecom Protective Services, and "as a matter of general knowledge" the terms such as "relation centre" and "escort services", as used in the advertisements pertaining to the services, were "frequently euphemisms for establishments which provide prostitution services". The affidavit makes it clear that the advertisements formed an important link in Mr Bennett's decision-making process. That is also made clear from Mr Bennett's statement of reasons provided in accordance of s.13 of the Administrative Decisions (Judicial Review) Act ("the ADJR Act") which has been set out above. Before the learned primary Judge the respondents successfully attached the decision on the ground that s. 47 of the Telecommunications Act 1991 ("the Act") does not confer on Telstra a power to disconnect services. That section provides: "47. (1) AUSTEL, the carriers, and the persons who supply eligible services, must, in exercising their respective powers, do their best to prevent telecommunications networks and facilities operated by carriers, or by such persons, from being used in, or in relation to, the commission of offences against the laws of the Commonwealth and of the States and Territories. (2) AUSTEL, the carriers, and the persons who supply eligible services, must give to officers and authorities of the Commonwealth and of the States and Territories such help as is reasonably necessary for any of the following purposes: (a) enforcing the criminal law and laws imposing pecuniary penalties; (b) protecting the public revenue; (c) safeguarding national security. (3) AUSTEL is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in performance or purported performance of the duty imposed by sub-section (1) or (2). (4) A carrier is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith: (a) in performance or purported performance of the duty imposed by subsection (1) or (2); or (b) in compliance or purported compliance with a condition of a general telecommunications licence or public mobile licence held by the carrier, being: (i) a condition that is expressed to have the purpose of giving effect to subsection (1) or (2); or (ii) a condition of the kind referred to in paragraph 63 (4)(m); or (c) in compliance or purported compliance with a direction that AUSTEL has given in good faith: (i) in performance or purported performance of the duty imposed by subsection (1) or (2); or (ii) under the condition of the kind referred to in paragraph 63(4)(m). (5) A person who supplies eligible services is not liable to an act action or other proceeding for damages for or in relation to an act done or omitted in good faith: (a) in performance or purported performance of the duty imposed by subsection (1) or (2); or (b) in compliance or purported compliance with a condition included in a class licence under which the person supplies eligible services, being a condition that is expressed to have the purpose of giving effect to subsection (1) or (2); or (c) in compliance or purported compliance with a direction that AUSTEL has given in good faith: (i) in performance or purported performance of the duty imposed by subsection (1) or (2); or (ii) under a condition of a kind referred to in paragraph (b) of this subsection. (6) An officer, employee or agent of AUSTEL, of a carrier, or of a person who supplies eligible services, is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in connection with an act done or omitted by AUSTEL, the carrier, or the person, as mentioned in subsection (3), (4) or (5), as the case may be. (7) Nothing in this section limits the generality of anything else in it. The learned primary Judge's conclusion that s.47 does not empower Telstra (which is a "carrier" within the meaning of the section) to disconnect a service which is being, or has been, used in or in relation to the commission of offences, was expressed in these terms: "Ultimately, my conclusion is that s.47 does not carry the power to disconnect services. The section, in terms, simply requires the names persons "to do their best" to prevent telecommunications networks and facilities from being used in or in relation to the commission of offences. If, having regard to the considerations counsel for the respondent referred to concerning the proscriptions on supervision of the use of telephone facilities in a particular case or in particular circumstances, and that as a consequence, what s.47 (really) means is the name persons are under a statutory obligation to disconnect a telecommunications service if there is a belief honestly entertained that the service is being used in or in connection with the commission of offences, the section could have said so, and said so plainly. The requirement is for the named persons to "do their best" to prevent the use of Telecommunications networks and facilities in a particular way. Having regard to the importance of the provision of telephone services to citizens generally, I find it unnecessarily constraining to have to interpret this provision as requiring not the prevention of a particular use, which is what the section in fact says, but the denial of telecommunications networks and facilities completely: see Bradley v Commonwealth (1972) 128 CLR 557." For the appellant, it has been argued that a carrier's decision to disconnect a service to prevent its use in relation to breaches of a State law is authorized by cl. 7.3(1)(x) of the General Conditions forming part of the Tariff of Basic Carriage Services ("BCS") made pursuant to s.200 of the Act. Section 200 is in these terms: "(1) Subject to any express provision of this or another Act, the terms and conditions on which a carrier supplies a telecommunications service to a person (including a person who is not authorised by the carrier to use the service) are:

(a) so far as the carrier and the person agree on the terms and conditions on which the service is supplied - the agreed terms and conditions; and (b) if the carrier and the person do not agree on terms and conditions but terms and conditions are set out in a BCS tariff of the carrier that is in force and in which the service is included - the terms and conditions so set out, so far as they are applicable to the supply of the service. (2) To avoid doubt, but without limiting subsection (1), a reference in that subsection to terms and conditions includes a reference to terms and conditions about charges for a telecommunications service." Clause 7.3 of the BCS Tariff Stipulates, so far as is relevant: "Cancellation of Service (a) Telecom may discontinue provision of a telecommunications service: ... (x) in accordance with the provisions of the "Telecommunications Act 1991 and the Australia and Overseas Telecommunications Corporation Act 1991: or (xi) if the Customer breaches any term or condition of the Tariff." Mr Bennett invoked cl 7.3(a)(x) as supporting his decision by taking the view that disconnection of the telephone services was "in accordance with one of the provisions of the Telecommunications Act", ie s 47(1), because it was an exercise of a power conferred by that sub-section. That implication was supported by Mr Keane QG, who appeared with Mr Sheahan for Telstra on this appeal. However, we are unable to accept the argument. Section 47(1) should not be construed as itself conferring a power because the exhortation to AUSTEL, the carrier and others to "do their best" to prevent facilities from being used in the commission of offences is expressly conditioned by the phrase "in exercising their respective powers". That compels one, on a proper construction, to look elsewhere to identify the respective powers. The preferable construction we consider to be that the duty is to be discharged in the exercise of whatever powers are extrinsically conferred either expressly or by implication on the entity expressed to be subject to the duty. Mr Keane also suggested that cl 7.3(a)(x) of the BSC Tariff might itself be regarded as the source of the requisite power. However, even if Telstra could by promulgation of a tariff, create for itself an independent source of power, it has not purported to do so by cl 7.3(a)(x). That sub-paragraph expressly requires statutory authorization as a condition of the exercise of the power. The need in this context to find an express power in Telstra to discontinue or withhold a service is reinforced by its being subject, as the "universal carrier for Australia" as defined in s 291 of the Act, to the "universal service obligation" imposed by s 288(1)(a) and (b): "... (a) to ensure that the standard telephone service is reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and (b) to supply the standard telephone service to people in Australia." In Bradley v The Commonwealth (1973) 128 CLR 557, which was cited by the learned primary Judge, a similar general obligation in relation to the delivery of mail was held by the majority to require clear words before an exception would be carved out of it which amounted to an unfettered and general power to withhold the provision of the service. An express grant of power to a carrier to discontinue or refuse the supply of services to a subscriber is contained in s 281 of the Act but that power can only be exercised to avert a threat to the safety or proper functioning of the network or the safety of any person. Moreover, it is hedged about with strict procedural requirements enabling the subscriber to obtain a speedy review by AUSTEL of the carrier's decision to discontinue or refuse the supply of services. Another slight indication that s 47(1) does not itself contain a grant of power to a carrier to disconnect services is that it takes its place in Part 4 of the Act dealing with the establishment, functions and powers of AUSTEL, the body corporate to regulate the Australian telecommunications industry. The common general grant of power to AUSTEL to "do all things necessary or convenient for, or in connection with, the performance of its functions" is contained, not in s 47, but in s 45 of the Act. A less direct exercise of power which could support the disconnection of services to prevent their use for criminal purposes is available by way of cl 7.3(a)(xi) of the BCS Tariff which has been promulgated in accordance with s 190(7)(f) and (12) of the Act. Cl 7.3(a)(xi), it will be recalled, gives Telstra a discretion to discontinue the provision of a service "if a Customer breaches any term or condition of the Tariff". Doubtless mindful of the exhortation in s 47(1) of the Act, Telstra has exercised its power to include in the BCS Tariff the following clause: "4.3 Unlawful Use The Customer shall not use, or suffer or permit another person to use, a telecommunications service provided by Telecom in, or in relation to, the commission of an offence against the laws of the Commonwealth or of the States or Territories."

However, there can be no suggestion that Mr Bennett's decision was based on a contravention of that clause as supporting the discontinuance of services under cl 7.3(a)(xi) because he made no finding as to who was the "customer" or whether the "customer" had used, or suffered or permitted the use by another, of the relevant service in the proscribed way. For these reasons, we are unable to uphold the contention of the appellants that the decision to disconnect the services was taken in exercise of a power conferred by s 47 of the Act. This is sufficient to dispose of the appeal but out of defence to the careful arguments advanced by Counsel in relation to the remaining grounds of appeal we shall proceed to consider those grounds. The appellant's second attach concerns the finding that the decision-maker, Mr Bennett, failed to accord to Mr Kendall procedural fairness in arriving at the conclusion that the relevant telephone services had: "... been advertised in connection with the provision of escort services which is a euphemism for prostitution." The gravamen of the complaint is that Mr Bennett did not inform Mr Kendall of his intention to arrive at the conclusion or give Mr Kendall an opportunity to make submissions concerning the basis of it. The learned trial judge held that the conclusion was such an important part of Mr Bennett's process of reasoning that procedural fairness required that it be communicated to Mr Kendall. It was not, his Honour said, self-evident. The parties were not at issue on the relevant legal principles. It was agreed that the present was not a case where the common law doctrine of natural justice was excluded so that, to paraphrase the language of Mason J in Kioa v West (1985) 159 CLR 550 at 582, Mr Kendall was entitled to know the case sought to be made against him and to be given an opportunity of replying to it. As Mason J pointed out in the same decision (at 584-585): "What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting." Put in another way, the content of the obligation to afford procedural fairness must depend upon all of the circumstances of the case. It is clear that procedural fairness does not necessarily require a decision-maker to bring to the attention of a person affected the precise detail of all matters upon which he or she proposes to rely: McVeigh v Willarra Pty Ltd (1984) 6 FCR 587 at 600-601. However, as Kioa v West itself indicates, a general and unfocussed invitation to make submissions will be inadequate. Counsel for Mr Kendall specifically disavowed the proposition that procedural fairness required that copies of the relevant advertisements taken into account be forwarded to the solicitors for their comment. The gravamen of the case was that procedural fairness required that the solicitors to told that it was Mr Bennett's view that escort services were a euphemism for prostitution. Presumably the submission was put in that way because all of the advertisements in question were advertisements placed by Mr Kendall who presumably had to be aware of their contents. In part this is reinforced by the fact that the advertisements had been described (other than those in the Yellow Pages) in the statement of the plain clothes senior constable referred to earlier and there was no suggestion in the letter from the solicitors that they had any difficulty understanding the nature of the advertisements. Rather, the point being made was that there had not as such been any advertisement in relation to prostitution. As has already been indicated, the learned trial judge took the view that the conclusion that the expressions "escort services" and "Relaxation Centre" were "euphemisms for prostitution" was an important part of Mr Bennett's process of reasoning. It was not communicated to the applicant to enable the applicant to make submissions and, in consequence, there had been a breach of the requirements of procedural fairness. With respect to his Honour, once it is conceded that there was no need to forward a copy of the relevant advertisements because these were known to the applicant, the rules of procedural fairness do not require that the decision-maker communicate specifically the conclusions which the decision-maker may seek to draw from them. If those conclusions were so unreasonable that no reasonable decision-maker could draw them, then the decision would be subject to attack for that reasons, rather than for the reasons that the applicant was not afforded procedural fairness. In the present case,the applicant did not reply by making it clear that the advertisements themselves were not advertisements for the use of the telephone services for prostitution; in the solicitor's letter of 16 September 1992, referred to earlier in these reasons, it was asserted that "there was no evidence to indicate that the relevant telephone numbers have ever been advertised in relation to prostitution". The decision-maker, in forming his decision, took this into account, together with the other information contained in the copy letter from the Police and the solicitor's response. It follows that the applicants have not made out a case that the decision was vitiated for lack of procedural fairness. The next attack was founded upon s.5(1)(e) of the ADJR Act, read in conjunction with s.5(2)(e), namely, that the decision was vitiated because it was an exercise of a discretionary power at the direction or behest of another person. This matter was dealt with quite briefly in the judgment appealed against. His Honour said: "Serious disputes of fact emerge in the material between the generalised letter of 2 August 1992 and the response on behalf of the applicant. No attempt was made to resolve these difficulties and I think on a fair reading of the reasons of Mr Bennett, his decision was based simply on the fact that he was told by the police that they had evidence in connection with the services and that was good enough for him. He did not independently address the question of whether telecommunications network or facilities were being used in relation to the commission of offences against a law of the state." There is a fine line between saying that a decision-maker has taken into account as evidence what is said by another person in arriving at his or her conclusion and saying that the decision was one made at the direction or behest of another. What is encompassed by the ground referred to in s.5(2)(e) of the ADJR Act is the case where the decision-maker gives no real independent attention to the discretion which is conferred upon him or her, so that the exercise of discretion is really the exercise of that discretion by some other person. In the present case, the decision under challenge was the decision to disconnect the service. That was not a decision made by the Police; it was a decision made by Mr Bennett. In making that decision, Mr Bennett took into account as a factor in the decision-making process what the Police said had been revealed by their investigations. He was entitled so to do. There was no obligation placed upon Mr Bennett to conduct an independent investigation into the use of the services for prostitution. He was entitled to take into account as evidence what he had been told by the Police. He certainly did not act at the direction of the Police. The word "behest" is defined in the Oxford English Dictionary, 2nd Ed, relevantly as "a command, injunction, bidding", stemming from middle English where its meaning was "to command". This is consistent with its meaning as given in the Macquarie Dictionary, 2nd Revised Ed. of "bidding or injunction; mandate or command." In the context in which it appears in the ADJR Act, the word "behest" can not simply be a substitution for request. Both words are used against the background of the ordinary administrative law principle that, for a discretion to be valid it must be a real exercise of discretion by the decision-maker, not a acceptance by the decision-maker of a direction by some other person to whom the making of the decision has not been entrusted: cf The Queen v Anderson; Ex parte Ipec-Air Pty Limited (1965) 113 CLR 177 at 189 per Kitto J. There is not evidence to suggest that this was other than a genuine exercise of discretion by Mr Bennett in the present case. The final matter is whether the decision appealed against was correct in concluding that Mr Bennett: "... improperly placed an onus on [Mr Kendall] to satisfy [Telstra] that the subject telecommunications services had not been used in or in relation to the commission of offences." The apparent basis of the challenge was s.5(1)(f) of the ADJR Act, namely, that the decision involved an error of law. With respect, the question is not one where the concept of onus has any relevance. There was material before Mr Bennett in the form of the statement from the Police officer from which the conclusion could be drawn that the telecommunication services in question were used for the purposes of prostitution. Properly Mr Bennett formed the view that he should afford to the applicant the right to put submissions in reply to the material from the Queensland Police Service. That reply having been given, Mr Bennett was obliged to consider the whole of the material before him in forming a view whether the services were likely to be used in or in relation to the commission of offences. This he did and concluded, as he was entitled to do on the material, that they were. No error of law appears from his so doing. As the decision was, however, one that Mr Bennett had no power to make relying upon s.47 of the Act, it follows that the appeal must be dismissed with cost. I certify that this and the preceding eighteen (18) pages are a true copy of the reasons for judgment of the Court. Associate: Date: Counsel for the appellant: Mr P A Keane QC with Mr J Sheahan Solicitors for the appellant: Mallesons Stephen Jaques Counsel for the respondent: Mr D O'Gorman Solicitors for the respondent: Robertson O'Gorman Dates of Hearing: 9 November 1994 Brisbane 31 January 1995 Melbourne