(f)any other proceeding (not being a proceeding by way of a prosecution for an offence) in so far as it relates to alleged misbehaviour, or alleged improper conduct, of an officer of the Commonwealth or of a State...".
"Police disciplinary proceeding" means "a disciplinary proceeding, before a tribunal or body that is responsible for disciplining members of the Australian Federal Police or officers of a Police Force of a State...": s.5. In the case of the AFP, the tribunal responsible for disciplining members is the Federal Police Disciplinary Tribunal established by Part VI of the Complaints (Australian Federal Police) Act 1981 (Cth).
Submissions
Mr Aldridge, who appeared for the applicant, argued that the definition of "permitted purpose" was exhaustive of the circumstances in which the Commissioner could use the subject information. The fundamental policy underlying the prohibition contained in s.67, was that intercept information was to be used for strictly limited purposes, carefully defined in the Intercept Act itself. Otherwise its use was forbidden.
Mr Aldridge submitted that paragraph (b)(i) of the definition of "permitted purpose" was not satisfied in the present case, because a decision not to appoint or reappoint an officer was different from an investigation or inquiry into alleged misbehaviour or alleged misconduct. The use of the subject material in making that decision was not use for "a purpose connected with...an investigation of, or an inquiry into, alleged
misbehaviour, or alleged improper conduct".
Mr Robberds QC, who appeared with Mr Howe for the Commissioner, accepted that the effect of s.67 of the Interception Act was that the Commissioner had to demonstrate that he had made use of the subject material for a "permitted purpose" as defined. As Mr Aldridge had anticipated, Mr Robberds relied principally upon paragraph (b)(i) of the definition of "permitted purpose" to support the submission that the subject material had been used for a permitted purpose. He submitted that, in considering whether the applicant should be appointed (or reappointed) as a non-commissioned officer, the Commissioner had conducted an inquiry into alleged misbehaviour or alleged improper conduct of the applicant. The letter of 29 March 1995 had identified the details of the alleged wrongdoing. This inquiry was undertaken by the Commissioner in his capacity as an officer of the Commonwealth and, accordingly, was within paragraph (b)(i) of the definition of "permitted purpose".
Mr Robberds argued that the Commissioner was required to makeuse of the subject material because the possibility of misbehaviour or alleged improper conduct was a factor relevant to the discharge of his responsibilities under s.26(1)(a) of the AFP Act and under the AFP Regulations. Mr Robberds also contended that a contrary construction of the definition of "permitted purpose" would lead to absurd results. This was because theCommissioner, in deciding whether or not to reappoint an officer, would have to disregard lawfully obtained information of which he was aware.
The Commissioner might therefore be required to make a judgment as to an officer's suitability for reappointment, totally at odds with the opinion he had formed on the basis of information lawfully obtained by him or communicated to him.
"Investigation" and "Inquiry"
The words "investigation" and "inquiry", as employed in paragraph (b)(i) of the definition of "permitted purpose", are not defined in the Interception Act. (Section 6A defines "investigation by an agency...of an offence", but the definition does not assist in the present context.) These words, taken in their context, do not suggest that the legislation was intended to authorise the use of intercept information for the purpose of making a decision to take action against an officer who is, or has been, the subject of an investigation or inquiry.
The dictionary definition of "inquiry" is
"1. an investigation, as to a matter.
2. the act of inquiring, or seeking information by questioning, interrogation." (Macquarie Dictionary.)
"Investigation" means
"1. the act or process of investigating.
2. a searching inquiry in order to ascertain facts; a detailed and careful examination". (Macquarie Dictionary.)
An authorisation or direction to conduct an inquiry or investigation into the conduct of a person would not, without more, ordinarily carry with it the authority or duty to decide whether the person's employment should be terminated, nor whether the person should be offered an appointment or reappointment to a position. A searching inquiry to ascertain the facts is one thing; a decision as to the action to be taken on the basis of the facts so ascertained is another.
Of course, the language employed in legislation must take its meaning from the context. In my view the distinction to which I have referred is reinforced by the definition of "permitted purpose". That definition clearly distinguishes two cases. The first is where information is used for a purpose connected with an investigation or inquiry. The second is where it is used for a purpose connected with a decision affecting the interests of a person who is the subject of the investigation or inquiry. As has been seen, paragraph (b)(i) of the definition, when taken in conjunction with s.67, authorises the AFP to use intercept information for a purpose connected with an investigation of, or an inquiry into, alleged misbehaviour or improper conduct of an officer of the Commonwealth. Likewise, paragraph (a)(i) of the definition authorises the use by an agency or eligible authority (including the AFP) of intercept information for a purpose connected with an investigation by the agency or eligible authority of a "prescribed offence", a term defined by s.5 to mean certain kinds of serious criminal offences.
But paragraph (a)(ii), again read in conjunction with s.67, specifically authorises the use by an agency or eligible authority of intercept information for a purpose connected with the making by an "authority, body or person of a decision whether or not to begin a relevant proceeding in relation to the agency or eligible authority". A "relevant proceeding" includes a police disciplinary proceeding against a member of the AFP, as well as a prosecution for a prescribed offence: s.6L(1)(a),(e).
In other words, the legislation is framed on the basis that authorising the use of intercept information for a purpose connected with an investigation or inquiry into alleged misbehaviour or alleged improper conduct is insufficient, of itself, to authorise the use of that information for a purpose connected with the making of a decision whether or not to begin a police disciplinary proceeding or other "relevant proceeding".
It may be that the distinction drawn by the definition reflects, at least in part, the fact that the agency or eligible authority responsible for an investigation, especially of a criminal offence, is not necessarily the "authority, body or person" responsible for deciding whether or not to begin a relevant proceeding such as a criminal prosecution. If anything, this reinforces the view that the reference to an "investigation" or "inquiry" in the definition of "permitted purpose" is not intended to extend to a decision to take action against a person who is the subject of the investigation or inquiry.
In my opinion, this approach to the construction of the definition is further supported by the relationship between paragraphs (b)(i) and (b)(ii). The definition proceeds on the assumption that it is necessary to authorise specifically the use of intercept information for a purpose connected with a report or an investigation or inquiry of the kind referred to in paragraph (b)(i). Had it been intended to give the terms "investigation" or "inquiry" in paragraph (b)(i) a broad meaning, it is difficult to see why paragraph (b)(ii) was necessary.
"Connected With"
In the course of oral argument, Mr Robberds contended that, even if a decision not to reappoint a member of the AFP is not within the terms "investigation" and "inquiry", as employed in paragraph (b)(i) of the definition, the use of intercept material to support such a decision is a purpose "connected with" the investigation or inquiry.
In Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 (FCA/FC), at 288, the Full Court said this:
"The words 'connected with' are capable of describing a spectrum of relationships ranging from the direct and immediate to the tenuous and remote. As Sheppard and Burchett JJ. observed in Australian National Railways Commission v Collector of Customs (SA) [(1985) 8 FCR 264, at 275] the meaning of the word 'connection' is wide and imprecise, one of its common meanings being 'relation between things one of which is bound up with, or involved in, another': Shorter Oxford English Dictionary."
(In the Australian National Railways Case, Sheppard and Burchett JJ. were quoting the comments of the Court in Collector of Customs v Cliffs Robe River Iron Associates (1985) 7 FCR 271 (FCA/FC), at 275.) The question remains in a particular case
what kind of relationship will suffice to establish the connection contemplated by the statute. This requires, to use the language in Pozzolanic, at 289, a "value judgment about the range of the Act".
The value judgment required is more likely to depend on the statutory context than on dictionary definitions. In Commissioners of Customs and Excise v Top Ten Promotions Ltd [1969] 3 All ER 85; [1969] 1 WLR 1163 (HL), the House of Lords considered the phrase "activities ancillary thereto or connected therewith". Lord Upjohn said this about the use of "simple, non-technical language" of this kind (All ER at 90; WLR at 1171):
"It is highly dangerous, if not impossible, to attempt to place an accurate definition on a word in common use; you can look up examples of its many uses if you want to in the Oxford Dictionary but that does not help on definition; in fact it probably only shows that the word normally defies definition. The task of the court in construing statutory language such as that which is before your Lordships is to look at the mischief at which the Act is directed and then, in that light, to consider whether as a matter of common sense and every day usage the known, proved or admitted or properly inferred facts of the particular case bring the case within the ordinary meaning of the words used by Parliament."
I do not doubt that the opening words of the definition of permitted purpose give the definition a broader scope than otherwise would be the case. To use an example relevant to the present case, the use of intercept information in making a decision to suspend an officer, pending the conduct of a "relevant proceeding", may not be for the purpose of the proceeding itself (paragraph (a)(iii)). However, it is likely
to be for a purpose connected with the proceeding, since the suspension is closely linked to, and dependent upon, the proceeding itself.
But even though the introductory words of the definition of "permitted purpose" expand its scope, I do not think that the use of intercept material in making a decision not to reappoint an officer is "a purpose connected with" an investigation of, or an inquiry into, alleged misbehaviour or improper conduct. The fact remains that the sub-paragraphs of the definition of "permitted purpose" clearly distinguish between an inquiry or investigation and a decision to take proceedings against an individual in consequence of such an inquiry or investigation. The opening words of the definition, in my opinion, cannot expand the scope of individual sub-paragraphs to the point where they render redundant other sub-paragraphs specifically authorising the use of intercept information. A fortiori the words cannot expand paragraph (b)(i) to the point where it authorises the use of intercept material for a purpose quite distinct from the investigation or inquiry. In particular they cannot authorise the use of intercept material for the purpose of deciding to act on the results of an investigation or inquiry by deciding not to reappoint a member of the AFP for a further term.
Mr Robberds did not suggest that any other sub-paragraph of the definition authorised the Commissioner to use the intercept information for the purpose of making a decision not to reappoint an officer of the AFP for a further term. It follows that s.67
of the Interception Act precludes the use of intercept information for this purpose.
Policy Considerations
It seems to me that, contrary to Mr Robberds' submissions, there is nothing absurd in this construction of the legislation. Under the Interception Act, an "originating agency" is entitled to communicate lawfully obtained intercept information to the AFP if (inter alia) the information relates or appears to relate to
l an act or omission of a member of the AFP that may give rise to a "proceeding" (including one before the Federal Police Disciplinary Tribunal) (s.68(c)(ii)); or
l misbehaviour or improper conduct of an officer of the Commonwealth (s.68(c)(iii)).
(An issue may arise as to whether s.68(c)(ii) and s.68(c)(iii) are intended to be mutually exclusive. However, the question was not explored in argument and I say nothing about it.)
Having received the intercept information, the AFP is entitled to use it for a purpose connected with an investigation of, or an inquiry into, alleged misbehaviour or alleged misconduct by a member of the AFP as an officer of the Commonwealth (s.67 and sub-paragraph (b)(i) of the definition of "permitted purpose"). If the inquiry reveals that the misbehaviour or improper conduct has taken place, the Commissioner may use the intercept
information for a purpose connected with making a decision whether or not to begin disciplinary proceedings (s.67 and sub-paragraph (a)(ii)). The intercept information also may be used for a purpose connected with the disciplinary proceeding itself, since it constitutes a "relevant proceeding" for the purpose of sub-paragraph (a)(iii): s.6L(e). As Mr Aldridge pointed out, this ties in with s.74 of the Interception Act, which provides that lawfully obtained information may be given in "exempt proceedings", including a police disciplinary proceeding: s.5B(e).
The policy underlying this statutory scheme is that intercept information can be used against an AFP officer, but only in proceedings (whether criminal, quasi-criminal or disciplinary) in which the officer is afforded the procedural protection of a formal hearing in a court or tribunal. The Commissioner is far from powerless in relation to an AFP officer suspected of misbehaviour or improper conduct by reason of intercept information. It is true that, on the construction I consider to be correct, the Commissioner cannot refuse to reappoint the member on the basis of the intercept information, since that is not a "permitted purpose". But the Commissioner may institute a disciplinary proceeding which, if a serious disciplinary offence is shown to have occurred, may result in the dismissal of the AFP member. Furthermore, as this case shows, the Commissioner has power under the Australian Federal Police (Discipline) Regulations, reg. 20(1) to suspend the member if
"(a)it appears to the Commissioner that a member or staff member may have committed a disciplinary offence; and
(b)the Commissioner considers that the disciplinary offence is of such a nature that the member or staff member should not continue to perform his or her duties until proceedings in relation to the disciplinary offence have been determined".
Neither Mr Robberds nor Mr Aldridge suggested that the suspension was not a purpose connected with the disciplinary proceeding. Thus neither disputed that, if necessary and appropriate, the intercept information could be used in making the judgment required by reg.20(1) (as, indeed, was presumably done in the present case).
It is relevant to note that there is nothing in the definition of "permitted purpose" which authorises the Commissioner to use intercept information for a purpose connected with alleged misbehaviour or alleged improper conduct of an applicant for a position with the AFP (assuming the applicant is not already with the AFP). Clearly, paragraph (b)(1) does not apply to such a case, since the applicant (let it be assumed) is not an officer of the Commonwealth. Thus the position concerning an applicant for reappointment, as far as the use of intercept information is concerned, is the same as that relating to an applicant for a fresh appointment.
Approach to Construction
I have not found it necessary to decide whether a restrictive approach should be adopted to the construction of the definition of "permitted purpose". In my view, the conclusion I have expressed follows, even if such an approach is not adopted. However, if it were necessary to do so, I would apply a restrictive approach to the construction of legislation authorising the use of intercept information for specific purposes.
The fundamental objective of the Interception Act is to protect the privacy of communications passing between users of telecommunications systems: Edelsten v Investigating Committee of New South Wales (1986) 7 NSWLR 222 (NSW SCt/Lee J.), at 229; R. v Edelsten (1990) 21 NSWLR 542 (NSW CCA), at 549. This is achieved, in substantial measure, by the prohibition in s.7(1) on the interception of a communication passing over a telecommunications system. As I have noted, the prohibition is subject to the carefully defined exceptions in s.7(2), of which the most important for present purposes is the interception of a communication under a warrant issued pursuant to the Interception Act itself. The criteria to be applied by an eligible judge, in determining whether to issue a warrant, include, in the case of a warrant in relation to "class 2 offence"
"how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant communications made to or from the [telecommunications] service" (s.46(2)(a)).
As has been seen, the Act does not merely restrict the circumstances in which a communication may be intercepted, it also restricts the use that can be made of lawfully obtained intercept information. Section 67 protects individuals against the use of such information, except in the specific circumstances identified in the definition of "permitted purpose", thereby reinforcing the statutory recognition of privacy as a basic community value.
It is well established that the courts should not impute to the legislature an intention to interfere with fundamental rights, freedoms or immunities; such an intention must be clearly manifested by clear and unmistakable language: Coco v The Queen (1994) 179 CLR 427, at 436-437. In that case the High Court held that the Invasion of Privacy Act 1971 (Qld), s.43(2)(c), which authorised the use of listening devices in certain circumstances, did not confer power on a judge to authorise entry on to premises for the purpose of installing and maintaining a listening device, where to do so would otherwise constitute a trespass.
The close link between the fundamental right to be secure against trespass and the right to privacy is illustrated by the observations of Lord Scarman in Morris v Beardmore [1981] AC 446. There the House of Lords refused to read general language in the Road Traffic Act 1972 as sufficient to authorise the police to enter the home of a person involved in an accident and require that person to submit to a breath test. Lord Scarman (at 465) saw the appeal as
"concerned exclusively with the suspect's right to the privacy of his home.... The appeal turns on the respect which Parliament must be understood, even in its desire to stamp out drunken driving, to pay to the fundamental right of privacy in one's own home, which
has for centuries been recognised by the common law."
See also Plenty v Dillon (1991) 171 CLR 635, at 647, where Gaudron and McHugh JJ. referred to "the policy of the law [being] to protect the possession of property and the privacy and security of its occupier". In that case the High Court held that neither the common law nor the general words of a South Australian statute authorised a police officer, without the consent of the person in possession of land, to enter the land in order to serve a summons.
The circumstances of the present case differ from those in Coco v The Queen, Morris v Beardmore and Plenty v Dillon. So far as the evidence reveals, the intercept information was not obtained in consequence of what otherwise would have been a trespass. In any event, the intercept information was lawfully obtained. Moreover, in Malone v Metropolitan Police Commissioner [1979] Ch. 344 (Ch.D/Megarry V-C) at 372-375, Megarry V-C held that the common law does not recognise either a general right to privacy, nor a more limited right to privacy for telephone communications.
Yet in that case, Megarry V-C, while holding that there was no common law remedy for telephone tapping, said (at 381) that he
"would have thought that in any civilised system of law the claims of liberty and justice would require that telephone users should have effective and independent safeguards against possible abuses. The fact that a telephone user is suspected of crime increases rather than diminishes this requirement: suspicions, however reasonably held, may sometimes prove to be wholly unfounded."