Day v Commissioner of Australian Federal Police

(ii) a report on such an investigation or inquiry; …… (iii) the tendering to the Governor-General of advice to terminate, because of misbehaviour or improper conduct, the appointment of an officer of the Commonwealth; or

(iv) deliberations of the Executive Council in connection with advice to the Governor-General to terminate, because of misbehaviour or improper conduct, the appointment of an officer of the Commonwealth. …… "Agency" is defined in the same section to include "a Commonwealth agency", which in turn is defined as the AFP or the National Crime Authority (NCA). 7 Section 6G(1) defines an officer of the Commonwealth as: (a) a person holding, or acting in, an office (including a judicial office) or appointment, or employed, under a law of the Commonwealth;

(b) a person who is, or is a member of, an authority or body established for a public purpose by or under a law of the Commonwealth, or is an officer or employee of such an authority or body. 8 Section 68 sets out certain circumstances in which communication of intercepted information is permitted by the agency which originally intercepted the information: The chief officer of an agency (in this section called the originating agency) may, personally, or by an officer of the originating agency authorised by the chief officer, communicate lawfully obtained information that was originally obtained by the originating agency or designated warrant information: …… (c) if the information relates, or appears to relate, to: …… (iii) misbehaviour or improper conduct of an officer of the Commonwealth;

and the originating agency is not the Australian Federal Police - to the Commissioner of Police. …… 9 Section 73 provides relevantly: A person to whom information has, in accordance with … section 67 … been communicated for a purpose, or for two or more purposes, may, for that purpose, or for one or more of those purposes … communicate to another person, make use of, or make a record of, that information. 10 A letter of 19 July 1999 from the fourth respondent to the applicant's solicitor established that the fourth respondent regarded sections 67 and 73 as justifying the release by the AFP of the interception transcripts to Customs and their use by the third respondent and himself.

The argument 11 The applicant contended that section 67 relates to intra agency, not inter agency, communications, and does not permit the disclosure by an intercepting agency of interception transcripts to another Commonwealth body or one of its officers, including Customs. The applicant further contended that section 68, whilst providing circumstances in which an intercepting agency may release intercepted information to persons external to the agency, did and does not authorise the release of information intercepted by the AFP, to the second, third and fourth respondents in that the permitted circumstances for disclosure do not include disclosure for the purposes of the investigation and charging of a Customs officer for offences against the PS Act. Indeed, according to the applicant, sections 63 and 68 specifically prohibit such communication and use. 12 The applicant placed particular reliance on the judgment of Justice Sackville in Taciak v Commissioner of Australian Federal Police (1995) 131 ALR 319. That case involved an application challenging the right of the AFP Commissioner to use information lawfully obtained under the TI Act for the purpose of deciding not to reappoint the applicant as an officer of the AFP. In denying the existence of such a right on the part of the Commissioner, Justice Sackville said at page 326: The words "investigation" and "inquiry", as employed in para (b)(i) of the definition of "permitted purpose", are not defined in the Interception Act… 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. 13 The applicant said that subsections (4) and (7)(b) of section 107A permit this Court to order damages for communication of intercepted information rendered unlawful by section 63.

Conclusions 14 I reject the applicant's suggested construction of the TI Act. In my opinion, section 68 is irrelevant to this case. It permits the communication to the first respondent of information intercepted by an agency other than the AFP, presumably the NCA. That is not this case. On the other hand, section 67 permits communication by an officer of 'an agency' to 'another person' for a 'permitted purpose … in relation to the agency'. In the case of the AFP, such a purpose includes, by paragraph (b)(i) of the s.5 definition, an investigation or inquiry under the PS Act into alleged misconduct of a Commonwealth officer. It is difficult to see what this definition covers if not an investigation into the activities of a Customs officer such as the applicant is facing. As such investigations will not, other than as involve the police themselves, normally be undertaken by the first respondent's officers, the communication will mostly be to officers of other agencies. The manifest purpose of this provision is to permit the AFP to communicate lawfully intercepted information to assist the purposes referred to. That this must be so can also be seen from the use in the 'permitted purpose' definition (s.5) of the words "by a person in the person's capacity as an officer of the Commonwealth", which includes by section 6G(1)(a) a person employed by or under Commonwealth law to conduct an investigation or inquiry of the kind entrusted to the fourth respondent. 15 The scheme of the Act also support this view. For example, the provision in section 74(1) that persons may disclose information from lawfully obtained interceptions in an exempt proceeding, defined in section 5B to include for example an appeal from the results of the proposed inquiry of the applicant by the fourth respondent, is particularly instructive. It is difficult to see how such evidence could be known unless there had been prior disclosure to the inquiry officer. So do its apparent legislative purposes. The parliamentary and other pre-legislative public considerations of this legislation show that its intention was to permit the use of lawfully obtained interceptions in a broad category of law enforcement, including inquiries of the kind required of the fourth respondent. 16 Taciak is not relevant to this case. It concerned the use of lawfully obtained information within the AFP, being the agency that intercepted the information, rather than the right of the AFP to disclose the intercepted information to another Commonwealth authority and the right of that authority then to use the information it received, as is at issue here. Even were that not the case, Justice Sackville's view that the Commissioner of the AFP was not entitled to consider lawfully intercepted material in deciding whether to reappoint an officer does not assist the applicant in any way. The present case concerns the use of intercepted information at the earlier stage of investigation and inquiry. His Honour was understandably and, if I may say so respectfully, rightly anxious to narrow the permitted invasion of privacy to the circumstances unambiguously prescribed by the statute which is the investigation or inquiry itself, and not to read into the words "a purpose connected with" the investigation and inquiry, a decision on reappointment which is something quite different. 17 The amended application is dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld.

Associate: Dated: 31 March 2000 Counsel for the Applicant: Mr P. Roberts SC

Solicitor for the Respondents: Australian Government Solicitor