Day v Douglas

Statutory Background 12 A charge of misconduct is a charge that the officer has failed to fulfil his duty as an officer (s 61(2), 62(1) and the definition of "misconduct" in s 55). Section 56 defines failure to fulfil one's duty as an officer. It has a series of paragraphs which have been held to be exclusive but not mutually exclusive (McManus v Scott-Charlton (1996) 70 FCR 16 at 23 B to E). This seems to me to be correct. Those parts of s 56 which are relevant to the present case are the following paragraphs: "… (a) he wilfully disobeys, or wilfully disregards, a direction given by a person having authority to give the direction, being a direction with which it is his duty as an officer to comply; … (d) he engages in improper conduct as an officer; (e) he engages in improper conduct otherwise than as an officer, being conduct that affects adversely the performance of his duties or brings the Service into disrepute; (f) he contravenes or fails to comply with: (i) a provision of this Act, of the regulations or of a determination in force under subsection 9(7A) or section 82D, being a provision that is applicable to him; or (ii) the terms and condition upon which he is employed; …" 13 A Customs Code of Ethics and Conduct was in evidence before the DAC. It included the following: "Official Identification and Security Items Identity badges and passes are issued to assist and identify officers in the performance of their duties, and in exercising powers entrusted in them. They are not to be used for any other purpose. Keys, passwords and other security items are to be maintained safely by the officer to whom they are issued, and surrendered to Customs on termination of employment." 14 During the course of the hearing, I was also referred to the Public Service Regulations (Amendment - Interim Reforms) No. 23 of 1998. This amends the Public Service Regulations to include a new Part 1A entitled "APS Values, Code of Conduct and State of the Service Report". Regulation 7 establishes the APS Code of Conduct and reg 7(10)(b) is as follows: "An APS employee must not make improper use of: … (b) the employee's duties, status, power or authority; in order to gain, or seek to gain, a benefit or advantage for the employee or for any other person."

Issues 15 The DAC found that the use by the applicant of his identity card was not in the performance of his duties or in exercising powers entrusted in him. There can be no attack upon that finding. 16 The DAC also found that the applicant was endeavouring to find out information concerning the warrant unofficially, by using his status as a Customs officer, and that the use of his Customs identity card had the desired effect of ensuring access to Ms Baker which he otherwise would not have received. Despite the submissions to the contrary made on behalf of the applicant, it seems to me that the DAC was perfectly entitled to make that finding. Thus, the particulars of the charge were established. 17 That left two questions. Firstly, was the applicant's conduct complained of conduct "as an officer", and secondly, if so, was it "improper"?

1. Whether the conduct complained of was "as an officer". 18 The DAC rejected the argument that the applicant was on a frolic of his own at the time and was not acting as an officer at the relevant time. It held that the applicant had used his official Customs identification card to give the impression to the Court officials that he was on Customs business, and concluded as follows: "10.9 The Appellant appears to have been on duty during a normal working day at the time of the visit - there was no evidence before the DAC that the Appellant was on flex or other leave at the time. In these circumstances, the Appellant cannot have it both ways he can not infer that he was on official duty then claim that he was not acting as an officer at the same time." 19 The applicant submits that it was a necessary ingredient of the charge that the alleged improper conduct take place during the course of the performance or purported performance of his duties as an officer, and that when the conduct occurred he was not performing or purporting to perform the duties of an officer. Counsel for the second respondent submitted that once it was accepted that purported performance of duties was sufficient, then the finding to which I have referred by the DAC met the test. It was also submitted that some evidence given by the applicant himself indicated that he was purporting to act as an officer, and that he was making inquiries linked to his job. To the extent that the applicant did so claim (and this is contested by him), it was firmly and correctly rejected by the DAC. 20 Counsel for the second respondent referred to the following passage by Dixon CJ in Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1 at 6: "But, in any case, I think that the words "except in the performance of any duty as an officer" ought to receive a very wide interpretation. The word "duty" there is not, I think, used in a sense that is confined to a legal obligation, but really would be better represented by the word "function". The exception governs all that is incidental to the carrying out of what is commonly called "the duties of an officer's employment"; that is to say, the functions and proper actions which his employment authorizes." The context in that case was s 16 of the Income Tax and Social Services Contribution Act 1936-1952 (Cth). 21 He also referred me to the wide meaning given by the High Court to the phrase "in the discharge of the duties of his office" in s 87 of The Criminal Code (Qld) in Herscu v The Queen (1991) 173 CLR 276, particularly at 282 and 287. In that case, it was said that it would be absurd to limit an anti-corruption provision to bribes paid in order to persuade an office-holder to discharge the duties of his office properly. 22 It was argued that, in the present context, the section cannot be limited to things strictly done as an officer in the ordinary sense because, for example, to take a bribe can never be part of the duties of office and so could not then be regarded as conduct as an officer. 23 It was submitted that the conduct proscribed by s 56(e) must be purely private, with no association at all with the duties of the officer. In this connection, it is relevant to note that the relevant section in the previous form of the Act provided that "An officer … who - … (e) is guilty of any disgraceful or improper conduct, either in his official capacity or otherwise; or … should be guilty of an offence …" 24 The point is thrown up in a stark form in the present case because the DAC has held that what the applicant was doing had nothing whatsoever to do with performing his duties or exercising powers entrusted in him. It follows from this that what he was doing was, in the real sense, independent of his duties. How, then, can it be concluded that the conduct was "as an officer"? The answer given by the DAC was that the applicant had used his status as an officer to gain access he would not otherwise have received. 25 The issue can be illuminated to some extent by the authorities which consider the test of scope of employment for the purposes of vicarious liability. That was explained by Glass JA (in a judgment with which the other members of the Court agreed) in Commonwealth v Connell (1986) 5 NSWLR 218 at 221, where he said: "… But I do agree that the expression "acting in the course of his service" as applied to a member of the armed forces and "acting within the scope of his duty" as applied to a police officer should mutatis mutandis receive the same construction as "acting within the scope of his employment" as applied to an employee when determining whether the Crown has incurred vicarious liability. In Deatons Pty Ltd v Flew Latham CJ (at 378) defined the scope of employment or authority as being an act which the servant was employed to perform or an act incidental to his employment. Dixon J (at 382) referred to acts done under express or implied authority or as incident to or in consequence of anything the employee was employed to do. Webb J (at 388) pointed out that vicarious liability exists for an act done within express or implied authority even though it amounts to an improper mode of exercising authority. The inclusion within the scope of employment of unauthorised modes of performing what is authorised and the exclusion from it of wholly unauthorised acts raises difficult problems of classification. But it is a criterion originally formulated by Salmond in his work on Torts, 9th ed, which has received the imprimatur of the House of Lords in Canadian Pacific Railway Co v Lockhart [1942] AC 591 at 599 and of the High Court in Bugge v Brown (1919) 26 CLR 110 at 117, 131. I would conclude that conduct by an apprentice sailor is within the scope of his service or duty or authority if it is authorised expressly or impliedly or is incidental to what he is authorised to do even though it may be performed in an unauthorised way. If, however, it is not authorised expressly or impliedly and is not so connected with authorised conduct as to be an improper mode of performing it, it is an independent unauthorised act and is outside the scope of his service." See also Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715 at 721; Canterbury Bankstown Rugby League Football Club Ltd v Rogers (1993) Aust Torts Reports 81-246 at 62-550 - 62-552; and Prior v State of New South Wales [1998] NSWSC 633. Lackersteen v Jones (1988) 92 FLR 6 deals both with vicarious liability for irregular actions by policemen (at 45-6) and a time limit for things done in pursuance of an Act (at 43-5), referring in the latter connection to Hamilton v Halesworth (1937) 58 CLR 369 particularly at 374 and 380. 26 These cases deal with different situations and cannot simply be transposed to s 56 of the Act, which is part of a disciplinary code for public servants. Indeed, many of them involve factual situations which might lead to the conclusion that the officer was not acting in his official capacity for the purposes of statutory protection or vicarious liability, but to act as he did could properly be described as conduct as an officer for the purposes of s 56. 27 It may help to examine some concrete examples. A Customs officer who, having seized contraband goods, uses physical threats or violence to extract a confession from the person in possession of the goods would, I think, at first blush, engage in improper conduct as an officer even though the standing instructions to Customs officers were that they were not to use threats of violence or physical violence in such circumstances. A Customs officer who, having seized contraband goods, releases them back to the person in possession upon payment of a bribe will also generally be recognised, I think, as engaging in improper conduct as an officer, even though accepting a bribe and releasing goods was quite inconsistent with the proper carrying out of his functions. On the other hand, if the same officer went privately to see the person suspected of having contraband goods in his possession, identified himself as a Customs officer and threatened to cause the premises to be raided unless he were paid a bribe, it is not obvious that he would be engaging in improper conduct as an officer. If my reaction to these examples be correct, the distinction lies between, on the one hand, doing that which the officer is employed to do but doing so in an improper manner, and, on the other hand, engaging in a private escapade where it was obvious to the other party that the person was not in any sense acting in his official position, albeit that the official position might have assisted the improper purpose. 28 The terms of s 56(d) and (e) are, it seems to me, mutually exclusive, and it is necessary to draw a line between the two for the purposes of a charge based upon s 56(d). In my view, s 56(d) would plainly catch all behaviour if it is authorised expressly or impliedly or is incidental to what the officer is authorised to do, even though, it being improper, it is performed in an unauthorised way. What happened here does not, in my opinion, fall within that description. It was truly an independent and unauthorised act outside the scope of his service, to adopt the words of Glass JA in Connell (supra). 29 The position taken by the DAC was that as the applicant had purported to be on official duty he could not later claim that he was not acting as an officer at that time. No reasoning is provided for this conclusion. It is difficult to support the notion that the applicant is inhibited by some form of estoppel based upon approbation and reprobation in proceedings such as these, where it is incumbent upon the Commonwealth to establish breach of the Act. On the other hand, the applicant concedes that improper conduct within s 56(d) could take place during the course of the purported performance of his duties as an officer. The examples that I have given earlier help to explain why, in this particular statutory setting, the concession was rightly made. 30 Where a person who is actually an officer purports to carry out what he is authorised to do as such an officer, persons affected by the conduct of the officer have no way of knowing whether he is, in fact, authorised or not. This formulation does contain a significant limitation. Where what the officer is doing is, on its face, a frolic of his own, he cannot be said to be acting in purported performance of his duties. However where, for example, a Customs officer fabricates an occasion for the seizure of goods merely in order to solicit a bribe, that is a wholly unauthorised and independent act, but to the other parties must seem to be the act of an officer. On the other hand, if the officer merely solicits a bribe it is obvious that he is not acting in purported performance of his duties in any sense. 31 Upon this analysis, if the applicant had gone to the Court, identified himself as a Customs officer, and sought to see Ms Baker for the ostensible purpose of procuring the issue of a warrant but for the real purpose of then interrogating Ms Baker about the warrant which had been executed, the section would have been satisfied. The difficulty I see in the present circumstances is that I can find no evidence to indicate that the applicant purported to be acting in the performance of his duties at any time prior to the act of producing the identification with which he has been charged, even if the notes of a record of interview with Ms Lowe are taken into account as well as the statement by Ms Lowe. It is, furthermore, quite clear that the applicant did not volunteer the official identification, but rather provided it when asked for some form of identification. On the findings of the DAC, he chose this form of identification because he thought it would assist in obtaining access to Ms Baker. Furthermore, it might be concluded that Ms Lowe assumed from that form of identification that the applicant was there for some official purpose. 32 With considerable hesitation, I have come to the view that there was material from which the DAC could properly conclude that the applicant did purport (albeit by implication) to be at the Court pursuant to his official duties, making his conduct on that occasion conduct as an officer for the purposes of s 56(d). It is in that sense, I think, that the DAC used the word "infer" to which I referred in paragraph 18 above. The finding of facts is for the DAC, not for this Court upon judicial review.

2. Whether the conduct complained of was improper. 33 It thus becomes necessary to consider whether the conduct was improper within the meaning of s 56(d). The fact that the conduct was a breach of the Customs Code of Ethics and Conduct does not establish impropriety, although it is relevant to the issue. The gravamen of the decision of the DAC on this point is as follows: "10.11 In the light of all this, the question as to whether the conduct of the Appellant was improper must clearly be yes' in the view of the DAC. Put simply, the Appellant had unsuccessfully tried all possible avenues to find out the details of a warrant which he had no legal right to see for reasons of operational security. He then used his ID Card improperly to gain access to the person he knew probably had signed the warrant and would know its full details to find out as much as he could about the warrant knowing that he had no legal entitlement to that information. His behaviour involved a devious and calculated move to gain the information in any way he could and by any definition of the term improper behaviour by an officer' this behaviour must be seen as improper." 34 The applicant's attack upon this finding is put in various ways in the Further Amended Application, in the written submissions and in oral argument, but the core of it was that the DAC had a fundamentally wrong view as to the impropriety of inquiring about the warrant and that this affected its whole decision-making process. It was argued that as the personal effects of the applicant had been seized pursuant to the warrant, at his own workstation, he was perfectly entitled to make all or any inquiries which were possible concerning the terms of the warrant and, indeed, what lay behind it. He had been met with a wall of official obstruction in his inquiries, and there was absolutely nothing wrong with the questions he asked Ms Baker, taking her evidence at its highest. It was put that the DAC was led into error in this respect by the manner in which the matter had been presented on the part of Customs. Indeed, the position that the objective sought to be achieved by the applicant was itself improper was maintained before me by the second respondent. 35 The manner in which the conclusion of the DAC is expressed in the paragraph I have quoted in paragraph 33 above makes it clear that the DAC, in coming to its conclusion as to impropriety, took into account what it regarded as an illegitimate purpose involved in the applicant's exercise. In other words, the DAC did not confine themselves to the deception by which access was obtained, but also had regard to the purpose for which that deception was exercised. That was emphasised by the manner in which the DAC analysed the seriousness of the charge when dealing with penalty: "13.2 In this case the Appellant used his official ID in a calculated attempt to obtain information to which he was not entitled and to which his access may have jeopardised an investigation. He was aware of and breached the clear directions about the use of the ID Card. In terms of the Appellant's duties as a Customs officer the charge is a very serious one and one which casts serious doubt on his integrity as an officer thus his ability to perform at a senior operative level in Customs." 36 The second respondent submitted that s 3H(1) of the Crimes Act 1914 (Cth) comprehensively identifies those persons entitled by law to a copy of the warrant, and referred to Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473 and Ousley v The Queen (1997) 192 CLR 69. 37 I accept the substance of the applicant's submission. I can see nothing wrong with the person affected by the execution of a warrant making all and every inquiry possible about that warrant, both as to its terms and that which lay behind it. It would be a very serious thing if a member of the public affected in that way could not do that. The circumstance that there is no legal right to a copy of the warrant is, in my opinion, of no consequence. The statute does not proscribe what may be done with or about a copy warrant. I see no impropriety in any member of the public seeking out the person who had issued a warrant which had been executed against goods of that person, and asking whatever questions the citizen likes of the person who issued the warrant. It is up to the person who issued the warrant whether to answer the questions. I cannot see why the applicant is in any worse position than any other member of the public in this respect. He and his solicitor, both before and after the incident in question, sought by all means available to them to ascertain the relevant facts. Furthermore, there is nothing wrong with the applicant having obtained a copy of the other warrant and making such use of it as he saw fit in inquiring as to the warrant which affected him. 38 The second respondent submitted that the applicant's evidence showed that he was conscious that he was asking for confidential information to which he was not entitled. There was no express finding by the DAC to this effect, but even if it were so, it would not change my opinion as the error was made by the DAC. The applicant's state of mind may not be irrelevant to the question of impropriety or to penalty, but it cannot affect the legal position. It may have been different if the applicant had posed as the person who obtained the warrant, or as the principal Customs officer in charge of the applicant's workplace, and sought information. There was no finding by the DAC, and nor do I think there could have been, that the applicant pretended to be a person who might have had a legal right to the information sought.

Conclusion and orders to be made 39 In my opinion, the DAC misdirected itself in law as to the rights of a party affected by the execution of a search warrant, and the making of the decision was an improper exercise of power because the DAC took an irrelevant consideration into account in the exercise of the power. As this issue was crucial to the reasoning of the DAC both as to liability and, what has been called, penalty (and to the submissions put to it), the decision must be set aside. 40 The applicant submits that the charge itself was fundamentally flawed because it included, as an element, the impropriety of the object, and seeks an order that the appeal to the DAC be allowed and the charge dismissed. 41 This raises a point of some difficulty. There is an argument that the use of the identification card was improper if the intention were to use it in order to obtain information for the private purposes of the applicant rather than for the purposes of his employer, even if obtaining the information were otherwise legitimate. The charge here might be seen as framed appropriately to cover such a case. On the other hand, there is much to support the view that the case against the applicant before the DAC was conducted on the basis now suggested by the applicant. The other construction of what took place is that the case was always pleaded and presented as the lesser case, but with the second respondent seeking to establish aggravating circumstances. 42 The distinction is not without importance. The way in which the matter was dealt with by the DAC made it a more serious case than the alternative case which might have been made, with the consequent increase of jeopardy to the applicant. If a conscious choice were made to put a higher case in order to obtain the maximum penalty, then it might now be seen as unconscionable to permit the less serious case to be put. In other words, having taken the high ground the second respondent is bound to it. Another way of looking at it is that the charge as framed is ambiguous, and the ambiguity was removed by the manner in which the case was conducted. 43 Having read the transcript of the opening and closing addresses of counsel for the second respondent before the DAC, I do not think it can be said that he did not put, or abandoned, the case that impropriety lay in the use of the identification card for private as opposed to official purposes, although undoubtedly there was much emphasis upon the impropriety of the substantive private purpose. 44 That being the case, I do not think that I can avoid returning the matter to the DAC to be heard according to law. Unless the applicant consents to another course, this should be a complete rehearing, as the error that I have found may have affected the whole fact-finding process. 45 The applicant also sought to have the DAC decision set aside because of the manner in which material relating to a former disciplinary offence was utilised during the proceedings. I was not persuaded that there was any error sufficient to justify judicial review in what was done. However, that does not mean that I approve of what was done. On the contrary, I cannot see any legitimate forensic basis upon which counsel for the second respondent tendered, at the outset of the case, prejudicial material which was put forward as relevant only to penalty. 46 The decision will be set aside, and the matter remitted to a DAC to be heard according to law. The second respondent is to pay the applicant's costs of this application. The applicant has submitted that the costs should be paid on an indemnity basis because of the manner in which the case has been conducted. Whilst I appreciate the force of the applicant's argument, I do not regard the circumstances as sufficient to attract that order. There is a question as to the ability of the Court to order costs of the proceedings below at this stage. I therefore make no order as to those costs, which will be in the hands of the DAC after the rehearing of the matter. I certify that the preceding forty- six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Counsel for the Applicant: Mr P Roberts SC

Solicitor for the Applicant: Leitch Hasson Dent

Solicitor for the Respondents: Australian Government Solicitor

Date of Hearing: 14, 15 September 1999

Date of Judgment: 22 October 1999