Day v Lynn

grounds of review 5 Under s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act') the applicant now seeks review of the DAC's decision. The grounds for review and supporting particulars put forward are: '(a) The decision involved a breach of the rules of natural justice within s 5(1)(a) of the [ADJR Act].

Particulars The [DAC]received in evidence written statements of two of the Applicant's former superior Officers, Mr Anthony Pass and Mr Mike Kirkpatrick. Prior to the hearing before the respondents on 17 and 18 December 2001, the Applicant had been informed that Messrs Pass and Kirkpatrick would be present at the hearing and available for cross-examination by the Applicant's legal representative. The Applicant was informed on the day prior to the hearing that they would not be present and would not be available for cross-examination. The Applicant sought an adjournment so that they could be made available but this application was declined. (b) The decision involved errors of law within s 5(1)(f) of the ADJR Act.

The respondents received into evidence, over the objection of the Applicant's legal representative, evidence comprising transcripts of telephone interceptions in contravention of the Telecommunications (Interception) Act 1979 and which had been obtained by the Australian Customs Service in contravention of that Act.

The respondents also received into evidence, over the objection of the Applicant's legal representative, evidence comprising Australian Federal Police covert surveillance records provided by the Australian Federal Police to the Australian Customs Service in breach of section 16 of the Privacy Act 1988.

The respondents should have upheld the appeal on the ground that, in circumstances where the charges were laid more than 12 months after the offences were alleged to have been committed, were not the subject of an inquiry for a further 8 months and given the nature of the charges, the Applicant was placed at a substantial disadvantage in responding to those charges.

That, in relation to the charge relating to 28 April 1998, the respondents failed to find that the elements of section 56(d) of the Public Service Act had been made out and yet still found the charge proved. (c) The making of the decision was an improper exercise of the power conferred by the [Merit Protection Act] within section 5(1)(e) of the ADJR Act.

The Respondents should have refused to entertain the charges in circumstances where those charges were laid more that 12 months after the offences were alleged to have been committed, were not the subject of an inquiry for a further 8 months and were not the subject of the hearing de novo by the Respondents until approximately four years after their alleged commission.'

Disciplinary action under the PSA 6 At the relevant time Division 6 of Part III of the PSA regulated disciplinary action against Public Service officers. Section 61(2) provides, inter alia, that if an authorised officer is of the opinion that an officer may have failed to fulfil his duty as an officer the authorised officer shall decide, as soon as practicable, whether he should be charged. Under s 62(1) an inquiry into any charges must be held 'without undue delay' by either the relevant Secretary or an inquiry officer appointed for the purpose. The same person may not be both the authorised officer under s 61(2) and the inquiry officer under s 62(1). As stated to at [2] above, in respect of the charges under consideration in this proceeding the authorised officer was Ms Karen Williams and the inquiry officer was Mr Doug Greaves.

7 Of the nine charges upheld by the DAC, eight were based on s 56(f) of the PSA and one on s 56(d). Section 56 provides that an officer shall be taken to have failed to fulfil his duty as an officer 'if and only if' the circumstances are such that his or her conduct falls within one or other of the subsections of s 56. The circumstances referred to in s 56(f) arise where an officer: '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 conditions upon which he is employed;' 8 In relation to s 56(f), it was alleged that on eight occasions between 18 September 1997 and 28 January 1998 the applicant had breached a regulation in force under s 82D of the PSA by not accurately recording his attendance on duty. The relevant regulation was Public Service Regulation 13(a), which provided: 'An officer who records as the time of his arrival on duty or his departure from duty a time other than the actual time of his arrival on duty or his departure from duty, as the case may be … commits a breach of these regulations.'

Regulation 13(a) was repealed on 15 March 1998. Presumably for this reason the charge that on 28 April 1998 the applicant did not accurately record his attendance was brought under s 56(d) alleging that the applicant had engaged in 'improper conduct as an officer'.

Evidence relied on to support charges 9 In its report of 7 January 2001 the DAC said of the evidence relied on to support the charges made against the applicant: 'The documentary evidence adduced by the respondent demonstrates an apparent inconsistency between the [applicant's] actual location and activities on the dates the subject of the charges and the certification by him of his working hours on those days on his flex time attendance records.

Some of the evidentiary material tendered by the respondent became available as a result of covert surveillance of the appellant and the interception by the Australian Federal Police of telephone calls on his home and office telephones. This material included surveillance logs maintained by the investigators, transcripts of intercepted telephone conversations and photographs.

The respondent also relied on hotel records, the work attendance records which the [applicant] completed and the [applicant's] account of events during a lengthy recorded interview with Mr Greaves.' 10 The telephone interceptions were carried out by the Australian Federal Police ('AFP'), pursuant to a warrant issued under the Telecommunications (Interception) Act 1979 (Cth) ('Interception Act'). The warrant had been obtained in relation to a criminal investigation being carried out jointly by the AFP and the Internal Affairs Unit of ACS between 9 December 1997 and 12 June 1998. The covert surveillance referred to by the DAC was also part of this investigation. No criminal charges eventuated from this investigation.

Use of information derived from intercepted telephone calls 11 It was not in contention that the information obtained by the interception of the applicant's telephone calls ('intercepted information') was lawfully obtained by the AFP under a valid warrant. It is the use (not the collection) of the intercepted information that is challenged here. The applicant claims that the intercepted information was obtained by ACS in contravention of the Interception Act and that the DAC made an error of law in receiving the transcripts of intercepted phone calls into evidence. The applicant's submissions on ACS's use of the intercepted information can be summarised as follows: 1. Information lawfully obtained by interception pursuant to the Interception Act must not be used, communicated, recorded or given in evidence other than in accordance with Part VII of that Act; s 63. 2. As the intercepted material was obtained by the AFP, under s 67 of the Interception Act,the AFP was the only agency that was entitled to use it and then only for a permitted purpose; see [21] below. 3. Although s 68 of the Interception Act permits communication to certain other persons or agencies under specified circumstances, ACS is not such an agency. 4. If, contrary to the above, the communication was authorised under s 67, it was only to be used for the permitted purpose for which it was gathered and communicated (see s 73 of the Interception Act) which was for the investigation or inquiry into alleged 'misbehaviour' or 'improper conduct' of an officer of the Commonwealth within the meaning of (b)(i) of the definition of 'permitted purpose' in s 5 of the Interception Act. 5. The charges under s 56(f) did not relate to alleged 'misbehaviour' or 'improper conduct' and therefore the investigation or inquiry into those charges was not for a permitted purpose. 12 The respondent's response to these submissions was two-fold: (a) the applicant was precluded from raising this issue because it had previously been decided in proceedings between the applicant and the respondent and consequently an issue estoppel arose between the parties; and (b) in any event, the communication of telephone interceptions to Mr Greaves was authorised under the Interception Act.

Issue estoppel 13 Issue estoppel reflects the law's concern with the finality of litigation. As its name suggests it operates to preclude subsequent litigation of an issue that has previously been determined between the same parties provided that the issue was fundamental to the determination; Blair v Curran (1939) 62 CLR 464 at 531-533; Rogers v The Queen (1994) 181 CLR 251 at 283-4, per McHugh J. Although they are often quoted it is useful to set out once again some of Dixon J's observations in Blair v Curran. His Honour said at 531-2: 'A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or restrained or that rights be declared. … Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order.' 14 The issue estoppel here is said to arise from the decisions of Einfeld J in proceedings brought by the present applicant; Day v Commissioner of Australian Federal Police [2000] FCA 398; (2000) 96 IR 240 ('Day v AFP') and of the Full Court in Day v Commissioner, Australian Federal Police [2000] FCA 1272; (2000) 101 FCR 66 ('Day v Commissioner'). Einfeld J dismissed the application before him and the Full Court dismissed the appeal from the decision of Einfeld J. I shall refer to these decisions collectively as the 'earlier proceedings'. On 10 August 2001 the High Court refused leave to appeal from the decision of the Full Court. 15 The earlier proceedings were concerned with seven charges of improper conduct ('1999 charges') that were laid against the applicant on 22 March 1999 under s 61(2) of the PSA. The 1999 charges related to the period from June 1997 to January 1999 and although laid after the charges under consideration here they came before the Court on an earlier date. The respondents were the AFP; the Commonwealth of Australia; Ms Karen Williams, the officer authorised for the purposes of s 61(2) of the PSA to decide whether charges should be laid; and Mr Peter Thomson, a Senior Customs officer, who was appointed as inquiry officer in respect of the 1999 charges. As previously noted (see [2] and [6] above) Ms Williams was similarly authorised under s 61(2) in relation to the charges presently under consideration. 16 Before the commencement of the inquiry into the 1999 charges the intercepted information had been conveyed to Customs officers who had used it in deciding whether to lay charges against the applicant. The applicant claimed that it was unlawful for the AFP to convey the intercepted information to the Customs officers for their use in disciplinary proceedings against him and that the inquiry should be aborted and the charges set aside. 17 The respondent submitted that as a consequence of the decisions in the earlier proceedings the applicant is estopped from raising in this proceeding any question as to the legal right of ACS officers to use the intercepted information in the disciplinary proceedings which are the subject of the application before me.

The proceedings before Einfeld J - Day v AFP 18 It is necessary to look at the decision of Einfeld J in some detail. The fundamental question before his Honour, expressed at [18] of the judgment, was, 'whether the first respondent [AFP] was entitled to release the information lawfully intercepted under the [Interception Act] to the other respondents for their use in disciplinary proceedings against the applicant under the [PSA]'.

His Honour referred to s 67 of the Interception Act which provides: '(1) An officer or staff member of an agency may, for a permitted purpose, or permitted purposes, in relation to the agency, and for no other purpose, communicate to another person, make use of, or make a record of the following: (a) lawfully obtained information other than foreign intelligence information; (b) designated warrant information. (2) An officer of an eligible Commonwealth authority may, for a permitted purpose, or permitted purposes, in relation to the authority, and for no other purpose, make use of, or make a record of the following: (a) lawfully obtained information other than foreign intelligence information; (b) designated warrant information.' 19 The definition of 'permitted purpose' in s 5 of the Interception Act includes, in relation to the AFP, a purpose connected with, '(a)(ii) 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;

(b)(i) an investigation of, or an inquiry into, alleged misbehaviour, or alleged improper conduct, of an officer of the Commonwealth, being an investigation or inquiry under a law of the Commonwealth or by a person in the person's capacity as an officer of the Commonwealth;

(ii) a report on such an investigation or inquiry'.

20 Einfeld J summarised the contentions of the applicant as follows: 'The applicant contended that s 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 s 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 [PSA]. Indeed, according to the applicant, ss 63 and 68 specifically prohibit such communication and use.' 21 Einfeld J expressed his conclusions in relation to the issues raised in those submissions in [14] of his reasons for decision: 'I reject the applicant's suggested construction of the [Interception Act]. In my opinion, s 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 [PSA] 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 [AFP's] officers, the communications will mostly be to officers of to the 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 s 6G(1)(a) a person employed by or under Commonwealth law to conduct an investigation of inquiry of the kind entrusted to the fourth respondent.'

His Honour, at [15] of his reasons, also supported his conclusion with reference to aspects of the scheme of the Act.

The Full Court decision - Day v Commissioner 22 Although Einfeld J's decision was the subject of an appeal to the Full Court, his Honour's rejection of the contention that s 67 relates only to intra-agency communications and does not permit the AFP to disclose intercepted information to another Commonwealth body or one of its officers, including the ASC, was not challenged in the appeal. However, it was contended that Einfeld J did not deal with another argument that had been put to him by the applicant, namely that at the time the intercepted information was passed to the ACS and to Ms Williams, 'there was no investigation of, or inquiry into, alleged misbehaviour, or alleged improper conduct on the part of the appellant under a law of the Commonwealth as, under the [PSA] there could be no such investigation or inquiry unless and until the charge was laid under s 61(2) of the [PSA]. It is only, it was said, subsequent to the laying of charges that such investigation or inquiry occurs' (per the Full Court at [8]). 23 The transcript of the hearing before Einfeld J was not before the Full Court and the respondent did not concede that this argument had been put to his Honour. In the circumstances the Full Court decided to deal with the issue without embarking on an inquiry as to whether the argument was or was not put.

24 Noting that the words, 'investigation' and 'inquiry' are not defined in the Interception Act, the Full Court rejected the narrow interpretation put by the applicant and stated that, 'In its ordinary meaning "investigation" is the act or process of searching or enquiring in order to ascertain facts'.

The Full Court, in dismissing the appeal, observed that an officer authorised under s 61(2) may or may not have to conduct an investigation 'in the ordinary meaning of that term' and continued, at [12]: 'Paragraph (b)(ii) of the definition of "permitted purpose" refers to two types of investigation or inquiry into alleged misbehaviour or alleged improper conduct of an officer of the Commonwealth, as being within the scope of the paragraph, namely: (i) an investigation or inquiry under a law of the Commonwealth; or (ii) an investigation or inquiry by a person in the person's capacity as an officer of the Commonwealth.

The fallacy in the appellant's argument lies in the proposition that investigation of, or inquiry into, alleged improper conduct can only commence after charges have been laid under s 62. Investigation of and enquiry into the alleged improper conduct might begin at a much earlier point in time as part of the process of deciding whether a charge should be laid.

On the construction advanced by the appellant, an inquiry officer … could have access to the [intercepted information] after a charge is laid, but the person considering whether to lay the charge … could not. It is unlikely that the legislature intended to produce so capricious a result. The conclusion which we have reached avoids that consequence.'

Reasoning and conclusions on claim of issue estoppel 25 As Einfeld J's rejection of the contention that s 67 relates only to intra-agency communications and does not permit the AFP to disclose intercepted information to another Commonwealth body or one of its officers, including the ASC, was not challenged in the appeal, his Honour's decision on that point is decisive between the applicant and the other parties to that decision. It therefore follows that the respondent's claim of issue estoppel in relation to submission number 2 in [11] above is made out. The applicant is precluded from raising this issue by the decision of Einfeld J which is precisely in point and which was necessarily established as the legal foundation of his Honour's conclusion.

26 Although issue estoppel does not extend to all the matters raised in this proceeding there is one other matter in respect of which the respondent submits the doctrine applies. This relates to the considerable significance the applicant attaches to the distinction between s 56(d) which refers to engaging in 'improper conduct as an officer' and s 56(f) which refers to a breach of regulations or the terms and conditions of employment. Eight of the charges under consideration were brought under the latter provision and only one under the former. As previously explained, this appears to be because the relevant regulation was repealed; see [8] above.

27 It was submitted that the only 'permitted purpose' under s 5 of the Interception Act potentially available would be 'an investigation of, or an inquiry into, alleged misbehaviour or alleged improper conduct'. Thus, even if communication by the AFP was authorised under s 67, under s 73 the intercepted information could only be used in connection with one of the charges. Since the DAC, in assessing the penalty to be imposed on the applicant, had explicitly looked at the breaches collectively, it was submitted that if the DAC's decision on one or more of the charges is vitiated by an error of law the DAC's ultimate decision is 'bound to be tainted'. 28 In the earlier proceedings all of the charges that the applicant had failed to fulfil his duty as an officer relied on s 56(d), namely that he had engaged in improper conduct as an officer. There was no complaint of breach of a regulation. Despite this I do not accept that for present purposes the distinction between the two subsections is significant nor that they are mutually exclusive; see McManus v Scott-Charlton (1996) 140 ALR 630-1. In my view, the very form of s 56 is against it. In s 56, improper conduct in subsection (e) and contravening or failing to comply with a regulation in subsection (f) are but two instances of an officer failing to fulfil his duty as an officer. Moreover the operative concept in relation to disciplinary action is 'misconduct' which is defined in s 55(1) as meaning 'a failure of an officer to fulfil his duty as an officer'. In other words all the charges in this case were charges of misconduct. Similarly s 62 refers to an officer being charged with 'misconduct' under s 61 and uses the term repeatedly throughout the section; see also s 63D. 29 That leads to the issue of whether the 'misconduct' of an officer in failing to fulfil his duty as an officer can be said to be 'misbehaviour' or 'improper conduct' within the meaning of the definition of 'permitted purpose' in the Interception Act. In relation to that question, however, the doctrine of issue estoppel arguably applies. In Day v Commissioner the Full Court held that the communication of the intercepted information by the AFP to the ACS was for a permitted purpose under the Interception Act. That purpose was identified as an investigation or inquiry into alleged misbehaviour or alleged improper conduct of an officer of the Commonwealth. The Full Court could not have come to that decision in respect of an investigation as to whether the officer had failed to fulfil his duty as an officer under s 56, unless it had accepted that the conduct of an officer in failing to fulfil his duty as an officer can be said to be 'misbehaviour' or 'improper conduct' within the meaning of the definition of 'permitted purpose' in the Interception Act. In other words it was essential to the Full Court's decision and, as McHugh J pointed out in Rogers v The Queen (1994) 181 CLR 251 at 283, the binding effect of issue estoppel extends to: 'every matter that was essential to the decision even if that matter was not itself contested in the litigation.'

I note also that the same matter was also essential to the finding of Einfeld J that s 67 permitted the AFP to pass the intercepted information to the inquiry officer for the purposes of an investigation or inquiry under the PSA in to the alleged misconduct of a Commonwealth officer; see extract of his Honour's reasons quoted above at [20] - [21]. The fact that His Honour's decision on the point was not challenged on appeal means that the point stands as between the applicant and the respondent. 30 In any event, and in case I am wrong in concluding that there is an issue estoppel arising from the decisions in the earlier proceedings, it is my opinion that an investigation or inquiry into alleged misconduct under s 56 is a permitted purpose within the meaning of s 67 of the Interception Act. The charges laid against the applicant are not, as he submits, mere technical irregularities. They are, whether laid under s 56(e) or s 56(f), charges of misconduct. The PSA does not distinguish between them although, of course, the gravity of any particular instance of misconduct will be relevant at the penalty stage of an inquiry.

Material differences in the present circumstances 31 The applicant submits that the present circumstances are materially different from those in the earlier proceedings and hence those decision do not raise an issue estoppel in respect of the legality of the respondent's right to receive and use the intercepted information in relation to the charges presently under consideration. Dr Bell, counsel for the applicant, submitted that the earlier proceedings related to the use of the intercepted information prior to the laying of any charges, that is to the inquiry and investigation stage, whereas the present proceeding concerns the use of such information by the DAC, that is at the hearing of an appeal under s 63D(2) against the decision of Mr Greaves, the inquiry officer. Mr Hanks QC, senior counsel for the respondent, conceded that the issue estoppel arising out of the earlier proceedings did not extend to this point. 32 In support of this submission Dr Bell pointed out that Einfeld J was at pains to distinguish the circumstances before him from those considered by Sackville J in Taciak v Australian Federal Police (1995) 131 ALR 319 ('Taciak'). 33 Taciak concerned the legality of the Commissioner of the AFP using lawfully obtained telephone interception information in deciding whether to reappoint Mr Taciak on the expiration of his initial term as a non-commissioned officer in the AFP. It is not necessary to explore his Honour's reasoning in detail. For present purposes it is sufficient to note that for such use to be lawful it must be for a 'permitted purpose' under the Interception Act. Relevantly the definition of 'permitted purpose' in s 5 of the Interception Act includes in paragraph (b)(i) 'an investigation of, or an inquiry into, alleged misbehaviour, or improper conduct, of an officer of the Commonwealth being an investigation or inquiry under a law of the Commonwealth or by a person in the person's capacity as an officer of the Commonwealth'. Sackville J held that a decision to appoint or to reappoint an officer was different from an investigation or inquiry into alleged misbehaviour or misconduct. His Honour held that for this and other reasons the Commissioner was not entitled to use the information for the purpose of deciding not to reappoint Mr Taciak to his position as a non-commissioned officer. 34 I agree that the decision in Taciak concerned circumstances quite different from those considered by Einfeld J and the Full Court. I do not however, see how this advances the applicant's claim. It does not follow from the fact that Taciak was not concerned with the inquiry and investigation stage that it applies to the DAC's consideration of an appeal from the decision of the inquiry officer. In expressing this view I am conscious of the approach to construction of the Interception Act adopted by Sackville J in Taciak at 330-332, with which I respectfully agree. I do not, however, accept that a restrictive approach to the interpretation of 'permitted purpose' would require the construction for which the applicant contends. 35 That construction would lead to an absurdity similar to that to which the Full Court referred in the passage quoted at [24] above. It would mean that the intercepted material could be used by the authorised officer in deciding whether to lay charges, by the inquiry officer in hearing those charges but not by the DAC in hearing an appeal from the decision of the inquiry officer. Like the Full Court I do not believe that the legislature intended so capricious a result. In my opinion the reference to 'investigation of, or an inquiry into' in s 5(b)(i) of the definition of permitted purpose in the Interception Act is sufficiently wide to include not only the authorised officer's consideration as to whether charges should be laid and the inquiry officer's hearing of the charges but also the DAC's review of the inquiry officer's decision.

Natural Justice 36 The particulars of the applicant's claim that the DAC's decision involved a breach of the rules of natural justice within the meaning of s (5)(1)(a) of the ADJR Act are set out at [5] above. In summary the applicant's claim arises from the unavailability for cross-examination of two of his superior officers, Messrs Pass and Kirkpatrick, whose written statements were tendered to the DAC and the DAC's refusal to allow an adjournment of the hearing so that these officers could be called. The applicant alleged that he had been led to believe that the officers would be available for cross-examination and that his defence had been prepared on that basis. Further, the applicant claims that the written evidence, of Messrs Pass and Kirkpatrick, which was adverse to his interests, was relied on by the DAC. 37 The hearing before the DAC was on Monday, 17 December 2001. According to Mr Hasson, the solicitor for the applicant, the first time he discussed with Mr Begbie, the solicitor for the respondent, the possibility of Messrs Pass and Kirpatrick appearing as witnesses was in a telephone conversation on 11 December 2001. 38 On 11 December 2001 Mr Hasson received a bundle of documents (805 pages in all) that the respondent proposed to tender to the DAC. The statements of Messrs Pass and Kirkpatrick were included in that bundle. By letter dated 14 December 2001 the Australian Government Solicitor informed the applicant's solicitor that neither Mr Pass nor Mr Kirkpatrick would be present at the hearing and that it would not be calling on them to give evidence at the hearing. The applicant's solicitor, Mr Hasson, responded by facsimile on the same date stating that the applicant did not intend to object to any of the documents in the bundle but adding: 'We do however have a difficulty in that neither Tony Pass nor Mike Kirkpatrick are available to give evidence at the appeal. Given your oral advice that you would be calling both Tony Pass and Mike Kirkpatrick we have prepared our case and in those circumstances we will be asking for an adjournment on Monday 17 September in order to have both those gentleman available for cross examination.' 39 Before me Mr Hasson confirmed that the reference to 17 September was an error and should have been 17 December. 40 Mr Hasson's account accords with the evidence of Mr Begbie except in one particular. Mr Begbie stated that in the telephone conversation of 11 December when this issue was raised he advised that 'the only witnesses likely to be called' by the respondent were Messrs Pass and Kirkpatrick but that the respondent 'would still need to finalise the decision.' On cross-examination before me Mr Hasson agreed that while he did not recall Mr Begbie referring to the need to finalise the decision about witnesses, he did not deny that this was the case. Mr Hasson also admitted that he could not recall whether he had ever formally stated to Mr Begbie that he would require the two officers to be available for cross-examination. 41 At the hearing before the DAC Mr Hasson applied for the hearing to be adjourned. Apparently there was no transcript of the proceedings before the DAC. However, in his affidavit of 29 November 2002, Mr Begbie described the circumstances of this application as follows: '(a) Mr Hasson said words to the effect: "If Mr Day does give evidence we want an assurance that Mr Pass and Mr Kirkpatrick won't be recalled"; (b) The DAC's Convenor … clarified Mr Hasson's application stating words to the effect: "That would be evidence in reply"; (c) I then stated words to the effect: "We cannot give any assurance that we will not later make an application to seek evidence in reply from Mr Kirkpatrick or Mr Pass without having heard Mr Day's evidence. Whether or not such an application would be made depends upon what Mr Day says in evidence; (a) The Convenor then said words to the effect: "The DAC cannot make a ruling at this stage that Mr Begbie not be permitted to call any evidence in reply. All you could do is seek an adjournment". (b) Mr Hasson then said words to the effect: "Then I make an application for an adjournment to call Mr Pass and Mr Kirkpatrick".' 42 Mr Begbie stated that, to the best of his recollection, 'at no stage did Mr Hasson submit to the DAC that an adjournment was sought in order to challenge any of the accounts of Mr Pass or Mr Kirkpatrick'. 43 The respondent contends that the DAC's refusal to grant an adjournment did not involve a breach of the rules of natural justice as the evidence shows that: '(a) Mr Day had not communicated any desire to the Commonwealth to cross-examine Mr Pass or Mr Kirkpatrick prior to 14 December 2001… (b) Mr Day had taken no steps to ensure that Mr Pass and Mr Kirkpatrick would be called to give evidence at the first hearing date of 1 November 2001, or at the hearing on 17 December 2002… (c) the sole purpose of the application for adjournment was to avoid the possibility that Mr Pass and/or Mr Kirkpatrick may be called in reply to any evidence that Mr Day may have given… (d) the application was only made as a result of the DAC's refusal of Mr Day's application for a ruling that the Commonwealth not be permitted to call evidence from Mr Pass and/or Mr Kirkpatrick after Mr Day had given evidence… (e) Mr Day's evidence at the DAC hearing was not in any real dispute with the written evidence of Mr Pass and Mr Kirkpatrick… (f) neither Mr Pass nor Mr Kirkpatrick were in fact called to give any oral evidence in reply…'. 44 The relevance of the evidence of Messrs Pass and Kirkpatrick in defending proceedings before the DAC is that the applicant contends that they, his supervisors, had authorised his absence from work at relevant times and that this explains the discrepancies in his flexitime sheets. The respondent contends that even if proven this assertion would be no answer to a charge of failing to record his attendance at work accurately, a charge in which the relevant consideration is the material entered in the attendance record and not any authority to be absent. 45 In its reasons for decisions the DAC made separate findings in relation to each charge. It addressed Mr Kirkpatrick's evidence in relation to the charges pertaining to 20 and 28 November 1997. The DAC noted that Mr Kirkpatrick was not called to give evidence in the proceedings but referred to things that Mr Kirkpatrick told Mr Greaves during a telephone interview conducted on 7 April 1999. The DAC noted that Mr Kirkpatrick agreed that his usual practice was to permit his staff short absences from work for private purposes, that he could not recollect specific instances where the applicant had been absent for a whole afternoon or on a specific day and that he did not perceive any problem with the applicant's attendance at work. 46 In relation to the charges pertaining to 30 December 1997 and 28 April 1998 the DAC noted that the applicant claimed to have informed Mr Pass of his absence from work but that the applicant had never contended that he had authority to falsify his attendance record. There is no mention at all of evidence given by Mr Pass himself and apparently no evidence was led to challenge the applicant's contention that he had informed Mr Pass of his absence. 47 There is no evidence to suggest that the DAC gave any consideration to the written statements of either Mr Pass or Mr Kirkpatrick. In so far as it appears that evidence from Mr Kirkpatrick was considered it appears to be substantially consistent with the applicant's own version of events and certainly does not touch on any purported authorisation to certify inaccurate timesheets. The DAC was unable on the state of the evidence to determine whether Mr Kirkpatrick had authorised the applicant's absence from work. In any event, the applicant did not claim that Mr Kirkpatrick gave him authority to certify the correctness of inaccurate attendance records. I find the applicant's submission that a 'review of the DAC's decision… makes it plain that considerable significance was attributed by members of the DAC to… untested and untestable statements of Mr Pass and Mr Kirkpatrick' entirely unconvincing. Nothing in the evidence before me indicates that the DAC, in reaching its decision, placed any reliance whatsoever on the statements of either Mr Pass or Mr Kirkpatrick. 48 I am not satisfied that there was any denial of natural justice occasioned by the non-appearance of Messrs Pass and Kirkpatrick before the DAC or flowing from the refusal of the DAC to grant the applicant an adjournment. If the applicant was of the opinion that the evidence of these persons would significantly assist his case it was open to him to take statements from them and ensure that they were available to give evidence in the proceedings before the DAC. While I do not draw any adverse inference from the applicant's failure to do this I am satisfied that neither Mr Pass nor Mr Kirkpatrick could have given evidence that would have influenced the DAC's decision either way.

Alleged breach of privacy principles 49 The applicant submitted that use of evidence obtained by the AFP's covert surveillance of him was in breach of s 16 of the Privacy Act 1988 (Cth) ('Privacy Act') because it breached one or more Information Privacy Principles. Although the applicant contended that the DAC erred in law within s 5(1)(f) of the ADJR Act in receiving such evidence there was no submission as to how the error was constituted. 50 The jurisdiction of this Court in relation to breaches of the Privacy Act is limited. The scheme of the Privacy Act is for complaints about such breaches to be made to the Privacy Commissioner who will investigate the complaint and make a determination; ss 36 and 52. Determinations of the Privacy Commissioner are not binding or conclusive between any of the parties to the determination; s 52(1B) but there is provision in s 55A for certain persons to seek to enforce a determination in this Court or in the Federal Magistrates Court. There is however no provision in the Privacy Act for a breach of the Privacy Principles to be directly actionable in this Court; Ibarcena v Templar [1999] FCA 900 at [8]-[9] per Finn J. See also Gao v Federal Privacy Commissioner [2001] FCA 1683, at [10] per Ryan J; upheld by the Full Court in Gao v Federal Privacy Commissioner [2002] FCAFC 128. The principles were also accepted by Goldberg J in Gao v Federal Privacy Commissioner [2002] FCA 823, at [22] - [23]. 51 It appears that the applicant wrote to the Privacy Commission who, in letter dated 4 September 2001, set out a preliminary view that the disclosure of the surveillance information was authorised by Information Privacy Principle 11 and its use by Information Privacy Principle 10. There is, however, no determination of the Privacy Commissioner before me and no application in respect of any such determination. Section 37(1)(c) of the Merit Protection (Australian Government Employees) Act 1984 (Cth) provides that the procedures of Review Committees (which include the DAC) shall be 'conducted with as little formality and technicality, and as quickly as a proper consideration of the matter before the Committee permits'. The information obtained by the covert surveillance was clearly relevant and was not disputed by the applicant. In the circumstances I am not persuaded that there is any basis on which the claim of error of law can be supported.

Delay 52 The applicant alleges that the making of the decision was an improper exercise of the power conferred by the Merit Protection Act and thus was an error of law within s 5(1)(e) of the ADJR Act. He applied for a stay of proceedings before the DAC on this basis but was refused. The chronology of events is described in [1]-[3] above although it may be helpful if I summarise it here. 53 The conduct the subject of the charges occurred in the period between 18 September 1997 and 28 April 1998. Charges were laid on 13 November 1998 although, as described in [2] above, two were withdrawn and replaced in January and February 1999. The inquiry officer gave his decision on 2 August 1999. The uncontradicted evidence of Mr Begbie in his affidavit of 29 November 2002 shows that the applicant was late in lodging his application for a review by the DAC and had to apply for an extension of time under Public Service Regulation 141(2). In a letter to Mr Hasson dated 27 January 2000 the Merit Protection Commissioner made the following statement: 'I note your advice that Mr Day has instituted proceedings before the Federal Court which have the potential to affect the decision of any Disciplinary Appeal Committee which might be convened to consider an appeal. I understand that, as at the time of writing, the decision in this matter has not been handed down. In the circumstances I propose to await the outcome of those proceedings before determining Mr Day's application under Public Service Regulation 141(2).' 54 The proceeding before the Federal Court referred to by the Merit Protection Commissioner was that before Einfeld J. The outcome of that proceeding and the subsequent appeal and application for leave to appeal is described at [14] - [24] above. Leave to appeal was refused by the High Court on 10 August 2001. The hearing before the DAC on 17 and 18 December 2001. The DAC decision that the charges were substantiated was handed down on 7 January 2002 and the decision on penalty on 11 February 2002. 55 There is no doubt that the whole process has taken quite a long time. As the applicant points out, the DAC hearing was roughly four years after the conduct which was the subject of the charges. While this is regrettable it is also partly inevitable given the complexity of the issues and the desirability of awaiting the outcome of proceedings in this Court and the application for special leave to the High Court. While the passage of time must add to the difficulties of the applicant in dealing with the charges, it should be remembered that during the whole period the applicant must have been continually involved in the overall process which would undoubtedly keep issues fresh in his memory. In the circumstances I do not regard the delays as excessive such that they constitute a barrier to the applicant receiving a fair hearing. 56 In relation to this matter the respondent raises the issue of whether the DAC has power to stay its own proceedings. In light of the conclusion I have formed it is not necessary for me to resolve this issue. 57 The orders of the Court will be that the application is dismissed with costs. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate: Dated: 21 August 2003 Counsel for the Applicant: Dr A S Bell

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 3 and 24 February 2003