Australian Capital Territory (Self Government) Act 1988 (Cth), s 23(1)(c), s 37, s 39

Australian Federal Police Act 1979 (Cth), s 8(1)(a), s 64B

Firearms Act 1996 (ACT)

Judiciary Act 1903 (Cth) s. 39B

Australian Federal Police v Craven (1989) 220 FCR 547

Chapman v Commissioner (1983) 50 ACTR 23

Emanuele v Cahill (1987) 71 ALR 302

Enever v The King [1906] HCA 3; (1906) 3 CLR 969

General Steel Industries v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

HCF v Hunt (1983) 44 ALR 365

Little v The Commonwealth [1947] HCA 24; (1947) 75 CLR 94 at 114

Middleton v Western Australia (1992) 8 WAR 256

Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd [1986] HCA 34; (1986) 160 CLR 626

Oriental Foods (Wholesalers) Co Pty Ltd v Commonwealth (1983) 50 ALR 452

South Australia v Commonwealth [1962] HCA 10; (1962) 108 CLR 130

Webster v Lampard [1993] HCA 57; (1993) 116 ALR 545

Australian Law Reform Commission "The Judicial Power of the Commonwealth" Report 92, October 2001

S. Kneebone The Independent Discretionary Function Principle and Public Officers [1990] MonashULawRw 11; (1990) 16 MonLR 184

1. This is an application by the second defendant, the Australian Capital Territory for orders that those portions of the statement of claim pleaded against the Australian Capital Territory be struck out. The substantive action is a claim brought by the plaintiff, Mr Lissner, originally against only the Commonwealth of Australia. The originating application, dated 8 May 2001, brought a claim for damages arising from breach of bailment against the Commonwealth. The action arose from action by the Australian Federal Police on 4 August 1998 when acting on a warrant issued by a Magistrate pursuant to the Firearms Act 1996 (ACT) some 253 items of property, including a substantial number of firearms or parts of firearms, were seized from the plaintiff's residence. A substantial number of these items remain in the custody of the third and fourth defendants.

2. The plaintiff claims that those handling the firearms owed a duty of care as bailee of the goods to the plaintiff, and that the goods have been damaged in breach of this duty. It also claims that certain of the goods, described as "the antiques" were not firearms within the meaning of the Firearms Act 1996 (ACT), and so were not lawfully seized by the police. The action is brought in respect of the antiques in trespass, detinue and conversion.

3. An interlocutory application was brought before Justice Crispin on 18 May 2001 for orders that the property be preserved as evidence in these proceedings. At the hearing of this application Justice Crispin made further orders that Edward Paul Shakeshaft, Chris Milligan and the Australian Capital Territory be joined with the Commonwealth as defendants in the proceedings for final relief.

4. Mr Shakeshaft is a police officer who has been involved in the investigation of this matter. Mr Milligan is a registered gun dealer at whose premises the firearms were ordered by a Magistrate to be stored. At the hearing of this application I was advised that Mr Milligan is intending to retire from this business, and by consent arrangements have subsequently been made for the firearms to be moved from his premises to the custody of the Australian Federal Police.

5. The claim is brought against the Australian Capital Territory as the second defendant by alleging in Para 7C and 7D of the amended statement of claim that the police officer, when he seized the goods, was "an instrument or agent of the Second Defendant", and that the gun dealer who dealt with the goods pursuant to the order of the Magistrate was "an instrument or agent of the Second Defendant" (Paras 7E and 7F). An action in tort may be brought against the Australian Capital Territory pursuant to s 5 of the Crown Proceedings Act 1992 (ACT).

6. The argument for the Australian Capital Territory is that, insofar as it is sued in respect of the actions of the police officer, it is wrongly sued because, under the policing arrangements in place in Canberra, police officers in Canberra are members of the Australian Federal Police and only the Commonwealth Government may be sued in respect of actions of police. Where the Territory is sued in respect of the order of a Magistrate that the goods be held by the Territory, it is said that no liability can accrue to the executive government from a decision by a judicial officer. I was assisted in this matter by carefully prepared written submissions prepared by counsel for both parties.

7. The arrangements for community policing in the Australian Capital Territory are unique. Unlike the position in the States and the Northern Territory, the Australian Capital Territory does not have its own police force. The police service is provided by the Australian Federal Police. The functions of the Australian Federal Police are, pursuant to s8(1)(a) of the Australian Federal Police Act 1979 (Cth), "subject to subsection (1A), the provision of police services in relation to the Australian Capital Territory." Subsection 8(1A) provides

"The Minister and the Australian Capital Territory may enter into arrangements for the provision of police services in relation to the Australian Capital Territory that are in respect of Territory Functions as defined by section 3 of the A.C.T. Self-Government (Consequential Provisions) Act 1988, and, where the arrangements have been entered into, the provision of those services shall be in accordance with the arrangements."

8. The arrangements referred to were in evidence before me. The original arrangement was made on 25 July 1990 between the Minister for Justice and Consumer Affairs on behalf of the Commonwealth and the Deputy Chief Minister and Attorney General on behalf of the Australian Capital Territory. The arrangement provides in clause 25 that

"any dispute or matter of concern to either party arising from this Arrangement shall be a matter for consultation and resolution between the Commonwealth Minister and the ACT Minister in such manner as they see fit."

The presence of this provision in relation to dispute resolution reinforces, it seems to me, the argument put by Mr Mossop that the arrangement is in the nature of an understanding between governments, and is not capable of creating legally enforceable obligations (South Australia v Commonwealth [1962] HCA 10; (1962) 108 CLR 130).

9. There has been a request for and provision of particulars, and the plaintiff has indicated that he brings the action against the Territory because the police officer is an "officer, servant, instrument and agent" of the Territory. Mr Mossop, for the Territory, argues that if the third defendant was an officer of any polity he was an officer of the Commonwealth. It is clearly the law that a member of the Australian Federal Police may be restrainable pursuant to s 39B of the Judiciary Act 1903 (Cth) as an "officer of the Commonwealth" (Australian Federal Police v Craven (1989) 220 FCR 547). I am satisfied that a member of the Australian Federal Police, even when performing community policing duties in Canberra, is an officer of the Commonwealth, and not an officer of the Australian Capital Territory. This has consequences for the ability of a citizen to seek prerogative relief against the police, in that it may well be that this Court does not have jurisdiction and such action should be brought in the Federal Court. This anomaly was recognised by the Australian Law Reform Commission in Report 92 of October 2001 "The Judicial Power of the Commonwealth" where it was recommended that the Judiciary Act be amended so that an action for prerogative relief against an officer of the Commonwealth in respect of his or her performance of a territory function may be brought in a Territory Supreme Court (p 649-650)

10. I am also satisfied that a member of the Australian Federal Police is not a servant of the Australian Capital Territory, as the relationship between a police officer and the government is not the ordinary contractual relationship of master and servant (Chapman v Commissioner (1983) 50 ACTR 23).

11. The only way that the second defendant can be sued in respect of the actions of the police officer is if it can be argued that he was an agent of the Territory. There is however high authority against such a proposition. While a government is generally vicariously liable for the torts of its employees, and in that sense the employees can be said to be agents of the government, it has been held that a police officer, because of the discretionary nature of his or her duties, going back to the origins of the office of constable, is personally liable for their actions, and that there is no liability which attaches to the government. The principle, established in Enever v The King [1906] HCA 3; (1906) 3 CLR 969, was set out in the following terms by Dixon J (as he then was) in Little v The Commonwealth [1947] HCA 24; (1947) 75 CLR 94 at 114:

"any public officer whom the law charges with discretion and responsibility in the execution of an independent legal duty is alone responsible for tortious acts which he may commit in the course of his office and that for such acts the government or body which he serves or which appointed him incurs no vicarious liability."

The doctrine has been subject to academic criticism, but was described by Gibbs CJ in Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd [1986] HCA 34; (1986) 160 CLR 626 at 637 as "firmly established as part of the common law of Australia."

12. It should be noted that the doctrine applies where the police officer, as is normally the case is exercising an independent discretion. The Legislative Assembly in enacting the Firearms Act 1996 has imposed certain executive functions under that Act on members of the Australian Federal Police, and it is certainly arguable that Enever could be distinguished on this basis (see S. Kneebone The Independent Discretionary Function Principle and Public Officers [1990] MonashULawRw 11; (1990) 16 MonLR 184). In seizing and holding the goods, the police officer may not be exercising an independent discretionary duty (cf Oriental Foods (Wholesalers) Co Pty Ltd v Commonwealth (1983) 50 ALR 452)

13. The doctrine has been abrogated by statute in many places, and for the actions of a member of the Australian Federal Police the statutory provision is s 64B of the Australian Federal Police Act 1979 (Cth). This section imposes a liability on the Commonwealth for wrongful acts of members of the Australian Federal Police

"in like manner as a person is liable in respect of a tort committed by his employee in the course of his employment".

The liability, it is apparent, is placed on the Commonwealth, who is in these proceedings properly identified as the first defendant in respect of the allegedly tortious conduct of the police officer. Section 64B does not impose a liability on the Territory.

14. The second defendant argues that the action pleaded against it in respect of its claimed responsibility for the actions of the police officer is bound to fail, as only the Commonwealth is responsible for the actions of a member of the Australian Federal Police. Counsel for the plaintiff argued that the matter should go to trial, because of the unique nature of the policing arrangements for the Territory. Mr Hassell referred to the well established doctrine that a court should exercise the power to strike out for failure to disclose a reasonable cause of action most sparingly and with great caution. (General Steel Industries v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125.

"It is not enough, nor is it appropriate, for legal liability issues as to which factual issues can be critical, to be summarily dealt with by way of mere argument. Especially is that so in the particular context of this litigation which involves the unusual and somewhat novel arrangement whereby the Australian Capital Territory utilises the services of Australian Federal Police Officers in the ACT under an "Arrangement"."

16. There is considerable force in this submission. The Legislative Assembly has no power to make laws with respect to "the provision by the Australian Federal Police of police services in relation to the Territory (Australian Capital Territory (Self Government) Act 1988 (Cth), s 23(1)(c)) but the Australian Capital Territory Executive (being the Chief Minister and Ministers (Australian Capital Territory (Self Government) Act 1988 (Cth) s 39) has the responsibility of governing the Territory with respect to, inter alia, public safety, firearms, law and order and entering arrangements with other governments (Australian Capital Territory (Self Government) Act 1988 (Cth) s 37, Schedule 4). The Executive has exercised these powers by entering into the policing arrangements with the Commonwealth. Since self-government in 1989 a Minister has had responsibility to the Assembly for policing, either as Attorney General or Minister for Police. Mr Hassell argues that, with this political accountability there ought to be legal accountability

17. While it seems to me that the arguments put by Mr Mossop are sound, those arguments lead to the conclusion, which may appear counter intuitive, that although the ACT government is politically responsible for the provision of police services, with a Police Minister accountable to the community through their elected Members in the Legislative Assembly, there is no sense in which the ACT government can be held legally responsible for the actions of members of the Australian Federal Police when exercising their duties in regard to community policing in Canberra. This seems contrary to basic premises of constitutional law and the accountability of a government to its citizens. This may not be a position which would necessarily commend itself to a judge hearing this action, and although Mr Mossop's line of reasoning to get to this position follows existing authority, it does not follow that the contrary position is unarguable. I note that in Middleton v Western Australia (1992) 8 WAR 256 Acting Master Hawkins refused to strike out an action against the State arising from the conduct of a policeman on the basis that, notwithstanding the doctrine from Enever's case the action might have a reasonable chance of success.

18. On a strike out application a party will not succeed on the basis that it has the better argument on balance. Mr Mossop's argument is sound, and may prevail, but it does seem to me that, given the novel nature of the relationship between the Territory, the Commonwealth and the Australian Federal Police, the proposition that a citizen aggrieved at a claimed unlawful act by a police officer may not bring an action against the Territory is not a proposition so abundantly clear that it "should not be permitted to go to trial in the ordinary way because it was apparent that it must fail." (per Mason CJ, Deane and Dawson JJ) in Webster v Lampard [1993] HCA 57; (1993) 116 ALR 545 at 547)

19. I am also mindful that the Territory was added at the direction of the Judge hearing an interlocutory application for orders preserving property. It must follow from this that it was His Honour's view at the time that the Territory was an appropriate party to this dispute.

20. I am not satisfied that these proceedings should be struck out against the second defendant in respect of the second defendant's claimed legal responsibility for the actions of the Australian Federal Police pursuant to the Firearms Act 1996.

21. The second defendant also seeks to strike out paragraphs 7E and 7F of the amended statement of claim where it is asserted that the firearms dealer (the fourth defendant) was an instrument or agent of the second defendant. It was asserted that a person who carries out an order of a court does not thereby become an agent of the executive government, but this argument was not developed in any depth in the hearing of this application. In the written submissions Mr Mossop asserted that the "executive government is not liable in tort for the consequences of orders made by the judicial branch of government". So much may well be so, but the issue here was a search warrant and an order of a magistrate dealing with the custody of the firearms. Although the point was not developed in argument before me, it does not follow that because a decision is made by a magistrate it is a judicial decision. Emanuele v Cahill (1987) 71 ALR 302 is authority for the proposition that a decision by a magistrate in relation to a committal is a decision of an administrative character. It seems to me that Mr Hassell's submissions that the Territory is a bailee of the goods following the order of the magistrate are in no way unarguable, and again the matter should go to trial.

22. In order to succeed at trial the plaintiff will have to overcome the barriers well expressed in Mr Mossop's submissions. But I am mindful of the observation of Master Allen in HCF v Hunt (1983) 44 ALR 365 at 373 that

"A court at first instance should be particularly astute not to risk stifling the development of the law by summarily throwing out of court actions in respect of which there is a reasonable possibility that it will be found, in the development of the law, still embryonic, that a cause of action does lie... one cannot predict, with firm assurance, what the future holds as the final formulation of the new development".

This action raises important issues of public law in respect of the relationship between the ACT Government, the Australian Federal Police, and a citizen. It should not be summarily dismissed.

I certify that the preceding twenty three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly

Counsel for the First & Third Defendants: Mr S Webber

Solicitor for the First & Third Defendants: Australian Government Solicitor

Solicitor for the Second Defendant: ACT Government Solicitor

Solicitor for the Fourth Defendant: Stilling & Associates