Application for a Writ of Prohibition against ANTHONY KEVIN PRINCE, THE MINISTER FOR POLICE AND EMERGENCY SERVICES

ANTONY KEVIN PRINCE, MINISTER FOR POLICE AND EMERGENCY SERVICES

Administrative law - Application for orders nisi for writs of certiorari and prohibition - Tests to be applied in determining whether to grant orders nisi - Applicant a police officer on whom a notice had been served pursuant to s 8 of the Police Act 1892 - Notice based on intercepted telecommunications - Whether first respondent Commissioner of Police entitled to make use of intercept information - Whether interception unlawful - Whether second respondent Minister for Police should be prohibited from confirming Commissioner's decision

Justices Act, s 187(1)

Police Act 1892

Telecommunications (Interception) Act 1979 (Cth)

Telecommunications (Interception) and Listening Devices Amendment Act 1997 (Cth)

Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596

Ashbridge Investments Ltd v Minister of Housing [1965] 1 WLR 1320

Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162

Colleen Properties Ltd v Minister of Housing [1971] EWCA Civ 11; [1971] 1 WLR 433

Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163

Estate and Trust Agencies v Singapore Investment Trust [1937] AC 898

Ghani v Jones [1970] 1 QB 693

Grollo v Macauley (1993) 45 FCR 336

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Minister for Aboriginal Affairs v Peko Wallsend [1986] HCA 40; (1986) 162 CLR 24

Parker & Ors v Miller QC & Ors, unreported; FCt SCt of WA; Library No 980249; 8 May 1998

Queensland Housing Commission v Caloundra City Council [1992] 1 Qd R 99

R v Australian Stevedoring Industry Board [1953] HCA 22; (1953) 88 CLR 100

R v Connell; Ex parte Hetton Bellbird Collieries [1944] HCA 42; (1944) 69 CLR 407

R v Deng (1996) 13 FLR 201

R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co [1924] 1 KB 171

R v Fowler; Ex parte McArthur [1958] Qd R 41

R v Medical Appeal Tribunal; Ex parte Gilmore [1957] EWCA Civ 1; [1957] 1 QB 574

Re Capoblanco; Ex parte Castelli, unreported; FCt SCt of WA; Library No 980567; 25 September 1998

Ridge v Baldwin [1963] UKHL 2; [1964] AC 40

Roberts v Hopwood [1925] AC 578

See v Miller (1980) 2 A Crim R 210

Sinclair v Mining Warden at Maryborough [1975] HCA 17; (1974-75) 132 CLR 473

Tooth & Co v Parramatta City Council [1955] HCA 21; (1955) 97 CLR 492

White and Collins v Minister of Health [1939] 2 KB 838

1 TEMPLEMAN J: At the conclusion of this application on 2 November 1999, I informed the parties that I proposed to grant orders nisi, returnable before the Full Court. I also expressed my concern at the waste of the applicant's resources and of public resources inherent in this litigation and litigation then pending in the Industrial Relations Commission. I therefore stayed all proceedings and directed a mediation.

2 At a directions hearing on 27 April 2000 I was informed by counsel that the mediation had been unsuccessful. I therefore lifted the stay on this application, and informed counsel that I would publish my reasons. This was subject to a discovery issue about which I directed counsel to provide short written submissions. However, the matter proceeded in a different way. The respondents filed a statement of "admitted and agreed issues". I allowed the applicant time to respond to this statement, as I understood that he wished to do so. Having now been informed that this is not the case, I proceed on the basis that the "issues" said to have been admitted and agreed may be taken as agreed facts for the purposes of this application.

4 The applicant is non-commissioned officer in the Western Australian Police Service. He seeks a writ of certiorari against the first respondent, the Commissioner of Police, to quash a notice of intention to remove the applicant from his office as a constable, pursuant to s 8 of the Police Act 1892. The second respondent is the Minister for Police. The applicant seeks a writ of prohibition against the second respondent to prohibit him from deciding whether to approve the removal of the applicant.

5 Although the application for orders nisi was made ex parte, as required by O 56 r 1, notice of the application was given to the respondents, who appeared by counsel.

6 In hearing the application I have had the benefit of argument ranging over a number of issues. However, the question for me is not whether the applicant should succeed in his substantive application: it is whether he has an arguable case.

7 I take the law to be as set out in Seaman, par [56.1.1], as follows:

"The purpose of the order nisi or threshold stage by way of the ex parte application required by r 1 is to prevent the time of the court being wasted by busy-bodies with misguided or trivial complaints of administrative error. The court will not go into the matter in depth and the applicant for an order nisi for a writ of prohibition or certiorari need only demonstrate an arguable case for the relief sought: Re Capobianco; Ex parte Castelli (SC(WA), Parker J, Lib No 980567, 25 September 1998, unreported). That case holds that there is no necessity that the arguable case has some reasonable or real prospect of success, unless prerogative relief is sought in respect of quasi-criminal proceedings."

8 This proposition encapsulates the test postulated by Lord Diplock in Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617 at 642 - 642, a test which was adopted by the Full Court in Talbot v Lane (1994-1996) 14 WAR 120, 152, 157. That was the decision followed by Parker J in the case referred to in Seaman, apparently without being criticised by the Full Court: see Re Capobianco; Ex parte Castelli [1999] WASCA 218.

9 Seaman goes on to refer to the more recent decision in Perpetual Trustees WA Ltd v City of Joondalup, unreported; SCt of WA (McKechnie J); Library No 990195; 16 April 1999. There McKechnie J preferred the test stated by Malcolm CJ in Dempster v National Companies & Securities Commission (1993) 9 WAR 215, 262 that:

"... an arguable case is one that is not merely capable of being argued, but one that is reasonably capable of being argued in the sense that it has an argument which has some prospect of success."

10 As McKechnie J pointed out, that was said in relation to appeals under s 187(1) of the Justices Act. In that context, a Judge is required to grant leave to appeal:

"unless he considers that the appeal is frivolous or vexatious or that the grounds of appeal advanced do not disclose an arguable case."

11 In my view, however, the lower standard to which Parker J referred, following Talbot v Lane (supra), is appropriate here. I take that view because Talbot v Lane was concerned with prerogative writs, in relation to which the order nisi procedure is intended to act as a filter to protect the Full Court against what Lord Diplock referred to as "busybodies with misguided or trivial complaints of administrative error ...."

12 The Judge who hears the order nisi application is not to try the matter. As Malcolm CJ said in Savage v Teck Exploration Ltd, unreported; FCt of WA; Library No 7285; 16 September 1988:

"On the application for the order nisi the Judge hearing the application has an opportunity to assist the Full Court by making a preliminary examination of the formulation of the grounds and, where necessary, limiting their scope or permitting amendments so that the matter may proceed to the Full Court on a proper basis."

13 By contrast, the appeal procedure under the Justices Act, is in the nature of a preliminary hearing by one Judge, who is required to form a view about the prospects of the appellant succeeding before another Judge of equal standing.

14 On 21 January 1999, the applicant was served with a notice pursuant to s 8 of the Police Act. The notice was signed by the then Commissioner of Police, who stated that:

"... in the absence of being persuaded otherwise, I intend to recommend to the Minister for Police that he approve your removal from the Western Australia Police Service due to my loss of confidence in your ability to maintain the standards of professional conduct and integrity required of a police officer."

15 Details were given of seven matters on which the Commissioner's loss of confidence was based. More comprehensive details were given in a memorandum dated 8 January 1999 from the Assistant Commissioner (Professional Standards) to the Commissioner. The memorandum is a document of 74 pages, entitled "Summary of Investigation" ("the Report"). A copy was served on the applicant on about 21 January 1999.

16 The first issue arose from the fact that on 28 February 1997, the applicant had been charged with four counts of stealing from the Swan Districts Teeball Association Inc, of which he was the treasurer.

17 Although the applicant had protested his innocence, he was suspended from duty from the date on which he was charged. On 2 June 1999 he was acquitted on all four counts after a trial in the District Court. The first issue has therefore fallen away.

18 The second and subsequent issues identified in the Report, concerned the applicant's conduct between 25 August and 25 September 1998. That conduct came to the attention of the investigators from the interception of calls to and from the applicant's private telephone pursuant to the Telecommunications (Interception) Act 1979 (Cth) ("the Act").

19 It appears from the Report that an interception warrant was issued in furtherance of an investigation into the activities of the applicant's daughter. She was suspected of being an accessory after the fact of a serious offence which had been committed on 4 July 1998.

20 The applicant has no other information about the basis on which the interception warrant was sought or granted. The respondents have not filed any evidence in these proceedings. They admit only that the warrant:

"... was applied for and issued for the purposes of a criminal investigation against a person other than the Applicant".

21 It is the applicant's principal contention that it was not open to the Commissioner to make use of the information obtained from the interception of his telephone calls: and that accordingly, there is no proper basis for the complaints made against him.

22 This contention requires a consideration of the Interception Act.

The Interception Act

23 Part II of the Act relates to the interception of communications. It contains, in s 7(1), a general prohibition against intercepting communications "passing over a telecommunications system".

24 There are however, several exceptions to s 7(1). Relevantly, s 7(2)(b) provides that s 7(1) does not apply to, or in relation to, "the interception of a communication under a warrant".

25 "Warrant" is a defined term. In this context it means a warrant issued under the Act: s 5(1). If communications are intercepted "under a warrant" issued under the Act, the information so obtained falls within the category of "lawfully obtained information". This is defined in s 6E, to be information obtained otherwise than in contravention of s 7(1).

26 It appears to be common ground that the warrant relied on by the Commissioner authorised the interception of communications to or from the applicant's home telephone. However, it is submitted on behalf of the applicant that because the warrant was issued for the purposes of an investigation about someone other than him, information obtained about him was not obtained "under the warrant".

27 Thus, it is said, the interception did not fall within the exception to s 7(1), so that the relevant information is not "lawfully obtained information".

28 This submission raises a question about the scope of the warrant: what, precisely, does it authorise? A similar question was considered in Flanagan v Commissioner of Australian Federal Police (1996) 134 ALR 495. There, the Full Court of the Federal Court construed s 45 and s 46 of the Act, which relate to the issue of interception warrants in respect of class 1 and class 2 offences.

29 Class 1 offences are defined in s 5 to include such serious offences as murder, kidnapping and narcotics offences and related offences. These included aiding, abetting and conspiring to commit the principal offences.

30 Class 2 offences are defined in s 5D. They are serious offences, but less serious than those in class 1.

31 Sections 45 and 46 provide that if a Judge or nominated AAT member is satisfied about certain specified matters, he or she may issue a warrant authorising interceptions of communications made to or from the telephone service.

32 The matters about which the Judge or AAT member must be satisfied include:

that there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the service; and

that information likely to be obtained by the proposed interceptions would be likely to assist in connection with the investigation of the offence in which the person is involved.

In addition, in relation to class 2 offences, the Judge or AAT member is to have regard to:

"..how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant communications made to or from the service ...."

33 The Full Court held, in effect, that it should be inferred from the reference to the privacy of "any person or persons" that although a warrant would be issued in relation to a specific person, it could not be confined to the interception of communications to which that person could be identified as a party from the outset.

"Until a communication to or from a service has been intercepted and recorded, it is impossible to know whether it would be likely to assist in an investigation, or even to identify the parties to the communication."

35 On that basis, the interception of any communication under a warrant is lawful, even if it transpires that the "particular person" is not a party to the communication. Although that reasoning appears to be compelling, I am not persuaded that the applicant should be precluded from raising the question before the Full Court.

36 In any event, the Act does not deal directly with a situation in which it becomes apparent, after an interception warrant has been issued on valid grounds pursuant to s 45 and s 46, that there are no longer reasonable grounds for suspecting that the particular person is likely to use the relevant telephone service.

37 It is provided by s 57(1) of the Act that where the "chief officer" of an agency other than the Australian Federal Police is satisfied that the grounds on which a warrant was issued have ceased to exist, he or she shall:

"(a) cause the Commissioner of Police to be informed forthwith that the chief officer proposes to revoke the warrant; and

38 Where the relevant agency is the police force of a State, the chief officer is, by s 5, the Commissioner: a definition which has an odd result in relation to (a) above.

39 It is not a requirement of an application for an interception warrant that the Commissioner of Police shall be involved. Indeed, in the present case, it seems that the Commissioner was not aware of the existence of the warrant until he was given the Report.

40 However, it would have been apparent to the Commissioner when he read the Report, that all but two of the intercepted conversations took place while the applicant's daughter was in custody. The date on which her bail was revoked was set out in the "Background" section on the first page.

41 That being so, the Commissioner should have appreciated that probably, the criteria for the issue of the warrant had ceased to exist before the calls were made on which the recommendation to serve the Notice of Intention to Remove was based. By then, it was obviously far less likely that the applicant's daughter would use the service; or that information likely to assist in the investigation would be obtained.

42 If that is correct, the question arises whether the warrant should have been revoked as from 12 August 1998: and as to the consequences of it was not.

43 If the warrant should have been revoked before the crucial telephone calls were intercepted, was the information thus obtained in contravention of s 7(1)? Should the Commissioner have declined to act on the relevant information? Was the information obtained from the pre-12 August calls sufficient to justify the s 8 Notice. There is a subsidiary question as to the grounds on which the warrant was issued, about which there is no evidence. Should the Commissioner now be required to disclose these matters? These, I think, are proper questions for the Full Court.

44 If the correct conclusion is that the information was obtained lawfully, that is not the end of the matter. Information obtained lawfully may be used only for a "permitted purpose". That term is the subject of an extensive definition in s 5. The element relied on by the Commissioner is contained in par (c)(iia):

"the making by a person of a decision in relation to the appointment, re-appointment, term of appointment or retirement of an officer or member of staff of [a State Police Force];"

45 It is submitted by counsel for the Commissioner that use of the information obtained about the applicant for the purpose of the decision to issue the Notice of Intention to Remove was a "permitted purpose". In particular, it is submitted, the decision relates to the applicant's "term of appointment".

46 It seems that par (c)(iia) of the definition of "permitted purpose", which was added to the section by s 11 of the Telecommunications (Interception) and Listening Devices Amendment Act 1997 (Cth), was a response to the decision in Taciak v Commissioner of Australian Federal Police [1995] FCA 1481; (1995) 131 ALR 319.

47 In that case, the Commissioner of the Australian Federal Police had used information obtained from the interception of telephone communications in deciding not to re-appoint a police officer whose term of appointment had expired.

48 At the time, the only possibly relevant element of the "permitted purpose" definition in the Interception Act, was:

"an investigation of, or an enquiry 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;"

49 In the Federal Court, Sackville J held that an authorisation to conduct an investigation or inquiry into a person's conduct would not ordinarily carry with it the authority to decide whether his employment should be terminated, or a re-appointment offered.

50 Sackville J went on to express the view that since the fundamental objective of the Act is to protect the privacy of communications, a restrictive approach should be taken to the construction of legislation authorising the use of intercept information for specific purposes.

51 In the present case, counsel for the Commissioner submits that the post-Taciak amendment to the definition of "permitted purpose" was intended to include the making of a decision about the dismissal of a police officer. Counsel relies on the speech of the Attorney General on the second reading of the Amendment Bill, and on the explanatory memorandum.

52 In both the speech and the memorandum it was said that the Bill would permit the use of intercepted information in deciding, inter alia, whether a police officer should be dismissed. But par (c)(iia) does not refer expressly to dismissal.

53 Although the speech and the memorandum may be used as an aid to construction, pursuant to s 15AB of the Interpretation Act 1901 (Cth), that use is limited to confirming the ordinary meaning of a provision, resolving ambiguity or avoiding a manifestly absurd or unreasonable construction. However, in the present case, the Commissioner seeks to make use of the extrinsic material to insert a reference to dismissal which is conspicuous by its absence.

54 Whether he is entitled to do so, particularly in the light of the restrictive approach taken in the Taciak case, but in any event, is also a proper question for the Full Court.

55 In its consideration of these matters the Court will no doubt have regard to the approach to statutory construction summarised by four members of the High Court in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408, and also to the principle to which Stephen J referred in Marshall v Watson [1972] HCA 27; (1970-1971) 124 CLR 640 at 649, that the court cannot usurp the legislative function by closing a gap in a statute.

56 In the applicant's notice of originating motion for orders nisi, dated 17 September 1999, he contends that:

there was no evidence to justify the making of the decisions to remove him (ground 1(b));

the Commissioner exceeded his power to make the decisions by misinterpreting s 63 of the Act (ground 1(c)); or

These contentions raise the questions to which I have referred above. They are important questions: not only to the applicant, but to the community generally. I am therefore persuaded that I should grant the orders nisi.

57 Orders nisi will be granted also in respect of the second respondent, the Minister for Police. This is a formality, in the sense that the same grounds are relied on in relation to both respondents. The outcome of the application against the Commissioner will therefore resolve the dispute involving the Minister.

58 The applicant contends also that he was denied natural justice or procedural fairness by the Commissioner. He complains that he was not given an opportunity to answer Assistant Commissioner Mackaay's analysis of his response to the Notice of Intention to Remove. This analysis is contained in a memorandum dated 2 August 1999 from the Assistant Commissioner to the Commissioner. In particular, the applicant complains that he was not able to respond to what was said to be his "claim of being destitute".

59 In fact, the applicant did not assert in his response that he was destitute: he referred to the fact that between March 1997 and February 1999, when he was suspended without pay, he had no reserves of funds or assets of value other than his family home (applicant's affidavit, p 104).

60 It is true that the applicant was given an opportunity to respond to the original Notice. He did so, fully and comprehensively, in a lengthy submission dated 29 June 1999 (applicant's affidavit pp 95-116). In addition, as I understand it, the applicant provided a further medical report to the Commissioner (applicant's affidavit p 95).

61 However, it is admitted by the Commissioner that the memorandum dated 2 August 1999 was not disclosed to the applicant before he was served with a notice of recommendation to remove him, on 27 August 1999.

62 That being so, it is, I think, arguable that the applicant was denied natural justice. I will therefore allow him to raise this issue before the Full Court.

63 The orders sought by the applicant, in his amended minute of orders dated 1 November 1999 are somewhat convoluted. I therefore direct counsel to confer for the purpose of identifying the questions which the Full Court will need to consider in resolving this dispute. If counsel are unable to agree, the matter may be mentioned to me for the purpose of settling the list of questions.