Anderson v Sullivan
[1997] FCA 1008
•24 September 1997
FEDERAL COURT OF AUSTRALIA
ADMINISTRATIVE LAW - Police - Reasonable suspicion drug testing - Whether power to direct member to provide urine sample - Source of power - Whether decision to direct vitiated by error - Whether authorised under general order - Meaning of “produce a thing”.
POLICE - Reasonable suspicion drug testing - Whether power to direct member to provide urine sample - Whether authorised at common law - whether direction lawful and reasonable - distinctive nature of police force - directions that relate to “off duty” activities subject to particular scrutiny - possible self incrimination not ground for refusal to comply.
ADMINISTRATIVE LAW - Decision maker misapprehended the source but not the nature of his power - Misapprehension did not invalidate the exercise of the power - Wednesbury unreasonableness - Wednesbury test to be applied to the information actually before the decision maker - unreasonable failure to make inquiries to be judged in light of the information that should have been acquired, not information that could have been acquired - “Reasonable suspicion” less than reasonable belief - must have some factual basis.
Administrative Decisions (Judicial Review) Act 1977 (Cth) s3
Judiciary Act 1903 (Cth) s39B
Australian Federal Police Act 1979 (Cth) ss13 and 14 - General Order 6 - Australian Federal Police (Discipline) Regulations reg 5
Coco v The Queen (1994) 179 CLR 427 (considered)
Public Service Board v Morris (1985) 156 CLR 397 (applied)
Mercantile Mutual Life Co Ltd v Australian Securities Commission (1993) (applied)
McManus v Scott-Charlton (1996) 140 ALR 625 (followed)
Commissioner of Police v Justin (1991) 55 SASR 547 (followed)
Chambers v Wooley (1996) 6 Tas SR 41 (followed)
Sellar v Woods (1982) 45 ALR 113 (referred to)
R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 (considered)
National Treasury Employees Union v Von Raab 489 US 656 (1989) (referred to)
American Federation of Government Employees, AFL-CI0, Local 2391 v Martin 969 F 2d 788 (1992) (referred to)
Associated Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (considered)
George v Rockett (1990) CLR 104 (followed)
Luu v Renevier (1989) 91 ALR 39 (considered)
Royal Commission into the New South Wales Police Service, Final Report, Volume II (referred to)
JAMES WALLACE ANDERSON (Applicant) v LINDA MARGARET SULLIVAN (First Respondent), JIM ALLEN (Second Respondent), JOHN LAWLER (Third Respondent)
ACTG41 of 1997
FINN J
CANBERRA
24 SEPTEMBER 1997
IN THE FEDERAL COURT OF AUSTRALIA ) ) AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ) ACTG 41 of 1997
)) GENERAL DIVISION )
BETWEEN: JAMES WALLACE ANDERSON
ApplicantAND: LINDA MARGARET SULLIVAN
First RespondentJIM ALLEN
Second RespondentJOHN LAWLER
Third Respondent
JUDGE: FINN J PLACE: CANBERRA DATED: 24 SEPTEMBER 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
1. the application be dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) ) AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ) ACTG 41 of 1997
)) GENERAL DIVISION )
BETWEEN: JAMES WALLACE ANDERSON
ApplicantAND: LINDA MARGARET SULLIVAN
First RespondentJIM ALLEN
Second RespondentJOHN LAWLER
Third Respondent
JUDGE: FINN J PLACE: CANBERRA DATED: 24 SEPTEMBER 1997
REASONS FOR JUDGMENT
This application raises two questions. They are these. Could the applicant, Mr Anderson, a member of the Australian Federal Police (“the AFP”), lawfully be directed by any one of the three respondents, Ms Sullivan, Mr Allen and Mr Lawler, also members of the AFP, to provide a urine sample for drug testing on grounds of “reasonable suspicion”? Assuming such a direction could be given, was the actual direction given Mr Anderson a lawful one in this instance? It is common ground that on 23 May 1997 he was directed and he refused to provide a urine sample and that it was Ms Sullivan, apparently, who communicated the direction to him. Subsequently on the same day, after he had commenced proceedings in this court, Mr Anderson did give a sample but on the undertaking that it would not be tested pending the outcome of this application.
To understand how the above two questions arise it will be necessary to set out in some detail (a) the legislative and other framework within which the 23 May direction was given; and (b) the actual circumstances informing the giving of the particular direction. I should note at the outset that I have not so far identified the particular respondent who made the decision that the direction in question be given. That is itself a matter of contention. I should also indicate that, unlike for example with the New South Wales police force, the urine testing of AFP members is not a matter for which express legislative provision has been made: cf Police Service Act 1990 (NSW), s211A.
Finally by way of introductory comment, I should indicate the unusual course that has been taken to ensure that the two questions I have noted could be determined in this application. Initially the application was against the Commissioner of the AFP. Late in the hearing the applicant sought leave to add the three personally named respondents - the first named respondent, Ms Sullivan, in substitution for the Commissioner; the remaining two, Mr Allen and Mr Lawler, as additional parties. I have ordered to this effect. No objection was taken to this course, notwithstanding that in the case of Mr Allen and Mr Lawler, the date of commencement of the proceeding against them actually postdated the conduct of the hearing: see Federal Court Rules O6 r11(3). All three respondents were content that I proceed on the basis that all things done in the proceeding (including receipt of evidence and submissions) would have effect in relation to them. The parties were given the opportunity to provide further written submissions so as to address such additional issues as arose from this substitution and addition of parties. While this course has allowed the matter to proceed expeditiously - the parties are at one in seeking an early resolution of it - it has had unfortunate consequences, not the least of which being that neither Mr Allen nor Mr Lawler have had the opportunity to give evidence. I should add that their “failure” so to do is not in these unusual circumstances reason either for adverse comment or for ready resort to Jones v Dunkel (1959) 101 CLR 298 inferences. The application in its final form is for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) as also now for relief under s39B of the Judiciary Act 1903 (Cth).
The Statutory Framework
The only provisions of the Australian Federal Police Act 1979 (Cth) (“the AFP Act”) of present relevance are ss13 and 14. Section 13(1) provides that:
“13.(1) Subject to this Act, the Commissioner has the general administration of, and the control of the operations of, the Australian Federal Police.”
Section 14 in turn provides:
“14. In the exercise of his powers under section 13, the Commissioner may issue:
(a) orders (to be known as General Orders) with respect to the general administration of the Australian Federal Police; and
(b) instructions (to be known as General Instructions) for the effective and efficient conduct of the operations of the Australian Federal Police;
and may, at any time, amend or revoke any General Orders or General Instructions so made.”
General Order 6 (“GO6”) was one of a number of such orders made by the Commissioner. To the extent that it is presently relevant it provides as follows:
“GENERAL ORDER 6
ALLEGATIONS
A General Order to provide for those allegations and disciplinary matters to which the Complaints (Australian Federal Police) Act 1981 does not apply and for other related purposes.
...
PART 1 - PRELIMINARY
INTERPRETATION
1. In this General Order:
...
“appointee” means a member, special member or staff member within the meaning of the [AFP Act]”;
...
“investigating officer” means:
(a) a member of the Internal Investigation Division or the Internal Security and Audit Division who is directed by the Commissioner to investigate allegations; or
(b) any other appointee or other person authorised by the Commissioner to assist with an investigation;
...
“the Deputy Commissioner” means the Deputy Commissioner, Administration;
...
PART 3 - INVESTIGATIONS
Division 1 - Investigating officer appointed
THE DEPUTY COMMISSIONER
6. Where a report or allegation is received by the Deputy Commissioner, he or she may refer it to the Officer in Charge, Internal Investigation Division or Internal Security and Audit Division, who must appoint an investigating officer.
OVERRIDING ORDERS AND INSTRUCTIONS
7. (1) The Officer in Charge, Internal Investigation Division or Internal Security and Audit Division may give any written or verbal order or instruction to any appointee other than the Commissioner or the Deputy Commissioner in relation to any matter to which this General Order applies.
(2) An appointee who receives such an order or instruction must not, without reasonable excuse, fail to comply with that order or instruction as if it were given by the Commissioner.
POWERS OF INVESTIGATING OFFICERS
8. (1) The investigation of an allegation must be conducted by an investigating officer in such manner as the Deputy Commissioner, or the Officer in Charge of the Internal Investigation Division or Internal Security and Audit Division thinks fit.
(2) An investigating officer may:
(a)obtain information from any person and make such inquiries as he or she thinks fit;
(b)enter, at any time, premises occupied or used by the Australian Federal Police;
(c)inspect any thing that is relevant to the investigation and for that purpose may seize any such thing;
(d)direct an appointee to furnish information, produce a thing or answer a question, being information, a thing or a question that is relevant to the investigation; and
(e)direct an appointee to furnish to the investigating officer a written report relating to the circumstances that the appointee believes gave rise to the allegation.
...”
I merely note that GO6 goes on to make provision for other matters under the following headings: “Records of Conversation to be Supplied”, “Appointees and Complainants to be Notified of Results”, “Results of Hearing to be Placed on Appointees’ Personal File”, “Suspension From Duty - Finding to be Placed on Appointee’s Personal File”, “Representation of Appointees Charged with Breaches of Discipline” and “Retention of Information”.
To complete the account of relevant statutory material reg 5 of the Australian Federal Police (Discipline) Regulations (“the AFP (Discipline) Regs”) states (inter alia):
“Obedience etc to orders
(1) A member or staff member shall not:
(a) disobey; or
(b) fail to carry out;
a lawful direction, instruction or order, whether written or oral, given to him or her by the Commissioner, a Deputy Commissioner, a commissioned officer or the member or staff member under whose control, direction or supervision he or she performs his or her duties.
(2) If a member or staff member is required under subregulation (1) or a General Order or General Instruction that applies to him or her to give information, produce a document or record or answer a question, the member or staff member is not excused from complying with the requirement but the information, the production of the document or record or the answer to the question is not admissible in evidence against him or her in any proceedings other than proceedings for a disciplinary offence.”
The Development of a Drug Testing Policy and Procedure
Assistant Commissioner Leffers, a General Manager of the AFP, has given evidence of the emphasis that has been placed on the institution of reforms in the last several years directed to ensuring, so far as practicable, the highest standards of honesty and integrity on the part of all members of the AFP.
As part of this emphasis at an administrative level, a previous Commissioner in the early 1990s commenced the process of active consideration of a drug testing program for AFP appointees. The findings and recommendations of the First Interim Report (February 1996) of the Royal Commission into the New South Wales Police Service (“the Police Royal Commission”) added stimulus to this and to the possible introduction of both random and targeted drug and breath testing.
In February 1996, the Commissioner and the AFP Association signed a Change Agreement that was certified under the Industrial Relations Act 1988 (Cth) which provided in cl 16.1 that:
“The parties accept that there is a need for the AFP to develop an effective anti-corruption policy. Such a policy will be developed and implemented after consultation and negotiation and should include the development of illicit drug testing, financial probity audits and other disincentives to corruption which are essential for the AFP to fulfil its Vision, Mission and Values.”
Throughout 1996 the AFP developed a policy model on drug testing in a process involving internal and external consultation. In October of that year at a meeting between, amongst others, the Commissioner and the AFP Association, the policy model was considered and a two phase programme endorsed. Phase 1, to be introduced (as it was) on 1 March 1997 dealt with voluntary targeted testing, “reasonable suspicion” testing and applicant screening testing. Phase 2, to be introduced in 1998/1999 was to add mandatory random testing to these.
In November 1996 the Commissioner and the AFP Association signed an “Employment Policy on the Use of Illicit Drugs” (“the Policy”). This stated (inter alia) that:
“This policy of absolute prohibition on the use of illicit drugs by AFP personnel and in the work place is in recognition of the serious effect of the drug phenomenon on modern-day society and of the consequential importance of law enforcement personnel being committed to the highest standards of personal integrity and professionalism.
The AFP’s personnel are routinely called upon to make reasoned, impartial and frequently spontaneous judgements which affect, sometimes significantly and even irrevocably, the rights and freedoms of their fellow citizens. The public and government therefore place considerable faith and trust in law enforcement, conditional always on officials exercising their authorities and powers rationally.
The AFP and AFPA accordingly view the use of illicit drugs by AFP personnel as entirely incompatible with the ethical standards expected of law enforcement. The AFP and AFPA also recognise and uphold the fundamental duty of care to all AFP personnel who have the right to be part of a drug free workplace, safe from the risk of personal threat or compromise posed by the illicit drug trade and drug-using colleagues.
The AFP’s drug policy is a complementary part of broader Human Resource Development and Management strategies that focus on standards of employment suitability, training and education, and occupational health and safety which in the context of this policy, encompass rehabilitation and drug testing.
...
The testing program of this policy will be carried out by an independent collection and analysis body in accordance with the AS 4308. This program will focus primarily on drug testing in sensitive areas/positions, and/or in cases of reasonable suspicion where information/intelligence received justifies such testing. Applicants for AFP employment will also be tested as part of the screening process.
...
The policy is to be read in conjunction with the guidelines and will take effect on and from 1 March 1997.
The “guidelines” referred to in the final paragraph of the Policy were contained in the document “Employment Guidelines on the Use of Illicit Drugs” (“the Guidelines”). These were related explicitly to the AFP’s “integrity platform”; were said to complement the Policy; and provided for such matters and the testing procedure, laboratory analysis, results, rehabilitation, etc. They noted specifically that:
“Refusal to participate in the testing program will be noted in the records maintained by the collector/collection agency. NO further action is to follow unless the matter is one of reasonable suspicion testing where action may be pursued in terms of failing to obey a lawful direction (GO6). If an applicant refuses to participate it will be treated as part of the screening out process during recruitment.”
The Policy and the Guidelines were widely circulated. Following their promulgation, developments occurred in the procedures that would be implemented within the Internal Security and Audit (“ISA”) and Internal Investigations (“II”) arms of the AFP relating to drug testing under GO6. By early February 1997, and again after consultation with the AFP Association, the “ISA/II Procedures on the Administration of GO6 Direction to Provide Urine Sample” (“the Procedures”) were agreed and circulated through the AFP. Before referring to parts of the Procedures I would note that the AFP Association had proposed, prior to their adoption, that an ‘external perspective’ be applied to authorisation for a urine test under GO6 and, as its National Secretary noted in a circular letter of 13 February 1997, an undertaking had been given that:
“no direction to submit to an illicit drug test will be issued until the DII or DISA has briefed a [Deputy Commissioner] of the intent to issue a direction for a sample.”
The Procedures, insofar as they relate to the direction to be tested, provide:
“ISA/II PROCEDURES ON THE ADMINISTRATION OF
GO6 DIRECTION TO PROVIDE URINE SAMPLE
Background
An AFP appointee can only be directed to provide a urine sample pursuant to an investigation authorised by the Deputy Commissioner in accordance with General Order 6. The Deputy Commissioner will appoint Authorised Officers (AO) to carry out such an investigation.
Proposed guidelines for directing an AFP appointee to provide a urine sample in accordance with a General Order 6 authorised investigation:
.An AO shall brief the DIS/DII regarding the intended service of a direction on an appointee to provide a urine sample in accordance with a General Order 6 direction. As part of this briefing the AO will compile the reasons for the suspicion that supports service of the direction re the provision of a urine sample.
.If agreed, DIS/DII shall record their approval for the requirement to direct a urine sample.
.The DIS/DII as part of the briefing process shall advise the Deputy Commissioner of the intent to direct the provision of a urine sample.
...
.The appointee will be directed to provide a urine sample in accordance with the General Order 6 direction. The appointee may be asked about any medical and/or other factors which may affect the test result for the purposes of investigating the allegation and to assist the Med/Sci Review Panel in making a determination.”
The Procedures go on to deal with the taking and testing of a urine sample, the results and their notification to DIS/DII, etc.
The Justifications Given for Drug Testing
I refer to this matter at this stage as it has no little bearing on submissions that have been made concerning the lawfulness of “reasonable suspicion” testing in the absence of an express statutory mandate so to test. Beyond the justifications adverted to in the above extracts/descriptions of the Policy and the Guidelines, it is Assistant Commissioner Leffers’ evidence that deals with the matter. Mr Leffers stated it as his belief that the fundamental nature of policing and the maintenance of good order and discipline were totally inconsistent with the use of illicit drugs by police. He endorsed, and elaborated upon, the views expressed by the Police Royal Commission in its Final Report, Volume II: Reform (May 1997). It is appropriate to set out those views. They are in para 8.52 of the Final Report:
“The problems of substance abuse for police are obvious. They include the circumstances that:
.the nature of police duties which call for calm and careful decisions, a clear head and a balanced exercise of discretion, and the need to use motor vehicles and weapons are utterly incompatible with the impaired judgment and co-ordination which can result from drug and alcohol use;
.public respect for the Service, and the maintenance of good order and discipline are impossible in an environment that tolerates the presence of police at clubs, hotels and the like where they are seen to be affected by alcohol or drugs;
.the bonding influence of long liquid lunches and the shared inappropriate use of drugs is likely to promote the negative aspects of the police culture previously mentioned;
.the necessary association of any police officer who uses drugs, even for recreational purposes, with a supplier creates opportunities for compromise, blackmail and corruption, particularly if the habit becomes expensive to feed;
.a user of prohibited drugs is unlikely to approach the enforcement of drug laws with any degree of conviction;
.participation in any form of criminal offence by a police officer is in fundamental conflict with the sworn duty of the officer to uphold the law;
.the productivity of officers with a drug and alcohol problem is likely to be substantially reduced and the example they provide to other police is not only unacceptable, but a threat to the Service; and
...”
Mr Leffers’ affidavit evidence concluded by noting that, apart from the “obvious” reasons for drug testing of police identified by the Police Royal Commission:
“it is also significant that members of the AFP have at their disposal a means to compromise drug enforcement across the full spectrum of investigations ie from the relatively minor to very major investigations such as importation of illicit drugs by organised crime syndicates. For instance, in the course of their work AFP members may receive extremely sensitive information about ongoing investigations; alternatively, AFP members have access to a vast body of sensitive criminal intelligence concerning known or suspected drug offenders which, if revealed to those offenders, could allow them to arrange their activities to avoid detection and/or compromise the integrity of pending or future investigations. Even if AFP members who use illicit drugs would not otherwise be minded to disclose such sensitive information without authority there is always the risk that the illegal drug-taking of such members may come to the attention of people involved in illicit drugs, thereby exposing such members to blackmail and, in particular, pressure to disclosure information.”
The Direction Given
Because there is significant disagreement between the parties as to who made the decision directing Mr Anderson to provide a urine sample, it is appropriate to set out here the available evidence on this matter.
First, at the end of a very lengthy interview with Mr Anderson on 23 May, the following exchange occurred between the “investigating officer” (Ms Sullivan) and Mr Anderson as recorded in the transcript of the record of that interview:
“Q1335 Alright. Just before we suspended you said you declined to ah willingly provide a urine sample.
A That’s correct.
Q1336 In relation to reasonable suspicion drug testing?
A Yes.
Q1337 Okay. I can tell you now we are able to direct you to provide that sample.
A Mm.
Q1338 And that is what I’m going to do.
A Mm.
Q1339 Alright. You mentioned before you wanted to seek legal advice, is that the path you wish to follow at the moment?
A Yes.
Q1340 Okay. Shall we suspend the interview in order for Constable Anderson to make the appropriate phone call.”
The transcript does not in terms record the actual giving of the direction.
Ms Sullivan in her evidence, indicated that she (a) served a written direction on Mr Anderson pursuant to cl 8(2) of GO6 at the beginning of the interview - this is set out below; and (b) at the end directed him to provide a urine sample and gave him the opportunity to obtain legal advice.
It is Mr Anderson’s evidence that, after the interview terminated in the fashion noted above, he took advice from the AFP Association and his solicitors. Subsequently he claims Mr McDevitt (also from ISA) said to him words to the effect that:
“We have obtained authority from Deputy Commissioner Jim Allen to direct Constable Anderson to provide a urine sample.”
Mr Anderson was then provided with a partial copy of the AFP minute said to confirm this authorisation.
That document, though for the most part blanked out, did indicate it was a “REQUEST TO TAKE URINE SAMPLE” and had handwritten on it (as best one can make out) the following:
“CIC - Approved
Spoke to DCA [Deputy Commissioner Administration Allen] - advised of the circumstances of the test. Approval given. Test No is [a number was given]. FA Linda Sullivan to contact [a named person] from the collection agency to arrange the test. He can be contacted on [phone number]
[Signature]
J Lawler
IDS”
I merely note that all three respondents are named in this handwritten notation.
The full text of this document was tendered. It is convenient to note its contents at this stage. Apart from its heading, the notation already quoted and the designation “Ref: Fragrant”, it was in the following terms:
“REQUEST TO TAKE URINE SAMPLE
In accordance with new procedures, I now wish to advise you that it is the intention of ISA Investigators to obtain a urine sample from an appointee of the AFP; Detective Constable James Anderson, service number 4894 for the purpose of drug content analysis.
Intention to do so is based upon the following information:
Operation Fragrant is based upon an allegation that an unknown member/staff member disclosed protected information to former AFP member Steve Kitney without authority.
In 1995 Steven Kitney was criminally charged with the unlawful access of Commonwealth data and possession of a dangerous drug. In 1996 both of these offences were proven without proceeding to conviction. Kitney was subsequently dismissed from his employment with the AFP.
In October 1996 Detective Constable Brown submitted an information report stating that Kitney, then the current manager of the Liquid Lounge nightclub in Civic, is engaged in drug dealing from that bar and that he had a boyfriend named Andrew.
On 5 February 1997 Commander Dennis McDermott informed Director of Internal Security and Audit, John Lawler, that he had received information alleging that Constable James (Jim) Anderson is involved in a homosexual relationship with former AFP member, Steven Kitney.
On 21 February 1997 Detective Constable David Senior submitted an information report stating that some of the staff at a bar called the Liquid Lounge are dealing in ecstasy tablets and lines of speed from the premises.
On Wednesday 7 May 1997 Constable James Anderson was interviewed by Federal Agent Gary Tuckwood and Federal Agent Cliff Mitchell from Internal Investigations. Federal Agent Tuckwood later informed the undersigned that Constable Anderson displayed unusual behaviour during the interview leaving Federal Agent Tuckwood with the impression that Constable Anderson was possibly under the influence of a drug. Attached is a report compiled by Federal Agent Tuckwood outlining his observations from that interview.
DISCUSSION
There is sufficient reason for Constable Anderson to be directed to provide a urine sample for analysis for ‘reasonable suspicion’ drug testing.
RECOMMENDATION
.That you approve the requested urinalysis. [The word “approved” was handwritten here.]
.That this test take place on either Tuesday 13/5/97 or Wednesday 14/5/97. [A handwritten tick appeared beside this.]
Linda Sullivan
Federal Agent 4853
ISA Investigations
167298
12 May 1997”
I merely note in passing that the document would appear to reflect the procedure for approval by the Officer in Charge ISA (Mr Lawler) “for the requirement to direct a urine sample” envisaged by the Procedures. To anticipate later difficulties it has been submitted that any one or more of Ms Sullivan, Mr Lawler and Mr Allen made the decision or decisions to direct reasonable suspicion urine testing.
I should also add that, though not strictly relevant to the issues before me, I was requested to and did allow Mr Anderson to give evidence denying any homosexual association with Steven Kitney.
Finally, and merely for the sake of completeness, I note the terms of the GO6 direction given to Mr Anderson at the beginning of the interview referred to above. Letterhead and signatures apart, it stated:
“ GENERAL ORDER 6 SECTION 8 SUBSECTION (2)
DIRECTION TO FURNISH INFORMATION
TO: Constable James Wallace Anderson
AN ALLEGATION has been received that:
. that an unknown member/staff member released protected information to former AFP member Steve Kitney without authority.
I THEREFORE DIRECT YOU in accordance with General Order 6, Section 8, Subsection 2(d) [answer questions] and/or (e) [report] of Australian Federal Police General Orders, to forthwith furnish all information by way of comprehensive report and/or by answering all questions relative to the above mentioned allegation.
IN ADDITION YOU ARE DIRECTED to produce any notes, documents or any other thing that may relate to this allegation.
ACKNOWLEDGMENT OF SERVICE: “
The First Question: Can a Direction Lawfully be Given for the Purpose of Reasonable Suspicion Testing?
Against the statutory and administrative background I have set out above, there is the bare question to be answered whether a lawful direction for reasonable suspicion testing can be given at all and if so by whom.
The applicant’s position is the simple one that, despite the year and more devoted to developing and agreeing the Policy, the Guidelines and the Procedures, all this effort has been for nought. It is submitted that the Commissioner simply has not created a regime that can lawfully require an AFP member to provide a urine sample for reasonable suspicion testing.
As I understand it, the applicant’s submission invites me to conclude that:
(a)if there is a power to direct that a urine sample be produced, it must be found in GO6 and the powers given by GO6 cl 8 do not extent to this; or
(b)even if the cl 8(d) power to give a direction to “produce a thing” could be construed as extending to a urine sample (which is denied), it should not be so construed because so to do would abrogate or curtail fundamental rights freedoms and immunities (including here the privilege against self-incrimination in criminal proceedings), but without “unmistakable and unambiguous language”: Fernando v Commissioner of Police (1995) 36 NSWLR 567 at 583; and
(c)the GO6 regime constitutes an “exclusive code” in the disciplinary matters to which it relates: cf Bennett v Commonwealth of Australia (1980) 30 ALR 423; so that there can be no other source that can authorise “reasonable suspicion” drug testing.
The respondents, in contrast, submit that:
(a)the GO6 power to direct the production of a thing was sufficient for the purpose; but
(b)if it was not, authority for the direction was provided in any event by the common law, by s13(1) of the AFP Act, or by the combination of the Procedures and GO6.
The difficulty these submissions highlight is that, in developing a drug testing regime, the Commissioner (after consultation) has attempted to marry two distinct sets of procedures - GO6 and the Procedures. It is an ill-suited union and made the more so because GO6, but not the Procedures, is a statutory instrument.
For present purposes the “reasonable suspicion” testing regime - I need not comment on voluntary or appointment testing - evolved in two stages. Stage 1 was reflected in the Policy and Guidelines. These were not statutory instruments under s14 of the AFP Act. The drug testing regime they envisaged coming into effect on 1 March 1997 was not to be conducted under the umbrella of a General Order (eg GO6). And such lawful authorisation as it was to possess was, presumably, that given to the Commissioner by the common law and/or by s13 of the AFP Act. As I will later indicate, the common law was of itself sufficient to sustain a reasonable suspicion drug testing regime.
Where this stage intersected with GO6 was not in the procedures leading to the giving of a direction to supply a urine sample for reasonable suspicion testing. Rather, as the Guidelines indicate, it was at the point where the person so directed “failed to obey [the] direction”. That failure was a matter that could be pursued as a disciplinary one under GO6: and see AFP (Discipline) Regs, reg 5(1).
In stage 2, the relationship between the Policy and the Guidelines on the one hand, and GO6 on the other was changed in a rather basic way. I have not been provided with an explanation of the reasons for the change, although explanation has been given of the reasons for adopting some of the procedures leading to the giving of a direction for testing (eg that the Deputy Commissioner be advised of the intent to give a direction).
The change to which I have referred was brought about, not by any formal amendment to GO6, but by the formulation of the Procedures. As with the Policy and the Guidelines, the authorisation for the steps envisaged in the Procedures derived from the common law and/or s13 of the AFP Act. While the Procedures carried forward the intent of the Policy and the Guidelines that AFP officers were to be subjected to a regime of reasonable suspicion testing, the Procedures themselves prescribed that an AFP officer “can only be directed to provide a urine sample pursuant to an investigation authorised by the Deputy Commissioner in accordance with GO6.” In other words the Procedures - not GO6 - prescribed hurdles to be crossed before a direction to test was to be given. These were (i) that there be “reasonable suspicion”; and (ii) that there be a GO6 investigation on foot. I do not pause to speculate as to the purpose thought to be served by the second of these.
Assuming the GO6 ‘investigation’ hurdle was crossed in a given instance, the Procedures then laid down its own procedure leading to the giving of the direction. That procedure, as I earlier noted, apparently owes some of its characteristics to undertakings given to the AFP Association. Again as I will indicate below, the Procedures envisage a two stage process that would result in an AFP officer receiving a direction. The first is that a decision to direct is made - and made, in my view, by the Officer in Charge of ISA/II. The second is the giving of the direction itself by the authorised officer conducting the GO6 investigation “pursuant to which” the direction is given. To add to the curiosity of this, the Procedures describe the actual giving of the direction in this way:
“The appointee will be directed to provide a urine sample in accordance with the General Order 6 direction.”
The presupposition in this is, apparently, that the direction itself is one given under GO6. Yet GO6 does not expressly confer any particular power to give a direction to provide a urine sample. Its powers of direction are more general in terms. For this reason the parties’ submissions have focussed, first, on the cl 8(d) power to direct an AFP officer “to produce a thing” and secondly, the cl 7(1) power of the Officer in Charge of ISA/II to “give a written or verbal order or instruction ... in relation to any matter to which [GO6] applies”.
There is nothing before me to suggest that the Procedures were, or were intended to be, an amendment of GO6 effected under the power to amend given by s14 of the AFP Act. Yet it was the Procedures, not GO6, that purported to ordain that (i) a direction could only be given “pursuant to” a GO6 investigation; and (ii) seemingly, the direction itself was a GO6 direction. The apparent intent to assimilate urine testing into the scheme of GO6 is evidenced in the full title of the Procedures - “ISA/II Procedures on the Administration of GO6 Direction to Provide Urine Sample”.
Simply because the Procedures purport to make reasonable suspicion drug testing a GO6 matter, it does not become such for that reason alone. And this raises the first matter in real issue between the parties: does GO6 itself provide the source of power for the giving of a direction to produce a urine sample for drug testing?
A GO6 Direction?
There are said to be two possible sources of power within GO6 for the direction given - the cl 8(d) power of direction “to produce a thing” and the cl 7(1) power of the Officer in Charge of ISA/II to give a verbal or written order or instruction. It is necessary to consider each in turn. I should preface what I have to say by noting that the issue in each instance is simply a question of construction.
(a) Cl 8(d): producing “a thing”
The applicant’s submission would seem to be as follows.
(a) Clause 8 is a coercive power given in a General Order concerned with disciplinary matters and with allegations concerning the behaviour of AFP officers. It should be construed in that light.
(b) Giving the words “produce a thing” their ordinary meaning, they do not encompass a urine sample as it cannot properly be said to be a “thing” and should not be so broadly construed.
(c) Because a contrary construction affects privacy and, it is said, the privilege against self-incrimination, that broader construction should not be adopted in any event in the absence of an unmistakable and unambiguous intention being clearly manifest that such was contemplated: Coco v The Queen (1994) 179 CLR 427.
For their part the respondents’ submissions see no such difficulty in cl 8(d).
(a) A urine sample as such is a “thing”. That an antecedent “production” is necessary for its creation is not to the point because the word “produce” is wide enough to include that “production” as well.
(b) GO6 should be read and construed in the light of the scope, purpose and objects of ss 13 and 14 of the AFP Act and these in turn are part of the scheme which provides for the regulation and control of the police force - a body of quite distinctive character and public purpose: see Police Service Board v Morris (1985) 156 CLR 397 at 404 per Gibbs J.
(c) Notwithstanding their generality, the words of cl 8 when interpreted in the light of the special status and needs of policing are sufficient to exclude something as fundamental as the privilege against self-incrimination: Public Service Board v Morris, above.
(d) The Commission, through the Policy and the Guidelines, clearly intended that AFP officers be required to produce urine samples for testing. GO6 should not be interpreted so as to defeat that intention.
Despite the interesting argument advanced by Mr Howe for the respondents, I would have to say that the language of cl 8(d) is quite inapt for the purpose for which it is so sought to be put. My reasons for this conclusion are several. First, the two references to “things” in cl 8 - additionally para (c) refers to “inspect any thing ... relevant to” etc - strongly suggest that the “thing” contemplated has an existence of its own at the time (i) the direction to produce (para (d)) is given, or is to take effect in the case of a future direction; or (ii) the inspection (para (c)) occurs. In saying this I do not mean to imply that a process of detachment of the relevant thing from some other entity of which it forms part or to which it is attached robs it of the relevant character of being a “thing”. This said, I do not regard undetached elements or parts of the human body - blood, saliva, urine, hair, etc - as being “things” as such, though clearly once severed from the human body they become things in their own right. Until that severance occurs they are what is the person concerned.
Secondly, urine as I have noted is capable of being made a “thing”. But when the clause refers to “produce a thing” it clearly is not referring to the process of creating a thing. Rather it is concerned with making the thing available to the investigating officer.
It has been submitted that I should in effect shrink from so interpreting “produce” when both processes of “production”, if I can so describe them, were (compendiously) within the intendment of the regime the Commissioner was establishing subsequent to the issuing of GO6. That intendment of itself is incapable of giving a new and different connotation to words employed in a statutory instrument: cf Lake Macquarie Shire Council v Aberdan County Council (1970) 123 CLR 327. To countenance it would involve the recipient in a process different in character from that envisaged by the word “produce” as used in the context of GO6; cf its kindred use in reg 5(2) of the AFP (Discipline) Regs (“produce a document or record”).
Mr Howe sought to soften the objection that might be taken to adopting an expansive interpretation of “produce a thing” by excluding the production of a blood sample from its compass. For my own part I see no basis for so differentiating blood from urine or, for that matter, from saliva. The relative ease with which a sample might be obtained does not afford a proper basis for the exclusion where the question in issue is whether the AFP member is required to make a “thing” available. Nor do I think that considerations such as whether the need for physical intrusion in the case of a blood sample as against privacy intrusion in the case of producing urine, have any real bearing on the question of construction in this respect.
Accordingly I reject the submission that cl 8(d) provides an appropriate source of power for the direction given.
Cl 7(1): giving an “order or instruction”
Clause 7 is a distinctive provision. It prescribes (i) by whom “orders or instructions” can be given - ie the Officer in Charge ISA/II; (ii) against whom these can be given - ie any “appointee” other than the Commissioner or Deputy Commissioner; and (iii) the province of their giving - ie “in relation to any matter to which this General Order applies”. What the clause does not do is prescribe the nature or type of orders that can lawfully be given by the Officer in Charge to an appointee “in relation to any matter” etc. Specifically it does not mandate expressly or impliedly the giving of a direction for drug testing (whether for reasonable suspicion or otherwise). Even if such a direction were to be given and in conformity with the three conditions (noted above) prescribed in cl 7(1), the source of the power to give that particular direction, if it exists, must lie elsewhere: cf Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409. As noted below, the possible sources relied upon by the respondents are the common law and/or s13(1) of the AFP Act.
This conclusion is sufficient to dispose of the submission that the power to direct reasonable suspicion drug testing can be sourced to cl 7. I would, though, go on to add this much. I later conclude that the third respondent, Mr Lawler (who was the Officer in Charge ISA), in fact made the decision to subject Mr Anderson to reasonable suspicion drug testing. Here I merely indicate that the evidence tends to support the conclusion that his decision purported to be made in furtherance of the Procedures and not as a cl 7 ‘Overriding order or instruction’ (to adapt the heading of the clause). Furthermore, it is debatable in any event whether the Procedures (and the processes leading to them) envisaged that cl 7, as opposed to cl 8, was to provide the vehicle for bringing reasonable suspicion drug testing within the purview of GO6. It is unnecessary, though, to express a concluded view on these matters.
Other Sources of Power for the Direction?
(a) A preliminary objection
The applicant has made the preemptive submission that, as this direction to provide a urine sample was, in effect, directed at his possible commission of a disciplinary offence, it could only be issued under and in accordance with GO6. If there was no such power sourced to GO6 then that was the end of the matter. The basis of this submission is that in disciplinary matters the AFP Acts, regulations and GO6 constitute an “exclusive disciplinary code”.
This submission is misconceived and in a number of ways. First it may well be that, in the circumstances, Mr Anderson was entitled legitimately to expect that any urine testing of him would be under and in accordance with GO6 because such testing was, in the terms of the preamble to GO6, to be regarded as being related to an ‘allegation or disciplinary matter’ involving him: see Australian National University v Lewins (1996) 138 ALR 1. As to this, I merely note that no issue of natural justice (or procedural fairness) has been raised in this proceeding. Secondly and decisively, while it was the case that a refusal to be tested could have resulted in disciplinary action - in which case the disciplinary procedures mandated by the Act, etc would have had to have been followed - the issue in relation to the direction itself was the anterior one of whether it was a lawful direction. That in turn depends upon whether there was a source of power enabling the direction to be given, irrespective of the provisions of GO6: see eg McManus v Scott-Charlton (1996) 140 ALR 625. Thirdly, though it is unnecessary to express a view on this, to the extent that the applicant submits that GO6 itself has the exclusive characteristics associated with codes, I rather doubt that this quality should be attributed to it in any event. That the Commissioner can alter, amend or revoke it at any time rather tells against the fixity and exclusivity, at least for source of power purposes, that the code submission seeks to attribute to GO6.
(b) The AFP Act s13(1) and/or the common law
Courts in this country have often observed that members of our police forces are both engaged in a very distinctive form of public service and belong to organisations possessing distinctively hierarchical structures. Loyalty and obedience - manifest in oaths of office and statutory and common law duties to obey lawful orders - are characteristics of their service: see Police Service Board v Morris, above, at 404 per Gibbs CJ; 408-409 per Wilson and Dawson JJ; R v Travers (1958) 58 SR (NSW) 85 at 104; as are hierarchy and discipline: cf Chesterman v Mitchell (1923) 24 SR (NSW) 108 at 113-114, a charitable trusts case, where an operative analogy was drawn between the police and “the military”. The discipline expected of, and exacted from, police reflects the particular public character and importance of policing and of police duties: see eg Pense v Henry [1973] WAR 40 at 42. In this regard it is, perhaps, of more than historical interest to note that the Rules made under one of colonial Australia’s first “modern” police statutes - the Police Regulation Act 1862 (NSW) - described “the system of Police [as embracing] in its leading features centralisation of authority and unity of action”: rule 2; see also rules 7, 12; on the evolution of Australia’s police forces see generally Bryett, Harrison and Shaw, An Introduction to Policing, Vol 2, Butterworths, Sydney, 1994.
In Police Service Board v Morris, above, at 412 Brennan J commented on the significance of police discipline in this way:
“The effectiveness of the police in protecting the community rests heavily upon the community’s confidence in the integrity of the members of the police force, upon their assiduous performance of duty and upon the judicious exercise of their powers. Internal disciplinary authority over members of the police force is a means - the primary and usual means - of ensuring that individual police officers do not jeopardize public confidence by their conduct, nor neglect the performance of their police duty, nor abuse their powers. The purpose of police discipline is the maintenance of public confidence in the police force, of the self-esteem of police officers and of efficiency.”
Important to the present matter has been the recognition that, as members of disciplined forces, police “voluntarily undertake the curtailment of freedoms which they would otherwise enjoy”: Police Service Board v Morris, above, at 409 per Wilson and Dawson JJ. That curtailment may not differ in kind from that experienced by others engaged in public office or employment: see McManus v Scott-Charlton, above, at 631-633; but it can differ in degree because of the significance and sensitivity of the policing function itself. It is this last which provides the real focus of contention in this proceeding.
It is not open to question that, both under the AFP (Discipline) Regs, reg 5(1) and at common law, a member of the AFP is required to obey a lawful direction. Equally it is clear, notwithstanding counsel for the applicant’s valiant argument to the contrary, that a regulation of the type found in reg 5 does not admit of a refusal to comply with a direction on the ground of possible self-incrimination: see eg Police Service Board v Morris, above; Commissioner of Police v Justin (1991) 55 SASR 547; see also Chambers v Wooley (1996) 6 Tas SR 41. I merely note in passing that it is unnecessary here for me to decide whether, for the purposes of the limitations on that regulation’s abrogation of the privilege (see reg 5(2)), the production of a urine sample could properly be regarded as the “giving of information”. I would indicate, though, that there are obvious and compelling reasons for why it should be so regarded.
Unlike in the Morris and Justin cases referred to above where the issue was whether there was a lawful excuse for disobeying an otherwise lawful direction, the question here is the anterior one of whether there was power to give such a direction. In my view there was. It is sufficient to say that it can be sourced to the common law considered in the light of s13(1) of the AFP Act.
Before indicating my reasons for this conclusion, I would note that my comments are confined to reasonable suspicion drug testing. I refrain from direct comment on other bases of drug testing (eg random testing) or on directions that are more invasive of privacy or of bodily integrity (eg body searches or blood tests): cf Re Thompson and Town of Oakville (1963) 41 DLR (2d) 294 (Can). I draw attention to these limitations not because of any doubts that I wish to raise relating to them, but because they have not been the subject of detailed argument before me.
Howsoever one properly characterises the “employment” status of members of the AFP: cf Sellars v Woods (1982) 45 ALR 113; it is not open to dispute that the Commissioner is, in virtue of his position and of the responsibility cast on him by s13(1) of the AFP Act, entitled to give lawful directions to members of the force. In the ordinary employer-employee context the orthodox “test” of the lawfulness of a direction for common law purposes is that of Dixon J in R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621-2:
“If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.”
In McManus v Scott-Charlton, above, while not questioning this test as such, I held that in its focus on “the subject matter of the employment”/“the scope of the contract of service”, it did not fully capture what properly could be the subject matter of directions to public servants today. As I there indicated, the obligations of public servants and the powers of the Crown as employer do not all exist merely for employment-related purposes. Some are designed to preserve and promote other public interests. Like observations can be made but with somewhat greater force of the Commissioner-AFP member relationship. I have already noted the court’s distinctive characterisation of policing and of our police forces. That characterisation clearly betrays an appreciation of the varying public interests informing and affecting policing and police forces.
Earlier in these reasons I outlined the evidence relating both to the development of the Commissioner’s drug testing policy and to the justifications given for it. Rather than reiterate that evidence here, I merely draw attention to the following matters. The genesis of the policy would appear to be found in a reform process directed at ensuring the maintenance of appropriate standards of “honesty and integrity” in AFP members. As the policy evolved, so also did the rationales for it expand to include a range of wider public interest considerations - safeguarding the proper discharge of policing duties in circumstances where concerns for public safety can arise (eg use of weapons); protecting AFP members and investigations from compromise; and maintaining public and governmental trust in law enforcement. Subsequently the difficulties resulting from alcohol and drug abuse identified in the Final Report of the Police Royal Commission both reinforced and were added to these, as Mr Leffers’ evidence made plain.
There is, in my view, no doubt that the rationales I have noted not only express legitimate public interest concerns to which the Commissioner properly could and should have regard in discharging his s13(1) function, they also provide appropriate justification for a policy aimed at precluding the use of illicit drugs by AFP members and, at least in principle, for the giving of directions to that end. I emphasise “in principle” because while that end might so be justified, the actual means adopted in the directions given may not: see Re Thompson and Town of Oakville, above, at 303.
The particular means with which I am concerned do, if allowable, involve some curtailment of the freedoms that AFP members would otherwise enjoy, and do so in two ways. First testing by urine sample impacts upon two personal freedoms (or “interests”). These are (i) the “privacy of one’s private affairs”: cf Mack v United States Federal Bureau of Investigation 653 F Supp 70 at 75 (1986); and (ii) human dignity, through the intrusion associated with what can be said to be a personal search: ibid. I would note in passing there is a significant United States case law and literature that considers the significance to be attributed to one or other or both of these interests in the context of public employee drug testing, albeit for the somewhat different constitutional purposes of the Fourth Amendment: see eg National Treasury Employees Union v Von Raab 489 US 656 (1989): American Federation of Government Employees, AFL-CI0,Local 2391 v Martin 969 F 2d 788 (1992); Boodt, “Random Drug Testing of Police Officers: A Proposed Procedure Which Satisfies Fourth Amendment Requirements”, (1989) 22 Indiana L Rev 799. I should, perhaps, add to the above that, for the reasons I earlier gave in relation to reg 5, I take no account for present purposes of that freedom embodied in the privilege against self-incrimination. Secondly, urine testing in its nature does not differentiate between the possible “on-duty” and “off-duty” drug use of the person tested. To this extent, it can reach to conduct engaged in otherwise than in the course of “employment”: cf McManus v Scott-Charlton, above. Though this raises the privacy of one’s “private affairs” in another guise, the “on-duty”/“off-duty” distinction itself throws up a recurring problem in “employment” regulation that requires mention in its own right.
In any consideration of the claimed power of the Commissioner to direct AFP members to submit to reasonable suspicion urine testing, account must of necessity be taken of the personal consequences I have mentioned. This is because the test of the legitimacy of that power itself embodies a requirement of “reasonableness”: see R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan, above, at 621-2; McManus v Scott-Charlton, above, 637. Applied to the present context the test can, I consider, be formulated this way: does the power to direct testing occasion consequences that go beyond what can reasonably be required of a member of the AFP as such, when those consequences are considered in the light of that membership, of the Commissioner’s s13(1) responsibilities and of the significance properly to be attributed to the justifications advanced for the testing programme?
I have already commented upon the incidents of membership of a force such as the AFP and upon the justifications for the programme. I turn now to consider the actual significance to be attributed to the consequences I mentioned above. I will deal with these in order.
Human dignity. There is nothing before me to suggest that the manner in which the testing is actually conducted itself constitutes an affront in some fashion to human dignity. Such affront as there is arises from the fact of having to submit to the test. Whatever may be said of more invasive or demeaning methods of bodily examination (eg taking a blood sample or searching body cavities), I do not consider either the degree of interference with an individual’s control over his or her own person or the potential for embarrassment that such testing would occasion, to be such as of themselves would render the requirement to be tested unreasonable. In saying this I do not mean to imply that the above are unimportant or unworthy considerations. Rather they are outweighed by more compelling ones.
Privacy. Whatever the expectation a member of the public might have as to the privacy of his or her private affairs, a member of the AFP necessarily could only entertain a more “diminished expectation in light of his [or her] position”: cf Mack v United States Federal Bureau of Investigation, above, at 75. The disciplined nature of the AFP as a police force is in large measure responsible for this. The statutory setting of the force, furthermore, accentuates this - as the curtailment of the privilege against self-incrimination in reg 5 of the AFP (Discipline) Regs attests. When balanced against the justifications for the programme (and considerations going to the disciplined nature of the force are integral to these), I do not regard the countervailing claim to privacy as being of great moment.
“Off-duty” activities. Where “employer” directions can or do relate to the “off-duty” private activities of a public officer or employee, their reasonableness will be subject to particular scrutiny for that very reason: see eg McManus v Scott-Charlton, above; Commissioner of Police v Justin, above, at 551-552. However, where private activity cannot reasonably be differentiated from like conduct on duty because of its likely or potential impact either in the “workplace” or on other matters of legitimate concern to the “employer”, then the off-duty/on-duty distinction may well be of little moment. The justifications for the power to give the particular directions in question may apply with like force in each instance: see eg American Federation of Government Employees, AFL-CI0, Local 2391 v Martin, above. Such, in my view, is the case here. The evidence before me provides no reasonable basis (other than privacy) for differentiating the two, given the purposes underlying the testing programme. As I have already indicated I do not regard the privacy consideration to carry great weight in this setting.
The aggregate effect of the consequences I have considered is not, in my view, materially different from the individual effect of each. It is not such as to render unreasonable the giving of directions of the type under consideration. I should add that I do not regard the particular means employed to effectuate the Commissioner’s policy to be disproportionate to the end properly pursued. Accordingly I conclude that the Commission has, in the circumstances, the power to give directions of the type presently under consideration. I should emphasise that this conclusion is based on the distinctive nature of policing and of police forces, and on the public interest considerations informing the justifications for the drug testing programme. Of those public interest considerations the ones I would particularly emphasise are the need (i) to protect the public from possibly impaired judgment in the use of weapons and vehicles; (ii) to protect AFP members and investigations from compromise; and (iii) to maintain public confidence in the integrity of AFP members.
This conclusion though, does not, end this matter.
The Second Question: Was the Particular Direction Given a Lawful Direction?
This question in fact conceals a variety of questions. These are (i) who made the decision to direct Mr Anderson to be urine tested? (ii) was that decision a decision “under an enactment” for the purposes of the Administrative Decisions (Judicial Review) Act, 1977, s3? and (iii) was the decision lawful in the circumstances? I emphasise “the decision” to direct as it is the subject of challenge in this proceeding, though, I should add that what was the “decision” has been expressed in a variety of ways depending upon which of the respondents is being said to be the decision-maker. Each question needs to be dealt with in turn.
Who was the decision-maker?
The evidence on this question is set out earlier in these reasons. I am prepared to infer that the decision to direct resulted from first Ms Sullivan (as the authorised investigating officer) and then Mr Lawler (as Officer in Charge IS) following the Procedures. That document is not altogether free from ambiguity. But its terms, when considered with the language of the actual approval given, leads, inevitably in my view, to the conclusion that the operative decision was that of Mr Lawler. The testing programme was for “reasonable suspicion”. For testing to be approved that suspicion had of necessity to found the decision of the person giving the approval to test. And that person in the scheme of the Procedures was Mr Lawler. His was the decision that Mr Anderson was to provide a urine sample for testing.
While Ms Sullivan appears to have communicated the direction - although the applicant in one version of his evidence suggests it was Mr McDevitt - and while she probably retained a discretion not to give the direction if changed circumstances warranted such a course, hers was not the decision to test. The scheme she was implementing required approval to test. It did not allow her as the investigating officer to obtain approval on one basis of “reasonable suspicion”, but to decide to give the direction on another having regard, for example, to additional factors ascertained after approval to test had been given. Whatever her own understanding of her function, Ms Sullivan merely carried into effect Mr Lawler’s decision.
The evidence relating to whether Deputy Commissioner Allen independently authorised Mr Anderson’s testing is by no means unequivocal. Though Mr Anderson’s evidence is that he was told the Deputy Commissioner had authorised the direction, and while Mr Lawler’s note approving the test indicated that the Deputy Commissioner was advised in advance of the matter, I am not prepared to infer that his participation in the matter actually had a significance beyond that envisaged in the Procedures: he was to be advised “of the intent to direct the provision of a urine sample”. He could, I presume, have vetoed Mr Lawler’s decision if he was so minded.
Was the decision one “under an enactment”
With the further amendment made to the application so as to add a challenge to the decision under s39B of the Judiciary Act, 1903 (Cth), this question is of no particular moment. All I need say is that, whatever the power Mr Lawler believed he was exercising, his decision was that of a superior officer acting under the authority of the Commissioner in exercising the common law power to direct: see Sellars v Woods, (1982) 45 ALR 113; see also Bayley v Osborne (1984) 4 FCR 141. This was not, relevantly, a decision under an enactment for the purposes of the Administrative Decisions (Judicial Review) Act 1977, s3(1). Even if it was to be said that Mr Lawler’s direction was given under cl 7 of GO6 - and as I earlier indicated I doubted whether he purported to be so acting - this would not change the character of the decision itself. It would merely identify a context within which, and the conditions subject to which, the common law power could be exercised. And if, alternatively, the decision is said to be referable to the Procedures, a like comment could again be made, but with the additional observation that the Procedures probably cannot relevantly be said to be enlivened by the AFP Act: see Australian National University v Lewins (1996) 138 ALR 1.
Accordingly, if the decision is open to challenge, this cannot be by way of an order of review under the Administrative Decisions (Judicial Review) Act 1977. I should also say in light of this conclusion that it has not been suggested as well that the nature of the common law power exercised by Mr Lawler was itself such as to make the decision not amenable to challenge under s39B of the Judiciary Act 1903.
Was the actual decision unlawful?
There are two separate questions involved in this: (a) was the decision unlawful because, notwithstanding there was a power lawfully to give a direction, Mr Lawler did not purport to exercise that power; and (b) was the decision itself unlawful?
(a) Not exercising the correct power
I have inferred that Mr Lawler and Ms Sullivan acted in accordance with the Procedures. In consequence each probably considered that the direction given was a “GO6 direction”. Ms Sullivan gave evidence that she thought this to be so. I have found that GO6 does not provide a source of power for the direction even if, contrary to my preliminary view, Mr Lawler was purporting to give it in virtue of the authority to give “an order or instruction” conferred by cl 7 of GO6. The common law as I have found provided the source of the power to direct as Mr Lawler did. Whatever misapprehension he may have laboured under in this (if any) - as I noted at the outset he has not given evidence - he, nonetheless, possessed a power of the very kind he purported to exercise. In these circumstances, if it was the case that Mr Lawler mistakenly considered that the “head of power” for his direction lay in GO6, it was and is open to him now to rely upon the common law. In reaching this conclusion I rely analogically on “the general principle that an act purporting to be done under one statutory power may be supported under another statutory power”: Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409 at 412 and the cases referred to therein.
(b) The actual decision and its making
From the further amended application, as enlarged upon in the applicant’s written submissions, the challenge here to Mr Lawler’s decision was that it was so unreasonable that no reasonable decision maker in his position could ever come to it: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. As I understand it, there is no disagreement between the parties as to the burden of this ground of judicial review.
A considerable part of the applicant’s case has been directed towards making out this ground. It is important to recall what the decision was Mr Lawler was asked to make. It was whether a urine test should be directed because of “reasonable suspicion”. Of this, I would make these two comments.
First, the basis of Mr Lawler’s decision was the memo of “Request” sent to him by Ms Sullivan. Its terms (save for its annexure) have been set out earlier in full. I have already inferred that the procedure adopted by Mr Lawler and Ms Sullivan in this matter was that laid down by the Procedures. That document envisaged that these two would act much as they have. I mention this for this reason. The Wednesbury test is to be applied to the information actually before Mr Lawler: Canwest Global Communications v Australian Broadcasting Authority, unreported, Federal Court of Australia, 16 June 1997 per Hill J; (leave to appeal was refused). Information subsequently ascertained by Ms Sullivan (eg in interviewing Mr Anderson on 23 May 1997) provides no basis for challenge to his decision.
Secondly, the requirement of “reasonable suspicion” of illicit drug use only requires that there be facts that can reasonably ground the “state of conjecture” of such use where proof of it is lacking. Those facts may fall well short of what would be required reasonably to ground a belief as opposed to a suspicion of such use. “Yet some factual basis for the suspicion must be shown”: George v Rockett (1990) 170 CLR 104 at 115.
Insofar as the matters raised by counsel for the applicant are relevant to the challenge to Mr Lawler’s decision - some were premised upon Ms Sullivan being the decision maker - the allegation of Wednesbury unreasonableness is based in part upon the contents of the memo of “Request” and in part on alleged failures to make further inquiries (a) of Mr Anderson’s fellow officers concerning their observations of him, and (b) as to whether there were medical reasons for symptoms Mr Anderson is said to have displayed at his 7 May interview with Mr Tuckwood.
I do not consider there is substance in any of this. If the memo of “Request” provided grounds from which Mr Lawler reasonably could conclude that there existed a reasonable suspicion of drug use by Mr Anderson then, whether or not further inquiries would have made the conclusion arrived at more (or for that matter less) justifiable seems not to the point. While I accept that a failure to make further inquiries can in distinctive circumstances render the making of a decision unreasonable in the Wednesbury sense: see Luu v Renevier (1989) 91 ALR 39; C v T (1995) 58 FCR 1; such a failure has necessarily to be judged in the light of the information that, if available, should (and not merely could) be acquired for consideration in the making of the decision in question. Here I emphasise that Mr Lawler was not being asked to determine whether Mr Anderson had used drugs. He was not being asked to determine whether there were reasonable grounds for believing that Mr Anderson had used drugs. It was only whether there were reasonable grounds for suspecting that he had. The information he was entitled to rely upon for that purpose needs to be judged accordingly. For my own part I do not consider that he has acted unreasonably in the Wednesbury sense in making the decision he did without commissioning further inquiries of the types suggested. Their character was not such in the circumstances as provided compelling reason to make them. Their utility in any event may well have been quite indecisive or unhelpful. To require Mr Lawler to have those inquiries made would, in a case such as this, be tantamount to changing the basis for his decision into something requiring more than “reasonable suspicion”. Whether or not further inquiries could usefully have been made, the circumstances were not ones in which they should have.
Insofar as the memo of “Request” is concerned, the applicant has challenged its several paragraphs as not individually providing bases for reasonable suspicion. In the case of Ms Sullivan’s use of the material said to have been derived from Federal Agent Tuckwood, the memo, additionally, is challenged as being misleading. As to the latter of these, Federal Agent Tuckwood’s own account of his interview was before Mr Lawler, his report being annexed to the memo of “Request”. Whatever the inaccuracies in Ms Sullivan’s precis of that report, I have no reason to believe and I am unprepared to infer that, having the full report before him, Mr Lawler was misled in any way by the precis: cf Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542 at 555.
As to the memo of “Request” itself, I am unable to conclude that, viewed in its totality, it could not engender in any reasonable person the conclusion that reasonable grounds existed for the suspicion that Mr Anderson had used drugs. While parts of the memo do not individually go beyond suggesting “guilt by association” - an obviously unreasonable basis on which alone to rely - Federal Agent Tuckwood’s report in its penultimate and ultimate paragraphs (set out below) could be considered to give a different complexion to how Mr Anderson relevantly could be viewed. That in turn could reasonably suggest that his association with Mr Kitney might itself be a cause for suspicion in relation to drug use. Those paragraphs refer to some of the conclusions drawn from Mr Tuckwood’s observations of Mr Anderson during their interview of 7 May 1997. They state:
“I have been a member of the Australian Federal Police, or its derivatives, since 1978. I have been a member of the Accident Investigation Unit and the Breath Analysis Unit. During the time that I have served with these areas I have dealt with persons who have been under the influence of intoxicating liquor or drugs (both illicit and prescribed). If Constable Anderson had been the driver of a motor vehicle and returned a negative alcohol screening test I would have sought blood and urine tests for drug analysis based on my observations.
While the interview related to serious matters I do not believe that the actions of Constable Anderson related solely to the stress of being interviewed. I did not conduct or seek the provision of a urine sample at this interview as none of the matters I was dealing with alleged any drug usage by the member.”
It seems to have been accepted by the parties that it was beyond Mr Tuckwood’s province to seek a drug test of Mr Anderson because of the investigation he was conducting.
In the event, I am not satisfied there is any basis at all for challenging the lawfulness of Mr Lawler’s decision.
Conclusion
The applicant has failed to establish any of the grounds upon which he has relied to justify his refusal to comply with the direction given him. Accordingly I order that his application be dismissed.
By way of postscript it is appropriate to make this additional observation. These reasons are both lengthy and complex. This is unfortunate. But they have been made so by the complex and, as I have found, decidedly imperfect system adopted by the AFP in this important matter. It is to be hoped that a more clear and certain system will be devised for the future.
I certify that this and the preceding thirty-four (34) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn
Associate:
Dated: 23 September 1997
Counsel for the Applicant: J Purnell SC Solicitor for the Applicant: Porter Pilkington & Bradfield Counsel for the Respondent: T Howe Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 11-13 August 1997 Date of Judgment: 24 September 1997
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