Day v Lynn

Case [2003] FCA 879

FEDERAL COURT OF AUSTRALIA

Day v Lynn [2003] FCA 879

POST & TELECOMMUNICATIONS – telephonic interceptions and other surveillance material communicated by Australian Federal Police to Australian Customs Service for use in disciplinary proceedings against applicant – whether information was communicated for a ‘permitted purpose’ pursuant to the Telecommunications (Interception) Act 1979 (Cth)

ISSUE ESTOPPEL –whether judgments by a single judge of this Court and the Full Court involved determination of a point of law which necessarily established the foundation or justification for their conclusions

Public Service Act 1922 (Cth) ss 55, 56, 61, 62, 63D
Public Employment (Consequential and Transitional) Regulations 1999 (Cth) Reg 2.21
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5
Privacy Act 1988 (Cth) ss 16, 52(1B), 55A
Merit Protection (Australian Government Employees) Act 1984 (Cth) ss 16, 37
Telecommunications (Interception) Act 1979 (Cth) ss 5, 63, 67, 68, 73

Blair v Curran (1939) 62 CLR 464 followed
Rogers v The Queen (1994) 181 CLR 251 followed
Day v Commissioner of Australian Federal Police [2000] FCA 398; (2000) 96 IR 240 cited
Day v Commissioner, Australian Federal Police [2000] FCA 1272; (2000) 101 FCR 66 cited
McManus v Scott-Charlton (1996) 140 ALR 630 cited
Taciak v Australian Federal Police (1995) 131 ALR 319 cited
Ibarcena v Templar [1999] FCA 900 cited
Gao v Federal Privacy Commissioner [2001] FCA 1683 cited
Gao v Federal Privacy Commissioner [2002] FCAFC 128 cited
Gao v Federal Privacy Commissioner [2002] FCA 823 cited

SHANE ANTHONY DAY v JOHN LYNN, JOHN KERLIN AND BRIAN FORBES AND ANOR
N 196 of 2002

STONE J
21 AUGUST 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 196 OF 2002

BETWEEN:

SHANE ANTHONY DAY
APPLICANT

AND:

JOHN LYNN, JOHN KERLIN AND BRIAN FORBES
FIRST RESPONDENTS

COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENT

JUDGE:

STONE J

DATE OF ORDER:

21 AUGUST 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 196 OF 2002

BETWEEN:

SHANE ANTHONY DAY
APPLICANT

AND:

JOHN LYNN, JOHN KERLIN AND BRIAN FORBES
FIRST RESPONDENTS

COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENT

JUDGE:

STONE J

DATE:

21 AUGUST 2003

PLACE:

SYDNEY

REASONS FOR JUDGMENT

BACKGROUND

  1. The applicant, Shane Anthony Day is employed by the second respondent, the Commonwealth of Australia as an officer of the Australian Customs Service (‘ACS’). On 13 November 1998 he was charged with twelve instances of failing to fulfil his duty as an officer within the meaning of s 56 of the Public Service Act 1922 (Cth) (‘PSA’). The PSA has now been repealed and replaced by the Public Service Act 1999 (Cth) however the repeal is of no consequence to this proceeding; see Regulation 2.21 of the Public Employment (Consequential and Transitional) Regulations 1999 (Cth).

  2. The charges all related to allegations that the applicant inaccurately recorded his…

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Details
AGLC
Day v Lynn [2003] FCA 879
Case
[2003] FCA 879
Decision Date

CaseChat Overview and Summary

In the case of Day v Lynn, the applicant, a public servant, sought to challenge the use of intercepted telephone calls in disciplinary proceedings against him. The applicant alleged that the information obtained from the intercepted calls was used in contravention of the Telecommunications (Interception) Act 1979 (Cth). The primary legal issue before the court was whether the Australian Federal Police (AFP) could lawfully disclose intercepted information to another Commonwealth body, namely the Australian Customs Service (ACS), for the purposes of investigating alleged misconduct of a Commonwealth officer. The court was also required to determine whether the evidence obtained from the intercepted calls was admissible in the disciplinary proceedings.

Einfeld J held that the AFP was permitted to disclose intercepted information to other Commonwealth bodies, including ACS, for the purpose of investigating alleged misconduct of a Commonwealth officer. The judge rejected the applicant’s argument that section 67 of the Interception Act only allowed for intra-agency communication of intercepted information. The judge concluded that the manifest purpose of section 67 was to allow the AFP to communicate lawfully intercepted information to assist in investigations of the kind entrusted to ACS. The Full Court upheld Einfeld J’s decision and rejected the applicant’s argument that there could be no investigation or inquiry into alleged misconduct until a charge was laid under the Public Service Act.

The orders of the court were that the applicant’s application be dismissed with costs. The court found that the use of the intercepted information did not contravene the Interception Act and that the evidence obtained from the intercepted calls was admissible in the disciplinary proceedings.

Orders

Orders of the court

1. The application be dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In relation to s 56(f), it was alleged that on eight occasions between 18 September 1997 and 28 January 1998 the applicant had breached a regulation in force under s 82D of the PSA by not accurately recording his attendance on duty. The relevant regulation was Public Service Regulation 13(a), which provided:‘An officer who records as the time of his arrival on duty or his departure from duty a time other than the actual time of his arrival on duty or his departure from duty, as the case may be … commits a breach of these regulations.’Regulation 13(a) was repealed on 15 March 1998. Presumably for this reason the charge that on 28 April 1998 the applicant did not accurately record his attendance was brought under s 56(d) alleging that the applicant had engaged in ‘improper conduct as an officer’. Evidence relied on to support charges In its report of 7 January 2001 the DAC said of the evidence relied on to support the charges made against the applicant:‘The documentary evidence adduced by the respondent demonstrates an apparent inconsistency between the [applicant’s] actual location and activities on the dates the subject of the charges and the certification by him of his working hours on those days on his flex time attendance records.Some of the evidentiary material tendered by the respondent became available as a result of covert surveillance of the appellant and the interception by the Australian Federal Police of telephone calls on his home and office telephones. This material included surveillance logs maintained by the investigators, transcripts of intercepted telephone conversations and photographs.The respondent also relied on hotel records, the work attendance records which the [applicant] completed and the [applicant’s] account of events during a lengthy recorded interview with Mr Greaves.’ The telephone interceptions were carried out by the Australian Federal Police (‘AFP’), pursuant to a warrant issued under the Telecommunications (Interception) Act1979 (Cth) (‘Interception Act’). The warrant had been obtained in relation to a criminal investigation being carried out jointly by the AFP and the Internal Affairs Unit of ACS between 9 December 1997 and 12 June 1998. The covert surveillance referred to by the DAC was also part of this investigation. No criminal charges eventuated from this investigation. Use of information derived from intercepted telephone calls It was not in contention that the information obtained by the interception of the applicant’s telephone calls (‘intercepted information’) was lawfully obtained by the AFP under a valid warrant. It is the use (not the collection) of the intercepted information that is challenged here. The applicant claims that the intercepted information was obtained by ACS in contravention of the Interception Act and that the DAC made an error of law in receiving the transcripts of intercepted phone calls into evidence. The applicant’s submissions on ACS’s use of the intercepted information can be summarised as follows:1.Information lawfully obtained by interception pursuant to the Interception Act must not be used, communicated, recorded or given in evidence other than in accordance with Part VII of that Act; s 63.2.As the intercepted material was obtained by the AFP, under s 67 of the Interception Act, the AFP was the only agency that was entitled to use it and then only for a permitted purpose; see [21] below.3.Although s 68 of the Interception Act permits communication to certain other persons or agencies under specified circumstances, ACS is not such an agency. 4.If, contrary to the above, the communication was authorised under s 67, it was only to be used for the permitted purpose for which it was gathered and communicated (see s 73 of the Interception Act) which was for the investigation or inquiry into alleged ‘misbehaviour’ or ‘improper conduct’ of an officer of the Commonwealth within the meaning of (b)(i) of the definition of ‘permitted purpose’ in s 5 of the Interception Act.5.The charges under s 56(f) did not relate to alleged ‘misbehaviour’ or ‘improper conduct’ and therefore the investigation or inquiry into those charges was not for a permitted purpose.

Decision

Reasons for decision

STONE J
Einfeld J expressed his conclusions in relation to the issues raised in those submissions in [14] of his reasons for decision:‘I reject the applicant’s suggested construction of the [Interception Act]. In my opinion, s 68 is irrelevant to this case. It permits the communication to the first respondent of information intercepted by an agency other than the AFP, presumably the NCA. That is not this case. On the other hand, section 67 permits communication by an officer of ‘an agency’ to ‘another person’ for a ‘permitted purpose in relation to the agency’. In the case of the AFP, such a purpose includes, by paragraph (b)(i) of the s 5 definition, an investigation or inquiry under the [PSA] into alleged misconduct of a Commonwealth officer. It is difficult to see what this definition covers if not an investigation into the activities of a Customs officer such as the applicant is facing. As such investigations will not, other than as involve the police themselves, normally be undertaken by the [AFP’s] officers, the communications will mostly be to officers of to the agencies. The manifest purpose of this provision is to permit the AFP to communicate lawfully intercepted information to assist the purposes referred to. That this must be so can also be seen from the use in the ‘permitted purpose’ definition (s 5) of the words ‘by a person in the person’s capacity as an officer of the Commonwealth’, which includes by s 6G(1)(a) a person employed by or under Commonwealth law to conduct an investigation of inquiry of the kind entrusted to the fourth respondent.’His Honour, at [15] of his reasons, also supported his conclusion with reference to aspects of the scheme of the Act. The Full Court decision – Day v Commissioner Although Einfeld J’s decision was the subject of an appeal to the Full Court, his Honour’s rejection of the contention that s 67 relates only to intra-agency communications and does not permit the AFP to disclose intercepted information to another Commonwealth body or one of its officers, including the ASC, was not challenged in the appeal. However, it was contended that Einfeld J did not deal with another argument that had been put to him by the applicant, namely that at the time the intercepted information was passed to the ACS and to Ms Williams,‘there was no investigation of, or inquiry into, alleged misbehaviour, or alleged improper conduct on the part of the appellant under a law of the Commonwealth as, under the [PSA] there could be no such investigation or inquiry unless and until the charge was laid under s 61(2) of the [PSA]. It is only, it was said, subsequent to the laying of charges that such investigation or inquiry occurs’ (per the Full Court at [8]). The transcript of the hearing before Einfeld J was not before the Full Court and the respondent did not concede that this argument had been put to his Honour. In the circumstances the Full Court decided to deal with the issue without embarking on an inquiry as to whether the argument was or was not put.

Ratio Decidendi

Legal Principle Established

Established by: STONE J

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