Donaldson, Robert Alexander George v Woods, Sir Colin

[1981] FCA 138

Re: ROBERT ALEXANDER GEORGE DONALDSON
And: SIR COLIN WOODS (1981) 56 FLR 194
No. ACTG1 of 1981
Disciplinary Offence by Member of Police Force - Police

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Fox(1), Keely(2) and Deane(3) JJ.

CATCHWORDS

Disciplinary Offence by Member of Police Force - Suspension from Duty - Disciplinary Offence of Being Found Guilty of an Offence Against the Law - Offence Against the Law and Charge Occurring Before Transfer From A.C.T. Police to Australian Federal Police - Found Guilty Afterwards - Transitional Provisions - Construction and Operation of s.18(1)(h), s.20(2) of Australian Federal Police (Discipline) Regulations - Appeal Against Discharge of Orders Nisi for Prerogative Writs - Appeal Dismissed.

Acts Interpretation Act 1901, s.30

Australian Federal Police Act 1979, Sects. 72 and 79, Part VI and VII

Crimes Act 1914, Sects. 11(2) and 19B

Police (Disciplinary Provisions) Ordinance 1972, Sects. 29 and 45

Australian Federal Police (Discipline) Regulations, Regns. 18(1)(h), 20(2), 22(2)

Commonwealth Constitution, s.44(ii)

Australian National University Act, s.13(c)

Narcotics Drugs Act 1967, s.10(c)

Public Service Act (NSW) 1902, 61(i), 62(2)

Police - Discipline - Australian Federal Police - Member found guilty of offences against law of Commonwealth - Offences committed before becoming member of Australian Federal Police - Whether disciplinary offences - Suspended from duty - Whether Commissioner of Police had power to suspend - Australian Federal Police Act 1979 (Cth), ss. 72, 79 - Australian Federal Police (Discipline) Regulations, regs. 18 (1) (h), 20 (2), 22 (2).

HEADNOTE

The appellant, while a member of the Australian Capital Territory Police Force, was charged with offences against the law of the Commonwealth. Later, in October 1979, he transferred to the then new Australian Federal Police. In June 1980 he was found guilty of the offences so charged and shortly thereafter he was served with notices instituting disciplinary proceedings against him and signed by the respondent Commissioner of the Australian Federal Police pursuant to reg. 18 (1) (h) of the Australian Federal Police (Discipline) Regulations which had been in force since October 1979. The regulation provided as far as relevant:

"18. (1) A member is guilty of a disciplinary offence and is subject to punishment in accordance with those Regulations if the member -

. . .

(h) is found guilty by a court of an offence against a law of the Commonwealth . . . ." The appellant was suspended from duty. In July 1980 he obtained an order nisi for a writ of prohibition and certiorari which order was discharged by the Supreme Court of the Australian Capital Territory. An appeal was lodged against that decision.

Held: Per curiam, the appeal should be dismissed because - (1) The attack on the notices and the proceedings which they instituted failed since the plain meaning of the words used in reg. 18 (1) (h) of the Australian Federal Police (Discipline) Regulations was that the finding of guilt constituted the relevant disciplinary offence with the effect that that disciplinary offence can constitute a basis for disciplinary proceedings under the regulations.

(2) The power to suspend a member of the Australian Federal Police conferred by the reg. 20 (2) of the Australian Federal Police (Discipline) Regulations upon the Commissioner subsisted throughout the whole period in which a member is the subject of a pending charge.

HEARING

Canberra, 1981, April 6; August 17. #DATE 17:8:1981

APPEAL.

Appeal from a decision of the Supreme Court of the Australian Capital Territory (Davies J.) discharging an order nisi for the issue of writs of prohibition and certiorari to the Full Court of the Federal Court of Australia.

T. J. Higgins, for the appellant.

P. G. Hely, for the respondent.

Cur. adv. vult.

Solicitors for the appellant: Higgins, Faulks & Martin.

Solicitor for the respondent: Deputy Crown Solicitor of the Commonwealth.

E. F. FROHLICH

ORDER

THE COURT ORDERS THAT the appeal be dismissed with costs.

JUDGE1

This is an appeal from the Supreme Court of the Australian Capital Territory (Davies J) in which an order nisi for the issue of writs of prohibition and certiorari was discharged. The appellant, the prosecutor below, is a member of the Australian Federal Police. The respondent is the Commissioner of Police appointed under the Australian Federal Police Act 1979. At the time the relevant parts of this Act came into force the appellant was a member of the Australian Capital Territory Police Force. Under a transfer provision (s.72) he was sworn in as a member of the new Force on 2 November 1979, with effect from the commencing date, 19 October 1979.

Because of his conduct before transfer from one Police Force to the other, he was suspended from duty immediately after being sworn in. On 10 June 1980, after charges relating to his conduct had been determined by the Supreme Court, he was served with four notices each of which commenced as follows:
"WHEREAS it appears to me that you, Robert Alexander George DONALDSON, a member of the Australian Federal Police, may have committed a disciplinary offence specified in paragraph 18(1)(h) of the Australian Federal Police (Discipline) Regulations, TAKE NOTICE that I hereby institute proceedings against you in relation to that disciplinary offence."
Each notice gave particulars of an offence in respect of which the Supreme Court, on appeal to it from the Court of Petty Sessions, had found the appellant guilty. One offence, because of its triviality, had been dismissed by the Supreme Court under s.19B of the Crimes Act, 1914, and in each of the other cases fines of $15 had been imposed. These matters were disposed of on 3 June 1980, but the original charges were laid in 1976, and were dealt with in the Court of Petty Sessions in February 1977. The long delay that then ensued has given rise to questions concerning the function of transitional provisions under the Australian Federal Police Act and of the construction of disciplinary regulations under that Act not expressed to be transitional. Much of the argument was directed to the transitional provisions, and inferences to be drawn therefrom and I shall consider this aspect first.

Part VII of the Australian Federal Police Act is headed "Transitional". Section 79, contained in that Part, enables regulations to be made in relation to charges "in respect of a disciplinary offence". Part VI of the regulations, also headed "Transitional", has been enacted pursuant to this power. The term "disciplinary offence" is, so far as material here, to be read as a disciplinary offence referred to in s.29 of the Police (Disciplinary Provisions) Ordinance 1972, as amended, of the Australian Capital Territory. This Ordinance was repealed by Ordinance No. 18 of 1981. Section 29 of the Ordinance, in lettered paragraphs (a)-(h) stipulated what were disciplinary offences under the Ordinance. The sections of the Ordinance which followed dealt with the disciplinary powers of the Commissioner, and with appeals from their exercise. None of the paragraphs created as a disciplinary offence the fact of being found guilty, or of having been convicted, of an offence against the law. Those which could be regarded as material in the present case looked to conduct, such as being "guilty of disgraceful or improper conduct, either in his official capacity or otherwise" (para.(c)) or acting "in a manner that is prejudicial to the good order and discipline of the Police Force" (para.(f)). On the other hand, s.45 of the Ordinance dealt with the disciplinary consequences of members being charged, and of being found guilty of an offence against the law of the Commonwealth, a State, or a Territory, whether punishable on indictment or on summary conviction.

The respondent Commissioner of Police did not rely upon the transitional provisions to which I have referred, but instead based the notice he gave directly on para.(h) of regn. 18 (1) of the Australian Federal Police (Discipline) Regulations. With introductory words, this paragraph reads:

"A member is guilty of a disciplinary offence and is subject to punishment in accordance with those Regulations if the member -

...

(h) is found guilty by a court of an offence against a law of the Commonwealth, a State, a Territory or another country."
Regulation 18(1) came into force when the regulations as a whole came into force (12 October 1979), and is of on-going effect, applying to new members as well as transferred members. The question is whether it applies in the case of a member who is found guilty after it came into effect, in respect of conduct which took place before then, leading to charges laid before then. Had the court procedures not occupied so much time, he might have been found guilty of a disciplinary offence under the Ordinance, or dealt with under the Ordinance as a member found guilty of an offence against the law, but these things did not happen.

Three comments upon the legislation can usefully be made at this stage:

(a) Whereas being found guilty of an offence by a court was not a "disciplinary offence" under the Ordinance, it has become one under regn. 18(1). To conduct by the member has been added the fact of being found guilty.

(b) The regulation-making power in s.79 of the Act, and the regulations pursuant thereto dealing with transitional arrangements, relate to "disciplinary offences", and not to offences against the law falling to be dealt with by the courts.

(c) There are as a result of (a) and (b) transitional provisions which encompass "disciplinary offences" (as formerly understood) at various stages of processing including the case where no charge has been laid (regn.51(1), which is in Part VI), but none dealing with the consequences of offences against the law.

Regulation 18(1) is largely a repetition in terms of s.29, so that it deals almost entirely with disciplinary offences of the nature referred to in that section. The transitional provisions can therefore be seen as intended to take up incomplete situations related to all but one of the matters referred to in that regulation. The question then remains whether para.(h) of regn.18(1) is in a special position vis-a-vis the other paragraphs, in that it applies to past incomplete situations, where the offence was committed or the charge laid before the regulations came into force, as well as situations wholly arising after the commencement of the regulation. There are sound grounds for thinking it does, because, unlike the other provisions, it refers simply to a finding of guilt by a court. One merely asks whether, since the regulations commenced, there has been such a finding. If a finding of guilt is the sole criterion, no transitional provisions are necessary. As a single event, it occurred either before or after the regulations came into force. It can be argued that the occurrence of improper conduct is implicit. However the finding of guilt is probably seen as the damaging factor so far as the discipline and standing of the Police Force is concerned. Commonly, there will have been little or no opportunity for disciplinary charges to be brought in relation to the conduct, because of the pendency of criminal proceedings. In more serious cases, the disciplinary procedures (beyond suspension) will properly await the bringing of charges, and their final disposal.

If regn.18(1)(h) operates simply on the basis of a finding of guilt, there is no express limit as to the distance back in time within which the offence must have been committed, or the charge laid. It can be said in favour of the appellant's argument that in the circumstances, and having in mind that the regulations created a new disciplinary offence, so far, at least, as Australian Capital Territory police were concerned, that some words of emphasis or explanation would have been inserted if the paragraph were to have the effect relied upon by the respondent.

There is a further consideration, relating directly to the power to suspend, but of relevance to the construction of regn.18(1)(h). Regulation 20(2) gives a power to suspend "where a member is charged with having committed an offence against a law..." If the phrase means "upon a member being charged" or refers to the laying of the charge, the power would have to be understood as confined to charges made after the regulations came into force. There is no other power to suspend related to charges of offences against the law. If this construction were correct, it would reinforce the contention made on behalf of the appellant that regn.18(1) (h) only relates to cases where the offences, or charges, or both, occurred after the regulations commenced. The learned judge from whom this appeal comes read the words in question as meaning "subject to a charge". Another form of words would be "stands charged". Uninfluenced by the construction to be put on regn.18(1)(h), I am not sure that I would decide upon these meanings. It is interesting in this connection to see the attention paid to timing considerations in regn.20(1), which deals with suspension in relation to other disciplinary offences of which it can be said that they were or may have been "committed". However, the regulations must be read together, so that uncertainties or ambiguities in one may be resolved by clarity in another.

The language of regn.18(1)(h) is clear. It looks to a finding of guilt, - after the regulations came into force. Any attempt to qualify its language presents difficulties. Other arguments, such as those I have canvassed, do not provide a clear reason or sufficient basis for giving a special meaning to the words used. When analysed, the transitional provisions are not of assistance.

I am therefore of the view that the Commissioner had power to act under regn.18(1)(h).

Regulation 20(2) must be read with regn.18(1)(h) and it would the better give effect to its purpose if the alternative construction, adopted by the trial judge, were accepted. I therefore am of the view that the Commissioner also had power to suspend the appellant.

In my opinion the appeal should be dismissed, with costs.

JUDGE2

I have had the advantage of reading the reasons for judgment prepared by my brother Deane and am in agreement with them. I would accordingly dismiss the appeal with costs.

JUDGE3

Regulation 18(1)(h) of the Australian Federal Police (Discipline) Regulations ("the Regulations") provides that a member of the Australian Federal Police is guilty of "a disciplinary offence" and is subject to "punishment" in accordance with the Regulations if he "is found guilty by a court of an offence against a law of ... a Territory...". On 2 May, 1980, the Supreme Court of the Australian Capital Territory (Lockhart J.), on appeal by way of rehearing from the Australian Capital Territory Court of Petty Sessions, found that charges of four separate offences against laws of the Australian Capital Territory had been proved against the appellant who was at that time, and still is, a member of the Australian Federal Police. On 3 June, 1980, Lockhart J. dismissed one of the charges pursuant to s.19B of the Crimes Act, 1914 and imposed a fine of $15.00 in respect of each of the other three charges.

On 11 June, 1980, there were served upon the appellant four notices dated 10 June, 1980 over the hand of the respondent who is the Commissioner of the Australian Federal Police. Each notice recited that it appeared to the Commissioner that the appellant "may have committed a disciplinary offence specified in paragraph 18(1)(h)" of the Regulations and gave the appellant notice that the Commissioner instituted proceedings against him in relation to that disciplinary offence. Each notice related to a different one of the four charges which Lockhart J. had found proved against the appellant.

On 11 July, 1980, the appellant obtained an order nisi for a writ of prohibition to prevent the continuation and/or hearing of proceedings under the Regulations in respect of the alleged disciplinary offences. At the same time, the appellant obtained an order nisi calling upon the respondent Commissioner to show cause why a writ of certiorari should not issue to quash a decision of the respondent made on 2 November, 1979 to suspend the appellant from duty on and from 19 October, 1979. The hearing on the return of the orders nisi was before Davies J. who ordered that they be discharged with costs. The present appeal is from that decision of Davies J.

It is convenient to consider first the appellant's attack on the validity of the disciplinary proceedings instituted pursuant to the four notices served upon him. For the moment, I put to one side the attack upon the suspension of the appellant from duty of 2 November, 1979.

The primary issue as regards the projected disciplinary proceedings is whether each finding by the Australian Capital Territory Supreme Court that a particular charge against the appellant had been proved constituted, in itself, a disciplinary offence by reason of the provisions of Regulation 18(1)(h). The factual basis of the argument that it did not is that it is common ground that, at the time the appellant committed the relevant offences, he was not a member of the Australian Police Force. The offences were committed before the making of the Regulations and while the appellant was a member of the Police Force of the Australian Capital Territory which was one of the forces which was absorbed into the Australian Police Force. Clause (h) of Regulation 18(1),it is argued on behalf of the appellant, should be read as referring both to the actual commission of the relevant offence and the subsequent finding of guilt and as requiring both that the offence be committed and that the finding of guilt be made after the making of the Regulations and while the relevant person was a member of the Australian Police Force.

The prima facie effect of Regulation 18(1)(h) is that the relevant disciplinary offence is the finding of guilt by a court and not the actual commission of the offence of which the member is found guilty. In my view, there is nothing illogical, unfair or unexpected in a provision to that effect. It is commonplace in legislation dealing with disqualification from an office or an occupation to make the fact of conviction, as distinct from the actual commission of the offence, the operative factor (see, e.g., Commonwealth Constitution, s.44(ii); Australian National University Act 1946, s.13(c); Narcotic Drugs Act 1967, s.10(c) and Public Service Act (N.S.W.) 1902, s.61 (i)). The rationale of that approach is that, where suggested criminality is involved, the presumption of innocence makes a conviction or finding of guilt in a criminal court the appropriate determinative factor. The reference, in Regulation 18(1)(h), to a member being "found guilty" rather than to a "conviction" is to be found in other Acts (see, e.g., Public Service Act, 1922, s.62(2)) and is understandable in the light of provisions such as s.19B of the Crimes Act 1914 which have the result that a finding of guilt of an offence is not necessarily followed by a formal conviction. In that regard, it is relevant to note the precedent of Clause 45(2) of the Police (Disciplinary Provisions) Ordinance, 1972 which had applied in respect of the former Police Force of the Australian Capital Territory and which designated a finding of guilt by a court as a basis for initiating disciplinary proceedings.

A number of arguments was advanced on behalf of the appellant against giving the words of Regulation 18(1)(h) their prima facie effect. Of them, the most persuasive is that which points to the fact that if the finding of guilt, as distinct from the commission of the offence, is treated as the relevant disciplinary offence, the context which Regulation 18 provides for clause (h) would seem anomolous in a number of respects. First, the disciplinary offences for which the other clauses of Regulation 18(1) make provision are all actions or defaults of the member concerned whereas conviction or finding of guilt is, once the relevant offence has been committed, outside the control of the member. Second, it would seem somewhat inappropriate to treat the finding of guilt, as distinct from the commission of the offence, as constituting a disciplinary "offence" attracting "punishment" in accordance with the Regulations. Thirdly, it is difficult to give to Regulation 18(2), which deals with aiding and abetting a disciplinary offence, any meaningful content in so far as clause (h) is concerned if the bare finding of guilt is treated as in itself constituting the relevant disciplinary offence.

Notwithstanding the fact that clause (h) would be better suited to its context if it were read as referring both to the actual commission of the offence and the subsequent finding of guilt, I am unpersuaded that it should be given other than the plain meaning and operation which its words prima facie convey. There is not, in my view, any ambiguity or uncertainty in the meaning of the words used in the clause. Those words clearly and unambiguously constitute the finding of guilt as the relevant disciplinary offence. The inappropriateness of clause (h), when so read, to some of the provisions which provide its context is possibly explained by the fact that Regulation 18(1) would seem to be the result of a legislative desire to assimilate quite separate provisions of the Police (Disciplinary Provisions) Ordinance, 1972, namely, those provisions designating certain acts and omissions as disciplinary offences (s.29) and those provisions which made a finding of guilt a basis for disciplinary action (s.45(2)). That inappropriateness does not, however, warrant departure from the plain meaning of the words used.

It was argued on behalf of the appellant that to give the words of clause (h) their prima facie effect would involve an element of double punishment. Such a construction was, it was said, to be avoided. In that regard, reference was made to the general common law principle precluding double punishment which is inherent in the notion "autrefois convict" and to the statutory presumptions against double punishment which one finds in s.11(2) of the Crimes Act, 1914 and s.30 of the Act Interpretation Act, 1901. This argument should be rejected for a number of reasons.

Notwithstanding the reference to "punishment" in the general introductory words of Regulation 18(1), the provisions of Regulation 22(2), which preclude the imposition of a fine or reduction of salary where a member is guilty of the disciplinary offence constituted by clause (h), indicate that the disciplinary procedures for which the Regulations make provision are, in so far as clause (h) is concerned, aimed not at punishment as such but at the protection of the standards and standing of the Australian Police Force. Moreover, to the extent that an element of double punishment is involved, it will be involved regardless of whether the words of clause (h) are given their prima facie meaning or the artificial meaning for which the appellant contends. In any event, the provisions of s.11(2) of the Crimes Act, 1914 are not relevant to the question whether the provisions of a different Act or Ordinance impose a double punishment in respect of an offence and any other relevant statutory presumption or common law principle is subject to a contrary intention appearing from the relevant statutory instrument. As I have indicated, I consider that the plain meaning of the words used in clause (h) is that the finding of guilt in itself constitutes the relevant disciplinary offence. The plain purpose and effect of the provisions of the Regulation is that that disciplinary offence can constitute a basis for disciplinary proceedings under the Regulations.

Counsel for the appellant also sought to derive assistance from the inapplicability of the transitional provisions which are contained in s.79 of the Australian Federal Police Act, 1979. The conclusion that the finding of guilt, on its own, constitutes the disciplinary offence under clause (h) deprives the submission in that regard of real content. The findings of guilt by the Supreme Court, which are the basis of the disciplinary proceedings in the present matter, were not made until after the commencement of the Australian Federal Police Act, 1979. At the time of commencement of that Act the disciplinary proceedings based on those findings had not - and could not have - been commenced. That being the case, there were no pending disciplinary proceedings and it is unnecessary to call in aid any transitional provisions. Those provisions are simply irrelevant.

Nor, in my view, is there real weight in the appellant's argument that unless the provisions of clause (h) are modified in the manner which he suggests, the clause has a retrospective operation. Findings of guilt of the offence of which the appellant was found guilty by the Supreme Court could have lead to dismissal or reduction in rank of the appellant as a member of the former Police Force of the Australian Capital Territory under the Police (Disciplinary Provisions) Ordinance, 1972 (s.45(2)). Moreover, once it is accepted that it is being found guilty of an offence which constitutes the disciplinary offence to which clause (h) refers, it is apparent that the clause does not, strictly speaking, have a retrospective operation merely because matters leading to that finding of guilt may have occurred before the relevant person was a member of the Australian Police Force or, indeed, before the making of the Regulations. Thus, a law which provides for disqualification of a bankrupt or a convicted felon does not, strictly speaking, have retrospective operation if it relates to bankruptcy or conviction after its commencement notwithstanding that the debt which resulted in bankruptcy was incurred or the offence which resulted in conviction was committed before the commencement of the relevant law.

In the result, each finding by the Supreme Court that the appellant was guilty of an offence against the law of the Territory constituted a disciplinary offence under the provisions of Regulation 18(1)(h). The respondent Commissioner was entitled to institute disciplinary proceedings against the appellant in respect of each of those disciplinary offences. It has not been suggested that the notices served upon the appellant were other than an appropriate method of instituting such disciplinary proceedings. The attack on those notices and upon the proceedings which they instituted accordingly fails. There remains for consideration the appellant's attack on his purported suspension from duty as a member of the Australian Police Force.

The appellant's appointment to the Australian Federal Police was as from 19 October, 1979. On 2 November, 1979 he attended before a delegate of the respondent Commissioner and entered into the prescribed undertaking and subscribed the prescribed oath or affirmation. Immediately after he had entered into the undertaking and had subscribed the oath or affirmation, he was served with a notice over the hand of the respondent Commissioner purporting to suspend him from duty as on and from 19 October, 1979. The suspension did not purpot to be without pay. The basis of the notification of suspension was that the appellant had "been charged with having committed offences against the law of the Australian Capital Territory". The notice mentioned specific charges and recited that the respondent Commissioner considered that the charged offences were of such a nature that the appellant should not continue to perform his duties until the charges had been determined.

The appellant attacks his suspension from duty on grounds which correspond to his attack upon the bringing of disciplinary procedures against him. It is common ground that the charges which formed the basis of the suspension were in respect of offences which it was alleged the appellant had committed before he was a member of the Australian Police Force and before the Regulations in pursuance of which the suspension was purportedly made had come into operation. At the commencement of the Australian Federal Police Act, 1979 and of the Regulations, the appellant had actually been found guilty of those charges and an appeal, by way of rehearing, was pending in the Supreme Court of the Australian Capital Territory. In these circumstances, so the appellant argues, the relevant provisions of the Regulations should not be read in such a way as would authorize his suspension.

Regulation 20(2) provides, for present purposes, that where "a member is charged with having committed an offence against a law of . . . a Territory . . . punishable either on indictment or on summary conviction" and the Commissioner considers that the offence is of such a nature that the member should not continue to perform his duties until the charge has been determined, the Commissioner may at any time, suspend the member from duty. By its plain words, the Regulation refers to the fact that the member is charged with having committed the offence. It makes no reference to the time when the offence was committed or alleged to have been committed. It is, in my view, clear that the Commissioner's power to suspend arises when "a member is charged with having committed an offence" regardless of when the alleged offence was or is alleged to have been committed.

The more difficult question which arises for determination on this aspect of the appeal is whether the words "a member is charged" refer to the actual bringing of the charge or refer generally to a situation in which a member is the subject of a charge. The conclusion which I have reached is that, as a matter of construction, the words used, in their context, refer to a situation in which a member is the subject of a charge. The power conferred by Regulation 20(2) upon the Commissioner subsists, in the view I take, throughout the whole period in which a member is the subject of a pending charge. As a matter of ordinary language, a person who is subject to a pending charge of an offence against a law of a Territory is a person who "is charged with having committed an offence" against such a law.

It follows that the appeal also fails in so far as it relates to the suspension of the appellant from his duties as a member of the Australian Police Force.

It should be mentioned that a number of arguments which were apparently advanced before Davies J. in the Supreme Court were not pursued on behalf of the appellant on the hearing of the appeal. In particular, it has not been argued that the finding of Lockhart J. that charges had been proved did not, at least in so far as those charges in respect of which his Honour imposed fines were concerned, constitute findings that the appellant was guilty of the relevant offences. Nor was it argued on the appeal that the appellant was not, at the time of his suspension, subject to pending charges by reason of the fact that the pending proceedings were the appeals to the Supreme Court by way of rehearing rather than the initial proceedings in the Court of Petty Sessions or that the purported suspension was invalid by reason of a failure to give the appellant the opportunity of being heard in relation to it.

The appeal should be dismissed with costs.