Rush v Commissioner of Police
[2006] FCA 12
•21 December 2006
FEDERAL COURT OF AUSTRALIA
Rush v Commissioner of Police [2006] FCA 12
APPLICATION – preliminary discovery – 0 15A rr 3 and 6 Federal Court Rules – prospective claims against members of the Australian Federal Police – police disclosure to Indonesian authorities of information putting applicants at risk of exposure to the death penalty – whether the prospective claims are speculative or devoid of prospects of success.
STATUTORY CONSTRUCTION – principles to be applied – s 8 of the Australian Federal Police Act 1979 (Cth) – extent to which s 8 can be read down in light of other domestic legislation and international instruments
ADMINISTRATIVE LAW – allegation that police acted without lawful authority in providing information concerning applicants to the Indonesian police – whether the AFP acted in accordance with requirements of relevant legislation
ADMINISTRATIVE LAW – procedural fairness – claim that the applicants have a substantive legitimate expectation that police would not act in such a way so as to expose them to the risk of the death penalty – whether the doctrine of substantive legitimate expectation is part of Australian law
TORT – negligence – allegation that assurances allegedly given by the AFP to father of one applicant gave rise to a duty of care to that applicant – nature of duty of police in conducting a criminal investigation – whether a duty to an individual member of the public can exist concurrently with police’s duty to the public at large – whether alleged duty inconsistent with public duty in performing their statutory functions
TORT – potential claim for misfeasance in public office – no reasonable cause to believe that the commission of this tort was other than a mere possibility
Australian Federal Police Act 1979 (Cth) ss 5A, 6, 8, 8(1)(b)(i)(iii)(c), 9, 17, 37, 37(1)(2)(4), 38, 39, 40, 64B
Judiciary Act 1903 s 39B(1A)(c)
Mutual Assistance in Criminal Matters Act 1987 (Cth) ss 5, 5(c), 6, 7, 7(3)(a), 8, 8(1A)(1B),10, 10(1)(2), 11, Pt II to VIIA
Death Penalty Abolition Act 1973 (Cth)
Extradition Act 1998 (Cth) s 22(3)(c)
Mutual Assistance in Criminal Matters (Republic of Indonesia) Regulations 1999 reg 4
Australian Federal Police (Discipline) Regulations 1979, reg 4
Federal Court Rules O 15A rr 3, 6Law of the Republic of Indonesia No 22 of 1997 on Narcotics, Primary Art 82(1)(a), Supplementary Art 78(1)(b)
Treaty between Australia and the Republic of Indonesia on Mutual Assistance in Criminal Matters, 27 October 1995, Art 2 and Art 4.2(d)
International Covenant on Civil and Political Rights, 13 November 1980, Art 6.1
Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, 2 October 1990, Art 1
Universal Declaration of Human Rights, 10 December 1940, Art 3Allsop, “Statutes: Context, Meaning and Preenactment History”, Jo of NSW Bar Assoc, Winter 2005, 19 ff
Mason, (2005) 12 Aust Jo of Admin Law 103
Craig, Administrative Law, 639-656 (5th ed 2003)
Sedley, “The last 10 years’ development of English public law” (2004) 12 Aust Jo of Admin Law 9
Eaton, “Liability of Municipality or Other Governmental Unit for Failure to Provide Police Protection from Crime” 90 ALR 5th 273
57 Am Jur 2d, “Municipal, County, School and State Tort Liability”
Grubb (ed), The Law of Tort, “The Police” 16.73 ff (2002)
Linden, Canadian Tort Law, 286, 625 (7th ed 2001)
Todd (ed), The Law of Torts in New Zealand, 204, 212 ff (3rd ed, 2001)
Zitter, “Liability for Failure of Police Response to Emergency Call” 39 ALR 4th 691
ALRC Report 92, The Judicial Power of the Commonwealth, 652 (2001)Hooper v Kirella (1999) 96 FCR 1 cited
Gull Petroleum (WA) Ltd v Tah Land Pty Ltd [2001] FCA 1531 cited
St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147 applied
Airservices Australia Ltd v Transfield Pty Ltd (1999) 92 FCR 200 cited
Enever v The King (1906) 3 CLR 969 cited
Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 137 ALR 47 cited
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 cited
Braverus Maritime Inc v Port Kembla Coal Terminal Ltd [2005] FCAFC 256 cited
Dietrich v The Queen (1992) 177 CLR 292 cited
Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 cited
Rodriguez v United States 480 US 522 (1987) cited
Barton v The Commonwealth (1974) 131 CLR 477 cited
Ng Siu Tung v Director of Immigration (2002) 5 HKCFA 1 not followed
R v Secretary of State for the Home Department; ex parte Zeqiri [2002] UKHL 3 not followedMinogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 cited
Attorney-General (NSW) v Quin (1990) 170 CLR 1 cited
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 considered
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam; (2003) 214 CLR 1 applied
R v North and East Devon Health Authority; Ex parte Coughlan [2001] QB 213 cited
Swinney v Chief Constable of Northumbria Police [1997] QB 464 cited
Tame v New South Wales (2002) 211 CLR 317 applied
Hill v Chief Constable of West Yorkshire Police [1989] AC 53 considered
Sullivan v Moody (2001) 207 CLR 562 applied
Brooks v Commissioner of Police for the Metropolis [2005] 1 WLR 1495 considered
Hinchcliffe v Commissioner of Australian Federal Police (2001) 118 FCR 308 cited
R v Chief Constable of Devon and Cornwall; Ex parte Central Electricity Generating Board [1982] 1 QB 458 cited
Thompson v Vincent [2005] NSWCA 219 cited
Batchelor v State of Tasmania [2005] TASSC 11 cited
Cran v State of New South Wales (2004) 62 NSWLR 95 applied
D’Orta-Ekenaike v Victoria Legal Aid (2005) 214 ALR 92 cited
State of New South Wales v Paige (2002) 60 NSWLR 371 cited
Doe v Board of Commissioners for Municipality of Metropolitan Toronto (1990) 72 DLR 4th 580 cited
Calveley v Chief Constable of Merseyside Police [1989] 1 AC 1228 cited
Zalewski v Turcarolo [1995] 2 VR 562 cited
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 cited
Costello v Chief Constable of the Northumbria Police [1999] 1 All ER 550 distinguished
Schilling v Lenton (1988) 47 SASR 88 cited
Marshall v Osmond [1983] 1 QB 1034 citedMullaney v Chief Constable of West Midlands Police [2001] EWCA Civ 700 cited
Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242 cited
Hall v Whatmore [1961] VR 225 cited
Howard v Jarvis (1958) 98 CLR 177 cited
Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 cited
Doe v Metropolitan Toronto (Municipality) Commissioners of Police (1998) 160 DLR 4th 697 cited
Chambers-Castanes v King County 669 P2d 451 (1983) cited
Cowan v The Chief Constable for Avon & Somerset Constabulary [2001] EWCA Civ 1699 distinguished
Emanuele v Hedley [1998] FCA 709 cited
State Rail Authority of New South Wales v Wiegold (1991) 25 NSWLR 500 cited
O’Neill v Mann (2000) 101 FCR 160 applied
Corrs Pavey Whiting & Byrne v Collector of Customs (1987) 14 FCR 434 cited
A v Hayden (1984) 156 CLR 532 cited
Sanders v Snell (No 2) (2003) 130 FCR 149 cited
L (a child) v Reading Borough Council [2001] 1 WLR 1575 citedSCOTT RUSH, RENAE LAWRENCE, MICHAEL WILLIAM CZUGAJ AND MARTIN STEVENS v COMMISSIONER OF POLICE
No NTD 28 of 2005
FINN J
ADELAIDE (HEARD IN DARWIN)
23 JANUARY 2006
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
NTD 28 OF 2005
BETWEEN:
SCOTT RUSH
FIRST APPLICANTRENAE LAWRENCE
SECOND APPLICANTMICHAEL WILLIAM CZUGAJ
THIRD APPLICANTMARTIN STEVENS
FOURTH APPLICANTAND:
COMMISSIONER OF POLICE
RESPONDENTJUDGE:
FINN J
DATE OF ORDER:
23 JANUARY 2006
WHERE MADE:
ADELAIDE (HEARD IN DARWIN)
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
NORTHERN TERRITORY DISTRICT REGISTRY
NTD 28 OF 2005
BETWEEN:
SCOTT RUSH
FIRST APPLICANTRENAE LAWRENCE
SECOND APPLICANTMICHAEL WILLIAM CZUGAJ
THIRD APPLICANTMARTIN STEVENS
FOURTH APPLICANTAND:
COMMISSIONER OF POLICE
RESPONDENT
JUDGE:
FINN J
DATE:
23 JANUARY 2006
PLACE:
ADELAIDE (HEARD IN DARWIN)
REASONS FOR JUDGMENT
The circumstances revealed in this application for preliminary discovery suggest there is a need for the Minister administering the Australian Federal Police Act 1979 (Cth) (“the AFP Act”) and the Commissioner of Police to address the procedures and protocols followed by members of the Australian Federal Police (“AFP”) when providing information to the police forces of another country in circumstances which predictably could result in the charging of a person with an offence that would expose that person to the risk of the death penalty in that country. Especially is this so where the person concerned is an Australian citizen and the information is provided in the course of a request being made by the AFP for assistance from that other country’s police force. This said, the application to this Court must be rejected. It reveals no basis for a reasonable cause to believe that the applicants may have a right to obtain relief in this Court. Any later proceedings brought on the bases foreshadowed in this application would be purely speculative in character or else would have no prospects of success.
The four applicants, Scott Rush, Renae Lawrence, Michael Czugaj and Martin Stevens, are members of a group of Australian citizens known as the “Bali nine”. All were arrested in Bali for alleged involvement in heroin trafficking to Australia, the arrests resulting from action taken by the Indonesian police in consequence of precise details provided to that police by members of the AFP. Each of the applicants is now exposed to death penalty if convicted of the offences with which they respectively have been charged. It is the action of AFP members in providing that information to the Indonesian police and its foreseeable consequence that has prompted the bringing of this application.
THE APPLICATION FOR PRELIMINARY DISCOVERY
Order 15A rr 3 and 6 of the Federal Court Rules provide respectively for what is colloquially known as “identity discovery” and “information discovery”: see generally Hooper v Kirella (1999) 96 FCR 1. I am empowered by our Rules to order identity discovery where (i) an applicant, having made reasonable inquiries, is unable to ascertain the description of a person sufficiently for the purpose of commencing a proceeding in this Court against that person; and (ii) it appears that some other person has, has had, or is likely to have knowledge of facts or possession of any document tending to assist in ascertaining who that person is.
Information discovery in contrast is discovery against the very person against whom relief may be sought. It is tightly circumscribed in the requirements to be met before discovery may be ordered. These are that:
“(a)there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description has been ascertained;
(b)after making all reasonable inquiries, the applicant has not sufficient information to enable a decision to be made whether to commence a proceeding in the Court to obtain that relief; and
(c)there is reasonable cause to believe that that person has or is likely to have or has had or is likely to have had possession of any document relating to the question whether the applicant has the right to obtain the relief and that inspection of the document by the applicant would assist in making the decision.”
Common to both species of discovery is a prospective proceeding which may be commenced in this Court. Inherent in this possibility are the requirements that the proceeding will be (a) within federal jurisdiction and (b) in respect of a cause of action known to law which is not purely speculative in character and which is not devoid of prospects. There is no difficulty in this matter in relation to the former of these requirements, some at least of the prospective causes of action being said to arise under Commonwealth legislation: see Judiciary Act 1903, s 39B(1A)(c). It is the latter requirement, which requires the identification of a possible cause of action (in this case a legal wrong done to the applicants), that is problematic.
It is unnecessary for me to refer in detail to the growing body of case law on preliminary discovery. It is sufficient for present purposes to refer to the following. The O 15A r 3 power to order identity discovery is not to be used in favour of a person who intends to commence merely speculative proceedings. A material factor in the exercise of the Court’s discretion is the prospect of the applicant succeeding in proceedings against the person wished to be sued: Hooper v Kirella at [33]. Information discovery under O 15A r 6 is significantly limited by the conditions imposed in subpars (a), (b) and (c) of that rule. Subpar (a) requires that there be reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court. While the threshold test under this subrule may be set at quite a low level: see Gull Petroleum (WA) Ltd v Tah Land Pty Ltd [2001] FCA 1531 at [59]; the test for determining whether the applicant has a reasonable cause to have the requisite belief is an objective one: see Hooper v Kirella at [39]. Though it is not necessary to demonstrate a prima facie case, it is not enough merely to assert that there is, or is the mere possibility of, a case against the prospective respondent: Hooper v Kirella at [39]. Importantly, as Hely J observed in St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147 at [26]:
“(d) belief requires more than mere assertion and more than suspicion or conjecture. Belief is an inclination of the mind towards assenting to, rather than rejecting a proposition. Thus it is not sufficient to point to a mere possibility. The evidence must incline the mind towards the matter or fact in question. If there is no reasonable cause to believe that one of the necessary elements of a potential cause of action exists, that would dispose of the application insofar as it is based on that cause of action: John Holland Services Pty Ltd v Terranora Group Management Pty Ltd [2004] FCA 679; BC200403021 at [13], [14], [17] and [73].”
While O 15 r 6 expressly contemplates “fishing”, it equally requires that each of the limiting conditions prescribed in subpars (a), (b) and (c) must be established. Preliminary discovery cannot itself be used to remedy deficiencies in the satisfaction of the conditions themselves: Airservices Australia Ltd v Transfield Pty Ltd (1999) 92 FCR 200 at [5].
Before outlining the factual setting of this matter I should indicate that it has undergone a significant transformation since the hearing of the application. I gave the applicants leave to file supplementary submissions directed primarily to the prospective causes of action they might wish to pursue. They have acted upon this leave and, in quite some degree, have recast their cases for present purposes. This explains why matters which received some attention at the hearing are only dealt with cursorily in these reasons.
FACTUAL SETTING
Much in the detail of what follows relates only to the first applicant, Scott Rush, and gives rise to potential claims unique to him. As will become apparent, the cases of the other three applicants arise from their involvement in events in which Scott Rush as well was implicated. The evidence in this matter was given by way of affidavit and without cross-examination. In relation to Rush’s case I should also indicate that a number of affidavits have been read which expose significant conflicts of evidence between witnesses. I should indicate that I have not been asked in the circumstances to make findings in relation to contested issues of fact in the material before me, the respondent being prepared to accept that their resolution is for another day, if at all.
The annexures to several of the affidavits contain documents derived from the Dossier (or book of documents) relied upon by the prosecutor as evidence in the prosecution of the second applicant, Renae Lawrence, in the criminal proceedings in the Denpasar District Court in respect of an offence under Art 82(1) of the Law of the Republic of Indonesia No 22 of 1997 concerning Narcotics. The Dossier contained documents obtained by Indonesian Police as part of their investigation and has been made a public document by order of the Indonesian Court. Reference will be made below to translations of a number of these documents.
The four applicants are Australian citizens. On 6 April 2005, Renae Lawrence and Martin Stephens travelled to Bali. Scott Rush and Michael Czugaj travelled to the same destination on 8 April 2005.
Prior to Rush’s departure from Australia, his father, Lee Rush, became aware he may have been travelling to Indonesia. Lee Rush was concerned that Scott might have been travelling to Bali to be involved in illegal activity and, according to his evidence, he was determined to help save him from committing any offence in Bali.
Lee Rush contacted a barrister and family friend, Robert Myers, to seek advice. Myers had acted for Scott Rush on a number of minor criminal prosecutions concerned, in the main, with dishonesty offences. Myers in turn contacted a friend of his, Damon Patching, a member of the Queensland Police Service who was at the relevant time seconded to the AFP. Before referring to the evidence of Mr Myers and Mr Patching, I foreshadow that there are important differences between each’s account of their several conversations particularly in relation to what Mr Patching is alleged to have said would be done, and had subsequently been done, by the AFP at Sydney Airport in relation to Scott Rush.
Myers’ evidence is that he requested that Rush be detained at Sydney airport and prevented from leaving Australia. He referred to Rush’s prior convictions. It was the case that Rush was on bail at the time. Myers went on that if the AFP could not detain Rush he should be stopped at his point of exit and be advised that the AFP were aware he was “up to no good”, that he would be watched in Bali and that it would be foolish for him to participate in illegal activity there.
Patching, according to Myers, said the AFP would talk to Rush if a passport alert (“a PACE alert”) was activated. He was later told by Patching that this had occurred and that Rush had been spoken to at the airport. Myers then spoke to Lee Rush and told him that, given what the AFP had done, he and Lee Rush had done all they could conceivably do and there was no necessity for Lee Rush to go to Bali to stop Scott.
Lee Rush’s evidence of his conversations with Myers corroborated Myers’ accounts and it was because of those conversations that he desisted from going immediately to Bali to stop his son committing any offence.
Mr Patching’s evidence was that in one of his conversations with Myers he indicated he would contact Ashley Durre, another Queensland Police Service Officer on secondment with the AFP. It was agreed with Durre that Patching should arrange for a PACE alert to be placed on Scott Rush. Patching contacted Federal Agent Osseily who handled PACE alert matters at Sydney Airport, who activated the alert. Osseily, Patching said, informed him he did not think “it was a goer” for the AFP to approach Scott and to warn him he was of interest to the police. Patching said he knew at the time it would be unusual for police to make such an approach. When he later rang Robert Myers and was asked whether Scott Rush would be approached and spoken to by the police, Patching deposed he said that “may be looked at as a possibility … depending on the circumstances”. He denied he gave any assurance that Rush would be approached. The next day Patching received a call from Federal Agent Collins at Sydney Airport. Collins asked him whether Rush’s bail conditions would prevent him leaving the country. After enquiries in Queensland, Patching informed Collins they would not. He also told Collins that Lee Rush wanted Scott to be approached. Collins commented this was not usual practice. Patching denied he gave Myers an assurance or undertaking at any stage that Scott Rush would be approached.
Mr Durre’s affidavit corroborated Patching’s evidence in his recall of conversations with Patching to the extent he was present at and overheard telephone conversations Patching had with others including Myers.
Mr Osseily’s evidence described the PACE alert system. It is maintained by the Australian Customs Service. It is used by particular Federal and State agencies both as a means of gathering intelligence on persons entering or leaving Australia and also as a means of preventing certain targeted individuals from entering or leaving the country.
Mr Osseily said he created the PACE alert on Scott Rush on the basis of information that his bail conditions prevented him from departing Australia. He derived this information from Patching.
Mr Collins, who was on duty at the AFP office at Sydney Airport on 8 April, gave evidence that he was informed that morning of the alert on Scott Rush and that the basis of it was that Rush’s bail conditions stipulated he was not allowed to depart Australia. He spoke to Patching and was told of Lee Rush’s concern about Scott’s visit to Bali. Collins then contacted the relevant Queensland State Police and ascertained that there were no bail conditions preventing him leaving the country. This evidence is not consistent with Patching’s. By that time the passengers would have commenced boarding the flight to Bali. As he said in his own words:
“16.My conclusion at this stage was that there was no reason for Scott Rush to be detained and that he should be allowed to leave without being disturbed. My view was that despite the concerns of Lee Rush, Scott Rush was an adult and there was no basis for detaining Scott Rush. I recall running my decision past my supervisor after outlining the results of my investigations and that my supervisor agreed with my decision.
17.I then contacted the Customs and advised the officer on duty that the AFP would be taking no further action.”
On 8 April 2005, Paul Hunniford, who was the AFP Senior Liaison Officer in Bali, sent a letter (translated into Indonesian) to the Indonesian National Police (“the INP”) in Denpasar. It said (omitting formal and irrelevant detail)”
“Subject:
Heroin couriers from Bali to Australia – Currently in Bali
Dengan hormat,
The AFP in Australia have received information that a group of persons are allegedly importing a narcotic substance (believed to be Heroin) from Bali to Australia using 8 individual people carrying body packs strapped to their legs and back. More specifically the information received that:
The group planned to conduct an importation in December 2004. The group travelled to Bali in December 2004 but the importation was cancelled because there was not enough money to buy ‘the stuff’ and that they would be travelling again in 3-6 months. The group returned to Australia.
The couriers were given instructions not to smoke cigarettes for two weeks prior to travel as they would not be allowed to smoke on the return flight as they may appear nervous. They were to carry body packs (containing white powder) back to Australia by using packs on both legs and the back supports. They were also supplied back supports. The packs were to be tightly taped to the person’s body. Members of the group were given expense money and told to change the money into local currency to allow them to buy oversized clothes and thongs. The clothes and thongs were not to have any metal on them to avoid the metal detectors at the airports. The couriers received pre-paid mobile telephones. On return through Customs they were told to be carried [sic] a wooden carving for declaration to Quarantine to by-pass Customs.
Couriers –
YANG, Alice dob 9 Dec 1985
NGUYEN, Thanh Nhan dob 30 Nov 1986
LEE, Francis dob 14 March 1983
CAO, Shaode dob 26 Sep 1986
HUANG, Danny dob 7 Dec 1986
LAU, Ina Yuk Teng 3 Feb 1986
LAWRENCE, Renae 11 Oct 1977
NORMAN, Matthew 17 Sept 1986Enquiries reveal that Andrew CHAN bn: 12/011984 [sic] (21) … Sydney (NSW D/L) organised travel for some of the December 2004 couriers. Travel movements show that CHAN has travelled previously to Bali in August 2004 (11 days) and October 2004 (7 days).
On Sunday 3 April 2005 CHAN departed Sydney for Denpasar, Bali. His travel itinerary indicates that he is booked to stay at the Hard Rock Café Kuta and is due to return on Friday 15 April 2005.
On Wednesday 6 April 2005 four suspected couriers departed Sydney for Denpasar on AO7829:
Renae LAWRENCE bn: 11/10/1977
Matthew NORMAN bn: 17/09/1986
Martin STEPHENS bn: 13/04/1976
Si Yi CHEN bn: 19/03/1985They are due to return to Australia on Friday 15 April 2005, the day after CHAN returns. At this stage it is unknown who is the source of the narcotics in Bali. If identified by INP it is strongly requested that no action is taken until interdiction commences in Australia as early interdiction will hamper the identification of the organiser/recipients in Australia. Also until the possible narcotics are located on the couriers it is possible that the syndicate is still in the organisational phase.
About 0900 hrs this date Friday 8 April the AFP have received information that a further 3 suspect couriers departing on Australian Airlines flight no AO7829 to Denpasar. Return date not confirmed at this stage.
Tan Duc Thanh NGUYEN bn: 30/10/1982
Michael William CZUGAJ bn: 21/06/1985 (Russian)
…
Scott Anthony RUSH bn: 03/12/1985
…Request
The AFP would like to identify the source of the drugs and the organisers (other that CHAN) in Australia. We would also like to gain evidence of association between CHAN and the suspected couriers. To do this it I ask that
1.That the suspected couriers due to arrive this date be oversighted to identify their intended address in Australia.
2.INP obtain as much evidence/intelligence as possible to assist AFP identify the organisers in Australia and source of narcotics in Indonesia.
3.We request surveillance to be carried out on CHAN and the couriers (if possible) until departure.
4.should they suspect that CHAN and/or the couriers are in possession of drug at the time of their departure that they take what action they deem appropriate.
5.Could INP make enquiries to establish if CHAN is staying at the Hard Rock Hotel and to identify any associates, especially meetings with the above mentioned or the identity of other possible couriers.
6.Could copies of all passenger arrival cards be obtained.
7.Request photos to be taken of any meetings for possible use in proceedings here.
8.If possible obtain phone records of any numbers being called in Australia by either CHAN or the couriers. This may assist AFP identify the organisers in Australia and possible telephone interception:” emphasis added.
On 12 March Mr Hunniford sent a further letter to the INP. It stated, insofar as presently relevant:
“Subject:
Suspected Heroin couriers from Bali to Australia – Additional intelligence
Dengan hormat
Enquiries reveal that:
Andrew CHAN bn: 12/011984 [sic]
Renae LAWRENCE bn: 11/10/1977
Matthew NORMAN bn: 17/09/1986
Martin STEPHENS bn: 13/04/1976
Si Yi CHEN bn: 19/03/1985are due to return to Australia on Thursday 14 April 2005, on the Australian airlines flight AO7830 scheduled to depart at 22.40 hrs. Intelligence suggests that CHAN may not be in possession of narcotics but will possibly act as oversight on the flight. It is also suspected that CHAN would take possession of the narcotics after they arrived in Australia.
Enquiries reveal that:
Tan Duc Thanh NGUYEN bn: 30/10/1982
Michael William CZUGAJ bn: 21/06/1985 (Russian)
…
Scott Anthony RUSH bn: 03/12/1985
…are due to return to Australia on Saturday the 16th of April 2005, on the Australian Airlines flight AO7830 scheduled to depart at 22.40 hrs. Intelligence suggests that NGUYEN may also not have narcotics in his possession and may only oversight/organise the couriers.
Request
If arrests are made on 14 April it is likely that NYUYEN [sic], CZUGAJ and RUSH will become suspicious of the arrest and decide not to attempt to board the Saturday flight with narcotics. I therefor [sic] request that you consider searching NYUYEN [sic], CZUGAJ and RUSH soon after the first group are intercepted:” emphasis added.
James Watson, an AFP member and legal adviser to the Commissioner and to AFP members, has given the following evidence in relation to these two letters:
“5.4 contrary to what has been widely reported in the media, the information concerning Scott Rush which is reflected in the abovementioned letters dated 8 and 12 April 2005 was not based upon information received from Mr Meyers [sic] or Mr Lee Rush via Senior Constable Patching. Quite apart from the PACE alert placed by Senior Constable Patching, prior to Scott Rush’s departure overseas on 7 April 2005 he (i.e. Scott Rush) activated another PACE alert, which was handled by the AFP’s case officer (Federal Agent Hingst) who had carriage of the AFP’s extant investigation into members of the so-called ‘Bali 9’. It was the triggering of this alert which connected Mr Rush with eight other already identified persons of interests. It was information obtained in the course of this extant AFP investigation (including as a result of the activation of the PACE alert handled by Federal Agent Hingst) which caused Mr Rush’s details to be included in the AFP letters of 8 and 12 April.”
Mr Watson also has stated that in sending the two letters to the INP the AFP were acting pursuant to what I will describe as the Police Cooperation Memorandum of Understanding with Indonesia.
Between 9 pm 17 April 2005 and 2 am 18 April 2005, the four applicants were among the nine Australians who were detained by the INP. They were found in possession of what was alleged to be significant quantities of heroin. A process of investigation had previously been initiated by the INP on 13 April in consequence of the 8 April letter.
On 17 April 2005 the INP issued a formal “Investigation Order”. This was done “in the interests of a criminal investigation”. I have in evidence the order that relates to Renae Lawrence. Similar orders, apparently, were issued in respect of the other applicants. The Lawrence Order directed named officers to:
“1.Conduct a criminal investigation concerning narcotics under the name of the suspect RENAE LAWRENCE, in accordance with Primary Article 82, Clause (1) sub-clause (a) and Supplementary Article 78, Clause (1) sub-clause (b) of Republic of Indonesia Law No 22, 1997 on Narcotics.
2.Prepare a Plan of Investigation.
3.Report every development in the implementation of the criminal investigation at the first opportunity.”
The Order was effective from 17 April.
On 18 August 2005, the INP wrote to the Australian Consul in Bali formally informing the consulate that Renae Lawrence had been arrested and detained. The arrest warrant of 17 April and the Detention Order of 18 April were enclosed. The letter went on to state that Ms Lawrence’s arrest was made because it was strongly suspected that she was involved in a narcotics matter. The heroin was referred to. And it was stated that she was arrested in accordance with Primary Art 82(1)(a) and Supplementary Art 78(1)(b) of Republic of Indonesia Law No 22 of 1997 on Narcotics (“the Narcotics Statute”). Seemingly, like letters were sent to the consulate concerning the other applicants.
It would appear from Mr Watson’s evidence that the INP completed its investigation into the applicants on 15 August and on that day delivered the Dossier of evidence to the office of the Prosecutor for consideration of the evidence. On 27 September 2005 the Prosecutor delivered the Dossier to the Denpasar District Court for consideration by the judge. Beginning with Scott Rush on 13 October 2005, the applicants were brought before the Court and each was charged upon the Court’s reading of the charges against him or her.
It is an agreed fact for the purposes of this application that no request has been made by the Indonesian Government to the Australian Government or by the Australian Government to the Indonesian Government in relation to any investigation, arrest or prosecution of the persons now known as the Bali nine under the provisions of the Mutual Assistance in Criminal Matters Act 1987 (Cth).
After referring below to statutory and other materials relevant to this case which do or are said to govern the conduct of the AFP in this matter, I will refer to what are agreed facts as to Australian Federal Police practice in relation to police to police cooperation particularly in matters which could expose a person to the death penalty.
RELEVANT STATUTES, TREATIES, INSTRUMENTS AND AGREEMENTS
1. Statutes
(i) The Death Penalty Abolition Act 1973 (Cth)
This Act provides the backdrop to the causes of action that might be relied upon in any prospective proceeding to be brought by the applicants. This Act abolished capital punishment in respect of offences under the laws of the Commonwealth and the Territories and, within the limits of Commonwealth legislative power, under Imperial Acts.
(ii) The Australian Federal Police Act 1979 (Cth)
The significance of this Act to the applicants’ case only became apparent in their supplementary written submissions. For present purposes I would emphasise the following features of this legislation. First, it constituted the Australian Federal Police: s 6; and defined its functions and powers: ss 8 and 9. Amongst its functions are the provision of police services in relation to laws of the Commonwealth and the safeguarding of Commonwealth interests: s 8(1)(b)(i) and (iii); and to do anything incidental or conducive to the performance of these functions: s 8(1)(c). The Act created the position of Commissioner of Police: s 6 and s 17; it conferred on the Commissioner, subject to the Act, the general administration of, and the control of the operations of, the AFP: s 37(1); it empowered the Commissioner to issue orders, in writing, in the exercise of his or her s 37 powers and AFP employees were obliged to comply with such orders, as they were with any lawful direction given by (inter alia) the Commissioner: ss 38, 39 and 40.
The Minister administering this Act was likewise empowered to give written directions to the Commissioner with respect to the general policy to be pursued in relation to the performance of the functions of the AFP: s 37(2). The Commissioner was obliged to comply with such directions: s 37(4). On 31 August 2004 such a direction was given. It indicated that one of the expectations the Government had of the AFP was:
“to be active in pursuing opportunities for cooperation and strategic alliances with … international partners in law enforcement, to support effective action against multi-jurisdictional crime.”
The AFP was to give “special emphasis” to (inter alia):
“Ÿ preventing, countering and investigating transnational and multi-jurisdictional crime, illicit drug trafficking …
Ÿmeeting Commonwealth interests in a safe and secure Australia by actively fostering relationships with other law enforcement agencies … within Australia and overseas, where the provision and exchange of information is consistent with AFP functions …”
The AFP Act and the Australian Federal Police Regulations made under it apply both throughout and also “outside Australia”: the AFP Act, s 5A. Finally, in abolishing the “independent discretion” rule exemplified in Enever v The King (1906) 3 CLR 969, s 64B provided (insofar as presently relevant) that:
“(1)The Commonwealth is liable in respect of a tort committed by a member in the performance or purported performance of his or her duties as such a member in like manner as a person is liable in respect of a tort committed by his or her employee in the course of his or her employment, and shall, in respect of such a tort, be treated for all purposes as a joint tortfeasor with the member.”
(iii) The Mutual Assistance in Criminal Matters Act 1987 (Cth) (“the Mutual Assistance Act”) and the Mutual Assistance in Criminal Matters (Republic of Indonesia) Regulations 1999 (“the Regulations”)
This Act assumed its presently relevant form as a result of amendments made to it in 1996. The 1996 legislation aimed (to quote the “Outline” to the Explanatory Memorandum to the 1996 Bill) to:
“Ÿ clarify the areas in which mutual assistance in criminal matters may only be sought by the Attorney-General and the areas in which assistance may be sought using other channels
Ÿenable the Attorney-General to grant or request assistance without the Act having to be applied by regulation to a particular country
Ÿgive the Attorney-General a discretion to refuse assistance where the request relates to the prosecution or punishment of a person for an offence in respect of which the death penalty could be imposed or carried out
Ÿenable the Attorney-General to refuse assistance where he considers it appropriate in the circumstances of a particular request.”
The areas in which a request was required to be made by the Attorney-General, or to the Attorney-General in respect of a request by a foreign country, for international assistance in a criminal matter, were specified in the Act. Put shortly, they related to matters that would require either Australia (in respect of a foreign request) or the foreign country (in respect of an Australian request) to exercise coercive powers: see ss 5, 7, 10 and 11 and Parts II to VIIA of the Act; see also Second Reading Speech, Mutual Assistance in Criminal Matters Legislation Amendment Bill 1996, House of Representatives, Wed 26 June 1996, 2831-2832.
Though the applicants initially placed considerable reliance upon the Mutual Assistance Act at the hearing, it is clear that (a) no request for assistance was made by the Governments of either Australia or Indonesia under this Act in this matter and (b) the assistance sought and given was not “of a kind that may be provided or obtained under this Act”: s 6. The applicants in consequence cannot rely directly on the Act in their search for a possible cause of action.
It is also clear that the Mutual Assistance Act was not intended to prevent the provision or obtaining of international assistance in criminal matters other than assistance of a kind specified in the Act: s 6. Nonetheless, the Act within its scope does address the giving of assistance at a foreign country’s request in death penalty contexts.
The 1996 amending Act referred to above inserted the following paragraphs into s 8 of the principal Act:
“(1A)A request by a foreign country for assistance under this Act must be refused if it relates to the prosecution or punishment of a person charged with, or convicted of, an offence in respect of which the death penalty may be imposed in the foreign country, unless the Attorney-General is of the opinion, having regard to the special circumstances of the case, that the assistance requested should be granted.
(1B)A request by a foreign country for assistance under this Act may be refused if the Attorney-General:
(a)believes that the provision of the assistance may result in the death penalty being imposed on a person; and
(b)after taking into consideration the interests of international criminal co-operation, is of the opinion that in the circumstances of the case the request should not be granted:” emphasis added.
In consequence of the provisions of s 7 and of the Regulations, the Act applied subject to the limitations, conditions, exceptions or qualifications as were necessary to give effect to the Mutual Assistance in Criminal Matters Treaty with Indonesia (“the Mutual Assistance Treaty”): the Mutual Assistance Act, s 7(3)(a).
The Regulations applied the Act to Indonesia “subject to the Mutual Assistance Treaty”: reg 4. That Treaty was done at Jakarta on 27 October 1995. A copy of the English text was a schedule to the Regulations.
Article 2 of the Treaty echoed the terms of s 6 of the Act in providing:
“This Treaty shall not derogate from obligations subsisting between the Contracting Parties whether pursuant to other treaties or arrangements or otherwise nor prevent the Contracting Parties providing assistance to each other pursuant to other treaties or arrangements or otherwise.”
To anticipate matters, the actions taken by AFP officers in this matter in providing information to the Indonesian Police was pursuant to a Memorandum of Understanding between Australia and Indonesia entitled “Memorandum of Understanding Between the Government of the Republic of Indonesia and the Government of Australia on Combating Transnational Crime and Developing Police Cooperation (“Police Cooperation MoU”). The Commissioner has indicated that this MoU would not be produced on this application first, because it is information of the type the application is designed to elicit if an order for information discovery was made and secondly, because its disclosure would be resisted on grounds of public interest privilege.
The Mutual Assistance Treaty also contemplated (in Art 4.2(d)) that assistance might be refused if the request related to “the prosecution or punishment of a person for an offence in respect of which the death penalty may be imposed or carried out”.
Amongst the criminal matters in which the Treaty contemplated assistance could be granted was “an offence against the law relating to dangerous drugs or narcotics”.
2. Treaties and Agreements
Reference has been made above to Australia’s Mutual Assistance Treaty with Indonesia and to its undisclosed MoU with Indonesia which, apparently, provided the basis for the actions of the AFP officers in this matter.
The applicants also rely in this application upon Australia’s ratification both of the International Covenant on Civil and Political Rights on 13 November 1980 (“the ICCPR”) and, more importantly for present purposes, of the Second Optional Protocol to that Covenant on 2 October 1990 (“the Protocol”), it coming into force on 11 July 1991. Under the Protocol, Australia agreed that no one within its jurisdiction would be executed: Art 1. Under the Covenant, Australia agreed (inter alia) that “Every human being has the inherent right to life”: Art 6.1; see also Art 3, Universal Declaration of Human Rights.
3. Guidelines
Under reg 4 of the Australian Federal Police (Discipline) Regulations 1979 an AFP member is obliged to have regard to any official guidelines that apply to the performance of his or her duties. In their original submissions and at the hearing considerable reliance was placed by the applicants on the “AFP Practical Guide on International Police to Police Assistance in Death Penalty Charge Situations” (“the Death Penalty Charge Guide”). It is now acknowledged in the applicants’ supplementary submissions that this Guide is not directly relevant in this proceeding.
Nonetheless, the terms of the Death Penalty Charge Guide warrant quotation:
“The Attorney-General in consultation with the Minister for Justice has determined that in future Australia will exercise a discretion when considering foreign requests for mutual assistance in criminal matters where the request relates to a charge attracting the death penalty under the law of the requesting country. In the exercise of that discretion, assistance may be refused in the absence of an assurance from the requesting country that the death penalty would not be imposed or carried out. The Attorney-General has decided that this policy will also apply to police to police requests.
Consistent with the Attorney-General’s decision, in future the following will apply in relation to AFP cooperation with overseas law enforcement agencies:
·police to police cooperation may continue on the present basis i.e. the AFP may provide such assistance as requested, provided it meets existing policy guidelines, irrespective of whether the investigation may later result in charges being laid which may attract the death penalty.
·where the assistance of the AFP is sought by the police or another law enforcement agency of a foreign country in relation to a matter in which a charge has been laid under the law of that foreign country, for a crime attracting the death penalty, no action is to be taken, nor should any indication be given as to the decision likely to be taken in respect of the request. All such requests are to be notified to the Director International and Operations as soon as possible after receipt. Following consultation with the Attorney-General’s Department, the General Manager National Operations will provide the Commissioner and Deputy with such advice as considered necessary in order that advice may be provided to the Minister for Justice and the Attorney-General:” emphasis added.
4. Indonesian Laws
Articles 82(1)(a) and 78(1)(b) of the Indonesia Narcotics Statute as I have called it, provide respectively that:
“Art 82(1) Whosoever without a right and illegally:
(a)imports, exports, offers for sale, traffics, sells, purchases, offers up, accepts, or acts as an intermediary in the sale, purchase or exchange of a Category 1 narcotic is to be punished by the death sentence or life imprisonment, of not more than 20 (twenty) years imprisonment and a fine of not more than Rp 1,000,000,000.00 (one billion rupiah);
Art 78(1)Whosoever without a right and illegally:
…
b.possesses, stores for their own possession or for supply, or is in control of a Category 1 narcotic not in plant form, is to be sentenced to not more than 10 (ten) years jail and fined a maximum of Rp 500,000,000.00 (five hundred million rupiah).”
I understand it to be the case that each of the applicants have been charged under both of these provisions.
Australian Federal Police Practice
The following are agreed facts as to AFP practice:
1.The Death Penalty Charge Guide replicates government policy in relation to how the AFP goes about investigating offences that may attract the death penalty. It clearly sets out what information the AFP will pass over to foreign law enforcement agencies, the stages it will do so and what the AFP will not pass to foreign law enforcement agencies.
2.The Guide does not apply where the assistance requested is in relation to a person who has not been charged. Once the person has been charged then under the Guide, the AFP requires the authorisation of the Attorney-General and/or the Minister for Justice and Customs to be able to hand over that information. Any police assistance given prior to the laying of the charge ceases after the person has been charged and does not continue unless the necessary authorisation is given.
3.In relation to the Bali 9 case, the Guide did not apply to the assistance provided because no charges had been laid. The Guide does refer to arrangements for police-to-police cooperation where the suspect has not been charged. In such cases the AFP would continue to supply information as required, provided it meets existing policy guidelines, irrespective of whether the investigation may later result in charges being laid which may attract the death penalty.
4.Police to police information may be provided pursuant to an MoU with the requesting country or an existing treaty between Australia and the requesting country. In the absence of an MoU or a treaty the AFP may still provide assistance at its discretion. The AFP relies generally on the provisions of the AFP Act as a basis for providing the information.
5.The Guide applies in relation to common law countries as well as civil law countries. In relation to civil law countries where a charge is usually laid only after a dossier is prepared, evidence is gathered and a case is made, the AFP will cooperate up to the point a charge is laid irrespective of whether the dossier is being prepared for a likely charge which will eventuate in the death penalty.
6.Any information handed over to foreign law enforcement agencies is recorded on the AFP internal systems and there is a very strict audit trail.
7.Not all requests for assistance prior to a suspect being charged can be provided. For example, where assistance requires coercive powers to be exercised here in Australia. Such requests would need to fall under the Mutual Assistance Act.
8.The Guide is the only internal policy guideline which applies in relation to international police-to-police assistance in death penalty charge situations.
9.The Attorney-General and Minister for Justice and Customs are not aware or notified as a matter of course, of the documents that the AFP provides to a foreign law enforcement agency prior to a charge being made involving the death penalty unless the Attorney-General requests a briefing. The decision to provide assistance is an operational decision for the AFP. Briefings of the Minister are not normally done prior to the AFP making an operational decision.
THE APPlicants’ CASES
The identity discovery sought by all of the applicants, is that of the member or members of the AFP who made the operational decisions to request assistance from the INP regarding the applicants and who provided assistance to the INP concerning the applicants’ activities in Bali. That additionally sought by Scott Rush is the identity of the member or members of the AFP who made the operational decisions (a) not to inform him prior to his departure from Australia that he was under surveillance and being monitored by the AFP and (b) not to advise his parents or Mr Myers of the decision not so to inform him.
In their written submission, the applicants point to communications with an officer of the Australian Government Solicitor (“the AGS”) in which inquiries as to the identity of the relevant persons were made but note that as a result of those inquiries and of the affidavits filed by the respondent, they are still unable to identify the members of the AFP, other than Mr Hunniford, who have been involved in making decisions or taking actions that have exposed the applicants to the risk of the death penalty in Indonesia.
The information discovery sought is of documents of the AFP which relate to operational and other decisions which led to the arrest and detention of the applicants on 17/18 April 2005 in Bali. The written submissions indicate non-exhaustive categories of such documents. They refer also to the same correspondence with the AGS noted above and claim that the information so acquired from the Commissioner is insufficient to enable the applicants to make a decision whether to commence a proceeding in the Federal Court. In particular the submissions point to the insufficiency of the information in relation to ascertaining whether there is a valid legal basis for the apparent decision or course of action which exposed the applicants to the death penalty.
I have already indicated that the manner in which the applicants cast their possible causes of action has changed significantly subsequent to the hearing, as is evident from their supplementary written submissions. Notwithstanding these changes to which I will refer below, their possible causes of action fall under three rubrics. The first two can be described as involving applications for declaratory and possibly other relief against AFP officers (yet to be identified), they having (i) acted without lawful authority in making decisions and taking actions which exposed the applicants to the death penalty in Indonesia; or (ii) failed to satisfy the applicants’ substantive legitimate expectations as Australian citizens that the Australian Government and its agencies and public officers would not act in such a way as to expose them to the risk of the imposition of the death penalty. The third rubric is that of tort law. First, it is asserted that Lee Rush’s provision of information to the AFP concerning the possible activities of his son gave rise to a relationship creating a duty on members of the AFP not to use that information in a way that would expose at least Scott Rush to the foreseeable risk of the death penalty in Indonesia. Further, in the circumstances surrounding the provision of the information to the AFP, the AFP assumed responsibility for Scott Rush. The possible tort claim in this is said to be in negligence. Distinctly, it is asserted that there is potentially a claim for misfeasance in public office.
I will consider each of these three possibilities in turn.
CONSIDERATION
1. Acting without lawful authority
As it was initially put, the applicants’ case as I understand it would be to the effect that the requests made to the INP for assistance in the two Hunniford letters of 8 and 12 April 2005 ought to have been made, if at all, under the Mutual Assistance Act in which case they would have to have been made by the Attorney-General. The requests in consequence were made unlawfully.
To the extent that this contention was premised on the proposition that the requests made were for assistance of a kind that could be obtained under the Mutual Assistance Act it is demonstrably untenable. The Hunniford requests were not for the exercise in Indonesia of any of the coercive powers specified in that Act and for that reason they could not be requests for assistance under the Act: cf s 10(1). I need not repeat here what I have earlier said in relation to the limited scope of the Mutual Assistance Act.
To avoid this conclusion the applicants now seek to construe the Act in such a way that any request for international assistance in a criminal matter, whether or not of a kind that may be made under the Act, must be made by the Attorney-General. Section 10(2) is relied upon to that end. This is not what the sub-section says. Section 10(1) prescribes that the Attorney-General alone must make any request for assistance of a kind that Australia is authorised to make under the Act. Subsection (2) of the same section, though, makes plain that subsection (1) does not prevent the Attorney-General on behalf of Australia from requesting assistance beyond what can be obtained under the Act. What the subsection does not say is that the Attorney-General is to be the exclusive channel for such other requests. It is permissive not prescriptive.
Other provisions both of the Mutual Assistance Act and of the Mutual Assistance Treaty with Indonesia make plain that no such limitation on the making of other requests was so intended. Section 6 of the Act expressly states that the Act does not prevent the provision etc of international assistance in criminal matters other than assistance of a kind that may be provided under that Act. Section 5 (the objects provision) states the purpose of the Act to be (inter alia) to facilitate the obtaining by Australia of international assistance in criminal matters: s 5(c). The interpretation of s 10(2) proposed by the applicants impedes rather than advances that purpose especially in light of s 6. Distinctly, the Mutual Assistance Treaty (the provisions of which limit the applicability of the Mutual Assistance Act to requests between Australia and Indonesia: see s 7(3)(a)) expressly provides that the Treaty does not derogate from obligations subsisting between the contracting parties, nor does it prevent them from providing assistance to each other: Art 2. Finally, if Parliament had intended through s 10(2) to impose such a fetter on obtaining international assistance in criminal matters as the applicants submit, thereby precluding the taking of such action as would otherwise be mandated by other legislation (e.g. the AFP Act: see below), one would have expected it to have spoken with far greater clarity than it has, the moreso given the purpose of the Act noted above: see Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 137 ALR 47 at 63-64.
I am in consequence satisfied that, on the proper construction of the Mutual Assistance Act, any foreshadowed cause of action founded on that Act must fail. In the circumstances it provides the applicants with no basis for any reasonable cause to believe they may have a right to obtain relief in this Court.
In supplementary submissions, the focus of the applicants’ prospective ultra vires case turned to the provisions of the AFP Act. The relevant provisions of this Act and of directions given under it are set out at [33] to [35] above. It is now contended that the functions and powers set out in ss 8 and 9 of that Act, when read in context, do not include, authorise or justify any act or decision made by an AFP member which exposes an Australian citizen to the death penalty, whether in Australia or overseas. The context referred to in this submission is said to be provided by the Death Penalty Abolition Act 1973 (“the Abolition Act”), the provisions of s 8(1A) and (1B) of the Mutual Assistance Act, unambiguous Australian Government policy which is opposed to the death penalty (at least for its citizens) and Australia’s signing of the Second Optional Protocol to the ICCPR.
What this proposed claim would ask for would be a significant reading down of what on its face is the unambiguous meaning of s 8 of the AFP Act. As the 8 and 12 April letters make plain, the provision of information by members of the AFP to the INP related to a suspected importation of heroin contrary to the “laws of the Commonwealth”. In consequence it fell squarely within the lawful functions of the AFP: s 8(1)(b) and s 8(1)(c). It was, moreover, an activity within the scope of what was envisaged in the ministerial direction made under s 37(2) of the AFP Act. It involved cooperation with the INP “to support effective action against multi-jurisdictional crime”; it related to “illicit drug trafficking”; and it reflected the active fostering of a relationship with the INP involving “the provision and exchange of information … consistent with AFP functions”: Ministerial direction of 31 August 2004. Nonetheless, it is said that context requires this reading down.
It is now well accepted that the modern approach to statutory interpretation requires that “context” be considered at the first instance, not merely at some later stage when ambiguity might be thought to arise. “Context” here is used in a wide sense and includes legal and historical context: see CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Braverus Maritime Inc v Port Kembla Coal Terminal Ltd [2005] FCAFC 256 at [36]; see also Allsop, “Statutes: Context, Meaning and Preenactment History”, Jo of NSW Bar Assoc, Winter 2005, 19 ff. It is questionable whether any of the matters relied upon are relevantly contextual for the purposes of interpreting s 8 of the AFP Act.
The international treaties and instrument that have been ratified by Australia and on which the applicants rely have not as such been incorporated into Australian law by express enactment. The Abolition Act pre-dated Australia’s signing up to the Second Optional Protocol to the ICCPR. Neither the Abolition Act nor the Protocol addresses action taken by Australian public officers or agencies vis-à-vis foreign law enforcement agencies in connection with offences in their jurisdiction which can there attract the death penalty. Neither expressly or impliedly prohibits taking such action as, for example, the provision of information of the type contained in the Hunniford letters. Neither expressly betrays an intent in relation to such action. The Abolition Act cannot thus properly be used to read down s 8 of the AFP Act. The Second Optional Protocol only came into effect for Australian purposes years after the enactment of s 8. It provides no contextual aid to the section’s interpretation. In any event it imposes no obligation on a Contracting Party vis-à-vis a non-contracting party in respect of the former’s dealings with the latter in relation to offences in the latter jurisdiction which can attract the death penalty. Even if s 8 was relevantly ambiguous, the Second Optional Protocol could not assist in resolving that ambiguity: see Dietrich v R (1992) 177 CLR 292 at 306; Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 303-304.
Secondly, there was no contact between the AFP and any of the applicants at all let alone contact that could lead Scott Rush or any of the others to reasonably believe or expect that the AFP had assumed some tutelary responsibility for him or her on which each could rely.
The Myer-Patching communications were directed to Lee Rush, not to the applicants generally or to Scott Rush in particular. I assume for the purposes of this application, that those communications led Lee Rush reasonably to believe that AFP officers would and did speak to Scott Rush at Sydney airport and because of this he did not go to Bali to save his son from committing any offence. I equally assume that Scott Rush was to have been the beneficiary of the police action Lee Rush believed had occurred and that the police failure to speak to him before his departure to Bali denied him the opportunity to abandon his participation in the trafficking operation given its predictable consequence. However, it is not the failure to warn as such that underpins the alleged negligence of the AFP officers. Rather it appears to be said that, having regard (a) to the alleged provision of information by or on behalf of Lee Rush to Patching about the apprehended criminal activity by Scott Rush, and (b) the request for assistance in relation to Scott Rush’s departure from Sydney and the alleged representation that it had been given, the AFP’s failure to act against this background may have authored a duty not to use the information in a way that put Scott Rush at risk of exposure to the death penalty in Indonesia. Hence it is said there is reasonable cause to believe that he may have a right to obtain relief from the relevant AFP officers in a negligence action in this Court.
It is unnecessary to enlarge here on the question whether this Court would have jurisdiction in any event to entertain such a suit in negligence in the Northern Territory against members of the AFP as Commonwealth officers. I simply adhere to the affirmative view I expressed on a similar question arising in the Australian Capital Territory in O’Neill v Mann (2000) 101 FCR 160. My reasoning in that case is “equally applicable to the Northern Territory”: ALRC Report 92, The Judicial Power of the Commonwealth, 652 (2001).
The proposed negligence claim could well be described as a mutated form of breach of confidence action with the important difference that the duty said to be owed by the AFP officers was not owed to the supplier of the information, i.e. Lee Rush, but to the subject of it, i.e. Scott Rush. Furthermore the limitation on the use of that information proposed by the applicants is a narrow one. It is not that the AFP could not use the information supplied at all. Rather it could not be used in a way that would put Scott Rush at risk of exposure to the death penalty in Indonesia.
It need hardly be said that the disclosures of information about Scott Rush made by or on behalf of Lee Rush to AFP officers could not give rise to a duty of confidence to Lee Rush such as would prevent its use by the AFP in its investigations into drug trafficking into Australia. The disclosures related to apprehended serious criminal misconduct: cf Corrs Pavey Whiting & Byrne v Collector of Customs (1987) 14 FCR 434 esp at 456. And a court would not enforce any contractual or equitable obligation relating to such information, the effect of which would have been to obstruct the administration of the criminal law: A v Hayden (1984) 156 CLR 532.
Recasting the matter in terms of a duty of care owed to Scott Rush does not advance the matter. While it is said that the AFP had assumed a responsibility for Scott Rush in the circumstances surrounding the Myer/Lee Rush provision of information to AFP officers, the basis for such an assumption of responsibility has not been explained. Neither has any possible justification been advanced for there being a concurrent duty of care to Scott Rush alongside the public law duties of the AFP officers concerned.
There is a short answer to the alleged duty. Even if it be the case that AFP officers said they would act, or had acted, in a particular way towards Scott Rush at the airport and failed to do so, neither their representations and their failure to act nor the circumstances of the Myer-Patching conversations could give rise to a duty such as is alleged. The proposed duty would be inconsistent with the duty owed by the AFP to the public at large in the conduct of its investigations into the Bali drug trafficking operation: cf Sullivan v Moody at [60].
I have already indicated that the AFP officers concerned did not act in contravention of the AFP Act in deciding to, and in making, the 8 and 12 April 2005 communications to the INP. They were acting in performance of their functions under the AFP Act and consonantly with ministerial directions. The communications made had a proper and rational purpose in the furtherance of that police investigation. The proposed duty would only qualify and impede the conduct of the investigation embarked upon by the AFP. It would elevate the interests of Scott Rush over the public interest that the AFP was serving under its legislation to the extent that the two collided, as it did in the making of the request to the INP.
If, as the other applicants seem to suggest albeit faintly, a like duty was owed them its obvious effect would have been to compromise the investigation itself in an important respect. No assistance of the type sought could have been asked of the INP notwithstanding that the investigation involved transnational criminal activity and that the assistance in fact sought, as I have noted, was for a proper purpose in furtherance of the AFP’s statutory functions.
In the cases of Scott Rush and of the other applicants the duty contended for cannot be reconciled with the nature and purpose of the functions being exercised by the AFP officers concerned, the discretions conferred on them in virtue of the task they were involved in, and the policy directive they were, apparently, implementing: cf Sullivan v Moody at [62]. Accordingly, to adopt Santow JA’s observations in Cran v State of New South Wales at [63], the greater public interest accorded unimpeded investigation by the AFP precludes in this case any duty of care owed to Scott Rush or to the other applicants. Such is the current law in this country and the policy informing it, that the interests of the applicants were subordinated to the public interests served by the AFP in their conduct of the investigation in question.
I should add for the sake of completeness that I do not consider that it would make any difference to this conclusion if it was the case that the AFP officers concerned had knowingly misled Lee Rush for the purposes of securing the Bali investigation from potential compromise (given its purpose as revealed in the 8 April 2001 request) and the stage reached in the AFP’s own investigations. Whatever the moral wrong to a caring parent that may have been involved in so doing, it could not have authored a duty of care such as has been proposed in this application.
No order for either identity discovery or information discovery will be made in relation to the intended cause of action based on the alleged possible negligence of AFP officers. That proceeding would have no prosects of success.
(ii) Misfeasance in Public Office
The applicants contend that the facts of this case as presently known to them raise, as a potential cause of action, the tort of misfeasance in public office. For the purposes of the elements of the tort, it is said that:
(i)the actions and decisions causing harm to the applicants were done by public officers (i.e. Mr Hunniford and others unknown);
(ii)the actions and decisions involved the purported exercise of powers as a public official; and
(iii)the actions and decisions were done with reckless indifference to the possible lack of powers or invalidity and to the likely injury to the applicants.
It is unnecessary for present purposes to discuss the elements of this tort in any detail. They were recently essayed by the Full Court of this Court in Sanders v Snell (No 2) (2003) 130 FCR 149. I would note, though, that the tort can take two forms. In one form (that of “targeted malice”) it must be shown that the public officer in question has acted as such with an actual intent to cause injury to a person or persons. In its alternate form it must be shown either that the officer has actual knowledge both that his or her action was beyond power and would cause or be likely to cause injury or else that the officer has acted with reckless indifference both to the possibility his or her action was beyond power and to the possibility that that action would cause or be likely to cause injury: see generally Sanders v Snell (No 2) at [95]-[100].
The applicants’ contentions in relation to this tort require that close attention be given to the requirements of O 15A r 6 in particular. I emphasise this for this reason.
The essence of the misfeasance tort in either of its forms is the “dishonest abuse of power”: L (a child) v Reading Borough Council [2001] 1 WLR 1575 at 1588. I am in complete agreement with the submissions of the respondent that there is no basis at all in the material before me to suggest any reasonable cause to believe that Mr Hunniford or other AFP officers acted with the reckless indifference asserted in the applicants’ supplementary written submissions. What is being advanced is at best “a mere possibility”. The evidence does not “incline the mind” towards assenting to the proposition asserted: cf St George Bank Pty Ltd v Rabo at [26].
I have already indicated that the actions of the AFP officers concerned with the decisions and actions which led to the applicants’ arrest were not of themselves ultra vires. There is no reasonable cause to believe that the decisions or actions were invalid because they were improperly motivated or that the officers were recklessly indifferent to the possible lack of power or validity in making those decisions or actions. Rather, on the evidence, they were referable to the Police Cooperation MoU with Indonesia. And while it was a foreseeable and likely consequence of the 8 and 12 April letters to the INP, that the applicants would be arrested in Indonesia and in that sense be exposed to harm in the sense of being put at risk of the death penalty, there is again no material at all which could objectively incline me to the proposition that the likelihood of that harm was other than a possible consequence of what was in the circumstances a valid exercise of official power.
Accordingly, I am not satisfied that the applicants have met the limiting conditions of O 15A r 6(a) for the purposes of information discovery in respect of the potential tort of misfeasance in public office. Equally I am not satisfied for the purposes of O 15A r 3 identity discovery that the prospective proceedings intended to be commenced would be other than speculative: Hooper v Kirella, at [33]. Hence this form of discovery will not be ordered.
CONCLUSION
I will order that the application be dismissed.
I certify that the preceding one hundred and twenty-six (126) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate:
Dated: 23 January 2006
Counsel for the Applicants: Mr McDonald QC with Ms Webb QC and Mr Johnson Solicitor for the Applicants: Greg Murray Solicitors Counsel for the Respondent: Mr Howe Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 7 & 8 November 2005
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