FEDERAL COURT OF AUSTRALIA Commonwealth of Australia v Day [2000] FCA 474 PUBLIC SERVICE - disciplinary offence - engaging in improper conduct as an officer - findings by Disciplinary Appeal Committee - whether purported performance of duties is capable of constituting conduct "as an officer" - "improper conduct". Public Service Act 1922, ss 56(d), 61, 63D. O'Connell v Palmer (1954) 53 FCR 429 referred to. COMMONWEALTH OF AUSTRALIA v SHANE ANTHONY DAY and ORS N 1299 OF 1999 DRUMMOND, WHITLAM & NORTH JJ 13 APRIL 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1299 OF 1999 On appeal from a Judge of the Federal Court of Australia BETWEEN: COMMONWEALTH OF AUSTRALIA Appellant AND: SHANE ANTHONY DAY First Respondent MARK DOUGLAS JENNIFER EUTICK STUART ANDERSON Second Respondents JUDGES: DRUMMOND, WHITLAM & NORTH JJ DATE OF ORDER: 13 APRIL 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed 2. The appellant pay the first respondent's costs of the appeal. 3. The cross-appeal 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 NEW SOUTH WALES DISTRICT REGISTRY N 1299 OF 1999 On appeal from a Judge of the Federal Court of Australia BETWEEN: COMMONWEALTH OF AUSTRALIA Appellant AND: SHANE ANTHONY DAY First Respondent MARK DOUGLAS JENNIFER EUTICK STUART ANDERSON Second Respondents JUDGES: DRUMMOND, WHITLAM & NORTH JJ DATE: 13 APRIL 2000 PLACE: SYDNEY REASONS FOR JUDGMENT THE COURT 1 The first respondent, Shane Anthony Day, is an officer of the Australian Customs Service ("Customs"). He has been charged with misconduct under s 61 of the Public Service Act 1922 ("the Act"). An inquiry officer found the charge proved and directed Mr Day be demoted. He appealed against that direction under s 63D(2) of the Act. The appeal was heard by a Disciplinary Appeal Committee constituted by the second respondents ("the DAC"), which also found the charge established, but reduced the severity of his demotion. However, on Mr Day's application under the Administrative Decisions (Judicial Review) Act 1977, Gyles J set aside the DAC's decision and remitted his s 63D appeal for rehearing: [1999] FCA 1444. The Commonwealth now appeals from that judgment. Mr Day cross-appeals against the order remitting the appeal under s 63D for rehearing. 2 Section 61 is contained in Division 6 of Part III of the Act. Section 55 of the Act provides that in Division 6, unless the contrary intention appears, "misconduct", in relation to an officer, means a failure of the officer to fulfil his duty as an officer. Mr Day is charged with having failed, on 21 September 1998, to fulfil his duty as an officer within the meaning of s 56(d) of the Act, which relevantly provides: "56 … an officer shall be taken to have failed to fulfil his duty as an officer if and only if: … (d) he engages in improper conduct as an officer; …." 3 The charge laid against Mr Day specifies: "Particulars of the charge are that he breached the standard of conduct for Customs Officers as set out in the Customs Code of Ethics and Conduct 'Official Identification and Security Items' in that he presented his official Customs Identification Card to gain access to Barbara BAKER at the Downing Centre Local Court in order to obtain information regarding a search warrant which had been executed on The Australian Customs Service on 28 July 1998." 4 At the hearing before the DAC the documents received in evidence included a booklet published by Customs in August 1994 described as the Code of Ethics and Conduct. In a section headed "Standards of Conduct in Customs", the booklet states (at p 10): "Official Identification and Security Items Identity badges and passes are issued to assist and identify officers in the performance of their duties, and in exercising powers entrusted in them. They are not to be used for any other purpose. Keys, passwords and other security items are to be maintained safely by the officer to whom they are issued, and surrendered to Customs on termination of employment." 5 The search warrant referred to in the particulars of the charge was issued by the person referred to in those particulars, Barbara Baker. It was executed at premises occupied by Customs where Mr Day worked, and things belonging to him were seized. The constable responsible for executing the warrant was a member of the Australian Federal Police ("AFP"). Mr Day was not at the premises when the warrant was executed, and the next day he asked the constable for a copy of the warrant. Both Customs and the AFP refused to make a copy of the warrant available to Mr Day. Accordingly, he sought out Ms Baker who, he believed, had issued the warrant. When Mr Day asked at the Local Court on 21 September 1998 to see Ms Baker, the clerk at the enquiry counter requested some form of identification and he presented his Customs Identification Card. The clerk then fetched Ms Baker, whom Mr Day questioned about the warrant. 6 After referring to the evidence, the DAC stated its key finding as follows: "10.5 The DAC was satisfied that the Appellant clearly was not acting in the course of performance of his duties or in exercising powers entrusted in him when he produced his Customs ID card. After all his previous unsuccessful official attempts to discover the contents of the relevant warrant, his behaviour in going to the Court and specifically seeking out the officer whose signature appeared on the warrant and the whole tenor of his questioning of her seeking to discover the scope of the warrant, clearly indicates that he was acting to find out the information unofficially by using his status as a Customs officer. The use of his Customs ID card had the desired effect of ensuring his access to [Ms Baker]." 7 Before the DAC it was submitted on behalf of Mr Day that, even if the matters alleged in the particulars were made out, they were incapable in law of constituting misconduct for the purposes of s 56(d) of the Act because (1) the impugned conduct was not engaged in "as an officer", and (2) such conduct was not "improper". As to the first submission, the DAC rejected the contention that Mr Day was "on a frolic of his own" and was not acting as an officer. It said: "10.9 The Appellant appears to have been on duty during a normal working day at the time of the visit - there was no evidence before the DAC that the Appellant was on flex or other leave at the time. In these circumstances, the Appellant cannot have it both ways he can not infer that he was on official duty then claim that he was not acting as an officer at the same time." On the meaning of the expression "improper conduct" the DAC, having earlier referred to the decision of the Full Court of this Court in O'Connell v Palmer (1994) 53 FCR 429, concluded: "10.11 … the question as to whether the conduct of the Appellant was improper must clearly be 'yes' in the view of the DAC. Put simply, the Appellant had unsuccessfully tried all possible avenues to find out the details of a warrant which he had no legal right to see for reasons of operational security. He then used his ID Card improperly to gain access to the person he knew probably had signed the warrant and would know its full details to find out as much as he could about the warrant knowing that he had no legal entitlement to that information. His behaviour involved a devious and calculated move to gain the information in any way he could and by any definition of the term 'improper behaviour by an officer' this behaviour must be seen as improper." 8 Mr Day assailed both these conclusions of the DAC in his application for judicial review. Gyles J observed at [24] that Mr Day's first point was "thrown up in a stark form in the present case because the DAC has held that what [he] was doing had nothing whatsoever to do with performing his duties or exercising powers entrusted in him". However, his Honour held at [29] that Mr Day rightly conceded that "improper conduct within s 56(d) could take place during the course of the purported performance of his duties as an officer." His Honour pointed out that, in paragraph 10.9 of its reasons, the DAC used the word "infer" in the sense of "imply". Gyles J said at [32]: "With considerable hesitation, I have come to view that there was material from which the DAC could properly conclude that the applicant did purport (albeit by implication) to be at the Court pursuant to his official duties, making his conduct on that occasion conduct as an officer for the purposes of s 56(d). … The finding of facts is for the DAC, not for this Court upon judicial review." 9 As to the finding that Mr Day's conduct was improper, Gyles J said at [35]: "The manner in which the conclusion of the DAC is expressed [in paragraph 10.11 of its reasons] makes it clear that the DAC, in coming to its conclusion as to impropriety, took into account what it regarded as an illegitimate purpose involved in the applicant's exercise. In other words, the DAC did not confine themselves to the deception by which access was obtained, but also had regard to the purpose for which that deception was exercised." His Honour then said about Mr Day's questions to Ms Barber at [37]: "I see no impropriety in any member of the public seeking out the person who had issued a warrant which had been executed against goods of that person, and asking whatever questions the citizen likes of the person who issued the warrant. It is up to the person who issued the warrant whether to answer the questions. I cannot see why the applicant is in any worse position than any other member of the public in this respect." Accordingly, his Honour concluded at [39]: "In my opinion, the DAC misdirected itself in law as to the rights of a party affected by the execution of a search warrant, and the making of the decision was an improper exercise of power because the DAC took an irrelevant consideration into account in the exercise of the power. As this issue was crucial to the reasoning of the DAC both as to liability and, what has been called, penalty (and to the submissions put to it), the decision must be set aside." As we have already mentioned, Gyles J ordered that Mr Day's appeal be remitted for rehearing. 10 The Commonwealth's notice of appeal states the grounds relied upon in support of its appeal as follows: "1. The learned trial Judge erred in forming his own view as to the propriety of [Mr Day] seeking out the person who had issued the warrant, Ms Baker, and asking questions as to the terms of the warrant and what lay behind it, in circumstances where it was open to the Disciplinary Appeal Committee to find, as a fact, that [Mr Day's] actions were not proper, for an officer of Customs in his position, to pursue. 2. The learned trial Judge erred in equating [Mr Day's] position with that of any ordinary member of the public in assessing the propriety, or otherwise, of [Mr Day] seeking out Ms Baker and asking questions as to the terms of the warrant and what lay behind it. 3. The learned trial Judge erred in ruling, and taking into account, that 'It is up to the person who issued the warrant whether to answer the questions'. Such a ruling does not assist in deciding whether it is wrong for an officer, in [Mr Day's] position, to solicit a public official to breach a duty of confidence owed in respect of official information. 4. The learned trial Judge erred in ruling that the DAC 'misdirected itself in law as to the rights of a party affected by the execution of a search warrant'. 5. The learned trial Judge erred in ruling that the DAC took an irrelevant consideration into account (namely, the illegitimacy of the purpose for which [Mr Day] gained access to Ms Baker). 11 In our opinion, these grounds completely fail to come to grips with the particulars of the charge laid against Mr Day. As Gyles J pointed out at [11], the breach charged, if it occurred, was complete when the counter clerk fetched Ms Baker. That is why his Honour subsequently held at [35], correctly in our view, that the DAC erred in not confining its consideration to "the deception by which access was obtained". The DAC was, of course, entitled to identify why Mr Day sought access to Ms Baker and so could have regard to the evidence of the questions he put to her. But it was only entitled to do that, given the way the charge was framed, in order to ascertain whether Mr Day's purpose in using his card to gain access to Ms Baker was in performance of his duties or in exercising powers entrusted to him or whether, in contrast, it was for a non-official purpose. What the DAC could not do, in determining that the charge, as framed, was proved, was go beyond identifying Mr Day's purpose as a non-official one and find, in that purpose, evidence of improper conduct sufficient to sustain the charge separate from the only improper conduct laid in the charge, viz, the use of the card to obtain access to Ms Baker, otherwise than in the performance of his duties or in exercising powers entrusted to him. In this sense we agree with Gyles J that the DAC took an irrelevant consideration into account in the exercise of the power conferred by s 63D(3) of the Act. 12 It is quite wrong to say that the primary judge formed "his own view as to the propriety" of Mr Day's conduct. That will be a matter for a differently constituted Disciplinary Appeal Committee at a fresh hearing. In O'Connell v Palmer the Full Court held (at 434) that the word "improper conduct" in police disciplinary regulations meant "conduct which may be regarded as lacking propriety or as unbecoming or unseemly in the circumstances". The DAC's reference to this case was apposite and attracted no adverse comment from Gyles J. 13 It may be that, strictly speaking, his Honour's comments about the propriety of Mr Day's questioning of Ms Baker were made obiter. But the DAC condemned Mr Day's behaviour in both "seeking out" Ms Baker and "questioning" her in order to find out the information to which he was supposedly not entitled. That first aspect, that is, seeking access, was a circumstance plainly relevant to the charge, and it is clear beyond argument that the DAC misdirected itself as to the rights of a person affected by the execution of a search warrant. Grounds 1, 4 and 5 are not made out. 14 Grounds 2 and 3 are said to turn on the special position of public servants. Of course, such persons may have employment obligations cast upon them by virtue of their offices that are different to those of other members of the public who are not employed by the Commonwealth. The restriction on the use of identity badges imposed by the Customs Code of Ethics and Conduct is an example. No doubt, there is a wide scope for directions to be given by Customs to its officers: see McManus v Scott-Charlton (1996) 70 FCR 16. However, in the present case no question arises of any direction having been given to Mr Day that he should not approach the person who issued the warrant under which his property was seized. (Customs' mere refusal to furnish him with a copy of the warrant certainly does not constitute such a direction.) Further, Mr Day has not been charged with soliciting anyone to breach a duty of confidence. These grounds raise entirely hypothetical questions which it is not necessary to explore in this case. The appeal will be dismissed with costs. 15 Mr Day's cross-appeal rests on the proposition that the charge against him cannot be made out in law because he was not acting as an officer and, further, that there was no material from which it could be found that his alleged conduct was improper. He, therefore, seeks orders that his appeal under s 63D of the Act should not be remitted for rehearing and that the Commonwealth should pay his costs of the hearing before the DAC. 16 So far as the question of acting "as an officer" is concerned, we agree with Gyles J. Any finding that Mr Day purported to be acting as an officer will be a matter for a new Disciplinary Appeal Committee. Mr Day submits that the exchange with the counter clerk at the Local Court could only amount to a representation that he was a Customs officer, not that he was on Customs business. No doubt, that is a finding that can be urged at the rehearing. But, where a person asks at court to see a court officer and, when asked for identification (not, be it noted, employment identification such as might be requested in, say, a bank), produces an official Customs Identification Card, it would, in our view, be open to find that the person was purporting to be there on Customs business. 17 As to impropriety , that will involve labelling the undoubted breach of the Code. The misuse of an identification card may conceivably be improper depending on the circumstances. All that Gyles J correctly pointed out is that, by itself, there is nothing wrong in trying to ascertain the contents of a search warrant. Whether one should use a Customs identification card to get preferred access or to jump a queue is another question. Gyles J's decision to remit the matter for rehearing was, in our view, inevitable. A finding of impropriety is a finding of fact committed by Parliament to Disciplinary Appeal Committees established in accordance with the Merit Protection (Australian Government Employees) Act 1984 ("the Merit Protection Act"). Only if an appeal to such a committee is successful, can costs be awarded. The question whether such costs should be paid and, if so, the amount of the costs is a matter for the committee. 18 In his cross-appeal, Mr Day also sought an order that his costs of the proceeding before Gyles J be paid by the Commonwealth on an indemnity basis. Nothing has been said to convince us that the primary judge's exercise of his discretion as to costs miscarried. The cross-appeal will be dismissed. 19 There is one other matter that should be mentioned. In his application to the Court Mr Day alleged that he was denied procedural fairness in the hearing before the DAC. Gyles J did not grant relief on that ground. However, on the appeal, Mr Day raised the matter once more by notice of contention. 20 The facts relevant to this issue are in short compass. Mr Day was not what in vulgar parlance is called a "cleanskin". On 8 March 1989 he had been convicted of three criminal offences; on 25 July 1991 an inquiry officer had found him guilty of misconduct under s 61 of the Act in respect of a disciplinary offence committed on 31 March 1988 and fined him; and on 3 April 1992 a Disciplinary Appeal Committee had found him guilty of four charges of misconduct under s 61 of the Act in respect of three disciplinary offences committed in July 1985 and one in February 1986 and had directed that he be demoted. All this information was contained in documents intended to be used by Customs at the DAC hearing. Prior to the hearing these documents were furnished to Mr Day's solicitors and lodged with the Merit Protection and Review Agency ("the Agency"), which distributed them to the members of the DAC. Mr Day's solicitors wrote to the solicitor for Customs objecting to these documents being furnished to the DAC before it had determined whether their client was guilty. When the hearing before the DAC commenced, counsel for Mr Day objected to the documents in question being received in evidence before the charge was proved. Customs pressed the tender and the DAC admitted the documents at the outset. The DAC dealt with the admission of the documents in a separate section of its reasons, where it said: "8.10 … In considering the documents the DAC was well aware of the of the [sic] legal requirements relating to its operations and assessed the documents only in the context of determining an appropriate penalty." 21 By virtue of s 63D(2)(a) of the Act an officer in Mr Day's position was entitled (as he did) to appeal on the grounds (i) that the charge should have been dismissed and (ii) that the action directed to be taken in relation to the charge is unduly severe. The clear distinction between a finding that a charge has been established and the action in respect of the charge is expressly acknowledged in the language of s 63G of the Act. Where there is an appeal on both grounds under s 63D(2)(a), the finding will necessarily come first. Section 63D(6)(a) requires a committee on a severity appeal to take into consideration any evidence given on the hearing of the appeal of "matters relating to the previous employment history and general character of the appellant". But that stage may never be reached in a case such as Mr Day's unless there is first a finding of guilt. 22 In the court below Gyles J expressed his disapproval of the tender by Customs of Mr Day's antecedents at the outset of its case before the DAC. The Commonwealth complains that it was not heard on this question before his Honour and, on the hearing of the appeal, it sought to justify that tender by reference to various legislative provisions and to guidelines issued by the Agency under s 8(2)(b) of the Merit Protection Act. Those guidelines are published in Chapter 5 and Part IV of Chapter 7 of the Agency's Operations Manual. (Copies of those Chapters, which were not in evidence in the court below, were received in evidence on the appeal.) 23 The Commonwealth submits that s 37(1) of the Merit Protection Act is particularly relevant. It provides, in effect, that the procedure of the DAC is within its discretion and that proceedings shall be conducted with as little formality and technicality, and as quickly, as a proper consideration of the matter permits. But that provision does not absolve the DAC of the obligation to accord procedural fairness. Further, reg. 145 of the Public Service Regulations, to which the Commonwealth refers, does not provide for documents furnished to an appellant in a timely fashion also to be given to members of the DAC ahead of the hearing. It is true that the guidelines issued by the DAC assume that documents "previously provided" may "need to be formally re-presented" (paragraph 7.46(3)), but the prior distribution of such documents is included in a different part of the Agency's Manual only as administrative guidance for the assistance of its staff. Contrary to the submissions of the Commonwealth, the decision in Barnes v Australian Telecommunications Commission (1989) 25 FCR 283 also provides no authority for the course adopted by Customs in this case before the DAC. In Barnes the evidence relating to penalty was of an entirely different character and had no ramifications for the credit of the officer in respect of the charges he was facing. 24 The guidelines in Chapter 5 of the Agency's Manual state (paragraph 5.30) that the procedural requirements of natural justice will vary according to the particular circumstances of each case. That it is the instruction that should be steadily borne in mind by Customs in the further conduct of Mr Day's appeal under s 63D of the Act. It is unnecessary now to determine his contention on this point, but we may say that we share Gyles J's disquiet about what happened prior to and at the first hearing. The particulars of Mr Day's antecedents were irrelevant to whether he was guilty of the charge he is presently facing. Yet such information was apt to poison the mind of the DAC, notwithstanding its subsequent disclaimer. If Mr Day is eventually found guilty by a new Disciplinary Appeal Committee, evidence can be subsequently adduced of his history on the question of penalty, to which issue alone such evidence is relevant. I certify that the preceding twenty four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of this Honourable Court. Associate: Dated: 13 April 2000 Counsel for the appellant: RRS Tracey QC and TM Howe Solicitor for the appellant: Australian Government Solicitor Counsel for the first respondent: Paul Roberts SC Solicitors for the first respondent: Leitch Hasson Dent Date of hearing: 29 February 2000 Date of judgment: 13 April 2000