O'Malley v Keelty, Australian Federal Police Commissioner [2004] FCA 1688

FEDERAL COURT OF AUSTRALIA

O'Malley v Keelty, Australian Federal Police Commissioner [2004] FCA 1688 Australian Federal Police Act 1979, s 37 Judiciary Act 1903 (Cth), s 39B Telecommunications (Interception) Act 1979 Hinchcliffe v Commissioner of Police [2001] FCA 1747 R v Metropolis Police Commissioner; Ex parte Blackburn (1968) 2 QB 118 PATRICK GERARD O'MALLEY v MICHAEL KEELTY, AUSTRALIAN FEDERAL POLICE COMMISSIONER ACD 31 OF 2004 EMMETT J 18 OCTOBER 2004 CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ACD 31 OF 2004

BETWEEN: PATRICK GERARD O'MALLEY

APPLICANT

AND: MICHAEL KEELTY, AUSTRALIAN FEDERAL POLICE COMMISSIONER

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 18 OCTOBER 2004

WHERE MADE: CANBERRA

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the proceeding. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ACD 31 OF 2004

BETWEEN: PATRICK GERARD O'MALLEY

APPLICANT

AND: MICHAEL KEELTY, AUSTRALIAN FEDERAL POLICE COMMISSIONER

RESPONDENT

JUDGE: EMMETT J

DATE: 18 OCTOBER 2004

PLACE: CANBERRA

REASONS FOR JUDGMENT 1 The applicant, Mr Patrick Gerard O'Malley, seeks relief under s 39B of the Judiciary Act 1903 (Cth) against the respondent, the Australian Federal Police Commissioner. Mr O'Malley claims that the Commissioner is in breach of his duty to investigate all aspects of an offence which Mr O'Malley believes may have been committed in relation to his home. Mr O'Malley is concerned that there may have been an offence committed against s 7 of the Telecommunications (Interception) Act 1979 (Cth), which provides that a person must not intercept or do any act or thing that will enable him or her or another person to intercept the communication passing over a telecommunications system. 2 Mr O'Malley's concern is that somebody, in contravention of that provision, may have connected an interception wire to his private telephone lines. There is no doubt that the principle behind s 7 is a very important one. Any member of the community is entitled to his or her privacy and is entitled to ensure that people do not unlawfully listen in to their communications by telephone. However, that is not the question before me. The question is whether or not the Commissioner of Police is in breach of his duty in failing to investigate further concerns of Mr O'Malley that there may have been an offence committed. 3 The Commissioner has the general administration and the control of the operations of the Australian Federal Police, pursuant to s 37 of the Australian Federal Police Act 1979 (Cth). Under s 6 of that Act the Australian Federal Police consists of the Commissioner, any Deputy Commissioner, employees of the Australian Federal Police, and special members appointed pursuant to s 40E. Relevantly, the functions of the Australian Federal Police are, pursuant to s 8(1)(a) and s 8(1)(b)(i), the provision of police services in relation to the Australian Capital Territory and the provision of police services in relation to laws of the Commonwealth, of which the Telecommunications (Interception) Act is one. 'Police services' is a term defined in s 4 of the Australian Federal Police Act, as including services by way of the prevention of crime and the protection of persons from injury or death, and property from damage, whether arising from criminal acts or otherwise. 4 Section 9 of the Australian Federal Police Act confers upon members of the Australian Federal Police the powers and duties that are conferred or imposed by or under law of the Commonwealth on a constable, and, when performing functions in the Australian Capital Territory, the powers and duties conferred or imposed on a constable or an officer of police by or under any law, including the common law of the Territory, and in relation to laws of the Commonwealth, the powers and duties that are conferred or imposed on an officer of police. 5 The language of the Act is not particularly helpful. There is, however, no real dispute between the parties as to the nature of the duties of members of the Australian Federal Police. The functions of the Australian Federal Police include the prevention of crimes and associated activities such as the investigation of complaints about the commission of crimes with a view to the identification of offenders. 6 Generally speaking, the Commissioner must act so as to facilitate the performance by the Australian Federal Police of its statutory functions. However, whilst a Commissioner of Police has a duty to enforce the law, he or she also has a broad discretion as to the manner in which he or she chooses to fulfil the responsibilities of office. Where a member of the Australian Federal Police receives a complaint from a member of the public, the member of the Australian Federal Police would certainly discharge his or her duty to enforce the law if he or she gives due and proper consideration to the question of whether, and in what way, an initial inquiry into the complaint should be made, and then acts appropriately upon the view formed: see Hinchcliffe v Commissioner of Police of the Australian Federal Police [2001] FCA 1747 at [31]–[36].) 7 The duty of the Commissioner is to enforce the law. He or she must take steps to post police officers so that crimes may be detected and that honest citizens may go about their affairs in peace. But the Commissioner is not the servant of anyone save the law itself. Although the Commissioner is answerable to the law, there are nevertheless many fields in which the Commissioner will have a discretion with which the law will not interfere. It is for the Commissioner to decide in any particular case whether inquiries should be pursued. It must be for the Commissioner to decide on the disposition of the force and concentration of the resources available on any particular crime or area. No court can or should give the Commissioner direction on such a matter: see R v Metropolis Police Commissioner; Ex parte Blackburn [1968] 2 QB 118 at 136. 8 Nevertheless, the Commissioner of Police is not beyond the law. If the police fail in the duties, however ephemeral it may be to describe them, a citizen is entitled to assistance in ensuring that the police do their duty. For example, if there was evidence of a dishonest refusal to investigate on the part of an investigating officer, or if the evidence suggests that an honest police officer acting reasonably could not properly come to the view that the matter was not capable of investigation there may be, and I emphasise may be, a basis upon which the Court could interfere. 9 Mr O'Malley says that such circumstances have been demonstrated in this case. In order to consider his claim it is necessary to examine the material that he has put before the Court. The material consists entirely of correspondence, some of which I rejected as having no relevance. So far as communication between Mr O'Malley and the Commissioner is concerned, the story begins on 11 September 2003 when Mr O'Malley wrote to the Commissioner attaching a copy of a letter of 8 September 2003 to the Federal Minister for Regional Services, Territories and Local Government, which included copies of letters from Mr O'Malley to the Inspector-General of Intelligence and Security, and a response to that letter. In his letter of 11 September Mr O'Malley said that the correspondence: 'deals with an inactive intercept wire found on my telephone line.' 10 The letter goes on relevantly to say as follows: 'Also attached is a copy of letter of 8 September 2003 from Mr Blick where he advises me to refer this matter to the police. … Also note that within three months, March–June '93 (best guess) of moving into our new home the telephone line went dead. Two Telstra technicians attended to the problem. When one of the technicians was coming off the ladder from the pole, he placed his finger in an upright position over his lips in a gesture that amounted to keep quiet or don't ask questions. … Other information, which may or may not be relevant, and which you would not have at your fingertips is that some house on this street is already under surveillance by either the AFP or another Agency.