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Gunning, Patrick --- "Cases and complaints" [1996] PrivLawPRpr 17; (1996) 3(1) Privacy Law & Policy Reporter 12

TACIAK v COMMISSIONER OF FEDERAL POLICE

Federal Court of Australia, Sackville J [1995] FCA 1481; (1995) 131 ALR 319

Telecommunications (Interception) Act 1979 (Cth), s 67 -- definition of `permitted purposes'

T was a member of the Australian Federal Police who sought reappointment to his position. A delegate of the Commissioner decided not to reappoint T, taking into account information in the Commissioner's possession lawfully obtained from interception of telephone conversations involving T. At the time of the decision, T was awaiting trial on charges of perverting the course of justice, the primary evidence for which was the subject intercepted telephone conversations.

Section 67 of the Telecommunications (Interception) Act 1979 (Cth) (the Act) permitted the Commissioner to make use of lawfully obtained information `for a permitted purpose'. A `permitted purpose' was defined in s 5 to mean, inter alia, `a purpose connected with ... (a)(ii) the making of ... a decision whether or not to begin a relevant proceeding [including a police disciplinary proceeding] ... or ... (b)(i) an investigation of, or inquiry into, alleged misbehaviour, or alleged improper conduct, of an officer of the Commonwealth'.

Held: (i) The definition of `permitted purpose' clearly distinguishes use of information for a purpose connected with an investigation or inquiry and use of information for a purpose connected with a decision affecting the interests of a person who is the subject of the investigation or inquiry.

(ii) A decision not to reappoint an officer is not a purpose connected with an investigation of, or inquiry into, alleged misbehaviour or improper conduct. It follows that s 67 precludes the use of lawfully-obtained intercept information for the purpose of deciding whether to reappoint T to his position.

Obiter: Had the legislation been ambiguous, the court would have been justified in a restrictive approach to the construction of the statutory exceptions to the prohibitions on the interception of telecommunications and on the use of lawfully obtained intercept information because of the fundamental importance of protecting individual privacy (Coco v R [1994] HCA 15; (1994) 179 CLR 427, considered).

Comment

The reasons for the decision contain an examination by Sackville J of its policy implications.

The Commissioner argued that it would be absurd if he could not take into account lawfully-obtained intercept information which constituted prima facie evidence of involvement in criminal activities by police officers seeking reappointment to their positions. However, as Sackville J pointed out, the scheme of the legislation does allow the Commissioner to use such information for the purpose of `relevant proceedings' including disciplinary proceedings. It would also be permissible to use the information to suspend an officer pending the outcome of a disciplinary proceeding. At the disciplinary proceeding, the officer would be afforded the procedural protection of a formal hearing.

The case demonstrates the balance of the public interests in protecting privacy in telecommunications and in acting on prima facie evidence of criminal conduct, with privacy considerations requiring no action be taken on the basis of intercepted communications without providing procedural safeguards in favour of participants in those communications.

It is interesting to consider the application of general privacy principles to the situation. IPP 10 prevents information obtained for one purpose being used for another purpose unless certain standard exceptions apply. However, if an exception applies, there is no obligation imposed by the Privacy Act to afford the individual concerned an opportunity to respond. Rather, it is necessary to rely on general administrative law concepts of the type discussed in Johns v ASC (see < 1 PLPR 10>). Given the potential adverse in Johns v ASC (see < 1 PLPR 10>). Given the potential adverse consequences to T of the Commissioner's use of the information, it is possible that procedural fairness may have dictated that the Commissioner not use the information without taking formal disciplinary proceedings. Tested in this way, it appears that the court's decision is sound in policy terms. v

Patrick Gunning.


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